LYDIA OWEN BOESCH (CA Bar No. 147901)
110 Maywood Drive
San Francisco, CA 94127-2040
Telephone: (415) 841-1060
Facsimile: (415) 841-0437
JOHN B. KEATING (CA Bar No.
148729)
2995 Woodside Road, Suite 350
Woodside, CA 94062
Telephone: (650) 851-5900
Facsimile: (650) 851-5912
Attorneys for Plaintiffs
UNITED
STATES DISTRICT COURT
NORTHERN
DISTRICT OF CALIFORNIA
FT. FUNSTON DOG WALKERS, a membership
organization; SFDOG, a California limited partnership; Linda McKay, an
individual; Florence Sarrett, an individual; Lindsay Kefauver; an individual;
and Marion Cardinal, an individual,
Plaintiffs,
v.
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.
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Case No. C-00-0877 WHA
PLAINTIFFS= MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF COMPLAINT FOR PRELIMINARY INJUNCTION
Date: April 14, 2000
Time: 8:00 a.m.
Ctrm: Hon. William H. Alsup
1.
INTRODUCTION
In
February 2000, defendants began construction of a fence at Fort Funston to
close a very popular area of the park to the public. Plaintiffs believe they are the largest user of the park, by far. This closure was commenced with no input of
any kind from plaintiffs. The only
input defendants 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 plan to close this popular area was conceived in
October 1998. Throughout 1999,
defendants finalized and approved the closure still without
requesting any input from plaintiffs,
all along realizing how controversial the project would be. In fact, evidence suggests that defendants
attempted to hide the pending closure from plaintiffs more than six months
before the closure actually was implemented.
The
closure was not presented to plaintiffs until early December 1999. Even then, defendants gave plaintiffs the
clear impression that the closure was in the planning stages. Plaintiffs believed they had ample
opportunity to provide input into what they believed was merely a
proposal. Defendants gave plaintiffs no
indication that the closure was a done deal.
In
mid-December 1999, plaintiffs learned that the closure was definite and
imminent. Understandably, there was a
huge outcry from plaintiffs. Due to
this outcry, defendants 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 plaintiffs.
It follows a similar but larger closure in 1995 of adjacent park land,
which occurred with no input from plaintiffs or public input of any
kind. After this closure, defendants
assured plaintiffs and others that there would be no further closures. The instant closure, therefore, was in
violation of clear assurances made by defendants. In addition, plaintiffs believe that defendants have little to no
real justification supporting either the closure in 1995 or the closure in
issue, and that the justification provided is in complete derogation of the
values and purposes for which the GGNRA was created.
Moreover,
it was determined on March 6, 2000, a week before this action was filed, that
the size of the closure (permanent and seasonal) is actually 9.9 acres, rather
than the 6 acres reported to plaintiffs and to this 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 plaintiffs, both for
exercise benefits and enjoyment.
Plaintiffs believe defendants never evaluated the usage of this area of
the park and the alterations that would result if this area were closed. Finally, plaintiffs believe that this
closure is just another in a series of small closures that eventually will shut
plaintiffs out of most or all of the park.
While
defendants have represented both formally and informally that no master plan
exists regarding closures, this closure is consistent with GGNRA=s participation in a master plan referred to
in their documents as the ACentral California Coast Biosphere Reserve.@
2.
FACTS
Plaintiffs
are submitting herewith a binder which contains all of the documents to which
reference is made below. This binder
will be referred to as Plaintiffs= Exhibit Binder, and references will be noted APEB,@ followed by the page number in the Exhibit Binder.
1.
Background
Information
Fort
Funston Dogs 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. PEB001. 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. Declaration of
Linda McKay (AMcKay Declaration@), & 5, PEB004. The group currently
has approximately 600 members. McKay
Declaration, & 3, PEB004.
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. McKay Declaration, & 6, PEB004.
2.
Fort Funston
is a Special Place
Included
in Plaintiffs= Exhibit Binder at pages 003 through 046 are
declarations of eight members of FFDW or SFDOG explaining what a special and
unique place Fort Funston is to them.
In these declarations, these individuals discuss their deep emotional
attachments to the park through years of visiting the park. They also discuss the many friends they=ve made at the park, the joys they experience
at the park, and the many benefits derived from frequent visits to the park,
which include health benefits as well as emotional benefits.
C. Prior
Communications between FFDW and GGNRA
From 1992
until 1996, representatives from FFDW met regularly with GGNRA staff regarding
issues at Fort Funston. McKay Declaration, & 7, PEB004. They regularly
exchanged information regarding the concerns of FFDW and any information that
GGNRA staff wanted to pass along to members of the dog-walking community. Id.
FFDW
attributed this successful line of communication to Jim Milestone, who was the
GGNRA staff member with oversight responsibilities for Fort Funston. Mr. Milestone left GGNRA around 1996. After he left, the open line of
communication ceased. FFDW
representatives could not determine who was in charge at the park. No one seemed to have authority, and FFDW
representatives could not find anyone who could listen to their concerns and
make decisions. McKay Declaration, && 13, 15, PEB005, PEB006.
