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,

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.

____________________________________

)

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, (9^th 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 (9^th 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., (9^th 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, (9^th Cir. 1998)

136 F.3d 660...................................................................................................................... 13

Northern Cheyenne Tribe v. Hodel, (9^th Cir. 1988)

851 F.2d 1152...................................................................................................................... 4

Port of Astoria v. Hodel (9^th Cir. 1979)

595 F.2d 467...................................................................................................................... 14

Public Power Council v. Pacific Power & Light Co., (9^th Cir. 1982)

674 F.2d 791...................................................................................................................... 13

Save the Yaak Committee v. Block,(9^th Cir. 1988)

840 F. 2d 714....................................................................................................................... 4

Sierra Club v. United States Forest Service,(9^th Cir. 1988)

843 F.2d 1190...................................................................................................................... 4

Texaco, Inc. v. Ponsoldt, (9^th Cir. 1991)

939 F. 2d 794 15................................................................................................................ 15

Wilson v. Watt, (9^th 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 (9^th Cir. 1988); Sierra Club v. United States Forest Service, 843 F.2d 1190 (9^th Cir. 1988); Save the Yaak Committee v. Block, 840 F. 2d 714, 722 (9^th 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 (9^th 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.