PLAINTIFFS' MEMORANDUM RE: PROVISIONAL REMEDY PENDING DETERMINATION ON THE MERITS

 

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, a California Nonprofit Membership Organization,

 

Intervenor/Defendant.

____________________________________

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Case No. C-00-0877 WHA

 

 

 

 

PLAINTIFFS' MEMORANDUM

RE: PROVISIONAL REMEDY PENDING DETERMINATION ON THE MERITS                                 

 

 

 

Date:    (None set)

Time:

Ctrm:    Hon. William H. Alsup

 

 

 

                                                                    SUMMARY

This Court has found that plaintiffs have shown a probability that the National Park Service violated its own regulations requiring notice and opportunity for public comment before implementing a closure of a portion of Fort Funston.  Plaintiffs maintain that case law supports an order that the closed land be reopened by removal of the recently installed fences. Plaintiffs, however, acknowledge the waste of resources that will result if the fences are removed only to be reinstalled lawfully if the closure is determined to be valid following rulemaking.

Plaintiffs would like to be reasonable and propose a remedy which permits access to the closed lands through openings in the fences, to allow defendants a brief period of time in which to complete the rulemaking process.  Plaintiffs, however, doubt whether rulemaking can be commenced and completed in a short time period.  Accordingly, removal of the fences may be the only available and appropriate remedy.

                                                                  ARGUMENT

The purpose of a preliminary injunction is to "preserve the status quo pending a determination of the action on the merits." Chalk v. U.S. District Court Central District of California, 840 F.2d 701, 704 (9^th Cir. 1988); Matthews v. NCAA, 79 F. Supp. 2d 1199, 1203 (E.D. Wash. 1999).   In this case, the status quo is to return the ten acres in question to their condition prior to the closure -- unfenced and open for use and enjoyment by the plaintiffs, with the beauty of the park unmarred by the new fences.

Plaintiffs, however, are mindful of the expense already incurred by the Park Service, albeit through grant funds, and the substantial physical labor required to construct the fences.  Plaintiffs would like to avoid the waste of resources that would result if the Court orders the fences to be removed, only to have the fences subsequently reinstalled as a result of rulemaking.  On the other hand, plaintiffs believe that they should not be further denied access to the closed area during a brief rulemaking process.

Based on this approach, plaintiffs propose that they be allowed access to the closed area as follows.  Access to the seasonal closure could be accomplished by removal of the two gates installed on April 12, 2000, pursuant to the Park Service's declaration of an "emergency." Access to the permanent closure could be achieved by removing the fencing materials (the wire mesh and cables) at three locations marked on the map attached at Exhibit A, while leaving the fence posts in place.  Generally, the three proposed openings into the permanent closure are located at two points along the Coastal Trail and at a point in the fence which separates the permanent closure from the seasonal closure.  This point is in the "valley" of the closed area and would allow plaintiffs to resume walking through this area, as many did prior to the closure, as well as through the beach access route known as the "Gap." Each opening should be a minimum of thirty feet wide.

Regarding the timing of plaintiffs' proposed access, access to the seasonal area should be given immediately, as there appear to be no bank swallow burrows in the cliffs within the seasonal closure.  Declaration of Michael Goldstein, ¶ 6, submitted herewith.  Plaintiffs appreciate the Park Service's initial desire to close the cliffs in this area after the bank swallows arrived, in order to protect the swallows as they established their nesting sites.  As demonstrated by the Goldstein Declaration, however, the bank swallows have returned to the location they left last year and have inhabited for several years, i.e., an area in the cliffs of the permanent closure, between the Gap and Panama Point.  Goldstein Declaration, ¶ 3. No need exists, therefore, to keep the seasonal area closed, now that the bank swallows have established their burrows away from these cliffs.

Regarding the permanent closure, both the Park Service and the Audubon Society admitted under oath during the Court's view of Fort Funston that a fence thirty feet back from the edge of the cliffs would protect the bank swallows.  Moreover, in its February 2, 1999 Project Statement (US00262-US00266), the Park Service recommended erecting "a permanent fence along the top of the cliff" in order to protect the bank swallows.  Certainly, it can be concluded that a fence along the cliffs, placed no more than thirty feet from the edge, adequately will protect the bank swallows.

In addition, plaintiffs maintain that these protective fences may be installed in a short period of time, say a week to ten days.  Considering the lightening speed with which the fences were installed to effectuate the closure, the Park Service should be able to install fences along the cliffs in the permanent closure in less than ten days.  If desirable also to protect potential future bank swallow habitat, fences could be installed along the cliffs in the seasonal area as well.  Plaintiffs also propose that appropriate fences be installed around the small area in which "native plants" recently were planted in the permanent closure.

In summary, under this proposal, access to the seasonal closure would be ordered immediately, and access to the permanent closure would be ordered to take effect no more than ten days following the Court's order regarding provisional remedies.  This proposal is premised on defendants' ability to complete rulemaking within a short period of time, e.g., between sixty to ninety days.  In other words, if rulemaking can be accomplished quickly, plaintiffs believe that allowing the fence posts to remain in place, with the proposed access points, while new fences are installed along the cliffs to protect the bank swallows, is a reasonable approach that may avoid unnecessary waste, protect the threatened species, and provide plaintiffs with some access to this ten-acre area, although limited.  If rulemaking cannot be accomplished quickly, a remedy which provides plaintiffs with only limited access to the closed land is not sufficient.

Plaintiffs have grave doubts about whether the rulemaking process can or will be completed within a brief period of time, and whether, once completed, the results will support the closure.  First, there hasn't been a judgment in this case.  The Park Service may be unwilling even to begin the rulemaking process until a final determination has been made as to whether the closure is "highly controversial" or results in a "substantial alteration in the public use pattern" of the land.