In the
fall of 1998, FFDW leadership was directed to Tracy Fortmann, the GGNRA Chief
of Public Affairs, who would serve as a liaison between the two groups. McKay Declaration, & 16, PEB006.
Ms. Fortmann first met with FFDW representatives in December 1998 to
walk the park and discuss certain needs of the group, including installing more
trash cans and additional dispensers for the dog cleanup bags, and the
installation of a water fountain for the dogs, at the expense of FFDW. McKay Declaration, && 16-19, PEB006.
FFDW
representatives called Ms. Fortmann every three to four months after the
initial meeting in 1998 to get updates for FFDW=s newsletter. FFDW particularly
was interested in events at GGNRA that would affect the dog walkers at Fort
Funston. McKay Declaration, & 19, PEB006.
In
September 1999, Roger Scott joined the Public Affairs staff at GGNRA. McKay Declaration, & 20, PEB007.
After his arrival, FFDW leadership dealt with Mr. Scott in addition to
Ms. Fortmann. Public Affairs has Ms.
McKay=s telephone number in its files. Deposition of Roger Scott, 28:2-6, 29:6-7,
PEB064.
/ / /
4.
Prior
Closures
In late
1994 or early 1995, GGNRA 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.
McKay Declaration, & 14, PEB005-PEB006; Declaration of Lee Walker, && 6-8, PEB013-PEB014.
In
conjunction with the closure, Jim Milestone held a meeting at the Fort Funston
Rangers Station to explain it. McKay
Declaration, & 14, Walker Declaration, & 8.
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. McKay Declaration, & 14.
At the meeting, Mr. Milestone promised that there would be no further
fencing and no further closures. McKay
Declaration & 14; Walker Declaration, & 8.
Defendant Brian O=Neill, the General Superintendent of GGNRA, also wrote to the President
of the San Francisco Society for the Prevention of Cruelty to Animals in 1995
stating that there would be no closure of the land south of the 1995
closure. PEB006 . This is the land that in fact recently has
been closed. PEB066-PEB067.
5.
Plans for
the Current Closure
Discussions
regarding the current closure of a
portion of Fort Funston commenced in October 1998. Deposition of Sharon Farrell, 26:1-13, PEB070a. Also in October 1998, a grant request was
submitted soliciting funds for this closure.
Farrell Deposition, 26:8-13, PEB070a.
Apparently, a subsequent grant request also was submitted, but the date
is not known. PEB075. This request calls for additional
fencing. 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. [PEB075.]
The
project first was submitted to GGNRA=s Project Review Committee on February 03, 1999. PEB077.
A memorandum dated January 26, 1999, sets forth the agenda to be
presented to the Project Review Committee.
GGNRA has explained that the current closure is included in the agenda
item entitled, ANEW BUSINESS: PARK-WIDE Vegetation
Stewardship Parkwide Program - 1999 Workplan.@ PEB078. This agenda item is very general and is a
workplan of all anticipated field activities that were scheduled to occur in
the subsequent twelve months.
The
Project Review Form similarly reflects a general workplan of vegetation to be
implemented in the subsequent twelve months.
PEB079. A question in the
Project Review Form asks whether the plan would AAlter visitor activities;@ the response was ANO.@
PEB080. In response to the
question, AInvolves ground disturbance (requires dig
permit)?,@ the response was AYES, all fence posts will be submitted
through a second project review process.@ Id. Nothing in the Project Review Forms mentions
the ecological effects or the effects on a threatened animal (i.e., the bank
swallow) of removing large amounts of iceplant and replanting with native
plants. The Fort Funston project was
listed on a table on the last page of the Project Review Form. PEB083.
On
February 24, 1999, Brian O=Neill, the Superintendent of GGNRA, approved the vegetation projects
included in the Project Review Form.
PEB084. The approval form, like
the Project Review Form, does not specifically refer to the Fort Funston
project, that a closure was entailed, or that habitat near the breeding colony
of the bank swallows would be disturbed.
The approval form further provides that the project qualified for an AE(6)@ categorical exclusion from further NEPA review. PEB088.
By May
1999, Sharon Farrell, GGNRA=s Plant Ecologist, expected that the current closure would take place
and began developing a plan as to which particular plants to plant in the
closed area. Farrell Deposition,
24:10-25:1, PEB070. She also expected that the closure would
extend from the area closed in the north in 1995 down to the beach access
trail, and that the entire closure would be permanent. Members of the Native Plant Society were
supportive of the revegetation plan as early as February 1999. Farrell Deposition, 36:17-38:19,
PEB071-PEB071a. The size of the
proposed closure was reported to be 3.8 acres flat, and 6.4 acres incorporating
the topography. PEB089.
GGNRA
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, GGNRA=s efforts to keep the project a secret, and
the intentional lack of opportunity given to plaintiffs for input, while
providing ample opportunity for input to user groups in favor of the plan. These e-mails are described below in the
chronology of events from July 1999 through early March 2000.
On July
31, 1999, Mary Petrilli sent an e-mail to other GGNRA staff to discuss the Aimplementation of the Bank Swallow Site
Extension.@
PEB090. In that e-mail, she
stated that Awe do not want this to blow up in our faces,@ and proposed setting up an Action Plan. She stated that she particularly wanted to
focus on Aresource-education/public information@ and suggested that Amany park advocates@ were willing to help, such as the California
Native Plant Society and the Audubon Society.
