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
FT. 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.
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,
Intervener/Defendant.
____________________________________
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Case No.
C-00-0877 WHA
PLAINTIFFS= REPLY MEMORANDUM RE:
PRELIMINARY
INJUNCTION
Date: April 14, 2000
Time: 8:00 a.m.
Ctrm: Hon. William H. Alsup
TABLE OF CONTENTS
Page
INTRODUCTION
.......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 3
I. A Preliminary Injunction Is Warranted and Necessary to
Protect Against
Bureaucratic
Efforts to Divest the Public of Regulatory Protections ............................. 3
A. Irreparable Harm....................................................................................................... 3
B. Balance of Hardships................................................................................................. 4
C. The Public Interest Favors a Preliminary
Injunction..................................................... 5
D. Likelihood of Succeeding on the Merits...................................................................... 6
1. The
Closure Is Highly Controversial............................................................... 6
2. The
Closure Results in a Significant Alteration in the Public Use Pattern........... 8
3. Defendants
Failed to Demonstrate an Evaluation or a Finding Supporting a Conclusion That Rulemaking Was Not Required 9
4. The
Park Service Did Not Adequately Comply with 36 C.F.R. ' 1.5(c)......... 9
5. The
Inconsistent Park Service Reasons for the Closure................................. 10
6. Defendants= Citation to 36 C.F.R. ' 2.15 Is Inapposite................................ 11
II. Defendants
Misstate the Standard of Review............................................................ 12
III. Plaintiffs
Have Standing............................................................................................ 14
IV. Leave
to Amend is Appropriate............................................................................... 15
CONCLUSION..................................................................................................... 15
TABLE
OF AUTHORITIES
Page
Cases
American Academy of Pediatrics v. Heckler, (D.D.C. 1983)
561
F. Supp. 395.................................................................................................................. 8
Animal Defense Council v. Hodel, (9th Cir. 1988)
840
F.2d 1432.................................................................................................................... 13
Animal Legal Defense Fund v. Glickman (D.D.C 1998)
154
F.3d 426 ..................................................................................................................... 14
City of South Pasadena v. Slater, (C.D. Cal. 1999)
56
F. Supp. 2d 1106............................................................................................................. 4
Edmonds Institute v. Babbitt (D.D.C. 1999)
42
F.Supp. 2d 1 ................................................................................................................. 14
El Rescate
Legal Services, Inc. v. Executive Office of Immigration Review (9th Cir. 1992)
959
F.2d 742...................................................................................................................... 14
Friends of the Earth v. Hall, (W.D. Wash. 1988)
693
F. Supp. 904.................................................................................................................. 4
Friends of the
Payette v. Horseshoe Bend Hydroelectric Co., (9th Cir. 1993)
988
F.2d 989...................................................................................................................... 13
Hells Canyon Preservation Council v. Jacoby, (D.Or. 1998)
9
F. Supp. 2d 1216............................................................................................................. 13
Northeast Environmental Center v. Glickman, (9th Cir. 1998)
136
F.3d 660...................................................................................................................... 13
Northern Cheyenne Tribe v. Hodel, (9th Cir. 1988)
851
F.2d 1152...................................................................................................................... 4
Port of Astoria v. Hodel (9th Cir. 1979)
595
F.2d 467...................................................................................................................... 14
Public Power
Council v. Pacific Power & Light Co., (9th Cir. 1982)
674
F.2d 791...................................................................................................................... 13
Save the Yaak Committee v. Block,(9th Cir. 1988)
840
F. 2d 714....................................................................................................................... 4
Sierra Club v. United States Forest Service,(9th Cir. 1988)
843
F.2d 1190...................................................................................................................... 4
Texaco, Inc. v.
Ponsoldt, (9th Cir. 1991)
939
F. 2d 794 15................................................................................................................ 15
Wilson v. Watt, (9th Cir. 1983)
703
F.2d 395 4 .................................................................................................................... 4
Statutes and
Regulations
5 U.S.C. ' 551................................................................................................................................. 8
5 U.S.C. ' 702............................................................................................................................... 14
Fed R.
