Burrowing Owls Issue Leads to Litigation Against Residence Inn Hotel

Photo Courtesy Wikipedia

The Burrowing Owl Preservation Society, a non-profit incorporated group whose membership is based in Yolo County, has become the latest entity to file suit against a pending development in Davis.  The group, represented by attorney Don Mooney, filed their complaint on January 5 and served the city earlier this week, on January 10.

The litigation challenges the city council’s approval of a Mitigated Negative Declaration (MND) for the Marriott Residence Inn, which was unanimously passed in November on a 4-0 by the Davis City Council (with Rochelle Swanson abstaining).  The project, located on Fermi Place near the intersection of Mace Boulevard and Second Street, consists of four stories; 120 rooms, including studio and one-bedroom units; fitness room; lobby; meeting room; guest laundry; outdoor pool; photovoltaic panels; surface parking with 120 spaces; vehicular access from Fermi Place; and bicycle/pedestrian access from Fermi Place and Second Street.

The complaint notes that, in the MND, the council “concluded that the Project would not have a significant effect on the environment despite, inter alia, the fact that substantial evidence supports a fair argument that the Project will have significant environmental impacts to biological resources.”

The litigants believe, “At least one pair of burrowing owls occupies the site. The burrowing owl is a State Species of Special Concern and a Federal Bird of Conservation Concern. The burrowing owl pair at the Project site is known to have fledged young for at least the last two years.”

The group is concerned because the bird was once a “widely distributed, common grassland bird,” but its numbers have significantly declined in the last half century.

Catherine Portman, a representative from the group, told the Vanguard, “The city of Davis has put this forward as a Mitigated Negative Declaration, meaning that there may be some impacts but they have recommended mitigations that they think reduces the impact to less than significant which is what CEQA asks them to do.

“Our decision to take legal action on this is primarily focused on the lead agencies and the failures of CEQA,” she explained.  “We’ve never done this before, I never wanted to solve problems with litigation.”

The problem, she believes, is the mitigation method, which is by “evicting them.”

She explained that the California Department of Fish and Wildlife (CDFW) “routinely allows owls to be evicted from their burrows.”

The agency calls this practice “passive relocation.”

Ms. Portman believes this terminology is misleading as it does not encompass passively picking up the bird and moving it somewhere else.  She added that  “it’s eviction, burrowing owls are dependent for their survival  year round (on their burrow).”  The burrow is not something seasonal or optional, “it’s their shelter,” she explained.

Literature notes, “Evictions continue despite CDFW acknowledgement that owls are likely harmed when they are evicted.”

CDFW’s 2012 Staff Report on Burrowing Owl Mitigation explains: “Eviction of burrowing owls is a potentially significant impact under CEQA… The long-term demographic consequences of these techniques have not been thoroughly evaluated, and the fate of evicted or excluded burrowing owls has not been systematically studied. Because burrowing owls are dependent on burrows at all times of the year for survival and/or reproduction, evicting them from nesting, roosting, and satellite burrows may lead to indirect impacts or take.”

In their complaint, Mr. Mooney writes, “Respondents’ action in adopting the Mitigated Negative Declaration constitutes a violation of CEQA in that Respondents failed to proceed in the manner required by law and their decision not to prepare an EIR is not supported by substantial evidence. Based upon substantial evidence in the record, a ‘fair argument’ exists that the project may have a significant impact on the environment.

“Substantial evidence in the administrative record supports a ‘fair argument’ that the Project may result in a significant impact to biological resources, in particular, the western burrowing owl, a State Species of Special Concern and a Federal Bird of Conservation Concern. Substantial evidence indicates that excluding a burrowing owl from its burrow is a significant impact and one that cannot be mitigated,” the complaint alleges.

When the city council first heard the Residence Inn project in October, they focused on LEED Certification, photovoltaic commitment and discussions with employee labor organizations.

However, the council had received two communications from groups regarding the issue of burrowing owls.  The city wrote, “Direct or in direct impacts to burrowing owl nests or individuals may occur as a result of construction, and would be considered potentially significant.”

The city added, “Avoidance of the occupied burrowing owl burrow is not possible with the proposed development plan.”

A letter from the Yolano Group writes, “The assumption is that the project impacts can be mitigated to less than significant. However, the project would have significant impacts on western burrowing owls occupying the site and those impacts could not be mitigated.”

The current litigation is the latest in a string of lawsuits or potential lawsuits in Davis developments.  Other projects that have been subject to litigation include: the hotel conference center (suit just settled); Nishi; Hyatt House, with a letter to the city; Mace Ranch Innovation Center, with a letter to the city; and now this lawsuit.

City Manager Dirk Brazil told the Vanguard, “We spend a great deal of time at the outset of projects and throughout the entire process discussing and taking whatever extra steps we can to avoid litigation when the process is complete. But we have to work within a system that makes litigation hard to avoid.”

