LYDIA OWEN BOESCH (CA Bar No.
147901)
110 Maywood Drive
San Francisco, CA 94127-2040
Telephone: (415) 841-1060
Facsimile: (415) 841-0437
JOHN 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, an unincorporated membership organization; 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.
Case No.
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIELF AND WRIT OF MANDATE
1. PRELIMINARY STATEMENT
1. This is an action for a injunctive and declaratory relief and a writ of mandate ordering the defendants to comply with the Title 36 regulations governing the closure of parks.
2. Golden Gate National Recreation Area ("GGNRA") oversees a recreational area on the coastal bluffs in southwest San Francisco known as "Fort Funston" Since mid-February, GGNRA has been closing off portions of Fort Funston to the hundreds of visitors to the park daily. Much of this closure is permanent. GGNRA has not given the requisite notice with respect to these closures, and has not published the closures as rulemaking in the Federal Register, as required by the Title 36 regulations. GGNRA is representing that the closures are necessary to protect the bank swallows, when in fact, the closures are primarily related to GGNRA's effort to plant "native" vegetation throughout the park. Plaintiffs merely are requesting that defendants be ordered to comply with the regulations that apply to park closures.
II. JURISDICTION AND VENUE
3. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. ' 1346, as this action is a civil action against the United States and is founded upon a regulation of an executive department. This action is brought in District Court within the district within which Fort Funston is located. In addition, Fort Funston falls within the management and control of GGNRA, whose headquarters are situated with this district. All of the wrongful conduct and injuries alleged herein took place and occurred within or with regard to this judicial district.
III. PARTIES
4. Plaintiff Ft. Funston Dog Walkers is an unincorporated membership organization, comprised of approximately 600 individuals who walk their dogs at Fort Funston.
5. Plaintiff SFDOG is a limited partnership formed under the laws of the State of California in 1975 and with 650 members. It also is known as San Francisco Dog Owners Group.
6. Plaintiffs Linda McKay and Lindsay Kefauver are individuals who are members of Ft. Funston Dog Walkers and reside in San Francisco.
7. Plaintiff Florence Sarrett is a senior citizen and a member of plaintiff SFDOG. She is a frequent visitor to Fort Funston, has been visiting the park for more than 30 years, and resides in San Francisco.
8. Plaintiff Marion Cardinal, an individual, also is a senior citizen who is a frequent and long-time visitor to Fort Funston and resides in San Francisco.
9. Defendant Bruce Babbit, an individual, is Secretary of the Department of the Interior, which is an agency in the Executive Branch of the United States.
10. Defendant Robert Stanton, an individual, is the Director of the National Park Service, which is a bureau within the Department of the Interior.
11. Defendant John Reynolds, an individual, is the Regional Director of the Pacific West Region of the National Park Service.
12. Defendant Brian O'Neill, an individual, is the General Superintendent of the Golden Gate National Recreation Area, which oversees the operations of Fort Funston.
13. At all times herein mentioned, each of the wrongfully acting individuals or entities was the agent, principal, servant, partner, joint venturer or franchisee, of the remaining Defendants herein, and was at all times acting within the purpose and scope of said agency, service, employment partnership, joint venture and franchise.
IV. FACTUAL ALLEGATIONS
14. Fort Funston is a popular, multiple-use coastal bluff area in southwest San Francisco, California.
15. Fort Funston was acquired by the U.S. Army in 1900 to add a link in the chain of coastal artillery batteries lining the Golden Gate. When the Army vacated the land in 1961 or 1962, Fort Funston was transferred to the City of San Francisco.
16. Congress created the Golden Gate National Recreation Area in 1972. In 1974, San Francisco transferred ownership and control of Fort Funston to the United States, for the property to be included in the Golden Gate National Recreation Area.
17. Fort Funston is just one of several Northern California properties which are managed within GGNRA. Other properties controlled by GGNRA include, for example, Fort Mason, Fort Baker, the Presidio, Lands End, Alcatraz Island, Muir Woods, and Fort Miley.
18. Operation of Fort Funston and other lands within GGNRA is provided by the Superintendent of GGNRA. The current Superintendent is defendant Brian O'Neill.
