Meeting of the Finance and Labor Committee, Board of Supervisors
City Hall, October 25, 2000
Response from City Attorney’s Office to Questions Posed by Supervisor Leland Yee
Mary Red [clerk]:
Item number 6 [on the agenda] is a hearing to consider the National Park Service’s closure of open space at Fort Funston, which has resulted in a reduction in land available for dog walking and other recreational uses by residents.
Leland Yee:
All right, thank you very much, Ms. Red. Let me just simply say that this hearing is a continuance of an earlier hearing whereby the Finance Committee wanted to get into the issue of the changes that are ongoing at Fort Funston. I think that it became pretty clear that the Fort Funston property is not something that is wholly owned by the Park Service. It came about because of the people of San Francisco conveying that property to the National Park Service, the GGNRA. And so out of that I think that there have been some questions raised about the activities that are going on out there, particularly the closing of much of the public space area, and as a result the hearing was held and there were some questions that were raised about the jurisdiction that we have over that piece of property, even though we have conveyed that to the National Park Service.
And so I think the City Attorney has conducted its review and if I can get the City Attorney to come to the podium and provide an assessment of what they have found. Thank you very much.
Miriam Morley:
Good morning, supervisors. Miriam Morley from the City Attorney’s office.
Supervisor Yee had asked our office to describe the terms and conditions that govern the National Park Service’s management of Fort Funston based both on the agreements with the City and any relevant laws.
The deed that transferred the land at Fort Funston from the City to the United States restricts use of that land to park or recreational purposes. In addition, an agreement that the parties entered into contemporaneously requires the GGNRA to submit its construction plans for that land to the City’s planning department for review and comment.
The statutes that govern the National Park Service’s management of the land are the Organic Act and the GGNRA’s implementing legislation. Those require that the National Park Service manage its lands to protect natural resources and to preserve scenic values for future generations. The GGNRA Act requires the GGNRA to manage the land to provide for recreational and educational opportunities and at the same time to preserve the land in its natural setting, and again to preserve resources and scenic values.
Supervisor Yee has also asked us what control and authority the City has over activities and procedures at Fort Funston.
The National Park Service is not required to bring to the City its use and management decisions, but it is required to manage the land consistent with recreation and park purposes, and again it is required to bring its construction plans to the City’s planning department.
You have also asked us whether environmental concerns – specifically protection of endangered species and native plant species – are an adequate basis for closing portions of Fort Funston. There is a federal regulation that permits the GGNRA to close portions of its parks upon a finding that that closure is necessary to protect natural resources or is necessary to protect environmental resources.
We have not answered today whether this closure would be upheld by a court under federal law, and the reason for that is that the GGNRA has not yet issued its final rule. It has received comment from the public, apparently over 1500 comments received that the GGNRA reports is thousands of pages. They expect to send this decision to their advisory commission [sic] on November 28, and GGNRA expects to make its decision in early December.
GGNRA may, at the time it makes its decision, comment on the comments that it received. That is a fairly common practice.
We have told you in our memo that when a court reviews, under federal law, the decision on closure, it will defer to the agency’s decision. It will look at the administrative record and see if there is a rational and ample basis for that determination, but it will allow the agency to weigh conflicting evidence and decide what weight it should be accorded.
Our conclusion is that in reviewing a challenge to the final rule based on the deed restriction, that a court is likely to apply that same standard; in other words to look at the rule and see if it was necessary to protect the species or not.
Finally, you’ve asked us if there is a violation of the deed restriction, what are our remedies. And first of all, the City does have the right to enforce its deed restriction and could do so in an action for injunctive relief. And we also believe there is substantial evidence to conclude that the parties did intend the deed restriction to create a right of reversion allowing the City to seek forfeiture of title from the United States in the event of a breach of the deed restriction.
Leland Yee:
All right, let me ask you this question: clearly one of the tenets of the conveyance document was that the National Park Service maintain that property – the Fort Funston property – for recreational purposes. So that if it is our conclusion, the City’s conclusion/determination/finding, that in fact the closing of that acreage at Fort Funston constitutes non-recreational purposes, or prevents the use of that space for recreational purposes, would that be a basis for us to then challenge their management of the property and to ask that that piece of property revert back to the City?
Miriam Morley:
If the City did conclude that the GGNRA’s action in closing areas of the park actually constituted a violation of the deed restriction that limits use of the park to park or recreational purposes, then indeed we could seek reversion of the land from the GGNRA.
Leland Yee:
All right. Do you have any more comments? [answered no] Before we ask you to take certain actions and so on, why don’t we open up to public comments and see what we hear from the public, and then we’ll make some final determination. President Ammiano, do you have any other comments [answered no].
All right, those individuals who would like to comment on this particular item, if you would like to do that, please come up to the podium, state your name, and two minutes please.
Nathan Winograd:
Nathan Winograd for the San Francisco SPCA. I can’t thank you enough for your interest and involvement in this issue.
