"The Court's not going to rule right now," U.S. District Court Judge William H. Alsup declared to a packed courtroom at the conclusion of the Friday, April 14, 2000 injunction hearing. The motion was taken under submission while the judge takes time to think about the issues raised. Then he expects to issue a written order, probably within the following week. The judge remarked to the audience that the dog walkers should be very proud of their lawyers, whom he commended for their excellent work and commitment to the public interest.
Tossing aside a pile of interrelated issues, the judge repeatedly returned to the point that, "The only question is whether [the National Park Service] should have held a public hearing." Was there a point in time, he asked, when they asked themselves, "Is this highly controversial?" The government did not present evidence that the Park Service had made any determination as to whether their intended closures would likely be highly controversial or might result in significant alteration in public land use patterns. Yet the trail of evidence from discovery shows that they did indeed expect controversy and planned ways to avoid input from dog owners who might disagree with their plans. To the extent that they did prepare a memorandum of their plans, it was filed a few days after, and perhaps as a result of, the dog walkers' lawsuit threat. (On February 25th, the dog walkers let the Park Service know that they were considering filing for a Temporary Restraining Order. One week later on March 3rd the Park Service issued their memorandum justifying the closures which were already in progress. The judge questioned whether this could "suggest this was done in anticipation of litigation, to fix the record up.")
"It sort of sounds like the Park Service is afraid to let the public have input," remarked the judge, after saying that, "There was some evidence that would support the proposition that the officials in the Park Service recognized that the dog walkers would not be happy with the decision and wanted to run it through as quickly as possible."
"It sounds like as soon as the D-day boats are launched, they want them on the cliffs immediately so there won't be any time for opposition," continued the judge. A number of times in the dog walkers' brief the Park Service's own e-mail suggests a deliberate plan to implement the fence-building very quickly, with a public relations person on site to deal with any problems.
If the judge does decide that there has been a violation of the law in that the Park Service did not go through the proper public rulemaking and comment process mandated for a "highly controversial" change, or a major change in the use pattern of the park, he noted that he would likely have a separate hearing to see if there was a remedy for that.
It could be that the result would be that the Park Service would have to go through the legally-mandated process of publication in the Federal Register, a sixty-day comment period, and then issue a decision. The decision might be the same one, but at least the law would have been followed and park users would have the chance to organize and speak out on the issue.
A partial temporary restraining order has been in effect since the initial hearing one month ago. This order permitted the Park Service to go ahead with the permanent closure area, but not to seal access to the seasonal closure area. The only way that could be done, the judge said at the previous hearing, would be for the Park Service to declare an emergency upon the return of the bank swallows. In the case of a so-called "emergency", the Park Service has wide discretion to close areas with no notice or input. That's precisely what happened two days prior to the hearing, when the Park Service declared an emergency and closed the seasonal area.
Another issue that has bothered the dog walkers is the fact that the previous bank swallow closure, at the very north end of Fort Funston, remains closed even though the reason for the new closures is said to be that the birds have moved their burrows south, and no longer nest in the originally closed zone. "So, if they're no longer in the north end, why don't you open that up?" the judge inquired. The very steep cliffs which the bank swallows apparently require are no longer in existence in the previous closure area, due to El Niņo storm erosion. The defense claimed that the area still must be left available for the bank swallows, just in case they decide to nest there in the future. (The Audubon Society has also recommended that the Sunset Trail area be permanently closed so as to protect the cliffs below, although there has been no evidence presented of bank swallows active in that area, either.)
The government attorney claimed that "The resources at Fort Funston right now are not in as good shape as they should be" and went on to suggest that the park should be restored to be "as it was" in the past. This is similar to charges made at the Advisory Commission meeting comment period on March 21st; both charges are presented with no specific evidence to back them up. A decision to change Fort Funston's habitat is a major one for which the Park Service acknowledges it has no written plan.
