DEFENDANTS' BRIEF ON THE ISSUE OF REMEDY

ROBERT S. MUELLER, III (SBN 59775)

United States Attorney

CHARLES M. O'CONNOR

Assistant United States Attorney

Chief, Environment & Natural Resources Unit

450 Golden Gate Avenue - P.O. Box 36055

San Francisco, California 94102

Telephone (415) 436-7180

Facsimile (415) 436-6748

Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

  Moreover, no preliminary injunction related to the closed areas should be issued or become effective in August, 2000, for two reasons. First, even though the Court has preliminarily found, that the plaintiffs will be irreparably injured as a result of the closure under Section 1.5(c), before the nature and extent of any injunction altering the status quo is entered, the balance of hardships should be closely examined. At this time the Court will find that the relative balance of the hardships is heavily in favor defendants and their efforts designed to protect the natural resources, including the protected bank swallow, from environmental injury.

   It will be recalled that the closure of the subject area was ordered by the Park Service for the following reasons: to protect the threatened bank swallow and its habitat, to provide for revegetation, by deterring further erosion and reintroduction of native plants; and, to preserve the safety of the public at Ft. Funston. AR US6615-18. Thus, the Park Service was concerned about the likelihood of injury and threatened injury to the environment if dogs off leash and certain other visitor uses continued without regulation. Where such injury is likely to the environment, as it is here, the U.S. Supreme Court has ruled that the balance of harms favors protection of the environment, and no injunction should issue against the interests of the environment in cases such as that before this Court. See, Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 545 (1987).

   The injury to defendants' interests here is to environmental concerns, i.e., the loss of the habitat for a listed bird species, the protected bird species itself, and the loss of native plant life. The Ninth Circuit has long recognized that when considering a preliminary injunction that will affect a listed species, the balance of hardships always tips in favor of protecting the listed species, i.e., here the bank swallows. See, Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996) (citing Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987).  When weighed against the harm to the threatened bank swallows and their habitat, the alleged hardships for plaintiffs and non-parties to the action due to their decreased seasonal enjoyment of the grounds at Ft. Funston, the balance of hardships tips sharply in favor of defendants protection of a listed species and its habitat and other environmental interests at risk.

   In addition, the public interest favors refusal of a preliminary injunction, in favor of protection of the environment, at this time. See, American Motorcyclist Ass'n v. Watt, 714 F.2d 962, 964-66 (9th Cir. 1983).

   The second reason that the Court should not enter a preliminary injunction requiring the movement or removal of the fences, or even opening of the gates is that National Park Service Regulations prohibit dogs off leash in the National Parks. 36 CFR § 2.15(a)(2).^[1] The gravamen of the plaintiffs' Complaint is the restoration of their ability to walk dogs off leash in the newly closed areas. In the context of this case, if the Court were to issue such an order, members of the plaintiff dog walker organizations, as well as members of the dog walking public (as informed by the local media), are likely to be mislead into believing that they can thereafter legally resume walking their dogs in these areas off leash, when in fact they would be in violation of Park Service Regulations and subject to penalties for such violations. Moreover, this Court should not issue any preliminary injunction which could be misleading or likely to be interpreted as authorizing wholesale violations of Park Service Regulations.

   It appears that the Court, in its FF&CL, erroneously believed that the NPS regulation that prohibits dogs off leash is not presently operative at Ft. Funston and that the local GGNRA rules would allow dogs off leash in the closed areas, if the gates of the enclosure are opened or the fences are removed. The Court may have been mislead in this regard by misled in this regard by plaintiffs' arguments and their citation to and reliance upon authority that has been superceded, i.e., Section (a)(2)(iii) of the GGNRA compendium, signed July 8, 1996, (hereafter "the 1996 compendium") which the Court erroneously characterized as an "amendment to 36 CFR § 1." FF&CL, 3:9-10, n. 2, and 27:5-8. In fact, that 1996 compendium and the cited provisions regarding dog walking off leash in GGNRA were superceded and are not applicable at this time because of the issuance of a subsequent compendium on December 19, 1997 (hereafter "the 1997 compendium"). This 1997 compendium is currently in effect and still operative as the most recent compendium for GGNRA, including Ft. Funston. The 1997 compendium does not include Section (a)(2)(iii) from the 1996 compendium or any other provision which allows off leash dog walking at Ft. Funston. See text of 1997 compendium AR US01485-1520.

   To clarify, the regulatory role of the compendium is to publish, in one document which can be made available to the public, all local limitations, closures, permit requirements and other restrictions currently imposed at a particular National Park or Recreation Area relating to actions taken under Section 1.5. The authority for GGNRA's compendium is contained in 36 CFR § 1.7(b).^[2] There is no authority in that regulation for a superintendent to issue local rules, etc. which relax or are contrary to Park Service regulations, including 36 CFR § 2.15, which specifically prohibits physically unconfined pets such as dogs off leash.

