[ from Tuesday, March 14, 2000 ]
"We
knew this was not going to be a popular thing"
A plausible argument can be made that the National Park Service (NPS) knew in advance that closing certain areas at Fort Funston would be "highly controversial," U.S. District Judge William Alsup said in concluding remarks at Tuesday, March 14's court hearing at the Federal Building. The case's smoking gun, twice repeated verbatim by the judge, is a quote from Golden Gate National Recreational Area (GGNRA)'s spokesman Roger Scott that, "We knew this was not going to be a popular thing."1. That, the judge remarked, was close to saying that the closure would be "highly controversial." And in such non-emergency, highly controversial closures, federal law governing the National Park Service requires publication in the Federal Register and an opportunity for comment at a public hearing. A major complaint of the case's plaintiffs, Fort Funston Dog Walkers and San Francisco Dog Owners Group (SFDOG), is that the Park Service's closure is illegal because NPS neither announced the change nor solicited opinions from Fort Funston users.
The closure has sparked a series of meetings, protest demonstrations, letters to representatives, and a lawsuit. The Dog Walkers' complaint, heard in court on March 14th, includes a request for a Temporary Restraining Order (TRO) to stop the agency from closing two gates through which access to the area in question is currently still allowed. The NPS had planned to close the gates any day now, as soon as the migrating Bank Swallows are spotted in the vicinity.
"Those gates should remain open to people and to dogs", stated the judge in referring to the "seasonal closure" area."2. He went on to declare, "However, when the Bank Swallows come back, if the Park Service makes an emergency declaration, it may close the gates without any kind of hearing."
[ 2. Look for a map here at the Fort Funston Forum soon; boundaries of the various areas under consideration can be confusing, even to frequent Funston visitors. ]
So far, without an emergency having been declared, the judge held that "the public rule-making process should have been adhered to." The judge said that, "I wonder whether an emergency can be created," given all the previous years that the Bank Swallows have been back, and short of such a declaration he held that the plaintiffs had a legitimate issue because the closure, being highly controversial, requires notice and comment.
In the meantime, "The court is not going to require that the fence be taken down, and in fact the Park Service may continue building the internal fence" 3. Then, after stipulating that the seasonal gates should remain open, the judge declared that, "The permanent area will remain closed because there could be injury to native grasses" caused by dogs.
[ 3. Expect yet another fence. This one will cut across the disputed dunes, running from the road, out to the cliffs. This "internal" fence will divide a "permanent closure" area which the NPS claims is needed to keep dogs from damaging recently planted native grasses, from a "seasonal closure" area to be off-limits during roughly half the year , because NPS claims that dogs and people could be a threat to the Bank Swallow habitat. And if the birds arrive in the next seven days or so before the internal fence is completed, the judge allowed the Park Service to close the entire area (without declaring an emergency) until that fence is done. ]
The judge was less sure of the extent of "significant alteration in public use patterns", which is a second requirement for going through the legal rulemaking process (the first requirement being the "highly controversial" nature of a closure.) While granting the part of the restraining order to keep the gates open for the time being, the judge did not consider the Sunset Trail issues to be as important. In recent days the NPS has cleared away the piles of asphalt there, permitting some pedestrian access. Equal access to the Sunset Trail, a requirement of federal law, is still in question because of its rough, unpaved surfaces unsuitable to most wheelchair users. However, the judge was disinclined to review this equal access issue raised in the complaint. Although the court accepted a motion by The Audubon Society to join the case on the government's side, a comparable effort to find equal-access groups to join on the Dog Walkers' side appeared unlikely because the judge stipulated that this could only be requested through the following day.
Deadlines set by the judge include March 30th for the discovery phase, April 3rd for supplemental briefs, and April 10th for reply briefs. All in all, there will be hundreds of pages of briefs, documents and exhibits -- and once these are filed with the court and become a matter of public record, as many as possible will be available right here at the Fort Funston Forum website for public review.
The restrictions imposed by Tuesday's Temporary Restraining Order (not allowing gates to the "seasonal closure" area to be shut short of a declaration of an emergency regarding the Bank Swallow habitat protection) will be in place until the next step, which is an injunction hearing on Friday, April 14, at 8:00 a.m., U.S. District Courtroom 9, 19th floor, Federal Building, 450 Golden Gate Avenue, San Francisco.
by Michael B. Goldstein please check back here for corrections or clarifications!
