University of California • Berkeley
Regional Oral History Office University of California
The Bancroft Library Berkeley, California
California Water Resources Oral History Series
THE BAUMBERG TRACT: FROM THE PROPOSED SHORELANDS DEVELOPMENT
TO THE WETLANDS RESTORATION (EDEN LANDING ECOLOGICAL RESERVE), 1982-1999
Interviews with
Howard L. Cogswell
John M. Thorpe
Robert C. Douglass
Steve Foreman
Karen G. Weissman
Peter C. Sorensen
Carl G. Wilcox
Roberta G. Cooper
Janice Delfino
Interviews conducted by
Malca Chall
in 1996, 1997, and 1998
Copyright o 2000 by The Regents of the University of California
Since 1954 the Regional Oral History Office has been interviewing leading
participants in or well-placed witnesses to major events in the development of
Northern California, the West, and the Nation. Oral history is a method of
collecting historical information through tape-recorded interviews between a
narrator with firsthand knowledge of historically significant events and a well-
informed interviewer, with the goal of preserving substantive additions to the
historical record. The tape recording is transcribed, lightly edited for
continuity and clarity, and reviewed by the interviewee. The corrected
manuscript is indexed, bound with photographs and illustrative materials, and
placed in The Bancroft Library at the University of California, Berkeley, and in
other research collections for scholarly use. Because it is primary material,
oral history is not intended to present the final, verified, or complete
narrative of events. It is a spoken account, offered by the interviewee in
response to questioning, and as such it is reflective, partisan, deeply involved,
and irreplaceable.
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This manuscript is made available for research purposes. All
literary rights in the manuscript, including the right to publish,
are reserved to The Bancroft Library of the University of
California, Berkeley. No part of the manuscript may be quoted for
publication without the written permission of the Director of The
Bancroft Library of the University of California, Berkeley.
Requests for permission to quote for publication should be
addressed to the Regional Oral History Office, 486 Library,
University of California, Berkeley 94720, and should include
identification of the specific passages to be quoted, anticipated
use of the passages, and identification of the user.
It is recommended that this oral history be cited as follows :
To cite the volume: The Baumberg Tract: From the
Proposed Shorelands Development to the Wetlands
Restoration (Eden Landing Ecological Reserve), 1982-
1999, an oral history conducted in 1996, 1997, and
1998, by Malca Chall, Regional Oral History Office,
The Bancroft Library, University of California,
Berkeley, 2000.
To cite an individual interview: [ex.] Howard L.
Cogswell, "College Professor, Ornithologist, Active
Citizen," an oral history conducted in 1996 and 1998
by Malca Chall in The Baumberg Tract: From the
Proposed Shorelands Development to the Wetlands
Restoration (Eden Landing Ecological Reserve), 1982-
1999, Regional Oral History Office, The Bancroft
Library, University of California, Berkeley, 2000.
Copy no.
Cataloguing information
THE BAUMBERG TRACT: FROM THE PROPOSED SHORELANDS DEVELOPMENT TO THE
WETLANDS RESTORATION (EDEN LANDING ECOLOGICAL RESERVE), 1982-1999, 2000,
x, 393 pp.
Interviews with eleven persons involved in controversy over plans to build
a racetrack and business park (denied) on a wetland site along the Hayward
shoreline and approval to restore it as a wildlife sanctuary. Leslie Salt
Division (Cargill Corporation); environmental regulations; compilation of
Environmental Impact Reports / Statements ; correspondence, memoranda,
research papers appended. Interviews with: Howard L. Cogswell (b. 1915),
retired professor, ornithologist; Janice Delfino (b. 1926), community
activist; John M. Thorpe (b. 1932), developer; Roberta G. Cooper (b. 1937),
mayor of Hayward; Robert C. Douglass (b. 1943), property manager, Leslie
Salt Division, Cargill; Steve Foreman (b. 1953), Karen G. Weissman (b.
1947), environmental consultants; Peter C. Sorensen (b. 1950), staff, U.S.
Fish and Wildlife Service; Carl G. Wilcox (b. 1950), staff, California
Department of Fish and Game. Unreviewed draft transcripts of interviews
with Carolyn Cole and Richard Murray are available for research in The
Bancroft Library.
Interviewed 1996-1998 by Malca Chall, Regional Oral History Office,
The Bancroft Library, University of California, Berkeley.
TABLE OF CONTENTS--THE BAUMBERG TRACT: FROM THE PROPOSED SHORLANDS
DEVELOPMENT TO THE WETLANDS RESTORATION (EDEN LANDING ECOLOGICAL RESERVE),
1982-1999
PREFACE by John Letey, Jr. i
INTRODUCTION by Malca Chall iv
INTERVIEW WITH HOWARD L. COGSWELL
College Professor, Ornithologist, Active Citizen
CONTENTS 1
INTERVIEW HISTORY 2
BIOGRAPHICAL INFORMATION 4
I A BRIEF DETAILED BACKGROUND ON THE HISTORY OF THE BAUMBERG
TRACT AND THE LESLIE (CARGILL) SALT COMPANY 5
Salt Production and the Leslie (Cargill) Salt Company 5
Wetlands and the Public Trust Doctrine 10
The Proposed Shorelands Development: Howard Cogswell's Interest
and Analysis 12
Defining a Wetland and Consequent Mitigation Requirements 16
Agencies Involved in the Complex Permitting Process 20
Baumberg Tract Restoration Plan the Result of Mitigation 23
II EDUCATION: PREPARATION FOR A CAREER IN ORNITHOLOGY 29
Early Interest in Birds 29
Whittier College, 1947-1948 33
UC Berkeley, 1948-1952; 1962 33
III THE ACADEMIC CAREER 36
Mills College: Assistant Professor, 1952-1964 36
National Science Foundation Fellowship: Pennsylvania State
University, 1963-1964 38
Site Studies with Starlings 40
California State University at Hayward, California, 1964-1980 43
Studying Garbage Dumps, Birds, and Airports: Howard Cogswell
Learns to Fly 45
Author, Water Birds of California 55
Early Studies of Water Birds in the Hayward/San Leandro Area 56
IV IN RETIREMENT: CONTINUING ACTIVITY AND CONCERN FOR THE ENVIRONMENT 59
John Thorpe's Mitigation Proposals for the Shorelands Project 59
Plans for the Baumberg Tract Restoration Project 61
Helping to Set Bay Area Regional Wetlands Goals 64
Analyzing Environmental Regulations for Environmental Protection 65
INTERVIEW WITH JOHN M. THORPE 74
The Shorelands Project: The Unattained Vision
CONTENTS 75
INTERVIEW HISTORY 77
BIOGRAPHICAL INFORMATION 80
I FAMILY BACKGROUND: THE COLORFUL LIVES OF JOHN THORPE'S
GRANDPARENTS 81
The Maternal Side: The Schwabs 81
The Paternal Side: The Thorpes 81
II EDUCATION: HAYWARD, MENLO PARK, STANFORD, BOSTON, AND OTHER
EXPERIENCES 89
Herman Mark and Albert Einstein 90
III ESTABLISHING A LAW PRACTICE IN HAYWARD 92
Winning Important Lawsuits 93
Workman's Compensation 93
The National Assessors' Bribery /Property Tax Scandal:
The California Class-Action Suit and Its Reward 93
Long-Term Interest in Property Development 96
From Whence the Special Thorpe Spirit? 97
IV THE SHORELANDS: ITS ORIGINS AS A SOLUTION TO TRAFFIC PROBLEMS 99
Working with the Leslie (Cargill) Salt Company 102
The Response of the City of Hayward 104
The Baumberg Tract: Marginal Open Space Value 105
V A BRIEF HISTORY OF THE BAUMBERG TRACT; SALT PRODUCTION;
AGRICULTURE; WETLANDS; REPUTED VALUE OF BAUMBERG TRACT TO
WILDLIFE 109
VI THORPE'S PLAN FOR THE SHORELANDS AND THE ULTIMATE
DEFEAT, 1982-1992 118
The Basic Plan 118
Problems with the Environmental Community 122
Plans for the Racetrack 12A
The City of Hayward: A Roadblock 127
Attempts to Overturn the Jeopardy Opinion of 1987 129
Meetings with Representatives of Environmental Agencies 131
Attempts to Solve the Predator Problem 133
Lack of Support from the City of Hayward: Thorpe Drops the
Shorelands Project, 1992 133
The Finances: The Limited Partnership, Bankruptcy, and
Subsequent Continuing Litigation 134
John Thorpe's Personal Loss: The Historic House, the Classic
Cars 139
Background on Interested Commercial Developers for Shorelands 141
More on the Racetrack 142
The Corps of Engineers 143
The U.S. Fish and Wildlife Service 145
The State Department of Fish and Game 146
The Bay Conservation and Development Commission 146
The East Bay Regional Park District 147
The Media 148
"The Wild Edge" TV Documentary on the Baumberg Tract 148
INTERVIEW WITH ROBERT C. DOUGLASS 151
The Cargill Company (Leslie Salt Division) and the Shorelands Project
CONTENTS 152
INTERVIEW HISTORY 153
BIOGRAPHICAL INFORMATION 155
Background: Education and Career with the Cargill Company 156
John Thorpe Takes an Option on Leslie (Cargill) Salt Property
to Build the Shorelands Project 158
Major Problems Concerning Mitigation 160
Environmental Agencies: Their Mission, Their Personnel, and
Their Effect on Local Control 163
Local Activists and the Environment 166
Cargill Accused of Reconstructing the Land 167
The City of Hayward and the Shorelands Project 168
The End of the Stretch for the Shorelands Project 169
Baumberg Tract Purchased by the California Wildlife
Conservation Board, 1996 170
INTERVIEW WITH STEVE FOREMAN
Principal Author, "Biological Assessment for the Proposed Shorelands
Project," 1987; Project Manager, Baumberg Tract Wetlands Restoration
Project
CONTENTS 175
INTERVIEW HISTORY 176
BIOGRAPHICAL INFORMATION 178
I BIOLOGICAL ASSESSMENT STUDIES FOR THE PROPOSED SHORELANDS
PROJECT 179
Background: Education and Career 179
Requirements for the Environmental Impact Reports/Statements 183
Interpreting the Endangered Species Act 188
Mitigation and Jeopardy 192
Trying to Achieve a Balance Between Habitat and Species Needs 196
Predation and the Fences 197
Further Research: Reconsidering Mitigation and Jeopardy 199
II THE BAUMBERG TRACT WETLANDS RESTORATION PROJECT 201
Acquisition by the California Wildlife Conservation Board 201
The Selection Process: RMI Wins the Bid; Steve Foreman
Project Manager 203
Restoration Project Staff 205
Many Factors Involved with Restoration 206
Other Restorations Projects Around the Bay 212
INTERVIEW WITH KAREN G. WEISSMAN 214
Final Biological Assessment and Mitigation Plan for the Shorelands
Project, 1988-1990
CONTENTS 215
INTERVIEW HISTORY 216
BIOGRAPHICAL INFORMATION 218
Karen Weissman's Background and the Origin of Thomas Reid
Associates 219
Establishing Contact with John Thorpe and the Shorelands
Project 220
Preparing for the Task Ahead 224
Overcoming the Hurdles: Mitigation Due to Loss of Wetlands Area 225
Planning and Working Toward a Successful Outcome 227
Habitat Mitigation Issues: The Snowy Plover, the Salt Marsh
Harvest Mouse, the Clapper Rail, the Least Tern 228
The Concern for the Future of Wetlands 230
Attempts to Control Predation of the Clapper Rails 232
The Second Draft Jeopardy Opinion Means Defeat for the
Shorelands Project 236
The Frustration of a Consultant Failing to Reach the Desired
Goal
The Current Status of the Baumberg Tract
Examining the Processes Required to Restart the Project 239
Critique of Government Environmental Regulations in General
and on the Shorelands Project in Particular 242
INTERVIEW WITH PETER C. SORENSEN 244
Author, Jeopardy Opinion on the Shorelands Project
CONTENTS 245
INTERVIEW HISTORY 246
BIOGRAPHICAL INFORMATION 248
Background: Education and Career with the U.S. Fish and
Wildlife Service 249
The Shorelands Project: Interagency and Other Contacts 250
Mitigation Concerns for Shorelands: Legal and Scientific
Considerations 253
Reviewing the Environmental Impact Report /Statement 254
What Constitutes Jeopardy of an Endangered Species? 255
Predation: Everyone's Concern 257
Response to Arguments Regarding Non-Jurisdiction on the
Baumberg Tract
Analyzing the Government's Role in Protecting the Environment 259
Jeopardy Opinions and the Process, 1987, 1990 261
Looking Back on the Shorelands Project and the Ramifications
for the Bay Area Environment 265
INTERVIEW WITH CARL G. WILCOX 269
The Baumberg Tract Wetlands Restoration Project
CONTENTS 270
INTERVIEW HISTORY 271
BIOGRAPHICAL INFORMATION 273
Background: Education and Career Path to the California State
Department of Fish and Game 274
Department of Fish and Game: Lead Manager for Review of the
Shorelands Project
The Shorelands Project: An Ill-Conceived Plan 277
Developers and Environmental Regulations 279
Development Plans for the Oliver Property 281
The Baumberg Tract Wetlands Restoration Project: Carl Wilcox,
Project Manager 282
Site Selection 283
Fixed Commitments for the Species' Habitats 284
Funding for Restoration and Long-term Management 287
Additional Constraints 288
The Public Comment 290
The San Francisco Bay Area Wetlands Goals Project 292
Historic Preservation and the Baumberg Tract 294
INTERVIEW WITH ROBERTA G. COOPER 297
The Hayward City Council and the Shorelands Project
CONTENTS 298
INTERVIEW HISTORY 299
BIOGRAPHICAL INFORMATION 300
Background: Education, Career and Route to Mayor of Hayward 301
The Shorelands Project 303
Early Considerations 304
Final Decisions of the City Council 307
The Ballot Measure HH and Land Use Plan on the Weber Tract and
Oliver Properties 308
The Role of the City Managers and the Shorelands Project 310
INTERVIEW WITH JANICE DELFINO 312
Activist for the Environment
CONTENTS 313
INTERVIEW HISTORY 314
BIOGRAPHICAL INFORMATION 316
I BACKGROUND 3 1 7
Education and Career in Nursing 317
Genesis of Activism for the Environment 319
II CONCENTRATION ON THE HAYWARD AREA SHORELINE 323
The Hayward Area Shoreline Planning Agency [HASPA] 323
John Thorpe and the Shorelands Project 324
The Public Trust Issue 329
The Eventual Purchase of the Baumberg Tract for the Wildlife
Restoration Project 330
Analyzing the Restoration Project 332
III ASSESSING THE CONSEQUENCES OF CITIZEN ACTIVISM 338
The Value of Vernal Pools 339
Opposition to "Re-creating" Creeks 340
Roberts Landing: The Toxic Soil Issue 342
Citizens for Alameda's Last Marshlands [CALM] 345
The Suit Against Leslie (Cargill) Salt Company 346
Save San Francisco Bay Association, The San Francisco Airport,
and Other Matters 348
TAPE GUIDE 353
MAPS
Map 1 355
Map 2 356
Map 3 357
Map 4 358
GLOSSARY 359
APPENDICES
A Pages Selected from the Biological Assessment and Mitigation
Reports of WESCO [Western Ecological Services Company] and TRA
[Thomas Reid Associates] for the Proposed Shorelands Project 362
B The Leslie Salt Division of the Cargill Company: Its History;
Current Legal, and San Francisco Airport Issues 370
C The Don Edwards San Francisco Bay National Wildlife Refuge;
Bair Island; The Hayward Shoreline Interpretive Center 377
D Proposition HH 381
INDEX 390
PREFACE
The Water Resources Center of the University of California
established a California Water Resources Oral History Series in 1965, to
be carried out by the oral history offices at the Los Angeles and
Berkeley campuses. The basic purpose of the program was to document
historical developments in California's water resources by means of tape
recorded interviews with men who have played a prominent role in this
field. The concern of those who drafted the program was that while the
published material on California water resources described engineering
and economic aspects of specific water projects, little dealt with
concepts, evolution of plans, and relationships between and among the
various interested federal, state, and local agencies.
To bridge this information gap, the Water Resources Center, during
successive direction of Professors Arthur F. Pillsbury, J. Herbert
Snyder, Henry Vaux, Jr., Don Erraan, and John Letey, Jr., has provided
funding in full or in part for interviews with individuals who have been
observers and participants in significant aspects of water resources
development .
Interviewees in the Berkeley series have been pioneers in western
water irrigation, in the planning and development of the Central Valley
and California State Water Projects, in the administration of the
Department of Water Resources, and in the pioneering work of the field of
sanitary engineering. Some have been active in the formation of the San
Francisco Bay Conservation and Development Commission; others have
developed seminal theories on soil erosion and soil science. But in all
cases, these individuals have been deeply concerned with water resources
in California.
Their oral histories provide unique background into the history of
water resources development and are valuable assets to students
interested in understanding the past and in developing theories for
future use of this essential, controversial, and threatened commodity-
water. Bound copies of these oral histories are preserved and made
available to the public by the Water Resources Center Archives and The
Bancroft Library located on the Berkeley campus.
John Letey, Jr., Director
Water Resources Center
March 2000
University of California, Riverside
ii
April 2000
The following Regional Oral History Office interviews of have been funded in
whole or in part by The Water Resources Center, University of California.
Banks, Harvey (b. 1910)
California Water Project. 1955-1961. 1967, 82 pp.
The Baumberg Tract: From the Proposed Shorelands Development to the Wetlands
Restoration (Eden Landing Ecological Reserve). 1982-1999. Interviews
with Howard L. Cogswell, John M. Thorpe, Robert C. Douglass, Steve
Foreman, Karen G. Weissman, Peter C. Sorensen, Carl G. Wilcox, Roberta
G. Cooper, and Janice Delfino. 2000, 393 pp.
Gianelli, William R. (b. 1919)
The California State Department of Water Resources. 1967-1973.
1985, 86 pp.
Gillespie, Chester G. (1884-1971)
Origins and Early Years of the Bureau of Sanitary Engineering.
1971, 39 pp.
Harding, Sidney T. (1883-1969)
A Life in Western Water Development. 1967, 524 pp.
Jenny, Hans (1899-1992)
Soil Scientist, Teacher, and Scholar. 1989, 364 pp.
Langelier, Wilfred F. (1886-1981)
Teaching, Research, and Consultation in Water Purification and Sewage
Treatment. University of California at Berkeley. 1916-1955.
1982, 81 pp.
Leedom, Sam R. (1896-1971)
California Water Development, 1930-1955. 1967, 83 pp.
Leopold, Luna B. (b. 1915)
Hydrology, Geomorphology , and Environmental Policy: U.S. Geological
Survey. 1950-1072. and UC Berkeley. 1972-1987. 1993, 309 pp.
Lowdermilk, Walter Clay (1888-1974)
Soil, Forest, and Water Conservation and Reclamation in China, Israel.
Africa, and The United States. 1969, 704 pp. (Two volumes)
McGaughey, Percy H. (1904-1975)
The Sanitary Engineering Research Laboratory; Administration. Research,
and Consultation, 1950-1972. 1974, 259 pp.
iii
Robie, Ronald B. (b. 1937)
The California State Department of Water Resources. 1975-1983.
1989, 97 pp.
The San Francisco Bay Conservation and Development Commission. 1964-1973.
Interviews with Joseph E. Bodovitz, Melvin Lane, and E. Clement Shute.
1986, 98 pp.
The Central Valley Project Improvement Act Oral History Series
Beard, Daniel P. (b. 1943)
Passage of the Central Valley Project Improvement Act. 1991-1992: The
Role of George Miller. 1996, 67 pp.
Boronkay, Carl (b. 1929) and Timothy H. Quinn (b. 1951)
The Passage of the Central Valley Project Improvement Act. 1991-1992:
The Metropolitan Water District Perspective. 1999, 152 pp.
Golb, Richard K. (b. 1962)
The Passage of the Central Valley Project Improvement Act, 1991-1992:
The Role of John Seymour. 1997, 136 pp.
Graff, Thomas J. (b. 1944) and David R. Yardas (b. 1956)
The Passage of the Central Valley Project Improvement Act, 1991-1992:
Environmental Defense Fund Perspective. 1996, 133 pp.
Nelson, Barry (b. 1959)
The Passage of the Central Valley Prelect Improvement Act. 1991-1992:
Executive Director, Save San Francisco Bay Assocation. 1994, 88 pp.
Peltier, Jason (b. 1955)
The Passage of the Central Valley Project Improvement Act. 1991-1992:
Manager, Central Valley Project Water Association. 1994, 84 pp.
Somach, Stuart (b. 1948)
The Passage of the Central Valley Project Improvement Act. 1991-1992:
The Central Valley Project Water Association Perspective. 1999, 99 pp,
For other California water-related interviews see California Water Resources
list.
iv
INTRODUCTION by Malca Chall
BACKGOUND OF THE ORAL HISTORY PROJECT ON THE BAUMBERG TRACT
The status of wetlands in the San Francisco Bay Area, became, in
the mid 1960s, a growing concern among persons and groups intent on
"Saving the Bay", and, by inference, adjoining wetlands. This concern
was spawned by the increasing encroachment into Bay waters of major
urban business, housing, sea and airport development, for which there
were seemingly no controls. By the end of the 1970s, a spate of state
and federal agencies, environmental laws, and regulations restrained
development into wetlands: the San Francisco Bay Conservation and
Development Commission, the California Environmental Quality Act, the
National Environmental Policy Act, the Environmental Protection Act, the
Clean Water Act, the Endangered Species Act. In addition, research
proved the value of wetlands for maintaining viable ecosystems. By the
1990s activity on behalf of wetlands, endangered species, and habitats
had assumed greater urgency for environmentalists both within and
outside government agencies. While all of this activity certainly
slowed down unrestrained development, saving species and wetlands
remains controversial and is a continuing subject of debate. Today, it
is claimed that 92 percent of wetlands in the San Francisco Bay-Delta
have disappeared—that only 45,000 acres remain.
Given this background, the Baumberg Tract became an ideal choice
for an oral history project. Historically, a tidally-inf luenced salt
marsh comprising 835 acres along the Hayward shoreline, it was the
object of contention between development and regulatory forces. With
its wetlands focus, the Baumberg Tract fit the ongoing interest of the
Regional Oral History Office in California water policy issues.
Furthermore, this study provided an excellent example, in one limited
area, of the impact of the federal Clean Water Act and the Endangered
Species Act on developers, professional environmentalists, and concerned
citizens alike when a builder applies for a permit to place a major
development on a wetlands area.
To assess a project's potential harm or jeopardy to endangered
species, the developer must pay to have extensive data compiled
detailing any potential jeopardy and indicating how such harm could be
mitigated. The compilations, written by professional environmental
scientists /consultants, are portions of the Environmental Impact
Statement (EIS), in compliance with the requirements of the National
Environmental Policy Act (NEPA) , and the Environmental Impact Report
(EIR) , in compliance with the California Environmental Quality Act
(CEQA) . The final determination regarding jeopardy to endangered
species is the responsibility of the staffs of the U.S. Fish and
Wildlife Service and the U.S. Army Corps of Engineers. This oral history
points to gray areas in defining the regulations.
Many professional environmentalists began their careers in this
new environmental management field in colleges during the 1960s and
1970s, where they majored in ecology and environmental science, after
which they honed their skills on the staffs of state or federal
agencies. This oral history offers insight into the backgrounds of the
men and women in government who influence the decisions on permit
applications, and those in private employment who devise studies and
advise on methods by which development might comply with regulatory
standards. The consultants, an important part of the regulatory
process, whether on government staffs or employed by small to large
companies, are deeply committed to the environment and to implementation
of the regulations. The oral history suggests that there may be a
difference in the outcome of the permit process depending on who is
assigned to a project.
Finally, active citizens engage in all stages of the process,
particularly the public hearing phase following the completion of the
draft EIS/EIR. The oral history points up the vitality and influence of
the citizen activists on the outcome of a proposed development and,
conversely, the reasons why developers consider the environmental
regulations onerous and why they are constantly under attack in the
Congress, state legislatures, and the courts.
CHRONOLOGY OF THE BAUMBERG TRACT
The Baumberg Tract had been, for more than a century, a site for
salt production. In 1971, the Leslie Salt Company (now the Cargill
Corporation), stopped production there, but continued to use the
shoreline for its crystallizer ponds. The company offered the tract,
for a price, to the East Bay Regional Park District (and others) for
recreation purposes. None accepted the offer.
From 1982-1993, John Thorpe, a Hayward attorney, proposed the
controversial Shorelands racetrack/business park development for the
site. Mr. Thorpe applied to the city of Hayward for a permit to develop
736 acres on which to build his project. By requesting to place fill
material on the site, he triggered the required permission under Section
10 of the Rivers and Harbors Act, and Section 404 of the Clean Water
Act. In addition, his project had to insure, under Section 7 of the
Endangered Species Act, that it would not threaten any federally listed
or threatened endangered species — specif ically the salt marsh harvest
mouse, the least tern, the clapper rail, and the snowy plover. In 1993,
Mr. Thorpe's application was denied a second time. Like the first, in
1987, it was rejected by the Fish and Wildlife Service on the basis that
vi
tlie project would jeopardize the species and their habitats, and did not
provide measures to compensate for these adverse impacts.
In 1996, it was purchased by the California Wildlife Conservation
Board for conversion as a permanent open space wildlife site—renamed
the Eden Landing Ecological Reserve — to serve as mitigation for adverse
developments in nearby communities. Following several years of study
and the public comment period on the draft EIS/EIR, the California
Department of Fish and Game expects to turn the first shovel of soil on
the restoration project by July 2000.
DEVELOPING THE PROJECT: RESEARCH AND INTERVIEWS
The goal of the oral history project was to "flesh out" the known
facts of the Baumberg history (1970 to 1999) by linking them with the
stories of persons who knew about its past history and current status.
When I began the Baumberg Oral History Project in 1996, with a
grant from the Centers for Water and Wildland Resources of the
University of California, I knew only that the Baumberg Tract was
considered a wetlands on the Hayward shoreline; that it had been the
scene of a controversial battle over the Shorelands development project;
that it was currently the site of a restoration project. Because I was
a member of the Hayward area chapter of the Audubon Society I knew
Howard Cogswell, Janice Delfino, and others actively concerned with the
local environment. I knew John Thorpe, an attorney who had cracked an
assessors' scandal during the sixties, a developer of homes in Castro
Valley, and a local benefactor who generously allowed charitable groups
to use the "carriage house" of his historic landmark house/office
building for fundraising events. I had been aware of his plans for
Shorelands but had not followed the story to its conclusion. Although I
knew about various federal and state environmental policy acts, I did
not understand how they were implemented. By interviewing eleven
persons who had held key roles in the Baumberg story, I gradually pieced
together a history (by no means definitive) of the Baumberg Tract.
October 6, 1996; Howard Cogswell: I began my research by
interviewing retired Hayward State University biology and ornithology
Professor Howard Cogswell. He gave me the benefit of his extensive
knowledge of the Baumberg Tract, including background on the methods of
salt production, essential historic and current legal issues, and
information about specific endangered birds and their habitats. He
discussed the potential impact of the Shorelands development on the
tract, and explained the reasons why John Thorpe's project had failed to
pass jeopardy. He broadened the scope of his story to consider the city
of Hayward 's upcoming interest in housing on adjoining Baumberg property
(Proposition HH) , and plans of the San Francisco Airport to build new
runways into the baylands. Finally, he permitted me to look through his
Vll
collection of papers on Shorelands and select those I wanted to study:
newspapers clippings from 1983-1987; correspondence between himself and
John Thorpe, and between Mr. Thorpe and his backers; and various
biological, mitigation, and other studies related to the EIS/EIR.
May 10, 1997; John Thorpe: The information provided by Dr.
Cogswell led me to my interview with John Thorpe who had spent ten years
and millions of dollars seeking permission to build Shorelands. He
talked eagerly about his dream for Shorelands, providing additional
facts about his attempts to pass the environmental hurdles, especially
to satisfy mitigation requirements posed by the Fish and Wildlife
Service. He related his encounters with local environmental activists
and those on the staffs of regulatory agencies. In fact he thought he
had approval to develop Shorelands but his own financial difficulties
made it impossible for him to continue.
(July 10, 1997; Baumberg Tract Field Trip; Digression: When I
called Janice Delfino, local environmental activist, to find out what
she knew about the Baumberg Tract, she informed me that within the week,
the Baumberg restoration team was leading a field trip on the tract for
those with specific interests in the restoration. She suggested that I
attend. I did so, along with a large group of persons representing
various public and private agencies. Here I met restoration managers,
Steve Foreman and Carl Wilcox, each of whom I later interviewed. That
evening I attended the first meeting of the Technical Advisory
Committee, at which 1 saw Howard Cogswell, Robert Douglass, property
manager of the Leslie Salt Division of the Cargill Company, Janice and
Frank Delfino, and others with specific technical concerns about the
plans for the restoration project. I attended a second inter-agency
meeting, November 20, 1997.)
November 4, 1997; Karen Weissman: Karen Weissman, partner in the
environmental consulting firm, Thomas Reid Associates, candidly
discussed how she had attempted to work with John Thorpe and other
consultants to overcome jeopardy. She criticized the rationale of the
Fish and Wildlife Service and their claims that Shorelands would
jeopardize endangered species, at the same time making clear the serious
problems inherent in the project. Ms. Weissman enlarged my
understanding of environmental laws and the role of agency personnel
trying to enforce them. She gave me copies of her "Revised Biological
Report", correspondence, and memoranda related to her work on the
Shorelands Project. She provided questions to use with other
interviewees. More recently she agreed to review and revise my draft of
the glossary.
February 24, 1998; Robert C. Douglass: Robert Douglass is property
manager for the Leslie Salt Division of the Cargill Company. Leslie
owned the Baumberg Tract and had given John Thorpe an option on which to
build Shorelands. Mr. Douglass discussed his relationship with John
viii
Thorpe and his interest in seeing him succeed. He criticized the staff
of the regulatory agencies and the city of Hayward for their treatment
of Mr. Thorpe. He questioned the need for certain environmental
regulations and the close relationships between some agency staffs and
local environmentalists. His concerns as a businessman and an official
of the Leslie Salt Division, a major local industry, still harvesting
salt in the Bay Area, provided useful questions for other interviewees.
March 11, 1998; Steve Foreman: Steve Foreman, author of the
"Biological Assessment" for the EIS/EIR on Shorelands in 1987 and
currently manager of the Baumberg Tract Restoration Project, provided
background spanning the years encompassed by the oral history project.
He discussed the methods by which he and others studied the Shorelands
Project. As project manager of the restoration project, he explained
what prompted the decision to establish it on the Baumberg site rather
than Bair Island near Redwood City. He talked about the challenges
inherent in refashioning Baumberg into a wildlife preserve, answering
questions which had come to me during my attendance at the technical
committee meetings.
April 21, 1998; Carolyn Cole: Carolyn Cole, responsible for
compiling the Shorelands EIS/EIR, offered a fascinating glimpse into the
world of young women graduate students in the field of environmental
science who moved easily from graduate school to business. She
explained how she and her business partner, Caroline Mills, divided
their work, and the process by which she selected the authors for the
various EIS/EIR studies. She then loaned me her only copy. I regret
that Ms. Cole, by declining to review her edited transcript, made it
unavailable as a chapter in this volume. It will, however, be available
for research in The Bancroft Library.
June 1, 1998; Richard Murray: Landscape architect Richard Murray
was hired by John Thorpe to develop mitigation plans for Shorelands. He
had come to John Thorpe's attention because he had developed a snowy
plover habitat in Parajo Dunes in California. His detailed "Shorelands
Biological Mitigation Master Plan—revised 12/12/87" was in Howard
Cogswell's collected papers. I talked by phone with Mr. Murray who
explained the difficulties in trying to create an acceptable mitigation
plan for Shorelands. Because he did not review his edited transcript,
regretably, it cannot be included in the volume. It will, however, be
deposited in The Bancroft Library for research.
June 10, 1998; Peter Sorensen: Peter Sorensen, on the staff of the
regional office of the U.S. Fish and Wildlife Service, was author of
both the 1987 and 1992 jeopardy opinions which spelled failure for the
Shorelands Project. Speaking to me by phone from his present post in
Carlsbad, California, he enunciated clearly his reasons for considering
that Shorelands would jeopardize several endangered species and their
habitats. He responded to criticisms leveled against his conclusions,
ix
and his agency's treatment of John Thorpe which had been expressed by
other interviewees.
July 20, 1998; Carl Wilcox: Carl Wilcox, environmental services
supervisor with the California Department of Fish and Game, is currently
manager of, and responsible for, the Baumberg Tract Restoration
Project. We talked by phone. Although he had worked on the Baumberg
Tract during the Shorelands Project, and expressed his opinions about
that development, we concentrated on his plans for the restoration. He
expanded upon the information supplied by Steve Foreman, indicating what
problems prevented the project from moving ahead as rapidly as
anticipated. Recently, by phone, he told me that the project had had
other problems causing delays, but that they intended to put down the
first shovel in July 2000. He took time to help with definitions for
the glossary.
July 21, 1998; Janice Delfino: Janice and Frank Delfino have been
active on the local environmental scene for some thirty years. Several
interviewees had spoken about Janice. She agreed to be interviewed.
She discussed Shorelands and the current restoration plans. But she
broadened the scope of the interview to talk about the Delfinos1 other
activities on behalf of the local wetlands, about protecting streams
from encroachment of housing and golf courses, about her legal suit
against Leslie Salt, and about her work with the Committee to Complete
the Refuge. She provided maps, newspaper clippings, memoranda,
correspondence, and bulletins to add to the collection of material on
the Baumberg Tract and other local wetland issues. She remained
available from time to time to assist with maps and other queries.
October 14, 1998; Roberta Cooper: Roberta Cooper, mayor of
Hayward, had been a member of the city council during the debate over
the Shorelands Project. Because of the need to reconfigure the streets
leading into Shorelands, the city had a stake in the project and was the
lead agency involved in the permitting process. At different times
during the Shorelands decade, staff and council members took differing
positions on the project. Much of this information was available in the
press. Along with her recollections of the relationships between the
city and the Shorelands Project, Mayor Cooper responded to criticisms
that the city had not dealt fairly with John Thorpe. Before completing
her brief interview, she discussed Hayward 's current plans for housing
on land adjoining the Baumberg Tract—Proposition HH.
COMPLETING THE PROJECT
Once the interviews were transcribed, edited, and reviewed by the
interviewees, nine interviews were compiled into one volume, linking
them chronologically to the Baumberg history—not necessarily to the
dates of the interviews.
In sun, these interviews, while highlighting the Baumberg Tract,
point out implications beyond the San Francisco Bay Area: the complex
interaction between the conflicting goals of urban development and the
conservation of wetlands and endangered species and habitats.
ADDITIONAL AIDS FOR RESEARCH
Because many interviewees referred to specific areas of the
Baumberg Tract, numbered maps have been placed, for easy reference,
after the final pages of the interviews. The glossary contains
definitions of unfamiliar terms. The appendix includes information on
other topics important to the Baumberg history. The tables of contents
and the index should assist readers to locate items of specific
interest .
ACKNOWLEDGMENTS
I wish to thank those who helped produce this oral history: The
Water Resources Center for continuing interest in our water-related
projects and the funds to develop them; the interviewees for their
commitment of time and the gifts to The Bancroft Library of papers which
enriched the history; Jill Singleton, public affairs officer for the
Leslie Salt Division, for material on the history of salt production in
the Bay Area; Sara Diamond for her much appreciated editorial
assistance .
Malca Chall
Senior Editor
Regional Oral History Office
The Bancroft Library
University of California, Berkeley
March 20, 2000
Regional Oral History Office University of California
The Bancroft Library Berkeley, California
California Water Resources Oral History Series
THE BAUMBERG TRACT: FROM THE PROPOSED SHORELANDS DEVELOPMENT
TO THE WETLANDS RESTORATION (EDEN LANDING ECOLOGICAL RESERVE), 1982-1999
Howard L. Cogswell
COLLEGE PROFESSOR, ORNITHOLOGIST, ACTIVE CITIZEN
An Interview conducted by
Malca Chall
in 1996 and 1998
Copyright C 2000 by The Regents of the University of California
Howard L. Cogswell
TABLE OF CONTENTS--Howard L. Cogswell
COLLEGE PROFESSOR, ORNITHOLOGIST, ACTIVE CITIZEN
INTERVIEW HISTORY 2
BIOGRAPHICAL INFORMATION A
I A BRIEF DETAILED BACKGROUND ON THE HISTORY OF THE BAUMBERG TRACT AND
THE LESLIE (CARGILL) SALT COMPANY 5
Salt Production and the Leslie (Cargill) Salt Company 5
Wetlands and the Public Trust Doctrine 10
The Proposed Shorelands Development: Howard Cogswell's Interest
and Analysis 12
Defining a Wetland and Consequent Mitigation Requirements 16
Agencies Involved in the Complex Permitting Process 20
Baumberg Tract Restoration Plan the Result of Mitigation 23
II EDUCATION: PREPARATION FOR A CAREER IN ORNITHOLOGY 29
Early Interest in Birds 29
Whittier College, 1947-1948 33
UC Berkeley, 1948-1952; 1962 33
III THE ACADEMIC CAREER 36
Mills College: Assistant Professor, 1952-1964 36
National Science Foundation Fellowship: Pennsylvania State
University, 1963-1964 38
Site Studies with Starlings 40
California State University at Hayward, California, 1964-1980 43
Studying Garbage Dumps, Birds, and Airports: Howard Cogswell
Learns to Fly 45
Author, Water Birds of California 55
Early Studies of Water Birds in the Hayward/San Leandro Area 56
IV IN RETIREMENT: CONTINUING ACTIVITY AND CONCERN FOR THE ENVIRONMENT 59
John Thorpe's Mitigation Proposals for the Shorelands Project 59
Plans for the Baumberg Tract Restoration Project 61
Helping to Set Bay Area Regional Wetlands Goals 64
Analyzing Environmental Regulations for Environmental Protection 65
INTERVIEW HISTORY- -Howard Cogswell
I met Howard Cogswell some thirty years ago when he led a field
trip for members of the recently organized Hayward area chapter of the
Audubon Society. It was a fascinating introduction to birds, and
through the years, whenever possible, I have opted to tag along on a
Cogswell-led field trip. At the time of my first field trip, Dr.
Cogswell was a professor of ornithology, vertebrate zoology and ecology
on the faculty of California State University at Hayward. I knew that
he flew his own plane, that he was considered an authority on western
birds, and was the author of Water Birds of California. One of his
projects had been studying the habits of birds on garbage dumps in the
San Francisco Bay Area. I assumed, therefore that he would have some
knowledge of the Baumberg Tract and its history. He agreed to talk to
me; we made a date for an evening meeting on September 6, 1996, in his
home, not far from mine in the Hayward hills. Initially, I did not
intend to record this background briefing for the oral history project,
but I took my tape recorder to ensure accuracy.
At the time I knew virtually nothing about the Baumberg Tract;
Howard Cogswell was an overflowing fount of information. He produced
historic and current maps, pointing out sloughs and streams, revisions
to topography, public trust issues, changes in salt harvesting methods
in the Bay Area, changes in property ownership, and much more. He
discussed his reactions to John Thorpe's Shorelands Project, and those
of some of his Audubon colleagues. That preliminary recorded
"background" meeting was so full of essential information on the history
of the Baumberg Tract up to its current designation as a wildlife
preserve that it necessarily became Chapter I of this volume.
During that first meeting I also learned that Dr. Cogswell had a
box full of material he had collected on Shorelands. I returned a few
weeks later; spent a few hours looking through his collection, gradually
selecting items I wanted to take with me to study. I listed them and
signed a "mini-contract" to ensure their safe return. It is my hope
that Dr. Cogswell will eventually deposit this collection in The
Bancroft Library. Some of the material has been inserted in this and
other chapters throughout this volume, or is included in the appendices.
After reading the transcription of this interview, I realized that Dr.
Cogswell would have to identify on small maps those locations he had
specifically pointed to. The locations were an integral part of his
story, but would not be understood without visual documentation. Since
Howard Cogswell's account would come first, the geography of the various
private property boundaries in the area had to be clear. We reviewed
these maps several times to ensure accuracy. They follow the final
chapter.
I gave Dr. Cogswell a lightly edited transcript and asked him to
review it carefully to be sure it was accurate, since at the time of his
first interview neither he nor I thought it would be a part of the
volume. He did this with the attention to detail one might expect of a
scientist.
Ultimately, I realized that Dr. Cogswell's story would not be
complete without some information about his personal background. How
had he arrived at his knowledge of birds, wetlands, and the history of
Baumberg? He agreed to a second interview. We met on July 12, 1998.
The lightly edited transcript of this second interview required only a
few minor revisions, dealing mainly with spelling of names and the
insertion of important dates.
Dr. Cogswell's home, which he shares with Betsy, his wife of sixty
years, includes an office which has been converted from the former
dining room. It houses boxes, books, and a computer on which he keeps
detailed information on birds of the area, the Audubon chapter's
membership list, and other data, including his family tree. Windows
look out into the trees, shrubs and all types of feeders designed to
attract different species of birds. As we sat at the table in the
breakfast nook, we tried to keep our attention focused on the interview,
but sometimes our attention strayed to the birds at the feeders.
These interviews set the framework for the ongoing chapters on the
history of the Baumberg Tract. My assumption that Dr. Cogswell would
know something about it was, happily, a correct one.
The Regional Oral History Office was established in 1954 to
augment through tape-recorded memoirs the Library's materials on the
history of California and the West. Copies of all interviews are
available for research use in The Bancroft Library and in the UCLA
Department of Special Collections. The office is under the direction of
Willa K. Baum, Division Head, and the administrative direction of
Charles B. Faulhaber, James D. Hart Director of The Bancroft Library,
University of California, Berkeley.
Malca Chall
Interviewer /Editor
January 2000
Regional Oral History Office
University of California, Berkeley
Regional Oral History Office
Room 486 The Bancroft Library
University of California
Berkeley, California 9A720
BIOGRAPHICAL INFORMATION
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INTERVIEW WITH HOWARD L. COGSWELL
COLLEGE PROFESSOR, ORNITHOLOGIST, ACTIVE CITIZEN
I A BRIEF DETAILED BACKGROUND ON THE HISTORY OF THE BAUMBERG
TRACT AND THE LESLIE (CARGILL) SALT COMPANY
[Interview 1: September 6, 1996] ##'
Salt Production and the Leslie (Cargill) Salt Company
Chall: Whom could I contact in Cargill who would know something about
the history of the Baumberg Tract?
Cogswell: Robert C. Douglass. He's a property manager or something like
that, for their non-operating things. He also has, I believe,
under his jurisdiction the environmental team for Cargill Salt.
So they have finally come around to recognizing that they do
have to meet environmental laws. [chuckles] Jill Singleton is
their actual environmentalist, but she's under his supervision
I believe. But he's called a manager. He's better than a
supervisor, but he himself reports, of course, to the overall
manager of the Cargill Salt Division.2
Chall: Where are they located?
Cogswell: Newark. The salt division is headquartered in Newark. Cargill
is headquartered in Minnesota. Leslie Salt became the Salt
Division of Cargill Incorporated.
Chall: Before Leslie, according to newspaper accounts, the Baumberg
Tract had been for a hundred years or so, really diked for
salt. Maybe not for the last few years, but a hundred years
'## This symbol indicates that a tape or tape segment has begun or
ended. A guide to the tapes follows the transcript.
2In 1999 the corporate listing was: Jill Singleton, Public Affairs
Manager; Catherine Gump, General Manager; Robert C. Douglass, Property
Manager.
ago, other salt companies—not Leslie—began to put the dikes
in there and develop salt. [See Appendix B]
Cogswell: Over a hundred years ago. There were salt ponds at Alvarado,
which is further south, and salt ponds at Baumberg in the
1890s. They had already been there for some time and there are
some very ancient, historic maps that show some of those old,
small salt companies, numerous small salt companies. Janice
and Frank Delfino of Castro Valley have been interested in this
for a long while, have gotten some of these old maps, and have
provided some copies to me. So I have some of those if I can
dig them out.
Chall: Janice might be somebody to talk to, you think?
Cogswell: I don't know what she knows. She's done some research simply
on what there is available in the way of maps and things of
that sort. Almost probably all of the Baumberg Tract proper,
the 838 acres or so, was originally salt marsh to begin with
under natural condition.
Chall: Years ago, Oliver Salt played a role in the area here. Was
Oliver Salt, or any part of their holdings, ever taken over by
Leslie?
Cogswell: Well, I don't know the complete history of the property
changes. Oliver's name appears on some of those old maps which
Janice uncovered for part of the area in general along Mt . Eden
Creek, which borders the Baumberg Tract. Whether or not Oliver
had any property within what is now state property, the
Baumberg Tract proper, I'm not sure.3 They certainly had salt
ponds down there. [See Map 1]
I understand Leslie Salt became incorporated as a separate
company in 1933. They started in Newark, what is right now by
Jarvis Avenue; the Coyote Tract was their Plant Number One
site. They started by buying up a number of these small salt
companies, and then they progressed rather rapidly, buying more
and more and more. And at what point Oliver sold out or
whoever may have sold out in the Baumberg area, I don't know.
3State property refers to the fact that the state California Wildlife
Conservation Board [CWCB] purchased the Baumberg Tract in 1996 to develop
as a wildlife refuge. The 129 acres of more recent Oliver property to the
east are not within the CWCB, nor the 150+ acres of "Oliver Brothers" salt
ponds north of Route 92, recently acquired by HARD [Hayward Area Recreation
and Park District]. --H.C. Letters B on the map refer to Baumberg.
When I came to Hayward in 1964--on my first trip in there
[Baumberg]--it was a separate operating unit of the Leslie Salt
Company then, with a plant and crystallizers--which are part of
this purchase now. The old crystallizers, a major part, were
still being used to harvest the salt from all the ponds north
of the New Alameda Creek, until about 1972. All the water from
the evaporators north of Coyote Hills, in other words, was
funneled into this Baumberg plant.
Over on the west side of the Bay, Leslie Salt had a Redwood
City plant still operating then, which they still have now but
there's a story to that, too.
Chall: Yes.
Cogswell: Previous to that, they'd had a plant down in Alviso, which was
the first one to have been closed and the water transported
somewhere else. I don't know just when, but it was closed
before I came to Hayward, so certainly before the 1964 period.
But in 1972, both the Baumberg plant and the Redwood City plant
were closed.
Chall: I see. Both of them.
Cogswell: The company decided to funnel all the water into the Newark
plant, their headquarters. They changed the structure. They
didn't really build any new dikes to speak of; they simply
changed the water flow sequences — it 's all flat anyway--and
they put new pumps in certain strategic locations so that the
water moved in different directions through the ponds.
For example, pond number one, which is what you face when
you go up to the National Wildlife Refuge headquarters and look
out toward the Bay, is Pond 1.* That was their intake pond
before then; it's now their final pond before the
crystallizers. So they changed the whole sequence of movement
of water. That's when they closed these outlying plants. The
actual crystallizer ponds, the final stage ponds, and what they
call wash ponds and pickle ponds associated with them, were
taken out of use. They're not using them in the Baumberg area.
They have not used them since '72. That's when they placed
that property on the market--! think it was about '73--that
they offered the Baumberg Tract to, among other agencies, the
East Bay Regional Park District.
4The San Francisco Bay National Wildlife Refuge, located near Highway
84 in Fremont, is now officially known as the Don Edwards San Francisco Bay
National Wildlife Refuge.
Chall:
Cogswell;
Chall:
Cogswell:
Chall:
Cogswell:
Chall:
Cogswell:
Chall:
Cogswell:
Chall:
Cogswell:
Oh, they did?
They offered it for $5,000 an acre. And I happened to be on
the board of directors of East Bay Regional parks then, and I
remember that situation.
And how many acres--?
It's 838 acres. The state is paying more than that.5 Because
between '72 and '96, the value of land has gone up.
So they were offering it to you for--
Five thousand dollars an acre.
What did the East Bay Regional Park District decide to do?
It wasn't worthwhile. We decided that it was not worth that
much. They had no way of seeing that there were park values in
it beyond what they were already acquiring along the Bay north
of Route 92. Over a million dollars was spent for the Hayward
Regional Shoreline as it exists now, and it would have been
another $10 million or so. I agreed with the rest of the board
at the time that there was no way that we could spend all of
our money available for land acquisitions in one location, you
see, when you have a two-county system of parks to be fair to.
So then where did they go?
Leslie Salt didn't get a buyer. No other public agency wanted
it at $5,000 an acre either, apparently.
When did John Thorpe get into it?
other developers, besides John?
Were there any other people,
I don't know, because Leslie Salt wouldn't come out with public
information. I happened to know about this offer because I was
on the East Bay Regional Park board. And they apparently
offered it at similar price to all other public agencies. They
claimed they wanted to give park agencies the preference to it,
but I'm sure it was offered to any other public agency that
would come up with the money.
And at that time, I didn't think it was worth $5,000 an
acre myself. You know, it's obviously mostly wetland; you
5The California Wildlife Conservation Board paid $12.5 million for the
property; about $15,000 an acre.
Chall:
Cogswell;
Chall:
Cogswell
can't really develop on it unless you can get a permit from the
proper agencies, and that was already in force. It wasn't
quite in force in '72, but it came in force in '75--the Clean
Water Act. The wetlands provision—all these protections for
the wetlands — comes as a result of the passage of the Clean
Water Act which was indeed passed by Congress in 1972, but then
was subject to immediate litigation and didn't get enforced
until about 1975. So where along the line John Thorpe's
corporation came in- -I don't know.
But you have that in your collection of papers maybe?
Well, I don't know that the date is there. I have just
documents that came after he was underway. 'When Leslie Salt
first gave him an option I can't tell you. But they did option
the entire 838 acres to him, or they optioned most of it, and
they added the gun club. I don't know whether you know the
property subdivisions or not [moves to get a map]. There's a
former gun club section.
No. I don't know much about the land yet. You are my first
source.
I'll get a map here I hope in a minute. [Presents map, and
points out areas under discussion.] Here is a blow up of this
particular section of this original Nichols and Wright map,
which was done from the earliest hydrographic charts ever done.
They're mostly 1848 to 1870 at the latest. [See Map 2] In the
Baumberg Tract, you can see there are a lot of creeks. There
is the San Mateo Bridge in its present conformation [circled
large A on Map 2]. Dumbarton Bridge down here [D] . The New
Alameda Creek comes out there [N] , which is along what used to
be just an overflow channel of Alameda Creek.
The original main Alameda Creek swung in through here [0] ,
and a couple of what I call "distributaries." Under flood
conditions or winter storm conditions, it would overflow in the
marsh and run out these various other channels. Mt. Eden Creek
[M] is one of those. Sometimes during its original, pre-
managed history, Alameda Creek probably flowed out via Mt. Eden
Creek Channel; other times, it flowed out down here [1 1/2
miles to south, at 0). Other times it flowed out by Plunnner
Slough down here, and through Coyote Hills Slough, most of
which became the new leveed channel in the early 1970s. Well,
now it's all channeled so it all goes out down here. [Through
this leveed channel to the Bay at N.]
10
Wetlands and the Public Trust Doctrine
Chall: Now why does the state own- -did you say the state owns part of
the Baumberg Tract?
Cogswell: There's a long, long story about property ownerships. This is
the most complex set of property ownerships under original
title anywhere in the San Francisco Bay region. It was not
settled with the state from the standpoint of che public trust
in the first round of negotiations which did settle title
disputes around most of the South Bay in the 1960s.
There are several kinds of property involved. Different
kinds of bay lands or submerged lands. I think the technical
term for one type is submerged lands. These are always state
property; they're never private. Second, there are tidelands
which may be purchased by people, but the title is subject to
the public trust for the rights to navigation and "fisheries,"
which has been interpreted by the courts as including all
wildlife oriented uses. And, third, there are swamp and
overflow lands, which are also wetlands depending on how long
they are wet. The original title was set up to take care of
those properties which seasonally would flood and other times
would not. They might be farmed in between times and so on.
So, on such swamp and overflow land there's no public trust
involved.
Theoretically, the submerged lands are out here in the
west, in the Bay proper; the tidelands are in this zone between
high and low tides, including into the marshes that are up to
the ordinary high water mark in the marshes--not the highest
high tides, but up to the ordinary one [broad zone of Map 2
showing many marsh channels]. The lawyers will argue about
what is ordinary. And then the swamp and overflow lands are
those which only get flooded under extreme conditions. Well,
if the designation of properties was proper, you would have a
succession from submerged lands to tidelands to swamp and
overflow lands as you moved landward from the Bay. But that
isn't the way the property was, in fact, bounded when the state
sold it.
In the 1860s and 1870s there was so much graft in the state
giving these titles to people—and they actually essentially
gave them away for such a pittance, a matter of a few cents an
acre sometimes — there is a whole hodgepodge. I can get another
map to show you if you wish.
Chall: Not today!
11
Cogswell: A whole checkerboard, a real checkerboard arrangement. So the
state could claim wherever the original title said it was
tidelands, they could claim an interest. Where the original
title said it was swamp and overflow lands, they could not.
Well, some of those swamp and overflow lands are located out
here [in the outer marsh zone or even in the Bay], and others
are way in here [along the inner side of the original marshes],
where they should be. There was just a checkerboard, because
it was all done from Sacramento without anybody ever coming out
to look at the place.
Chall: Just calling it-
Cogswell: Just designated it this and selling it.
The state settled some time in the early 1980s, late
seventies perhaps. It was around 1980, 1982, that the state
and Leslie Salt finally came to an agreement on all the
properties in Hayward except some parcels out on the Bay front
where there are still arguments. [See Map 3 and Map 4]
Chall: So then Leslie Salt-
Cogswell: So Leslie Salt did acquire full and free title to most parcels
in this entire Baumberg area and gave up their claim to the bed
of the tidal part of Mt . Eden Creek [M2 on Maps 1 and 3]. At
one point, they had diked off Mt. Eden Creek out here [Ml on
Maps 1 and 3, 1/3 mile from Bay]. That partial dike is still
there. But they had to break through it again because it was
illegal for them to dike it. So Mt. Eden Creek is a tidal
channel again, 2 1/4 miles long up to this point [just east of
Eden Landing Road on M2, Maps 1 and 3], except it is such a
restricted channel and not much water comes all the way up
there any more. But from near Eden Landing Road on the east
and south, the State gave up all title to the old channel and I
guess, all title there to the meandering original channel
farther south called North Creek [M3 on maps 1 and 3].
This is all part of the salt pond system now, up to that
point. The one pump, this one pump [at east end of evaporators
12, 13, & 14, and north end of 15 Map 3], moves all the water
among all these ponds. It has access to this pond down here
[8A], which is connected through this incomplete dike, so it
can draw water or send water south. In this case, all the
water from this in intake Pond 10 is moved along here by a
brine ditch, a narrow ditch parallel to Mt. Eden Creek, into
the non-tidal part and down to the pump which can take or send
water from or to Pond 12, Pond 13, Pond 14, or Pond 15, and so
on south.
12
Chall: I see, so these are their ponds that th.>y are still using.
Cogswell: They're still using.
Chall: Now where is the Baumberg Tract?
Cogswell: This dark red line on Map 1 [or heavy dash line on Map 3],
bounding the tract as purchased by the state. But now it has
been extended. The gun club, which triggered my getting the
map, was labeled Lattig, but is now shown as Weber on Maps 1
and 3. Lattig sold to Weber. That's one of the other private
parcels still in the area.
Chall: And they still use it as a gun club?
Cogswell: No, they don't. They want to develop it, and there's another
whole story there.
If you've not kept up with what's been happening in the
city of Hayward, the last six months, there's been argument
over it. The Oliver brothers, the Oliver Estate — all the
brothers are dead. Gordon Oliver, who was the recipient of all
the properties, also died, leaving his estate to the
Congregational Church, Mt. Eden Church, plus the Hayward
Historical Society. These two entities comprise the Oliver
Trust. They still are hoping to sell to a developer who would
build on those properties. [Proposition HH, See Appendix D]
But this piece, at the east end of the Baumberg Tract
[small v on Map 3 and so labeled on Map 1], which was called
the Perry Gun Club, was never used for salt production. It was
owned by Leslie Salt Company and is a part of the tract which
was now acquired by the state [CWCB]. The state acquired that
and also at least a major portion of this strip from the old
crystallizers through the salt ponds leading to the old channel
of the Alameda Creek [east end of Pond 8A on Maps 1 and 3]. So
they have access for water inflow or outflow purposes to this
old Alameda Creek, a channel which is still tidal. It's not
the present Alameda Creek channel. It's the old one. But it's
still open to the Bay.
The Proposed Shorelands Development: Howard Cogswell's Interest
and Analysis
Cogswell: One of the items on the definition of Baumberg Tract, you'll
encounter if you get into these various documents, is the
tremendous confusion, particularly on the part of people who
13
Chall:
Cogswell :
did not read the documents involved, and that includes a lot of
Audubon people. Didn't bother to read them, they just came out
against it [Baumberg/Shorelands development], because they had
read about such and such birds of great value. And they heard
about the thousands of birds and the terns and everything else
that are in the Baumberg Tract or the Baumberg area. They just
saw the word Baumberg.
Well, there's this little village of Baumberg, it's right
up here just northeast of the tract that is now state-owned and
next to Weber's property [Maps 1 and 3]. The Leslie Salt
Company has for years called the entire area north of New
Alameda Creek their Baumberg unit because all of its water used
to funnel into that Baumberg plant. The actual plant was right
in here on Arden Road, a site now occupied by the new
industries just west of the old Baumberg village.
I first started going in there in the 1960s. You have to
be very careful if you're dealing with wetlands values,
particularly bird use and fish use and so on. Are the animals
that you're talking about in the outer salt pond operations or
in the marsh nearby, or are they in the tract proper? I fought
that battle and I lost, because-- [sighs] --a lot of people
simply will not pay attention to that fact. And the company
couldn't care less.
So what was your part in the battle?
When John Thorpe was involved, he had an option on all this
property, and he had the Perry Gun Club area added to the
option later on--
Of course, he wanted to develop the entire area of his
original option. He added the Perry Gun Club so that he could
possibly do some mitigation there. He recognized the fact that
he would have to mitigate a lot of wetlands destruction on the
rest of his optional area. So he was always seeking
mitigation. He came up with mitigation package after package
after package which would involve various ones of these outer
salt ponds between the outer parts of Mt. Eden Creek and the
old Alameda Creek. He finally took Gordon Oliver into his
company, because Gordon wouldn't sell him this Oliver property
up here—the former salt ponds by the Interpretive Center north
of Route 92--except for a very high price.6 He wanted even
6The Interpretive Center at the Hayward Area Shoreline, a restored
wetland on the north side of the approach to the San Mateo Bridge. The
Hayward Area Recreation and Park District was given the area north of
14
higher than Leslie Salt wanted for their ponds. But Thorpe was
interested in getting a mitigation. He wouldn't orovide for a
partial development with mitigation on site within his optional
800 acres.
Chall: In other words, he would purchase some of this and give it
away--
Cogswell: It was always vague whether he was going to purchase it or that
somehow it was going to magically appear.
Leslie Salt never came out over the years, as far as I
know, saying yes, they would agree to having islands made, and
a big portion of this pond, south of Mt . Eden Creek [9 on Map
1], was to be cut off and made into a snowy plover habitat.
But of course that wasn't Thorpe's company's optioned property.
They would have to have obtained Leslie Salt's agreement to do
that, and Leslie never said they would.
Chall: You and the Audubon had differences of opinion?
Cogswell: I led an Ohlone Audubon trip into this area in 1983, I think it
was--I can check it for you—with permission from Shorelands
corporation; we had John Thorpe's special permission. It was
announced in the Audubon bulletin.7 Seventy-some people came on
that field trip because of the golden opportunity to get into
the property. Among other things, we did find on this pickle
pond area [P on Map 3], which was all bare ground in those
years, 330-some snowy plovers; 323, as I recall, in one flock,
just resting. So it was the biggest flock ever in recent
years. People from PRBO [Point Reyes Bird Observatory], when
they heard about it, came right out to check it, because it was
a bigger bunch than they had ever encountered before.
At the same time, I was conservation chair for Ohlone
Audubon. Anna Wilcox, who was president, entreated me to take
it on. She wouldn't become president unless she could get some
help. I don't blame her. [chuckles]
Highway 92 by Leslie Salt Co., which had been leased to a gun club. HARD
later obtained outside funding for and built the Interpretive Center on its
southern end. Map 1.
7The Ohlone Audubon Society is a chapter of the National Audubon
Society, with an assigned membership area encompassing southern Alameda
County. The chapter's bulletin is the Kite Call.
15
Chall: I don't b]ame her either.
Cogswell: So she prevailed upon me to be conservation chair. Well, I
started writing and I published two maps about properties near
the Bay north of Route 92, annotated, about the conservation
values of the properties. I never got around to do the ones
south of 92 because I did mention that the Shorelands
Corporation had a new mitigation package being offered which
had some elements that I thought were worth being looked at.
That's all I said. And that's when they had the snowy plover
habitat, tern nesting islands being proposed—all these
features being mentioned.
The Audubon people, some of them, including Art Feinstein--
currently now staff member for Golden Gate [Audubon Society] --
he was then president or maybe he was their conservation chair
--he was irate over it, over my comment. He got the other
Audubon societies involved, I'm sure, and they asked for a
conference with me. So I invited them here, to my house. And
with representatives from at least five societies from around
the Bay, I met at my house and was raked over the coals just as
though I had sold out.
In fact, Art Feinstein's own words were—the words were not
quite this, but they had the implication: "If you can't toe the
Audubon line, get out." What turned me off so much, at that
point, was I wanted to get the facts of the case publicized,
have people consider the facts whether it was better overall
for the wildlife future in this area to even consider these
mitigations, or not have them considered. He said, "Don't
worry about facts. You don't have to worry about facts." He
told me so in the presence of all these other people in so many
words. That was my reason for abandoning my efforts to have
the Audubon members consider anything in the way of overall
effects on the habitats of the area, since they seemed to
prefer a confrontational, project by project, stance.
Chall: In short then, you might have been have been willing to allow--
Cogswell: --at least some development--
Chall: --Thorpe's development somewhere in here, maybe not all but
some .
Cogswell: I didn't argue for the development. I didn't argue to turn it
off completely. I said there were some elements; and he did
have some very good ones. He hired some biologists that came
up with these plans if Leslie Salt would have agreed to them.
That was always an unanswered aspect. If Leslie Salt would
Iba
It My well be decicte^ before you rrec
these lines, I'd like to make an observation ebout
the largest development proposal — that of the
Shcrelands Corporation's plans to develop iost of
the former wit crystal lizer, bittern, and pickle
ponds in the Bauibero, Tiect [but not any of the
Mlt evaporator ponds to the west of these]. As I
indicated last aonth, a nrw adtigatlon proposal has
b*«n put forth which is, in ny opinion, a very good
one for wildlife in the area in general. Particu
larly the provision of numerous islands in two of
the beyvird salt evaporators is a feature of very
high value for west nesting birds — although they
would have to be Kept largely free of upland vege
tation for terns, Snowy Plovers, etc. to use thsr,,
as would be the case also for high-tide roosting by
r*«sed shcieblrds. The plan also includes two
large areas to be dl^ed off from two salt evepciat-
ors farther from the shore and dried out (except
from winter rains) as habitat specifically for
Snovy Plovers, the species that would be nest di
rectly injected by the development. These two
areas tctel about 1/2 the acreage of good Snotry
Plover hBtitet_in the er« proposed _foi_ develop-
rienL-Jf these features were established as heb
, tat Improvements in the area unconnected with a
I development propcsel, there is not a doubt in my
•ind but that bird life in the area would be «uch
( «cre diverse and abundant^ than it is now.
" IheTlS/ish and Wildlife SeTvice heiTwritten
the Corps of Engineers indicating that in its opin
ion the development project would jeopardize the
survival of the endangered CalifXlapper Rail, the
CalifJ.east Tern, and the Salt Harsh Harvest r.ouse.
bhlle I in all in favor of extending every effort
lively to help preserve endangered species, none of
these three^specjes is found_on the area propospcT'
for development because o^«cfc of suljjblc habitat
thera.jrr^ould"bec(yne~suit»bl« habiUt with cilfi"~
feTent wnegement over ti«e, of course, and it is
included in the very large area recommended for
protection to assure Recovery of the rail end the
mouse to non-ertdangered status But such Recovery
Plans (US. Fish end Wildlife docuwnt) do not even
address the ccst of iflplew^nting their reconnenda-
tions — end in this case nearly all the area
recommended is private property used for salt pro
duction or (as Is the Baunberg Tract) abandoned
such use but still subject to taxes.
In spite of opposite opinions frore&ome Audobon
I do not believe it fair to deny a permit
on the basis of endangered species not directly
from Kite Call,
January 1986
and doubtfully aver indirectly affetUe
•ny deleteiious way. C«rtainly for the least lerr
the number of islands Fiopcs*d in the bay-wire4 M!
• vapc:itcis would be a gieat boon
Me dc not k.no», of COUIM, whether the Las lit
Salt Co., okneit of the salt avapcratcrs, would
allok all of the np»ly propcsed rdtigctlon faa-
turev If not, than wj fcr»*r opinion atill nclfe,
that the edtigftion offered was just too inadooa
to conpensite
Plover, also good wintering habitat for various
other ahoretlrds and Ouc^s
BTBui
assure/ice. Bhoulc
Lesl ie Salt Corpany end avcte a
condition of any approval of this project or a»jc
portion of it. If the project is not acceptable
for other reesom, such as the traffic protle/re
already bad in the area being nede wcis«, then
features of that sort should be the deciding fac
tors instead.
15b
1548 East Ave.
Hayward, CA 94541
Wr.John Thorpe 9 Feb. 1988
Shorelands Corporation
P.O.Box 4258
Hayward, CA 94540
Dear Mr. Thorpe:
Along with the official Ohlone Audubon Society Conservation Committee letter,
dated yesterday, which we wrote asking for your clarification of misinterpretation of
things I wrote in the January Ohlone Audubon bulletin about the Shorelands, I thought
I should add some personal comments in a separate letter. These all pertain to the
same topics which I discussed briefly in that January column, and do not represent any
over-all evaluation of the Shorelands project or its various mitigation proposals.
First, I still stand by everything I wrote in that January column, and I trust
that everyone wishing to comr.ent on it will read the entire column (or the part that
pertains to Shorelands). I learned only recently from Mr. Moore, at a HASPA meeting,
that the August 1987 mitigation package [as well as the subsequent December 1987 one]
was not intended to be a document on which the public was expected to comment; but rather
was a negotiation document between Shorelands and the U.S. Fish and Wildlife Service.
Yet I was supplied with two copies of the August document (1 from you, 1 by the City)
and you yourself wrote about its contents extensively. It was also the document which
detailed various measures [proposed] that I felt, and still feel, would increase the
diversity and populations of various water bird species in the general area. I made
particular mention of the numerous islands proposed in the bayward salt evaporators
(which would benefit nesting and roosting shorebirds, terns, etc., if kept largely free
of vegetation) and the proposed mostly dried-out parts of two salt evaporators (which
would be in partial condensation for the Snowy Plover habitat that would be destroyed
in the pickle pond and vicinity if the development of that area was allowed! I am not
as confident of The benefit that might be attained for wildlife by the proposed brine-
shrimp "farm" or culture pond, so made no mention of it in that column. Along with some
other biologists, I guess I feel that experiment would have to prove itself to be awarded
any mitigation credits.
Second, knowing the normal habitat-needs of the three endangered species about
which a jeopardy opinion letter was written by the U.S. Fish and Wildlife Service, and
knowing that the habitats now existing in the area proposed for development do not equate
to any of those habitat needs [perhaps marginally so for the Harvest Mouse along parts
of the diked-off Mt.Eden Creek, which is also subject to deep inundation by Leslie Salt
Co. operations], I still feel that the direct impact of the proposed development on the
populations of the Calif .Clapper Rail, the Calif. Least Tern, and the Saltmarsh Harvest
Mouse in the areas nearby where they are found would be unlikely sufficient to measure.
The crux of the matter with regard to those endangered species therefore comes down to
the various indirect effects the project might have on their populations, such as through
expanded predation, uncontrolled human interference, etc. Alternatively, there seems
to be a concern that development of the Baumberg Tract [excluding the salt evaporators
to the west and the gun club areas to the south] would be a threat to the survival of
these species because it would remove the property from that which is potentially restor-
able to suitable habitat condition. This removal of potential would most likely apply
to the Salt Marsh Harvest Mouse, since the level of the land involved is so high that
the lower intertidal, cordgrass marsh upon which the rail depends would not be expected
here even if the area were reopened to tide action. Neither is an area of open, fish-
bearing water and barren islands likely here, short of engineering and building of such
through a development that would in turn itself jeopardize the benefit the area might
provide for the Harvest Mouse. Hence, my comment that no habitat for the least Tern
is to be found or to be expected in the Tract itself — even though valuable habitat is
found just to the west. The westernmost of the 3 "bittern" ponds might be an exception
15c
2
to that, since it has seen an increasing amount of use by various birds over the
years I have known it — and would likely quickly revert to fish-bearing status if
the dike between it and the salt evaporator (no. 11) to the west were breached.
However, the jist of my comment about the endangered species pertains to the
fairness of the announcement [which I read only in the public press] that your cor
poration's application for a COE permit was about to be denied on the basis of un
resolved concerns over the survival of these three endangered species. When none of
the three is actually present on the property, and there is absolutely no habitat for
two of them there, and only very marginal habitat for the third, there really would be
no impact on the survival of the populations over what exists today. That was before
I had seen the "jeopardy opinion" letter from the FWS. I subsequently obtained a copy
of that letter and note their extensive emphasis on indirect effects, which I admit I
had not considered to be serious. Kith Red Foxes now present throughout the Baumberg
area, it seems that a predator far more effective than house cats is already a factor
to be dealt with. [The Snowy Plover count team this past Saturday, of which I was a part,
found the Fox den along the south side of the dike between the pickle pond and the
first crystallizer to the south, where we saw 3 animals the previous Saturday. This
week one animal was seen trotting northward along the far west side of the pickle pond,
and their tracks are widespread throughout the area. Various bird wing and leg bones,
one lower back of a bird skeleton, and several bird wings (feathers still attached) were
picked up near the burrow opening.] From the standpoint of human intrusion into the
salt evaporator areas west of the Baumberg Tract, I have always felt that it should be
and could be kept under control by an appropriate public agency that would administer the
trail that is projected through the area [for a long time, by the East Bay Regional Park
District, e.g.]. By proper routing of such a trail, there need be no real disturbance
of tern colonies or main roosts of shorebirds — particularly if there were a variety
of islands available for use by these birds.
All of the above does not mean that I support the Shorelands Corporation's proposal
to develop nearly 700 acres of land in the Baumberg Tract. There are many other facets
of that proposal that are, in my mind, very important to consider — especially that of
traffic and the "cumulative impact" of development that would then be proposed for all
other nearby lands still having wetlands or wildlife values. If the 718-acre tract is
indeed properly designated as wetlands under COE jurisdiction, Then the fact that the
development proposed is in no way really related to the adjacent waters of the United
States would seer, to be a serious point on which to judge the question of granting of
a permit — rather than hinging everything on endangered species not actually found on
the site. There is nlso the unproven need to keep the US, I) development next to a racetrack.
I have not made any thorough study of the December 1987 "mitigation" package, of
which you supplied a copy. Again, it differ^s from the previous version in ways that
might well make a difference if I were on a decision-making body.. As a member of two
organizations that would like to contribute to the decisions that are made, I did feel
that the public should have the opportunity of input when the mitigation offered is very
different from that on which our previous comments were based. But it seems that a
loop-hole of the law allows for such subsequent input only when there has been a notably
revised application, and hence a new EIS/EIR.
I cannot say that I "look forward" to a revised proposal for the area. But if
such is in the offing, I trust that all interested parties will pitch in and consider
£U pertinent factors in combination before arriving at their comments and recommend
ations to the agencies having permitting authority for development here.
Sincerely,
cc: USF'.-.'S( Endangered Species Off ice, Sacramento)
USCOE(San Francisco District Office)
16
Chall:
Cogswell :
Chall:
Cogswell ;
Chall:
have agreed to them, they would have been very good for the
future wildlife values of the area. They included a number of
things which the state is now going to have to try to do on
this more limited piece of property. The state, by the way,
owns about a half of this outer salt pond, north of Mt. Eden
Creek-mouth [10 on Map 1, see dotted lines on 10, Map 3], but
there's no sharp line; they simply have an undivided half
interest in this outer pond.
The northeast part of the Baumberg Tract is higher level
land, so you couldn't get the low level salt marsh ever started
here. You'd have to pump water to maintain it.
Then, over the years, what happened to the Shorelands
Corporation?
They finally went bankrupt.
Why?
Probably because they spent more money than they had taken in.
Did anything come of the plans he had for the industrial
buildings and the racetrack?
Defining a Wetland and Consequent Mitigation Requirements
Cogswell: Well, nothing ever came of it because he never subdivided the
property nor tried to develop just a portion of it. He had two
different plans that he put forward and requested a permit for.
Each time, there were so many questions, so much controversy.
The first time, the Corps of Engineers made the wetlands
determination. And that was, I believe, 1983. There was a
combination of circumstances that year, so that according to
the rules of the Clean Water Act that the corps was following
and enforcing, they had to declare essentially the whole area--
I think it was 87, or 83, or 89 percent, somewhere in that
neighborhood-- was wetlands under their rules.
During that particular year there was an almost solid
growth of ditch grass throughout the whole area. Because the
previous summer, Leslie Salt had flooded the area with water
and kept the water on it. They claim, anyway, that it was
because of complaints about dust blowing. The people in the
nearby industries and downwind had dust blowing on them and
they complained. So Leslie Salt pumped water, or admitted
17
water from these other ponds into the old crystallizers [a-f,
p, s, t, and g-k on Map 3], on the abandoned pickle and
crystallizer ponds and let it sit there.
Chall: That was before John optioned it?
Cogswell: No, I think it was during the time that he had it optioned.
Chall: That sort of undercut his plan, didn't it?
Cogswell: I don't know the details of the option.
Chall: The Corps of Engineers-
Cogswell: Well, let me finish. The previous summer they had all that
water in there, and it hadn't dried up yet when the '82- '83
winter came along, the rainiest winter in many years. And so
when the Shorelands Corporation's plan was put forward and the
engineers were asked to come out and evaluate the wetlands,
they couldn't get on the property; it was all under water.
They couldn't walk around and look at the plants. They have to
look for plants among other things, rooted plants, of which
ditch grass is one indicator of wetlands. Pickleweed is
another.
Anyway, they did finally come out and make the jurisdiction
way along in the summertime, after the water had gone down
some. In a way, it was that combination of circumstances.
This is my personal opinion: had they chosen a dry year to make
the determination, and hadn't pumped any water on it
previously, it would be my judgment that much of the area would
not have been designated a wetland. If you go down and look at
it now, there's a lot of upland plants growing on these former
crystallizers as well as pickleweed mixed in.
Chall: This puts the Clean Water Act and the wetlands into a rather
gray area, doesn't it?
Cogswell: It does. It does. There is. a gray area. Where do you draw
the line on the upper limit?
Chall: Because sometimes there might have been an accident of timing- -
Cogswell: Another thing that happened that's part of the history: these
rectangular ponds are the crystallizers [a-f, and g-k on Map
3]. They have a specially prepared gravel substrate so that
they don't have bumps up and down when they go to reap the
salt.
18
Cogswell: When I worked as a consultant for Leslie Salt Company on other
properties down in the Newark-northwest Fremont area, in the
following year [1984-1985], they plowed--! think Leslie Salt
arranged for this, I don't think Shorelands wanted it done-
various of their properties, including some of those that I was
studying in the Newark area. They plowed this set of north
crystallizers--deep plowed them. Some people raised questions
about that process; and it turns out that as far as the Corps
of Engineers and EPA [Environmental Protection Agency) were
concerned, plowing is a normal activity for agricultural lands
anyway, so nothing was done about it. So they couldn't stop
them, in other words; they had no legal basis for stopping the
plowing.
They did not plow these crystallizers down here, the
southeast crystallizers of the Baumberg unit [g-k on Map 3].
Well, the difference is so amazing now: these north
crystallizers [a-f], are being covered rather heavily by
vegetation—partly upland, partly pickleweed that has come in
since the plowing. However, unplowed south crystallizers are
still largely solid bare ground. They are a similar substrate
otherwise and I believe similar height, although there may be a
slight difference. The pickle pond in the middle never was
used for harvesting; it was the means by which the final brine
from the evaporator ponds was distributed to the crystallizer
ponds, that's all. And it was bare during those years. It has
since become covered with vegetation. These south
crystallizers [g-k] are the only really bare ground now.
From the snowy plover standpoint, for example, they provide
good habitat for foraging, but they're too smooth for their
nesting preferences, although they use nearly bare ground. The
north crystallizers [a-f, Map 3] are no longer bare enough for
the plovers. That plowing episode--! don't think Cargill, or
Leslie Salt, it was then, really knew what they were doing when
they hired the plowing done. It looks as though—it looked to
everyone—as though they were trying to destroy wetlands
vegetation by the process, and temporarily they did so. But
there is a hardpan underneath all of these ponds; it's down a
variable distance I think.
There was a former crystallizer by the National Wildlife
Refuge headquarters. I tried to drive some net poles in there
to capture some birds for banding one time; you had to use a
hammer and an iron rod to break through that hardpan. So, if
they deep plowed and broke through that hardpan, that makes a
lot of difference in the percolation of water.
19
Chall: If I got it right, the Corps of Engineers came in earlier, at
Baumberg, and—
Cogswell: Well, '83.
Chall: And it was all wet, so they said it was a wetland.
Cogswell: Well, when they finally made their determination, they no doubt
gave the Shorelands Corporation a map of what portions were
wetlands. They claimed 80-some percent, nearly 90 percent of
the whole property all the way out was jurisdictional wetlands,
and any alteration of that would have to be mitigated.
Chall: I see. So that was the problem: it needed to be mitigated?
Cogswell: They couldn't grant a permit unless there was adequate
mitigation.
Chall: So that was one of the major problems.
Cogswell: The second time the application came up, after they recognized
that fact, and the Shorelands Corporation was still proposing
development of the entire area—they had a plan for a street to
join Industrial Boulevard down through the Baumberg Tract,
coming off Route 92 up here at a new interchange. The present
one [at Eden Landing Road] might have to be closed, but they
would have a new interchange farther west. The racetrack was
to go in the pickle pond and vicinity [Map 3], but the
racetrack itself, Thorpe would repeatedly say, would not pay
for itself. The reason they needed all the other industrial
development was to make ends meet in developing the racetrack.
The corps doesn't keep records of what properties are
wetlands on an ongoing basis. They don't have the staff to do
so. They only come out and make a determination when there is
an application. So the next time the application came up--I
don't remember what year it was --somewhere around '87, '88,
"89, or "90. After Thorpe had come up with all these other
more elaborate mitigations elsewhere, he then submitted another
application. I don't know whether the corps even came out then
or not. There were so many questions about it by that time,
that what I've heard—and it's only hearsay, because Thorpe
himself didn't tell me this—but other people said that people
at the corps simply told him, "Under present circumstances,
your present plan, we will have to deny it."
So he withdrew; he didn't actually get a denial because he
withdrew the application.
20
Each time he withdrew the application.
Chall: My! He must have gone out of his mind.
Cogswell: And all this time he was spending money hiring people, office,
maintenance, and so on.
Chall: Now, as far as you know, it was his money; it wasn't a limited
partnership that he was setting up--
Cogswell: It was a partnership. I don't know how many partners he had.
It wasn't all his money, but I'm sure he probably lost a lot of
his own money, too.
Agencies Involved in the Complex Permitting Process
Chall: What other agencies have been involved in this over the years?
Primarily it was the Corps of Engineers, but then what?
Cogswell: They're the agency designated by federal law to enforce the
Clean Water Act. They are actually supervised on a policy
basis by the EPA. So, I know there was question in the
litigation over the Coyote Tract in Newark, whether EPA had any
jurisdiction there or not. But the Supreme Court essentially
affirmed that they do by refusing to consider the appellate
court's decision [chuckles].
Chall: So that's a federal agency. Now, the state?
Cogswell: The state gave up its original claim to the Baumberg Tract
proper. They gave that up in the 1980s sometime when they
settled this question of public trust. They agreed to give the
Leslie Salt Company full and clear title to the Baumberg Tract.
They had previously claimed some degree of public trust
interest there as well as on these various other ponds and
marshes to the west of the Baumberg Tract [points on Map 3).
They even gave up state claim to public trust on these tidal
marshes out here [the Whale's Tail marsh, Maps 3 and 4], which
made some of us in Hayward rather irritated.
Chall: Why did they do that? Do you know?
Cogswell: The attorneys for the state Attorney General's office, who met
with us from the Hayward Area Shoreline Planning Agency
[HASPA]--we had a separate committee meeting and entertained
the attorney's representatives from Sacramento--said that the
21
Chall:
Cogswell;
Chall:
Cogswell;
Chall:
Cogswell:
land titles were so complex in this area—this checkerboard
that I referred to earlier—that it was the best they could
get. Even if they went to court, they doubted they would get
anything more.
So giving up the public trust meant that they just gave it up,
no funds--?
That the state—no funds involved— Leslie Salt gave up their
claim to the Mt. Eden Creek channel; Leslie Salt did agree to
about half of this outer salt pond [Pond 10, Maps 1, 3, and 4]
being owned by the State Lands Commission. But no line was
ever drawn; there's no dike down the middle of it; there's an
acreage figure but it is not a set number of acres,
undivided partial interest in that pond.
It's an
Coupled with that, the state gave Leslie Salt the right to
continue using that pond for salt production— the same sort of
arrangement that the National Wildlife Refuge has on all the
ponds they have. A lot of the salt ponds in the South Bay
south of New Alameda Creek—all the way down through Alviso,
around through Mountain View, not Palo Alto but again some
other properties in Menlo Park, and Redwood City— are owned in
fee title by the federal government as part of the National
Wildlife Refuge. But it's a modified fee title, so to speak;
it was written into the title agreement when the federal
government purchased those properties that the Leslie Salt
Company could continue to use them for salt production as long
as they wanted. And of course, the government did not pay,
then, the full price that they would have had to have paid if
they put the company out of business.
Now, there is additional federal involvement in wetlands.
If there is any plan to alter the wetlands status in any way,
the U.S. Fish and Wildlife Service's advice has to be sought.
My word!
Any developer. Thorpe had to have advice from them, because he
couldn't get a permit. The Corps of Engineers is not allowed
to issue a permit having anything to do with any alteration of
fish or wildlife habitats without getting an opinion from the
Fish and Wildlife Service.
And can they be at odds about the proposal?
Oh yes, they can. But it's been rather customary that the
corps does not issue a permit if the Fish and Wildlife Service
says no. They don't really have veto power, but if they put a
22
strong opinion out that there is tremendous damage being done
which is not properly mitigated, I think the corps almost never
issues a permit.
Chall: I see, so that in the corps' denial, behind it was the advice
of the Fish and Wildlife Service?
Cogswell: Oh yes, yes, very much so.
Chall: So they're involved.
Cogswell: The state Fish and Game Department also.
Chall: Tell me about the state Fish and Game Department.
Cogswell: Well, there's a state environmental law also, CEQA [California
Environmental Quality Act]. It's similar to the federal
government laws, and a permit has to be obtained. All they
have to do is get a clearance, I think, for wetlands from two
bodies. One of them is the Water Resources Control Board and
the other one is the state Fish and Game, I believe.
Chall: Well, it gets very complicated with all of these agencies
involved.
Cogswell: Oh, yes. I think Thorpe figured he had something like fourteen
different agencies he had to get permits from. Of course
there's the Coast Guard—if there's any navigable water
involved, they're involved. There's the earthquake hazard
aspect; I don't know how he was going to meet that because this
is all right at the borderland, the five-foot contour (depth of
bay mud). This is considered to be about the most bayward
point where building on less than five feet of bay mud is more
or less normal. You just put down ordinary pilings and you've
got the building supported something like that. But west of
that, where the bay mud gets deeper and deeper as you go out
there—this western part would certainly be subject to possible
liquefaction, so it would take special building techniques to
put any building of any weight out there.
Chall: So that's the state's concern.
Cogswell: Yes, well it's local, the city of Hayward, too. Strictly from
the endangered species approach, another office in Sacramento
is also involved. I don't know who's in charge of that now.
Because this is a part of the property that was designated in
the recovery plan that was developed for two endangered
species, the California clapper rail and the salt marsh harvest
mouse. This was the whole Baumberg area, not just the Baumberg
23
Tract, but this whole area all the way down to New Alameda
Creek. Baumberg is 838 acres, nearly a thousand. Twenty-five
hundred acres or thereabouts, in the entire Baumberg area, was
designated in that plan as high priority for development of
critical habitat for each of those species.
Chall: That's Baumberg Tract plus-
Cogswell: Plus adjacent areas, yes. But the recovery plans that are
developed for endangered species like that don't have any money
attached to them, so such a plan cannot be implemented unless
there's money.
Chall: You mentioned the name of Carl Wilcox.
Cogswell: He's the one now in charge of seeing to it that there is an
enhancement plan developed, adopted, and implemented for the
property bought by the California Wildlife Conservation Board.
Chall: And he's with the state Fish and Game.
Cogswell: State Fish and Game, the district office in Yountville, near
Napa. They are in charge of the implementation plan.
Baumberg Tract Restoration Plan the Result of Mitigation
Chall: Now, I understand from one article that I read that one of the
reasons the Baumberg Tract was bought by the conservation board
is because of mitigation in San Jose due to a sewage effluent
problem, and in the Fremont /Milpitas area due to widening 880,
along the Nimitz freeway.
Cogswell: They are building an overpass and destroying small wetlands
areas in the process. All of these changes damage the
wetlands. The San Jose-Santa Clara Water Treatment Plant in
Alviso is, I think, one of the most mammoth ones anywhere in
the Bay Area. It empties its sewage effluent by one channel
out into the south end of the Bay. The cities down there in
the South Bay did not do what the cities from Fremont, Newark,
north through San Leandro did--get together and build a big
pipe to run this sewage effluent all the way into deep water
into the central bay. Instead, down there they're still
running their separate effluents; each sewage plant is running
separate effluents into channels.
Chall:
Cogswell:
Chall:
Cogswell :
Chall:
Cogswell:
Well, in the San Jose-Santa Clara area, Silicon Valley
development and everything having grown so big, that water is
now--it was 180 million gallons a day ten years ago. I'm sure
it is maybe 250 million gallons a day or more now. Flowing out
in one channel, it has converted what was typical spartina or
cordgrass and pickleweed marsh into tall tules--essentially
freshwater marsh. As you get to the outer end of the marsh,
there is some alkali bulrush which indicates a little more
alkalinity, a little more saltiness. I've been out there on a
boat fairly recently.
There was a court case and at some point they were ordered
to mitigate that damage because the fresh water has converted
what was clapper rail habitat, an endangered species, to a
freshwater habitat which is not clapper rail habitat. So they
had this big mitigation duty, so to speak, and they therefore
contributed- -what is it?--AO-some percent of the cost of the
Baumberg Tract. That erased their mitigation obligation.
By providing funds. The same thing that the Fremont-Milpitas
people did with the freeway.
Much smaller complement there.
Five hundred thousand dollars I understand.
Yes, but that's compared to $12.5 million,
over $12 million.
The total cost is
Now I also understand that the East Bay Regional Park District
is going to go in there and develop trails.
They've contributed some money. You can't get an answer out of
them in public meeting, anyway, about why they are contributing
the money. But apparently they hope to have a trail through
there. Right now the Bay Trail comes to an abrupt end right
here by the HARD Interpretive Center [north of Route 92, Map
1]. Bicyclists won't have to come over here and bicycle and go
around through this route [Industrial Boulevard] and busy
streets through Union City. The next place they can get out
towards the shore is the New Alameda Creek and then they can go
three and a half miles to the Bay Shore, but they have to come
right back again to Coyote Hills.
The idea of a Bay Trail was to surround the Bay, not to
have to go on city streets. See. So, the East Bay Regional
park sought to have a trail; but whether that will be done
depends on whether the state Fish and Game and the federal Fish
1548 East Ave.
Hayward, CA 94541-5313. tel. 5 10/58 1-2201
3 February 1996
Wildlif. Conservation Board
Dept.of Fish and Game
801 KSt., suite 806
Sacramento, CA 95814
Re: BAL'MBERG TRACT, AJameda Co. - item 15 on 2/8/96 Agenda
Dear WCB Members:
Having listened to and participated in various discussions of the future of this property
including the quite recent proposals by consultants responding to property owners in the vicinity and
to the City of Hayward, and being unable to attend your February 8 meeting, 1 trust that my views set
forth herein will be considered as a part of the record and borne in mind when you make your
decision on the proposed acquisition.
First, 1 give a synopsis of my background pertinent to this matter. I joined the Biological
Sciences Department faculty at California Slate University, Hayward, in 1964 and was immediately
drafted by the Department of Fish and Game to coordinate the San Leandro-Hayward sector of a
Bay-wide inventory of \\aterbirds. This included the Baumberg Tract (on which a salt crystallization
plant site still operated) as well as all the salt evaporators westward to the Bay. This study continued
until mid-1966, but 1 continued to have intermittent access to the area for instructional purposes with
Ornithology and Ecology classes which I taught at CSL'H until my retirement in 1982.
As the elected Director for the area on the East Bay Regional Park (EBRPD) Board, 1 was a
proponent and ultimate maker of the motion by which that agency adopted the plan put together by
the City of Hayward to acquire most of the baylands properties north of route 92 (San Mateo Bridge
approach) in cooperation with the County of Alameda, the City, and the Hayward Recreation and
Park District (HARD). At the start of the Hayward Shoreline Planning Agency (HASPA), a joint
agency then involving the City, the County, HARD, and EBRPD, I was the alternate trustee and later
the trustee representing the EBRPD. After 1 left the EBRPD Board at the end of 1982 upon
completion of three terms. 1 have continued sen. ing on the Citizens Advisory Committee
(HASPCAC) for HASPA.
In 1968-71, I also carried out with the help of up to six assistants a bay-wide (south San Jose to
Antioch & Travis AFB) study of solid-waste disposal and bird hazard to aircraft under a grant from
the Environmental Protection Agency. This is pertinent because it was the experience that brought
to my attention how unique the Baumberg Tract is in the lota] picture of the bay-related habitats
about the whole Bay. We visited nearly all parts regularly by 4-wheel drive vehicle and by small
airplane at low altitude, and some parts also by boat.
While serving on HASPCAC, I reviewed the various plans of The Shorelands corporation
which had an option on the Baumberg Tract, and commented on the mitigation measures they
offered to offset the nearly 100% destruction their proposed development would inflict on the
jurisdictional wetlands the property was then (1983?) found to contain. Many of the conflicts that
arose over that proposal were based on inaccurate delineation of the exact places of occurrence of
several listed species - especially the California Clapper Rail and the California Least Tern. There
was (and still is) essentially NO habitat for those two species within the Baumberg Tract , although
both were found using typical habitats in the broader "Baumberg Area" of the salt-pond system to the
west. The Shorelands corporation, however, withdrew its application for development without ever
coming up with an on-site mitigation plan.
The natural history guide "Water Birds of California" (Univ. of California Press, 1977) was
authored by me, and I have continued since 1991 studies of such birds, particulary through censuses
of shorebirds and colonially-breeding waterbirds (mostly terns in my assigned areas) through the San
Francisco Bay Bird Observatory, Alviso, CA 95002, of which I am current president. These later
studies have not included any data from the Baumberg Tract, however, by agreement with the Cargill
Corporation, owner. Nevertheless, my acquaintance with the site and its surroundings is longer than
even the company's current personnel, and I offer it in support of the recommendations I make.
24b
H.L.Cogswell to WCB, 3 Feb. 1996 p. 2 —
Although I mention various agencies and organizations in the synopsis above, the
recommendations and rationale which follow are from me as an individual. They are made entirely
with an interest in seeing the optimum practicable combination of wildlife habitats around San
Francisco Bay, which you as a Board have the opportunity to move significantly toward in this
instance.
RECOMMENDATIONS:
1 . If the appraised price per acre for the Baumberg Tract is considered a fair price based upon
its location, geologic conditions, and adjacent property values, I urge the Wildlife Conservation
Board to authorize the suggested cooperative agreement to purchase it NOW.