19. As long as Fort Funston has been available to the public, many different user groups have taken advantage of the rich recreational opportunities available to the general public, including hiking, walking, dog-walking, kite-flying, hang-gliding, picnicking, beach combing, running, fishing, equestrian use and wildlife observation. Visitors of all ages visit the park regularly, from small children in strollers to senior citizens. The park also is used by individuals with a wide range of physical abilities, from runners training for athletic events, to senior citizens and the disabled who use the park as a recreational and social outlet.
20. The largest user group of Fort Funston are individuals who walk their dogs. No public surveys have been conducted to determine what percentage of the park users are dog-walkers.
21. Many of the individuals who walk at Fort Funston, including those with dogs and those without, have been taking regular walks in the park for decades. These individuals have become like family, and are a close-knit community. They share sorrows, joys, family events, successes, failures. A special bond forms among many of the park users at Fort Funston as a result of seeing one another day after day, year after year in such a special setting.
22. Plaintiff Ft. Funston Dog Walkers was formed in 1996 so that the many dog-walkers at the park could get to know one another, and in order to organize regular clean-ups of the park. The group has approximately 600 members. The group meets once each month on a Saturday morning. Clean-up supplies are provided to members who attend, and the members scour the park picking up dog and human litter. The group then meets for refreshments. Annual dues for the organization are $10 per year.
23. Plaintiff SFDOG was formed in 1976 to provide a consolidated voice for dog owners in the San Francisco Bay Area. It has approximately 650 members.
24. In 1995, the Superintendent closed off approximately fifteen acres in the northernmost part of Fort Funston as well as a large area along the bluffs near the center of the park. Fences were placed around these areas, and access was prohibited. Hundreds of park users protested the closures through petitions and letters. The areas were closed nonetheless.
25. Park users understood that the closure in the northernmost part of the park was for the purpose of restoring native vegetation in an attempt to create a habitat for the bank swallows. Park users also understood that the closure near the center of the park was to control erosion. Signs posted all around this central closure, however, state that the area is closed for native plant restoration.
26. At the time of the 1995 closures, GGNRA personnel told Ft. Funston Dog Walkers that no more areas would be closed and that the fences would be removed after five years.
27. On or about November 24, 1999, GGNRA personnel abruptly closed the north portion of the Sunset Trail in Fort Funston. Before the closure, this portion was heavily used by senior adults and disabled individuals because it is paved and is on relatively flat land, is easily accessible to the parking lot, and was lined with park benches where visitors could sit to rest and talk or just look at the ocean. Park users who walked the trail would walk north along the bluffs, turn east and walk through the tunnel in Battery Davis, then turn south and return to the parking lot. This was a very popular and highly used "loop" for walking. The Sunset Trail was described as the first wheelchair-accessible trail to be built along the California coastline and remains listed in the GGNRA Fort Funston brochure as a "Disabled Access Trail",
28. One part of the Sunset Trail had been experiencing erosion damage for approximately two years, as erosion occurred along Fort Funston's entire western edge during the El Niño storms of 1997 and 1998. Park users assumed that the Park Service had decided the damage was significant enough to warrant temporary closure of the trail to repair the small problem area.
29. No notices were ever posted at the park notifying park users of the imminent closure of the entire northern part of the Sunset Trail.
30. On or about December 3, 1999, GGNRA personnel met with representatives from plaintiff Ft. Funston Dog Walkers for a "walk through" at the park. The purpose of the walk-though was to share any areas of concern any of the parties might have.
31. During the walk on December 3, the group stopped and looked over a large part of Fort Funston, including the six-acre area that now is being closed. GGNRA staff alluded to placing a fence around the six-acre area, but it sounded as if the closure was in a conceptual stage. It seemed as if GGNRA was in the beginning stages of considering how to protect the moving bank swallows (the swallows apparently had abandoned the community GGNRA created for them in 1995 at the northern end of the park). It also appeared that GGNRA personnel were seeking input from the representatives of the Dog Walkers.
32. The six acres that apparently were being considered for closure are some of the most popular and beautiful in Fort Funston. This plot is located between the two portions of land closed in 1995. The northern boundary of the six acres, therefore, is the land closed in 1995 for native plant restoration. The southern boundary of the six acres is slightly north of and parallel to a dirt path that runs east-west from the asphalt path to the ocean, allowing a passageway to the ocean. GGNRA, therefore, was apparently considering closing off most of the remaining open land that rested between the previous closures.
