[ from Friday Aug. 11, 2000 ]

National Park Service Blows Off
Federal Court Order to Open Gates --
Contempt of Court Motion Filed

The National Park Service acknowledged that the bank swallows have departed Fort Funston for the season, yet it refused on Thursday to obey a federal court's preliminary injunction to open the closure area once the bank swallows had departed. As a result, yesterday morning at 10:20 a.m. the dogwalkers filed a motion asking the U.S. District Court to hold the Park Service in contempt of court.

 

Here are the documents relating to this matter:

Two letters requesting that the Park Service confirm the birds' departure and open the gates; and the documents filed with the court this morning asking that the Park Service be held in contempt of court for refusing to open the closed areas once the birds departed.

 

NOTE: The Park Service decided within days to obey the court order, opened the gates pending the legally required publish-and-accept comments "rulemaking" period, and the motion for contempt was withdrawn.

Letters Requesting Opening of Gates Pursuant to May 16th Court Order

LYDIA BOESCH
Attorney at Law

August 7, 2000

VIA FACSIMILE

Charles M. O'Connor
Assistant U.S. Attorney
U.S. Attorney's Office
450 Golden Gate Ave, Rm 5160
San Francisco, CA 94104

Dear Chuck:

        It appears, from our observations at Fort Funston, that the bank swallows have departed. Could you please ask someone from the Park Service to verify our observations right away? If the birds in fact have departed, we would like for the gates in the new closure area to be opened pursuant to the Court's Preliminary Injunction Order dated May 16, 2000.

      Thank you for your cooperation. Please call me if you have any questions.

                                                                      Very truly yours,

                                                                      Lydia Boesch


LYDIA BOESCH
Attorney at Law

August 10, 2000

VIA FACSIMILE

Charles M. O'Connor
Assistant U.S. Attorney
U.S. Attorney's Office
P.0. Box 36055
San Francisco, CA 94102

Re:     Fort Funston Dog Walkers v. Babbitt 

Dear Chuck:

      Our observations continue to demonstrate that the bank swallows have departed Fort Funston. Accordingly, park users should be given access to the ten-acre closure pursuant to the Court's preliminary injunction dated May 16, 2000, which states as follows:

       By this letter, plaintiffs are requesting compliance with the Court's order immediately. If I have not heard from you by 5:00 p.m. this afternoon, we will file papers by noon tomorrow seeking compliance with the Order. In addition, I have spoken with Judge Alsup's courtroom deputy. If Judge Alsup needs to hear argument on this matter, it will be set for Tuesday, August 15 at 2:30 p.m.

      Thank you for your cooperation. Please call me if you have any questions.

                                                                      Very truly yours,

                                                                      Lydia Boesch


Motion to hold Park Service in contempt of court
for refusing to permit access to closed areas now that
the bank swallows have departed:

 

LYDIA OWEN BOESCH (CA Bar No. 147901)
110 Maywood Drive
San Francisco, CA 94127-2040
Telephone: (415) 841-1060
Facsimile: (415) 841-0437
 

JOHN B. KEATING (CA Bar No. 148729)
2995 Woodside Road, Suite 350
Woodside, CA 94062

Telephone: (650) 851-5900
Facsimile: (650) 851-5912

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

C-00-0877 WHA

 

FORT FUNSTON DOG WALKERS, a
membership organization; SFDOG, a
California limited partnership, Linda
McKay, an individual; Florence Sarrett, an
individual; Lindsay Kefauver, an individual;
and Marion Cardinal, an individual.

Plaintiffs,

V.

PLAINTIFFS' EXPEDITED MOTION
FOR CONTEMPT

Bruce BABBITT, Secretary of the Interior;
Robert Stanton, Director of the National
Park Service; John Reynolds, Regional
Director, Pacific West Region, National
Park Service; and Brian O'Neill, General
Superintendent of the Golden Gate National
Recreation Area,

                              Defendants.

GOLDEN GATE AUDUBON SOCIETY, a
California Nonprofit Membership
Organization,

                              Intervenor/Defendant.

Date: August 15, 2000
Time: 2:30 p.m.
Ctrm: Hon.William H. Alsup

 

 

 

 

 

      Plaintiffs hereby move this Court for an order holding defendants in contempt of this Court for violating this Court's Preliminary Injunction dated May 16, 2000. In that preliminary injunction, the Court ordered as follows:
/ / /

Effective upon the end of the pending emergency (declared by the National Park Service upon the April return of the bank swallows), 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.

      Counsel for defendants acknowledges that the bank swallows have departed, but has indicated that the defendants do not intend to open the gates or allow access to the gap or to the beach via the gap as ordered by this Court. Declaration of Lydia Owen Boesch (submitted herewith), 8. In addition, counsel for defendants has provided no "emergency" basis for defendants' refusal to comply with this Court's preliminary injunction. Id.

