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Brian O’Neill, Superintendent                             July 7, 2005


Fort Mason, Building 201

San Francisco, CA  94123

Attn: Negotiated Rulemaking Committee





After reading the Notice of Intent to establish a Negotiated Rulemaking Advisory Committee (NOI) as published in the Federal Register, I feel compelled to comment in order to ensure that this process can be productive and result in a Rule that will be satisfactory to all parties. 


I find some serious errors and omissions in the “Supplementary Information” section that must be addressed prior to initiation of this process.  The first problem I want to address is the sentence that reads “On-leash dog-walking could be considered in areas with threatened and endangered species only if it is demonstrated that adverse effects or impacts are minimal and could be mitigated”.  I question why this sentence is included at all.  It would make sense if it read, “Off-leash dog-walking…”  Perhaps this is merely a typographical error, but if it is not, it infers a situation which is not consistent with the stated intent of this process. 


My first step in analyzing the significance of this statement is to determine which areas in the GGNRA have been identified as having threatened and/or endangered species.  In referring to a Natural Areas map produced by the National Park Service (NPS) and San Francisco Recreation and Park Department (SFRPD) it appears that the GGNRA has designated all of Ocean Beach, almost all of Fort Funston, and virtually all of the oceanfront property running north of Ocean Beach around Fort Point and through Crissy Field as Natural Areas. (Click here to view the Natural Areas map)  Natural Areas are by definition supposed to be areas which contain remnant populations of endangered or threatened species. This designation has, to my knowledge, been done without public notice or input which I believe is in violation of NPS policy and Federal law.  Aside from that, it would lead one to believe that the premise of this rulemaking process would be that the areas listed above can at best be allowed on-leash dog walking, and at worst, dogs could be banned from these areas entirely.  If this is the case, we have a serious problem.  These areas provide the bulk of the off-leash recreation in the GGNRA.  I might point out that the current areas allowed for off-leash recreation (by virtue of the 1979 Pet Policy) include most all of these areas, and comprise less than 1% of the GGNRA properties.  So, if these areas are to be excluded, what is left?


Next, I want to address the omission of the 1979 Pet Policy (and the erroneous inclusion of the NPS Management Policies 2001) as one of the legal sideboards within which recommendations on dog management in the GGNRA must be formed.  The courts have determined that the 1979 Pet Policy is currently the controlling dog management policy in the GGNRA.  As such, it is required to be the starting point for negotiations in the rule-making process.  This is in conflict with the premise for Negotiated Rulemaking which states that in 2001 the GGNRA determined that the 1979 Pet Policy was null and void.  And, in fact, the Situation Assessment Report for the Proposed Negotiated Rulemaking contemplates that the 1979 Pet Policy may NOT be null and void.  On page 18 it states specifically, “These lawsuits could prove to have only minor substantive impact on a committee’s work, or could have a significant effect on rulemaking by changing the relevant legal framework for decision making”.  Clearly, the latter is the case.  The record should be revised to include the 1979 Pet Policy as one of the legal sideboards upon which the recommendations must be based.  This change must be made before Rulemaking can begin.  Additionally, NPS Management Policies 2001 and Existing park management plans should be deleted from the list of legal sideboards to be considered in the Rulemaking process as the court has found them to be null and void.


The confirmation by the courts that the 1979 Pet Policy is the controlling dog management policy in the GGNRA has an additional significance.  Environmental review is required when an agency seeks to change the usage of a particular area.  Therefore, it should be noted that if it is determined that areas not a part of the 1979 Pet Policy should have off-leash access, environmental review will be required to allow this.  On the other hand, if areas currently designated as off-leash in the 1979 Pet Policy are to be declared on-leash only, environmental review will be required to justify that change as well.  So, the proper designation of our starting point (the current controlling dog management plan) is essential to complying properly with environmental review regulations. 


I also wish to address some of the entities who are listed as planned Committee Members.  The litigation which resulted in the court’s decision to declare the 1979 Pet Policy as the controlling dog management policy in the GGNRA involved several of these entities which had previously been nominated for committee membership (and are listed here as planned members). Actually, I should say that three of these entities chose to insert themselves into the litigation process by filing an Amici Curiae Brief.  These three organizations were: the Center for Biological Diversity (CBD spearheaded this effort and offered their counsel for the brief), the Golden Gate Audubon Society (GGAS), and Coleman Advocates for Children and Youth.  Their position as stated on page one of the brief, lines 20-21 was, “…the GGNRA’s regulations allowing dogs in most of the park, so long as they are properly leashed, should be upheld.”  Their stated position was that dogs should not be allowed off-leash anywhere in the GGNRA.  Clearly, this is in direct opposition to the stated purpose of this Committee: to establish areas of the park that could be designated for off-leash walking areas.  How could their participation ever allow for consensus?


