Comments for Advanced Notice Proposed Rulemaking

By Ken Ayers


  The National Park Service (NPS) is the only federal agency with
 jurisdiction over recreational parks with regulations prohibiting
 off-leash recreation.  The Bureau of Land Management (63 FR 6075 Paris
 Canyon- Vermilion Cliffs Wilderness )  U.S. Fish & Wildlife ("Inner
 Blair Island " Chronicle, 7/12/2001) and the U.S. Forest Service (Dog
 Lovers Companion, pg. 292)  permit off-leash recreation in their
 parks.   Ironically, when Congress decided to protect outdoor recreation
 in urban environments during the 1970's, it chose NPS for the agency
 best suited to provide recreational open space for our cities.
 Recently, Monterey embarked on a new approach for ensuring recreational
 opportunities for urban citizens by convincing Congress to transfer Fort
 Ord to the Bureau of Land Management instead of the Park Service.

  Our experience with NPS since 1992 has led many of us to conclude that
 the federal government has no role to play in managing precious
 recreational space in urban areas.  San Francisco embarked on real
 adventure in 1975 when it donated all of its municipal beaches and
 adjacent parklands to the federal government.  At present time, GGNRA
 has control over 38% to 54% of our open space in San Francisco.  We
 cannot have a city where such extensive recreational areas are
 controlled by transient bureaucrats from Washington D.C.  The California
 Congressional delegation has proven that they cannot or will not
 provide Congressional oversight  to curtail administrative abuse by these
 federal bureaucrats.

  The community will with respect to off-leash recreation in San
 Francisco is crystal clear.  San Franciscans feel so passionately about
 this issue that the sovereign government has told NPS numerous times
 through resolutions, speeches, and consultations that failure to honor
 the historical use of our beaches and adjacent parks would result in
 efforts to take back the parks.  State representatives have also advised
 NPS in no uncertain terms the same commitment to this valued
 recreational use of these beaches and parks.  Numerous editorials and
 articles have expressed the same unqualified support.  Just yesterday,
 Ken Garcia again in his column chided NPS about its bizarre myopia:

    "The Golden Gate National Recreation Area has been cordoning off huge
 chunks of once-open beaches from dogs as part of its assault on the
 reality of urban life in the Bay Area....National park officials have
 been hearing howls of protest from thousands of dog lovers since they
 introduced a plan to curtail off-leash pooches in the Presidio and other
 areas- the federal government's attempt at redefining San Francisco as a
 rural wilderness area"    (ChronicleApril 9, 2002)

  The ANPR process is nothing but a cynical charade as a cover to impose
 a leash law on our city parks.  Our right to walk dogs off-leash on
 former city beaches and parks arises out of the Organic Act 16 USC
 section 1c, the enabling statute, 16 USC460bb requiring NPS to provide
 "needed recreational open space necessary for an urban environment and
 planning", the promise made to the city that historical recreational use
 would be continued if the beaches and parks were donated to the federal
 government, and the promise made to private contributors for the Crissy
 Field Habitat that 70 acres would be available for off-leash recreation.

  We are not going to do this anymore.  We have begun discussions with
 the U.S. Forest Service and the Bureau of Land Management to evaluate
 the possibility of shifting some of NPS property to another federal
 agency more committed to recreational use of these resources.  Since
 these agencies are required to administer their lands for multi-use, there
 are formal regulations in place requiring public review and planning.
 Furthermore, we believe the city should take back Ocean Beach, Funston
 Beach, Lands End, Fort Funston and Fort Miley .

  Over twenty years ago, NPS established an official off-leash recreation
 policy for the GGNRA as required by the enabling statute and the promise
 made to the city.  However, NPS refused to bring its regulations into
 compliance with the statute by sponsoring a section seven special
 regulation.  We believe this resistence was for selfish reasons, because
 Washington D.C.  feared that official recognition of this practice in
 San Francisco would encourage its own citizens to push for open space in
 the capitol.  As one planner from Minneapolis admitted in 1998 this
 trend began over 25 years before: "In fact, the city is lagging behind a
 significant national trend which emerged over 25 years ago for cities to
 provide off-leash areas."

  San Francisco was in the vanguard of that movement.  NPS officials in
 the Bay understood the significance of what we were doing here and
 supported us.  Since 1992 a new ideology pervaded the Park Service which
 was anti-recreational.  In fact, GGNRA changed its name to GGNP in an
 effort to convince citizens of the Bay that the paramount mission of the
 National Park Service is to bring the wilderness to the city.  San
 Francisco did not give NPS its beaches and parks to create native plant
 habitats.   As minutes to the San Francisco City Planning Commission,
 dated December 5, 1974 confirm, the resolution to transfer the property
 was approved on that day because the Commission was told: "the deed
 transferring jurisdiction over the parcel to the Federal Government
 would specify that the property should be used for Open Space and
 Recreational purposes only"  .

 Parks to the People

  GGNRA was established in part through a campaign in 1970  by Secretary
 of Interior Walter Hickel "to bring parks to the people", putting the
 National Park Service in a movement to increase outdoor recreation in
 urban areas (U.S. Department of Interior News Release, September 14,
 1970).  During the early 60's the federal government had established
 several agencies to facilitate funding for outdoor recreation.  The
 Bureau of Outdoor Recreation (BOR) in the Department of Interior was
 created in 1963 to coordinate these federal recreation programs.  (J.
 Futrell, "Parks to the People: new Directions For the National park
 System", 25 Emory Law Journal, pp 255-36). Funds for these programs
 were provided through a Land and Water Conservation Fund derived from
 the sale of oil and gas leases. (Pg. 262)   BOR distributed funding to
 states and outdoor recreation programs with U.S. Forest Service (USFS) ,
 U.S. Fish & Wildlife Service (USFW), the National Park Service (NPS),
 and Department of Housing and Urban Development (HUD) (pg. 261).  After
 the riots at Watts and Detroit, BOR channeled additional funds through
 HUD for parks and playgrounds in inner cities.  The entire program
 became a pork barrel source of funding for Congressmen with the National
 Park Service receiving three fourths of the acquisition funds, twenty
 per cent to the Forest Service, and the rest to Fish and Wildlife. (Pg.
 262)