Civ. P. 15. 15...................................................................................................................... 15
36 C.F.R.
' 1.5 ................................................................................................................................ 8
36 C.F.R.
' 1.5(b)............................................................................................................................ 8
36 C.F.R.
' 2.15............................................................................................................................. 11
36 C.F.R.
' 2.8............................................................................................................................... 11
INTRODUCTION
The Park
Service closed much more of Fort Funston than is reasonably necessary for the
bank swallow protection benefit the Park Service claims to seek. The Park Service unnecessarily has fenced
the public out of the prime off-trail recreational area of the park, without
adequate analysis of or due care for the consequences to public recreation, the
threatened bird, or the ecology. An
injunction is appropriate to stop these arbitrary actions and potential damage
in the interim, to allow adequate analysis and public input on the changes.
The bank
swallows have not yet returned. It is
not known where they will nest if they do return. Nor is it clear that the bank swallows will benefit from the
closure of the cliffs and land beyond.
Just in case there might be such benefit, plaintiffs suggest that a less
damaging alternative, such as a temporary fence or signs placed twenty to forty
feet back from the cliffs, will satisfy any interest in protecting the bank
swallows. A fence back from the cliffs
also would serve the suggested interest of reducing the danger of individuals
falling off or climbing down the bluffs.
The Park Service fails to provide a substantial basis for an urgent need
to close the additional large recreational area inland from the bluffs.
The other
claimed basis for the closure of the additional recreational area -- to create
a new Anative@ plant or wildlife habitat area -- is a long-term agenda of the Park
Service, rather than an interest warranting implementation on an urgent basis
prior to ordinary analysis and public input.
As there is no evidence of an urgent need for closure of the additional
recreational area, nor even clear evidence that the closure will eventually
assist rather than harm the threatened birds, the immediate harm to the public
and the risk of potential harm to the threatened bird colony far outweigh the
speculative long-term benefit hoped for by the Park Service.
Defendants= brief curiously devalues the importance of
public access to this particular park area.
Although they now pretend that they believe the closure is not highly
controversial or a significant change in the public use, their current posture
is belied by their prior unusual strategic conduct to avoid the very public
controversy they deny exists. The Park
Service delayed and kept the plans secret until announcing and implementing
them quickly at the most opportune time, arranged special payment terms to
encourage the construction workers to get Ain and out as quickly and professionally as possible@ because Athe project is that political,@ and went to the extreme of hiring a special public relations employee
for the project so as to have a spokesperson at the construction site for the
duration of the project.
Park
Service employees had for a long period developed the plan with individuals
from outside advocacy groups friendly to the plan, but hid the secret
intentions from the much more numerous primary users of the park. After keeping the plans secret for almost a
year, the Park Service then announced and implemented the stealth closure with
specially orchestrated speed to avoid public controversy. It did so at the last hour before the
expected return of the bank swallows, thereby having advantage of the pretext
urgency of the closure. In such
circumstances, it is particularly appropriate to require the Park Service to
abide by the public input and impact analysis requirements the Park Service is
trying to sidestep.
Defendants= real motivation in trying to ramrod through the closure of the
additional recreational area is plainly evident from their conduct and internal
memoranda. Some individuals in the Park
Service wish ultimately to substantially restrict the traditional recreational
uses of the park in favor of fenced-off areas for use by those who wish to
create new Anative@ plant populations or wildlife habitat. That long-term agenda to change the general park use should be
considered carefully rather than pushed through quickly under the false pretext
of protecting bank swallows. That is
particularly so where the Park Service suggests it needs to do a dramatic act
without clear indication the changes will help the bank swallows, while for
years the Park Service fails to do other minimal acts that have been
recommended as clearly beneficial to protect the swallows.
In addition,
although the Park Service indicates it will not even get around to planting in
some of the area for five to ten years, and although there are many other areas
of Fort Funston which would be appropriate Anative@ plant restoration zones and would not be
controversial, the Park Service chose to close off the most highly used
off-trail recreational area of the park.
Defendants= standing and standard of review arguments
are overstated. The evidence shows
plaintiffs clearly have a direct injury in being fenced out of access to their
favorite recreational area. Plaintiffs
also have standing with regard to the aesthetic and ecological impact of
constructing a maze of fences and the other mistaken micro-management of this
beautiful park. Additional standing is
specifically conferred by the Administrative Procedure Act to any person
adversely affected or aggrieved by agency action.
