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LEGAL ISSUES AT OCEAN BEACH AND THE GGNRA

There are multiple legal issues which influence recreational usage at Ocean Beach. 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  The Court found that the GGNRA illegally rescinded the 1979 Pet Policy by refusing to follow its own regulations at 36 C.F.R. Section 1.5(b).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, [2005] 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.

Should 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 Policy Act

        The Endangered Species Act

        The Public Trust Doctrine

        The Negotiated Rule-Making Act

        The Code of Federal Regulations governing National Parks

        The Federal Panel Recommendations to the General Superintendent on Proposed

         Rule-Making for Pet Management at GGNRA

        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.

*Note:  If you are harassed or ticketed by a GGNRA ranger, please email us at:
OceanBeachDOG@mindspring.com.
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.


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