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

 Plaintiffs,

V.

          The question at this stage is the procedure used by the Park Service to implement the ten-acre closure at Fort Funston. This was recognized early by this Court at the hearing on plaintiffs' motion for temporary restraining order. Twice, the Court stated that the question is whether the Park Service had jumped through the right hoops. Transcript of Proceedings, Mar. 14, 2000, 12:7-8, 80:19-20 (attached hereto as Exhibit A). Thus, the merits of the closure are not in issue. Accordingly, defendants' arguments regarding their reasons for the closure are not relevant in determining whether the Park Service followed the proper procedure, and the interim relief if they didn't. Moreover, the Court already has balanced the hardships. No further balancing is required at this stage.

          Defendants have made no showing that rulemaking can be conducted in a timely manner. To the contrary, at the TRO hearing, counsel for defendants admitted that the Federal Register pre-publication process is "laborious and time-consuming"

Defendants now take the position that the Park Service will publish the "proposed" closure in the Federal Register, take comments, and "evaluate the comments and then make a decision how it would proceed." Defendants' Brief, 9:10-12. The land already is closed. Are the defendants proposing taking the fences down, then publishing a "proposed" closure? Or, are they proposing leaving the fences in place, publishing a "preexisting" closure, then determining whether the "preexisting" closure should remain intact?

          Defendants' first proposal (remove the fences then publish a "proposed" closure) is consistent with the requirements of 36 C.F.R. § 1.5(b). Publishing a "preexisting" closure, however, violates the regulatory scheme and deprives plaintiffs and the public of their use and enjoyment of this land during the long rulemaking process.

           No emergency precipitated the permanent closure. The "emergency" underpinning for the seasonal closure no longer supports closure of this area. If the closure of these two areas indeed is "highly controversial"-- and the record strongly demonstrates that it is -- or if a significant alteration of the public use pattern results, rulemaking is required, and the land should be reopened in the interim.

          Defendants' and intervenor/defendant's arguments regarding off-leash practices at Fort Funston also have no relevance in determining whether the Park Service followed the proper procedure before implementing the ten-acre closure. Plaintiffs' use and enjoyment of this land is precluded and the aesthetics of the park are affected regardless of whether dogs are on leash or off.

          In her deposition, plaintiff Marion Cardinal was asked if it bothers her that she no longer may walk her dog off leash in the closed area. She replied that what bothers her is that she can't use the closed land at all, regardless of the leash status of her dog:

          It does not matter whether plaintiffs walk their dogs on or off leash. What does matter is that, every single day, plaintiffs and the public (1) are deprived the use and enjoyment of this land, (2) are forced to look at a web of fences that are a blight to the land (as well as being daily reminders of the Park Service's probable malfeasance and the broken promises of the General Superintendent and Fort Funston's head ranger), and, (3) if they choose to walk on the beach, risk a hazard at high tide that results from the loss of a beach access route.

          Injunctive relief clearly is warranted under these circumstances. The new fences should be removed (with protective measures provided for the bank swallows), giving plaintiffs and the public full access to what just has been voted "The Best Place in the Bay Area to Walk a Dog" (see Exhibit D, attached).