Outside of the NR process, the GGNRA has recently announced closures to off-leash recreation at
portions of Ocean Beach and Crissy Field without any public process of notice and comment.
Superintendent O’Neill himself acknowledged in correspondence earlier this year that such an action would be
in contempt of the Federal Court’s order, hence illegal.
"Judge Alsup effectively
held that the 1979 Pet Policy governs off-leash use until such time as GGNRA completes a process for changing that Policy
that is consistent with federal requirements, should that step be taken." (GGNRA Superintendent Brian O'Neill’s letter of December 10, 2005, to Stephen Sayad.)
in correspondence to Dr. Suzanne Valente on January 9, 2006, admitted: “His
[Judge Alsup’s] decision stated that the NPS could not initiate enforcement of the pet regulation in areas
where voice-control dogwalking was previously allowed without first going through rulemaking [36 CFR 1.5(b)]”.
Not only are these current
closures to off-leash recreation illegal, they are poor public policy. The excuse
Superintendent O’Neill has utilized for these closures is the seasonal presence of the Western Snowy Plover (WSP). Even closures for this reason would require notice and comment as indicated by this
quote from Superintendent O’Neill’s letter of January 9, 2006: “Judge Alsup also stated that this ruling
did not restrict GGNRA’s ability to protect resources following notice and comment pursuant to [36 CFR 1.5(b)].” Superintendent O’Neill hopes to circumvent the requirement for notice and comment
by claiming there is now an “emergency” with respect to the WSP. The
United States Attorney acknowledged to the Court that no emergency existed in June of 2005, and Superintendent O’Neill
admitted in December 2005 that there was no emergency when he chose to table an “Emergency Petition” to terminate
off-leash recreation in the GGNRA. The official meeting summary of the April 18, 2006
meeting of the Negotiated Rulemaking Committee says: “GGNRA does not believe there is a basis for emergency
rulemaking. Areas involved are the restricted marsh and dune communities, the
Wildlife Protection Area [as stated in the Crissy Field Environmental Assessment (EA)] and a 2.2 mile section of Ocean
Beach.” The fact that Ocean Beach and Crissy
Field are not critical habitat for the WSP likely prohibits any finding of an “emergency” for the WSP in the GGNRA
based upon occasional “disturbance” of the birds.
Indeed, effective October
31, 2005, the United States Fish and Wildlife Service (“USFWS”) reevaluated the critical habitat for the WSP,
and declined to list any area in the City and County of San Francisco as critical habitat for the WSP. In the text of the explanation of their decision, USFWS made the
“Our current designation
of critical habitat is different from the 1999 rule in two primary ways. In this designation, we utilized a different methodology
for determining essential areas, and we relied upon additional scientific information which was not available in 1999. Thus,
this rule, while similar in many respects to that in 1999, is a new designation, and does not designate the same areas.”
With respect to Ocean Beach,
“We have decided
not to include the suggested additional areas because they do not meet
our three criteria from
the Methods section: They do not support either sizeable nesting populations or wintering populations, nor do they provide
unique habitat or facilitate genetic exchange between otherwise widely separated units. Although we do not consider these
areas essential for recovery, we do consider them important, and will continue to review projects in these areas that might
affect WSP as required by sections 7and 10 of the Act.”
Allowing humans and off-leash
dogs to enjoy Ocean Beach is not a new project; it is an activity that has persisted on Ocean Beach for well over 50 years.
The GGNRA has in the past relied upon one study out at Ocean Beach.
This poorly designed study by Daphne Hatch did acknowledge that the plover does not nest at Ocean Beach, although a
small group does seasonally roost there. It was acknowledged the major factor
discouraging the plover from roosting at Ocean Beach was a lack of beach width (due to ongoing erosion). Dogs have never been found to be predators of the plover and less than one-half of one-percent of dogs
at Ocean Beach chased plovers. However, this week the GGNRA posted to their web site
a new Daphne Hatch report that suddenly declares the circumstances of the WSP at a portion of Ocean Beach and Crissy Field
to be so dire as to warrant the declaration of an emergency. Please click here to visit the GGNRA web site and view Daphne Hatch's new report titled "Western Snowy Plover Status Report"
We can briefly point out a big problem with this
new study: bias on the part of the researcher in a study that is merely observational. Daphne Hatch, Chief of Natural Resources Management and Science for the GGNRA,
was quoted Sept. 7, 2005 in the S.F. Chronicle as saying: "Ocean Beach
without the people is an incredible habitat. But people think of it as a sandbox or their backyard”. It appears Daphne Hatch and the GGNRA
really do not want any of us to recreate at the beach. We also find it highly
disturbing that we formally requested any data of this nature that the GGNRA might have in their possession in April of this
year, AFTER this study had completed its data collection. Yet the GGNRA responded
by telling us such data did NOT exist, and our appeal to the DOI was not honored either.
The DOI told us we had the right to sue for the information, so go ahead because they were too busy to respond to our
request. The lack of data hampers our ability to fully evaluate Ms. Hatch’s report.
However, our experience with the subject matter, as well as our extensive research, enabled us to interpret the report
to a large degree. Please click here to view our analysis of the Daphne Hatch Report.