The Animal Control and Welfare Commission will debate whether to recommend that the SF Board of Supervisors begin the process to take back San Francisco’s lands at its meeting:
Animal Control and Welfare Commission
Thursday, February 8, 2007
5:30 pm
City Hall
Room 408
On Thursday, February 8, 2007, the SF Animal Control and Welfare Commission will debate a resolution calling for San Francisco to take back the parklands that SF deeded to the GGNRA in the 1970s. Here’s some background information.
History of Transfer of City Parks to National Park Service (the information in this section is taken from a letter in 2000 from the attorney for Fort Funston Dog Walkers to the Board of Supervisors):
San Francisco acquired Fort Funston in 1962 to satisfy partially an extreme need for open recreational space. In a document entitled, “The Proposal to Acquire Fort Funston As a Recreation Area”, it was noted that San Francisco had about one-half of the minimum open space recommended by the National Recreation Association.
This dire need for open recreation space also was recognized by Congress when GGNRA was created in 1972. The first mandate in the statute which created GGNRA was that GGNRA “provide for maintenance of needed recreational open space.”
The legislative history [contained in a report issued by the US House of Representatives when the GGNRA was established] noted that the population density of San Francisco was 16,500 per square mile, compared with 5,000 per square mile for Los Angeles. The House Report provided, “While it is some comfort and compensation to live in a city as interesting, clean, and attractive as San Francisco, it must be noted that the opportunities for outdoor recreation in broad open spaces are severely limited.” The new legislation “will not add significantly to the open lands in the city, but it will ensure its continuity as open space for the use and enjoyment of present and future generations of city dwellers (emphasis added).”
Joe Alioto was Mayor of San Francisco when GGNRA was created. Although he was enthusiastic about a national recreation area, he was concerned about giving up control of Fort Funston and other City parks. Mayor Alioto’s concern was noted in a letter to the Clerk of the Board of Supervisors in which he stated, “I believe strongly that the City must clearly state its desire to retain control over City park properties.”
The City’s concern over losing control over its parks was incorporated into an agreement entered into on April 29, 1975 between the City and County of San Francisco and the United States. (A letter from the General Superintendent of GGNRA to the General Manager of the Recreation and Park Department described the Agreement as “a fundamental guide for our future relations.” That Agreement at paragraph 2 requires the General Superintendent of GGNRA to “notify and consult with the Department of City Planning” on all proposed construction plans or “substantial alteration of the natural environment” of the parks transferred.
The City’s concern that its City parks be maintained and operated as open recreational areas was reflected in section 7.403.1 of the City Charter. Section 7.403.1 authorized the transfer of certain City parks, including Fort Funston, to the National Park Service. The deeds, however, were to contain the restriction that these parks “be reserved by the National Park Service…in perpetuity for recreation and park purposes with a right of reversion upon breach of said restriction.”
In conformance with the City Charter, the deed transferring Fort Funston and other City parks to the United States contains the following reversionary clause:
To hold only so long as said real property is reserved and used for recreation or park purposes…
Some more background on the establishment of the GGNRA and the transfer of San Francisco lands to the GGNRA (excerpted from “The People’s Park”, a statement to the GGNRA Citizens Advisory Commission, August 29, 2000, by the SF/SPCA):
Since 1992, NPS staff has justified the conversion of recreational park resources to native plant habitats under the guise that such action is the national park mission. The mission of the GGNRA, however, is embodied in statute and legislative history creating the park. Indeed the NPS’s own regulations and management policies underscore the importance of the specific language contained in the enabling legislation establishing each national park. Each park has a specific purpose unique to the cultural and ecological settings where it is located.
In fact, courts look to the enabling statute and legislative history establishing the specific park unit to ascertain the scope of activities permitted in each park.
NPS management policies also specifically provide that “Congress has stated in the enabling legislation of most units of the national park system that they have their own particular purposes and objectives.” (National Park Service Management Policies, at p.2.)