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Marina Kalugin

    aren’t those the most adorable burrowing owls ever?   nice pictures whoever took them….. now that all of the Davis/Yolo and CA elections are over, we can focus on the real Davis work.. in my view there is little more important then saving the wildlife habitat..  like the burrowing owls, swainsons hawks, elderberry beetles etc.

    Thankfully we have some truly stellar nonprofits around to come forward and help the city get their priorities straight.

  2. Don Shor

    So is this lawsuit #6? Is there still a running tally of the direct and indirect costs of these suits, and their impact on the city’s economic development and budget strategies?

      1. Alan Pryor

        1) How is it that the City has any “Direct or Indirect Litigation Costs” at all since it is a standard clause in all development contracts that the developer will indemnify the City for any litigation costs? That is, in addition to paying for all staff time to process their application, the developer has to reimburse the City for all litgation expenses.

        2) The problem here is that the developer and the City should clearly have done a “Focused EIR” for the project instead of a MND. If our planning dept and developers continually keep trying to short-cut CEQA requirements, why is there outrage that they get themselves sued again and again. This is a mess of the City’s and developers own doing.

        1. Howard P

          Depending on how well site review and initial environmental assessment checklist is performed, there is not necessarily a need for a focused EIR.  It is not ‘automatic’…

          I do not know what the facts of  the ‘initial study’ procedures were in this case…

        2. Mark West

          “if there is no way to mitigate the impact, how does a Focused EIR make it better?”

          It doesn’t make it better, it just makes the project more expensive and perhaps a little easier to defend in court. The findings will be much the same.

          I suspect that if a focused EIR had been performed, the complaint would argue that a full EIR was required. The City is not ‘trying to short-cut CEQA’ as Alan P. claims, but is proposing the rational and cost-effective approach for each specific project as the CEQA process is designed. The problem is that we have a radical contingent in town that will use all means available to obstruct new development, even on lands designated and zoned for such years ago.

        3. Ols Keith

          There’s a protected burrowing owl habitat on the Wildhorse Golf Course where there are plenty of open ground squirrel tunnels that have been vacated by other burrowing owls. How about they move these owls there so we can get on with bringing in some much needed revenue to our city?

  3. Howard P

    A self-inflicted wound by the property owner… had they kept the site cultivated, the ground squirrels would not have established themselves, and the burrowing owls would have no ‘homes’ to be evicted from.

    1. Mark West

      Yes, but regular cultivation would also have increased soil erosion (wind and water) and increased air pollution from the required tractor use, increasing the local harm to the environment.

  4. Jaroslaw Waszczuk

    Former UC Davis Chancellor Linda Katehi  dedicated  62-acre plot on the south end of campus  to build and own by SunPower 16.3 megawatt solar power plant which . The solar plant which  generating only  14 percent of UC Davis’ electricity by using 62 acres of land  destroyed the  habitat for many species.
    The plant supposedly reduces the university’s carbon footprint by 9 percent what is the

  5. Howard P

    The litigants believe, “At least one pair of burrowing owls occupies the site.

    Has any documentation/proof been offered?  Don’t see it in the narrative…

    Easy to alledge, difficult to prove the negative…

  6. Marina Kalugin

    I would hope that the nonprofit starts a 24/7 surveillance just in case some folks think that the way to get rid of the  ” burrowing owl problem” would be to do something to get rid of the problem

    kinda like the historic Nishi farmhouse met an early demise..    and then it was no longer a historic farmhouse problem

  7. Marina Kalugin

    and what did I now say wrong?

    Marina Kalugin January 14, 2017 at 9:18 am
    Your comment is awaiting moderation.

    REAL cultivation does not include the use of tractors..  and creates very little pollution..

    unfortunately this are is very polluted from the cropdusters and  it would need to be designated a toxic dump site first and only then would it be suitable for humans or animals of the non rodent type..    ____roaches and termites would also still thrive though it is a little further from creeks..


    Click to Edit – 4 minutes and 40 seconds



    what did I now say wrong?

    The filter does not like the full word that ends in ____roaches.

    1. Ols Keith

      I was wondering the same thing therefor my earlier post:

      Ols Keith January 14, 2017 at 8:43 am
      There’s a protected burrowing owl habitat on the Wildhorse Golf Course where there are plenty of open ground squirrel tunnels that have been vacated by other burrowing owls. How about they move these owls there so we can get on with bringing in some much needed revenue to our city?

      I walk by this area almost everyday, there used to be 4 or 5 burrowing owls there but now there only seems to be one or two.  Seems to me this would be a great place to relocate them to.

  8. Carson

    Question, What do the owls do when a predator etc… like a skunk, raccoon or … takes their den…?  They just drop dead? No, they go somewhere else.  ridiculous.

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