The e-mail was concluded with the following: A* *NOTE: Everyone copied on this should be
very discreet with this information, PLEASE.@
On
September 1, 1999, Sharon Farrell summarized the project in an e-mail to Tracy
Fortmann. PEB091. In this e-mail, Ms. Farrell mentions
discussions at GGNRA regarding whether the project had ever gone through
Project Review. Ms. Farrell explained
that the project had been included in the February park stewardship workplan,
which is discussed above. Ms. Farrell
states, AUnfortunately the significance of the project
seemed to have been buried with all of the other great activities conducted by
the program, so as a future measure we will separate tree removeal and fencing
projects from your yearly workplan.@ Id.
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.@
PEB107. This report addresses
the size of the area being closed and many other aspects of the closure. Fort Funston Dog Walkers never received this
report or any version of it. McKay
Declaration, & 24, PEB008.
Sometime
in September 1999, Ron Schlorff from the California Fish & Game Department
met with GGNRA representatives Mary Petrilli, Sharon Farrell, and Daphne Hatch
at Fort Funston to view the bank swallow burrows on the bluffs. Hatch Deposition, 41:16-43:6, PEB112. Mr. Schlorff is a biologist with Fish &
Game who is responsible for bank swallows.
Hatch Deposition 41:19, PEB112.
At the
conclusion of Mr. Schlorff=s visit, Ms. Farrell and Ms. Hatch asked Mr. Schlorff to prepare a
letter or a report in support of the closure.
Hatch Deposition 48:7-15, PEB113.
In this regard, both Ms. Hatch and Ms. Farrell sent e-mails to Mr.
Schlorff, on October 12, 1999 and October 27, 1999, respectively, requesting
written support for the closure.
PEB092, PEB093. Ms. Farrell
specified items she wished to see in the report, including a statement that the
decline in the bank swallows was due to Arecreational impacts.@ Id. Mr. Schlorff never sent the requested
documentation. Hatch Deposition,
47:10-15, PEB113.
Ms.
Farrell and Ms. Hatch presented the Fort Funston project to the San Francisco
Committee of GGNRA=s
Advisory Commission on November 1, 1999.
Hatch Deposition 95:12-25. PEB117.
Included in the Plaintiffs= Exhibit Binder is a document that appears to serve as the basis for
Ms. Farrell=s and Ms. Hatch=s presentation. PEB118. This documentation sets forth the need to
protect bank swallows but does not address how the restoration of native plants
provides the protection needed. It also
does not address the effects on the bank swallows of changing the habitat
adjacent to their nesting sites. The
San Francisco Committee Afelt that the project was worth doing@ and referred the project to the full Advisory Commission, which was to
meet on January 18, 2000. PEB094.
On
November 24, 1999, Mr. Scott called Linda McKay of FFDW to notify her that the
Sunset Trail in Fort Funston had been closed that day. McKay Declaration, & 21, PEB007.
During that conversation, either Ms. McKay or Mr. Scott suggested a
meeting at Fort Funston. Ms. McKay
believes that she may have requested the meeting to follow-up on the items that
had been discussed during the December 1998 walk-though, namely additional
trash cans and bag dispensers, and an additional water fountain for the dogs.
On
December 3, 1999, representatives from FFDW met with representatives from GGNRA
to walk through Fort Funston. McKay
Declaration & 22, PEB007; Walker Declaration, & 11, PEB014.
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.
Roger Scott tried to explain the closure to the FFDW representatives
using a map that he did not understand and couldn=t read. He even told the group
that the map wasn=t a
very good map. McKay Declaration, & 22; Walker Declaration, & 11.
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. Id.
On
December 21, 1999, Roger Scott e-mailed Linda McKay proposed minutes of the
December 3 walk-though. PEB121. Only
after reading these minutes did Ms. McKay realize that the proposed closure was
imminent. McKay Declaration, & 23, PEB007-PEB008. The minutes also state that the major topic of discussion was the
closure of the Sunset Trail.
PEB121. The last page of the
minutes provides that the dogwalkers stood Aready to assist the park in getting the word out on issues to hundreds
of dog walkers 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.
PEB122-PEB123.
On
December 26, 1999, Ms. McKay encountered 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 GGNRA 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.@ PEB095.
On
December 27, 1999, Ms. McKay sent an e-mail to Mr. Scott in response to his
proposed minutes of the December 3 walk-through. PEB096. In her e-mail,
Ms. McKay explained that none of the FFDW 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. Ms. McKay closed by stating that she=d Ahate to raise the issue and get everyone upset if [she had]
misunderstood@ the proposed minutes.
Ms. McKay
and other representatives from FFDW were prepared to meet with GGNRA in early
January. McKay GGNRA personnel, however, were not prepared
to meet until January 20, 2000. McKay
Declaration, & 26, PEB008.
On
January 5, 2000, SFDOG members received information about the meeting of the
Advisory Commission on January 18, 2000.
