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............