Dog issues were not on the agenda for this meeting. However, they did arise in the Superintendent's Report, in three speeches by audience members under "Non-Agenda Items" at the end of the meeting, and in comments by Commissioners.
GGNRA Superintendent Brian O'Neill didn't address dog issues in his spoken report to the Advisory Commission, but referred them to his written report which was distributed at the meeting. Here is the section of his written report addressing dogs:
Update on Advanced Notice of Proposed Rulemaking
The draft Advanced Notice of Proposed Rulemaking (ANPR) was transmitted to the National Park Service (NPS) in Washington, D.C. in early July. The draft notice will be reviewed at NPS Headquarters, then will go to the Department of the Interior and the Office of Management and Budget for review. When approved, the notice will be published in the Federal Register, announcing how and when public comment will be taken. Efforts to secure the services of an independent third-party group to design the public comment process continue. Informative brochures and cards about enjoying the GGNRA with your dog will be available shortly, and this information will also be posted on our website at www.nps.gov/goga/pets. The brochures and cards will be available in the various visitor centers and will be distributed to all park staff. Minimal signs, needed to advise the public of the leash regulation, will continue to be installed.
This update is the 3rd in a series of public information reports on the ANPR process and pet issues within the GGNRA.
On March 21, 2001, the National Park Service (NPS) announced it would pursue an Advanced Notice of Proposed Rulemaking (ANPR) to determine whether the park should engage in formal rulemaking regarding pet management in the Golden Gate National Recreational Area (GGNRA). Currently, the regulation requiring dogs to be on leash where permitted is in effect. If undertaken, the formal rulemaking process would specifically address how pet use of the park would be managed at the GGNRA.
The draft ANPR was transmitted to NPS Headquarters in Washington, D.C. in early July. Once NPS Headquarters completes its review, the document will go to the Department of the Interior and the Office of Management and Budget for review. When approved, the ANPR will be published in the Federal Register. The Federal Register notice will announce how and when public comment will be taken.
Education on Leash Regulation
Public education and outreach efforts continue. Informative brochures and cards about enjoying the GGNRA with your dog will be available shortly, and this information will also be posted on our website at www.nps.gov/goga/pets. The brochures and cards will be available in the various visitor centers and will be distributed to park staff. Minimal signs, needed to advise the public of the leash regulation, continue to be installed.
Dog-Friendly Items Available
For the convenience of our four-legged friends and their human companions, a variety of dog treats, bowls, placemats, cards, leashes and other canine-themed items are now available at the Crissy Field Center Bookstore and the Park's newest addition, the Warming Hut at Crissy Field.
Independent Consensus Building Group
Efforts to secure the services of an independent third-party group to design the public comment process continue.
Hi. My name is Lisa Vittori.
I came here to report to you, and to ask you about the dog issue. And, luckily, I've seen what you have to say. [Holds up a printout from GGNRA website of the new publication, "Enjoying the Park with Your Dog on Leash."] I think I've been watching too many episodes of The Sopranos recently, which is why I think I'm not going to watch it anymore, because: I feel like spitting on this document. This is not the agreement that we made in January. This is not why we waived our right to speak at that meeting.
In the last few weeks, I've been talking to a lot of people, which is not what I want to spend my time doing. When Marc Albert gave his presentation [Annual Park Vegetation Management Workplan, an earlier agenda item] -- I've worked at every one of those sites for the last ten years. I've taken out Cape Ivy, I've been in Poison Oak; I've had literally 20 cases of Poison Oak -- you are utilizing my abilities in the wrong way. However, I do have to do this now. As I've been talking to people for the last three weeks about a rally we're having, people have been asking me, "Whats been happening with the Park Service?" We've been getting a lot of reports that people are being cited and ticketed; what you told us in January was that people would not be cited and and that we would have a process going on within the next 120 days -- 600 people waived their right to speak in January on the condition that you were going to work with us fairly. Now, whatever this is called, the ANPR or whatever it is, you know, I quite frankly don't give a shit about the "public process" -- or, the federal process, because I've realized that the Park Service is behaving -- has become a Trojan horse. And, I'm almost done with my three minutes.
