CASE STUDY #6 SAN BRUNO MOUNTAIN HABITAT CONSERVATION PLAN1 Background San Bruno Mountain is the last, large open space left in the northern San Francisco Peninsula. Not surprisingly, the mountain had been the source of a bitter battle between local environmentalists and developers well before negotiations on the San Bruno Mountain Habitat Conservation Plan began. The mountain also is home to the San Bruno elfin butterfly (Callophyrs mossi bayensis) and mission blue butterfly (Plebejus icarioides missionensis), both of which are listed as federally endangered, as well as the Callippe silverspot butterfly (Spayeria callippe callippe), which was a candidate for listing at the time of this dispute. An earlier skirmish resulted in a 1980 settlement between San Mateo County and Visitacion Associates, one of the developers, in which the county agreed to zone one-third of the mountain for development and leave the rest as parkland.2 All was quiet until the U.S. Fish and Wildlife Service (USFWS) proposed to list and designate critical habitat for the Callippe silverspot butterfly. According to USFWS, "In the San Bruno Mountains, the species is uncommon, and proposed developments there would probably eliminate the butterfly." Visitacion Associates, which was extremely well-connected in Republican circles and had access to then President Ronald Reagan,3 took up arms, threatening to block the silverspot listing and have the mission blue and elfin butterflies delisted. Environmentalists, initially represented by the Committee to Save San Bruno, were equally determined to protect the butterflies and their habitat. It was in this highly charged political atmosphere that negotiations took place. The Parties 1. The Committee to Save San Bruno was well-established before the HCP negotiation began. The loosely organized coalition consisted of the Committee for Green Foothills (CGF), the Loma Prieta chapter of the Sierra Club, and the local chapter of the National Audubon Society. Their objective was to protect as much of the butterflies' habitat, and the mountain in general, as possible. 1 This case study was developed by Harlin Savage and Beth Delson. 2 The San Bruno Mountain Habitat Conservation Plan (Draft 1990), prepared by Mike O'Connell, World Wildlife Fund, Washington, D.C. (This narrative relies heavily on material included in the draft report.) 3 Telephone interview with Tom Adams, attorney for Committee to Save San Bruno, San Francisco, CA., April 1991. Source: Steven L. Yaffee and Julia M. Wondolleck, Negotiating Survival: An Assessment of the Potential Use of Alternative Dispute Resolution Techniques for Resolving Conflicts Between Endangered Species and Development (Ann Arbor, MI: School of Natural Resources and Environment, The University of Michigan, September 1994), a report prepared for the Administrative Conference of the United States. San Bruno Mountain HCP Case #6 - 2 2. Visitacion Associates, a developer, thought it had settled the matter in 1980. When it became clear that endangered butterflies might block their bulldozers, their objective was to delist the butterflies and proceed with development. Visitacion Associates apparently spoke for the majority of landowners. 3. The U.S. Fish and Wildlife Service's main concerns were protecting the endangered butterflies and avoiding lawsuits. 4. The Cities of Brisbane, Daly City, South San Francisco and the San Mateo County Board. At the time of the dispute, the Brisbane City Council could be characterized as pro- environment. This later changed, with an election of a new city council, when amendments were proposed by the city and the developers. Daly City was pro-development. South San Francisco and the San Mateo County Board probably fell somewhere in between on the political spectrum. 5. The California Department of Fish and Game and the California Department of Forestry. The Process County Supervisor Bacciocco initially was responsible for getting the parties to agree to negotiate. Bacciocco ran the meetings and served as mediator. Lenny Roberts, a member of the Committee for Green Foothills, remembers Bacciocco as being fair and said, "(He) tried to keep the playing field even." The first step was to form a steering committee, which the parties agreed would operate by consensus. The next step was to hire an outside consultant, Thomas Reid Associates, to do the biological studies on which the plan would be based. While members of the Committee to Save San Bruno, including Roberts, attended meetings, the group was represented formally by two environmental attorneys, Tom Adams and Ann Broadwell. Adams and Broadwell also represented the City of Brisbane. Most of the city council members also were members of the Committee to Save San Bruno so conflicts were not apparent at the outset. The City of Brisbane paid the attorney's fees with money budgeted for planning activities. Without that infusion of funds, the environmental groups probably would not have had professional representation. To ensure the quality of Reid's biological studies, the steering committee decided to have three