The Audubon Society (which joined the case on the government's side early on) argued through its attorney that Federal rulemaking was not required in this case, which is the main claim of the Park Service. The judge challenged the Audubon attorney on this point. If the situation were reversed, he said, if the government said "forget it, take down the fences", and did not take any action supposedly on behalf of the bank swallows, wouldn't the Audubon Society be in court arguing the opposite position -- that rulemaking was required?
There were smaller instances of haggling over technicalities, representative of an ongoing habit of the Park Service in and out of court to come up with somewhat suspect explanations for unfavorable facts. Two examples: It's a matter of record that the Park Service originally presented this newest closure acreage to the public -- and even to the Court -- as approximately six acres, only to later correct that to over nine acres. This was explained in court as resulting from technical changes in the GPS equipment accuracy having improved in the intervening period to better measure changes in topography. In the other case, a map was presented in court which had been handed out at Fort Funston by a staff person. However, the defense challenged the map and a ranger declared that it was only a draft which had been created by a student working with a previous employee, and was never finalized for public use. (The map showed beach access at the area now in the permanent closure, known as "The Gap." At issue was whether that passage was ever officially considered a beach access route. The judge then refused to consider the map or the issue it raised, that one of three beach access routes had been blocked.)
The Park Service also claimed in its newest closure signs (see photo below) that the bank swallows are an "endangered species." This is patently false; they are categorized as "California threatened", and even in California are plentiful in the inland river areas such as along the Sacramento River. They are more commonly found in states outside California. The judge was advised of the illegitimate "endangered" claim, but said that this wasn't relevant as the Park Service could do whatever it wanted under an emergency ruling -- it wouldn't even have to find them threatened.
One undocumented claim was a purported survey of park users in support of the project, presented by the Assistant United States Attorney. However, upon questioning from the judge, the attorney could not provide details on this survey, which was not included in the court record, and could not even say what the wording of the question had been.
The crucial factor in the current situation is the decision of the Park Service just two days before the hearing to declare a state of emergency, allowing for closure without hearing or comment.
"The Park Service has made a complete end-run around this lawsuit by declaring this emergency" the judge noted. Was there indeed a genuine emergency requiring closure of the entire area to protect the bank swallows? An "arbitrary and capricious" closure could be challenged via an amendment to the original complaint, despite the wide berth the Park Service enjoys for managing its land as it sees fit. Although the dog walkers have made it clear that they support protection of the bank swallows nesting habitat along the cliffs, and might accept a fence along the edge of the cliffs, they reject strongly the notion that a closure area of nearly ten acres that extends way back from the coast is necessary.
The judge seemed most intent on determining what might happen in August, after the bank swallows leave on their southern migration -- then would the area be opened again, would the emergency be lifted? He suggested, but did not order, that the government begin looking into going through the required rulemaking process for publication in the Federal Register and an opportunity for comment over a 60-day period.
As soon as more details are available, or a court order is released, the information will be available on this website. Meanwhile, if you have comments for publication, please send them in via e-mail.
Following is the April 12 letter to Judge Alsup from the government, as well as the memorandum of the same day from the Park Service which declares an emergency over the return, as every year since at least 1927, of the bank swallows to Fort Funston. The two referenced supporting documents are ten pages long and may be published on this site in the future.
United States Attorney
Northern District of California
10th Floor, Federal Building, Box 36055
450 Golden Gate Avenue
San Francisco, California 94102
(415) 436-7180
FAX: (415) 436-6748
April 12, 2000
VIA MESSENGER
The Honorable William H. Alsup
United States District Court
450 Golden Gate Avenue, 19th Floor
San Francisco, CA 94102
Re: Ft. Funston Dog Walkers, et al. v. Bruce Babbitt, et al.
C 00 0877 WHA
Dear Judge Alsup:
This is to advise you that Park Service personnel confirmed sightings of bank swallows in the vicinity of the seasonal closure area at Ft. Funston yesterday afternoon, shortly after the Court and parties left the park.