Defendants= technical objections regarding the form of
pleading can be solved by leave to amend the complaint to plead the standing
and jurisdictional grounds with particularity prior to the permanent injunction
hearing on the merits. Those arguments
are simply further effort to deprive the public of judicial protection against
the bureaucratic excesses. The evidence
adduced so far at deposition sufficiently clarifies the standing and
jurisdiction to meet the preliminary injunction standard of a strong likelihood
of future injury. Accordingly,
defendants= technical pleading objections should be
rejected at the preliminary injunction stage.
ARGUMENT
I. A Preliminary
Injunction Is Warranted and Necessary to Protect Against
Bureaucratic Efforts to Divest the Public of Regulatory
Protections
A. Irreparable Harm
The
closure at issue results in a substantial restriction of public access to Fort
Funston. Defendants seek to sidestep
the significant public impact of closing off public access by pretending that
the issue solely concerns whether dogs are allowed off leash. That is not a fair posture. Regardless of whether park users are
allowed to let their dogs off leash, the effect of the closure will be to
deprive the public and plaintiffs of access to one of the most popular park
areas in the Bay Area.
Generally,
restriction of public access to unique recreational parkland constitutes
irreparable injury. In this case, the
Park Service seeks to fence off the only large sand dune which is available in
the GGNRA on which children may play and slide down, and does so without
analysis of the impact on recreational use. Deposition of Sharon Farrell,
60:5-62:24, attached as Exhibit A. The
restriction of beach access and hiking trails also injures the park users.
Restriction
of senior and disabled park access also creates irreparable injury. Both plaintiffs Florence Sarrett and Marion
Cardinal are seniors who testified at deposition that their physical ability to
achieve access to Fort Funston is compromised by the recent changes. Deposition
of Florence Sarrett, 44:10-25, attached as Exhibit B; Deposition of Marion
Cardinal, 18:8-14, 20:16-21:21, attached as Exhibit C. Ms. Cardinal and Ms. Sarrett also testified
as to the general impact of closure of park areas they previously used. Cardinal Deposition, 38:20-24, see also
14:7-15:17, 18:11-12, 19:11-14, 19:18-22; Sarrett Deposition, 44:10-25 and
49:16-19.
The
aesthetic damage constitutes irreparable injury to the plaintiffs (Cardinal
deposition, 12:14-25 and 38:10-15; Sarrett deposition, 48:14-18; declarations
at PEB003-PEB048), as does the damage to the peacefulness and social community
afforded by the park (Sarrett deposition 43:20-24) and the potential ecological
damage.
Moreover,
plaintiffs are irreparably injured by defendants= strategic efforts to avoid the regulations providing for public input,
in that the closure became a fait accompli precluding meaningful
opportunity for analysis and public objection.
As set forth in plaintiffs= opening brief, Ninth Circuit law clearly finds injury by and need for
protection against efforts to avoid the rigors of environmental and planning
analysis regarding park resources where there is a risk of a wrong decision
harmful to the environment. In addition
to the citations in plaintiffs= opening brief, see also
Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1156-58 (9th
Cir. 1988); Sierra Club v. United States Forest Service, 843 F.2d 1190
(9th Cir. 1988); Save the Yaak Committee v. Block, 840 F. 2d
714, 722 (9th Cir. 1988); Friends of the Earth v. Hall, 693
F. Supp. 904, 912-13, 949 (W.D. Wash. 1988).
In Northern
Cheyenne Tribe v. Hodel, id., a decision was remanded for an
evidentiary hearing because the district court balanced the equities based only
on an inadequate EIS. Similarly, the
court has recognized that an injunction is appropriate where the government has
not fully considered all Aenvironmental, public health and safety@ aspects of a project. City
of South Pasadena v. Slater, 56 F. Supp. 2d 1106, 1143 (C.D. Cal. 1999).
B. Balance of Hardships
A minimal
showing of fair chance of success on a claim that the change is illegal is an
adequate showing for a preliminary injunction where the burden on the
government is minor and the balance of hardships tips strongly in plaintiffs= favor.
Wilson v. Watt, 703 F.2d 395, 398-400 (9th Cir. 1983).
