"This is a major victory for anyone who supports a more intelligent, less destructive way of accommodating growth in our communities," said Earthjustice attorney Deborah Reames.
The two federal agencies agreed to review the development under pressure from a lawsuit brought by Earthjustice and co-counsel Brendan Cummings on behalf of the Center for Biological Diversity ("CBD") and the Hayward Area Planning Association ("HAPA").
"We asked the Court to send the Fish and Wildlife Service back to the drawing board to start over and to set aside the Army Corps' permit in the meantime," said CBD attorney Brenden Cummings, "and this is exactly what they agreed to do."
On November 14, 2000, Earthjustice filed suit challenging the Service's failure to provide legally mandated protections for the Alameda whipsnake and the California red-legged frog in its original assessment of the Blue Rock project. At the same time, Earthjustice issued a warning to the Army Corps that it, too, could face charges if it failed to review its decision to issue a dredge and fill permit to the developer. The development site is part of recently designated critical habitat, necessary for the survival of both the whipsnake and the frog. The dredge and fill permit would have allowed the developer to destroy some of the last wetlands in the East Bay hills.
"Federal agencies have a duty to protect endangered species and their habitats, without exception. In the case of Blue Rock, they failed badly," said Jeff Miller of CBD. "Protecting habitat helps protect the very quality of life we enjoy here in the Bay Area. This is a victory for all Bay Area residents."
Thursday, the parties formally agreed to suspend the litigation over Blue Rock, in light of the Army Corps' February 22, 2001 suspension of its permit allowing the developer, Hayward 1900, to "dredge and fill" wetlands on the site. The Corps of Engineers has also formally requested that the Fish and Wildlife Service revisit its earlier conclusions.
In April of 1999, the Service issued a draft biological opinion concluding that the project presented a serious, pervasive threat to the survival of both the frog and whipsnake. However, after a summer of political maneuvering by the developer, Service officials made a sudden about-face. In December of 1999, over the objections of their own biologists, Service officials decided that the project would not jeopardize the species or their habitats, and that the project could proceed. The reversal came after intense lobbying by the developer of the federal agencies which was revealed by materials that surfaced as a result of Freedom of Information Act requests. Thursday's stipulation puts the project on hold and allows the Service a final opportunity to re-think that decision. "Hopefully," said Reames, "this time the agencies will reach a final decision based on biology and not politics."
"The developer has plans for how threatened species should behave," said HAPA's Sherman Lewis. "The biologists of the Fish and Wildlife Service disagree. The evidence indicates that the snakes and the frogs just might not cooperate."