Fort
Funston Forum
Friday,
October 6, 2000
to
Front Page
to
Second Section
see Section
One for News on the re-opening of the closed areas!
COURT REPORT
This section
includes briefs and rulings in the federal case.
JUDGE RULES:
OPEN CLOSURE AREAS IN AUGUST!
*****
SUMMARY
of MAY 16 PRELIMINARY INJUNCTION:
The
very favorable Preliminary Injunction ruling from Judge Alsup: Upon
the end of the "emergency" [when the bank swallows leave] defendants
are ordered (1) to leave the gates open in the seasonal area, and (2)
install gates to the permanent closure area so as to allow access to
the gap and the beach via the gap. Otherwise, the fences may remain
in place with the gates open pending final judgment. The Park Service
may apply to dissolve or modify the preliminary injunction at such time
as the Park Service complies with the 36 CFR 1.5 public notice and comment
requirement. The Judge expressed the further comment that if the Park
Service did not go through the rulemaking process of public notice and
comment, "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."
FULL TEXT OF MAY 16 PRELIMINARY INJUNCTION:
FILED: MAY 16 2000 4:23 PM
IN THE UNITED STATES DISTRICT COURT
FOR THE 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.
____________________________________/
Based
on the Court's findings of fact and conclusions of law dated April 23,
2000, the Court enters the following preliminary injunction against
defendants:
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. 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 Park 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.
Dated:
May 16, 2000.
[Signed]
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
[
from Thursday, May 11, 2000 ]
EDITORIAL:
The Golden Gate Audubon Society's remedy reply brief, below, seems
at pains to retract any implication from earlier statements that a fence
along the cliffs would be acceptable. And, although it does not claim that
there is any nesting activity along the seasonal closure cliffs now,
it states that this could occur until mid-May.
But when's mid-May... within the next week ! It seems unlikely
by now that burrows will appear beneath the seasonal closure area, making
its closure on an emergency basis without publication or comment questionable,
perhaps even "arbitrary and capricious."
Yet, in
a telling section, the brief states: "At any future hearing challenging
the emergency closure, plaintiffs would have to challenge the expert opinion
of the Park Service, the California Department of Fish and Game, and intervenor's
[Audubon's] experts." The implication and threat is that, regardless
of whether there is any nesting activity in the seasonal area, experts'
support for the "emergency" closure has already been lined up.
This is reminiscent of the e-mail from last October in which a Park Service
employee wrote a Fish and Game expert, trying to specify the wording of
what the expert should say in his report: that the decline in the bank swallows
was due to "recreational impacts."
The simple
observation that there don't seem to be nesting bank swallows in the seasonal
area (from the dogwalkers' remedy brief) brought about a howl of protest
from both the government and Audubon in their replies: "irrelevant,
incompetent, speculative, and should be stricken," said the government,
while Audubon hurled charges such as, "presumptuous", "irresponsible",
"bold", and "hubris"! Perhaps they are
speaking of only procedural issues, but it does seem they doth protest too
much the fact that non-experts can readily see that there isn't, there wasn't,
and in the next week there likely ain't gonna be the need for the emergency
closure which U.S. District Court Judge William Alsup on April 14th declared
"a complete end-run around this lawsuit."
-
Michael B. Goldstein, Editor
Fort
Funston Forum is an independent publication. The opinions
expressed are those of the editor and identified writers, and are specifically
not presented here as the opinions of any other person or organization
involved with current issues at Fort Funston. -
Michael B. Goldstein, Editor
GOLDEN GATE AUDUBON SOCIETY'S REMEDY
REPLY BRIEF
May 9, 2000
in reply to the dogwalkers'
remedy brief filed on May 4th (also below).
TO PRINT: Click
here for a standalone version of just the brief.
