This brief is filed in reply to Plaintiffs' Memorandum Re: Provisional Remedy Pending Determination on the Merits ("P Memo"). Pending a determination on the merits, the remedy sought by plaintiffs is apparently "nothing short of removing all the recently installed fences." P Memo, at 7:10-13. However, plaintiffs allow that a temporary sort of "remedy which allows plaintiffs to use the land without removal of the fences may be appropriate," but they do not select or endorse a particular method to accomplish that objective. Id. at 7:14-15. To fully confuse their position, plaintiffs also "urge the Park Service to install appropriate fences or employ other measures to assure protection of the bank swallows if the fences are removed.." Id. at 7:13-14.

     Defendants have already completed their plan "to install the appropriate fences... to assure protection of the bank swallows," including protection of their habitat, by slowing erosion and restoring the native plants. In addition, the fences protect public safety, e.g., prevention of dogs and their owners falling from the cliffs. In the course of defendants' planning, they modified the project by changing the location of the fences and altering the annual time of closure for about half of the area from permanent to seasonal, to accommodate plaintiffs' interests. Having done what was necessary for the park, with modifications in response to the plaintiffs' objections, the defendants were sued by plaintiffs, and they are now urging the Court to order that the fences that protect the swallows and other resources be removed. In view of the forgoing, and inasmuch as the Park Service is the agency charged with the protection of the resources of the park, the Court should not at this preliminary stage of the case try to invent a new remedy that involves movement and/or removal of the current fences. Moreover, in this review of agency administrative action, the Court can order remand to the Park Service for compliance with any perceived procedural defects, but it cannot and should not order a particular action by defendants, such as removal of the fence or modification of its location. Finally, this matter is before the Court on plaintiffs' motion for preliminary injunction. The injunctive relief requested by plaintiffs as a remedy at this stage of the case goes far beyond preliminary relief and seeks the type of relief this Court should consider only when considering the merits a permanent injunction. Therefore, the Court should deny the preliminary injunctive relief described in and sought by the Plaintiffs' Memorandum.

     Plaintiffs contend that the status quo here is to "return" the closed area in question to its condition prior to the closure. Plaintiffs are mistaken. The status quo in this case was the condition of the property, including the fences, at the time the Complaint was filed, not the time prior to the installation of the fences At the time of the hearing on the motion for TRO, the perimeter fence surrounding newly closed area was already complete. Recognizing that fact and the need for the fencing, the Court specifically authorized the defendants to complete the divisional fence between the seasonal and permanently closed portions. Therefore, based on these facts, none of the fences should be moved or removed as part of the Court's ruling on the motion for preliminary injunction. Movement or removal of the fences can be pursued on the merits by plaintiffs, but not at the preliminary injunctive stage.

     Plaintiffs' brief misses the mark as to the injunctive relief available at this preliminary stage of the proceedings. It also misconstrues and mis-characterizes the facts and the nature of the procedure to be applied to this administrative action and the Courts' review of same. As to the critical factual and legal points in their argument, plaintiffs fail to cite the record for facts and/or any legal authority for the legal propositions they urge upon the Court. First, plaintiffs' argument deals with only one of the bases for the defendants' decision to close the subject area of Fort Funston, i.e., protection of the bank swallow burrows and/or nesting areas. In fact the record discloses that there were several reasons for the closure including the protection of the bank swallows' habitat from erosion (caused by heavy human and pet activity), the re-vegetation of the area with native plants, and the safety of the visiting public. AR US06615-6618. None of plaintiffs' arguments or proposals for a remedy deal with all of the reasons for closure, and as a result, all of plaintiffs' proposals for the remedy are flawed and irrelevant to the facts and should be denied on that basis alone.

     Second, plaintiffs' Memorandum does not recognize or deal with the fact that an emergency closure of the seasonal area was declared by the Park Service on April 12, 2000, See Court's FF&CL, at 16:20-22. This emergency declaration and closure of the seasonal area is not subject to the plaintiffs' Complaint and not subject to or affected by the Court's FF&CL. Similarly, it is not subject to plaintiffs' motion for preliminary injunction and/or the remedy now being considered by the Court. Therefore, plaintiffs' argument that the preliminary injunction include removal of the gates in the fence on the seasonal area (plaintiffs' Memo at 2:23-24) and giving plaintiffs and their dogs immediate access to the seasonal area (Id., at 3:5-13) is without merit, and the preliminary injunction should not include any relief for plaintiffs as to the emergency closure of the seasonal area. This is consistent with the Court's FF&CL, i.e. "[b]ecause the National Park Service has declared an emergency upon the recent arrival of the bank swallows, no injunction will become effective until August upon their annual departure or until further proceedings and determination as to the validity of the emergency declaration or its scope." FF&CL 30:1-4 (emphasis added).

