By Robert Bryce
JUNE 15, 1998: Irony and coincidence are ingredients in any good story. Both abounded in Sam Sparks' courtroom last week.
At issue is a lawsuit brought by Austinites Alan Hamilton and Robert Barnhart against the city of Austin and the U.S. Fish and Wildlife Service. The suit, filed May 21 under the Endangered Species Act, claims that the two entities are harming the Barton Springs Salamander by cleaning Barton Springs Pool. The two plaintiffs were in U.S. District Court June 3 seeking an injunction which could force the city to stop cleaning the pool.
The pair have hardly been fixtures in Austin's green scene. And they are represented by Robert Kleeman, an attorney who for many years has represented developers eager to skirt Austin's environmental laws. A couple of years ago, Kleeman was the general counsel for Take Back Texas, a conservative property rights group which has fought endangered species protection throughout the state. TBT has been particularly critical of restrictions on development in the Barton Springs watershed. Now he comes arguing that the city isn't doing enough to protect the Barton Springs Salamander, and that he and his clients are the true defenders of the little neotenic animal. That's irony.
Kleeman and his compatriots didn't get what they wanted from Sparks last Wednesday. While Kleeman made a forceful case, Sparks punted, telling both sides he wanted more information and that he would not rule on the injunction until Tuesday, June 16. Once that issue is resolved, Kleeman will likely ask for a permanent injunction, a move that could force the city to close Barton Springs for the rest of the summer or until the feds give the city a new permit under Section 10a of the Endangered Species Act.
While Kleeman argued his case in front of Sparks, he was assisted by Robert Thomas, a lawyer with the law firm of Hohmann, Werner & Taube. Thomas' firm also happens to represent local developer Gary Bradley. "Absolutely a coincidence," says Kleeman. It's probably also just a coincidence that Phil Savoy, who works for Murfee Engineering, a company that for many years has done extensive work for Bradley, was also in the courtroom. Asked what brought him to court, Savoy replied, "No comment." He then instructed Hamilton and Barnhart not to talk to reporters.
Could it be that Savoy - who, in a 1993 letter to the FWS suggested that the reason for the "rapid deteriation [sic] of pool water quality" at Barton Springs was "caused by thousands of people per day recreating during the swimming season" - was now working to get the pool closed? Or was it just coincidence? Was it also coincidence that the Real Estate Council of Austin (RECA) had also made remarkably similar statements in 1993? And that Alan Glen, RECA's immediate past president, was also in Sparks' courtroom on Wednesday? Glen, a lawyer at the mega law firm Fulbright & Jaworski, who has represented the National Association of Home Builders, insisted he was only in court for the entertainment value. And he contended that developers are not trying to close Barton Springs. Instead, Glen said the issue is how the FWS has issued permits for the pool cleaning. "The good news is that however this comes out, the city has made changes to the way the pool is maintained," Glen added.
The Flip SideThere's plenty of irony on the green side of the aisle too. A little more than a year ago, the Save Our Springs Alliance was fighting the feds to get the salamander added to the Endangered Species List. Since then, S.O.S. has taken the city to court, claiming it wasn't doing enough to prevent development in the Barton Springs watershed. Now, S.O.S. has taken the position that the city and the feds are doing just the right thing when it comes to managing the pool.
There's more irony. The listing of the salamander in April of last year was a big win for the Greens. But now it appears that it could also be the thing that makes the Greens look bad. After all, who will get the blame if the pool gets closed for the summer? Sure, some will blame the big, bad developers. But whose idea was it to get the salamander listed in the first place?
The best quote to come out of Sparks' courtroom last week came from Robert Brandes, a vocal property rights activist who has been in the midst of endangered species battles in Austin for years. After the courtroom cleared for lunch, Brandes told me, "The loudest sound in the courtroom today was Bill Bunch's silence." Brandes has a point: If the Greens are interested in protecting the salamander, why aren't they siding with Kleeman? But Bunch won't be silent for long. The S.O.S. Alliance plans to file a motion this week to intervene in the case. And Bunch is plenty irate. Calling the suit "unbelievably sleazy," Bunch said that Kleeman and his plaintiffs are "not motivated by protection for the salamander. It's exactly the opposite. They are trying to divert attention away from the real problem and make a point that the Endangered Species Act is too rigid, that Austin is being hypocritical, and that the city is cutting corners."
Bunch said that federal authorities named three major threats to the salamander when they added the animal to the Endangered Species List. Those threats are chronic water degradation, catastrophic spills, and over-pumping of the aquifer. By filing the lawsuit, Bunch contends that Kleeman is trying to "suck people's time and attention into the pool management issue, which is a very minor factor in the survival of the salamander. We want to keep our attention on the real threats, which are pollution and development upstream."
Bunch may be right. But it is also clear that Kleeman and his cohorts are in a no-lose situation. They are showing that the Endangered Species Act cuts both ways. It can hurt developers. It can also hurt the Greens. An added benefit is that they can try to make Bunch look bad, a task many of them relish. In addition, by attacking the city and the feds on the salamander issue, critics of the law are able to underscore their contention that the ESA, which is long overdue for Congressional reauthorization, is an unwieldy law that discourages conservation.
Kleeman denies his intent is to close the pool, or that he is trying to stick it to the environmentalists. "There's no payback," says Kleeman. "I'm sorry if that doesn't fit with people's conspiracy theories. But this isn't so Hollywood. There is no grassy knoll. I feel strongly that my clients and I are doing the right thing. Our measure of success is getting the salamander protected. People are going to spin it to avoid the real issue, which is how the city has dealt with the Endangered Species Act at the pool."
Kleeman continued, "From 11 to 25 salamanders are harmed or killed each time the pool is cleaned. I don't hear anybody else saying that's bad. Not until my clients notified them of intent to sue did they stop."
But for die-hard swimmers like Mark Gentle, Kleeman's lawsuit has deepened fears that the pool could soon be closed or operated under severe restrictions. "Even if the developers lose they win," says Gentle, who has swum in Barton Springs daily for the past 15 years. "They have now entered into the consciousness of everyone that maybe there's something wrong with the Endangered Species Act if it closes Barton Springs Pool." Gentle is one of several swimmers who now question the wisdom of getting the salamander on the federal list. "What has been the benefit to the public of listing the salamander?" he asks. "It hasn't stopped any development projects that I know of. It's the development of the recharge zone, not the cleaning of the pool, that threatens the life of the salamander. That's what the focus should be on."
Kleeman, however, has made the pool the focus. And he can contend that the city's pool-cleaning methods, which are far more benign now than they were a decade ago when chlorine was used to clean the shallow end of the pool, are bad for the salamander. Meanwhile, the fact that the salamander has survived for millennia despite regular cleanings, numerous floods, and millions of swimmers, goes unsaid.
While both sides claim they want to do what is best for the salamander, neither side looks particularly good. Both look petty and motivated primarily by political gain. Meanwhile, swimmers are taking it in the trunks. Large sections of the pool have been closed. Buoys prevent swimmers from using the beach area on the north side. Ugly orange cones line the sidewalk. The barriers make the pool far less enjoyable and far less safe. The shallow end continues to be dangerously slick. The cones and buoys are one more indication that lawyers - guided by politics instead of common sense - have gained too much control over a resource that belongs to the entire city of Austin.
The ultimate irony may be that the Greens have argued for years that getting federal protection for the salamander was the best way to preserve the pool. In the long run, though, that same federal protection may be the thing that keeps the Greens and everyone else from enjoying Barton Springs. If that happens, the correct literary heading won't be irony or coincidence. That would fall under the genre of tragedy.
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