PEB 124. Listed on the agenda
was AUpdate on Bank Swallows Project.@ A
FFDW member passed information of the Advisory Committee meeting along to
several other FFDW members via e-mail on January 15, 2000. In the e-mail, she stated that the Advisory
Commission meeting was just considering a report, and that nothing was Awritten in stone.@
Again, FFDW members continued to believe that the closure was in the
preliminary stages.
Several
members of FFDW and SFDOG attended the January 18, 2000 Advisory Commission
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. McKay Declaration, && 27-28, PEB008. 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 GGNRA 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.
McKay Declaration, & 30, PEB008. They were told that the park service could
not figure out how to build the fence closer to the bluffs. Id.
On
January 24, 2000, Linda McKay sent an e-mail to Tracy Fortmann and Roger Scott
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.@ PEB097.
On
January 26, 2000, Sharon Farrell sent an e-mail to Janet Gomes regarding construction
of the fence. PEB098. In it, she made the following comments
regarding the controversial nature of the fence:
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 walkers 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 GGNRA personnel from February 10 through
February 14, 2000, GGNRA personnel concluded that there were never public
meetings with public comment on the bank swallows issue. PEB100.
By letter
dated February 10, 2000, Pete Holloran, the President of the Yerba Buena
Chapter of the California Native Plant Society wrote to defendant Brian O=Neill.
In this letter, Mr. Halloran 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.@
PEB126.
On
February 11, 2000, Mary Gibson Scott inquired as to whether there were any
reports or studies supporting GGNRA=s position as to the need to protect the bank swallows. She had been informed that no such reports
or studies existed. PEB102. Daphne Hatch responded to Ms. Scott=s inquiry on February 14, 2000. PEB103.
It=s difficult to determine from this response
what reports or surveys GGNRA in fact does have to support its closure for bank
swallows.
On
February 15, 2000, Roger Scott sent an e-mail to other GGNRA staff responding
to Linda McKay=s concerns about the lack of public
involvement in the closure.
PEB104. Mr. Scott concluded that
there had been no formal notification of the closure, and that he couldn=t locate any documentation that outreach to
dogwalkers 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
dogwalkers 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 walkers reagarding [sic] this change and we may have done so to some
degree. [Emphasis added.]
On
February 17, 2000, representatives from Fort Funston Dog Walkers went on a
walk-through at Fort Funston to further understand the closure. GGNRA personnel arranged to have Alan
Hopkins of the Audubon Society present to explain the justifications for the
closure. Although Mr. Hopkins 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. Declaration of Anne Farrow, & 2, PEB047.
Construction
of the fence commenced during the week beginning February 22, 2000. Farrow Declaration, & 3, PEB048.
Fort
Funston Dog Walkers had a general meeting on February 29, 2000. Among the topics of discussion was
installation of the new fences. A
representative from GGNRA was asked to attend, but declined. Farrow Declaration, & 4, PEB048.
A
memorandum dated March 3, 2000, which GGNRA contends serves as its AWritten Determination@ pursuant to 36 C.F.R. section 1.5 ,sets
forth three justifications for the closure: (1) to protect bird habitat, (2) to
provide for revegetation, and (3) for public safety purposes. PEB127.
On March
6, 2000, Sharon Farrell reported that there was Aa discrepancy in the information we first provided the public@ regarding the acreage included the closure. PEB106.
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.
An overhead picture of Fort Funston showing the closed areas is included
in Plaintiffs= Exhibit Binder at page PEB136.
On March
14, 2000, Ms. Farrell reported to this Court that the total area closed was six
acres. PEB138, lines 22-24.
6.
Master Plan
In her
deposition testimony, Sharon Farrell, the Plant Biologist for GGNRA, stated
that GGNRA has no written plans for revegetation efforts for Fort Funston. Farrell Deposition, 19:16-20:20,
PEB069. Documents presented through
discovery, however, suggest that there is a master plan to which GGNRA
ascribes. This plan is known as the ACentral California Coast Biosphere Reserve@ and provides for resource protection and
restoration efforts. PEB139. Lands within GGNRA are included in the
plan. PEB143. Plaintiffs do not know whether the closure in issue is pursuant
to this biosphere plan. The development
of the native habitat within the new closure is consistent with this plan.
7. Information
on Bank Swallows
In May
1996, GGNRA staff prepared a report entitled AFort Funston=s Bank
Habitat and Flyway, Management Plan and Site Prescription.@
PEB144. 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. Suck
a site restoration will further support extirpated species like California
quail and brush rabbits. [PEB145.]
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. [PEB147.]
The plan
contains the following regarding communicating with Fort Funston Dog Walkers:
Schedule
one-on-one walking tours with key members of the Fort Funston Dog Walkers
Association. (Don=t Forget Them, they are key to the overall success of the
project. (Emphasis in original.)
[PEB146.]
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.@ PEB149-PEB150.
In her
recent deposition, Daphne Hatch, Natural Resource Management Specialist, stated
that flyover areas are not necessary to the protection of the bank
swallows. Hatch Deposition, 63:25-64:2,
PEB114. She was asked whether an area
of native habitat provides any additional protection to the bank swallows. She replied that she did not know. Hatch Deposition, 64:3-13, id.. She also stated that Lake Merced is the
primary feeding area for the bank swallows.
Hatch Deposition 80:20-81:26, PEB116.