CALIFORNIA ENVIRONMENTAL LAW PROJECT
LAURENS H. SILVER, Esq. # 55339
302 Sycamore Street
Mill Valley, CA 94941
Tel: (415) 383-5688 Fax: (415) 383-7995
KELLY L. DRUMM, Esq. # 172767
1168 Dolores Street
San Francisco, CA 94110<
Tel: (415) 826-9067 Fax: (415) 826-9421
Attorneys for Proposed Intervenor
Golden Gate Audubon Society
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
|
FORT FUNSTON DOG WALKERS, an
Unincorporated Membership Organization;
SF DOG, a California limited Partnership, LINDA MCKAY an Individual; FLORENCE SARRETT, An Individual; LINDSAY KEFAUVER,
an Individual; and MARION CARDINAL,
an Individual,
|
Plaintiffs,
V.
|
INTERVENOR/DEFENDANT
GOLDEN GATE AUDUBON
SOCIETY'S REPLY
MEMORANDUM RE:
PROVISIONAL REMEDY
PENDING DETERMINATION
ON THE MERITS
|
|
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.
|
Hearing Date:
Courtroom
9
Hon.
Judge Alsup
|
GOLDEN GATE AUDUBON SOCIETY, a
California Non-profit Membership Organization,
Intervenor/Defendant.
Intervenor/Defendant
Golden Gate Audubon Society sharply takes issue with
plaintiffs' request for provisional relief. Plaintiffs totally ignore this
Court's statement in its Findings of Fact and Conclusions of Law Regarding
Probability of Success and Irreparable Injury, filed April 25, 2000, that:
"Because
the
National Park Service has declared an emergency upon the recent arrival
of the bank swallows,
no injunction will become effective until August upon their annual
departure or until further
proceedings and determination as to the validity of its emergency declaration
or its scope."
Plaintiffs
seek instead immediate reopening of the closed areas to off-leash dog walking,
and as well, removal of the fences and any other barriers to entry to the
areas
subject to the
Park Service's emergency closure. Submitting a declaration that the Bank
Swallows, who have just recently arrived, have not nested further south
than they did last year, plaintiffs de facto attack the necessity
and validity of the emergency closure.
Plaintiffs
have not amended their complaint, and this Court has held no hearing at
which defendants or intervenors have had an opportunity to justify and defend
the emergency closure. Certainly, even if plaintiffs had put on competent
evidence and stated a claim asking the Court to review the closure under
the arbitrary and capricious standard, they would have a heavy burden to
bear in view of the fact that the emergency closure is to protect a state-listed
threatened species.
In City of
Las Vegas vs. Lujan, 891 F.2d 927 (D.C. Cir. 1989) the Court held
the Secretary of Interior's emergency listing of the Mojave Desert population
of desert tortoise due to upper respiratory infection was owed substantial
deference. Emergency actions to protect endangered species and/or their
habitat "contemplate a somewhat less rigorous process of investigation and
explanation," Id, 891 F.2d at 392. The Court held, with respect to the emergency
powers of the Secretary under the Endangered Species Act, 16 U.S.C.§ 1533,
that "whatever quantum of data the Secretary must possess to issue an emergency
regulation, it need not rise to the level of 'substantial evidence' - or
at least that the Secretary would not inquire as thoroughly at the emergency
listing stage." Id. The Court specifically endorsed the power
of the Secretary, through an emergency listing, to act "prophylactically"
("...the danger of the epidemic spreading to Nevada is sufficient justification
for including Nevada's tortoises in the emergency listing, he need not wait
until the epidemic crosses the California-Nevada border.") Id., at
933.
The. Park Service's
emergency closure to protect Bank Swallows at Fort Funston was made by memorandum
dated April 12, 2000. That memorandum recites that:
"Bank swallows have been nesting at Ft. Funston
since at least 1972
[ The emergency closure memorandum
actually said "at least since 1927" rather than
1972 - Editor, Fort Funston Forum.] and typically
arrive in late March or early April. On April 11, 2000, bank swallows
were observed in the vicinity of the seasonal closure area. In consultation
with the California Department of Fish and Game and the Audubon
Society (attached hereto), and based upon the NPS guidance requiring
protection of special status species (NPS Management Policies, Chapter
4, and NPS-77) and the determination contained in the March 3, 2000
memorandum, the park has determined that an emergency situation
exists that requires closure of the seasonal closure area at Ft.
Funston in order to protect the habitat of the state threatened
bank swallow. Accordingly, the seasonal area was gated and closed
to public access on April 12, 2000, at approximately 9:00 a.m."
