POINT BUCKLER — On a tiny spit of land just north of Pittsburg, John Sweeney is fighting government bureaucrats to realize a dream. He says he’s saving wetlands; they say he’s destroying them.
At issue is Point Buckler, a 51-acre island he bought five years ago. Sweeney wanted to recreate a dormant duck club there and launch a new kite-surfing hub for Silicon Valley executives to take advantage of windy Grizzly Bay. But his plans came to a screeching halt in September 2014 when he repaired his breached levees without permits and the government stepped in.
State officials claim that because the levees had eroded years earlier, the island had reverted to a natural tidal wetland. Now it provides critical habitat for endangered species, fish and plants, they say, so it must be protected from human intrusion.
While some call it an isolated incident, others argue that the state’s stance could have implications throughout the Suisun Marsh and the vast network of Delta islands. But the legal question will eventually be hashed out: Can private landowners lose property rights if their property naturally becomes a tidal wetland?
The battle has turned ugly, with water officials serving a rare inspection warrant March 2, bringing a sheriff’s escort after someone saw Sweeney shooting cans on the island with his pistol the week before.
“The irony of the whole thing is I’m trying to create a wetland on this island, but they won’t let me,” Sweeney, a Pittsburg resident, said during the March inspection, pointing at an unfinished duck pond, stalled after the state agency shut him down.
Sweeney bought Point Buckler in 2011. The island’s defunct duck club, formerly known as Annie Mason Duck Club, was owned by G. E. Seeno almost a century ago and three other owners after him.
Sweeney spent six months in 2014 repairing the collapsed levees using his excavator. He said the work amounted to scooping up dirt from the island, which sits above sea level, and using it to build up the berms as other duck clubs have done for decades. Sweeney said he followed the Suisun Marsh Protection Plan and a work plan provided each duck club to guide levee maintenance. The work plan protects the 165 historical duck clubs in perpetuity, and none of them need state permits to maintain their levees, he claims.
In early 2014, Suisun Resource Conservation District director Steve Chappell learned of the work Sweeney was doing and alerted state agencies, according to internal emails Sweeney obtained through a public records request.
In August, the San Francisco Bay Conservation & Development Commission said in a letter that while the island may have qualified as a “managed (man-made) wetland” under the marsh protection plan at the time it was the Annie Mason Duck Club, “a fundamental change in site conditions occurred … as a result of years of neglect, failed attempts at site management and the occurrence of natural forces.”
That change in status meant the agency now required permits to move dirt on that island. The agency further added that Sweeney’s work had polluted the bay and disrupted the natural tidal flow that allowed fragile ecosystems to take root there.
The final straw came on Sept. 11 when the San Francisco Bay Regional Water Quality Control Board issued an abatement order. It found “unauthorized construction had adversely impacted tidal marshlands and numerous beneficial uses present at the site, including estuarine habitat, fish migration, preservation of rare and endangered species, fish spawning and wildlife habitat.”
The agency required Sweeney to “restore” the island to a tidal wetland by Jan. 1. Sweeney sued the agency, a fight that has cost him more than $500,000 in legal fees. He won the first round — a stay that forced the water control board to relinquish its abatement order. The state has vowed to continue the fight, so on March 28, Sweeney filed for a court injunction against the state board saying it exceeded its jurisdiction and should be banned from ordering any further abatement orders.
“We have not made a final determination as to the extent of wetlands or federal jurisdictional waters present on Point Buckler Island,” said Dyan Whyte, water control board assistant executive officer, in an email to this newspaper. However, Whyte said that aerial photos show natural tidal action and channels have infiltrated the island for 25 to 30 years, and those natural wetlands deserve protection under state policies and laws.
Sweeney said that part of the problem stemmed from a map of islands in the Suisun Marsh area created by biologist Stuart Siegel in 2003 that labeled Point Buckler as a tidal marsh. Various state agencies have used the map to prove progress in restoring wetlands in the area. Siegel explained that the map didn’t indicate how the island became a tidal marsh, just that it was one.
However, Sweeney hired an expert during the court case to make his own assessment of Point Buckler, and his findings were quite different.
“Results of the analysis provide indication that the majority of Point Buckler was nontidal … in 2010 which is before the island maintenance work conducted by John Sweeney,” wetlands regulatory scientist Terry Huffman concluded in court documents. Sweeney’s attorney, Lawrence Bazel, cites the Suisun Marsh Preservation Act of 1978, which gives power to the duck clubs to create managed wetlands for waterfowl habitat and hunting.
“The agencies should be protecting duck clubs, not destroying them,” he said. “If a duck club can’t do what the Point Buckler Club did — maintaining and repairing its levee — than all duck clubs are in danger.”
Ducks Unlimited spokesman Devin Blankenship said he was not concerned that other clubs could be at risk of closure, and said Sweeney’s situation appeared to be an “isolated incident.”
Either way, in internal emails, Suisun Marsh oversight agencies have been fretting over the Point Buckler fight.
In April 2015, Kristin Garrison, a senior environmental scientist with the Suisun Marsh Program, wrote colleagues: “This has great regulatory implications and relates to the tidal versus managed wetlands after levee breach issue. Given the sensitivity of the subject, please use discretion regarding distribution.”
Bay conservation commission attorney John Bowers, in a September email to others in his agency, discussed Sweeney’s argument that he didn’t need permits: “Unfortunately, that is not an argument that can be casually dismissed, however much we might like to do so.”
Contact Matthias Gafni at 925-952-5026. Follow him at Twitter.com/mgafni.
