Ocean Beach Off-Leash Closure

Ocean Beach Off-Leash Closure

Emergency Closure Legally Over
GGNRA Bulldozes Plover Protection Area!

(posted June 25, 2007; updated August 3, 2007)

The "Emergency" closure at Ocean Beach was officially terminated by Superintendent O’Neill on May 17, 2007. He states: "The park has determined that the Western Snowy Plover (Charadrius alexandrinus nivosus) are no longer present in the Ocean Beach Snowy Plover Protection Area, having migrated to breeding areas…The restriction will be put back in place when the plovers return in July." The Superintendent’s statement goes beyond what his own Compendium document legally allows, as the Compendium states: "The seasonal restriction will remain in effect for this overwintering season until monitoring confirms the species is no longer present, as announced by the General Superintendent." (dated 11-02-2006). Please click here to read the document for yourself.

There is no provision made in the Compendium for resumption of this restriction, as common sense would dictate. The Superintendent utilized the premise of an "emergency" situation for the plover to circumvent the Court’s requirement for rulemaking as he himself described it: "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)]". If the Superintendent now intends to limit off-leash recreation in the area of Ocean Beach south of Stairwell 21, he must go through a formal rulemaking process. He has not done so, therefore, the controlling law is once again the 1979 Pet Policy as specified by the Federal Court in 2004. To attempt to again designate a subsequent closure an "Emergency" is absurd, as the Superintendent has had 8 months in which to conduct a formal rulemaking process if he believed it would be necessary to limit off-leash recreation beyond this single season. It will come as no surprise to those of us who have chronicled the illegal activities of the GGNRA throughout the years that Superintendent O'Neill has again declared an "emergency closure" to off-leash recreation on the same 2.2 miles of Ocean Beach, effective July 1, 2007. Please click here to read the document for yourself.

To further compromise the GGNRA’s argument that the restriction of off-leash recreation is necessary to protect the plover, the GGNRA has taken the plover’s alleged summer hiatus as an opportunity to begin bulldozing of the "Plover Protection Area". In October of 2005, when United States Fish and Wildlife Service (USFWS) declined to designate Ocean Beach as critical habitat for the plover they stated the following: "Although we do not consider these areas [Ocean Beach and Crissy Field] 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." The USFWS is previously on the record as stating, "Activities that may adversely affect plovers include sand deposition or spreading, beach cleaning, construction of breakwaters and jetties, dune stabilization/restoration using native and nonnative vegetation or fencing, beach leveling and off-road vehicles driven in nesting areas or at night."

Ocean Beach Plover Protection Area (July 31, 2007)

When OBDOG principals first observed the bulldozers in the Plover Protection Area, we made a Freedom of Information Act Request of the GGNRA, to determine the purpose of the bulldozing, as well as determine whether USFWS had approved this drastic action. The GGNRA responded to our request, but failed to answer our questions about the bulldozing. We have "clarified" our request, and until we get a legitimate answer from the GGNRA, we are left to speculate. We believe the GGNRA is modifying the beach in this area to minimize the effects of erosion and the drifting of sand on to the Promenade and Great Highway. Internal GGNRA records show the GGNRA bargained with USFWS in 1996, sacrificing our off-leash recreational opportunities in order to get USFWS to agree to allow bulldozing in this same area of Ocean Beach.

We agree the GGNRA needs to deal with erosion at Ocean Beach. However, it seems unlikely that the GGNRA will admit the obvious: GGNRA activities designed to deal with erosion adversely affect the plover to a much greater degree than four dogs who allegedly "disturbed" plovers in the last six years. The restriction of off-leash recreation to purportedly protect the plover is a complete ruse.

The Closure

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.)

Superintendent O’Neill, 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 following findings:

“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, USFWS stated:

“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.