Fort Funston Forum: Audubon Remedy Reply Brief 5/9/00

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

Intervenor/Defendant Golden Gate Audubon Society sharply takes issue with plaintiffs' request for provisional relief. Plaintiffs totally ignore this Court's statement in its Findings of Fact and Conclusions of Law Regarding Probability of Success and Irreparable Injury, filed April 25, 2000, that:

"Because the National Park Service has declared an emergency upon the recent arrival of the bank swallows, no injunction will become effective until August upon their annual departure or until further proceedings and determination as to the validity of its emergency declaration or its scope."

Plaintiffs seek instead immediate reopening of the closed areas to off-leash dog walking, and as well, removal of the fences and any other barriers to entry to the areas subject to the Park Service's emergency closure. Submitting a declaration that the Bank Swallows, who have just recently arrived, have not nested further south than they did last year, plaintiffs de facto attack the necessity and validity of the emergency closure.

Plaintiffs have not amended their complaint, and this Court has held no hearing at which defendants or intervenors have had an opportunity to justify and defend the emergency closure. Certainly, even if plaintiffs had put on competent evidence and stated a claim asking the Court to review the closure under the arbitrary and capricious standard, they would have a heavy burden to bear in view of the fact that the emergency closure is to protect a state-listed threatened species.

In City of Las Vegas vs. Lujan, 891 F.2d 927 (D.C. Cir. 1989) the Court held the Secretary of Interior's emergency listing of the Mojave Desert population of desert tortoise due to upper respiratory infection was owed substantial deference. Emergency actions to protect endangered species and/or their habitat "contemplate a somewhat less rigorous process of investigation and explanation," Id, 891 F.2d at 392. The Court held, with respect to the emergency powers of the Secretary under the Endangered Species Act, 16 U.S.C.§ 1533, that "whatever quantum of data the Secretary must possess to issue an emergency regulation, it need not rise to the level of 'substantial evidence' - or at least that the Secretary would not inquire as thoroughly at the emergency listing stage." Id. The Court specifically endorsed the power of the Secretary, through an emergency listing, to act "prophylactically" ("...the danger of the epidemic spreading to Nevada is sufficient justification for including Nevada's tortoises in the emergency listing, he need not wait until the epidemic crosses the California-Nevada border.") Id., at 933.

The. Park Service's emergency closure to protect Bank Swallows at Fort Funston was made by memorandum dated April 12, 2000. That memorandum recites that:

Given the bold sweep and hubris of plaintiffs' claims for preliminary injunctive relief, intervenors attach the declaration of Dan Murphy, who has recently visited the nesting site. The declaration concludes that the swallows are currently still seeking out nesting sites, and it is too early to make any conclusions concerning nesting range for this year. It is presumptuous and irresponsible for plaintiffs to be seeking relief with respect to a claim not in issue before the court -- the validity of the emergency closure. Intervenor Golden Gate Audubon Society believes that given this Court's April 25, 2000, Findings of Fact and Conclusions of Law Regarding Probability of Success and Irreparable Injury, quoted above, this Court should not consider any relief that would result in any change or alteration of the emergency closure.

At any future hearing challenging the emergency closure, plaintiffs would have to challenge the expert opinion of the Park Service, the California Department of Fish and Game, and intervenor's experts. As pointed out in the Declaration of Dan Murphy, filed concurrently with this brief, neither at the site visit, nor at any other time, has Golden Gate Audubon Society agreed that a fence thirty-feet from the bluff edge would be sufficient to protect bank swallows for all purposes. See Declaration of Dan Murphy re: Site Visit at Ft Funston, ¶¶9-10. Though such a fence might be helpful in reducing disturbances impinging on nesting activities on the cliff face below, it would not be adequate to protect against erosion or to protect the Bank Swallows engaging in nest-foraging activities on top of the cliffs. See Declaration of Dan Murphy re: Site Visit at Ft. Funston, ¶¶9-10. In any event, under applicable law, the Park Service is entitled to, in the context of an emergency closure, to act prophylactically to abate any potential at adverse effects to the colony with respect to nesting. It need not choose the minimum degree of protection. It may, as it has done, relying on the opinions of its experts, the California Department of Fish and Game and Audubon, provide more than the minimal amount of protection. Plaintiffs have produced no experts and have only advanced "testimony" of their attorneys who are profligate with opinions, advanced in the interest of their clients, about what is adequate protection for the swallows in light of the desire of their clients to resume off-leash dog walking in the area.

As pointed out in intervenor's opening brief on this issue, as a matter of law and application of equitable principles, plaintiffs are at best, eligible for only preliminary declaratory relief. If this Court issues any injunctive relief pending Park Service rule-making on closures, it has a legal obligation to limit public access to the area only to such activities as are lawful under current regulations applicable to Fort Funston. Under such regulations, only walking dogs on leash on designated roads or trails is permitted. See 36 C.F.R. 2.15. Therefore, any injunction allowing interim access to the closed areas after August should limit use of the area to on-leash dog walking in designated, signed roads and trails.

