Fort Funston Closures: Some Facts

 

You=re probably aware of a large controversy and a federal lawsuit regarding installation of fences and a closure here at Fort Funston.  This closure was undertaken without any public input, and despite a commitment in 1995 by the Park Service that there would be no more closures.

 

Under the law, public input is required if a closure is Ahighly controversial.@ Documents which have been turned over to park users in the discovery phase of this lawsuit demonstrate that this closure is controversial and that the Park Service recognized this controversy almost a year ago.  AWe do not want this to blow up in our faces,@ said one Park Service staff member in an e-mail turned over in discovery.

 

It is important that all park users know the whole story regarding the Fort Funston fences and closure.  Below is a summary of the facts taken from the recent brief filed on behalf of Fort Funston Dog Walkers (FFDW), San Francisco Dog Owners Group (SFDOG), and three individuals in this federal case.

 

Introduction

In February 2000, the Park Service began constructing new fences at Fort Funston to close a very popular area of the park to the public.  Dog owners believe they are the largest user of the park.  This closure was commenced with no input from dog owners.  The only input the Park Service sought in planning and implementing the closure came from groups who favored the closure, namely the Native Plant Society and the Audubon Society.

The evidence demonstrates that the closure plan was conceived in October 1998.  Throughout 1999, the Park Service finalized and approved the closure still without requesting  any input from dog owners, all along realizing how controversial the project would be.  In fact, evidence suggests that the Park Service attempted to hide the pending closure from dog owners more than six months before the closure actually was implemented.

The closure was not presented to dog owners until early December 1999.  Even then, the Park Service gave dog owners the clear impression that the closure was in the planning stages.  The dog owners believed they had ample opportunity to provide input into what they believed was merely a proposal.  The Park Service gave the dog owners no indication that the closure was a done deal.

In mid-December 1999, the dog owners learned that the closure was definite and imminent.  Understandably, there was a huge outcry.  Due to this outcry, the Park Service did agree to modify the closure slightly, to make a portion of the closure seasonal, and a portion permanent.

The closure is hugely controversial to dog owners.  It follows a similar but larger closure in 1995 of adjacent park land, which occurred with no input from dog owners or public input of any kind.  After this closure, the Park Service assured dog owners and others that there would be no further closures.  The current closure, therefore, was in violation of clear assurances made by the Park Service.


Moreover, it was determined on March 6, 2000, a week before this lawsuit was filed, that the size of the closure is actually 9.9 acres, rather than the 6 acres reported to dog owners and to the Court.  The size of the closure, albeit small in terms of the percentage of park acreage being fenced off, results in a major alteration in the public use pattern of the park.  The area closed is tremendously popular to dog owners and other park users both for exercise benefits and enjoyment.  Dog owners believe the Park Service never evaluated the usage of this area of the park and the alterations that would result if this area were closed.  Finally, dog owners believe that this closure is just another in a series of small closures that eventually will shut them out of most or all of the park.

 

 

Background Information

Fort Funston Dog Walkers, founded in 1992,  is an organization comprised of dog owners and dog lovers who want to protect and preserve what they believe is one of the largest and most beautiful dog-friendly parks in the country . . . Fort Funston.  The group meets at Fort Funston on the first Saturday of each month.  They spend the first hour of each gathering picking up human and dog litter throughout the park.  Following their clean-up, the group meets for refreshments and to discuss any items of interest to the group.  The group currently has approximately 600 members.

The group makes every effort to be good stewards of the park.  In addition to conducting monthly clean-ups, the group supplies clean-up bags to be used by all park users.  Since 1996, the group has spent approximately $8,700 on these bags.

 

 

Prior Closures

In late 1994 or early 1995, Park Service officials closed approximately 26 acres in the northern part of Fort Funston.  The stated reason was to restore native habitat and provide protection for the bank swallows.  The members of FFDW were outraged because there had been no public input prior to the closure.  Letters were written and petitions were signed, but to no avail.  Fences were installed and the land closed nonetheless.