33. This six-acre plot is at the northernmost point of the path that dog walkers may walk with their dogs off-leash. It, therefore, is a turnaround point in the middle of a two-mile walk (starting in the parking lot) and is a place where park users congregate and visit with one another. In addition, children often play in the "valley" of this area, and on the large sand dunes along the western slopes of this valley.
34. Closure off this six-acres tract would result in a dramatic change in the public use pattern of the park.
35. In January, 2000, the northern end of the Sunset Trail was destroyed by GGNRA officials. The asphalt path was ripped out and piled up on the east side of the north Battery Davis Tunnel, so as to make the tunnel impassible, and the popular loop for walking and viewing became unavailable. The park benches were also removed.
36. No notice was ever given regarding the imminent destruction of the Sunset Trail, nor was any explanation given regarding future plans for the trail.
37. Shortly before January 18, 2000, members of plaintiffs Ft. Funston Dog Walkers and SFDOG learned about a meeting of the GGNRA Advisory Committee. A scheduled agenda item for the meeting was the "Update report on bank swallow project."
38. On January 18, 2000, the Advisory Commission held its regular monthly meeting. Many members of Ft. Funston Dog Walkers and SFDOG attended the meeting. The agenda item, "Update report on bank swallow project" turned out to be a report that the six-acre plot which rested between the parcels closed in 1995 in fact were to be closed off, by placing a fence on the south border parallel to the path to the ocean and on the east border along the asphalt path.
39. In addition, a "seasonal" enclosure and a "permanent" enclosure were announced, i.e., a portion of the six acres would be closed seasonally and the remainder would be closed permanently. Since this had not been listed on the agenda as a public comment item, members of Ft. Funston Dog Walkers and SFDOG weren't prepared to comment. A few members of Fort Funston Dog Walkers did sign up to speak even though it wasn't clear that they would be able to. It appeared, however, that members of the Audubon Society and the Native Plant Society had prior knowledge of the report on the bank swallow project and were prepared to speak.
40. Those who appeared at the meeting prepared to speak made some statements to the Commission regarding Fort Funston that seemed unsubstantiated, including the assertion that neither children nor senior citizens go to Fort Funston, allegedly because of the number of dogs. In fact, many senior citizens and children of all ages do visit the park.
41. On January 20, 2000, GGNRA personnel and representatives from Ft. Funston Dog Walkers again met at Fort Funston for another walk-through. The dog walkers asked that the Sunset Trail be reconfigured and opened, and also asked why the fencing for the bank swallow protection area had to come to the asphalt road. GGNRA personnel stated that the Park Service couldn't figure out how to build the fence closer to the bluffs because of the sand. The dog walkers also asked why any part of this closure needed to be permanent since the bank swallows are here seasonally (approximately April to August). GGNRA personnel did not give an answer.
42. On February 11, 2000, GGNRA personnel sent a copy of a Briefing Statement dated November 1999, regarding the bank swallow project, to plaintiff Linda McKay, c/o Anne Farrow at Ms. Farrow's home address. It was received on February 12, 2000.
43. In the Briefing Statement, the fence around the six acres in controversy was listed as a "proposal." Interested groups listed in the briefing statement were "dog walkers and regular Fort Funston visitors." No copy of this Statement was ever publicly posted or made available at Fort Funston.
44. On February 17, 2000, plaintiff Lindsay Kefauver, Lydia Boesch, and Anne Farrow met with GGNRA personnel at Fort Mason. At that meeting, GGNRA personnel explained that two of the six acres were being closed seasonally for the bank swallows, pursuant to the Endangered Species Act, and the other four acres were being closed in order for GGNRA to plant native plants, pursuant to the "1980 General Management Plan."
45. Although the barricades to the northern part of the Sunset Trail have been removed and the trail reopened recently after the public began protests, the trail has not been redirected, and has not been repaved. Therefore, it is not accessible to the disabled and elderly. In addition, the benches along the trail that were removed have not been replaced.
46. A fence already has been installed in previous years along the bluffs on this six-acre area. This fence bears three different signs alerting park users of the bank swallows nesting below on the banks and the need to protect them. Portions of this fence still are standing.
47. Plaintiffs fully support the need to protect bank swallows.
FIRST CAUSE OF ACTION
(Injunctive Relief)
48. Plaintiffs refer to and reallege in this cause of action each and every of the allegations made in Paragraphs 1 through 47 of this Complaint.