2. Advantage should be taken of the partial funding available as mitigation for the impacts of
highway development and saltmarsh habitat alteration elsewhere in the South San Francisco Bay
area to develop a plan for restoration of a full range of salt-marsh types on the Baumberg Tract; but
if such funds are used for pure acquisition costs, a commitment with date certain for the production
and initial implementation of such a restoration plan should be given by the WCB.
3. Some indication should be given now, perhaps to be confirmed as a part of the restoration
plan, of what agency or agencies would be responsible for the management of the property during
and after the restoration work is performed.
4. If any adjustments of the boundary arc made to accommodate access requests for adjacent
property owners, the integrity of all large blocks of lower-, middle-, and high-tide level marshes
should be maintained, as well as continuity among these types.
5. Consideration in the future should be given to obtaining title to the "Whale's Tail Marsh"
(tidal marsh areas from north of Ml. Eden Creek-mouth south to the original Alameda Creek-mouth,
about 250 acres, most of which is owned by Cargill).
RATIONALE:
The BAUMBERG TRACT'S 838 or so acres are so situated, by connection to the tidal
Mt. Eden Creek and the "Whale's Tail Marsh" beyond it and by virtue of the highest portions of the
Tract being at or near highest tide levels, that there is opportunity for restoring a more complete
range of saltmarshes here than anywhere else around the Bay south of San Francisco and Oakland.
It's true that parts of Bair Island in San Mateo County would be easier to restore to low and middle
marsh levels because they were salt evaporators for a shorter time and the old saltmarsh channels are
siill evident in them. However, there is no real high-marsh zone there since that point is occupied by
highway 101. Furthermore, as the WCB Staff reported to us a year ago, they have been unable to
obtain any agreement by the owners to sell.
At Baumberg, tide action of limited sort could be restored to the northern set of old
crystallizers by opening a few dikes and putting culvert pipes under existing levees necessarily
retained by Cargill for access to their remaining property [see attached map for ponds and locations
mentioned]. The brine ditch which parallels Mt.Eden Creek on the north from salt evaporator
10+11 to near Eden Landing Road would have to be bypassed or relocated for tide action to be
brought to former "bittern ponds" 2 and 3 (those with low dikes - see comments on bittern ponds
below). Cargill conveys brine by siphons under quite large bodies of water elsewhere, and I can see
no reason why they could not do so under Mt.Eden Creek to reach evaporator 12 just to the south
and thus eliminate the need for the circuitous route to and under Eden Landing Road to their pump
at the east junction of ponds 12, 13, and 14. This would enable return to tide action of everything
from the pickle pond northward except for the high-diked older bittern pond #1.
The "bittern ponds" themselves are part of the Baumberg Tract. They, of course, contain only
whatever chemicals were in the bay water from which the bulk of the sodium chloride was
crystallized. As I understand it, the chief high concentrations are calcium and magnesium salts. The
western bittern ponds 2 and 3 already flood during rainy winters so that their low separating dike is
often overtopped, and they also receive a modest amount of use by shorebirds and ducks, some of
which are obviously feeding. It's my assumption therefore, that they could be rehabilitated within
Water Quality Board guidelines by gradual flushing with bay water and then returned to tidal status if
that was desired. Bittern pond #1, with its high dike, just west of Eden Landing Road, is another
matter. Over the years that I had access to this property for bird study, I looked at that pond many
times, but never saw a bird on its surface or along its shore even when there was rainwater
accumulated in it. The concentration of chemicals here may be so great that either of two measures
might have to be adopted before restoration is possible: 1) excavate and remove the material to a
24c
H.L.Cogswell to WCB, 3 Feb. 1996 p. 3
suitable upland disposal site; or 2) cover it and cap it with an essentially waterproof seal. Decision
should be made on this difficult area as an actual restoration plan is developed, which should be by a
competent hydraulic/marsh restoration engineer.
The "pickle-pond", the large nearly circular area in the mid-easiern part of the Tract, is at the
highest level. Twelve years ago it was a major pre-breeding assembly area and a moderately good
breeding area for the Western Snowy Plover since it was then mostly barren with slight irregularities
of surface and very sparse low plants. On a November 1995 trip through the area with HASPCAC
(with Cargill officials along) a very great expansion of the vegetation on this area was noted. Hence,
it is rapidly becoming less favorable for the Snowy Plover and instead will soon be suitable for the
endangered Saltmarsh Harvest Mouse, a few of which were found in the 1980s in the nearby
Mt.Eden Creek bed. If true "high-marsh" versions of inlertidal marshes are to be restored in any
significant amount in the area, the pickle pond is probably the best place for it to be centered. Only
an up-to-date topographic study to 0.1 or 0.2 foot intervals of the area would tell what the over-all
limits of such marsh could be.
The southern crystalliTers (south of the pickle-pond) have remained essentially barren and are
thus attractive to Snowy Plovers for foraging at some seasons. If minor irregularities of surface were
established on them, the habitat would be enhanced for that species to nest here; but major
disruption would only encourage the growth of pickleweed - as happened after the mid-1980s when
the north crystalli/ers were deep- plowed. The Snowy Plover's ancestral preferred habitat, of course,
was the supraiidal area of ocean beaches, but they did also occupy drying salt pans of natural origin
in the upper parts of coastal marshes. If that sort of habitat can be incorporated into a restoration
plan that looks begond 10 years at a time, then this habitat could also be arranged for in the
Baumberg Tract somewhere.
The southeasternmost part of the Tract, the former Perry Gun Club, is already largely covered
by perennial pickleweed -- and so probably harbors Saltmarsh Harvest Mice.
One difficulty of developing adequate tidal prism to allow complete flushing of a large
ink-rtidal marsh throughout a majority of the Baumberg Tract would be ihe very narrow existing
channel of Ml. Eden Creek, most of the original rather wide Slough having grown up to dense
pickleweed marsh in the past 30 years that I have known the property. It could be dredged out. of
course, but that in itself would destroy SMHM habitat, and some of the CCRail habitat in the outer
reach. A supplemental channel that would perhaps permit less dredging of Mt.Eden Creek, or
perhaps substitute for it entirely, has been suggested from State property south of the San Mateo
Bridge toll station along the northernmost boundary of salt evaporators 10+11 and the Baumberg
Tract. Although the western part of evaporator 10 is owned by the State, there was an agreement
when title to it was cleared that Leslie Salt (now Cargill) could continue using it for salt production
purposes. Additional negotations with Cargill or alternatively with the Oliver Trust that holds
property just north of evaporator 11 might be able to allow for such an additional entry/ exit route
for bay water. A further alternative would be a channel from the southwest corner of the south
crystallizers to and along the east side of salt evaporator 8A, as was envisaged in the Shorelands
development plan for the disposal of rainwater runoff to Old Alameda Creek (Alvarado Channel).
The several difficulties I have enumerated for a thorough marsh restoration plan on the
Baumberg Tract do not really interfere with the ultimate establishment of a full range of wildlife
habitats from open mudfiat and tidal slough through cordgrass and pickleweed marshes, to those with
gum-plant (Grindelia) along the minor, sinuous channels that would be optimum habitat for the
Alameda Song Sparrow (Melospiza melodia pusillula) endemic to east-central and south San
Francisco Bay, to the high-tide marsh intergrading with upland vegetation that has been destroyed
elsewhere throughout nearly all of the South Bay.
Respectfully yours,
Howard L. Cogswell, Ph.D.
[Prof. Emeritus, Biol.Sci., Cal-St.Univ.,Hayward]
cc: HASPA
HASPCAC
City of Hayward
Carl Wilcox.DFG » tartars S/WK/tfy
End.: HASPA property map of Baumberg Area, with sites annotated.
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25
and Wildlife people, particularly Fish and Game, will allow it
or not.
Chall: I see. So there's a lot yet to be done. But I have a little
background now about why the restoration of the Baumberg Tract
has come to be. Initially what happened then is that John
Thorpe gave up.
Cogswell: Well, his company went bankrupt. The option expired.
Chall: The option expired, so it still belonged to Leslie-
Cogswell: Still belonged to Cargill which acquired the Leslie Salt Company.
Chall: Then they were willing to sell it?
Cogswell: Leslie Salt had it for sale since 1973 at least. They'd been
paying taxes. They will tell you that they'd been paying taxes
on it all this time, as they do their other surplus properties.
So they've elected to dispose of it.
Chall: What is the California Wildlife Conservation Board?
Cogswell: They are a separate entity associated with the state Fish and
Game Department, but not really--! 'm sure they're not
answerable to the head of the Department of Fish and Game. But
their whole purpose of being is to acquire or improve
properties for the benefit of wildlife. They're under the
state Resources Agency as is the Fish and Game. They're sort
of an auxiliary agency to that.
And they do have money; from time to time, some large
amounts of it. They were the designated state agency to spend
money from Proposition 70 a few years ago.8 It was passed by
the voters of the state; it included x million dollars to be
spent acquiring wetlands in San Francisco Bay south of San
Mateo Bridge, specified in the law that was passed. That's the
reason why the Citizens to Complete the Refuge thought that
they were going to get Bair Island purchased from that. [See
Appendix C] The Wildlife Conservation Board people, the actual
board members, according to their staff --we never met their
board members—claimed the board will not exercise eminent
"Proposition 70, June 1988. Wildlife, Coastal, and Park Land
Conservation Bond Act. Initiative statute sponsored by Calif ornians for
Parks and Wildlife. $776 million to acquire, develop, rehabilitate,
protect, and restore parks, wildlife, coastal and natural lands in
California.
26
domain though they have the power to. They don't want to run
the risk of an adverse court decision or something.
Chall: So it was easier to get this--
Cogswell: It was easier to get this because we had a willing seller; when
the appraisal was done, Cargill said okay.
Chall: In addition to that, they were able to get these monies from
mitigation, to provide part of the funds.
Cogswell: Yes. It wouldn't have been possible otherwise, because there's
not enough in the bond money.
Chall: So these folks in California Wildlife Conservation Board must
have been out working to find out how this could be
accomplished.
Cogswell: Oh yes. Their staff worked together to put this package
together, sure. I have a record of the staff person who was at
this meeting I attended, uninvited. I heard by the underground
about the meeting. They had invited Florence La Riviere's
group, the Citizens Committee to Complete the Refuge, because
they knew that that was a group that was going to oppose them.
They wanted to sound them out or let them know in advance
before it was actually done; but in fact, what they told us was
essentially, it's all done. It hadn't actually transpired yet,
but they were about to close it.
Chall: Can you tell me something about Bair Island. [This interview
took place a few months before POST {Peninsula Open Space
Trust} concluded their successful negotiations to purchase Bair
Island.]
Cogswell: The Citizens Committee to Save the Refuge needs to get this
Japanese firm to give us the outer two pieces of Bair Island.
These are the only parts I think really that are quite valuable
from the wildlife standpoint. The innermost, smaller portion
is next to development anyway. It is an island. Bair Island
is really three islands, or islands separated by two sloughs,
whichever way you want to consider it. The inner part, other
people have championed for development.
It's all left over from Leslie Salt's attempt to go into
the real estate business in the 1970s. When they closed the
Redwood City plant, they started their own real estate company
there. John Passarello was the manager of that at the time; he
later became head of the Northern California Nature
Conservancy. He was the one from whom I sought admission for a
27
couple of research projects I had. He told me he was surprised
that I was asking for research access to their entire system.
I said, "Yes, that's right." [laughter]
Chall: Why not? [laughs]
Cogswell: He said, "Well, "--after discussing it with me on the phone--he
said, "I guess we'll be sending you a letter; it'll be okay."
Within the next week, I spoke to the Sequoia Audubon Society
about the proposed new national wildlife refuge, giving it my
full support; it was a wonderful thing that was being proposed
at that time. I never got the letter from Leslie Salt Company.
My research grant was in the offing; it came. I had to live
for three years with access over the Leslie Salt property but
not through it. I flew over it. [laughter]
Chall: Yes, well, you spoke out of turn! [laughter]
Cogswell: I can't prove there's a connection, but I never got the letter.
Chall: Regarding Bair Island, there have been articles about that area
in Save the Bay bulletins. They gave me some information.
Cogswell: It's good, but--. You should have a copy of my letter to the
Wildlife Conservation Board at the time that they were
considering this. At Bair Island, restoration of the
uppermost tide levels, where high tide marsh would reach upland
borders, is not possible because Highway 101 occupies that
position over there with development along it. It's been
destroyed.
In the Baumberg Tract there is a possibility up in the
north and east parts of that sort of a thing, particularly in
the area near Arden Road, and by Baumberg Village [Map 3].
And this area as a whole, the way it was being talked about
when we first met with the Wildlife Conservation Board staff,
was that they were going to acquire some property all the way
down through the tidal Whale's Tail marsh out north and south
of the old Alameda Creek-mouth [Maps 1 and 3).
As it turned out, when they got down to brass tacks in
their dealings, they didn't have enough money to do this.
Nevertheless, in the Mt. Eden Creek-Baumberg Tract area, it is
possible to develop from bayside low level tidal marsh all the
way up to that upland in one of the most unique situations in
the South Bay. It hardly exists anywhere else.
Chall:
I guess there's a future in it.
28
Cogswell: Yes. Carl Wilcox has got his job cut out for him to get a
consulting firm that can make a nice design that's going to be
possible for them to implement.
The state owns an approximate half-interest in the
outermost salt evaporator [Pond 10, Maps 1 and 3], but they
can't alter it. The salt company's still going to use it.
What they are thinking of is dredging, because Mt. Eden Creek,
from this point [Ml on Maps 1 and 3) landward, especially, is
practically filled up with salt marsh. Even this channel,
bayward from the same point [Ml], is now very narrow. But they
would dredge the part inland from point Ml to M2 [Map 3].
Carl's idea, he told me once, is simply to let the surge of
water scour out the outer channel, southwest of Ml. This
little low dike across there would have to be removed. In
their very implementation, they have to damage some salt marsh;
but they'll probably get a permit to do that because the
ultimate result will be a great increase in the acreage of the
tidal marsh.
29
II EDUCATION: PREPARATION FOR A CAREER IN ORNITHOLOGY
[Interview 2: July 17, 1998] ##
Early Interest in Birds
Chall: All right. We start. What I wanted first from you, Howard,
was something about your educational background and then your
career path. Where did you get your education and your
interest in ornithology.
Cogswell: Well, my interest in ornithology goes way back to boyhood. I
kept my first bird list when I was ten years old.
Chall: Where were you living?
Cogswell: Pennsylvania. Northeast Pennsylvania. I always give credit to
Thornton W. Burgess's bird book for children. I don't remember
the date of publication, but it was in the Montrose Public
Library. I had read two or three books by him about other
animals in grade school—that would have been in fourth grade
before I moved to town. And when I was in fifth grade we moved
to the county seat.
Chall: And that has a name?
Cogswell: Montrose, Pennsylvania. The county library there in the county
seat had this book by the same author. I had read other books
by him from the traveling library in the two-room school house
where I was in the third and fourth grades. So that's what
started me.
And this was a book that was written deliberately for
children. It personifies the animals, but it doesn't change
their ways of life. Peter Rabbit is the operator: he goes
30
about and he can talk with any animal the language that they
speak. He always runs from Farmer Brown and Farmer Brown's
dog, and so on, so their life is really like the animal's.
Peter Rabbit met all these birds and describes them and so
that's what really captured my interest early on.
That was a year or two before I discovered a better book at
the library, Eaton's Birds of New York which was published in
1924, I believe-- '23 or '24--with excellent color plates of
most of the birds by Louis Aggassiz Fuertes, a famous bird
artist of Cornell. And that two-volume book had instructions
for keeping notes and so on in the front, so that's what got me
started in keeping a list.
Chall: Really?
Cogswell: All I did at first was to keep the usual bird list. Most
birders start out that way. But by the time I graduated from
high school, I was a dedicated birder already.
I graduated from Montrose High School in 1931. I was the
valedictorian of a very small class. [laughter] There were
only 200 in the whole high school.
Chall: Did you have any friends who cared as much about birds as you
did?
Cogswell: No, not as much. I never did have a tutor. I was the tutor
for a friend of mine, Zelman Klonsky, now Zel Kelvin. He and I
were both in the Boy Scouts and we needed the bird study merit
badge. Well, I got mine with a breeze because I knew the birds
already. At that time it was knowing, I think, forty species
of birds, and four or five other requirements. He had real
difficulty, so he needed help. And I helped him and he got his
bird study merit badge, too.
Our scout master lived on a farm. He was a gentleman
farmer; he didn't operate the farm, but he lived on it and
owned it next to Lake Montrose which is near the golf course
where we caddied sometimes. And the scout master was mildly
interested in birds, knew a fair number of them, but I don't
think he kept any records. But he did give us permission to
bird all over his properties. That was very helpful,
[laughter) Next to the lake, of course.
Chall: So that's your beginning.
Cogswell: Well, that's the beginning.
31
Chall: When you went to college?
Cogswell: I left Pennsylvania after high school and came to California
that following fall. I couldn't afford to go to college even
though I had thought of going to college at Penn State
University. I couldn't afford it. This was 1931, it was the
depths of the Depression.
Chall: Right.
Cogswell: And I wound up in California living with a man that I called
uncle. He was really no direct relation, but he had been
raised by my grandfather as his foster son. He was a nephew of
my grandfather's second wife—not my grandmother, who was his
third wife. So anyway, that man, L. B. Luce, was a successful
building contractor for years in Pasadena and I came to
California and lived with the Luces.
Chall: So that's where—in Pasadena?
Cogswell: In Pasadena, California. I went to junior college there,
including two different stints. I didn't stay with the Luces
more than, well, one year at most, then I was out working on my
own odd jobs. It didn't cost much to go to junior college in
those days. It didn't cost much to live.
Chall: Right.
Cogswell: But it was hard to get any money. Anyway, I went to junior
college as a chemistry/math major, so to speak, because that's
what everyone expected me to do. That's what I had indicated
in high school. I was going to be a chemist.
Chall: Oh, I see.
Cogswell: But I only lasted a year and a half in that. Didn't like it,
dropped out for just about a year, and when I went back I
majored in biology. Went back to Pasadena another year and a
half --Pasadena Junior College— it ' s now city college, Pasadena
City College— and majored in biology. Graduated from there, in
that major in 1936.
Chall: So it took you a number of years to get through?
Cogswell: Well, because of the change of major, yes. I started a year,
quit a year--I couldn't go on to a four-year college. I'd
already visited UC Berkeley once; I knew about Joseph Grinnell,
thought wonders of him, didn't meet him, however. I came to
campus, but just couldn't afford to go in '36 to Berkeley,
32
besides which I was beginning to get interested in other
aspects of life--'37 to '38, particularly '38, I was courting
Bessie. [laughter]
Chall: I see.
Cogswell: So we got married.
Chall: Wow, that's a long time! You've been married a long time.
Cogswell: Well, it'll be sixty years this year. So I didn't go back to
college until after World War II under the G.I. Bill. The G.I.
Bill was available and one of my Pasadena Junior College
instructors resumed bird study—he had been a birder earlier.
I did not know it when I took a course from him. He gave the
general biology lectures and was an excellent lecturer. But he
took up bird study again from the standpoint of bird listing;
he wasn't interested in anything except life birds [species he
hadn't previously seen]. [laughs] But he urged me to--he
said, "You ought to be in college." He knew about the G.I.
Bill being available. He said, "You ought to go back to
college." And I was, by that time, working.
Chall: Had you been in the service?
Cogswell: I was in the navy--World War II--served twenty-two months,
including in the Pacific Theater, Hawaii to Okinawa. I was
there when the war ended.
Chall: I see.
Cogswell: Anyway, Dr. Max deLaubenfels was this man. He was a world
expert on sponges and that's how he got his own Ph.D.
By that time I was working part-time for the National
Audubon Society, in a sense. I had agreed to move onto a
property that they had acquired while I was gone in the navy.
I was supposed to be the first director of their first
sanctuary in southern California which was along San Gabriel
River near El Monte--f if teen miles due east of Los Angeles.
They acquired the property of seven acres for the headquarters
when I was gone in the navy.
And some ladies from various Audubon chapters—well,
chiefly Mrs. Richardson from Berkeley—active in what was then
the Audubon Association of the Pacific, now Golden Gate
Audubon, came down and lived in the house until I got out of
the navy— and for a while longer because I wasn't able to
change. We owned a house in Pasadena by that time, which we
33
had built, a tract house. Anyway, we finally wound up selling
our house when this idea of going back to college materialized
and I moved into this Audubon property where we got free rent
and utilities for me being part-time warden of the place.
Whittier College. 1947-1948
Cogswell: And I had arranged, then, to enter Whittier College in February
of that year. We moved in October, but I entered the college
in February, quit my job. The job I had had when I was
drafted, which was a U.S. mailman in Pasadena. It was quite a
decision to make. Those of us who lived through the Great
Depression know how hard jobs were to come by and a government
job--such as the U.S. mail is going to go on--
Chall: Yes, forever.
Cogswell: Forever, and so it was a permanent job.
Chall: Did you have children by that time?
Cogswell: Yes, our son was born in 1940, so we had him before I was in
the navy--our only child. Anyway, I did quit my job completely
at the post office to go back to college. So I had to make the
break, depending on the G.I. Bill to pay most of my way, which
it did. I had so many units from the junior college, I only
needed to go a year and a half to complete the baccalaureate
degree at Whittier.
Chall: In biology?
Cogswell: In biological science--! think it was called biology, there.
I'm not sure. I graduated from there in June of '48 and
transferred that fall to UC Berkeley in zoology.
Chall: Zoology?
UC Berkeley. 1948-1952; 1962
Cogswell: Zoology. And spent four years at Berkeley—the last three in
sort of breaks, because I spent the spring semester periods in
southern California on the field research for my Ph.D. and took
courses in the fall at Berkeley. The first year I was entirely
Chall:
Cogswell
Chall:
Cogswell:
at Berkeley including one summer session; the second year where
I had some field work at Hopkins Marine Station, at Pacific
Grove. 1 took a field course there. It was required for the
Ph.D. to take a course including field work at the seashore.
It didn't matter what course, as long as it was a zoology
course of some kind at the seashore. It was a good requirement
and I liked it.
For my term report for that course—it was an undergraduate
course in invertebrate zoology--! did a sampling of the mud
flat- -the organisms of the macrofauna in the mud of Elkhorn
Slough just east of what was to become the PG&E [Pacific Gas
and Electric Company] cooling water intake which is now
operating. They were getting set up to establish that plant at
that time, that big power plant at Moss Landing. It is an oil-
powered generating plant. They had to cool something—they had
to take water in to cool it at great quantity and there's no
great quantity of water there except salt water, so they built
a system that used salt water for cooling.
Oh, I didn't realize that.
So they take it out of the slough and I think they discharge it
back into the main slough near the yacht harbor, or at the
yacht harbor. Anyway, I did that mud flat study which
introduced me to mudf auna—shorebird food and all that.
My Ph.D. work, though, was in another f ield—nothing to do
with water birds— it was territory size in chaparral birds in
the San Gabriel Mountains of southern California. I started
out not knowing what species I was really going to settle on.
I was taking data on all species, but only after the three
years of field work did I narrow it down and see which ones I
had the best data on and analyzed and studied territory size in
the wren tit, the bewick's wren, and the rufous-sided towhee.
Now known as the spotted towhee. [laughter]
One in my yard this day.
the change of name.
I'm not going to be able to remember
But the G.I. Bill benefits were exhausted. The last year I had
some state veteran's benefits that I used and we were getting
very low on money. We had sold the house in Pasadena when I
enrolled in Whittier College. We had sold that house for
nearly four times what we paid for it because of the inflation
--it was pre- to post-World War II. And yet that money was
just about gone, so I had to go to work, desperately.
35
And even though I had finished the field work—almost
finished the field work—I had finished the actual data
gathering on the birds in six different plots of chaparral in
southern California--! didn't have the vegetational measured.
But I was desperately looking for a job, and finally one was
offered at Mills College, so 1 went there. I was an assistant
professor.
36
III THE ACADEMIC CAREER
Mills College: Assistant Professor. 1952-1964
Chall: Teaching biology?
Cogswell: Teaching zoology with miscellaneous other—general biology,
also, at first — courses in the biology department. They only
had three biologists, of which I was one. But that was so time
consuming. I went back to southern California the following
summer, finished up the measuring of the vegetation that I
needed. I was measuring territory size against vegetation
density and I needed to finish that vegetation density
measurement. It should have been done the same years I was
measuring the birds, but I didn't finish it up until the
following year.
Chall: Fortunately it didn't change.
Cogswell: It didn't change that much. They didn't have a fire in the
interim.
Chall: Yes, that's right. [laughter)
Cogswell: So I had all this raw data and just didn't get around to
analyze it, what with the job, the full-time job. So it took
me a long while to finish the Ph.D., to get the dissertation
done.
Chall: So when did you finish?
Cogswell: I finally got the degree in '62.
Chall: And how did you enjoy the Mills experience?
Cogswell: Oh, it's a good college. The limitations there are that they
provide almost no help whatsoever for a professor to set up
37
labs and so o.-i. The only course I had any help in was the big
freshman course. And that was true of the first year or two—
didn't have any help at all. You do the flunky work which big
universities all have helpers to do. Big universities have
readers to read exam papers and so on; not at Mills,
[laughter] Not at Cal State Hayward [California State
University at Hayward], either. But academically it's a good
institution and I had some very bright girls there.
Chall: Yes. So you moved to Oakland?
Cogswell: Yes, we moved to Oakland right away when I got that job. And
when I was doing the field work in southern California, we were
breaking household three times each year. It was a terrible
ordeal for our son. We didn't realize at the time, but it was
preventing him from making long-time friendships, because every
time he'd get friends established where we lived and where he
went to school—he went to two different schools: one school up
here and the other school in southern California—and it wasn't
always the same school down there.
Chall: In Berkeley did you always rent someplace different?
Cogswell: Yes, well, we lived in the veteran's village, the UC veteran's
village, but it wasn't always the same place because of the
breaks .
Chall: Yes. The one in Albany?
Cogswell: The one in Albany. We stayed there for a year and a half on
the Gill tract. That was not the current one. It was on the
Gill tract which is the agricultural tract next to the Western
Agricultural Research Lab. That was the year that I took my
summer work at Pacific Grove. We kept the apartment even
though I was down at Pacific Grove for five, six weeks — six
weeks I think it was.
Chall: So, you got your degree.
Cogswell: I finally got the degree in February of '62, with this
dissertation on territory size and the three species of birds.
And after that I was expecting to get a promotion at Mills
College because the reason I wasn't promoted was because I
didn't have the degree. That was understandable: it's the
normal process, and that's what I had been told by them when I
went there.
38
National Science Foundation Fellowship; Pennsylvania State
University, 1963-1964
Cogswell: But after I got the degree, still no promotion. They didn't
give a reason that year. The following year, '63-64, I got a
National Science Foundation Science Faculty Fellowship. It's
essentially a science education scholarship. It's not a
research fellowship. The purpose was to improve my ability as
a teacher. I took a sabbatical leave from Mills at half -pay
and the scholarship paid essentially the other half of my
salary plus quite a number of other expenses.
I applied to three places. This was to study animal
behavior. I'd gotten interested in animal behavior as a
specialty and had been doing some reading on it. I built a
bibliography in the summer time--I went to UC Berkeley biology
library and got quite an extensive card file on animal
behavior, which was a developing science then. I applied to
work with William Thorpe at Cambridge University in England, he
turned me down [laughs]. He wrote me a handwritten letter, not
a typed letter, a handwritten letter saying he was swamped with
people, and just couldn't take on any more. My second choice
was Ekhart Hess who had been doing excellent work with
imprinting with chicks and some other birds, but mostly baby
chicks.
Chall: Where is he?
Cogswell: At the University of Chicago. He never answered in time. He
finally answered but it was after I had closed the deal with my
third choice. So Hess would have taken me, but he didn't
answer in time. I had already committed to go to Penn State
University which is where I was going to go to college anyway
when I was a farm boy back there.
I chose Penn State simply because they had three people
listed under animal behavior. I didn't know any of those
people at the time. Didn't know much about what work they had
done — except Carpenter—Charles Carpenter, I think--! 've
forgotten his first name, now- -had done excellent work on
howler monkeys. By the time I got there, though, he was no
longer doing any teaching. He was a dean, so wouldn't take
anybody. He wasn't involved in teaching any more.
The other two persons I did work with. David Davis, who is
not really in animal behavior, was my main guide there. He
took me on very gladly and arranged for me to have space. In
fact, I was designated--! created a new designation at Penn
39
State: I was a visiting scientist [laughter] with faculty
privileges, although no responsibilities, of course. I paid
them, in fact. My grant—see, the indirect costs.
I shared an office with Merrill Wood, their ornithologist,
in a big work space. I audited two courses. And one of those
courses was their course in animal behavior. So I essentially
took, without being required to take the exams, their full
course in animal behavior taught by Dr. Martin Schein.
Well, his interest in behavior was with captive animals,
chiefly domestic animals. He had access — they have a big
poultry science department at Penn State and so we had baby
chicks and we could inject them with testosterone and
everything else so they would crow like an adult except their
voice was very high. And we looked at bulls and cows in their
pens and stuff like that.
Chall: My, my.
Cogswell: But I was interested in wild animals' behavior. I had been
reading in great detail about the courtship of ducks and
everything that was going on right out there less than a mile
from campus- -a mile! But he wasn't interested in taking the
class out or anything else. We never had a field trip in the
entire course, except to the poultry husbandry department on
campus.
Chall: Times have changed.
Cogswell: Dr. Schein advised me on a little bit of research which I
undertook to do. I was interested particularly in space
related behavior, partly due to my Ph.D. work on territory but
also because I had been capturing birds in my dooryard at Mills
College and I was really struck with the fact that birds are
very responsive to particular sites where they experience — in
this case it was capturing them in the mist net— they're so
responsive to that site, that even though they live in the
area, they check that site out every time. You put a mist net
--and I caught birds without any problem when the mist nets
became legal— in my dooryard at Mills College. In Oakland, we
lived on campus most of the years there and we had a suet log
which the birds came to. It was in a mulberry tree in our
backyard and when I put a mist net up there and the bird was
coming to the suet log, I caught them of course. Chickadees.
Chickadees are terrible to take out of the net. They grab the
net, they won't let go, they bite your cuticle around your
fingers if you're handling them, [laughter] so it was quite an
ordeal for the birds, too.
AO
Chall: Of course.
Cogswell: But they got released, okay.
Chall: But they always came back.
Cogswell: They came back to that suet log, but they would not make the
direct flight.
Chall: Oh, I see.
Cogswell: They would stop and call and call and they'd look up, and look,
look, and look, and they'd finally go up through the top of the
tree and down to get to the suet log rather 'than fly straight
through underneath.
Chall: Interesting. They obviously learned something.
Cogswell: They learned that spot very thoroughly with one experience.
And so that's the kind of behavior I was interested in doing
something quantitative with.
Site Studies with Starlings
Cogswell: 1 captured starlings at Penn State out in the fields. They're
easily captured, and it's perfectly legal to keep starlings in
captivity, there's no law protecting them. And Penn State had
a beautiful animal behavior lab that had just been built. They
gave me one cubicle in it for use. The rest of the whole lab
was all occupied by another professor, in psychology I think.
He was studying cats. So you had cats in all these other six
or seven—seven other cubicles I think—and I had starlings in
one .
Chall: [laughs] The cats and the birds.
Cogswell: But no, the cubicles were such that they couldn't see one
another. I don't know whether the starlings could smell the
cats; I certainly could.
But they also had test chambers and I had access to one of
those test rooms with a one-way glass on the door. Put the
animal in and then you could stay outside and you could see
what it does in the room. Well, I was testing the starlings to
see if they would respond to things in the environment the way
the chickadees did.
So my principle was to put bushes in--it was a rectangular
room so I had four bushes. I went out in the field and got
four very different kinds of bushes. One was a young pine
tree, one was a broad leaf tree of a different sort, one was a
dead bush with just branches, and one was--I forgot what the
others were, but they were different bushes. I put them up in
the corners of the room.
First, in their home cage where the birds lived, I had to
teach them to knock--! had food dishes with little round tops
with a lid on it. They had to learn, which they did very
readily, to knock the lid off so they could have the food.
So then I put these four dishes around the corners with
food at first in all of them. And then in the experimental
room I had to
ll
Cogswell: Anyway, the test situation was to have them learn that the food
is by a bush of a certain sort. Of course the room stays put.
By the time they had learned the food was by a pine tree-
in one corner of the room—then 1 moved the bushes in a random
fashion. The food was now still by the pine but it isn't where
it had been. Well then, some of the birds went to where it had
been even though the pine tree was now over here [gestures],
and some of the birds went to the pine tree and did not go to
the other corners.
I had devised a scheme of taking them in a bucket which was
turned upside down, essentially, with a bale of wire around the
bottom, so I had a means where I can exit from the room without
the birds being released and then I could pull this string
which would lift the bucket off of the birds and there they
were on the floor. Well, then they all flew up right away, of
course. They flew up to the perch I had provided in the room
and that made them look down at the situation and proceed.
After they'd calmed down, they would go to the food.
Chall: Interesting.
Cogswell: The results were mixed.
I tried starlings in a simple T maze, also, but they fought
it. They wouldn't perform in a simple wire T maze where the
narrow passageway leads to a T junction and you have a choice,
right or left, and there's food at one end. And you can rotate
the whole maze — the same principle, you see, so that the room
stays put and you rotate where the food is going to be. But
starlings wouldn't behave and I wound up doing that phase of
the study with Japanese quail which are a starling size bird.
They're domestic birds which Penn State had lots of. And
the Japanese quail performed very well, running along this
little tube--a wire T maze--and making a choice. Well, the net
result of all that was that Japanese quail are like white rats.
This sort of experiment had been done with white rats years
ago and some rats learned the location of things in their
environment by looking at the environment, other rats learn how
to get there by learning to turn right or turn left — in other
words, go through the maze by following a road map, so to
speak, rather than looking at the environment. So Japanese
quail were mixed also. That's all I learned. That was the
whole thing. [laughter]
Chall: You were learning something, obviously.
Cogswell: Well, anyway, to cap it all off, Mills for other reasons-
explained to me by the president, Easton Rothwell--couldn' t
promote me, despite the fact that I had fulfilled, at long
last, my promise to finish the Ph.D.
Chall: And by the way, did you learn something about teaching while on
this fellowship?
Cogswell: Oh, I did. I taught animal behavior. I taught animal behavior
three times at Cal State Hayward.
Chall: I'm talking about the fact that your grant sent you off to
Pennsylvania--
Cogswell: To learn animal behavior.
Chall: But weren't you also supposed to be learning how to teach?
Cogswell: No, no, to learn more of the subject matter.
Chall: Oh, that was it. All right, I guess I must have misunderstood.
Cogswell: It was to make me a better teacher of biology by training me in
a field that I had no training in.
Chall: Oh, I get it. All right, I misunderstood you. So you really
did get some background to go back and teach?
Cogswell: Yes, I did, including these patterns in captivity which were
not my specialty but I did them.
»
Chall: So Easton Rothwell said that he-
Cogswell: Well, he explained that in a department as small as ours--the
other two members did have tenure. At Mills the arrangement
was when you got promoted to associate professor you also had
tenure. He felt that my interests, even though I had come to
the department earlier than the other professor who was also
somewhat interested in ecology and birds — although that other
professor taught primarily physiology—and physiology was their
big course, one of their big courses--he felt he needed a
cellular biologist, which they didn't have any in a department
of three, the third one being a botanist. They had a botanist:
the man who had been chairman when I was hired and the other
person was hired. So two of us with overlapping interests were
hired, and the other one already had his Ph.D. so he got
promoted in the due course of time and I didn't.
Chall: That was what year?
Cogswell: This was while I was gone on sabbatical-- ' 63, '64--spring of
'64 when it came to a head. Rothwell was back there visiting
Washington D.C. so I went down and met him where he explained
how it was to me. And he said, well, I could come back as an
assistant professor, be there indefinitely--
Chall: Forever. [laughs]
Cogswell: And I said, "That doesn't sound very attractive. What if I
seek another job?" When you go on sabbatical you're not
supposed to- -you 're supposed to come back for a year, you see,
at least a year because the college has paid you half-salary
for no work that year to help you reinvigorate your mind. But
he said, well, under the circumstances, he would have to
release me, that's all. Anyway, within six weeks of that
interview, I had another job.
California State University at Hayward. California. 1964-1980
Chall: And where was that? Here at Cal State?
Cogswell: Cal State Hayward.
Chall: They were just--
AA
Cogswell: They were just underway on the hilltop. I came in their second
year on the hilltop. They had several years down on at the old
Hayward High School.
Chall: That's right.
Cogswell: But I came in '64, the fall of '64, as associate professor up
here. I got my promotion, in other words.
Chall: Right here.
Cogswell: And of course 1 still had to prove myself at Cal State Hayward
--and five years later to be promoted to professor.
Chall: Which you did.
Cogswell: I did.
Chall: And what were you teaching? What were you starting out to
teach?
Cogswel] : I started out teaching general biology, general zoology, and
ecology. 1 had to have the first two courses only a couple of
years while they were still growing. I didn't do well in the
general biology course which is for non-majors. Somehow I am
not a dynamic lecturer. Tom Groody was and he came and took
that over. He was already there, I believe, when I came. He
was famous for making biology interesting to the non-major.
Chall: Yes, I think he was on television.
Cogswell: He was the first head of Science in Action for the California
Academy of Sciences, yes. He took it over gladly and I gladly
gave it up. [laughter]
Chall: You have to find your own niche in this world.
Cogswell: But I taught various ecology courses, worked in the general
zoology course after a number of years of lecturing in it. I
taught labs in it, even though someone else was lecturing. And
we organized more or less the system they still have of second-
level courses, sophomore-level courses: one of which is
ecology, one of which is genetics, one of which is embryology-
developmental biology, I think, one of which is evolution, and
the fifth one was physiology. Biology majors had to take the
beginning courses, plus those five courses. They're only one-
quarter courses, each course, so I worked in several of those.
But I wound up in later years teaching animal behavior
along the way—three times, before they got an animal
behaviorist. He happened to be in psychology, so it dropped
out of the biology department. And I wound up in the later
years teaching primarily ornithology and other vertebrate
zoology courses such as mammology.
I complained to Cal State Hayward at one point. Some of my
students wanted to take mammology and they never offered it
except in the summer, and they had to work in the summer and
couldn't take it. They always hired somebody from off campus
to teach it and about every other year it was offered. Well, I
said, "Why don't you offer it in a regular term?" And he said,
"Fine. You do it."
Chall: And there you were.
Cogswell: So I did it even though I never had a course in mammology. But
I taught it four times, 1 believe, three or four times, three
times at least. I don't know whether 1 did a good job of it or
not, but some people survived it and learned something about
mammals, I'm sure. I never taught the herpetology and
ichthyology courses because it's not my interest, and they had
Dr. [Samuel] McGinnis who is an expert in those. He came at
the same time I did.
Chall: How long were you at Cal State?
Cogswell: From '64 to 1980, therefore sixteen years. I taught again in
'82. I officially retired in 1980 but went back one quarter in
'82.
Studying Garbage Dumps, Birds, and Airports: Howard Cogswell
Learns to Fly
Chall: Now, during that period of time you were you flying a plane?
When did you start flying, Howard?
Cogswell: I flew--I had a grant. My only major research grant during my
years at Cal State was 1968-71. It was originally from the
U.S. Public Health Service but it got transferred to EPA when
Chall:
Cogswell:
that was set up. It was on the study of solid waste disposal
and bird hazard to aircraft.9
I had written the proposal for that grant following an
initial study at Mills College. I did a one-year study without
any funds my last year at Mills before my sabbatical. I had
about four or five students working with me in the field work
at the Oakland Airport. The new Oakland Airport with the jet
runway had just been built in Oakland. I wrote to the Port if
Oakland saying, "You have a garbage dump on each side and there
is a potential hazard."
At that time it was in the news because of what had
happened a year or two earlier—that a four-engine jet taking
off from Logan Airport in Boston had crashed into the Bay
killing everybody on board after having struck a flock of
starlings that flew up from the dump on the airport. American
airports and airlines don't like to talk about this problem,
but it's a problem in many situations.
So I had done that one-year study there for the Port of
Oakland and my department chairman at Cal State Hayward, Art
Smith, knew about it when he hired me, I guess, or he found out
from material I supplied about what I had done at Mills. So he
urged me to send in the proposal because he got the
announcement of these research grants available under the Solid
Waste Act. And I applied for the grant and was notified that
it was approved, but not funded.
Well, that's a great help.
I had to ask, "What does this mean?"
"Well, this means the grant is approved and if the funds
last it will be funded this year."
But they couldn't say when. They had to go down--I was way
down the priority list, I guess, with funds. So in 1968 1
agreed to teach summer quarter at Cal State Hayward. And I
think the first of May they let me know that the grant was
funded [laughter] --after I had already agreed to summer
quarter. So 1 hired John Luther who had then just finished his
master's degree at Cal State Hayward, or was just finishing.
9In governmental circles, the term "dump" is used only for sites that are
essentially lacking management for health or pollution-control aspects.
Managed sites are "solid waste disposal sites" but are included in the term
"dump" herein. --H.C.
Chall:
Cogswell;
Chall:
Cogswell;
Chall:
Cogswell;
Chall:
Cogswell;
Chall:
Cogswell:
Chall:
Cogswell;
He was one of your students?
He was my first graduate student to complete—or second one.
The first one did a plan B study, a laboratory study—didn't do
any field work. And Luther did field work for his thesis.
Anyway, he sort of ran my team of people. We hired a bunch of
observers and got the thing organized. And he operated it
really for me—with lots of conference with me because I had
very little time to go into the field with him. Started up in
the summer of '68. And we studied all the garbage dumps around
San Francisco Bay except two that wouldn't let us in.
Those are right down here— South County?
Thirty-seven of them around the Bay.
there were then.
Both sides of the Bay?
Thirty-seven of them
All sides, all the way up to Suisun Bay, in fact.
Okay.
San Pablo Bay, the entire Bay Area. We added two more in the
second year of the study— three more dumps near Travis Air
Force Base, because Travis Air Force Base— after my grant was
underway and in the first year of the study— it would be '68,
'69, I guess it was in the winter of '69— there was almost a
disaster in Travis from striking birds. And the Public Health
Service— it was still under the Public Health Service then-
representatives came out and they visited Oakland Airport with
me and they visited Travis Airport. Those were the only two—
or at Hamilton. No, we didn't go to Hamilton. Hamilton Air
Force Base was cooperative; we got in there and they didn't
have a dump right near by but they did have some birds
transiting to the area.
And most of these birds were gulls?
Gulls. Most of them were gulls. But anyway, you asked me how,
when did I start to fly?
Yes, exactly. [laughter]
From the time I submitted my grant application for this study—
and before it was funded, long before it was funded, I won a
free flying lesson at a drawing at Southland Shopping Center.
Chall:
[laughs]
Cogswell: They had a small Airplane in the shopping center one time when
I went down there and were giving out tickets, you know.
Chall: Sure, why not?
Cogswell: So my first free flying lesson was then worth five dollars or
something. It only lasted twenty minutes, that flying lesson.
Chall: You took off from where? The Hayward Airport?
Cogswell: From Hayward Airport. We'd fly around a little bit and come
back down, that's all.
Chall: Well, but it must have intrigued you?
Cogswell: So I signed up to become the pilot. I had put in the grant
application requesting money for rental of an airplane with
pilot. And I was to be the observer, to observe gulls at the
dumps and their flight routes.
Well, by the time I got the grant funded, I already had my
pilot's license, but I was not a commercial pilot. I still
intended to follow through as I had specified in the grant. So
I hired a commercial pilot with his plane once. We went around
parts of the South Bay which I knew intimately already. I had
flown--by that time I had my own private pilot's license, could
fly a plane. I didn't have an airplane yet; I flew the rental
airplanes .
And I had applied--! don't remember just at what point--
whether I had applied for special routes at that time or not,
but anyway, we were trying to go down to see how he would work
and we flew over the Hayward dump which was right close to
Hayward Airport. We couldn't circle there without special
permission, so I don't remember whether we circled there or
not, but we went on down to Turk Island which is outside of the
control area and in the Fremont Airport vicinity and Newby
Island Dump, a big dump was adjacent in Milpitas. But this
commercial pilot, very competent pilot, couldn't recognize
things from the air, did not understand at all, "I want to
circle that dump over there." I wanted him to do it without
conflicting with the air traffic which was also coming to this
small airport, uncontrolled airport. You have to watch the
traffic, so you'd get in the pattern and you'd go around, touch
and go. It was so foreign to him we spent all the time almost
arguing about where to go. It was an utter waste of time!
Chall:
He was just used to flying from A to B.
Cogswell: He was good at taking off, and flying, and going to the
destination, coming down, and landing.
Chall: Exactly.
Cogswell: That's what he was trained to do. But to use the airplane for
observation--he paid no attention to the ground. In fact, it's
dangerous of course for the pilot to be looking at the birds
when he is flying in a situation like this, so I didn't want
him to look at the birds. I would look at the birds and he
would fly the route.
Chall: That didn't work. So you began to do both?
Cogswell: That didn't work so I wound up being the pilot throughout this
three-year grant from then on.
Chall: And observing?
Cogswell: At first I was using a student- -no, I had an observer with me.
I couldn't do the observing.
Chall: But you knew where to fly?
Cogswell: I knew where to fly. And I could see birds, you know, out of
the corners but I couldn't tally their numbers or follow their
routes or anything else.
Chall: So you took your graduate students?
Cogswell: I had graduate students for a while until partway--! think the
rest of that year, almost the first year I had been using
students. Not all of them grad students, some of them were
undergrads.
Chall: Do you have to get a tremendous amount of liability insurance
for this?
Cogswell: That's what I got called on. I got a call from the grant's
office, the foundation office which administered my grant, and
they had somehow or other—they got insurance for me, even
though I was not a commercial pilot. They did take out
insurance liability. Paid a very stiff rate for it—though the
hours that I flew were very limited, of course. They had to
look down their insurance liability categories and the only
thing having anything to do with birds was a bird herder.
Well, a bird herder is sometimes exposed to dangers in the
air. That's a pilot who uses the airplane to scare birds off
50
of croplands, and so on, you see? So you're getting the birds
all flying up in alarm, they've been deliberately trying to
scare the birds. We were trying not to scare birds--fly high
enough--500 feet up. We didn't usually scare the gulls at all.
Chall: That's what you were trying to find out.
Cogswell: So anyway, but that's the insurance they had to pay. However,
I had to lay off all the people as observers and hire non-
students when the chancellor's office learned what I was doing.
I didn't know there was any rule, but the grant administrator
from the foundation called up one time: "Dr. Cogswell, I
understand—we've been notified by the — requested from the
chancellor's office to verify whether you are violating trustee
regulation number..." whatever it was— fifty or something. I
didn't know what trustee regulation number fifty was—never
heard of it!
Chall:
Cogswell ;
And it seems that years back state colleges used to use
chartered airplanes to transport their athletic teams. And Cal
Poly's— Cal Poly San Luis Obispo's football team coach and
everybody went down in a crash which I think killed either all
or most of them and so they were faced with this huge problem.
It turned out that the chartered airplane they had was not
really insured, at least inadequately. So they passed this
regulation that it was absolutely forbidden for any student or
faculty member--! think it's any student— to fly in college or
university sponsored activities, except in a scheduled airline.
It didn't keep me from flying, but it kept all my students
from flying. I hired Sharon Daehler. She was good. She flew
with me from the start, even when I was still learning how to
land, believe it or not. And I didn't always land well. I
remember once we bounced at least thirty feet in the air.
Terrible! [laughter]
At Fremont. It's all right, you keep right on flying then. We
were doing touch and goes, is what we were doing, because you
stay in the pattern and you don't conflict with other traffic,
you see. Here's the airport and here's the dump [gesturing].
If you touch and go here, you come around and you go right
around the dump, see? Around, just went around. So you had to
when the dump was right next to the airport like that. Anyway,
she became the record keeper and secretary for the project
after that.
I just hired non-students as observers. John Winter, who
was a Forest Service lookout, he was one of the best I've ever
51
met at reading a map. For years he had been a summer forest
lookout—he knew maps thoroughly. And he could follow a map as
you flew at eighty to ninety miles an hour; he knew right where
he was all the time. Not everybody did.
And Rich Stallcup was one of the helpers. He was a student
at the time but then he dropped out--I think he was in that
first year. I don't remember who else I had after it because
John Winter was my observer when we flew the North Bay, all the
time. And he wound up taking over the whole Marin/Sonoma
County area for ground operations, too.
Oh, I know who another observer was--Mel Hixon, who married
Sharon Daehler while my project was going on. [laughs] They
were both working for me.
But that's how I began flying. This was a two-seat
airplane which Bessie and 1 had bought which I used in the
project. It was our personal aircraft; the grant did not buy
the airplane. After the grant was over, the three years were
over, we began to use it for trips ourselves. We went once to
Vancouver in it and back to see our cousin.
Chall: Does Bessie fly?
Cogswell: No, well, she flies as a passenger.
Chall: I see, but she didn't learn how to pilot?
Cogswell: No. No, she took a pinch hitter's course, once, theoretically
to enable her to land the airplane in case I passed out or
something. But that two-seater was so limited for baggage; we
could hardly go any distance because we could take almost no
baggage in it. Two people are almost a full load, so we
finally bought a four-seater, which, when we traveled by
ourselves, had ample room for baggage. If you had four people
as we did on a trip to Mexico once, we had very limited
baggage, again.
Chall: Are you still flying?
Cogswell: No, no.
Chall: Now, was there any change? They did get rid of garbage dumps
around the airport, didn't they? Is that a result of your
study?
Cogswell: Not all of them. Moffett Field still has one on each side, I
believe, and certainly on the Sunnyvale side they do. The
52
Oakland Airport ones were finally closed. Oakland had a
potentially disastrous situation. San Francisco airport had
dumps to the north- -very small dumps to the south but two major
ones to the north. And in the first year of my study—one of
those was closed after the first year, the other one was closed
after the second year and the number of gulls just dropped at
San Francisco airport very dramatically because of that. But
there are still some dumps operating around the Bay.
Chall: But your study really had an effect, you think?
Cogswell: I don't know.
Chall: You don't know?
Cogswell: I don't know. I published two papers out of it. There was
never a campaign nationwide. Another phase of the project was
for me to travel to various other parts of the country,
primarily coastal areas, which I did all the way along the Gulf
Coast up the Atlantic Coast to Maine--Pacif ic Coast up to
Seattle. 1 visited various airports and evaluated them in a
very quick fashion relative to the dumps that were there.
And they'd vary. There were some very bad situations at
Norfolk, Virginia which I understand finally got cleaned up.
Charleston, South Carolina had a situation when I visited there
where they'd dump a quarter mile from the end of the main
runway. The dump was not on the airport, it was just across
the road from the end of the runway. They had a strike on the
average once every day.
Chall: Oh, my!
Cogswell: A strike where they struck a bird. Most strikes do not cause
any real disaster. They cause damage in many cases to the
airplane but not major damage, most of it. But if a bird is
ingested in the engine, at that time it was then a $65,000 task
to tear the engine apart, clean it all up, and replace the
broken blades and so on. That's if it doesn't bring the plane
down.
Chall: Yes.
Cogswell: And the situation at Travis that almost caused a disaster was a
hospital plane from Vietnam loaded with wounded headed for a
hospital in southern California. They had to land at Travis
for some reason, I don't why, and they were to go on down to
southern California. They took off full of fuel and everything
for the flight to southern California under conditions in which
53
the tall control tower was up in the clouds. The clouds were
low, though.
II
Cogswell: At Travis the hospital plane was cleared for take-off, and just
as he reached the point where he was lifting off from the
runway, he encountered a flock of gulls which all milled up in
the f r >nt of the airplane. But the gulls won't fly into clouds
either, see?
Chall: Oh!
Cogswell: So the jet airplane was going up into the clouds. Well, he
struck some of the birds and by the time the pilot had reacted
to what had happened, he was already through the dense layer of
low overcast. And at the top of these low overcasts that are
common in the Bay Area it was only less than 2000 feet up,
commonly less even than 1500 or 1200 feet up. So he was up
above the clouds but he only had two engines. The other two he
had to shut down because they'd each ingested a bird.
Chall: Ooh.
Cogswell: Had he not taken the act of shutting the engine down, the
engine may have exploded and then there's real disaster. When
there's a blockage in a jet engine it overheats right away and
red lights start flashing. It overheats very rapidly and the
pilot immediately shut it down. He had two engines out of four
operating a full-loaded airplane. But he was flying.
Okay, why didn't he come back to Travis? Because the
clouds are below the minimum for relanding with anything other
than full power.
Chall: Gracious!
Cogswell: With that circumstance: we haven't lost power, it's an impaired
airplane, but it'll still fly. He flew all the way to southern
California on two engines and landed safely.
This was a situation when we interviewed the powers that be
at Travis. The commanding officer wouldn't meet with the
Public Health Service people that came. The commanding officer
sent his executive officer, a man on duty.
And the Public Health Service people asked him after this
situation was reviewed, "What do you think, sir, is the degree
of hazard from bird strikes at this airport?"
54
His answer was, "Deadly."
He was an honest man.
Chall:
Cogswell :
Yes.
Chall:
Cogswell :
Chall:
Cogswell:
Chall:
Cogswell:
Chall:
Cogswell:
But Travis had a dump on this side and then they had two long
runways offset. They're not parallel—they 're parallel in a
sense, but they're not next to one another so it's a long
runway. It's a mile and a half, two miles—no, it's nearly two
miles each of those runways. That's four miles long, the
actual runway system is. Then they had a dump to the southwest
beyond the end of their runway, and they had another dump
beyond the end of the runway to the northeast in the opposite
direction. The local communities operated those dumps, but the
air force had its own dump right in the middle almost between
the two runways .
Ye gods! So what happened?
My recommendation was they close that dump right away.
Sure.
Which they didn't do.
Oh.
They operated according to all the rules — it was a clean dump
as military dumps go. But it still had some gulls attracted to
it, especially because of the two bigger dumps at either end.
Yes, surely they'd be flying—
And they'd go from one to the other right down the runway,
[doorbell] Sorry about that. [tape interruption] I don't
know what happened because I never followed up on that.
55
Author, Water Birds of California1
Chall: Now, I want to ask you, about when it was that you wrote your
book?
Cogswell: Water Birds of California?
Chall: When did you do it?
Cogswell: It was published in 1977. I started it while I was at Mills
College. It was a different book then. It was to be Water and
Large Land Birds of the Bay Area. The first natural history
guides that UC Press had were focused on the Bay Area and then
they had some just focused on southern California. I
submitted—in fact, one--I forgot whether it was complete—no,
it was just species accounts, I think, that I had submitted
when it was Water and Large Land Birds of the Bay Area.
But the press by that time was beginning to take a more
statewide view, and so they f inally--they didn't reject it in a
sense; they said, "Can you do one of expanded coverage across
the central California including the Sierra?" So you had that.
And Ken Stager of the Los Angeles Museum was to do a southern
California one, comparable. Two books. Water and Large Land
Birds would be one and Small Land Birds would be another book.
Anyway, I did work on it on and off for years, but when I came
to Cal State Hayward I was finishing up the text of the first
one.
Art Smith was the series editor. He was my department
chairman at Cal State Hayward and he and I had several
discussions about it. I finally went back to work on it when
it became statewide and was narrowed down to just water birds.
There were to be two books on land birds, then, statewide. So
it got postponed and postponed and postponed many times, but
the last year or year and a half or so was when I wrote it.
Chall: When you were still on faculty?
Cogswell: Oh, yes. '76-77.
Chall: Did you have your students helping you then?
Cogswell: No, they didn't help on the book.
10Howard L Cogswell, Water Birds of California (Berkeley: University of
California Press, 1977).
59
IV IN RETIREMENT: CONTINUING ACTIVITY AND CONCERN FOR THE
ENVIRONMENT
John Thorpe's Mitigation Proposals for the Shorelands Project
Chall: When John Thorpe came into the Baumberg Tract area—now you
gave me, during our first interview, a lot of information about
your interest in his plan, at least with respect to snowy
plover--the snowy plover islands, I guess. Is that what they
were called?
Cogswell: His proposed mitigation. His first mitigation offers were very
poor, but as time went on and he gradually realized—even
Richard Murray and others told him, "Yes, we've got a lot of
wetlands, and you've got to do something to mitigate
destruction of it." And he became aware of that, convinced of
it. He did come up—Murray came up with these concepts for
islands--! think they were debating whether they would take
over whole sections of some of the Leslie Salt ponds to the
west, not in the Baumberg Tract but out in the area to the
west, and modify them for the mitigation activities. The major
trouble was that Leslie Salt never let it be known that he
could even do that. He didn't have any option on those other
properties .
Chall: But you felt that if he could be granted this property, that it
might work, that this might be a possible solution.
Cogswell: I thought it was worth looking at, that's all. That's all I
ever expressed. I thought that several people of unbiased
opinions about the ground objective but competent to evaluate
the habitat should have evaluated the proposed mitigation--
whether it could be done and maintained- - that ' s all.
Chall: When all of this was going on, besides your own contacts with
Thorpe- -and there was in your material, letters that he sent
you- -were you in contact with the people who were doing and
60
evaluating the biological studies like Steve Foreman, Paul
Kelly, Peter Sorensen?
Cogswell: Paul Kelly was a student of mine at this time. And then after
he finished his master's degree, he went to work for the Fish
and Game Department and was the representative to visit
properties in Alameda County, anyway- -perhaps Alameda and
Contra Costa County--to evaluate each proposal for development
in this area and report to his superiors in the Fish and Game
Department. So that's one reason he got in there; he had been
in there when he was a grad student of mine.
Chall: But you weren't in contact with these so-called third party
people?
Cogswell: No. Foreman was not involved. He wasn't involved until very
recently.
Chall: Well, he did one of the first biological studies for Thorpe--
for background for the EIR/EIS [Environmental Impact Report/
Environmental Impact Statement].12
Cogswell: For Thorpe?
Chall: Well, for the company that he worked for, WESCO.
Cogswell: For the consulting firm.
Chall: Yes, right. And his work in the biological study was then used
by the people who did the later study. Karen Weissman and Tom
Reid--Thomas Reid Associates.
Cogswell: You've contacted more consultants than I ever have. [laughs]
Chall: All right. Now were you ever in touch with Mr. Storm, who was
with the city [Hayward] planning staff?
Cogswell: Martin Storm, sure.
Chall: You knew him from HASPA?
Cogswell: HASPA, right, because he was the city's representative to the
HASPA agency. Their staff recommended him.
12"Biological Assesment for the Proposed Shorelands Project," Prepared
by Western Ecological Services Company [WESCO], June 1987.
61
Plans for the Baumberg Tract Restoration Project
Chall: Now, in terms of the restoration, since you know intimately the
Baumberg area and the Baumberg Tract, you are one of the public
persons who gets an occasional notification, I guess, of a
meeting. Do you have any input into what is being planned? Do
they ask you? Do you submit --
Cogswell: By Foreman's group now?
Chall: Yes, and Wilcox? Yes, Foreman is, again, in charge.13
Cogswell: Yes, his firm is now coming up with a plan for restoration
which the Fish and Game will accept or not accept as the case
may be .
Chall: Fish and Wildlife Service, too, I presume.
Cogswell: No, it's for the state Fish and Game Department.
Chall: Fish and Game, that's right.
Cogswell: Primarily. The U.S. Fish and Wildlife Service will probably
look at it, but the money is coming from the state for his
study.
Chall: That's right.
Cogswell: I've been to two meetings. They had one early on to sort of
ask people what their concerns were.
Chall: Yes.
Cogswell: And then they had another one after they had made some progress
with, "These are the sorts of things we're looking at," and
possibly this and possibly that.
Chall: Yes.
Cogswell: But they weren't yet saying this is alternative A, B, and C.
In general, they're proposing to open more than half of it I
think to tide action- -make tidal marsh out of it, which means
13Steve Foreman, now with LSA Associates, is project manager of the
Baumberg Tract Restoration Project. Carl Wilcox, Environmental Services
Supervisor with the Department of Fish and Game, also has the title project
manager.
62
Chall:
Cogswell:
Chall:
Cogswell:
Chall:
in order to do that they will have to excavate Mt . Eden Creek—
quite a bit of it.
Carl Wilcox told me that they have been thinking--! don't
know whether he means the consultants have been thinking, or
they, the Fish and Game have been thinking- -that they won't
have to get a permit from the BCDC [Bay Conservation and
Development Commission], for example, because they are not
going to dredge the lower tidal portion—the part that is now
fully tidal—they're hoping just to dredge only the upper muted
tidal part.
His idea was to dredge the upper part which is not fully
tidal because it's been banked up by Cargill Salt years ago—
Leslie Salt—and then let it scour the outer channel by itself
in other words. Well, that would be a long process if they do
it. I think Foreman's group, if they haven't investigated
that, they'll have to decide how much excavation is necessary.
They've got to get water there in quantity in order to have
tide flow adequate to develop good tidal marsh.
But the whole thing is they're trying to provide habitat
for the salt marsh harvest mouse and the clapper rail, both of
which are best served by having tidal marsh, the clapper rail
absolutely requiring it. They're also trying to have habitat
for the snowy plover.
Right, [laughter] which has a different habitat.
Which has a very different habitat. So they've got to decide
how much of each type of habitat they're going to have and how
it's going to be maintained.
That's really a problem because there weren't that many plover
areas there. Well, you saw what there was. But to set it up
for very specific plover habitat-
Well, it has to be managed. As it was, the reason that snowy
plovers were there in such quantities is because for a time it
was excellent habitat. The area that was excellent habitat is
no longer excellent habitat because the plants are growing in
it now and snowy plovers don't get along with any significant
number of plants.
So do you think that they can turn this into something that is
habitat for three species, two of which require a different
habitat as the land is now?
Cogswell: No, they'd have to manage it.
63
Chall: And that's expensive.
Cogswell: Yes, yes, they'll have to manage it. To maintain snowy plover
habitat, they've got to have bare ground and bare ground with
certain special features. They can't keep it bare ground as
long as it rains on it and the salts are leached out of it. If
the rain water is drained away—
There's some excellent work going on at the Oliver Brothers
North, north of Route 92, in those salt ponds. [Map 1] That's
a different consultant firm. They've come up with a plan there
which is hopefully going to work. And there, they're going to
try to maintain snowy plover habitat over most of the property
because that's what it is now. That's where many of the snowy
plovers have gone. And in order to maintain the quality there,
they're going to plan to flood the area in late September, just
after the nesting season's over—flood it with salt water—and
maintain moisture in the area and then drain it off again to
allow it to dry up. And of course you have to allow for rain
water, also.
Chall: Who's managing that? Is that being run by HASPA?
Cogswell: It's HARD [Hayward Area Recreation and Park District] who has
authorized the study. It's a big, thick study, now.
Chall: So that's the Hayward Area Shoreline?
Cogswell: For the Shoreline Interpretive Center-- just west of that.
Chall: Is that HARD property now?
Cogswell: It's HARD's now.
Chall: Okay, then I know where that is.
Cogswell: Francesca Demgen is the leader of that team- -Woodward-Clyde
Consultants, downtown Oakland. I went to two of their work
sessions, but didn't go to all of them. I was representing—
Ned Lyke and I were the two members of the citizens advisory
committee. Ned Lyke from Cal State Hayward. L-Y-K-E--Edward
B. Lyke. He goes by Ned, even though his name is Edward,
[walks away and returns] I have so much unfiled it's terrible,
but I have here a document, the EIR--the plan for this — it's
large; they just completed it a month or so ago.
Helping to Set Bay Area Regional Wetlands Goals
Chall:
Cogswell;
Chall:
Cogswell:
Chall:
Cogswell :
Chall:
Cogswell:
Chall:
Cogswell:
Well, I think since we're now moving off Baumberg, maybe that's
about all we need to do. I just wondered, however, where you
were in terms of the environment as a private citizen, as it
were.
I have worked for the past three years intermittently on the
Regional Wetlands Goals. I don't know whether you know about
that project or not. It's a multi-agency study. They have
just now, this week, been holding their public workshops,
public hearings so to speak. They're not called hearings but
workshops, on the wetlands goals for the entire Bay.
I see.
[walks away and returns]
that.
I know I have a public review of
That's a major undertaking.
Somewhere here — these are the proposals."1 This is the primary
one. But then for each broad area they have alternate views.
These are just different ways. My comments here—here's a map
of the original historic conditions: 1770 to 1820,
approximately. And present conditions to compare with these,
you see.
I see. Tell me about Regional Wetlands Goals. Is there an
administrative—a state or a national — structure?
It's being administered by the San Francisco Bay Area Wetlands
Goals Project.
Is that a private-
No, it's a multi-agency thing. The head people are the— the
resource managers group include San Francisco Bay Conservation
and Development Commission— BCDC, in other words, state
Department of Fish and Game, the San Francisco Bay Regional
Water Quality Control Board, U.S. Fish and Wildlife Service,
National Marine Fishery Service, state Coastal Conservancy,
state Department of Water Resources, well, these are all
representatives .
1998.
'Regional Wetlands Goals' Draft Report for Public Review. June 26,
65
Chall:
Cogswell:
Chall:
Cogswell:
All the agencies of the Bay Area,
Chall:
Cogswell :
Chall:
Cogswell
Chall:
Practically, yes.
I see. And you are a representative, also?
I'm just one of the volunteers who has worked in the
development of this. I'm a member of their "other wetland
birds" focus team. They have five focus teams that they worked
with as they were developing these goals. They subdivided the
work, in other words. They had a shorebirds and waterfowl
team; they had a mammals, amphibians, reptiles, and major
invertebrates — some of the invertebrates — terrestrial
invertebrates, they say--team; they had another birds team;
they have a fish team; and they have a plant team.
Oh, my!
Five teams. And when they each developed the goals for their
own group of species we had to try to merge them. We had
integration sessions where we had all these teams together
trying to argue back and forth and get it out. So this is the
document that came out. This is not a thing that will be-
there '11 be no enforcement of it possible, because there are so
many agencies involved. It will be the expressed goal and
hopefully local agencies will make decisions in land use to try
to approach these goals. These are long-range goals, not just
for ten years, but fifty to a hundred years is the time frame.
So that's your present activity?
Well, my present activity is mostly other things,
records. [sighs]
Well, you certainly are keeping those.
Bird
Analyzing Environmental Regulations for Environmental
Protection tf#
Chall: Howard, I've read the biological opinions in the EIR/EIS and
found out what developers like John Thorpe had to go through
and what the agencies had to go through in order to make
decisions on the Baumberg Tract. I wondered how people—all of
the agency people, as well as you on another side of this
problem- -feel about the regulations that are involved in these
studies— passing all the so-called hurdles for the EPA and Fish
66
and Wildlife, Fish and Game, BCDC. It takes a lot of time, it
takes a lot of money. The regulations might seem too
difficult. How important are these regulations for the
preservation of the ecosystems?
Cogswell: Well [coughs]--! had a cough drop and hopefully it will work.
Chall: It worked for me.
Cogswell: From the standpoint of environments in general, there is a move
now becoming more and more widespread of plans to preserve
"whole ecosystems." The people who are so proposing sometimes
don't understand what an ecosystem is—whole communities would
be a better way of putting it: commonly, large communities and
in a large quantity—and therefore preserve all of the animals
and plants that are a part of that community, at least in an
adequate amount.
Now, Orange County is famous for having done a lot of that
through the Irvine Ranch and so on where they have a huge ranch
area being subdivided gradually for development purposes. They
establish large areas of adequate habitat for the native
vegetation which they are otherwise destroying in large areas.
That may be a better route in the long run. Some people think
it is--to preserve more than they ever would if they just take
each piecemeal development and argue about that particular
location.
Well, all of that's fine if it is a widespread, large,
area-type habitat. Wetlands are not that kind of habitat. I
don't think it will work well with wetlands simply because
wetlands by their very nature are border communities. They're
a border between water and land and you don't have big acreages
of them available to do that with, for the most part. It's
true that on the San Francisco Bay, if you had that approach--
and partly this wetlands goals project has that approach. But
they're making the assumption there will be no more productive
salt ponds, that the whole salt company will cease operation.
Cargill Salt has already spoken to this document. I was at the
meeting where they did. And there's no alternative in here to
continue to save wetlands of this marsh sort with the salt
ponds still in operation.
Chall: Well, now, isn't that rather short-sighted?
Cogswell: I think they ought to have had an alternative, or an interim
goal, let's say. They could have called it an interim goal,
but the people who worked on this for the most part felt that
in the long run there is not going to be a salt company
67
operating in the San Francisco Bay Area. They've already
closed in the North Bay, they've closed Moss Landing, they've
closed part of San Diego Bay, and so they look at these
situations and they make the assumption that in the long range
future it's going to happen here also.
Chall: Well, fifty years from now, maybe that's true, but in the
meantime--
Cogswell: But as far as Cargill is concerned, Paul Shepherd at the
meeting in San Carlos this past week Monday night said, "Salt
operations in San Francisco Bay have been here for 150 years.
Why do you expect it to change in the next fifty?" [See
Appendix B]
Chall: But besides the salt aren't they concerned about development,
building, housing, or whatever might be?
Cogswell: Yes, but I'm just saying that they don't have a big area in
which you can take the habitat conservation approach of, "We'll
set aside this whole area, if you let us develop this." That's
really how that happens in Orange County. "If we can have this
big area to develop, we will give you this area over here."
But it takes big land ownerships and the only such big land
ownership around San Francisco Bay is Cargill Salt--big
ownership.
Chall: I get it.
Cogswell: So it won't work so well. And wetlands, in general, are by
nature either linear or spotty in their distribution, so
they're increasingly impacted despite the fact that we've had
several administrations of our government — federal and state
governments now, both parties, Republicans and Democrats — that
have adopted "no net wetland loss." But it has continued to be
lost. Not as rapidly, not nearly as rapidly as it used to be,
but there's still some loss going on.
Chall: And is that loss because even with all the studies, EIR/EISs,
that--
Cogswell: Partly. Partly it's because mitigation is required but is
either never completed or does not work the way it was supposed
to work. Partly because the development is allowed to proceed
and the mitigation comes later and in the meantime the wetland
value has been lost for that particular location.
Chall: So it means that despite all the regulations and the work that
goes into studies that sometimes they're not enforced?
68
Different administrators look at enforcement in a different
way?
Cogswell: The Clean Water Act, which is the primary one that preserves
wetlands--
Chall: Right.
Cogswell: Section 404 I think it is of the Clean Water Act has had little
pieces cut out of it--or not cut out of it, but modifications
made. One of which I didn't learn about until recently with
regard to an area immediately adjacent to—almost immediately
adjacent to--the Baumberg Tract. It is adjacent on the eastern
most portion.
Chall: That's the Oliver—
Cogswell: Oliver West property. The Oliver West [Oliver Hayfield]
property west of the railroad, just east of the eastern most
part of the Baumberg Tract. [See Map 1 and Appendix D] It
used to be that the habitat there was very comparable to that
eastern most part—had pickleweed, had ponds, gun club ponds
which were in there, and wetland values. It has been claimed
now by the consultant for the city of Hayward—although, I
believe, paid for by the proposed developers who were never
named—that there's less than a half-acre of wetlands in that
entire property.
The basis for their claiming—they don't say in their
report, but I believe is a clause of the Clean Water Act called
"prior converted wetlands". Under that clause, if wetlands
were converted to agricultural production prior to 1985, they
are exempt. That was a weakening of the Clean Water Act that
was passed. If converted prior to 1985, then, they are exempt.
I believe that it was the intent of that aspect of the law to
let farmers off the hook who had converted to farm production
and therefore they wouldn't be required to mitigate their
damage to the wetlands if they did it before 1985. But now we
have a situation in the Oliver West where: oh, yes, it was
farmed intensely, so intensely, in fact, that most of the
wetland indicator vegetation was not there because it was
farmed deliberately out of existence. This winter it was
flooded with a solid sheet of water over the whole property,
but they pumped water out of it rapidly. Ron Barklow can give
you pictures of it, he says.
But you go there two weeks later after the big heavy storms
and there's not a shred of water on it because they pump it all
69
off. Okay, so it's farmed intensely. As long as it's farming,
it's legal.
Chall: I see.
Cogswell: But now they're proposing to build 578 houses on it. We, at
HASPA, the citizens advisory group, recommended against it.
HASPA, in a weak fashion, recommended against it because other
components of HASPA wanted the development. On the rest of the
property, particularly on the east side of the railroad, the
proposal is for light industry plus a sports park. Dick
Sheridan, head of the HASPA agency—right now he's trustee of
HARD, board member of HARD--they need a sports park, he says.
Well, okay, the developer promises a sports, park to them.
[Weber Property, Map 1; Appendix D]
Chall: I see.
Cogswell: But only if he gets 578 houses on the west side. They have to
fill that west side land any where from two to eight feet deep
with earth from the hills in order to bring it above the level
where it will survive a hundred-year flood.
Now this is what the city of Hayward is going to do. This
is an instance of--I think--! can't prove it, but they farmed
that property so intensely since Alden Oliver died. Gordon
Oliver took over the property--! don't know—Gordon took over
the Salt Company. I think he inherited all of this.
Adolph Oliver, also a nephew of Oliver, is a member of the
HASPA citizens advisory board. He teaches geology at Chabot
College.
Chall: Oh.
Cogswell: But he's not an owner of the property. Gordon inherited the
property.
Chall: Well, the property was in the hands of the Congregational
church, I think.
Cogswell: Well, that's because Gordon died and that was in his will.
Chall: He left it in the trust. So what you're saying is that the
regulations that have been set up by the Clean Water Act and
other agencies are not always as strict as originally drafted.
Cogswell: There are numerous little ways in which people can get around
them.
70
Chall: So you feel that citizens and others should be watchful.
•
Cogswell: Very watchful, very watchful, yes.
Chall: So do you think that those regulations are not so onerous that
they shouldn't be reduced in scope?
Cogswell: No, I'll cite another instance. It isn't in the Baumberg area
but it's in an area that I knew very well because I studied the
bird population of it for Leslie Salt Company before '85.
That's the area that became a test case up to the Supreme Court
of the United States — the Coyote Tract in Newark which is right
across Thornton Avenue from the National Wildlife Refuge
headquarters.
In "84-85, Leslie Salt Company started to build drainage
ditches on that property. They built a small basin to receive
the water where it could drain into an adjacent Caltrans
[California Department of Transportation) ditch next to the
freeway. They got stopped right away because--! don't know who
it was that reported it—either somebody from the refuge or
Margaret Lewis from Newark who lives nearby and was always
watching. So they had a cease-and-desist order issued, first
by the Corps of Engineers [USCE] and then confirmed by EPA
that, yes, it's proper that this should not be done without a
permit from the USCE. Leslie Salt claimed they didn't need a
permit and that the United States had no jurisdiction over
this. Okay? So they took it to court.
And part of my study — and three other consultants were
doing other studies. Michael Josselyn was studying the plants,
a soil scientist from Louisiana or somewhere, supposedly tops
in his field, was studying these soils, and I was studying the
birds. Maybe that's all that was going on. But we each
studied separately; we never saw what the other consultants
were doing. We each gave our separate reports to the company.
I was not to evaluate it for wetlands at all— just to
observe what birds were using it and what habitats they were
using and how many of them- -which is what we did.
It went to the U.S. District Court because the company sued
the government for having issued a cease-and-desist order.
They complied with the cease-and-desist order, but they wanted
to get started on the development for industry. Anyway, this
is a 150-some acres property, the western portion of which was
by all indications obviously a wetlands: pickleweed in parts of
it, tidal water even reached part of it because of a pipe that
had been laid there. It originally had been diked off. It had
71
been salt crystallizers in the early years, the first Leslie
Salt Plant that ever existed. It was right there. But in the
district court which I appeared in as a witness along with the
other consultants--! was there by myself, just before Judge
[Charles] Legge--Judge Legge wound up granting the company more
than they really asked for.
But as a result of urging from the environmentalists that
were knowledgeable about it, the Corps of Engineers finally got
the U.S. Attorney to appeal the decision just within the nick
of time. They had thirty days or forty days, or whatever it
was, to appeal it. The government did appeal the decision.
The appeals court reversed Judge Legge 's decision and said,
"Yes, there's evidence that there are wetland values there that
the company is disregarding,
an interest in it."
And the U.S. therefore does have
Chall:
Cogswell:
The company still maintained through their attorneys that
the U.S. has no business here. That's what Legge agreed with,
that it is not wetlands, that it is not connected to tide
action. Or, it wouldn't be connected except, as Legge put it
in his decision, he says, "Water backing up through the pipe
which Caltrans put in without any special permission. Without
asking permission from Leslie Salt, Caltrans put a pipe under
their road when they put the road there. There wouldn't be
tide if there hadn't been for that pipe and therefore the
government is responsible for it being tidal."
Well, water in my opinion doesn't flow uphill; it always
flows downhill. [laughter] So the pipe is there, fine. The
level is lower than the high tide and it's evident that in high
tide water comes in there. It's only the west part-- 10 to 15
percent of the property that gets wet at any high tide.
There's another piece of wetlands that was excavated at the old
salt operations which gets water and stays wet for a long
while. Although the company appealed the appeals court
decision, and the appeal was filed with the Supreme Court, the
Supreme Court refused to hear it.
This is the State Supreme Court?
No, this is the U.S. Supreme Court. They refused to hear it,
which leaves the appeals court decision standing. Finally, the
company applied for a permit. They wouldn't apply for a permit
all this time, see?
They had a wetlands evaluation. The acreage was decided-
how much of it was wetlands. And it included this depressed
area that had been excavated--artif icial wetlands because it
72
Chall:
Cogswell:
Chall:
Cogswell:
Chall:
Cogswell :
had been excavated many years ago. They had to mitigate for
that. They had to preserve the wetlands that existed on the
west side, and they had to add to that.
I wrote an opinion as consultant to Michael Josselyn's firm
(Wetlands Research Associates) about the consolidation. I
agreed. In my opinion it's better for the wildlife in the area
and everything if the wetlands are all consolidated in a larger
area rather than having one little piece stuck over here in the
middle of urban development. Seven to eight acres over there,
I think, were to be added to the fifteen over here [gestures].
So they now had a wetlands being developed along the west side.
Some people say--well, the rest of it, they did get their
permit. They got their development permit on the other 100
plus acres. Big, new industrial buildings are going up there
now. So here was an area, where had the company paid attention
and finally accepted the fact that there was a Clean Water Act
that did pertain to part of the property. They could have
gotten their permit without spending the hundreds of thousands
of dollars if not millions that they spent on attorneys' fees.
They wound up having to do the same thing. They won't admit
that there was a waste, I feel, because they have other
properties they want to do the same thing with.15
So there's a value in these restrictions, even though they seem
onerous to people like maybe Leslie Salt?
They're more onerous to those who don't wish to comply.
But they do have—you feel that they have value to the
environment and for the preservation of wildlife?
Yes, they do.
And they should be honored?
If it's done properly. And Thorpe's problem with the
mitigation aspects — one aspect—was he never could bring
himself to do any mitigation on site. And he didn't have
permission from Leslie Salt— at least, they never let it be
known he did— to use their property adjacent for his
mitigation.
15This case is described by Gordy Slack, "Wetlands or Just Wet Lands,"
Sierra Club Wetlands Reader. Sam Wilson and Tom Moritz, editors, in Sierra
Club Books. San Francisco, 1996, pp. 215-223.
73
Chall: And nhen there v/ere other problems having to do with predators
and all sorts of things.
Cogswell: Hello! [greeting his wife]
Chall: Well, okay, I think we have company and just in time! Thank
you very much.
Cogswell: Okay.
Transcribed by Lisa Vasquez and Amelia Archer
Final Typed by Shannon Page
Regional Oral History Office University of California
The Bancroft Library Berkeley, California
California Water Resources Oral History Series
THE BAUMBERG TRACT: FROM THE PROPOSED SHORELANDS DEVELOPMENT
TO THE WETLANDS RESTORATION (EDEN LANDING ECOLOGICAL RESERVE), 1982-1999
John M. Thorpe
THE SHORELANDS PROJECT: THE UNATTAINED VISION
An Interview conducted by
Malca Chall
in 1997 and 1998
Copyright <D 2000 by The Regents of the University of California
John M. Thorpe
75
TABLE OF CONTENTS --John M. Thorpe
THE SHORELANDS PROJECT: THE UNATTAINED VISION
INTERVIEW HISTORY 77
BIOGRAPHICAL INFORMATION 80
I FAMILY BACKGROUND: THE COLORFUL LIVES OF JOHN THORPE'S
GRANDPARENTS 81
The Maternal Side: The Schwabs 81
The Paternal Side: The Thorpes 81
II EDUCATION: HAYWARD, MENLO PARK, STANFORD, BOSTON, AND OTHER
EXPERIENCES 89
Herman Mark and Albert Einstein 90
III ESTABLISHING A LAW PRACTICE IN HAYWARD 92
Winning Important Lawsuits 93
Workman's Compensation 93
The National Assessors' Bribery/Property Tax Scandal:
The California Class-Action Suit and Its Reward 93
Long-Term Interest in Property Development 96
From Whence the Special Thorpe Spirit? 97
IV THE SHORELANDS: ITS ORIGINS AS A SOLUTION TO TRAFFIC PROBLEMS 99
Working with the Leslie (Cargill) Salt Company 102
The Response of the City of Hayward 104
The Baumberg Tract: Marginal Open Space Value 105
V A BRIEF HISTORY OF THE BAUMBERG TRACT; SALT PRODUCTION;
AGRICULTURE; WETLANDS; REPUTED VALUE OF BAUMBERG TRACT TO
WILDLIFE 109
VI THORPE'S PLAN FOR THE SHORELANDS AND THE ULTIMATE
DEFEAT, 1982-1992 118
The Basic Plan 118
Problems with the Environmental Community 122
Plans for the Racetrack 124
The City of Hayward: A Roadblock 127
Attempts to Overturn the Jeopardy Opinion of 1987 129
Meetings with Representatives of Environmental Agencies 131
Attempts to Solve the Predator Problem 133
Lack of Support from the City of Hayward: Thorpe Drops the
Shorelands Project, 1992 133
The Finances: The Limited Partnership, Bankruptcy, and
Subsequent Continuing Litigation 134
76
John Thorpe's Personal Loss: The Historic House, the Classic
Cars 139
Background on Interested Commercial Developers for Shorelands 141
More on the Racetrack 142
The Corps of Engineers 143
The U.S. Fish and Wildlife Service 145
The State Department of Fish and Game 146
The Bay Conservation and Development Commission 146
The East Bay Regional Park District 147
The Media 148
"The Wild Edge" TV Documentary on the Baumberg Tract 148
77
INTERVIEW HISTORY--John M. Thorpe
Between 1982 and 1992, John Thorpe, a Hayward attorney
specializing in real estate, was inextricably linked with the Shorelands
Project. Mr. Thorpe was already well known as a developer of Columbia
homes in the Castro Valley hills, and for his role in uncovering the
assessors' scandals in Alameda and San Francisco counties during the
1960s. But it was his attempt to build Shorelands on the Baumberg Tract
in Hayward that kept him in the headlines of the local newspapers for a
decade .
The Shorelands Project can be summarized as follows: According to
his brochure, Mr. Thorpe proposed to "develop approximately 706 acres on
the former Baumberg Salt Plant site, and to offer approximately 500+
acres as wildlife habitat mitigation land." He planned to build, among
other things, a racetrack and ancillary facilities, an industrial
research and development complex, a hotel, restaurant, and family-
oriented recreation park. Five hundred or so acres of adjoining
marshlands and special habitat would be dedicated, for mitigation
purposes, to birds and other wildlife which his project might endanger.
Although this plan would encompass some 1200 acres, he had taken an
option on less than half that acreage from the Leslie Salt Division of
the Cargill Company.
Although the city of Hayward initially approved and perhaps even
encouraged this plan, the project faced trouble when it was examined
under the various state and federal environmental guidelines, and
closely scrutinized by local environmentalists. Never doubting ultimate
success, Mr. Thorpe pushed ahead with his ambitious plans for a decade.
He took out permits, got the necessary supporting documentation for the
Environmental Impact Reports /Statements (EIR/EIS), established an office
and staff, organized a partnership, raised funds, hired his own land,
bird and mitigation experts, revised his plans to meet objections, and
kept up a steady flow of correspondence on behalf of his project with
his partners, city staff, and many others.
Yet, in spite of spending millions of dollars, and exhaustive
efforts in many directions, Mr. Thorpe could not overcome the objections
of the Fish and Wildlife Service—not to mention the environmental
community—to the construction of a racetrack on the Baumberg site,
without being able to provide the necessary mitigation on another site.
Fish and Wildlife Service and environmental activists felt that
development would jeopardize the real or potential existence of the salt
marsh harvest mouse and several threatened and/or endangered species of
birds. After redesigning and resubmitting his development plans, and
facing severe financial hardship, Mr. Thorpe finally withdrew in 1992
78
his application for a permit to develop Shorelands. As late as 1998 a
lawsuit against some of his original backers was pending.
Four years later (1996) Cargill sold the Baumberg Tract to the
California Conservation Board. Now under the management of the state
Department of Fish and Game, the Baumberg Tract is the setting for a
wildlife restoration project (Eden Landing Ecological Reserve), a
project created to satisfy mitigation requirements of developments in
neighboring communities.
John Thorpe agreed to record his story about the rise and fall of
his vision of the Shorelands Project. His story is essential to
understanding the history of the Baumberg Tract as well as the impact of
the Clean Water and Endangered Species acts on developments which
threaten habitat, plant and wildlife species.
During our first two-hour interview, held in his office on
Saturday morning, May 10, 1997, Mr. Thorpe began by launching into a
discussion of the history of the Shorelands Project from 1983 through
1992. My knowledge of the Shorelands Project as that time came from the
extensive collection of material lent to me by Howard Cogswell, which
went only through December 1987, the date when Mr. Thorpe withdrew his
first permit application. I learned during this interview with John
Thorpe that he had continued to pursue his goal until December 1992.
Mr. Thorpe discussed his experiences dealing with Cargill Company,
with the personnel in the Fish and Wildlife Service, the Department of
Fish and Game, and other regulatory agencies, and with the experts he
had hired on mitigation, birds, predation, and biological assessment to
help him pass the regulatory hurdles. We also discussed his ongoing
lawsuit, the bankruptcy, and the resulting loss of his magnificent,
historic house/office and his renowned collection of vintage cars. I
left with two hours of tape and a notebook full of additional data.
We had a second two-hour interview on Saturday morning, February
2, 1998. During the first hour we concentrated on John Thorpe's
personal background as a Hayward native, and his family history. Both
his parents were doctors, and his forebears were gifted; one of his
ancestors was a noted political radical. We also discussed his
education, and his business and professional interests in the Hayward
area. The reader of this interview may find that these personal details
explain his vision of Hayward and his dedication to the Shorelands
Project. During the second interview we discussed the Shorelands
Project by focusing on his attempts to circumvent the Fish and
Wildlife's Service's 1992 draft jeopardy opinion, his belief that he had
actually received a favorable opinion from the Fish and Wildlife
Service, and his feeling that the city of Hayward failed to give him the
necessary final approval. He looks back philosophically on the whole
experience -
79
Mr. Thorpe is a tall, large-framed, intelligent and restless man.
His presence fills a room. He would often get up during the interview
and move about the room to demonstrate a point. Eager to tell his
story, he would shift from event to event, seeming at times to stray
from the subject at hand, but eventually, never really losing the
thread, get right back where he intended to be when he began. It is
easy to understand why newspaper reporters, following his activities,
could see him as interesting copy. Although his manner of telling a
story is easily followed in person, it needed a bit of editing to make
it understandable to the reader. Therefore, where I felt it necessary
for the sake of clarity and continuity, I revised the transcript. The
substance remains unchanged. I also chose to place the second interview
first. In reviewing his transcript, Mr. Thorpe filled in names and made
minor corrections.
John Thorpe generously provided copies of his excellent brochure
on the Shorelands development so that one copy could be placed in an
envelope in the back cover of each volume. Material used to illustrate
his chapter came from various sources. As stated earlier, this volume
on the history of the Baumberg Tract could not have been complete
without the interview with John Thorpe. What makes it particularly
valuable is his "let the axe fall where it may" candor—whether in
regard to himself or the many other persons, helpful or aggravating,
with whom he came into contact.
The Regional Oral History Office was established in 1954 to
augment through tape-recorded memoirs the Library's materials on the
history of California and the West. Copies of all interviews are
available for research use in The Bancroft Library and in the UCLA
Department of Special Collections. The office is under the direction of
Willa K. Baum, Division Head, and the administrative direction of
Charles B. Faulhaber, James D. Hart Director of The Bancroft Library,
University of California, Berkeley.
Malca Chall
Interviewer /Editor
January 2000
Regional Oral History Office
University of California, Berkeley
80
Regional Oral History Office University of California
Room 486 The Bancroft Library Berkeley, California 94720
BIOGRAPHICAL INFORMATION
(Please write clearly. Use black ink.)
Your full name_\QHr4 //IIL-TZ>4 V
Date of
Father's full name /AtU7Z)f4 VVJ . i 1 1
Occupation ;A.^Di<CA(l- DgaTJTZ^fe. Birthplace AU/VAElbA,
Mother's full name
Occupation /AtEr>(£Al_ X^^^-^^>P^ Birthplace d>H-t^lvCvC7 O \ 1( _
Your spouse P/MJL-£TTE^ VJ
Occupation U&6/iU ^g^UgTAiXW Birthplace^/^U
Your children
Where did you grow up?
Present community
Education B> A ^»T
UL B BOALTT HALU. UKil^l
Occupation(s) \
Areas of expertise
Other interests or activities
Organizations in which you are active
81
INTERVIEW WITH JOHN M. THORPE
THE SHORELANDS PROJECT: THE UNATTAINED VISION
I FAMILY BACKGROUND: THE COLORFUL LIVES OF JOHN THORPE'S
GRANDPARENTS
[Interview 2: February 28, 1998] ////'
Chall: I always like to know how people got where they are, so I'd like
to know a little bit about your family background and your
education and something about your own career that brought you
into development projects. I know two of them: Shorelands and
Columbia [Castro Valley]. You're an attorney as well. Did you
grow up in Hayward?
The Maternal Side; The Schwabs
Thorpe: Actually, I was born in Hayward in 1932. I was born on the front
porch of a house on what was then Soto Street. It's now
Montgomery. Somehow they renamed Soto Street. My father and
mother were both doctors. My mother graduated from UC medical
school second in her class in 1924. My father graduated also from
UC med school. They were both unusual in Hayward in that they
were both on the staff of both Stanford University hospital and UC
med school hospital. My mother had graduated second in her class
from the University of California, missing the University Medal by
one point because she flunked PE [physical education] [laughter].
My mother's mother came to California just before the
earthquake, to San Francisco. My mother's father [Michael Schwab]
was one of seven unfortunate Americans who were the first
defendants convicted of sedition in peacetime in American history.
My mother's father had given a speech in Chicago at the first
'## This symbol indicates that a tape or tape segment has begun or
ended. A guide to the tapes follows the transcripts.
82
Chall:
Thorpe :
Labor Day picnic in American history, at what became Haymarket
Square—someone threw a bomb that killed and maimed some
policemen. There was a police group who had been used for the
purpose of being strikebreakers at earlier strikes, so they came
in on this Labor Day picnic. They didn't appreciate the concept
of labor organization. My grandfather had given a speech, and
they arrested him for having stated something in his speech- -or
since he was editor of a German language newspaper, the Arbeiter
Zeitung, which means the "Daily Worker," having said t ome thing in
his paper that may have incited some person or persons unknown to
throw the bomb .
Of the seven, the seven were convicted and sentenced to
death. Their defense counsel was a rather well-known attorney by
the name of Clarence Darrow--the Scopes Trial, the "Monkey
Lawyer". My grandfather and the others were trundled off to
Joliet Penitentiary for execution. Three were hanged, and a
fourth allegedly committed suicide by chewing off a dynamite cap
while in his cell. Of course the question of how one acquires
dynamite while in one's cell is an interesting one. But in any
event, my grandfather's sentence was finally commuted by the then-
governor of Illinois to life imprisonment. I am named after that
governor. His name was John Peter Altgeld. I am named John after
him. My mother's name was Johanna after--
Is your name John Peter?