The Park
Service=s Plant Biologist acknowledges that it will
take years to accomplish the planting in the closed area and years thereafter
for the replacement Anative
plant@ ecology to take hold sufficiently to provide
habitat benefits. There has been no
evaluation of the impact of destroying the current successful ecology in the
5-10 year interim. Farrell Deposition,
78:4-79:2, Exhibit A. The Park Service
intended to plant one acre this year (Farrell Deposition, 82:18-20) and to
plant the remainder of the permanent closure in future years. In fact, the Park Service has planted only
one-third of the first acre this year (Farrell Deposition, 75:5-16), rather
than the 60 percent represented at the TRO hearing (Transcript of March 14
Hearing, 59:3-8, attached as Exhibit D).
Assuming
the permanently closed area is half of the revised total closure of 9.9 acres,
the revegetation effort in this area will take at least five years, if planted
one acre per year. It will take fifteen
years at the current pace of only one-third of an acre each year. And, if the
planting is successful, the native plant community in the area planted will
take three to five years more to become established sufficiently to become a
fully vegetated native plant area.
Farrell Deposition, 83:5-23.
Hence, even if the planting is successful, the new ecology will
not provide replacement habitat for the bank swallows in some portions of the
proposed closure for almost a decade or more.
In the interim, the long-term, historically successful ecology will be
altered.
The
suggested interest of the Park Service in closure to protect public safety is a
red herring. The Park Service could accomplish the suggested safety need with
the less restrictive fencing and signs, which were used before but have not
been maintained. The Park Service could
install a low fence or barrier some appropriate distance back from the bluff,
or simply maintain and expand the existing fence which has stood for years
despite recent storm-heavy winters.
Doing so would achieve the safety goals without obstructing the
beautiful views or the cherished access.
C. The Public Interest
Favors a Preliminary Injunction
Public
interest favors holding the Park Service to the ordinary requirements of public
input on restriction of public access and careful environmental analysis prior
to decisions to change the ecology of an area that historically has supported a
threatened species. The Park Service has
not complied with either ordinary procedure prior to the current arbitrary
changes at Fort Funston and appears to act without due care for the
consequences.
Fort
Funston worked well both for recreational purposes and for the threatened
species, until the Park Service began to micro-manage the park=s ecology.
There is a surprising lack of credible evidence presented by the Park
Service to justify the supposed urgent need for the closure. On the other hand, there is some evidence
that the unanalyzed changes might actually harm the threatened species, and
there is substantial evidence that the closure significantly will restrict
public access. The public interest in
protecting park access and in protecting wildlife requires that the Park
Service be enjoined from making the changes prior to fair evaluation of the
consequences of the changes.
A wide
variety of recreational uses (dog-walking, hiking, horseback riding,
ocean-viewing, hang gliding, kite and model airplane flying and bird-watching)
have coexisted cooperatively in a remarkable symbiosis at Fort Funston. The Park Service now significantly undercuts
the successful experiment in social cooperation by unilaterally restricting the
key traditional uses that are so central to the nature of the public use of the
park, effecting a substantial change in the park with deception and quiet speed
to avoid the public input that might have stopped the unpopular changes.
The
dispute at Fort Funston is even more contentious because of the high usage of
the area and the presence of organized user groups, including groups on each
side of this issue. Because the Park
Service, which favors the groups on one side of the issue, acted improperly to
strategically avoid the public input process, there is a chance that
significant ecological change will occur without the protective benefit
afforded by ordinary public review and environmental impact review. As part of the campaign to change the
traditional dune and iceplant landscape into a native plant restoration or
wildlife habitat area, the Park Service has incrementally fenced the public out
of more and more of the park. Fort Funston
has been highly used by off-leash dog exercise enthusiasts and others as a
place to hike and play in the dunes.
The presence of the dogs and children even may have been a deterrent to
the natural predators of the bird colony.
D. Likelihood of Succeeding
on the Merits
1. The Closure Is Highly Controversial
The Park
Service has imposed conditions and restrictions on visitor use over
approximately 20 percent of Fort Funston since 1991 under the pretext of
creating native plant or wildlife habitats.
Although defendants posture that the most recent closure is a small
percentage of the park, the incremental closures now together close off almost
all of the bluff access in the park, save for the area near the parking lot,
which many consider unsafe. The current
closure not only closes the last large bluff area, but also closes off what had
become the most highly used area off the paved trails.
