GGNRA WatchDog: Lydia Boesch's Letter to SF City Attorney Louise Renne

Louise Renne
City Attorney
City Hall
1 Dr. Carlton B. Goodlett Place, Suite 234
San Francisco, CA 94102-0917

I am writing on behalf of Fort Funston Dog Walkers and San Francisco Dog Owners' Group (SFDOG) to respond to the letter to you from the National Park Service dated January 16, 2001. We disagree with the Park Service's letter in several respects, but primarily we disagree with their interpretation of "park purposes" as found in the deed transferring Fort Funston and other City parks to the federal government. The Park Service's definition abandons the meaning that San Francisco has given to this term for decades. In addition, under the Park Service's approach, the term "park purposes" is changing and could continue to evolve, as explained more fully below.

As stated, San Francisco has used the terms "recreation" and "park" for many years, and has attached specific meaning to these words. Concerning Fort Funston and the other City parks transferred to the federal government, these words were specifically used in the following contexts:

(1) In April 1960, the Recreation and Park Commission passed a resolution to acquire Fort Funston for "recreation and park purposes."

(2) In May 1960, the Planning Commission passed a resolution to acquire Fort Funston for "open recreation and park use."

(3) In November 1960, the Board of Supervisors passed a resolution to acquire Fort Funston for "public recreational and park purposes."

(4) In 1961, City residents approved a ballot measure (Proposition B) to incur $1.1 million in bond indebtedness to purchase Fort Funston "to assure reservation of the area for public park and recreation purposes."

(5) At a Senate subcommittee hearing on the proposed GGNRA legislation, Joseph Caverly, General Manager of the San Francisco Recreation and Parks Commission, stated that the GGNRA would "preserve valuable open space for citizens." Mr. Caverly added that, "The Recreation and Parks Department has worked diligently for the past 2 years with the objective of providing better open space and recreation opportunities for the Bay Area's burgeoning population." He also stated that, with the population explosion and expansion of leisure time, "we need extensive recreational services within easy reach of people's homes."^[1]

The Park Service now proposes to change the meaning of the word "park" to suit their desire to create additional wildlife habitat at Fort Funston, beyond the habitat that they've been creating extensively since 1991. The Park Service relies on its 2001 Management Policy which provides that "when there is a conflict between conserving resources and values and providing enjoyment of them, conservation is to be predominant." Interestingly, this "new" management policy differs from a prior edition, which would not have supported or allowed the permanent closures now proposed by the Park Service.

An earlier version of the Park Service's Management Policy similarly addressed the conflict between recreational use and the conservation of resources. This prior policy permitted only "temporary" closures of land or other limitations (not permanent restrictions) on public use, but only if there was a reasonable basis that the resources were being threatened, and only after education and interpretation had failed. This Management Policy never condones the permanent closure now proposed at Fort Funston and provides:

There will inevitably be some tension between conservation of resources on the one hand and public enjoyment on the other. The National Park Service is charged with the difficult task of achieving both. As the population of the United States increases and become more urbanized, education and interpretation will become increasingly important in acquainting the public with its responsibility to protect resources while using them. But if and when a superintendent has a reasonable basis to believe a resource is or would become impaired, the Park Service may, as one of its management tools, temporarily close a specific area or otherwise place limitations on public use. (Emphasis added.)

By relying on a modern, more strict Management Policy, rather than an earlier, more lenient version, the Park Service is allowed to change the meaning of the word "park."

San Francisco had clear intent of how it wanted its parklands to be used. That intent was embodied in the words "recreation" and "park," which are common terms in San Francisco government. San Francisco could not possibly have intended the Park Service to change the meaning of these words to suit the objectives of the Park Service, which shift subtly over the years and with changing administrations. This is especially true when the change in meaning violates the original intent of the transfer and results in harm to so many San Franciscans.