No. But my mother's name was Johanna Altgeld Schwab Thorpe. My
mother was also named after Altgeld. Eventually Altgeld pardoned
my grandfather. He couldn't pardon him initially, he said,
because they were about to have the Democratic convention in
Chicago. He said, "If I pardon you there's going to be such an
awesome outcry that the other side will get elected. It would
have a deleterious impact on the election." That's why he
commuted the sentence instead of pardoning him initially.
Then during the convention an unknown stole the podium and
uttered a remarkable speech—one of the most famous speeches in
American history. William Jennings Bryan. The podium was empty,
and so he just jumped on it and started speaking. He uttered a
very famous speech. "Thou shalt not encircle the brow of mankind
with a crown of thorns. Thou shalt not crucify mankind upon a
cross of gold." He was nominated by acclamation.
Altgeld went back to Chicago and pardoned my grandfather,
saying, "No one of the American public gives a damn about the
silver standard, whether money is supported by gold versus silver.
Nobody cares. It's an absolute non-issue. It's the worst issue
for the Democratic party. It has nothing to do with trust, with
83
labor, with any of the things we stand for. We don't have a
chance. So we can go ahead and pardon you because it doesn't
matter." So he pardoned my grandfather, and there was a hue and a
cry, and the papers had some awful stuff. There was a cartoon in
one of the Chicago papers of my grandfather standing on top of the
prostrate body of liberty. It was covered with an American flag.
He was holding a round bomb with a lighted fuse in one hand and a
bloody sword in the other. The press had quite a field day.
Altgeld gave a speech at a theater in Chicago explaining why he
pardoned him. He was being pelted with rotten vegetables and eggs
and things, and he suffered a heart attack and died. So much for
being a good guy.
Chall: So your grandfather-
Thorpe: But my grandfather was pardoned. However, when he was released
from Joliet, it was raining, he caught pneumonia, and he died.
The pardon didn't do him much good.
Chall: How long had he been in prison? Do you know?
Thorpe: Yes. Almost five years.
Chall: I see. So your mother then came with her mother?
Thorpe: My mother's mother then, and my mother and two sisters came to San
Francisco. Then my mother's mother got a job in San Francisco
working as a scrub woman for the city and county of San Francisco.
And my mother used to help her, and she said that she and her
sisters would take hand brushes and they'd scrub the steps of city
hall with buckets and brushes. My mother went to school—got
interested in nursing and became an RN [registered nurse] .
Chall: How did they manage to do this?
Thorpe: I have no idea. They just all worked like hell. My mother, I
know when she went to Cal, she worked as what they then referred
to as a governess—but it was really a babysitter—for a professor
at Cal by the name of Laura Adams Armer. I have a painting of my
mother that Laura Armer did. Laura Armer was an enormously
talented woman who wrote a series of children's books on Indians
and American Indian history. I have Waterless Mountain and Hoshki
the Naval o. She was a very, very talented artist. A very great
illustrator. So while my mother worked for Laura Adams Armer she
lived there at their home and went to the university during the
day. She became a nurse. My mother's two sisters and my mother,
coming from their background with my grandfather who was a union
organizer, put together a little union called the California
Nurses Association. So the nurses who currently go out on strike
at Kaiser ?.re members of the association my mother and her sisters
put together.
The Paternal Side; The Thorpes
Chall:
Thorpe:
Chall:
Thorpe:
Chall:
Thorpe :
Chall:
Thorpe :
Your mother was a nurse first?
Yes. And then she got so fascinated with medicine she became an
M.D. My father's entire family also went to Cal Berkeley. My
father got his M.D. at Cal and his brother got his M.D. at Cal.
Two other brothers were teachers, my father's sister was a teacher
here in Hayward--Marian Thorpe was her name. My father's father's
father walked out here originally from Wisconsin. He married in a
place called Spring Grove, Wisconsin, to my great-grandmother.
The early wagon trains — the movies show the pioneers riding on the
seat of the wagon. They didn't do that. They walked, because the
wagon was heavily enough loaded that they couldn't take the weight
of the people. So all these early pioneers walked out here. You
think of walking 3,000 miles, that's not a minor little thing.
They got out here as far as San Jose. My great-grandfather wanted
to buy a farm there in San Jose, and there were no surveyors at
the time in this part of the country.
What year was this?
1 guess just prior to the Civil War, around 1858.
the Gold Rush, but not much after.
It was after
He went back to Salt Lake City and picked up a surveyor, and
the surveyor has his name on a town east of Salinas--! can never
remember the name of the bloody town. In any event, he was a
millwright. He used to make wagons and things, and he's kind of a
fascinating historical character, because his traveling companion
on the boat coming over from Scotland kept a very complete diary.
Now you're talking your great --
My father's father's father.
But you said something about coming around on a boat?
Yes, he originally came to the United States from Liverpool,
England, on a boat. The first interesting thing about that, I
think, is that they landed at New Orleans. Many more pioneers
came from England and Ireland and Scotland via New Orleans than
ever did by via New York. And the reason why is because you would
85
Thorpe:
Chall:
get in to the shelter of Florida and into the Gulf, and the water
was a lot less rough. You try to dock a sailboat in New York. So
actually there were many, many more people who came in via New
Orleans. So in New York, of course, you see all this stuff about
Ellis Island and things, and it's all bull, because many, many
more people came by New Orleans. But he kept a very complete
diary, and the diary itself is fascinating reading.
Chall: You have that?
Yes. That's my father's father's father. Then my father's
mother's father came to Nevada and built the first brewery in the
state of Nevada and the first house of ill fame. He built this
place and discovered that if you build a house eleven miles
outside of town the circuit riders, the sheriff, only rides ten
miles out of town to enforce the law. So you could have a place
with ladies and booze and what have you twenty-four hours a day
eleven miles outside of town and nobody bothered you. So he
founded a chain that became very famous, what was known as the Ten
Mile Houses. The Ten Mile Houses were all eleven miles outside of
town. There was one in Coyote, which is eleven miles outside of
San Jose. There was one in San Bruno, eleven miles outside of San
Francisco. They were all over the West.
Many years later his wife, who was a proper Victorian, told
him it was a terrible business to be in, and so he sold out and
went back to New York and bought a seat on the New York Stock
Exchange. His history is kind of reminiscent of mine. A year
later he was absolutely broke. He came back from New York with
his wife and two daughters and said--and this is written--"Madam,
I bought a house for you here in San Jose. I'm leaving you here
with our two daughters. I shall send you a check once each month
for their support. I shall never speak to you again. Hopefully I
shall never see you again. You insisted that I sell out and that
I go back and live an honest life buying a seat on the New York
Stock Exchange. I have never, ever run into a man in any of my
houses who was one-tenth as dishonest as the most righteous member
of the New York Stock Exchange." [laughter]
Let's bring you down here to Hayward.
in medical school?
Your parents apparently met
Thorpe: Yes, but I've got to tell you one other thing. At any rate, the
son of that union, my grandfather, was quite an inventor, and he
invented the cylinder lock. Every lock you see in every door and
every lock you see in every automobile was invented by my father's
father. He also invented a thing called a rotary tub washing
machine, like the Bendix. Instead of having a center thing that
goes back and forth, the whole tub rotates.
86
He also went to work and got a job at one point working for
a professor over at Santa Clara University. The professor's name
was Montgomery. Professor Montgomery was a glider enthusiast, and
the Jesuit priests decided that if man was going to fly an
airplane in the sky, up where the angels are, they would kind of
like to be there first before anybody else and see what was up
there. So they hired Mr. Montgomery to become the first professor
of aviation in American history, at Santa Clara University. He
was a glider enthusiast, so his job was to construct a powered
airplane. He hired my grandfather to do the physical construction
and to do the specific design.
The Wright Brothers' and earlier airplanes were controlled
by two things: the pilot would have his seat on a track that goes
across perpendicular to the fuselage, and if you want to go this
way [gestures) with the airplane, the pilot would swing out on the
seat and shift his weight, and he would bend the wings and bend
the other surfaces. They were bamboo frame with cloth covers, and
you would bend them by pulling cables. My grandfather said to
Montgomery, "If the purpose of this particular operation is to
bend this surface, why don't we cut it and hinge it?" He said,
"I've built boats, and for example, this vertical piece on the
tail—we can call it a rudder just like a boat — and hinge it.
It's so much easier. This horizontal piece on the tail we'll call
an elevator because it does the same thing that an elevator in a
building does. It makes it go up and down. And we'll hinge it.
We'll take these two section of the wing and cut them and hinge
them and we'll call it ailerons after your good friend Professor
Aileron from Paris, who invented the wing technology."
So my grandfather put in all these hinges, and they ended up
of course with all these cables where the wretched pilot is. He's
got all these cables. How would he handle them? Well, my
grandfather during Christmas would build for the Christmas trade a
kid's coaster called an Irish Mail, and it had pedals. The child
would push the pedals to make the coaster go. My grandfather
takes a couple of those pedals, puts them in the cockpit and ties
them to the rudders so that by doing this with the pedals
[demonstrates], he could control the rudder. He then takes a
mopstick, a gimbal--a gimbal is a thing you use to hold a glass in
a ship. It's mounted to a bulkhead, you put a glass in it, and it
swings every which way holding the glass level. So he took a
gimbal, ran the mopstick through it, and tied the strings from the
cables from the ailerons and the elevator to this stick. In
short, he had unwittingly devised the control system for an
airplane, which lasted to and including today.
Chall: Patented?
87
Thorpe: Oh, no. He couldn't have patented it anyway, because he was
working for the University of Santa Clara. And they didn't patent
it because they were interested in the angels. Now that airplane
that they made- -the story that continues is even better. There is
a movie about Montgomery and I would love to get a copy of it.
And there's a monument to Montgomery in Santa Barbara called the
Pylon of the West. Why Santa Barbara I have no idea. I think he
came from Santa Barbara up to Santa Clara--he would fly gliders
down in Santa Barbara where they had cliffs, and the thermals
would help the lift.
At any rate, they get this airplane done, and they have it
finished before the Wright Brothers have theirs finished. This is
a great story about history. They get the airplane finished, and
Montgomery, like Edison, was an experimenter: trial and error,
trial and error—try it this way, try it that way. He would make
models. The buildings at Santa Clara were three stories high. He
would go up on the roof of the building and throw the model
airplane off the roof and watch it, and then modify it slightly
and do it again. He would go up on the roof and he would get
dizzy. He had developed this height business where he'd get
dizzy. So he couldn't fly the bloody airplane. So he said to my
grandfather, "You fly the airplane." My grandfather said, "I
built it. If you think I'm going to fly it, you're nuts. No
way." I suggested to my grandfather he fly, and my grandfather
told me, "I have never been in an airplane in my life. I don't
intend to start now."
So the point is here is Montgomery and my grandfather won't
fly. The Wright Brothers fly. My grandfather then goes with
Montgomery to the Santa Clara County Fair, and there's a balloon
ascensionist, where the balloon goes up and they take people for
rides. He goes to the balloon guy and says, "How would you like
to fly an airplane where you could land it where you want to?"
And the balloon guy says, "That is marvelous. That's a grand
idea." So they get the balloon guy to fly it. In short, the
airplane flies over twenty times as high, over twenty times as
far, as the Wright Brothers ever did. A much better airplane.
That airplane, by the way, hangs in the Museum of Air and Space
[National Air and Space Museum] next to the Wright Brothers'.
The other part of the story is that I took my son back--my
brother-in-law [Hans Mark] was at the time the deputy director of
NASA [National Aeronautics and Space Administration] , and I took
my wife and son back to Washington, D.C., and took my son to the
Museum of Air and Space, showed him the airplane, and told him the
story. At the end of my story there was a round of applause. I
looked around and there was a bunch of people. They were taking a
tour--they thought I was a tour guide. So they applauded my
88
story. I looked around for Nelron. He's way in the far corner
looking inside the nose cone of a satellite. He wasn't interested
in the old airplane at all [laughter]. The moral of all that is
that history is what somebody writes down. History is what
somebody says is history; it isn't what necessarily happens.
I was telling you about the diary. The diary is marvelous
because it has some great stories. They land at New Orleans, and
the first thing they see—this is my paternal grandfather's
father—is a slave market. Some of the slaves are in cages, and
they're all manacled, and my grandfather is appalled. He said it
was a terrible, terrible thing. He said, it is as John Mill has
written—they really do do this. They really do imprison people
and put them in cages. He says there was one sleek black guy in a
cage who says to him, "Hi, Massuh [Master]. Want to buy me? I'm
only $1,800." He said, "Looking at me, knowing I had just gotten
off the boat, knowing I didn't have two dollars let alone 1,800--"
this slave was putting it to him. The guy with him said, "Now
wait a minute. Think back to where you just came from. Think
back to Scotland. Think to the line of over a hundred men
standing in line at the mill hoping someone will drop dead at his
job so they can get that job so that they can feed their family.
Look at this slave, who is well fed and sleek and well cared for,
because he's worth $1,800. Tell me, who's the slave and who's the
free man?" Isn't that interesting? In 1855 or '56 he's saying,
"Who's the slave?"
89
II EDUCATION: HAYWARD, MENLO PARK, STANFORD, BOSTON, AND OTHER
EXPERIENCES
Chall:
Thorpe :
Chall:
Thorpe:
Chall:
Thorpe :
Chall:
We must get down to you. Your parents were both practicing all
the time you were growing up? You had a couple of sisters?
I had a couple of sisters. My mother practiced kind of part-time.
She was the unpaid doctor for the Hayward Unified School District.
My dad practiced the whole time. My mother practiced in the sense
that—we had quite a library at home — she was my dad's research
assistant. She would trundle over to UC Berkeley and try to
figure things out when they had unusual cases.
You went to school here in Hayward.
that time?
What were your schools at
My father's sister, Marian Thorpe, was a teacher in the Hayward
School District. I went to Markham, and my mother and Aunt Marian
didn't think much of Bret Harte, so they snuck me into Castro
Valley Grammar School. I used to walk from Prospect Street to
Castro Valley every day and back. Then I went to Hayward High,
and I was at Hayward High for one semester. The teachers were of
course all buddies of my mother's, and they told my mother that
Hayward High School was not a real challenge to me, that I was
making book reports by picking up Reader's Digests and scanning
them on the way from the back of the room to the front. When it
was time for a book report I'd pick up the Digest on the way and
give my book report. They thought a school that was a little
tougher probably was in order, so I was then sent to Menlo School
in Menlo Park.
And you lived there?
I lived there for four years, yes.
How did you like that?
90
Thorpe: It was a very good school. Menlo was a first-class school and
they had first-class faculty. From Menlo .[ went to Stanford. My
sophomore year I went on a program where I cross-registered at
Harvard, Boston University, and MIT [Massachusetts Institute of
Technology] for a year. That was kind of fun. There was a
program where you could go to school at Harvard, Boston
University, and MIT, and take courses at each. So I was there
[Boston] for a year.
Chall: What were you studying?
Thorpe: You know, I don't even remember [laughter]. Very little, frankly.
I didn't pay a lot of attention [laughs]. I got a job while I was
back there. I worked first as a librarian and then as a reporter
for the Boston Record-American, which was a marvelous tourist
newspaper.
Herman Mark and Albert Einstein
Thorpe: My brother-in-law's father, Dr. Herman Mark, was a professor at a
school called Brooklyn Polytechnic. He was a fascinating guy.
Dr. Herman Mark came over here from Vienna with his buddy who was
another professor. They were both professors at the University of
Vienna, and they left just ahead of Hitler. They took their
money. He got platinum somewhere and extruded the platinum into
wire, dipped it in black paint and made wire coat hangers out of
the platinum.
They got here and one of them went to the Brooklyn side to a
little school called Brooklyn Polytechnic, and the other one went
to the New Jersey side. The first thing Dr. Mark invented when he
got here was plexiglass, because the B-17s were getting shot down
at that time, and they desperately needed to develop gun turrets.
So he invented plexiglass. From that he invented literally all
modern plastics. He invented polystyrene, polyvinyl, a blood
plasma substitute. He was a fascinating guy.
He made a deal with Du Pont where Du Pont gave 80 percent of
the profit to Brooklyn Poly which is now known as the Polytechnic
Institute of New York. It has a high-rise downtown Manhattan
campus instead of a Brooklyn campus. It's quite a big school now
because of Mark's invention of plastics. He had nine Nobel
Laureates as students, and his son Hans, my brother-in-law, became
a nuclear physicist.
91
Or. Mark, I got to visit with him in Brooklyn, and then we
would go on Sunday sometimes and visit with his friend--the other
professor from the University of Vienna whose name was Albert
Einstein. Einstein and Mark, their idea of a Sunday was to flip a
coin. The winner would ceremoniously unroll a roll of butcher
paper on the floor. They would have Bach or Beethoven or Brahms
on the phonograph in the background. The winner would take the
crayon and he would do an equation to see if he could stump the
loser. The loser then, if he could solve it, got to do an
equation to see if he could stop the winner. They would construct
their own mathematics. They would have mathematics you've never
dreamt of. They had three-dimensional, four-dimensional, five-
dimensional mathematics. They would elevate, elevate, elevate--
math you've never dreamed of. Watching these people was
unbelievable .
Chall:
Thorpe :
Chall:
Thorpe :
Chall:
Thorpe :
Chall:
ii
Did you graduate from Stanford?
My undergraduate was Stanford, yes.
And then you decided to go to law school?
I was admitted to both Boalt and Stanford law schools, and I
decided that Boalt flunked out a smaller percentage. So I decided
my survival chances at Boalt Hall were better. Stanford flunked
out about 40 percent in the first year, and Boalt only flunked out
a third. So I figured I had a better shot at getting through
Boalt [laughs] .
You didn't think that you were that bright even though all along
the line you were considered a very bright person?
No, I was nervous. You never know,
something where you never know.
I think life generally is
That may be true, but when you're very young- -Well, so you went to
Boalt and finished there? What year would that be?
Thorpe: In '57.
92
III ESTABLISHING A LAW PRACTICE IN HAYWARD
Chall: Did you decide then to practice here in Hayward?
Thorpe: Yes. I figured Hayward was a small town, and I figured I was
again safer in Hayward. It was a conservative approach.
Chall: Did you open up your own practice or did you start with somebody
else?
Thorpe: I went to work for two brothers who had come out here from
Chicago: Milton and Jerome Sills. Their real name was Silberg,
but when they came out to California they called it Sills. They
had been in Chicago. They're both dead, so I can tell it now--
Milton had had a circumstance where he was drafted in Chicago by
the mafia. He didn't care to represent the mafia, and you didn't
have a choice. So by changing their name and coming to California
they avoided what was in essence a form of imprisonment. As he
said, they paid you very well but it was kind of nerve-wracking
[laughs]. They had an office up at 572 Main, the old Bank of
California building upstairs.
Chall: You practiced with them for a number of years?
Thorpe: Two or three years, yes.
Chall: And then?
Thorpe: Then I discovered that my father, in all the years that he
practiced medicine, never paid much attention to collecting bills.
He had two or three office girls. The mail came in, they would
work on the mail until it was time to go home, they would take
anything that was left and put it in a cardboard carton. When the
cardboard carton was full of unopened mail they put it in the
closet. When the closet was full they would start on the second
closet.
Chall: What happened to the bills?
93
Thorpe: He paid the bills. The point is if you sent a bill, the odds of
getting paid were pretty good because you sent it two or three
times. But patients who sent money by way of check or insurance
companies and stuff, the mail was full of checks that were stale
and stuff like that, and of course the books were kind of a
shambles because there weren't any to speak of. My father really
wasn't interested in money; he was interested in medicine.
Winning Important Lawsuits
Workman's Compensation
Chall: But how did he manage to keep the house and children and all that?
Thorpe: He worked eighteen hours a day. So he made a fair amount of money
on, say, collecting half his income. But I discovered that, and
so I became a collection agency for my dad [laughs], which was a
good source of work. And I did a fair amount of personal injuries
and stuff. Then I got into doing odd things. My dad one time had
a patient, Mr. Elvenholl. He said, "Mr. Elvenholl dropped dead
while mowing his lawn in his backyard. His wife doesn't have any
money; you've got to help them." I said, "What do you propose I
do? Sue God?" He said, "What about workman's compensation? He
was a machinist and did a lot of heavy work." I said, "Well, it's
kind of a push, but I'll try it." I filed a claim and went to a
hearing and damned if I didn't win, much to my surprise. It was
the first stress-caused heart attack case. The insurance company
didn't contest it because they didn't want a record of it, and so
then a second one came along and a third one. By the time I got
the third one, the insurance companies all got together and they
raised bloody hell. I had to go to the Supreme Court twice. But
I still won. Those were the first stress cases.
The National Assessors' Bribery /Property Tax Scandal: The
California Class-Action Suit and Its Reward2
Thorpe: I had another case where I ran into this guy, a fascinating case,
who tells me this tale, which I didn't believe at all, about how
2For background on John Thorpe, the tax scandal, and his plan for the
Baumberg Tract, see the Hayward Daily Review, October 18, 1987.
94
Thorpe:
all the assessors all across the United States are taking bribes
to reduce property taxes. It's all across the United States;
they're all taking bribes. The second time he comes in he brings
canceled checks . He shows me that for a fact they were taking
bribes. The third time he comes in he shows me the assessors all
make a deal where they cut your property taxes—and of course the
big companies are the primary beneficiaries. If they guarantee
the reduction for three years , they will not be disturbed for
three years, which clearly they couldn't do without a collusion.
Their fee is 40 percent of the amount of reduction but just
applied in the first year. So you get 60 percent of the savings
the first year and they get 40 percent. Of the 40 percent, 15
percent went to the assessors until the assessors had their
national convention one year at Denver, Colorado, at which point
it went up to splitting it equally down the middle between the
assessor and the property taxes.
Chall: This was all done almost out in the open?
All across the United States. So I took my whistleblower and the
first thing I did was call a buddy of mine at the San Francisco
Chronicle, Mike Harris. We got an attorney general guy, Marsh
Mayer, from the California State Attorney General's office,
because this involved tens of millions of dollars. It was a
little scary. You never quite know what's going to get used
against you. When you're dealing with a lot of politicians you're
talking a lot of political power. So it was really funny.
In Alameda County, Frank Coakley, the D.A., was really mad
at me because I had gone to the attorney general's office and he
wanted the glory. Secondly, he was mad at me because he was to
get an award as district attorney of the year. Coakley 's number-
two man was Ed Meese, who became attorney general to President
Ronald Reagan. But Frank Coakley was ticked because he was to get
this national award as district attorney of the year in Florida,
and he couldn't go because of this awful mess. But Marsh Mayer
soothed him by having him call a meeting of all the district
attorneys in California and Mike Harris saw that the Chronicle
took this big picture of Coakley in the middle surrounded by D.A.s
and American flags and things, so Coakley got some good press, so
then he backed off.
Then the senator [William Knowland] who was the owner of the
Oakland Tribune at the time got ticked off because here's the
Chronicle coming out every day with this big story. The Chronicle
increased their permanent circulation by a third on this series of
stories. So he was ticked off, saying, "What is a good Alameda
County boy like you doing giving all this to the Chronicle?" So
my friend at the Chronicle, Mike Harris, then would write a story
95
Chall:
Thorpe:
for the Tribune every day, without Mike Harris's name on it of
course. That got the Tribune off my back.
I had so many wiretaps in my office--Coakley had a wiretap,
the attorney general just to be on the safe side had a wiretap.
The parking lot across the street was full of cars with
wiretapping equipment and directional microphones. My phone got
to the point where I couldn't hear myself. I said, "Frank, why
don't you give me a couple of secretaries and they can sit right
here in my office, and they can transcribe everything I do. They
can listen on the phone calls. Get some of the taps off so I can
hear myself on the phone." He said okay. Coakley was a wily guy.
I made a demand to reassess the taxes in Alameda County, and
Coakley promptly caused the board of supervisors to reassess, so I
couldn't do anything.
The city attorney of San Francisco was [Thomas] O'Connor.
Mr. O'Connor was a marvelous man who refused to do anything
because the political boss in San Francisco was the assessor
[Russell Wolden] . So O'Connor refused to do anything. So I got
to sue the City and County of San Francisco, and that was the
first class-action suit in California history. There was no
class-action statute at the time. No enabling statutes. So I
filed a suit saying that I am a private attorney general, that
I've made a demand, the district attorney won't do anything, the
city attorney won't do anything, and therefore I'm serving as a
private attorney general. The plaintiff was Ida Knoff, who was my
mother's sister, which really ticked off O'Connor. He said,
"You're contending you represent a class action of plaintiff
taxpayers, then the plaintiff's your aunt." I said, "Well, she's
the only taxpayer I know." [laughs] Much to my surprise I got an
attorney's fee award of a million dollars. It was a record
attorney's fee, against the City and County of San Francisco,
which they had to pay. That really frosted O'Connor. It was a
record attorney's fee.
That case changed the whole property tax assessment process.
We then went to Sacramento, and we did all the legislation. I put
the legislation together to have these appellate review boards so
that if you don't like your taxes you can go down and have a
hearing before the review board. I wrote all that because there
was no mechanism for it. But that class action, I tell you, that
was another one — that was like the workman's comp case, the heart
attack case. I never thought I'd get away with it. I thought I'd
try it but it's not going to stick. But law is something where
you really cannot forecast ahead of time what's going to happen-
especially now because our courts now have deteriorated to where
96
they're bureaucratic, administrative, and political creatures
rather than really judicial creatures. A lot of them.
Long-Term Interest in Property Deve lopment
Chall: Of course you unearthed an incredible scandal, and then you had
this money for the first time 1 guess in your life. Is that when
you moved into development?
Thorpe: No, I started doing real estate work almost when I got out of law
school. I got interested in it, and I built an FHA [Federal
Housing Administration] Section 207 100-unit apartment house in
West Sacramento when I was maybe thirty. I got a license as a
contractor. My grandfather, my father's father, had been a
contractor. He was the one I told you about who invented the
cylinder lock. He was also the first one to put a room on the
outside of a house plan: I can build five houses and the room is
in the back of this house, it's on the front on that house, it's
on this side of that house, and it's on that side of this house.
He built the first tract house. He built the first tracts in
California. Go down Lincoln Avenue in Alameda; you can never tell
they're tract houses because he would modify the architecture.
One is Norman, and the next one is French, and the next one is
Italianate and so forth, but in fact they're all the same house.
But you can't tell by looking at them.
My grandfather was the first one to pre-lay sash, just like
the window locks. When he started building around the turn of the
century, you would haul the panes of glass out to the house and
you would put them in the window frames after the window frame was
in the frame. My grandfather, in the wintertime when it was
raining, in the basement, would construct windows and put the
glass in the window frame, put the sash together and make it as a
unit.
Chall: He was a creative man.
Thorpe: He was the first one to do ready-hung doors. Now if you buy a
door [gets up, goes to door to demonstrate], you would buy this
door, for example, the frame comes with the door and you wedge it
all with the framing as a unit. You don't try cutting the door
down to fit the door frame. The whole thing is manufactured as a
unit and then put in the frame. It's called a ready-hung door,
and he was the first one to do that.
97
Chall:
Thorpe;
Chall:
Thorpe:
Chall:
Thorpe:
He did patent the cylinder lock. He patented some of his
stuff but never enforced the patents. But he did not patent the
ready-hung doors and he did not patent the glazed sash. He liked
to build, and he brought me up with tools and saws and things. I
thought it was kind of fun.
So you went off and--
--and built stuff. I built apartments. And of course Columbia
was 540 homes in Castro Valley, but they were built by Blackwell
Homes. That project would be way big for me--if you figured
$200,000 a house times 500 houses, that's a lot of money.
So the Columbia project was one of your large ones.
I built lots of smaller things,
center in West Sacramento.
I built this small shopping
You've talked about Sacramento a couple of times,
there to build?
Why did you go
Cheap land, and it was a fascinating area. It didn't work out.
West Sacramento still hasn't blossomed very much, but the growth--
The thing about California, and partly the environmental thing, is
California since World War II has not grown logically. It has
grown politically rather than logically. People will say, "Not in
my backyard," and so the builders will jump to someplace where
it's easy to build. So as a result you have this horrible urban
sprawl and slurb and just an awful mess. But I thought Sacramento
would develop to the west, because it was the logical place for
Sacramento to expand. It didn't [laughs].
From Whence the Special Thorpe Spirit?
Chall:
Thorpe:
Chall:
Thorpe :
Over the course of time, you're considered—sometimes they call it
flamboyant, ebullient--
And crazy.
How do you account for your great optimistic spirit and all that
goes with it?
I don't know that it is optimism. I think it's sort of not
caring, in a sense. In the first place I was brought up where
both of my parents were what I would say were old-fashioned
communists, from the antique meaning of the word. The original
98
communists are really sort of like the original Christians. "The
rich man can't inherit the earth--" and "the poor will inherit the
earth," and "the poor are good and the poor do nothing wrong." So
I grew up, and I'm still helping poor people. Over half my
practice is working for people for nothing. I get criticized by
various people for doing that, because I don't have any money now,
and so I really should be accumulating money. I think helping
other people is something that you do.
I think you can call it flamboyance helping Mrs. Elvenholl
whose husband had dropped dead of a heart attack. Okay, I was
lucky. So I got a lot of publicity out of it, right? Going after
the assessors--! was angry. I didn't think public officials
should take bribes. And that was a crazy thing. I can tell you.
I sent file folders full of information back to Chicago that were
mysteriously lost in the mail. They never did do anything
whatsoever in Chicago. They never did anything in Augusta, Maine.
They never found anything wrong. Their assessors—we sent them
files of canceled checks showing bribes, and they did nothing. I
think you can call it flamboyance because you take a risk, or you
do something that somebody else wouldn't do. But you may just do
it because you're a nut. Or because your lights tell you you
should.
Chall: Well, you've certainly had a good roll here.
99
IV THE SHORELANDS: ITS ORIGINS AS A SOLUTION TO TRAFFIC PROBLEMS
Chall: I wanted to ask you just a couple of questions about the
Shorelands that I'm not quite certain about.
Thorpe: Shorelands was kind of a crazy idea. Talk about flamboyance.
Shorelands was an idea where a portion of the project was
enormously profitable and would have funded a whole lot of
nonprofit operations that had social significance. Of course,
nobody who didn't know me would ever assume that's what I was
going to do. But that's what I had in mind. I had all sorts of
parks and recreational and open space ideas that I was going to
fund with the rest of it.
Chall: The problem was what land you were going to do it on, I guess.
Thorpe: Let me say this. The problem is that human beings all operate on
the basis of perception. The problem was that the land I was
operating on was perceived to be of enormous wildlife value. The
thing is, any open space anywhere may have enormous wildlife
value. Over the next hundred years, or maybe 200 years, we will
find out if that land has wildlife value. We will not find out
this week. We won't find out this month, we won't find out this
year, because it's been soaked in salt and it won't provide
anything for any wildlife for many years. It might recover.
Rains and what have you may cause it to recover eventually. We
simply don't know. It's a fascinating thing. I've represented a
lot of Chinese people over the course of the years, and a lot of
the classic Chinese folks don't think in the instantaneous terms
we think in; they think in terms of generations. So maybe they're
right. Who knows?
Chall: I needed to get some background on the origin of the Shorelands,
and I'm taking this from a book that you had printed called The
Shorelands that was for your investors—to raise money. The
Introduction is dated October 1985; you probably sent it out in
'86. In the Introduction, you say that, "In mid- 1982, a
successful Hayward developer/attorney, John Thorpe, was approached
100
with CTI opportunity to develop a parcel of land on the Hayward
shoreline. The City of Hayward suggested that a 700-acre-plus
portion of the 'Baumberg Tract1 be developed to a mix of
commercial/recreation, and hotel/commercial/business park and
light industrial park uses." My question to you is, who
approached you? You say, "John Thorpe was approached." Who
approached you with this concept?
Thorpe: I have to jjuess a little bit, because I don't really recall. What
I think happened was this: in the old days before the decline and
fall of Hayward, which is over the last ten or fifteen years,
Hayward had a Division of Advanced Planning and had an advanced
planner. They called it a Program Planning Department. The
program planner was a fellow by the name of Martin Storm. He was
a very, very bright guy. Hayward no longer has a Department of
Program Planning and no longer has a Martin Storm. His job was to
try to look at Hayward and say what its problems are and how to
solve them, how to make this place work, or how to clean up the
traffic. One of its problems was how to construct an overall
traffic solution.
One of the things — and this was his concept, not mine—and I
think he was dead right—was that the problem with Hayward as a
matter of traffic is that Hayward is a crossroads. It has been a
crossroads historically since people would come out from Oakland
and go out to Livermore to the spas and the Haywards Hotel and so
forth. It is a crossroads, so you have all this traffic that
follows through Hayward and clogs Hayward but doesn't really
contribute to Hayward. They're not buying anything, they're not
living here, they're just going from one end through the other
end.
Every city in the United States or anywhere that has this
sort of a traffic problem has solved it with a loop, with a
circumferential traffic system. Houston has the Houston Loop, and
Chicago has the Chicago Loop. By creating a loop around the city,
it's like in Boston on a small scale: you have what are called
rotary traffics instead of interchanges, where you go around a
circle and out. So he said, "Hayward, we can create a loop
traffic street."
The way to fund that loop is a mixture of state and local
funding as far as the Foothill Freeway, for the upper section of
it, and the Shorelands Project, which in essence builds about a
quarter of that loop. It really was a very good idea. They're
still talking about the flyovers that the people don't want.
Well, it would have avoided the flyovers. It was a very good
solution, it was a very good planning solution.
101
Chall: That's a traffic solution, but what about building on the Baumberg
Tract?
Thorpe: If you figure you come down Industrial Boulevard and you come down
through the Baumberg Tract, you've got quite a distance through
the Baumberg Tract where that loop is being constructed by
Shorelands, on down to Route 92. That whole sect ion- -about a
sixth of the entire loop, is on the Baumberg property. Plus the
interchange of 92 is funded out of the racetrack. The racetrack
does happen to fund that interchange. It's like there's a Bay
Meadows interchange. That was part of the reason for it.
Chall: That was part of the reason for developing that land?
Thorpe: Part of the reason was the traffic solution. Another was the
creation of a boundary line for Hayward. The Baumberg Tract
essentially goes to the southern boundary of Hayward. Hayward
doesn't extend beyond the Baumberg Tract, by and large. If you
think in terms of a quarter circle, by developing this quarter
circle, you build your loop street in such a way as to have it
serve as a boundary and you do not develop anything outboard of
that street. You cut off the Leslie property, outboard of that
street. Part of what we designed was the trail system. You know
the trail around the Bay? That was part of the vision of this
project. We came up with the concept of the trail around the Bay,
and this would build that portion of it. It provided a means of
doing a portion of the trail around the Bay. And they don't have
a solution for it now because without building an interchange it
won't exist. I don't know that the trail around the Bay is really
that necessary or essential or desirable anyway.
Chall: I know that your book tells how you went to Bechtel and did quite
a bit of pre-planning. You wrote in your brochure that the
Shorelands Project is "a major Mixed-Use Planned Development in
the City of Hayward, combining two distinct properties totaling
over 1,200 acres." As I understand it you took an option from
Cargill.3
Thorpe: Two options: one from Oliver, one from Cargill [Leslie Salt
Division] .
Chall: I didn't realize that you had an option from Oliver.
Thorpe: Yes.
3Copies of detailed promotional flyers on the Shorelands Project: "A
New Racetrack for Northern California." Inserted in pocket in back cover.
102
Chall: Simultaneously?
Thorpe: Yes.
Chall: So that's what led to this so-called 1,200 acres, more or less?
Thorpe: Yes.
Chall: What happened with Oliver? The> withdrew the option? Is that the
time when they didn't like anybody walking on their land which you
told me about in our first interview?
Thorpe: Gordon Oliver. It's an interesting thing. I've seen two or three
people who get bad strokes, and there's something about it that
cuts off the blood supply to the brain and these particular types
of people get very mean and very cranky and bizarre in their
behavior—that ' s the only word I can use. I got some letters from
Gordon Oliver that were real prizes. On the one hand, he wanted
me to succeed. Half of him wanted us to succeed because that of
course would give him some money. On the other hand, he sort of
wanted me to fail because of his anger and his hostility generally
as a result of his stroke and so forth. So he would just go back
and forth, but he was hopelessly unreliable the last few years.
Who was the historian in Hayward?
Chall: Sandoval.
Thorpe: John Sandoval worked with Gordon, and they had an office together.
Sandoval was trying to accumulate all the historical data that the
Oliver family had, which was enormous. On occasion, Gordon would
just come unhinged at John and make all sorts of wild accusations
and terminate the relationship and say that the whole thing's over
and he didn't care about history, and "I'm going to burn
everything." At any rate, that's what happened to Oliver.
Chall: I understand eventually you didn't have that property on which to
do the mitigation. That was part of it.
Thorpe: We could have had other mitigation land. Leslie certainly would
have provided it.
Working with the Leslie (Cargill) Salt Company
Chall: You had some mitigation possible with Leslie, but as I understand
it they never stated so with certainty.
103
Thorpe:
Chall:
Thorpe :
Chall:
Thorpe:
Chall:
Thorpe:
II
: have to say that my relationship with Leslie was absolutely
first class. Of course they're no longer Leslie; it's now
Cargill. In those days it was Leslie Salt.
You were working with Mr. [Robert] Douglass mostly.
Bob Douglass and Paul Shepherd. Let me tell you a little
something about Leslie. Cargill as a company had a long genesis
as—even though it was the largest private company in the world--
as a handshake company. They would go out in the field, the
farmer would have corn, and they'd say, "I'll give you $3.50 a
bushel for your corn," and shake hands and that was the deal.
Cargill has absolute integrity. They have a freakish thing about
integrity; they tell the people who go to work for them, "If you
make a mistake, if you screw up and promise something you
shouldn't have, even though it costs us a lot of money, we will
stand behind it and we take the loss—not the customer. Our word
is our bond. We stand by what we say." They're very Midwestern
in that they're sort of suspicious at first. It took me several
years to begin to get a good relationship. The first few years,
every time there was a minor modification to the agreement it was
two inches of paper. After that it was virtually all verbal.
They trusted me, I trusted them. They were an absolute pleasure
to work with. If they said they'd do something, they would. If
they said they wouldn't, they wouldn't. I know I never had any
problem with Cargill. Never. Not after the first few years.
The mitigation thing we could have worked out. We got to
the point where we had the mitigation worked out. There was no
federal agency opposing the project. We got to the point where
all the federal agencies said okay.
You mean even the Fish and Wildlife Service? I thought that Peter
Sorensen and Fish and Wildlife were totally opposed to the plan.
Sorensen had nothing to do with it. Sorensen was a low-ranking
person.
Didn't he write the jeopardy opinion or the draft jeopardy
opinion?
He signed it. Who signs it and who writes it are two different
things. The fact of the matter is at the tail end they even
announced in the newspapers that we could proceed. There was a
press announcement by Peggy Kohl of Fish and Wildlife in
Sacramento that we could go forward. Maybe I'm telling tales out
of school here, but the fact of the matter is that they announced
104
we could go forward. Then the city was dragging their feet and
dragging their ::eet; we could not get public hearings. By then we
had a different administration.
The Response of the City of Hayward
Chall: Was that basically over the 92 interchange?
Thorpe: No. Politically the city had changed. The city manager in
Hayward always reads the mayor and council and he's doing what he
thinks they're going to want to see, because that protects his
job. It's a job protection mechanism. The city manager—and this
is not just Hayward--controls the council, and the bureaucrats
control the elected officials by a very simple regimen. If you
give them enough paper and do it just before a meeting, they'll
never read it and they have to do what you want done,
very simple mechanism of control.
That ' s a
In any event, the politicians decided they were afraid of
the size of the project, they were afraid of the political and
environmental squawk. It didn't matter whether it's a good squawk
or a bad squawk; politically it was a bad squawk. So they simply
didn't want us to get to hearings. We had a hearing on the
circulation where allegedly the PA system didn't work, and there
was enormous feedback every time I tried to talk. When the city
people talked they could be heard fine; when I tried to talk there
was feedback. Leslie was appalled, our investors were appalled.
The investors at that point thought: Okay, this isn't going
to happen. The city doesn't want this. It doesn't matter. So
you have all the federal approvals—what ' s the difference? If the
city's not going to do it it's not going to happen. So then they
cut off funding. That's the thing that killed me. The thing that
killed me had nothing to do with any agency; it had to do with
investors giving up in despair. Were they right?
Well, as it turned out it was less than a year after the
project fell apart that the real estate market collapsed. In
other words, you couldn't have rented an industrial space for all
the tea in China for a period of four or five years. In '91 we
had an enormous real estate collapse. We still are in the midst
of what is gradually becoming a worldwide depression, just like in
the thirties. Asia is now collapsing, China is just now
collapsing. The Chinese economy is just now going to hell. We
have now this splintered economy where half our population- -we
have people who are homeless, we have people who are hungry, and
105
we have all this press saying how good the economy is. It's b.s.
Half the economy is fine, half is awful. We have a split economy.
The Baumberg Tract; Marginal Open Space Value
Thorpe: The fact is that the environmental thing is a matter of
perception. Man is a critter that sometimes we're right and
sometimes we're wrong. The perception was that it was
environmentally sensitive. There was never any endangered species
found out on that property. Not one. There was not one mouse
ever found out there. There were innumerable trappings,
innumerable studies. My God, we did hundreds of thousands of
dollars worth of studies and they couldn't find any of it. The
only value of that property environmentally, and it may have some
value environment ally- -it may have a very substantial value
environmentally—but the value, if any there be, is serving as a
buffer. Wildlife doesn't like people. Wildlife doesn't want
anything to do with people. As a buffer, it is so foreboding and
forbidding that it keeps people from getting near the Bay. So
there's a whole section of the Bay that in essence it protects
because it is a forbidding poisoned piece of real estate. It is
soaked in salt. Nothing grows, nothing moves. So it may have
value as a buffer.
Chall: I guess the environmentalists thought that it would provide a
place for wildlife that was being destroyed in other places.
Thorpe: The reason it won't work is if you have no growth of plant life,
you have no shelter for wildlife. You have no food for wildlife.
So you can say it's 1,200 to squat on. It's a place to rest.
Well, so is any place else in the world. Any place is a place to
rest. The high-rise is a place to rest,
very marginal open space value.
The fact is it's got
I had a long talk with [Congressman] Don Edwards. Don
Edwards happens to have been an old, old friend of mine. Don
Edwards is the founder of all the refuges. Don Edwards at one
point said something very telling to me. He said, "John, I want
you to know something. I really am reluctant to tell you this,
but I am a politician. I know you don't realize that. I know
you're a super-nice human being whom I've known for years. Try to
understand that I'm a politician." He was telling me something.
I said, "Well, that sounds like you're saying 'I'm a used car
dealer'." He said, "It's not much better." He called me from
Washington, D.C., and told me that.
106
Then Fish and Wildlife, I got very_ friendly with some of the
people at Fish and Wildlife. There was a fellow by the name of
[Wally] Steucke up in Portland. There were two or three people in
Portland who were decent. The chief counsel in Portland was a
real gent. I got clubby with him. After the thing collapsed he
said, "Politically it is highly desirable for us to buy the
Baumberg Tract. What is your position?" I said, "Hell, I'm so
broke I don't know that my position makes a lot of difference
[laughs]." He said, "We know you're still talking to Leslie, and
you and Leslie are still very friendly." I said, "Yes. But my
position is that as a practical matter if right now today
economically--" this was '84 or '85, somewhere in there. "Right
now today the economy wouldn't support any development out there
anyway . "
Chall: The people at Fish and Wildlife that you were telling me about —
Steucke and others — said to you that they might-
Thorpe: The fact that Fish and Wildlife was thinking very strongly of
buying the Baumberg Tract.
Chall: And that would have been in--?
Thorpe: 1 don't know, but I think it's '84 or '85.
Chall: That was when you were just starting?
Thorpe: Oh, excuse me—what am I saying? I meant '94 or '95.
Chall: You had already given up.
Thorpe: Oh, yes.
Chall: You were through.
Thorpe: Yes. One of their people called me originally.
Chall: I see, because it was bought by the state of California.
Thorpe: No. The way the acquisition worked—it was a complicated deal— is
that Fish and Wildlife did all of the evaluation of the property,
and Fish and Wildlife did the appraisals, and Fish and Wildlife
put the deal together. It's the kind of thing where Fish and
Wildlife says, "Okay, we're going to pay for this, and you buy
that." It was part of a complex overall thing.
Fish and Wildlife would end up as the owner whether the
state put up the money or whoever put up the money. In the long
run it would be part of the San Francisco Bay National Wildlife
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Refuge. I've worked on lots of these park deals with East Bay
Regional parks and others, where one entity will buy it and lease
it to another for an operation. The East Bay Regional parks, for
example, the property around the racetrack down in Emeryville that
they bought—the bay frontage there — the state bought that and
turned around and leased it to East Bay Regional Park [District]
for an operation. You can have more than one agency involved even
though the acquisition, on the face of it, the money is coming
from here — it's multiple agency involvement. The key player in
deciding whether it was to become in public ownership was Fish and
Wildlife. The concept was that it would end up as a part of the
San Francisco Bay Refuge, the Don Edwards Refuge. They were kind
of saying, What was my attitude and what was I going to do, if
anything [laughs]. I said, "As strange as it seems, I don't think
anybody else will develop it. So I don't think I'm being unfair
to Leslie or hurting them any. In fact, I suspect they just as
soon would sell to Fish and Wildlife as sell to whomever, because
it doesn't do them any good either— a surplus parcel. So they'd
like to unload it." So then I talked to Leslie, and they
confirmed that yes, they are talking to Fish and Wildlife and they
are interested in doing something with it.
Chall: So now it's being restored.
Thorpe: Have they done anything out there?
Chall: Oh, yes. They have a team working now to restore it with
mitigation money and money from the state. They're working on 835
acres.
Thorpe: What are they doing, physically?
Chall: Physically they're dividing it into sections that would be
habitable for the clapper rail, the snowy plover, and the salt
marsh harvest mouse. Steve Foreman with RMI is in charge.
Thorpe: Oh, Foreman is with RMI now?
Chall: RMI is Resources Management International. They have a year in
which to set up the plan, and they're really working on it.
Thorpe: They're just planning it right now. I'll tell you bluntly, it
will be a complete failure for the harvest mouse unless you have
vegetation. You cannot have the harvest mouse out there without
vegetation, and you cannot have vegetation without flushing the
salt, and you cannot flush the salt out of the dirt without water.
Therein lies the problem. The problem is the water available to
that, you'd have to take fresh bay water— it's not fresh in the
customary sense, but it's not brine, either; it's bay water.
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Chall:
Thorpe :
Chall:
Thorpe:
You'd have to flush the thing with bay water, you'd have to tidaly
flush it, you'd have to flush it two or three 01 four times a day.
That's all in their plans, I suspect.
The problem was--now maybe something has changed—that the brine
channel of Leslie Salt, right around the perimeter of that place,
down to the salt plant in Newark, and the outboard water are salt
evaporation ponds of Leslie. So you have to go clear to the outer
edge of those salt ponds, miles and miles out, if you're going to
bring fresh bay water in.
problem.
It's a tough problem. It's not an easy
It's a tough problem. They're going to have difficulties with it.
I think eventually what will happen is this. Gradually the
chemical plants have been driven out of the Bay Area, and 90
percent of the sale of salt is to chemical plants. Less than 10
percent is for human consumption and animal consumption. More
than 90 percent is for chemical companies. When you drive all the
chemical plants out of the area, the transportation cost makes it
inefficient to produce salt for somebody way far away. So I think
eventually the salt company will go out of business. When that
happens, then you can restore this area because you don't have the
salt evaporation ponds. I don't say you can't do it, I just say
you can't do it economically without doing something about Leslie.
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V A BRIEF HISTORY OF THE BAUMBERG TRACT; SALT PRODUCTION;
AGRICULTURE; WETLANDS; REPUTED VALUE OF BAUMBERG TRACT TO WILDLIFE
[Interview 1: May 10, 1997]
Chall: [Referring to discussion off tape while installing recording
equipment] You wanted to say something about your relationship
with the conservationists, the environmentalists, before we get
started on the nitty gritty here.
Thorpe: I guess the first thing I want to say is that this project was
very educational to me . I learned an awesome amount of things
from it, some of which are philosophical in nature.
History, of course, is what is written down or remembered,
rather than what necessarily happened. [laughter]
Chall: Truth is elusive.
Thorpe: Yes, and that we took up this project in an era which may have
subsided some. You have to kind of look at I guess the overall
history of what's taken place in recent years. We were just
finishing an era of relative economic plenty. And so the
environmental community was reacting to a situation. And of
course, people act and react based on their perceptions rather
than what necessarily is the fact.
Life is just full of an incredible number of ironies, and in
this part of California generally, the antis, the anti-development
forces, I think probably had the most negative impact on the
environment of any group, as well as a positive impact. The
negative impact was that by focusing on where they were, and next
door to where they were, they created a situation where the
developers leap-frogged literally all over the state. We now have
this massive traffic problem coming up from Tracy, and the air
quality problems inherent in two- to four-hour commutes and that
sort of thing, which in part were caused by the well-intentioned
environmentalists who said, "Well, we don't want something right
110
next door to us." Nobody took an overall look at northern
California as a whole. They just looked at their area. They
looked at Livermore, or they looked at Pleasanton, or they looked
at Castro Valley, or what have you.
The thing we learned, or I learned, is that with a lot of
the environmental community, not just the environmental community,
a lot of what happens has--is, and has become even more so, a
creature of politics and a creature of political perceptions.
We've just had Tony Blair win in England, who is an absolute
centrist. He has divorced the Labour party from anything remotely
connected with labor. He has not only copied [President William
J.] Clinton, he has—they purchased the computer programs of the
Clinton group on politics to run the election, and were very
successful.
We've gone from a [Franklin D.) Roosevelt era in part
because of population growth and in part because of tremendous
media impact — television, in large part. We've gone from not just
locally but to a nation of people who are reactive to what they
politically perceive rather than necessarily the fact.
We tried to sit down and negotiate something that we felt
was environmentally positive overall. Our goal was to try to
produce, in a development project in California, we wanted to take
an area and produce a more positive wildlife impact with that area
than was the case before the development.
We retained the services of a fellow by the name of Richard
Murray down in Carmel. Richard Murray— and we got Murray because
one of the key concerns in the area was the snowy plover. Murray
had built—was the only one who had built artificial plover
habitat. He did that down at the Pajaro Dunes. His Pajaro
habitat was successful. He was the only one who had done that; he
was the only one who we could find. We didn't restrain him in any
way with economics, we didn't say, "You have a dollar limit of
what you spend in your plan."
We came up with a plan that Howard Cogswell, the professor
at Cal State, found pretty good. Cogswell interfaced with us in
modifying it. The environmental community reacted with total
distrust. Now, it's true, we have a society where most
development is done by people who are motivated entirely by greed.
I had a prior experience in Castro Valley. I did a
development called Columbia where we built— it's this picture over
here— we built 540 houses on a ridge. We worked with East Bay
Regional Park District. We took the canyons on both sides and put
it into parks. We developed a trail system. We developed a park,
Ill
Chall:
Thorpe:
the Cull Canyon Park, over what had previously been a mud
collector for the storm sewer system.
And I should have learned from that, because in that
project, some of the people absolutely mistrusted our arrangements
with regional parks. And so both ourselves and regional parks had
to sort of sublimate the fact that we were largely in agreement.
The public, the environmental community, never did, some of them,
realize that in fact what we did, we did by agreement, and we did
it because we were trying to create a positive result.
I think if I buy a house, and I am next to--I have a view of
a park and I'm right next to a park, which is. open space and trees
and stuff, I think that house is worth more. I think if I can
furnish a nice area, that's a greater economic value. Even if it
weren't, I don't think, we did a--. About eight years before we
developed the property, we commissioned Hammon, Jensen, and Wallen
down on Edgewater Drive to do a tree survey, to do a forestry
survey. We had something like 5,000 trees, of which 400 had
trunks greater than four feet in diameter.
Well, I think one would have to be an absolute boob to cut
those down. [laughs] Where I come from, I think that's a
marvelous asset. Now, maybe it's not an asset you could sell for
money, but I think it's a great asset. But we could never
convince the opponents that we viewed this as having value.
The Baumberg Tract is itself an enormously more complex
piece of real estate. I mean, I like Castro Valley, I really fell
in love with it. It's just a fascinating piece of real estate.
This is--I don't know if--I could donate this to the project if
you could take it- -[shows enlarged photograph approximately 12 by
15 inches, on hard board].
I'll have to ask if the Bancroft Library could take it.
This is a fascinating thing. This is an early example of a
photograph taken with a process that was developed by NASA. Now,
I'm kind of a NASA fan in that my brother-in-law was deputy .
director of NASA for some years. They developed this infrared
photographic process.
What this does, it really I think is kind of fascinating.
This is [points] --the Baumberg Tract is right here, and this is
the San Mateo Bridge. Now, what it does: growing plants—you
could get different kinds of pictures at different seasons of the
year—but growing plants, in the growth process, they are
consuming and/or creating calories, and calories are heat. So if
vegetation is growing, you get red. Okay? That's what it boils
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down to. This thing is a very graphic picture. Now, here are the
wetlands. In other words, if it's not doing anything, it's just
water. If it's a dry salt flat, it's not doing anything. You can
see, if you take a magnifying glass, you can see around the edges
of this.
This piece of property, this particular piece of property,
historically—you see this line here. That line is the
supersewer. Okay? If you look at that closely, you can see that
the power towers march right along the supersewer line.
The supersewer line--I don't know if it's true; I think it
is generally true. The supersewer line is a line which
denominates a relatively stable subsurface soil area so that they
can install the pipeline and not have it crack or go up and down.
The lands inboard of that, generally speaking, were grain farmed,
historically. The early farmers came to this area, and the very
first ones, of course, discovered a certain number of Indians
living in the area. If you've gone across the Dumbarton Bridge
and you see the fluff that lands all over the ground when the wind
is blowing, well, that fluff is salt, of course, and the fluff
settles in declivities. If you've got a low spot in the dirt, it
will settle in the hole, and you build up salt.
The Indians would take it and scrape that, and they would
then go up into the hills toward the east, and they would trade
the salt for things they wanted. The Indians along the edge of
the Bay were sort of the least productive of any in the sense of
what we think Indians do. They didn't make baskets, they didn't
do pottery, they didn't do much of anything.
Of course, the natives in Hawaii or Tahiti didn't do much of
anything either, because they were in a nice warm climate. They
didn't have a lot of weather problems. They didn't need to do a
lot, and necessity is sort of the mother of invention for all of
us.
In any event, the missionaries came along, and Father
Serra's group, which did terrible things to Indians, did come up
with one positive thing. The early ones told the Indians, "Look,
if you put a stick in that declivity, let the salt fluff blow on
the stick and crystallize on the stick, the wind and the sun will
dry it faster, you get salt quicker. If it gets on the stick, you
can then lay it out your blanket, you can beat your stick on the
blanket, and you have clean salt instead of salt with dirt in it."
It's a way to get clean salt.
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And that, believe it or not — this true story--that is where
the expression "Not enough salt to shake a stick at" comes from.
Which initially I didn't believe, but it is true.
The later people came along, and the fanners discovered that
they could build what I call giant shallow bathtubs around the Bay
and crystallize salt, and they could literally grow salt in the
lowlands next to the Bay. Then the first tier next to that they
used for grain crops of one kind or another. Inboard, closer to
the hills, they had tree crops. The reason for that is glacial
activity and rains. The heaviest soils sink right next to the
ridges, and then the lighter soils come out as you get to the edge
of the Bay, and the very finest are right at the edge of the Bay.
The fine soils will not support a tree crop. They're also
less fertile. The heavier soils will support a tree crop. The
wetland description initially was a description that was made not
by environmentalists or not by tree people or fish and wildlife
people; it was made by Soil Conservation Service people. The
basic categorization of a wetland was made by the soils people.
The soils people up in Sonoma produce books of the various soil
types. Then the wetlands evolved, and then the fish and wildlife
types came along and said, "Hey, those are kind of nice. We've
got birds, we've got what have you." And so they picked up the
wetland designation from the soils types.
And another similar thing we talk about here in the Bay Area
is the earthquake failures of the soils in the San Francisco
Marina. That is due partly to the fact that after the [1906]
earthquake, they sort of bulldozed anything they could find, and
partly because they are very fine soils. The best building soils
are a mix of soil types, where you've got the heavy granular
material mixed with fines, because that's the most stable. The
least stable would be all fines.
There are pictures in the EIR [Environmental Impact Report]
essentially at the point where the bittern pond is at the end of
Eden Landing Road, as a matter of fact. They called that Eden
Landing because they have a little barge landing there. And that
barge landing essentially was right here, and that's the point
really at which the wetlands have pretty well disappeared. The
wetlands are all outboard of that.
If you look down here [continues using photo], these
wetlands all sort of --if you drew a line like that, these are the
sewer ponds. See, that's a wetland area. There was a fellow by
the name of Osterloh who came to Hayward, and as a matter of fact,
the house at 21800 Hesperian, the big blue house next door, was
built by Osterloh, Sr. Osterloh was a salt trader in San
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Francisco, and in the book on Hayward, it mentions Osterloh. It's
the book written by the fellow that used to do stuff for the
[Hawyard] Review-- [John] Sandoval. Sandoval's book on Hayward
mentions Osterloh.*
At any rate, Osterloh had a couple of these big flat-
bottomed barges, and he had a--I don't know what you call them--a
warehouse and—you can't call it a store for something like that,
but he had a place where he sold his salt, sort of a warehouse
market where he sold salt.
Chall: Sold the salt?
Thorpe: Yes. And he was a big salt merchant. That was basically all he
did, was salt. Then in later years, a series of companies came
along which merged and became eventually Leslie. The Schilling
spice family. Schilling was an early German immigrant in this
area. In later years, you had the Leslie Salt Company. The salt
farmers artificially determined—and I suspect that it was a
function of how much money you made mining salt versus how much
money you made growing grain- -how much area you would take up for
salt versus how much area you would take to grow grain.
But what's interesting is just to the south of the Baumberg
down here—yes . [points to enlarged map on wall] If you go down
here, right here, you can see a house protruding from the salt
pond just to the south of the Baumberg. And it's still there.
Then there's a cattle pen that you can see in that area. This
area was artificially flooded, and it wasn't flooded until, oh,
the 1950s at some point. Of course, it was farmed prior to that.
It was flooded either by Leslie or Schilling. And this was the
original sweep of the slough going like this. And this way, from
the slough was swamp, and there was probably then an area, and I
just artificially take this area in here, which I would say is
sort of a boundary area— it's pretty damn wet when you're growing
grain— and this up in here is an upland which is a farm.
In any event, none of it, although historically- -a
significant portion of it was historical wetlands— it didn't
legally qualify as wetlands by the time we came along. Here,
since 1860, these ponds from Eden Landing to the Bay had been used
as largely bittern storage. Bittern is the material left over
*John S. Sandoval, Mt. Eden: Cradle of the Salt Industry in
California. (Hayward: Mt. Eden Historical Publishers, 1988). [On pages
173-174 Sandoval discusses Henri and William Osterloh and their families,
and the historic farmhouse on Hesperian Boulevard owned by John Thorpe- -
Shorelands Company offices.]
115
after you make salt. It's one of the, kind of the legal ironies,
that bittern is not classified as toxic by the law or the
government, and yet bittern is the material they use to spray at
the edge of the roads in Tahoe to kill the weeds which also kills
the trees. Bittern, if you walk out on this stuff without plastic
galoshes on, if it's wet, about a day and a half later, your
uppers will separate from the soles, because it has literally
eaten the string out. But it's not toxic. It will kill anything
that gets vaguely near, and toxic means kill. But legally, it's
not toxic. Which I found rather bizarre.
We had environmentalists who would absolutely swear that
there was life out here in these bittern areas. They would
absolutely swear there were wonderful things to acquire, and I
would say, "For what?" God, that's the most god-awful--! compare
it to a waste dump, I mean, a garbage dump. It's an area that man
has absolutely destroyed. It's going to take a lot of money to
clean this up.
I think Fish and Wildlife [Fish and Wildlife Service] and
the government bought this largely, again, and for political
means, and to make a lot of folks happy. I don't think they have
a clue what they're going to do with it, as far as restoring it.
We did a bunch of studies on--if you wanted to restore this
Baumberg Tract—what it would take. You see, the stuff out in-
right out in the edge of the Bay, this area here had a--I don't
know where the salt came from, but a lot of salt was dumped out
there years ago. This little triangle area still hasn't
recovered. This stuff has recovered, and very well, and there is
a beautiful marsh. But it has daily ebb and flow of the tide to
clean it.
To get the tide into this area, you'd have to of course cut
out all the salt-making operation outboard. That's the first
thing you'd have to do, to get tide in there. And second thing,
you'd have to grade it in some fashion. Or, you'd have to build
some sort of canal. Murray did the studies on how big a canal it
would take, and then our engineer, Jack Stewart, who just died,
did studies on how big a canal it would take. It would take a
pretty whumping canal to get that volume of water in to ebb and
flow to cleanse it.
The areas that are most inboard--the way this is classified
[points], these were the bittern ponds. These were crystallizers .
Crystallizers are long, flat ponds where they bring the water in,
let it drop. This was a central pond that was used to put stuff
in the northerly and southerly crystallizing, to pump water both
ways. This is sort of a regular ground. This stuff is very flat.
116
Chall:
Thorpe :
What's happened in these crystallizers, and I suspect in the
bittern ponds too--in the crystallizers, the constant settling of
salt in these areas over damn near 100 years has created an
impervious layer of soil. The higher ridges, if you plow it,
which was done by Leslie which disked it at one point, in a couple
of years the upper soils will leach out a little and you get a
little bit of growth on it, so it looks as if it's coming back.
Because the rain leaches it out.
But basically, what you've done is you take salt and you
soak this area in salt. Salt contains a lot of sodium. Sodium
acts as a soil sealant. That is why the darn water won't drain
from here, why it collects water. It's just like concrete. It
makes the soil impervious. So you've created with these two
crystallizers this impervious layer of dirt.
So to restore it to any kind of use, we did a lot of studies
on that in part because if you're going to landscape it, if you're
going to landscape it and grow a tree or something, you've got to
recover the soil. And we came to the conclusion it's just--it's
very near impossible, unless you do away with the salt-making and
put tidal flow on it and wait 100 years. That's the best way to
do it.
It is good, it has some fish and wildlife uses. The plover
nests on soil. Plovers don't nest in trees, they nest in the
soil. The plover historically nested on the beaches. That's why
Dick Murray's project down in Watsonville in Pajaro Dunes was
successful. It nests on beaches, and the beaches around northern
California have all been pretty well occupied by humans over the
last, I don't know, fifty years. So the plover can't nest on the
beaches .
The environmentalists are absolutely insane when they fight
with the dog types in San Francisco, because wildlife goes where
wildlife wants to go. It doesn't go where you want it to go. If
you say, Okay, I'm going to take the dogs off this chunk of the
Golden Gate Beach, the plover's not going to go there just because
you think it's nice. Plovers go, like most wildlife, they go in
large areas, large areas, big, big areas, where they are left
alone, where they don't have human competition. So if you want to
take a couple of miles of the Ocean Beach, that's nothing.
I think there was a large plover area down there where you were
planning to develop.
Well, there were not. The interesting thing is, if you look in
the EIR when we did the studies, we didn't find any plovers, any
salt marsh harvest mice, any wildlife on the project site at all,
r
: 117
ever, and that was over a multiple period of years. The nearest
plovers were about a mile away. Now, this is not to say that they
like a huge band of noncompetitive space. I mean, they probably
do. I can't gainsay that. It's just as far as the project site,
there weren't any.
118
VI JOHN THORPE'S PLAN FOR THE SHORELANDS AND THE ULTIMATE DEFEAT,
1982-1992
The Basic Plan
Chall: I wonder now if we could just go back and start to talk about your
project. You've given good background here, but let me get
started with some facts. You have your map out, and I've got this
map. The Baumberg Tract per se, as I understand it, is something
like 800 or 835 acres. You say in your initial brochure on the
Shorelands that it's a major mixed-use plan development in the
city of Hayward combining two distinct properties totaling over
1,200 acres.
Thorpe: Well, that includes the open space areas.
Chall: The open space areas?
Thorpe: Okay, the 1,200 areas, we wanted to buy—that's back in 1983 or
so. We wanted to purchase from Leslie, and we contracted to
purchase this outboard area which was known as the Whale's Tail.
We thought that ought to be dedicated open space. Don Edwards is
an old friend of mine. I talked to Don Edwards about how that
outboard area plus the Whale's Tail could be incorporated into the
bird refuge. [The Don Edwards San Francisco Bay National Wildlife
Refuge]
Chall: I see. But that belonged to Leslie?
Thorpe: Yes. All this belonged to Leslie. Leslie owned, or owns, about
6,000 acres in that area.
Chall: So you were planning to take an option on 1,200 acres, is that it?
Thorpe: We did take an option.
Chall: You took an option on 1,200 acres.
119
Thorpe: Yes.
Chall: And you were planning to build, then, your project on about 600 of
those acres, and leave 500 open for open space?
Thorpe: Yes, 500-some-odd acres, was developable land. Yes, 530 or
something.
Chall: All right, I'm just trying to pull in figures that 1 get here and
there. So that your project was, in a sense, within your option,
allowing 500 acres for open space, which was there already.
Thorpe: Well, the 500 of open space, plus about 200 acres of what I would
refer to as inboard developed open space of one kind or other.
Thorpe: We wanted to purchase this. This is marshy habitat here in this-
Chall: I see. I've got this big map too here, that maybe we can-
Thorpe: Okay. [much unfolding of maps]
Chall: You were optioning up here, this area that's enclosed in red.5
Thorpe: Right. Not this originally. Not that piece.
Chall: You weren't taking the Perry Gun Club.
Thorpe: No.
Chall: It was just this that's down here [along Mt . Eden Creek] to the
levee.
Thorpe: Right. And then this strip here--
Chall: Along Mt. Eden Creek [in blue ink].
Thorpe: Yes, and it went out here and took the Whale's Tail.
Chall: I see, this is the Whale's Tail out in here.
Thorpe: Yes. If you look at it in the--in there—you see how it looks
kind of like a whale's tail?
5Looking at a large map outlined in color, designed by Howard
Cogswell.
120
[During the next few minutes, Mr. Thorpe and Mrs. Chall discuss
the map. He roughly describes the areas set aside for mitigation
in the early stages of his project. Mr. Thorpe was recalling as
much as possible. The information can be seen on Map 1.)
Thorpe: In those days, there was no requirement that you construct
artificial mitigation. You could buy mitigation lands. Now
again, you can buy mitigation lands and dedicate it. So that area
is kind of foggy. You see, this area here—
Chall: Yes. The Whale's Tail.
Thorpe: These were areas that we recognized as having significant
vegetation, and therefore, significant—yes, it goes on down here
--okay. These were areas that we saw as having significant
vegetation. And we widened this channel, with the theory that
you've got to make it wider if it's going to have any value [hatch
marks , Map 1 ] .
Chall: For trails. Or whatever.
Thorpe: Well, this was for open space.
Chall: Open space, yes, I see.
Thorpe: The trails would go inboard of that.
Chall: I see, so that was your open space. And your area that you had
taken an option on then went from—
Thorpe: We worked up with Cogswell a plan, and I don't have- -I don't know
that I have a- -maybe it's in the EIR--the original plan, the
original mitigation plan--. [pause] I don't seem to have a map
of the original one.
Now, let's see, the original mitigation plan was to go down
to this area 5 in here. [B8 on Map 1]
Okay, so the original plan would have been down here.
Chall: That's the original plan we're talking about for--
Thorpe: The original mitigation plan. Yes, and we had worked this out
with Cogswell.
Chall: That was for what—the plover area?
Thorpe: No. Plovers — the reason— even though there have been historically
no plovers here in years, we have all kinds of plover studies. We
121
did plover studies coming out the ear, and we could never find any
plovers on the site. Plovers nest on substrate, they nest right
on the dirt. But you see, wildlife, as I was saying earlier,
wildlife go where the wildlife wants to go. I mentioned the
Golden Gate Recreation Area and the dogs, and that being silly.
You can't tell plovers where to nest. You can create an area, and
whether or not they go there is problematical. Okay? Right here,
see? See, right here is this area right here, yes.
Chall: All right, and we're talking about this area, then, here. [B9 on
Map 1]
Thorpe: I believe it was—and I don't have a map—but I believe it was
this whole area here. They would take, for example, a pond here,
and fill it and turn it into an island.
Chall: Is that the original mitigation, with the islands?
Thorpe: Yes, various islands and things. And Cogswell said, "You know,
you'd probably have more wildlife in that whole general area in
here after mitigation than you have now." He thought it was very
positive.
Chall: Okay. I think I see your plan. This is the 600 and some acres
that you were going to build your racetrack on—this upper area in
here.
Thorpe: Yes, 520 or 530.
Chall: It was in this upper area in here. [Map 1, outlined in red]
Thorpe: Yes, the racetrack went right here. Racetrack right there. Okay.
Chall: All right. Racetrack went there, and then your various buildings
and things went there. [See Shorelands Project promotional
material, back envelope]
Thorpe: Industrial, yes, right.
Chall: There was — let me see if I can— on these— there was a gun club,
and then there were Oliver Salt-
Thorpe: Okay, this is mitigation plan 2.
Chall: So originally you hadn't planned to—
Thorpe: We were down here originally.
122
Chall: And you had not planned to do anything in this area, you hadn't
planned to take in the [Perry] Gun Club or the Oliver Salt land?
Thorpe: No. We increased our option to include the Gun Club, which was
going to be mitigation.
Chall: I see. That was your second mitigation plan.
Thorpe: And we proposed to turn over the back 129 acres of Oliver to
mitigation. [Oliver Hayfield, Map 1]
Chall: But you proposed it. Was Oliver amenable? How did you deal with
Oliver?
Thorpe: [laughs] Gordon Oliver was never amenable for more than two days
on much of anything. Gordon was a very cranky person. We got an
option. When the option expired, Gordon would not renew it.
Chall: I see. You did have an option.
Thorpe: Yes. What happened is some Fish and Wildlife people came out. We
tried to explain to Gordon that the Fish and Wildlife people had
to go out on the property and look at it in order to decide
whether or not they wanted it. And Gordon felt very strongly that
they should not walk on his land. And so when we got the option
for two years, the Fish and Wildlife people went out and said
okay. At the end of the two years, Gordon said, "They had
absolutely no right to walk on my land."
Chall: And this was the Oliver acres down here, this 129 acres?
Thorpe: Yes. Gordon was not an easy man to deal with.
Chall: So you never tried—you didn't want the Oliver acres up in here?
[North corner of commercial area, HARD, Map 1]
Problems with the Environmental Community
Thorpe: We offered to acquire it for HASPA [Hayward Area Shoreline
Planning Agency], Well, we tried various combinations of various
things. It was a case of the politicians were trying to cause the
environmental community to accept something, and the environmental
community by definition wouldn't accept anything ever.
Chall: Well, all right. Now that we've sort of outlined your problem--
123
Thorpe: [laughs] Well, that's the fact. But whether one wants to
acknowledge it or not, it was the fact that you had a certain
number of people. We had--oh, what was her name in Castro Valley?
Chall: Janice Delfino?
Thorpe: Janice. Now, Janice. When I did Columbia, Castro Valley, there
was an old dead tree next to where we were going to put an access
road. The deal we did in Castro Vr.lley with the East Bay Regional
Park District—that's very instructive. In Castro Valley, the
East Bay Regional parks had planted eucalyptus down this canyon
here which they didn't want. They had planted them, and they had
a PR problem, because the Oakland Tribune had bought the
eucalyptus in a publicity thing.
Chall: The Oakland Tribune had bought it?
Thorpe: The Oakland Tribune contributed a dollar to buy eucalyptus for
each subscription they got back some years before. The Oakland
Tribune caused the planting of dozens and dozens of eucalyptus.
On the one hand, regional parks didn't really want to come out and
say, "The Oakland Tribune has saddled us with a terrible fire
hazard." On the other hand, they wanted to get rid of them.
So we were going to put our entrance road down that canyon
and take out the eucalyptus. In turn, we would not take out the
natural trees which we had in our canyons. You see, we could have
come up from Cull Canyon Road up our canyon, but that would have
taken out decent trees.
Chall: Cull Canyon Road?
Thorpe: Cull Canyon, yes. And the point is, neither Mr. [Richard] Trudeau
nor myself wanted to carve up a bunch of really nice oaks and bays
and laurels, and it was much better to take out the eucalyptus.
Well, so then we had completely entered into the agreement
with the district, which was all signed, by the way. At that
point, Janice came out in a public hearing, had a slide — it was a
very nice slide—of a woodpecker in this dead tree. I pointed out
the tree is dead. And Janice said, "Well, it's full of worms, and
the woodpecker— it's a food source for the woodpecker." I said,
"Well, tell you what we'll do. We will saw it off with a
chainsaw, we will move it out of the area so it's maybe twenty
feet away, and we'll plant it in concrete, and the woodpecker can
continue eating it. Or, the woodpecker can cruise down two miles
of Cull Canyon and select another tree. It's up to the
woodpecker. "
124
Janice did not think it was funny. Janice knew that I never
would have done anything with regional parks if she hadn't forced
me. She knew that their battle had done it. Of course, Trudeau
and I both knew that it was all agreed to ahead of time. My
mother was an open space and tree and wildlife and nature nut,
which I am. And my mother had told me when we bought that Cull
Canyon property that if I ever cut any of those trees, she'd come
back and haunt me from her grave. And she would. She would. So
then Janice got on this one.
Chall: Yes, on the Baumberg.
Thorpe: Oh, yes, we had Janice—did we have Janice on the Baumberg.
Janice and a lady in San Lorenzo- -
Chall: Barbara Shockley.
Thorpe: Barbara Shockley. Of course, those people did a lot of good.
Janice has done a lot of good in her time. I can't--. Because
Janice stays on the city councilmen, she stays on the supervisors,
and she--
Chall: Yes, she does.
Thorpe: And she fastens her jaw into their calf and never lets go. And
you need some of that. Most of the development community wouldn't
do a thing for mitigation if they didn't have to. You see, I
don't know. I look back at the Baumberg Tract and say, "Well, on
the one hand, yes, it's a matter of economics," and I'm desolated,
I lost money. But I take the position that I did on the onset of
our tape session, that it's not going to make any difference 200
or 300 years from now. It will be whatever it's going to be.
Plans for the Racetrack
Chall: Well, I want to get some of these facts. You have an outline?
Well, I have it.6 But let me go back to the plan. As I
understand it, you had thought of putting in Marine World Africa-
USA and a horse racetrack-
Thorpe: Originally, yes.
'Mrs. Chall delivered an outline of the interview to Mr. Thorpe
several days prior to the interview session. It was on his desk in another
room in the office. Later he retrieved it. --M.C.
125
Chall: --originally. And was it on that same property?
Thorpe: Yes.
Chall: You had then, you had an option with Leslie Salt or the Cargill
people at that time?
Thorpe: Yes. We had an option all during this time.
Chall: And for that whole acreage, that 1,200 acres.
Thorpe: Yes.
Chall: With whom were you dealing at Leslie?
Thorpe: At Leslie? With two people, Paul Shepherd, and Bob Douglass.
Very nice people.
Chall: Is that the Mr. Douglass who's there now?
Thorpe: Yes. And I think Howard Cogswell would second the motion that
they're really decent human beings. I had a wonderful
relationship with them. I have never run into capitalistic types
who are as straight and honest as the folks at Cargill. I mean,
you can absolutely accept their word. They're very rare birds,
and they've worked a lot with Howard over the years.
Chall: Yes, they have. So these are the people with whom you took a ten-
year option.
Thorpe: Maybe it was five, another five, I don't know.
Chall: So you started that plan in about 1981?
Thorpe: Right.
Chall: All along, then, the racetrack was a part of the deal?
Thorpe: Yes. You see, the racetrack was an economic gain, and the
statewide and political gain legislatively. The Marine World was
a heavy cost element. And I liked Marine World, I really did.
Marine World then through time--. You see, they were in the
process of losing their present premises.
Chall: Yes, so they were going to have to move.
Thorpe: Yes. But they could not--you can't put a cork in the camel's
mouth and wait a few years. There's an awesome cost to
maintaining them [the animals], and we knew—after a while, we
126
knew we couldn't produce anything in any short period of time. We
had done a bunch of big studies like this on Marine World. We
gave those studies—we gave them--to Vallejo, and Vallejo
acknowledged on numerable occasions that they could not have done
Marine World if we hadn't made it possible.
Chall: I see, so it went there. And that left you with the option on the
land, and so at that point, you decided to put in a hotel and the
other commercial developments?
Thorpe: We were always going to do hotels.
Chall: So nothing changed.
Thorpe: Hayward is a place where there is no "there" here. We were trying
to put some "there" in Hayward. We were trying to do something
that would support a hotel development and therefore permit us to
create a visitor program for Hayward. We were trying to do
something to help generate some economic push in Hayward.
Something which it still needs.
Chall: Ah-- [laughs] In all the work that went into setting this up,
then, you checked with the horse people and thought that there
were some possibilities.
Thorpe: Well, there still would be. You see, if you just geographically
look at Golden Gate Fields [Albany], Golden Gate Fields is owned
by Catellus. Catellus has piecemeal sold that property to the
state for its parks and open space. There was a bill passed.
There is a plan for the area being developed by the East Bay
Regional Park District. That is slated to become a park. That is
not going to be racetrack, longterm.
Chall: That's part of the area. [The planned East Shore Park.]
Thorpe: Oh, yes, yes. And part of its problems in development as a park
is you see, underlying the racetrack was a World War II military
airstrip, and it is full of toxics, and it is full of eight feet
of concrete. [laughing] I mean, land they are taking here is a
quarter under concrete. So that's a tough thing to turn into a
park.
Chall: But you had problems just getting—eventually just getting them to
accept the fact that you might not succeed in this development?
Thorpe: No, we didn't need the folks at Golden Gate Fields. Bay Meadows
[San Mateo] is even now as we speak—they ' re both now as we speak
being phased out. Bay Meadows has come up with this theoretical
plan to build barns in the infield. They have sold off the
127
training track area and the barn area to Franklin Resources to
build an industrial park and so forth.
Racetracks are basically an agricultural use. Racetracks
have a lot of horses, and 2,000 horses smell. And you do not put
hotels and office buildings next to piles of manure if you have
any sense at all. So Bay Meadows is going to be developed. Bay
Meadows has been sold for $300 million to a company that's in a
development business. So we knew there wasn't going to be a
racetrack in the Bay Area if ours didn't get built. That was the
basic engine behind that.
The City of Hayward: A Roadblock
Chall: But the time was not right, because it's just happening now rather
than when you had your option some sixteen years ago.
Thorpe: They are folding now, but they would have—we had a contract with
Bay Meadows. We had a contract with Bay Meadows. They would have
entered into a contract any time. Our problem was very simple:
it's called the city of Hayward. We got permits through each and
every federal agency; we got permits from each and every federal
agency. We got through the entire federal planning process.
Chall: For the racetrack?
Thorpe: For the racetrack, for the whole thing, for the Baumberg
development. We got each and every permit we needed. Leslie can
tell you that. We got all the federal permits. We were through
with Fish and Wildlife, we were through with EPA. And not the
final, final, final, but we were 90 percent through with EPA. We
got a written letter from Fish and Wildlife that we could proceed,
that their jeopardy opinion was dropped. And Corps of Engineers.
Our problem was simply the city of Hayward.
Chall: I don't understand that, because from everything that I read, you
didn't have any final approvals on any of this.
Thorpe: You don't--under the federal permit process, you have to have the
city approval before they issue a final permit.
Chall: I thought the city was all for it.
Thorpe: No.
128
Chall:
Thorpe:
What happened?
the city.
I didn't see any correspondence with relation to
Chall:
Thorpe:
Chall:
Thorpe:
Chall:
Thorpe;
Chall:
The city manager's office kept losing our permit application. We
could have sued the city of Hayward. Maybe in retrospect I should
have, I don't know. But the city dropped the permit application,
the city closed our files at one point. The city was hostile,
negative.
I can't--! find that hard to relate to.
Talk to Leslie. Talk to Leslie, they'll confirm it. During the
Alex Giuliani era, the city was very supportive.7 The city was
supportive, and the city was not supportive during the Bertie
[Roberta] Cooper era.8 No, Alex Giuliani was positive. When we
got to Michael Sweeney, it became very, what I would have to call
neutral, all right?9 Neutral if not mildly negative. When we hit
the--you can talk to the engineers, you can talk to Leslie, I can
tell you, the city kept asking for more studies and more this and
more that. The city stalled us out during the--. And it was, the
tail end of it was with Cooper, no question about it.
You see, city politics are largely, and the relationship of
developers is largely set by the city manager, and the city
manager's office.
And who was the manager at that time?
We had a good relationship with [Don] Blumbaugh. The instant we
got Jesus Armas, we had problems.
But it seems to me that these people came after the 1987 when you
had given up primarily.
We didn't give up in '87! We didn't give up until 1991.
I see. I don't have any information, any material in my files
beyond '88.
II
7Alex Giuliani, mayor, 1982 to 1990.
"Roberta Cooper, former city council member, 1992-1994; mayor, 1994-
1998; 1998-2002.
'Michael Sweeney, mayor, 1990 to 1992. [Elected to California
Assembly 1992-1998]
129
Chall: I'm trying to get the story, John, of how this all came about.
Thorpe: My files are in sufficient disarray—you asked about the tail end
of this story--
Attempts to Overturn the Jeopardy Opinion of 1987
Chall: Yes, I would like to start at the beginning. I did ask about the
tail end, because you were telling me about the city, which
confused me, because I didn't have anything about the city in my
material.
Thorpe: Okay. Just briefly, basically what we did: after the jeopardy
opinion, we focused lust on the jeopardy opinion until we got b_y_
the jeopardy opinion.
Chall: Oh, you did get by it?
Thorpe: Yes.
Chall: How did you do that? There must have been mitigation.
Thorpe: We hired a company- -Thomas Reid Associates over in Palo Alto.
There was a newspaper article where one of the Fish and Wildlife
people said, "Yes, they can now proceed."
Chall: So the Fish and Wildlife allowed you to proceed?
Thorpe: They did announce that we can proceed. We were by the jeopardy
opinion.
Chall: I would like to see that.
Thorpe: I don't know that I could dig out the press clipping.
Chall: But you must have something from your files that would- -
Thorpe: I--hmm. I have no idea if I could find that or not. I haven't
kept all this stuff in apple-pie order. I don't have any money.
I do not have any money to fund the secretaries to take care of
files.
Chall: Yes, but I would expect that they would be in a paper box
somewhere, in a carton.
Thorpe: You know how many cartons of Shorelands files we have?
129a
U.S. Prohibits
Shore Project
By Edward In at a
Federal officials yesterday
refused to allow development
of a racetrack, hotel and busi
ness park at the edge of San
'Francisco Bay in Hay ward.
The U.S. Army Corps of Engi
neers, which has authority over fed
eral wetlands acreage, denied
Shorelands developer John Thorpe
permission to build his dream pro
ject. The corps said the S500 million,
637-acre development may be dead
unless he drastically revises it.
Colonel Galen Yanagihara. the
corps' district engineer in San Fran
cisco, told Shorelands officials yes
terday morning that he agreed with
;U.S. Fish and Wildlife biologists
that the project would harm wild-
• life and the bay environment.
tndongered Species
In October, the Fish and Wild-
•life Service found that the Shore-
•lands would threaten three endan
gered species: the least tern, the
clapper rail and the salt marsh har
vest mouse. The agency issued a
strict "jeopardy opinion" and urged
.the Corps of Engineers to reject a
permit to develop.
"The corps w ill not issue a per
mit in face of the jeopardy opinion,"
said Army spokesman Frank Rezac.
<3t will take some major revamp
ing."
David Nesmith. conservation
director of the Sierra Club's San
Francisco Bay chapter, said, "We're
very satisfied. This project is simply
wrong for the area. Anybody who
vants to build a project that de
stroys wetlands is going to have a
very hard time."
"The longer it takes, the more
apparent it becomes to even-one
that the Shorelands won't fly, '"said
Barbara Shockley of the Hayward
Area Shorelines Planning Agency.
"4l's a fantasy, a pipe dream."
developer's Response
Thorpe, a real estate attorney.
played down the setback. He char
acterized yesterday's action as
merely another step in a Jong, tire
some regulatory process with gov-
agencies.
"Clearly, this will impact the
sue and costs of mitigation," said
Thorpe. "And very clearly, the
corps strengthened the hand of the
Fish and Wildlife Service. The land
has very little value ____ We'll have
lo offer a solution that will be better
for the wildlife than what's there
now."
He said he will meet with Fish
and Wildlife biologists in Sacramen
to next week to see if a new propos
al is possible.
"We seem to keep rising from
the ashes," said Thorpe. "We'll just
have to keep meeting until we work
something out."
Failing a solution, Thorpe can
appeal the ruling to the Corps of
Engineers' regional office or chal
lenge it in court.
i
C>
SO AHEAD...
MAKE
good
Shorelands
for the East Bay
Till: I'KOI'OSKI) !137-a( re Shoi eland- race Hack
and industrial development will enhance both Hay-
ward and the East Bay.
We th;nk the benefits from developei John
Thorpe'.', piuject mar the Bay shore outweigh the
And. we believe it's time that government agen
cies ijiiit jerking around the Hayward developer. He
deserve- a straight answer concerning hi? six-year
qii'T.t to build a major development along Hay ward's
sli'.'ieiirie. south of the Hayward-San Mateo Bridge
Thorpe s proposed J-169 million project includes a
hoi>r racing track, theme park, hotels, comrneicial-
iiidii-iiial buildings and plenty of open space
1 : nl "r innately . Shorelands is near the si arce wet-
lands of San Francisco Bay and provides a home for
three endangered species — a mouse and two birds.
That h''s brought opposition from environmental
•:ii;up.- and government agencies empowered to pro-
'.cct environmentally sensitive areas
We. ton value the environment The protection of
dwindling natural resources and recreational areas
'iiroughnut the Bay Area must be high on everyone's
priority IIM
HOWEVER, THOHPE'S Shorelands property is
not Yosemite Valley. The wetland? and plants that
grow in the area formerly used for salt harvesting
won t be included on any Bay Area scenic tours
The Sh'.ii elands is an appropriate wale; front area
in (icveiop \Viiy let an essc-n tidily '.'".aer-U-Ne- ^rea
rem.jin barren when a suitable development could
creat'.1 in. my jobs, generate valuable tax revenue for
the city of ilay ward, and actually improve the aes-
Thurpe'f project would fit that bill, as long as
reasonable mitication measures are employed lo
protect the ern H onment He has often proposed sucn
mitigation;
The Hayward developer mus; also satisfy the
public tl-.nt he will be able to meet the increased
iraffi'- di-m.inds that the huge dev-loprnent '.vouid
gc!iei-ate in an ai^a that already of;en exp-.-ne^cfs
gridlock He must demonstrate that before any
phase of his project is completed, the additional
roads and highwav interchange.; ne> ded tc handle
the increased traffic will be in place
Engineers won't
consTd'eV'crantmg'fhofpe a construction permit lo
h-jild Shorelands unless the U.S. P'ish and \. ildi
Service icmovcs its objections. The federal a»ency
(( nrs the project would harm three endangered spe
cies" the salt mar^h harvest mouse, the California
••lapper rail and the least tern.
THAT'S Till-: way i; has been for Thorpe since
l|i?,l uh"n he fir-t proposed Shorelrfiid-. He ha-
clianged his project a number of times o\er the
vtars in h.o;,LS of making hi^ project envii'Oinriculal-
jy acceptable to state and federal agencies.
A num'.ivi of go1, eminent agencies must give their
blessing beforv ci>nstruction iv-jr a waterway can
proceed That's the way it should be to en.-uri- that
valuable natural and recreational resources are pro
tected, and not de-tro\ed. when the bulldo/ers start
mining the dirt
What v." ob|cct lo is the process, the incredible
IHIKMIICI.H > that ha> prevented Thorpe liom getting
a straight answei One can be assured that when
Thorpe int: 'Mines mitigation measure., to appease
one agency, there will always be another ready to
shoot it down
Six years and $10 million later. Thorpe still
doesn't" know whether any type of development will
be allowed on his shoreline property.
That's absurd
The Hayward developer should have his day in
court where he and all the regulatory agencies can
present their facts at a public hearing and argue why
Sh'jrelaii'ls should or shouldn't be built
TO i)-\TE. aii government agencies involved have
vet in c"inc together, interact and render a reason
able judgment as to the merits of Shorelands In
M-v,,l ti;r .-.gcni'ic:; keep pnssii'g ?!••<» hunk, which In
effectively placed the project in a bureaucratic
limbo
!'.'; '.:rv.c !o ;I.akc the piOit.ct oul o! iiie bureau
cratic. spider .veb and let Thorpe demonstrate its
considerable merits to the public
We think Shorelands is good for the East Bay and
good for Hayward
We urae the competing bureaucracies to get to
gether and cive Thorpe some straight answers so the
project can proceed through the approval process
130
Chall: [laughs] I can believe it. Up in your attic somewhere.
Thorpe: No! For example, just by way of brief example, I've got a whole
garage full of them there, each and every one of these is full of
the Shorelands files. All these, the garage there and my garage
at home--10
Chall: Are they dated?
Thorpe: Well, they're numbered, and they've got some sort of system. The
fact is that basically, we have focused on some litigation with
some partners, and we haven't focused with historically saying
what happened.
Chall: So you got through those fourteen-some permits?
Thorpe: [moves away, long pause, returns with several volumes of
mitigation-EIR/EIS reports] There was Thomas Reid and Associates
in Palo Alto, and Richard Murray Associates.
Chall: Now [looking at plan books] this is the draft of March 1987; this
one is dated September 1990, Volume I." It says here,
"Shorelands Response to Thomas Reid Association, June 15, 1989,
Letter Regarding Scoping." So in other words, what happened is
that you went back again to get your--you went back through the
permit procedure, is that right?
Thorpe: We hired Richard Murray Associates in Carmel--
Chall: Yes, that was the first-
Thorpe: --Monterey. But we rehired them, along with Thomas Reid
Associates in Palo Alto--
Chall: And what was the reason for doing that?
Thorpe: They prepared a series of books-- [walks away, tape interruption]
Chall: You hired?
Thorpe: Thomas Reid and Associates of Palo Alto. Richard Bailin, our
attorney, advises me that in a file cabinet here we have all those
10Mr. Thorpe opens a wall closet to show some fifty numbered file
boxes, only a small portion of the total number stored elsewhere.
n"The Shorelands Project Environmental Impact Statement Information,"
(Thomas Reid Associates) September, 1990. Volumes I, II, III.
131
contracts, and that he has maintained all those files. Murray and
Reid prepared numerous plans, drawings, and engaged in studies.
We hired a plover lady from Alameda [Leora Feeney] .
Chall: A plover lady!
Thorpe: Plover lady. We spent hundreds of thousands of dollars on this
stuff. She did a bird study which among other things showed there
were no plovers. We prepared alternate mitigation plans. We
negotiated with Fish and Wildlife in Sacramento, and they finally
gave us a letter. The letter stated that with the revised
mitigation, we could in fact obtain the permits. There was an
article in the Daily Review, and they did ask the lady in
Sacramento, and she did state, "Yes, they can proceed." Okay?
[See article, following page]
Chall: I'll have to find those. That was probably about 1990 or 1991, if
this came out in 1990. Because these are all responses to all of
the previous studies and comments.
Thorpe: Yes. I would think- -where is this sheet that had the different
people we contracted with, Reid, for example?
Meetings with Representatives of Environmental Agencies
Thorpe: [leaves room, tape interruption] It was a misunderstanding that
the federal authorities stopped the project, not the city of
Hayward. But by that time, it didn't matter, and so we simply
didn't bother correcting people.
The final thing that was issued—you see--I have to explain
this. The jeopardy letter is contained in a document called the
Preliminary Biological Opinion. The Preliminary Biological
Opinion is not a final biological opinion. We met with a whole
slew of people. In May of 1990, we had a meeting at the corps,
with Calvin Fong and Irene Ulm of the Corps of Engineers; Pete
Sorensen, Wayne White, Peggy Kohl, from the Fish and Wildlife
Service in Sacramento. Wayne White was the then head of the
Portland office of the Fish and Wildlife Service, along with two
field workers, Peggy Kohl and Pete Sorensen.
Chall: They were also with Fish and Wildlife.
Thorpe: Right. Bob Ruesink [spells] and Don Sundine, Fish and Wildlife
Portland regional office. Tom Reid and Karen Weissman [spells] of
Thomas Reid Associates.