Along
each step of the way of the incremental closures, controversy has arisen. By 1995, GGNRA understood that any
additional appropriation of the land for native plant or wildlife habitat would
be Ahighly controversial@ and promised that the area closed in 1995
for so-called bank swallow habitat would Anot be expanded southward@(PEB066) and there would be no more further closures (PEB006). Despite these assurances, GGNRA began the
new closure plans in the fall of 1998, approved the project in February 1999
without disclosure to the public, remained quiet about the plans and urged
others to do so as well to avoid having the project Ablow up in our faces@ (PEB090), and then, about a year after
project approval, began quickly implementing the controversial plan without
prior notice or an opportunity for public comment.
As set
forth in the opening brief factual statement and supporting declarations, and
in the declarations submitted with plaintiffs= motion for a temporary restraining order, when the closure finally was
disclosed fully to the public, the news was greeted with numerous and repeated
objections, inquiries, calls for public meetings, several organized protest
demonstrations, substantial press coverage, and, when the repeated inquiries
were not responded to, this lawsuit.
The Park
Service hired a special public relations person to be at the park for the
duration of the project in order to deal with the public. US04285-US04288, attached as Exhibit E. The Park Service schemed how to handle the
construction of the project despite its controversial nature. The chief proponent of the project described
the project as Aperhaps one of the more contentious ones@ and Ain the top 10% of the park=s most visible projects,@ reports that the Superintendent Awants to ensure that we are in and out as quickly and professionally as
possible,@ and set up a financial incentive to pay in
full for the time even if the project was completed in less time, because Athe project is that political.@
PEB098.
Thus,
under any ordinary interpretation of the language Ahighly controversial,@ not only is the closure Ahighly controversial,@ but defendants also have treated it as
such. Where there is no special or
technical meaning of terms, they are appropriately interpreted per their
ordinary meaning. Research has located
no judicial interpretation of the Ahighly controversial@ prong in the Park Service regulation.
As stated
in plaintiffs= opening brief, the comments which
accompanied the publication of the regulation in 1983 indicate the Ahighly controversial@ prong was added to 36 C.F.R. ' 1.5(b) in response to concerns that the
superintendent would use his discretionary power to limit or close sections of
the park without Aadequate
public involvement.@ Reference in these comments to the
Administrative Procedure Act notice and comment provisions as a model for ' 1.5(b) provides some insight into the
judicial standard that should be applied.
Courts have noted that 5 U.S.C. ' 551, et seq. Awas designed to curb bureaucratic actions taken without consultation
and notice to persons affected.@ American Academy of Pediatrics
v. Heckler, 561 F. Supp. 395, 397-399 (D.C. 1983). Another purpose was to
ensure the agency Ahas
considered relevant factors to prevent arbitrary and capricious decision making
and to assure rational consideration of the impact of the contemplated regulatory
action.@ Id.
at 399 In evaluating these
factors, the court should review the Aimpact of the regulation upon established practices@ and the Anumber of people directly affected.@ Id. at 398.
Consideration
of the number of people affected and the impact on established practices are
relevant inquiries in this situation.
In this case, the lawsuit was filed by people who believe their rights
are important and should be protected.
The Park Service=s conduct is controversial because the agency has trampled these rights
now, as well as in the past.
2. The Closure Results in a Significant
Alteration in the Public Use Pattern
As set
forth in the irreparable injury section above and in the plaintiffs= opening brief, the closure substantially
changes the use pattern and nature of Fort Funston. The changes close off the last large bluff area of the park aside
from the parking lot area. They fence the public out of the only known large
sand dune where children can slide in the entire GGNRA. The closure restricts the access to the most
highly used off-trail area of the park. The closure restricts the available
beach access during high tide and restricts the most popular dog off-leash play
area.
Defendants= posturing that the closure represents a
small part of the park and concerns only off-leash dog use issues are wrong.
The Park Service has not even considered the various types or extent of use
being curtailed. Nor do they consider
the closure in the context of the prior closures. The closure in question, especially when considered in view of
the 1995 closures, clearly qualifies as the type of closure contemplated in the
comments to 36 C.F.R. ' 1.5,
in that this closure Ahas
the required effect of significantly altering or disrupting use by a
substantial number of park visitors.@
3. Defendants Failed to Demonstrate an Evaluation
or a Finding Supporting a Conclusion That Rulemaking Was Not Required
The Park
Service does not have absolute discretion for limiting public use or developing
native plant areas or wildlife habitats.