In conjunction with the closure, the Park Service held a meeting at the Fort Funston Rangers Station to explain it.   Approximately 250 members of FFDW attended this very contentious meeting.  This was the largest turnout the group had ever had, and demonstrated the highly controversial nature of the closure.  At the meeting, the Park Service promised that there would be no further fencing and no further closures.  Defendant Brian O=Neill, the General Superintendent of the Golden Gate National Recreation Area (GGNRA), also wrote to the President of the San Francisco SPCA stating that there would be no closure of the land south of the 1995 closure.   The land that recently has been closed is south of the 1995 closure.

 

 

Plans for the Current Closure

Discussions regarding the current closure of  a portion of Fort Funston commenced in October 1998.  Also in October 1998, a grant request was submitted soliciting funds for this closure.  Apparently, a subsequent grant request also was submitted.  This subsequent request indicates that the project was being undertaken in two stages, and that the activities planned under the first phase were delayed due to the need to get public comment.  Regarding public comment, the grant request states:

 

Unfortunately the activities planned under [the first] phase were delayed, due to an extended public comment period - so as to ensure that all public comment could be weighed before project implementation.

 

The project was approved on February 24, 1999.

By May 1999, the Park Service expected that the current closure would take place and began developing a plan as to which particular plants to plant in the closed area.  Members of the Native Plant Society were supportive of the revegetation plan as early as February 1999.

Park Service staff generated numerous e-mails over the remainder of 1999 and into 2000 which demonstrate the controversial nature of the project, the lack of foundation for it, the Park Service=s efforts to keep the project a secret, and the intentional lack of opportunity given to dog owners for input, while providing ample opportunity for input to user groups in favor of the plan.  These e-mails were turned over by the Park Service during this litigation and are described below in the chronology of events from July 1999 through early March 2000.

On July 31, 1999, one e-mail discussed the Aimplementation of the Bank Swallow Site Extension.@  In that e-mail, Park Service staff stated,

 

  we do not want this to blow up in our faces

 

 [emphasis added].

 

The e-mail was concluded with the following: 

 

A* *NOTE: Everyone copied on this should be very discreet with this information, PLEASE.@

 

In September 1999, GGNRA officials drafted an information sheet on the Fort Funston project entitled, ABank Swallow Protection Plan at Fort Funston, Questions and Answers, 9/99.@  This report addresses the size of the area being closed and many other aspects of the closure.  Fort Funston Dog Owners never received this report or any version of it.

Sometime in September 1999, a biologist from the California Fish & Game Department met with Park Service representatives at Fort Funston to view the bank swallow burrows on the bluffs.   At the conclusion of his visit, Park Service staff asked the biologist to prepare a letter or a report in support of the closure.  In this regard, two Park Service staff members sent e-mails to the Fish & Game biologist on October 12, 1999 and October 27, 1999, respectively, requesting written support for the closure.  One staff member specified items she wished to see in the report, including a statement that the decline in the bank swallows was due to Arecreational impacts.@  The biologist never sent the requested documentation.

On December 3, 1999, representatives from FFDW met with representatives from the Park Service to walk through Fort Funston.  The parties discussed the recent closure of the Sunset Trail, more trash cans, additional dispensers for the dog cleanup bags, and the requested water fountain.  As the group was walking the property, they stood on the trail at the northeast corner of Battery Davis and looked north over the site of the new closure.  A Park Service staff member tried to explain the closure to the FFDW representatives using a map that he did not understand and couldn’t=t read.  He even told the group that the map wasn=t a very good map.

During and after this meeting, the FFDW representatives were under the clear impression that the proposed closure was in the preliminary stages and that there would be plenty of time to negotiate the scope and duration of the project.

On December 21, 1999, the Park Service e-mailed FFDW proposed minutes of the December 3 walk-though. Only after reading these minutes did FFDW realize that the proposed closure was imminent.  The minutes also state that the major topic of discussion was the closure of the Sunset Trail.  The last page of the minutes provides that the dogowners stood Aready to assist the park in getting the word out on issues to hundreds of dog owners once they are clarified (emphasis added).@  The issues are then listed, with the bank swallow area closure being listed as the fourth of five issues, after the dog water fountain and bag dispensers.