Second, even if the Park Service does publish the closure as rulemaking, there is no certainty that, at the end of the rulemaking process, the closure will be determined valid.  Depending on the contents of the proposed rule, plaintiffs expect to challenge vigorously any further infringement on or restriction of their use of this area of Fort Funston.  It is not equitable to deny plaintiffs their use and enjoyment of this land when the outcome of rulemaking is so uncertain, and possibly could result in plaintiffs' favor.

Third, and most important, plaintiffs doubt whether defendants can complete the rulemaking process in a brief period of time.  Plaintiffs expect the process to take many months, and possibly up to or more than one year.  Department of Interior internal documents strongly suggest that the rulemaking process is very complex and extremely time-consuming.  Plaintiffs have located on the Department of Interior's web site (www.doi.gov) a Department of Interior Department Manual (A318 DM") which addresses the department's procedures for publishing proposed rules in the Federal Register.^[1]  Portions of this manual are attached as Exhibit B.

318 DM 1 lists ten steps that "must" be taken before a proposed rule is published in the Federal Register (Ex. B, p. 1). These steps include preparing a "regulatory alert form," obtaining a "regulatory identification number," including the rule in the "semiannual agenda," including the rule in the "OMB regulatory report," and preparing and circulating a "record of compliance."

The "regulatory alert form," "semiannual agenda," and "OMB regulatory report" are discussed more fully in 318 DM 2 (Ex. B, pp 3-6).  The "semiannual agenda" is a "list of rulemaking actions scheduled for review or development in the coming 12-month period" and is published in the Federal Register every April and October.  318 DM 2, § 2.4 (Ex B, p. 4).

318 DM 3 describes preparation of the Record of Compliance (ROC), which appears to be a lengthy and time-consuming procedure (Ex. B, pp. 7-49).  As stated in § 3.3 of 318 DM 3, "The ROC serves as proof that we've met all legal requirements, thus decreasing the chance that the rule will be litigated.  It is also a record of why and how we developed the rule.  This will be useful when the rule is revised in the future" (Ex. B, p. 7).

A minimum of sixty days is required for public comment after a proposed rule is published in the Federal Register.  318 DM 5, § 5.4 (Ex. B, p. 60).  318 DM 5, § 5.13 (Ex. B, p. 62) provides additional actions that should be considered, including "holding public meetings or hearings." Perhaps the four years of public meetings and hearings that were held before proposed rules were published in Bicycle Trails Council of Marin v. Babbitt were pursuant to this suggestion in the Departmental Manual.  See Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1458-1459 (9^th Cir. 1996).

Plaintiffs have not requested, nor have they been provided, any documentation from defendants regarding the required procedures for publishing the proposed closure as rulemaking in the Federal Register.  The Departmental Manual described above is the only Department of Interior publication plaintiffs could locate which discusses rulemaking procedures.  This manual appears to discuss in clear detail the precise steps that must be followed before a proposed rule may even be published.  Once published as proposed, at least sixty days are required for comment.  Once published as final, thirty days are required before the rule becomes effective.  318 DM 6, § 6.25 (Ex. B, p. 71).  Assuming defendants don't even commence rulemaking at the earliest until this Court issues an order regarding remedy, just the time required for the comment period (sixty days) and preceding the effective date (thirty days) totals ninety days.  Based simply on these requirements, the fences would not be removed until the middle or end of August.  This doesn't even allow for the numerous steps that must be completed internally within the Department of Interior before the rule is even published in the Federal Register.

Certainly, defendants were aware, or should have been aware, of the complex steps and lengthy time requirements of publishing a proposed rule in the Federal Register.  Notwithstanding this awareness, the Park Service quickly installed 1,750 linear feet of fencing (US04208) thereby depriving plaintiffs daily of the use and enjoyment of one of the last remaining coastal bluffs at Fort Funston.  This closure also has deprived plaintiffs of valuable use of a beach access route, created a significant and ongoing public safety concern on the beach, and damaged the wonderful beauty of this area of the park.  Why should plaintiffs suffer the punitive impact of defendants' probable malfeasance while defendants take months, or possibly even a year or more, to follow the prescribed rulemaking process?

Under the lengthy rulemaking circumstances set forth above, the fences should not be allowed to stand.  The seasonal closure should be reopened immediately through removal of the gates, as discussed above.^[2]  The Park Service then should be allowed no more than ten days to construct fences or implement some other protective mechanism along the cliffs in the permanent closure to protect the bank swallows, as well as install a fence around the recently planted vegetation.  Once these protective fences are installed, the recently installed fences should be removed.  Defendants then would have ample time to thoughtfully consider what course of action to take with respect to this land, and then to implement this plan.  To deny plaintiffs this remedy would only reward the Park Service's actions and possibly encourage similar unilateral actions on their part in the future.  The Park Service then could continue a pattern of eviscerating public input with a fait accompli the public is forced to accept.

                                                                 CONCLUSION

Preserving the status quo in this case, pending a determination on the merits, may mean nothing short of removing all of the recently installed fences.  Only with the fences removed may plaintiffs fully use and enjoy this last large coastal bluff at Fort Funston, and the pre-fenced beauty of the park be restored.  Plaintiffs, however, urge the Park Service to install appropriate fences or employ other measures to assure protection of the bank swallows if the fences are removed.  A remedy which allows plaintiffs to use the land without removal of the fences may be appropriate while defendants seek to validate the closure through rulemaking, only if plaintiffs' use of the land is restricted for a brief period of time while the rulemaking process is completed.

 

 

Dated:  May 4, 2000                                                   ____________________________________

LYDIA OWEN BOESCH

JOHN B. KEATING

 

Attorneys for Plaintiffs