Terms and Terns at Alameda Point

(Submitted to, but not posted by, The Alamedan March 13, 2013)

At Tuesday’s meeting, City Council will be asked to authorize City Manager John Russo to send a letter to the U.S. Navy supporting “the Navy’s decision to modify its surplus determination and continue Federal ownership of approximately seventy-four (74) acres of formerly surplus property in the Northwest Territory portion of NAS Alameda.”

The prose wouldn’t have earned Mr. Russo an “A” in “Daily Themes,” but it might have won an Oscar for obscurity. On its face, the letter seems harmless enough.  It’s patriotic to support the Navy.  And, in these hard economic times, it’s good to see the federal government hanging onto, rather than getting rid of, property.

But let’s translate the letter from the bureaucratese.  What the city manager appears to seeking is permission to tell the Navy that the city endorses the terms of the proposed deal by which the Navy will transfer land at Alameda Point to the Veterans Administration.

If that is indeed the meaning, the message is far more troubling.  In the effect, the city would be:

  • Re-writing its own deal with the Navy – without amending the no-cost conveyance agreement — to accept less land than the Navy is obligated to deliver.
  • Reversing years of community support – reiterated by open-space advocates before Council just two weeks ago – for creation of a national wildlife refuge at Alameda Point.

Not so innocuous after all.

These consequences flow from the interplay between the proposed deal with the V.A. and its deal with the city, on the one hand, and with the city’s prior plans – and the community’s expectations – for the use of Alameda Point, on the other.

As described in documents attached to the staff report, the proposed deal between the Navy and the V.A. provides that:

  • The Navy will transfer 624 acres at Alameda Point, including 74 acres carved out of the Northwest Territories, to the V.A.;
  • The V.A. will develop ll2.4 acres for an out-patient clinic and columbarium;
  • On the remaining 511.3 acres of “Undeveloped V.A. Property,” the V.A. will maintain the existing 9.7 acre least tern colony and take “avoidance and minimization” measures to protect it.

As long as the V.A. takes those measures, it may use the rest of the “Undeveloped V.A. Property” as it sees fit.  Among the uses contemplated by the V.A. for the area are disaster staging and supply storage.

The first problem arises from the extent of the property conveyed.

Under the Economic Development Conveyance Memorandum of Agreement signed in June 2000, the Navy agreed to convey what the MOA refers to as the “EDC Parcels” to the city.  Among the EDC parcels is the 220-acre area known as the Northwest Territories, which the General Plan designates for open space and parks.  The MOA twice has been amended, most recently in January 2012, but the acreage to be conveyed has remained the same.

Under its deal with the V.A., the Navy agrees to transfer 74 acres carved out of the Northwest Territories to the V.A.   But this is the same land the Navy already is obligated to deliver to the city.  And while it may be true that the federal government is able to print money, even the Obama administration can’t clone real estate. For the Navy to go forward with its deal with the Navy, it’s got to revise its deal with the city.

Surrendering the 74 acres invariably will affect the long-standing plans to use the Northwest Territories for a sports complex and regional park.  So why would the city go along?  Staff is glad you asked.  Take a look at the “non-binding Formal Term Sheet” – another great example of oxymoronic bureaucratese — that staff is also asking council to approve Tuesday.  According to the staff report, the V.A. will bestow $12.5 million worth of infrastructure on the city once it gets the full 624-acre parcel.  Thanks to this gift by the V.A., the city actually saves money by agreeing to give up 74 acres from the Northwest Territories.

City staff has displayed a knack for coming up with putative benefits that allegedly compensate for adverse economic consequences.  (Remember the public safety contracts?)  But one wonders:

How does the city put a $12.5 million value on infrastructure for the Northwest Territories when it hasn’t even begun the process of preparing a master infrastructure plan for the Point as a whole?  Why is the city claiming it is a recipient of federal largesse when the formal term sheet – repeatedly – states that the “primary beneficiary” of the work is the V.A.?  And wouldn’t the East Bay Regional Park District have borne at least part of the cost of building the roadway and utility lines to the Northwest Territories if the V.A. had not moved its project into that area?