13 la
Shorelands
moves closer
to approval
Race track learns what
it must do to protect
endangered species
By Dennis J. Oliver
SI'AFF WFUTER
HAYV,'ARD - - The Shcrelands
project — now proposed as nearly
600 acres of race track. Industrial
park, and theme park on the Kay-
ward shoreline — Is closer today
than It ever has been to becoming a
reality.
The U.S. Department of Fish and
Game Last week decided the devel
opment would threaten three types
of endangered species, but listed a
number of ways that those con
cerns may be alleviated.
Developer John Thorpe believes
he can accomplish that.
The answer lies In a pile of wordy
government documents that pave
the way toward Thorpe's permit to
fill an area of sensitive wetlands In
exchange for a- mitigation plan.
Maps of the development show
Please see Track, next page
Track: Developer could
give up more for wetlands
Continued from previous page"
about 1.000 acres of land, half
relegated to endangered creature,
the other to concrete.
"There are a number of hurdles
that can still be overcome." said
Peggie Kohl, a fish and wildlife
biologist. "Things are not crystal
clear. We could Issue an opinion
that It can be built without risk to
the anlmal(s)."
If that happens, Thorpe will
come a step closer to obtaining a
permit from the Army Corps of
Engineers to fill an area of
wetlands.
Fish and wildlife officials told
Thorpe that his project would
Jeopardize the salt marsh harvest
mouse, the California clapper rail
and the least tern.
To repair the problem, a num
ber of suggestions were made. In
cluding the suggestion that
Thorpe remove 60 acres of crucial
development land from his
project.
Thoroe savs he can <\ea\ with
only remaining obstacle before
Thorpe applies for his permit from
the corps.
Once a satisfactory plan Is ac
complished. Thorpe feels the
benefits his project would provide
to the community In revenue and
help with financing a Hayward
traffic plan would make
Shcrelands attractive to local
government. .
The City Council Is largely un
decided on how It feels about the
Shorelands project, according to
council members questioned last
'week.
Councilman Matt Jimenez said
he has been In favor of the project
from the beginning.
"1 was raised In Hayward all my
life and I used to go down to the
salt flats all the time and I've nev
er seen a salt water harvest
mouse out there." said Jimenez.
Council members Roberta Coo
per and Shirley Campbell said last
week that they were largely unde-
' and uninformed about the
the demands federal biologists
have made, and that an area of
compromise Is In the horizon.
A letter mailed from Shorelands
to fish and wildlife ofTicials lays
the ground work for some of that
compromise.
Setting up a successful predator
control program aimed at protect
ing the endangered species Is the
project .'Maxor Michael .Sweeney
said he was concerned abo'ut the
project and that he would ask
some "tough questions" before
forming an opinion.
The Shorelands track and In
dustrial park would provide an es
timated 15.000 Jobs In Hayward
and would fill an assessment dis
trict.
132
Chall:
Thorpe :
Chall:
Thorpe:
Chall:
Thorpe :
Chall:
Thorpe :
And was there somebody from the state?
There was myself, Nori Hall, and Dick Bailin from Shorelands.
There was Bob Douglass from Leslie Salt Company. There was Dave
Ivestor from the attorneys for Leslie, Washburn, Briscoe, and
McCarthy. [spelling all] There was Jack Stewart from Kregan and
DeAngelo, our civil engineers.
Well, I'll tell you, maybe we should just copy that so I don't
have to take the time writing all the names.
Okay. There was Steve Foreman of WESCO, there was Jeff Peters of
Questa. Okay. Now, we had hired--oh, dear, this—better take the
names, because I'm not going to copy it, because it's two-sided
and it's an old one. Or I can copy it for you later.
Yes, some time later would be fine,
and Game in this? Were they there?
Now, where is the state Fish
They don't have a role in it. The jeopardy opinion is solely a
creature of federal law. Now, this is the meeting following which
we were told we can obtain a permit, and they wrote us a letter--,
[looking through files] Is this the letter? Let's see. This
letter is May 21, '90--no. I don't know where that letter is, I
don't think. But the point is, this--I believe this is the
meeting just prior to the letter that says you can obtain--.
Bottom line, what happened is simply this. We could not get
the Sacramento office of Fish and Wildlife; they had done this
jeopardy opinion, and it was absolute B.S. None of the creatures
that they said we jeopardized with the project were in fact on the
site. We couldn't get them to do a damn thing. Fish and
Wildlife's regional counsel told them, "That isn't going to fly.
That will simply not fly. If this thing is litigated, you're
going to lose."
That they would lose, or you would lose?
That they would lose. Wayne White was then transferred to
Washington, and he was sent to a special school, a management
school. Wayne White came back and was made the new manager of the
Sacramento office, in part because of this mess, okay? And
meanwhile, we got Thomas Reid, we had the plover studies, et
cetera, and they then said, "Okay, you can obtain a final
biological opinion," and there was an announcement in the paper.
Then, because we were ready to drop the thing and Leslie was
ready to drop the thing, we were all saying it was hopeless, let's
face it. At that point they said, "No, it's okay."
133
Attempts to Solve the Predator Problem
Thorpe: We also hired another company, Wildlife Control Technology. You
see, what happened is the preliminary biological opinion said that
what the project is going to do is multiply rats and they're going
to go outboard and destroy the plovers. What happened was it
developed that there is a surplus of predators.
The range carrying capacity for skunks and other predators-
rats, every kind of predator--out on those outboard areas is
exceeded. There are more predators out there than the range
carrying capacity in the area. And the only predator problem we
would have is predators coming in that are already there.
Fish and Wildlife Service then hired this outfit, and they
went out and they shot red squirrels. This is the killer--this is
the CIA for Fish and Wildlife. This is the company that they use
to shoot red squirrels that all the environmentalists think are
lovely but they're in fact awesome predators. Okay?
Lack of Support from the City of Hayward: Thorpe Drops the
Shorelands Project, 1992
Thorpe: In any event, it then became evident that we had zero support from
the city. We just didn't have any support from the city
whatsoever. We then said, "Look, it's going to take another
couple of million bucks to conclude this thing, and it simply--
there's no point if we can't get any help from the city." That's
when we dropped it. The same, every major project in the city of
Hayward. What has happened up in the Hayward hills? They were
lied to, just the way we were.
The Baily property lies just below Hayward 1900. Both
Hayward 1900 and the Baily property were told, "If you work with
the city and come up with a design for the appropriate number of
units that will be between X and Y, we will go forward." And they
have screwed around for years just the way we did, and they've
gotten nowhere. Is there any development? No. Are there any
permits? No.
What happened on the golf course? Same thing. I mean, the
city keeps telling you, "We will go for X and we will support X,"
and then they don't.
ISA
The point is, you cannot hold a successor city council for
the commitments of a prior city council.
Chall: That's right.
Thorpe: So what do you have in Hayward as a result? You have absolutely
no one trying to develop anything major. They're not going to do
it. It's too risky. The point is, we showed that you can spend
millions of dollars, and you can do a well-intentioned effort, and
it's not going to get there.
But the point is, people must understand the process. The
process is one where, in finalizing the EIR and issuing permits,
the corps does not issue a permit until after the city issues a
permit. That's the way the process works. You don't get the
final permits from the federal agencies until you have the initial
permits from the city.
Chall: I see. And I thought that early on, you did have the initial
support — in the Giuliani era?
Thorpe: The Giuliani era, we had enormous support. Parenthetically, even
though Alex is a perfectly nice guy, Alex would support anything,
whether it made any sense or not. [laughs] But then you got
Michael [Sweeney]. You have a bunch of politicians, and in
Hayward, to understand Hayward politics is very simple. The
mobile home park tenants, who are older, the police and firemen
associations. If you have those three, you have elections. Okay?
Now, nobody wants to raise any controversial issue in
Hayward politically. You have a bunch of people, all of them
happy being reelected, and they get reelected if they do nothing.
So they make the mobile home park tenants happy with vestigial
rent control. You know, they do those things that do elections.
The Finances: The Limited Partnership. Bankruptcy, and Subsequent
Continuing Litigation
Chall: I'm about ready to finish now, but before I do, tell me-- just to
get this financial thing understood—you had to set up a
partnership. As I understand it from reading your partnership
material, that you originally thought you might have, what, maybe
eighteen or nineteen limited partners, and ultimately, according
to the newspapers, at the end of the time you had about fifty, is
that correct?
135
Thorpe:
Chall:
Thorpe :
Chall:
Thorpe:
Chall:
Thorpe:
Chall:
Thorpe:
Chall:
Thorpe:
Well, seventy.
And you in fact put in about $2.75 million of your own money?
And my wife and son put in another million. We had about half the
money in it. But the total project investment was really about $8
million.
About $8 million total. I had $10 million in my data.
Well, there was $8 million, plus we ended up with about $10
million in debt.
How many did you say you
How did you get the people together?
ultimately had?
Seventy.
Seventy. So how, ultimately did you get those people? Who were
they?
Originally it was all my money. And then I saw I wasn't going to
have enough, and I got friends.
Yes, you had plenty of those around, I'm sure.
Yes. And then, made a real error. [laughs] Which is an
attorney. Dick Bailin here had been in a law firm in the city
[San Francisco] called Dunne, Phelps, and Mills for many years.
In San Francisco. They were one of the oldest law firms in the
city. Then both Phelps and Dunne folded their tent. The senior
partner one day, Arthur Dunne, did not return to work and never
returned again. He was one of the foremost appellate lawyers in
San Francisco; he just quit. So they all looked at each other for
a while wondering what the hell's happened to Arthur.
And then Lou Phelps left and joined with a fellow by the
name of Ted, Theodore Kolb. Kolb was the senior partner of a San
Francisco law firm called Sullivan, Roach, and Johnson. I made
two mistakes at that point. One was that I thought that Phelps
was straight, which he turned out not to be. And I had known him
for years. And so Phelps joins with Kolb. Well, Sullivan, Roach,
and Johnson, the Sullivan was Walter Sullivan. He was the brother
of the Sullivan who was the cofounder with Crocker of Crocker
Bank. The Johnson was the late Senator Hiram Johnson, senator and
governor of California.
And so here are these prestigious people. At any rate,
Phelps brought in this Kolb, and Kolb brought in the Sullivans.
136
They live in a house in Pacific Heights where there's a wooden
round plaque on the door that says "Consul of Consulate, Kingdom
of Monaco." Mrs. Sullivan is the consul general to Monaco,
a nice person. She had the good luck to inherit Beaulieu--
She's
Chall: Oh, the winery?
Thorpe: Yes, and they are very wealthy people. I should say major San
Francisco types.
You see, I had made an awesome mistake by forming a limited
partnership, because I was the general partner, and the general
partner is personally liable for all the debt of a limited
partnership. When the jeopardy opinion came along, the people
stopped putting in money, saying, "The jig is up." And yet Kolb
said, "If you can get by the jeopardy opinion, we will put money
in. We will again fund it."
So what I did as a big boob, you see, I borrowed against the
building next door. I borrowed against my antique and classic
cars. I borrowed every nickel I could put my hands on, and I paid
Tom [Reid] and all these people to do all this work to get by the
jeopardy opinion. I then had a partnership meeting one day and
said, "Now, we're by the jeopardy opinion. We need some money."
Well, at that point, they hemmed and hawed. Well, I ran
into a British firm, Grand Metropolitan. Grand Metropolitan, PLC,
very decent British investors, and they put a couple million in,
which carried us a while. But Grand Metropolitan then bought a
company called Pillsbury--the Pillsbury "Doughboy." They paid $5
billion for Pillsbury.
Well, the folks at Pillsbury said, "My God, you're investing
in a racetrack in California? Racetracks are not consistent with
the image of mom and apple pie that we at Pillsbury like.
Gambling is bad." Well, Grand Metropolitan — it happened to many
other companies in Britain—they owned the firm which is the
bookmakers to the Queen, where gambling is accepted. So they sold
their gaming houses, they sold their casinos, they sold their—all
that sort of thing, and they cut us off at the pockets.
So however, I had gotten by the jeopardy opinion. At this
point, the San Francisco folks said, "I'll tell you what we will
do." See, I never dropped the project as such. But they said,
"Tell you what we're going to do. We're going to bring in a guy
who's a great turnaround expert." And I thought, What the hell do
we need a turnaround expert for? I was up to here [points to
nose], I was about to lose everything I had. So they said,
"Well, we will bring in this wonderful guy to reorganize the
137
thing, cut the budget, slash the things and so forth." And I tend
to spend money, so I couldn't quibble about that.
So they brought in Albert J. Miller, and Albert J. Miller
went to Leslie and negotiated a new deal with Leslie. And they
formed a corporation called Shorelands Park, and they took over
the assets, and they were going to pay the liabilities.
I began to smell a distinct odor of dead fish, and I went
down to San Jose, and I found twenty-two judgments for fraud
against Al Miller. I found that Al Miller was a charlatan who had
screwed investors for a period of years. I went to San Francisco
and said, "My God, what have you folks done? This is a fraud."
At which point they all said, "He's a wonderful man." What he had
told them is that he would--
Thorpe: He didn't give me the line of b.s. he gave them. But he said, "I
can get people in Hong Kong to put millions into this because they
like racetracks, and they will put up the money, and they will buy
you out at an enormous profit, and you'll make millions of
dollars . "
So they actually paid for a trip of Miller's to Hong Kong.
In any event, because I then found out he was negotiating with
creditors, he was promising payment plans—it was all fraud. Just
the whole thing was a big fraud. So I then put Shorelands and the
limited partnership in bankruptcy, in Chapter 11, and that gave me
a tool that we could use. And I retained counsel. The counsel I
got is Rick Simons, with Furtado in Hayward. The law firm is
Furtado, Jasporice and Simons. Furtado has been here for years.
Now, Rick, it happens, is this year's president of the
California Trial Lawyers Association, the state association of
trial lawyers. They are very good; Rick is a very good trial
lawyer. They have an associate counsel by the name of William
Lockyer. [laughter]
Chall: I know him. [Senator Bill Lockyer]
Thorpe: Now, does it ring a bell? Now does it go around the circle?
Chall: Right.
Thorpe: Okay. We filed suit in the district court, and that lawsuit is
still pending. The first judge we got, [Barbara] Caulfield,
decided that she wasn't making enough money, her daughter got some
138
horrible illness that takes a lot of money; so she resigned. We
were put in limbo for six months. [See article, following page]
We were then transferred to the second judge, [Eugene]
Lynch. Lynch meanwhile recused himself. He recused himself
(which is excused himself) from serving. He recused himself when
Clayton Jackson was put in jail. The managing general partner of
Sullivan, Roach, and Johnson was Clayton Jackson. Clayton Jackson
is the one who bribed Alan Robbins and others. Biggest lobbyist
in the state. I got myself into a nest of thieves without — it was
just stupidity. I mean, Sullivan, Roach, and Johnson? You know,
you just don't--! didn't think that the biggest San Francisco law
firm would be a bunch of crooks. It's just not what I thought.
In any event, Clay went to jail, and so Lynch recused
himself, because Clay is a big Republican. Clay, when he gets out
of jail in a couple of years, will become a big Republican power
again. Clay Jackson, before he got prosecuted, Clay Jackson spent
New Year's Day with Governor [Pete] Wilson down in Palm Springs.
They spent the day together at Wilson's place, and Wilson is very
clubby with Clay. Oh, yes.
In any event, in any event--
Chall: So your suit is against whom? Miller?
Thorpe: No, I sued—we sued Miller, we sued Theodore Kolb, we sued Walter
Sullivan--
Chall: Oh, the whole firm-
Thorpe: The San Francisco limited partners who got us into this mess.
They didn't put up the money, as they said they would. The second
judge, Lynch, recused himself when Clay went to jail, and another
six months in limbo. The third judge that's assigned to the judge
in Oakland. At that point, Illston, Susan Illston is appointed to
the bench, and she is finally confirmed by the Senate. You know,
there's a horrible mess in the federal courts which most people
don't know about, and the mess in the federal courts is that there
is 100 vacancies currently. The Republicans haven't been
approving anybody. So no judges.
At any rate, so then we get the fourth one, Illston.
Chall: Susan Illston?
Thorpe: [spells] We are now I think about—well, let's see, '90, '91, I
guess '91, '95--
138a
.
Developer sues
wants company back
D Man wants to stop
his ex-partners from
transferring assets
By Rich Riggs
STAFF WRITlfi
HAYWARD — Belrapurrcd de
veloper John Thorpe ha? filed a
lawsuit charging that former part
ners In his bid to build a horse-
racing hark on the city shoreline
have hijacked his company to
avoid paying a multimillion-dollar
debt.
Thorpe's lawsuit says his for
mer partners and associates have
set up a new company. Shore-
lands Park, and transferred the
assets of his Shoreline Associates
development firm to the new
company.
The assets were transferred to
Shorelands Park "to hinder, de
lay, and defraud the creditors of
Shoreline Associates and to es
cape the liability of the creditors
of Shoreline Associates." the suit
savs
Please see Developer, A-18
Developer: Says
company hijacked
Continued from A-1
Thorpe said he wants the bank
ruptcy court to nullify the transfer
of assets to Shorelands Park or to
require Shorelands Park to take
on the debts for the project as well
as the assets.
Lawrence Brookes, an attorney
who once worked for Shoreline
Associates and who helped estab
lish Shorelands Park, said Thorpe
Is trying to destroy efforts of
Shorelands Park to produce a suc
cessful shoreline development.
"Now. rather than see a suc
cessful project, he'd rather see no
project at all." Brookes said.
Thorpe said Brookes Introduced
his 120 partners, who he says
have Invested about S18 million.
to a "corporate turn-around
expert." Albert J. Miller.
Eighty of the 120 partners In
Thorpe's Shoreline Associates
voted on March 22 to transfer all
of Shorellne's assets to
Shorelands Park. Thorpe Is the
managing general partner in
Shoreline Associates, but under
the partnership bylaws all the
partners had a right to vote on a
transferor assets. Thorpe said he
abstained from the vote.
Miller said he did not want to
comment until he has seen a copy
of Thorpe's lawsuit.
On July 1. Shorelands filed for
protection of the bankruptcy
court under Chapter 1 1 . a section
of the law meant to salvage a busi
ness while arrangements are
made to pay off debtors. Thorpe's
court papers listed $5.8 million In
debts and $1.6 million In assets.
Thorpe now says that the "as
sets and equity" transferred to
Shorelands Park were worth
about $9 million. " '
139
Chall: My goodness, it's '98 already!
Thorpe: So yes, we've spent six years in the federal court being buffeted.
We had a ruling we didn't like, we've appealed that. We'll go to
trial probably in another year. So then I may be unbroke. I may
not be unbroke, but I may be unbroke.
Chall: In the meantime, Shorelands is still a dream?
Thorpe: It's kaput. Well, the corporation bought it, and then we sued the
corporation and they spit it back. There's one thing I hate. I'm
not a crook, I'm not a liar. I cannot go to investors and say put
some money in something that I don't think is going to happen.
And the city of Hayward in the last nineteen years has not
supported anything. They've opposed everything, it's politically
safe. They've opposed everything except to build useless and
ridiculous city halls. [laughs] Well, the first one never fell
down. Do you know there are no cracks in the first city hall, the
old Hayward city hall [on Mission at D Street)? There are no
cracks in the hall? The City Center building [Foothill Blvd.], do
you know that when the earthquake came, it wasn't hurt a bit? Not
a bit! There's not a crack in the damn thing! And yet they say,
"Oh, dear, we have to build something earthquake--" they're just a
bunch of nits.
John Thorpe's Personal Loss: The Historic House, the Classic Cars
Chall: Tell me what happened to all of the fifty, sixty, seventy people,
aside from you and your family, who put in money, sometimes 2,000
units at $1,000 a unit or whatever it was. Have they lost
everything that they've put in?
Thorpe: It depends on the lawsuit, but probably so.
Chall: That's a chance you take when you enter into a partnership.
Thorpe: Yes. Most of them, like the Bailys who own the 400 acres on the
hill, the Bailys are all family. They were a big investor, and
they lost a couple of million bucks, and Norman is still a client
from time to time.
Chall: Oh, I'm talking about your limited partnership. Baily wasn't part
of yours?
Thorpe: Yes, Baily was one of the limited partners, sure. The Baily
family was.
140
Chall:
Thorpe :
Chall:
Thorpe:
Chall:
Thorpe;
You say he lost a couple of million collars on your--
The Baily family lost a couple of million dollars on Shorelands,
sure. Well, we put in $8 million. It ain't there any more.
Sure .
Wow. What's happened to your house next door, then?
in limbo also?12
Is it just
The house next door no, no. The house was kind of a comic
story. The lenders who had loaned money on the house had made
some severe documentary errors, and I am a reasonably decent real
estate lawyer. And so the savings and loan went to foreclose, and
I fought them. And of course, they weren't getting paid, and they
were not happy with the fact that they weren't getting paid, and I
wouldn't let them foreclose. They tried a second time. We had a
series of potential buyers. One was a couple of crazy women who
were going to sell cruises to the elderly out of it, and they were
going to have them come by bus to the bus stop on the corner and
walk down at night? Can you imagine that? That's the craziest
thing I ever heard. Who needs a great big house like that to sell
cruises? But these people were just nuts.
There was another guy who was going to operate another thing
that didn't make any sense at all.
Then along came Mr. Stout, Edward Stout. Edward Stout is a
guy who restores pipe organs. Right there in the coach house
right now there is a huge pipe organ which they're restoring for
the Palace of the Legion of Honor in San Francisco. They've
restored the pipe organ for the Grace Cathedral and he maintains
it. They've restored the pipe organ for the San Jose--the huge
Catholic church there in San Jose.
And Stout is a craftsman, and the coach house lent itself
beautifully to the pipe organ restoration business. So at that
point I gave up and let him have it.
I see, so he has it.
I owed $800,000 on it, and he bought it at a fire sale for three.
Which is why I was fighting with them: if someone was going to get
it at a fire sale, I wanted somebody that I thought was
12Mr. Thorpe's law office and the Shorelands Corporation were housed
in an historic building on Hesperian Boulevard in Hayward. Behind it, in
the old carriage house he kept his collection of classic automobiles.
Thorpe's office is now in a small cottage next door to the old building.
141
appropriate. Because I wanted somebody who was going to maintain
the old building and take care of it. [See article, following
page]
Chall: Yes, it's beautiful. And what about the automobiles?
Thorpe: The automobiles all got—including the Dusenberg that I gave to my
son [Nelson] on the occasion of his eleventh birthday—all got
taken.
Chall: What is Nelson doing now?
Thorpe: Nelson has gone into the auction business in Berkeley, works for
Harvey Clar. He is their expert on various kinds of antiques and
classic cars and stuff. And he likes it. He evaluates them and
appraises them and so forth.
Chall: Good. I'm glad he's found a niche.
Thorpe: Yes. He's found something that fits him. He has a problem that
we didn't recognize as early as we should have, finally did. He's
extremely bright, he's a very, very bright kid, but he wasn't
doing well in school. It was about the sixth grade, I guess; he
just wasn't doing well in school. Couldn't figure it out. Turned
out he has dyslexia.
So there's a Catholic school operated in the hills [The
College of the Holy Names].
Chall: Yes, exactly. I know they have had a very fine reading program.
Thorpe: They did a tremendous job with him.
Background on Interested Commercial Developers for Shorelands
Thorpe: You've asked some questions [looking at the interview outline].13
Chatham. Chatham died. Bob Chatham was an interesting guy.
Chatham got out of the army at the end of World War II with
another guy. The other guy took his kids on a cross-country tour
of the United States and really didn't like the hotels at all. He
13The question dealt with the persons or corporations who might be
interested in the commercial side of Shorelands. Chatmar, Inc., was a
hotel chain, owned by Robert Chatham. --M.C.
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142
called them hotels. Chatham is the Chatham Mills- -towels,
pillowcases and stuff in Tennessee?
Chall: Oh.
Thorpe: The other guy who went across the United States, stayed at hotels,
didn't like them, went to Bob and said, "Bob, I want to borrow a
million dollars, I want to build a hotel." So he loaned him the
money and he built a hotel. He came back and he said, "I want to
borrow another million, I want to build another hotel." Chatham
said, "I've got a board of directors, they're not going to like my
just giving out money to my friends." He said, "Either you're a
friend of mine or you're not," so Chatham gave him the money.
Well, the other guy ended up building a chain of hotels
called Holiday Inns. And every Holiday Inn had in it Chatham
towels, blankets, pillowcases, and a Tennessee Tall Case
Grandfather's clock in the lobby. (They also owned the Tennessee
Tall Case Grandfather Clock Company.) But Chatham was kind of a
fun guy.
You mentioned the labor thing,
labor unions.
We had a lot of support from
Chall: Yes.
Thorpe: And I still work a lot with labor unions, but part of that is
because of the fact that what I was trying to do was something
that has some social sense to it. We wanted something that had
environmental balance, we wanted something that had social
balance. And of course, developers don't try to do that.
Developers just worry about money. Which is maybe why I'm not in
the business any more.
[reading names of limited partners from the outline] Brusk,
Burt Brusk was a local Hayward contractor. [Richard] Ehrenberger
is an architect in Berkeley. Murray we discussed. Richard Murray
is a very, very talented guy. Funny, a lot of these folks are
still my friends. Engineers-- Jack Stewart just died.
More on the Racetrack
Thorpe: You have a couple of things here [looking at outline]. You
mention lack of cooperation from the horse racing industry. We
had enormous support from owners, breeders, trainers. Racetracks
are a mixed bag. You look at San Francisco with the 49ers. You
143
Chall:
Thorpe:
Chall:
Thorpe:
Chall:
Thorpe:
Chall:
Thorpe :
look at Oakland with the Raiders,
racetracks are a similar thing.
You get intc--and the
DeBartolo, the senior DeBartolo happens to be the Cleveland
Mafia. He's now dead. [Edward] DeBartolo owns- -they own gambling
facilities all over hell's half -acre and racetracks. We discussed
DeBartolo funding this thing, and DeBartolo said, "Well, our
concern is that the league might get upset about our having a
gambling thing right across the water from the 49ers. Even though
we've got gambling things in other states, but the public doesn't
associate it, so we're clean."
But the racetracks — it 's really kind of fascinating. The
racetracks, about half of them are mafia organizations. The
Golden Gate Fields was always related to the mafia. About half
are clean, half aren't. That's kind of an interesting thing.
You know, I have some information that at one point, you were not
given--! guess the dates that you wanted—in 1985 or so.
That's the state of
Oh, that's a different issue, okay.
California Horse Racing Board.
Yes, that's right.
Right. Well, it's a funny thing. They—that's politics.
Politics. When they came back, they were actually willing to let
us run racing dates at Bay Meadows. The fact is, if you don't
have a racetrack, what are we going to do with the racing dates?
That's correct, and so you—
So we dropped that.
It was uncertain, a lot of it.
Yes.
The Corps of Engineers
Thorpe: [continuing on the outline] The Corps of Engineers. I'm going to
comment on them briefly. The Corps of Engineers—by and large,
the colonels were helpful.
Chall: Now, you dealt with two different colonels, [Andrew] Perkins and
[Galen] Yanagihara.
144
Thorpe: The ones that are good go back to command school
a step up the ladder thing, this post. But the
large were helpful. And I tell you, the people,
know them, most of the people, most of the upper
the corps were helpful. Most of the staff peopl
mean, they regarded this whole scene as bizarre
who's at all fair, when they see you've got a je
three things that aren't there, they realize the
functioning.
This is sort of
colonels by and
once I got to
echelon people in
e were helpful. I
too. Anybody
opardy opinion on
system isn't
You see, the Fish and Wildlife Service serves as the
biologist to the corps. The biological opinion is an opinion
delivered to the corps that says, Okay, this is all right, or no,
it's not all right. But the corps people, generally speaking, I
found helpful.
The U.S. Fish and Wildlife Service
Thorpe: Fish and Wildlife. You see, we had a choice. Maybe I made the
wrong choice, I don't know. When we got the jeopardy opinion, we
could have litigated. We could have litigated, we could have shot
them down. I figured it would take four or five years, by the
time you have a trial and appeals and all the rest of it. If I
could negotiate my way around it, it's politically better; it's
probably the same cost, when you come right down to it. What are
you going to do, if you're litigating? What do you do? Shut down
the whole operation while you litigate? And here's something
where you're dealing with, what, fifteen, twenty agencies—you' re
going to shut all that down just so you can go fight with
somebody?
Chall: And you would have litigated against the corps?
Thorpe: No, Fish and Wildlife, because you see, they issued an opinion
that our project would jeopardize endangered species. But the
endangered species weren't there. They weren't there. There were
no mice, no least terns, they simply weren't there. But the point
is, the upper echelon people at Fish and Wildlife realized it was
nutty too, and in essence, they said, "Look, we'll work with you,
we'll send Wayne White back to school in Washington, we'll get a
new head in Sacramento, we'll get by some of these lunatics."
Basically what you had, what happens in these environmental
agencies, you get a pecking order that develops. The point is, a
given Fish and Wildlife or a given Fish and Game person wants to
be perceived as important, as having power, and he wants to be the
145
big—what does my wife call them?--the lead gorilla. He wants to
be the lead gorilla, and he wants all the environmentalists to say
oh, how clever he is, and how nice he is, and so forth. And so
you develop these sort of biological coteries that have nothing to
do with the wildlife.
And Fish and Wildlife saw, "We've got a problem," because
you see, parallel to this problem at the same time, you have the
farmers. Now, the farmers have the developers. The farmers never
want to work with Fish and Wildlife, and the developers never want
to work with Fish and Wildlife. And so here you have like the
trout problem, which is a similar thing. It's partly real and
partly not real.
And so the people at Fish and Wildlife that really cared.
There was a guy Wally, Wally Steucke, who was the acting regional
director. Wally retired and went up to Oregon. He got a job.
Right now, he's a fish person. Wally has been setting up, for the
last five years, he's been setting up hatcheries and fish programs
for Indian tribes. I mean, he's died and gone to heaven. Okay?
And he's a hell of a nice guy, and I got to know Wally pretty
well. I mean, if I had spent all my life working for Fish and
Wildlife, I would much rather resolve this sort of a problem in a
way that sort of gets the troops working positively, you know?
Which is a good thing, I thought.
The State Department of Fish and Game
Thorpe: Now, the state government- -you have Paul Kelly. Paul Kelly is one
of the ones whom I regard as wanting to be the lead gorilla in
Fish and Game. Van de Camp, the attorney general- -John Van de
Camp tended just to be a politician.
Chall: Well, there wasn't much he could do, was there?
Thorpe: Oh, well, yes. Van de Camp set up an environmental office within
his attorney general's department, and the head of it was a gal
down in L.A. Van de Camp was running for reelection at the time.
And we had some problems with that. Basically, they would
politically advise us on how to solve our problems in such a
fashion that didn't interfere with his electoral chance. Then, of
course, that sort of thing is now rampant with Pete Wilson and
with the now attorney general we have. [Dan Lungren]
146
The Bay Conservation and Development Commission
Thorpe: BCDC [Bay Conservation and Development Commission] essentially was
very peripheral to our process.
Chall: Yes, right. I saw just one letter.
Thorpe: BCDC is one of these agencies. If 1 am a bureaucrat who wants to
see to it that my paycheck is well protected, and wants to see to
it that I am left alone, I want an agency that has as many
directors as possible. You say, "This is your agenda for this
meeting." You give it to them an hour before the meeting. That
way, nobody knows anything, and they all have to do what I tell
them.
Now, the city of Hayward has some of that in that the city
manager does that, and these people are fed stuff, and the city
council people don't want to say, "I don't have a clue." They
just don't want to say that. So they tend to go along. But it's
a power thing.
The East Bay Regional Park District
Thorpe: The regional parks. The former director of East Bay Regional, in
part over the flap that was developing during this time, went back
to S.F. State as a professor.
Chall: Oh, and who was that? Was that Trudeau?
Thorpe: Trudeau, Dick Trudeau, yes. He just got tired. The environmental
community--! mean, the first thing we had was this thing in
Columbia. It was a hell of a deal for them. It was a wonderful
deal for them. I was giving them about ten times more than any
developer ever had, and he could use it as a footprint for the
next developer that comes along and say, "Hey, what are you going
to do for us?"
I, when they built the little park around the mud puddles
down there--
Chall: Cull Canyon?
Thorpe: Yes, the Cull Canyon Park. The year after I was out of that
project, it was closed. The East Bay Regional parks screwed up,
and they plowed out the pumps for the swim hole and knocked down
147
the fence, and they fixed it and put it back, and they ran out of
money. I got a call saying, "You don't have to do anything, but I
know you're sort of fond of this park and it's kind of your
child." Because I built the bridges and stuff in there. "Would
you be willing to replace the fence for us?" I said, "Tell you
what I'm going to do. I know how if East Bay Regional builds a
fence, it costs millions of dollars a foot. Will you tell the
people down there that if somebody shows up with a truckload and
some fencing, to turn their backs for a couple of days?" They
said yeah. So I went down, and we rebuilt the fences for them.
But it wasn't contracted through East Bay Regional parks, so it
was much cheaper.
The Media
Thorpe: The newspapers by and large--! have on the Chronicle, or had a
friend who's now retired. He's writing a history of the San
Francisco Chronicle, Mike Harris. Mike is writing a history of
the Chronicle . But he tried repeatedly to get a good Chronicle
writer to come over and to try to understand our project. We're
trying to do a balanced project, we're trying to do something that
developers don't normally do. And among all the environmental
writers, none of them would do it, because the environmentalists
are good, the developers are bad. Period, end. Getting around
copy slant is just the next thing to impossible. Everybody's got
their copy slant.
Chall: The [Hayward] Daily Review had a lot of articles.
Thorpe: Yes, the Daily Review—Karen Holzmeister. Of course, there is no
Daily Review any more. There is the Alameda newspapers who have
decimated virtually all the papers [Alameda Newspaper Group--ANG] .
But Karen is still there; Karen is a very, very skillful writer.
And I never knew when Karen walked in whether she had been
assigned to cut off my head or whether it was positive. One
article was very supportive, the next article was very hostile.
That's just the way it was.
The TV interviews were very interesting, because the TV
people, they always have copy ahead of time which make the
newspapers look mild. Of course, I prefer the print press. I
think the print press, at least when they had one, did a better
job. They were more balanced. The [TV] media tries to do
148
everything in ten-second sound bites, and so you can't get the
story.
"The Wild Edge" TV Documentary on the Baumberg Tract
Chall: Speaking of media and TV, there was this article in—let's see, it
was in the Express, I think, and it dealt with the Baumberg Tract.
It was about a documentary by Stephen Fisher called "The Wild
Edge."1*
Thorpe: Yes, that's interesting.
Chall: Remember that one?
Thorpe: Yes, "The Wild Edge." This guy Stephen Fisher entered into a
contract with KQED, and in that era, I was a KQED supporter. And
what he did is he did something just incredible. He was a buddy
of Paul Kelly's. They wanted to show that the project was an
awful project. So what they did is they went out there. I said,
[quoting from the documentary] "As far as habitat, this doesn't
serve as habitat for much." And then they said, [quoting in
sonorous tone from the documentary] "But standing on the identical
spot just a few short months later--"
Chall: [chuckles]
Thorpe: Have you seen the thing?
ChalJ : I must have seen it; but I read the article.
Thorpe: "But standing on the identical spot a few short months later."
Well, here [demonstrating] is Paul Kelly. Now, here am I on this
absolutely barren piece of dirt right here, okay? Now, when you
look at the documentary, he's got grass that's three feet high.
Well, if you go out there later, you'd find some evidence of there
having been grass there, right? There is no grass. And he's in
water up to his ears. And here's this massive bunch of birds
behind him.
So I didn't know what to do, but I got hold of folks at
Sunset magazine who do documentaries. And what they did is they
"•Dennis Drabelle, "Life on the Edge," Express. September 13, 1985.
149
took a freeze frame of where I was standing and a freeze frame of
where Paul Kelly was standing. The guy comes over, and he's
laughing, and he says, "Now, you see this power line back here?
The power towers are here. See this power line behind you? And
this power line over here behind you?" I said yeah,
move to the freeze frame on Paul Kelly.
Now, let's
And he said, "You notice they're enormously further apart."
Chall: Oh, standing in different places?
Thorpe: Paul Kelly actually was out here in the marsh. He was over a mile
away in the water. Well, 1 knew he had to be someplace different,
because of all the grass. There is no grass here. Okay? So the
identical spot is in fact — it's fraud, thing.
So this is when Trudeau was still there. 1 think Trudeau
was still there. Whoever was there, and they said, "Look, we've
spent hundreds of thousands of dollars on this damn documentary."
It's a big long documentary, Shorelands is only two minutes out of
the huge documentary. "And we really would like to show it." I
said, "Well, if you don't show it to local groups around here,
then as far as I'm concerned you can use it." They wanted to use
it to promote KQED and raise money for KQED, I said, "Fine." So
at any rate, they said, "But we'll bear that in mind the next time
this guy Fisher comes and tries to flog something to us." But I
could have sued KQED. But I love "the identical spot."
I found out about what Sunset could do through Dick Bailin.
Yes, Dick Bailin, the attorney, Dick Bailin was the one. Dick is
a director, with Rich Murray- -Murray does a lot of parks. Bailin
is a director with Murray of the place where the A9ers want to
build their stadium. DeBartolo is out where the football stadium
is [Candlestick]. In any event, it's a heavily black, very bad
area.
Chall: Oh, yes, I know where you mean--Bayview/Hunter ' s Point.
Thorpe: Okay. Well, Bailin is a director of a nonprofit group that built
and operates the children's play park out there. Murray built the
children's play park out there. And Sunset magazine did the
sponsorship, and that's how they knew Sunset . and that's how we
got the guy to do the thing. Isn't that kind of interesting?
Chall: That is.
150
Well, I think I've come to the end of the tape, and I think
I've come to the end of the interview. Thank you very much fur
the time you have given to discuss the many aspects and
ramifications of the Baumberg Tract/Shorelands history.
Transcribed by Gary Varney
Final Typed by Shannon Page
151
Regional Oral History Office University of California
The Bancroft Library Berkeley, California
California Water Resources Oral History Series
THE BAUMBERG TRACT: FROM THE PROPOSED SHORELANDS DEVELOPMENT
TO THE WETLANDS RESTORATION (EDEN LANDING ECOLOGICAL RESERVE), 1982-1999
Robert C. Douglass
THE CARGILL COMPANY (LESLIE SALT DIVISION) AND THE SHORELANDS PROJECT
An Interview conducted by
Malca Chall
in 1998
Copyright C 2000 by The Regents of the University of California
Robert C. Douglass, 1998.
152
TABLE OF CONTENTS -- Robert C. Douglass
THE CARGILL COMPANY (LESLIE SALT DIVISION) AND THE SHORELANDS PROJECT
INTERVIEW HISTORY 153
BIOGRAPHICAL INFORMATION 155
Background: Education and Career with the Cargill Company 156
John Thorpe Takes an Option on Leslie (Cargill) Salt Property
to Build the Shorelands Project 158
Major Problems Concerning Mitigation 160
Environmental Agencies: Their Mission, Their Personnel, and
Their Effect on Local Control 163
Local Activists and the Environment 166
Cargill Accused of Reconstructing the Land 167
The City of Hayward and the Shorelands Project 168
The End of the Stretch for the Shorelands Project 169
Baumberg Tract Purchased by the California Wildlife
Conservation Board, 1996 170
153
INTERVIEW HISTORY --Robert C. Douglass
Robert C. Douglass is the property manager for the Leslie Salt
Division of the Cargill Company in Newark, California. Leslie Salt is a
solar-salt production and refining company with a long history in the
San Francisco Bay Area. Mr. Douglass was interviewed for the Baumberg
Tract Oral History Project because he had close ties with John Thorpe
during the years when Mr. Thorpe was striving to obtain permission to
build his Shorelands Project on former salt ponds on the Baumberg Tract.
Currently, Mr. Douglass is closely watching the progress of the plans to
restore the tract as a wetlands under the aegis of the state Department
of Fish and Game.
His position has made him acutely aware of federal, state, and
local legislation, as well as the many regulations and agencies which
deal almost exclusively with the environment: The Clean Water Act, the
Endangered Species Act, the Corps of Engineers, the Fish and Wildlife
Service, the Department of Fish and Game, and the local recreation and
park agencies. He is also acquainted with the personnel of these
agencies. Moreover, he knows the grassroots environmental organizations
and activists. He has had close encounters with them all, and he has
strong opinions about the environmental movement and its meaning for
both the environment and development.
Mr. Douglass agreed to be Leslie Salt's spokesperson for the
Baumberg Tract Oral History Project. We recorded the interview in his
office on February 24, 1998. He discussed his association with John
Thorpe's unsuccessful Shorelands Project, and Cargill's successful
Gateway Technology Centre. He touched on problems inherent in dealing
with environmental regulations, regulators, and activists. Although he
was willing to answer all my questions, he occasionally paused and
carefully considered his answers before replying. His opinion that many
environmental regulations are onerous, that some agency personnel were
extremely unfair in their dealings with John Thorpe, and that some
activists wield too much clout and have too much access to the agency
staffs, helped me to prepare questions for subsequent interviewees.
At the time he reviewed and made minor corrections to his lightly
edited transcript, Mr. Douglass gave me permission to insert, in the
volume, correspondences between Leslie Salt, the Fish and Wildlife
Service, and the Corps of Engineers. Cargill's cooperative mananger of
public affairs, Jill Singleton, sent important historical and current
material for the volume Appendix and for deposit in The Bancroft
Library.
154
This interview with Robert Douglass adds an important element to
the history of the Baumberg Tract with its focus on the uneasy
relationship between developers and those who are committed to the
preservation of endangered species and habitats.
The Regional Oral History Office was established in 1954 to
augment through tape-recorded memoirs the Library's materials on the
history of California and the West. Copies of all interviews are
available for research use in The Bancroft Library and in the UCLA
Department of Special Collections. The office is under the direction of
Willa K. Baum, Division Head, and the administrative direction of
Charles B. Faulhaber, James D. Hart Director of The Bancroft Library,
University of California, Berkeley.
Malca Chall
Interviewer /Edit or
January 2000
Regional Oral History Office
University of California, Berkeley
155
Regional Oral History Office
Room 486 The Bancroft Library
University of California
Berkeley, California 94720
Your full name
BIOGRAPHICAL INFORMATION
write clearly. Use black '
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Date of birth
Father's full name
Mother's full name
Occupation
Your spouse
Occupation
MS
Your children
Birthplace
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Birthplace
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Where did you grow up?
Present community
Education
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Organizations in which you are active
f\ /*
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Current Position
Since 1985
155a
ROBERT C. DOUGLASS
37689 Los Arboles Drive
Fremont, CA 94536-6626
(510) 791-5801 (H)
(5 10) 790-81 56 (W)
Manager of Real Property, Cargill Salt, Western Division.
Responsible for management of 30,000 acres of property
along edge of San Francisco Bay. Responsible for permits
for solar-salt operations and land-use entitlements.
Professional Registration
Registered Civil Engineer in California.
Education
B.S. Civil Engineering, Sacramento State College
M.S. Civil Engineering, San Jose State University
Previous Employment
Principal in the Oakland office of Greiner Engineers of
California -- Northern California office of nation's fifth
largest consulting firm. Designed public works and land
development projects in Alameda and Contra Costa counties.
Community Involvement
Chairman, Chabot College Engineering Advisory Committee
Member, American Society of Civil Engineers
Member and Past President, Southbay Engineers Club
Past Chairman, City of Fremont Planning Commission
Past Member, City of Fremont Civil Service Board
Past Vice President, Treasure Island Museum Board of
Directors
Lecturer on Marine Corps history, Treasure Island Museum
Military Service
Decorated Marine Corps combat veteran of Vietnam War
Colonel, United States Marine Corps Reserve
Activated during "Desert Storm" - served in Thailand
Currently, Officer in Charge, 10 reserve units across U.S.
0.\NW\RCDBKGRD
156
INTERVIEW WITH ROBERT C. DOUGLASS
THE CARGILL COMPANY (LESLIE SALT DIVISION) AND THE SHORELANDS
PROJECT
[Date of Interview: February 24, 1998] ft1
Background: Education and Career with the Cargill Company
Chall: First I always like to find out a little bit about the person
I'm interviewing. So could you give me some background about
how long you've been with the company, Cargill, and what your
present and past career positions have been here.
Douglass: I have been with the company twelve and a half years now. I
joined Cargill in October 1985. I'm a civil engineer, and I'm
registered to practice civil engineering by the State of
California. I have a bachelor's from Sacramento State and a
master's from San Jose State. Prior to my employment with
Cargill, I was with a consulting/engineering firm in Oakland
and started as a junior project engineer and rose through their
corporate ranks to the point where I was a managing principal
and a small stockholder.
Chall:
Douglass :
Chall:
What was that company?
That company started out as Murray and McCormick. It went
through a number of name changes. It was publicly held, so we
went through the stock rollercoasters. Other corporations
bought us. The final name change, until just recently, was
Greiner Engineering,
engineering firms.
which is one of the nation's largest
So you left them in about 1984 or 1985?
'II This symbol indicates that a tape or tape segment has begun or
ended. A guide to the tapes follows the transcript.
157
Douglass: In 1985, yes. Leslie Salt was owned by Cargill at that time,
but the name was still Leslie Salt. Leslie Salt was a client
of our company. We did engineering work for the salt company.
Chall: I see. So you knew it, and they knew you.
Douglass: Actually I knew a little bit of it. At that point my project
engineers were doing most of the work for Leslie Salt; I was
aware that thev were a client, but I didn't do any of the
actual work. But my predecessor, Ray Thinggaard [spells], left
to open his own consulting business. So I basically traded
places with Ray.
Chall: So you came here as a civil engineer?
Douglass: I'm called a manager of real property.
Chall: And you've always been a manager of real property?
Douglass: That's right.
Chall: Is there quite a bit of property that you're selling or
optioning or changing or something of this kind here?
Douglass: Not quite a bit. The parcels we have are significant — the
Baumberg Tract being one of them. That was a former salt
plant, and I'm in the last stages of the construction of a
former salt plant called Plant One in Newark [California] that
was taken out of production the same time Baumberg was.
Chall: Which was 1970-something?
Douglass: Late sixties.
Chall: And what's Plant One going to be?
Douglass: Plant One is now the home of Sun Microsystems. It went through
many of the same hurdles that the Baumberg Tract faced, but we
were successful in that regard. We kept that property for our
own portfolio, so to speak, and we were the project managers.
We did all the permit processing. We never optioned it to
anybody. We pursued it. And we just won an award from the
Association of Water Quality Engineers for our design of it.
So we're rather pleased with it.
Chall: That would mean, I assume, that even though you were in charge
of it you still had to go through some of the hurdles with the
Fish and Wildlife Service and all the rest?
157a
CARGILLSALT
WINS WETLANDS
ENGINEERING
AWARD
C argil! Salt has won the
1997 California Water
Environmental Associa
tion's Engineering Award for the
drainage design and creation ol
wetlands for the Gateway
Technology Centre in Newark
"Cargill's. careful and creative
engineering went tl.e extra step
to integrate development with an
improved environment," says
Lindsay Roberts, executive direc
tor of tiieCWEA
The 143-acre high-lech indus
trial park near the eastern
entrance to the Dumbarton
Bridge features a series of grassy
swales to filter out sediment and
pollutants from stormwater, pro
tecting neighboring sloughs and
marshes. The design also creates
17 acres of tidal wetlands to pro
vide habitat for several endan
gered species found across the
street at the Don Edwards San
Francisco Bay Notional Wildlife
from "The Bay's Edge," a Cargill Salt Report,
vol. 9, no. 1, July 1998.
Retuge
The site was a former salt
plant that had been decommis
sioned in 1^59. Despite pressure
from developers, to sell the land
for housing, the salt compam
stuck to the ideal that the proper
ty should remain industrial and
contribute to Newark's ecoiioim
When the company began taking
steps toward developing an
industrial park on the property in
ly85, legal battles with the feder
al government ensued. Cargill
won the right to develop 90 per
cent of the land and proposed an
innovative consolidation of the
disputed acreage into a function
al wetland habitat, which
allowed the Gateway Technology
Centre to become a reality.
"We worked hard to prove
that a former salt plant could be
redeveloped as an environmen
tally friendly, high-tech business
park," says Bob Douglass,
Cargill's design engineer and
project manager. "We've devel
oped a wetland habitat that
reflects the values important to
us. It's a bridge between indus
trial use and wildlife, enhancing
both the workplace and
the refuge next door."
158
Douglass: All of them.
Chall: That sort of gets us to the Baumberg Tract, which seemed to
have greater complications involved in it than maybe Plant One?
Plant One will be manufacturing software? I mean, Sun
Microsystems will be--
Douglass: They're manufacturing hardware. That's just a use that Sun
Microsystems made after it was developed, after we made our way
through the process that John Thorpe tried very hard to wind
his way through but was unable to. I answer in response to
your question about the other properties we have. In round
numbers, 30,000 acres in the South Bay. Almost all of it is in
salt production. But in my job I pay the property taxes, I
keep the fences intact. I do all the kind of things that a
property manager does. I deal with all of our neighbors and
cities and counties and flood control districts. I'm staff
civil engineer to the solar operations people that use the land
for production of solar salt.
Chall: It must keep you rather busy doing all that.
Douglass: It does.
Chall: Are you taking other areas out of salt production? Or is it
just Baumberg and Plant One? Are there others?
Douglass: No, there are no others, and those were taken out of production
years ago.
John Thorpe Takes an Option on Leslie (Cargill) Salt Property
to Build the Shorelands Project
Chall: Now if we go back to about 1981, John Thorpe I think at that
time took his option for ten years on the Baumberg Tract to
build his project. You weren't here at that time, so with whom
did he deal to set up this plan to option this land?
Douglass: Paul Shepherd.
Chall: Paul Shepherd I know is still here.
Douglass: Yes.
Chall: When one takes an option on land, what does that mean? They
have to pay rent to you?
159
Douglass: The terms are always negotiable. John's option involved annual
payments plus payment of property taxes and whatever
extraordinary maintenance is required on the site. So that was
the arrangement with John. Quite often options are initially
free. If someone wants to look at a piece of property, the
landowner can say, in the vernacular, we can give you "free
look": you can look at it for ninety days. What the option
does is protect the potential buyer so that the property is no
longer on the market. We agreed to negotiate solely with John,
and we were not talking with anyone else. In return for that
protection, he gave us compensation, which was to be counted
towards the ultimate price of the property.
Chall: As I understand it he took out about 1200 acres—these are sort
of round f igures--which combined two districts with 500 acres
of open space. Is that how you see it? The 1200 acres being
the Baumberg, which was 800 and something, plus other
properties?
Douglass: No, I think that 1200 is probably high. I think initially he
had an option on 790 acres — and these numbers could be wrong--
with an option for another fifty, which would have brought it
to 840. That was primarily the former salt plant. It became
obvious very early in the process that he was probably going to
need additional mitigation land. All the salt ponds
surrounding the tract were in production and are still in
production, so they were not really an option for his
mitigation lands. We did discuss with John possible open space
uses or open space reserves, but my recollection of the primary
option, though, it was the former salt plant entirely.
Chall: So all his material that we see that talks about 1200 acres or
1 100-something--I don't think I brought my major piece of
material, but I think he divides into x number of acres of
building, et cetera, plus about 500 acres of open space,
[shows Mr. Douglass Shorelands brouchure, "A New Racetrack for
Northern California." See envelope insert, back cover]
Douglass: It does say 1200 acres here.
Chall: Yes, it does. That brochure says that the development combined
two distinct properties. I've always wondered what they were.
Douglass: I'm not sure what they are either. The acreage outlined here
does not total 1200 acres.
Chall: There are many maps around. This is the one that John Thorpe
more or less outlined for me. I guess it shows his various
mitigation plans.
160
Douglass: Those areas that he's outlined may total 1200 acres, but John
nevei had an option on these parcels.
Chall: That's correct, he did not. He did not have an option on what
he calls the Whale's Tail or this other little place [B8, Map
1]. Did he have an option on expanding this area in here for
maybe trails, or was it just what he outlined? [Area outlined
in red, excluding channel, Map 1].
Douglass: That's primarily what John had an option on.
Chall: So that's really basically 800 and some acres.
Douglass: Yes, 850 acres or so.
Chall: All right. So we're agreed on that.
Now by the time you got here, he was not planning anymore
to put in Marine World Africa-USA.
Douglass: Marine World was not in the picture.
Chall: So what was left on the 800-some acres was his idea of the
racetrack and trails and hotels and playgrounds and all that?
Did you think this could be successful? Or did you think that
there were going to be problems with it?
Douglass: I always considered it possible. Very difficult, but possible,
yes.
Major Problems Concerning Mitigation
Chall: Eventually, of course, he had to do a lot of mitigation, and
his plan was to mitigate with the so-called Whale's Tail and
these other areas that you pointed out had not been in the
option. Were you ever planning to provide that land for him?
Douglass: We were supportive of John, and we probably would have done
whatever it took within reason to help him. The problem was
that there were avowed opponents of his project within the
agencies, and they always selected mitigation that struck at
the salt business, and we were not agreeable to that.
Chall:
By that you mean what?
161
Douglass: Taking salt ponds out of production and turning them into
marshes.
Chall: If he mitigated on the site and included all those other
acreages that we were talking about, he would have to use the
salt ponds. That meant setting up little ponds in one area for
the snowy plovers and things of this kind?
Douglass: Yes.
Chall: That's interesting, because his scheme always included the
possibility of using these other areas. Dr. [Howard] Cogswell
told me that you—that is Leslie Salt—had never come out over
the years agreeing to have the islands made or the use of the
other property, so that he [Thorpe] was always sort of stuck.
I think he had in mind the Oliver property, which of course he
couldn't get his hands on at all. So where was he? I mean, if
you were supportive, how would you have supported him? At what
point would you have said, "Okay, John, you can have the
Whale's Tail and you can have this other land for your plovers
or for whatever other reasons you need the land."
Douglass: We probably would have supported him if we could have seen
evidence from the agencies that said, "John, if you do this, we
will give you the permits." And if this involved the Whale's
Tail we would have probably made that available to him.
However, you need to be aware that the Whale's Tail was not
necessarily sufficient mitigation. It was already a wetland.
Transferring the ownership would have given him some credits,
but it certainly wouldn't have given him true mitigation.
Chall: Right. He was permitted to mitigate on site, as I understand
it, if it would compensate for whatever would be lost by the
project .
Douglass: That was our encouragement for John to make a project that
would stand on its own, that he could control within the
confines of his option.
Chall: Which meant what?
Douglass: Which meant shrinking his project down and mitigating on site
to the extent possible.
Chall: As I understand it, he never was agreeable to that.
Douglass: Oh, I think he would have been agreeable if he would ever have
been given assurances from the agencies that he could have a
reduced project on that site. But he never got those
162
assurances. I don't think John was treated fairly by anybody
in the process, except the salt company.
John is an interesting fellow, an attorney. We did things,
even though we're a major corporation, we did things with a
handshake with John. We trusted him, and he trusted us. We
gave him as much leeway as possible. It was in our interest
for him to succeed. He was going to write us a very large
check if he succeeded. So within the goals of continuing to
make salt and selling John a major chunk of property, we tried
our best to help him. But it was always behind the scenes. We
did not want to ever appear publicly opposed to anything he
suggested. So John floated a lot of schemes, and we were
basically very quiet about that.
Chall: You mean the schemes for--
Douglass: Mitigation.
Chall: But as he floated them—and they are detailed in the EIR/EIS
and biological and mitigation studies—he was never assured
either up front by you, or it was never made certain by the
people who were checking on the studies or setting up the
jeopardy opinion that he could do them. It was never focused.
Is that a problem?
Douglass: That was a problem, yes. The position we took was that we gave
John just about all the rights he had and let him be almost, in
effect, the property owner of the option property. Then we
made it clear to him that if it ever came down to the point--!
do not think that our silence on the subject ever hurt him. It
never got down to the point where he came to us and said,
"Cargill, if you will sell me the Whale's Tail, the project
goes." It never reached that point.
Chal] : In terms of mitigation, there were all kinds of plans for
plover ponds which couldn't happen unless you gave the land.
What about the predator fence? That seemed occasionally like
something out of science fiction.
Douglass: The predator fence was probably one of the worst examples of
how the agencies mistreated John, just by sending him on these
wild goose chases. I'm sure the individuals within the
agencies think they acted honorably, but basically there was if
not a public strategy then certainly informal strategies to
drain John, to send him down corridors with wild goose chases
and continually chase project approval but knowing full well
they were never going to give him project approval.
163
Chall: Did you think that the whole subject of predators per se was
not an important subject or it could've been handled some other
way?
Douglass: It could have been handled some other way. Predators are major
factors when you have urbanization right up next to natural
resource properties. While John was probably going to bring
predators close, there were already numerous feral cats, dogs,
skunks, red foxes, rats; they were out there anyway. You could
make the argument that John's project may have provided them
more opportunities than the marshlands, and it may have had a
positive impact. It was just one of the many hurdles they put
up in front of John.
Environmental Agencies; Their Mission, Their Personnel, and
Their Effect on Local Control
Chall: What is your general opinion of these environmental agencies
following their own regulations, like Department of Fish and
Game, Fish and Wildlife Service, EPA [Environmental Protection
Agency], and others? They are scientists and they are trained
in environmental science. What has been your opinion of them
in general? You're dealing with them now in the [Baumberg]
restoration project. I realize you're working with these
people all the time, so by now you probably have some kind of
opinion of how they operate, who they are, and their merits or
demerits, or of the regulations they deal with.
Douglass: If there is a collective judgment within the agencies that a
project is not going to get approved, then it's not going to
get approved. The thing that I object to--I am a staunch
believer in local government, and there is a sub rosa or shadow
regional government that resides in the hands of young men and
women who are very low-level federal and state employees but
wield an awesome amount of clout in the Bay Area as far as land
use. I strongly object to that.
Mitigation, for example, is very, very difficult in this
immediate vicinity, in the San Francisco Bay Area. My own
personal opinion, shared by many others in my capacity, is that
the reason mitigation is so difficult is because mitigation
really means a project is being approved. If someone can
really mitigate their project they're going to build it.
Therefore the agencies have chosen to make mitigation the
battleground as well. That was one of John's problems: he
164
could never in their mind fully mitigate the impacts of the
project.
His famous triple-jeopardy opinion was one of the most
farfetched fantasies I've ever been involved in, and the
jeopardy opinion went something like this: the global warming
is going to raise the sea level and destroy marshes, which is
the habitat for endangered species, and the only restorable
land left is the Baumberg Tract. Therefore it would jeopardize
the species if that was developed, assuming global warming was
going to happen. And that was absolutely preposterous. I
argued long and hard internally in the salt company to take
that one on. And we did not. Speaking personally and
professionally I was very disappointed. We let John try and
fight that battle when it was really aimed at us.
Chall: Really? So you think that to some degree the scientific work
or the final decision was really aimed at salt production?
Douglass: No, not salt production. The agencies were very afraid that if
we let John buy this tract and develop it we would drain
another pond and sell it to another developer. They drew a
line in the sand saying that we can't let anything proceed.
John was handicapped. We are still in the salt business and
we're going to be in the salt business. The evidence did not
support their fears.
Chall: I notice that toward the end--I guess it was 1990 [July 5]--
Leslie Salt's vice president William Britt sent a letter to Mr.
[Marvin) Plenert, who was then the regional director of the
United States Fish and Wildlife Service, with quite a detailed
legal opinion from Edgar B. Washburn outlining objections to
the draft jeopardy opinion, and part of it was concerned with
this idea of global warming. Also his objection to the concept
that even though there had been no use of the habitat over the
years for the so-called endangered species, except the salt
marsh harvest mouse, that allowing the Baumberg Tract to be
developed would mean that one other area that might be useful
for habitat restoration would be destroyed. It is a most
complex set of issues that he set forth.
What about these kinds of letters and arguments that went
off to the Fish and Wildlife Service or in some cases to the
Department of Fish and Game, or the Corps of Engineers? What
was the response? [See following pages]
Douglass: Quite often they were ignored. We sent that letter to protect
our position on the record but never really joined the argument
after that.
UBSMG ScUt CO. 7200 CENTRAL AVENUE
^^ V^.^T^ ™ *~r+~ NEWARK, CA 94i«0 • (416) 7*7.1620
M L '•• " t> ' L. L O U .
July 5, 1990
Mr. Marvin Plenert
Regional Director
United States Fish & Wildlife Service
3002 N.E. Holladay Street
Portland, Oregon 97232-4181
Dear Mr. Plenert:
As we discussed during ny recent trip to Portland, I am
requesting a legal review of the Fish & Wildlife Service's
Preliminary Biological Opinion with respect to the proposed
shorelands' Project. As you know, Leslie Salt is the owner
of the property in question and has optioned that property
to Shore] ands.
I am enclosing a copy of a legal analysis prepared for
Leslie Salt by the law firm of Washburn, Briscoe & McCarthy.
That analysis concludes that there is no legal basie for the
Service to issue a jeopardy opinion. I ask that you furnish
a copy of the legal analysis to the Service's Solicitor and
request a legal opinion concerning the Service's stated
basis for its draft jeopardy opinion.
I would like to emphasize again that our concern as the
owner of the property is with the breadth of the draft
opinion and its attempt to find jeopardy on the property
regardless of what use the property is to be put to.
I request that you inform me of the outcome of the
Solicitor's review. If the Solicitor agrees with Leslie's
analysis, we request that the draft opinion be withdrawn and
that the October 14, 1987 opinion (No. 1-1-87-F-47) be
officially withdrawn as well.
Thank you for your cooperation in attempting to resolve this
issue without the need to resort to litigation.
Sincerely,
I'M 16 1Cri-j
w w w u l*/w>U
OWS-ENH-VCEMJ » •"'
C. Kritt/ *C™ENTO«UX j
Vice PresidenV-6r*General Mgr. JUL 1 UF
WCB : jb
enclosure
ADMINISTRATION FAX (415) 790-«162 • PLANT OFFICE FAX (415) 790-81 89 • TELEX (810) 38 1-6047
164b
7200 CENTRAL AVENUE
NOVARK. CA. 94560 / (415) 797-1870
A Q CARGILL COMFANV
March 22, 1985
RECEIVED
MAR 2 5 1985
Andrew M. Perkins, Jr. PLANNING DEPT.
Lieutenant Colonel
Department of the Army
San Francisco District Corps of Engineers
211 Main Street
££- Francisco. CA 54105
Subject: Shorelands Corporation
Your File No. 15283E49
Dear Colonel Perkins:
This letter is written to you by Leslie Salt Co. ("Leslie") out
of concern for what appears to be a claim of jurisdiction
asserted by the Corps over certain lands owned by Leslie. This
claim is reflected by your letter of January 29, 1985, to Mr.
John Thorpe of the Shorelands Corporation. The land that is the
subject of your January 29, 1985, letter is owned by Leslie,
although the Shorelands Corporation has an option to purchase
the property at some later date. Whether or not that option
will in fact be exercised is unknown at this time.
We have reviewed your jurisdictional determination and find it
to be erroneous in terms of the facts relied upon as well as in
your interpretation of the reach of section 10 of the River and
Hsrbcrs Act of 1899 and section 404 of the Clean Water Act.
While the purpose of this letter is not to recite in detail all
of the facts which lead to the conclusion that your jurisdic
tional assertion is an error, we do wish to point out a number
of the more significant factors which you apparently did not
consider. These facts, together with others, are the result of
an intensive study that has been undertaken by Leslie relative
to this site over the past ten years.
A. The Section 10 Jurisdictional Claim;
1. The entire area landward of the most bayward levees
was in its natural state above the elevation of mean
high water. The only exception to this statement is
certain former slough beds.
2. The sloughs that formerly traversed the property were
not extensions of San Francisco Bay, but were separate
waterbodies and were so treated by the Corps up until
at least 1972. With the exception of a portion of Mt.
164c
Andrew M. Perkins, Jr.
March 22, 1985
Page 2
Eden Slough bayward of the former location of Eden
Landing, none of the former sloughs were navigable in
fact in their natural condition.
3. Most of the former slough beds within the subject
property were reclaimed prior to the adoption of the
Rivers and Harbors Act in 1899, and that act is not
retroactive.
4. From 1899 to 1972 the Corps administratively deter
mined that none of the sloughs that -traversed this
site were navigable in fact and therefore all portions
of the site were beyond its jurisdiction. Reclamation
ar;d development of the property for solar salt works
and agriculture occurred under those circumstances.
As a result, the Corps surrendered whatever section 10
jurisdict ional claims it may have had. (See United
States v. Stoeco Homes, Inc., 498 F.2d 597 (3rd Cir.
1974) .
5. The areas claimed along the northerly portion of the
property were, in their natural state, a combination
of freshwater marsh and ponded water. The freshwater
marsh was not a part of any water body but was upland.
Similarly, the ponded water was not a part of any
navigable water course and was not connected to the
San Francisco Bay.
For information bearing upon the foregoing, I suggest that you
review the 1857 and 1897 U.S. Coast Survey topographic and
hydrographic charts together with the descriptive reports accom
panying these charts; the 1861 survey of the salt marsh in
Alameda County performed by Dyer and its field notes; the survey
and fjeld nctes of the boundaries of the Rancho de Aiameoa per
formed by the General Land Office; the testimony of Agustus
Rogers of the Coast survey in the action of United States v.
Peralta (Nos . 98; 100 U.S.D.C., Cal. 1871); and the testimony of
Alameda County Surveyors James W. Bost and Horace A. Higley in
that same trial.
B. The Section 404 Juri sdictional Claim:
1. No part of the site is water of any sort, much less
waters of the United States. During certain times of
the year some water is ponded in the former crystal-
lizer ponds from the winter rains due to lack of any
i
2 .
the areas over which you claim section 404 jurisdic
tion landward of the bayside levees do not presently
drainage connection to the bay.
2. With the exception of the banks of Mt. Eden Slough,
16Ad
Andrew M. Perkins, Jr.
March 22, 1985
Page 3
possess a prevalence of vegetation typically adapted
for Jife in saturated soil conditions. In fact, vir
tually all of the site is devoid of vegetation.
3. None of the area is inundated by tidal waters at any
stage of the tide and has not been tidally affected
for nearly 100 years.
4. The presence of any saturated soils or wetland vegeta
tion on any portion of the site is not the result of
inundation by or a hydrologic connection to waters of
the United States. It is merely the result of tempo
rary and occasional ponding of rainwater.
5. None of the areas over which you claim section 404
jurisdiction on the basis that they are wetlands are
adjacent to waters of the United States.
We consider your assertion of jurisdiction to be beyond what the
law provides. Although we have no objection to the Shorelands
Corporation processing a permit application, we do not consider
that application to be an admission or acquiescence by Leslie
that your claim of jurisdiction is proper. Leslie does not
intend to be bound by your determination and, whether the permit
to Shorelands is granted or not, Leslie reserves the right to
challenge your assertion of jurisdiction by any proper and
available means.
Yours very truly,
Paul P. Shepherd
Vice President £. Land Manager
PPS6:hey
•
cc: Mr. John Thorpe, President
The Shorelands Corporation
P. O. Box 4258
Hayvard, CA 94540
City of Hayvard , Ron Gushue
Honorable Fortney H. Stark
EPA, Region IX
USFWS, Sacramento, CA
NMFS, Tiburon, CA
CA BCDC, Oakland, CA
CF&G, Yountville, CA
Save San Francisco Bay Assn,
165
Chall:
Douglass :
Chall:
Douglass :
Chall:
Douglass ;
Chall:
Douglass :
There's quite a bit of information here for the record.
Do you think that these regulations that spawned from the
Fish and Wildlife Service, the EPA, the Clean Water Act, et
cetera, have some important benefits in terms of the
environment? You've been dealing with them in some areas that
have been quite well accepted—the San Francisco Bay National
Wildlife Refuge.
That's on both sides of the Bay. Twelve thousand acres of our
salt ponds are in the Don Edwards National Wildlife Refuge.
Now you had to work that out also with these folks.
Yes.
That's been very satisfactorily handled,
a good name .
I mean, it gives you
It doesn't necessarily give us a good name. It is
satisfactory; I wouldn't characterize it as very satisfactory.
We continue to have to negotiate various items of maintenance
and access and so forth, and the refuge staff use it as a
refuge, which it is, and we view it as a salt production
facility, which it is. And those two goals sometimes come into
conflict, but on the whole it is satisfactory.
Do you find the regulations onerous?
Quite often they were onerous. The interpretation of them is
the difficulty. The regulations are really restrictive and
prohibitive; they are not proactive. My real concern over the
agencies is that they're good about saying no, and they can't
bring themselves to say yes, and they are not very proactive
when it comes to protecting the species.
If the clapper rail is diminishing they should be breeding
the clapper rail. They should be taking proactive measures to
expand the endangered species. They don't restore marshes
themselves; they ask private property owners to do it. The
whole Endangered Species Act is very negatively drafted and
construed. If endangered species are so important, then the
act should reward property owners that have endangered species
on their property. That would be the positive thing to do. We
would want property owners lined up to make sure they had
endangered species on their property. But that's not the case.
That's a personal opinion.
166
Chall: In terms of your working with people like Richard Murray or
WESCO, who drew up the biological background for the EIR/EIS,
what were your dealings with those people? And Thomas Reid
Associates?
Douglass: I didn't have too much dealings with Tom Reid. They came in
sort of late in the project. I enjoyed working with Richard
Murray; he's a very creative fellow. The difficulty is keeping
Richard on the option parcel.
it
Douglass: Richard would talk to an agency, and before I knew it he would
be drawing mitigation plans on property that wasn't in the
option, and I'd have to counsel Richard. [laughs]
Chall: He was feeding ideas to John and vice-versa, and this is how it
was all coming out?
Local Activists and the Environment
Chall: Then you had some dealings — and probably always have—with
volunteer private citizens like Barbara Shockley. I found a
letter in someone's files that you had written to Barbara about
some kind of question she had, I think, about pumping water out
of crystallizers . Janice and Frank Delfino. Howard Cogswell-
he's really one of the scientists, but he's also active as a
private citizen in terms of the environment. How were your
dealings with people like that? Do you think that they have a
place as gatekeepers or whatever you might want to call them?
Douglass: I think in general they have a place, and again in the Bay Area
they are given far too much access to the agencies. They wield
far too much clout. That's my own opinion. Now with Howard
Cogswell I would say something different; we have the utmost
respect for Dr. Cogswell. He's a true scientist, and the truth
is what's always important for Howard. Citizens like him are
absolutely invaluable advocates for endangered species. But
other citizen activists wield too much influence and are often
not as knowledgeable as they should be and have too much access
to the agency staff.
Chall: The agency staff people take them seriously, do you think?
Douglass: Very seriously.
167
Chall: Why is that?
Douglass: Their interests are probably more compatible certainly with the
citizen activists than they are with Cargill Salt, for example.
At least they perceive their interests as being mutually
beneficial.
Cargill Accused of Reconstructing the Land
Chall: There was a concern about Leslie's activity at different times,
and since it was in the news from time to time I just thought
maybe you could clarify them. There was a time when Leslie
plowed north of the crystallizers. A deep plow someplace. The
question was, was that plowing done to make it appear
agricultural rather than as a wetland?
Douglass: That was done before I got here, but I believe it was for dust
control primarily. We had the same problem on Plant One site,
which is a former salt plant. We did not plow here, but yet in
the summertime we were cited for blowing dust off of what the
agencies were calling a wetland. So we were always on the
horns of a dilemma. That's a good example of the attitude the
agencies took on the property. We were the property managers,
and we needed to do something to that property. As it turns
out, we couldn't even plow it without arousing the ire of the
agencies and citizens. Yet if we didn't do something, we were
cited by the Bay Area Air Quality and Management District for
blowing dust. It's illustrative of the dilemma that major
property owners face.
Chall: So sometimes if you would disk or plow as you did from time to
time, that would change the kind of land--I mean, perhaps grass
would grow where it hadn't grown before.
Douglass: That's what some people claimed. That's absolutely not what
happened. What happened is that active plowing grew wetlands
indicators. Where wetlands didn't exist before, wetlands did
exist after we plowed.
Chall: So if the excuse was that you plowed because you wanted it to
look like agricultural land and it turned into wetlands or
marshlands, that destroyed your argument that this was land
that could be developed in a different way.
Douglass: It certainly didn't help.
168
Chall: The same with flooding. If you used water to keep out the
dust, and a solid growth of ditch grass developed, that also
made it look like a wetland instead of upland or whatever you
might have called it.
Douglass: What is unique about our properties is that they are so highly
saline they will not support uplands grasses, the high
salinity—the ambient salt after fifty or sixty years of salt
production—just kills anything else other than salt-tolerant
plants which are wetlands indicators. Adjoining properties can
and do support uplands grasses and that is a normal
circumstance .
Chall: There was a criticism that at one point you were draining some
land, and not to show it you put in a pipe which you
camouflaged so that nobody would know it was a pipe [laughs].
Douglass: I don't really know about that. We did have one major pipe
that one of the contractor's employees spray-painted for fun--I
think it was a joke.
Chall: Oh, well, I think it was taken seriously by people as if you
were camouflaging the fact that you were draining land.
Douglass: No. There were "No Trespassing" signs all over the site, yet
people had pretty much free access. So they would report what
they chose to report.
The City of Hayward and the Shorelands Project
Chall: Now John says that there was a meeting in May 1990 of everybody
who was concerned with that late jeopardy opinion that he was
trying not to accept, and that included even the Leslie Salt
people. Then, he says that after some change of management or
whatever it might have been with the Fish and Wildlife Service
--I'm not quite sure about that--his project did pass the
jeopardy opinion, but then the city [of Hayward) wouldn't give
him a permit. I'm not sure whether that had to do with a
permit- -on the exchange of land for his road into the property
off the San Mateo Bridge. Is that something that you are
familiar with?
Douglass: I can't recall the specifics, but the city of Hayward was not
particularly helpful in the whole process. I contrast their
support of John in that particular project with the city of
Newark's support of our project down here on Plant One. It was
169
like night and day. That could have been and should have been
a major asset for the city of Hayward; the idea of a
transportation corridor bypassing the 880/92 interchange makes
all the sense in the world. It was the single largest flat
piece of land left west of the Nimitz freeway from Oakland to
Fremont, yet it could have been developed into a good economic
use and mitigated on site, but the city council and city staff
were divided on how best to approach it. As a result the
support was not there.
Chall: So even though John claims that everything passed in terms of
his getting his plan approved--! 'm not even sure that that
happened- -
Douglass: No. John never got approval of anything that was really
significant.
Chall: So the interchange was moot. At the time in 1991, this had to
do with the interchange--! think this information was in the
newspaper--Cargill says that Thorpe can proceed with Cargill
authority. That's for the interchange. If Thorpe wanted to
reopen his file it would cost him $650. Leslie would help with
mitigation if the exchange were in the right place close to the
bridge .
Douglass: That's true.
Chall: So that's when you actually were willing—that ' s part of your
land, is that it?
Douglass: Yes.
The End of the Stretch for the Shorelands Project
Chall: By that time it was pretty late. How did you feel about
another group of people taking over John's assets to become
Shorelands Park? Did you have to deal with them? I don't know
that that lasted very long, because then he filed for
bankruptcy shortly thereafter.
Douglass: We met with them on a couple of occasions. I can't recall the
gentleman's name; if you told me I would probably remember it.
[Laurence Brooks] How did we feel? Very uncomfortable.
Chall:
Because you had been dealing with John.
170
Douglass :
Chall:
Douglass :
Chall:
Douglass
We felt badly for John because we knew he was in dire straits.
It was disappointing because John--! don't think he'd be upset
with me- -was eccentric to a fault and was his own worst enemy.
But he was an absolute man of integrity. His word was his
bond. Had he been allowed to do what he said he was going to
do, he would have done what he said he was going to do. We all
felt personally very disappointed at the turn of events for
John. We all respected him, we were all very fond of him. It
got down to the point where John was scrambling to make option
payments to us and we wondered whether we even wanted to accept
the money at that point.
Ethically, knowing what we knew, since we were confronting
some of the same obstacles in our own projects, how difficult
it was — should we terminate the option whether John wanted us
to or not? We ended up accepting his money and extending the
option, knowing at the end that it was like rearranging deck
chairs on the Titanic.
None of these possible options, you think, would have passed
the jeopardy? Whether you had just come out and said, "You can
have all these extra 600 or 800 acres," do you think that that
would have done any good?
I doubt it. But that question was never posed to us.
At one time John was approached to move his racetrack to Las
Positas or someplace in Livermore or Pleasanton. Did you ever
think that that was something that John should have considered
seriously?
I don't think we were ever involved in that discussion,
aren't a whole lot of areas in the Bay Area that would
accommodate a racetrack.
There
Baumberg Tract Purchased by the California Wildlife
Conservation Board. 1996
Chall: Between 1992 when he gave up, and 1996 you just held on to the
property? Did you try to sell it to anybody else?
Douglass: No, we did not.
Chall: Howard Cogswell told me that in 1973--that is, of course, long
before your time too—Leslie offered it to the East Bay
Regional Park District for about $5,000 an acre.
171
Oouglass: That's true.
Chall: But they couldn't afford it, so they let it go.
Douglass: We offered it to any number of open space resource/
environmental agencies.
Chall: And it was always too expensive for any of them at the time?
Douglass: In doing some research I never saw a response to any of our
letters.
Chall: Really? Even from the East Bay Regional Park District?
Douglass: I can't recall a response. I was a little surprised. It was a
very generous offer at the time, and it would have saved lots
of heartache and grief on everybody's part.
Chall: So now we are into 1996, and the California Wildlife
Conservation Board purchased it as a result of mitigation in a
couple of neighboring communities.
Douglass: Yes.
Chall: Now as I understand it, they paid $12.5 million for it. Was
that $12.5 million to Cargill?
Douglass: Yes.
Chall: So between the time it was offered to the East Bay Regional
Park District and it was purchased by the California Wildlife
Conservation Board the price had tripled. That's pretty good
[pause] but I suppose that's life. How does one assess or
estimate the price of property like this?
Douglass: There are appraisers in the market that do this for a living,
and Cargill does not sell property without an appraisal. It
serves as a point of departure for negotiations. It gets
everybody looking at the same range of values, and then the
rest of it is a real estate negotiation.
Chall: And you're in on things like that.
Douglass: Yes.
Chall: You are now attending the same meetings that I'm invited to--
and probably some that I'm not invited to—where you're
hassling out how the Baumberg Tract is going to be turned into
a restored wetlands. Is that what they're planning to do?
172
Douglass: Yes.
Chall: Is that a good use of the land as we see it today?
Douglass: I think it is a good use. I think it's proving more difficult
than they anticipated. That's what it was purchased for with
public funds, and that's what it absolutely has to be used for.
There's no question that they need to proceed.
Chall: You are still planning, as you were before, to harvest salt
from--
Douglass :
Chall:
Douglass :
Chall:
We don't harvest salt there,
them south to Newark.
We concentrate brines and move
That's part of the process of salt production there. So that's
not changing at all.
No.
So you're attending the planning meetings because your interest
is in keeping that land and that water pure for what you need
to use it for.
Douglass: That's true. They have an interest in bringing more bay water
into the site and an interest in relocating some of our
facilities which the agreement provides for, at their cost, to
make their restoration project more manageable or easier, so we
have that sort of relationship. The project seems to be moving
slowly. We are not really part of the process. We hear from
them infrequently. I really can't tell you what stage they're
at now.
Chall: They have maps to show various places where different types of
water will go and what kind of wildlife it will be suited for.
They seem to have several options.
Douglass: It looked as though they were leaning towards one option, but I
wasn't sure they've selected that option.
Chall: We'll know sooner or later. How do you think it's going to
work out? These young men and women—these scientists — it is
part of their mission to make this work. Is it a learning
experience?
Douglass: I think a project this size is a learning experience. I think
they're somewhat handicapped with lack of funding for the next
phase. Projects this size are not inexpensive in any way you
173
approach them. I don't know that there's sufficient funding
available, but that's my own opinion.
Chall: I noticed when I was at the last meeting that they were
concerned they had only $1.3 million to spend, and they didn't
think that they could do what they wanted to do with that
amount of money. I just wondered who's deciding how much money
they can have. You don't know that?
Douglass: I don't know that.
Chall: Just within the last week the Oliver property, next to the
Baumberg Tract, that Thorpe could never get hold of is now
being planned partly for development and partly to remain open.
[Proposition HH, See Appendix D] How do you think that's going
to impact any of this?
Douglass: I don't think it'll impact it at all. I think a well-designed
project would have fit nicely next to the Baumberg Tract. I
don't think that that's an issue.
Chall: We've got a little time left,
like to add?
Do you have anything that you'd
Douglass: No.
Chall: I really appreciate your time.
Thank you very much.
It's been a good interview.
Transcriber :
Final Typist:
Gary Varney
Shannon Page
174
Regional Oral History Office University of California
The Bancroft Library Berkeley, California
California Water Resources Oral History Series
THE BAIMBERG TRACT: FROM THE PROPOSED SHORELANDS DEVELOPMENT
TO THE WETLANDS RESTORATION (EDEN LANDING ECOLOGICAL RESERVE), 1982-1999
Steve Foreman
PRINCIPAL AUTHOR, "BIOLOGICAL ASSESSMENT FOR THE PROPOSED SHORELANDS PROJECT,"
1987; PROJECT MANAGER, BAUMBERG TRACT WETLANDS RESTORATION PROJECT
An Interview conducted by
Malca Chall
in 1998
Copyright O 2000 by The Regents of the University of California
175
TABLE OF CONTENTS--Steve Foreman
PRINCIPAL AUTHOR, "BIOLOGICAL ASSESSMENT FOR THE PROPOSED SHORELANDS
PROJECT," 1987; PROJECT MANANGER, BAUMBERG TRACT WETLANDS RESTORATION
PROJECT
INTERVIEW HISTORY 176
BIOGRAPHICAL INFORMATION 178
I BIOLOGICAL ASSESSMENT STUDIES FOR THE PROPOSED SHORELANDS
PROJECT 179
Background: Education and Career 179
Requirements for the Environmental Impact Reports/Statements 183
Interpreting the Endangered Species Act 188
Mitigation and Jeopardy 192
Trying to Achieve a Balance Between Habitat and Species Needs 196
Predation and the Fences 197
Further Research: Reconsidering Mitigation and Jeopardy 199
II THE BAUMBERG TRACT WETLANDS RESTORATION PROJECT 201
Acquisition by the California Wildlife Conservation Board 201
The Selection Process: RMI Wins the Bid; Steve Foreman
Project Manager 203
Restoration Project Staff 205
Many Factors Involved with Restoration 206
Other Restorations Projects Around the Bay 212
176
INTERVIEW HISTORY--Steve Foreman
Steve Foreman, after receiving a degree in wildlife management
from Humboldt State University, in 1976, worked briefly with the Bureau
of Land Management. From 1978 to the present he has worked in and
around the San Francisco Bay Area focusing on environmental projects.
An employee of WESCO (Western Ecological Services Company), he was
responsible, from 1985-1987, for the preparation of the "Biological
Assessment for the Proposed Shorelands Project." His research provided
much of the data crucial to the decision by the U.S. Fish and Wildlife
Service to deny John Thorpe a permit to build his racetrack/business
venture, Shorelands, on the Baumberg Tract. In 1996, the California
Wildlife Conservation Board purchased the site, now known as the Eden
Landing Ecological Reserve, in order to establish it as a wildlife
habitat for several endangered species. Currently, Steve Foreman is
Wildlife Biologist Project Manager for this restoration project.
We divided the two-hour interview, recorded in my home on March
11, 1998, into two segments: during the first hour we discussed Steve
Foreman's work as the lead biologist for the EIR/EIS on the Shorelands
Project. He explained clearly the rationale behind the environmental
impact studies, and discussed how he used background sources and
extensive field work to formulate the biological assessment. Coming as
it did after my interviews with John Thorpe and Robert Douglass, Mr.
Foreman was able to respond to a number of the questions they raised
concerning the need for the environmental regulations; the relationship
between the developers, the scientists within the agencies who had
authority to grant or deny permits, and the citizen activists whose
opinions seemed to carry great weight. His interview provided the links
to my upcoming sessions with Karen Weissmann and with Carl Wilcox.
During the second hour he outlined the complex problems and
possibilities the restoration staff face in their endeavors to create a
wildlife preserve on the former Baumberg Tract.
Steve Foreman returned his lightly edited transcript with a few
added corrections and clarifications. His careful analysis of what is
involved in bidding on and obtaining contracts to do EIR/EIS studies, in
acquiring and analyzing data, and in dealing with others involved in the
processes provide insights into how and why a development project like
Shorelands or a restoration project like the Eden Landing Ecological
Reserve may take many years to reach a final outcome.
The Regional Oral History Office was established in 1954 to
augment through tape-recorded memoirs the Library's materials on the
history of California and the West. Copies of all interviews are
available for research use in The Bancroft Library and in the UCLA
177
Department of Special Collections. The office is under the direction of
Willa K. B'ium, Division Head, and the administrative direction of
Charles B. Faulhaber, James D. Hart Director of The Bancroft Library,
University of California, Berkeley.
Malca Chall
Interviewer /Editor
January 2000
Regional Oral History Office
University of California at Berkeley
178
Regional Oral History Office
Room 486 The Bancroft Library
University of California
Berkeley, California 9A720
BIOGRAPHICAL INFORMATION
(Please write clearly. Use black ink.)
Your full name
Date of birth
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Father's full name
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Birthplace K-'v*? 6.|y ; C A
Occupation 5</Jit,c. ^Ai^UgO OuJ*Jc/- Birthplace BouJ>W.S £>k«. Wiv^fl
Mother's full name p \prex)ce £ \\oO
Occupation V
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Your spouse (V\q r iL ,0
Occupation E \gyy\V
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Birthplace
Your children
Where did you grow up? k.
Present community I^tr'
Education
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Occupation(s)
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Other interests or activities Mt/-»0'n**< / ^-iS,v\.*J<
Organizations in which you are active four
179
INTERVIEW WITH STEVE FOREMAN
PRINCIPAL AUTHOR, "BIOLOGICAL ASSESSMENT FOR THE PROPOSED
SHORELANDS PROJECT;" PROJECT MANANGER, BAUMBERG TRACT WETLANDS
RESTORATION PROJECT
I BIOLOGICAL ASSESSMENT STUDIES FOR THE PROPOSED SHORELANDS
PROJECT
[Date of Interview: March 11, 1998] |#'
Background: Education and Career
Chall: What I'd like to do first is to find out something about your own
background: where you grew up and where you went to school and
how you happened to be involved in this kind of work?
Foreman: Okay. Well, I was born in King City, California, and lived there
until I was about six or seven- -something like that — six, I
believe. Then moved to San Jose about 1960, and grew up there
until I went to college in 1971. And in '71 I went to Humboldt
State University at Arcata. Graduated there in 1976, with a
degree in wildlife management. From there I went to work for the
Bureau of Land Management as a seasonal worker for a couple of
years .
Chall: Right here in the area?
Foreman: That was in eastern Montana. They transplanted a native
California coastal boy to the prairies.
Chall: Right.
Foreman: And then I started working back in the Bay Area in, probably,
February of '78. I was looking for part time work, seasonal
work, any work I could get! I happened to stop at the company
called Western Ecological Services [WESCO] . The company doesn't
exist any more. It was bought by Resource Management
'## This symbol indicates that a tape or tape segment has begun or
ended. A guide to the tapes follows the transcript.
180
International [RMI], who I work for now.2 A number of years ago
I stopped in there; they needed somebody for a couple of days and
I have sort of been there for twenty years.
Chall: So Resource Management International bought out WESCO?
Foreman: Right. Bought WESCO in, I believe, 1992. Kept it as a separate
company until 1995, and then we merged together with the
environmental group in their Sacramento headquarters where
they're based--RMI, environmental division.
Chall: So you've been with that one company, then, all of these years?
Foreman: Since '78, yes.
Chall: And doing the kind of work that you are doing now, with respect
to Baumberg? You know, the biological assessment kinds of
things?
Foreman: Yes, basically. It's a variety of types of projects. A lot of
the work has been focused around the edge of the Bay. A majority
of our work has been in the Bay Area, but it goes from bay, to
ridgetop, to wherever, for our residential developments. We
work, you know, with power lines, with reservoirs, highways, open
space groups.
Chall: Now, I see that RMI is really all over the country, if not all
over the world.
Foreman: Yes. They're an international corporation.
Chall: They're in England, in Denmark, Australia, and Czech Republic.
Have you gone abroad with them?
Foreman: No, I haven't. The majority of RMI's work is in the energy
development field.
Chall: Energy development?
Foreman: Yes, like electrical energy. Two other things, but the majority
of their work is related to electrical energy production,
regulation, how it works, particularly like right now, with all
the deregulation that's going on. That's a big part of the work
that they do.
2Shortly after this interview, Mr. Foreman went on the staff of ISA
Associates, Inc. [April 1998]; he continues to work on Baumberg
restoration.
181
Chall: That has nothing to do with nature, the environment?
Foreman: Very little. We were purchased by RMI, or WESCO was purchased by
RMI, I'd say in '92 with, I think, the basic idea that we could
somewhat support ourselves. Do our own work, but we would be
kind of like a captive subconsultant to them for doing
environmental work as it came up. The founder of RMI dreamed up
this idea or saw this need to construct a high voltage power line
to bring energy out of the northwest from the production end to
central California. So a lot of RMI was involved with designing,
building, permitting this power line that runs from southern
Oregon down into Tracy. And at the time that we were purchased,
they were actively starting construction of that line. So we
provided some of the monitoring, the mitigation requirements,
that were to do with that power line.
Chall: I see. That's interesting. Now, I'm going to read the title
page of your report on your study of the Baumberg Tract, June
1987. [See following page] "Biological Assessment for the
Proposed Shorelands Project," Hayward, Alameda County,
California. Then it goes on: Prepared for U.S. Army Corps of
Engineers San Francisco District Under Contract to: Cole/Mills
Associates, in Martinez, followed by Prepared by: WESCO.
[laughter] How does that all work out?
Foreman: Okay, WESCO was a subconsultant to Cole/Mills Associates.
Chall: And they are still in existence?
Foreman: Not as that.
Chall: I see.
Foreman: But there's still a Mills Associates. Carolyn Mills works out
of--I believe her office is still in Martinez. Carolyn Cole was
a partner. It was basically two women running a business.
Eventually—actually during Shorelands—Carolyn Cole left that
group and came to work for WESCO and stayed there for a number of
years. Carolyn's currently with a traffic planning group. I
can't remember if its--I think it used to be the Goodrich Traffic
Group or something like that. Now it's something else.3
Chall: I see. So there's no more Cole/Mills Associates.
Foreman: No, but Carolyn was the main manager-coordinator for the EIR/EIS
for Shorelands. Basically, their group was a small partnership.
3The Crane Transportation Group,
BIOLOGICAL ASSESSMENT
FOR THE PROPOSED
SHORELANDS PROJECT
HAYWARD, ALAMEDA COUNTY, CALIFORNIA
Prepared for:
U.S. Army Corps of Engineers
San Francisco District
Under Contract to:
Cole/Mil Is Associates
1110 Alhambra Avenue
Martinez, California 94553
Prepared by:
Western Ecological Services Company (WESCO)
14 Gal 1 1 Drive, Suite A
Novato, California 94947
(415) 883-6425
June 1987
CMA 8401
182
And they tended to sub out the specialty areas. And if they
needed biologists they would hire a biological firm or an
individual. They worked a lot with Sam McGinnis who's a
professor at Hayward State [University] and who did some of the
earlier work on Baumberg. And then they'd contract for traffic
consultants, historians, whoever they happened to need.
So when the Shorelands came along, the city of Hayward
published an RFP, that's a Request for Proposals, to have
independent contractors come in and prepare the environmental
documentation for the Shorelands Project. Essentially, its a
third party—it's supposed to be a third party- -document .
Carolyn [Cole] had done some early planning studies for John
Thorpe in the early eighties, like I would say '81, '82.
Chall: Oh, when he was just beginning?
Foreman: When he was just beginning. And I think that Sam McGinnis 's
early bird studies were done like in 1982 or something like that,
under contract to Carolyn. When the RFP came out, there were
some other issues — and plus the time frame was something Sam
couldn't do—she requested that we join their team to bid on the
project. And when she was ultimately selected--! think that was
around 1985— the first work I remember doing at that time was
trapping for salt marsh harvest mice. 1 believe it was summer of
1985.