Much of the San Francisco unit of what is now the GGNRA was originally city parkland donated to the federal government after the park was established. To address concerns from city officials and citizens over the release of this land to the federal government, certain unique restrictions were inserted into the enabling statute.
In particular, the GGNRA was established for “maintenance of needed recreational open space necessary to urban environment and planning.” (16 U.S.C. Section 460bb.) Relying on this language and representations by city officials that this was merely a “technical resolution” that would not affect “recreational use by all citizens,” the people of San Francisco approved in 1973 a Charter Amendment Proposition F, which permitted the transfer of these city parks to the federal government.
Legislative history and “land use planning” events developing the general plan and natural resources plan further confirm that the NPS understood that off-leash dog walking was a “recreational” activity “necessary to urban environment.” The use of these parks specifically for off-leash recreation was addressed during the hearings before the United States House of Representatives, and dog walking was an enumerated activity in the U.S. House Report (H.R. Rep. No. 1391 at p. 4854.)
Why does the GGNRA exist? It is not to create fenced native plant habitats off limits to the public. As evidenced by its name, the Golden Gate National Recreation Area is a “recreation” center, surrounded by a heavily populated urban environment. And it is the GGNRA’s recreational value that was of the utmost importance to the Congress that established this great urban park. In their words, the GGNRA was to be a “new national urban recreation area which will concentrate on serving the outdoor recreation needs of the people of the metropolitan region,” and its objective was “to expand to the maximum extent possible the outdoor recreation opportunities available in this region.” (H.R. Rep. No. 1391, 92nd Cong., 2nd Session (1972).)
The 1979 Pet Policy
In 1979, the GGNRA Citizens Advisory Committee, at the request of the National Park Service, developed a Pet Policy that addressed where in the GGNRA dogs could be off-leash (it also addressed feral cats). The Citizens Advisory Committee held public hearings and received extensive public comment, before determining that there would be no adverse impact on the environment or on other park users if dogs were allowed off leash on about 1% of GGNRA land. This included Fort Funston, Crissy Field, Ocean Beach, Baker Beach, and other primarily beach areas.
Beginning in 1991, various attempts were made to convert the off-leash areas designated in the 1979 Pet Policy to on-leash only. The GGNRA began to close off some areas – parts of Fort Funston, parts of Ocean Beach – to off-leash recreation (and frequently to all park users, not just those with dogs), citing newly planted native species or the presence of endangered or threatened species (e.g., the snowy plover on Ocean Beach).
In 2000, after accepting two closures at Fort Funston without complaint, Fort Funston Dog Walkers sued the GGNRA when it closed even more parts of Fort Funston without first soliciting public input. FFDW won the suit, which forced the GGNRA to solicit public comment on the closure. The results were overwhelmingly against the closure (about 1,100 letters and 5,000 signatures on petitions opposing the closure, 400 pre-printed postcards and letters supporting it). Still, the GGNRA elected to close even more land than had originally been planned to all recreational users (not just those with dogs). GGNRA staff have admitted at public meetings (first meeting of the Negotiated Rulemaking Committee, 3/6/06) that the FFDW lawsuit convinced them that they needed to find another way to deal with the issue of off-leash dogs in the GGNRA.
In January 2001, the GGNRA Citizens Advisory Committee placed on their agenda their intent to void the 1979 Pet Policy as “illegal.” National Park Service regulations require dogs to be on-leash-only in national parks. Therefore, the GGNRA argued, they never should have allowed them off-leash anywhere in the GGNRA. Over 1,500 people attended the meeting to protest the move, most waiting outside in the pouring rain for several hours (because there was no more room inside) to voice their opposition to the plan. Eight members of the Board of Supervisors and representatives of local State Assemblymembers urged the Advisory Committee not to rescind the 1979 Pet Policy. The Committee took no action.