Given the
bold sweep and hubris of plaintiffs' claims for preliminary injunctive relief,
intervenors attach the declaration of Dan Murphy, who has recently visited
the nesting site. The declaration concludes that the swallows are currently
still seeking out nesting sites, and it is too early to make any conclusions
concerning nesting range for this year. It is presumptuous and irresponsible
for plaintiffs to be seeking relief with respect to a claim not in issue
before the court -- the validity of the emergency closure. Intervenor Golden
Gate Audubon Society believes that given this Court's April 25, 2000, Findings
of Fact and Conclusions of Law Regarding Probability of Success and Irreparable
Injury, quoted above, this Court should not consider any relief that
would result in any change or alteration of the emergency closure.
At any future
hearing challenging the emergency closure, plaintiffs would have to challenge
the expert opinion of the Park Service, the California Department of Fish
and Game, and intervenor's experts. As pointed out in the Declaration of
Dan Murphy, filed concurrently with this brief, neither at the site visit,
nor at any other time, has Golden Gate Audubon Society agreed that a fence
thirty-feet from the bluff edge would be sufficient to protect bank swallows
for all purposes. See Declaration of Dan Murphy re: Site Visit
at Ft Funston, ¶¶9-10. Though such a fence might be helpful in reducing
disturbances impinging on nesting activities on the cliff face below, it
would not be adequate to protect against erosion or to protect the Bank
Swallows engaging in nest-foraging activities on top of the cliffs. See
Declaration of Dan Murphy re: Site Visit at Ft. Funston, ¶¶9-10. In any
event, under applicable law, the Park Service is entitled to, in the context
of an emergency closure, to act prophylactically
to abate any potential at adverse effects to the colony with respect to
nesting. It need not choose the minimum degree of protection. It may, as
it has done, relying on the opinions of its experts, the California Department
of Fish and Game and Audubon, provide more than the minimal amount of protection.
Plaintiffs have produced no experts and have only advanced "testimony" of
their attorneys who are profligate with opinions, advanced in the interest
of their clients, about what is adequate protection for the swallows in
light of the desire of their clients to resume off-leash dog walking in
the area.
As pointed
out in intervenor's opening brief on this issue, as a matter of law and
application of equitable principles, plaintiffs are at best,
eligible for only preliminary declaratory relief. If this Court issues any
injunctive relief pending Park Service rule-making on closures, it has a
legal obligation to limit public access to the area only to such activities
as are lawful under current regulations applicable to Fort Funston.
Under such regulations, only walking dogs on leash on designated roads or
trails is permitted. See 36 C.F.R. 2.15. Therefore, any injunction allowing
interim access to the closed areas after August should limit use of the
area to on-leash dog walking in designated, signed roads and trails.
Dated. May 9, 2000
|
Respectfully submitted,
CALIFORNIA ENVIRONMENTAL LAW
PROJECT
By:
Laurens H. Silver
Kelly L. Drumm [Signed]
|
CALIFORNIA ENVIRONMENTAL LAW PROJECT
LAURENS H. SILVER, Esq. # 55339
302 Sycamore Street
Mill Valley, CA 94941
Tel: (415) 383-5688 Fax: (415) 383-7995
KELLY L. DRUMM, Esq. # 172767
1168 Dolores Street
San Francisco, CA 94110<
Tel: (415) 826-9067 Fax: (415) 826-9421
Attorneys for Proposed Intervenor
Golden Gate Audubon Society
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
|
FORT FUNSTON DOG WALKERS, an
Unincorporated Membership Organization;
SF DOG, 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
DAN MURPHY RE: SITE
VISIT AT FORT FUNSTON
IN SUPPORT OF AUDUBON
SOCIETY'S MEMORANDUM
RE: PROVISIONAL REMEDY
|
|
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 Non-profit Membership Organization,
Intervenor/Defendant.
|
Hearing Date: None set
Courtroom
9
Hon.
Judge Alsup
|
I, Daniel P, Murphy, under penalty of perjury do
hereby declare:
1. I
am a former Board member, past president and am presently a member of the
conservation committee for the Golden Gate Audubon Society, and am authorized
to make this
declaration on its behalf. I am also a field trip leader for Golden Gate
Audubon and have led trips
to Fort Funston to observe the Bank Swallow Colony, as well as other bird
species. I am also an
experienced birder, conservationist and environmental educator with extensive
experience leading
bird-watching
fieldtrips, and have published numerous papers on the topic of birding.
See Addendum,
attached to Declaration of D. Motion in
Support of Ex
Parte Application of
Golden Gate Audubon
to Intervene.