  NPS became the lead agency for providing outdoor recreation for urban
 parks, "in part because of its success in preserving the nation's most
 visited scenic areas and innovative role in experimenting with urban
 parks in Washington D.C." (Pg. 270).  Creation of the two Gateway NRAs,
 the Gateway National Recreation Area in New York and the Golden Gate National
 Recreation Area in San Francisco established a federal precedent.  The
 NPS became "responsible for the assembly, cooperation, and maintenance
 of two major parks for the primary use of the citizens of San Francisco
 and New York.  The justification for the Gateways was the national
 interest in keeping America's major cities livable and not landscape
 preservation." (Pg, 274)

  Public interest focused on creating more urban parks in the Cuyahoga
 Valley outside Cleveland, the Santa Monica Mountains in California, and
 the Chattahoochee River outside Atalanta.  (Pg. 266). From the beginning
 this movement into the urban areas was controversial among officials of
 the National Park Service.  (Pg. 269).  By the late seventies, special
 interest groups were recommending the Park Service drop from the system
 those areas with a strong recreation emphasis, letting state and local
 governments, or private enterprise manage them (pg. 278).  "They see the
 basic mission of the Park Service as the preservation of parks for
 future generations and view the movement to create new kinds of parks
 such as urban National Recreation Areas as a distortion of that primary
 preservation mission."  (Pg. 278).

  The preservationists were  also disturbed by other parks within the
 Park System.  The First National Seashore at Cape Hatteras was created
 in 1937, but was not included at first as a national park because
 hunting was allowed.   Later, Pt. Reyes and Cape Cod were acquired as
 national seashores with emphasis on ocean-oriented recreation (pg.
 272).  The first National Recreation Area was created when Lake Mead
 National Recreation Area  was moved from the Bureau of Reclamation.
 Other intensive water recreational areas were established at
 Whiskeytown-Shasta-Trinity in California and Flaming Gorge in Wyoming
 (pp. 273-5).  As part of the movement towards outdoor recreation, most
 additions during the sixties were National Recreation Areas. NPS
 regulations for National Recreation Areas required that the "areas be
 designed to achieve high recreation carrying capacity.'  (Pg. 279).  By
 mandate of Congress over forty five of these parks permit hunting and
 twenty permit trapping.

  Coincidental to establishment of the GGNRA, the National Park Service
 was moving in the direction of abolishing the National Recreation,
 Historical Monuments, and Wilderness  Management Categories.  Officials
 in Washington assured field operations that these changes were
 administrative and "not intended to create significant changes in the
 management of parks."  The promulgation of new regulations were
 developed to reflect "the actual Management practices which have become
 established in park areas, either through legislative requirements or
 policy decision." (Memo from Associate Director, Management and
 Operations to Directorate and Field Directorate, 12/22/77).  If a
 general regulation " adversely affects only one or a few parks, it may be
 better for these parks to establish special regulations rather than to
 weaken or further complicate the general regulation.  It should be kept
 in mind that these special park regulations can relax, make more
 stringent, or otherwise modify any general regulation".  NPS recognized
 at the outset that a special regulation would have to be created to
 bring their regulations into compliance with the GGNRA statute requiring
 it to provide "recreational open space necessary to an urban
 environment."


 Organic Act of 1916/ Enabling Statute

  Our right to walk dogs off-leash arises from the Organic Act of 1916,
 section 16 USC 1c(b),  and the enabling statute for the GGNRA, 16 USC
 460bb. [ These legal issues have already been addressed in two briefs
 filed by the San Francisco Society for Prevention of Cruelty to Animals
 (SPCA) during rulemaking for the Funston closure.]   Section 1c(b)
 requires park personnel to administer the park consistent with
 provisions of the enabling statute: "Each area with the national park
 system shall be administered in accordance with the provisions of any
 statute made applicable to that area."  The statute also provides that
 "various authorities relating to the administration and protection of
 areas under the administration of the Secretary of Interior through the
 National Park Service" and other "provisions of section 1b to 1d of this
 title" are "applicable to all areas within the national park system" "to
 the extent such provisions are not in conflict with any such specific
 provision" within a specific park statute.

  Congress established the GGNRA on October 27, 1972 "to preserve for
 public use and enjoyment certain areas of Marin and San Francisco
 Counties, California possessing outstanding natural, historic, scenic,
 and recreational values.' (16 USC 460bb. ) In addition to this generic
 statement of purpose appearing in most national park statutes, Congress
 included two "specific provisions" unique to the GGNRA.

   First, the park was established  "to provide for the maintenance of
 needed recreational open space necessary to urban environment and
 planning."  The only other park with this requirement was the Cuyahoga
 National Recreation Area, established after the GGNRA.  This statute
 however, does not contain the additional requirement "recreational open
 space necessary for urban environment and planning"..

   Second, the GGNRA statute imposes a unique limitation on NPS's
 discretionary power for "management of the recreation area": the
 "Secretary of Interior..shall utilize the resources in a manner which
 will provide for recreation and educational opportunities consistent
 with sound principles of land use planning and management. "
 Significantly, the Sleeping Bear Dunes National Lakeshore in Michigan
 (16 USC 460x) is the only other park that contains the "sound principles of
 land use planning" language.   Specifically 460x(b) provides
 "Cooperation between Federal, State, and local governments. In
 preserving the lakeshore and stabilizing its development, substantial
 reliance shall be placed on cooperation between Federal, State, and
 local governments to apply sound principles of land use planning and
 zoning. " We believe the "cooperation" clause requiring the federal
 government to cooperate with local governments is implied by the "sound
 principles of land use planning" clause.