In
addition, Ms. Hatch 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. Hatch Deposition, 39:10-23.
PEB112. She explained that devices had
been placed on the tops of the fence posts to deter predators from roosting
there. Hatch Deposition,
75:20-76:12, PEB115. Included in Plaintiffs= Exhibit Binder are recent pictures which
reveal that these deterrents are not presently in place on the fence
posts. PEB049, PEB051-PEB052.
A 1994-1995
Bank Swallow report regarding the Fort Funston population prepared by Noal
Chow dismisses dog activity as bothersome to the bank swallows: AMonitors also noted presence at the colony of
hawks, dogs . . . Observers noted on two occasions that swallow activity ceased
when aircraft flew near the colony, but responses to the other potential disturbances
were not mentioned or documented.@ PEB151. A daily report prepared in conjunction with
the monitoring of bank swallows states, AMany dogs in this area, but it doesn=t seem to bother the birds.@ PEB154.
8.
Information
on Public Use Patterns of the Land
In her
deposition, Mary Gibson Scott, Deputy Superintendent of GGNRA, was asked
whether GGNRA had performed surveys of the public use patterns at Fort
Funston. Deposition of Mary Scott,
77:6-7 PEB117a-PEB117b. She replied
that the park had done surveys at Fort Funston. M. Scott Deposition,
77:10. The only surveys plaintiff has
identified are included in Plaintiffs= Exhibit Binder at pages PEB155-PEB158. Apparently, there are no recent public use surveys of the park,
or of the area that recently has been closed.
Included
in the declarations submitted by members of FFDW and SFDOG are their stories of
how they have used the acres that have been closed, the many benefits derived
from this usage, the memories related to this land, and their concerns
regarding the effect the new fences have on the scenic beauty of the park. PEB003-PEB046. See also the e-mail from Linda McKay to Roger
Scott on December 27, 1999, in which she stated that Ahundreds of people play on both dunes,
hundreds more walk through the valley . . .@ PEB096.
1.
Controversy
Included
in Plaintiffs= Exhibit Binder are copies of numerous card
and letters written regarding the closure and letters written to the editors of
newspapers. PEB159.
10.
Information
on Public Safety
Enclosed
within the new permanent closure is an access trail to the beach. This access trail is known as the Agap.@ During high tide, park users
frequently have accessed the beach through the gap and walked north to a trail
which enters the park at its northernmost point. Conversely, they also would access the beach via this
northernmost trail, walk south along the beach, then return to the park through
the gap. The reason walking was kept in
this area is that, south of the gap is an area known as Panama Point. At Panama Point, the land juts out such
that, around high tide, the path along the beach is impassible due to the wave
action at Panama Point. Declaration of
Lydia Boesch, PEB055. (In Ms. Boesch=s declaration, Panama Point is incorrectly
referred to as Paradise Point.)
Panama
Point is 3 to 2 half mile south of the trail that enters the beach at the northern
most point, and is north of the beach access trail that remains open after the
recent closure. A walker who walks
south from the northernmost entry point and arrives at Panama Point during
high-surf conditions is faced with the choices of turning around and heading
back north, climbing over Panama Point, or walking through the oncoming surf to
get around the point. There appears to
be a trail that leads over Panama Point.
This trail, however, is a steep ascent, followed by an even more steep
and dangerous decent.
Sharon
Farrell stated during her deposition that, during planning for the instant
closure, she is unaware if the public safety concern of passage around Panama
Point during high-surf conditions was considered. Farrell Deposition, 51:1-16, PEB072.
III. GOVERNING
PRINCIPLES
1.
Statute
Under 16
U.S.C. Section 1, the purpose of national parks, monuments, and reservations is
Ato conserve the scenery and the natural and
historic objects and the wild life therein and to provide for the enjoyment of
the same in such manner and by such means as will leave them unimpaired for the
enjoyment of future generations.@
16 U.S.C.
Section 1a-1 further provides that the authorization of activities within
National Parks and the administration of these areas Ashall not be exercised in derogation of the
values and purposes for which these various have been established, except as
may have been or shall be directly and specifically provided by Congress (emphasis
added).@ By a
series of amendments to 16 U.S.C. sections 1, et seq., Congress Adirected that all units of the national parks
were to be treated consistently, with resource protection being the primary
goal, while retaining the flexibility for individual park units to approve
particular uses consistent with their specific enabling legislation. Bicycle Trails Council of Marin v.
Babbitt, 82 F.3d 1445, 1449-1450 (9th Cir. 1996) (emphasis
added).
Golden
Gate National Recreation Area was created pursuant to 16 U.S.C. section 460-bb.
The enabling legislation sets forth the purposes for which GGNRA was
established. These purposes, or
statutory mandates, are:
(1) Provide
for maintenance of needed recreational open space,
(2) Utilize
resources in a manner which will provide for recreation and educational
opportunities, in a manner consistent with sound principles of land use
planning and management,
(3) Preserve
the recreation area, as far as possible, in its natural setting,
(4) Protect
the recreation area from development and uses which would destroy the scenic
beauty and natural character of the area.
The House
Report accompanying the legislation explained the need for the creation of this
national urban recreation area. H.R.