We also would like to respond briefly to other statements made by the Park Service in its letter. The Park Service claims that the twelve acres are being closed "to protect the state threatened bank swallow, permit native plant restoration, reduce erosion and for visitor safety." We disagree with these claims.

First, the bank swallows nest at Fort Funston for only four months of the year. Bank swallow experts, including the bank swallow biologist at the California Department of Fish & Game, have advised that only the cliffs in which the bank swallows nest need to be closed, and only during the four-month nesting season. The additional land away from the cliffs does not need to be closed, either when the colony is nesting or after they have returned to Central America. Further, the colony at Fort Funston, which had steadily increased in the late 1980s, has been in steep decline ever since the Park Service began closing and replanting areas at Fort Funston in the early 1990s. This decline has occurred at the same time the bank swallow colony is increasing dramatically at its primary nesting site along the Sacramento River.

Second, the Park Service is not "restoring" native plants. They are creating an environment and ecology that never existed at Fort Funston. Our extensive research establishes that Fort Funston, like the entire western portion of San Francisco, was moving sand dunes with limited vegetation. The Park Service is introducing new, densely planted vegetation in hopes that it will attract wildlife. In the process, they are displacing the thousands of San Franciscans who use the park as a public park and for recreational purposes. This is not what our City forefathers intended.

Third, a noted geologist has informed us that the current traffic at Fort Funston will not cause harmful erosion to the cliffs, only motorized traffic will. Most of the erosion at Fort Funston is caused by the weather, and is actually necessary for a healthy bank swallow colony.

Fourth, while there are cliff rescues at Fort Funston, most are considerably south of the area proposed for closure. We have identified only one or two rescues in the area in question. In addition, the Park Service does not post appropriate signs warning of potential danger, they do not impose fines for those who allow their dogs to become stranded on the cliffs, and they do not assess the rescue costs to the dog's owner. Moreover, Judge Alsup agreed with us in the federal lawsuit that the closure actually creates another hazard on the beach. A beach access point is located within the twelve areas. Once this is lost, beach visitors could get stranded on the beach during high tide due to a point which juts out into the surf.

The Park Service also uses the City's Westside Shoreline Area Plan to justify this closure. To the extent this plan conflicts with the clearly stated intentions for Fort Funston as set forth in all of the City's and Congressional historical documents dating back to the early 1960s and throughout the 1970s, we believe there is an actual conflict between this Plan and the historical documents. Fort Funston has been used as a public park and for recreational purposes for four decades. Tens of thousands of San Franciscans use it as a place to get away in this densely populated urban environment. Permanently closing portions of it to allow for the expansion of habitat at the expense of San Francisco residents cannot be what was intended when the City initially acquired the park or when we transferred it to the federal government.

Finally, we would like to address specifically two other misstatements in the Park Service's letter. At page two, the Park Service quotes 16 U.S.C. section 460bb. The Park Service, however, omits a key phrase, with a result that is misleading. Section 460bb states:

The Secretary shall preserve the recreation area, as far as possible, in its natural setting . . . (emphasis added).

The inclusion of the phrase "as far as possible" means that this statutory mandate is not absolute. The phrase allows flexibility. In addition, as stated above, Fort Funston's "natural setting" was never the native plant garden and wildlife habitat now being created by the Park Service. Any claims to the contrary cannot be supported.

The Park Service also claims at page 4 that they simply are installing fences along the cliffs. This is grossly misleading. They are installing a fence hundreds of feet away from the cliffs, and in the process, are closing the area at Fort Funston most popular with families and children. They aren't just closing out dogwalkers, they are closing out every park user forever.

We would be happy to discuss this matter with you, and would be delighted to give you a tour of the area proposed for closure. Many have told us that it helps to understand this controversy once they've seen it.

^[1] Based on our review of the documents surrounding the City's acquisition of Fort Funston and subsequent transfer to the federal government, we believe that walking a dog at a City park was actually a "park" use, while "recreational" uses included baseball and softball fields, golf courses, and similar sports-related activities.

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