2. On
May 8, 2000 between approximately 5:00 6:05 p.m. I made a site visit to
Ft. Funston for
the purpose of observing the Bank Swallows. During my visit I filled out
a "Bank Swallow
Daily Summary
Sheet," which
is provided by the
Park Service for purposes of
monitoring Bank Swallow activity during nesting season. See Exhibit
A, attached hereto, for a
copy of the Park
Service's 'Bank Swallow
Daily Summary
Sheet " See also USO4855 and PEB154
for a filled out copy of the Summary Sheet from 6/2/1996.
3. The
Bank Swallow
Daily Summary
Sheet identifies
four separate areas for
purposes of identifying
Bank Swallow burrows. Area 1 is identified as
extending from the
"North End to the Gap," the "North End" being
the area by the parking lot at the
north end of
the park (approximately
west of the
Wastewater Treatment
Plant and north
of the area
previously
closed by the Park Service in 1995 for swallow protection)
and the "Gap" as
being the area in between the
previously closed (1995) swallow
protection area and
the new (year
2000) permanent
closure area.
Area 2 is identified
as extending from the "Gap to
Gunmount" with the "Gunmount" being the gunmount
which
has fallen off
of the
edge of
the bluff
top
and
located immediately
below the permanent closure area and north of the seasonal closure area.
Area 3 is identified as extending from the "Gunmount to Panama Point." "Panama
Point" is almost directly below the boundary between the permanent closure
area and the seasonal closure area. Lastly, Area 4 is identified as extending
from "Panama Point to the Beach Access." The "Beach Access" is the
Park Service designated trail that leads to the beach from the bluff top
and runs approximately west of the "Y" in the Battery Davis trail. The Beach
Access is south of the seasonal closure area.
4. During
my site visit I observed a total of 80 burrows, 59 of which appeared active
(i.e., evidence
of excrement or signs of new digging activity) in Area 2 (Gap to Gunmount).
I observed Bank Swallows nesting within or performing nesting activities
around 28 of the burrows. These 80 burrows are located at approximately
the same site as last year's burrows (those of which survived the winter
storms) and have extended slightly northward. Last season's nesting site
extended from an area south of the Gap to an area slightly north of the
Gunmount.
5. In
addition, I observed a new nesting site further south of the above-described
location of the 80 burrows, which appears to be forming directly above the
Gunmount, just north
of the seasonal closure area. I observed 2 burrows at this new location,
in one of which I
observed a pair of nesting Bank Swallows.
6. I
also observed at least 5 Bank Swallows flying over Panama Point and appeared
to be collecting nesting material.
7. I
observed Bank Swallows digging two new burrows today, which in my experience
means that the Bank Swallows are still continuing to arrive. Based upon
my experience, Bank Swallows will continue to arrive at Ft. Funston until
mid-May, and as such, the
extent to which the nesting activity will extend further south -- towards
and possibly into
the seasonal closure area -- is not yet known.
8. I
also observed for the first time in my experience of viewing Bank Swallows
at Ft. Funston, Bank Swallows collecting dead roots from the top of the
bluffs above the permanent closure area, an activity different from the
Bank Swallow's usual practice of collecting nesting materials from the beach.
9. While
it is true that I stated at this Court's site visit to Ft. Funston that
a fence 30-feet away from the cliff edge would protect the nesting Bank
Swallows, I qualified that statement by stating that it was unknown whether
and to what extent the Bank Swallows derived additional benefit from having
the buffer area presently provided by the Park Service in the seasonal and
permanent closure areas. In light of the new activity I observed during
my site visit (described
in ¶9), I believe the permanent closure area should remain closed for use
by plaintiffs and the general public. This is because any new disturbances
in the permanent closure area, either by dogs or people, may discourage
the continued and expanded use of the permanent closure area for nest building
purposes by the Bank Swallows.
10. It
is also my opinion that all of the seasonal and permanent closure area should
remain closed to public use in order to prevent further bluff erosion so
as to ensure the existence habitat
for
the Bank Swallows in the future. I in no way intended for my statement made
at the Court's site visit to Ft. Funston that Bank Swallows would be protected
by the implementation of a fence 30-feet back from the edge of the bluffs
to indicate that I did not support the Park Service's decision to close
the seasonal and permanent closure areas to public use and off-leash dog
walking. Both I and Golden Gate Audubon Society continue to support the
Park Service's closure decision.
