March 10, 2005

City rejects coyote claim

Statute of limitations ran out

By Kymberli W. Brady
Staff Writer

A stunning move by the City Attorney’s office on Tuesday has attorneys and Villas of Almaden representatives howling mad once again.

“Notice is hereby given that the claim which you presented to the City Clerk on February 17, 2005 is being returned for all incidents that occurred before August 17, 2004,” the claim states. “With regard to such incidents, it was not presented within six months after the event or occurrence as required by law.”

According to City Attorney Rick Doyle, the notice only rejects claims filed outside of the six-month window and is not unusual.

“We reject all claims filed outside of the six-month window,” he says. “It’s fairly common in our office. To the extent there’s anything beyond that, we’ll look into it and respond within the 45 days allowed. Their only recourse is to get a court to allow them to file the claim. However, I suspect we will be dealing with this with respect to matters that have taken place in the last six months.”

Doyle maintains that he doesn’t believe the Villas have a case, in light of the “natural condition” that exists on the property.

“I don’t think there’s a basis for liability,” Doyle claims. “It is a natural condition. However, we are still trying to work with Vector Control and the residents. I’d like to see a solution going forward without going to court—let’s find a game plan and try to resolve these issues.”

According to Dana Tsubota of the law firm of Miller, Starr & Regalia, the city has alleged the Villas’ claim is untimely, but only with respect to long-past incidents. The city made no comment with respect to the current claim.
While not a formal lawsuit, the tort claim, an 11-page document filed two weeks ago by Michael E. Di Geronimo on behalf of the Villas’ 300-member HOA, asked for unspecified damages and reimbursement of legal fees. It was also a required “first step” in the legal process.

“If you are going to sue a government agency pursuant to a government code, then you must file a tort claim,” says Tsubota. “It’s a procedural requirement to filing a lawsuit.”

Under the government code, the city has 30 days to address the claim, after which Tsubota says they will have a better idea of how they will proceed.

“A tort claim is designed to give the city the opportunity to address a problem before a situation involves litigation,” she stresses. “This process is specifically designed to allow the city and any claimants to work together to resolve an issue. That’s what we’re hoping for.”

Doyle argues that the city has 45 days to respond—and they plan to.

“We will still process the claim,” he says.

Not lacking for attention
The ongoing back and forth between residents and the city has garnered a substantial amount of media attention, including a heated discussion on the “Gene Burns Show”

The coyote debate, Burns says, is exactly the type of issue he looks to feature on his issue-oriented call-in program on KGO Radio weekdays from 7–10 p.m. However, he had several of his own unanswered questions following the March 2 program.

“I have little patience with distorted thinking,” he says. “I believe people come first and animals come second. Having grown up with animals that doesn’t mean I don’t like them.”

Burns maintains that in a showdown between an animal and a human being making peaceful use of his environment, the animal has to yield.

“Even I was unprepared for the marginally irrational defenders of these coyotes,” he says. “One woman ranted and raved about how we are overpopulating their land. This is not a group of crazed people out indiscriminately destroying coyotes for the hell of it. They’ve built their homes with the necessary permits and in good faith. My sentiments are to side with the homeowners—this is an established community and in a battle between the two, they ought to win.”

After a call from Jon Cicirelli, the deputy director of Animal Control, Burns questioned whether relationships between the city and outside organizations might be clouding the contentious issue.

“They can make their own rules,” he says. “But someone needs to investigate who’s in bed with whom. If you have paid city employees siding with one group, then they are not working in the best interest of the people. Somebody in this chain is short circuiting it.”

Burns adds that in situations where it is a matter of coyotes versus residents, the government needs to see to it that residents win, as long as there is no indiscriminate killing of the offending class.

“That this is even an issue at the dawn of the 21st century is mind boggling to me,” he says. “Unless San Jose can figure out a way to send the coyotes a tax bill, then the government should be working for the people.”

Concerns are not ‘Villas specific’
Given an undeniable increase in the number of coyote “calls for service,” as reported by Santa Clara County from 58 in 2002 to 173 in 2004, county officials say the valley is overpopulated by an estimated ratio of 10/1. The problem “area” has also grown to include a large portion of south San Jose—creating what County Supervisor Don Gage calls an “infestation.”

“It really boils down to creatures in the wild,” he says. “They don’t like human beings and they tend to avoid them. When you see a lot of coyotes, it means that there are a lot more out there that you don’t see.”

Yet, according to Monica Engebretson, senior program coordinator for the Animal Protection Institute [API], simply seeing a coyote is not cause for alarm and she blames both misinformation and irrational fear associated with coyotes for the “knee-jerk reaction” to call and remove it.

“While positive reactions to the presence of coyotes are no more or less valid than negative ones, they are unlikely to be registered, as they do not require change in status quo,” Engebretson says. “No one asks for assistance in enjoying benefits derived from the presence of coyotes.”

The bigger issue lies in establishing an ecological balance. Gage contends that animals will naturally increase in numbers in environments where food is plentiful—citing documentation where wild pigs produce two litters instead of one under plentiful conditions.