  Furthermore, we believe that language was placed in the enabling
 statute because of problems San Francisco had with the Department of
 Army over plans to construct an archives at Fort Miley. Amy Meyer led
 the Outer Richmond Neighborhood Association campaign against the Army
 construction plans.

   "Richmond District activists who lived near Fort Miley led by artist
 Amy Meyer established a network connecting SPUR, the Sierra Club , City
 Planning Department, and Outer Richmond Neighborhood Association to stop
 GSA from building an Army Archives in the woodlands.  Dr. Wayburn had
 already formed a group called Headlands Inc. to pressure the government
 to preserve surplus federal properties , including miles of coastline
 and beaches in Marin.  Soon Meyer and Wayburn formed People for Golden
 Gate National Recreation Area (John Jacobs, Raging Burton, California's
 Most Indefitagible Legislator Like His Scotch Straight and His Parks And
 Beaches Clean", San Francisco Examiner, September 3, 1995)".

 Finally, the House Report No 92-1391 made clear that the GGNRA would be
 confronted with problems in San Francisco that would require careful
 planning because of the high volume year-round visitation :

   "As a national urban recreation area, this new component of the
 national park system will be confronted with problems which do not
 frequently occur at other national park and recreation areas.  Great
 numbers of people can be expected to use the area-particularly those
 portions located in San Francisco County.  " (pg. 11)

   A list of enumerated recreational activities contemplated for the new
 urban park would be impossible, nevertheless, legislative history
 reveals what Congress meant by "needed recreational open space necessary
 for urban environment"."It is a well-recognized principle of statutory
 construction that contemporaneous interpretations of dated legislation
 are ordinarily given considerable deference when its meaning is later
 questioned."( National Rifle Association of America v. Potter 628 F.
 Supp. 903, 911 (D.C. Dist. Col. 1986))   In addition to sun bathing,
 picnicking, horse riding, swimming, hiking, and fishing, off leash dog
 walking was specifically addressed during Congressional hearings.  A
 letter by a seven year old child from San Francisco petitioned the
 Chairman for a dog park where she could play and socialize her dog:
       "Dear Congressman Roy Taylor: I want a park so I can play in the
 park and my sister wants a park to and so my dog can play with another
 dogs and my Mom wants a park so she could take my dog out to play.  I
 hope you will make a park. Elizabeth Linke" ( Hearings before the
 Subcommittee on Interior and Insular Affairs, House of Representatives,
 pg. 414).

    Dog walking was also identified as a recreational activity in the
 House Subcommittee Report on the statute: "On a nice day, it will
 satisfy the interests of those who choose to fly kites, sunbathe, walk
 their dogs, or just idly watch the action along the bay."    ( House
 Report No. 92-1391, pg. 7) [The Potter case above reviews this report to
 conclude that hunting was not intended purpose for GGNRA: "The committee
 report for Golden Gate National Recreation Area, for example stresses
 the need for expanded outdoor recreation opportunities, but makes no
 mention of hunting.."  Potter 628 F. Supp at 911 ]. At the time, all
 municipal beaches and adjacent city parks considered for inclusion in
 the park were dedicated to off-leash recreation.

 Agreement with San Francisco

  Almost 50% of the San Francisco Unit was originally city parkland
 donated to the federal government after the park was established.  Over
 600 acres of city parkland was sought by the federal government for the
 park (House Report, pg. 7), the federal government provided 494 acres
 from the Presidio (Crissy Field & Baker Beach), 66 acres at Fort Mason,
 12 acres at at Fort Miley, and 71 acres at Fort Funston.(pg. 8)

  Although the city was interested in having its parks included in the
 new urban park, it wanted to retain jurisdiction over them, surrendering
 total control to the federal government was not part of the original
 deal.    San Francisco Mayor Joseph Alioto told the United States House
 Hearings that the city parks proposed for inclusion in the GGNRA "should
 remain under the jurisdiction of the San Francisco Recreation and Park
 Commission" (April 6, 1972).  The Department of Interior clearly
 understood that the "taxpayers of San Francisco had the foresight to
 preserve these recreational areas and the willingness to pay for their
 support" and "naturally wish to retain some voice in their operations
 and administration consistent again with an overall master plan." (February
 14, 1972).  The San Francisco Recreation and Park Commission adopted
 Resolution No. 9030 which provides, "[t]hat this Commission, believing
 that inclusion of these properties is vital to the success of the
 concept of bringing parks to the people, recommends that they remain
 under the jurisdiction of the Recreation and Park Commission of the City
 and County of San Francisco." (May 30, 1972).

   The Board of Supervisors adopted Resolution No. 364-72, which
 provides:

1. "the City and County of San Francisco desires to maintain and
 improve the recreation facilities available to the residents of San
 Francisco on the aforementioned property owned by the City and County of
 San Francisco located within the Golden Gate National Recreation Area;"
2. "The City and County of San Francisco desires to participate in the
 planning, administration and operation of the Golden Gate National
 Recreation Area;" and

3. "this Board of Supervisors endorse a policy of
 cooperation and administration and management of the Golden Gate
 National Recreation Area including the property owned by the City and
 County of San Francisco located within the Recreation Area. (June 9,
 1972)".

  Despite this concern by political officials over the future
 jurisdiction of the parks, the citizens of San Francisco were re-assured
 that the transfer was merely a "technical resolution" that would
 preserve recreational access.   When voting for Charter section
 7.403-1(a) authorizing the transfer of the city parks, the citizens of
 San Francisco were told that "the transfer of these lands is a technical
 resolution allowing the City and County of San Francisco to transfer
 city lands to the Golden Gate National Recreation area..a national urban
 park established in 1972 by Congress to preserve 34,000 acres of land
 and water in San Francisco and Marin for recreational use by all
 citizens."  Aware that certain unique restrictions were included in the
 enabling statute requiring NPS to maintain "recreational open space
 necessary for urban environment and planning", San Francisco adopted the
 "technical resolution" authorizing the transfer of city parks for
 "recreational use by all citizens."  Allaying concern over the transfer
 of property, NPS promised the city that "historical recreational use"
 would be continued.