Chall: That's what I think this report indicates. And because you were
working for WESCO at the time, they assigned you to the project?
Foreman: Right. I was the primary field biologist of the company.
Chall: Who is Greg R. Zitney, who was listed on the staff as the
Principle/Certified Wildlife Biologist, Project Manager and
technical review?
Foreman: Greg was one of the main owners of the firm. There were
basically three primary partners at that time. It was Greg,
another man, Scott Cressey [spells], and then a Jeff Peters.
Chall: So they are with RMI, now, is that it?
Foreman: No. They were the owners of WESCO. Jeff left WESCO in the late
eighties. I don't remember the exact year, went to another firm
and sold his interest. When RMI bought WESCO in 1992, it was
because Greg wanted out of the business. He was basically the
majority shareholder-president of the firm. So he left the firm
then and Scott is actually still with RMI.
183
Chall:
Foreman:
And Kirk Ford, Wildlife Biologist, was about at your level?
were listed as Principal Certified Wildlife Biologist.
You
Chall:
Foreman:
Chall:
Foreman:
Chall:
Foreman:
Yes. Somewhere in the--I don't even remember that day or year,
it had to be—probably about "87 I would guess--! was made a
principal of the firm, given a small portion of the stock, I
think like 3 percent, or something. That put me in charge of a
number of biologists. Greg dealt pretty much more with
promotional activities, administrative activities. I dealt a lot
with the coordination of the field work, report progress, and
that sort of thing.
So it would look as if you were in charge?
I was probably more the direct day-to-day manager, where Greg had
the more administrative authority. And we also tried to have a
policy where everything that we prepared was really read by one
of the three main principals.
All right. I've got that one solved. Now, when you were given
this assignment, had you known much about that area, the Baumberg
area?
No, very little.
So you go out, in this case, not knowing the area and with no
particular mindset? Is that correct, generally speaking?
Correct. Yes, we're basically hired to develop—prepare
information on an independent basis: evaluate it—whatever the
environmental effects were—report it. And again, it was a joint
document between the city of Hayward as the California state lead
agency. The document [EIR] was a joint document with a federal
document, the EIS. The Corps of Engineers was the lead agency
there; they pretty much deferred everything to the city.
Requirements for the Environmental Impact Reports /Statements
Chall: While you were doing this study, what was going on with respect
to the EIR/EIS? I've never been quite sure which comes first in
this kind of case.
Foreman: Well, they were prepared at the same time.
Chall: With your data?
ISA
Foreman: With a lot of people's data, right. The difference between the
two—there are some differences in the type or level of
information you have to put into an EIR versus an EIS. EISs are
required for major federal actions. And the big difference is
that EIS has to look at alternatives to projects and with a fair
amount of detail—theoretically, the same level of detail as the
proposed project. So if there are other sites or other potential
uses, you're supposed to treat each one of those alternatives
equally.
Under CEQA, the California Environmental Quality Act, you
don't have to do that level of detail for all of the
alternatives. Typically, you look at the main project, you
analyze that at great detail and then alternatives are addressed,
but usually at a much lesser detail. So the joint document
basically meant that you have to expand the analysis of the
alternatives that are available. And there are some timing
differences on public comments that you can integrate into making
one single document.
A lot of our early work was to develop some baseline
information. Sam McGinnis had done some bird studies looking at
water bird use of the various ponds out there. There was also a
lot of information available from the Department of Fish and Game
and the U.S. Fish and Wildlife Service. They used to fly and
count birds all around the Bay Area. Again, our principal role
was to initially come in and deal with the harvest mice. We were
one of the few groups that were permitted to trap and look for
the mouse. You had to have some special federal permits and I
think, at that time, there was only our firm and one other.
Chall: That could do the trapping?
Foreman: That had the permits.
Chall: So when you began a study of this kind did you study the
literature that was available? I noticed that you have a
bibliography. Then you do your field work?
Foreman: Yes. We look at what information's available. Specific
information then was pretty much the work that Sam McGinnis had
done on this preliminary analysis from like '82 to "83. We
looked at the site developed and said, "Okay, this is the
additional information we need." and generated that. And again,
I think that was "85. I don't think there was an actual— there
was a break from '85 to later, before we really got going on the
185
EIR/EIS. I don't think that was prepared until '87.4 The EIR
was designed to address the public. It's basically public
interest review. So that the facts, the environmental effects of
a project, are presented for people to review and comment on; so
they know. It's an information document, it's not a decision
document .
Chall: And the E1S is?
Foreman: The EIS is essentially an information document so that people can
make and form decisions. The later work, like the biological
assessment and other things, they're designed to address specific
regulatory requirements, be it the biological opinions or the
federal Endangered Species Act. That's a specific requirement,
under the consultation requirements that the corps [Corps of
Engineers] or any federal agency has to do with the Fish and
Wildlife Service. And it really only has to address the project
that has been proposed.
Chall: So that, in effect, is what you did in this particular project
report that I have right here in front of me. When you were
doing this study, you also, in your report, dealt not only with
the harvest mouse but the clapper rail and the snowy plover. And
what was the other bird?
Foreman: The main ones were those. The least tern, that was a concern.
Chall: As you were working, doing your own study, were you also having
some relationships, in terms of gaining information, with Hayward
officials, city officials, like Martin Storm and others?
Foreman: I didn't have a tremendous amount of interaction with the city
officials, that would have been mostly Carolyn Cole.
Chall: Well, what about John Thorpe? Was he, at the time you were
working on this, was he revising his mitigation plans from time
to time?
Foreman: Yes, there was a lot, a tremendous amount of interaction between
the people working on the EIR and Thorpe's group — and John—and
also with some of his employees. Probably more than is typical.
Usually it depends on the jurisdiction. A lot of jurisdictions
limit the amount of interaction that a third party EIR consultant
has with the actual project applicant.
The draft EIR/EIS report, "The Shorelands,1
Associates, is dated March 1987.
prepared by Cole/Mills
186
In Hayward's case, I think, basically we dealt most directly
with John and his group. The money went to the city, came to us;
the proposal would go from us for work, back to the city, to
John. He would approve them. So the money always flowed through
the city, or 99 percent. There were a couple of things, I think,
they had us do separate because they didn't want to deal with the
contracting issues.
Chall: I think that John Thorpe also paid for this study?
Foreman: Yes. The developers always end up paying the cost of these
studies. And, in fact, what they usually do is they pay above
what the consultant contract is, because the city is taking some
percentage to manage it and deal with it. But in this case, I
think that was pretty much of a--a lot--a tremendous amount of
work was done with the significant involvement of John Thorpe and
his group.
Chall: Which means that when you were concerned with mitigation, as you
were all the way through here, you were dealing with mitigation
as it might be revised from time to time?
Foreman: Yes. Through the EIR, particularly, we identified what we
believed to be impacts. You know, there were also comments from
the various agencies about what they were concerned about, so all
that was incorporated into the EIR.
Chall: That means that you had personal interaction with, let's say,
Peter Sorensen [U.S. Fish and Wildlife Service]?
Foreman: Right.
Chall: Paul Kelly [California State Department of Fish and Game]?
Foreman: Yes, they were the two main people. I'm trying to remember — also
from the Fish and Wildlife Service—Karen Miller was probably
involved.
Chall: And their agencies had already in the past come out with their
own plans for the restoration of endangered species in that area?
Foreman: Well, I think what you're referring to, which is commented upon a
lot in the documents, is the recovery plan for the harvest mouse
and clapper rail. That was a joint document. Another
requirement of the Endangered Species Act is that the service is
supposed to develop these recovery plans. And it's a pretty
broad planning document. They go through—they identify areas
that they believe should be returned to habitat for whatever
species. And they tend to designate areas that are essential for
187
that. There are a variety of terms that they use. And the
Baumberg Tract did fall into an area that they saw as critical to
the recovery of the species. I think the reality of that
document is probably all of the historic bay lands that were
undeveloped, all the existing salt ponds, fell into that
category.
Chall: My understanding is that at the end that played a very important
part in the decision, the jeopardy decision in 1992. At the time
what were you dealing with?
Foreman: We were dealing with--a large part with—what were the potential
direct impacts. The definition of jeopardy relies both on--it's
really directed to two elements. One is survival of the species,
and to argue you're going to cause something that is going to
cause the species to go extinct. That's the primary test. There
is a secondary test: Are you affecting the potential recovery of
the species? But I don't believe you can base a jeopardy on the
fact that what you're doing would prohibit recovery by itself.
There's a lot of legal terms on that one. It's a difficult
concept. It gets debated by lots of lawyers.
Chall: [laughter] I can believe that because this is really an
interesting study in the law, the vagaries, the permits-
Foreman: Yes, there were a lot of other things that we did relating to
other laws for that project, not just endangered species issues.
One of the elements we worked on was a jurisdictional
determination for the corps. Even though the corps was lead
agency—they started off, you know, requiring an EIS--there had
never been an official jurisdictional determination on site.
What was the geographic limits of their jurisdiction? So that
was another study we did.
That led into some other work. Oh, there were some cases
going on where Leslie Salt — at the time, which is now Cargill —
was involved in some suit with the corps over determining corps
jurisdictions, Section 404 jurisdiction, over some salt ponds
over in Newark, I believe. And there was some language in the
case when it first came out: it was the first verdict where the
judge's decision had some comments that the land could not grow
plants. You couldn't call it a wetland. John got into this- -dug
out his chemistry book.
This is one of the things because down here it is so salty
that there weren't very many plants growing. So we did this big
study looking at the chemical characteristics of the soils
throughout the whole area, basically to show that it was too
salty in a lot areas to grow plants. That was largely what we
188
came out with,
wetlands.
So his conclusion was that, well, those weren't
Chall: In other words, it's not wetlands if you couldn't grow anything--
Foreman: If you couldn't grow plants. So technically, you couldn't call
it a wetland. That was the [Section] 404 definition. There were
some other broader def initions--that you really don't need plants
to function as a wetland. John tended to ignore that and we
launched off on this great soil study to look at those
relationships. The map didn't change. The amount that we mapped
that was actual Section 404 Clean Water Act of wetlands was
relatively small, but most of the rest of the area was
jurisdictional because it ponded water for an extended period of
time and was used by migratory birds. And those are some other
classifications of Waters of the United States which came under--
Chall: Which came later than the boats?
Foreman: Yes. But that was a fun, interesting study. Didn't help John
any, but he was bound and determined not to use the word wetlands
wherever he could.
Interpreting the Endangered Species Act
Chall: Well, let's just analyze a bit what is in your report
respect to the harvest raouse--
With
Chall: With the mouse—one of the statements in here is that, "The
majority of the project area, however, was historically tidal
salt marsh and, as such, likely supported large populations of
small mammals, including the salt marsh harvest mouse." [p. 18]
And there we have the word, "likely."
"Although isolated populations, such as occurs at the
Shorelands project area, likely suffer from inbreeding, they may
be important in preserving unique genetic characteristics..."
[p. 19]
What I find here is the word "likely." Let's just start
here with the word "likely."
189
Foreman: Biologists hate to make commitments. [laughter] If we weren't
there, didn't see it, we always like to hedge our bets. That's
probably the best explanation. Again, the issue with what the
historic conditions were: a lot of the historic information about
the Bay is very sketchy, so we make the assumption that if it was
within the areas that had been mapped as tidal wetlands, it
probably was habitat. By inference, they're there now, so they
most likely were then.
Chall: Even though you trapped only a very few mice in that whole area?
Foreman: The issue would be that the area was so radically changed from
its historic conditions. Like, you know, at one point Eden
Landing was established there. Boats could come up, basically to
where Eden Landing Road is now. A lot of that land was diked for
salt production and the channels silted in. So actually most of
what we have now for marsh in the areas that we trapped were
really open water in historic times, in the 1800s. So it's an
assumption based on what we anticipate used to be either with the
records, or--
Chall: Therefore, you decided that, "Purchase and donation of existing
habitats would meet some of the goals outlined in the salt marsh
harvest mouse recovery plan (F.W.S. 1984b) but would yield no
direct long-term gains in habitat value." [p. 20]
And you wrote that there would be long-term loss. So the
concern was that while there was nothing much there, the long-
term loss, the recovery-
Foreman: The recovery aspect--
Chall: Was important.
Foreman: Was important.
Chall: Because it could be--as you're doing now, you could change the
habitat and recover?
Foreman: Yes, I guess. And I think a lot of the justification for Fish
and Game going forward with purchasing the land has certainly
been to implement the recovery aspects for the mouse and clapper
rail.
Chall: Now, let's see, we have sort of taken care of the mouse problem.
Unless you want to say a little bit more about it. With respect
to predation, that was a concern with the mouse and--
Foreman: Well, with all the species.
190
Chall: Well, let's go to the least tern.
It was classified as endangered by the Fish and Wildlife
Service and then also by the Department of Fish and Game so it
was considered quite important.
Foreman: The mouse was also state and federally listed.
Chall: And you describe very well, and I guess you need to, with charts
and very careful language, how they live. You would get this
information from somebody, say, McGinnis, or [Leora] Feeney, or
other people?
Foreman: A lot of the least tern information came from Leora. Most of the
birds — the least terns there were nesting up around the Oakland
Airport and the Alameda Naval Air Station. They would come down
here after nesting to do what they called a staging area, pre-
migratory, post-fledging staging area. So Leora was hired, I
-'think, maybe by the Department of Fish and Game. I think she was
under contract with them to do a lot of the monitoring and
evaluation work.
Chall: I see. So her report is included.
Foreman: Everything is. Every piece of information that we got from her,
what we gleaned from other sources, the literature about the
values, information from Fish and Game, and the Fish and Wildlife
Service would be incorporated in all of these documents.
Chall: We were talking about the least tern. This is page 32 of your
report. "Construction of the proposed Shorelands development
would not directly impact known colonial nesting areas of least
tern, however, construction and operation of the project could
significantly affect the pre-migratory staging area immediately
west of the project site." And you go on—what the problem was —
possibly, as we said—predators.
Foreman: Primarily, it was the predators, if I recall.
Chall: And then, the clapper rail.
Foreman: The clapper rail, in many instances, is very similar to the
harvest mouse. Essentially they're both San Francisco Bay tidal
marsh endemic species. This is the only place they occur, at
least that subspecies of clapper rail. Clapper rails are a
little more sensitive than the mice in that they seem to be
pretty restricted to tidal areas. They need the tidal action and
the fluctuation of the water to provide the food sources that
they need and the plant cover that they nest in. The harvest
191
Chall:
Foreman:
Chall:
Foreman:
Chall:
Foreman:
Chall:
Foreman:
Chall:
mice can do pretty well in altered places, areas that have been
diked that have altered conditions.
Here, on page 33, you say, "Adjacent salt ponds (including the
proposed Shorelands development site) are identified in the plan
as having a high potential for restoration, and currently are
being 'threatened1 with development." That's also noted as from
Fish and Wildlife Service—Peter Sorensen, personal
communication .
So the clapper rail seems to be important,
been an important loss there.
It might have
Yes, and in particular, with an aspect of recovery for the site,
itself. The predation, or indirect impacts, are a major problem
with the clapper rail. They are more endangered than the mouse;
their habitat is more limited. And they're very subject to
ground predators like cats, red fox, and other things like that.
Yes, that's what is here on your report, on page 37 with respect
to predation. So, basically, those are the three important
areas .
They were the three listed species at the time.
The plover?
The plover certainly was a candidate at that time,
finally listed as threatened a few years ago.
It was
So that's why, in your restoration project, you're quite
concerned with the plover. That's the snowy plover, right?
Right. As a candidate species, like the plover was then, it has
no protection under the federal Endangered Species Act. There's
no regulatory mechanism to say, "You can't do this because you're
impacting a plover." We typically include, and the Fish and
Wildlife Service typically requests, that you include candidates,
so that you've addressed all that. So that if the species gets
listed before the project's done, or even in the middle of your
permit process, you're not going to have to start over again.
On page 45 of your report you write, "The Applicant has proposed
creating several snowy plover nesting islands, totalling
approximately 17.2 acres. Another 10 to 15 acres of islands
would also be constructed as part of the proposed brine shrimp
pond."
192
Mitigation and Jeopardy
Chall:
Foreman:
Chall:
Foreman:
Chall:
Foreman:
Chall:
Foreman:
Chall:
Foreman:
Now, there you're dealing with his mitigation proposals?
Right .
With respect to the mitigation in the long term-- (page 70)--
you're now sort of at the summary of your report: "The
Applicant's plan alsjo includes the purchase of approximately 332
acres of existing tidal salt marsh habitat at the mouth of the
old Alameda Creek." Also, "Donation of the salt marsh meets some
of the Fish and Wildlife Service's goals described in the Salt
Marsh Harvest Mouse and California Clapper Rail Recovery Plan,
but provides no direct, long-term gain in habitat value to offset
project impacts."
Was this important at that time? I know that you have a
restoration plan now because of mitigation off site. Was he
required to mitigate all of this off site, at the time?
Well, he would have only been required if he had been approved.
It would have been whatever the agencies ultimately required.
Again, our job here was to analyze his proposal and make
suggestions. And the conclusion to what you're reading there,
was that what he had proposed addresses some of the issues but
not all of the issues related to the impacts to the listed
species.
Of course, one of the problems was that he was "mitigating" or
planning to mitigate on land that he probably didn't own.
Didn't own or control.
Or control. And might not get, like the Oliver property which he
was never able to get hold of or adjacent gun clubs. That was
also uncertain.
Yes. And John had a lot of --there was a lot of discussion at
that time that he didn't have that other property. And a lot of
the areas that we looked at were owned by Leslie [Salt].
And you weren't sure that they were going to commit?
Right. And they basically stated that they weren't sure that
they would commit. But they also had made statements that if
they did get approved, that they probably would. It was in their
long-term interest. Leslie has always had—and now Cargill--has
always had an interest in seeing development in their salt
193
production ponds. It increases the value of the lands for them.
So it's a commodity. And I think a lot of what went on with
Shorelands and their dealing with John was that he was the first ;
really big project to try to go through the federal gauntlet to
get approvals to do that.
Chall: That was quite a bit—the hurdles were incredible.
Foreman: Right. And John, he was a very good salesman. He had a very
strong presence and didn't want to take no for an answer. One of
the things I always remember about John was that when the first
jeopardy opinion came out for the four species from the Fish and
Wildlife Service, he thought it was a positive letter. We
weren't quite sure of that. But I just sort of remember being in
a meeting in that big old office he had in San Lorenzo. And he
said, "This has many positive aspects."
Chall: Well, that's great. And he hung on for another four years.
There has been some concern that the people in the agencies
having to do with the EIR or EIS, that maybe they—the Fish and
Wildlife Service—were hostile to John and his project, and would
never have given it to him. In fact, some people feel that they
really wanted to bankrupt him, and did. Do you think there was
that much hostility toward John and his project?
Foreman: I don't know if it was that or inadvertent. But I'd say that's a
pretty typical technique that the government will use. They very
seldomly come out and say, "No, we just won't permit this." And
a final tactic, not only of the agencies but a lot of
environmental groups, is just to string something out until
people go away. And I think it was, in part, John's fault.
There are time frames for getting specific answers like a
jeopardy opinion. He would string out asking for that answer.
Chall: Setting up new mitigation?
Foreman: Change ideas. We'd go through— he was trying to deal with stuff
in compartments: you know, "Let's deal with what the city wants.
We'll deal with the feds here. There's some overlap, but we
won't ask for this consultation." If you ask for a consultation
with the biological assessment, there's a document that it's part
of --what they call a Section Seven Consultation Process.
Technically, the Fish and Wildlife Service is supposed to give
you a yes or no answer in 135 days. So that was always kind of
pushed out there. The only reason why we ultimately did it, I
think, in whatever articles in '87 was that the corps required it
to be addressed as part of the EIS. And those results
incorporated into the EIS.
194
("hall: You have a mitigation chart here [page 71, table 3] which
indicates just about every—at that time—proposal that "he'd
made, and then the advantages and the disadvantages. One of the
aspects that I noticed—number one—was the proposed purchase of
332 acres. And the disadvantage was that, "There would be no
direct long-term gain in habitat value to offset project
impacts." That was number one on your list, which, I guess,
always was crucial.
Foreman: Yes. Basically, he was just buying sometaing that was already
there. And in my opinion and a lot of people's opinions--! guess
since its in our document— our firm's opinion— was there was
already existing safeguards for that habitat. Yes, the [Fish and
Wildlife] Service wanted to acquire and protect those. So that
was the one goal we were meeting. Whether he would have met it
as part of the recovery plan— but protecting existing habitat
doesn't give you any restorative value. There's nothing added to
what's lost.
Chall: Then there were other items here with respect, let's say, to the
brine shrimp feeding pond. You claim that it's an "experimental
design and operation; long-term maintenance and operational costs
and commitment; island loss through wave erosion."
But I noticed that several of your disadvantages dealt with
costs: costs of maintenance, high acquisition costs. And I
wondered why you would be concerned with the costs? After all,
John, if he wanted to put the money into it, could do it.
Foreman: There's always a concern. Developers are always willing to put
up money, but one of the things is that John never identified his
source. Developers will identify and will often pay to start
something, usually because they're building and they still need
permits, so they comply very well with permit conditions. But
once something's up and running--. He never identified a
mechanism that would fund that cost. Because it was for managed
systems. He never said how he would deal with it, you know: was
it going to be an assessment district on the development; would
there have been an endowment? He never addressed that issue.
So without some identification of a way to pay for it, just
for somebody to actually go out and make sure they manage these
systems, it's a big concern. If you don't have that management
aspect, the system that you would have set up wouldn't work. And
then you've lost whatever mitigation you might have got from
that. That's why what we're trying to with Baumberg, now, is to
design it so we can get by with as minimal maintenance as
possible.
195
Chall: When you were finished, June 1987, did you then have any opinions
which you didn't have when you started out with respect to
Shorelands? Was it viable in terms of wildlife management?
Foreman: I think I always felt that there was a potential with enough
money and resources to develop a system that would replace the
use and values that would have been lost from water birds, for
endangered species. It would have been, I think, certainly
feasible to go out to restore enough habitat to show a net
benefit to the species over time, based on what they have now
with no changes and continued degradation of existing habitat.
So some restoration, better management of the salt ponds
certainly could increase bird use out there to offset what they
would lose from this unmanaged site. And I think that,
certainly, was a conclusion, I believe, we expressed in the
EIR/EIS, that you could deal with this loss of use or value to
the wildlife.
The issue that couldn't be addressed, which I still believe
is valuable, is that he could never replace that space, that
element for recovery, the "acreage." That was something that he
could not replace or did not try to address.
Chall: Yes, he could have replaced it, I suppose, by going across the
Bay, to Bair Island? [See Appendix D]
Foreman: Right, but Bair Island, again, is an existing area with the same
similar values.
Chall: So, it's pretty hard, then, to develop something that isn't
already around the Bay?
Foreman: Yes. This segment of the Bay, from San Jose to the Bay Bridge-
space is critical. There aren't really any large blocks left
that aren't functioning in some value. There's a little bit of
land down around San Jose that has some potential, I guess. But
it's very expensive land, now. John had explored going up into
Napa, Petaluma River, pieces of San Pablo Bay. There, there are
a lot of historic bay lands that are currently farmed. And that
could have given you this "wetland" space back. Except, the use
and values of the wetlands of the North Bay are very different
than down here. There's a difference of species that use that
area versus the South Bay.
Chall: So actually, if he were to mitigate off site, he would have had
to mitigate for the mouse, the rail, the plover, the very ones
that are endangered here?
196
Foreman:
Now, while the mouse and the rail occur up there, too--you
probably could have got the mouse and rail—well, actually it ' s a
different subspecies of mouse up there than is down there. And
the one in the southern Bay is a lot scarcer, more endangered
than the one in the North Bay, it's assumed. So it is a real
geographic problem in the availability of land.
Trying to Achieve a Balance Between Habitat and Species Needs
Foreman: And the other issue, which to be honest with you, everybody is
still struggling with even to this day, is that if you are doing
something within the remaining bay lands, which to a large part
are salt ponds; values are there; you affect some other value
that it has. That's the issue still bothering us. "Okay, we
restore this to tidal marsh; we're affecting the values this has
for shorebirds, waterfowl."
Chall: Ah, nature! It's pretty hard to fool around with nature, and
make sure that what you are doing is going to work?
Foreman: Yes, it's a balancing act. There's a whole process going on
right now trying to develop a set of goals for the Bay ecosystem,
and it's a major balancing act. We've had, oh god, it's been
going on for two or three years. And we've had some big meetings
over the last six months: big groups of different individuals
talking, "Oh, this is what we want to see." Well, to do that,
you effect this, and so it's a real balancing act. How much can
you restore without wrecking--?
Chall: Well, you can do nothing. But it you do nothing, something will
happen even if you do nothing, won't it?
Foreman: Well, even doing nothing is doing something. But it's probably
the wrong thing because even if you let the Bay kind of go, the
quality will degrade over time. We're not doing anything to
recover the mouse, the clapper rail—they need more space, they
need more habitat, they're pretty pushed from a lot of different
factors! So something's got to give. And its where can you find
that balance to get them a little more habitat, a little more
secure versus how you might affect birds that are more mobile,
and not as endangered.
197
Predation and the Fences
Chall: I just want to get into one more aspect of this report of yours.
You talk about predation and you have pictures here of, you know,
fences, the so-called "vaulting varmit" fence. The ideas for the
fences, I gather, came from Richard Murray Associates. Is that
correct?
Foreman: And John.
Chall: John and Richard Murray. Now, you looked at it, but as far as I
can tell, you didn't do any experimentation with it?
Foreman: Later, there was.
Chall: But did you do it? Did WESCO do it?
Foreman: Yes.
Chall: I wondered whether you were involved in trapping the rats and
putting up the fences. And yes, you did?
Foreman: Yes.
Chall: Well, tell me about it.
Foreman: Yes, that was one of the things with John, you know. A lot of
the concern from the agencies was that he would go in and say,
"Well, you know, we can build this." Their response was, "Prove
it." So that's how the fence thing came up.
He and Richard came up with the designs for these fences
that he would build around the development to keep everything
inside; nothing would get out. So the agency said, "Prove it."
Chall: Which agencies?
Foreman: Fish and Wildlife Service, principally, I think at this time.
Since they had listed the jeopardy opinion, they had the big
hammer. That was the primary group of people that we were
dealing with.
So they built the fences. We conducted the studies for
them, you know, again, third party studies. I don't remember how
many—but we captured several wild cats. We trapped them in live
traps. We trapped rats from the area, brought them in, put them
in the cages to see what would happen.
198
Chall: They got out?
Foreman: Yes. The first couple designs I think the--
II
Chall: Go ahead.
Foreman: All right. We put the cat in, opened the trap door, and I think
it was out of the--it went out, over, hit the side, went over the
top of the fence in about two seconds. I don't think I was even
out of the pen, yet. And it was gone. And it went out, cleared
over the top, took off running, ran through a ditch, started
swimming off across one of the flooded ponds, and was gone.
Chall: What a shocked cat! Well, I'm sure you were shocked, too.
Foreman: No, we had a feeling that it was going to get out. I forget, it
was probably a six, seven foot tall fence. I have to admit, I
was surprised at how high a cat could jump. I mean, I think that
cat did about a six foot vertical leap.
Chall: So it didn't climb the fence, it jumped.
Foreman: It jumped up, grabbed the top and then kicked itself over. I
think after that cat--I don't know how much John spent on these
fences, I'm sure it was a fortune. They were pretty big, well-
constructed fences. We went, got another cat. He redesigned it
[the fence], put an overhang over it, and we put some aluminum
things around there so they couldn't get a foothold. And I think
the next cat got out within an hour.
Chall: Dug under, or something?
Foreman: No, he got out the same way. It finally got enough footholds.
And then we put more aluminum—basically we were creating a solid
sheet so they just didn't have any--I think that the next time
that we put a cat in there it never got out.
We were more effective with rats; we were able to keep those
in. I forget how many rats we did. And I think somewhere along
the time, it started raining and it flooded up. We kind of
stopped after three cats and maybe half a dozen rats.
Chall: General opinion was that was not going to work? Or would it be
just too expensive to maintain?
Foreman: I think it got to the point that we felt that you could probably
build a fence that you could keep stuff from getting over, if it
199
was well maintained. It was going to be big and ugly, and that
was sort of the time when a lot of this was winding down. I
think John was starting to run short on cash. The agencies
wanted to see more, but we never did any more after it dried out,
Further Research: Reconsidering Mitigation and Jeopardy
Chall: When Karen Weissman of Thomas Reid Associates got the project — to
revise--! guess John decided that he would make another try at
it. They used your original report, they just simply made some
revisions and added to the information. I guess they had to
because the EIS/EIR was already completed. Did they contact you
in any way for more studies? Or was this report just based upon
their own research?
Foreman: We worked with them. Again, what happened was that our role was
as a third party. We reviewed stuff, we provided them with
suggestions, but in large part it was ideas that they would come
up with. They would react to some of our ideas, but even though
there was a lot of integration, we were still somebody else's
client. We were still the city's and the Corps of Engineers'
client. They [Shorelands] brought in Thomas Reid because they
wanted somebody that was for them and more of an advocate for
them rather than this third party thing. So that's when they
brought in Thomas Reid.
Chall: I see, and that was in 1989?
Foreman: Right. And again, we provided technical information. We worked
with them. And they incorporated a lot of our information, and
repackaged it, and resubmitted it. And I think they came up with
the same opinion.
Generally speaking, I think they felt that under certain
conditions that Shorelands could have had the permit.
Right. I think the Service came back with the same thing. I
believe there was--I don't know that it ever came out with a
formal biological opinion, but I think there was a draft that
also concluded jeopardy.
Chall: Their concern was with restoration and mitigation. Which is very
interesting in terms of what you're now doing. And I think they
felt that it could be developed--! guess with a lot of
mitigation; that there would not be any great loss of habitat or
Chall:
Foreman:
200
loss of species, because they felt there was not that much
already there.
Foreman: I think from the aspect of dealing with what was directly
impacted at this site, it is pretty minimal: the amount of
habitat, at least for the mouse. And there are certainly
projects that have probably affected as much or more habitat for
the mouse that have been approved. But they were also able to
deal with some of the other issues of recovery and that sort of
thing.
Chall: The road?
Foreman: Yes, the roads and different things.
Chall: Well, it's a very interesting report. A quotation from it will
lead into what you will be doing on the Baumberg Tract. "There
is nothing unique about the subject property that makes this
specific piece of land particularly critical to the recovery of
endangered species compared to other former tidelands. The
property may appear to be more readily restorable than similar
sites which currently have an economic use, such as active salt
production, but the economics of restoration itself are
uncertain. "5
5111
"Biological Assessment for the Proposed Shorelands Project," revised
by Thomas Reid Associates, August 1989, p. S-5.
201
Chall:
II THE BAUMBERG TRACT WETLANDS RESTORATION PROJECT
Why don't we go into the restoration of the Baumberg Tract that
you are now working on.
Foreman: Okay.
Acquisition by the California Wildlife Conservation Board
Chall: Now, John Thorpe's plan fell apart. I mean he couldn't go on
anymore. And I know that the present Baumberg Tract restoration
project came into being because of mitigation.
Foreman: Well, some of the funding, I'm not sure of the exact percentage
of it, but some of the funding for the acquisition and
restoration of the site is as mitigation for some projects. In
part, there's a highway interchange with CalTrans, with a
Fremont -Newark interchange.
Chall: Fremont-Milpitas, I think.
Foreman: Right, Milpitas, whatever. Some of those, it might even be all
three, I might have to go back and look. And then the other
aspect is the city of San Jose or Santa Clara Valley's sewer-
waste water discharge. All the fresh water flowing into the Bay
has changed the characteristics of the salt marshes down there.
They've become more brackish--dif ferent vegetation's grown. It's
changed the plant and animal life. And it has decreased habitat
suitable for the clapper rail and harvest mouse. The Regional
Water Quality Control Board, as mitigation for their continued
discharge, required restoration of 350 acres, I believe. That's
what they figure had been affected. So they said, "Okay, you
restore 350 acres to tidal action."
202
Chall: So that's why even your restoration plan, I noticed, requires you
to restore acreage for particular species. It's really
difficult, I suppose?
Foreman: Right. So that's the mitigation requirements. So Fish and Game
has parlayed that into the ability to buy the land from Cargill,
and then also fund the restoration activities.
Chall: And then the East Bay Regional Park District has put money in for
trails? About a million dollars, I think?
Foreman: Yes. They have an interest in open space, habitat preservation,
but they are also interested in public access. That's one of
their major mandates. Fish and Wildlife Service also put in
money. Yes, you probably should ask Carl [Wilcox] , but I think
it's in the range of a half million dollars. I think that's for
endangered species habitat restoration, wildlife values. [See
article, following page]
Chall: Altogether, they paid about $12.5 million to Cargill for this
piece of land? And some of the money, $5 million, came from
Proposition 70 and the Wildlife Conservation Board.6 So was
there, as far as you know, an attempt to put this money for this
mitigation in other places besides Baumberg?
Foreman: 1 don't know how much they looked. I'm sure they would. I know
there has been searches for a long time particularly for the
Santa Clara Valley, San Jose, whichever it is, for their
mitigation. I know they looked at a lot of places. There were
different evaluations going on. Part of the problem is that a
lot of the salt ponds are still in active production, so if you
take them out of active production you're affecting Cargill' s
operation. And even though I think there's historically been a
fair amount of animosity between Cargill and the regulatory
agencies, they also understand, they both—at least the agencies
understand they need Cargill.
Chall: So, finally, various mitigation proposals and the money came
together and Baumberg was selected for this restoration?
Foreman: Right.
'Proposition 70, June 1988. Wildlife, Coastal, and Park Land
Conservation Bond Act. Initiative statute sponsored by Calif ornians for
Parks and Wildlife. $776 million to acquire, develop, rehabilitate,
protect, and restore parks, wildlife, coastal and natural lands in
California.
202a
Hayward wetlands project to receive
$500,000 in unique replacement deal
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By Scott Andrews
STAFF WRfTEfl /'L
The 18 acres of wetlands sur
rounding the Interstate 880/Dixon
Landing Road interchange on the
Fremont-Milpitas border are no
pristine wilderness. ;
; "- ° s* "'•• -y* " •
Six lanes of traffic barrel pa«1.
San Jose's Newby Island landfiU
wafts a scent of rank garbage.
Nearby, weeds crark the tannao of
the defunct Fremont airport. The
shallow wetlands themselves seem
more like stagnant puddles than
wildlife habitat.
The interchange is scheduled to
be widened and improved by
2002, but the untrained observer
would expect little environmental
damage from paving over this
barren sliver of slightly soggy
land.
Sah marsh harvest mouse home
However, 6.5 acres of the wet
lands are home to the salt marsh
harvest mouse, an endangered
species. And state and federal laws
require replacement of any de
stroyed wetlands, no matter how
pathetic.
After .the improvements are
.complete, there will be only one
acre left of the current 18 acres of
wetlands." So Fremont and Mil-
pitas, which are paying for the im-
provements, were required to find
replacement land elsewhere. They
quickly found themselves in a
bind
Land costs out of range
The cost of buying land reached
over $1 million. Furthermore,
each site they found was nixed by
the state Fish and Game Depart
ment a* environmentally unaccept
able, Fremont. Assistant City
Engineer Allen Shelley said.
But in a unique deal, the cities*
have agreed to locate their re
placement wetlands in the Baum-|
berg tract, 835 acres of former
salt evaporation ponds in Hayward
that the state plans to restore to
prime marshland. "**
State strapped for funds
The state, which was short on
money to buy the tract, is happy
for the extra $500,000 the cities
will give. Shelley was equally satis
fied, calling the deal an "excellent
solution" in part because it will
save the cities at least 5500,000.
Paying for part of the larger
tract makes more sense environ
mentally than creating a separate
17-acre pocket of wetlands, said
Carl WjJcoXj__the^ state_FjsJb _and.
Game ^nwojunental_seryice _su-
pervisor forthe Central j^oast.
"You're always looking for the
opportunity to create larger units
and have habitats that are going to
be more broadly productive — not
just creating habitat for mice but
for other species as well," he said
Upgrading wetlands
He said upgrading from the
low-quality, seasonal wetlands at
Dixon Landing Road to the rich
Baumberg tract is barely more ex
pensive than buying another patch
of low-quality marsh.
The Baumberg tract will have
500 to 600 acres of habitat for the
salt marsh harvest mouse. The
larger amount of land makes the
land easier to manage and less
susceptible to drought and flood
damage, Wilcox said..
The Fremont and Milpitas
money is expected to be combined
with about $1 million from the
East Bay Regional Park District
for trails and about $6 million
from San Jose to mitigate sewage
damage, said state Wildlife Con
servation jJoard _ assistant exec
utive director Georgia Lipphardt.
"The money will push the state
over the $12^.4 million it needs to
buy the tracCshe said.
Work on returning the barren
marshes to their original state will
begin during the summer of 1998,
Wilcox said. It is expected to be a
flourishing habitat within five to
1 5 years.
203
The Selection Process; RMI Wins the Bid; Steve Foreman Project
Manager
Chall:
Foreman:
Chall:
Foreman:
Now, how is it that you got into this? You ' re in charge?
Well, I'm the project manager.
Sort of like the way we got into it the first time: Fish and
Game put out a request for a proposal. It was a competitive bid
process. I don't recall, I think there were maybe five firms
that bid on the project. [sarcastically] It's a joyful process.
The project was originally awarded to a different firm,
Levine and Fricke [spells], which I think now goes mostly by the
name of RECON. But they're in Emeryville. They were originally
awarded the first contract, or the initial selection was for
them. One of the other groups that had bid on it—it's Jeff
Peters, one of the former WESCO owners—with a group of other
consultants. He had gone, looked over the ranking sheets, and he
was mad because his firm wasn't selected and didn't even make the
technical qualifications. Two firms had made the technical
qualifications: ourselves and Levine-Fricke, of all the groups I
think that had put in. He threatened to protest the award
because there were some ambiguities in the ranking system- -in the
way different people rated the proposals.
And it appeared that there was, I guess, some strong bias
from one of the people towards Levine-Fricke. So Fish and Game
pulled the award and reissued the RFP with some different
characteristics and different evaluation criteria. And the
second time we won. Levine-Fricke threatened to—considered
objecting to the award, but didn't protest it.
My, there's a lot of competition out there for these things.
Yes, it was amazing. To be honest with you, you know, the budget
is so tight, it's not a tremendously profitable thing for a
private firm,
site.
I'm largely in it because I'm interested in the
Chall: And you knew the site.
Foreman: I knew the site. For me it's kind of a nice circle to work at it
from the aspect of seeing it close to development to being
restored, which is really what I think it was suitable for.
Chall: It must be a great kick, really, to do what you had watched maybe
being undone or maybe not being done by the other project?
204
Foreman:
Chall:
Foreman:
Chall:
Well, I think that this may go back to some of your earlier
questions about the animosity towards John. I don't know that it
was to John, personally, maybe not even to John's project, per
se. I think what they- -particularly, the agency saw this thing
as: this is the first big development project on a large tract of
former bay lands, unused salt ponds. And I don't think they
wanted to see a precedent set there.
I think they're happy with Cargill and salt production.
There's a lot of value that generates to the Bay from that, to
the resources around the Bay. But they also don't want to see
that land ever developed. To them, it's salt production or it's
restored, or managed in some other manner for wildlife. And I
think that was their big thing with this project. You know, over
here it was fine, you go on the other side of the historic bay
line, he could have had it.
But he wanted it there — in Hayward?
There was a location issue. And a long-term recovery of the Bay
issue. They just didn't want to set that precedent. And I think
that's a large part that's led to the Fish and Game buying the
land from Cargill. They want to show that, "We'll buy the land
from you; you have value for that land."
So it was Fish and Game that bought the land with the money that
came in?
Foreman: Well, really--see, the Conservation Board — it's a separate
agency, but it's basically an arm of Fish and Game that buys
land. Fish and Game can't go out and buy land. They manage
lands and do other things, but the Conservation Board buys it,
gives it to Fish and Game.
Chall: And since the jeopardy opinion went through Fish and Wildlife
Service, which is a federal agency, do you have to deal with Fish
and Wildlife Service, now, to set up your plan?
Foreman: Yes.
Chall: You still have to pass their—?
Foreman: We have to go through the same regulatory process. And that's
why there's a lot of information there, a lot of the concerns for
the snowy plover where we're dealing with restoration, the tidal
salt marsh. There's clear long-term benefits for recovery for
the clapper rail and salt marsh harvest mouse. If you create the
tidal marsh, they will come. They're around the edges and you're
addressing their needs.
205
But by restoring tidal marsh to these old salt ponds, the
salt ponds are what the snowy plover uses. It's not a natural
habitat for them. But some of the old salt ponds mimic the
historic types of habitats that the birds had, which were some
salty ponds. Most natural marshes have a mix of ponds, salt
pans, within the areas that get poor circulation. So in portions
of the Baumberg Tract, those ponds mimic the historic conditions
and are what the birds rely on. They're artificial, they're
maintained, but they're critical to the current survival of the
species. So we're trying to balance that out.
Restoration Project Staff
Chall: I do appreciate being on your mailing list and being allowed to
come to your meetings. They've been most informative. The team
members whom you introduced--! think it was at your meeting July
10 [1997] --were George Molnar, a wetland biologist from RMI, and
Carl Wilcox, who's an environmental services supervisor for
California Fish and Game. He's in charge of whatever you do?
Foreman: Right.
Chall: You report to him, but he doesn't do the studies?
Foreman: No. Well, Fish and Game has done some studies out there. Carl,
and a seasonal technician for Carl, did do some extensive bird
studies last year, counting, you know, doing bird censuses,
looking at how the ponds behaved, how they flooded up, how much
it flooded, that sort of thing. Fish and Game doesn't have the
manpower to put together these plans and go through the whole
process. Stuff's usually contracted out.
Chall: And then, there's you, the Wildlife Biologist Project Manager,
RMI, and Janet Green, Landscape Architect — Studio Green. What's
her place in this?
Foreman: Janet also does a lot of public review, or public interaction.
So, she's helping us with that. Plus, she's also dealing with
the access issues for the East Bay Regional Park: the trail,
landscaping issues around the trail, and how would the trial be
set up. It's not a big role in the overall project, but that's
the aspect of what she's doing.
Chall: I see. I think I saw her when she came in the night of the
meeting.
206
Foreman: Yes.
Chall: Well, this first meeting that you had followed the field trip,
which I certainly found interesting. You can't simply see all of
this on a map and understand the scope of the project.
Foreman: There are a lot of other people involved. There's a guy, Gary
Page. He is with Point Reyes Bird Observatory. He is a snowy
plover expert and actually had done some of the early censuses
around the Bay, including the Baumberg Tract. A lot of the
information on snowy plovers in the Biological Assessment was
from the study that he and his wife did.
Another is Larry Fishbein, a hydrologist. He's working on
the project — a critical role. Then there's a man named Andy
Leahy. [spells] He's an engineer, does a lot of the engineering
work. He's done a lot of wetland work. I worked with him
extensively on a number of projects, so he's dealing with the
engineering aspects. And there's a list of other people.
Chall: You call them as you need them, is that it?
Foreman: Right.
Many Factors Involved with Restoration
Chall: Now, as I attended the meetings, I noted there are plenty of
problems. You listed some in one of the exhibits here under
Commitments and Constraints: the commitments are to, "Provide X
number of acres of land per harvest mouse and the clapper rail."
You note that their habitat is somewhat similar. And then,
"Creation of seventeen and one-half acres of new jurisdictional
wetlands including some for the mouse." And then you need,
"Restoration of tidal marsh and enhancement of seasonal
wetlands." But you also have to deal with the plover, and that
isn't in here. Is there a certain amount of land for the plover?
Foreman: Well, the constraint really is that we cannot jeopardize the
continued existence of the snowy plover. In the definition of
the continued jeopardy and the continued existence, the wording--
the def inition--includes survival and recovery.
Chall: Oh, I see it's under constraint. You also have—what's been
interesting to me--is this whole problem of the access to the
sewer lines, facilities and property of Cargill, PG&E and
207
transformers. There are all kinds of things out there, physical
things that you can't not deal with.
Foreman: Well, basically, we can't afford to move them.
Chall: No, you can't afford to move them and that sewer line- -might
sometime in the next fifty years—might have to be checked or
repaired?
Foreman: Checked, or it might break, or something. Right.
Chall: So you don't want anything over the sewer that could be
destroyed. I mean, if it were destroyed it would destroy an
important habitat?
Foreman: Yes. We want to be able to restore it back. It certainly is a
challenge.
Chall: And you have available just so much funding? It's only $1.3
million. How was that determined?
Foreman: Carl, I think he said he spent $12 million--$12.5--he basically
had $1.5 million left over after the purchase. That was his
initial estimate on how much he thought it would take to do the
restoration work. Our contract is roughly $185,000 to do all the
work, somewhere in that range. So that I think we just took off
--kind of two--so, yes, $1.3--that was what he had available.
We've done some preliminary estimates of costs. And he's working
to find more money. So, we're trying to refine the costs a lot,
so there's not a lot he has to ask for. He will go back to the
cities, the people doing the mitigation. They'll be responsible
for parts of it, so they can maintain their commitments.
Chall: At your November 6 [1997] meeting, which was mainly for the
agency people involved, you had a number of alternative maps.
There were Map One, Map Two, Map Three, and this three-page draft
of Conditions, Constraints, and Opportunities Summary. It just
boggles the mind- -particularly a mind like mine. I like to go
for a walk and look at birds [laughs]. But I can see that each
one of these maps is different with respect to how much land
would be used for the snowy plover, how much for marsh
restoration, how much for seasonal wetlands. There are some
significant variations and some of them look just like nuances.
I think that the group finally came up with alternative number
three, at least that's the one I have my marks all over. But I'm
not sure whether you really had made a decision at that point.
[See two early alternative plans, following pages]
Foreman: No, we hadn't.
207a
207b
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208
Chall: Do you want to look at this?
Foreman: No, I've committed it to memory. There are probably 500
variations of ways that we could do things. We tried to show-
well the first one was Carl's first idea.
Chall: Carl's idea was number One?
Foreman: Well—number One. It was kind of his original idea to show how
he saw it being done. Two and Three were variations off of that
to look at other physical constraints, regulatory constraints,
and did it make sense.
Chall: I can see where you've listed the physical constraints, the
hydrologic considerations, the salinity of the soil, the mean
elevation, and all of that kind of thing. There is so much
involved here!
Foreman: They all relate to how the area may be restorable or what
problems you may have. And again, you know when Carl did his
first idea, it was based on one set of knowledge. As part of our
work, we've developed a whole additional set of information to
bring into the equation. In principle, the pond elevation is a
critical element to what can be restored.
Chall: That's why you need your engineer?
Foreman: Right, and the hydrologist. Because the hydrologist will tell
us, "Okay--
Foreman: So, there's this change in elevation, and the marshes will behave
differently depending on the elevation. If they're very
subsided, very low, when you first open the tidal action, you're
going to get open water; and you get one set of conditions that
way. And if there's enough silt, they'll silt up, and that's a
very desirable component. So we have to make sure there's enough
sediment moving in the water, variable sediment, to give us the
proper elevations.
Chall: Now, we've just had enormous rains. I bet everything looks a
little different on the ground right now.
Foreman: It's wet. [laughter] There's a lot of sediment in the water.
This would have been a great year to have it open because we
would probably gain some extra because of all the washout from
the hills, and the uplands, and moving around. There's a lot of
sediment in the Bay and it has a lot to do with the mudflats.
209
Mud will tend to move around and sediment will tend to move
around. One of the concerns is, if you're in the sediment depths
and you open up too many big areas and the sediment gets sucked
into there, you might affect the size of the mudflats out in the
Bay. And those mudflats are critical feeding resources for
shorebirds at low tide. There seems to be available information
in this area of the Bay that we have plenty of sediment, that we
won't have that problem. But it's also a timing issue. If
you've got to wait for four feet of sediment to come in that
might be X number of years before you get a marsh established.
Chall: And how many years are you allowed to have?
Foreman: We're not on a time frame.
Chall: You just have to do the best that you can.
Foreman: We just have to do the best we can. I think the original--!
guess I wouldn't say that we are not on a time frame, because
there is some assumption in the board's assessment — the regional
board's assessment — for the waste water. The assessment was that
it might be fifteen to twenty years before we had that clapper
rail habitat. If it takes thirty--! don't think it's written as
a permanent condition, but there are some assumptions that once
the habitat's restored, we will get a usable clapper rail habitat
within fifteen years.
Chall: Well, I hope we're all around to see it. [laughter]
Foreman: Hopefully, it will be faster than that. But I think what we're
trying to do now—to be honest, the plan we're moving forward
with isn't really one of the three of those you saw.
Chall: You have another one?
Foreman: We've modified Three a bit, just by looking at some additional
information, and comments from the meeting, that made sense.
Chall: Some of your meetings—the first one I attended had a lot of
agency people, and then in the evening it was open not only to
the agency people.
Foreman: The general public.
Chall: The general public. And so the people like the Delfinos, and
Howard Cogswell, and others--! didn't know them all— but are they
still available for commenting? And do they comment?
Foreman: Oh, sure. We're right now, George and I, working with Carl and
the rest of the team trying to finish the plan up.
210
Chall: Do you have a time limit on finishing the plan and getting
started?
Foreman: Yes, we're a little behind schedule for a variety of reasons, but
we're trying to get the plan together. We haven't put anything
out since the last meeting in November. What George and I have
talked about doing is, hopefully, within the next week or two to
be putting out kind of a little summary to say, "Okay, this is
the preferred plan. This is what we decided, how we decided to
proceed forward." A big part of that is that I'm waiting for the
hydrologist to finish his work so that I know that it will work,
before I say this is what we're going forward with. And then
he's comfortable that these are how things may develop, so we can
kind of describe that in general detail. And from there, we can
put the rest of the plan together with the other environmental
documents we need.
Chall: And do you then have to get permission from the Fish and Wildlife
Service, and, I guess, the Regional Water Quality Control Board?
The city of Hayward--not necessarily?
Foreman: [sighs] I don't think we have to get — actually , I'm pretty sure
--we don't have to get city of Hayward permission because it is a
state project. The state's not subject to local regulations.
The state certainly cooperates with them, but they're not subject
to any permits. We do have to apply for Section 404 permits from
the Corps of Engineers.
Chall: That's water, isn't it?
Foreman: Yes, the Clean Water Act. That will cover dredging activities,
fill, excavation, and any areas subject to their jurisdiction.
We will also--as part of that permit process—deal with the Fish
and Wildlife Service to address the endangered species issues so
that the project complies with the Endangered Species Act from
the federal standpoint. Fish and Game will also have to do their
own thing to make sure they also comply with the state Endangered
Species Act.
Chall: And you have to do all that before you put a spade in the dirt?
Foreman: In the dirt! Yes. And also as part of that process, we deal
with the regional board. The regional board has to certify--
Chall: Which regional board?
Foreman: The San Francisco Bay Regional Water Quality Control Board. For
any 404 permit they have to say that the project either complies
with state water quality standards or they don't have any
concerns. For a project this size, they'll have to provide a
211
certification that this project complies with water quality
standards for the Bay.
Chall: How long will all this take?
Foreman: Optimistically, six months. More likely, a year.
Chall: So your shoveling doesn't start until mid- 1999, or early 1999.
Foreman: I think—we were hoping to get this done in like three to six
months, so late fall, maybe, we could start. For a variety of
reasons. One of the big concerns has been a lot of the recent
rains.
Chall: Right. Changes.
Foreman: It changed things. But it's also—Carl, Fish and Game, wants to
have the East Bay Regional Park District manage the construction,
do the bidding, and do the construction.
Chall: Oh, really? Of the whole thing? Is that right?
Foreman: Of the whole thing.
Chall: I guess you have reasons for thinking they can do it?
Foreman: Well, they've done the Ora Loma project. They have some
experience doing it.
Chall: And they've also done the Hayward Area Shoreline.
Foreman: Yes. The district has the manpower, some manpower facilities for
construction. So they've done a lot of this. And they're a
public agency with those capabilities. To be honest, Fish and
Game is somewhat lacking in that. It's not their job. I mean,
they do have some, you know, refuge managers, and they have a
refuge manager arm, but they've got enough of what they already
have.
Chall: So, if you turn it over to them for doing the work, is that part
of the $1.3 million?
Foreman: Yes. So one of the aspects is that they'll—
Chall: They might not do it for that amount?
Foreman: Right, right. Well, we have to make sure there's enough money
available, or we'll have to scale back what we do, or get the
money. Carl's looking to expand the budget to fit what we want
done. But they, the park district— many of their facilities have
212
Chall:
Foreman:
Chall:
Foreman:
Chall:
suffered so much damage in the last two months, they have other
priorities. And they won't have the time immediately to devote
to the project. So, with some of these delays, and just the time
it takes to get through the regulatory process, I think it will
be probably '99 before things start happening.
Well, are you feeling sort of excited about doing this project?
Oh, yes.
Is it very meaningful to you in terms of your career?
Yes. A lot of the focus of what I like to do--and
professionally, what I've done with this company—is work on
habitat restoration. Whether it's for mitigation, for projects,
or just for somebody who's got an open space land and they want
to improve the values on it. That's a big goal of what I like to
do.
Well, you certainly are doing it, aren't
you?
Other Restorations Projects Around the Bay
Foreman: Well, you know, there are lot of projects. There's a number that
we're doing around the Bay. They are in various stages. This is
certainly the biggest. This is a big project. The one I went to
look at this morning—you may have heard of Roberts Landing?
Chall: Oh, yes.
Foreman: I've worked on that for years. We did some mitigation, tidal
restoration, this last year. We just finished completing it and
have it restored in tidal action. It's about 130-some acres, I
believe. So that's one I was looking at today. I think we
opened it first last July, and then did some additional work late
this fall and reopened it again in December. So it's been moving
along. I've some on the West Bay, Palo Alto, Redwood City, that
I'm working on that if we can get the permits finalized, would
affect another 140 acres next year.
Chall: Well, you're a busy person, doing what you really want to do, and
that's fortunate, then, that you can do it.
Foreman: Yes. Yes. It's a--I guess a portion of that is that I get to do
what I like to do and I get paid for it.
213
Chall: Very good. Is there anything you'd like to say about the
Baumberg Project or anybody involved in it that we haven't
covered? I'm sure there may be.
Foreman: Well, we covered just about everything, seems like. You know,
there's lots of little things. If I probably started reading
back through these books--! see the cover on that—this starts to
trigger back memories of dealing with Richard.7 He was always
entertaining.
Chall: I'm going to be talking to him next week. Mr. [Robert] Douglass,
of Cargill, told me that the problem they had with Mr. Murray was
to keep him on the track-- [laughter] --because he was making his
plans with the mitigation areas that they really didn't have.
Foreman: Well, Richard--he' s a very interesting man--a little spacey
sometimes, but he had some ideas and he didn't have a lot of
training in this.
Chall: No, he's a landscape architect, I understand.
Foreman: Right. But he had done some--I guess he had worked on a
mitigation project for snowy plovers at Pajaro River [Pajaro
Dunes], or something, and had gotten an award for that, and I
think that's how John found him. So he was their principal
mitigation person. And in part, we were somewhat the check on
his enthusiasm.
Chall: You had two enthusiastic people to deal with. [laughter]
Foreman: Yes. [laughter] A lot of what we did was to respond to his
ideas, and some of his ideas probably would work with time--.
Chall: Time and money.
Well, I really appreciate the time you've given for this
interview. Thank you very much.
Transcribed by Amelia Archer
Final Typed by Shannon Page
7"Shorelands Biological Mitigation Master Plan," (Revised 12/12/87)
Prepared by Richard Murray Associates.
214
Regional Oral History Office University of California
The Bancroft Library Berkeley, California
California Water Resources Oral History Series
THE BAUMBERG TRACT: FROM THE PROPOSED SHORELANDS DEVELOPMENT
TO THE WETLANDS RESTORATION (EDEN LANDING ECOLOGICAL RESERVE), 1982-1999
Karen G. Weissman
FINAL BIOLOGICAL ASSESSMENT AND MITIGATION PLAN FOR THE
SHORELANDS PROJECT, 1988-1990
An Interview conducted by
Malca Chall
in 1997
Copyright © 2000 by The Regents of the University of California
Karen Weissman, 1999,
215
TABLE OF CONTENTS- -Karen G. Weissman
FINAL BIOLOGICAL ASSESSMENT AND MITIGATION PLAN FOR THE SHORELANDS
PROJECT, 1988-1990
INTERVIEW HISTORY 216
BIOGRAPHICAL INFORMATION 218
Karen Weissman1 s Background and the Origin of Thomas Reid
Associates 219
Establishing Contact with John Thorpe and the Shorelands
Project 220
Preparing for the Task Ahead 224
Overcoming the Hurdles: Mitigation Due to Loss of Wetlands Area 225
Planning and Working Toward a Successful Outcome 227
Habitat Mitigation Issues: The Snowy Plover, the Salt Marsh
Harvest Mouse, the Clapper Rail, the Least Tern 228
The Concern for the Future of Wetlands 230
Attempts to Control Predation of the Clapper Rails 232
The Second Draft Jeopardy Opinion Means Defeat for the
Shorelands Project 236
The Frustration of a Consultant Failing to Reach the Desired
Goal 237
The Current Status of the Baumberg Tract 238
Examining the Processes Required to Restart the Project 239
Critique of Government Environmental Regulations in General
and on the Shorelands Project in Particular 242
216
INTERVIEW HISTORf--Karen Weissman
Karen Weissman, soon after receiving a Ph.D. in biological
sciences from Stanford University, formed, in 1973, the partnership
Thomas Reid Associates [TRA] with fellow student Thomas Reid. They
specialize in environmental impact assessment and habitat conservation
planning.
During my first interview with John Thorpe he revealed that he
had, in 1987, withdrawn his application for a permit to build Shorelands
when he realized that the Fish and Wildlife Service had determined the
project would jeopardize endangered species. He then hired Thomas Reid
Associates to prepare another biological assessment, and to advise him
on measures he might take to pass jeopardy so that he could move ahead
with his ambitious project.
When I contacted Thomas Reid and asked him to participate in the
oral history of the Baumberg Tract, he said that Karen Weissman had been
in charge of the Shorelands Project, and that he would prefer to
delegate the interview to her. I contacted Ms. Weissman, who agreed to
be interviewed. We met in a conference room of the Associates' office
in Palo Alto during the morning of November 4, 1997.
When we met for the interview session, Ms. Weissman brought along
with her many of the documents, memoranda, and letters from her work on
the Shorelands Project between 1988 and 1990. We covered the problems
faced by Mr. Thorpe trying to meet the regulations of the Fish and
Wildlife Service regarding endangered species. As we have learned from
previous interviews in this volume, John Thorpe faced high hurdles
overcoming jeopardy—hurdles related particularly to mitigation and
predation. Ms. Weissman discussed her work on the project with good
humor and with careful attention to detail, expressing her frustration
at failing to help John Thorpe overcome the final draft jeopardy opinion
of the Fish and Wildlife Service.
When asked whether all the rigorous regulations required by
environmental laws were necessary, she said emphatically that they were.
Ms. Weissman strongly opposes attempts by Congress to weaken
environmental legislation.
Immediately following our brief interview, Karen Weissman
generously copied memoranda and letters she thought would be useful for
research on the Baumberg Tract, and gave me a copy of the "Biological
Assessment for the Proposed Shorelands Project," which she had revised
for Thomas Reid Associates in August, 1989. The memoranda and her clear
explanation of the various aspects of the environmental regulations laid
X
217
the groundwork for my interview with Peter Sorensen. These papers will
be deposited with this volume in the Bancroft Library.
Ms. Weissman carefully reviewed her lightly edited transcript,
correcting spelling and adding information, where necessary. Her
interview provides additional and essential information about the
hurdles faced by developers and environmental assessment specialists
like TRA as they attempt to design plans acceptable within the framework
of complex environmental regulations.
The Regional Oral History Office was established in 1954 to
augment through tape-recorded memoirs the Library's materials on the
history of California and the West. Copies of all interviews are
available for research use in The Bancroft Library and in the UCLA
Department of Special Collections. The office is under the direction of
Willa K. Baum, Division Head, and the administrative direction of
Charles B. Faulhaber, James D. Hart Director of The Bancroft Library,
University of California, Berkeley.
Malca Chall
Interviewer /Editor
January 2000
Regional Oral History Office
University of California at Berkeley
2ia
Regional Oral History Office
Room 486 The Bancroft Library
University of California
Berkeley, California 94720
Your full name
Date of birth
BIOGRAPHICAL INFORMATION
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Present community
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STATEMENT OF QUALIFICATIONS - April 1998 21ga PAGE 1
STAFF BIOGRAPHIES
KAREN G. WEISSMAN, PH.D.
Dr. Weissman has been a Principal of Thomas Reid Associates since she
completed her doctorate in late 1972, and Vice-President of the firm since 1982. Her
areas of expertise include ecology, population biology, demography, land use,
governmental planning and policies and regional environmental issues. As a
principal of the firm, Dr. Weissman provides public representation of many of her
cases in the EIR process. In the firm's numerous cases for the California Public
Utilities Commission, she has provided expert witness testimony in administrative
law proceedings.
Dr. Weissman has participated in nearly all of the firm's past work. As CEO of
the firm she plays a key role in the conceptualization, planning, contracting and
execution of all jobs. She has served as client liaison for technical information
transfer and review on numerous cases, and has expert familiarity with the methods
of data collection and analysis from diverse sources, including governmental
agencies, universities, public service organizations, public and private interest
groups, and private industry and commerce. Dr. Weissman has primary
responsibility for administering subcontracts and assuring the delivery of acceptable
work products by subcontractors. Dr. Weissman also reviews all of the work of TRA
staff for CEQA adequacy and overall quality control.
Current case work includes the Santa Clara Valley Water District
Sediment/Erosion Control and Vegetation Management Program EIRs. Recently
completed studies include the Mount Washington Cellars and Resort Village EIR, the
Brisbane General Plan EIR, the Pacifica Wastewater Management Plan EIR, and the
Grassland Water District Land Planning Guidance Study. Dr. Weissman was Case
Manager and Principal Investigator for the Claratina/Coffee and North Beyer Park
Reorganization EiR, Giiroy Hot Springs Resort EIR, Gilton Solid Waste Transfer
Station and Outdoor Resorts Recreational Vehicle Park EIR. She has also been
Principal Investigator for numerous other TRA studies including the Farm Labor
Housing Project EIR, Devers-Serrano Transmission Line EIS/EIR.
Dr. Weissman's expertise encompasses up-to-date knowledge of the
requirements of CEQA and other environmental legislation and case law as they
pertain to environmental documents. She is frequently hired by private and public
clients to provide detailed, formal technical review of numerous EIR's prepared by
others, including industrial projects, "new towns" other mixed-use developments,
high-voltage electrical transmission lines, sewage sludge disposal, and a solid
waste/hazardous waste transfer station.
Projects reviewed include the Dougherty Valley General Plan EIR (Contra
STATEMENT OF QUALIFICATIONS - April 1998 PAGE 2
218b
Costa County), Mountain House new town EIR (San Joaquin County), Diablo Grande
and Lakeborough New Town EIRs (Stanislaus County), Renaissance Residential
Project EIR (San Jose), Evergreen Specific Plan (San Jose), O'Connell Ranch
Annexation/Rezoning (Gilroy), Franklin Canyon residential project (Hercules), Signal
Energy Biomass Plant EIR (Shasta County), Uruted Technologies Rocket Motor Facility
EIR (Merced County), Metropolitan Oakland International Airport Development Plan
EIS/EIR, San Jose International Airport Master Plan Update Draft EIR, Chiron R&D
Facility EIR (Emeryville), Vacaville Entertainment Center Negative Declaration, and
Fourmile Hill Ceothermal development (Klamath/Modoc Counties, CA).
A biologist by training, Dr. Weissman has done biological reconnaissance and
impact assessment of projects ranging from oil and gas pipelines, transmission
lines, marine terminals for oil and liquid natural gas, port expansion, landfill
expansion and residential subdivisions. She has worked closely with wildlife
agencies in the study of impacts on rare or endangered species in California and
other parts of the western region.
Dr. Weissman has had a central role in the firm's many endangered species
conservation planning studies. She was a Principal Investigator for the Natomas
Basin Habitat Conservation Plan (1994-97), the Southern San Joaquin Valley Habitat
Preservation Study (1986-89) and principal author of the Coachella Valley Fringe Toed
Lizard Habitat Conservation Plan and EIS/EIR (1984-1985). She provided expertise in
theoretical ecology for the Biological Study for Endangered Species and Habitat
Conservation Plan for San Bruno Mountain.
Educational Background and Honors
A.B. Zoology, University of California, Los Angeles, magna cum laude, with Highest
Departmental Honors, elected to Phi Beta Kappa
Ph.D. Biology, Stanford University, Stanford, CA
National Science Foundation Graduate fellowship
Professional Membership
American Association for the Advancement of Science
Corporate member, Association of Environmental Professionals
219
INTERVIEW WITH KAREN WEISSMAN
FINAL BIOLOGICAL ASSESSMENT AND MITIGATION PLAN FOR THE
SHORELANDS PROJECT, 1988-1990
[Date of Interview: November 4, 1997] it1
Karen Weissman's Background and the Origin of Thomas Reid
Associates
Chall: I'd like some background, before we get too far into this,
about your education and your career. How did you happen to
end up with Thomas Reid, in charge of this Baumberg research?
Weissman: Certainly, I would be happy to tell you. I went to Stanford
University between 1968 and 1972, '73, in the doctorate program
in biological sciences. It was there I met Tom Reid, who was
also in the same program. I got my Ph.D. at the end of 1972,
and my specialty was population biology and ecology. My major
professor was Paul Ehrlich.
Tom did not finish his graduate program, but he did take an
early course in the Civil Engineering Department on
environmental assessment. This was in the very early days,
right after the passage of the National Environmental Policy
Act [NEPA] , and the California Environmental Quality Act
[CEQA], and the Friends of Mammoth decision, which was in 1972,
which extended the authority of CEQA to private projects. It
opened up a whole field of professional endeavor that didn't
exist before, which was environmental impact assessment.
Tom was one of the early people who had training in this,
and he decided to start his own company shortly after that. I
was, at that point, getting my doctorate and I did not want to
leave the area. He asked me if I wanted to work with him, and
I decided that seemed like a very interesting thing to do. We,
ended.
This symbol indicates that a tape or tape segment has begun or
A guide to the tapes follows the transcript.
220
basically, started this company, and we've been doing it ever
since. We'r-j one of the early founding companies in this area,
Chall: What exactly do you call your specific field of endeavor?
Weissman: Environmental impact assessment and habitat conservation
planning.
Chall: You have had a lot to learn.
Weissman: The whole industry has had a lot to learn, and the public
sector as well, which is the side that reviews all of this
information. They have become much more sophisticated, in
terms of what they've come to expect.
Establishing Contact with John Thorpe and the Shorelands
Project
Weissman: How did we get involved with the Baumberg Tract and John
Thorpe? I'm not sure. Someone recommended us to possibly
their attorney, Richard Bailin, at the time. I'm not sure
exactly what the connection was, but we were contacted by them
to basically help them with the permitting because things were
getting bogged down. At the time, they had a biological
consultant, which was WESCO [Western Ecological Services
Company] who they continued with. Their role then became doing
field studies and things like the enclosure that they were
doing.
Our role was to be the technical liaison with the agencies,
with the Corps of Engineers, and with the Fish and Wildlife
Service and the California Department of Fish and Game, to
negotiate through the permitting process and end up with a
proposal that would be acceptable to all the agencies so that
Shorelands would end up getting their permits to go forward
with the project.
Chall: Was this after 1987 when he withdrew his application because he
was afraid he would get a jeopardy opinion and be denied a
permit?
Weissman: Turned down.
Chall: Yes, right, his application was all set to be turned down, so
he withdrew it, and, apparently, then hired somebody else to
see if he could bring it to fruition some other way.
221
Weissman: That's correct. He came in to us, I thf.nk, in 198iJ.
Chall: Oh, all right, that makes sense.
Weissman: That's right. He wanted to restart the process, which he did.
He restarted his application with the Corps, and he restarted
his Section 7 consultation with the Fish and Wildlife Service.
Chall: You call that Section 7?
Weissman: That is for the endangered species issues. He also wanted to
restart his environmental impact statement. That had to be
revised, but that never actually happened. I think that the
whole thing fell apart before that document was reissued, and
we were giving him advice on that as well.
Actually, there is a document which Tom wanted me to show
you, which was the very first letter that we ever wrote John
Thorpe. After he decided to retain us, we had a meeting with
him and his attorney, and Richard Murray, and all the players
at the time. We did an assessment of what his chances were of
succeeding with this project. It was our firm conviction that
he was going to have a very, very difficult time, that we could
not offer him any assurances that this was going to be
successful .
Later on through the process, we advised John Thorpe that
if he wanted to build the type of project that he had in mind,
he would be much better off picking another site that was not
in the bay lands. We suggested that he might do it in
Pleasanton, that area in the 1-580 corridor, because there were
some demographic projections that had been done, I think by
ABAC [Association of Bay Area Government], and the California
Department of Finance, to show that the concentration of the
population who would be attracted to his facility, like his
racetrack, was going to shift to the East.
He would have a much greater market for his project if he
were located in a place like Pleasanton as well as having a lot
less problem with traffic, because where he was was sort of the
major bottleneck. The whole Bay Area, from the San Mateo
Bridge — it was going to be an absolute nightmare of traffic to
be there. John Thorpe was a man with a mission. He was on a
mission from God; I don't know how to put it but it was this
site, it was this project, or nothing.
Chall: That's interesting that you bring this up because I've seen
some of his correspondence and he had been asked, it seemed to
222
me, before 1987 to move his racetrack to the Pleasanton area.2
You think you may have been the first people to suggest the
change of site?
Weissman: I'm not sure we were.
Chall: Or, you may have been just reiterating the possibilities?
Weissman: Right.
Chall: Yes. He refused to do that.
Weissman: He was not receptive to the idea, and it was a sensible idea.
If it were purely a business decision, I think that's the
decision he would have made, because at the time he just had an
option on the property, he never actually purchased the
property. He was always struggling with how to renew this
option with Leslie Salt, and it was costing him a lot to have
that option. I don't know that much about his history or his
family background, but there was something that just really
tied him to Hayward; it had to be Hayward. It had to be the
Baumberg Tract.
He was absolutely convinced that if he stayed in the game
long enough, he would succeed. I think, finally, he just
burned through every possible financing option, he used them
all up, and he was out of money. The strange thing was that he
had created a structure for himself which gave the illusion of
a real development business. He had this house, he had a whole
staff of people, which was costing him a lot of money. I don't
know how many people he had in there, but he had a full-time
technical staff. Have you interviewed Nori Hall?
Chall: No.
Weissman: Well, she would be a good one to talk to.
Chall: Nori Hall was whom?
Weissman: Nori Hall was John's right-hand lady.
Chall: His secretary?
Correspondence between John Thorpe and Colonel Andrew M. Perkins,
Jr., District Engineer, U.S. Army Corps of Engineers (February-April,
1985), suggesting an alternative site at Los Positos (Livermore).
223
Weissman: No, she wasn't a secretary. She was like a technical advisor,
assistant. She was his liaison for regulatory affairs, and we
worked most closely with her throughout the process. She was
constantly writing letters, making phone calls, communicating
with all the consultants, with the agencies, tracking what was
going on, she attended every meeting. She was very energetic;
she was quite good at what she did. The problem is that she
was dealing with a hopeless situation.
And then, he had all these other people there, just
secretaries, and--. I don't know what all these people were
doing.
Chall: It was all Shorelands at that time, probably, because he had
built another major project called Columbia Homes in the hills
of Castro Valley, maybe a few years before. So, he was known
as a developer. Of course, he was known anyway in Hayward.
So, some of that might have been still going on, I'm not sure.
I think he was finished with the housing development.
Weissman: Well, that's interesting because we asked him what sort of
track record do you have to know that you can do this. There
was really nothing. He didn't mention--. I don't recall this
Columbia Homes Project at all.
Chall: Oh, really.
Weissman: We wondered where he got his initial shot of financing to even
consider doing this. What was bankrolling him? This is news
to me to know that he built homes in the Castro Valley hills.
He certainly wasn't forthcoming about showing it off.
Chall: I'm not sure whether he ended up in some kind of problem with
that financially, but it's a going concern; that is a major
development in the hills of Castro Valley. There, again, at
the time he had quite a bit of altercation with some of the
environmentalists in the area who didn't want him going through
certain areas where there were trees, cutting down trees, and
building a new road. But he got through all that. He was very
proud, actually, of what he managed to accomplish at that time.
So, yes he does have a track record. Many people really
believed in him and gave him a lot of money.
Weissman: That's true, he was very persuasive with the investors. I mean
at one point he got--. I remember I think the last major shot
of money he had was--. There was a check that they had
photocopied and blown up, I think it was for $1 million. It
was sitting on Nori Hall's desk under glass. This was a group
224
of British investors who invested in racetrack and hotel
development. That was one of the last people he went to.
In fact, once Tom and I were on a plane to New York and he
was on the same flight, it just so happened--a complete
coincidence. I think he was on his way to the UK to try to do
more fund raising at that time; that was way at the very end of
the project.
Chall: Oh, I see, when he was really dssperate. Well, are you saying
that when you started out at the very beginning after an early
meeting with him, that you sort of warned him that you might
not be able to provide anything more than had already been done
to get him past the jeopardy opinion? Is that it?
Had you done a considerable amount of research on the other
material that had then been finished, like the Murray reports
and the report for the Cole /Mills Associates by Steve Foreman?
[shows copies of reports)3
Weissman: Oh, that's the early one, yes. And this was the WESCO one,
right? You should get a copy of the one that we did. I think
this is an extra copy.4
Preparing for the Task Ahead
Chall: Oh, good, thank you. I'm just trying to think of how you would
go about this task. The first thing you said is that you
forewarned him. Now that means that apparently you went over
all the literature?
Weissman: We did. We had access to all the materials that had been
prepared to date, and we based our assessment on what we saw;
in particular, what was the content of the jeopardy opinion
3Richard Murray and Associates, "The Shorelands Biological Mitigation
Master Plan." Revised 12/12/87. The original plan is dated 8/31/87.
"Biological Assessment for the Proposed Shorelands Project." Prepared
by Western Ecological Services Company (WESCO), June 1987.
''Thomas Reid Associates, "Biological Assessment for the Proposed
Shorelands Project," (Revision of the report originally prepared by Western
Ecological Services Company [WESCO]), August 1989.
225
Chall:
Weissman:
Chall:
Weissman:
that he was about to receive when he withdrew his application.
We could see the magnitude of the problems that he faced.
Did you go on a field trip?
Yes, we got the grand tour of the property and the whole thing.
Tom Reid assigned this to you. Is that it?
Well, he and I are the principals of the firm. I have
necessary biological background to have done the assessment and
prepared the documentation that was needed. 1 also
participated in all the meetings and the meetings with the
agencies. The critical factor here was there was one
individual who is an employee of the Fish and Wildlife Service
who was absolutely determined that this project would fail.
Overcoming the Hurdles: Mitigation Due to Loss of Wetlands Area
Chall: Who was that?
Weissman: His name is Peter Sorensen. He and John Thorpe were just as
opposite as they could be. As determined as John was to
succeed, Peter Sorensen was determined that he would not
succeed .
Chall: Is this a common problem among people in agencies who might not
just have a difference of opinion but a difference of
personality which can color the final results? You're probably
going to tell me a little bit more, but right now it looks as
if this might have been based more on their hostility than on
scientific evidence.
Weissman: Well, I don't think it was hostility, it wasn't a direct
hostility. What it was was essentially a difference of
philosophy really. You could take the scientific information
and interpret it according to a spectrum. One end being, yes,
they could build this project and they could do all the things
that were in this document that said that they could mitigate
the impacts on all the species of concern and there wouldn't be
a problem, which was John's point of view. Peter Sorensen at
the opposite end would say, "No, this land is historic wetland,
it is part of San Francisco Bay. I won't see one inch of fill
put on any more of San Francisco Bay, and certainly not for a
project like this."
226
Chall:
What it came down to was that the deal that they would have
had to negotiate--. There is always a deal waiting in the
wings. The deal that the Fish and Wildlife Service wanted was
to get a very, very large tract of land set aside as part of
the San Francisco Bay National Wildlife Refuge on the order of
six or seven thousand acres, essentially the magnitude of the
Baumberg Tract. So, they were not going to allow fill on six
hundred and sixty acres, which is what he wanted, unless they
were going to get six thousand acres.
And, where would that have come from?
Weissman: That was difficult, right.
Chall: That's quite a deal. That was an incredible deal. [laughs]
Weissman: Well, that's what it really came down to. But, what John was
really offering was acre for acre or something.
Chall: And, not off site. Apparently, he had this 800-some acres, or
whatever he had, as an option from Leslie Salt and was just
going to use that land, build on a part of it and find more--
another several hundred for mitigation. That's the only way I
can understand what he had in mind.
Weissman: Well, the problem also is that there was going to be a net loss
of habitat value because the area that he was using as
mitigation already had habitat value as salt ponds, and what
he's saying is okay, well, we'll change it into something else,
give it a different type of value that has a greater value.
But there's still going to be a net loss, and the service was
not comfortable with that either because the trade-off wasn't
good enough.
Here Sorensen, I think he would have responded negatively.
In fact, he did. Every single applicant who came in in that
same period of time went nowhere, got nowhere. There was
Mayhews Landing, in Fremont. There was another project, the
name escapes me, in the Hayward area that essentially ended up
in the same situation as Thorpe did. Every developer thinks
that they can succeed where somebody else failed because the
other guy isn't playing the game right.
The interesting thing is that Peter Sorensen is a staff-
level individual, he was not management, he was not the upper
levels of that organization, but the project never got beyond
him. John Thorpe—either it didn't occur to him, or he was
unable to use influence. He tried to use influence, I believe,
in Washington at some point, but that wasn't very successful.
227
In order to have changed anything, it would have required major
shifts in wetlands regulation, which the Republicans were
working on. They are always working on that.
John Thorpe, himself, was a Democrat and he was pro-union
and all that, so what he wanted to do was at cross-purposes
with the major part of his political orientation, so that
didn't work very well either. He didn't have the kind of
influence in Washington that it would have taken to try to get
his property somehow exempted from anything.
All the time he was just dealing with the staff level at
the Fish and Wildlife Service that was sufficient to basically
block him. He never got beyond that, and the same problem with
the Environmental Protection Agency.
Planning and Working Toward a Successful Outcome
Chall: Given all this, when your company is hired, you really are
expected, I would guess, to do your best to reach the
objective, the goal, whatever it is. In this case, to reach
the goal was to see that he would pass the jeopardy opinion.
Were you able to do anything at all?
Weissman: Well, we took this a long way. The situation that it was in
when we got involved was that he had been taking advice from
people who really were not very helpful. A really important
point of background is I think that he surrounded himself with
and used as advisors people who were interested in being
participants, themselves, in the project.
We never actually found this out, but we suspected that
part of the compensation that he paid some of his other
consultants was in what were called "points" in the project.
In other words, they were deferring their reimbursement for
their work until such time as the project went forward. So, he
gave them a certain amount of cash and a certain amount of
points. I think that Richard Murray was one of those. I don't
know the other people, attorneys, whatever. I don't think that
was true of WESCO, the biological consultant, or Cole/Mills.
The problem is that once you have a consultant who has an
interest in the project, it's very difficult for that person to
be objective any more. Our role was strictly to deal with
technical issues and to try to help them through by solving the
technical problems that they had. We were not being advocates,
228
Chall:
Weissman:
pro or con for the project. We were going to deal with the
scientific issues, the technical issues, and see if there was a
way to prove that they could successfully build this project
and mitigate the impacts that the agencies were concerned with.
We thought that was a real possibility. We told him it
would be very difficult. We didn't give him any assurances
that this was going to happen. It was his decision that he was
going to get good advice from our firm and that he had the best
chance of success in working with us, which was probably true.
I don't think anybody else — there isn't a person that I've
ever heard of who could have produced a better result. The
problem is that the powers that be weren't interested really--.
I mean because it was almost as much philosophical or political
as it was scientific, why this never went anywhere. It wasn't
the weight of the evidence, really, that killed it. It was
just the way they chose to interpret the information.
If you read the jeopardy opinion, he did get a draft
jeopardy opinion through—the process did get to that point.
If you read what's in there, it's very clear what the thinking
was. I think one thing is that if he had not insisted on the
racetrack as part of the project, he could have succeeded.
Yes, of course. I mean the racetrack was the end-all and be-
all, that's quite right. There wouldn't have been any problem
if he had just had a couple of hotels and some office
buildings .
Exactly, he could have solved the problem if he had not
insisted on the racetrack. The other thing was that the
racetrack was working to his disadvantage in terms of financing
because if he wanted to go to a major financing institution, he
would have a hard time showing that would be profitable because
most of the racetracks in the Bay Area weren't doing very well.
There were Bay Meadows and Golden Gate Fields, and they were
struggling to keep their doors open. So that was not the most
lucrative part of the project but that was truly the sticking
point in terms of what if came down to in the end.
Habitat Mitigation Issues: The Snowy Plover, the Salt Marsh
Harvest Mouse, the Clapper Rail, the Least Tern
Weissman: Richard Murray wasn't a biologist, he was an architect, and he
had some ideas for mitigation that were completely contrary to
229
what the Fish and Wildlife Service was interested in. By the
time we got involved, that's what John was working from. He
had, for example, these islands he was going to build.
Chall: Yes, for the plovers.
Weissman: The plovers, nesting islands. He got this idea that you build
these few islands and that's going to be the total haven for
snowy plovers. Well, the Fish and Wildlife Service thought
that was a laughable idea. First of all, we did research into
other projects where people attempted to recreate plover
habitat.
We talked to the people at the Point Reyes Bird
Observatory; there were some projects that they were familiar
with. There was a project I believe in the Santa Cruz area,
and there they had thought that they created all the elements
of plover habitat and, in fact, plovers did come and nest there
for one season and they never came back. They had no idea why,
what went wrong. There was something missing, there was
something about it.
It was based on a sort of totally unproven hypothesis that
you could even recreate plover habitat. And this idea of these
islands, that didn't really resemble the existing habitat--it
was just a completely flawed concept. At the time, we told
John, "You need to re-think this whole thing."
Chall: You were talking about the plover habitat. You felt that those
little islands wouldn't work.
Weissman: Right.
Chall: Can you think of another suggestion?
Weissman: Well, do you know the ornithologist Leora Feeney?
Chall: Yes, I know who she is. John Thorpe called her the "plover
lady."
Weissman: Right. She studied both plovers and least terns.
Chall: They were important too, the terns.
Weissman: She did a multi-year study on the snowy plovers, which was just
going on at the time we were working on this. I believe that
the final mitigation strategy for snowy plovers was going to
230
come out of what Leora found out, and her study was completed
fairly late on in the process. At that time, the snowy plover
had not yet been listed, but I think it was listed after that
time, after this whole thing was over with. So, John was being
forward thinking in knowing that he would have to address the
plover.
Chall: The three that he really had to consider were the mouse--
Weissman: Right, the salt marsh harvest mouse.
Chall: The salt marsh harvest mouse, the least tern, and the clapper
rail. Those were the three because they were endangered
species. Was there any way beyond what Murray and the others
had indicated where you could solve those problems?
Weissman: If you read this document, this was our approach.5 It was sort
of a multi-pronged approach because not only were we looking at
mitigation, but we were looking at the actual impact of the
project on the species. In other words, how important was that
site to the species at the time, and would the development of
the project interfere with the goals for survival and recovery
of the species, irrespective of the mitigation? Was the impact
reversible, and what would you have to do even in the absence
of the project if you wanted to recover the values of that site
for those species?
In other words, trying to put the project into its proper
perspective and not blow the impact of the project itself out
of proportion. I think that the problem, the really basic
problem was that here we had 750 acres of historic San
Francisco Bay. John Thorpe wanted to put fill on 660 of them.
It didn't matter if there wasn't one single plover or tern that
had been seen there in the last fifty years, it was potential
habitat that was going to be permanently converted to an upland
condition and this was intolerable.
The Concern for the Future of Wetlands
Weissman: The service et al was not really as interested in the immediate
and direct impacts as they were in the foreclosure of the
future.
5Thomas Reid Associates, "Biological Assessment (revision)."
231
He could have argued forever on the merits or lack of
merits of the project, and the relative role of his project
compared with anything else. The fact is that he was going to
put fill on 660 acres of historic San Francisco Bay, most of
which had been tidal wetlands and this was just intolerable.
I mean that Peter Sorensen and people like him had made up
their minds that there wasn't going to be one single acre of
San Francisco Bay that was filled permanently ever again. We
had to go in the other direction. We had all these studies by
people who had done calculations on the relative amount of
historic wetland that were left and how much had been
destroyed: was it 9 percent or was it 12 percent left, or
whatever it was.
Whatever it was, it was a very small fraction of the
original and this value was considered to be too high to
sacrifice anything. In other words, if you want to build a
project like the one John wanted to build, this was not the
right place to build it. He really did not have any component
of that project that was water-dependent. If you want to build
a project, like a marina, or a port, or something that has to
be on water, then the agencies are willing to say, "Okay, you
can't have a port without being on the bay front. Then, we'll
look at mitigation."
This project didn't have to be on San Francisco Bay, on
historic wetlands; it could have been anywhere. That's what we
tried to tell him. "John, it doesn't matter." He used the
phrase, "Put Hayward on the map. This project is going to put
Hayward on the map." Restore Hayward to its former grandeur,
or maybe the grandeur it never had. It had to be at this sort
of gateway location at the end of Eden Landing Road, that was
it.
What we tried to do was inject reason into both sides of
the process, and tried to get John to recognize what it was
that he had to face to get over the hurdles that were
insurmountable. On the other side, we tried to convince the
agency people like Peter Sorensen that there was a solution
that met their objectives.
Chall: What was it? I haven't read your material, but what was your
solution? It looked already impossible. You were dealing with
whom, just Peter Sorensen? You didn't have to worry about Carl
Wilcox or the Fish and Game people?
Weissman: Well, there were people from Fish and Game, Paul Kelly.
232
Chall:
Weissman:
Chall:
Weissman:
Any of the Leslie Salt people?
Salt land.
He would have had to buy Leslie
Well, he mainly negotiated. The real estate end of things was
really not our concern so much. I have a list in here of who
we talked to; Gail Kobetich was the supervisor [Fish and
Wildlife Service], Peggy Kohl was involved, a biologist, and
Ted Rado also, and then Karen Miller from the Division of
Ecological Services. They were all participants in this thing.
The heavy hitter was Peter Sorensen. He was really the major
one. He was the one who probably actually wrote the biological
opinion.
How did that happen? Was he just there at the right place at
the right time, or the right place at the wrong time, or what?
I think that they assigned this project to him. San Francisco
Bay wetlands was his jurisdiction. It was what he was supposed
to deal with. His role was to oversee projects that had
impacts on San Francisco Bay endangered species. He was the
appropriate person with the appropriate expertise. He did have
a lot of expertise.
Attempts to Control Predation of the Clapper Rails
Weissman: To encapsulate, what finally happened, I think what was really
the death of this, was that with the racetrack, there was the
issue about predators from the racetrack preying on the
endangered species. They were very, very worried about the
clapper rails. Even though there were no clapper rails close
to the project and they were not directly impacted by any of
what John Thorpe was going to build, the issue was that there
was going to be a huge concentration of new predators
associated with the development, primarily the racetrack. They
were worried about rats and feral cats.
Peter Sorensen was convinced that there was no way that any
human could construct any barrier that would prevent these
animals from getting out, going into the marsh, and increasing
predation pressure on the clapper rails. They had been doing
studies of the clapper rails and apparently the main area that
was thought to be the refuge for clapper rails, where there was
any hope of recovery, was in the South Bay. This was part of
the South Bay and it was very precious.
233
Chall:
Weissman:
The clapper rails were declining in numbers. Every time
they went out to census them there were fewer of them and they
noted predation by rats and also by red fox. Red fox was a
major problem, and I guess it still is. There was no problem
with red fox associated with the project. In fact, I think one
of the things John wanted to do was to help eradicate the red
fox as a source of predation as a way of compensating for
whatever they were worried about from his project.
The whole thing about the predator enclosure was part of
that predation pressure issue, showing that you could build
something to prevent the predators from getting out. It turned
out it was very instructive that that was done because it
showed just exactly how difficult it was to design something
that would keep predators from getting out.
You did try to make something?
Well, WESCO did. This is the thing that I wanted to show you
the photos of. If you can see this. It will be very
interesting for you to see this. They actually built this
thing. They had to modify it repeatedly to get it to work.
What they did was they built it initially and it had twelve-
foot high, heavy-duty chain link, with a cement, concrete
barrier that went underground as well. I think they also had a
moat around it .
Chall: Yes, they were supposed to have a moat.
Weissman: There was a moat. Then, they put a cat in the enclosure. The
cat got out immediately. [laughter] The cat went right over
the corner. This was so funny because WESCO had to do a report
on what happened with their experiments with these animals,
[laughter] The cat just got right out. The cat wasn't in
there for five minutes.
Chall: Were you there watching?
Weissman: No, we didn't see this. Then, they had to modify this. They
had to put wire going inward, like barbed wire. When they
finally got it to work, they sheathed the top of the fence with
sheets of aluminum to deny any animal any foothold, and they
may have also placed all around the circumference an area of
barbed wire. It was probably five feet going in. San Quentin
looked like a palace compared to this place. We couldn't
imagine you could really build something like this. People
were going, "What is this? Am I ever going to get out?"
234
They finally got to the point where this poor cat could not
get out anymore. The cat must have escaped a dozen times
before they finally modified it to keep the cat in. We were
glad that the SPCA never came out and saw this poor, mangy
animal, and the couple of pieces of metal that they put in
there for a shelter. This poor thing; I guess they gave him
food. They finally established that, yes, if you did this, it
wouldn't get out.
Then, they put in rats. That was really hilarious because
I think they managed to catch something like four rats and put
them in this thing. They were eating each other, of course.
Finally, one of them disappeared. The big rat disappeared.
They don't know what happened to it; it was just amazing. They
said, "This is impossible, what happened to this rat?" They
had to dredge the moat, trying to find the rat. They dug, they
could not find it; so that wasn't really a very good result.
It really was not showing that this was going to work. This
was essentially a fiasco.
It was very interesting because I don't think that has been
done very often that somebody actually tries to do a field
trial of something like this.
Chall: You have to give John credit because he really did try.
[laughter]
Weissman: He did, he tried everything. Did you hear this story? We just
heard the story about the time he went into the city council
chambers in Hayward with a lion or a tiger.
Chall: Right, I did see the press reports on that. It was a tiger.
Weissman: I didn't understand what the purpose of the tiger was.
Chall: I think, before the racetrack or also along with the racetrack,
he planned to put Marine World Africa-USA there. Marine World
finally realized that putting it there, while they might
eventually succeed, it was going to have to go through all
these hoops. The land was available in Vallejo, so they
finally just backed down from the Baumberg Tract and went off
to Vallejo because they couldn't wait. Then John just went
ahead with the racetrack. I think it was at that period when
he was still considering the project.
Weissman: Okay, well, that makes more sense. [laughter]
Chall: In Karen Holzmeister ' s report s- -she ' s the reporter who covered
most of this for many years for the Hayward Daily Review—she
235
occasionally referred to him as flamboyant. He is an
interesting person. When you found out you couldn't keep the
predators out--.
Weissman: Right, the last thing that we did was to look for recognized
predator control experts and try to bring them in. People
whose business it was to prevent predators from getting into
open space lands or wildlife habitat, or to control pests at
places like racetracks. I can't remember the name of the
person. We got some wildlife biologist from the Central
Valley, whose name escapes me but I could find it if you need
to know.6
Also, we talked to Crane, the pest control company. What
they said was very persuasive to us, which was that they had
actually had experience at a number of racetracks, including
Golden Gate Fields. They believed that it was possible to
essentially prevent almost all of whatever animals were in
there from going out on the marsh by rodent proofing the
facilities so there weren't a lot of places were they could
escape .
The point that they made was that if you have a racetrack
where there are animals, and there's feed, and there's safe
haven that the rats are going to stay there because that's
comfort. They've got everything they need there; they have
food, they have shelter, they have water. It's a safe haven
compared to going out in the marsh where they have to be
exposed to the elements and there's not a lot of food. So why
go all the way out to the bay lands and try to find some poor
clapper rail egg when you've got troughs full of food.
