The Pellucid Perspective - January 2013 - (Page 8)

Golf course litigation Sharp Park wins But, what if this happened to you? By Harvey Silverman T he Perspective has reported on and much has been writ- San Francisco is bluer than blue. In December 2011, the Board ten in the golf media about a lawsuit filed against Sharp of Supervisors passed an ordinance to close Sharp Park and Park Golf Course and its owner, the City and County of convert it to a frog and snake sanctuary. This was vetoed by San Francisco. To many people, this lawsuit by several environ- Mayor Ed Lee, who happens to also be a golfer. mental groups was the first salvo in a planned conspiracy to rid The City and SFPGA were pitted against a cauldron of nonthe landscape of golf courses; that by winning this lawsuit the profit environmental organizations, led by the Wild Equity Inenvironmentalists would march across the country and iden- stitute (“wild equity” – that’s what we all had in our houses at tify infractions of the Endangered Species Act at other courses one time, isn’t it?). Other co-plaintiffs included the Center for and force them to litigate, mitigate, or shut down. There may be Biological Diversity, the Sierra Club, National Parks Conservasome hyperbole associated with that fear, and that’s not what tion Association, Surfrider Foundation, and Sequoia Audubon. will be discussed here. Rather, we sought to learn in order to All have substantial means, staff, and strategies to prevail in cases like this. warn our readers what might be faced if this happened to you. We obtained a record of the 28-page court docket to see just As the title indicates, Sharp Park and San Francisco won how complex a case like this might be. Reviewing the docket when the case was dismissed “without prejudice” after the U.S. was mind-numbing and made our eyes Fish and Wildlife Service (FWS) found that golf at Sharp Park is “not likely to Our question was, what cross with the listings of motions, declarations, stipulations, exhibits, orders, joinjeopardize the continued existence of the California red-legged frog or San Fran- did it take to get to that ders, replies, conferences…and on and on. cisco garter snake (how many snakes are point in terms of legal The point of this was to determine how named for one of the most famous cities in much such a defense might cost the priresources; and how the world?).” The FWS issued an Incidenvate golf club owner if faced with a simital Take Statement, approving continued much might it cost for lar predicament. We turned to Edward L. golf and related maintenance activities Smilow, Esq. of Golf Course Law in La a private golf course subject to FWS restrictions on pesticides, Quinta, CA for some insight. He wrote: golf carts, water pumping, and other prac- owner to defend himself “My review of the court docket inditices. (San Francisco Public Golf Alliance cates a great deal of time and energy spent against such an action? in the legal arena from the preparation for press release, 12/7/2102). Our question was, what did it take to the initial pleadings, application and opget to that point in terms of legal resourcposition to a motion for preliminary ines; and how much might it cost for a prijunctive relief, court ordered settlement vate golf course owner to defend himself against such an action? procedures, case management conferences, cross-motions for Two local gentlemen, both avid golfers and attorneys, took summary judgment, and the motion and opposition to a moup the cause to save Sharp Park. Richard Harris and Bo Links tion to dismiss. Matters not reflected in the court docket would (yes) marshaled resources, funds, public and political support include informal and written discovery, depositions, legal rewhen the lawsuit was filed in March, 2011. They became the search, expert consultations, attorney conferences, client conferadvocates, and maybe the only hope, for the thousands of golf- ences and phone calls. This could easily have cost each side half ers who play 50,000 rounds a year on the Alister MacKenzie- a million dollars in legal fees or even more, given the number designed, oceanside Sharp Park course. They formed the San of attorneys involved and number of interested organizations.” Francisco Public Golf Alliance. The SFPGA was represented He goes on: “The lesson to be taken from the Sharp Park by the Morrison and Foerster law firm, and successfully won case is the old adage about an ounce of prevention. Thinking of status as an “intervenor defendant,” in order to work alongside potential consequences before action or inaction is taken is vital the City of San Francisco legal staff. This was a major victory, as to assessing the risks of doing so, especially in this watchdog the court recognized that Sharp Park’s golfers deserved a voice litigious society. Golf courses throughout the United States in the proceedings as well. must be vigilant in an attempt to remain compliant with the And it wasn’t just legal work that prevailed in the victory. law. Yearly audits and reviews should be conducted with expeThe SFPGA also had to fight the local political establishment, rienced legal counsel to minimize the potential risk of lawsuits. which in San Francisco is as far left of Albuquerque as one can When changes are contemplated in course management and go. Like the old Tide commercial that it’s “Whiter than White,” operations, legal counsel should be included in the planning 8 The Pellucid Perspective January 2013

Table of Contents for the Digital Edition of The Pellucid Perspective - January 2013

The Pellucid Perspective - January 2013
A Pellucid Preview of the 2012 State of the Industry
Boom times for golf course brokers
Show time: Happy days are here again?
Sharp Park wins
Private owner launches another attack on municipal course tax exemptions
December golf weather impact: 2012 a year for the record books!
Goofy had company in Orlando course developers
Dallas negotiating for construction of new championship course
“Customer co-production” worth looking into for golf

The Pellucid Perspective - January 2013