  Before the transfer occurred, an Agreement/ Memorandum of Understanding
 (MOU) between San Francisco and the Federal Government gave the City
 Planning Department jurisdiction to review NPS plans within formally
 owned City lands after their incorporation into the GGNRA.  Department
 of City Planning memos from the 1970s confirm that the MOU requires that
 all NPS proposals be submitted to the Department for review. Both the
 GGNRA General Plan of 1980 and the 1994 Environmental Impact Statement
 for the Presidio confirm the existence of the MOU and this obligation.
 The 1975 MOU "provides that the national recreational area will formerly
 notify and consult with the city on all planning matters relating to
 these parcels, future transit system proposals, and planned construction
 on all national recreation area lands within the boundaries of the
 city." (Final General management Plan Amendment Environmental Impact
 Statement for Presidio of San Francisco, July 1994, pg. 6).  The GGNRA
 General Plan (1980) also notes that "A memorandum of understanding
 between the city and the National Park Service ensures their review of
 park proposals, particularly those related to transit systems, proposed
 construction, and sand incursion upon roadways adjacent to the park."
 (Pg. 220).  Finally, the enabling statute imposes this duty of the NPS.,
 mandating "the Secretary of the Interior shall ..utilize the resources
 in a manner which will provide for recreation and educational
 opportunities consistent with sound principles of land use planning and
 management" (16 USC 460bb, emphasis added).

  Until 1992, GGNRA honored its obligations under the Agreement and the
 enabling statute.  With the closures at Fort Funston, it embarked on a
 unilateral course that was illegal under its own management policies,
 the Agreement with the City, and the enabling statute.  In 1990, NPS at
 Funston constructed fences along the top bluffs without consultation
 with the city or public.  In early 1991, it expanded these fences and
 closed off an additional two acres.  In October 1991, NPS again expanded
 the fences and closed off seven acres of land without consultation.
 Within the closed areas NPS began "substantial alteration of the natural
 environment of above mentioned lands" using hundreds of volunteers,
 bulldozers, and chainsaws without consultation with the city or public.
 In 1993, NPS closed off an additional three acres to public use and
 enjoyment.  In 1995, NPS closed off 15 more acres adjacent to the other
 areas.  Again in 1995, another 10 acres were closed off to the public.
 In 1998, NPS closed off the entire slope of coastal bluffs below the hang
 gliders.  In December 1999, NPD "removed pavement from a substantial
 section of" the only disability trail cutting off access to parts of
 Fort Funston for the elderly and disabled.  In March 2000, NPS erected
 fences and closed another 10 acres along the northern bluff area, a
 closure subsequently overturned by a Federal Judge until such time as
 NPS complies with notice and comment provisions of Title 36.  In January
 2001, NPS closed twelve acres to public use and enjoyment without
 consultation of the city .

  The only group who tried to stop this illegal destruction of park
 resources and closure of recreational open space were the dog-walkers.
 They had to act for the entire city because they were the only
 recreational group organized at Fort Funston.  This ANPR charade was
 prompted by NPS to punish us for our resistance.  The "1979 Pet Policy"
 was never declared null and void.  The motion to rescind it was tabled.
 Despite overwhelming public opposition to the Funston closure and the
 attempt to revoke the 1979 Pet Policy, NPS fenced off the twelve acres
 and began persecuting off-leash recreation in officially designated
 areas.


 1979 Pet Policy/1980 General Plan

  Acting on the promise to the city and the mandate to manage park
 resources "consistent with sound principles of land use planning and
 management" for the "maintenance of needed recreational open space
 necessary to urban environment and planning", NPS developed the 1979 Pet
 Policy through the auspices of the CAC which designated certain areas
 for voice control in San Francisco and Marin counties.  The development
 of this policy was initiated   "because the ordinary guidelines outlined
 in the Code of Federal Regulations do not really apply in an urban
 area.  People and their animals have been visiting the park for too long
 to apply an all-inclusive arbitrary policy."

  Documents relating to development of the policy leave no question that
 NPS and not the Citizens Advisory Commission developed the off-leash
 policy for GGNRA.  In October, 1977,  Rolf Diamont, GGNRA Environmental
 Co-ordinator" prepared a memo proposing a "Draft Dog Policy for San
 Francisco Unit.".  His memo enumerated the following guidelines:

 1.  "No regulation, verbal or written, should be attempted that cannot
 be reasonably and consistently administered."

 2.  "Dog regulations should be different for different areas of the park
 reflecting public needs and attitudes as well as urban geography and our
 capabilities."

  3.   "When we discourage or restrict dogs in any area, whenever
 possible, an alternative site where dogs are allowed should be
 suggested."

  Each precept is consistent with "sound principles of land use
 management'.  Despite the legislative mandate that these principles be
 applied " to maintain needed recreational open space necessary for urban
 environment", NPS summarily closed off in August, 1996, over 15 miles
 off-leash recreational space in San Francisco, 11 miles of trail in
 Presidio, 2.2 miles at Ocean Beach, Lands End, and Fort Miley.  The
 Diamont memo confirms that all closures affected areas used for this
 recreational activity before the park was established : Ocean Beach,
 Fort Funston, Sutro Heights Park, Phelan Beach, Lands End, and Baker
 Beach.  Diamont's comments concerning Ocean Beach explain why that
 closure has been unsuccessful:

   "Ocean Beach: no rules should be enforced here. Ocean Beach is too
 large and too accessible to control dogs.  It would be a logistical
 nightmare for the Park Service to try.  Also lifestyles are such on
 Ocean Beach, that an inflexible NPS here could hurt our improving
 relations with visitors."