We supported you, and I supported you in particular, doing habitat restoration and, putting, you know, saving all this open land. And what's happened is that the federal rules and regulations, which we have very little influence over in our little jurisdiction here, have come in and, you know, basically bitten us in the butt. And excuse my language, but, quite frankly, I know where every tool in the Park Service is, and I have not used any tools to do any damage to any object in the Park Service, because I'm using the public process in the way it was designed. But you are really pushing a lot of people to the point where we're going to have to start doing civil disobedience if we don't start getting a fair and equitable response from you.
I'm going to formally ask you now to schedule the dog policy for September, to give every person, every one of those two thousand people who were there in January a chance to hear what you have to say about it.
Good evening, Commissioners. My name is Michael Goldstein.
I never received any response to my question at your April 24th meeting. To remind you, I wanted to know whether this Commission had approved a letter which was signed by your Chair, Rich Bartke; and Vice-Chair, Amy Meyer. The letter, which was on your website and published in local newspapers, claimed that the Commission's 1979 Pet Policy "had been declared invalid and was no longer in force."
If the policy was not in force, then why was there a "stealth motion" -- not on the agenda -- to rescind it last November?
And, when that motion was objected to and found out of order for not being on the agenda, then why was it placed on the January 23rd agenda -- if the 1979 Pet Policy was not in force?
Clearly, the GGNRA has permitted off-leash dog recreation for decades.
When this off-leash recreation was threatened by the motion to rescind the 1979 Pet Policy, over a thousand people showed up -- and you might contrast that to nine letters that you received on one topic tonight, and a hundred people that showed up at a meeting in Sausalito, not that those are not important, but when a thousand people and almost all of your Board of Supervisors in your city here show up, that is important -- most of whom were locked out by police from attending your January 23rd meeting at the Golden Gate Club. After hearing from fewer than fifty of these thousand people who wanted to speak, the Commission cut off further speakers.
The only reason these people accepted being denied the right to speak was the Commission's decision to table the motion for a 120 day period -- during which there were explicitly to be no changes in policy or enforcement.
Instead, while announcing a complex and lengthy process known as Advanced Notice of Proposed Rulemaking in the media, the National Park Service made immediate changes on the ground, posting new signs which state, "Pets on Leash."
Today, I see that a new publication has just been issued, entitled, "Enjoying the Park with Your Dog on Leash." This is a complete rewrite of the 1979 Pet Policy. It goes into great detail, including a map and details on whether dogs are totally banned, or allowed only on leash, in each of 20 areas of the GGNRA. Except, that policy was the result of public input, discussion, and negotiation over several years -- not accomplished by management fiat, as is this new brochure.
As you know full well, the thousand people who tried to speak to you were overwhelmingly opposed to rescinding your 1979 Pet Policy. Admit reality -- you could not, politically, rescind that policy -- neither by Stealth Motion in November nor in the face of enormous outcry in January.
Now, through the signs and the new "Enjoying the Park with Your Dog on Leash" brochure and website publication, the management of the GGNRA has made a complete end-run around this Commission.
Again, I ask, did this Commission approve the "Letter to the Editor" by your Chair and Co-Chair? If so, was this done at a properly noticed, public meeting?
And, are you trying to claim that you did rescind your 1979 Pet Policy, when, in fact, you had it on your January 23rd agenda and most certainly did not vote to rescind it?
Please, don't let the GGNRA management accelerate its campaign against off-leash recreation without holding a public hearing.
If you do choose to do the right thing, please choose a venue that respects the citizens whom you've already locked out before. I see that there are facilities such as Herbst Pavilion and Festival Pavilion, just down the hill at the piers here at Fort Mason, which can easily accommodate large numbers of people.
Don't fence us out, don't lock us out -- do play your role as an oversight body.
Thank you very much.
Good evening. Im John Keating. Just to follow up on what
Mr. Goldstein was saying, when Senator Bible was giving his testimony and
describing the specific intent for you folks as serving on the Advisory Commission,
what they describe as the intent is that the Advisory Commission is there
to protect the federal bureaucrats from running roughshod over the public.
Thats your job.
I want to, tonight, warn you about how this accelerating campaign against recreation, specifically off-leash recreation, in the GGNRA, is going to cause problems for you.