Based on consultation with the California Department of Fish and Game and the Audubon Society, and on the NPS guidance requiring protection of special status species and the determination in the March 3, 2000 memorandum, the Park Service has determined that an emergency situation exists that requires closure of the seasonal closure area at Ft. Funston in order to protect the habitat of the state threatened bank swallow. The emergency closure is authorized by Section 1.5 of 36 C.F.R. A Park Service memorandum documenting this action, Subject: Emergency Closure of Bank Swallow Habitat - Fort Funston, is enclosed.
Inasmuch as the basis for the Park Service's closure of the area (i.e., now an emergency) has changed from that which was the case when the Plaintiffs originally filed their Complaint, it appears that the issues raised by the Complaint are now moot.
Thank you.
Very truly yours,
ROBERT S. MUELLER, III
United States Attorney
CHARLES M. O'CONNOR
Assistant United States Attorney
CMO: sc
Enclosure
cc: (via facsimile)
Lydia Owen Boesch, Esq.
John Keating, Esq.
Kelly L. Drumm, Esq.
Nicole J. Walthall, Esq.
United States Department of the Interior
NATIONAL PARK SERVICE
Golden Gate National Recreation Area
Fort Mason, San Francisco, California 94123
N1621 (GOGA-SUPT)
April 12, 2000
Memorandum
To: Files
Through: General Superintendent, Golden Gate NRA
From: Assistant Superintendent, Operations, Golden Gate NRA
Subject: Emergency Closure of Bank Swallow Habitat - Fort Funston
This memorandum documents the emergency closure of bank swallow habitat at Fort Funston which was implemented on April 12, 2000 at approximately 9:00 a.m. Section 1.5 of 36 C.F.R., Closures and Public Use Limits, permits closures in emergency situations without completing the formal documentation and public notice requirements of Sections 1.5 and 1.7. The emergency closure of the seasonal-closure area is necessary for the protection of natural resources, specifically bank swallow habitat at Fort Funston, one of only two remaining coastal cliff-dwelling colonies in California.
In anticipation of the return of the bank swallow to the bluffs at Fort Funston, the park began non-emergency closure procedures in accordance with 36 C.F.R. Section 1.5. A March 3, 200 memorandum to the files was prepared that justified the determination that the permanent and seasonal closure areas for purposes of natural resource protection, native habitat restoration and public safety, and documented the public notice provided for such closure. Fencing of the permanent closure area was completed on March 20, 2000. Fencing of the seasonal area was completed on March 17, 2000, with access gates to remain open until the bank swallows returned to nest at Fort Funston.
On March 13, 2000, before the swallows returned, the Fort Funston dog walkers and other affiliated groups filed for a temporary restraining order in Federal Court, seeking to prevent further fencing work at the site and to allow the area to remain open for recreational activities. On Tuesday, March 14th, the Dog Walkers' request was partially granted on a temporary basis, whereby the gates accessing the seasonal closure area were ordered to stay open, but fencing of the permanent closure area could continue and, when completed, could remain closed. The court order set a hearing on the issue of the closures for April 14, 2000, and permitted the National Park Service to close the seasonal area if an emergency situation arose before the April 14th hearing.
Bank swallows have been nesting at Fort Funston since at least 1927 and typically arrive in late March or early April. On April 11, 2000, bank swallows were observed in the vicinity of the seasonal closure area. In consulting with the California Department of Fish & Game and the Audubon Society (attached hereto), and based upon the NPS guidance requiring protection of special status species (NPS Management Policies, Chapter 4, and NPS-77) and the determination contained in the March 3, 2000 memorandum, the park has determined that an emergency situation exists that requires closure of the seasonal closure area at Fort Funston in order to protect the habitat of the state threatened bank swallow. Accordingly, the seasonal area was gated and closed to public access on April 12, 2000, at approximately 9:00 a.m.
Based on the above, this memorandum serves as a determination that emergency closure of the subject area is necessary for the protection of natural resources, and no less restrictive measures would suffice.
[Signed, Terri Thomas, for]
Mary G. Scott
Assistant Superintendent
Attachments (2):
Declaration by Ronald Schlorff of April 3, 2000
Letter from Audubon Society of April 5, 2000