On December 26, 1999, a FFDW representative met a ranger at Fort Funston and asked him to clarify the closure as expressed in the proposed minutes.  After the ranger explained to her the extent of the closure, he claims she walked away muttering, AThis has nothing to do with the bank swallows, then.@  The ranger sent an e-mail to a Park Service staff person confirming that the explanation given of the closure at the December 3 walk-though had not been clear, stating, AI=m afraid that maybe we didn=t make the boundaries too clear to her at the meeting earlier this month . . . and I am afraid we will be needing to perform LOTS of educational roves in the near future on this issue.@

On December 27, 1999, a FFDW representative sent an e-mail to the Park Service in response to the proposed minutes of the December 3 walk-through.  She explained that none of their representatives had understood the extent of the closure.  She also explained that, if the closure occurred, there would be a Ahuge outcry,@ that Ahundreds of people play on both dunes, hundreds more walk through the valley between the dunes and flyover,@ and that the hills within the proposed closure area were an especially Agreat place to run dogs@ when the tide was too high for a beach walk.  She closed by stating that she=d Ahate to raise the issue and get everyone upset if [she had] misunderstood@ the proposed minutes.

Representatives from FFDW were prepared to meet with GGNRA in early January.  Park Service personnel, however, were not prepared to meet until January 20, 2000.

The Park Service=s Advisory Commission met on January 18, 2000.  Representatives from FFDW and SFDOG attended this meeting.  The AUpdate on Bank Swallows Project@ was listed as a Anot for public comment item.@  Therefore, no one from FFDW or SFDOG was prepared to speak.  In fact, this update was a report that the San Francisco Committee of the Advisory Commission had approved the closure.

On January 20, 2000, representatives from FFDW met again with Park Service staff at Fort Funston to discuss the proposed closure.  The representatives were attempting to understand exactly where the new fences would be installed, and why a closure purportedly for bank swallows had to extend all the way to the Coastal Trail.  They were told that the Park Service could not figure out how to build the fence closer to the bluffs.

On January 24, 2000, a FFDW representative sent an e-mail to the Park Service again expressing uncertainty as to the locations of the fences and the sizes of the seasonal and permanent closures.  She also expressed the Aanger@ of park users over the closure, and she expressed that the closure was viewed as a Aland grab.@

In an e-mail dated January 26, 2000, a Park Service staff member made the following comments regarding the controversial nature of the closure:

 

As I have indicated on my messages we have completed hte [sic] public process for the project (perhaps one of the more contentious ones) and are ready to start.  The project involves the installation of approximately 1,750 linear feet of fencing . . .

 

The project is to protect the state threatened bank swallow species and involves closing 5.8 acres of Fort funston (much to some of the dog owners dismay - however will have significant benefit to the bank swallows).

 


The project is probably in the top 10% of the park=s most visible projects . . . Brian wants to ensure that we are in and out as quickly and professionally as possible, so if we can have an experienced crew it will probably save us both headavhes [sic] in the long run.  The crew will need to work continuously and consistently for the duration of the

project.

 

What I would like to propose is that if the crew finishes earlier than the contract calls for then we pay you the balance in full - the project is that political. [Emphasis added.]

 

In a series of e-mail communications among Park Service personnel from February 10 through February 14, 2000, they concluded that there had never been public meetings with public comment on the bank swallows issue. 

By letter dated February 10, 2000, the President of the Yerba Buena Chapter of the California Native Plant Society wrote to defendant Brian O=Neill.  In this letter, he stated, AI am chagrined to learn that the bank swallow informational briefing for the Advisory Commission [on January 18] did in fact become yet another occasion for a loosely organized group of park users to press their narrow agenda.@

In a February 15, 2000 e-mail, a Park Service staff member concluded that there had been no formal notification of the closure, and that he couldn=t locate any documentation that outreach to dogowners actually had happened.  Portions of this e-mail are:

 

[A]fter reading the project review statements and Mike=s documenting the lack of any formal input at any advisory meeting going back to 1997, I believe there was no formal notification of the closure of the area to protect bank swallows or to exclude dogs and that if anything happened it was at the Fort Fuston [sic] level.

. . . .

