Incomplete red-legged frog protection has brought the threat of
lawsuit to the city and The Institute Golf Course, continuing the
on-going hassle over John Fry
’s controversial course on Foothill Avenue.
Incomplete red-legged frog protection has brought the threat of lawsuit to the city and The Institute Golf Course, continuing the on-going hassle over John Fry’s controversial course on Foothill Avenue.
In a letter sent Thursday to the U.S. Secretary of the Interior and the federal Fish and Wildlife Service, the Santa Clara Valley Audubon Society and the Committee for Green Foothills noted its intention to sue after 60 days if the city and The Institute don’t comply with a section of the Endangered Species Act.
“The (city and Institute) are causing illegal ‘take’ that harms and harasses the California red-legged from, a species listed as ‘threatened’ under the ESA,” the letter said. “The ESA prohibits all activities that cause a ‘take’ of an endangered species.”
“Take” includes not only destruction of the animals but harassment, defined as “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering,” the letter said.
It was signed by Craig Breon, executive director of SCVAS and Brian Schmidt, legislative advocate for CGF.
The city is involved because it has approved two temporary use permits allowing The Institute to continue maintaining its greens before an Environmental Impact Report was approved.
The course was built largely without city permits and with insufficient attention to the effect on wildlife, plant life and water quality of widespread grading and habitat destruction. An EIR is normally performed before a golf course is constructed; The Institute’s EIR was performed after the fact.
During the past several years the city and several federal and state agencies have worked to propose mitigations, or fixes to identified problems, to be required by the EIR.
The Audubon/Green Foothill letter claims that the proposed mitigations do not remove The Institute’s liability, nor are they sufficient to protect the frogs. Also, Breon and Schmidt claim that The Institute is not bound by the mitigations proposed in the EIR.
City Attorney Helene Leichter said she didn’t expect the city to ultimately be responsible because the lead agency (U.S. Fish and Wildlife Service) had not acted but that the city was indeed looking out for the frogs’ welfare.
“The agency charged with the enforcement (of red-legged frog protection) has declined to take any action,” Leichter said. “They concur with the mitigation package in the EIR.”
Leichter said that city staff will be recommending that, in order to get the EIR approved, The Institute would need to get an ‘incidental take permit.’ strengthening the frog’s protective net.
The final EIR will be considered at tonight’s Planning Commission meeting, 7 p.m. in Council Chambers, 17555 Peak Ave.