While Supervisor ONeill -- Superintendent ONeill -- correctly predicts that you have a good chance for the Senate committee to pass a bill sponsored by a member of the committee, Dianne Feinstein, in a Democratic-controlled environment, of course, your chances of success in the critical House Committee on Natural Resources is very low, if you carry on the continued conduct of the GGNRA, which is hostile to recreational uses. And, the other half of the bill that you have before the Senate and the House, talks about the continuation of the existence of this committee. As you know, you have to be renewed; its set to be renewed for a twenty-year term. My understanding of the climate right now on the House committee is that you should be renewed, and youre a good organization, if you, in fact, protect the public. But, if they catch you rubber-stamping efforts by the Park Service to restrict public access, I dont think you have as good a chance of being renewed and I think they will look into the makeup of the committee, as well.
Quickly, I want to go to the issue of whats happened with this radical change in the Pet Policy. It is a radical change. You had a policy that worked well for twenty years, and its been unilaterally, completely altered. You do not need to make that radical change in the interim, while youre studying the issue. The only reason to do that is if you have decided how you want it to turn out in the end, and you know that by making the change now, you have a better chance to get it, and thats what seems to be happening.
The one thing that is clear about the case law in the area is that Superintendent ONeill and the Park Service have the discretion to not enforce this new interpretation of the regulation a different interpretation than theyve had for twenty years, and now its expedient to have a new interpretation you dont need to enforce that new interpretation while youre studying the issue. Cases are clear on that; weve provided that authority to the Park Service lawyers, I do not know if youve been provided with that.
I want to say: what is also clear is that you are required to have a public hearing. Now, the Park Service has given several excuses for not having a public hearing on this radical change that theyre making. One is that they never adopted the Pet Policy. That is simply inaccurate. Document after document confirms that the Pet Policy was adopted. The GGNRA made those representations to Congress repeatedly, it was included in the Management Plan, it has been adopted theres no question as to that.
The second argument the Park Service makes is that its
illegal, because of this general regulation. Well, thats an issue thats
been disputed, rather vigorously, and I want you to know that in the Fort
Funston litigation, the Park Services lawyers repeatedly made that argument
and the Court rejected it. The Court did not buy the Park Services
argument that they could avoid public hearings because they've had this new
interpretation that this regulation applied. In fact, something very unusual
happened in this litigation. The Court awarded the sanction of attorneys
fees against the Park Service on an injunction very rare. The reason
its so rare is that the Court only does it, and is only allowed to do
it, only has the discretion to award attorneys fees, when the governments
position has no substantial justification. The government can take a position
and argue it, even if its not a very good position, if its wrong,
it doesn't matter. They dont have to pay public attorneys attorneys
fees unless theres no reasonable basis for it. And if the Court
makes that extreme conclusion, then it awards attorneys fees. Now, the
Court argued the Im sorry, the government argued this
general regulation application in the lawsuit, and the judge determined that
there was no substantial basis for the governments position. Therefore,
the judge rejected it, and found that it wasnt an adequate excuse to
avoid the public hearings.
So, please, please, when you know the law applies, dont seek to jump around it, or were going to be back where we were before. This time, not only are you going down the road of following the advice that took you down the wrong road before, but youre doing it already have been censured by the Court.
Secondly, the argument by the Park Service that it doesnt need to have hearings because the policy was never adopted is irrelevant to some extent, because public hearings are required if there is any restriction in the use that significantly changes the pattern of activity. So, it doesnt matter whether youre changing a policy, if youre going to have the impact of a big restriction of use -- clearly, it will. Youll also have to have public hearings if its highly controversial -- no one can argue that its not highly controversial.
My last quick point is: I understood today that these issues were being briefed in a San Francisco committee hearing. [Commission Member Jack Spring, Chair of the Commissions San Francisco Committee, had mentioned without any elaboration in his committee report earlier, that the committee had heard an update on the Advanced Notice of Proposed Rulemaking (ANPR) process.] Were not able to know whats said there, so we cant advise you if we think that youre not getting accurate information.
The only person who has been truly impartial, who has looked at the quality of information being provided by the park staff, was a federal court judge a noted environmentalist, before he came onto the bench and what he said is that it was being railroaded, the information provided was skewed, and he took the unusual step of saying it was so skewed that he wouldnt rely on the information that the Park Service provided, but that he needed to go and do an independent analysis of the documents.
So I ask you, please, please, get some independent analysis of this, and dont go racing down to that end result when you dont need to.