I
declare under penalty
of perjury that the foregoing is true and correct. Executed this 9th day
of May, 2000, in the city and county of San Francisco, California.
|
[Signed]
Daniel P. Murphy
San Francisco, CA
|
GOVERNMENT'S REMEDY REPLY
BRIEF
May 9, 2000
TO PRINT:
Click here for a standalone
version of just the brief.
Note:
Converting an analog document to digital, and then on to the Web is a considerable
task, particularly if one is concerned about reproducing the document precisely
as it was filed in federal court. This brief appears to have a dozen errors
as filed. These involve spelling, grammar, missing or extra words, etc.
It is not the intent of this website to highlight others' errors. On the
other hand, if these errors were left un-noted, the reader might well have
the impression that they were the result of a hasty publication and the
lack of adequate comparison to the original (which is available for public
review at the U.S. District Court, Federal Building, San Francisco.) For
that reason, these perceived errors are shown in red
font color here.
ROBERT S. MUELLER, III (SBN 59775)
United States Attorney
CHARLES M. O'CONNOR (SBN 56320)
Assistant United States Attorney
Chief, Environment & Natural Resources Unit
450
Golden Gate Avenue - P.O. Box 36055
San Francisco, California 94102
Telephone (415) 436-7180
Facsimile (415) 436-6748
Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
|
FORT FUNSTON DOG WALKERS, a
membership organization; SF DOG, a California limited partnership;
Linda McKay, an individual; Florence Sarrett,an individual;
Lindsay Kefauver, an individual; and Marion Cardinal, an individual,
|
Plaintiffs,
V.
|
DEFENDANTS' REPLY BRIEF
ON THE ISSUE OF REMEDY
|
|
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.
This
brief is filed in reply to Plaintiffs' Memorandum Re: Provisional Remedy
Pending Determination on the Merits ("P Memo"). Pending a
determination on the merits, the remedy sought by plaintiffs is apparently
"nothing short of removing all the recently installed fences." P Memo,
at 7:10-13. However, plaintiffs allow that a temporary sort of "remedy
which allows plaintiffs to use the land without removal of the fences
may be appropriate," but they do not select or endorse a particular
method to accomplish that objective. Id. at 7:14-15. To fully
confuse their position, plaintiffs also "urge the Park Service
to install appropriate
fences or employ other
measures
to assure protection of the bank swallows if the fences are removed.."
Id. at 7:13-14.
Defendants
have already completed their plan "to install the appropriate fences...
to assure protection of the bank swallows," including protection
of their habitat, by slowing erosion and restoring the native plants.
In addition, the fences protect public safety, e.g., prevention of dogs
and their owners falling from the cliffs. In the course of defendants'
planning, they modified the project by changing the location of the
fences and altering the annual time of closure for about half of the
area from permanent to seasonal, to accommodate plaintiffs' interests.
Having done what was necessary for the park, with modifications in response
to the plaintiffs' objections, the defendants were sued by plaintiffs,
and they are now urging the Court to order
that the fences that protect the swallows and other resources
be removed. In view of the forgoing, and inasmuch as the Park Service
is the agency charged with the protection of the resources of the park,
the Court should not at this preliminary stage of the case try to invent
a new remedy that involves movement and/or removal of the current fences.
Moreover, in this review of agency administrative action, the Court
can order remand to the Park Service for compliance with any perceived
procedural defects, but it cannot and should not order a particular
action by defendants, such as removal of the fence
or modification of its location. Finally, this matter is before the
Court on plaintiffs' motion for preliminary injunction. The injunctive
relief requested by plaintiffs as a remedy at this stage of the case
goes far beyond preliminary relief and seeks the type of relief this
Court should consider only when considering the merits
a permanent injunction. Therefore, the Court should deny the
preliminary injunctive relief described in and sought by the Plaintiffs'
Memorandum.
Plaintiffs contend that the status quo
here is to "return" the closed area in question to its condition prior
to the closure. Plaintiffs are mistaken. The status quo in
this case was the condition of the property, including the fences, at
the time the Complaint was filed, not the time prior to the installation
of the fences At the time of the hearing on the motion for TRO, the
perimeter fence surrounding newly closed area was already complete.