      In its Findings of Fact and Conclusions of Law Regarding Probability of Success and Irreparable Injury ("FFCL") filed April 25, 2000, the Court recognized the harm suffered by plaintiffs resulting from the denial of access to this popular portion of Fort Funston. The Court stated:

[P]laintiffs in this case have shown the possibility of irreparable harm. Members of the plaintiff groups and the individual plaintiffs used the closure area frequently -- some walked their dogs there twice daily. Plaintiffs do not seek money damages in this action. Rather, they seek continued access to recreation that improves the quality of their lives. The harm they face is substantial and irreparable. [FFCL, p. 29, emphasis added.]

For the past four months, plaintiffs have lost the use of one of the most popular areas of Fort Funston as a result of the Park Service's actions in railroading through this closure. This loss should not be exacerbated by continued denial of access to this public area.

      The publication of this closure in the Federal Register should have no bearing on whether this Court's order should be enforced pending a final determination on rulemaking.[1] First, the amount of time required before a final determination is made -- and thus the amount of time the land would remain closed -- clearly is uncertain and could be substantial. The last day that comments may be submitted is September 18, 2000. In its Brief on the Issue of Remedy dated May 4, 2000, defendants stated that the Park Service would publish the proposed closure in the Federal Register, then upon expiration of the comment period, "the Park Service would evaluate the comments and then make a decision as to how it would proceed." Defendants' Brief on the Issue of Remedy, p. 9. This closure is extremely controversial. It's reasonable to expect that many divergent comments will be submitted by the groups and individuals who have an interest in the proposed closure. More than one month remains in the comment period. Additional time will be required for the Park Service to evaluate thoroughly the many comments likely to be received and make a sound decision based on those comments. Plaintiffs already have lost use of this land for four months. They should not have to be denied access to a popular portion of this public park for one more day, certainly not for another month plus the undetermined amount of time necessary for the Park Service to properly and fairly evaluate comments and decide on this closure.

      Second, the outcome of rulemaking is uncertain. The defendants have admitted this in their remedy brief. The land ultimately closed could encompass all of the proposed closure, a portion of it, or none of it at all. Why should plaintiffs be denied use of this land when the area that ultimately will be closed is uncertain? Third, the "emergency" basis for the closure was protection of the bank swallows. The bank swallows have departed. The emergency has ended. No evidence of any other "emergency" has been submitted to support further denial of access to this land pursuant to 36 C.F.R. 1.5(b). Access to the land, therefore, should be granted immediately.

      Defendants are well aware that the bank swallows have departed, yet, in arrogant and abusive violation of this Court's preliminary injunction, refuse to allow access to the closure area. Unless access is given, defendants should be held in contempt of this Court.
___________________________________

            [1] The proposed closure actually encompasses the ten acres currently closed plus two additional acres.

 Dated: August 11, 2000

                                                                                          Respectfully submitted,                                                                                         

                                                                                          LYDIA OWEN BOESCH


LYDIA OWEN BOESCH (CA Bar No. 147901)
110 Maywood Drive
San Francisco, CA 94127-2040
Telephone: (415) 841-1060Facsimile: (415) 841-0437
 

JOHN B. KEATING (CA Bar No. 148729)
2995 Woodside Road, Suite 350 Woodside, CA 94062
Telephone: (650) 851-5900
Facsimile: (650) 851-5912

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

C-00-0877 WHA

 

FORT FUNSTON DOG WALKERS, a
membership organization; SFDOG, a
California limited partnership, Linda
McKay, an individual; Florence Sarrett, an
individual; Lindsay Kefauver, an
individual;
and Marion Cardinal, an individual,

Plaintiffs,

V.

PLAINTIFFS' MOTION FOR
ORDER SHORTENING TIME

                         
and

[PROPOSED] ORDER

Bruce BABBITT, Secretary of the Interior;
Robert Stanton, Director of the National
Park Service; John Reynolds, Regional
Director, Pacific West Region, National
Park Service; and Brian O'Neill, General
Superintendent of the Golden Gate National
Recreation Area,

                              Defendants.

GOLDEN GATE AUDUBON SOCIETY, a
California Nonprofit Membership
Organization,

                              Intervenor/Defendant.