  To facilitate public review of the proposed policy, the Citizens
 Advisory Commission established a Pet Policy Committee to conduct
 hearings on the proposed policy.  A briefing memo for the record
 prepared by the Staff Assistant to General Superintendent dated April 3,
 1978 acknowledged that 36 CFR 2.8 leash law was "applicable to all
 properties of GGNRA".  NPS realized a special regulation would have to
 be prepared:.  "A deviation from this regulation..will require the
 writing of a special regulation specific to GGNRA". The regulation was
 not enforced while the new policy was being developed:  "Enforcement of
 the CFR has been non-existent until a dog policy and possibly a special
 regulation is established."

  The memo confirmed the following off-leash areas were being used in San
 Francisco: "Fort Mason, Crissy Field, Baker Beach, Ocean
 Beach, Sutro Park, and Fort Funston".    Community concern over the
 future of Fort Funston was specifically addressed:  "Many dog owners are
 concerned about the possibility of losing Fort Funston as an area where
 dogs can be exercised off leash."

  In Marin several areas were also listed as off-leash.  Particular
 problems were noted at Stinson Beach where GGNRA had banned dogs.
 Although off leash recreation was permitted on the portion of the beach
 owned by the county, NPS efforts to enforce the ban met predictable
 resistance from the community.  Between 5/77-2/78, there were 15
 citations,  5,660 written/oral warnings, 2 dog bites, and 200 dogs
 captured and returned to owners.   The memo warned that community
 resistence could be heated :

    "The no pet policy is a major problem area, consuming a large portion
 of routine ranger patrol time to enforce. Visitors for the most part
 choose to ignore plainly- posted-no pet signs within the park.  The
 majority of dog owners are cooperative; however, some are most unhappy
 with the policy to point of being verbally, and in one case, physically
 abusive to rangers attempting to enforce no-pet regulations."

  Several public hearings were held in 1978  to develop an off-leash
 policy for San Francisco.  By September the Citizens Advisory Commission
 had approved proposed guidelines for the San Francisco Pet Policy,
 designating Fort Funston, Ocean Beach, Baker Beach, Crissy Field, Lands
 End, and Fort Miley official voice control parks.  Later, the Great
 Meadow at Fort Mason was added as an official "dog run" area in the 1980
 General Plan.  In October, Lynn Thompson General Superintendent GGNRA
 accepted in total the Commission's recommendation.

  "As you know the Advisory Commission approved the proposed guidelines
 for a pet policy for San Francisco Unit at their September 27 meeting.
 We are accepting in total the Commission's recommendation."  (Lynn
 Thompson memo to San Francisco Unit Manager, 10/6/78).

 NPS issued press releases of the official off-leash policy  (Lynn
 Thompson memo to Coalition For San Francisco Neighborhoods, 10/17/78).
 Again, NPS told San Francisco this policy was developed because the
 "[e]xisting federal regulations' were not "a viable situation in an
 urban area.".

  By summer of 1979, GGNRA had initiated the process to bring federal
 regulations into compliance with the enabling legislation and the
 off-leash policy.  A draft special regulation 7.97(b) was submitted to
 the Western Regional Director NPS for approval.   Department of Interior
 Solicitor Ralph Mihan reviewed the draft proposed regulation and found
 "the proposed regulation to be legally acceptable", but advised the
 formal request should include a "authorship statement or a statement of
 significance" which "must be included within the rulemaking package
 before its transmittal to Washington."  (Ralph Mihan, Solicitor to
 Western Regional Director, Re: Proposed Rulemaking Golden Gate National
 Recreation Area (Pets), 7/23/79).  The draft proposed regulation in fact
 contained a statement of significance, the section seven amendment was
 being proposed "because large portions of land formerly used as pet
 exercise areas have been included with Golden Gate National Recreation
 Area."  (1/9/80 Regional Director memo to Superintendent GGNRA: Re:
 Proposed Special Regulation - Pets   USPROD00386-8).  The proposed
 regulation also called for public comment "within 30 days of the
 publication of this notice in the Federal Register."

  Although this 1979 Pet Policy was consistent with the statutory mandate
 for the GGNRA to provide "needed recreational open space necessary for
 urban environment" and required by the promise made to San Francisco
 when city property was donated to the park, officials in Washington D.C
 did not finalize the special regulation to bring their regulations into
 compliance with the enabling statute.  Based on documents discussed
 below, we believe this was not done because of fear that this would
 require NPS to open up municipal parks in Washington D.C. to off-leash
 recreation.  Subsequently the 1979 Pet Policy guidelines were
 incorporated into the 1982 Natural Resources Management Plan as Appendix
 C.

 Babbitt Administration Attack on Off-Leash Recreation

  At the time the 1979 Pet Policy was adopted, San Francisco Bay was in
 the vanguard of a national movement emerging in the seventies to
 establish officially sanctioned off-leash recreation areas in urban
 centers.  In addition to city parks along the western shore at Fort
 Funston, Ocean Beach, Lands End, and Fort Miley, San Francisco Parks and
 Recreation District opened up sixteen parks with "major dog run areas in
 Golden Gate Park, Crocker Amazon, Bernal Heights, Buena Vista and other
 remote and naturalized areas." (12/13/77 Aldo Chin, Superintendent Parks
 letter to Chairman Animal Welfare Commission).

  Across the Bay , The East Bay Regional Park District encompassing over
 70,000 acres in Alameda and Contra Costa County adopted in 1974
 Ordinance 38 Section 801.3, "dogs and other animals may run at large
 within the District, provided, however, that the owner, keeper or person
 exercising the animal shall keep their animal under control at all
 times, and must not allow their animal to enter restricted areas..or
 interfere with, bother, or harass, park users, or other animals, and
 wildlife." To the north,  Marin Open Spaces permitted access to their
 fire roads and the county portion of Stinson Beach was off-leash.  The
 GGNRA confirmed continued use of Rodeo Beach and Muir Beach in addition
 to several trails in the Marin Headlands.  In contrast, most of San
 Mateo County had a very restrictive attitude towards dogs.