     Also, with regard to the seasonal area, plaintiffs' have submitted the Declaration of Michael Goldstein ("Goldstein") with photographs attached, as the basis for arguing that the seasonal area need not remain closed now because Goldstein has not found evidence of burrowing by the bank swallows in the cliffs of the seasonal area. The Goldstein Declaration should be rejected for several reasons, First, it is irrelevant because the closure of the seasonal area is not before the Court. Second, it is objectionable as an extra-record submission and should be rejected on the same grounds and reasons stated in Defendants' Objection to Plaintiffs' Filing of Extra-Record Material, filed 4/3/00. Third, Mr. Goldstein is not qualified as an expert who can both identify bank swallow burrows and state his opinion as to the meaning of his inspection of the area. For example, Mr. Goldstein did not and cannot purport to state that all burrows have been completed for the season at this time and that no additional burrows will be excavated in the seasonal area, this year. Accordingly, the Goldstein Declaration is irrelevant, incompetent, speculative, and should be stricken. Nevertheless, in the event the Court decide to consider it, plaintiffs are filing, this date, the Declaration of Terri L Thomas ("Thomas") which attaches a letter from the Golden Gate Audubon Society. It demonstrates the continuing need to keep the cliffs of the seasonal area and others protected and available to the bank swallows for nesting this and every season to come. If the Court does not consider the Goldstein Declaration, the defendants will withdraw the Thomas Declaration.

     Plaintiffs address the issue of the notice and comment requirements of 36 CFR 1.5 by concluding, without supporting authority, that the defendants must follow the "rulemaking process" in Department of Interior Manual "318 DM" in order to close the subject areas at Ft. Funston. Having built this strawman argument, based on nothing but their own interpretation and without any authority, plaintiffs then proceed to knock it down, telling the Court that this process is too long for them to wait. Therefore, they say the Court should immediately order relief in the form of removal of the fences, etc. However, plaintiffs are mistaken in their conclusions and argument. In fact, notice and comment in relation to defendants actions under to 36 CFR 1.5, is not the formal rule making that plaintiffs set forth in their Memo.

     In connection with the promulgation of the final version of Section 1.5, the preamble published in the notice of the rule in the Federal Register explained that "published as rulemaking in the FEDERAL REGISTER" as used in 1.5 was intended to consist of a "notice and comment" process.

     The notice and comment process for Section 1.5 consists of publishing a "Notice" in the Federal Register and giving the public 30 to 60 days to comment. Upon receiving the comments, the Park Service evaluates the coments thoroughly before making a decision on whether and how to proceed. To require notice and formal rule making for the kinds of decisions as those before this Court would unreasonably slow and hinder the Park Services' ability to close areas within a reasonable time after a threat to the resource is observed and potentially allow irreparable harm the resource while awaiting the processing of a formal rule. Requiring formal rulemaking would be unreasonable and unnecessary for that protective function. Therefore, the 30/60 day notice and comment, as outlined above, are the only requirements for closures under 36 CFR 1.5.

     It is noteworthy and baffling that plaintiffs' arguments for injunctive relief fail to show this Court a way it can possibly order removal or movement of the fencing, notwithstanding the prohibition of dogs off leash in 36 CFR 2.15. Plaintiffs may still believe, as they erroneously advised the Court, that the 1996 compendium for GGNRA is still in effect. As stated in defendants' open brief on remedy, the GGNRA local rule (aka, "amendment") that allowed off leash-voice command dog walking which appeared in the 1996 compendium was superceded and became inoperative when the 1997 compendium was signed. See attached copy of AR US00260-61, ¶ 2. Indeed, the Park Service lacks the authority to take any actions under Section 1.5 that are contrary to Servicewide regulatory standards, such as Section 2.15. The preamble to section 1.5 explains this restriction:

Clearly, Section 2.15 provides the superintendent with no authority to relax the prohibition against dogs off leash at Ft. Funston, and no such authority supports plaintiffs' theory here.

For all the foregoing reasons, plaintiffs have failed to show entitlement to the relief they seek in this case, and this Court should deny the plaintiffs' motion for preliminary injunction.

DATED: May 9, 2000                                     

OF COUNSEL:

Ralph Mihan, Field Solicitor
Nicole Walthall, Esq., PPO
U.S. Department of the Interior

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