Letter re Proposed Closure Without Court Permission
The Park Service posted signs in early January 2001 announcing that the planned closure would take place on January 12th. However, doing so without receiving permission from the U.S. District Court would be in violation of the preliminary injunction. Here is the January 10 letter from the plaintiffs' (dog walkers) attorney, John B. Keating, to the Park Service's government attorney, Charles M. O'Connor, regarding this issue. The matter has been delayed until a February 1st case management conference and the area was not closed on January 12th as had been announced. Signs now indicate future closure without specifying a date.
ATTORNEY AT LAW
Mr. Charles M. O'Connor
Assistant United States Attorney
Chief, Environment & Natural Resources Unit
Ft. Funston Dog Walkers v. Bruce Babbitt
USDC No. C 000 0877 WHA
Dear Mr. O'Connor:
Please be advised that the National Park Service has placed new signs on the fences of the subject closure area at Fort Funston. The signs state that the area will be closed as of January 12, 2001 and that members of the public using the area may be cited.
Please be on notice and make sure that the relevant Park Service employees are aware that any such action would be in contempt of the Court order currently in place in this case.
I enclose another copy of the May 16, 2000 Preliminary Injunction in this case, by which the Federal Court orders that:
Effective ... defendants are ordered to leave the gate open to the new temporary closure at Fort Funston and, with respect to the new permanent closure, to have installed such gates and leave them open as necessary to allow access to the gap and to the beach via the gap. Otherwise, the fences may remain in place pending a final judgment.
If and when the National Park Service fully complies with the regulation requiring notice and comment, 36 C.F.R.1.5(b), the National Park Service may apply for the Court to modify and/or dissolve this preliminary injunction. If the National Parks Service does not do so, the Court may not be sympathetic to a future closure based on an "emergency" when the bank swallows return in April 2001, given that their return is foreseeable and sufficient lead time seems to exist for the National Park Service to address any problems through non-emergency means.
The plain and clear language of the Preliminary Injunction is that the area is to remain open to public access until such time as the government prevails on a motion to modify or dissolve the current injunction. The motion is to be brought on ordinary notice, as there is no "emergency" circumstance and there is harm to the public interest as well as possible environmental downside consequences if the closure occurs without appropriate consideration.
The publicly disclosed documents reflect that Mr. O'Neill's closure decision was signed on December 14, 2000 and issued on December 18, 2000, and therefore the circumstances appear to not conform with the 30 day rule for proper rulemaking. The public is prejudiced by the inadequate notice over the holiday period. Some may seek reconsideration or review of the decision, particularly in light of the perceived improper and inadequate rulemaking, the appearance of lack of reasonable compliance with the environmental review requirements, and the concern that the decision is otherwise in violation of the relevant statutes.
Kindly confirm that the signs threatening unlawful closure and unlawful citation will be promptly removed and that the closure will not occur absent compliance with the Court's Preliminary Injunction Order protecting the public.
John B. Keating
cc. Laurens Silver
Head Ranger, Fort Funston Ranger Station