Engebretson does side with Gage in that suburban neighborhoods, especially those adjacent to open space, serve as ideal habitats for coyotes by offering year-round food, water, and shelter. However, she says the interactions between people and coyotes have increased nationwide in recent years because of population growth, sprawl, and other “human-wrought” changes to the environment.

“Simply put, if more coyotes are in the area it is likely because of the high availability of food whether it be rodents, garbage, pet food, or free roaming cats,” she explains. “It is unlikely that the coyotes in the areas are “overpopulated” in terms of their ability to remain in equilibrium with the food supply available in the area. As is often the case with human-wildlife conflicts, there typically exists no biological “overpopulation” problem but rather a human perception problem and land use conflict.”

“In nature, if the food dies down, they breed less or die down themselves,” Gage explains. “The better the habitat, the bigger the population—that’s the balance. There’s enough food here with cats, dogs, cat food and dog food to upset that and they’re growing in population. It’s an infestation and it’s out of balance—precisely why the county has the provision to trap to control in an unnatural environment.”

Numbers don’t lie—or do they?
In a report submitted to the County Board of Supervisors on Dec. 14, the District stated that they only support trapping as a last resort, after all other options have been utilized or the situation has risen to a “Yellow Threat Incident,” which may result in a human injury or illness, or a “Red Threat Incident,” which has resulted in one.

They maintain that while trapping plays a critical role in the integrated management plan for coyotes, it does not provide a long-term solution for a community with coyote problems and should only be implemented when an “imminent threat to human health and safety” exists. However, it does remove the “problem coyote” that constitutes a threat to community health or safety, as was utilized in approximately 10 percent of the cases requesting service, according to Vector Control District Trapping Data, shown below.

The data also shows that the number of coyote requests for service rose an estimated 300 percent from 2002 to 2004, prompting some officials to question whether the bigger concern might be the issue of overpopulation—a problem, says Gage, that could wipe out an entire species.

Both sides continue to disagree on what the numbers really say or what, if anything, might be altering their accuracy.

Those numbers however, could be even greater. One report claims that coyote related calls to the city’s Department of Animal Control were being forwarded to the Silicon Valley Wildlife Center instead of Vector Control—missing the county radar screen all together.

“We’re still trying to sort that out and see if that’s really happening,” replied Santa Clara County Department of Environmental Health Director Ben Gale. “We haven’t had a lot of luck on it yet, but are still looking into trying to establish what’s really happening out there. We certainly want the calls to come to our office and hopefully, if readers have issues with respect to coyotes, they should be contacting our vector control unit. That would be our preference.”

Behind the scenes
When Vector Control refused to continue trapping after the City Council adopted an ordinance that banned the feeding of wildlife within city limits, opponents questioned what they called “carefully crafted text” that served as a backdoor attempt by animal rights groups to prohibit trapping of all types.

Although Doyle claims that the ordinance was drafted by his office, and with no intent to tip the scales in either direction, Engebretson says her office provided the text.

“The Animal Protection Institute provided a model feeding ordinance that was adopted by San Jose,” she states. “It was altered a bit from our model but still represents an important step forward in reducing human/coyote conflicts—provided the new ordinance is properly followed and enforced.”

If and when the time comes when overpopulation might necessitate the need to trap in order to save other wildlife species and protect human safety, Engebretson admits that actual threats to sensitive species would have to be evaluated on a case-by-case basis.

“It is highly unlikely that coyotes are “overpopulated” in a biological sense,” she says. “Coyotes are small mammal specialists; a large portion of their diet consists of small rodents (mice, gophers, rats). In most areas, these species are far from becoming endangered. Moreover, lethal control efforts have proven to be ineffective in the long term, because coyotes are able to respond to anthropogenic population reductions through compensatory mortality.”

“Once trapped and removed, coyotes will soon fill the void by increasing their reproductive rate and litter size and by breeding at an earlier age,” she adds. “Coyotes from outside the community will also migrate in to fill the empty ecological niche. Hence, indiscriminately trapping and killing coyotes is often counter-productive, and may actually lead to population increases.”

With the increase in coyote-related requests for service, as reported by Santa Clara County Vector Control in December from as low as 58 in 2002 to 173 in 2004, Pyle feels that the problem warrants a larger, more proactive plan and is currently working on putting together a District 10 town hall meeting to address all wildlife concerns.

It’s a problem that isn’t just Villas-specific, rather one that should be handled district-wide.

Looking ahead
“Residents need to be honest with themselves and their neighbors about whether or not they are indeed implementing recommended suggestions,” exclaims Engebretson. “The final step in a proactive coyote program is re-instilling or maintaining the coyote’s natural fear of humans.  Appropriate methods include, making loud noises, throwing dirt or sticks, strong blasts from a water hose or super-soaker squirt gun, cap guns, and in extreme cases rubber bullets may be used.”

Although Gale says he has no problem with and will work toward ongoing education, he made it very clear that education does not have to exist first. The county will continue to use established “yellow and red” assessment guidelines in determining when to proceed with trapping.

“People need to understand that coyotes are part of our environment, merely seeing one, is not cause for alarm,” says Engebretson. “Unfortunately, nothing short of eradication, which would be a tragic loss, can prevent at least some people from complaining about coyotes.”