INTERVENOR/DEFENDANT GOLDEN GATE AUDUBON
SOCIETY'S BRIEF RE: APPROPRIATE REMEDY
CALIFORNIA ENVIRONMENTAL LAW PROJECT
LAURENS H. SILVER, Esq. # 55339
302 Sycamore Street
Mill Valley, CA 94941
Tel: (415) 383-5688 Fax: (415) 383-7995
KELLY L. DRUMM, Esq. # 172767
1168 Dolores Street
San Francisco, CA 94110<
Tel: (415) 826-9067 Fax: (415) 826-9421
Attorneys for Proposed Intervenor
Golden Gate Audubon Society
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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FORT FUNSTON DOG WALKERS, an
Unincorporated Membership Organization;
SF DOG, a California limited Partnership, LINDA MCKAY an Individual; FLORENCE SARRETT, An Individual; LINDSAY KEFAUVER,
an Individual; and MARION CARDINAL,
an Individual,
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Plaintiffs,
V.
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INTERVENOR/DEFENDANT
GOLDEN
GATE AUDUBON
SOCIETY'S BRIEF
RE: APPROPRIATE REMEDY
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BRUCE BABBITT, Secretary of the Interior;
ROBERT STANTON, Director of the National
Park Service; JOHN REYNOLDS, Regional
Director, Pacific West Region, National Park
Service; and BRIAN O'NEILL, General
Superintendent of the Golden Gate National
Recreation Area,
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Defendants.
GOLDEN GATE AUDUBON SOCIETY, a
California Non-profit Membership Organization,
Intervenor/Defendant.
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Hearing Date: April 14, 2000
Time:
8:00 a.m.
Courtroom
9
Hon.
Judge Alsup
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INTRODUCTION
This Supplemental Brief of Defendant/Intervenor Golden
Gate Audubon Society is being submitted in response to this Court's invitation
in its Findings of Fact and Conclusions of Law Regarding Probability of
Success and Irreparable Injury, filed April 25, 2000, to the parties to
submit briefs on the
issue of remedy.
DISCUSSION
In its Findings of Fact and Conclusions of Law Regarding
Probability of Success and Irreparable Injury, this Court stated: "Although
the National Park Service generally requires that pets be on leash in
nations parks, the Park Service allows dog owners to walk their dogs
off-leash at Fort Funston." Opinion at p. 2. The Court cited Section
(a)(2)(iii) of the Golden Gate National Recreation Area ("GGNRA")
Compendium Amendment to 36 C.F.R. 1, dated July 8, 1996. (A.R. USO 1472,
GGNRA, 36 C.F.R. 1, Compendium Amendment, July 8, 1996.) However, the
Compendium Amendment presently in effect, dated December 19, 1997 (A.R.
USO 1485, GGNRA, 36 C.F.R.
1 1997), does not include any such explicit "authorization"
of off-leash dog walking. In fact,
the 1997 Compendium Amendment, prepared by the Park Service pursuant
to 36 C.F.R. 1.7(b), deleted the language of the 1996 Compendium Amendment
which designated at Fort Funston "voice-control areas where obedient pets, under supervision, may be allowed
off-leash."
This is a critical factor which the Court must consider
in determining the balance of hardships and the scope of any injunctive
relief. As defendant/intervenors argued in their brief in opposition
to plaintiffs' motion for preliminary injunction, plaintiffs are using
Fort Funston, a unit of the GGNRA, as an area for walking dogs off-leash,
in a manner that violates the general prohibition, set forth in 36 C.F.R.
2.15, of having dogs off-leash in parklands administered by the National Park Service. By deleting in 1997 the "authorization"
of off-leash dog walking at Fort Funston contained in the 1996
Compendium, the Park Service made it clear that the status quo ante was being restored: that dog walkers exercising their
dogs off-leash at Fort Funston were doing so without explicit authorization
and were doing so on the "sufferance" of the Park Service.
At best, the Park Service was engaging in a policy of selective non-enforcement
at Fort Funston of its otherwise uniform
policy of not permitting dogs off-leash within the GGNRA, consistent with 36 C.F.R. 2.15, except
where there was
an established authorization
permitting such offleash dog walking.
Plaintiffs
are seeking relief that would, after the
seasonal departure of the
Bank Swallows in
August, involve this Court's setting aside of the Park Service's recently designated permanent
closure area in order to restore the status quo ante. A restoration of the status quo ante would sanction,
with
the imprimatur of this Court, unauthorized off-leash dog walking in
the "permanently closed" area during such time as the Park
Service may be preparing new closure
orders
that would be subject to
public hearing. Under this scenario the Court would be allowing a use (off-leash, off-trail, dog
walking) not authorized under any provision of the Code of Federal Regulations,
or the Compendium Amendment to those regulations adopted by GGNRA.