We haven’t had a chance to fully digest the City Attorney’s position. I do agree that on the issue of the legitimacy of any closure, a federal court will ultimately decide the issue, and I have also no doubt that the National Park Service will close the area despite the overwhelming evidence against the closure, which included our 75-page brief including over 600 pages of appendices, which proves beyond a doubt that the National Park Service has violated the unique GGNRA-specific principles upon which the park was given to the federal government and those governing its recreational and land use mandates.
I would ask this committee to pass a resolution alongside the resolution of Supervisor Mabel Teng that asks our Congressional delegation for a federal bill to share jurisdiction with the City and County of San Francisco. When the citizens of San Francisco approved Proposition F granting jurisdiction to the federal government, we were specifically promised by Dianne Feinstein, by then Speaker of the Assembly Willie Brown, and by Mayor Alioto that our interests would be protected so that “the bureaucrats would not run over the people.” In fact Mayor Alioto vetoed the transfer twice on that basis and the Board of Supervisors passed a resolution asking for shared jurisdiction.
The bureaucrats have run over us, and we should insist on our right to a democratic process.
Thank you.
[applause]
Roulhac Garn:
Your honors, my name is Roulhac Garn. I was at the last hearing. And I would like to have you examine the fact that in addition to seeking a reverter of the property at Fort Funston, I believe the City Attorney also concluded that you could sue to enforce the restriction and have the Park Service open up the land; instead of taking the property back, actually make them allow us to use the property as it was originally intended. And I’d encourage you to do so.
Thank you.
John Keating:
Good morning. John Keating. I was also here at the prior hearing.
Two comments:
The Park Service is beyond the political pressure of the people. They are not responsive. And that is one of the reasons why the City’s power is so important in this case. Normally in that circumstance you have the power of the courts to protect the people. But as the City Attorney’s office just indicated, there is tremendous deference in such matters. And that again is why the City’s power to protect the people is so important.
The opinion of the City Attorney talks about the second aspect, which is the right of the City to have a view of construction activities. What is going on out there is massive amounts of physical changes to the property. They are building fences, they’re ripping out pavement that the disabled and seniors use. That would seem by any definition to be construction.
I want to say personally that I see disabled people, seniors out there, including my father, in a wheelchair . I want to say that when I was growing up my father, who had polio, introduced me to the Park Service. He took two kids out to national parks all over the country, made us environmentalists, made us care for the world, took these city boys out and made us care for the world. I worked with inner city outings for the Sierra Club, taking inner city people out on outings, and it’s my fundamental belief that unless you provide abilities for people to get out to the park, disabled people included, you don’t allow the environmentalism to continue. I would like an opportunity to take my father out to a semi-wilderness area and see this on a disabled access path. I’d like to be able to pay him back for his wonderful help to me.
Thank you.
[applause]
Leland Yee:
Thank you very much. Any other public comments on this item? All right, hearing none, if the City Attorney could come back to the podium and let me ask you one other question.
I think there was an issue raised as to whether or not, instead of exercising the reverter clause, that we ask that the National Park Service just simply open up the closed space right now. Do you have any comments on that?
Miriam Morley:
Yes. In the event of a breach of the condition limiting use to park or recreational purposes, the City, rather than seeking reversion of the property, could sue to enjoin the Park Service, to require them to comply with that restriction and if these closures are a breach of that restriction, then the City could sue to stop the Park Service from closing these areas or to reopen them.
Leland Yee:
Now, when will the National Park Service make a final determination about their plans?
Miriam Morley:
Their public affairs office has told us that they would do so in the first week of December.
Leland Yee:
Okay. Why don’t you do this – on behalf of the Finance Committee, and I will introduce a resolution codifying, I think, what I’m asking on behalf of the Finance Committee, codifying it as an action of the full Board – and that is, that you convey to the National Park Service our desire for them to submit the appropriate plans for whatever construction that they have taken and that they do anticipate out at Fort Funston, and that they appear before the Planning Commission for a full explanation of what they plan to do.
Secondly, to ask that they explain to us as to how the closing of the various acreage in the Fort Funston area does not constitute the tenets of the conveyance document, particularly the issue of recreational use, and that we will then take further action if it is determined that their activity constitutes a breach of our conveyance agreement with them.
If you can execute that document on behalf of the Finance Committee, and I will do that at the full Board on behalf of the entire Board of Supervisors.
Miriam Morley:
Yes.
[applause]
Leland Yee:
All right. With that, then, City Attorney, I do plan to then hold another hearing in anticipation of what their decisions might be, in November – is that when they are going to be meeting again?
Miriam Morley:
Their Advisory Commission will be in November and they are going to make a recommendation to the GGNRA …. GGNRA should publish their rule in the Federal Register….
Leland Yee:
All right. Then we’ll plan the next hearing around those dates then. President Ammiano?
Tom Ammiano:
Yeah, I just want to commend you, supervisor, for your longstanding involvement in this issue and also the deliberative process by which we’ve arrived at these agendas, and the work with the City Attorney – you’re the man!
[laughter and strong applause]
Leland Yee:
Thank you very much. All right, with that, if we could simply continue this item to the call of the chair. Thank you very much, President Ammiano.
Transcribed by Vicki Tiernan.