A group of residents that winters at the El Morro Village mobile home park emerged Monday as the latest obstacle to the state's plan to turn the south Orange County park into a campground.
They stand about ankle high, go by the formal name of charadrius alexandrinus nivosus and are being defended by a conservative commentator and lawyer who has never been confused with an environment crusader.
Hugh Hewitt told a federal judge Monday in Santa Ana that the well-being of the Western snowy plover ‹ an endangered migratory shorebird -- would be disrupted by the removal or demolition of the beachfront trailers.
"The species is desperate," Hewitt pleaded.
The legal tactic is a reversal of the norm in which environmentalists cite the presence of an endangered species in an effort to block development. In this case the attorney for the trailer park residents, who were to have abandoned their trailers Dec. 31, is hoping the small seashore bird will protect a development.
Hewitt, who has represented developers in the past and argued against endangered species laws, asked the judge for an injunction to prevent the state from forcing the El Morro tenants he represents to comply with orders to remove or destroy their homes.
He argued that parks officials had not adequately assessed the threats posed to the snowy plover and therefore were putting his clients at risk of violating the U.S. Endangered Species Act.
"What happens if there's a snowy plover dead on that beach when we blow up those pilings?" Hewitt asked, later acknowledging outside the courtroom that "I am not a species guy. But I don't want my clients going to jail for doing the state's dirty work."
State lawyers argued that the state Department of Parks and Recreations had obtained all the necessary permits and assurances. They described the latest move as a subterfuge, saying El Morro residents had no interest in protecting the environment but rather were digging deeper into a bag of legal tricks at the eleventh hour to try to extend their leases.
"That's why we're here," Deputy Atty. Gen. Hayley Peterson said. "This is their last-ditch effortŠ. This is a delay tactic."
U.S. District Judge David O. Carter did not issue an immediate ruling. The state had previously agreed that no action would be taken for 15 days following Monday's hearing.
The federal lawsuit is one of two legal actions filed in November by El Morro residents. The other suit, filed in Orange County Superior Court, alleges that by not renewing the leases, the state is violating the California Mobilehome Residency Law, which provides legal protections to mobile home owners.
Many of the 295 families who live in El Morro Village signed 20-year leases in 1979, when the Irvine Co. sold the land to the state. Five years ago, residents were given a lease extension that expired at year's end.
State officials have sent eviction notices, and also offered a 90-day transition period that would allow residents to stay until April 1. Those who accept the offer must pay the state $3,000 to cover the cost of the mobile home removal or demolition, plus water and utility bills. About two dozen residents have expressed interest in the extension. But others are waiting for decisions in the two lawsuits.
The Western snowy plover is distinguished by pale brown markings with dark patches on either side of the upper breast, and dark gray to blackish legs. The birds weigh about 2 ounces and are about 6 inches long. The Pacific Coast population of the bird breeds primarily on beaches from southern Washington to southern Baja California, Mexico, according to the U.S. Fish and Wildlife Service. The nesting season extends from early March through late September.
In his arguments, Hewitt quoted from a Dec. 29 letter from a U.S. Fish and Wildlife Service official who acknowledged that "plovers are likely to occasionally use the beach around the trailers for foraging." At one point, he argued that a private developer would "be laughed out of the courtroom" for moving ahead with a project like El Morro that posed threats to endangered species.
Hewitt speaks from experience.
Among the developers he has represented is one who wanted to build on land inhabited by the endangered California gnatcatcher, and another who wanted to build in a park in Ventura County that was home to astragalus brauntonii, an endangered plant found in only four places in the world.
"The plant is flourishing," Hewitt said during that 1998 case.
Judge Carter said that even if he granted an injunction to stop the trailers from being removed or destroyed, residents might not be able to live in them. But that question, he said, might fall to the state court to decide.
Jerry Dacus, an Orange County firefighter who has lived in El Morro for 18 years, said he supported any efforts to protect endangered species. But he said such arguments took the focus off the hardships that many residents were facing, and he suggested that the state was deliberately avoiding discussing the human impact of their plan.
"I think they [state officials] haven't addressed the human issue," he said.
"I'm young enough, and have means enough [to find a new home]. But there's a lot of people who don't know what they're going to do now."
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