Defendant/Intervenors do not believe plaintiffs are
entitled to any equitable relief whatsoever, since they are not authorized
users of the GGNRA for the principal purpose for which they are suing -- the off-leash walking of their
dogs in areas the Park Service desires to revegitate.1
To the extent this Court finds on the merits that plaintiffs have a
high probability of success,
it may simply issue preliminary declaratory relief setting forth its
view of the law, and the Park Service can take appropriate steps to
take action consistent with any preliminary declaratory relief order.2
Temporary or preliminary declaratory relief is appropriate when it is the least
intrusive manner of vindicating plaintiffs' rights to proceed in federal court.
In Merrill, Lynch, Pierce, Fenner and Smith, Inc. v. Doe, 868
F.Supp, 532, 535 (S.D. N.Y. 1994), the Court noted:
"Given the ability of the Court to issue a final declaratory
judgment under 28 U.S.C. §2201, which is equitable in nature, this
Court also has the power to issue such provisional equitable relief
when it is necessary based on the urgency of the situation, the irreparable
harm that would otherwise occur, and the remaining factors which courts consider when granting provisional injunctive
relief. Some courts have indeed
acknowledged that temporary or preliminary declaratory relief is available
to litigants as a provisional remedy. [citations omitted] ...
Preliminary declaratory relief in this case should be
conditioned on the same familiar standards that the Court of Appeals
has instructed should be applied to motions for preliminary injunctions,
To prevail on a motion for preliminary injunction the party requesting
relief mist show: (a) irreparable harm and (b) either (1) likelihood
of success on the merits or (2) sufficiently serious questions going
to the merits to make them a fair ground for litigation and a balance
of hardships tipping decidedly toward the party requesting the preliminary
relief. International Bhd. Of Teamsters v. Local Union No. 810, 596 F.2d 70, 72 (2nd
Cir. 1979)."
A preliminary declaratory relief order was recently
entered by this Court in National Audubon Society, et. al. v. Davis
(C.98-4610 CAL), in which this Court, the Hon. C.A, Legge,
presiding, preliminarily declared that Proposition 4 (the anti-trapping
initiative voter-enacted in 1998), was not intended to ban the use of
leg-hold traps by federal officials for the purpose of protecting endangered
and threatened species from predation. A copy of that preliminary declarative
order, issued in lieu of a preliminary injunction order, is attached
as Exhibit A to this memorandum. Defendant/intervenor believes temporary
declaratory relief is the least intrusive and most appropriate remedy
in this case.
If any equitable relief is granted, the Court should
not frame that equitable relief in a manner that sanctions a use specifically
prohibited by 36 C.F.R. 2.15 during such time as the Park Service is
considering new closures. Thus, any order by this Court that terminates
(after August) the Year 2000 closures at Fort Funston should make clear
that only on-leash dog walking on established trails or appropriately
signed rights-of-ways (such as beach access along the boundary between
the seasonally closed area and the permanently closed area) is, in this
interim period, permitted.
For the foregoing reasons, defendant/intervenor urge
this Court to reconsider the Findings of Fact and Conclusions of Law
Regarding Probability of Success and Irreparable Injury in light of
the language of the 1997 Compendium Amendment which deleted the language
of the 1996 Compendium Amendment which designated at Fort Funston
"voice-control areas where obedient pets, under supervision,
may be allowed off-leash." Should this Court determine to grant
plaintiffs
equitable relief, defendant/intervenor urges this Court to do so in
the form of a preliminary
declaratory relief order as discussed, supra .
NOTES
1 Defendant/Intervenors argued in their Supplemental Brief in Opposition to Plaintiffs'
Motion for Preliminary Injunction, at page 4:
No principle of federal land law is clearer that that no implied license to use federal lands free of
regulation arises from a pattern of long-term use. As the court stated
in
Omaechevarria v. Idaho,
246 U.S. 343 (1918), Congress has not conferreed upon citizens the right to graze livestock
upon the public lands. Similarly, Congress has conferred no rights
on dog owners who use Ft. Funston. The failure of the United States
to object to a use or prosecute an unlawful use, or the countenancing
of a long term use confers "no vested right on the complainant,
nor did it deprive the United States of any power of recalling any
implied license under the which the land had been used for private
purposes." Light v.
United States, 220 U.S. 523 (1911); see also, United
States v. Grimaud, 220 U.S. 506 (1911).
2 Such
preliminary declarative relief. would provide:
"This
Court hereby preliminarily declares and orders that plaintiffs have
demonstrated a high probability of success on the merits of their
claim that defendants have violated 36 C.F.R. 1.5(b) in failing to
provide notice and comment rule-making in connection with the Year
2000 closures of areas within Fort Funston National Recreation Area
to protect Bank Swallows, for revegitation of native plants,
and for public safety."