  Within the National Parks, other units also permitted some off-leash
 recreation.  In 1974, NPS conducted an employee pet policy survey  for
 the Western District which disclosed that visitor's dogs were allowed
 off leash in some areas of the City of Refuge, Lake Mead, and Lehman
 Caves Parks (7/26/74, Western Regional Director memo to Superintendents
 in Western District, Re: employee Pet Policy.)

  Initially the transfer of  all municipal beaches and adjacent parkland
 to the National Park Service created no problems for San Francisco. The
 NPS honored its statutory mandate to maintain "recreational open space
 necessary for an urban environment" and the promise to the city to
 continue historical use of city donated property.  From 1975 through
 1992, this promise was kept by the administrations of Presidents Nixon,
 Ford, Carter, Reagan, and Bush.  Our problems began when President
 Clinton appointed Babbitt Secretary of Interior and national park
 personnel were assigned to San Francisco to oversee the transfer of the
 Presidio to the NPS.  From 1992 to the present NPS has revoked off-leash
 recreation in 15 miles of parkland and subjected the off-leash community
 to constant harassment with threats of banning us completely.

   To fully understand the picture you have to realize that almost 50% of
 San Francisco parkland is under the jurisdiction of transient bureaucrats
 who have created a private estate in the Presidio.  While we live
 stacked high in apartment buildings or in row houses with postage stamp
 back yards, these federal bureaucrats and their employees live in a
 palatial forested estate, with below market rents subsidized by our tax
 dollars. Committed to a native plant ideology, they have destroyed our
 park resources and fenced off the recreational space we need.  At
 present the need for recreational open space in San Francisco is even
 greater than it was when the park was established in 1972.  But
 recreation was not part of the Babbitt ideology, the new mission of the
 National Park Service.  In fact, even the old view that contemplative
 experience of nature was a valuable purpose for national parks has given
 way to new ideology based on biodiversity and total ban on human access
 to nature.

 Transient Bureaucrats Control Our Open Space

  Recently the Trust for Public Land has completed a study of municipal
 park systems in major cities, "Inside City Parks" by Peter Harnik.
 Ironically, the cover blurb by Secretary Bruce Babbitt acknowledges the
 importance of urban recreational parkland:

  "City Parks serve, day in and day out, as the primary green spaces for
 the majority of Americans.  Our national parks are justly famous.  Now,
 finally, comes a book that sheds light on the marvelous park systems of
 our biggest cities."

 The facts pertaining to San Francisco are shocking.  San Francisco had a
 population in 1996 of 735,000, living on 29,888 acres of property,
 bordered on three sides by water.  San Francisco has the second highest
 population density in America, after New York City with 24.6 persons per
 acre.  New York City has 37.3 person per ace and Chicago comes in third
 with 18.7.

  Within the seven mile square area, San Francisco Parks and Recreation
 District oversees only 3,317 acres of parkland.  A third of that is
 Golden Gate Park, a"1,017 acre wonderland with nine lakes and ponds."

   Originally a barren patch of shifting, windswept sand dunes, Golden
 Gate Park's unpromising site was hand fertilized with thousands of
 cartloads of clay, loam, and manure.  Today, the lush paradise includes
 redwood forests, specialized flower gardens, lakes, playing fields and
 cultural sites, and attracts 12 million visitors a year."

 Rightfully compared to Central Park in New York City, the Golden Gate
 Park was developed to create this magnificent public open space because
 San Franciscans live stacked high in apartment buildings or row houses
 with postage stamp back yards. The other 2,000 acres of municipal
 parkland provides 94 neighborhood parks, 17 recreation centers, 9 pools,
 6 golf courses, 153 tennis courts, 165 sports fields, and 0 beaches.
 The annual budget was 70,180,000 which came to $95 per resident.

  According to this report the NPS controls 4,106 acres of parkland in
 San Francisco, 13.7% of the city or 54% of the recreational open space.
 (pg. 18) Parks and Recreation District claims NPS has only 2, 066 acres
 or 38% of the city's recreational open space.  The Harnik report notes
 that the 4,106  "acreage includes Golden Gate National Recreation Area
 land within the city of San Francisco only "the "agency is unable to
 break out any other statistic by geographic region." (Pg. 20)    The
 report says GGNRA could not provide the number of full time employees,
 seasonal employees, volunteers, park budget, adjusted budget within San
 Francisco, revenue or expenditures.  (Pg. 21). Every city in the United
 States had those figures except GGNRA.  Even Gateway National Recreation
 Area could provide  figures adjusted for New York City and it doesn't
 have a statutory mandate to provide " recreational open space necessary
 for urban environment and planning" or a requirement to "utilize the
 resources for recreation and education consistent with land use
 principles.".  Gateway National Recreation Area (New York) budget in
 1999 was $16,878,000 or $2 per resident with 200 permanent employees and
 400 seasonal employees.  (Pg. 134)

  Given these facts, the city had good reason to be concerned about
 transferring its parkland to the federal government.  What city would
 deed to the federal government all its municipal beaches and adjacent
 parks?

 Funston Closures

  NPS violated their own management policies by destroying exotic species
 at Funston without public review.  For ten years they converted open
 space into closures with native plants without conducting a plan
 amendment which violated both the enabling statute and their management
 policies.   Moreover, they violated the MOU with the City which required
 them to submit these plans to the City Planning Commission.

  As they were developing the General Plan for GGNRA back in the late
 seventies one option under consideration was to create "ecology
 preserves" at Fort Funston.  This option was not chosen, instead
 Alternative A was chosen which was to leave it as it was.   NPS
 submitted these options to the city Planning Department as required by
 the Memorandum of Agreement.  The response by the city was unequivocal:
 " If it is demonstrated that certain unique uses..who need access to the
 site, can co-exist with a 'natural preserve', it could be desirable to
 establish parts of Fort Funston as ecologic areas." If this option was
 chosen, further consultation was required.