Recognizing that fact and the need for the fencing, the Court specifically
authorized the defendants to complete the divisional fence between the
seasonal and permanently closed portions. Therefore, based on these
facts, none of the fences should be moved or removed as part of the
Court's ruling on the motion for preliminary injunction. Movement or
removal of the fences can be pursued on the merits by plaintiffs, but
not at the preliminary injunctive stage.
Plaintiffs' brief misses the mark as
to the injunctive relief available at this preliminary stage of the
proceedings. It also misconstrues and mis-characterizes the facts and
the nature of the procedure to be applied to this administrative action
and the Courts' review of same. As to the
critical factual and legal points in their argument, plaintiffs fail
to cite the record for facts and/or any legal authority for the legal
propositions they urge upon the Court. First, plaintiffs' argument deals
with only one of the bases for the defendants' decision to close the
subject area of Fort Funston, i.e., protection of the bank swallow burrows
and/or nesting areas. In fact the record discloses that there were several
reasons for the closure including the protection of the bank swallows'
habitat from erosion (caused by heavy human and pet activity), the re-vegetation
of the area with native plants, and the safety of the visiting public.
AR US06615-6618. None of plaintiffs' arguments or proposals for a remedy
deal with all of the reasons for closure, and as a result, all of plaintiffs'
proposals for the remedy are flawed and irrelevant to the facts and
should be denied on that basis alone.
Second, plaintiffs' Memorandum does not
recognize or deal with the fact that an emergency closure of the seasonal
area was declared by the Park Service on April 12, 2000, See Court's
FF&CL, at 16:20-22. This emergency declaration and closure of the
seasonal area is not subject to the plaintiffs' Complaint and not subject
to or affected by the Court's FF&CL. Similarly, it is not subject to
plaintiffs' motion for preliminary injunction and/or the remedy now
being considered by the Court. Therefore, plaintiffs' argument that
the preliminary injunction include removal of the gates in the fence
on the seasonal area (plaintiffs' Memo
at 2:23-24) and giving plaintiffs and their dogs immediate access to
the seasonal area (Id., at 3:5-13) is without merit, and the
preliminary injunction should not include any relief for plaintiffs
as to the emergency closure of the seasonal area. This is consistent
with the Court's FF&CL, i.e. "[b]ecause the National Park Service
has declared an emergency upon the recent arrival of the bank swallows,
no injunction will become effective until August upon their annual departure
or until further proceedings and determination as to the validity
of the emergency declaration or its scope." FF&CL 30:1-4 (emphasis
added).
Also, with regard to the seasonal area,
plaintiffs' have submitted the Declaration
of Michael Goldstein ("Goldstein") with photographs attached, as
the basis for arguing that the seasonal area need not remain closed
now because Goldstein has not found evidence of burrowing by the bank
swallows in the cliffs of the seasonal area. The Goldstein Declaration
should be rejected for several reasons, First, it is irrelevant because
the closure of the seasonal area is not before the Court. Second, it
is objectionable as an extra-record submission and should be rejected
on the same grounds and reasons stated in Defendants' Objection to Plaintiffs'
Filing of Extra-Record Material, filed 4/3/00. Third, Mr. Goldstein
is not qualified as an expert who can both identify bank swallow burrows
and state his opinion as to the meaning of his inspection of the area.
For example, Mr. Goldstein did not and cannot purport to state that
all burrows have been completed for the season at this time and that
no additional burrows will be excavated in the seasonal area, this year.
Accordingly, the Goldstein Declaration is irrelevant, incompetent, speculative,
and should be stricken. Nevertheless, in the event the Court decide
to consider it, plaintiffs are filing, this date, the Declaration of
Terri L Thomas ("Thomas") which attaches a letter from the Golden Gate
Audubon Society. It demonstrates the continuing need to keep the cliffs
of the seasonal area and others protected and available to the bank
swallows for nesting this and every season to come. If the Court does
not consider the Goldstein Declaration, the defendants will withdraw
the Thomas Declaration.
Plaintiffs address the issue of the notice
and comment requirements of 36 CFR 1.5 by concluding, without supporting
authority, that the defendants must follow the "rulemaking process"
in Department of Interior Manual "318 DM" in order to close the subject
areas at Ft. Funston. Having built this strawman argument, based on
nothing but their own interpretation and without any authority, plaintiffs
then proceed to knock it down, telling the Court that this process is
too long for them to wait. Therefore, they say the Court should immediately
order relief in the form of removal of the fences, etc. However, plaintiffs
are mistaken in their conclusions and argument. In fact, notice and
comment in relation to defendants actions
under to 36 CFR 1.5, is not the formal
rule making that plaintiffs set forth in their Memo.