This is also in direct conflict with the stated Working Principles for this process, namely; “Be honest, transparent and specific about concerns or interests, thereby creating opportunity for joint, interest-based problem solving”.  The Amici Curiae Brief advocates a ban of off-leash dog walking in the GGNRA for the safety of the dogs.  Not only is this premise disingenuous, but since this brief is in part on behalf of the Coleman Advocates for Children and Youth, the conclusion is curiously hypocritical.  I would bring to your attention the following statistics from the National SAFE KIDS Campaign and the American Academy of Pediatrics (AAP):


  • More than 3.5 million children ages 14 and under get hurt annually playing sports or participating in recreational activities.
  • Sports and recreational activities contribute to approximately 21 percent of all traumatic brain injuries among American children.
  • More than 775,000 children, ages 14 and under, are treated in hospital emergency rooms for sports-related injuries each year.



I do not see Coleman Advocates demanding children’s participation in sports and recreational activities be abolished for their safety.  Mr. Plater, of CBD, is a cycling enthusiast.  He does not want his access to cycling abolished because many people are killed or otherwise seriously injured in cycling accidents.  We, as a society, recognize that the value of exercise and the social and life skills developed by participation in sports activities is beneficial to children and adults.  The benefits outweigh the risks. 


The analogy with respect to off-leash dog walking is unmistakable.  A local vet when questioned about off-leash exercise said the following, “It’s very important for dogs to get out and get exercise.  The one thing that I know for certain is that dogs do live longer and are healthier and happier if they are socialized, if they get out and get activity and they get exercise.  It’s good for the dogs and it’s also good for the community.  Dogs that are socialized with people and other dogs are not really a risk to the community.  The dogs that attack other dogs and people are usually the dogs that have been confined in their home, in a backyard, and they have had no contact.  It’s important for the dog’s health and happiness, but also for the community as well that they get out”.  Clearly, in this case as with people, the benefits certainly outweigh the risks (which were overblown in the brief).  If they find the risks so objectionable, do these three organizations apply any problem-solving skills to the situation to attempt to mitigate the risks?  No.  The point is these three organizations have asserted a bad faith position by refusing to acknowledge the underlying merit of off-leash dog-walking anywhere, (check the record).  Accordingly, they continue to maintain off-leash dog-walking should not be allowed in the GGNRA, and they are not interested in problem-solving.  This is a blatant violation of the stated criteria for selection to this Committee:  a willingness to act in good faith and consistent with the Working Principles. 


The Golden Gate Audubon Society should share in their portion of the hypocrisy.  The Golden Gate Audubon Society is cited in the 1996 "Crissy Field Environmental Assessment Staff Report" as having "offer[ed] general support of the proposed plan", a plan that specifically recognized the existence of the off-leash policy and its continuation.


Now, the GGAS claims, like the NPS, that no such policy ever existed and would have been incompatible with the alleged conservation mandate for all national parks.  Of course, the “Finding of No Significant Impact” (FONSI) environmental report for Crissy Field addresses the recreational impact mitigation factor analysis by declaring that the existing off-leash policy would not be changed and that "proposed changes in off leash dog access will be brought to the attention of the Advisory Commission prior to taking action."  And, of course, the FONSI is attached to an October 2, 1996 letter bearing the letterhead of the "United States Department of the Interior -- National Park Service."


Lastly, I must comment upon the inclusion of one other member to this Committee.  That would be Paul Jones.  Mr. Jones has a mindset that is consistent with that of CBD, GGAS, and Coleman Advocates.  He does not desire to see off-leash dog-walking anywhere in the GGNRA.  In Pacifica, he opposed an off-leash area on Sharp Park Beach despite the fact that there were no threatened or endangered species present, and no habitat that would ever support any.  (This is because the beach was modified by the construction of a berm to block flooding of the adjacent golf course.)  When asked if he would alternatively support an off-leash dog park in an inland park area that was landfill and emitted methane gas so there would be no use of this park for children, he refused.  When the City approved an off-leash area at Sharp Park Beach, he threatened to sue the City.  I see no indication of his willingness to engage in meaningful negotiation or problem solving in this process.


Furthermore, the appointment to the committee of Paul Jones, as a former member of the GGNRA Citizens Advisory Committee, certainly would bring into question whether he would have undue influence in the process. I maintain that it was improper to include Mr. Jones on the GGNRA Citizens Advisory Committee in the first place. As an employee of the U.S. Environmental Protection Agency, Mr. Jones' role on the Citizens Advisory Committee was tainted by his inherent professional conflict of interest. Which group(s) is he representing in the rulemaking process? The NPS/GGNRA, the U.S. EPA, the City of Pacifica, the environmental community? It seriously compromises the entire Negotiated Rulemaking process if Mr. Jones is allowed to participate.  


I would point out, for the record that there are no off-leash dog-walking advocates proposed for this Committee that would argue there should be off-leash dog-walking in all of the GGNRA.  Consider that this would be the flip side of the position CBD, GGAS, Coleman Advocates and Paul Jones have taken.  Clearly their inclusion is not appropriate.  There are, however, still on the Committee organizations who can effectively advocate for the interests of plants and wildlife (CNPS, the Sierra Club, and the Marine Mammal Center) and children (the City of San Francisco).