Rep. No.1391, 92d Cong., 2d Sess. (1972).
At the time of the report, the population density of San Francisco was
16,500 per square mile, compared with 5,000 per square mile for Los
Angeles. Id. at 2. The report provides, AWhile it is some comfort and compensation to
live in a city as interesting, clean, and attractive as San Francisco, it must
be noted that the opportunities for outdoor recreation in broad open spaces are
severely limited.@ Id.
The bill Awill not add significantly to the open lands
in the city, but it will ensure its continuity as open space for the use and
enjoyment of present and future generations of city dwellers.@ Id. The bill would establish a Anew national urban recreation area which will
concentrate on serving the outdoor recreation needs of the people of the
metropolitan region. Id. at 3.
/ / /
2.
Regulations
The
regulations were promulgated in 1982 after the creation of GGNRA. 36 C.F.R. section 1.5 is the regulation
which governs the closure in issue. A
park superintendent=s
authority to implement closures under 36 C.F.R. section 1.5 is premised upon
the requirement that such action must be Aconsistent with applicable legislation.@ 36 C.F.R. section 1.5(a).
Several
comments supporting promulgation of the Title 36 regulations reflect the
Congressional requirement that enabling legislation of each specific park must
be considered by the superintendent of each park when acting pursuant to
section 1.5. These comments are as
follows:
Each unit
of the System must now be given more individual attention in planning and
management to ensure that legislative mandates and policy requirements
are met. [47 Fed. Reg. 11598 (1982) (emphasis added).]
The
management tools of 36 C.F.R. Amay not be used if they conflict with enabling legislation, such as 16
U.S.C. 1 or the enabling legislation of a specific park. [47 Fed. Reg. at
11599; See also 48 Fed. Reg. 30252, 30254 (1983).]
AService recognizes the high public value associated with outdoor
recreation and fully intends to comply with the legislative history
governing the intended public use of these areas.@ [48 Fed. Reg. at 30253 (emphasis added).]
The
regulation at issue in this case is 36 C.F.R. section 1.5(b). This regulation provides, in relevant part,
as follows:
Except in
emergency situations, a closure . . . which is of a nature, magnitude and
duration that will result in significant alteration in the public use pattern
of the park area, . . . or is of a highly controversial nature, shall be
published as rulemaking in the Federal Register.
The
comments underlying section 1.5(b) addressed Asignificant alteration in the public use pattern@ of the land and Ahighly controversial.@
Regarding the former, the comments provide:
A
permanent closure of a limited area within a park does not require the use of
notice and comment procedures, unless it also has the required effect of
significantly altering or disrupting use by a substantial number of park
visitors. In this connection, it
should be noted that a particular closure or restriction in a small park
unit may require rulemaking, even though it would not if applied in a park with
a different pattern. 47 Fed. Reg.
at 11599-11600 (emphasis added).
The Ahighly controversial@ standard was not included in the regulation
as originally proposed. 47 Fed. Reg. at
11612. It was inserted in the final
rule to address the concerns of commenters that park superintendents could be Aarbitrary and excessive in implementing
closures.@ 48
Fed. Reg. at 30254.
3.
Case Law
1.
Preliminary
Injunctions
The
party requesting a preliminary injunction will prevail if it demonstrates
either (1) a combination of probable success on the merits and the possibility
of irreparable injury if relief is not granted, or (2) the existence of serious
questions on the merits and that the balance of hardships tips strongly in its
favor. International Jensen v.
Metrosound, 4 F.3d 819, 822 (9th
Cir. 1983). 2. Rulemaking
for Changes to a GGNRA Park
Bicycle
Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1449 (9th Cir. 1996), addressed a closure by
GGNRA. In that case, the National Park
Service promulgated a regulation, after notice and comment, regarding bicycles
in national parks. The regulation
allowed superintendents to close off park areas to bicycles, pursuant to the
criteria and rules of 36 C.F.R. sections 1.5 and 1.7. The superintendent of GGNRA
elected not to enforce the new regulation and left the bicycle trails in
the Marin Headlands open.
Subsequently,
the superintendent of GGNRA decided to implement a bicycle policy, and held
extensive public hearings before publishing proposed rule in the Federal
Register. The court noted that ANPS (and GGNRA) officials sought
participation and comments from at least three major recreational user groups:
the bicyclists, the hikers, and the equestrians.@ 82 F.3d at 1460. AParticular concerns of each user group were repeatedly aired both at
hearings and through letters and the comment process.@ 82
F.3d at 1460.
In the Bicycle
Trails case, numerous opportunities were given to each user group. Those opportunities included the
following: a draft closure plan was
presented to the Advisory Commission; an Ad Hoc Committee was set up consisting
of members of the three interested groups; the Ad Hoc Committee presented a
majority and a minority report; GGNRA staff held four public meetings; GGNRA
staff set up three individual user group workshops (one for each user group);
GGNRA staff considered hundreds of letters;
GGNRA staff heard testimony at public hearings and Advisory Commission
meetings; GGNRA staff considered the observations and views of experts and
staff members; GGNRA staff prepared a
thorough report that was circulated for public review and comment. 82 F.3d at 1458-1459.