In connection with the promulgation of
the final version of Section 1.5, the preamble published in the notice
of the rule in the Federal Register explained that "published as rulemaking
in the FEDERAL REGISTER" as used in 1.5 was intended to consist of a
"notice and comment" process.
Public notice and comment is not intended to apply
to measures taken to achieve routine resource management objectives,
such as construction, facility maintenance or rehabilitation, and
routine practices which are aimed at preserving the viability, integrity
and natural character of the park ecosystem. 48 Fed. Reg. 30,252-30,261
(June 30, 1983)
The notice and comment process for Section
1.5 consists of publishing a "Notice" in the Federal Register and giving
the public 30 to 60 days to comment. Upon receiving the comments, the
Park Service evaluates the coments thoroughly
before making a decision on whether and how to proceed. To require notice
and formal rule making for the kinds of decisions as those before this
Court would unreasonably slow and hinder the Park Services'
ability to close areas within a reasonable time after a threat to the
resource is observed and potentially allow irreparable harm
the resource while awaiting the processing of a formal rule.
Requiring formal rulemaking would be unreasonable and unnecessary for
that protective function. Therefore, the 30/60 day notice and comment,
as outlined above, are the only requirements for closures under 36 CFR
1.5.
It is noteworthy and baffling that plaintiffs'
arguments for injunctive relief fail to show this Court a way it can
possibly order removal or movement of the fencing, notwithstanding the
prohibition of dogs off leash in 36 CFR 2.15. Plaintiffs may still believe,
as they erroneously advised the Court, that the 1996 compendium for
GGNRA is still in effect. As stated in defendants' open brief on remedy,
the GGNRA local rule (aka, "amendment") that allowed off leash-voice
command dog walking which appeared in the 1996 compendium was superceded
and became inoperative when the 1997 compendium was signed. See attached
copy of AR US00260-61, ¶ 2. Indeed, the Park Service lacks the authority
to take any actions under Section 1.5 that are contrary to Servicewide
regulatory standards, such as Section 2.15. The preamble to section
1.5 explains this restriction:
The designation process specified in this section
gives the superintendent limited discretion in allowing activities
within park areas provided they are not contrary to Federal statutory
law or in derogation of park values. Designations that allow a relaxation
from Servicewide regulatory restrictions are specifically provided
for in the individual regulations in this chapter. The superintendent
is not authorized to use § 1.5(a) to relax Service regulatory standards
except where the authority is directly and specifically provided
in a regulation. Superintendents may use the authority of § 1.5(a)(3)
only to relax restrictions imposed at the park level under the authority
of § 1.5 or another section providing authority to the superintendent.
Section 1.5(a) may never be used to contravene Federal statutory
law or the general regulations in this chapter, unless specifically
provided for in a particular section.
Clearly, Section 2.15 provides the superintendent with no authority
to relax the prohibition against dogs off leash at Ft. Funston, and
no such authority supports plaintiffs' theory here.
For all the foregoing reasons, plaintiffs have failed to show entitlement
to the relief they seek in this case, and this Court should deny the
plaintiffs' motion for preliminary injunction.
DATED: May 9, 2000
|
Respectfully submitted,
ROBERT S. MUELLER, III
United States Attorney
[Signed,]
CHARLES M. O'CONNOR
Assistant United States Attorney
|
OF COUNSEL:
Ralph Mihan, Field
Solicitor
Nicole Walthall, Esq., PPO
U.S. Department of the Interior
DOGWALKERS' REMEDY REPLY
BRIEF
May 9, 2000
Yesterday, the dogwalkers' reply to the remedy briefs
of the government (representing the National Park Service) and the Golden
Gate Audubon Society (which joined the case on the Park Service's side)
was filed in U.S. District Court. The brief follows. The reply briefs
of the two other parties will be published here soon.
Proposing a pre-existing closure? Regarding
the government's suggestion as to how the Park Service would bring about
a closure according to the law it so far seems to have sidestepped, the
brief asks:
