LEGAL ISSUES AT OCEAN
BEACH AND THE GGNRA
There are multiple legal issues which influence recreational usage at
ALL have the ability to fundamentally change the circumstances of recreational usage at Ocean Beach, and other portions of the GGNRA.
The 1979 Pet Policy has been
the rule for pet management in the GGNRA for approximately 25 years, allows off-leash recreation on less than one percent
of the GGNRA acreage, and has served the Park and the public well. The 1979 Pet
Policy should now be implemented by the Superintendent of the GGNRA as a Section
Seven Special Regulation because it best reflects the intentions of those who created the GGNRA and the promises made to the
citizens in order for them to approve the creation of an urban National Recreation
Area. Nonetheless, Superintendent O’Neill adamantly refuses to implement the 1979 Pet Policy as a Section Seven Special
Regulation, and has steadfastly refused to reveal to the public that such action is even an option for the GGNRA. Instead, the Superintendent of the Golden Gate National Recreation Area (“GGNRA”) has declared
that Negotiated Rulemaking (“NR”) shall be employed as the method to create a Section Seven Special Regulation
for off-leash pet recreation, if any, within the GGNRA. The GGNRA intends to
force the public to spend at least a half a million dollars (the estimated cost of NR per Christine Powell of the GGNRA) for
the GGNRA to remove our privileges in an unlawful NR process.
Why is this process unlawful? The premise under which the present NR
was authorized is inconsistent with the current law governing pet management in the GGNRA.
In the period between promulgation of ANPR documents and the present (when NR is about to commence), the United States
District Court for the Northern District of California reinstated the GGNRA’s own “1979 Pet Policy” for
off-leash recreation in the GGNRA. The Court found that the GGNRA illegally rescinded
the 1979 Pet Policy by refusing to follow its own regulations at 36 C.F.R. Section
1.5(b). Despite this significant
intervening event, the GGNRA brazenly refuses to revise the NR documents to reflect the critical change in (reinstatement
of) the law, thereby creating a legally impermissible premise for NR negotiations, and illegal requirements for NEPA evaluations.
Ocean Beach DOG has been excluded from the NR process by the GGNRA because
we allegedly refused to negotiate in “good faith”. We merely insisted
the rights afforded dogwalkers by the 1979 Pet Policy (which is the current law in the GGNRA) be the basis for the negotiations. 2.5 miles of Ocean Beach which are legally off-leash by virtue of the 1979 Pet Policy will not be considered
for off-leash recreation in the NR documents and process. The NR process does
not even allow the participants to rely on or refer to the 1979 Pet Policy in their negotiations. The GGNRA insists good faith negotiation means we must waive ALL our legal rights; and pretend as they
do, that the 1979 Pet Policy NEVER existed in order to merely participate. By
what legal principle does the GGNRA derive the right to summarily dismiss the current law at the inception of this NR process?
The GGNRA knows this is impermissible based upon the Federal Court’s recent ruling. What follows are two quotes taken from correspondence by Brian O’Neill to OBDOG members:
"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." (emphasis added)
"As noted in our December 20,  caucuses, we will not be using the 1979 Pet Policy as a basis for negotiated rulemaking."
NR lacks authority to dismiss
current law at the inception of its
process, or modify valid and subsisting property rights: those in the deeds and
those afforded by the Public Trust Doctrine which protects recreational access to the beaches in the GGNRA.
A fundamental prerequisite
for implementation of NR is that the agency is in “need of a rule”. (Negotiated Rulemaking Act of 1996, Section 563, hereafter referred to as the “NR
Act”.) The Court’s reinstatement of the 1979 Pet Policy has undermined
the premise for the use of NR to create a rule.
Lastly, this perversion of the premise under which the GGNRA was created (and the
premise of NR) should lead to one or more legal challenges of any new regulation by the City and County of San Francisco and citizens at large. The San Francisco City Attorney determined (in 2000) the deeds conveying City property
to the GGNRA would allow the City to sue for return of these properties if the NR results in a cutback in the 1979 Pet Policy.
There will be title litigation required by the terms of the grants to enforce the reversion provisions in the deeds under
which the GGNRA holds City property.
