by By Richard Fausset and Nicholas Riccardi, Tim
Tuesday, Dec. 17, 2002 at 4:07 PM
From the LA Times Monday Dec.16th, 2002
Reacting to disclosures that Newhall Land & Farming destroyed endangered plants on its property, environmental activists and some planners are calling for restrictions on confidentiality agreements that prevent environmental consultants from sharing information with the public.
The existence of suspected fields of San Fernando Valley spineflowers, an endangered plant that lives on property that Newhall Land wants to use for housing, was not revealed for two years after the flowers were discovered. That was because the consulting botanists who located them were required by Newhall Land to sign a confidentiality agreement -- an increasingly common legal practice that critics contend violates the spirit of state environmental laws.
Such agreements are made possible by policies in Los Angeles County and some other jurisdictions that allow developers to select consultants to write environmental impact reports. The county officials say that having the county directly control the consultants would be too cumbersome.
But some critics and planning experts say that allowing developers to guide the writers of environmental impact reports -- rather than insisting they work directly for the county -- essentially lets builders police themselves.
Attorney Jan Chatten-Brown wants state lawmakers to bar the practice but says there has been little interest in Sacramento. "People have said, 'Where are the horror stories?' " she said. "Well, here it is!"
In May of 2000, the state Department of Fish and Game recommended that Newhall Land search its 12,000 acres for the spineflower, which had been believed extinct until it was rediscovered on another development site in 1999.
The developer retained an environmental consultant to look for the plants. The consultants found one stand of spineflowers, then located several other fields spread throughout areas slated for high-density housing. But Newhall Land did not send the samples from the other fields to labs to confirm they were the protected plant. Instead, the developer ordered its consultants to stop surveying and reminded them they had signed a confidentiality agreement, court records and company officials say.
The next year, Fish and Game officers began investigating reports that Newhall Land was underreporting and destroying spineflowers on its site. The investigation was stymied when the biologists who discovered the tiny plants refused to give officials any details of their findings, citing the confidentiality statements they had signed with the company, according to court records.
In environmental documents filed with the county Dec. 2, after a search warrant served on the Newhall Land property and an investigation by the Los Angeles County district attorney's office, the developer acknowledged the earlier discovery of other spineflowers and the "unconfirmed" ones that the developer had never tested. By that time, Newhall Land had plowed under what state officials say were thousands of flowers in what the developer says was a farming operation.
Newhall Land spokeswoman Marlee Lauffer said the company makes all its environmental consultants sign confidentiality statements. In the case of the spineflower, she said, all the information became public when the company released its revised environmental impact report last week.
"Everything that we do eventually becomes public," she said.
Regardless, some say confidentiality agreements violate the spirit of the law that governs development -- the California Environmental Quality Act, which requires a public review of projects that could do ecological harm.
Terry Roberts, a former city planner and head of the state clearinghouse in the Office of Planning Research, said she was surprised that consultants would be required to sign confidentiality agreements. "An important purpose of the CEQA process is to have all of this information to be made public," Roberts said, stressing that she was speaking generally, not addressing the Newhall Land case specifically.
Attorney Chatten-Brown, who was co-counsel in a lawsuit that forced the developer to rewrite parts of its environmental review, said that "the confidentiality requirement is clearly [antithetical] to the intent of CEQA."
And Darryl Koutnik, head of the county's impact analysis division, said the county tries to counter confidentiality agreements by requiring all developers to include every consultant's report in final environmental documents.
Still, he said, confidentiality deals are "obviously a bad thing as far as public disclosure. The company ... proposing the information will then be able to control what gets put out and what doesn't."
Koutnik said such agreements are increasing, which he attributed to the rise in lawsuits attempting to block development. In recent months, members of the California Native Plant Society have been considering starting a certification program for botanists that would include a code of ethics. Some are now wondering whether that code should include a ban on confidentiality statements.
"We keep reviewing environmental documents prepared by botanists that are just incompetent, or they're committing fraud and twisting the facts," said David Magney, a past president of the society who is heading up the certification effort. "Then, when a company like Newhall forces all of their biologists to sign confidentiality statements, it makes things that much harder to track down."
While some consultants fear losing business if they do not sign confidentiality agreements, others, such as Santa Clarita biologist Frank Hovore, refuse to sign them outright. At the Sacramento consulting company Jones & Stokes, confidentiality is fine for surveys that are not part of the state environmental review process. But staff attorney Ken Bogdan said that the company always fully discloses its findings to government when it is preparing California Environmental Quality Act reports.
Los Angeles County allows Newhall Land and other developers to select and manage the consultants who file environmental documents. Only after the documents are filed does the county's planning agency double-check them.
A few other large jurisdictions, the city of San Francisco for one, use the same procedure, but most government agencies prefer to have a direct relationship with consultants, planning experts say.
"There's no question that this favors the applicants," said William Fulton, a former planning consultant who has written books on development in Southern California. "And given that unincorporated L.A. County has a reputation as a pro-development jurisdiction, it's politically convenient."
Los Angeles officials say they scrupulously fact-check the assertions of developers' consultants. "Some consultants have worked with us really well, and others have presented us with a very difficult situation and have tended to resist some of the direction they have been given," said Don Culbertson, administrator of the county's planning division. "Until we have a document that we believe represents a significant draft for public review, it doesn't go anywhere."
Still, as the spineflower case illustrates, developers control the information under Los Angeles County's procedures. Koutnik said officials can do only so many inspections with the resources they have. He is one of only two biologists on the planning department's payroll.
"We would love to be able to have sufficient staffing to be able to monitor those activities and keep abreast of them," Koutnik said. "But we're so swamped with so many different cases across the county that we simply don't have enough staff to keep up with the activities."