The court
concluded that the bicycle enthusiasts had been given ample opportunity to
provide input to the regulatory process.
The court also stated that Aa failure by the NPS to address recreational concerns could be a basis
for invalidating agency action.@ 82 F.3d at 1460.
IV. ANALYSIS
Plaintiffs
maintain that a preliminary injunction is appropriate to protect against Park
Service activities which are significantly damaging a beautiful and highly
popular urban recreational park. The
closures in this case were made with quiet speed to avoid the public outcry
which in fact did erupt once the public received notice of the closures.
Fort
Funston had worked well for decades. It
had provided a nesting site for a bird colony,
while at the same time providing a prized urban recreation
opportunity. Starting in 1992, however,
defendants began to micro-manage the park and in doing so violated the
long-balanced, working natural ecology.
Defendants denuded the historical plants and ecology in the portion of
the park near the cliffs enjoyed by the bank swallows and replaced the ordinary
historical ecology with new Anative plants.@ The nesting colony population dropped
precipitously.
Moreover,
plaintiffs question certain phases of the implementation of the plan, which
suggest that GGNRA personnel were not completely forthcoming. The plan was submitted to the Project Review
Committee in an obscure fashion, such that there was a subsequent question as
to whether the plan was reviewed at all.
The Project Review Form made little mention of its Fort Funston aspects,
and made no mention of the ecological impact to the bank swallows or that a
popular part of the park would be fenced off.
When the plan was presented to the San Francisco Committee of the
Advisory Commission, it apparently did not include any mention of the effect on
the bank swallows of changing their adjacent habitat.
The grant
request states that there was an Aextended public comment period,@ and that the implementation of the plan was delayed Ato insure that all public comment could be
weighed before project implementation.@ This simply is not the case.
In
addition, one e-mail warns of the project blowing up in GGNRA=s faces and warns people to be discreet. Yet, another e-mail sets forth the proposed
procedure for having the fences installed as quickly as possible because the project was so political, and
mentions the dogwalkers= dismay over the closure. Even
during their first opportunity to explain the closure to representatives of
Fort Funston Dog Walkers on December 3, 1999, GGNRA officials did not explain
the magnitude or imminence of the closure.
1.
A
Preliminary Injunction is Appropriate in This Case
As
set forth above, the party requesting a preliminary injunction will prevail if
it demonstrates either (1) a combination of probable success on the merits and
the possibility of irreparable injury if relief is not granted, or (2) the
existence of serious questions on the merits and that the balance of hardships
tips strongly in its favor.
In
this case, plaintiffs have more than a fair chance of success on their claim
that rulemaking should have been undertaken with respect to the closures. The closures are highly controversial,
substantially alter the public use pattern of the land, and are completely
contrary to the enabling legislation for the park, are in complete derogation
of the purposes for which the park was
established, and are contrary to sound ecological protection and planning
procedures.
1.
Highly
Controversial
By
any standard, the closures in this case are Ahighly controversial.@ Plaintiffs know of no cases
interpreting the Ahighly
controversial@ requirement of 36 C.F.R. section
1.5(b). As discussed above, Ahighly controversial@ was not included in the regulations as
proposed, but was added to the final rules in response to concerns that the
superintendent would use its discretionary power to limit or close sections of
a park without adequate public involvement.
If ever
there were a case where public involvement was required prior to a closure,
this is it. Plaintiffs believe they are
by far the heaviest user of Fort Funston, and have seen no evidence to suggest
otherwise. Defendants= closure of a large section of the park in
1995 without any public input, promising afterwards that there would be no
further closures, has made the closure in issue especially controversial. Defendants= refusal to allow public input into the decision-making is highly
controversial, and contravenes the statutory mandate that land use principles
be applied.
Also in
controversy is the basis upon which the closure is premised. Defendants maintain that creation of native
habitat and the restoration of native plants are necessary, but offer no
scientific support for this premise.
They maintain that dogs are a threat to the bank swallow, yet have
monitoring data which demonstrates otherwise.
Plaintiffs maintain that an analysis should have been conducted of the
effects of destroying the habitat adjacent to the bank swallow nesting
area. The conflicting evidence in the
record, or the lack of evidence altogether, are a sound reason for why the
basis of the closure should be aired in a public forum.
2.
Significant
Alteration in the Public Use Pattern of the Land
The
record demonstrates plaintiffs= heavy usage of the area closed.
Defendants have no evidence to demonstrate public usage of this area, or
of the entire park. Plaintiffs maintain
that this closure fits squarely within the comments underlying 36 C.F.R. 1.5
(b). This closure, albeit small in
terms of percentage of the park, in fact does disrupt use by a substantial
number of park visitors.
Moreover,
as a result of this closure, park users now have lost an important access route
to the beach which is necessary to public safety during times of high
tide. Although defendants state that
one of the reasons was to protect public safety, they have created a public
safety nightmare by diverting traffic around Panama Point.
Last, plaintiffs
maintain that this Court must view this closure in view of the closure in
1995. If defendants were allowed to
avoid public comment every time a closure is undertaken by claiming that the
size of the closure is small relative to the total acreage of the park, they
could engage in a creeping takeover of the park and avoid public comment at
every step of the way.