49. Except in emergency situations, a closure of park land which results in a significant alteration in the public use pattern of the land or which is of a highly controversial nature is to be published as rulemaking pursuant to 36 C.F.R. ' 1.5(b).
50. Except in emergency situations, prior to implementing a closure of park land, the superintendent of the park is to prepare a written determination justifying the closure, pursuant to 36 C.F.R. ' 1.5(c).
51. Prior to closing park lands, in a non-emergency situation, the public is to be given notice of the closure pursuant to the methods set forth in 36 C.F.R. ' 1.7.
52. The Superintendent did not prepare a written determination justifying the closures in question, pursuant to 36 C.F.R. ' 1.5(c), nor was rulemaking published in the Federal Register.
53. No notice ever was posted at Fort Funston regarding closure of the six acres in question. Nor was notice published in a newspaper of general circulation in the affected area.
54. During the week of February 20, 2000, fence posts rapidly were placed along the asphalt path closing off the six acres. Pressure-treated wood was used, with carcinogenic warning labels.
55. During the week of February 27, 2000 cables were installed between the fence posts.
56. During the week of March 5, 2000, wire fencing materials were installed also between the fence posts.
57. Closure of the six acres in question results in substantial alteration in the public use pattern of the park.
58. Closure of the six acres in question is highly controversial.
59. Closure of the six acres in question is not due to an emergency.
60. Bank swallows are designated a "protected" species by the State of California, and have been designated either "threatened" or "protected" by the United States.
61. GGNRA has no statutory obligation to provide a safe habitat for a species designated "protected" by the State of California.
62. GGNRA has never been advised to close off the entire six-acre area in question in order to protect the bank swallows.
63. Most of the six acres in question are being closed off in order to restore "native" vegetation.
64. The widespread restoration of "native" vegetation to the Fort Funston area is unlawful in being conducted without public hearing, without rulemaking, without written determination, without a general plan and without proper evaluation as to the environmental impact of doing so, including the potential negative effect on erosion control and on the habitat of the bank swallows and other wildlife, and without evaluation and determination of the impact on recreational uses.
65. The changes to Fort Funston restricting off-leash dog walking areas violate the Dog Policy contained in Appendix C to the GGNRA Natural Resources Management Plan.
66. The changes to Fort Funston restricting disabled access violate the GGNRA Natural Resources Management Plan.
67. The changes to Fort Funston restricting off-leash dog walking areas are inconsistent with the legislative intent in creating the GGNR and authorizing its management.
68. The changes to Fort Funston restricting disabled and senior citizen access and restricting off-leash dog walking areas are inconsistent with the requirement of "maintenance of needed recreational open space"as set forth in 16 USCS ' 460bb .
69. The recent changes restricting access to Fort Funston are unlawful, capricious and arbitrary.
70. Defendants threaten Plaintiffs with irreparable injury by depriving Plaintiffs of access to the public park and transforming the park into a permanently inaccessible area.
71. Plaintiffs have no speedy or adequate remedy at law.
72. Plaintiffs have attempted to seek a public hearing on the issue or otherwise petition the government on the issue but have been rebuffed, and have otherwise exhausted all non-futile administrative remedies.
73. Defendants are appropriately enjoined and restrained from engaging in acts of further unlawful closure of access to Fort Funston or further damage to Fort Funston.
74. Defendants are appropriately required and ordered to repair the disabled access trail and benches that Defendants wrongfully removed.
75.
By reason of the foregoing controversy Plaintiffs have been required to
incur attorneys fees on their own behalf and on the public's behalf in seeking
an injunction to prevent further harm to the public park and to insure their
own and the public's right to access to the park, warranting an award of attorneys
fees to Plaintiffs.
SECOND CAUSE OF ACTION
(Declaratory Relief)
76. Plaintiffs refer to and reallege in this cause of action each and every of the allegations made in Paragraphs 1 through 75 of this Complaint.
77. By reason of the facts set forth hereinabove, an actual controversy has arisen between Plaintiffs and Defendants in that Defendants contend that they may limit recreational use of the Fort Funston area without rulemaking, public hearing and issuance of written determination concerning the closure of park access to the public and Plaintiffs contend that they have a right to such continued access and any closure may only occur pursuant to rulemaking, public hearing and issuance of written determination concerning the closure of park access to the public.
