In the latest twist, Fish and Wildlife has subpoenaed documents from previous owners of the parcel, presumably to discover who knew what about the property and when they knew it. One major problem facing any investigation is that even though most everyone knows the parcel was set aside as a preserve, no deed restriction has ever been filed with the County Assessor’s Office to indicate that fact.
What happened on those two acres that infuriated Riggan and other biologists and has led to a Vernal Pool–gate of incompetence and malfeasance within the City of San Diego is not as simple as the federal and state agencies’ swift request for “remedial action” might indicate. The investigation is still young. We know those 20 vernal pools where endangered species once lived have been “severely damaged.” We know misconduct in the city’s Planning and Development Department has been admitted. And we know Square One Development is facing a surge of city, state, and federal inquires. In early April, the Army Corps of Engineers notified Square One that the company had violated the Clean Water Act by grading the property. The Law Enforcement Division of Fish and Wildlife continues to investigate. Yet this case adds up to much more than a sum total of its parts. When Mickey Cafagna’s dozers went in at Miramar Point Industrial Park Unit No. 3, Parcel #341-060-90, they disturbed more than these pools and their habitat. Square One’s grading has exposed a history of bumbling conservation efforts for “set-aside” parcels. Such ineptitude is all the more damaging because the agencies that grant permits for developers are also, incongruously, charged with safeguarding much of San Diego’s ever-dwindling natural legacy.
About a month after inspecting the site, Riggan recalled for me what he knew about Unit No. 3’s history. As president during the 1970s of recon, a firm that writes environmental impact reports for threatened habitats and species, Riggan had supervised a report and a biological-resources survey in 1977 on the Arjons site for H.G. Fenton Company. At the time, Fenton was putting together a 1000-acre project for its business in Carroll Canyon, which required an environmental impact report. Fenton had to set aside three small vernal pool complexes as mitigation. Mitigation is quid pro quo — one exchanges a destroyed habitat in one spot for the active preservation of a similar habitat in another spot. In other words, to change the canyon’s habitat, Fenton agreed to maintain these vernal pool complexes in perpetuity. One of the three areas was the Arjons vernal pools, on the south rim of the canyon. A late-’70s Green victory, this was one of the first vernal pool mitigation sites in the state of California. Thus, Riggan believed the pools’ unprecedented status meant they would remain untouched — “pristine” is the biologist’s word — forever. That is, until he drove by the property in January.
Riggan was not aware that H. G. Fenton Company had in 1998 sold much of its Carroll Canyon operation, which included the three set-aside vernal pool parcels, to Hanson Aggregates Pacific Southwest, Inc., a London-based aggregate business. These parcels were a very small part of the Fenton sale, a handful of acres in a 1000-acre deal. Mickey Cafagna’s Square One Development then purchased one of the three parcels, the 8.7-acre Arjons site, from Hanson. James Wallmann, the chief counsel for Hanson, told me that on September 25, 1998, when the sale was being put together, Square One’s broker acknowledged to Hanson’s broker in a letter of intent the protected nature of the property. The letter concludes with the following statement: “As you are aware, the subject property primarily consists of protected plant species and vernal pools.” This statement that Square One knew the parcel had protected plants and vernal pools came a year before the sale date, in September 1999. Brokers for both Hanson and Square One signed this letter.
Wallmann said Hanson retains this letter and other documents that support the fact that Square One and Hanson knew the site’s “resource sensitivity.” Wallmann told me that Fenton disclosed the parcel’s sensitive nature to Hanson when Fenton sold it to Hanson. This letter and other documents have now been subpoenaed by Fish and Wildlife, presumably to bolster a charge that Cafagna and Square One Development committed a “knowing violation” because they knew the parcel had protected plants and vernal pools fully 15 months before the bulldozers scraped the parcel.
Lending credence to Wallmann’s disclosures is the fact that under California real estate law, an owner must transmit any restraints on a piece of property he or she is selling. If the owner does not disclose such restraints, the buyer can go after the seller in court and sue for damages. Hanson by law had to convey to the buyer that the site was a habitat with endangered species, to fulfill its legal duty prior to sale.
In early February Riggan began making calls and writing letters. Among the people he phoned were reporters and government agencies. (Stories quickly appeared in the Union-Tribune, the San Diego Daily Transcript, and the North County Times.) He queried Fish and Wildlife: Was a permit issued from their office for the bulldozing? No, they said. Riggan then sent two letters, the first to Tim Vendlinski, the chief of the Wetlands Regulatory Office at the Environmental Protection Agency in San Francisco. In it, Riggan describes the Arjons bulldozing as the “taking of presumptively preserved pools…[an event that] violates the Clean Water Act.” “This event,” he continued, “is so politically and biologically significant that I recommend the immediate involvement of the epa.”
The second letter was more damning. It went to Ken S. Berg, the field supervisor of the U.S. Fish and Wildlife Service, which has federal jurisdiction over the site. Riggan wrote that Cafagna’s Square One Development “is not a naïve, new firm, and Mr. Cafagna is certainly familiar with vernal pools given his participation in the mscp process.” The Multiple Species Conservation Program is the newest environmental plan on the block. The idea behind it is simple enough: preserve 172,000 acres in San Diego County (only a small portion is contiguous) to help some 85 threatened and endangered plant and animal species survive the juggernaut of development. The Multiple Species Conservation Program is a multipartisan countywide program, empowered by state and federal mandates, which aims to balance the set-aside interests of the conservationists and the demands of the builders. On occasion, the competing groups join ranks and apply to Fish and Wildlife for “take.” For example, a developer wants to build a parking lot on a sensitive site and “take,” or destroy, habitat and species. If Fish and Wildlife and the Multiple Species Conservation Program allow the developer to “take” habitat and species in one spot, that means the developer must preserve a similar site elsewhere. That’s where conservationists come in, angling for as much mitigation as possible.