   " The Commission...regards the comments as preliminary and anticipates
 a continuing participation in the planning process for the Park.  The
 Commission intends to review the final plan and receive testimony on it
 in order to indicate City policy to you as set out in the Memorandum of
 Understanding between the City and County of San Francisco and the
 GGNRA. (6/21/77 memo Rai Okamoto, Director of Planning to Citizens
 Advisory Commission for the GGNRA Re: Response to GGNRA Alternatives)

  In the early 90;s NPS began to implement an "ecology preserve" plan
 without public review or consultation with the City.  In October of
 1991, the NPS closed approximately seven acres at Fort Funston by moving
 fences designed to protect the Bank Swallow 75 to 100 feet away from the
 cliffs to construct native plant habitats ( Milestone, J. "Just a
 Swallow! Habitat Restoration Project").  By early 1992 almost four acres
 were converted to coastal dune and chaparral.  At this time NPS staff
 began chainsawing 24 Monterey Cypress lining a trail leading to the
 beach, and volunteers pulled up erosion-preventing ice plant.
 Bulldozers were used to level hillocks and bury concrete slabs.  In a
 few months volunteers replaced ice plant with 5,000 native plants in the
 four acre area.  The entire seven acre project was designed to take five
 years to complete with only 75% coverage of plants.  The goal of the
 project was to increase "natural" erosion and create "moving sand"
 ecology.

  At Funston, NPS pursued a strategy of repressing dog-walking each time
 it expanded its closures.  Concomitant with the native plant expansion,
 Rangers began telling dog-walkers in late 1991 and 1992  to leash their
 dogs. In May, 1992 Mark Scott Hamilton, Chairperson for San Francisco
 Commission of Animal Control and Welfare sent a letter to Superintendent
 Brian O'Neill expressing cocnern over "NPS Ranger announcements ..that
 GGNRA's longstanding 'voice control" ..policy at Fort Funston was to be
 changed effective May 1. " He noted that just action would have serious
 impact on "overall dog-walking policies within San Francisco's
 geographic boundaries" and questioned how it could be done without
 public hearings.

   "It seems inconsistent with GGNRA's past policies (and perhaps
 violative of applicable regulatory law) that this change would even be
 contemplated until after public input hearings."

  Public outcry over this was overwhelming.  Western District Director
 Stanley Albright reassured both U.S. Senator Cranston and Senator
 Seymour that they would continue to abide by the 1979 Pet Policy: "At
 this time, there is no change in the 1979 Pet Policy which provides the
 visitor the privilege of walking one's dog off leash."

  Addressing public concern over the closures at meeting that summer,
 Head Ranger Jim Milestone in July, 1992., assured citizens that the
 fences would be in place only one year and the native plants would be
 compatible with recreational use of the area. (Meeting Minutes of Fort
 Funston Dog Walkers Association, July 9, 1992).  The next year NPS
 expanded the native plant habit an additional three acres beyond the
 initial seven acre project, without public review or project approval.

  In June, 1994, an additional expansion/closure of fifteen acres was
 proposed without analysis or public hearings.  The report confirmed the
 project was already "expanding into areas beyond our previously agreed
 to perimeter.  Project originally called for removal of all ice plant (a
 noxious exotic species) from the ten acre Bank Swallow habitat area.
 This is now complete and new area outside of Bank Swallow habitat area
 are now within our grasp." (Project Review Form, Ice Plant Removal,
 North Tip of Fort Funston, June 1994, emphasis added).  The project goal
 was to destroy 15 aces of ice plant, using chainsaws to destroy all
 "exotic" trees and bushes, and using bulldozers where possible.  The map
 attached to this project limited this expansion to the asphalt coastal
 trail.  In fact, this project also was "expanded beyond agreed
 perimeters" to encompass areas east of the trail, covering the entire
 Boy Scout Bowl.

  Again Rangers began telling dog-walkers at Fort Funston, Crissy Field,
 and Ocean Beach in 1995 that they were going to start enforcing the
 general leash regulation, 2.15(a)   At the same time, NPS announced
 plans to close ten acres adjacent to Battery Davis under the pretext of
 erosion control.  Ranger Jim Milestone admitted to the public at a
 meeting in March protesting the proposed closures that this area was
 very popular with children for playing Lawrence of Arabia on the steep
 slope.  Dogs loved to chase balls and frisbees at the bottom of slope.

  Following these closures, in a letter dated March 14, 1995,
 Superintendent O'Neill promised Richard Avanzino, then-President of the
 San Francisco Society for the Prevention of Cruelty to Animals that the
 habitat was nearing completion and would not expand south.  The NPS also
 promised the Battery Davis closure was an approximately 5-year closure
 during which time it would be revegetated.  Signs indicating both areas
 were closed for native plant revegetation were subsequently placed along
 the affected areas.

  Approximately one year later, Ranger Milestone held a public meeting on
 April 10, 1996.  He advised that 200 volunteers would be meeting at the
 Bank Swallow site at the north end of Fort Funston to pull up ice plant
 at  time Bank Swallows would be building nests in the cliffs.
 He estimated the project would take two more years but promised no more
 fences. (Newsletter, Fort Funston Dog Walkers Association, April 1996).
 Despite prior assurances the native plant habitat would not move further
 south,  Ranger Milestone finalized a plan in May 1996  that would "split
 Fort Funston down the middle" with the entire eastern zone extending
 native planting south to the Olympic Club: "restoration in the eastern
 portion would extend from the Olympic Club boundary to the Bank Swallow
 site along Fort Funston's eastern slope and plateau."