The Park Service=s actions must be Aconsistent with applicable legislation,@ meaning the enabling legislation for GGNRA. In implementing any closure at Fort Funston, therefore, the Park
Service must take into account the recreational needs of park users, they must
preserve the park in its natural setting (not create an unnatural setting for
the park), and they must protect from any development that destroys the scenic
beauty of the park. Changes that are
highly controversial or significantly alter the public use pattern must be
preceded by rulemaking.
The Park
Service gives no clue as to how they made the determination to not comply with
the rulemaking requirements, or even if they considered the issue at all. They also do not address how the changes
comport with the park=s
enabling legislation. Defendants
posture that they have not pursued much rulemaking in the past and imply that
therefore they should be excused from doing so in these circumstances. A failure to act properly in the past,
however, does not excuse current violation of the regulations.
4. The Park Service Did Not Adequately
Comply with 36 C.F.R. '
1.5(c)
The
delayed issuance of a retroactive self-justification did not comply with the
regulation requirement of a justification prior to implementing the
closure. Although the written Ajustification@ prepared by Mary Gibson Scott was dated March 3, 2000, at deposition
Ms. Scott confirmed that the document was not actually received back approved
by the Superintendent for about a week.
Deposition of Mary Gibson Scott, 89:13-17, attached as Exhibit F. That was at or around the same time as the
filing of this action and after the closure was implemented.
The
written determination did not comply with the requirement of explaining how the
closure was limited to the maximum extent possible. Instead, it merely summarily concluded that it was so limited. Even in their opening brief, the Park
Service continues to fail to explain why a smaller area will not suffice. The Park Service provides no support for
the presumption that the bank swallows will benefit from the inland part of the
closure.
Defendants
supply a declaration from the California Fish and Game wildlife biologist with
whom they consulted. Mr. Schlorff,
however, does not indicate one way or the other whether closure of the inland
areas is necessary or appropriate for bank swallow protection. He merely concurred that the closure is Acompatible@ with the state=s Bank Swallow Recovery Plan goals.
His opinion that the program is Acompatible@ with
the Park Service=s goals does not constitute evidence that the
entire extent of the closure is appropriate.
Indeed, in paragraph 14 of his declaration, Mr. Schlorff identifies the
particular compatible project objectives of the GGNRA plan as protection of the
colony from visitor and off leash dog disturbance, disturbance from cliff
rescues, and human accelerated erosion.
All of these objectives equally would be accomplished by a fence twenty
to forty feet in from the cliff face.
Mr.
Schlorff further indicates that disturbance from recreational activities on the
beach most likely results in the shifts in the nesting location. Yet, the Park Service makes no effort to
discourage the public from climbing up the cliffs from the beach. The Park Service recently put signs up on
the beach to dissuade individuals from proceeding from the beach up the old
trail into the permanently closed area, but for some reason will not follow the
recommendation simply to add signs indicating that people should not climb on
the cliffs.
5. The Inconsistent Park Service Reasons
for the Closure
Although
defendants suggest that the seasonal closure will be open for half of the year
while the permanent closure will be closed all year, they do not provide
sufficient rationale for treating the two areas differently. Defendants at times use the same reasons for
each closure B a presumed benefit to bank swallows and a
desire to create a new different Anative plant@
habitat that will support introduction of new wildlife. Defendants have put signs on the seasonal
closure reporting that the closure is in part for purposes of restoring the
area for a variety of wildlife. If it
is necessary, however, to fence out the public to avoid damage to the new Anative@ plants or to promote wildlife in the permanent closure, presumably the
Park Service similarly would find it necessary to do so in the seasonal area. If it is not necessary to close the seasonal
area for native plant restoration, then the only reason for the closure is bank
swallow protection. In that case, the
closure should be limited to the extent necessary for protecting the bank
swallows, which the Park Service biologist thinks could be done without closing
the such a large closure. Deposition of
Daphne Hatch, 58:2-6, attached as Exhibit G.