2. Application
of the Balancing of Hardships Test
The
balancing of hardships tips strongly in plaintiffs= favor.
Plaintiffs and the public have lost, among other things, (1) beach
access which is necessary for public safety, (2) access to beautiful views,
while being forced to look at fences which have destroyed the scenic beauty of
the park, (3) the opportunity to watch sunsets away from crowds, (4) access to
a favorite hiking area, and (5) access to the only large sand dune in the
entire GGNRA on which children and families can slide and play. Plaintiffs anticipate that, with this
closure and the controversial closure in 1995, they face loss of the most
popular recreation area for off-leash play with their dogs and children, and
the prospect of increased congestion and conflict in the remaining areas of the
park.
The
suggested conflicting interests of defendants in wildlife protection by way of
the closures are speculative, delayed, attenuated, and contrary to policy. The assumed benefits to the wildlife ecology
are suspect. Defendants have no clear
evidence supporting their position that the closures would eventually benefit
the bank swallow habitat. A substantial
question exists as to whether the proposed altered ecology may in fact be
detrimental to the bank swallows in the long term. Defendants acknowledge that the bank swallow colony has moved
away from their long-used nesting area, and such movement occurred in the
nesting seasons after defendants began changing the ecology on the adjoining
bluffs.
Moreover,
any burden to defendants with regard to limiting measures sought to protect the
bank swallows would be substantially mitigated if defendants would only perform
the other simple protective measures that have been frequently suggested and
identified as more a more productive first step to preservation of the banks
swallows. Cliff climbing and access
from the beach have been identified as having substantially greater impact on
the birds. Yet, defendants has not
performed the simple protective act of installed the suggested signs requesting
that the public and their children refrain from climbing the cliffs.
The suggested
interest of defendants in closure to provide an opportunity to perform native
plant restoration is also delayed, attenuated and satisfied otherwise.
Defendants will not even begin to plant some portions of the closure
area for six years or more years. Being
precluded from needlessly fencing out the public in the interim is not a substantial
or unfair burden on defendants. Moreover,
there are vast other areas of the park away from the favorite recreational
areas which could be alternative planting areas.
3.
Irreparable
Injury
The
irreparable injury requirement is satisfied in this case in a number of
ways. The public and Plaintiffs lose
access to a favorite park area providing unique recreational opportunity. The public and Plaintiffs are also injured
in that the beauty and potentially the ecology of the park is damaged. A mere threat or possibility of injury may
suffice for pretrial injunctive relief where there is a probability of success
on the merits. FSLIC v. Sahni,
868 F.2d 1096, 1097 (9th Cir. 1989).
Plaintiffs
are irreparably harmed by the aesthetic damage to the beauty and peacefulness
of the park occasioned by erecting a maze of needless fencing and by the
potential destruction of the ecology of the park and damage to the bank swallow
community. The harm to plaintiffs= Aaesthetic and environmental well being@ has long been recognized as a cognizable injury. Sierra Club v. Morton, 405 U.S. 727,
734, (1972); Fund for Animals v. Lujan, 962 F.2d 1391, 1396 (9th
Cir. 1992).
Plaintiffs
are injured by the violation of the public input aspect of the process of
informed decision-making and the difficulty of stopping a bureaucracy once
started down the road bent on making changes regardless of the negative effects
of the changes on the park environment:
The
difficulty of stopping a bureaucratic steam roller, once started, still seems
to us, after reading Village of Gambell, a perfectly proper factor for a
district court to take into account in assessing that risk, on a motion for
preliminary injunction. And it does not
surprise us that, since Village of Gambell, other courts have reached the same
conclusion [relying on several Ninth Circuit cases].
Sierra Club v. Marsh, 872 F.2d 497, 504 (1st Cir.
1989), and cases cited therein.
In
West v. Department of Transportation,
No. 97-36118 (9th Cir. March 20, 2000), the Ninth Circuit
reversed a decision which allowed a government agency to improperly use a NEPA Acategorical exclusion@ to avoid public input and environmental
review of a project. In the instant
case, defendants have similarly attempted to use a Acategorical exclusion@ to avoid review of its plans. Defendants have engaged in a campaign to
avoid the normal public input process in order to quickly push through a park
closure and ecological change favored by a minority extreme faction but which
otherwise might not withstand the rigor of public scrutiny of the true
ecological impact and damage to public recreational interests. AIrreparable injury is presumed when an agency fails to evaluate
thoroughly the environmental impact of a proposed action.@ Save
our Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir.
1984). See also Public
Service Company of Colorado v. Andrus, 823 F.Supp 1483, 1504 (D.C. Idaho,
1993).
/ / /
/ / /
/ / /
22.
CONCLUSION
Based on
the highly controversial nature of this closure and its significant alteration
of the public use pattern of the land, combined with defendants= actions which are in complete derogation of
the values and purposes for which GGNRA was created, and in derogation of the
legislative mandate for GGNRA, a preliminary injunction is appropriate to
protect the park in the interim until the recreational purposes and
environmental concerns can be fully considered.
Respectfully
submitted,
April 3, 2000 ___________________________________
LYDIA
OWEN BOESCH
JOHN
B. KEATING
Attorneys
for Plaintiffs