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"Taking land that's already protected and that the public already owns and calling it 'mitigation' ... sets a really bad precedent," said Jeff Miller, a San Francisco-based conservation advocate with the Center for Biological Diversity, an environmental group. Typically, developers turn privately owned land — not public land — into conservation easements for mitigation purposes.
Miller also argued that the whipsnakes would not benefit from fragmented conservation sites — especially ones that aren't the best kind of habitat for the species. "It's outrageous. The project is going to destroy what we know is good whipsnake habitat [for the actual zoo expansion] ... and substitute it with much poorer habitat that whipsnakes don't use and never will use."
It is projects like these that kill off a species, Miller added. "It's death by a thousand cuts for the whipsnake. The whole reason the whipsnake is threatened to start with is that its habitat has been fragmented by urban development."
The Zoological Society and its consultants continue to argue that all of the chaparral plant communities, including the best habitat for the snake species, are protected in its plan either through easements or through lack of development. When state regulators expressed initial concerns, "they had been operating without seeing detailed plans and had heard from the opposition a lot of misinformation," said Jim Martin, a biological consultant who has been working for the zoo since 2007.
Today, regulators appear to be siding with the Zoological Society, with the US Fish and Wildlife Service recently issuing a "biological opinion" that the project will not impact the status of the snake species. This document is effectively the final step before federal agencies give the society its permits.
But even if the society gets the green light from state and federal regulatory agencies, opponents are hoping that the city council will be unwilling to support a plan that calls for the removal of public access to a section of a public park.
Emails between state agencies and the Zoological Society, which activists obtained through public records requests, reveal that state officials have recently questioned whether it's even permissible for the city to prevent the public from accessing parts of the park. In order for Knowland Park to abide by the stipulations of its deed, it must maintain "public park purposes."
According to public records, Linda Barrera, general counsel for the California Department of Fish and Wildlife, asked the Zoological Society's attorney in March what the group's plans were for "providing public access in and/or around the conservation area," in order to determine whether the expansion might violate the deed's "public park purposes" clause.
Later, after Barrera had apparently discussed these questions with the California State Parks Department — which signed the original deed of transfer — she wrote that the conservation easement could possibly be acceptable if the public would have some "limited access" to the site. Access, in this case, would come in the form of zoo visitors taking gondola rides over the site and viewing it from lookout points.
From the perspective of open space advocates, this would be a clear violation of the "public park" mandate in the Knowland deed, given that people would have to pay for admission to the zoo and then could only view this part of the park from above. "The issue became, how do you give the appearance of public access without the reality of public access?" said Baker of the plant society.
Huey Johnson, former secretary of resources for the State of California and founder of the Resource Renewal Institute, a Bay Area environmental nonprofit, said that the proposal would clearly contradict the Knowland Park agreement, and further send a troubling message about the development of parkland: "It's like letting somebody walk in and rob a bank."
Nancy Graalman, director of Defense of Place, a program of the Resource Renewal Institute that's focused on protecting parklands, added: "It's a laughable proposition that public access can be replaced by flying over it in a gondola."
Representatives from the Oakland Parks and Recreation Department declined to be interviewed for this report, despite repeated requests over several weeks. Scott Miller, the Oakland zoning manager, defended the concept of using existing public parkland for mitigation and said the city is in discussions with the Zoological Society about the best possible solution. "Designating areas for protection of sensitive biological resources is a common park purpose," he said. "We think it maintains an appropriate balance between the protection of natural resources and the public use of parkland." Plus, he added: "The zoo is an incredible resource for the city."
Vicky Waters, spokesperson for the California State Parks Department, also declined to comment, saying the state agency has no official position until permits and reviews for the project are complete. Waters also declined to say what is a permissible "public park purpose" that would meet the requirements of this kind of deed. (She did tell me, however, that the state park system currently includes nineteen conservation easements, but could not confirm if any of them were used for development mitigation).