[ from Tuesday,
March 14, 2000 ]
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"
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!
First Section of Fort Funston Forum