Date: August 15, 2000
Time: 2:30 p.m.
Ctrm: Hon.William H. Alsup

 

 

 

 


      Plaintiffs in the above-entitled action hereby move this Court for an Order Shortening Time for the filing of Plaintiffs' Motion for Contempt to be heard by this Court, if necessary, on August 15, 2000 at 2:30 p.m. The Declaration of Lydia Owen Boesch, submitted herewith, demonstrates that the hearing on this motion on shortened time is necessary because Defendants have failed to comply with this Court's Preliminary Injunction dated May 16, 2000, thus causing further harm to plaintiffs due to the continued denial of access to this popular portion of Fort Funston.

Dated: August 11, 2000

                                                                                          LYDIA OWEN BOESCH
                                                                                          JOHN B. KEATING

                                                                                          Attorneys for Plaintiffs

 

ORDER

Based on the foregoing, and good cause appearing, it is so ordered.

Dated: August ___, 2000

                                                                                          WILLIAM ALSUP
                                                                                          UNITED STATES DISTRICT JUDGE

 


LYDIA OWEN BOESCH (CA Bar No. 147901)
110 Maywood Drive
San Francisco, CA 94127-2040
Telephone: (415) 841-1060Facsimile: (415) 841-0437
 

JOHN B. KEATING (CA Bar No. 148729)
2995 Woodside Road, Suite 350 Woodside, CA 94062
Telephone: (650) 851-5900
Facsimile: (650) 851-5912

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

C-00-0877 WHA

 

FORT FUNSTON DOG WALKERS, a
membership organization; SFDOG, a
California limited partnership, Linda
McKay, an individual; Florence Sarrett, an
individual; Lindsay Kefauver, an
individual;
and Marion Cardinal, an individual,

Plaintiffs,

V.

DECLARATION OF LYDIA OWEN
BOESCH IN SUPPORT OF
PLAINTIFFS' MOTION FOR ORDER
SHORTENING TIME AND
PLAINTIFFS' MOTION FOR
CONTEMPT

Bruce BABBITT, Secretary of the Interior;
Robert Stanton, Director of the National
Park Service; John Reynolds, Regional
Director, Pacific West Region, National
Park Service; and Brian O'Neill, General
Superintendent of the Golden Gate National
Recreation Area,

                              Defendants.

GOLDEN GATE AUDUBON SOCIETY, a
California Nonprofit Membership
Organization,

                              Intervenor/Defendant.

Date: August 15, 2000
Time: 2:30 p.m.
Ctrm: Hon.William H. Alsup

 

 

 

 

I, Lydia Owen Boesch, state as follows:

1. I am an attorney of record for plaintiffs in the above-entitled action.

2. This declaration is submitted in support of (a) Plaintiffs' Motion for Order Shortening Time, submitted herewith, to have their Motion for Contempt heard by this Court, if necessary, on August 15, 2000 at 2:30 p.m. and (b) Plaintiffs' Motion for Contempt.

3. Plaintiffs are seeking defendants' compliance with this Court's Preliminary Injunction dated May 16, 2000. In that injunction, the Court ordered as follows:

Effective upon the end of the pending emergency (declared by the National Park Service upon the April return of the bank swallows), 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.

4. The Court's attention to this matter on shortened time is necessary because the bank swallows have departed Fort Funston and defendants have not opened the gates to the new temporary closure at Fort Funston, nor have they allowed access to the gap and to the beach via the gap. Plaintiffs continue to suffer harm because they have lost access to recreation that improves the quality of their lives due to the continued closure of this popular portion of Fort Funston.

5. I spoke with Charles M. O'Connor, counsel for defendants, on August 10, 2000 and advised him of plaintiffs' request for shortened time for the hearing of their motion. Mr. O'Connor has stated that he is available for a hearing of this matter on August 15, 2000 at 2:30 p.m.

6. On August 10, 2000 at approximately 4:00 p.m., I left voice mail messages for Lawrence Silver and Kelly Drumm, counsel for intervenor, notifying them of the filing of this expedited motion and the possible hearing on August 15, 2000.

7. Attached are true and correct copies of letters I sent to Mr. O'Connor via facsimile on August 7 and 10, 2000, notifying Mr. O'Connor that the bank swallows had departed, requesting that the gates be opened, and notifying him of the possible hearing on this matter on August 15, 2000.

8. In my conversation with Mr. O'Connor on August 10, 2000, he stated that Park Service employees agree with plaintiffs that the bank swallows have departed Fort Funston. He also stated that the Park Service does not intend to open the gates or allow access to the gap and to the beach by way of the gap. No "emergency" was provided as a basis for the Park Service's refusal to comply with this Court's preliminary injunction.

9. I certify that Plaintiffs' Motion for Order Shortening Time is made in good faith and for good cause.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 11th day of August, 2000 in San Francisco, California.

                                                                                          
                                                                                          LYDIA OWEN BOESCH


A federal court order and this sign photographed at Fort Funston agreed: 'twas time to open the gates!


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