   Accordingly, to avoid any confusion or impression that dogs off leash are allowed in the areas presently enclosed by the fences, the Court should refrain from issuing any preliminary injunction which requires opening of the gates or removal or movement of the fences. In the alternative, if the Court decides to issue a preliminary injunction involving any opening, alteration or removal of the fencing, it should include a specific provision which recognizes and emphasizes the applicability of 36 CFR § 2.15(a)(2) and, specifically, the prohibition of dogs off leash in those same areas. In this regard, neither the provisions of the 1996 compendium nor the failure of the Park Service to enforce the leash requirements in the past can be considered an infirmity which forecloses enforcement of the prohibition now or in the future. See, Mausolf v. Babbitt,125 F.3d 661, 669, n. 10 ("Although the NPS neglected to enforce this provision and allowed snowmobiling to continue despite regulations to the contrary, the subsequent closure order restricting snowmobiling does not amount to "significant alteration" in what was previously an unlawful public use of the park.") For all of the foregoing reasons, no preliminary injunction should require the closed areas be reopened pending a ruling on the merits.

   As discussed above, in plaintiffs' papers and especially in their oral arguments, they suggest that the Court order the defendants to move the fences surrounding the closure area some distance toward the ocean, and that would provide all necessary protection for the bank swallows nesting on the face of the cliffs along the beach. Alternatively, they argue that the fences should be removed and the area re-opened for all uses, especially off-leash dog walking. As set forth in argument above, plaintiffs' position on this subject is myopic and disregards the facts of record. First, the recent closures were carried out for multiple purposes and protection of the bank swallows nesting area is only one of the reasons. Plaintiffs' position does not deal with the other reasons for the closures, all of which are valid exercises of the NPS's authority to protect the natural resources and environment from harm. See discussion of the reasons for the closures in Part I., above. Second, plaintiffs' arguments totally ignore NPS regulation, 36 CFR § 2.15, which prohibits dogs off-leash in National Recreation Areas and Parks. As more fully set forth in Part I., above, the Court should not empower or give the impression of sanctioning violation of that regulation by issuing an injunction which authorizes or appears to authorize violation of the regulation.

   There is another, even more compelling reason that this Court should not order the fences removed or moved toward the ocean as plaintiffs have requested. This case involves the review of the procedure followed by the Park Service with regard to the closure of the subject area of Ft. Funston. That review is governed by the Judicial Review Chapter of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. One of the principles governing that review is that the Court may not substitute its own judgment for that of the agency. Vermont Yankee Nuclear Power Corp. v. Naval Air Development Center, 435 U.S. 519, 555 (1978). Therefore, the Court should not try to decide where the fences should be located, or whether they should be erected at all, based solely on the contradictory evidence presented by the parties to the suit. Instead, should the Court ultimately find on the merits that the Park Service did not follow its own regulations, the correct course of action would be to order remand to the Park Service for compliance with all appropriate procedures before deciding upon a closure and/or size of the closure or the location of the boundaries for it.   

   Assuming the Court ultimately does find a need to order remand, the Court has asked the parties to address what steps are required for notice and comment under Section 1.5. FF&CL, 29:24-27. The scenario on remand will depend, in part, on the nature of whatever closure the Park Service decides to propose, given what has transpired on the ground and in this judicial proceeding since the original closure.

   For purpose of this response to the Court's inquiry, the defendants will assume that the Court's ruling on the merits is the same or similar to its findings of fact and conclusions of law on the motion for preliminary injunction. Under those circumstances, if the Park Service decides it still wants to close portions of Ft. Funston under the authority of 36 CFR §1.5, its first step would be to decide whether the closure "will result in a significant alteration in the public use pattern of the park area, etc." and/or "is of a highly controversial nature," pursuant to Section 1.5(b). If, at that time, the proposed closure and fence placement are the same or similar to those presently before this Court, then the Park Service's decision will be guided by the Court's ruling on the merits. On remand, if the Park Service reconfigures, changes the size or boundaries, or otherwise significantly alters the nature of the proposed closure, then a determination under the criteria of Section 1.5(b) will be made and, if answered in the affirmative, the next step would be to follow the notice and comment procedure, pursuant to Section 1.5(b).

   The steps for notice and comment under Section 1.5(b) would involve, first, the publication of the proposed closure as a "Notice" in the Federal Register and giving the public 30/60 days to comment on the proposal. Next, the NPS, after receipt of the comments, would evaluate them and then make a decision on how to go forward. The final step would be to publish the NPS's final decision/rule in the Federal Register.

NOTES

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