 

There was some language in the 1996 bank swallow plan that talked about outreach to dogowners and public education, but I can=t find any documentation that it actually happened.

 

Ultimately, I think we have to say that there was no requirement for official public imput [sic] as this was consistent with the GMP and did not involve NEPA.  It would have been a courtesy to reach out to the dog owners reagarding [sic] this change and we may have done so to some degree. [Emphasis added.]

 

 

On February 17, 2000, representatives from FFDW went on a walk-through at Fort Funston to further understand the closure.  Park Service personnel arranged to have an Audubon Society representative present to explain the justifications for the closure.  Although he addressed the bank swallows, his emphasis was on the wildlife (quail and rabbits) that would live in the closed area once the new plants were established.

Construction of the fence commenced during the week beginning February 22, 2000.

FFDW had a general meeting on February 29, 2000.  Among the topics of discussion was installation of the new fences.   A representative from the Park Service was asked to attend, but declined.


On March 6, 2000, the Park Service reported that there was Aa discrepancy in the information we first provided the public@ regarding the acreage included the closure.  Rather than 6.4 acres, the number of acres closed was 9.9 acres.  This represents a variance of 54.7 percent above the 6.4 acres originally reported.

On March 14, 2000, the Park Service reported to the Court that the total area closed was six acres.

 

Information on Bank Swallows

In May 1996, the Park Service prepared a report entitled AFort Funston=s Bank Habitat and Flyway, Management Plan and Site Prescription.@  The Vision Statement of this plan provides:

 

Recreate the original habitat of a coastal scrub community with the proper vegetation structure to enhance the Bank Swallow foraging in the flyway between Bank Swallow nest site and Lake Merced.  Such a site restoration will further support extirpated species like California quail and brush rabbits.

 

The plan further sets forth the vegetation plan as follows:

 

The purpose of restoring the native plants in the Bank Swallow Habitat and flyway is to increase the availability of native insects for the swallows to feed upon.  By doing so, the site also becomes excellent habitat for restoring the displaced quail and brush rabbit populations.  The swallow=s primary food source is Lake Merced=s aquatic insect population.  The Bank Swallow Flyway restoration will supplement the existing food source presently found at Lake Merced, but will never replace its critical role in supporting the swallow population.

 

The plan contains the following regarding communicating with FFDW:

 

Schedule one-on-one walking tours with key members of the Fort Funston Dog Owners Association.  (Don=t Forget Them, they are key to the overall success of the project.  (Emphasis in original.)

 

An article authored by Barrett A. Garrison in 1999, which appeared in The Birds of North America, states in relevant part, AGenerally Bank Swallow is quite tolerant of human disturbance in general vicinity of colonies, as evidenced by propensity of this bird to nest in active sand and quarries.@

In a recent deposition, the Park Service=s Natural Resource Management Specialist stated that flyover areas are not necessary to the protection of the bank swallows.  She was asked whether an area of native habitat provides any additional protection to the bank swallows.  She replied that she did not know.  She also stated that Lake Merced is the primary feeding area for the bank swallows.

In addition, she stated that bank swallow predators once sat on the tops of the fence posts that sit on the edge of the cliffs and attacked the bank swallows.  She explained that devices had been placed on the tops of the fence posts to deter predators from roosting there.  Recent pictures, however, reveal that these deterrents are not presently in place on the fence posts.

A daily report prepared by Park Service volunteers in conjunction with the monitoring of bank swallows states, AMany dogs in this area, but it doesn=t seem to bother the birds.@

 

 

Settlement Attempts

Before filing the federal lawsuit, FFDW and SFDOG requested meetings with the Park Service to discuss this controversy.  FFDW and SFDOG made it clear that they wanted to avoid litigation.  Only after repeated efforts were rebuffed was the lawsuit filed.

 

 

The next phase in this case will be a hearing, which interested park users may wish to attend:

 

Friday, April 14th, 8:00 a.m.

Federal Building: 19th floor, Courtroom 9

450 Golden Gate Ave, San Francisco

 

 

For more information on the issue of closures at Fort Funston, as well as the full text of the complaint and brief, visit:

 

www.fortfunstonforum.com


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