78. The actual controversy that has arisen between Plaintiffs and Defendants is appropriate for the Court's determination and declaration of the respective rights and duties of the parties in that absent a determination of the issues Plaintiffs will suffer harm in that Defendants will continue to improperly limit access of Plaintiffs and the public to a national recreation area.
79. By reason of the foregoing controversy Plaintiffs have been required to incur attorneys fees on their own behalf and on the public's behalf in seeking a declaration as to the public's right to access to the park, warranting an award of attorneys fees to Plaintiffs.
THIRD CAUSE OF ACTION
(Writ of Mandate)
80. Plaintiffs refer to and reallege in this cause of action each and every of the allegations made in Paragraphs 1 through 79 of this Complaint.
81. The actions herein above described on the part of Defendants in refusing to allow public hearing, rulemaking or written determinations regarding the park closures and access limitations were breaches of ministerial duties meriting mandate relief.
82. The actions herein above described on the part of Defendants in refusing to allow public hearing, rulemaking or written determinations regarding the park closures and access limitations to the extent not breaches of ministerial duties were and are adjudicatory in nature, in excess of their jurisdiction, constitute and abuse of discretion, and are arbitrary and capricious in nature, meriting mandate relief.
83.
By reason of the foregoing controversy Plaintiffs have been required to
incur attorneys fees on their own behalf and on the public's behalf in seeking
mandate to require public discussion and written determinations as to the public's
right to access to the park, warranting an award of attorneys fees to Plaintiffs.
PRAYER FOR RELIEF
WHEREFORE Plaintiffs pray for relief as follows:
1. A temporary, preliminary and permanent prohibitory injunction enjoining defendants and their officers, agents, servants, employees and attorneys, and those in active concert or participation with them from implementing the closure of the newly fenced area of Fort Funston, and/or doing the following:
(a) Obstructing, blocking or otherwise interfering with access to the Sunset Trail, except in circumstances of emergency safety concerns, and in those circumstances, limited to the immediate area of the safety concern;
(b) Removing additional Fort Funston park benches used by seniors and the disabled;
(c) Maintaining or altering the Sunset Trail in a manner inconsistent with ultimately maintaining the trail substantially as it previously existed and as it provided disabled and senior access;
(d) Constructing or maintaining additional fences surrounding the six-acre area west of the central Coastal Trail road and immediately south of the previously restricted "Bank Swallow Protection Area," or enforcing a closure of this newly fenced area;
(e) Initiating or enforcing further restrictions of recreational use in the Fort Funston area without complying with the public hearing and rulemaking requirements of 36 C.F.R. ' 1.5(b), the written determination specified in 36 C.F.R. ' 1.5(c), and the notice requirements of 36 C.F.R. ' 1.7;
2. For a mandatory injunction ordering defendants to:
(a) Comply with the requirements set forth in 36 C.F.R. ' 1.5 and 36 C.F.R. ' 1.7 regarding closures of public parks;
(b) Restore the pavement and benches recently removed from the northwestern portion of the Sunset Trail previously used by seniors and disabled and designated by you as a disabled access trail, if necessary with minor rerouting in the single small area identified as a potential erosion problem;
(c) Remove the fence posts and fencing constructed to enclose the newly fenced area in the northwest portion of the park;
3. For a declaration that the closure of the newly fenced area of Fort Funston was unlawful and a judgment setting the action aside.
4. For a declaratory determination of the respective rights of the parties with regard to the current scope of access of Plaintiffs and the public to the Fort Funston portion of the Golden Gate National Recreation Area;
5. For a declaratory determination of the respective rights of the parties with regard to whether Plaintiffs and the public have a right to continued access to the Fort Funston portion of the Golden Gate National Recreation Area such that any closure may only occur pursuant to rulemaking, public hearing and issuance of written determination concerning the closure of park access to the public;
6. For a Writ of Mandate directing Defendants to allow public discussion at a public hearing concerning the decision limiting access to portions of Fort Funston;
7. For a Writ of Mandate directing Defendants to issue a written determination as to the reasons for the closures at Fort Funston including an explanation of why less restrictive measures will not suffice;
8. For costs and attorneys fees incurred herein; and
9. For such other relief as the Court may deem proper.
Date: March 13, 2000
____________________________________
Lydia Owen Boesch
John B. Keating
Attorneys for Plaintiffs