A federal judge has ruled that despite drought conditions -- or perhaps because of them -- Stanford University must allow two environmental groups to inspect fragile endangered species habitat at the Jasper Ridge Biological Preserve. That inspection will place today, Feb. 28, starting at 8 a.m.
Our Children's Earth and Ecological Rights Foundation filed a lawsuit against the university in January 2013, claiming Stanford is harming endangered steelhead trout. The university is in violation of the Endangered Species Act by maintaining Searsville Dam and diverting millions of gallons of water from the San Francisquito Creek watershed for irrigation purposes, the lawsuit claims.
As part of an agreement for the "discovery" portion of the case, both sides agreed to three seasonal inspections of Searsville Dam and related areas by the plaintiffs' expert. The first inspection took place at the end of August 2013 during the dry season. The second inspection was to take place during the rainy season around the time of the first significant storm. The purpose was to observe wet season conditions in the San Francisquito Creek watershed. But this year's extreme drought sparked a controversy over the definition of seasonal inspection.
Our Children's Earth claimed it should be allowed to view the habitat during the fall, winter and spring seasons to observe all seasonal conditions, even if there is no rain. Stanford maintained the drought forestalls inspection, and it should not take place until there is a significant rain event.
Our Children's Earth expected the winter habitat inspection would coincide with changing creek flow and rainfall. But this winter has shaped up to be a historically dry one, perhaps the worst drought in the state's 163-year history.
The drought is precisely why Our Children's Earth should be allowed to inspect the habitat. Inspecting the areas under existing conditions would provide useful information concerning hoe the habitat is faring, and whether it can provide for the life cycles of endangered creatures despite the combined stresses of drought and Stanford's operations, the plaintiffs' attorneys said.
"We disagree that Stanford can unilaterally announce that plaintiffs will not be able to observe all ecologically relevant conditions -- which vary with seasons," lawyers for the ecological group wrote in an email to Stanford, according to court records.
Stanford maintained in its reply brief that it has never disputed about whether the inspections can take place. But the plaintiffs' request for a drought inspection rather than a wet-weather inspection violated the agreement, Stanford said. Sticking to the strict letter of the agreement, the university said Our Children's Earth agreed to one dry weather inspection and two wet-weather inspections.
Stanford told the court it would not object to the second inspection going forward soon, despite the less favorable conditions, provided the plaintiffs did not claim later that they did not see the migration conditions they needed to observe and demand another inspection.
U.S. District Court Judge Judith Laporte sided with Our Children's Earth in part, compelling Stanford to give up to four persons access to view inspection areas from the roads and trails. An expert, accompanied by the plaintiffs' attorney, may enter the San Francisquito Creek streambed at designated points to take samples and measurements. The permitted inspection areas include walking up to the confluence of Corte Madera and Bear creeks; up Corte Madera Creek to the base of Searsville Dam; and down the creek as far as is passable to a disputed area, the Jasper Ridge Road Crossing, a concrete road crossing that is downstream from Searsville Dam.
Our Children's Earth claims that Stanford's construction of the Jasper Ridge Road Crossing and some supports for the water pipeline violate the Clean Water Act by discharging sediment and pollutants from the booster pump into San Francisquito Creek. The university is also allegedly discharging sediment and pollutants from a pipeline valve at the base of the dam into Corte Madera Creek. But Stanford argued those allegations were not part of the original complaint, and therefore had nothing to do with the original discovery agreement.
Laporte ruled against a request by Our Children's Earth to extend its inspection to Bear Creek above Searsville Dam and Reservoir. But the order prohibits the university from introducing any evidence based on observations of those areas in order to show that they are not potential habitat for the Central California Coast steelhead trout.
Christopher Sproul, an attorney for the plaintiffs, said he disagreed that Bear Creek and the booster pump are not related to the lawsuit.
"We tried to explain that it is all about Searsville Reservoir and the water being drained from the watershed. We think it's related," he said.
Stanford spokeswoman Jean McCown said that Stanford's resistance stemmed from concerns over Jasper Ridge's ecologically sensitive areas. The university also wanted a clear picture of the type of equipment and testing that would take place to ensure sensitive areas were not disturbed. The plaintiffs did not initially make that information available to Stanford, she said. The scope and methods of testing were later laid out in court and mandated by the judge.
The rains this week, however, would make the dry-inspection issue moot, she said. She conceded that Mother Nature had thrown a curve into the situation.
"The idea was to look at summer/fall during the dry season and in winter and spring during the big flows. But that really hasn't happened, This is not a normal season," she said.
Staff Writer Sue Dremann can be emailed at firstname.lastname@example.org.