In their experience, that was the case. What the Crane
people said was that the facility itself would be an
attractant. In other words, the rats that were in the marsh
would go in, rather than the other way around and there really
wouldn't be a problem. That was their conclusion as experts.
We were convinced. Here were people who had years of
experience in dealing with this very problem. It made sense,
but that did not convince Peter Sorensen. He said, "No,
there's always going to be the occasional rat that's going to
get out."
Also, if you find that there's a rat infestation in the
stable area, what are they going to do? They are going to try
6Lee R. Martin, principal biologist, Wildlife Control Technology,
Inc., Fresno, California. See following pages.
235a
WILDLI
CONTRl
June 26, 1990 TECHNOLOGY,
Mori 6. Hall
The Shorelends Corporation
21800 Hesperian Blvd.
Haywerd. CA 94540
Dear Mrs Hall,
Subject' Predetor/prey relationship update
Reference: June 22 on-site observation and discussion
Results of the June 22 field inspection revealed that predators end
roden'.s competitive with SMHM have incr eased in numbers since
completion of the 19E5 Held report. Population dynamics end inUrspecies
relationships have shifted to the extent that the composition of the ShHn
population may be much altered. The number of predators observed by our
6/22 group and those documented by Leora Feeney suggest that there has
been a significant change in the predator/prey relationship since 1985.
The Shorelands Project needs to know:
1 . Predator and prey species currently using the project site
2 Estimated numbers of predators and range on the project site
3. Locations of rodent populations as defined by burrow and runway
systems.
Date is to be collected by four technicians and one supervisor walking the
project site and maping details of all rodent and predator activity (mama)
and avian) Identification of species from habitat use patterns is not
difficult if one knows the species present. Data will not be definitive in
itself but will allow one to visualize the extent of rodent and predator use
areas The maping will make it possible (if found necessary) to live trap in
high and low predation areas to determine the presence and extent of
as compared to the 19B5 data.
N.SUNXYblUJb
90" "~12:~i:~
235b
07-03/90 12: 17 002
Fees Phase I
2 Cays and 2 nights walk-thru and observations. Final report to be in
map form plus a list of species and any unusual sightings.
Schedule. 4arr.-10pm and 4pm- 10pm
Technicians 12hrs/dey - 2 days - 4 men - $40/hr - $3840.
Supervisor- 12hrs/day -2 days - Iman - $80/hr = $1920.
Total -$5760.
f^rvire Fees P
This phase to be unite,- taken only if deemed necessary. WCT hes no
permit to wor* wiU". SMHM. live traps would he-^e to be provided by
Sticr elands for this phase.
Technicians: 8hrs/nigr.t - 4 nights - 2 men - $40/hr -$2S60.
Supervisor- Bhrs/night • 4 nights - 1 man - $60/hr »$2560.
Total -$5120
Note, fees incluoe travel time and perdierm
Sincerely.
Lee R Martin
Principal Biologist
LRM/sm
236
Chall:
Weissman:
Chall:
Weissman:
Chall:
Weissman:
to eradicate the rats and they are going to remove the food
source, or the piles of hay or whatever it is that they're
living in and that's going to drive them out into the marsh.
It just turned into a debate from which there really was no
resolution.
At that point, we didn't know what to do. We figured,
"Okay, we have tried to solicit the best scientific information
we can get to track this problem. That was our approach, to
find the highest level of scientific expertise on the subject
and see if that would be persuasive. It should have been, but
it wasn't because Peter Sorensen was just intractable on the
point, and there was no one who was going to overrule him. I
think at that point, John started to run out money.
I guess he owed lots of people money, at the end.
Right, we were among the last to--.
Yes, the creditors. You said that your particular task was as
the liaison with the Fish and Wildlife Service and John Thorpe?
And the Corps of Engineers.
With whom were you dealing in the corps?
Sharon Moreland was one of the people. Scott Minor, Radford S.
(Skid) Hall, Colonel Calvin Fong.
The Second Draft Jeopardy Opinion Means Defeat for the
Shorelands Project
Weissman: Finally, it was Calvin Fong, the one who actually had to sign
off on the document at the corps.
Chall: The most important person then would have been Sorensen.
Weissman: I think so. Sorensen was the most influential in what actually
happened, the outcome of that whole thing. He was the one who
wrote the jeopardy opinion for the service—the second jeopardy
opinion. When that second jeopardy opinion came out as a
draft, at that point, John had nowhere to turn. It was at that
point we were then struggling to determine what the next step
was, how to get beyond that. At that point, that's when the
whole thing started to fall apart and he ran out of money.
237
Chall: Yes, lie gave up sometime in 1990. I think, also, there was a
problem of a road that he wasn't about to accept. I think,
then, he got into some difficulty. He claims that he actually
could pass, and did, the jeopardy opinion but that then he had
problems with the city [Hayward], They had to grant the final
permit and they wouldn't do it. I'm not sure about that.
Weissman: He didn't even get to that point because he had to completely
redo his environmental impact statement to incorporate all of
the changes that he had made in the project from the time that
we got involved. That was also going to require sign off by
the city of Hayward, so it was a joint EIR-EIS [Environmental
Impact Report-Impact Statement], and he never even got to the
point of re-releasing that document. The project access road
was just one of the things, and the freeway interchange- -how
that was going to be designed. My memory of some of this--. ]
apologize. It's because it was a long time ago.
Chall: No, I think you've done very well. It's one project you
probably won't forget in terms of the story.
Weissman: Yes, the story, the highlights of it.
The Frustration of a Consultant Failing to Reach the Desired
Goal
Chall: How frustrating was it for you to be dealing with people who
couldn't be convinced that you might be on the right track, or
that there was a possibility?
Weissman: Well, it was frustrating to not make the type of progress that
we hoped to make because that has been the hallmark of our
success as a consultant that we usually are able to produce a
successful result in a negotiation. We've worked on a lot of
habitat conservation plans for endangered species and projects
where there is a conflict between like a private sector,
landowner interests, resource agency interests, conservation
groups, public, so on. In many instances, we've been able to
bring that to a "win-win." The first habitat conservation plan
we worked on was the San Bruno Mountain. I don't know if your
familiar with that one.
Chall: Yes.
Weissman: Most people considered that to be a major success story. We
were the scientific advisor through that whole process. Our
238
actual title that we had when we worked for John was the "Non-
Federal Representative" to the Corps of Engineers. That's what
we were called so it's the same role basically. It was very
frustrating to see that the efforts that we were going to were
not producing a result and we were getting to the point where
we were running out of options as well.
The point is that if you have the best possible evidence to
show something and the other party refuses to accept it and to
the point where it's no longer based on science but it becomes
more conviction or prejudice, something like that, there's
nothing you can do with that. The only way that Peter Sorensen
could have been circumvented is if someone above him had said,
"No, we don't accept your conclusion. We are going to take
this role away from you. Somebody else is going to make the
decision." That didn't happen because the people above him
supported him. Gale Kobetich was his supervisor, and Wayne
White, who was then in the Portland office.
He did not have any opposition from within his own agency.
Basically, all the people there were willing to delegate the
responsibility of whatever decisions were made to Peter
Sorensen. They all signed off on the biological opinion that
he wrote. There was nothing to counteract that.
The Current Status of the Baumberg Tract
Chall: You probably know that it's now going to be a wildlife
sanctuary.
Weissman: Who was it that actually acquired it?
Chall: The state Wildlife Conservation Board. It was acquired through
mitigation, the result of mitigating Highway 880 widening in
Fremont and Milpitas, and some sewer system improvements in San
Jose. Money came also from Proposition 70 funds. [See
Glossary] They have another year or so to develop it as a
restored wetland with habitat for the endangered species, and
some trails for hiking. Steve Foreman is the lead person.
239
Weissman: He worked for WE SCO at the -.:ime.
Chall: He's in charge now, with Resources Management International.7
Weissman: Did they acquire all of the Baumberg Tract?
Chall: I think they are working on 835 acres.
Weissman: Did they pay for it per acre, because that was a big issue as
well?
Chall: They paid $12.5 million. There were people who felt they paid
more than they should have, of course.
Weissman: There are some interesting things in here among the papers I
brought in. There's a letter on pest control.
Chall: I'd like to have this material available to put into the volume
and/or into the archives that go along with the volume. We put
everything that we collect into The Bancroft Library. If you
find anything that you think would be useful and you're willing
to copy it, I would certainly appreciate it.
Examining the Processes Required to Restart the Proiect
Chall: I wanted to ask you some questions regarding a letter from Skid
Hall, whom you mentioned before.8
Chall: Skid Hall was writing to Martin Storm, the chief of program
planning for the city of Hayward. Did you ever talk to any of
those Hayward people?
Weissman: I think we did.
'With LSA Associates, Inc., since April 1998.
"Memorandum from Radford (Skid) Hall to Martin Storm, "Review of
Shorelands Project Status," September 25, 1990. See following pages for
Skid Hall memorandum and excerpt from Karen Weissman memorandum on the same
subject. The complete documents can be found in The Bancroft Library.
239a SEP 2 7 J590
RADFQj|p (SKID) HALL Ph D.^AICP
Land Planning and Permlriing'Oorulultdiru-
TO: Martin Storm, Chief, Program Planning
City of Hayward
FROM: Skid HaJl DATE: Sept. 25, 1990
SUBJECT: Review of Shorelands Project Status
1. As requested by your letters of September 17, and 19, 1990, 1
have reviewed the various materials provided and am providing an
analysis of the current status of the Shorelands Project with
particular reference to the Preliminary Biological Opinion and the
future processing of a new application through the federal
regulatory programs.
2. It is to be clearly noted that these comments are purely my own
inierpretaiion of the current situtation as requested by the city, and
as such they cannot and do not represent those of any agency,
applicant or private firm other than my own. nor can they be
interpreted to commit any other entity to a particular course of
action.
3. Initially 1 would state that the Summary of Prior Events and
Present Status of Shorelands Project, which 1 was provided appears
to be quite comprehensive, accurate and well done. At the time of
withdrawal of the initial Shorelands application (Dec. 14, 1987), the
Corps of Engineers indicated that a criteria for acceptance of a new
application would be the removal of the USF&WS Section 7 jeopardy
opinion. On this basis, "early consultation" (pre-application) was
initiated on the revised project. This process was concluded with
the issuance of the Preliminary Biological Opinion (PBO) on August
31, 1990. The PBO again found jeopardy but included a specific
"Reasonable and Prudent Alternative" (R&PA), which the Service
"believes would avoid the likelihood of" jeopardy. One can thus
assume that if the R&PA were accepted, jeopardy is lifted and a new
application could ensue.
At this time it appears that Shorelands finds the R&PA to be
manageable, but are unable to accept it totally at face value and axe
initiating a negotiation process with the Service to reach an
agreement on specific definition of the R&PA which Shorelands can
100 Fosicr Ciiy Blvd., Suite 101. Foster City, CA 94404
(415)573-9465 . FAX (415) 573-9471
239b
accept and insure implementation. This negotiation process appears
legitimate as the regulations clearly state the R&PA must be
'economically and technologically feasible". Clearly in terms of
economics and perhaps technologically (through their consultants) it
seems appropriate for the applicant to discuss areas of an R&PA
where they may have concerns. 1 am unable to speculate upon the
timing and outcome of this process as to my knowledge similar
negotiations have not occurred in the Bay area and I do not know how
willing the F&WS is to reconsider its' stated conditions. The
applicant has suggested and seems comfortable should the city wish
to inquire of the F&WS their position on negotiating the details of
the R&PA and that might be the best way for the city to get a feel
for the timing and likelihood of success. This is important for the
city as 1 would expect, based on their stated position, the Corps
would not be likely to accept and initiate processing of a new
application until the details of the R&PA were worked out and
accepted and the jeopardy was indeed lifted.
4. The following activities will occur or be required for the
processing of a new permit application:
a. Preparation, submittal and acceptance of a new Shorelands
Corps of Engineers permit application based on the current project,
mitigation and R&PA. The application will of course require project
description and drawings.
b. Reinitiation of the EIR/EIS process. Although much of the
information in the exisitng document will be useful, as the project
is revised 1 would expect some significant work will need to be
done to arrive at a new draft document and then the review
processes (both ciry-CEQA and Corps-NEPA) will need to begin again.
I would not anticipate a revision in preparer would be a problem and
would asume the Corps would work with any consultant the city
contracts with to prepare the document.
Based on recent conversations, the applicant has indicated that
the Corps might allow initiation of work on a revised EIR/EIS prior
to acceptance of a new application. Initiation of the EIR/EIS work
prior to application is sensitive as the Corps clearly plays a role in
the scoping, formatting, content and eventual processing of the
document (ie: the EIS actually becomes a Corps document'). Thus, if
initiation prior to an accepted application is contemplated, my
feeling is that the city and the applicant would want to have the
239c
pfe£^:v £orpS formally state their support for the approach and commit to
participation in required activities to insure that the ultimate
document being prepared under a city contract complies with Corps
directives and needs.
c . A revised altemati v es__an _al_ysj j_ ( A A) ., _wil l_be_igqu i red u mJej
the 404(b)(l) Guidelines relating to the current project and will
"need tcT be'Tubmiued to the Corps along with the application or
shortly thereafter. In this instance, since the work to be done is
completely by and at the direction of the applicant, and as stated,
should be available near the time of application, initiation of work
prior to applying is the prudent thing to do. The Corps commonly
conducts the Guidelines review concurrent with the other elements
of Corps processing (ie: NEPA and public interest review), thus it is
unlikely the opportunity would exist for the city to delay action
pending the outcome of the Guidelines review.
The 404(b)(l) aspect of the federal process has taken on increasing
importance in recent years (witness the recent Apanolio/Ox Mtn.
landfill decision in San Mateo County). The guidance for evaluation
under the Guidelines has also become more stringent. On the original
application. 1 believe the Corps had stated 404(b)(l) compliance for
the racetrack only, with unresolved questions remaining regarding
the commercial/industrial components and the overall connections
of the Shorelands project. EPA was concerned with all the various
aspects of the project in terms of compliance with the Guidelines.
Clearly this will be a major requirement for the applicant to
address. Although the 404(b)(l) call rests with the Corps and EPA.
other agencies most notably the F&WS and the RegionaJ Water
Quality Control Board now integrate it into their reviews as well.
1 am not familiar enough with the requirements and limitations of
retail auto uses to accurately speculate on the impact substitution
of such a use might have on the Guidelines analysis. If those uses
have very site specific needs which are uniquely served by the
Shorelands location then they might be favorable to Guidelines
compliance. It would be the task of the AA to demonstrate this, if
indeed it is the case. In any event the AA document will need to be
succinct and in keeping with current guidance and thinking on
Guidelines review and compliance.
d. The application will also need to include the mitigation plan
developed for the project. Again this is a critical element of the
239d
project and has become more important in recent years (witness the
emphasis on the "no net loss" policy). Clearly this will also be an
issue with reviewing agencies. The F&WS, you'll note already
alluded to their probable objection over wetlands in the PBO (page
2)-
e. Upon receipt and acceptance of the application by the Corps,
a new Public Notice would be issued and a 30-day comment period
would begin. While this woi'ld generate an initial set of agency and
public responses, the process would likely remain unresolved until
the draft EIS/E1R was distributed for review and comment. In
conjunction with this review, the F&WS would be requested to
convert the PBO to a Final Opinion, a process which will depend upon
the project and impacts remaining as considered in the early
consultation process. The issuance of a Final Non-jeporady Opinion
is required prior to any permit approval.
5. Prior to any final decision, and keeping in mind the processes
described in 3 and 4 above, any required State of California
approvals must be obtained. Although the extent of jurisdiction,
permit requirements and appropriate processes are potentially in
dispute, the two agencies which are most directly involved are the
Bay Conservation and Development Commission (BCDC) and the
Regional Water Quality Control Board (RWQCB). The city should
maintain communication with these agencies to insure that it is
aware of their requirements and timeframes with respect to
Shorelands so that any activities can be accomplished in a
consistent and timely fashion. It would be expected that these
agencies would look directly toward the city CEQA process as
meeting their own necessary compliance with CEQA (ie: they may
choose not to initiate action on required permits until the city CEQA
process has been completed).
6. Other items to be considered include, the potential for a Corps
public hearing (always an option which can be requested by the
public in a Corps 404 public notice issue) which might be considered
a strong possibility in a project as significant as Shorelands and the
appeal and/or veto processes afforded the various federal agencies
in the event they object to a Corps intention to issue a permit.
7. To attempt to summarize this, I would say that the issuance of
the PBO and R&PA was a major step forward for the applicant and if
the R&PA can be agreed upon, the way should be clear for a renewed
239e
application. In that event, much of the material already available,
the project revisions and the mitigation plan should shorten the
time required to accomplish the environmental and permit reviews.
That said, it should be mad': clear that in effect the process starts
aJl over" again and many difficult, time consuming and potentially
controversial issues and processes will be involved. The city will
need to constantly monitor activities in order remain current and
consistent while not expending time and money needlessly or getting
to far out in front of other activities. I hope this evaluation is
helpful and if yo-i have questions or need further explanations on
individual issues please let me know and I'll do my best to respond.
Radford (Skid) Hall Ph.D.
MEMORANDUM
239f
SUBJECT:
TRA
FILE:
DATE:
FROM:
Negotiation strategy for Reasonable and Prudent Alternatives
as stated in Preliminary Biological Opinion
BSLH
September 11, 1990
Karen G. Weissman,
Ph.D., Tom Reid
First page of 8-page memo;
entire memo will be deposited
in The Bancroft Library.
TO: Mr. John Thorpe, Mr. Richard Bail in
The Shorelands Corporation
21800 Hesperian Boulevard
Hayward, CA 94541-7004
Tom Reid and I have reviewed the August 31, 1990 Preliminary Biological
Opinion (PBO) The new Opinion is a major improvement over the first draft in
terms of documentation and specificity with regard to project features. Its
principal author, Peter Sorenson, also responded to many of the criticisms
raised in our formal comments. However, the PBO still contains many logical
inconsistencies, as well as undocumented pseudo-scientific conjecture. Not
all of our substantive comments received a response or resulted in needed
revisions to the earlier document.
All in all, it is our opinion that another round of formal comment on
the PBO would serve only one purpose: reinforcement of the record to be used
in a lawsuit against the USFWS. Otherwise, I think you should concentrate on
the Reasonable and Prudent Alternatives as the only
non-judicial means to reverse the Jeopardy Opinion.
The Reasonable and Prudent Alternative lists 8 major actions (plus sub-
actions) which must be taken to eliminate the jeopardy to listed endangered
species. In this memo, we have broken these down into 19 distinct parts which
we address individually. In our opinion, these actions fall into three
categories:
1) "Reasonable": actions which are entirely do-able, reasonable and
cost-effective, and should be agreed to by Shorelands unchanged
2) "Negotiable": actions which are apparently reasonable, but require
further clarification as to what has already been done, and what further
needs to be done to satisfy the USFWS concerns; Shorelands should
negotiate before agreeing to a list of specific items
3) "Difficult": actions which are not reasonable by reason of legality,
enforceabil ity or excessive economic impact on the project;
Shorelands should negotiate to have these items modified
substantially or dropped.
I provide an analysis of each item as listed under the Reasonable and
Prudent Alternatives, with recommendations for how to proceed:
Thomas Reid Associates | 505 Hamilton Ave., Suite 201 (Post Box 880) | Palo Alto, CA 94301
Tel: 415-327-0429 — Fax: 415-327-4024
240
Chall: He talked about the current status of the Shorelands Project,
particularly with reference to the Preliminary Biological
Opinion. Is that what you came up with or is that somebody
else's?
Weissman: That is the jeopardy opinion that Peter Sorensen wrote.
Chall: I see, the Preliminary Biological Opinion [PBO] . He had been
asked by Mr. Storm to review it and "the future processing of a
new application through the federal regulatory programs." He
writes, "It is to be clearly noted that these comments are
purely my own interpretation..." His letterhead reads Land
Planning and Permitting Consultant. I thought that this would
indicate that he was in a private practice.
Weissman: That's correct, he left the corps during the course of this and
became a wetlands permitting consultant.
Chall: I see. He found that the PBO issued on August 31, 1990,
"included a specific Reasonable and Prudent Alternative (R&PA) ,
which the Service believes would avoid the likelihood of
jeopardy. One can thus assume that if the R&PA were accepted,
jeopardy is lifted and a new application could ensue." He goes
on to discuss what might be done about that. Thorpe would have
to go through the whole EIR/EIS process again, et cetera.
He talks also about the revised Alternatives Analysis, AA.
What does that mean?
Weissman: That is probably part of the Environmental Impact Statement.
Chall: That "will require under the 404(b)(I) Guidelines, relating to
the current project..." Is that another hurdle?
Weissman: That's what EIS was in support of. They were applying for a
permit from the Corps of Engineers to fill wetlands, to place
fill in a wetland. That's what Section 404, the Clean Water
Act, relates to is fill in wetlands. So, 404(b)(I) guidelines
is what they had to follow to comply with the requirements to
get that permit, and that requires an Alternatives Analysis.
Chall: I see. My word, there just seem to be so many hurdles to go
through beyond the jeopardy opinion.
Weissman: Right, and the jeopardy opinion was--if they didn't get passed
the jeopardy opinion, then the rest of it--.
241
Chall:
Weissman:
Chall:
Weissman:
Chall:
Weissman:
Chall:
Weissman:
Just goes.
Exactly.
I understand, then, that even if Thorpe were to go through all
the work and time required regarding the Reasonable and Prudent
Alternatives, he would still need corps and the city of Hayward
approval. Corps, under the Guidelines of the Clean Water Act,
and Hayward, because of an interchange on Highway 92 he would
need to connect with his project.'
There was no assurance that they were going to get through that
first part of the process. That was going to be very difficult
as well because of the fact that the project was not a water-
dependent use. It didn't have to be in a watered environment.
There were other hurdles coming, but the proximate one, the one
that just stopped them dead was that--.
The jeopardy.
Right. Here's a critique we wrote of this.10
I guess you were the last consultant then to deal with this
whole project, and the last potential mitigation to be
considered. I understand he tried many times to mitigate in so
many different ways that he finally just had to give it up. He
probably gave it up because he didn't have anymore money, and I
think some of his investors pulled the rug out from under him
and set up their own little corporation so that they wouldn't
be involved in the bankruptcy suit.
Right. Well, it amazed us that he was able to stay in the game
as long as he did with the adverse circumstances because it was
costing him so much money to continue. What was so surprising
was that the investors had so little assurance that they were
going to see that money again, that they were willing to put
that money up .
With the record of the number of iterations, the number of
cycles that he had gone through and just been turned down and
'Memorandum from City Manager Louis Garcia to members of the city
council, "Status Report on the Proposed Shorelands Project," October 2,
1990.
'"Memorandum from Karen Weissman to John Thorpe, "Critique of Draft
Biological Opinion," May 14, 1990. See following page for excerpt of
memorandum. Complete document can be found in The Bancroft Library.
2Ala
SUBJECT: Critique of Draft Biological Opinion
TRA FILE: BSLH
DATE: May 14, 1990
FROM: Karen
First page of a 7-page memo;
entire memo will be deposited
in The Bancroft Library.
TO: Mr. John Thorpe
The Shorelands Corporation
21800 Hesperian Boulevard
Hayward, CA 94541-7004
We have reviewed the Draft Biological Opinion for the Early Consultation
on the Shorelands Project, pursuant to Section 7 of the Endangered Species
Act. We believe the Opinion, in its present form, is scientifically
unsupportable since many of its conclusions are pure opinion, unsupported by
factual documentation. The Opinion also contains much irrelevant information,
and omits key issues that it should have contained, such a discussion of
onsite reasonable and prudent alternatives, and a discussion of the
feasibility and cost of restoring the project site within the foreseeable
future. The Biological Assessment, as you know, contained a lengthy
discussion of this latter issue, and the Service should have evaluated, and
responded to the arguments given in that Assessment.
Most extraordinary is that the Opinion is generic, and has almost
entirely avoided any consideration of the 1989 Biological Assessment and
Mitigation Plan, and the Supplement Report submitted in January 1990. In
particular, the revised Biological Assessment and Mitigation Plan were a
1987 Jeopardy'Opinion, and a specific effort to respond to all
raised in that Opinion. The new plan contains many elements
response to the
of the concerns
specifically requested by the Service. Among these are:
o Greater than 2:1 compensation for loss of both existing and
"emerging" mouse habitat
o Phasing of the restoration of pickleweed marsh in advance of
the impact
o Detailed criteria for the success of marsh restoration (and as
revised in the January, 1990 supplemental report
o A 100-foot wide mouse corridor connecting the proposed mitigation
lands on Oliver/Perry with existing mouse habitat in downstream
Mt. Eden Creek, to prevent the genetic isolation of the
Oliver/Perry population
o A predator barrier fence and water buffer,
results of as-built fence tests,
USFWS. At the Service's request,
minimum separation of 100 feet between the perimeter hiking
trail and the adjacent salt ponds.
o An integrated system of predator control, by experienced, reputable
operators
, whose design is based on
specifically requested by
this is to provide a
rhomas Reid Associates | 5C5 Hamilton Ave., Suite 201 (Post Box 880) | Palo Alto. CA 94301
Tel: 415-327-0429 — Fax: 415-327-4024
242
yet they were willing to say, "This time it's going to work,
we've figured it out, we've got mastery, we know the tricks
that you have to play to get through these things. We've
figured out what they pitfalls were, and we can avoid them this
time."
The fact that he was able to persuade people repeatedly to
bankroll the project--! don't know, maybe in some ways it's not
so surprising because we've encountered other projects where
there were, for example, Asian investors, Japanese investors
who have poured huge amounts of money into California, into
very speculative projects, with no information. It's like
they're completely ignorant of the regulatory context, what it
takes to get a project permitted and actually built in
California. It is so onerous. There is probably a list of a
thousand places where you could put your money before you would
put your money in these real estate projects, and yet they have
done it.
Critique of Government Environmental Regulations in General and
on the Shorelands Project in Particular
Chall: Yes they have, and many times have lost. What is your opinion
of the regulations, which seem to be at times onerous, and at
other times, depending on how you look at it, wise in terms of
saving wetlands and saving rivers and creeks, and all the rest
of it? You have to deal with these all the time and they do
keep changing. What is your general opinion of the hurdles, as
it were, the rules, the regulations?
Weissman: You mean do I think they're appropriate or do I think that
they're overly harsh?
Chall: Yes.
Weissman: Well, I personally think that environmental regulation is a
good idea. I wholeheartedly endorse it, and I disapprove of
all of these attempts on the part of the Republicans to
dismantle environmental laws. I think that people have found
when they have done studies that actually the net cost is less
if environmental laws are followed, and that endangered
species, per se, have not prevented developments from going
forward.
All of the horror stories you hear are not really true.
But on a case-by-case basis, I think that there are instances
243
where, like this one, people have misused the regulatory basis
that they're operating from. In this case, it's hard to judge,
On the face of it, the project didn't really seem to be such a
good idea. When you looked at it objectively, from the point
of view of all the constraints and all the regulatory problems
that were faced and the type of project that it was, a rational
business person would have opted to do something different.
I don't think it was really that John was just ground under
by the weight of environmental law. I think that most people
would have realized that what he was attempting was
unrealistic.
Chall: Not good for the environment, or unrealistic from that point of
view, or from a business point of view, or any point of view?
Weissman: Well, I think that if you get down to the details of could he
have mitigated for this, and mitigated for that, I think at
that level he probably could have mitigated for a lot of what
his direct impacts were. But the larger issue was whether one
should be putting that magnitude of that development in that
location. He wanted us to revise his EIS, and I have a feeling
that had that happened there would have been other
environmental issues that had significant unavoidable impacts,
such as traffic.
Traffic would have been probably equal to, or worse than
biology as a project stopper. [laughs] There was no way doing
any kind of cumulative traffic projection that anybody would
want to put a huge development at the end of the San Mateo
Bridge, in that location. So, there were a lot of
environmental problems with that project the way it was
conceived.
I think that the environmental laws were working correctly
in that when you had everything together in sum, the project
would have either had to have been turned down as it was, or it
would have had to have been heavily modified to be able to fit
into that setting. Somebody else with a different project
could probably succeed, but it wouldn't be easy for anybody.
Chall: The racetrack really doomed it. This has been a very
interesting hour with you. I thank for your time.
Transcribed by Quandra McGrue
Final Typed by Shannon Page
244
Regional Oral History Office University of California
The Bancroft Library Berkeley, California
California Water Resources Oral History Series
THE BAUMBERG TRACT: FROM THE PROPOSED SHORELANDS DEVELOPMENT
TO THE WETLANDS RESTORATION (EDEN LANDING ECOLOGICAL RESERVE), 1982-1999
Peter C. Sorensen
AUTHOR, JEOPARDY OPINIONS ON THE SHORELANDS PROJECT
An Interview conducted by
Malca Chall
in 1998
Copyright C 2000 by The Regents of the University of California
Peter Sorensen.
245
TABLE OF CONTENTS- -Peter C. Sorensen
AUTHOR: JEOPARDY OPINIONS ON THE SHORELANDS PROJECT
INTERVIEW HISTORY 246
BIOGRAPHICAL INFORMATION 248
Background: Education and Career with the U.S. Fish and
Wildlife Service 249
The Shorelands Project: Interagency and Other Contacts 250
Mitigation Concerns for Shorelands: Legal and Scientific
Considerations 253
Reviewing the Environmental Impact Report /Statement 254
What Constitutes Jeopardy of an Endangered Species? 255
Predation: Everyone's Concern 257
Response to Arguments Regarding Non-Jurisdiction on the
Baumberg Tract 258
Analyzing the Government's Role in Protecting the Environment 259
Jeopardy Opinions and the Process, 1987, 1990 261
Looking Back on the Shorelands Project and the Ramifications
for the Bay Area Environment 265
246
INTERVIEW HISTORY--Peter C. Sorensen
Peter Sorensen graduated from Humboldt State University in 1976,
with a degree in wildlife management. After working four years for the
Bureau of Land Management, he was transferred in 1980 to the Endangered
Species Office of the United States Fish and Wildlife Service and was
assigned to handle all San Francisco Bay Area wetlands endangered
species issues. As a result, he became the point man for the Fish and
Wildlife Service to analyze the Shorelands Project and determine whether
or not it would jeopardize endangered species on the Baumberg Tract.
His course of action was discussed critically by John Thorpe and Karen
Weissman, and elliptically by Robert Douglass, in their interviews.
Mr. Sorensen is currently with the Fish and Wildlife Service in
Carlsbad, California, where he is concerned with endangered species in
desert habitats. He agreed to talk, by phone, about the Shorelands
Project and his reasons for determining that it would jeopardize
endangered wildlife. Regulations, he claimed, do not allow a person to
come into a project with a predetermined position. It is only the
preparation and completion of the formal consultation and biological
opinion that determines whether of not there is jeopardy. It is his
responsibility, therefore, to analyze the biological assessment in the
EIR/EIS to ensure that a project avoids jeopardy. This was how he
determined jeopardy on the Shorelands Project.
He carefully responded to Karen Weissman' s criticism of his draft
jeopardy opinion, which was the instrument that convinced Mr. Thorpe to
finally withdraw his permit application to build Shorelands. One of Mr.
Sorensen' s specific concerns was that it was difficult to reconcile
continued incremental losses of habitat for a population of species
which had been declining; this was especially a concern on large-scale
projects like the proposed Shorelands Project.
Responding to Mr. Douglass's criticism that the Fish and Wildlife
Service had mistreated Mr. Thorpe by sending him on wild goose chases in
order to seek approval for a project that the service knew they would
never give him, Sorensen claims that the service allows a developer to
amend and resubmit his or her planning statement and try to pass
jeopardy; there is no agency conspiracy against developers and private
investors. Yet, he admits that the mechanism for approvals seems
complicated and onerous. That is because the American public is
afforded an opportunity to participate—a step in the process which he
and other interviewees in this series consider essential and useful.
Some projects are more complex than others, and as such require more
time to conclude. The Shorelands Project was one of these.
247
When reviewing his edited transcript, Mr. Sorensen answered two
questions I added, questions that occurred to me after we concluded our
one-hour telephone interview on June 10, 1998. Mr. Sorensen 's
articulate and candid responses to the criticisms leveled against the
endangered species office and his role in issuing the jeopardy opinions
against Shorelands are important segments of this history of the
Baumberg Tract.
The Regional Oral History Office was established in 1954 to
augment through tape-recorded memoirs the Library's materials on the
history of California and the West. Copies of all interviews are
available for research use in The Bancroft Library and in the UCLA
Department of Special Collections. The office is under the direction of
Willa K. Baum, Division Head, and the administrative direction of
Charles B. Faulhaber, James D. Hart Director of The Bancroft Library,
University of California, Berkeley.
Malca Chall
Interviewer Editor
January 2000
Regional Oral History Office
University of California at Berkeley
248
Regional Oral History Office
Room 486 The Bancroft Library
University of California
Berkeley, California 94720
BIOGRAPHICAL INFORMATION
(Please write clearly. Use black ink.)
Your full name Tg T C. - 3
Date of birth ^ * 5"' 5~0
Father's full name
Occupation
Birthplace
Birthplace I QLUO^
Mother's full name
(JJ •
Occupation /~Wt C<MJ
Your spouse L ( 50. £.
Birthplace
Occupation
ft
Birthplace
5(7 H Ffq <1 C ( $C'
Your children
A/ (A 6-
b*^- S <
Where did you grow up? /. r\ (j
Present community \J j 5TCL
Education
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( frC'
Occupation(s)
Areas of expertise_ &
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Other interests or activities
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Organizations in which you are active (/L/&5 T^/V? fuifaf Or ft tJTltfjF} CSTS
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249
INTERVIEW WITH P,<:TER SORENSEN
AUTHOR: JEOPARDY OPINIONS ON THE SHORELANDS PROJECT
[Date of Interview: June 10, 1998] ft1
BackRround: Education and Career with the U.S. Fish and
Wildlife Service
Chall: Before we get into the Baumberg Tract or the Shorelands
Project, I'd like to have a little information about your own
personal background, something about your education and career
path to the U.S. Fish and Wildlife Service. So tell me
something about where you got your initial education, where you
grew up.2
Sorensen: Well, I was born here in California.
Chall: Where, here?
Sorensen: Southern California-- [coughs] I've got a cold, as you can hear.
Chall: All right, we'll manage.
Sorensen: Southern California. Went to junior college down here, then I
went to Humboldt State University, got a bachelor's degree in
wildlife management. And I was pretty tired of school at that
point and went to work for the Bureau of Land Management back
in Colorado and worked there for four years before coming to
Sacramento to work for the Fish and Wildlife Service in the
Endangered Species Office.
Chall: When was that?
lii This symbol indicates that a tape or tape segment has begun or
ended. A guide to the tapes follows the transcript.
2This interview was recorded by telephone.
250
Sorensen: In December, 1980. And then I worked in Sacramento exclusively
on endangered species until 1995 when I came down here to
Carlsbad [California].
Chall: What are you working on now?
Sorensen: Oh, actually I am working on desert issues: desert tortoise,
big horn sheep, and big regional habitat conservation plans out
there. Doing a lot of work with the BLM [Bureau of Land
Management ] .
Chall: But you're still with the Fish and Wildlife Service?
Sorensen: Yes.
Chall: And is your concern again with endangered species, or is this a
different kind of assignment?
Sorensen: It's 99 percent endangered species.
Chall: Is that the so-called Section 7?
Sorensen: And you know HCPs under Section 10(a). HCP--Habitat
Conservation Plan. I'll try not to use acronyms.
Chall: That's all right, I'll just ask you to fill them in.
The Shorelands Project ; Interagency and Other Contacts
Chall: So, when you were with the Fish and Wildlife Service in the
Endangered Species Office in Sacramento in 1985, were you
assigned the Shorelands Project?
Sorensen: Yes, I worked on all Bay Area wetlands endangered species
issues involving clapper rail, harvest mice, least terns, and
you know, various other species as well.
Chall: I see, so this was definitely in your bailiwick, as it were?
Sorensen: Yes, that was my territory.
Chall: So you worked there throughout this whole period, then, from
1985 through 1990 when that was the main problem? I mean, that
was one of the concerns of the Shorelands development.
Sorensen: Right.
251
Chall:
Sorensen:
Chall:
Sorensen:
Chall:
Sorensen:
Chall:
Sorensen:
Chall:
Sorensen:
Chall:
Sorensen:
Chall:
Sorensen:
Chall:
Was your position as lead person in the office? Were you
assigned something special to do with respect to Shorelands?
Well all the endangered species part of the project was my
responsibility. The other 404 wetlands issues involving
migratory birds—you know, water fowl, shorebirds, general
wetlands-type issues—were in a different program that I
closely coordinated with.
I see. And who--I have the names of about three other people
in the off ice- -Gail Kobetich--is that how it's pronounced?
Yes, he was the field supervisor for the Endangered Species
Office.
And Ted Rado--R-A-D-0?
No, Ted Rado was not involved at all.
He wasn't?
No.
Okay, and how about Peggy Kohl?
Yes, Peggy headed up the 404 wetlands shop that I just
described, dealing with the non-endangered species—wetlands ,
waterfowl, shorebirds, fisheries. And under Peggy, Karen
Miller. And I think Ruth Pratt may have gotten involved a
little bit, but Karen Miller was my main counterpart for the
non-endangered species wetlands issues.
Hers was the non-endangered species?
That was Karen Miller's assignment and mine was the endangered
species .
So you worked closely then with these people?
Right. Yes, everything we did was closely coordinated in the
Shorelands review, as on all other projects.
In your interaction and your contacts with other persons as you
were doing this study would you have been in contact with the
Corps of Engineers--Scott Miner, Skid Hall, Vicki Reynolds,
people whose names I have from the corps—were you in close
contact with them throughout this project?
252
Sorensen: Yes. We attended a lot of meetings together and we talked on
the phone a lot. We coordinated fairly closely, I would say.
Chall: I'll probably get back to some of these contacts, I'm just
trying to get some of these ideas—the grid outlined. How
about the city of Hayward--were you in touch with those people
--Mark Storm or any of the other members of the city, either
the council or the administration?
Sorensen: Well, the city had approved the EIRs and all and I think we
probably commented on--yes, it was an EIS/EIR and Karen Miller
had the lead on that. But, no, we didn't coordinate nearly as
closely with the city as we did with the corps, and with
developers .
Chall: How about BCDC [Bay Conservation and Development Commission]
and the Regional Water Quality Control Board?
Sorensen: No, they really weren't players. I mean, they were players,
but not in the context of our involvement through the corps.
Chall: That's really what I'm trying to find out.
Sorensen: Right.
Chall: Then, the so-called third party folks, like Steve Foreman who
was writing the biological assessment, Karen Weissman of TRA
[Thomas Reid Associates] who revised it later—did you
coordinate with them at all—beyond reading their studies? Did
you talk to them about what they were doing at the time that
they were making their assessments and how they were going
about it?
Sorensen: Yes, I recall attending numerous meetings with them, or all
three of them, and talking about coordinating or scoping out
the kinds of studies that should be done to satisfactorily
address our concerns.
Chall: Yes, because their main problem, in effect, was meeting your
concerns in this area with endangered species.
Sorensen: Yes, our issues were difficult ones. Sometimes there's
feasibility problems as to whether or not you can really
address some of these issues.
Chall: Now, what about John Thorpe and Richard Murray of the
Shorelands Project?
Sorensen: Yes. Again, we had many meetings with them.
253
Mitigation Concerns For Shorelands; Leeal and Scientific
Considerations
Chall: Tell me something about those meetings. What kind of meetings
were they like? I mean, were you trying to explain what you
wanted them to cover, how you wanted them to deal with the
issues that you had concerns with, and checking what they were
doing?
Sorensen: Yes, well, basically I think the meetings came down to: they
had a definite proposal that they were trying to sell us on.
They were pretty much convinced in their own mind that their
mitigation program that they and their consultants had come up
with was adequate and were trying to convince us of that. And
of course we had different views. We didn't think their
mitigation went as far as it needed to, to offset the impacts
to the point of avoiding jeopardy. And so there was a lot of
room for disagreement, discussion, and emotions—the whole
gamut .
Chall: What was your chief scientific and legal concern with the
Shorelands Project?
Sorensen: Well there were impacts of three different species. The salt
marsh harvest mouse. I guess one of the major concerns was the
loss — and the same is true for clapper rails — the loss for
marsh restoration potential in the South Bay where so much
habitat had been lost historically. The recovery plan
identified that area as a Priority One Recovery Task which
means that failure to restore habitat in the area could
jeopardize or result in an irreversible population decline for
the species. So that was kind of the approach we were bringing
to the issue. But then there were all kinds of other impacts,
too, to both those species involving indirect effects of the
project through predation— you know, predators: cats, rats, all
that sort of thing.
Chall: Right.
Sorensen: And then for least terns I guess predation was the big concern
there, too, because their nesting colonies out on those narrow
little salt pond levees were quite vulnerable.
Chall: Yes. When you start a project of this kind, and you see its
size and scope, do you already have in mind certain regulations
and scientific /legal concerns that almost predetermine a
project of this type? Do you start out a project like
Shorelands with a set position? For example, "I see what
254
you're planning here, but I just know from my point of view
that it won't fly?" or are you willing to just sit back and
wait until you get the EIR/EIS?
Sorensen: I'd say the latter scenario. I mean, it varies from individual
to individual, but the [Endangered Species] Act and our
regulations really do not allow us to come in with
predetermined positions. It's the preparation and completion
of our formal consultation and biological opinion that is the
instrument for determining whether the project works or not
biologically. In other words, whether or not there is a
jeopardy. And personally, I've always approached projects
operating under the assumption that it's possible and
mitigatable, they just have to show me how they're going to
accomplish that.
Chall: Of course, it had been noted, I guess, through my own research
and the press and elsewhere, that some people — Paul Kelly, for
example- -seemed to be opposed from the start. I just wondered
whether that was your opinion, as well.
Sorensen: We were suspect about their ability to adequately mitigate the
impact, but nonetheless we gave them every opportunity to
demonstrate that they could do that. And under the Endangered
Species Act, under Section 7, it's the other federal agency and
the permit applicant that bear the burden for demonstrating
that their project avoids jeopardy.
Chall: Is it possible that if some other person or persons were in
your position in the federal Fish and Wildlife Service that the
outcome could be different? Do you think that any of that
depends on the persons who are in charge?
Sorensen: Yes, I think it definitely does.
Reviewing the Environmental Impact Report /Statement
Chall: When the EIR/EIS is received by the Fish and Wildlife Service,
your office, what do you do with it? It's very complicated.
I've gone through some of it on Shorelands. What do you first
do with it? By this time you would already know what had been
going on. You were in touch with the people who were writing
it , I imagine .
Sorensen: Right. But nonetheless, that isn't relieving us from the need
or the responsibility to thoroughly analyze this document to
Audubon.^ptember-October 1991
t
PETER
The US. Fish and Wildlifi Semce ap-
; pisrs a bit srhirophremc about Peter
i Sour..-en. a bioiv-cist in C..ir!sKjd. Csl:-
! fotnia. who studies end.;n;v:t vi .«pccies
And identifies threats to tiuii i \iMencc.
The regional directors i..i\e aiw.ivs
! h;>ted l-'ete with a pasMon.' dec! ,n-s one
| of his colleagues. On the othei Lind. in;
immediate bosses have ,ii«.i\> deier.dcd
him like sow grizzlies. His ii::;int field
I supervisor. Ken Bere. is no i \. i rtior..
l *-
"1'ete has had to be the K.i:ci of Kid
:.ew5. he >svs. "You're not popular when
vnu tell sornebodv that his proposed
project is not compatible with .", species's
survival." Somehow Soren-er, h.i^ kip: his
job for 19 years.
In 19S5 he got "fired" (i.e.. dismissed
from current responsibilities) by the re
gional office. But only for an hour. His
supervisors — Gail Kobetich and Jim
McKevitt — had him back on the job be
fore he knew he was gone. He'd offended
a former Interior official who was work
ing for a firm proposing a housing devel
opment in Newark, California. Recalls
Sorensen. "It was a hundred-twcnry-five-
acrc project site on a diverse and produc
tive habitat that supported hifhcr num
bers of [endangered] salt marsh harvest
mice than we'd ever seen. We basically
told them. 'Look, you guys don't have a
project unless you redesign it.' They
weren't willing to do that." Eventually the
Fish and Wildlife Service bought the
land, and it is now part of the San Fran
cisco Bay National Wildlife Refuge.
"Some people feel that southern Cali
fornia is a write-off, so thev talk instead
of ;•:!.' s.ivs Art Davenport, a biologist
in Sorenscn's office. "We have a phrase
for it: virtual consm-alien. Pete is not of
thru ilk." Sorenscn's collc.igucs sny he gets
into trouble because he writes "jeopardy
opinions" — th.it is, he scientifically
demonstrates just how a development
will jeopardize an endangered species.
Jeopardy opinions, which must be ap
proved by the regional office, require de
velopers to submit a "reasonable and
prudent alternative." If they arc well con
nected, as they arc in southern Califor
nia, the recional director gets rcnsted by
angry politicians. That's why issuing
jeopardy opinions is aberrant behavior
for the Fish and Wildlife Service.
In 1995 Sonnscn was banned bv the
regional office from working in Oiinge
Peter Sotensen, US. Fish and Wildlife Service.
County. Although he declines to talk
about it. his associates arc less reticent.
They ce>ntcnd that he offended land-
b»r,irs bv telling them their development
plans might be influenced by the agency's
concerns for the endangered Qumo
chi-ckerspot butterfly. "These guys are so
powerful they can basically dictate who
federal and state agencies assign to work
on their projects," remarks one biologist.
Currently Sorensen is fighting for the
peninsular bighorn sheep, listed as en
dangered in March. In 1997, while listing
was under way, he and his team wrote
a jeopardy opinion on a golf course and
residential development in the Coachella
Valley, which already has 91 golf cours
es — roughly one for every sheep. The de-
vclopei would not agree to the scaled-
back alternative proposed by the Fish
and Wildlife Service. Now Sorensen has
to persuade the agency to stand firm. It's
never casv. •!>•
fcr rih-ri information, (all Forest Ser\uc lmpl?\-
tt: fcr I mircnmental Ethics at 5^1-484-2692,
Pnhh: Empljvrrs /or Environmental Rc:pe>isit<ili-
t\ at 202-265-7337, or tht Gevtrr.ment Ac-
lv Prcjrcl at 202-408-003-1
255
determine its accuracy, you know, as far the factual background
and biological resources that it lays out, and then also
critique its interpretation and conclusions based on the facts
that are presented. Then look at the impacts and mitigation
and make a judgment as to whether their reasoning and
conclusions were sound and whether they had successfully
mitigated to a point that we could approve the project. And
then of course, you know, we write all that up. Then the
Department of the Interior responds to the EIS, to the Corps of
Engineers. And I can't remember what happened with the final
EIS on Shorelands; we may have commented on that, too.
Chall: So the initial one in 1987 is the one that John--. Well, I
guess he withdrew his application at that time and handed over
to TRA the assignment to draw up another biological assessment.
It gets very complicated.
Sorensen: That was the second round [1987-1992].
What Constitutes Jeopardy of an Endangered Species?
Chall: That was the second round, that's right. Now, in terms of
mitigation, except for the harvest mouse, there hadn't been
very much wildlife, endangered species, on that Shorelands
property.
Here, I just want to quote a bit from the assessment of
TRA. She [Karen Weissman] writes, "The loss of the site, per
se , in its present condition will have only a minor effect on
the current populations of endangered species, particularly if
these impacts are mitigated locally, as Shorelands proposes. .
. . If successful, the project mitigation plan will create 123
acres of salt marsh harvest mouse habitat for the 64 acres
destroyed—a net gain of 59 acres."
But, she continues, "The project would definitely add to
the cumulative loss of restoration potential on former
tidelands. It is the cumulative loss of restoration potential
on such former tidelands that may make recovery of the San
Francisco Bay wetland endangered species impossible."3
3"Biological Assessment for the Proposed Shorelands Project,"
Originally prepared by Western Ecological Service Company [WESCO] , revised
by Thomas Reid Associates, August 1989, p. 48.
Sorensen:
Chall:
256
Although at the end, she--TRA--r.hat 's Karei Weissman--felt
that mitigation over time was possible. Apparently, it's the
cumulative loss of habitat that was the concern.
And also, Steve Foreman said in his interview, "There was a
potential with enough money and resources to develop a system
that would replace the use and values that would have been lost
from water birds, for endangered species. It would have been,
I think, certainly feasible to go out to restore enough habitat
to show a net benefit to the species over time, based on what
they have now with no changes and continued degradation of
existing habitat."*
However, he said, "The issue that couldn't be addressed
which I still believe is valuable is that he could never
replace that space, that element for recovery, the acreage.
That was something that he could not replace or did not try to
address. "5
And are these the concerns that you had?
Yes. Yes, that's a pretty balanced account, I guess, of the
spectrum of perspectives and angles to the whole dilemma there.
And like I said earlier, the entire site, in fact, the Baumberg
Tract in its entirety which is well beyond the 700 acres was
designated in the recovery plan as a Priority One Task. And I
guess that's what they were alluding to, but without making
specific reference to it, regarding the restoration potential
and the inherent acreage of spatial values of the site itself.
Now your recovery plan that you talk about, that antedated the
Shorelands application?
Sorensen: It came before.
Chall: Yes, it was something that was already intact.
Sorensen: Yes, I think 1984 was the date on that plan.
Chall: Of your recovery plan? And that was just about the time that
John Thorpe began his work on his application.
Sorensen: Right.
'See interview with Steve Foreman, this volume, p. 235.
5ibid.
257
Predation: Everyone's Concern
Chall: Now, with respect to predation, which was a problem, the
predator fence: it creates both a great deal of—well, how
shall I put it?--laughter and grief. Was this a serious
problem? I think that it was felt by some that it could over
time have been corrected.
Sorensen: Well, we viewed predation as a serious problem, but their
experimental approach in that fenced enclosure, as I recall
was--. You know, they tried to get our concurrence on it, but
I don't think we ever committed or agreed to that experimental
approach to determine whether fencing could effectively
mitigate the effects of predation. That was something that
they insisted on demonstrating, regardless of whether or not
the agencies approved of the experiment. I think they were
just willing to gamble that they could show us and force us to
accept that by virtue of the results that they anticipated from
their experiment.
Chall: As you might expect, the Leslie Salt people—Robert Douglass--
whom I have interviewed- -when I asked him about the predator
fence and the moats and all of that, he said, "The predator
fence was probably one of the worst examples of how the
agencies mistreated John, just by sending him on these wild
goose chases. I'm sure the individuals within the agencies
think they acted honorably, but basically there was if not a
public strategy then certainly informal strategies to drain
John, to send him down corridors with wild goose chases and
continually chase project approval but knowing full well they
were never going to give him project approval."6
How do you respond to that?
Sorensen: Well, I think my response earlier in the conversation addresses
that. We don't come in with predetermined outcomes for
reviewing these projects. And also what I said earlier, too, I
believe it's accurate that we didn't recommend that they
conduct this fencing experiment. That was entirely their idea.
Chall: So if they come in with an idea and say, "Perhaps we can work
it out in a certain way, let's try this," you just agree to let
them try?
6See interview with Robert Douglass in this volume, p. 162.
258
Sorensen: Well, we couldn't stop them—we would have if—and that's how I
remember it going down: it was their idea, that we never
condoned. 1 think they probably asked us to approve it but I
don't think any of the agencies ever did.
Chall: Yes, I don't think they did. There were so many hurdles in
front of him that it was remarkable, 1 think in some ways, that
he held on as long as he did.
Sorensen: Yes. So basically, just to round out my response to Douglass's
comment, no, there was not a conspiracy or a strategy to sap
him of his resources by sending him off on wild goose chases;
that is not accurate at all.
Response to Arguments Regarding non-Jurisdiction on the
Baumberg Tract
Chall: I see. Leslie Salt — the company, from the beginning, felt that
the corps and therefore the Fish and Wildlife Service had no
jurisdiction over Shorelands, and they early wrote letters to
the corps. Let's see, I have a letter here. In 1985, they
wrote to Andrew Perkins, Jr., who was Lieutenant Colonel for
the San Francisco District Corps of Engineers, outlining the
fact that they felt that the corps had no jurisdiction over
Section 10. Then again in 1987. There was a letter from the
Leslie Salt Company to Marvin Plenert, regional director of the
United States Fish and Wildlife Service, who was in Portland,
with a very carefully analyzed brief from an attorney with the
same arguments— that the corps had no jurisdiction over either
Section 7 or Section 404, both of them.7
How do the agencies respond to letters of that kind?
Sorensen: Well, I can't recall how or whether we responded to that since
it was mainly a legal trust responsibility involving the Corps
of Engineers, and EPA secondarily, you know, in whether or not
there is 404 jurisdiction. The Fish and Wildlife Service
through the Fish and Wildlife Coordination Act has some
influence on those jurisdictional calls, but it's advisory only
with the ultimate responsibility lying with the other two
federal agencies.
164a.
7See letters to Marvin Plenert in Robert Douglass interview, page
259
Chall: These were letters sent to the heads of the agencies. Would
they contact you and ask you how you were going about your
studies, or was there any obligation on your part to respond to
them?
Sorensen: You mean from EPA?
Chall: Yes, or Plenert? Did they just assume that you're carrying on
your work as you're supposed to?
Sorensen: You know, depending on the relationships among the staff
working for the respective agencies on a given project there
could be quite a bit of coordination or there might not be. It
just depends on those personality dynamics among the staff.
But in this case we had a good relationship with Vicki Reynolds
of the corps and I'm sure that we talked to her and provided
her with information and things like that, you know, of
background information. And through informal discussions
trying to influence what the corps' 404 call should be.
Our main expertise, of course, is wildlife. And under the
commerce clause of the Constitution, use by migratory birds can
be a deciding factor in corps jurisdiction, although I think
that more pertains to isolated waters and not tidal wetlands.
And you know, I'm not a real authority on 404 jurisdiction.
Analyzing the Government's Role in Protecting the Environment
Chall: Okay, we're on again. All right. Let's see where I am now.
Well, let me say this about the material that I've seen:
the EIR/EIS that Carolyn Cole let me have on loan, the material
that Karen Weissman from TRA let me have, a considerable amount
of background material that I got on loan from Howard Cogswell,
and some updated material from Janice and Frank Delfino who
saved quite a bit—it shows a very, very complicated process
going through the EIR/EIS and then dealing again with all of
the various steps that an applicant has to go through,
particularly to gain non-jeopardy. I'm just amazed at what
needs to be done. All of this would appear to be expensive,
perhaps frustrating, time consuming, and, on the part of the
developer and maybe even those who have to draw up all this
material, onerous.
260
What do you have to say about the regulations that protect
the environment? All that a developer or anybody else has to
go through in order to gain permission, and permits to go on
with a development in any part of the environment, whether it's
wetlands or the desert or a local hill, where we need to have a
concern?
Sorensen:
Chall:
Sorensen:
Well, just speaking strictly from the standpoint of the Fish
and Wildlife Service, even where there are no overlapping
wetlands regulations which is typically the case for endangered
species in upland areas where the sole federal jurisdiction is
Section 10(a) and the incidental take and habitat conservation
plan provisions of the Endangered Species Act, you know, even
in a relatively simple case like that where there is no Section
7 nexus--which actually provides us a streamlined project
review mechanism—that ' s just the way it is. [See Glossary]
But the reason why it can be complicated, time-consuming,
and onerous is the fact that the American public is afforded an
opportunity to comment and participate in these processes. And
I think that's a great virtue of the system in the sense that
excluding the public would truly short-circuit the ability of
agencies to make informed decisions. I'm continually impressed
at the depth of information that does come out through the
public comment periods and the opportunities for public review
in these decision making and regulatory processes. And the
public has an opportunity to comment under NEPA [National
Environmental Policy Act] and CEQA [California Environmental
Quality Act], you know, for the EIR/EIS as well as through the
corps public interest review under 404 where the projects go
out on public notice. So there's at least three opportunities
right there for the public to weigh-in on the issue. And
that's what adds most of the time to these processes.
Is the public weighing in the issue?
mean?
By the public whom do you
Both the public, you know, the general John Q. Public at large,
as well as local state and federal agencies are all afforded
opportunities to comment on these project proposals. And what
adds to the expense and the onerousness and things like that is
when you have a big project and you get overwhelming public
input. Because there's so many issues and so many
contradictions and conflicts and so forth, it truly is a
formidable task sorting out the factual background versus
261
interpretations of facts and misinterpretations — and all that
sort of thing—just to come up with a clear picture of what the
basis of the decision should be.
Chall: And is it your responsibility to sift through all of this
material and try to indicate where the Act itself and the
regulations pertain?
Sorensen: Yes, I think that's a good way to put it. Under the Endangered
Species Act we're supposed to use the best available scientific
and commercial information. And we avail ourselves of those
public and agency comments that are received through the NEPA
and 404 process in formulating our biological opinions under
Section 7.
Chall: Now, you are the person who wrote the jeopardy opinion
[Shorelands Project]. At least your name comes up as the
person who wrote it. Is that correct?
Sorensen: Yes.
Chall: And you wrote it in 1987?
Sorensen: Yes, there's two.
Chall: There were two, right. The second came out in 1990, I think.
Sorensen: I don't remember the dates of both.
Chall: When John withdrew his application in 1987 and then brought
material back in 1990, then again, apparently, you submitted a
draft biological opinion--! guess that's what it's called?
Sorensen: It's probably a preliminary biological opinion under the early
consultation process.
Jeopardy Opinions and the Process. 1987, 1990
Chall: What does the process mean at that point?
Sorensen: The early?
Chall: The early consultation? That's part of a regulation, that's
part of the process that must be gone through, is it?
262
Sorensen: Well, early consultation is seldom used. That's the only one
I've ever been involved in. In fact, it may be the only one
that I've ever heard about being used. Even though it's in the
regulations and is available, it's seldom used. I'm not
exactly sure why except that it has the effect of prolonging
the process because it's invoked before the project proponent
is necessarily serious or committed enough to, you know, to go
through the official permit application and decision-making
process.
Chall:
I see .
Sorensen:
Chall:
There's a communication from Karen Weissman to John Thorpe
about your Draft Biological Opinion dated May 14, 1990. It's a
seven page assessment in which she writes, "We believe the
Opinion, in its present form, is scientifically insupportable
since many of its conclusions are pure opinion, unsupported by
factual documentation."8
Which opinion was she critiquing--the first one?
She calls it the "Draft Biological Opinion for the Early
Consultation on the Shorelands Project, pursuant to Section
7. .. ."
Sorensen: That would have been the second one then.
Chall: Yes. Then in a second memo, a letter dated September 1 1 to
John Thorpe, she says, "Tom Reid and I have reviewed the August
31, 1990 Preliminary Biological Opinion [PBO] . The new Opinion
is a major improvement over the first draft in terms of
documentation and specificity with regard to project features.
Its principal author, Peter Sorensen, also responded to many of
the criticisms raised in our formal comments. However, the PBO
still contains many logical inconsistencies, as well as
undocumented pseudo-scientific conjecture. Not all of our
substantive comments received a response or resulted in needed
revisions to the earlier document."9
Memorandum by Karen Weissman of Thomas Reid Associates to John Thorpe
of The Shorelands Corporation, Subject: Critique of Draft Biological
Opinion, May 14, 1990.
'Memorandum from Karen Weissman of Thomas Reid Associates to John
Thorpe and Richard Bailin of The Shorelands Corporation, Subject:
Negotiation Strategy for Reasonable and Prudent Alternatives as stated in
Preliminary Biological Opinion, September 11, 1990.
263
Sorensen:
Chall:
Sorensen:
Chall:
Sorensen:
Chall:
Sorensen:
Then she continues, "All in all, it is our opinion that
another round of formal comment on the PBO would serve only one
purpose: reinforcement of the record to be used in a lawsuit
against the USFWS. Otherwise, I think you should concentrate
on the Reasonable and Prudent Alternatives as the only non-
judicial means to reverse the Jeopardy Opinion."
And now, then, after that there's this whole area called
"Prudent--"
Reasonable and prudent alternatives?
Reasonable and prudent alternatives!
that's an incredible set of steps.
[laughs] You know,
Well, that's part of our biological opinion or our early
opinion or whatever. Well, I mean, under Section 7, whether
it's a conference for a proposed species, a formal consultation
for a listed species, or an early consultation for a listed
species, if we determine likelihood of jeopardy then the
service, pursuant to the law, itself requires that we formulate
reasonable and prudent alternatives if any are available that
avoids the likelihood of jeopardy but yet allow for the primary
intended purpose of the project.
[What steps did you take to respond to the serious critiques of
TRA which never actually satisfied them?10
The service gave full consideration to all comments and
incorporated changes as appropriate in the final opinion. I
cannot remember the specific issues that TRA may have disagreed
with—except the general effectiveness of their proposed
predator management program.
She suggested the possibility of a lawsuit,
they against the Fish and Wildlife Service?
to do if there is a suit?
How common are
What do you have
The service is seldom sued over Section 7 issues, or even
served with sixty-day notices, a requirement before a suit may
be filed. In the seven states within the FWS's Region 1 , I am
aware of only one suit in about twenty years. If sued, we must
coordinate with the Department of the Interior's Solicitor's
Office and the Department of Justice in compiling an
administrative record for the case before it goes to court.]
10This and the following question and answer were added during the
editing process.
Sorensen:
Chall:
Sorensen:
264
Chall: I guess John withdrew before he went through any of these
steps, but he claims that there were some changes in management
of the service at the top with Wayne White. He claims that he
did receive eventually a non- jeopardy opinion but by that time
it was too late for him, and that the city of Hayward refused
the final permit. Have you any recollection or knowledge about
whether any of this went through, whether there was a change in
management with Wayne White and others that would have brought
about non- jeopardy?
Well, there probably was a change because this was going on,
you know, over what--three-four years?
Yes.
The Fish and Wildlife Service about that time--I don't know the
exact dates, but it sounds accurate, that our field office
there was reorganized in a way that the Endangered Species
Office was subsumed within the Ecological Services Office.
Gail Kobetich, who was the previous field supervisor for the
Endangered Species Office then became the head of the
endangered species program within the larger Ecological
Services Office that was headed up by Wayne White. He became
the field supervisor over the combined program. So that was
strictly an internal reorganizational thing. And then there
were new colonels, I suspect, with the Corps of Engineers.
They usually only stick around for two years.
Chall: Yes. So as far as you know John didn't receive a permit? He
didn't pass the jeopardy, even with that change?
Sorensen: No, I don't recall changing our jeopardy opinion.
Chall: You were there during this change of administration?
Sorensen: Right.
Chall: So his claim is probably not totally accurate. Although he
does claim that it was the city that made it impossible to
finally receive the permit. There were additional problems
that had to do with the interchange routes 880/92--I think a
couple of those—the roads that would get people into his
development if it were passed.
Sorensen: Yes, that's right. That was something that came along towards
the end. The access infrastructure wasn't contemplated
earlier, so that added a new element of complexity to the whole
thing. And that was more of a city issue, I think. But
ultimately, our "final" preliminary biological opinion did
265
Chall:
offer a reasonable and prudent alternative that allowed for a
racetrack project along with coiimensurate jmpact avoidance and
other mitigation measures. However, for whatever reasons, the
corps never issued a 404 permit. Although I recall it even
involved reviewing these new roadway plans to access-
Yes, that's probably because it had something to do with the
wetlands .
Sorensen: Yes.
Looking Back on the Shorelands Project and the Ramifications
for the Bay Area Environment
Chall: I think those are basically all the questions that I have to
ask you about this project.
We do have some time and some tape left over here and I
would like to know whether you want to add anything to this
story that I probably haven't covered. There are probably some
things that might have come up in your own recollections that
you might want to cover?
Sorensen: Oh, I don't know. I have a hard time sometimes with open-ended
questions, especially on a big, complicated project like this--
it went on for so long.
Chall: Was this one of the more or most complicated projects that you
had been handling at that particular time?
Sorensen: Yes, that's a fair statement, I think. It's one of the bigger
ones I've ever [laughs] enjoyed working on. There were a
number of other big ones, though, like Cullinan Ranch.
Chall: Yes, oh, yes.
Sorensen: That was a very interesting case study, too, but it wasn't
quite as complicated as Shorelands because it only went through
one round, you know, instead of two rounds of review through
the corps and the EIS process.
Chall: I can't recall now whether that was approved or not.
Sorensen: No, the corps actually denied that permit. And that was pretty
interesting because the developer, the sponsor in that project
came in kind of beating his chest, from southern California,
266
Chall:
Sorensen:
Chall:
Sorensen:
Chall:
Sorensen :
Chall:
Sorensen:
Chall:
Sorensen:
proudly proclaiming that he had never had a project stopped and
he would be darned if he was going to let anybody stop this
project, too.
You know, in the same way, John Thorpe--you've probably
heard this, it's hearsay coming from me because I wasn't at the
meeting—that he apparently threatened to commit suicide if his
project wasn't approved.
No, I hadn't heard that one.
upbeat .
Because he's usually pretty
Yes, at a public meeting involving the environmental groups. I
could probably name some names if you wanted to get first-hand
verification. But you know that's all kind of a peripheral and
interesting human element.
Yes, well, he usually was successful, too, in what he did.
Yes.
So, generally, then, you were concerned that there would be a
loss of habitat. That the loss of habitat for the endangered
species was an important factor in not permitting this project
to go through because there was so little habitat for the
endangered species, those species, particularly, around the Bay
Area.
That was an important part of it, but the other just as
important aspect was that at that point in time the population
levels for those species had been declining and had been
declining for a long time. And when you've got something
sliding towards extinction, you know, it's kind of hard to
reconcile the continued incremental losses, especially on the
large scale that these larger projects involve.
Now did you know that the California Conservation Wildlife
Board has taken over 835 acres of the Baumberg Tract and is
going to restore it?
Yes, and possibly involving mitigation funds from the city of
San Jose required by the San Francisco Bay Regional Water
Quality Control Board for marsh conversion impacts from the
city's wastewater discharge.
Yes, that's right.
Yes, so it was kind of a joint acquisition that was--
267
Chall: That's right. It's based on mitigation for I guess a sewer
line and the expansion of the highway 880 into the marsh all in
the Fremont, Milpitas, San Jose areas. They put some funds
into mitigating those problems and it was decided that they
would use the Baumberg Tract for it.
Sorensen: I didn't hear about the highway connection, but it sounds like
it was a pot of money from a variety of sources?
Chall: Including the East Bay Regional Park District for extending
their trail system.
Sorensen: Well, it sounds like it had a good ending then from the
standpoint of what the recovery plan objectives were for
restoring those areas.
Chall: Now they just have to balance it out. They have to work out
how they'll get these various species to recover on this tract.
Sorensen: They have competing habitat needs.
Chall: Exactly. They have some real problems. Steve Foreman is more
or less in charge of this with Carl Wilcox.
Sorensen: Oh, yes.
Chall: So it's back to square one in a sense that they have to go
through the same regulatory hurdles that John Thorpe went
through to make sure that they're going to pass the jeopardy.
Sorensen: Boy, Steve Foreman's going to make a career out of this
project. From the beginning to the very end.
Chall: [laughs] Right. He's been on Baumberg all the way through.
And I think he's enjoying it very much.
Sorensen: Yes.
Chall: Well, I thank you very much for the time you've given to this.
Your interview will go into a volume that deals with the
history of the Baumberg Tract. I do appreciate your being
willing to be contribute a chapter to that volume.
268
Sorensen: Well, I appreciate the invitation. I hope this benefited in
some respect.
Chall: I think so. Thank you very much, Mr. Sorensen.
Sorensen: Thank you, you're welcome.
Transcribed by Amelia Archer
Final Typed by Shannon Page
269
Regional Oral History Office University of California
The Bancroft Library Berkeley, California
California Water Resources Oral History Series
THE BAUMBERG TRACT: FROM THE PROPOSED SHORELANDS DEVELOPMENT
TO THE WETLANDS RESTORATION (EDEN LANDING ECOLOGICAL RESERVE), 1982-1999
Carl G. Wilcox
THE BAUMBERG TRACT WETLANDS RESTORATION PROJECT
An Interview conducted by
Malca Chall
in 1998
Copyright c 2000 by The Regents of the University of California
270
TABLE OF CONTENTS--Carl G. Wilcox
THE BAUMBERG TRACT WETLANDS RESTORATION PROJECT
INTERVIEW HISTORY 271
BIOGRAPHICAL INFORMATION 273
Background: Education and Career Path to the California State
Department of Fish and Game 274
Department of Fish and Game: Lead Manager for Review of the
Shorelands Project 275
The Shorelands Project: An Ill-Conceived Plan 277
Developers and Environmental Regulations 279
Development Plans for the Oliver Property 281
The Baumberg Tract Wetlands Restoration Project: Carl Wilcox,
Project Manager 282
Site Selection 283
Fixed Commitments for the Species' Habitats 284
Funding for Restoration and Long-term Management 287
Additional Constraints 288
The Public Comment 290
The San Francisco Bay Area Wetlands Goals Project 292
Historic Preservation and the Baumberg Tract 294
271
INTERVIEW HISTORY- -Carl G. Wilcox
Carl Wilcox graduated from Sacramento State University in 1974,
with a degree in biological conservation, and from New Mexico Highlands
University in 1976, with an M.A. in biology. Since 1980 he has worked
in various departments of the state Department of Fish and Game [DFG] ,
in the Central Coast Region since 1986. As an environmental specialist
working on wetlands issues, he was lead manager for review of the
Shorelands Project. Currently, as regional environmental services
supervisor, he is a manager of the Wetlands Restoration Project on the
Baumberg Tract. With an in-depth knowledge, therefore, he could discuss
the two Baumberg Tract projects. Moreover, because he was one of the
final persons interviewed in the series of Baumberg Tract oral
histories, he could tie together many of the issues raised by other
interviewees .
Mr. Wilcox talked with me by phone for one hour on July 20, 1998,
from his office in Yountville. I was interested, at the outset, in the
role of the state DFG in the regulatory process for the Shorelands
Project, their contribution to background research on the tract, and the
state's regulations on wetlands and endangered species. I also wanted
to know about the relationships between the DFG and the Fish and
Wildlife Service, Shorelands Project personnel, and Hayward area
environmentalists. Finally, I wanted the latest information available,
at that time, on the ongoing restoration plans.
Mr. Wilcox began by explaining the role of the state government in
relation to compliance with the California Environmental Quality Act
[CEQA] and the federal Clean Water Act [CWA] . The Shorelands Project,
he felt, did not meet the state's "no net loss of wetland acreage and/or
habitat functions and values," and, he continued, the project "was
proposing as mitigation the conversion or alteration of existing
wetlands, not the creation or restoration of new wetlands." With the
benefit of hindsight, Mr Wilcox claimed that Shorelands was an ill-
conceived project, one that "no one would propose. . .today. "
In response to concerns that the environmental regulations seem
complex and onerous, he admitted that there is "a high degree of
layering," but that nothing makes them insurmountable. Public comment
following the publication of the EIR/EIS takes time, but it is an aspect
of the process that he and others involved in the preparation and review
process, whether professionals or grassroots activists, consider
important. He claims to value the comments made by grassroots
activists, although, as he points out, he may not always agree with
them.
272
Today, as project manager with the overall responsibility for the
Baumberg Restoration Project, Mr. Wilcox carried forward the narrative
begun by Steve Foreman in an earlier interview. Mr. Wilcox carefully
explained the problems he identified in developing a plan that meets
state and federal Clean Water Act regulations, adheres to mitigation
constraints set into the project, and which is confined by limited
funding. He made it clear why the complex restoration plan schedules
which had been initially projected might be delayed in the future. As
the Baumberg Tract example illustrates, the restoration of wetlands
involves a delicate balancing of many interlocking concerns.
Mr. Wilcox added information and clarified answers when he
reviewed his lightly edited transcript. By linking the Shorelands
Project and the Baumberg Tract Restoration Project, he broadened our
understanding of San Francisco Bay's past and current wetlands issues,
and the problems faced by developers and environmentalists trying to
implement environmental laws and regulations.
The Regional Oral History Office was established in 1954 to
augment through tape-recorded memoirs the Library's materials on the
history of California and the West. Copies of all interviews are
available for research use in The Bancroft Library and in the UCLA
Department of Special Collections. The office is under the direction of
Willa K. Baum, Division Head, and the administrative direction of
Charles B. Faulhaber, James D. Hart Director of The Bancroft Library,
University of California, Berkeley.
Malca Chall
Interviewer /Editor
January 2000
Regional Oral History Office
University of California at Berkeley
273
Regional Oral History Office
Room 486 The Bancroft Library
University of California
Berkeley, California 94720
BIOGRAPHICAL INFORMATION
(Please write clearly. Use black 'ink.)
Your full name C-iAr£-l ^1 filzA t^V 10 t\ C K /
Date of birth Qcj,
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Father's full name
Occupation MvJ S 1C 1 j6 JHLJ/L.ELJ2— Birthplace
Birthplace JJ& \fjLh R-S .
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CO*.
Mother's full name
Occupation C M^rlig U. 1jg^A-cix
Your spouse
Birthplace
Occupation
Your children
Birthplace
(Lf A
Where did you grow up? /\NlTLCg,U^ L.A
Present community
Education
Areas of expertise
(!W&\TA\
Other interests or activities
Organizations in which you are active
I fig-
TW
274
INTERVIEW WITH CARL WILCOX
THE BAUMBERG TRACT WETLANDS RESTORATION PROJECT
[Date of Interview: July 20, 1998] I*1
Background: Education and Career Path to the California State
Department of Fish and Game
Chall: Could you tell me about your educational background and how it led
you to your career with the Department of Fish and Game?2
Wilcox: Okay. I have a bachelor of science degree in biological
conservation from Sacramento State University and a master of
science degree in biology from New Mexico Highlands University. I
graduated from Sacramento State in 1974 and from Highlands in
1976. Following that, I worked for the California Department of
Fish and Game as a seasonal aide, and then California Conservation
Corp from 1977 to 1980. In 1980, I was employed by the department
as an ecological reserve manager at Upper Newport Bay, ecological
reserve in Orange County. I was there until 1986, when I
transferred to the Central Coast Region Office as an environmental
specialist working on wetlands issues in the Central Coast Region,
which runs from San Luis Obispo to Mendocino County. I'm
currently the regional environmental services supervisor.
Chall: Well, between 1984 and 1987 and even up to 1992 when the Baumberg
Tract was being considered for development by the Shorelands
Project, were you involved in any way in that activity, in that
project?
Wilcox: Yes, when I came to the region in 1986, one of my responsibilities
was working on projects that affected wetlands and we were
involved in the CEQA compliance process, the California
'## This symbol indicates that a tape or tape segment has begun or
ended. A guide to the tapes follows the transcript.
2This interview was recorded by telephone.
275
Chall:
Environmental Quality Act. So I was involved in the project from
a review of the environmental document as well as the review and
comment on the permit application under Section 404 of the federal
Clean Water Act. We were also involved in the endangered species
permitting issues since several species affected by that project
were also state listed as well as federally listed.
I see, so the state was as involved then as the federal in those
issues?
Department of Fish and Game: Lead Manager for Review of the
Shorelands Project
Wilcox: Yes. When I came in '86, I assumed involvement in the project
from Paul Kelly who had been the unit manager down in that area
and had worked on the project. Paul was instrumental in focusing
attention upon the potential adverse effects of the project on
seasonal wetlands and wildlife.
Chall: He was no longer unit manager?
Wilcox: Shortly after my arrival, he transferred and went to work for our
divisional staff in Sacramento.
Chall: And, he no longer had any involvement with the Baumberg Tract?
Wilcox: No direct involvement as a department representative.
Chall: I noticed in the biological study that he was listed along with
Leora Feeney. So was John Gustafson. What would have been his
role?3
Wilcox: Well, as far as the biological study, Leora worked for Paul for a
while as a seasonal aide doing seasonal wetland bird surveys in
the South San Francisco Bay, which included some of the Baumberg
Tract. John Gustafson works in the department's non-game birds
and mammals office in Sacramento. He coordinated endangered
species recovery activities and funding support for the work Leora
conducted.
3"Biological Assessment for the Proposed Shorelands Project."
Prepared by Western Ecological Services Company (WESCO), June 1987.
276
Chall:
Wilcox:
Chall:
Wilcox:
Chall:
Wilcox:
Chall:
Wilcox:
Chall:
Wilcox:
Chall:
Wilcox:
Chall:
Wilcox:
Actually the first jeopardy opinion was coming out in 1987, so you
really had just about one year on Baumberg.
Right.
In that one year, were your contacts with Steve Foreman, or John
Thorpe; who were your contacts in this project?
Primarily the consultants in the form of Steve Foreman and then--.
Carolyn Cole of Cole/Mills?
Yes, and there was an architect or somebody.
Richard Murray.
Yes, Richard Murray. I met with them on several occasions and
coordinated with the Fish and Wildlife Service. I think Pete
Sorensen was the lead person for the service.
Right. What would you have been doing? Were you in contact also
with John Thorpe or with Richard Murray for John Thorpe?
We worked primarily with his consultants in the form of Mr.
Murray, and there was a young woman that worked for Mr. Thorpe as
an assistant.
Yes, Nori G. Hall. When you were in contact or consulting with
them, what was your general point of view?
Well, there was a great deal of skepticism about the feasibility
of their mitigation for endangered species in particular and how
they would mitigate for wetlands in general. They basically were
not proposing things that were consistent with existing department
policy in the wetlands mitigation arena. Basically, the
department, at that time, had what is called a no net loss
wetlands policy, which required no net loss of wetland acreage
and /or habitat functions and values. Most of what this Shorelands
Project was proposing as mitigation was conversion or alteration
of existing wetlands, not creation or restoration of new wetlands.
I see .
Which didn't meet our policy requirements. There were a lot of
concerns about predator issues with regard to endangered species
and then some pretty hokey mitigation proposals for snowy plover
mitigation.
277
Chall: So were you consulting with them about your feelings of skepticism
at the time that they were making these proposals or were you just
allowing them to try them out to see if they would work perhaps?
Wilcox: We were commenting on their proposals, generally in a fairly
negative manner. The mitigation activities that I mentioned were,
in most cases, not consistent with policy and just not things we
were going to approve or accept.
Chall: That you recognized right away even before you read the EIR/EIS?
Wilcox: EIR/EIS. It was somewhat of an iterative process in that the
department would comment on the document. Shorelands received the
comments, and then they came back and tried to address the issues
and revise things, so there was a period of consultation following
the initial round of comments on the environmental document.
Chall: Otherwise, prior to that, do you simply wait to see what the
EIR/EIS has to say before you make comments that might be
considered negative to the project?
Wilcox: Right, oft times, unless somebody comes to us and consults in
advance. There wasn't a whole lot of that as I remember in the
first go around.
Chall: I sometimes wonder whether, if different people were in charge of
the project or, let's say, in your place, the results might be
different in terms of the final decisions.
The Shorelands Project: An Ill-Conceived Plan
Wilcox: Well, they can be. But from the perspective of wetland issues,
the Shorelands Project was ill-conceived to start out with. No
one would propose it today. It's the kind of thing where somebody
has an idea and looks at a site as a barren wasteland and doesn't
really consider the public perception and acceptance of it. When
that project was formulated, I think in--.
Chall: In about 1983 or so when it was first conceived, I guess.
Wilcox: Yes, things were different in the way people looked at development
around the edge of the Bay. You were getting to the point where
people started—particularly projects of that size—becoming
concerned about the loss of these historic baylands, these diked
bayland areas, and the loss of the values that were associated
with them. There was kind of a paradigm shift in the community in
Chall:
278
that the environmental community was becoming much more aware of
wetland issues in San Francisco Bay, and the South Bay in
particular.
Paul Kelly was, I think, a real mover or force in developing
that consciousness in the environmental community, educating
people about those wetland areas, and getting them interested in
them. It was kind of the start of a new era in wetlands
permitting. There's a lot more scrutiny of projects as a result
of this increased understanding of the seasonal wetlands around
the Bay.
So that was another shift from simply CEQA to the whole concept of
the Clean Water Act and the endangered species. These regulations
did come along at different times, but in a continuum of a kind.
Wilcox: Right.
Chall: Then, in 1987, John Thorpe removed his project so that he did not
have to accept the jeopardy and went on to revise his mitigation
plans. He assigned another round to TRA, Thomas Reid Associates.
Were you in any way consulted by Karen Weissman who worked with
Thomas Reid on the next go round?
Wilcox: We were to some degree, but the issue never really got much
better. They were still proposing the same kinds of things.
There were still outstanding issues about whether or not things
were wetland or not, whether they were going to mitigate. The
project never got to a point where the department would have
removed any of its objections.
Chall: And your objections- -how important, in a way, were your
objections? I know that the jeopardy opinion from the Fish and
Wildlife Service was paramount. Was yours of equal stature?
Wilcox: No, really the driver in that instance was the federal endangered
species. Obtaining endangered species approval was critical in
obtaining the corps permit. If they approved the project, that
was the real controlling factor on whether or not they could get a
permit, short of legal action against the city of Hayward and/or
the corps.
Chall: So, you were not as involved in comments and consultation?
Wilcox: Not directly, although, during that period we did coordinate with
the service. It's interesting. We were still trying to figure
out how to implement the state Endangered Species Act. One of the
things we found out subsequently is that we have overlapping code
279
sections, and the harvest mouse is what is considered a fully
protected animal, and that project would have resulted in the take
of the animal which is totally prohibited by state law.
Chall: I see.
Wilcox: So, if we knew what we know today, they would have had an even
more difficult time getting permits to do what they were going to
do.
Chall: When you say if we knew what we know today, you're looking at it
and considering your work with the restoration project or
something else about the law?
Wilcox: No, this is the interpretation of the state Endangered Species Act
and other code sections in the Fish and Game code.
Chall: And that's because what the courts have ruled or are you just
interpreting the laws differently?
Wilcox: We're interpreting laws differently. It's an old law that nobody
really paid all that much attention to until somebody challenged
us in court under the state Endangered Species Act and issuing
incidental take permits, or what we call 2081 permits. All of a
sudden somebody looked at this older law that predated the state
Endangered Species Act and basically preempts it, which prohibits
any take of a certain list of species of which the salt marsh
harvest is one. So, it's something we're having to struggle with
right now.
ChalJ : You mean right now in your restoration plan?
Wilcox: Well, the restoration plan, but it also involves other instances
where we have to authorize or deal with projects that might result
in taking.
Chall: So there are others around the Bay here that you're now struggling
with or are concerned with?
Wilcox: Yes.
Developers and Environmental Regulations
Chall: There are people who would say that all these regulations are
terribly difficult to adhere to, and it's onerous, particularly
for developers, and also perhaps for people who have to write the
280
EIR and all the regulations. How do you come down on that? Do
you think sometimes these regulations are getting to be too
difficult to deal with? The mouse may not be all that important
in all these little spots where people want to develop? You may
lose a mouse, or four hundred mice. How do you look at that
aspect of the regulations?
Wilcox: I think the take on regulations is that certainly there's a high
degree of layering. There's nothing necessarily in the
regulations that makes them insurmountable. Projects get approved
on a regular basis, but you have, certainly, different levels of
interest. You have local politics that have their own set of
requirements for local approval, and then you move up through the
process to different levels of jurisdiction. Without regulations
like the state and federal endangered species acts, you wouldn't
see any protection measures, or very limited, or haphazard
protection measures for endangered species. While there are
substantial hurdles to overcome, they are manageable if you do
your homework as a developer. In retrospect, nobody would propose
a project like that today.
John Thorpe's?
Right. From my perspective, it was a bad project to start out
with.
And projects today are not as widespread, as damaging, you think?
Well, certainly things have changed around the edge of the Bay.
People aren't coming in to develop large tracts of land, or what
we call the Bay lands, which are the diked historic areas of the
Bay. There are very few of those kinds of projects anymore. Ever
since the creation of the Bay Conservation and Development
Commission [BCDC] and people's renewed interest in active
enforcement of the Federal Clean Water Act under Section 404, this
Bay filling has substantially been reduced.
Chall: That's right. Each attempt to build or develop is certainly
critically looked at by BCDC, the state, and the federal
government — all these projects.
Wilcox: This has set the stage for, you know, both the state and the
federal government, and, in some cases, some of the local agencies
in moving forward and protecting a lot of these lands.
Development projects face such hurdles and public opposition that
means are provided to acquire the property and protect them.
Developments also are often scaled back to avoid and protect
wetlands. An example is the Citation Homes project at Roberts
Landing in San Leandro.
Chall:
Wilcox:
Chall:
Wilcox:
281
Development Plans for the Oliver Property
Chall: There's a new project being considered on the old Oliver Tract
[West] near Baumberg, which will be primarily housing. [See Map
1] Is the Department of Fish and Game involved in the EIR for
that? [Proposition HH. See Appendix D]
Wilcox: Yes, the department has commented on the EIR.
Chall: The EIR has already been prepared?
Wilcox: The draft; and I think it has been certified. The issue there,
while it's within the historic bay lands, there aren't a lot of
what are considered jurisdictional wetlands on the site.
Chall: Oh, I see.
Wilcox: So, we haven't had, let's say, outstanding concerns relative to
that project. We would probably prefer it didn't occur, but, from
a biological perspective, it doesn't have great existing
biological value. It's primarily an old hay field, and it's been
farmed, and there's very little wildlife value.
Chall: There's no habitat being destroyed that hasn't been destroyed
years ago or could be restored?
Wilcox: Our main concerns focus on the specifics of their minimal wetland
mitigation, and issues about buffers.
Chall: And fill. I guess many people are concerned with that.
Wilcox: Yes, on the other hand, it has substantial local opposition.
Chall: Yes.
Wilcox: It will ultimately be decided by the voters.
Chall: So there's no impact with respect to the Baumberg Restoration
Project?
Wilcox: Not any direct impact. In fact, there might be some opportunities
to cooperate as far as the development project taking some fill
material that we have to remove from the site.
282
The Baumberg Tract Wetlands Restoration Project: Carl Wilcox,
Project Manager
Chall: Which they will need for building up land for the housing. Could
we turn, then, to the Baumberg Restoration Project?
Wilcox: Sure.
Chall: All right, because I think we've taken care of John Thorpe's
Shorelands Project. I didn't ask you about your interaction with
John Thorpe. How well did you work with him?
Wilcox: Well, I only met him, I think, two or three times. Myself and
John Schmidt, the executive officer of the Wildlife Conservation
Board, met with him. I think this was in the very late eighties
or early nineties. I talked to him about the possible sale of the
property to the state. I think it was shortly after passage of
Prop. [Proposition] 70, which was an open-space bond measure that
specifically earmarked money for acquisition in the south of San
Francisco Bay. [See Glossary]
Chall: He really had only an option on that land, so he couldn't have
sold it anyway. It was really Cargill's property.
Wilcox: Yes, but we met with him to talk with him about stepping out of
the way and that type of thing.
Chall: Well, by that time, I think he had already received the jeopardy
opinion, had he not? This was 1990?
Wilcox: This was probably about 1988, 1989.
Chall: Oh, 1 see. That was just before he gave up the option. Prop. 70
was--. I don't remember the date of that. Do you off-hand?
Wilcox: It was, I think, June, 1988.
Chall: He had option on 736 acres of land, and you purchased 835, so I
was trying to figure where that extra 99 acres came in.
Wilcox: It's out towards what's considered the Whale's Tail. We didn't
acquire the Whale's Tail. We've acquired, I think, part of what
used to be known as Pond 11.
Chall: So it wasn't the Whale's Tail.
Wilcox: No, Cargill still owns that.
283
Chall: Oh, I see. I'm trying to figure out from the maps that I have
here, but it's a little difficult for me. I knew that there was
nearly 100 acres difference, and I couldn't figure out just
exactly what you had been able to get that John didn't have or
have an option on. So that was it, Pond 11. [labeled Inner 11 on
Map 1]
Site Selection
Chall: So the Wildlife Conservation Board purchased this from Cargill on
the basis of mitigation. Did you have anything to do with any of
those early decisions about where this mitigation would go? To
the Baumberg Tract rather than someplace else?
Wilcox: Yes. I've been involved in the city of San Jose's issues since
the mid 1980s as far as the water board [Regional Water Quality
Control Board] requirements for mitigation for marsh conversion
there.
Chall: Oh, this was for the sewer.
Wilcox: This was for the waste water discharge and the conversion issues
down there. Originally, those requirements had been set for an
undesignated site. Most everybody anticipated that it would be
Bair Island, if and when it was purchased or made available. We
got into a situation where there were several things going on.
The ten-year life of Prop. 70 was about to pass. Basically, there
were terms in Prop. 70 that said that if funds hadn't been
expended within ten years then they could be reallocated at the
discretion of the legislature. So there was an emphasis, since we
had a willing seller in Cargill and the apparent lack of any
potential activity with regard to Bair Island, to move forward
with the Baumberg acquisition. [See Appendix C]
Chall: Yes. Well, the Japanese controlling it were not about to sell it
at that point.
Wilcox: Yes, and the fact that the city of San Jose had gone on for five
or six years without doing any of the mitigation. So, it was time
that they did something and got something going. Since Baumberg
became available, then we worked with the Fish and Wildlife
Service and the regional board to designate the funds to the
Baumberg acquisition.
Chall: And then there was also a mitigation needed by the cities of
Milpitas and Fremont on Caltrans?
Wilcox:
Chall:
284
Right, yes, and those were for the Dixon Landing overpass
article, following page]
[See
I'm just about ready to run out of tape, so maybe I'll stop for a
moment and turn it over.
Wilcox: Okay.
Fixed Commitments for the Species' Habitats
Chall: Now, I've noticed in the material that I have received from you,
when I've gone to some of your meetings, that when you purchased
the Baumberg Tract your commitment was a restoration of 350 acres
of tidal salt marsh for the salt marsh harvest mouse and clapper
rail habitat, 17.5 acres of new jurisdictional wetlands including
12.6 acres of the salt marsh harvest mouse habitat. Then there is
restoration of tidal salt marsh and enhancement of seasonal
wetlands. Also you must provide access to the East Bay Regional
Park District for continuation of the bay trail.
Now, in terms of the work that you need to do, are you
committed exactly to 350 acres of tidal salt marsh for the harvest
mouse and clapper rail? Could it be less if you aren't able to
work it out conveniently? Because I know you have some problems,
I was wondering whether those commitments are absolute.
Wilcox: Those mitigation commitments are absolute.
Chall: So you must have 350 acres and the 17.5 acres.
Wilcox: Right, and our objective is to have more.
Chall: When the California Wildlife Conservation Board purchased this, it
was known that the Department of Fish and Game would be
responsible for the restoration project. How was it that you were
assigned to direct the project? Do you have a title?
Wilcox: Project manager. I was assigned to it because I was involved in
the ongoing efforts to acquire it, and/or restore it, and that's
one of my areas of expertise.
Chall: Restoration?
Wilcox: Yes.
Chall: I see. You, then, asked Steve Foreman and his group--?
284a
WEDNESDAY, April 28, 1999
Project
requires
wetlands
filling
By Mary Nauman
Plans that require filling in
more than 17 acres of wetlands
10 widen the DLxon Landing
Rcrid inlerrhange are expected
to lace tough scrutiny from envi
ronmental groups, officials say.
The wider interchange, which
has been planned by Fremont
and Milpitas since the 1980s, is
needed to ease congestion and
compensate for the new Inter
state 880 car-pool lane planned
between Mission and CaJaveras
boulevards
One hurdle, however. Is that
the new interchange will require
filling in 17.8 acres of wetlands.
The U.S. Army Corps of Engi
neers is accepting public com
ment on the project until May
26.
"We're anticipating a lot of
environmental agencies and In
dividuals to comment on this,"
corps spokesman Doug Ma-
kilt en said. "The review period
has Just begun, but I know from
talking with folks that we have
already gotten calls on this sub
ject.' "
Donna Olsen of Tri-Clty
Ecology declined to comment on
.the project because she had not
read the corps' report.
According to a public notice
released by the corps, the
project will replace the current
overcrossing with a wider one.
add a new bridge at Penitencia
Creek and modify the easting
on- and off-ramps to prevent
congestion on the city streets. ^
If It Is approved, the CaTi-1
fornia Department of Transpor- •
tation will compensate for filling
In the wetlands by preserving an '
equal number of acres on the]
Baumberg Tract, an 800-acrej
restoration project In Haywarj^
Colin Jones, spokesman for
Caltrans. said the new Dixon
Landing Road interchange is an
environmentally sensitive
project, but the plans to pre
serve other wetlands should
make the approval process
easier.