But suppose staff is right and what the city is getting from the V.A. is worth more than what it is giving up to the Navy.  If so, why isn’t the city amending the conveyance agreement with the Navy to reflect the reduced acreage? That’s what parties to a contract normally do when they change the terms of a deal.  It’s only a guess, but perhaps staff is trying to find a way to avoid further scrutiny of its maneuvers.  According to Professor Paul Kibel of the Center on Urban Environmental Law, an amendment to the contract between the Navy and the city reducing the acreage being conveyed would trigger environmental review under state law.  But if you characterize the transaction as a decision by the Navy to “modify its surplus determination” rather than a decision by the city to take less land, maybe you won’t have to bother withthat.

The second problem with a letter endorsing the deal between the Navy and the V.A. arises from the nature of the uses contemplated by the V.A.

The least terns began nesting between two runways at the former Naval Air Station in 1976, and it always has been the goal of Alameda open-space advocates to protect the existing least tern colony.  But that has never been all they had in mind.  Instead, they envisioned creation at the Point of a true national wildlife refuge whose purpose, in the words of the U.S. Fish & Wildlife Service, would be “to protect and enhance migratory birds and other wildlife, particularly threatened and endangered species; and to provide opportunities for environmental education.”  Habitat enhancement, not just predator control, would be the goal.  And the public, not just the biologists, would be the target audience.

The Community Reuse Plan adopted in 1996 expressed this vision, which was fleshed out in a comprehensive conservation plan issued in 1998.  It then was written into law in 2003 when the city added Chapter 9 of the General Plan dealing with the redevelopment of Alameda Point.  And just two weeks ago, conservationists got Councilman Stewart Chen, who was elected with the endorsement of the Sierrra Club, to propose a resolution re-affirming the city’s support for creating a national wildlife refuge at the Point. (Councilman Tony Daysog co-sponsored the resolution).

The proposed deal between the Navy and the V.A focuses on the maintenance of the existing lease tern colony rather than creation of the wildlife refuge envisioned by the Community Reuse Plan, the comprehensive conservation plan, and the General Plan.  Once it gets the 624 acres from the Navy, the V.A. will be obligated to comply with the more than 40 “avoidance and minimization” measures, including vegetation control and weed removal, fence maintenance, pre-season nesting site preparation, in-season monitoring, management of feral cats, and control of avian predators.

These measures may in fact protect the least tern colony.  But they do nothing to provide habitat enhancement for other migratory birds and wildlife or educational opportunities for the public.  Unlike the original wildlife refuge plan, the V.A.’s proposal doesn’t include expanding and connecting the runway wetlands; planting grasslands for migatory bird and wildlife to hunt and forage in; building screened observation platforms for viewing and photographing wildlife, or conducting regular guided nature walks and educational programs.  By the same token, using the “Undeveloped V.A. Property” for disaster staging and supply storage won’t do much to promote conservation. And what if the least tern colony suddenly disappeared? In that event, the V.A. would be free to develop the undeveloped property for even commercial purposes if it so chose.

The public got its first whiff that the city intended to go along with the V.A.’s plan when staff published a new Alameda Point zoning map in which the area designated for years as “Wildlife Refuge” was re-labelled “Federal Facilities.”  It was to preserve the vision of a true national wildlife refuge that open-space advocates prepared the resolution presented to council two weeks ago.  Regrettably, the resolution’s sponsor, Councilman Chen, didn’t seem to get the point.  After declaring that all federal agencies “were in unison” about preserving a wildlife refuge, he then assured the audience that the V.A. “doesn’t know what to do” with the undeveloped property:  “Either they don’t want it or they’re reluctant to take it.”  And he then acceded to the city manager’s request to defer a vote on the resolution to give staff a chance to massage the language to get rid of “red flags.”

The less charitable among us might suspect that the city manager had just snookered Councilman Chen and the conservationists.  Now the vote to support the Navy-V.A. deal will precede vote on the resolution to support creation of a wildlife refuge.  If council goes along with staff Tuesday, it really won’t matter much what kind of tweaked resolution staff ultimately presents.  An unequivocal declaration by council two weeks ago might have given the city leverage to convince the Navy and the V.A. to re-consider their deal in order to keep the glimmer of a wildlife refuge alive.  But even a strongly worded statement two weeks from now will ring hollow if the city already has endorsed the Navy-V.A. agreement.

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