outside experts review his research. Whether the county approved the reviewers, who were all well known biologists at the University of California, or the steering committee approved them is unclear. Reviewers generally lauded Reid's studies, given time constraints, but they cautioned that estimates of butterfly populations and their locations were inexact and that the parties should plan accordingly. The local Sierra Club was somewhat skeptical and sent the report to Dr. Jay Hafernik, a biologist at San Francisco State University, for a second opinion.4 4 Telephone interview with Dr. Jay Hafernik, professor of biology, San Francisco State University, San Francisco, CA. April 1991. San Bruno Mountain HCP Case #6 - 3 Hafernik was, and still is, outspoken in his criticism of Reid's study and the HCP agreement. According to Hafernik, the data provided a crude estimate of total butterfly populations but could not be used to identify, with any degree of certainty, which parts of the mountain they occupied. "Somehow," Hafernik says, "what should have been perceived as rough estimates took on a life of their own." Other members of the steering committee apparently were less concerned about the quality of the research and its interpretation. The Committee for Green Foothills did not send the report for additional review.5 Despite some internal dissent, the committee accepted the studies' results as adequate to serve their intended purpose.6 Having passed muster, Reid's report was used as the scientific basis for negotiations. In November 1982, the steering committee approved the San Bruno Habitat Conservation Plan. The local governments then applied to the USFWS for a Section 10(a) permit. One notable bureaucratic hurdle remained. The USFWS had prepared a draft recovery plan for the mission blue butterfly, which would have designated the South Slope and Northeast Ridge as essential habitat, before negotiations got underway. The HCP allowed development in those areas, albeit scaled-down from the developer's initial proposal. The recovery plan was subsequently revised to eliminate significant discrepancies.7 The agency issued a non-jeopardy biological opinion and granted the 30-year permit in 1983. The Committee to Save San Bruno did not sign the agreement though several member groups voted privately to endorse it. The committee's unified front masked disagreement within its ranks; those who ultimately supported the plan did so warily.8 According to Adams, the coalition held together until compromise became inevitable. The group split and a splinter group, Bay Area Mountain Watch, formed opposed to the agreement. Support from other local groups, the Loma Prieta chapter of the Sierra Club and the Committee for Green Foothill, was lukewarm at best. The Sierra Club's board voted neither to oppose nor support the plan9 and Committee for Green Foothills narrowly approved it by a vote of 8-7.10 More than half a dozen national environmental groups protested the USFWS' award of the Section 10 (a) permit.11 The Agreement 5 Telephone interview with Lenny Roberts, member of The Committee for Green Foothills, San Francisco, CA. April 1991. 6 Telephone interview with Adams and Roberts. 7 O'Connell, draft report. 8 Telephone interview with Roberts, Loraine Burtzloff, Bay Area Mountain Watch, San Francisco, CA, and Ellie Larsen, Sierra Club Loma Prieta Chapter, Palo Alto, CA. April 1991 9 O'Connell, draft report. Telephone interview with Roberts. Adams thinks they supported the plan. 10 O'Connell, draft report. 11 Including Environmental Defense Fund, Natural Resources Defense Council, Xerces Society, Friends of the Earth, International Union for the Conservation of Nature and Natural Resources, Center for Law in the Public Interest, Center for Environmental Education, among others. San Bruno Mountain HCP Case #6 - 4 Assuming Reid's figures as the base, the HCP allows development of 10 percent of the butterflies' habitat; the rest becomes state, county or city-owned parkland. Not all of that 90 percent is good butterfly habitat, however. Some areas are infested with gorse (Ulex europaeus) and others lack the particular lupine (Lupinus albifrons) and violet species on which the butterflies depend for food. The agreement provides for the "enhancement" of poor quality habitat, but success has been very limited.12 The HCP restricts grading and construction to minimize disturbance of butterfly populations and provides stiff penalties for violations. In addition, the developer must post a $25,000 performance bond before work can begin. The agreement calls for monitoring and additional research to determine how the butterflies fare under the development regime. The "plan operator," in this case Thomas Reid Associates, is required to send annual monitoring reports to USFWS. The plan does not set specific goals for enhancement activities nor does it specify the kind of research to be undertaken. It does, however, stipulate that population studies should be done. Permanent funding for HCP mandated activities is provided through a trust fund fed by fees paid by landowners.