Several days later, in February 2001, the GGNRA quietly voided the 1979 Pet Policy. There was no period of public comment, no public hearings. In March 2001, the GGNRA announced its intent to begin an Advanced Notice of Proposed Rulemaking (ANPR), to determine if off-leash recreation can be allowed in the GGNRA (note that this wording assumes the activity to be “illegal”). In April 2001, the GGNRA posted “Dogs must be on-leash” signs on nearly all GGNRA lands where dogs had traditionally been off-leash (and where they were legally allowed according to the 1979 Pet Policy). Enforcement of leash laws began and citations began to be issued.
In January 2002, the ANPR was published in the Federal Register, followed by a 90-day period of public comment (which ended in April 2002). Public comments ran 6-to-1 in favor of off-leash recreation (16,319 to 2,541, including personal comments, form letters and postcards, and petitions). More than half of the comments against off-leash recreation came from people who not only do not live in San Francisco, but also do not live in the state of California.
In October 2002, GGNRA Superintendent Brian O’Neill announced the National Park Service decision to proceed with the negotiated rulemaking process. Selecting professional mediators to conduct the negotiations, and identifying stakeholders and their selection of representatives to the negotiations moved at a glacial pace.
In the meantime, citations continued to be issued for people who had their dogs off-leash in those areas where they had been allowed to be off-leash in the 1979 Pet Policy. In 2004, three people who had been cited for walking their dogs off-leash at Crissy Field challenged their tickets. Note that these people did not sue the GGNRA. The three were defendants in a criminal case.
In December 2004, US Magistrate Judge Elizabeth D. LaPorte dismissed the tickets, ruling that because the GGNRA did not solicit adequate public comment before rescinding the 1979 Pet Policy, as required by federal statute whenever a policy change will be either significant or highly controversial, the 1979 Pet Policy was still in effect. The GGNRA appealed LaPorte’s ruling.
In June 2005, US District Court Judge William Alsup upheld the lower court’s ruling. Judge Alsup agreed that, because of the lack of public notice and comment before it was rescinded, the 1979 Pet Policy was still in effect. Because that policy allowed dogs to be off-leash at Crissy Field, he dismissed the tickets.
During the summer of 2005, three years after announcing they would begin the rulemaking process, the GGNRA finally published (in the Federal Register) the names of the people proposed to represent stakeholder groups in the negotiations. The first meeting of the Negotiated Rulemaking Committee occurred in March 2006. Several areas that were off-leash in the 1979 Pet Policy (e.g., parts of Ocean Beach, and nearly all of Marin County) were removed from consideration in the negotiations by the GGNRA before the negotiations began. SFDOG, and several other dog groups, continue to participate in the on-going negotiations.
In November 2006, the GGNRA closed parts of Ocean Beach and Crissy Field to off-leash dogs, without first soliciting public comment.
How does reversion fit into all this?
Some off-leash advocates have argued that the repeated closures of large areas (and even the entire GGNRA at one point) to off-leash recreation by the GGNRA have violated the agreements signed between San Francisco and the NPS that the GGNRA would maintain traditional outdoor recreational uses of the land. They also argue that the GGNRA has violated its agreement to “notify and consult with the Department of City Planning” on all proposed construction plans or “substantial alteration of the natural environment” of the parks that were transferred from San Francisco to the GGNRA (e.g., the GGNRA has not consulted with the Planning Department when it tore up large swaths of existing vegetation and replaced it with “native” plants, despite the closures and major impact on all recreational uses that resulted). These advocates are, therefore, calling upon the City of San Francisco to demand its parks back – reversion – as provided for in the deeds and agreements that transferred the lands from San Francisco to the GGNRA.
The Animal Control and Welfare Commission will debate whether to recommend that the SF Board of Supervisors begin the process to take back San Francisco’s lands at its meeting:
Animal Control and Welfare Commission
Thursday, February 8, 2007
5:30 pm
City Hall
Room 408
For more about reversion, see: http://oceanbeachdog.home.mindspring.com/