  The change in ecosystem affected the bank swallows.  After the 1995
 native plant expansion, the number of burrows began to decline from 924
 in 1994 to 713 in the first year.  They dropped again to 511 in 1996.
 In 1997, NPS lost the data.   In 1998 the number of burrows dropped to
 140 and the birds abandoned the area adjacent to the native plant project
 and moved south to an undisturberd area south along the cliff.  About
 that time starlings, hawks, kestrels, ravens and other birds began
 competing and preying on the bank swallows. (USO3943).  Starlings began
 taking over Bank Swallow burrows in mid-1990s, the public began to note
 a higher incidence of hawks and ravens as evidence by comments at public
 meetings with NPS staff, and the NPS's own study concluded that kestrel
 predation had played a substantial role in reducing the number of bank
 swallow breeding pairs from 340 to just 200 in one year alone (Chow, N.
 1994-5 Bank Swallow Annual Report)   NPS also realized the native plant
 habitat was causing the burrows to collapse by accelerating erosion on
 the cliff where they constructed their nests.  They were losing two
 hundred burrows a year.   The Chow report also notes that erosion pins
 were installed in the cliff in 1995 to monitor the impact of the
 changes.  NPS did not produce any of this data in the lawsuit.

 NPS Realized Dogs Did Not Affect the Bank Swallow Colony

  NPS realized dogs had no impact on bank swallow colony, but used them
 as pretext to justify closures Studies have shown conclusively that dogs
 on Funston Beach do not chase bank swallows or pose a threat to their
 breeding.   Construction of fences along the border of the northern
 cliffs above the colony nesting site was rationalized because of human
 disturbance as evidence by the following report prepared in 1991:

  "The immediate and continuous nature of the threats is illustrated by
 these observations taken on a November 1990 two-hour walk: 1) a hiker
 ignoring the cliff fence; 2) a couple nailing a sign into sandstone from
 the beach below; 3) the remains of a campfire and party above the cliff;
 4) shotgun shells above the cliff; 5) the remains of a camp shelter
 above the cliff; and 6) a new series of steps carved into the cliff.  In
 1989, during a monitoring visit to the cliff site, it was discovered
 that someone had carved the words 'Bird Hotel' into the cliff below the
 densest burrows (Fish, Memorandum, April 1989)" (US06400)

  Fences on the bluffs were moved back in 1991 to begin the conversion of
 the area to native plants.  The purpose was to transform the geology of
 the site by ripping up ice plants, chain sawing Monterey Cypress trees
 and exotic bushes to induce "natural dune formation", ie. impose sand
 erosion.

    Another objective was to use the site as propaganda tool to justify
 further closures: "The site can be used as a demonstration area for
 future restoration efforts of the greater Fort Funston area."  (1992
 Project Proposal US04115) Signs were posted calling the area a "Bank
 Swallow Habitat".  In fact, NPS documents confirm that bank swallow
 experts do not agree with their contention that the native plant
 "flyover" habitat helped the bank swallows.  Notes of March 16, 2000
 phone conversation with Barry Garrison from California Fish & Game, one
 of the nation's  foremost experts on California bank swallows, confirms
 that he  "doesn't feel need flyover" (USPRO01625)....."doesn't
 necessarily agree that they need a flyover to persist."
 (USPROD01624).    In fact, the dune conversion destroyed the colony
 nesting site the birds had used since 1905.

  Monitoring reports of the bank swallow confirms NPS was aware of the
 destruction but did nothing to protect the birds.   "Since 1993, the
 GGNRA has been monitoring the colony and making great efforts to restore
 the native habitat above the site." (US02425).  The only formal report
 on monitoring data was prepared by Nola Chow ," 1994-5 Bank Swallow
 Annual Report" data. . (USO4906-13). This report was concealed from the
 public in the Justification for the Funston closure.  The report notes
 that monitors noted the presence of hawks, people, dogs, hang gliders,
 and aircraft.  "Observers noted on two occasions that swallow activity
 ceased when aircrafts flew near the colony, but responses to the other
 potential disturbances were not noticed or documented."   ( US04909) A
 contemporaneous memo by Daphne Hatch, Wildlife Specialist, confirms that
 dogs on the beach pose no threat to the bank swallow colony.  "Dogs
 frequently roam in the closed area below the bank swallow colony, a
 leash requirement here might make this closure more effective, but I
 don't think dogs on the beach here have a direct impact on the bank
 swallows or their habitat."  ( June 11, 1995 D. Hatch Memo to Terri
 Thomas, Ecologist USPROD00607)

  Subsequent monitoring reports confirm dogs do not pose a threat to bank
 swallows.  A study of monitoring reports for 1996 contained no reports
 of dogs chasing birds.  NPS lost the reports for 1997.  In 1998, the
 birds fled the southern cliffs adjacent to the native plant closures,
 locating further south, burrowing on both sides of a path leading down
 to the beach.  Out of 61 visits to the new site in 1998, only four observed
 dogs chasing birds, one observed a dog chasing a swallow on the edge of
 the cliffs above the colony. (July 15, 1998).    Only two out of 30
 reports in 1999 observed dogs chasing birds.  After five years of
 intensive monitoring at the colony only one report documented a dog
 chasing a bank swallow on the edge of the cliffs.

  NPS conducted detailed surveys of dogs chasing shorebirds at Funston
 Beach between April 4, 2000 and August 9, 2000.  Whereas earlier bank
 swallow monitoring reports had noted disturbance of birds, this year the
 monitors were asked to calculate the number of people observed on the
 beach, the number of leashed dogs, the number of unleashed dogs, and the
 incidents where dogs chased birds.  The survey revealed that there were
 over 1367 people on the beach, 69 leashed dogs, and 824 unleashed dogs.
 Of the 824 unleashed dogs, only 17 were observed chasing birds.  98% of
 the dogs did not chase birds.

  These figures are similar to the results of the year long survey of
 dogs at Ocean Beach in 1996 conducted by Daphne Hatch, GGNRA.  Her
 survey observed over 5600 dogs, 99.7% of the dogs did not chase snowy
 plovers, and 94% did no