Similarly,
the Park Service has been inconsistent concerning its plans regarding the
Sunset Trail. After the paved trail was
removed earlier this year, representatives of the Park Service informed the
public that the trail was closed permanently and the Park Service would not
respond to requests from the public to explain why this most popular trail was
being eliminated rather than simply repairing the small erosion area. Hence, plaintiffs sought injunctive relief
to restrain the Park Service from further destroying the trail or other
benches. Now, the Park Service
indicates that it is in the process of considering the issue and has not yet
decided how it will restore the trail, but confirms that it is not intending to
eliminate the trail. Given the new
posture of the Park Service after the filing of this action, plaintiffs presume
an explanation will be given by the Park Service and that public input will be
allowed before further changes.
Therefore, the need for relief at the preliminary injunction stage to
protect against the previously planned closure is now moot.
6. Defendants= Citation to 36 C.F.R. ' 2.15 Is Inapposite
Defendants
and Intervener Audubon Society each refer to the general provisions of 36
C.F.R. ' 2.15, which has been applied in other
national parks, but is inapplicable to the special recreation park at issue in
this case. Even were it applicable to
Fort Funston, 36 C.F.R. ' 2.15 is irrelevant to the public access and closure issues of this
litigation. Plaintiffs are injured by
the closure of access to the certain recreational areas of Fort Funston and by
damage to the aesthetic quality of the park, regardless of whether their dogs
happen to be leashed at the time, or whether they happen to have their dogs
with them at all. As stated in
deposition by plaintiff Marion Cardinal, Awhat bothers me is that I=m not able to walk with or without a leash. I mean, I can=t walk there at all.@ Cardinal Deposition, 38:22-24, Exhibit C. Surely, the additional aspect of restriction of off-leash
activity would be a significant alteration of public use of this park -- the
most popular off-leash park in the Bay Area -- but it is not an issue in this
case.
Plaintiffs
believe the applicability of 36 C.F.R. ' 2.15 is not relevant nor appropriate for briefing at this preliminary
injunction stage, and reserve and request the right to brief the details of
that issue at the appropriate time.
Plaintiffs point out that the regulation preceding ' 2.15 (36 C.F.R. ' 2.8) was enacted in 1966, and was the
operative and controlling regulation at the time Fort Funston was included in
GGNRA.
II. Defendants Misstate the Standard of Review
Defendants
in their opening brief and in an Objection filed on April 7, 2000, contend that
this Court=s review under the Administrative Procedures
Act is limited to the administrative record.
Defendants are wrong. The
appropriate scope of review for a preliminary injunction determination at issue
is not so limited. The focus of the
preliminary injunction consideration is balancing the potential harms to the
parties to determine the best way to maintain the status quo while avoiding
irreparable injury in the interim pending the permanent injunction
hearing. There is no sound reason to
limit such a broad equitable consideration to a restrictive standard for
ultimate administrative review.
Moreover,
the gravamen here is whether the closure is so highly controversial or such a
significant alteration of public use that the Park Service should be required
to engage in rulemaking. The issue at
this stage is not whether the Park Service=s action turned out to be the correct decision. Therefore, the review at the first stage of
analysis -- interim relief to preserve the status quo, or even at the second
stage of analysis -- whether rulemaking is required, should not be limited to
the administrative record. And if it
were, it would not appropriately be limited to the Administrative Record as
proposed by defendants.
Further,
it is noted that the five boxes of documents provided as the AAdministrative Record@ were of questionable relevance to the key
issues of whether the closure is highly controversial or a significant
alteration of public use. Rather, many
of the more relevant documents were contained in the sixth box of documents
produced in discovery, but not contained in the AAdministrative Record.@
Even to
the extent that eventual review of the merits of the closure might be limited
to the administrative record, this record must be supplemented pursuant to at
least two of the recognized exceptions.
When reviewing agency actions, courts consider materials outside the
administrative record in at least four circumstances: If necessary to determine
whether the agency has considered all relevant factors and has explained its
decision, when the agency has relied on documents not in the record, when
supplementing the record is necessary to explain technical terms or complex
subject matter, or when plaintiffs make a showing of agency bad faith. Northeast Environmental Center v.
Glickman, 136 F.3d 660, 665 (9th Cir. 1998): Animal Defense
Council v. Hodel, 840 F.2d 1432, 1436-1438 (9th Cir. 1988).
When
there is a need to supplement the record to explain agency action, thereby
applying the first exception above, the preferred procedure is to remand to the
agency and request amplification of the record. Public Power Council v. Pacific Power & Light Co., 674
F.2d 791, 794 (9th Cir. 1982).