Construction is expected to
begin next summer, he said.
"We don't expect the wet
lands to be a big problem be
cause off-site mitigation is going
to be provided," Jones said. "It
can get pretty complicated, but
It's still going to happen."
Ttie final envirownoital im
pact study on the Dizon
Landing inlercluiitge project is
available at tte Milpitas and
Fremont libraries, or by con
tacting tltf CaUrans Information
Center at 111 Grand Ave. in
Oakland.
285
Wilcox: We contracted--.
Chall: Contracted with--. What was it then?
Wilcox: RMI, Resource Management International.
Chall: His present study differs in some way from the original study that
he had to do for the Shorelands Project. Now, you are required to
restore rather than to check on what would be lost.
Wilcox: Right, as part of that, we're doing resource inventories to
facilitate the planning so we don't seriously impact existing
uses. Certainly, the site functions as a seasonal wetland in that
it ponds water during the winter months and provides habitats for
shore birds and some water fowl. Then, also, it has an historic
use by the threatened western snowy plover. As part of the
restoration plan, we have to incorporate the needs of those
species into the restoration plan.
Chall: As I understand it, the clapper rail and the harvest mouse use the
same kind of habitat, but the snowy plover uses a different kind,
and you have to provide for each.
Wilcox: Right, and we have an interesting problem there. The mouse and
the rail, I think, have been listed ever since the early seventies
and the authorization of the Endangered Species Act. The Baumberg
Tract, in the current recovery plan, is listed or identified as
essential habitat for their recovery, so we have a mandate through
that recovery plan to restore tidal marsh. But then we have
another endangered or threatened species that's using the habitat
so we have to account for that also as well as try to address the
existing wildlife values of the site.
Chall: You've also had to deal, then, with problems of hydrology?
Wilcox: Yes.
Chall: There are quite a few problems that you are concerned about, but
mainly it's this difference in habitat--is that it--and how you're
going to arrive at the balance?
Wilcox: Right, it's developing a plan that creates habitat that makes
sense for clapper rails and harvest mice but also addresses the
needs of snowy plovers, and shore birds, and water fowl. One of
the things that we've found doing our survey work over the last
couple of years since acquiring the site is that the snowy plover
use on the site has shifted dramatically. The areas that they
used to use have changed in vegetative character to the point
286
where the plovers aren't using them too much anymore and have
moved to different areas on the site more to their liking.
Chall: You have to retain that kind of habitat then?
Wilcox: Right. In a way, it has worked out pretty well for us in that now
we're able to consolidate the snowy plover management areas, and
we're not having to look at trying to get the plovers to move.
Chall: Oh, they're doing it on their own.
Wilcox: They're doing it on their own and going to a good place for them
and freeing up an area that was really problematic from a
restoration perspective. It was right in the middle of where we
wanted to put tidal marsh habitat, so, to some degree, they're
helping us out.
Chall: Well, that means that it probably was a good idea, though you
might not have planned it that way, to have had some time to wait
to see how the land would respond to the rains that we've had
recently and any other changes that have occurred.
Wilcox: Yes, it hasn't been so much recent change but the ability to
compare our data with work that was done for the Shorelands
Project in the mid 1980s.
Chall: Oh, ten years.
Wilcox: Yes, and over that ten-year period, there has been a fairly
substantial change in the area known as the pickle pond, which was
where the plovers historically nested in greatest numbers. That
has developed a lot of vegetation, vegetative cover, in the form
of pickleweed and annual grasses and things.
Chall: Where are they now?
Wilcox: They've moved out into what's called Inner 11 pond and Pond 15.
Chall: All right, I'll check that on the map. Inner 11 and Pond 15?
Wilcox: I think, in some of our documents, we call it Pond 16. [laughter]
Chall: I have lots of maps, and it's very confusing.
Wilcox: Yes, they're basically the two ponds kind of in the northwest
portion of the site right next to the active salt ponds. [See
Map 1]
287
Funding for Restoration and Long-term Manaeement
Chall: Now, aside from the constraints you have about the species, the
habitat for the species, you have a constraint with respect to
money, $1.3 million. Is that serious?
Wilcox: Well, we don't know. We discovered we had more money.
Chall: Oh, how does one discover that? [laughs]
Wilcox: I was under the impression that we had only $1.3 million, but it
turned out we had almost $1.7 million.
Chall: Oh, that does add a bit.
Wilcox: So, that's going to help, but we still don't know if it's enough
or not. We have been working to kind of pare the project down to
kind of do the minimum amount of site modification. At this
point, I feel it's probably going to be enough.
Chall: When you say enough, does this have to do not only with the
technical work that needs to be done to prepare the habitat
properly, dredging and whatever else is needed, but also for
management, or does this not deal with management that might be
necessary for a number years to ensure that the habitat remains
the way you want it?
Wilcox: This doesn't address long-term management.
Chall: How will that be addressed?
Wilcox: Well, we have addressed it to some degree through developing an
endowment for the site. The city of San Jose, as part of their
mitigation component has provided funds into an endowment as have
the cities of Milpitas and Fremont.
Chall: Oh, I see, and so you're assured that by, what--their annual
budgets — that there's money there?
Wilcox: There will be money, yes. They're providing funds to the
department that go into a dedicated account.
Chall: I see. That gives you a little breathing space.
Wilcox: Yes, it will be helpful.
288
Additional Constraints
Chall: Other problems. I noted when I sat in on your meetings that you
had to deal with quite a few additional problems. I suppose John
Thorpe must have had to deal with them too, but there were other
things that seemed to be of greater concern. You had to deal with
problems such as PG&E [Pacific Gas and Electric Company] and the
power lines, CalTrans and some of their lines, and some sewer
agencies--! don't know which ones they were—with respect to their
pipes.
Wilcox: We have the East Bay Municipal, what is it?
Chall: East Bay Municipal Utility District. I don't know whether it's
that one .
Wilcox: No, the East Bay Dischargers Authority.
Chall: That may be it. Then there's the Regional Water Quality Control
Board, and Leslie Salt, and the Mosquito Abatement District, these
are just some of them. When I listened to all the problems, I
thought, mercy me, [chuckles] how do you even begin? You want to
set up a habitat for these species, and then you have to be
concerned about the underground pipes and the overhead power lines
and all these other aspects? How are you doing?
Wilcox: Well, I think we're doing pretty well. We're trying to
incorporate those needs into the design so that, with regard to
the PG&E towers on the eastern portion of the site, they already
have a boardwalk put in so access to those isn't a big problem.
We're incorporating a berm design into the project to provide
access to the sewer. From a planning and design aspect, it seems
to be working out pretty well.
Chall: I see.
Wilcox: Then, the snowy plover management area basically leaves the PG&E
alignment through the northern portion of the property the way it
is, so we're not going to have to do anything. We're not changing
anything, so we don't have to deal with that. From an
infrastructure perspective, we seem to be doing pretty well. The
relocation of Cargill's facilities, I think, is going to be
manageable.
Chall: How have they been as a company to deal with?
Wilcox: Oh, we have a good relationship with them. They've been
cooperative. They have an interest in seeing the project go
Chall:
Wilcox:
Chall:
Wilcox:
Chall:
Wilcox:
Chall:
Wilcox:
Chall:
Wilcox:
Chall:
Wilcox:
Chall:
289
forward and being, a success. They have committed to provide us
assistance in doing some of the project implementation.
Dredging?
By providing their dredge the Mallard, so that will be a really
valuable contribution to the project.'
Somebody has to be going around working with all of these
different agencies and their personnel. Who's doing that for you?
Oh, that's Steve's job.
Oh, I see. [laughs]
That's why we pay him.
Well, he knows most of these people by now, and he certainly knows
the area that he's working on. That's an advantage. Are you
feeling comfortable or optimistic that you're going to be able to
get your plan, have it ready when it's supposed to be--the end of
this year [1998] .
Yes. The schedule has slipped a year, so I feel quite comfortable
that we're able to be underway.
When?
Next year at this time [July 1999].
You'll be underway next year at this time?
As far as construction is concerned, yes. The plan, at this
point, should be coming out by the end of August, then we'll be
doing the CEQA documents for the project and making the permit
applications and going to final design. We have a contract with
East Bay Regional parks now to do the final construction
documents, and the contract bidding, and construction supervision.
So, that has been successful for East Bay Regional parks to do
that. I know, at one time, you were hoping they could.
Wilcox: Yes.
'Mallard is the name of the dredge. It is a rather historical feature
itself .--C.W.
290
Chall: Is there a plan for the trail that the East Bay Regional Park
District and other folks have wanted over the years?
Wilcox: The alignment will be identified in the project's plan. We're not
going to be constructing it. That's up to the park district, but
I think they're going to be trying to get grant funding, or
funding to construct it concurrent with the restoration project.
Chall: Will this be a phased in plan? I know John Thorpe's was a plan
that was going to be phased in over a number of years. Is your
plan phased in some way?
Wilcox: No, we hope not. The only reason it might be phased is if we
don't have enough money to do all the construction.
Chall: I see. So, once your plan is accepted and you begin work on it,
you expect to just get it all done within a certain period of
time?
Wilcox: Yes, yes.
The Public Comment
Chall: What about public input? I know you have a Technical Advisory
Committee, and they've been meeting, but there are quite a number
of local environmentalists who are quite concerned about all this
and have been for years.
Wilcox: Well, we also have a Public Advisory Committee, and so, when we've
met with the Technical Advisory Committee, then we generally have
an evening meeting for them. We've had, I think, two of those so
far. We had an initial scoping meeting and then a meeting to
present the project alternatives and things this winter. When the
plan comes out, we will have another meeting to present the plan,
then there will be an opportunity through the CEQA review for
people to comment. It's our hope that we will have talked to
people enough and that they will understand the plan, and we'll
have addressed everybody's concerns by the time it comes out.
Chall: Who are the people most concerned with whom you have dealt? I
mean are there some local environmentalists who are more concerned
than others, or more vocal than others?
Wilcox: Yes. What do they call themselves? The Committee to Save
Alameda's Last Marshlands. They're called CALM. The primary
people involved in that are Frank and Janice Delfino.
291
Chall: Right, I know tntim.
Wilcox: And Ron Barklow.
Chall: Oh, yes.
Wilcox: And then the Hayward Area Shorelands Protection Agency [HASPA]
also has concerns about how what we're doing fits in with their
plan. Then the Citizens' Committee to Complete the San Francisco
Bay National Wildlife Refuge. Some of the members of that group
have an interest, particularly Phil LaRiviere from a hydrologic
perspective. He's going to be, I'm sure, making comments on the
hydrology. That's why we're spending so much time trying to get
the hydrology right.
Chall: Yes. I know the Delfinos and Barklows for many years have been
quite concerned about local wetlands and almost anything having to
do with the environment locally. They do collect a lot of
information. You are concerned about their concern?
Wilcox: Oh, very much. I try to keep them as up to date as possible, and
provide them with all the information, and try to get their
comment, and try to address their concerns as part of the designs.
Chall: Are their concerns by and large valid concerns that you yourself
learn something from?
Wilcox: Yes. Janice and Frank are very bright and committed people. I
think they're certainly able to develop a lot of information
relative to development projects. I don't know that they really
have too much specific concern about the project per se. I think
they're going to be particularly interested in how we deal with
the snowy plovers and the seasonal wetlands on the site. And, is
there going to be enough and that kind of thing? And they're
concerned that we're not getting bamboozled by Cargill--that kind
of thing. 1 think they--. [laughs] Well, I saw them last week,
and they wanted us to delay the project in anticipation of San
Francisco International Airport buying out Cargill. 1 don't think
we're going to do that. Nothing we're proposing would preclude
future restoration in the area if Cargill were to give up any of
their surrounding ponds. [See Appendix B]
Chall: That's far into the future.
Wilcox: Yes, and I just think it's too important to get this under way.
If you listen to Cargill, they want to stay in business.
Chall: That's what they say. That's right.
292
Wilcox: I don't have the luxury of anticipating people.
Chall: A great second guess there.
Wilcox: Right, so I think--. Recently, the Regional Wetlands Goals
Project issued its report. It calls for the maintenance of
substantial areas of salt ponds in the South Bay--. Even if
Cargill were to go away, to manage those in the absence of
somebody making salt is going to be really difficult. Cargill 's
continued existence in the South Bay is probably not a totally bad
thing. Salt ponds provide substantial habitat value for
waterbirds .
Chall: It's not totally negative,
to stick around.
I mean you obviously would like them
Wilcox: Yes, from a management perspective. I think people like myself
and Marge Kolar would say, "If you're going to have salt ponds,
keep them in business." We might like to see the conversion of
more salt ponds into tidal marshes, and that may happen down the
line, but I don't think we're saying, you know, eliminate salt
production totally.
The San Francisco Bay Area Wetlands Goals Project
Chall: Well, you just brought up a subject that I wanted to discuss with
you before we ended: the Regional Wetlands Goal Project. I
noticed that you are co-chairman of the San Francisco Bay
Ecosystems Goals Project. You put out recently a draft called the
Regional Wetlands Goals. [June 26, 1998] Was that it?
Wilcox: Yes.
Chall: Can you tell me what it means to be co-chairman of this project?
I don't know who the other co-chair is.
Wilcox: The other co-chair is Mike Monroe with the U.S. EPA [Environmental
Protection Agency]. Basically, the project is an effort to just
focus on the fish and wildlife, the biological needs of the San
Francisco Bay Estuary into the future and make recommendations
about how much of the various habitat types there should be and
provide guidance on where it should be.
Chall: My, it looks like a tremendous project. I was visiting Dr. Howard
Cogswell the other day, and he showed me the report. It had
absolutely spectacular graphics. I'm sure there was a great deal
293
of substance in it as well . But I was quite taken by the fact
that there's so much going on of this kind where people are really
looking into every aspect of the Bay that one could possibly look
into. Not always the same people involved. It seemed to me you
had enough to do with the Baumberg Tract, but I suppose it all
fits in. It's part of your area of expertise.
Wilcox: Yes. One of the driving forces behind this is that it's an effort
to start to address, on a baywide basis, how you deal with
recovering endangered species while accounting for the needs of a
lot of species which, while they're not endangered, depend on the
habitats of the altered baylands. We currently have ongoing
internal wars between the agencies over restoration projects and
whether or not you should mitigate for restoration work. It was
spawned particularly by the Sonoma Baylands Project. The Goals is
an effort to look at everything together and make recommendations
that would balance the needs of the various species groups.
Chall: How is it working out?
Wilcox: Well, at this point, I think it's worked out very well.
Chall: At least you're talking to each other.
Wilcox: Oh yes, and 1 think there's probably a lot of agreement about what
the goals say or the objectives of the goals. There is certainly
a lot of concern about how they would be implemented because
basically we've called for all of the baylands to be protected and
that includes a lot of private property. We called for about
60,000 acres of tidal marsh restoration, which is going to require
substantial land acquisition, and conversion of some of the
existing wetlands types to tidal marsh in the Suisun Bay Area.
Chall: That's a cost.
Wilcox: Yes, there's cost and there's people's existing interest and
attachment to the land they own and use.
Chall: That's right.
Wilcox: If you go to the Suisun Marsh, it's almost all managed wetlands
for water fowl, so we had four public meetings last week. The
last one was in Benicia, and we had, by far, the largest turnout--
the angry duck hunters. [laughter]
Chall: Well, there you are. When you just look at what's happening with
CALFED [California-Federal Bay Delta Program], you can understand
this perhaps looks even more difficult. [See Glossary]
294
Wilcox: Right. We feel that the Goals that we've developed are much more
sound from a biological perspective than what CALFED has done in
their document. They're primarily focused on the Delta and
upstream, and their treatment of San Francisco Bay and the lower
estuary is really poor.
Chall: It's not their concern?
Wilcox: Scientific expertise and understanding about the estuary is very
poor. We're hoping the goals will be able to inform the public
and decision makers about the diverse biological issues in the
Bay.
Chall: That's interesting because it seems to be all tied in when you
start looking at the Delta here and the estuary. There are so
many groups — the CVPIA [Central Valley Project Improvement Act],
and CALFED, and yours, just to name three --that you wonder how
they're all going to be able to work these things out and still
save the Bay. [See Glossary]
Wilcox: Yes, that's an interesting thing in that, while they're all
connected, you have kind of the Bay perspective and then you have
the Delta and the water interests. Everybody always talks about
the Bay-Delta, but they're very different things.
Chall: Yes, and very different people concerned.
Wilcox: Very different constituencies.
Chall: Yes, the so-called stakeholders. Well, I think I've come just
about to the end of my tape here. If there is anything else you
want to add to this interview, you're welcome to do it when you
read the transcript. I really do appreciate the time you've given
to me as well as a lot of good information. Thank you very much.
Historic Preservation and the Baumberg Tract
Wilcox: Sure. I don't know if, when you talked to Steve [Foreman], he
brought up the issue of the historic preservation in restoration
of the Baumberg site.
Chall: All right, tell me about the historic aspects of the Baumberg
Tract.
295
Wilcox: Well, basically, the site, or the property, includes the old Eden
Landing harbor site, which was a port back in the period from the
1850s through the early 1900s. It was a shipment point
particularly for agricultural products to San Francisco. The
schooners like the Alma used to go in there to transfer freight.
So, we have that site. CalTrans and past historic investigations,
or archaeological investigations, of the site have indicated that
the port site is a potential site for listing on the historic
register.
Chall: Oh, my.
Wilcox: So, we have been working to assess the site and try to work around
it because, if we do work that's going to adversely affect it,
then we're going to have to get into a substantial investigation
of the site, which can be very costly. So, we're trying to plan
around it. Unfortunately, it's right in the middle of one of our
key channel locations.
Chall: What does it mean to work around it? Does it mean you have to
leave old pilings or a dock or something that looks like it there?
Wilcox: Yes, you can't, on the surface, really see anything of the site,
but there is a lot of buried material on site, lots of bottles,
and probably old pilings, and possibly foundations, some of the
fill. You can still see the turning basin for the port facility.
The easiest way to deal with it is to avoid it, so we're having to
incorporate that into the project design.
Chall: Would some of the work that you do to get water into the site, or
whatever you're doing with dredging, et cetera, for habitat, would
it mess it up in some way? 1 mean would it change it?
Wilcox: Yes, well, that's part of what we're assessing in our
archaeological report right now is how best to address the Eden
Landing port site. Depending on how we have to treat the site, it
limits our ability to restore the channel that could come up Mt.
Eden Slough. To some degree, you know, we may be able to kind of
restore the historic character of the port site by bringing the
slough through its historic alignment, and we're hoping that will
be considered an avoidance measure and possibly even an
enhancement .
Chall: Is there another problem of that kind on your site?
Wilcox: Fortunately not. Having historical features on sites is a
complicated issue to deal with. People think about environmental
constraints being fish and wildlife, but historical can be equally
as difficult to deal with.
296
Chall: No, Steve hadn't told me about that. That's really quite
interesting because most of the time we think about historical
sites as being old buildings and not leftover lost ports, docks,
and things of this kind. Well, there they are. I suppose there
may have been others that you encountered in your Regional
Wetlands Goals Project?
Wilcox: Well, we're not that detailed in that aspect with the Goals.
Chall: I see, so no one has had to bring that up to you.
Wilcox: No, but I'm sure for other restoration sites it will be an issue.
On the Baumberg site, we have the port site, and then there are
two prehistoric midden sites on the site. Fortunately, we're able
to totally avoid those.
Chall: Yes, I noticed you had an archaeologist on your task force for
that reason.
Wilcox: Yes, right. CalTrans has been very involved because they have to
use our historical assessment in their Environmental Impact
Report. We're basically doing the historical compliance aspect of
the Dixon Landing Road project, so they've had somebody
participating, and RMI has an historian archaeology sub-consultant
too to work for us.
Chall: There's quite a bit involved that one doesn't usually think about
on projects of any kind, particularly this kind. That's really
very interesting, and I'm glad you brought that up. I wouldn't
want to lose that story. Is there anything else?
Wilcox: I think that's it.
Chall: All right, thank you very much.
Wilcox: Sure enough.
Chall: Goodbye.
Wilcox: Goodbye.
Transcribed by Quandra McGrue
Final Typed by Shannon Page
297
Regional Oral History Office University of California
The Bancroft Library Berkeley, California
California Water Resources Oral History Series
THE BAUMBERG TRACT: FROM THE PROPOSED SHORELANDS DEVELOPMENT
TO THE WETLANDS RESTORATION (EDEN LANDING ECOLOGICAL RESERVE), 1982-1999
Roberta G. Cooper
THE HAYWARD CITY COUNCIL AND THE SHORELANDS PROJECT
An Interview conducted by
Malca Chall
in 1998
Copyright c 2000 by The Regents of the University of California
Roberta Cooper, 1996.
Photo by Steve Rubiolo.
298
TABLE OF CONTENTS — Roberta G. Cooper
THE HAYVARD CITY COUNCIL AND THE SHORELANDS PROJECT
INTERVIEW HISTORY 299
BIOGRAPHICAL INFORMATION 300
Background: Education, Career and Route to Mayor of Hayward 301
The Shorelands Project 393
Early Considerations 304
Final Decisions of the City Council 307
The Ballot Measure HH and Land Use Plan on the Weber Tract and
Oliver Properties 308
The Role of the City Managers and the Shorelands Project 310
299
INTERVIEW HISTORY--Roberta G. Cooper
Roberta Cooper has had close ties to Hayward's government since 1985,
when she served on the task force of the General Plan Revision Committee.
Her interest in city planning and governance prompted her to run for a seat
on the city council in 1988. She won; she won again in 1992. In mid-term,
1994, she ran for and was elected mayor. She began her second term as mayor
of the city of Hayward in 1998.
These years roughly coincided with those when John Thorpe was applying
to both the federal government and to the city of Hayward for approval of
his Shorelands Project development plans. Although several other present
city council members served between 1984 and 1992, when John Thorpe's
project was active, I chose to interview Roberta Cooper because she is
currently the mayor, and because her role in the city's final negative
decision on the project was mentioned by John Thorpe in his oral history
interview. The views of Mayor Cooper's fellow city council members have
been well documented in the Hayward Daily Review.
Mayor Roberta Cooper agreed to participate in this project, and the
interview was conducted in her office on October 14, 1998. Although she
apologized for not recalling all the events and intricacies related to the
Shorelands Project, she clarified ambiguous statements made by Mr. Thorpe
and other interviewees. She also moved the ongoing Hayward shoreline/
wetlands debate forward to the controversy over Proposition HH--the housing
and recreation issue facing Hayward voters on November 3, 1998, just weeks
after our interview. Several other interviewees also discussed Proposition
HH. Material from the Hayward City Clerk's files about Proposition HH are
gathered together as Appendix D in this volume. This interview has provided
an important link between the Shorelands Project and the ongoing concern
with the development of open space close to the shoreline, a current "hot
button" issue which was discussed by other interviewees.
Mayor Cooper is an articulate woman who speaks softly, but with care.
She answered the questions I posed to her fully, and returned her lightly
edited transcript to me without changes, other than substituting the pronoun
"he" for "I" in one case. I am pleased to include this interesting and
timely interview in this volume on the history of the Baumberg Tract.
The Regional Oral History Office was established in 1954 to augment
through tape-recorded memoirs the Library's materials on the history of
California and the West. Copies of all interviews are available for
research use in The Bancroft Library and in the UCLA Department of Special
Collections. The office is under the direction of Willa K. Baum, Division
Head, and the administrative direction of Charles B. Faulhaber, James D.
Hart Director of The Bancroft Library, University of California, Berkeley.
Malca Chall
January 2000 Interviewer/Editor
Regional Oral History Office
University of California at Berkeley
300
Regional Oral History Office
Room 486 The Bancroft Library
University of California
Berkeley, California 94720
Your full name
BIOGRAPHICAL INFORMATION
(Please write clearly. Use black ink.)
(j. L0
Date of birth ^- / g - 3 7
Father's full name
Occupation
Mother's full name
Occupation
Your spouse
Occupation
Your children \/4 y s*.
Birthplace .5*. ^
Birthplace
ftu
Birthplace
Birthplace
Where did you grow
Present community_
Education £?. /?.
//• #. /??f
Occupation(s)
Areas of expertise
Other interests or activities
Organizations in which you are active
301
INTERVIEW WITH ROBERTA COOPER
THE HAYWARD CITY COUNCIL AND THE SHORELANDS PROJECT
Background: Education, Career and Route to Mayor of Hayward
[Date of Interview: October 14, 1998] ft1
Chall: Before we get into the Baumberg Tract, I'd like just a thumbnail
sketch of your background: something about where you grew up, your
education and your career, and how you got into city work. I'm
sure you have quite a bit of material around to answer those
questions, but you can give me a thumbnail sketch.
Cooper: All right. I'd be happy to give you a thumbnail sketch. My name
is Roberta Cooper. I am the mayor of the City of Hayward. I am
starting my second term of office. Each term is of four years. I
came to Hayward in 1962, after getting married in San Francisco to
a person who, like I, had been born and raised in San Francisco.
We moved to Hayward in 1962 and have remained in Hayward since
that time. As I mentioned, my husband and I are both native San
Franciscans.
I attended school in San Francisco--went to Commodore Sloat,
went to St. Monica's, Lincoln, and spent the last two years of
high school at the old Lowell. I went on to City College in San
Francisco, received an A. A. and then went to UC Berkeley where I
received a B.A. in American History and much later went back to
school and received a master's degree from the University of San
Francisco.
Chall: In what field?
Cooper: Education.
'## This symbol indicates that a tape or tape segment has begun or ended,
A guide to the tapes follows the trancripts.
302
Chall: Then did you become a teacher?
Cooper: I was trained as a teacher and entered the teaching profession in
1959, left it for some years, and then went back to it in 1969,
and then retired from the Hayward school district in 1994 after
twenty-six years.
Chall: Were you active in city government prior to your going onto the
city council?
Cooper: No. I had been appointed to the Human Services Commission and the
personnel board, had served as a task force member on the General
Plan Revision Committee--
Chall: And your city council membership began- -
Cooper: Nineteen eighty-eight.
Chall: So the task force of the General Plan Revision Committee was
earlier than that, I guess.
Cooper: Yes.
Chall: I think that was '84, wasn't it? I think I have 1984 in my notes.
Cooper: It was either '84 or '85, I think. And not too long.
Chall: About two years, I think.
Cooper: It was about eighteen months.
Chall: So how did you happen to be asked to go on a committee of that
scope?
Cooper: I applied.
Chall: Oh, I see. [laughter] Simple enough. They were happy to have
you.
Cooper: I hope so.
Chall: What interested you in city planning?
Cooper: Well, I had become very interested in what was going on in Hayward
and it just seemed another opportunity not only to become involved
but to learn more of how the city functions.
Chall: Shortly after that, then, you decided to go on the city council?
303
Cooper:
Chall:
Cooper;
Chall:
Cooper:
Yes. It was really a direct relationship to the experience on the
General Plan Revision Committee to my running. I was going to run
in 1986 but then was encouraged to run in 1988, which I did, and
won.
And you remained on the city council, but ran for mayor in 1994 ?2
Yes, they were four-year terms. I ran again in 1992 [for the
council] and won and in 1994 I ran for mayor and won and then won
in 1998.
So you left your city council position term in mid-term?
Right. And Olden Benson was appointed in my place.
The Shorelands Project
Chall:
Cooper:
Chall:
Cooper:
Chall:
Cooper:
Chall:
Now, let's see, if you came onto the city council in 1988, that
was sort of mid-way--we're going on to the Baumberg Tract, now-
mid-way in the planning for the Shorelands Project. Because John
Thorpe had initiated it in about 1982.
Oh, yes.
So when you were on the General Plan Revision Committee did the
Shorelands come up at all?
Seems to me that that was one of the questions that I was asked
when I was being interviewed for the General Plan Revision
Committee--what was my stand on Shorelands. I think it was, "Do
you approve of gambling?" But it really was because of the
racetrack that was proposed there.
Right.
You know, I really don't recall any significant discussions about
that, but that area and the Walpert Ridge were two areas of
contention as I came on that task force.
And did you have any mindset at all on either of these at the
time?
2In Hayward the elected mayor is also a member of the city council.
304
Cooper: No, but I certainly learned a lot and came away with a lack of
support for both of them.
Chall: After-
Cooper: After learning what I did on the revision task force.
Chall: So the revision task force actually set you on a path? Is that
right?
Cooper: Yes, it did. It was a wonderful opportunity.
Chall: Was it against certain types of planning, or types of planning in
certain places? Or, development I mean, not planning, but
development.
Early Considerations
Cooper: I think it was, for the Shorelands. Not that I totally understood
it, but for its supposed comprehensive use of the land. And yet,
I came to learn that financially it would not be as presented:
industrial would go in first to pay then for all of these—you
know, the racetrack, et cetera. And that just didn't seem like an
awfully good idea. And it would have impacted traffic just
awfully. In terms of Walpert Ridge, it was, "Now what do we do
with the last vestiges of wonderful open space?" If it is to be
housing, how can it be accommodated? And that was what we never
went into at that time.
Chall: But the Shorelands, per se, the fact that it was on wetlands-
there was some concern about the environment at that point. That
was not your concern; your concern had mainly to do with the
economics of it?
Cooper: I think it had to do a lot with the environment, but obviously the
economics of the project entered into many discussions.
Chall: In terms of where the various members of the city council were
during this period, in 1988 to 1991--or '92 when it all ended--
there were members of the council who I think approved the
project .
Cooper: Oh, and were very enthusiastic and really supportive.
Chall: And there were those others of you who were not supportive.
305
Cocper :
Challs
Cooper:
Chall:
Cooper:
Chall:
Cooper :
Chall:
Cooper :
Chall:
Cooper:
Chall:
Cooper:
Correct. It really wasn't until 1990, when Michael Sweeney was
elected mayor, that there was enough of a majority on council to
begin to slow down the development and look at some of these
community hot buttons and deal with them.
I have interviewed John Thorpe for this oral history project—of
course, there wouldn't be one without him. But he feels that
politicians were afraid of the size of the project, and they were
afraid of political and environmental squawk. Eventually he had
the approval of all federal agencies, he claims, and he needed the
city's approval before he got the final federal permit from, I
guess, the Corps of Engineers. He feels that some city managers
were sympathetic with his plan—Don Blubaugh, for example—but by
the time it got to Jesus Armas he had no real help. City
managers, he feels, really had a lot of control over the city
council. During the mayoral terms it varied: in the Giuliani era
he had city support, during the Sweeney era it was neutral, and
during the Cooper era it was the tail-end—no help whatsoever.3
I don't recall by the time I became mayor that it was a feasible
project. I remember going to a meeting at his garage— remember
the Shorelands building?
Yes.
And there was a discussion — actually it was a diatribe— by John
against the city, when I got up and left.
In 1994 he was pretty well finished, was he not?
Either he had already declared bankruptcy or he was close to it.
I think he declared bankruptcy in 1991 [July, 1991].
Okay, well, then it basically—
It may have been when you were on the council.
Yes, I think so.
Rather than being mayor?
Right, I think it was. And it might have been— we were discussing
the Zucchini Festival, I think. By that time John was not
rational in any discussion about the city of Hayward.
3Alex Giuliani, mayor 1982-1990. Michael Sweeney, mayor 1990-1994
Roberta Cooper, mayor 1994-present .
306
Chall: I see. He felt that you council members — or those of you who
opposed him (and there were always a few who didn't) --were really
blocking him. Was that right? Blocking his proposal?
Cooper: We were hoping that it wouldn't go through. I wish I can remember
the years more clearly now, but I think there was a majority of us
on council who were not supportive, feeling that the impact- -not
necessarily the commercial development, but the industrial
development and the racetrack--! think the racetrack was always
the glitch in the plan.
Chall: I see.
Cooper: What the racetrack would have to do in terms of the environment —
the traffic, clean air, public safety. There were a myriad of
reasons that I think are perfectly justifiable.
Chall: About all the city could do at that time or any time was, as I
understand it, determine where the interchange would be—whether
it would be the Whitesell or another interchange [Cabot], one of
which would be more expensive than the other. And you weren't
able to make a final decision on it until you got the Corps of
Engineers permit approval, was that it?
Cooper: It may have been. I can't say for sure.
Chall: But your concern was the interchange — the cost of the traffic, the
loop?
Cooper: Well, yes. And as I recall, Mr. Thorpe at that time was promising
everything to everybody. And I don't think he had much
credibility at that time. It was an issue by some people in the
community. It was certainly supported by the Chamber [of
Commerce] and the business leaders of the community, but there are
a lot of other folks who didn't feel that it would be the best
project for that area and for the city.
Chall: Now you had probably Mr. [Bill] Ward and—
Cooper: Mr. [Matt] Jimenez.
Chall: The five on the council- -
Cooper: Seven.
Chall: Seven. So that Ward and Jimenez, who were for it—
Cooper: Somehow I don't think Shirley was in support of it.
306a
CITY OF HAYWARD
AGENDA REPORT
AGENDA ITEM
WORKSESSION ITEM
Date:
To:
From:
October 2, 1990
Mayor and City Council
City Manager
STATUS REPORT ON THE PROPOSED SHORELANDS PROJECT
RECOMMENDATION
Rex'iev the attached materials and request any additional information
you may wish at subject work session.
BACKGROUND
Attached hereto is:
1. A "Summary of Prior Events and Present Status of Shorelands
Project" by the Shorelands Corporation.
2.
3.
4.
A letter dated September 2/f, 1990 from "Skid" Hall (Retired,
Chief of Permit Review Section, U.S. Army Corps of Engineers, San
Francisco District, 1977-1990) concerning the status of the
Shorelands project in the federal review process.
A letter dated August 31, 1990 from the Fish and Wildlife Service
to the Corps of Engineers setting forth a Preliminary Biological
Opinion (PBO) on the Shorelands project.
A letter dated September 7, 1990 from the Shorelands
to the Fish and Wildlife Service responding to the
Biological Opinion (PBO) .
Corporation
Preliminary
Based on the Reasonable and Prudent Alternatives (R fc PA) contained
in the PBO, or an alternative R & PA as may be negotiated, Shorelands
will be able to file a new permit application with the Corps of
Engineers and will be ready to likewise amend their City of Hayvard
permit request to reflect their present proposals.
306b
STATUS REPORT ON THE PROPOSED SHORELANDS PROJECT
Submission of the applications will then also necessitate rev^'ions
in the previously prepared DE1S/DEIR. It is the Corps' practice to
initiate the preparation of any required environmental documents at
such time as an application for Corps permits is filed. This is done
so that the information contained in the environmental documents can
be used to evaluate the mitigation plan for the project approval
(this is the "no net loss" mitigations, as well as the mitigations
needed to avoid impacts on endangered species) and the Alternative
Sites Analysis required for a federal permit to fill wetlands.
Jt is the purpose of the Alternative Sites Analysis to demonstrate
that there are no sites that could be used for the Shorelands project
(a non-water-dependent use) that do not impact wetlands. If
Shorelands does not provide this evidence, federal authorizations
will be withheld.
Jf Shorelands successfully satisfies this Alternative Sites Analysis,
then the question of whether a Cabot Boulevard interchange with Route
92 should be built, instead of a Whitesell interchange, becomes most
relevant .
The Whitesell interchange is $2.3 to 4.8 million cheaper (depending
on options) than the Cabot Boulevard interchange; it does not impact
wetlands and thus, does not require related federal authorization;
and has been shown to satisfactorily serve traffic needs as studied
(without Shorelands). If the Shorelands is to be built and if it is
determined that the Khitesell interchange will still handle the
traffic from that project as well, then the Whitesell interchange
would remain the obvious choice. If, however, it is determined that
there are no alternative sites for the Shorelands project and that a
Cabot Boulevard interchange is instead needed to handle the traffic
from it and other sources, then the resulting project for which there
would be no alternatives would be a Shorelands/Cabot Boulevard
interchange project.
Increased costs for constructing the alternative Cabot interchange
and the costs associated with mitigating the impacts of that
alternative facility would all be attributable to the Shorelands
project.
Louis N. Garcia, City Manager
Attachments
34-90MM
-2-
307
Chall: Shirley Campbell?
Cooper: Right.
Final Decisions of the City Council
Chall: There was a period of time in 1990 when the U.S. Fish and Wildlife
Service had claimed that if he were to lop off some sixty acres
from his plan, they might be willing to consider it again. And at
that time, according to this article in the Hayward Daily Review
of September 10, 1999, "The City Council is largely undecided
about how it felt about the Shorelands project.... Councilman Matt
Jimenez said he has been in favor of the project from the
beginning. Council members Roberta Cooper and Shirley Campbell
said last week that they were largely undecided and uninformed
about the project. Mayor Michael Sweeney said he was concerned
about the project and that he would ask some 'tough questions'
before forming an opinion."
And then later, there was the discussion, the argument, over
a period of about a month or so, whether to—what would you call
it--pull a file, I mean, close a file.' The city council after a
period of a month or so decided that they would not have the staff
close the file—would leave it open, even though the staff
objected. Staff felt it was time to clear it off the books. He
was already in bankruptcy and nothing had been going for quite
some time.
Cooper: Right. You know what, I vaguely remember that.
Chall: Well, what would have caused you to decide after a month or so to
keep the the file open?
Cooper: Maybe it was just time to be middle of the road and not make, in
essence, any final decision.
Chall: Because it's really up to him to reopen the permit process.
Cooper: Yes, and he never could.
Chall: [Reading from the same article) "But at that time Councilmen
Jimenez and Bill Ward said that the Shorelands file should be
10,
'Hayward Daily Review, August 14, 1991; September 14, 1991; October
1991.
Cooper:
Chall:
308
reopened. Council members Shirley- Campbell, Roberta Cooper, and
Nick Randall said they wanted to discuss the procedural aspects of
processing all projects, not just Thorpe's development. And
council member Doris Rodriguez said Hayward owed Thorpe a hearing
as a form of 'respect' because he has contributed to or paid for
many community events including the city's Fourth of July
fireworks. "
Oh, well. [laughter]
So that was the pretty much the end of the city council's activity
with respect to the Shorelands.
Cooper: Yes, until relatively recently.
The Ballot Measure HH and Land Use Plan on the Weber Tract and
Oliver Properties
Chall:
Cooper:
Chall:
Cooper:
Chall:
Okay, now you have this new project which is in contention?
you thinking about the one that is ballot measure HH?
Are
Cooper:
Chall:
Cooper;
Well, that is the area that's east of the railroad tracks. The
area to the west of the tracks is buildable without permission
from the residents of Hayward.
Oh, I see, so that the HH concerns only that which is west of the
tracks at the Weber property and the adjoining Oliver property?
[See Map 1 and Appendix D]
West of the tracks, you're right.
That is close to the Baumberg Tract. In fact, those are parcels
that Mr. Thorpe would have liked to have used for mitigation, at
least. But the city feels that is a viable project? Are you
going to build on that part of it?
Well, we're not going to build anything on it. We've done a
specific plan for that area, council has adopted it, the heirs to
the Oliver fortune—the United Church of Christ and the Hayward
Historical Society—will be kind of the grand masters in terms of
deciding on developers and all of that. It won't be any of our—
Oh, I see.
That's not what we do. What we do is to make sure that the land
use is appropriate. And we've approved the land use. Now, there
309
are interesting arguments on both sides of HH and we'll have to
wait until November to see which one--
Chall: I see. As far as the city is concerned, the plan has total
approval.
Cooper: Yes. I think there was only one—Ron Hulten--who voted against
it.
Chall: How do you look at that portion of the tract? Now, we're talking
about the part that is west of the railroad tracks.
Cooper: Eight hundred acres of that has been sold by Cargill Salt to the
state California Wildlife Conservation Board.
Chall: Yes, that's the Baumberg Tract as we call it.
Cooper: Is that what it is?
Chall: Yes.
Cooper: The fact of the matter is, that's a significant amount of acreage
of that western area, so that whatever is developed is not even
going to be on the Bay, it's going to be a distance back. A part
of the concern has been that there's going to be a lot of fill
west .
Chall: Yes.
Cooper: I've asked the staff to look at how much fill Foster City has,
because not only did they use fill, Foster City was not damaged at
all in the 1989 Loma Prieta earthquake. And so with the pristine
view about not using fill—the fact is that we've seen significant
development in the bay region using fill. The 800 acres is
proposed to be used for the Pacific Flyway, for the birds, so the
fact is that not only do they have that, but the interpretive
center area [Hayward Area Shoreline] adds up to a reasonable
amount of land devoted to restoring the marsh and encouraging
healthy wildlife.
Chall: So you feel that there's enough of it there already?
Cooper: Yes. Well, I don't believe there's enough there, but I think
there's been a good faith effort. And life changes in terms of
how we perceive things and we can't be so parochial that nothing
happens. Community is a dynamic organism and if it isn't allowed
to grow and restructure, it dies. And I don't think any of us
wants Hayward to die.
310
Chall: Now, in John Thorpe's development, there had to be an EIS as well
as an EIR and he had to get approval from the federal Fish and
Wildlife Service and the Corps of Engineers. In this project you
did not need that?
Cooper: Oh, [laughs] yes, indeed.
Chall: Oh, you did?
Cooper: Oh, yes!
Chall: And you did get it?
Cooper: You know, I have no--I don't recall, but yes, all those permits
were needed because there are wetlands on the Weber property.
[See article, following page]
Chall: Right, so you passed the jeopardy. That's what they call it.
Cooper: Pretty much.
Chall: When you say pretty much, what does that mean?
Cooper: Well, I'm hedging my bets. I'm just not sure. I think that
they're still working through the feds.
Chall: I see, I see. But what would stop it altogether would be a
negative vote?
Cooper: Probably.
The Role of the City Managers and the Shorelands Project
Chall: Going back to Baumberg and Shorelands. Let me ask you another
question that comes up. The attitude of city managers. John, for
example, thinks that Don Blubaugh was supportive and that Jesus
Armas was not and that they really helped formulate how the city
council feels or felt.
Cooper: That's not true. It works just the opposite. Good city managers
read the council. If you recall when Don Blubaugh was here,
Barbara Bradley was on the council, Julio Bras, Bill Ward, Matt
Jimenez --we 11, if you count, that's a majority. And so when you
have that, plain and simple, you've got a city manager who has his
path planned out for him. And so what the message is, you will do
all that you can do in order to make this a go. When Jesus came
310a
Oakland Tribune, September 23,
1999.
AROUND THE AREA
Baylands project OK'd in Hayward
One of largest
in the city's history
By Karen Holzmeister
STAFF WRFTIR
HAYWARD — The City Council on
Tuesday endorsed final plans to build a
massive residential and business develop
ment that ranks among the largest projects
In the city's history, on baylands near the
Hayward-i'nion City border.
The council's 6-1 vote came nearly a year
alter voters gave general approval to the
complex of 535 homes, a business park,
light manufacturing, a small commercial
center, a 25-acre sports park and two
smaller parks in November 1998. Coun
cilman Kevin Dowling was the lone dis
senter.
. Nels Nelson, who supports the project.
quoted a historian in noting that "govern
ment exists for the greatest good and the
greatest number. There is a lot of good to
be done here (with the project.) There are
more good things than objectionable
things."
The development will be constructed
during the next 10 to 15 years south of
Highway 92. the Hayward-San Mateo Bridge
entry, and east of Hesperian Boulevard.
The 251 -acre project covered in Tues
day's vote is Hay-ward's largest remaining
undeveloped flatlands area. The issue of de
veloping this land was complicated during
the last six years by the site's proximity —
about 2'/: miles east — to the Haywaid
shoreline.
Evelyn Cormier of Havward said. "There
is no good reason to build housing in a wet
lands area. What makes our area unique
and wonderful, in addition to the weather,
are things controlled by the bay."
Council members adopted a subdivision
map and approved, for first reading, a de
velopment agreement for the project. The
development agreement will be adopied in
the next month or two.
The council first agreed to the overall
project in February 1998. subject to voter
approval on land use changes In a 155.5-
acre section of the 251 -acre project.
Development of the entire project hinged
on a majority of voters agreeing — as they
did last November — that the 155.5 acres
should be changed from open space to resi
dential, industrial corridor and parks and
recreation uses.
There were 25 speakers during the two-
hour public hearing Tuesday, Including 13
for the project, seven against It, and five
commenting on It In general. More than 100
people attended the meeting, but only 65
were left in the council chambers when the
vote took place at 10:40 p.m.
Development plans originated in 1993
when the city- authorized -studies for about
1.200 acres "south of Highway 92 and west
of Hesperian.
The present project began taking shape
after 835 acres south of Highway 92 were
sold in 1996 by Cargill Salt. Co. to the Cali
fornia Wildlife Conservation Board for per
manent open space.
311
back--I don't know where he gets Jesus-- Jesus left "ery soon after
Don Blubaugh.
Chall: You had Louis Garcia for a while.
Cooper: Yes, and then Jesus came back, I think, in '93.
Chall: And by that time it [Shorelands] was finished.
Cooper: By that time the majority had changed and this was not what we
wanted to do. And city managers who are worth their salt take
that into serious consideration.
Chall: And from your old contacts with John Thorpe, you feel that he
might have been just upset in general because his plan didn't go
through?
Cooper: I would suspect that he's a very angry man.
Chall: All right. So, unless you have something to say that might wrap
up this discussion-
Cooper: I appreciate your coming.
Chall: Well, I thank you very much for your time.
Cooper: You're welcome. I'm sorry that I don't have more accurate
information, but a lot of those battles, et cetera had gone on
through the eighties.
Chall: I just wanted to get one city council member's slant on this
project .
Transcribed by Amelia Archer
Final Typed by Shannon Page
312
Regional Oral History Office University of California
The Bancroft Library Berkeley, California
California Water Resources Oral History Series
THE BAUMBERG TRACT: FROM THE PROPOSED SHORELANDS DEVELOPMENT
TO THE WETLANDS RESTORATION (EDEN LANDING ECOLOGICAL RESERVE), 1982-1999
Janice Delfino
ACTIVIST FOR THE ENVIRONMENT
An Interview conducted by
Malca Chall
in 1998
Copyright © 2000 by The Regents of the University of California
Frank and Janice Delfino, 1998,
313
TABLE OF CONTENTS--Janice Delfino
ACTIVIST FOR THE ENVIRONMENT
INTERVIEW HISTORY 314
BIOGRAPHICAL INFORMATION 316
I BACKGROUND 317
Education and Career in Nursing 317
Genesis of Activism for the Environment 319
II CONCENTRATION ON THE HAYWARD AREA SHORELINE 323
The Hayward Area Shoreline Planning Agency [HASPA] 323
John Thorpe and the Shorelands Project 324
The Public Trust Issue 329
The Eventual Purchase of the Baumberg Tract for the Wildlife
Restoration Project 330
Analyzing the Restoration Project 332
III ASSESSING THE CONSEQUENCES OF CITIZEN ACTIVISM 338
The Value of Vernal Pools 339
Opposition to "Re-creating" Creeks 340
Roberts Landing: The Toxic Soil Issue 342
Citizens for Alameda's Last Marshlands [CALM] 345
The Suit Against Leslie (Cargill) Salt Company 346
Save San Francisco Bay Association, The San Francisco Airport,
and Other Matters 348
314
INTERVIEW HISTORY--Janice Delfino
I have known Janice Delfino since the mid 1960s, when our children
attended the same elementary school in Castro Valley, California. Since
1955, Janice and her husband Frank have lived in a modest home on two-
thirds of an acre hillside in Castro Valley. They grow varieties of
fruit, vegetables, almonds, and walnuts, as well as flowers to attract
birds and butterflies. They joined the Ohlone Chapter of the Audubon
Society in 1967, the year after the organization was founded.
Eventually they became active in environmental issues dealing with the
San Francisco Bay shoreline of southern Alameda County. Our paths
occasionally crossed after I moved to Hayward in the early 1970s.
Gradually I became aware of their activities thorough the local press or
through the Ohlone Audubon Chapter's bulletin, the Kite Call.
When I began my research on the Baumberg Tract I was unaware of
the Delfinos1 interest in and knowledge about Baumberg until Howard
Cogswell told me about Janice's collection of old maps of the Hayward
shoreline. I soon realized that Janice and Frank knew important parts
of the history of the Baumberg Tract, and had themselves played an
important part in the property's more recent history. When I asked
Janice and Frank to participate in the oral history project, Janice
agreed to be interviewed but Frank declined, preferring to spend his
time working on their small farm and entrusting Janice to explain their
unique activist partnership. As Janice discusses Frank's scientific
background, one soon realizes that the couple has always worked closely
as a team.
We scheduled our interview for the morning of July 21, 1998. At
the table in their large, old fashioned kitchen, overlooking a small
grape arbor, we placed the tape recorder and an assortment of papers,
press clippings, and other material which Janice thought would be
useful. For many years she had been collecting and carefully filing
innumerable old and current maps, pamphlets, newspaper clippings,
environmental reports, and other material relevant to her area of
concern. Janice generously provided copies of selected material for the
volume, and for deposit in The Bancroft Library. Most of the maps in
this volume are copied from her collection. We recorded for nearly
three hours, with a lunch break, at which Frank joined us.
The range of the Delfinos' activities goes beyond the Baumberg
Tract, and is closely linked to other wetlands projects around the Bay.
Some are currently generating heated debate. These ties to other
projects and organizations indicate the passion, hard work, and
dedication to the environment which drive citizen activists like Janice
and Frank Delfino. To some, this might be considered serious and
unwarranted interference. Others may consider such action as providing
315
the leadership that is necessary to maintain or enhance the integrity of
the environment. Judgments vary widely.
Janice knows her subject well and has strong opinions. Because
she is so enthusiastic about her activities she discussed many of them
in rapid succession. Among the topics we discussed were Shorelands, the
Cargill Company, present plans for restoration of the Baumberg Tract,
and the many other projects around the area with which she and Frank
have been or are currently involved. She feels that she and Frank have
been successful in preventing developments which would have harmed
endangered plant and animal species.
She reviewed her edited transcript, correcting spelling and adding
details. Later, regardless of her busy schedule, she provided
additional information whenever I asked for it. As the final chapter of
this volume, Janice Delfino's interview links her untiring activism on
behalf of the environment to the history of the Baumberg Tract and other
related wetlands issues in the San Francisco Bay Area.
The Regional Oral History Office was established in 1954 to
augment through tape-recorded memoirs the Library's materials on the
history of California and the West. Copies of all interviews are
available for research use in The Bancroft Library and in the UCLA
Department of Special Collections. The office is under the direction of
Willa K. Baum, Division Head, and the administrative direction of
Charles B. Faulhaber, James D. Hart Director of The Bancroft Library,
University of California, Berkeley.
Malca Chall
Interviewer /Editor
January 2000
Regional Oral History Office
University of California at Berkeley
316
Regional Oral History Office University of California
Room 486 The Bancroft Library Berkeley, California 94720
BIOGRAPHICAL INFORMATION
(Please write clearly. Use black 'ink.)
Your full name TAHlCS. A-HH KiHSACCA "hLLHHO _
Date of birth QcT6B£A <? II 2L _ Birthplace.Sazi/)/fj>. C
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Father's full name
Occupation FftgmZO. _ Birthplace
Mother's full name TtLU£. enfitit 8iAHt.»l 8/NSACeiA
Occupation HQMLMftKEJL _ Birthplace S£>L£P/)-D.
Your spouse
Occupation CHLMlCAL £ri&4H££JL _ Birthplace Mf-HLO
Your children Tttc/fl#$ A. 2>£Lfjnc> fj£JL £.
Where did you grow up? SC>L£DAt>i CfiLlFo/tHi* OH A
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317
INTERVIEW WITH JANICE DELFINO
ACTIVIST FOR THE ENVIRONMENT
1 BACKGROUND
[Date of Interview: July 21, 1998) it1
Education and Career in Nursing
Chall: The first thing I'd like to know, Janice, is your background--
your educational background- -and whatever career you had which
did or didn't bring you into this activism which is now a major
part of your life.
Delfino: I am a registered nurse, with a B.S. degree from the Stanford
University School of Nursing. And I think my concern about
public health—not that I'm a public health nurse, but I think my
concern about health, and especially the health of the Bay, is
because people do eat fish and shellf ish--what they call finfish
and shellf ish--from the Bay. I just think that I'm concerned
about of the health of the environment and how it affects our
human beings.
Chall: And you grew up where? In the central valley somewhere?
Delfino: No, Soledad, California, out in the Mission district. That's out
by the Soledad Mission in Salinas Valley. And we lived out in
the country on a dairy farm.
Chall: Oh, you were on a farm.
Delfino: Oh, yes, yes. And then I went to San Jose State, took my two
years of pre-nursing at San Jose State and then transferred to
the Stanford School of Nursing. At that time the hospital,
medical school, and the nursing school were in San Francisco.
Chall: That's right.
'//// This symbol indicates that a tape or tape segment has begun or
ended. A guide to the tapes follows the transcript.
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Delfino: And I graduated in 1949.
Chall: And then did you stay in nursing for a while?
Delfino: Yes, at Herrick Hospital, Berkeley, California. I was in charge
of the emergency department .
Chall: Oh, really?
Delfino: Until I married Frank and then we moved to Sacramento. Frank was
working in enology with the wine department at UC Davis and he
had his degree in chemical engineering, a B.S. degree in chemical
engineering.
Chall: From Davis?
Delfino: No, no, from UC Berkeley, leaning toward the food—the food
processing. And we were there for two years, moved to New York—
well, we lived in west New York, New Jersey, but Frank was
working in a winery in New York City!
Chall: Is that so?
Delfino: And then we came back—we moved here 1955.
Chall: Right here on Reamer Road [Castro Valley]?
Delfino: On Reamer Road in 1955. Frank was working, had a job again in
the food business at Skippy Peanut Butter in Alameda. That was
the original plant, the original Skippy Peanut Butter plant.
They just tore down the building this spring; we were there.
Chall: He worked there from 1955 until he retired?
Delfino: He did not work just there. All the Skippy Peanut Butter plants
in the country were built by Frank. He supervised the building
of those and then he went to South America and Mexico to build—
to work on mayonnaise plants. See, then it was Best Foods.
Chall: Oh.
Delfino: I mean he was working with Best Foods- -Mexico and Argentina and
Chile.
Chall: Really! I remember that he used to be away a lot, but that was
for Skippy.
Delfino: Yes, that was for Skippy. They were putting in the sorting
machines- -improving the peanuts that went into—sorting the
319
peanuts so you didn't get a bunch of bad ones. So anyway, Frank
retired in 1986 and I retired in 1987. I was out of nursing
twenty-five years and then I went back to nursing over at
Fairmont Hospital in rehabilitation, you know, with stroke
victims and the motorcycle accident victims.
Chall: Oh, I didn't realize that—after your boys were grown up and
gone?
Delfino: Yes, I decided--oh, there was a shortage of nurses at that time
and it's just over the hill, right? Fairmont Hospital, there. I
really enjoyed the rehabilitation because you could see progress
made by patients. That was very rewarding.
Chall: Yes. What were those years? Can you recall that?
Delfino: Nineteen-eighty . I took the RN [registered nurse] refresher
course that Fairmont Hospital offered and then I worked until
1987.
Chall: I see. Now during that time, let's see, Frank had retired so he
was working on your farm here?
Delfino: And doing some consulting work. Not on a regular basis, but he
did do consulting work.
Genesis of Activism for the Environment
Delfino: But there was, you know, way back in the late sixties, a plan for
a southern crossing, do you remember?
Chall: Oh, yes.
Delfino: I think it was the Southern Crossing!
Chall: Well, there was a big campaign for the Southern Crossing, that
was to be the new—the so-called Second Bay Bridge—a parallel
bridge to the Bay Bridge.
Delfino: Yes, and it would have gone through Alameda and then curved
around and would come down. The alignment would have been along
the shoreline of San Leandro and Hayward--! mean, maybe 200 feet
in, in some places. Well, we just couldn't stand that.
Chall: I see.
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Delfino;
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
And so I think that was probably how we started. I mean, we were
members of Ohlone Audubon Society and we worked on committees.
Frank was field trip chairman and things like that, but, see,
those are fun things. When you get down to the real hard work,
it's going to meetings, writing letters. Well, anyway it finally
went to a vote and the public voted down the Southern Crossing of
San Francisco Bay.
Yes, I recall that, now that you mention it.
started then?
So you really got
In those days I was up at Parsons School in the library. You
know, those things. I didn't go back to work until--
You said around '80.
--until 1980, so I was out a long time.
Well, you were rearing a couple of boys and you have a rather
large piece of property here that you were farming.
Oh, yes, yes. And with Frank away it was important that somebody
be here.
That's right. I remember that you were, as I was at that time--
housewives we were called—taking care of our children. I think
I was a volunteer at the library at Parsons School.
You were.
I tried to get you a number of times to make a committee report
at Parents Club meetings. And you just said that you couldn't do
it. I had to persuade you and persuade you to get up in front of
the few people who attended meetings.
I was scared.
You just said you couldn't do it and I insisted that you do it.
And then after a few years, I found that you were out there
[laughter] declaiming broadly about all kinds of issues! And I
thought, "What happened to Janice?"
Well, you had set up the library- -
Yes.
--and then it was easy to take over. And then Lorraine Parr was
another excellent mother and worker and volunteer at the library
at Parsons School. Well, in those days, we stayed home.
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
321
Yes, but still you were a shrinking violet in a sense.
Oh, scared to death.
So, what happened, Janice?
Oh, maybe I know what happened. Remember Jo McLellan?
Yes.
You remember, she discovered that the Oakland Scavenger Company
did not have a permit to go across the Hayward outfall channel to
begin dumping on shoreline property. I guess it was at that time
wetlands or marshland—probably not the best salt marsh habitat,
but Jo McLellan was really a good investigator.2
Yes.
She does a great job, then she kind of falls back and gives up.
And I remember going to the [Alameda County] board of supervisors
to protest the board giving a permit to Oakland Scavenger Company
to raise the height of their garbage dump.
The Oakland Scavenger Company--! guess they did finally get
a permit, but then they wanted to raise the height of the dump.
Now this is the big dump at the end of West Winton, you know, the
one that has all kinds of leachate problems now. Well, anyway I
went to the board of supervisors to say that I want the board to
deny giving the permit to Oakland Scavenger Company to raise the
height of the dump--gosh, I don't remember how high. I'm not
certain of the additional height.
That's okay, because all those kinds of figures can be found in
the public record.
Yes, yes. Anyway, John Murphy, Supervisor John Murphy was very
cruel and he said what I had to say had no meaning. He just, you
know, told me as if to say, "Go home and take care of your
house." [laughter] And that made me very angry. And so I guess
I was in tears. It was a rainy day and I could hardly see
driving home, and I thought, "I'll get you John Murphy."
Supervisor Joe Bort was a very considerate person. But
anyway, Oakland Scavenger didn't get their way. And then we also
2The outfall channel was where the Hayward waste water treatment plant
discharged treated water into the Bay. It is now a flood control channel.
--J.D.
322
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
protested Oakland Scavenger Company using what is now the
Cogswell Marsh. At that time it was a big flat area. They
wanted to dump their cannery waste. They said they had lost
their lease at the Port of Oakland. They would barge the cannery
waste out into the ocean. You know. Well, you remember.
Yes, there were many canneries around here—in Hayward,
Leandro, and Oakland.
San
They would barge the cannery wastes beyond the Golden Gate. And
what we had heard was that they dumped the cannery wastes on the
larval crab beds and killed the larval crabs.
Oh.
I've never seen that in writing but that was a possibility.
Anyway, they lost their ability to dump--I mean, we protested
that very strongly. We went to the board of supervisors. See,
that was all in the county and this was no place to dump cannery
waste. They did finally take the cannery wastes down to San
Benito County or to the south end of Santa Clara County and
spread them out in the fields and ground them up and such. But
they wanted to use the Hayward shoreline. Well, it was close by.
Look at all the canneries that were in Hayward.
That's right, and San Leandro.
Yes. So that allowed us to preserve shoreline property.
Now, when you say "us," Janice, who were the "us" in those times?
Barbara Shockley, Jo McLellan, Howard Cogswell- -HASPA had just
started, I think- -Hayward Area of Shoreline Planning Agency—in
1973. Before that I was appointed by Howard Cogswell to be on
the Master Plan—you know, the Citizens Group on the Master Plan
for East Bay Regional Park District.
Oh, yes.
The park district had to come up with a master plan, you know?
They were building things and you know, doing some dumb things.
I was with Kay Kerr's shoreline committee.
I think Harold [Chall] was on that committee, too.
Yes. And Kay Kerr had the shoreline section, the shoreline
committee. Anyway, then Howard Cogswell, who was still on the
board of East Bay Regional Park District, appointed me to HASPA,
on the citizen's advisory committee along with Phil Gordon. So
we're some of the old timers.
323
II CONCENTRATION ON THE HAYWARD AREA SHORELINE
The Hayward Area Shoreline Planning Agency [HASPA]
Delfino: And then we really went to work on the Hayward shoreline.
Chall: You built the [Hayward Area Shoreline] Interpretive Center.
Delfino: Well, that came later. But you see, you have to give credit to
Ilene Weinreb. Mayor Ilene Weinreb [Hayward] and Martin Storm, a
city planner [Hayward] --an excellent person. Ilene realized that
we had an opportunity to use the Hayward shoreline as mitigation
for filling in the eastern approach to Dumbarton Bridge.
And this was mitigation so there was money to buy the
property on the Hayward shoreline. And that was Ilene and Martin
Storm's idea. Ilene said, "If you have a plan you can go forth
with it. If you have some goals—but mainly you have a plan."
And so here was something close by. We needed to open that area,
and I believe it was in 1981 when that parcel was open to Bay
water. It was very costly, there was a lot of heavy equipment
used, and there were complaints by various people, but it's
operating, it has clapper rails. It is now the Cogswell Marsh.3
Chall: Well, it's certainly a great place for walking and birding.
Delfino: Oh, yes. With the bridges over it you can be right above the
little creatures in the marsh. So that all came about because of
the Hayward Area Shoreline Planning Agency.
Chall: I see.
3The Cogswell Marsh, a portion of the Hayward shoreline, was dedicated
in honor of Howard Cogswell. Some 200 acres (three former salt ponds) from
Johnson's Landing northward, opened to tidal action along the shore.
324
Delfino: And the citizens advisory committee and the technical advisory
people — those were staff people from the agencies.
Chall: This was HARD [Hayward Area Recreation and Park District], wasn't
it?
Delfino: HARD and East Bay Regional Park District and the various school
districts- -Hayward and San Lorenzo—and the city of Hayward.
That was Martin Storm who staffed that. Staff people were
considered technical people.
Chall: I see.
Delfino: And the Alameda County Mosquito Abatement District was a member
of the technical advisory committee to HASPA.
John Thorpe and the Shorelands Project
Delfino: We just plugged right along, doing very well. Then I guess it
was 1980 or '81 or '82-- John Thorpe decided he wanted the--oh,
the Africa-USA.
Chall:
Delfino:
Chall:
Delfino,
Chall:
Delfino:
Marine World?
Marine World Africa-USA. They either were closing shop across
the Bay or they lost their lease or something happened and John
Thorpe thought it would be wonderful to use the oxidation ponds —
the Hayward treatment of waste water oxidation ponds. See, by
that time, Super Sewer had come in and they didn't use the
oxidation ponds. And I'm not sure how many acres it is, but it's
quite a large area; you see it from some of the trails.
Probably, but I don't realize what it is.
Yes, there were cells where they used to just evaporate the
water, or put out their waste water and then finally it would go
out the outfall channel. Anyway, John Thorpe thought that was a
good place to have-- [laughter] --Africa—well, anyway, the Marine
World. And at one of the city council meetings he brought a
tiger.
Yes, 1 heard about that.
You heard of that. A beautiful animal,
and — oh— what a beautiful animal!
And he came up the aisle
325
Chall:
Delfino;
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
No one's ever going to forget that scene.
John Thorpe was such a--let me see, what is the word--
flamboyant--
Flamboyant is often used.
Yes, yes. And he would work to your visual senses, seeing this
beautiful tiger. But anyway, he was told to look elsewhere and
darn it if he didn't go south of [Route] 92.
Oh, I see. He came first with the idea of the Africa-USA without
having taken any option on any land yet?
1 think that's right. And maybe Africa-USA felt that this was
not the best place. I don't know what happened. We were not
privileged to know what happened there. Then he decided he
would--! guess he talked to Cargill about using Cargill's
abandoned salt ponds. Here are these abandoned salt ponds: "My
goodness! Well, we can't let this property go to waste."
[laughs] And that's when he came up with the idea of the
racetrack, although John said he knew nothing about racing. But
he would have people who knew something about horse racing.
Now when that began that was about '82, '83?
Yes, yes.
Did you immediately take action?
Well, of course.
The Ohlone Audubon Society?
Well, I think Ohlone, but maybe HASPA, because many of the people
who were in Ohlone Audubon are also at HASPA. So we decided, you
know, this is no place for a racetrack. And one of the things
that was interesting but devastating was that the waste from the
horses had to be put into some type of holding pond. And John
Thorpe came up with the idea of using water hyacinths. They are
called hyacinths. Water hyacinths.
The water hyacinths would use up the bacteria. They would
digest the horse manure. John Thorpe said there was a waste
water treatment facility project in the city of Hercules along
the shoreline of San Pablo Bay where water hyacinths were being
used to treat waste water. I have a copy of the document that
proposed the use of water hyacinths and how wonderful the project
would be. Well, what we found out when I did the investigation
326
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
was that Hercules had a cover over the ponds that contained the
water hyacinths, and when the wind blew, the wind [laughs]
damaged the covers and the wind pushed all the water hyacinths to
one side. And it was a mess.
Then I also called Foster Farms [the chicken meat producer] .
Somehow I found out that Foster Farms had a project using water
hyacinths to treat their waste water. And they said, "Oh, well,
we have space. We can do this. We can put the water hyacinths
out in the field and grind them up, and they're not going to
spread." I mean that's the problem. When water hyacinths spread
or clog waterways, there is a major problem.
That's right.
So I presented that and made it known that this was a very bad
waste water processing system. And we picked his project apart.
He was going to have a hotel at the very end, it would be on pond
Inner 11, the old Cargill pond, Inner 11. [Map 1] And it would
be the gateway to Hayward--this big hotel with big Hayward sign,
you know?
Yes.
[laughs] I mean he had grand plans for everything—it was
probably a great idea, but the wrong place. And an RV park and
commercial developments.
The plans were shown in his brochure. [See Shorelands Project
promotional brochure in envelope, back cover]
Yes.
So you had to come not only to meetings of the city council, but
primarily what was it, the EIR/EIS commenting meetings?
Oh, well, yes, and the agencies. We talked to the agencies — not
necessarily BCDC, but I don't know if we ever, or why we
contacted BCDC. Sometimes I did all this, you know, on my own
because if you gather information, then you can present it to
HASPA in a meeting. The Corps of Engineers would have the final
say.
That's right.
Fish and Wildlife Service, Fish and Game are advisory to the
corps. And then EPA has—what is it called? They can deny a
project — they could have the final say. There's a word or
phrase— EPA can elevate the project for further study. The Fish
327
Chall:
Delf ino :
and Wildlife Service issued a jeopardy opinion. The clapper
rails were not necessarily found on the property, but then it
depended who was out there and who did the census, who did the
surveys, and at what time. They issued a jeopardy opinion but we
thought that the city of Hayward was waiting for the corps to
make a decision and the corps was waiting for the city to deny
it.
Oh, really?
So a decision was not made or a decision was not rendered by the
corps or the city of Hayward. The jeopardy opinion just hung
there.
Chall: Even in 1992 or 1990, that last one?
Delf ino: All I remember is that Pete Sorensen, who is the endangered
species man at Fish and Wildlife Service, had issued a jeopardy
opinion. Oh, and the mitigation- -oh, that's right, there was no
mitigation for the loss of wetlands there on the property. John
Thorpe said, "Well, I'm going to buy the Oliver property."
Chall: Yes.
Delfino: But Mr. Oliver--! guess Alden had died.
Chall: This was Gordon, I believe, with whom John Thorpe was
negotiating.
Delfino: Gordon. There was no way—well, at that time Gordon knew that
Thorpe couldn't buy the property. I mean, we didn't know it but
it was going to go to the [Hayward Area Historical Society)
historical society and the [Eden United Church of Christ] church.
But John Thorpe had to cross Mr. Weber's property the way his
Shoreland Boulevard was set, and he didn't buy that, or Mr. Weber
wasn't selling it, so he had no way to provide access. But that
didn't stop John! [Map 1]
Chall: So if I understand it, you would do a lot of research, take the
research to HASPA, HASPA would then take it to whatever agency
was appropriate?
Delfino: Well, yes. And of course the city was the main or the lead
agency on this project because it's in the city's jurisdiction.
Chall: But the city couldn't do anything until they received the
information from the corps?
328
Delfino: That's right. And see, it was dragging on, and I guess John
Thorpe's partners bega.i to ask questions.
Chall: Yes, it was expensive and losing money, I think.
Delfino: Well, they never made it. They never made a cent. The money was
going out. And, well, [laughs] John Thorpe finally had to give
up.
Chall: Yes. So you, in a sense, were working through HASPA?
Delfino: Oh, yes.
Chall: Did you contact directly people like Paul Kelly or Sorensen?
Delfino: Well, Paul Kelly--that ' s interesting. Paul Kelly was the
representative from Fish and Game on the Hayward Shoreline and a
wetlands person and he's really terrific.
Another person had said, "You don't put a racetrack on land
like this." And the Mt. Eden Creek, which gets tidal action, has
tidal action up to where flood control has a block at the end of
Eden Landing Road. If you were to extend Eden Landing Road
beyond the fence, beyond that gate, there's a block in the Mt .
Eden Creek. There's a beautiful, beautiful salt marsh and that's
where if there are clapper rails — at that time we weren't certain
there were clapper rails, but there was certainly salt marsh.
Chall: The habitat was there for them.
Delfino: Oh, yes, yes. The little mouse was there, but it was not on the
property. But who knows, you know, they travel over the levees
and there is salt marsh--! mean, pickleweed--on the inside, on
the Baumberg side — you know, the abandoned salt pond side — and so
apparently there was—we didn't realize it at the time, but the
snowy plovers nested there.
Chall: Yes.
Delfino: They're there now so they must have been nesting before, but
nobody was out doing surveys.
Chall: I think Howard Cogswell had seen plovers.
Delfino: And Leora Feeney was asked to do — I guess she was paid by— which
agency I'm not sure —
Chall: Department of Fish and Game, I think.
329
Delfino: Oh, that's right.
Chall: I'm not sure, but I think she worked with Paul Kelly.
Delfino: Yes.
The Public Trust Issue
Chall: So you were busy on the Shorelands Project? That came to an end,
but over the years have you always had a certain amount of
cynical respect, let's put it that way, for the Cargill or Leslie
Salt Company? Have you always been a little uncertain about
their motives? I know sometimes you've been critical.
Delfino: Well, in 1984, Judge [M.O.] Sabraw ruled that Cargill--it was
still going under the name of Leslie Salt—but Cargill purchased
Leslie Salt in--I thought it was 1978. The public trust issue
had to be resolved on the Baumberg area. But Ned Washburn, or
Edgar Washburn, the attorney for Leslie Salt—you know that name?
Chall: Yes.
Delfino: --the attorney for Cargill and the State Lands [Commission]
worked together and State Lands gave up a huge amount of property
in the Baumberg area.
Chall: You were telling me about Edgar Washburn and the State Lands
decision.
Delfino: Yes, and what is left in the public trust is Mt. Eden Creek—a
navigable waterway— and 153 acres of Pond 10. Pond 10— the 153
acres, once Cargill stops producing salt, will revert to State
Lands Commission. [Map 1]
Chall: How was this resolved? In whose court was this?
Delfino: In the superior court in Hayward.
Chall: And what year was that?
Delfino: It was December 31, 1984. [laughs] Apparently—that's
interesting- -it had to be wrapped up before the end of the year.
Chall:
330
This is at the time that John Thorpe had his option and was
considering mitigation?
Delfino: Well, yes, and the public trust issue had to be resolved.
The Eventual Purchase of the Baumberg Tract for the Wildlife
Restoration Project
Chall: Now at about the same time or later, I'm not sure actually when
this happened, but you said it was after John Thorpe lost or gave
up in the nineties that the city of Hayward established a
citizens committee?
Delfino: The city council in or about 1993 appointed a group of citizens
to be on this committee to establish or determine where the urban
limit line on the west side should be. I know they also studied
Walpert Ridge, but for this discussion we'll just talk about the
west side of Hayward. And that committee determined that
Hesperian Boulevard should be the western limit.
Well, that's when the Oliver Trust, Mr. Weber, and Cargill
decided that they didn't like that decision because they said
they were left out of the decision. And of course HASPA was
pleased [laughs] because that would keep the properties west of
the railroad track—see, HASPA' s jurisdiction ends at the
railroad track—the rails of the railroad track. We do not have
jurisdiction or we did not study Oliver East.
But anyway, that's when the city said there had to be an
EIR. The three property owners provided money for the EIR. And
Cargill waited until there was a development plan on their
property that meant industrial development, industrial buildings.
Chall: So they were going into the Baumberg Tract area?
Delfino: Oh, yes. And there were several alternatives as to how to
develop the Baumberg Tract and still have wildlife habitat. And
of course, looking at the maps, you don't put housing or
industrial development and all that on bay mud! But that didn't
stop the city of Hayward or even the consulting companies.
You know, I have to fault those consulting companies.
Chall: Do you know who it was at that time?
331
Delfino: TRI--oh, golly. EIP Associates were EIR preparers; TJKM were
transportation consultants. Of course then Cargill waited. As
far as we could tell, Cargill waited until there was a
development plan for their property. And of course all that
would have to go through the regulatory agencies: the Corps of
Engineers, and--oh, there was oversight--! think EPA has
oversight over the corps, I think that's the phrase. It would
have to go to all these agencies.
Chall: The same as John Thorpe had co.
Delfino: Yes, and so Cargill waited until there was a development plan.
Then they decided, well, they were going to sell it and that's
when the Wildlife Conservation Board gathered together money from
various agencies and sources. Shall I list the sources of money?
Chall: Yes.
Delfino: The San Jose waste water treatment facility was converting a salt
marsh habitat into brackish habitat and they had a penalty and
that penalty amounted to over $6 million, so that money was put
together with mitigation money from CalTrans--because CalTrans
filled in wetlands in Milpitas and Fremont. Then there was
Proposition 70 money. And the Wildlife Conservation Board was
still scrambling for money. They were going to many sources and
some of those sources denied them the money. Oh, I didn't
mention earlier about the restoration: there's only $1.3 million
for restoration and the consulting company has said that's really
not enough because they plan to do some dredging to restore areas
of the Baumberg Tract to bring in bay water. So Wildlife
Conservation Board did buy the Baumberg property at $15,000 an
acre--I think it was $12.5 million.
Chall: That's right. You felt that was more than they should have paid?
Delfino: Yes, because the Oliver North property just across Highway 92 was
sold for $6,000 an acre—abandoned salt ponds. [November 2,
1995]
Chall: Now under the auspices of HARD? [Map 1]
Delfino: Yes.
Chall: That you think will be a snowy plover habitat?
Delfino: Oh, well, it is already. The snowy plovers have been nesting
there over the years. One thing, there are ravens nests in one
of those light towers by the Toll Plaza. And the ravens go down
and get the little snowy plovers.
332
Chall: Oh, so they're predators, right?
Delfino: Oh, yes.
Chall: What can be done about that? Nothing?
Delfino: I guess it's considered a protected bird.
Chall: The raven?
Delfino: The raven!
Chall: You've got problems.
Delfino: [laughs] So somebody has to work on this, and that would be Fish
and Wildlife Service — to do something about that raven.
Chall: Now, did you say the raven is also a protected species? I know
the snowy plover is.
Delfino: The raven is a bird that is—well, just like a song bird is
protected. But the raven is the largest songbird that we have,
[laughs] The raven makes kind of an old croaky sound.
Chall: So there will have to be another place for them to nest?
Delfino: I guess. That would be the thing, to destroy the nest, to
discourage their nesting there.
Chall: Well, that's an interesting problem.
Delfino: Well, it really is, yes.
Analyzing the Restoration Project
Chall: Now what about the general restoration project? Are you keeping
an eye on it?
Delfino: Well, it's interesting. WESCO [Western Ecological Services
Company] --it's a consulting company, it merged with a company
called RMI [Resource Management International] --and they're in
San Rafael or Novato. At RMI Steve Foreman was doing the work
and something happened. Somebody bought out RMI and Steve
Foreman now is with the consulting company, LSA, in Point
Richmond.
333
Steve Foreman, Carl Wilcoy. of Fish and Game, and some
landscape architects have held I think two meetings to inform the
public. Those were held at HARD's Interpretive Center. They
came up with some plans, but the problem is how do we get bay
water into the ponds where they want the bay water, and how do we
maintain a clean or clear bottom of the abandoned salt ponds,
mainly the old pickle pond—Leslie Salt's old pickle pond—and
keep vegetation out so the snowy plovers have a place to nest?
And the $1.3 million that's available for restoration is probably
not enough.
Chall: To do that extra work.
Delfino: And the latest news is that the hydrologist working with Steve
Foreman left to go to Colorado and now they have to start over on
some parts of the restoration plan.
Chall: Oh, really? Wouldn't the former hydrologist have had all this
information available?
Delfino: Well, the word is he left such a mess that it was not
understandable .
Chall: I see; the notes weren't clear?
Delfino: Yes, the plans weren't clear. And then the landscape architect
people or the landscape--! 'm not sure what title they have— came
up with a plan that showed trees. And we said, "What
foolishness, you don't put trees in an area where you have
nesting birds because the trees will attract predators!" You
know, they didn't think. That would be trees along the trail.
The landscape architect planners wanted trees along the trail,
probably for aesthetic reasons, but did not think about
predators.
Chall: I see.
Delfino: We need to keep trees out of the area. So RMI and Fish and Game
quickly scrapped that idea. Oh, it looks pretty on paper, but
you don't do those things!
Chall: So who at public meetings looks at this plan and says, "Wait,
don't do it"?
Delfino: Well, those of us from HASPA and the advisory council.
Chall: Otherwise they don't recognize that this is not--
33A
Delfino: No, they're probably urban planners and they're probably urban
landscapers.
Chall: Well, they may be, but you would think that people like Steve
Foreman and Wilcox would have taken a look and said no.
Delfino: I would have thought so, but maybe the landscape people work
separately and then came to this meeting--
Chall: Oh, and then presented their plans?
Delfino: Yes. I was sitting next to Sheila Junge--do you know Sheila
Junge? [spells] We both groaned and said, '.'What foolishness,
you don't put trees out there!" At a meeting last night, Friends
of the Alameda Wildlife Refuge--we' re a group of volunteers and
we're trying to save the least terns at the Alameda Naval Air
Station. Some of the people and the politicians of Alameda would
like trees out there and make it beautiful. Well, the reason the
least terns are there is because it's flat, you know, the air
field is just flat.
Chall: Yes.
Delfino: Of course the weeds have to be controlled, weeds grow through any
old crack in the pavement--
Chall: Yes, they will. [laughs]
Delfino: --in the runway. But anyway, see, the mentality is skewed when
it comes to certain birds. And that's why snowy plovers like the
Oliver North property because--
Chall: Yes, there's not a blade of — there's nothing there!
Delfino: It's so highly concentrated in salt. Well, we've already talked
about the purchase, but the process, the restoration still has to
come about .
Chall: But it will, assuming that they can put it all together in a
balanced way—which may require a lot of balancing. I guess at
the Interpretive Center [Shoreline], it took a while before the
ducks, and the terns, and all the birds that are there now, came
in.
Delfino: Oh, yes. Yes, well, it took ten years, I think, before clapper
rails came into the Cogswell Marsh. You had to have cord grass
high enough and thick enough- -well, not thick enough, but enough
of it to give them shelter.
335
Chall:
Delfino;
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
And that takes a while.
Oh, it takes a while, yes.
So that even with the planning for the Baumberg restoration, it
will take a long while before they can be sure that it works.
Oh, yes.
You never can be sure that it's going to work perfectly, can you?
Do you feel that you can from plans?
Well, mitigation--! don't know if any mitigation has been
successful, not even San Leandro's mitigation plans along the San
Leandro shoreline. Their shoreline, the north pond--they have
four big culverts but they don't monitor it. And bay water was
coming in and water was becoming stagnant at the eastern end of
the north marsh. And Frank and I would go out—well, we used to
go out quite often, but now that we've got these other problems-
other affairs along the shoreline—we told the consulting
company, "You've got stagnant water, the pickleweed is dying, and
there's a lot of algae. And algae tells you something is wrong."
Well, they don't have anybody in San Leandro to monitor their
mitigation. They'd love to have Mark Taylor— Mark is— you know
Mark Taylor?
No, I don't.
He is the Hayward Shoreline supervisor for East Bay Regional Park
District. He is excellent. He's not a biologist but he
certainly knows what's going on and how to resolve problems.
Well, I talked with Carl Wilcox at the Goals Project.
Are you active in the Goals Project?
Yes.
In what way?
Well, we have to respond for one thing. We're interested in how
and what they determine should be done with the salt ponds in the
South Bay.
They just came out with a report.
Yes, and one of their determinations is that the salt industry,
salt production should cease.
Chall:
Should cease?
336
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Yes, because the ponds--some of them are valuable for wildlife,
but the need for more marsh--there is a need for some ponds to
remain with shallow water.
You know, there is this proposal to expand—a plan to expand
San Francisco Airport--to fill in 400, maybe 500 acres of open
bay water. And the mitigation would be to buy out Cargill and
then you'd have thousands of acres.
I see. That's quite a mitigation!
Thousands, yes!
Cargill, as I understand it, has no intentions of selling.
Appendix B)
[See
Oh, you throw quite a few million dollars their way, they will
change their mind. I was going to tell you, I mentioned to Carl
Wilcox at the Goals meeting last Monday, a week ago, "Well, why
don't you just wait on the Baumberg issue until the San Francisco
Airport buys out Cargill? And then you can bring in water
through Pond 10 and not have to do all that dredging." "Oh," he
said, "Well, we can't depend on that." And I said, "Well, it
will come; it'll take forever--"
It might take forever and meanwhile they have a limit — they do
have a time when they're supposed to be finished.
I don't know.
I think they do. I don't know, but I think they do.
they're not going to wait forever.
And so
But it would be a shame to destroy what is a pickleweed marsh. I
mean, the last time we saw their plans, they were going to dredge
Mt. Eden Creek, which has pickleweed marsh. "Oh," they said,
"it's just not very good." Well, it looks pretty good to me!
Now, in terms of what looks good to you, [laughter] how do you
judge? And how do you then convince others?
Well, we were taking a shorebird census for San Francisco Bay
Bird Observatory and we had the Baumberg area. Phil Gordon--Phil
and Pat--had another portion of the Baumberg area, and Viola and
Ron Barklow had another section. So we'd count the birds that
were in that marsh.
And oh, another thing, probably there would be clapper rails
if the red fox were under control. A few years ago, I guess the
337
Wildlife Refuge people were doing—they had a permit to get: in to
do a clapper rail census at the Whales Tail because that is a
larger marsh. And they saw one clapper rail and four red foxes,
so you know that the red foxes are taking over. Now, the animal
damage control people--! 'm not sure if they went out there and
took care of the red foxes.
Chall: How would they do that? Traps?
Delfino: Trap them and--
Chall: Some want to shoot them?
Delfino: But mainly trapping. The cat people. Cats go out and that's a
problem.
Chall: Of course that was the whole problem with predators with respect
to Shorelands, too.
Delfino: Oh, John Thorpe had the vaulting varmint fence.
Chall: That's what you call it!
Delfino: Yes, it was a vaulting varmint fence and that was going to
control the predators. But you know, if you have roadways, you
don't close off roadways if you have through traffic.
Chall: You've got problems there. Well, all these things have to be
worked out. This is just nature, you know, the natural
environment .
Delfino: In the old days, you had more open water and that discouraged the
animals. Sure, foxes do swim but if you have a large area, maybe
a large pond--put some islands in ponds. And that's what I would
like to see: some of the levees opened up but leave sections of
levees so that those sections become islands.
Chall: I don't know whether they plan to do that or not, but that was
even one of John Thorpe's possibilities, as I recall. Islands,
but I'm not sure now just where.
Delfino: Yes, I can't remember where he was going to have these islands.
338
III ASSESSING THE CONSEQUENCES OF CITIZEN ACTIVISM
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
When you work as you're doing in so many areas and contacting the
agencies and making them aware of what you know and what you've
researched and what you feel about it, how effective do you think
you are?
Very effective. [laughter] I'm just thinking of the Citizens
Committee to Complete the Refuge. Although we are a loose
coalition—well, not loose — it's a coalition of various
organizations and various, maybe just individual citizens.
Private organizations?
of them?
What agencies? HASPA? Would that be one
Chall:
No, Ohlone Audubon Society.
And Golden Gate Audubon--
Save the Bay is part of it. I can just show you.4 We get the
information out: the Wetlands Alert or Action Alerts go out. We
get these public notices from the corps and we immediately do our
networking. I'm just going to show--
Catellus property is going to be developed. Catellus is in
Fremont and it's adjacent to the Warm Springs unit. The Warm
Springs unit was purchased from the Caruff property.
What property?
''Save Wetlands: Newsletter of the Citizens Committee to Complete the
Refuge. The front cover lists the endorsers. Copies of an Action Alert or
Wetland Alert on two corps' public notices—Cargill and Catellus and the
responses to the public notices for Ohlone Audubon Society are included
with this material. All of the material, donated by Janice Delfino, will
be deposited with the volume in The Bancroft Library. See also, pp.
339a,b; 340a, 346a,b.
339
The Value of Vernal Pools
Chall:
Delfino:
Delfino: C-A-R-U-F-F, Caruff property that was purchased by Fish and
Wildlife in 1992. It's in the Wildlife Refuge now, turned out
that it has vernal pools. Those are vernal pools. That's
downingia-- [showing a picture]
What's the name of that flower?
[spells] That's one of the indicators of a vernal pool. It's
probably the last one to bloom. The Contra Costa goldfields are
a vernal pool plant. It is an endangered plant species.
But anyway, here are all these agencies—they are not
agencies, but citizens that take an interest. Well, I'll get
back to the Warm Springs unit. They found out there are vernal
pools, tadpole shrimp, tiger salamanders--those are all
endangered. And the goldfields, the plant. Well, then here
comes this Catellus project. It has the same problems because
there are vernal pools and endangered species.
What was Catellus planning to build?
Home Depot and--
Oh, I see. Yes, a real development.
Oh, yes. But here are these vernal pools scattered all over
these 800 acres. And you don't put passageways for tiger
salamanders and some of these other creatures because they don't
know how to use them. Vernal pools are endangered.
And then we get this Baccarat property—a public notice from
the corps to develop thirty-two acres. Frank and I go down and
investigate and then we report to all our activists, "Go look at
the vernal pools." And they respond and say, "We cannot lose
these vernal pools." So that's how we're effective.
I see.
Then we write up our statement, rewrite it for Ohlone Audubon.
We've reviewed the public notice and we've investigated and then
we send our response. Our response is not only to the corps but
to the Regional Water Quality Control Board, to Fish and Game,
Fish and Wildlife, and we encourage them to look at this with
more care. And this time with this Baccarat property. Dr.
Michael Josselyn, do you know that name? He was a consultant
hired by the developer to look at this. He did not find vernal
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Society,
339a
June 6, 1996
Lieutenant Colonel Richard G. Thompson
District Engineer
U.S. Army Corps of Engineers
333 Market Street, 8th Floor
San Francisco, California 94105-2197
Via Facsimile and
Postal Service
ATTENTION: Regulatory Branch
SUEJECT: Eaccarat Fremont Development, Public Notice No. 23205S
Dated: May 11, 199£
Dear Colonel Thompson:
The Chi one Aucubon Society has reviewed the subject document and has
the following comments and questions.
Face 1. PROJECT DESCRIPTION: Since no information is provided in the
Public Notice (PN), what is the total acreage of the site? How rrany
acres are planned for development? There is no mention of a storm
water detention basin for the proposed development. Where will the
detention tasin be located and its acreage? The project as proposed
is net water dependent, and the alternative sites analysis that has
been provided in the PN is inadequate. At this point the information
on the project description is incomplete.
Face 1. ENVIRONMENTAL ASSESSMENT: Has the Corps of Engineers wetlands
del i .-.eat i on ceen completed? The information provided in this section
of the FN does not clearly indicate a Corps' Environmental Assessment.
The full extent of wetlands on the site has not been adequately
mapped .
Face 2. IMPACTS ON THE AQUATIC ECOSYSTEM: The consultant has been
less than fcrthricht in providing information on the extent of vernal
pools on the entire site. Information on vernal pool vegetation is
certainly lacking. Was there a reason for not finding vernal pool
indicator plants? It is difficult to overlook vernal pools throughout
the site, even casual observations indicate that many vernal pools
exist on site.
Before issuinc any permits, the Corps, U.S. Fish and Wildlife Service,
and California Fish and Game should survey the site for w:etlands of
special concern. If the permitting agencies are unable to evaluate
vernal cool plants and inhabitants, then an impartial expert
assessment should be done.
339b
Colonel
June 8,
Paae 2 .
Richard
1998
G. Thompson
The proposed mitigation site contains acres of vernal
mitication plan as proposed will destroy or convert
vernal pools. This is an unacceptable mitigation plan.
pools. The
the existing
Will there be a reconsideration of the proposed berm/buffer plan? Is
the 25 foot wide buffer adequate? Shouldn't there be concern that the
berm/buffers will cover up vernal pools?
The project site contains habitats for species other than endangered
species. Shouldn't these other inhabitants be of concern also? Were
surveys done for burrowing owls?
Due to the lack of a complete environmental assessment and the need ,
for additional information concerning vernal pools on the mitigation
site, an ENVIRONMENTAL IMPACT STATEMENT should be reauired.
Face 4. ALTERNATIVES ANALYSIS: NO FILL Section An independent
consultant should evaluate the wetlands on the site since wetlands
such as the vernal pools do not appear to be degraded as stated by the
developer's consultant. Secondly, in spite of the area being
surrounded by flood control channels and paved streets, the wetlands
are surviving and providing a more natural habitat than the
development would provide.
Since the project is not water dependent, the developer has failed to
provide an alternate off site location for the project.
FIGURE 2 MAP
The
scale of the map does not correspond to the scale
There is a need for adequate map and scale information.
2 indicates sampling points. What was sampled, what were the
who did the sampling, and what were the results?
car
Figure
dates of sampling,
Due to the inadequacy of information on this project, the Corps should
deny the developer's application permit for filling wetlands.
The Ohlone Audubon Society requests that the Corps hold a public
hearing on this pronect, and the responses to Ohlone's questions would
be appreciated.
Sincerely yours,
~£
Frank ah'd Janice Delfino
Ohlone Audubon Society
Conservation Section
18673 Reamer Road
Castro Valley, California 94546
Phone: (510) 537-2387
:c: Regulatory Agencies
340
Chall:
Delfino:
Chall:
Delfino:
pools. He's a botanist. He did a quick and dirty job. [laughs]
And once you write down the words vernal pool, of course
everybody gets excited because we know the endangered species
that are in vernal pools.
see.
.
Chall:
And so we sent copies of our letters to the various agencies.
They finally went out and looked at the place on July 1.
This July [1998]?
Yes, and then we had letters, copies of their responses. To the
corps we said, "Let's have a public hearing. Deny the permit,
but let's have a public hearing." So I don't know what's going
to happen.
But in the meantime the flood control people went to work at
doing all their work under emergency issues--! mean, not issues
but under emergency plans because of El Nino. They began to
dump — this is still this Baccarat--in the major vernal pool.
They began to dump on Baccarat property and cover up vernal pools
so not only did we have this consultant not finding vernal pools,
we had the flood control doing their so-called emergency work and
dumping on this property. And then they tried to scrape it, they
tried to pull it back.
I see. You pointed that out?
Opposition to "Re-creating" Creeks
Delfino: Oh, yes, yes. So that is where we are so effective, when we get
these public notices. Take for example Toroges Creek. Do you
know the Avalon Homes above [Highway] 680 with all the slides,
the mud slides?
Chall: Oh, yes. How do you spell Toroges?
Delfino: [spells] They want to put in a golf course. Well, here are
these hills. They wanted to scrape the hills, fill the creek,
and then make it a golf course. So we say, "You don't do that.