NR proceed as premised by the GGNRA, Superintendent O’Neill will be in violation of the following:
• The Federal Statute which
created the GGNRA
• The grant deed restrictions
for the properties transferred by San Francisco
• The 1975 Memorandum Of Understanding
with the City of San Francisco
• The National Environmental
• The Endangered Species Act
• The Public Trust Doctrine
• The Negotiated Rule-Making
• The Code of Federal Regulations
governing National Parks
• The Federal Panel Recommendations
to the General Superintendent on Proposed
Rule-Making for Pet Management
• The Department of Interior
Director’s Order 75A
The GGNRA has demonstrated that its goal in NR is to permanently eliminate open space off-leash recreation in the
GGNRA. The rules for NR are such that regardless of the outcome of NR, the GGNRA can subsequently implement a rule of their
choosing, including NO off-leash in the GGNRA or perhaps small fenced enclosures.
The “Nature in the City” map produced by the SFRPD, GGNRA, Sierra Club, Yerba Buena Chapter of the California
Native Plant Society, Golden Gate Audubon Society, the Presidio Trust, and Golden Gate National Parks Conservancy designates
virtually all of the 1979 Pet Policy off-leash properties as “habitat”. This designation would eliminate consideration
for off-leash recreation, and would provide for limitations on human access as well. These are both actions that violate the
trust deeds which transferred the SF properties to the GGNRA.
It is disturbing to note that the City of San Francisco
has no representative in the NR process to guard the City’s recreational resources and interests. It is also interesting
to note that if you consider the acreage of parklands transferred to the GGNRA back in 1975 as well as the current SFRPD “Natural
Areas” project, the City will have reduced its recreational acreage resources by almost 70% between 1975 and the present.
It is not surprising, therefore, that families are relocating from San Francisco,
citing as one reason a lack of recreational facilities.
When the GGNRA rescinded the 1979 Pet Policy, they took away approximately 80-85% of the legal off-leash acreage
available to SF residents. If the GGNRA is allowed to take the off-leash acreage away again in NR, AND the SFRPD is successful
in implementing their “Natural Areas” program, approximately 90-95% of the legal off-leash acreage will have been
taken away. Considering we now have 175,000-180,000 dogs in the City of San Francisco, it would seem to be a clear violation of dog guardians’
rights for the Board of Supervisors to allow these two processes to continue without opposition. Should NR proceed as planned,
law abiding citizens will be forced to take their canines to already overcrowded City parks to recreate. Overcrowding will
increase the incidence of untoward events between canines as well as canines and humans.
At some point, the City will be held to blame, having planned poorly, and having failed to fulfill their promise
made to the taxpayers to take back lands transferred to the GGNRA should they be utilized for something other than recreation
and open space (habitat is neither). The fact that the City did not even take enough
interest in the NR proceedings to demand representation will not be looked upon favorably.
Another issue to affect Ocean
Beach, as well as possibly Crissy Field, is that of the snowy plover. Entities
up and down the coast of California and Oregon
have brought in the Pacific Legal Foundation to sue the US Fish and Wildlife Service demanding
the snowy plover be removed from the endangered species list. Scientific research shows the snowy plover here is identical
genetically to a plover population in Utah, which is huge
in numbers. In effect, their population is far larger than reported—and not in danger of becoming extinct. Should the
plover be taken off the threatened species listing, there is NO reason Ocean
Beach cannot be off-leash in its entirety. Even if the plover is not delisted, Ocean
Beach was recently taken off the “critical habitat” list
for the plover. This also indicates that off-leash recreation could coexist with
the plover at Ocean Beach,
as use of this location is not critical to the plover’s survival. We expect
an announcement as to USFWS’ decision on or about March 31, 2006.
Special thanks are extended to the member attorneys who are spending
considerable time and resources to find a way to bring the GGNRA into compliance with the law so that we might recreate off-leash
with our dogs. These attorneys, who continue this fight in the legal sector, inform us that the GGNRA is willing to expend
a great deal of time and resources to ban off-leash in as much of the GGNRA as possible. We ask only that the general membership
of this group be willing to back these people up if and when the situation presents itself that public outcry is required
to augment the legal battle*. We also ask members if they have any
contacts in the media, or experience in public relations, that they assist us in presenting our objectives publicly in the
best possible light. We all love the beach and the unique rewards it presents us when recreating with our dogs off-leash.
Even though we are much smaller than the monolithic GGNRA/NPS, we are in the right on this issue. We can win this fight
if we approach it intelligently and diligently.
If you are harassed or ticketed by a GGNRA ranger, please email us at:
Please provide your name, the name of the ranger, and a detailed description of the incident. We are compiling
a list of such abuses in preparation for litigation involving the GGNRA.