The court Amay
obtain from the agency, through affidavits or testimony, additional
explanations for the agency=s decisions.@ Friends of the Payette v. Horseshoe Bend
Hydroelectric Co., 988 F.2d 989, 997 (9th Cir. 1993); Animal
Defense Council, 840 F.2d at 1436.
The court, however, also may explore evidence submitted by the
plaintiffs. Hells Canyon
Preservation Council v. Jacoby, 9 F. Supp. 2d 1216, 1223 (D.Or. 1998).
Based on
the above, review of the extra-record items submitted by plaintiffs is
necessary for this Court to determine whether defendants have considered all
relevant factors and explained the closure decision. The declarations at PEB003-PEB048 explain, among other things,
plaintiffs= use of the closed land, the 1995 closures
which serve as a basis for this highly controversial closure, and the damage to
the aesthetics at Fort Funston caused by this closure. The declaration at PEB049 goes to the
credibility of Daphne Hatch, who testified that devices had been installed on
fence posts to deter predators of the bank swallows. The declaration at PEB055 is offered to cast doubt on the
justifications offered by defendants in support of the closure.
Excerpts
of Sharon Farrell=s
deposition transcript are necessary to establish when the project first was
contemplated, when the grant request was submitted, and the involvement of the
Native Plant Society early in the planning process. Excerpts of Daphne Hatch=s deposition transcript are necessary to establish the meeting date
with Ron Schlorff, that Mr. Schlorff never responded to GGNRA=s explicit requests for a letter supporting
the closure, that a flyover area is not necessary for bank swallow protection,
and her prior recommendation for protecting the bank swallows. A portion of Mary Gibson Scott=s deposition transcript is offered to show
that defendants never analyzed the public use patterns of the land that was
closed.
The
transcript from the TRO hearing on March 14, 2000 is offered to demonstrate
defendants= continuing pattern of not being forthcoming
regarding details of the closure. The
surveys at PEB155 are offered to show that the only surveys which were
conducted actually did not reflect public use patterns of Fort Funston. Last, the letters at PEB159 are offered as
relevant with respect to the controversial nature of the closure in issue.
Regarding
the bad faith exception, plaintiffs maintain that the administrative record
amply demonstrates defendants= bad faith in planning the closure in secret, without any public input,
all along knowing of its highly controversial nature, then executing their plan
with quiet speed in the face of mounting public outcry. Plaintiffs= declarations amplify this existing record of defendants= bad faith by explaining the events surrounding the 1995 closures and
by demonstrating defendants= lack of forthrightness while explaining to plaintiffs the closure in
issue.
III. Plaintiffs Have Standing
As stated above, plaintiffs Marion Cardinal and Florence Sarrett each
testified that their access to Fort Funston is limited and the aesthetics are
affected by the recent changes. The declarations of Lee Walker, John
Cranshaw, and others also set forth clearly the effects of the closure.
A[A]esthetic and recreational interests, as a general matter, are
cognizable for standing purposes.
Indeed the Supreme Court has left no room for debate on that issue.@ Edmonds
Institute v. Babbitt, 42 F. Supp. 2d 1, 23 (D.D.C. 1999). The Edmonds opinion also concludes
that Athere is no support . . . for the argument
that an actual injury will not give rise to standing if it comes in small doses
or if a defendant considers it to be insignificant.@ Id.
5 U.S.C. ' 702
grants federal court standing to any Aperson suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of the relevant
statute.@ Citizen groups such as the plaintiff groups
also have standing to allege aesthetic and ecological injuries resulting from
the changes made to the park where the members spend their leisure time. Port of Astoria v. Hodel 595 F.2d
467, 476 (9th Cir. 1979).
An organization also establishes injury if it is injured in its activities
and its resources are drained or it challenges purportedly illegal action
which increases the resources the group must devote. Havens Realty Corp. v. Coleman, 455
U.S. 363, 378-379 (1982); El Rescate Legal Services, Inc. v. Executive
Office of Immigration Review 959 F.2d 742, 748 (9th Cir. 1992).
Clearly, both Ft. Funston Dog Walkers and SFDOG have devoted substantial
resources to attempting to get public input into the closure decisions.