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

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,

Defendants.

GOLDEN GATE AUDUBON SOCIETY, a
California Non-profit Membership Organization,

Intervenor/Defendant.

Hearing Date: None set

Courtroom 9

Hon. Judge Alsup

1. I am a former Board member, past president and am presently a member of the conservation committee for the Golden Gate Audubon Society, and am authorized to make this declaration on its behalf. I am also a field trip leader for Golden Gate Audubon and have led trips to Fort Funston to observe the Bank Swallow Colony, as well as other bird species. I am also an experienced birder, conservationist and environmental educator with extensive experience leading bird-watching fieldtrips, and have published numerous papers on the topic of birding. See Addendum, attached to Declaration of D. Motion in Support of Ex Parte Application of Golden Gate Audubon to Intervene.

2. On May 8, 2000 between approximately 5:00 6:05 I made a site visit to Ft. Funston for the purpose of observing the Bank Swallows. During my visit I filled out a "Bank Swallow Daily Summary Sheet," which is provided by the Park Service for purposes of monitoring Bank Swallow activity during nesting season. See Exhibit A, attached hereto, for a
copy of the Park Service's 'Bank Swallow Daily Summary Sheet " See also USO4855 and PEB154 for a filled out copy of the Summary Sheet from 6/2/1996.

3. The Bank Swallow Daily Summary Sheet identifies four separate areas for purposes of identifying Bank Swallow burrows. Area 1 is identified as extending from the "North End to the Gap," the "North End" being the area by the parking lot at the north end of the park (approximately west of the Wastewater Treatment Plant and north of the area previously closed by the Park Service in 1995 for swallow protection) and the "Gap" as being the area in between the previously closed (1995) swallow protection area and the new (year 2000) permanent closure area. Area 2 is identified as extending from the "Gap to Gunmount" with the "Gunmount" being the gunmount which has fallen off of the edge of the bluff top and
located immediately below the permanent closure area and north of the seasonal closure area. Area 3 is identified as extending from the "Gunmount to Panama Point." "Panama Point" is almost directly below the boundary between the permanent closure area and the seasonal closure area. Lastly, Area 4 is identified as extending from "Panama Point to the Beach Access." The "Beach Access" is the Park Service designated trail that leads to the beach from the bluff top and runs approximately west of the "Y" in the Battery Davis trail. The Beach Access is south of the seasonal closure area.

4. During my site visit I observed a total of 80 burrows, 59 of which appeared active (i.e., evidence of excrement or signs of new digging activity) in Area 2 (Gap to Gunmount). I observed Bank Swallows nesting within or performing nesting activities around 28 of the burrows. These 80 burrows are located at approximately the same site as last year's burrows (those of which survived the winter storms) and have extended slightly northward. Last season's nesting site extended from an area south of the Gap to an area slightly north of the Gunmount.

        5.        In addition, I observed a new nesting site further south of the above-described location of the 80 burrows, which appears to be forming directly above the Gunmount, just north of the seasonal closure area. I observed 2 burrows at this new location, in one of which I observed a pair of nesting Bank Swallows.

        6.        I also observed at least 5 Bank Swallows flying over Panama Point and appeared to be collecting nesting material.

        7.        I observed Bank Swallows digging two new burrows today, which in my experience means that the Bank Swallows are still continuing to arrive. Based upon my experience, Bank Swallows will continue to arrive at Ft. Funston until mid-May, and as such, the extent to which the nesting activity will extend further south -- towards and possibly into the seasonal closure area -- is not yet known.

        8.        I also observed for the first time in my experience of viewing Bank Swallows at Ft. Funston, Bank Swallows collecting dead roots from the top of the bluffs above the permanent closure area, an activity different from the Bank Swallow's usual practice of collecting nesting materials from the beach.

        9.        While it is true that I stated at this Court's site visit to Ft. Funston that a fence 30-feet away from the cliff edge would protect the nesting Bank Swallows, I qualified that statement by stating that it was unknown whether and to what extent the Bank Swallows derived additional benefit from having the buffer area presently provided by the Park Service in the seasonal and permanent closure areas. In light of the new activity I observed during my site visit (described in ¶9), I believe the permanent closure area should remain closed for use by plaintiffs and the general public. This is because any new disturbances in the permanent closure area, either by dogs or people, may discourage the continued and expanded use of the permanent closure area for nest building purposes by the Bank Swallows.

        10.        It is also my opinion that all of the seasonal and permanent closure area should remain closed to public use in order to prevent further bluff erosion so as to ensure the existence habitat for the Bank Swallows in the future. I in no way intended for my statement made at the Court's site visit to Ft. Funston that Bank Swallows would be protected by the implementation of a fence 30-feet back from the edge of the bluffs to indicate that I did not support the Park Service's decision to close the seasonal and permanent closure areas to public use and off-leash dog walking. Both I and Golden Gate Audubon Society continue to support the Park Service's closure decision.

I declare under penalty of perjury that the foregoing is true and correct. Executed this 9th day of May, 2000, in the city and county of San Francisco, California.