Thank you very much for your patience.
Rich Bartke, Chair:
Thank you. That concludes the speakers who have signed up to speak on non-agenda items
[Later, after Commission discussion of other issues]
Edgar Wayburn, Commission Member:
I think that some answer should be given to the various people whove been speaking on a proposed dog policy. They have to know that this is not a local affair; this is a national affair, and there is, at present, there are notes, Update on Advanced Notice of Proposed Rulemaking on the pet policy. They cant know, not too many of us know, that this has been in effect on a national basis for many years, and that the Superintendent achieved a minor coup when he got the National Park Service to entertain this method of dealing with it.
Theres been a great deal of discussion as to whether or not this park is doing its duty by all of the people who want to have recreation, particularly with regard to the dogs. And I think that we have an obligation to respond to these people and tell them that Golden Gate has gone farther than any other park in trying to meet this situation.
The opprobrium which has been heaped on the Advisory Commission is entirely ill-centered, because this Advisory Commission has not taking any action. It was what we did, in January, that caused the Superintendent to make... efforts to try to change the national parks, and Advanced Notice of Rulemaking is a part of that policy.
I dont know whether this is going to satisfy the people who object vigorously, but our hands are at this moment tied, and I would suggest that they write to their legislators and write to the National Park Service in Washington to express their feelings, giving the same arguments they gave to us.
Rich Bartke, Chair:
Thank you. Any other comments? Amy.
[Amy Meyer follows up on other, unrelated topic.]
[Commission discussion of other issues]
Rich Bartke, Chair:
OK, thank you. Anything further?
Lisa Vittori: [from audience]
Can we ask that the dog issue be rescheduled?
Rich Bartke, Chair:
No. The Commission had its public hearing. The Commission took its action. As I explained at the top of the meeting, the Commission is advisory; we gave our advice to the Secretary of the Interior, through the local Superintendent, and the Superintendent is doing what he can to carry out that advice. Theres nothing further for this Commission to do.
The suggestion that we somehow misled the public is simply not true. The last time this came up, which was about three months ago, I had the verbatim transcript in front of me, and read from it, and what happened was exactly what happened in January. We have not changed course; we didnt table it for four months --
Michael Goldstein: [from audience]
Did you rescind it?
Rich Bartke, Chair:
-- we, uh, we took our action, we voted, we made our recommendation, and thats been passed on to the Park Service. Thats what this Commission is empowered to do, and thats what we did. We heard you, we acted, as far as were concerned, theres nothing more we can do.
Lisa Vittori: [from audience]
So, in other words, we take our case up with Brian ONeill?
Rich Bartke, Chair:
Oh, I assumed that you were speaking tonight to the Park Service, not to this Commission, because theres no further role for this Commission until the rulemaking proceeds by the
John Keating: [from audience]
If I may say, you have an oversight
Rich Bartke, Chair:
[Asks Mr. Keating to use the microphone.]
Amy Meyer, Vice-Chair:
Lisa Vittori: [from audience]
Amy, Im sorry, but weve got to do this
Its John Keating speaking. You have an oversight role. You can look into whether the Park Service is making radical changes that will destroy our park, in a lot of aspects in our park, and subverting public input, at any time, you can look into that issue. You do not need to accept the Park Services position that your policy, that they adopted and embraced for twenty years, is somehow unilaterally declared null-and-void and is no longer your policy.
Rich Bartke, Chair:
OK, weve gotten that message. And youre correct, we do have an oversight role.
And if I may make one other comment, as to the ANPR process: in some circumstances, thats useful. In most circumstances, its regularly regarded as a technique thats used by an agency to get to avoid having to make a rule, to avoid public hearings. If the Park Service did a proper thing, which was to have a public hearing on whether to change its current policy, they probably would not change the dog policy as it currently exists. If, however, they go through this ANPR process to determine whether to have any public hearings at all, they may very well use the same arguments they tried in the past, and even those that were rejected by the Court, they may use it now to avoid that public hearing process. And I think this Commission should look into whether the public input is being precluded, rather than enhanced. Thank you.
Rich Bartke, Chair:
Thank you. We are going to adjourn our meeting
Hyperlinks added. Transcribed by Michael B. Goldstein. Corrections/questions?