You don't fill the creek because there are frogs and salamanders
--" Well, again, with all these Action Alerts. We went to the
water quality board and protested and then hired Roy Gorman,
attorney Roy Gorman to represent us. When we went to the state
Water Resources Control Board executive director Walter Pettit
340a
Golden Gate Audubon Society
2530 San Pablo Avenue, Suite G • Berkeley, CA 94702 • Phone:(510)843-2222 • Fax:(510)843-5351
Americans Committed to Conservation • A Chapter of the National Audubon Society
ACTION ALERT !!
ACTION ALERT!!
They've Destroyed Our Wetlands, Now They Want to Destroy Our Streams
Toroges Creek, Gateway, Windemere. What do these names have in common? They are all
sites where proposed golf courses threaten to destroy our native streams!
Toroges Creek is located in the hills above Fremont. It provides a home for many species
including the tiger salamander, the loggerhead shrike, and the black shouldered kite as well as
several bat species. Oaks and many other native plants can be found there.
In order to create a "championship class" golf course a developer, and the City of Fremont,
want to bury over !/2 mile of this wonderful stream, and the 396 acres of grasslands that surround
it, under 70 feet of engineered fill. Good-bye stream, good-bye wildlife, good-bye nature and
goodbye to life.
That's not all, they then have the nerve to say that they'll recreate that stream so that it will be
as good as new. Fat Chance! Such a massive mitigation effort has never been attempted. The
only similar attempt took place in Montana and after 3 years that sadly reconstructed Montana
stream still has essentially no wildlife value.
In the Gateway Valley in Orinda, Brookside Creek winds for 5 miles through some of the
most beautiful woodlands in the East Bay. DOOMED by a proposed golf course/ residential
housing development unless we act.
In Windemere seven miles of streams are proposed for devastation in order to satisfy this
seemingly endless need for golf courses.
Can we really afford to have all of our streams disappear under the developers' backhoe.
California has already lost over 98% of its streamside (riparian) habitat. It's time to say enough!
And we can do it! Doublewood is the first of these projects to go through the permit process.
Our Regional Water Quality Control Board could have denied this project and its Executive
Officer did recommend denial, but the Regional Board Members tied on the vote. Now the State
Water Resources Control Board gets to decide. If we can show enough public opposition we
have a good chance of having the Doublewood Project denied. If Doublewood is denied we
can stop the other projects, too!
The State Water Resources Control Board is holding a Public Hearing on
the Doublewood project on Friday, April 17, at 9 AM in Oakland at the
BART headquarters, located at 800 Madison Street, right above the Lake
Merritt BART station.
Please come. You don't have to speak, they are going to limit the number of speakers, but we
need to show that a lot of people care! We'll have buttons and signs for you to hold to show
which side you're on. We have a chance to win this one but only if we can get enough folks
showing the State Water Board how important our streams are to us. See you there!
For more information call the Golden Gate Audubon Society Office at 510-843-2222.
Thanks.
341
[spells] --we protested before him that this is an unproven way.
You can't mitigate for that type of destruction and if you allow
that there will be the Blue Rock Country Club in Hayward, the
Orinda Gateway project, and the Windemere--all these involve
filling creeks for golf courses. Mr. Pettit, just Monday—or
Friday, I guess—denied their plan.
Chall: Now, if you hadn't been on it, do you think that they would have
paid attention?
Delfino: The developer said there was only one person in Fremont that was
against this; everybody likes this plan.
Delfino: The only person was Janice Delfino?
Chall: No, no, no, I was not in favor, but the Fremont person is James
Gearheart .
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Florence La Riviere was the one who informed us.
know what I wanted to show you. [pause]
Actually, I
You're keeping quite a few good records here, aren't you? And
very carefully.
There are all these other developments. Gateway. Do you know
where Gateway is? You go through Caldecott Tunnel from the
Berkeley-Oakland side. You know the Caldecott Tunnel?
Yes.
And then you see that big hillside; on the right-hand side that
is Gateway Valley.
I really travel so rarely through there that I probably haven't
noticed.
Delfino: Well, that's another creek—miles and miles of creek— the
Brookside Creek— and other little creatures will be covered up.
There is the same plan to cover up these creeks and re-create- -
that was it—re-create these creeks. Well, there are red-legged
and yellow- legged frogs and salamanders and who knows what else
there. And so those of us who worked against Toroges— the
filling of Toroges Creek—go over and help them, inform them.
Some of those people in Orinda didn't know even what a public
notice was!
Chall: You must be all over the place, Janice.
342
Delfino: Well, you know, you hate to see it happen. And if it happens, if
Toroges Creek is re-created, then it would be easy to re-create
all those other creeks, so you have to help those other people.
And they learn very fast!
Chall: Yes, but you have to set the precedent.
Delfino: Yes, poor Florence is just so busy trying to help others.
Toroges Creek drains into the Bay.
Chall: Oh, I see.
Delfino: Well, the one in Orinda drains into San Pablo Reservoir. And I
guess the overflow goes into the San Pablo Bay, but it's the same
thing; you have to help each other on these projects. It's a
matter of getting the word out and going to meetings. Golden
Gate Audubon Society has improved San Leandro Bay in Oakland, you
know, their new project. That was mitigation for the Port of
Oakland filling in bay water by the airport.
Chall: Yes, is that the one about which there was an article in the
newspaper just the other day?11
Delfino: Yes, yes.
Chall: Near Arrowhead Marsh, not far from it? [Martin Luther King Jr.
Shoreline Park]
Delfino: That's right. Save the Bay and Golden Gate Audubon. I'm not
sure who else. I should say for us, the Delfinos--! don't think
we were that involved.
Roberts Landing: The Toxic Soil Issue
Chall: You were involved a long time ago in Roberts Landing?
Delfino: Oh, yes!
Chall: And that, according to what I've read in the newspaper, was
revised considerably as a result of public pressure?
Delfino: Malca, if we had not taken a sample of soil from the old Trojan
Powder Factory site and sent it to the lab at our own expense--
30akland Tribune, June 11, 1998.
343
Chall: You and Frank?
Delfino: Yes. We were so determined that somebody find out that there was
contamination, hazardous waste on that site. We then took our
photos--we went to Pacific Aerial Surveys and bought aerial
photos and then submitted information to the Department of Toxic
Substance Control--DTSC--and finally convinced them to re-look at
this property. They had given clearance to Wayne Valley, to
Citation Homes, way back. I'm sure Citation spent millions of
dollars to clean up a place that they said was squeaky clean,
that it was washed by rains and tides from the Bay. They sent us
a threatening letter, they were going to sue us.
Chall: Really?
Delfino: Well, this was 1992--I can't remember—oh, no, earlier than that!
Yes, sent us a threatening letter and that made us work even
harder.
Chall: I see.
Delfino: Yes, you get a letter like that--
Chall: You mean they threatened you with a suit?
Delfino: Yes, if we continued what we were doing. We had to prove that
what we were doing was right and that there were hazardous
wastes. Then we interviewed Henry Stockfleth. [laughs] He had
worked there. He was the main nitrater at the Trojan plant. He
made the stuff to make explosives. And we interviewed him before
he died. He died at the age of ninety-two. He told us a lot,
told us where the water wells were. Then we were told it was our
civic duty that we should tell Citation and the city where the
water wells were. And we said, "You pay us $100 an hour and we
might consider it, we're consultants." [laughter] But it took a
lot of effort.
Chall:
Delfino:
Actually, then you and Frank did it on your own?
and scooped out some soil?
You went out
Well, we took a teaspoon of soil in an area where nothing was
growing. And it was the discharge from the factory; they
discharged their acid and nothing grew. I mean, we would walk
the area and look at things and try to decide what went on. By
this time, the factory had been demolished. The Trojan Powder
Factory closed in 1963 after their last major explosion. Many
explosions had occurred since the factory was established in
1906.
344
Chall: Yes, long ago.
Delfino: Yes. And there was an ice plant that was just black and we knew
that there was something in the soil that caused that plant to be
black. You know, plants don't die black. [laughs] And so
that's where we took the sample and the pH was pretty low. [tape
interruption]
[To continue the story about the Trojan Powder Explosive
Factory site where Citation Homes planned to build homes:6
Frank checked the soil sample to determine its pH. With a
low pH, we felt it necessary to have a reputable laboratory
determine the pH of the soil and have a complete soil analysis.
We sent the soil sample to Curtis & Tompkins Analytical
Laboratories in Berkeley on October 11, 1990. The results
indicated there were metals in this small sample that should be
of interest to the Department of Toxic Substances Control.
In addition to the soil analysis, Frank and I decided to
visit the file room at DTSC. We were asked what company we
represented. We said we are with Ohlone Audubon Society. The
person at the desk said Audubon people were harmless, and we were
allowed to review the Trojan Powder Factory file without going
through the usual process. I took notes on what we read in the
file. We returned a second time to the file room, this time to
make copies of some of the information we believed was very
important .
We felt we had enough information on the hazardous wastes
where Citation Homes planned to develop. Now it was time to
present our findings to DTSC. After many meetings with DTSC
staff, it was determined that indeed a thorough soil cleanup of
the old factory site must be completed before any homes could be
built.
Another of our concerns has been the lepidium or pepper weed
plant growing on the San Leandro shoreline. We were told by
Peter Baye of the Corps of Engineers that this invasive non-
native weed would eventually take over the pickleweed and other
native plants. For five years Frank and I have manually pulled
out this lepidium. This summer we removed lepidium plants in the
LaRiviere Marsh at the Don Edwards San Francisco Bay National
Wildlife Refuge.]
6This account was written by Janice Delfino. I had accidentally left
the pause button depressed when she returned with the Alert data. --M.C.
345
Citizens for Alameda's Last Marshlands [CALM]
Chall:
Delfino:
Now it's on, it's recording,
asked you what CALM means?
We were talking about CALM. I
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
It stands for Citizens for Alameda's Last Marshlands. And that
means not just the city of Alameda but Alameda County. It
started, I believe, when the Port of Oakland began to fill in by
the airport and people like Leora Feeney and Jo McLellan were
very concerned. We were not part of the CALM, we didn't become
members of CALM until 1987. It was a loose coalition of people.
And we used that name as an organizational name in San Leandro
for Roberts Landing.
So it goes back a long way.
Yes, I think CALM started in 1985. That was when Leora Feeney
and a few others decided that they needed a title as another
organization. There were Save the Bay and Golden Gate Audubon
and they thought we needed another organization to fight the Port
of Oakland for filling the Bay. And so then when we write The
Citizens Committee to Complete the Refuge newsletter [Save
Wetlands] , we write under the title of CALM. But now when we
write for the newsletter our concern is with the least terns and
the Alameda Naval Air Station.
I see. And they put out a little magazine?
Yes, the Citizens Committee to Complete the Refuge puts out a
newsletter twice a year and that's how we make money to do what
we do--to pay for stationery, to pay for stamps, to send out the
monthly meeting mailing, and to send the Save Wetlands newsletter
to interested people. It's a 501(c)(3) organization.
So people pay to belong to CALM? Or pay for the newsletter?
No, CALM does not have—we're not a 501(c)(3). We're an
affiliate of the refuge committee, which means we are under the
umbrella, so to say, of the Citizens Committee to Complete the
Refuge .
CCCR [Citizens Committee to Complete the Refuge] finances
are handled by Peninsula Conservation Center Foundation--PCCF--
the Citizens Committee to Complete the Refuge is the umbrella
organization. And then all these other organizations: the Tri-
346
city Ecology Center, Ohlone Audubon, Golden Gate Audubon, Sequoia
Audubon, Santa Clara Valley Audubon, and League of Women Voters
in Fremont- -they 're all under Citizens Committee to Complete the
Refuge.
The Suit Against Leslie (Cargill) Salt Company
Delfino: You were asking earlier about the BayKeeper.
Chall: Yes, 1 was.
Delfino: All right. What happened was we had an opportunity to respond to
BCDC's environmental assessment — and that was in 1994--on
Cargill 's levee maintenance and dredge lock activity. Cargill
needed a permit to continue mucking around in the Bay, [laughs]
and their ten-year permit had expired the year before or maybe
two years before. Anyway, so we asked about this dump: "Did
Cargill have a permit to dump on public land?" The public land
meaning land that's in the wildlife refuge.
We didn't get a response that was satisfactory. Then the
corps sent out a public notice on the same issue of Cargill 's
levee maintenance and dredge lock activities, so of course we
again asked the same questions. And in fact we thought maybe
that area should be opened up for mitigation, to take the dump
out. But Water Quality [Control Board] --none of the agencies
would tackle it. None of the agencies would do anything about
this dump.
So then we decided to go to the BayKeeper. We took the
BayKeeper and two attorneys to the refuge. They sailed out at
Jarvis Landing—in the old days that was the only way to get into
the Bay, was at Jarvis Landing in Fremont. They took their boat
and went way out to Newark Slough and then out into the Bay and
then up Mowry Slough to the dump. And they realized that this
was something that should not exist, so they brought suit.
BayKeeper.
But they needed an agent--! mean, an organization—in the
area and so the Citizens Committee to Complete the Refuge joined
with the BayKeeper.
Chall: But you were the primary whistle blower?
Delfino: The whistle blower. And it's still going on.
Newsletter Issue 24
346a
ENDORSERS
Bay Area Action
Jayiands Conservation Committee
California Hawking Club. Inc.
California Wate^ow! Association
California Wildlife Federation i
Citizens lor i Betie' Environment |
Committee for Green Foothills
Defence's of Wildlife
(East Bay Green Alliance
FeoeratiO1" of Fly Fishers
Fnencs o' Cha'ieston Slough
Fnends ot Redwood City
Gotaen Gate Audubon Society
Green Bel; Alliance
Leacje c( Wo^e1- Voters of
fie Eden Area
Uscje c' Wonen Voters Ot
the Fremont Area
Leacue of Women Voters ot
Palo Alto
Leacuf c' Women Voters of
S'ouf. Scr Mateo County
o".a Fhfta Chapter Sierra Club
MoC'O'f Audjbor, Society
Ms'in Autiubor Society
Mission C'tek Conservancy
M:-ip Lake Committee
Mount D>ar>r Aud'jhor Society
Nape-Soiano Audjbor Society
Nstve P.o" Society Santa
Cara Va'iey Chapter
Ncrth Bav Wetlands Coalition
Ohior* AuCubon Society
Peninsula Conservation Center
Foundation
f nmg and Conservation League
San F'e'.C'SCC Bay Chapter.
Sierra Club
Se Clara Vai.ey Audubon Society
5a ian Franc sec Bay Association
Seqjo;a Audubon Society
South Bay Wetlands Coalition
Sportsmen lor Equal Access
Tn-City Ecology Center
J Trout Unlimited
Un'ted Anglers of California
Urban Creeks Council
AFFILIATES
Citizens tor Alameda's Last
Marshlands
ill s tor Open Space in Alvaradc
Friends ot Foster City
ave Our South Bay Wetlands
Save Wetiands in Mayhews
*' <:ng Wings/Pintail Duck Clubs
MINTED ON RECYCLED PAPER
BayKeeper and the Citizens Committee Stand
up to Cargill in Court and Win!
Proved Cargill contaminating Bay with
industrial waste
®
Janice and Frank
Delfino vital to
Action!
• Special Standing of Janice
Delfino qualifies BayKeeper
to participate
• Summary Judgment in our
favor, throwing Cargill's
defense out of court
• Penalty trial to follow
In a recent decision, BayKeeper and the Citizens
Committee to Complete the Refuge were aw arded a
Summary Judgment in favor of the Bay and its wildlife by
Judge Charles Legge, Northern California District, Federal
Court, after a thoughtful and thorough examination of the
evidence. At issue was the long-standing existence of a
Cargill dump on Mowry Slough in southern Newark.
The Delfinos bring to their work the finest qualities of
citizen activism. They are persistent and passionate, but just
as important to their success is their habitual keen observ
ing and meticulous note taking, along with their use of
(Continued on page 2)
A f«01(C)(3) Organization under the Peninsula Conservation Center Foundation
Scute. weilct+icU. is the
semi-annual Newsletter
of the Citizens
Committee to CompIeU
the Refuge, an all-
volunteer organization.
The mission of the
Committee is to save the
Bay's remaining
wetlands by seeing them
placed under the
protection of the Don
Edwards San Francisco
Bay National W ildlife
Refuge.
Membership is open to
am one interested in
saving wetlands, but a
tax-deductible
contribution of $10 per
issue would be
appreciated to help
cover operating
expenses.
Published twice yearly
at 453 Tennessee Lane,
Palo Alto C A 94 306. Tel
(650) 493-5540; fax (650)
494-7640; e-mail
florence<? refuge.org;
net http/ /www.
refuge.org
Florence LaRix lere
Chairperson
Tel (650) 493- 5540
Margaret Lewis
Secretary
Tel(510)792-b291
Anne Harrington
Treasurer
Tel (650) 948-6020
PhiJ LaRiviere
Editor
Tel (650) 493-5540
resources-consultants, photographers, and aerial and surface observers
Several agencies refused to act on the Delfino's concerns, but Mike
Lozeau, the BayKeeper, listened to them , found merit in their cause and
encouraged his lawyers to take the case. Then, as he put it, his
"investigators gathered samples from waters adjacent to the moonscape
of gray hilk created by Cargill, analyzed them and tound evidence of
highly toxic heavy metals ... .around the dump, where sensitive
shorebirds in the refuge swim and feed." Those analyses demonstrated
the presence of chromium, copper, lead, mercury, nickel, selenium, and
zinc.
The record shows that our legal representatives understood the facts of
the case and presented them convincingly. In addition, they were
imaginative in the methods they used to explain the site and its biological
values to the court. Photographs, videos and expert consultants served to
reinforce their legal arguments.
ludge Legge declared that the factual evidence was so clear that there was
no reason to go to trial. He stated that Cargill had dumped industrial
w as te into a pond on the levee without proper permits (for over 30 years,
according to Cargill!). With regard to "Waters of the United Stales", he
ruled that this pond meets the regulator) standard of use by migratory
birds.
( argill attorney Edgar Washburn's definition that Bay water wasn't water
after a change in the dissolved solids, and thus couldn't possibly be
considered a "Water of the L S.", was not accepted by the court.
In another ploy, Washburn argued that RayKeeper and none of the others
had standing to sue. The judge ruled otherwise, saying that Janice was
harmed by the presence of the illegal dump, that the Pelfinos had worked
on the establishment of the Refuge, had volunteered untold hours on its
behalf and were dedicated bird watchers. Only one person with
standing is required, and since Innice is a member of the BayKeeper
organization, it had standing also.
By law there will be a penalty assessed against Cargill. Our attorneys
triumphed a second time with the judge's ruling that Cargil) could not
delay the penalty' trial until after their appeal had been heard. The
possibility of settlement was rejected by Mr. Washburn, so the penalty
trial is set for July 13.
The Delfinos give full credit to the commitment and skill of the three
attorneys who served pro bono: Suzanne Bevash, Danielle Fugere and
Helen Kang. The latter, with Eb Luckel, made the courtroom presenta
tions to Judge Legge. To us uninitiated, the legal demands made on our
law\ ers w ere outrageous, but the reward for integrity and hard work
came with the announcement of the Summary Judgment. Q
* * *
Carg
Inside
2 Cargill Lawsuit
3 S . F. Airport Expansion
4 The North Bay Scene
5 dealing Habitat on Treasure Island
6 Action at Charleston Slough
7 Double Wood. Catellus and Sonoma
B A Few South Bay Topics
9 Mitigation Banks Often Rob Us
10 A Word to the Faithful
1 1 Other Wetland Matters..
2 Save Wetlands * S ummcr 1998
347
Chall: Yes. I thought it was finished, but I realized reading the paper
the other day that it hadn't.
Delfino: Yes and you will read that —
Chall: Yes, in your Save Wetlands [Summer 1998] there.
Delfino: Yes, so that would give you some idea. Judge Legge--Charles
Legge--war, the same judge that ruled in the Newark-Coyote case.
Cargill v. Corps concerning the site known as the Newark-Coyote
case. Yes, we were distressed—at least I felt distressed—when
we realized that he was going to be the judge. But he ruled in
our favor on this — on the dump— in our favor twice. He said that
I had standing because we had helped to establish the refuge in
the beginning and we were volunteers and we work— we contribute
time, effort. BayKeeper didn't have standing because the judge
determined that he, BayKeeper Mike Lozeau, went out for justice,
for litigation purposes. [laughs]
But there are two women attorneys, very thorough and they
worked so hard on this.
Chall: And do they do it pro bono?
Delfino: Yes.
Chall: I wondered about that because that's very expensive.
Delfino: Oh, my goodness, yes. And of course they had to hire consultants
and those consultants are very expensive.
Chall: Yes, they are.
Delfino: And so that's part of the problem. Cargill puts forth motions-
attorney Ned Washburn puts forth motions and our attorneys then
have to respond. And this is just going on.
Now the next— supposedly this September 28 the judge will
decide on the penalties.
Chall: Oh, I see.
Delfino: Now what Florence [La Riviere] told me this morning on the
telephone was that Water Quality is going along with the silt
fence, not remove the dump but just put up this silt fence. And
that's a terrible, terrible idea.
Chall:
It's no answer to the problem, is it, as far as you can tell?
348
Delfino: Oh, no, it's going to cost Cargill money to haul that dump away,
but it's on public land!
Chall: It's up to the judge now to make a decision or is there more?
Delfino: Well, Cargill is doing everything to cause the judge to say, "You
don't have to move the dump." I think that's what it is. "You
don't have to remove this dump." Cargill complained that they
couldn't take their waste out. These are the factory wastes.
The dump is made up of factory wastes and other things that they
put in there, because there was a refuse dump. Ned Washburn
wrote that. And I don't know why he even wrote that to begin
with- -in the beginning it was a refuse dump.
Chall: Are they still dumping or have they had to stop?
Delfino: Not this year. Or not last year. They didn't dump.
Chall: So they have not been reissued a permit, in other words?
Delfino: They never had a permit. Oh, they had to go get a permit.
Chall: Which means they are not allowed to dump?
Delfino: Well, they've applied for a permit and that gives them something
--I'm not sure what it is. The judge said you have to get a
permit, so they go ahead and make an effort to get a permit, but
there are other problems involved.
And Water Quality apparently is very weak in this issue.
And that's why I have to talk with one of the staff persons and
ask him why. "Why? What is the value of this silt fence?" I'll
talk with Frank first about it, but I mean, they're a public
agency, they can't just favor Cargill! And that's what it sounds
like.
Save San Francisco Bay Association. The San Francisco Airport,
and Other Matters
Chall: With respect to the Save the San Francisco Bay Association--!
guess you are members of the association?
Delfino: We are members, yes. But we were concerned when they went along
with Bay Planning Coalition—those are people who are lawyers for
wetland developers. They are wetland developers, Port of Oakland
people, and they know very little about the south end of the Bay.
349
In fact Save the Bay did not even respond to the BCDC and corps
issue on Cargill's levee maintenance. So they know very little
about our south end of the Bay.
Chall: Do you have the feeling that they're going beyond Saving the Bay
as it was earlier conceived?
Delfino: Well, one of the things is they're against filling 400 acres to
open up thousands of acres—you know, improve the tidal action.
Chall: Now what are you talking about?
Delfino: Oh, the San Francisco Airport. The expansion would fill in 400
or 500 acres at the widest part of the Bay, open Bay, the most
productive part of the Bay is the tidal marshes and the shallow
water areas in the south end of the Bay. And Save the Bay—their
mission has been "No fill in the Bay"— although their mission,
also, if you read their mission statement, it is to restore the
Bay.
Chall: Yes.
Delfino: All right, restoring the Bay means improving tidal marshes. So
we had a meeting with them a couple weeks ago and they said,
"We're going to have a very difficult time convincing our board
of directors that filling the Bay for the airport and buying" —
see, the airport has the money to buy Cargill.
Chall: But now what is the stand of Save the Bay on this?
Delfino: They're not in favor of filling for the expansion of the airport.
Chall: They're not in favor?
Delfino: That's right. At least the staff people.
Chall: What is your position?
Delfino: Fill that area and buy out Cargill to open up thousands of
acreage .
Chall: 1 see.
Delfino: I mean, here are 500 acres and we get thousands of acres.
Chall: Can you be sure of that? I mean, nobody's sure of what Cargill's
going to do. [See Appendix B]
350
Delfino:
Chall:
Delfino:
Chall:
Delfino;
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Well, if Cargill becomes a willing seller--. Oh, they said
they're not going to sell, "Our salt is SD important." But for
the Cargill Company—they bought this property for real estate
values, not for salt! They only make a little money out of salt.
But no, I'm in favor--. I mean, sure, if it meant just filling
the Bay and not doing anything about South Bay, then that would
be different, but when you can open up more bay water to improve
tidal action and create acres of tidal marshes, then 1 am in
favor of buying out Cargill.
But your opening up more bay water is dependent upon Cargill 's
sale, is that right?
Yes, oh, yes.
That is so uncertain; but you would wait, then? You would play a
waiting game, a holding game?
Well, then they can't fill until they can mitigate.
And so the airport is on hold, is that right?
Well the airport is moving forward. They have consulting
companies doing feasibility studies and all that, and somebody
would have to appraise Cargill 's properties — and not sell for
$15,000 an acre.
So this is all sort of in limbo?
ahead, but nothing is certain?
I mean, everything's moving
Yes, and the Sierra Club people are against it.
Against?
The filling. But they would leap for opening up more of
Cargill 's property. And you can't do that unless you buy out
Cargill, and the only way you're going to get that much money--.
It would be a lot of money to buy out Cargill, but it's worth it!
And who will buy it out?
The San Francisco Airport.
The San Francisco Airport?
They have the money! They have millions and millions and
millions of dollars. I have been disappointed with Barry Nelson
as executive director of Save San Francisco Bay Association. I
don't think Barry is involved with the issue of the San Francisco
351
Chall:
Delfino:
Chall:
Delfino:
Chall:
Delfino:
Airport expansion. He was a very poor executive director, and we
strongly disagreed with his dealings with Will Travis of BCDC
concerning the purchase of Cargill's North Bay salt ponds, and
the Sonoma Baylands Project.
Cargill asked Save the Bay to write a letter recommending
Cargill for the National Wildlife Federation Environmental Award.
Now, through various means we got that information. Save the Bay
wrote a letter recommending that Cargill get this environmental
award. Well, we thought it was one of the worst companies for an
environmental award. We're members of National Wildlife
Federation, so we immediately phoned, [laughs] "If you get
information from Save the Bay concerning Cargill, please don't
award this company." And Barry Nelson was the one who told Marc
Holmes to write the letter. I guess that capped it. That
probably capped it for me. He told him to write the letter and
Marc Holmes went ahead.
And so of course in the meantime we had found out and we
sent in information to National Wildlife Federation telling them
how terrible Cargill was and what they were doing going against
endangered species. And you know, there was another lawsuit that
Cargill was involved in--not our lawsuit—so National Wildlife
Federation decided they would give no awards. That took care of
that.
So they don't give awards, is that correct?
Apparently. We had a letter saying that they discontinued that.
I can see that they could get into difficulties, particularly
when they don't know what's going on locally, everywhere in the
United States, and people have varying points of view on issues.
That's right. And we sent them information, you know, articles
and other information that told them what a poor record that
Cargill had concerning the environment.
You are not at all sympathetic in any way to whatever Cargill
does?
Well, they claim they work with the Wildlife Refuge. The
agreement, when the property was purchased, was that they could
continue making salt. Rick Coleman [former refuge executive]
wanted the dump out of there. In fact, that was the first time I
knew that there was a problem. And that goes back to the late
eighties: "Get that dump out of there." And Cargill said, "We
operate on this refuge; we have the privilege of the signed
352
agreement that we operate and we can dump there."
things have been kind of nasty.
Other little
Chall: So they're a thorn in your side and you're a thorn in their 's for
sure! [laughs]
Delfino: Bob Douglass' daughter-- Jennifer Nations — she1 s married—sent a
fax to Florence [La Riviere] --wanted information on the Citizens
Committee to Complete the Refuge problems we'd had with Cargill.
She was at one of the universities in Texas and she wanted to do
a paper on that subject. She was taking a class — she's an
environmentalist, much against her own father's ideas-- [laughs] --
so how does this story go?
She had to do this paper for a class on the environment.
Florence asked if I would help her. So I gathered all
appropriate information. I knew who she was because on her fax
it had Jennifer Douglass Nations, but I did not let her know that
I knew who she was. Frank and I bent over backwards to provide
her with information. Then she would send us updates on her
paper and maybe some more questions. Then she made a
presentation before her class. I guess she was getting a
master's degree. She sent us a copy of her paper with an
"Excellent" on it. The professor gave her an "excellent."
So I phoned and complimented her and then after our
conversation I said, "Jennifer, I've known all along who you
really are." [laughs] And I said, "Florence and I both knew who
you were, but we felt so kindly toward you and wanted you to do
so well." She had been a volunteer at the refuge and Rick
Coleman had helped her along. So Jennifer and I had a good laugh
about that. That's about enough. [laughs]
Chall: Well, we've covered pretty thoroughly your career as an activist
for the environment. Thank you very much.
Transcribed by Amelia Archer
Final Typed by Sara Diamond
353
TAPE GUIDE--Baumberg Tract Oral History Project
INTERVIEW WITH HOWARD COGSWELL
Interview 1: September 6, 1996
Tape 1, Side A j
Tape 1, Side B 18
Interview 2: July 17, 1998
Tape 2, Side A 29
Tape 2, Side B 41
Tape 3, Side A 53
Tape 3, Side B 65
INTERVIEW WITH JOHN THORPE
Interview 2: February 28, 1998
Tape 3, Side A 81
Tape 3, Side B 91
Tape 4, Side A 103
Tape 4, Side B not recorded
Interview 1: May 10, 1997
Tape 1, Side A 108
Tape 1, Side B 119
Tape 2, Side A 128
Tape 2, Side B 137
INTERVIEW WITH ROBERT DOUGLASS
Date of Interview: February 24, 1998
Tape 1, Side A 156
Tape 1, Side B 166
INTERVIEW WITH STEVE FOREMAN
Date of Interview: March 11, 1998
Tape 1, Side A 179
Tape 1, Side B }gg
Tape 2, Side A 189
Tape 2, Side B 208
INTERVIEW WITH KAREN WEISSMAN
Date of Interview: November 4, 1997
Tape 1, Side A 219
Tape 1, Side B 229
Tape 2, Side A 239
Tape 2, Side B not recorded
INTERVIEW WITH PETER SORENSEN
Date of Interview: June 10, 1998
Tape 1, Side A 249
Tape 1, Side B 259
354
INTERVIEW WITH CARL WILCOX
Date of Interview: July 20, 1998
Tape 1, Side A 274
Tape 1, Side B 284
Tape 2, Side A 294
Tape 2, Side B not recorded
INTERVIEW WITH ROBERTA COOPER
Date of Interview: October 14, 1998
Tape 1, Side A 301
Tape 1, Side B not recorded
INTERVIEW WITH JANICE DELFINO
Date of Interview: July 21, 1998
Tape 1, Side A 317
Tape 1, Side B 329
Tape 2, Side A 341
Tape 2, Side B not recorded
\-
'lS35
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359
GLOSSARY--Baumberg Tract Oral History Project
BAY CONSERVATION AND DEVELOPMENT COMMISSION (BCDC) : Act passed by the
California legislature in 1969. State agency responsible for protecting
surface area of the Bay and providing access to the Bay and shoreline.
Mandate authorizes filling or dredging only when public benefits clearly
exceed public detriment from loss of water areas; limited to water
oriented uses su^h as ship and air ports, recreation, wildlife refuges.
If development plans affecting San Francisco Bay do not meet these
standards, permits may be denied.
CALFED: A joint 32-member state-federal planning organization
established in 1995 to develop a solution to water and environmental
problems of the Bay-Delta [San Francisco Bay-Sacramento-San Joaquin
Delta]. Its three alternative solutions are now being debated by
interested parties throughout the state. Program elements include:
storage, conveyance, levee protection, water quality, ecosystem
restoration, water use efficiency, water transfer, watershed management.
CALIFORNIA DEPARTMENT OF FISH AND GAME (CDFG) : A department within the
state Resources Agency with oversight of California rivers, streams and
lakes. Trustee agency responsible for management, enhancement, and
protection of fish and wildlife resources.
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) : Act passed by the
California legislature in 1970. The provisions of the Act were extended
to private projects by the Friends of Mammoth legal decision in 1972.
Administered by state and local governmental agencies; overseen by the
state Office of Planning and Research. Statute requires that all
projects over a certain size as defined in the State EIR Guidelines must
be reviewed to assess their environmental impact. Legislation which
created Environmental Impact Reports (EIR).
CLEAN WATER ACT (SECTION 404): Act of Congress, 1972, primarily to
authorize the U.S. Environmental Protection Agency (EPA) to regulate
water quality through the restriction of pollution discharges. Section
404 specifically delegates certain authorities to the U.S. Army Corps of
Engineers (Corps) and EPA relating to the discharge of dredged or fill
material into waters of the United States and adjacent wetlands. The
Corps is the permitting agency for permits issued pursuant to Section
404.
CVPIA: Central Valley Project Improvement Act. Act of Congress, 1992.
Specifically allows transfers of CVP water from CVP areas to areas
outside the CVP service area. Seeks to balance Central Valley Project
water use among California farmers, urban water districts, fish and
wildlife.
360
ENDANGERED SPECIES ACT (ESA) FEDERAL: Act of Congress, 1973. Law
designates species for protection based on their threat of extinction as
a consequence primarily of economic growth and development. If a
species is listed as endangered or threatened under the federal Act,
public agencies and private developers must obtain a permit from the
U.S. Fish and Wildlife Service upon proof that their project will not
jeopardize the survival or recovery of the species in the wild. A
"jeopardy opinion" issued by the USFWS is an automatic denial of the
project .
SECTION 7, ESA: Consultation process between a federal agency and
the USFWS that authorizes take of listed species incidental to
lawful governmental activities provided that such take is done
pursuant to reasonable and prudent measures that the Secretary of
the Interior considers necessary or appropriate to minimize such
impact. Results in a "Jeopardy" or "Non- Jeopardy" Opinion.
INCIDENTAL TAKE: According to the U.S. Code, take incidental to
and not the purpose of carrying out the purpose of an otherwise
lawful activity.
SECTION 10 (a), ESA: Permit (Incidental Take Permit or ITP) issued
by the director of the USFWS to a private entity or a non-federal
governmental agency to allow the incidental take of a listed
species. The take must be subject to an approved Habitat
Conservation Plan (HCP) . Counterpart of the Section 7 process on
private lands or lands with no federal jurisdiction. See also
TAKE; TAKINGS
ENVIRONMENTAL IMPACT REPORT (EIR) : See California Environmental Quality
Act.
ENVIRONMENTAL IMPACT STATEMENT (EIS): See National Environmental Policy
Act.
ENVIRONMENTAL PROTECTION AGENCY (EPA): Independent agency of the federal
government with authority to protect the environment from water, air,
and land pollution. Established in December 1970 by reorganization Plan
No, 3 devised to consolidate the federal government's environmental
regulatory activities under the jurisdiction of a single agency.
Transmitted to Congress on July 9, 1970, by President Richard Nixon.
JEOPARDY: See Endangered Species Act, Section 7.
MITIGATION: Avoiding, minimizing, or compensating for impact of planned
development or other activities on wetlands and other biological
resources. Compensates by creating an equivalent amount of new wetlands
or some other ratio (e.g. 2:1, 3:1, new:old) deemed acceptable to the
federal and/or state resource agencies.
NATONAL ENVIRONMENTAL POLICY ACT (NEPA) : Act of Congress, 1969 which
established the requirement for environmental assessment of major
361
federal actions directly under the jurisdiction of federal agencies.
Basis for the Environmental Impact Statement (EIS). For private
projects with federal involvement. The lead agency is the agency
granting a permit for the project (e.g. Corps of Engineers for a project
with wetlands subject to Section 404 of the Clean Water Act). Federal
counterpart to the California Environmental Quality Act.
PROPOSITION 70, June 1998. Wildlife, Coastal, and Park Land
Conservation Bond Act. Initiative statute sponsored by Calif ornians for
Parks and Wildlife. $776 million to acquire, develop, rehabilitate,
protect, and restore parks, wildlife, coastal and natural lands in
California.
RIVERS AND HARBORS ACT of 1899 (SECTION 10): Act of Congress, 1899.
Amended over the years. Requires a permit to fill or dredge in
navigable waters— those areas of the shoreline below the historic mean
high water mark. Enforcement is the responsibility of the Corps of
Engineers. (See U.S. Army Corps of Engineers.)
STATE WATER RESOURCES CONTROL BOARD: State agency responsible for
setting and enforcing state water quality standards.
TAKE: Federal Endangered Species Act of 1973 definition was "to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct" towards a listed species. This
definition was extended by the Palila decisions to include degradation
of critical habitat.
TAKINGS: The appropriation, including excessive regulation that amounts
to an appropriation of private property by the federal government, and
is thus subject to monetary compensation of the landowner.
U.S. ARMY CORPS of ENGINEERS: Responsible for regulation of activities
which affect navigable waters (rivers, streams, harbors) and "waters of
the U.S." which includes wetlands. Principal enabling legislation of
Section 404 of the Clean Water Act and Section 10 of the Rivers and
Harbors Act of 1899.
U.S FISH AND WILDLIFE SERVICE (USFWS): A subdivision of the U.S.
Department of the Interior. Agency charged with the implementation of
the federal Endangered Species Act, including the determination of
Jeopardy.
WETLANDS: Habitats that are frequently inundated or saturated for long
duration and support characteristic plant life; vegetated waters of the
United States. Wetlands have a specific legal definition under federal
law which must be followed by other levels of government and the private
sector in order to comply with the law.
APPENDICES
A Pages Selected from the Biological Assessment and Mitigation
Reports of WESCO and TRA for the Proposed Shorelands Project 362
B The Leslie Salt Division of the Cargill Company: Its History;
Current Legal, and San Francisco Airport Issues 370
C The Don Edwards San Francisco Bay National Wildlife Refuge;
Bair Island; The Hayward Shoreline Interpretive Center 377
D Proposition HH 3gl
362 APPENDIX A*
1.0 INTRODUCTION
The Shorelands Corporation has applied to the City of Hayward for a permit
to develop portions of a 735.9-acre site located at the terminus of Eden Landing
Road in Hayvard, Alaroeda County, California (Figure 1).
The project is planned as a mixed use development consisting of a horse
racing track and associated facilities, a family entertainment park, a
recreational vehicle park, and space for commercial offices, light industrial
manufacturing and research and development. The project would be built in four
phases over eight years, as shown in Tables 1 and 2.
The project facilities would place fill material on 660.7 acres of the
735.9-acre project site and approximately 33 acres proposed for right-of-way for
new roads. Portions of the site are under the jurisdiction of the U.S.
Department of the Army, Corps of Engineers. The Shorelands Corporation applied
to the Corps of Engineers, San Francisco District (USAGE) for a permit to fill
under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the
Clean Water Act in 1983.
Pursuant to Section 7(c) of the Endangered Species Act, as amended (16 USC
1531-1542), USAGE must consult with the U.S. Fish and Wildlife Service (USFWS)
to determine if any federally listed (or candidate) threatened or endangered
species would be adversely affected by USAGE'S issuance of the applicable permit
for the project. The USF^'S responds to the consultation with a written opinion
that the project would either result in Jeopardy or Non-Jeopardy to the species.
In 1987, the USFWS issued a Jeopardy Opinion concerning three listed
species, as tabulated on page two. In response, the Shorelands Corporation
withdrew its permit applicant to the USAGE, to allow re-design of the project
and a mitigation program that would not cause jeopardy to endangered species.
The project has since been re-designed, the mitigation plan has been revised to
allow for the determination of a Section 7 Biological Opinion by the Service,
and Shorelands has requested initiation of Early Consultation. The mitigation
plan is an attachment to this report.
This report is a compilation of the data necessary to allow USFWS to
complete an assessment of the project's potential impacts to listed species.
The report includes brief descriptions of the pertinent species' status, range,
distribution, habitat requirements, general ecology, population levels, and
occurrence in the project area. The report also discusses the potential impacts
of the proposed project on the species and their habitats, and evaluates proposed
measures to compensate for adverse impacts.
*Pages selected from the Biological Assessment
and Mitigation Reports of WESCO and TRA for the
Proposed Shorelands Project.
P. 1
363
J BIOLOGICAL ASSESSMENT -- SHORELANDS PROJECT
• 2.2.2 Summary of Mitigation Program
The project would offer approximately 205 acres as wildlife habitat
mitigation land (See Figure 6 and attached Mitigation Plan). Depending upon
present values, especially for the snowy plover, Shorelands could also offer
* another 180 acres in the Oliver crystallizers and evaporators. The principal
components of the project's currently-proposed mitigation program are as follows:
1
J
Within the 193.5 acres comprising the Oliver/Perry parcels:
o 112 acres of salt marsh and transitional marsh on the Oliver/Perry
parcel east of the project site
o 18 acres of permanent (freshwater) ponds and 25 acres of seasonal
ponds within the Oliver/Perry parcel to provide habitat diversity
o a system of salt and freshwater sources and drainageways to provide
water of appropriate salinity to the new marsh and ponds
In addition, the project would provide:
•
o a 100-foot wide salt marsh harvest mouse dispersal corridor (11.3
acres) offsite along the southern boundary of the property to provide
continuous pickleweed from the salt marsh on Oliver/Perry to the
existing salt marsh habitat along Mt . Eden Creek
o an on-site water buffer (66.1) acres providing a minimum separation
of 100 feet between the perimeter hiking trail at the edge of the
project development and the adjacent off -site salt ponds. The water
buffer will comprise new salt evaporator pond, a brine ditch, and
a storm drainage ditch (see Exhibit 3 of the Mitigation Plan). This
buffer will separate the 9.1 acres of perimeter hiking trails from
the outboard wildlife habitat.
,
a predator fence of USFWS- approved design located in the center of
the water-filled channels, and surrounding the portions of the
project site most likely to harbor verminous predators such as Norway
rats
o a predator control program, including rodent-proofing buildings and
utility openings; baiting, trapping and removal and ongoing
monitoring of predator numbers;
J
o water quality control measures as required by the RUQCB for
» wastewater and stormwater to prevent degradation of offsite water
quality; monitoring of water quality over time by RWQCB or in
accordance with RWQCB requirements
P. 16
: FIGUPF
365
BIOLOGICAL ASSESSMENT -- SHORELANDS PROJECT
o guaranteed funding for initial habitat restoration and predator
monitoring, as well as long-terra stewardship and monitoring of the
mitigation lands. There will be funding to cover the important
contingencies, such as the habitat restoration failing to meet
performance criteria, or the project not building out as originally
intended. #
The mitigation program, as proposed, represents a concerted effort by
Shorelands to provide adequate mitigation for all of the direct and indirect
impacts on lasted endangered species identified in the biological assessment.
If successful, the plan should provide effective mitigation of each of the direct
and indirect impacts.
The proposed mitigation program is intended to support issuance of a Non-
Jeopardy Opinion for listed endangered species under Section 7 of the Endangered
Species Act. It is not intended to fully address all mitigation of impacts on
shorebirds and other resource values as required under Section 404 of the Clean
Water Act and related regulations. These are to be addressed in a separate
program pursuant to Section 404 requirements, at a later date. If the Section
404 mitigation results in subsequent impacts to listed endangered species not
addressed by the current mitigation program, then the Biological Opinion issued
in response to this Biological Assessment will be invalidated, and the Section
7 consultation must be reopened.
The Biological Opinion is expected to be issued, contingent upon a
Conservation Agreement which will specify in detail the initial and long-term
implementation mechanism and funding program for all of the conservation measures
specified in the mitigation plan. The restoration, monitoring, and mangement
functions will be carried out by an agency with the biological and open space
management expertise necessary to successfully carry out these functions. The
Hayward Area Recreation and Parks District (HARD) is such an agency. HARD has
been approached by the Shorelands Corporation, and has shown an overall interest
in playing this role, though the District has not yet made a firm, contractual
commitment .
Initial conservation measures including baseline predator monitoring,
predator barrier construction, and marsh restoration, will be funded as part of
"up-front" development costs. Long-term funding for conservation activities will
be specified in the Conservation Agreement, and will involve a standard mechanism
such as an assessment district or a trust fund, or some combination. The funding
mechanism will be structured to guarantee that funding will be available to
assure that the mitigation for endangered species will compensate for whatever
impacts have or will have occurred.
P. 18
366
P. 50
FIGURE 9
367
P. 25
FIGURE 8
368
P. 74
FIGURE 14
369
P. 15
FIGURE 5
370
££.
f 2
APPENDIX B - The Leslie
Salt Division
of Cargill
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371
BAY'S EDGE
A Cargill Salt Report
CALIFORNIA MANUFACTURER MAGAZINE
PROFILES BAY AREA SALT INDUSTRY
Dear Neighbor:
Summer is approaching quickly, and we are entering the "making" phase of solar salt
production, when salt crystals begin to precipitate in our crystallizer beds. As hap
pens around this time of the year, we've set our sights on the future. We look not
just to our 1999 harvest, but also to future harvests: the upcoming years in which we con
tinue to improve our '-alt making process, and in which we continue to mature as a com
pany and as individual employees.
We also look back at a successful winter, which included a
number of improvements in our operation, as well as the
publication of the enclosed article in California Manufacturer
magazine's February 1999 is«ue.
The article describes how our salt making process is part
of the ecological network of today's San Francisco Bay, pro
viding habitat and feeding grounds for a million or more
shorebirds and waterfowl.
It also shows that Cargill is part of the economic network
that underlies our South Bay communities, providing union
jobs for hundreds of families in the area, purchasing goods
and services from local businesses, and supporting education
and community services.
And — as a feature in a magazine read by executives of
manufacturing businesses throughout California — the arti
cle recognizes that our salt supports a network of jobs and
industries throughout the West.
The widely publicized debate over proposed mitigation
plans for the San Francisco Airport expansion has captured
headlines around the Bay, and it's covered in this article, as
well. We strongly believe that our working salt ponds are an
asset to the Bay Area, and that a narrowly focused proposal
to close us down would do irreparable harm to the families who work here, the commu
nities we live in, the industries we serve, and the diversity of wildlife that now thrives in
the South Bay's unique ecosystem.
We hope the enclosed article provides you with an informative look at our company
and the role we play in the Bay Area. The salt industry began here nearly a century and a
half ago because of the rare combination of natural conditions that make salt gathering
economically viable. The salt industry has thrived here because of the remarkable people
who have honed the art and science of solar salt production in the Bay Area, and the com
munities they helped build. We look forward to a bright future as a productive member
of the South Bav community.
Our salt supports a network
of jobs and industries
throughout the West."
Volujfie- 10; Number 1
'
Catherine Gump
Genera! Manager, Cargill Salt Western Region
CARGILL HONORS RENOWN^b ENGINEER
CLAIRE LOPEZ WITH SCHOLARSHIP
Cargill Salt has created the
Claire Lopez Memorial
Scholarship to assist a
graduating Newark Memorial
High School senior with his or her
college education, and to honor a
beloved salt company veteran. An
award of SI ,000 will be presented
to the chosen student.
Claire Lopez remains a legend
in the salt industry. The mechani
cal salt harvester design Lopez
helped develop in the 1920s and
'30s still plies the salt ponds today.
Under his direction, the salt com
pany developed salt production
facilities in Napa, Redwood City
and Port Hedland, Australia.
Lopez rose to the position of chiel
engineer for Leslie Salt, a position
he held until his retirement in
1964.
Claire Lopez was the consum
mate mentor, imparting guidance
and direct urn to young people.
One man Lopez took under his
wing — Bill Dutra, now president
of Dutra Enterprises in Santa
Clara — says his mentor motivat
ed him to go to college. "Claire
inspired me in that he was a self-
made man who illustrated the
ability that if you had the will and
energy, you could educate your
self," Dutra savs. "You're not
The Bay .< EJW is a periodic report lo
the community, employees and
retirees on Cargill Salt activities We
welcome your comments or questions
For further information, please
contact
Jill Singleton
Public Atf.iirs Manager
Cargil! Salt
7220 Central Avenue
Newark, CA 54560
(510)790-8157
going to find another Clam
Lopez."
"Claire Lopez didn't fin
ish high school, but
there's no person we
would rather honor
with a scholar
ship," says
Catherine Gump,
general manager
ol Cargill Salt's
Western Region.
"He was a bril
liant engineer, a
devoted mentor
and a strong propo
nent of education as \
an avenue to the trea- \^
sures of the future. ^
Claire Lopez established,
as much as anyone, the
salt company's corporate
culture — the integrity, Mrong
work ethic, the dedication to com
munitv service and the forward-
Claire Lopez
1899-1994
thinking embrace of technology
that continues to guide us. I'm
sure he would be proud to
have his name associated
with the rising young
talents from our com
munity."
Newark Schools
Superintendent Ken
Sherer welcomes
the scholarship.
"We are deeply
grateful to Cargill
Salt for establishing
the Claire Lopez
Memorial Scholar
ship," he says. "Each
year, it will inspire stu
dents to honor this out
standing person and to
seek the linkage between
education, work, and love
of community — all of which are
essential to a successful and
fulfilling life."
CARGILL RECEIVES "FULL
COMPLIANCE" RATING FROM CUPA
Cargill Salt received a clean
bill of health from the
City of Newark following
its annual inspection. The City
of Newark is Cargill's Certified
Unified Program Agency
(CUPA), which is responsible for
enforcing a variety of state envi
ronmental regulations. The 5 1/2
hour inspection examined
Cargill's management of above-
ground storage tanks, storage
and use of hazardous materials,
handling and disposal of haz
ardous waste, oil spill preven
tion, fire safety, stormwater
management and employee
training in environment, health
and safety. The audit showed
Cargill to be in full compliance
with all state environmental
laws.
The Newark refinery and Bay
Area solar operation also earned
top scores in an internal safety
audit performed by Cargill. In
many cases, Cargill's internal
standards are more stringent
than state and federal law.
"The results of these audits
illustrate how serious our people
are in working safely and keep
ing our environment clean," says
general manager Catherine
Gump. "We're proud of
our record."
The Bav'f Edge is printed on
recycled paper.
CARGIll
SMI DIVISION
7220 Central Ai'f
Newark. CA 94560-4206
510/797-1820 1-800-3S1-1451-
• Fax: 510/790-3185 November 6, 1 998
Mrs. Malca Chall
Regional Oral History Office
c/o 2 198 Oak Creek Place
Hayward, CA 94541
1 am writing to set the record straight. Recent news reports have chronicled the year-long
campaign by one activist to close Cargill's salt-making operations in exchange for the San
Francisco Bay International Airport's proposed new runway. We thought the scheme was far
too ludicrous to be believed, but now we hear rumors are circulating that we have a secret
agreement with the airport along these lines.
This is false. Our sustainable industry has successfully har\csted sea salt from San Francisco
Bay for nearly 150 years, and we intend to continue to produce salt here.
This activist's proposal is unreasonable and unfair. To "pay" for a loss of less than one-tenth
of 1 percent of open water, the airport is expected to toss Cargill Salt out and convert 29.000
acres of salt ponds and industrial properties to marsh. That's a ratio of nearly 75 to 1 -
absurdly out of balance for a project that stands to benefit the entire region. Clearly, this is
not about offsetting the as-yet-unknown impacts of a new runway: it's a cynical land grab.
Our salt ponds are home to more than 70 species of shorebirds and waterfowl as well as a
host of other wildlife. My co-workers, many of whom are second, third and even fourth
generation salt workers, take great pride in protecting this environment while producing a
wide range of high quality products that supply thousands of California businesses and
consumers.
We all want better airport safety and sen ice and a healthy bay. We do not have to choose
between a new runway and an established San Francisco Bay industry, with its good union
jobs and unique ecosystem. There are more reasonable and worthy alternatives.
Please don't hesitate to contact me or Jill Singleton if you would like to discuss this issue
further.
Thank you,
Catherine Hay
General Manager
Sa\t Company,
s'lruauonJlsn't' 'fixed., the! eri
yfot Its new runway.' .— — ", ' '*r -
*n.j. -"—.a '?-*,' ** — .*' .' i. ~-- •*> y^-1" -'
wlllslpwdovp.
sald other
pwned by Cargill 'Salt Company,
|us ?,12,pOOv ^cre|1|of federal
The site is one of only two in
United States where the
can hajjyest*?alt from , ,
coastal waters, and'Us only" site
-' "' a Coast^produ'*
salt from.
spokesgerapnrfm
jyorlcj jWheje,- ag ',-all-na
'fiarvest caa*^^ eJa^f-.»4^®jgbK€sman ^an W^son
^leton said. "It's sa^ftot^alrpo^t ' has" ' had
:'s gtf&io the Bay' . "fihendhj*dlscusslbhs'*with Car-
„ >''i .J;.^. giti ajb^bjuyinfijthe fend. But if
toth .'sldei-tfftMK dispute^ &m$K$fes™ seH^the- ,
would rielfc^the -«ivirt» : J^^I^KBeWTl^it of emi-
ta Jo tafre _pvy_..the ..
375
-report stating^ J1^
'that the^aft nVreaTaltCTna^™
f tives to ^/_alip6if^f massive*: 5?I
Kfunway 'eipansipri^prbpbsal isV Pr(
Scorning under Ore for being toon?*
fe limited ta'-'perspective and too \, ^ «-.--- i
"tied to tbVabVt£self-lnterest3fe Tr^sportation,, Commission
-ji ~, consortium^ 4
^*..^l»t-- .- "^ *? JSf* •»••*
, shi^^
TieVdtiierj groups na-
Bay Area's three aif -
^Assoclaflon,
Area
Ite-* What critics.f.want,, and may^;.
.^''get- from -a group of Bay Areife* ~*~~ . ^-
^.governmental agencies, is an itf..". ^a^;?ald ^1. ^P6* *5
(f dependentfr.Jlnlriced study that-- fhady^ begin in February apd
.«. ,j ."^ . - - J, TQV» aKnitf o t»*ort**-'. . ..«rJ *»I :i._
'.will consider taore reglonal-sp- •
One .of- the largest1 Bay fltt
^projects to history, the airport*
plan would build new runways
. by. filling as much as/ 1,400'
f acres. Work could cost 'up to S2
billion and fif; designed/., to
^'comply with' federal regulations
f "to space runways/wlder, apart,.*
fe'-w The. airport's "studyVjust re-
T leased by P&jD>vlatlon of 'Oalf-
• ' land," rejec^vany regional
v- solutions — ^'.s'uch as diverting
, trafBc to otHi&^alrporjfe^ for
dealing'1 with flight delays, alr-
. plane noise, Increasing, air
: traffic and a future filled with
jharger planes. .^:;JJ£-".f
|»>,."It!s hard tojtelieve,,.^-.^,^
! an In dependent /analysis when
Uvnir seeT>whoV paying for "It,"
about the runway projects
., ronmental impacts yej. ' t
studied, 'speculating that when
BayVVsoft/ mujS^ tt .couTcT push
th'e mud up"onto the shorelines,
causing flooding. ^"- '^~ ^\,-:,J^
^~i'P$3 ^S»rttdfsmi^s
|V n^CSt ^W-. 1_K« «U« JL«t
.'id solve the
and!
^ ^^o^p^ptfiod
.more.«yenlytc"buldto-
^^*^!lfef^. ^
*%£
s^™*-^-
tio&vri
"*^t
ipfl
ector of 4K Save SanFrancIscb
erting
only
[use
will be
376
tr n-
ayzata^'
plants In N
J - - :1 --,
owned companies In the world. It has 82,-
000 employees at more than IjOOO teca-
Uo
west part of the bay and 2,000 acres
of theDumbarton 811^ : • *
, Committee spokeswoman Florence
viere said the group wants alljof CareuTs
NEWARK
largest go\ernm
toiy. CarglB *
thousands ofjtcfes of salt ponds* alongjhe
San francIsccuBaK — apparentll including
-acres nSrth of {he Dumbarton Bridge,
M§rge jKohlfcr, IjenCTjJ ^manager ^fofj the
EdwardT SanFrancisco Bay Refuge,
. ,
.confirmed thai talks-aive -under w»y and,that ^U^C8. Jhat,^6, negotiations, are Jpcusl
-the land woilfd'be for "a federal and itate aboul 16.XXX) acreS located ofl^the
wildlife presen^. , ,..*Vl\i | .'
^. "We have Seen" thinking about « for quite
a long time, IJiave no Idea how close we are
|to an agreement), but'. we are certainly
working on It" Kohler said. " h ^ :
,jthe Wal| Street Jom-naf repdrted
Wednesday ffiat CargUl Is'n'egoiiatlngjwlth
state and federal environmental officials
over 1 8,000 lacres of salt pondl In the San
Francisco Bay Area»r^^.' r-,1 .
The nego^ations could stir ip a heated
controversy JDver the:jieed,to expand" run-
rays at San Francisco International Airport
tiy filling in Dart of thebay. • -••• c-
lori Johnson, spokesperso for Garglll,
sB* |het, -cotnpany^has b^efl ?ngageil for
Any^earsyith regulatory a| incies^boui
ne* land's- ftlrure. She empha ized at no"
jgreement has been reached. : '
"It's no sScret mey have ha< a strojig in-
erest 1n the future of the sail pondi." she
• "-:- ' • ••-••-•- • -
^ • » ^
"X -OfhM
'rig _ __ __
maCLaRj
•SIM:- ~<%
company's
prrvlt^fy
mlUlon, pencjing tKe outcome 6t"a
tate appraisal. "" ^
an acre,
"" praised
08
ith-
ponds
1994, the
CaYglD sfco:
$30(
^ "es
equals about $16.00(
(greater
'
.
sold ly CargUl to the fctate li
'
on thetamount. '.
tfalnfaig
• i _• • • » * ' tir z OT7
acreage — |thoi
29,000 acres of land purchasfdi not'just fe.excltlngto
18.00Q acreSi^! ^ir,»'.,..- •>$'.• ,i - * . '7™* *f r.
•,' "It is very Important that atyof theSand Youf"gj a i s^>k
be restored so It can begin to resemble what
It was 150 years ago," LaRlvlo-e said. "It
must go back to the public to; ensure the
health of <he bif/Va* t > •'• •• .,.^«^ ^^ ^^«, .,
The committee also will figSt to epsur^^'wlm Cargjll. as have ____
that, before any public moneyTs sperit, the the Envlr^nmentol. Protecfloj)
salt ponds value be appraised as Ian 4 that
can not be developed. This wiH prevegt the
sources Ajgeri<^
Is tw kta
Callfonu>
ichpis
woujc
Nichols; has -fceea .Involved to
Fish .,
of Engineers, the. State Lands
*
suring tnaTany contamination. on the^prop^ contr
erty — such as bittern ponds, which o]>ntam~ Ooi 3
waste from the salt-making pfbcess fc- »m fl
and' stateJ-De
i9sM >
•^^>PhA;-tA.n
377
and
save somttrf
envlrpnmentallsli
: organlza
g. re
double lu size and coy
every Bay siforeliie*ou
\&^&>$j$S%
' educaQon^center ^
APPENDIX C - Don Edward;
S.F. Bay National Wild
life Refuge
iirf f ui i * _
378
JE-* gpvernjnenfs
•Spdarigered "t??5 threatened.
.: -species list, there are faun-
£ flreds yet^b be Usje'd: :
^",16? pfocess is, islow be^
se the Ustffi^ depart-"
itlslshort-staffed afa'd
f 7SS^«l"ri».«jf- •"-.>-<;.
^•Dt.ah'e.
;blologlsr;.and
being squeezea eut '
i I'mifF -. --*. r-- _ . _r- -. 7 •*
?5w
"
M«**i'ifcw*»
to;ne
- ' - •
i'^^kg ^i^^^ •TJNmnMpiE^
lajMs. expected, .to- appros^.,
|5; million, for wetlands to
offseti the effects of alrpoii" «i-
'^- *$rA areas
srs;-^
, . _ ion
'«%]of-the Bay.
leratlng" some of
_ Hcbx salfl' ' '"-:
l . * '>• -1 _ . i"* " • - .^^•••^•^kiVHhdBf *" t. A •* » •* t~ - A-'- ft •T*^^^ ocuu. •.)•:"
aj6r?beJeflciaWJoT't&!nTQn^l iraDJO^I^^ w^ter" quality
Kl^ iaiernaapnal ito- control bgSia^equiiai-ihe' air-
iiH rfronir^C r * 'iiiif^ i77~i"l~r^ r ~iffii'' • IJTI'P r
Hayward Shoreline Interpretive Center
4901 Breakwater Ave . Hayward, CA 94&«5
(415)881-6751
A Rich And Colorful Past
For thousands of years, Ohlone Indians Irved a We o*
ccm'cr and simplicity around th* sn<ye of Sa/i Francisco Bay
He'e. the Indians hunlec tn« plentiful pa-rte n th» marshes
harvested orass^Tds bnmmng wfi? «d»* teeds bufcs and
be-nes and foraged sfteBfen along the mudftafc
Bcf trw age o" wane exploration »oon nauaw; In* B*y.
frv eipored by Sc*nB.>-. K**«r* n 1 765 S«» tf«t »me.
r» s*xy^r« has e»*n th» s£« o* bustkog activity
n lh« 1850-s lo take •ovantaoe <* V*
•t>Lnoa.T ane porfrtatte brt M« Soon. East Bay lowns were
fcWfyns «jnex«ur»i goods to the growing San Franctscc
rrwtuyofcs Passengers anc goods were femec across the
Bay by sn«3s that saied bar> and forth with the tides twee
daity rtc convenient marsh channels along the waterfront
Stumps of turtw at landing sres along the trail can still be
seen protruding from the mudflats as remnants of this
colorful era.
Salt harvesting began in 1854 when John Johnson
leveed natural pools in the salt rrarsh, the first harbinger ot
an industry which is now a multi-million dollar, world-wide
venture. Family salt companies went through boom and bust
until bought out by the Leslie Salt Company m the 1930"s
Other endeavors such as oyster farming, the hunting ot
waterfowl for market and development of duck hunting clubs
contributed to the shoreline history. By 1950, the natural
resources had decreased and public access restricted by the
land's private owners.
In 1969, the Haywa'd Area Recreation and Park
District initiated plans to return the marsh to tidal action.
establish public trails, build an interpretive center and
provide open space for area residents. The formation of the
Hayward Shoreline Planning Age_ncy (HASPA) in 1976 set the
stagejor the resulting land acquisition and development.
Today, more than 1 .800 acres are open tor public use and
pians have been made for (uther orotect'on of this delicate
resource.
watersm
Save San Frand.
Bay Associate
Quar
Newsh
380
After more than a decade of unwa
vering dedication and collaboration
by local citizen activists, Bair Island - the
largest, unprotected, restorable wetland in the South
Bay - has been saved from development.
In January, the Peninsula Open Space Trust (POST)
negotiated an agreement to purchase Bair Island for
$15 million from its owners, the Kumagai-Cumi
Corporation. Made possible by two loans from
anonymous sources, POST now seeks to repay the
loans through private donations and a $10 million
appropriation from the federal Land and Water
Conservation Fund.
Once funding is secure, POST will transfer ownership
of Bair Island to the U.S. Fish and Wildlife Service as
an addition to the Don Edwards San Francisco Bay
National Wildlife Refuge for permanent protection
management, and restoration.
Located in Redwood City, Bair Island is home to three
endangered species: the
California clapper rail, the
salt marsh harvest mouse,
and the California Least
tern, in addition, 126
species of birds and 13 dif
ferent mammals live or
feed on the Island. The
1,626 acres of Bair Island
purchased by POST will
enable the entire 3,200
acre area to be restored to
a rich tidal wetland habitat
The agreement to preserve
Bair Island marks a tri
umphant victory in an
Years o' Effort Saves
Bair teianc'
inspiring effort by local resi
dents who raised their voices and
took action to protect their environment.
Determined to thwart a massive development
proposal for Bair Island in 1982, Carolyn and
Ralph Nobles of the Friends of Redwood City suc
cessfully educated and motivated thousands of
local voters to defeat the proposal via referendum.
Another local couple, Florence and Phil LaRiviere,
formed the Citizen's Committee to Complete the
Refuge in 1985, with the goal of doubling the size of
the refuge to include Bair Island and all other wet
lands remaining in the South Bay.
In 1991, POST joined the effort and produced a stun
ning video on Bair Island to help educate the public
and decision makers on the Island's value and the
need to preserve it.
Through the years, other organizations including the
Fish and Wildlife Service,
Audubon Society, Sierra
Club Chapters, and Save
The Bay joined these
individuals to carry on
a persistent, grassroots
campaign to educate the
public and advocate for
the sale and preservation
of Bair Island.
Now with $15 million
hanging in the balance to
Bair Island's fate, you can
help!
What You Can Do:
Write to the *- PACE 8
381
APPENDIX D
[Measure HH 9/4/98 2:59 PM
CITY OF HAYWARD MEASURE
NO
m MEASURE HH: "Shall the City of Hayward y£S
change the General Plan designation on approx
imately 155.5 acres of the South of 92 Area
Oliver and Weber properties from Open Space-Baylands to
Open Space-Parks and Recreation, Residential-Low Density, and Industrial
Corridor, to allow for the complete implementation of the City approved
Specific Plan which includes a mixed use single family residential-business
development, business park, light manufacturing area, sports park, open
space buffer, wetlands preservation area, and two neighborhood parks?"
A MEASURE CHANGING THE GENERAL PLAN DESIGNATION OF
CERTAIN PROPERTIES IN THE SOUTH OF 92 AREA FROM OPEN
SPACE-BAYLANDS TO OPEN SPACE-PARKS AND RECREATION,
RESIDENTIAL-LOW DENSITY, AND INDUSTRIAL CORRIDOR TO
ALLOW FOR THE FULL IMPLEMENTATION OF THE SOUTH OF 92
SPECIFIC PLAN
FULL TEXT OF MEASURE HH
RESOLUTION AMENDING THE GENERAL POLICIES PLAN MAP DES
IGNATIONS FOR THE OLIVER WEST AND WEBER PROPERTIES IN
THE SOUTH OF ROUTE 92 AREA FROM OPEN SPACE-BAYLANDS
TO RESIDENTIAL-LOW DENSITY, OPEN SPACE-PARKS AND REC
REATION, AND INDUSTRIAL CORRIDOR
BE IT RESOLVED by the People of the City of Hayward as follows:
1. BACKGROUND. On February 17, 1998. the City Council of the City of
Hayward held a public hearing and adopted Resolution No. 98-028, certifying
an Environmental Impact Report for the Specific Plan for the South of 92 plan-
ring area, located west of Hesperian Boulevard, south of Industrial Boulevard,
and north of the Old Alameda Creek ("South of 92 Area"); approving certain
General Policies Plan map designation changes, and required voter approval of
the change in designations for properties in the South of 92 Area currently des
ignated as Open Space-Baylands; and adopting the South of 92 Specific Plan.
This Resolution was considered by the voters at the November 1998 election,
and constitutes a determination that to approve the change in designation of
those properties in the South of 92 Area currently designated as Open Space-
Baylands described herein.
2. PROPERTIES AFFECTED BY THIS RESOLUTION. The properties
affected by this resolution are the 130.5-acre Oliver West Property and a 25-acre
portion of property owned by Mr. John Weber, located west of the Union
Pacific/Southern Pacific railroad tracks, which are both designated as Open
Space-Baylands on the General Policies Plan Map. These properties are gener-
HA-1
382
Measure HK 9/4/98 2:59 PM
-e-
ally depicted on the map anached and incorporated as Exhibit A to this resolu
tion. The Oliver West Property, owned by the Oliver Trust, contains approxi
mately 130.5 acres, and is proposed for a change in designation from Open
Space-Baylands to Residential-Low Density and Open Space-Parks and
Recreation. A 25-acre portion of the total 80.5 acre property owned by Weber
("the Weber Property") is proposed for a change in designation from Open
Space-Baylands to Industrial Corridor.
3. GENERAL POLICIES PLAN MAP AMENDMENT. The General Policies
Plan Map is hereby amended, in the manner generally depicted in Exhibit A, to
change the land use designations for portions of the South of Route 92 Area
from Open Space-Baylands to a different land use designation, as follows:
a. Oliver West Property (approximately 123 acres): from Open Space-
Baylands to Residential-Low Density.
b. Oliver West Property (approximately 7.5 acres): from Open Space-
Baylands to Open Space-Parks and Recreation.
c. Weber Property (approximately 25 acres): from Open Space-Baylands
to Industrial Corridor.
4. DIRECTION TO THE CITY COUNCIL. The City Council is hereby autho
rized to take any steps which it determines are appropriate to carry out the pro
visions of this Resolution, including but not limited to the approval of further
changes to the General Policies Plan Map designation of the properties affect
ed by this Resolution.
5. Ehr-hCnVE DATE. All policies approved by this Resolution shall take
effect upon the voters' approval of this Resolution.
HA-2
i
/TV
Y
383
-edsure HH 9/4/98 2:59 PM
ARGUMENT IN FAVOR OF MEASURE HH
Dear Friend,
Measure HH completes a historic City of Hayward planning process, which has
already resulted in the permanent preservation of 850 acres of open space by the
Wildlife Conservation Board.
Now Measure HH will help create a new 25 acre sports park with lighted soft-
ball and soccer fields and basketball courts, two new neighborhood parks, and
an opportunity to extend the Bay Trail to the Union City line. Passage of
Measure HH means kids and families will have a safe place to spend their time.
It will be a great place for after-school recreation activities and for company
teams to play their league games. That's why the Hayward Area Recreation and
Park District endorses this entire plan.
This historic package will also provide a huge boost to our local economy. The
new business park campus will help bring over 3.500 high-paying, high-tech
jobs - right across the street from the new Pepsi plant.
This complete "mixed-use" plan, at the intersection of Hesperian and Industrial,
including the sports park, open space, business park, single-family homes and
new jobs will also generate over 5600,000 of new revenue each year for our
community. This new money can be used in our neighborhoods for things like
fire protection and Neighborhood Watch programs.
Even the proceeds from the sale of this land will go back into the community,
because the Oliver Family donated it to local charities. Now those charities are
selling it with a pledge to use the proceeds to continue improving the lives of
people in the Hayward area.
This plan is a step toward a brighter tomorrow for Hayward. Please join us in
Voting Yes on Measure HH. We owe it to our kids, our families and our future.
Sincerely,
s/Charlie Plummer, Alameda County Sheriff
s/Jackie Grissom, President, Hayward Area Historical Society
s/Matt "Mateo" Jimenez, Hayward City Council Member
s/Dick Sheridan, Board Member, Hayward Area Recreation and Park District
s/Fran Baskin, Founder, Aunt Franny's Make A Wish Foundation
Softball Tournament
HA-5
[Measure HH 9/4/93 2:59 PM P;
ARGUMENT AGAINST MEASURE HH
Please vote NO to save Hayward's endangered Baylands. Measure HH violates
Hayward's General Plan Open Space Element identifying the Baylands as a
threatened resource.
You are the last hope for this land and its creatures: thousands of wintering
waterfowl and shoreblrds, endangered and threatened species, and the burrow
ing owl.
Residential development in the floodplain west of the railroad tracks will sub
sidize a business park that should be able to pay its own way. A 12-foot high
platform is needed to raise the homes above flood level. This would require
thousands of round trips by large dump trucks hauling tons of din daily across
town from the hills to the baylands for 18 months. It is questionable whether
this engineered fill will suffice to protect the home purchasers.
The Ciry of Hayward and the Hayward Area Shoreline Planning Agency have
long planned to save these valuable lands west of the railroad tracks - seasonal
wetlands and uplands - as special wildlife habitats because they are needed for
nesting, roosting, and refuge during high water. Agencies like the California Wild
life Conservation Board have included the Oliver West and Weber properties on
lists of land to purchase for wildlife. Acquisition would give the historical soci
ety and the church the money they expect without destroying the environment.
The Citizens Committee to Complete the Refuge, which has been enormously
successful in finding funds, is confident that funds can be found to save this land
for future generations. We want to help the church and the historical society
receive fair value for the Oliver Trust property, but developers should not profit
by destroying Hayward's Baylands. Once open space is gone, it's gone forever.
sAriola Saima-BarkJow, Chair, Committee To Save Open Space and
President, Ohlone Audubon Society
s/Minane Jameson, Board Member, Hayward .Area Recreation and
Park District (HARD)
s/Glenn Kirby, Alameda County Park Recreation and Historical Commissioner
s/Sherman Lewis, Chair. Hayward Area Planning Association
s/Gail Steele, Alameda County Supervisor, District 2
HA-6
385
i!
I
Baylands Crisis in Hayward
Hay ward voters are urged lo vote NO on Measure HH on
November 3. 10 save Hav ward's Open Space-Baylands
If the South of Route 92 Specific Plan development is approved, it will
overturn decades-old protection of the Hayvvard Area Shoreline and set
precedent for other shoreline development schemes on San Francisco
Bay That's why Measure HH must be defeated!1 If you are not a
Havward voter, there are several ways you can help oppose
Measure HH (see below) ' / I
Jill
The development scheme is to build 578 homes on twelve feet
of landfill in a floodplam on Open Space-Baylands. The site is
west of the railroad tracks near Hesperian and Industrial Boulevards in Hayvvard across from tne
Pepsi Plant. This land has been identified for inclusion in the Don Fdwards San Francisco Bay
National Wildlife Refuge since the 1980's The residential development would be in the midst
of protected wetlands and critical wildlife habitat. Landfill will be iruc}ed in from a quarry on
the east side of Hayvvard. along Industrial for 18 months - 10 hours a day. 800 truck trips per day
Adverse impacts include loss of seasonal wetlands and uplands used as feeding, nesting, and
roosting sites by thousands of waterfowl and shorebirds. and refuge for small mammals The
L'.S Fish and Wildlife Service has described these lands as essential habitat for the conservation
of the endangered California clapper rail and salt marsh harvest mouse Adjacent bavlands are
being restored js habitat for clapper rails and snowy plovers.
Measure HH is on the Havward ballot because a group of grassroots open space advocates were
successful in getting a city ordinance requiring voter approval befoie changing zoning for land
designated as open space The Committee to Save Open Space (CSOS) is now leading the
campaign opposing Measure HH
What can you do'"* If you are a Havward voter, please vote NO on Measure HH. If you are an
advocate for the environment. San Francisco Bay. the bavlands, or the Refuge, you can help save
Hay ward's threatened bavlands by volunteering your time to make phone calls or gather pledges
to vote No. or by making a campaign donation (We need funds to mail one or more educational
campaign pamphlets.)
Please contact the Committee to Save Open Space (CSOS) at PO Box 657. Havward. CA
94543-0657, phone 510-886-4730. fax 510-886-4031 Also: 510-471-0475 or 510-471-1521
Yes, I would like to help CSOS defeat Measure HH on November 3! 1 will
] Siun a pledge to vote No on Measure HH (Hayuard \oters only)
] Gather pledges 10 vote No
] Allow my name 10 he used as endorsing the campaign against Measure HH
] Make a donation 10 the Committee to Save Open Space* Amount S.
] Make phone calls
| J Other dell us what \ou'd like to do)
Name,
Address
Phone
'Occupation.
*Fmployer
SPECIFIC
PLAN
AREA
SOUTH OF ROUTE 92 SPECIFIC PLAN
PLAN AREA LOCATION - 1997
Figure E-i
CSOS Camoaign Septemtxzt 76 7956
387
• TUESDAY November 17, 1998
Hayward vote
turnout shows
local concern
By Karen Hotzmeister
STAFF WfifTER
HAYWARD — Hayward'i
dismal voter lurnoui in recent
years is on the upswing, per
haps because of voter concern
over locaJ candidates and elec
tion issues.
Results from the Nov. 3 gen
eral election showed an overall
Hayward voter turnout of 50.2
percent. Including 45.6 percent
of the voters who cast ballots on
1 Measure HH. the baylands de-
4 velopment issue.
In June, when mayoral and
City Council candidates were on
the ballot. 41 percent of the
voters turned out for the elec
tion. City Clerk Angelina Reyes
said.
In previous years, perhaps 17
percent to 22 percent of the reg
istered voters went to the polls.
Reyes said Monday.
"It was a very important gu
bernatorial election and there
also was a very important local
issue." Reyes said In explaining
the high turnout. "(Hayward)
Measure HH was at the very end
(of the ballot), but people didn't
seem to mind the long ballot."
Unofficial tallies compiled by
the Alameda County Registrar
of Voters Office showed that
26.378 of Hayward's 52.445
voters cast their ballots Nov. 3.
Of those voters. 13.413 voted
in favor of Measure HH and
10.522 voted against it.
Measure HH asked if the
city's general plan should be re
vised to allow 155.5 acres south
of State Route 92 to be changed
from open space to residential,
industrial corridor, and parks
and recreation uses.
Voter approval will allow' that
land to be merged with 176 ad-
Joining acres to produce a S378
million complex of 578 homes.
a business park, light manufac
turing, a small commercial
center, a 25-acre sports park
and two smaller parks.
Measure HH gave voters a
voice in the future of the city's
largest remaining undeveloped
fladands area, an issue compli-.
cated by the site's location
about 2.5 miles east of the Hay-
ward shoreline.
The measure passed in 67 of
Hayward's 81 precincts, as well
as in absentee balloting.
388
ju&Toff Hesperian B
" ' MJnloii^
jw^'jcpwne<l
'park ; lanft
»<i_i v» 11 V.IAJ LUC >— . .. — — ^
border; I show four Softball
fields; three soccav fields"; play,
ad,- picnic^ areas, a concession
itand,
over,
f>:J—-T*
gene . ..„- -
the land wfflLcpst at least $6.25
beneficiaries
Kwlfl coritribule $3 mflhon.
ie complex wlll.be
evening' ' -
play sipy day.-pf
. that ifs-^riol-PTalnlng.-'
•arias., "Right now we-pracfla
Castro .Valley
;. .but we ;«ould • do so
nuch morjp .i^wlt^ additional
flaces to play,T f ^'4^4 '•ftr^>
The new jjublic sports park
j^i'hjis. part .0^ a major resl-
in'tlal and^commerclal deyel-
—*• south of Jhe JHa;™0"1-
members and HARD d|-
.'met «t6 review , sports
deslfln plans'. "But the dis-
^a.m^L.^ money or
d-
^orsed by voters In 1998.
The 251 -acre
aclude 538 houses. ,
fr'ciai and l^ht manu
im-
.STAFF WRTO1
While Investments keep (he
*---_- r.v >- fund growing, jive percent of the
• JOG*} .* fl r)fL.». JH * a. 3 i J money wifl be given" annually to
•i • hnagine inheriting millions of help .the Hayward-areaxxMnmu-
dollars. Now imagine deciding ' " nlty! said Jim Phiiilps'rchair of
;to give some of it away. How^a-.v the board"ofihe Eden'Area
would^ou decide who to give «- — Foundation: — «-.<••••'. — '*-±—'<
r : That's ttie. dilemma facing1 ';
congregation members at Eden Just what causes they are going;
United Church of Christ. This" V to support with grants^ ^ \ f !
year, the 20p-member churcfir .££?' i
expects to begin receiving some '*
, of about $ 10 million it will in
herit
congregation vriUT>e~figuring~bui
t causes they are going;
rt with grantst.'. u;;'Vi"
. _____ .~r~-t~—. -
. Th'eir inheritance co'mes fro
a late church member, Ald^n
Oliver, and his nephew.- -y^
toleave nioney to. and
of a family widely known
-
gop^ 'stewards^or <hls"taoney?')
^
" asked, the RCT. Lydia Ferrante: \
7. . Roseberry. the newly -hired as^ ;
Both had no children y; sociale minister of mission out-
^reacli and growth, sitting to her
*; ofllofepne day last month, sip-
^•jiin^ea,,; ^^^^"j \
^fv,"(This m'bneyj is both ^
•' "blesstag anffa -curse'. Because
" people have all sorts of Issues
around money," she saidttt ; ;-
• f- ^j£tf*a.tn teta*3f , -
~' The church ~was named^s*a •
. beneficiary of Thej)liverTrus{ ,:
"in Pit 1980s. But politics and '
• " land deals have kept much of ,
business;'^, j..->--- \-^.^
-\ TheVnly stipulation to ttie '{
money is that it must bfe'used
for "local church purposes.*1'7 .
And ihjoming months, that wfll
send the congregation into
something of a soul-search^ ; :
Congregation members have
already decided that some Vr. v
money will be used to renovate':
the church building, including'^
the 1 3!>yeaF-oicf chapel "once -
inbved"acr6ss"lowTi to Its' cur-~"'
rentlcjcation on Birch Street; .«?•
That"moye was done with the: *Z
help of Adolph Oliver, me father
the mhei1taii(^fToni'feacliin2i
•
the church iuitil
-
liH998; despite opposition
from some ^nvironmeniaiister—
voiers apprpyed.-tae aevelopj j
of mbre^'thari 330 acres j
They've also decided that
Vnost of the money will be put'-
Into the Eden Area Foundation,
a new non-profit corporation . •'< ..
'separate from the church. fe"
bayshore lands owned by 11
Oliver Trust inlo homes, busi---
nesses and parks^ j gi££5j;i,u
:«t The Hayward Area Historicak
Society, along with the churCh.' •'
wffl benefit from the deat J -
e long wait Jqr
the money a blessing.becausfe.
" ^^
had time
psj^hp is a longtime ^, .
^church member. Is also a <*& '••'
lawyef ^ who specializes in estate
planninfeand tryst 3aw. •**«*:? k
'OK •*¥?..
. .^n often-quoted statistic says.,.
that the average inheritance is
t 1 7 months,
To help irTpIannlng, the - . *.
church hired Ferrante-Rose- ' ;
Lberry.'a minister orilained in
s the Unitarian Universalist
church with a background in ,
community organizing!
'Eventually, "a "minister from
an Ohio denominaQonal office
will be brought in to lead dis- -
cussions on how to use the - -
money, Philh'ps said.
j. ;./lt helps ensure that^every-
•', one's voice win be heard, it
^giiarante« that flieperson ln:
1: charge has no hidden agenda
and it helps us'co'me to con- ,
serisus.r Phillips said. ?
•---- '.*. »C •<• 'rrr i v
The church is in the midst of
growth and change, and not
. only because of its inheritance.
. .:, . . :-v^J-^_;' -• ff .: -;
; Like many American
"churches', it has seen a signifi
cant drop in attendance since
the 1940s and 1950s, when
membership in the now 200-
member church swelled to 1,-
500, Ferrante-Roseberry said.
About six months ago, with
, money from the sale of the Ol-
iver home, the church began of
fering American Sign Language
interpretation at worship serv
ices. That has attracted more '"
worshipers.
A few years ago, the congre
gation became "open and af- -
firming," which means they
welcome anyone regardless of
their sexual orientation.
And the church s soon-ex-
•pected inheritance, will add an-
' other ripple of change — one
that will give them opportunities
many churches do not have.
."Most churches have limited
resources for doing outreach."^
.Phillips sald^'Now well be able
_to do alot of good you can't do
•without financial resources." •-
390
INDEX- -Baumberg Tract Oral History Project
airplane design, history of, 86-
87
Anner, Laura Adams, 83-84
Audubon Society, Hayward Area
Chapter: Ohlone, 14, 15, 325,
338, 339a,b
Bailin, Richard, 130, 132, 135,
150, 220
Bair Island, 25-26, 27,195, 283.
See also Appendix C
Baumberg Tract, passim.
Baumberg Tract Wildland
Restoration Project, 23-28,
61-63, 106-108, 115-116, 171-
173, 194, 201-212, 281-297,
330-335. See also California
Wildlife Conservation Board
Bay Meadows racetrack, 126-127
BayKeeper, 346-347
California Environmental Quality
Act (CEQA), 22, 184, 260
California Horse Racing Board,
143
California Nurses Association, 83
California State, Department of
Fish and Game, 22, 24, 25, 56,
61, 62, 184, 186, 202, 203-204,
211, 220, 231, 274-296 passim
California State Lands Commission.
See public trust doctrine
California Water Resources Control
Board (WRCB), 22
California Wildlife Conservation
Board, 6, 8, 23, 25-28, 171,
201-202, 204, 207, 282-283, 331
Cargill Company:
Baumberg Tract Restoration
Project, 282-283, 288-289,
329-331
Cargill Company (cont'd.)
legal issues, 70-71, 346-348,
351-352
Shorelands Project, 26, 66-67,
101, 102-103, 152-174, 202,
204
San Francisco Airport runway
expansion, 291-292, 335-
336, 348-356
See also Leslie Salt and
Appendix B
Citizens Committee to Complete the
[San Francisco Bay National
Wildlife] Refuge (CCCR) , 25-
26, 291, 338, 345-348
Citizens for Alameda's Last
Marshlands (CALM), 290, 345
Clean Water Act, 9, 16-17, 20,
68, 69, 72, 187-188, 210, 240,
275, 280
Coakley, Frank, 94-95
Cogswell, Howard, 1-74, 166, 322,
323
academic career, 36-58
background and education,
29-35
opinions on Shorelands, 12-23,
110, 121
research on birds, 34-35, 39-
42, 45-54, 56-58, 125
Cole, Carolyn, 181, 182, 185
Cooper, Roberta G., 299-312
Corps of Engineers. See United
States Corps of Engineers
DeBartolo, Edward, 143
Delfino, Frank, 290, 318, 339,
342-344, 346a,b
Delfino, Janice, 6, 123-124, 290-
291, 313-353
Douglass, Robert C., 5, 6, 103,
125, 132, 152-174, 257-258
391
East Bay Regional Park District,
8, 24, 107, 110-111, 123-124,
126, 170-171, 202, 205, 211,
289-290, 322,
Edwards, Don, 105, 118
Endangered Species (Act):
vernal pools and creeks, 339-
342
wetland habitat, 21, 22-23,
24, 165, 185, 186, 188-191,
195, 200, 201, 204-205, 210,
250-251, 254, 255-256, 261,
263, 266, 276, 279, 284-285
Environmental Impact Reports/
Environmental Impact Statements
(EIR/EIS), 183-188, 237, 254-
255, 260, 277
environmental laws, regulations,
agencies — assessment of, 65-
72, 162-167, 193, 202-204, 225
242-243, 257-258, 259-261, 279-
280, 290-291, 338-352
Environmental Protection Agency
(EPA), 18, 20, 127, 227, 258
Hayward Area Shoreline Planning
Agency (HASP/,), 20, 60,69,
122, 322-324, 325, 326, 327,
330
Hayward city of:
Shorelands, 22, 100-101, 104-
105, 114, 126, 127-128, 131,
133-134, 168-169, 182-183,
186, 231, 237, 241, 302-310,
330
Proposition HH, 112, 68-69,
173, 281, 308-310. See also
Appendix D
Irvine Ranch, 66
Josselyn, Michael, 70, 72, 339-
340
Kelly, Paul, 60, 186, 231, 254,
275, 278
Feeney, Leora, 131, 190, 229-230,
275, 345
Fish and Game Department. See
California State, Department of
Fish and Game
Fish and Wildlife Service. See
United States Fish and Wildlife
Service
Foreman, Steve, 61, 62, 132, 175-
214, 256, 267, 284-285
Golden Gate Audubon Society, 32,
342
Golden Gate Fields, (racetrack),
126, 143
Hall, Nori G., 222-223
Hayward Area Recreation and Park
District, 6, 13-14, 63, 69
Hayward Area Shoreline
Interpretive Center, 8, 24
Legge, Charles, 71, 347, 348
Leslie Salt Company, 5-21, 25,
26, 27-28, 59, 62, 70-72, 114,
116, 118, 125, 127, 128, 132,
187, 192, 258. See also
Cargill Company and Appendix B
Marine World-Africa USA, 124-125,
324-325
McGinnis, Sam, 182, 184
Miller, Albert J., 137
Mills, Carolyn, 181
mitigation:
Baumberg Tract Restoration,
23-24, 283-284 212, 228-230,
253-256, 265, 276
Oakland Airport, 342
Roberts Landing, 212
San Francisco Airport runway
expansion, 66-67, 335-336
392
mitigation (cont'd.)
Shorelands Project, 13-14, 15,
16-19, 59, 71-72, 159, 160-
164, 192-196, 228-230, 153-
256, 265, 276, 277, 278
Molnar, George, 205, 210
Murray, Richard, 59, 110, 115,
116, 130-131, 142, 150, 166,
197, 213, 224, 227, 228-230
National Environmental Policy Act
(NEPA) , 184, 260-261
O'Connor, Thomas, 95
Oliver, Alden, 69
Oliver Gordon, 12, 13, 69, 101-
102, 122, 327
Oliver Salt property (and Oliver
Trust), 6, 63, 68, 69, 281,
308-310, 327, 330, 331. See
also Hayward, city of,
Proposition HH
Passarello, John, 26-27
Peninsula Open Space Trust (POST),
26
Perry Gun Club, 9, 12, 13, 122
predation, concerns with, 133,
162-163, 197-199, 232-236, 257-
258, 276, 336-337
property tax, assessors' scandal,
93-96
Proposition 70, 25, 282, 283.
See also Glossaary
public trust doctrine, 10, 20-21,
329-330
Regional Water Quality Control
Board. See San Francisco Bay
Regional Water Quality Control
Board
Reid, Thomas Associates, 129,
130-131, 199, 200, 219-220,
263. See also Weissman, Karen
Roberts Landing (San Leandro),
212, 280, 342-345
San Francisco Bay Area Wetlands
Goals Project, 64-65, 196,
292-294, 335-336
San Francisco Bay Conservation and
Development Commission (BCDC),
62, 280
San Francisco Bay National
Wildlife Refuge, 7, 18, 21,
70, 106-107, 118, 165, 226, 346
(also known as Don Edwards San
Francisco Bay National Wildlife
Refuge)
San Francisco Bay Regional Water
Quality Control Board, 201,
210, 283, 346, 347, 348
Save San Francisco Bay
Association, 342, 348-349, 351
Shepherd, Paul, 103, 125, 158
Shockley, Barbara, 124, 322
Shorelands Project. See Thorpe,
John; related entries
Sorensen, Peter, 103, 131, 186,
225-226, 231-232, 235, 236,
238, 245-269
Steucke, Wallace (Wally), 106
Storm, Martin, 60, 100, 239, 323,
324
Stout, Edward, 140
Thorpe, John:
environmentalists,
relationships with, 109-
111, 122, 225
family background and
education, 80-91
law practice, 92-95
Shorelands Project, 8-9, 13-
16, 19-20, 75-151, 159, 160-
162, 163, 164, 170, 204,
221, 227, 228 231, 234, 236,
241-242, 243, 257-258, 263,
277, 282, 305-306, 308-311,
324, 325-326
393
United States Corps of Engineers,
16-18, 19, 20, 21-22, 70-71,
127, 131-132, 143-144, 183,
185, 187, 220, 236, 258-259,
260, 265
United States Fish and Wildlife
Service, 21-22, 24-25, 103,
106, 115, 122, 127, 131-132,
133, 161, 162-163, 164-165,
184, 185, 191, 193, 197, 199,
202, 204, 220, 225-227, 229,
232, 249-251, 258, 260-265, 283
Washburn, Edgar B., 164, 329,
347, 348
Weber property, 12, 13, 308-310,
327, 330. See also Appendix D
Weinreb, Ilene, 323
Weissman, Karen, 131, 199, 215-
244, 255-256, 262-263
wetlands, 16-26, 66, 70-72
White, Wayne, 131-132, 238, 264
Wilcox, Carl, 23, 28, 61-62, 205,
207, 208, 211, 270-297
Wolden, Russell, 95
workman's compensation, 93
World War II, G.I. Bill, 32-34
Malca Chall
Graduated from Reed College in 1942 with a B.A. degree,
and from the State University of Iowa in 1943 with an
M.A. degree in Political Science.
Wage Rate Analyst with the Twelfth Regional War Labor
Board, 1943-1945, specializing in agriculture and
services. Research and writing in the New York public
relations firm of Edward L. Bernays, 1946-1947, and
research and statistics for the Oakland Area Community
Chest and Council of Social Agencies, 1948-1951.
Active in community affairs as director and past
president of the League of Women Voters of the Hayward
area specializing in state and local government; on
county-wide committees in the field of mental health; on
election campaign committees for school tax and bond
measures, and candidates for school board and state
legislature.
Employed in 1967 by the Regional Oral History Office
interviewing in fields of agriculture and water
resources. Also director, Suffragists Project,
California Women Political Leaders Project, Land-Use
Planning Project, the Kaiser Permanente Medical Care
Program Project, and the Central Valley Project
Improvement Act.
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