386 F.3d 1186 (9th Cir. 2004), 02-16585, City of Sausalito v. O'Neill

Docket Nº:02-16585.
Citation:386 F.3d 1186
Party Name:CITY OF SAUSALITO, a municipal corporation, Plaintiff-Appellant, v. Brian O'NEILL; John Reynolds, Regional Director of the National Park Service, in his official capacity; Nat'l Park Service, an agency of the U.S. Dept. of the Interior; Cay C. Goude, Acting Field Supervisor of the U.S. Fish & Wildlife Service, in her official capacity; Wayne White,
Case Date:October 20, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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386 F.3d 1186 (9th Cir. 2004)

CITY OF SAUSALITO, a municipal corporation, Plaintiff-Appellant,


Brian O'NEILL; John Reynolds, Regional Director of the National Park Service, in his official capacity; Nat'l Park Service, an agency of the U.S. Dept. of the Interior; Cay C. Goude, Acting Field Supervisor of the U.S. Fish & Wildlife Service, in her official capacity; Wayne White, Field Supervisor of the U.S. Fish & Wildlife Service, in his official capacity; Marshall P. Jones, Acting Director of the U.S. Fish & Wildlife Service, in his official capacity; U.S. Fish & Wildlife Service, an agency of the U.S. Dept. of the Interior; Rodney McGinnis, Acting Regional Administrator of the National Marine Fisheries Service, in his official capacity; James R. Bybee, Northern Area Environmental Coordinator of the National Marine Fisheries Service, in his official capacity; William Hogarth, Director of National Marine Fisheries Service, in his official capacity; National Marine Fisheries Service, an agency of the U.S. Dept. of the Interior, Defendants-Appellees.

No. 02-16585.

United States Court of Appeals, Ninth Circuit

October 20, 2004

Argued and Submitted Nov. 3, 2003.

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Stephan C. Volker, Oakland, CA, for the appellant.

John A. Bryson, Charles M. O'Connor, John L. Smeltzer, United States Department of Justice, Washington, D.C.; Barbara Goodyear, United States Department

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of the Interior, Oakland, CA, for the appellees.

Appeal from the United States District Court for the Northern District of California; Elizabeth D. LaPorte, Magistrate Judge, Presiding. D.C. No. CV-01-01819-EDL.

Before: CANBY, W. FLETCHER, and TALLMAN, Circuit Judges.


The City of Sausalito, California, brings suit to enjoin the National Park Service from implementing its plans for the development and rehabilitation of Fort Baker, a former military base near Sausalito. Sausalito contends that the National Park Service, the National Marine Fisheries Service, and the United States Fish and Wildlife Service have violated numerous environmental and conservation-oriented statutes, including the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347; the Endangered Species Act, 16 U.S.C. §§ 1531-1544; the Coastal Zone Management Act, 16 U.S.C. §§ 1452-1465; the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712; the Marine Mammal Protection Act, 16 U.S.C. §§ 1371-1421h; the National Park Service Concessions Management Improvement Act, 16 U.S.C. § 5951, et seq.; the Omnibus Parks and Public Lands Management Act of 1996, 16 U.S.C. § 17o ; the National Park Service Organic Act, 16 U.S.C. §§ 1-18f-3; the Act creating the Golden Gate National Recreation Area, 16 U.S.C. § 460bb; and the Administrative Procedure Act, 5 U.S.C. §§ 701-706.

The magistrate judge, hearing the case by consent, granted summary judgment for Defendants, holding that Sausalito lacked standing to assert many of its claims, and that the other claims failed on the merits. We hold that Sausalito has standing to assert all of its claims. However, with the exception of its claims under the Coastal Zone Management Act and the Marine Mammal Protection Act, we hold that Sausalito's claims fail on the merits.

I. Background

Fort Baker ("the Fort" or "the site") is located in Marin County, California, just over the Golden Gate Bridge from San Francisco. The Fort lies in a 335-acre valley just inside the entrance to San Francisco Bay. It is bounded to the south and east by the shore of the Bay. The City of Sausalito is just north of the Fort, also on the shore of the Bay.

Fort Baker was established as an Army post around the turn of the last century. In 1972, when Congress established the Golden Gate National Recreation Area as a unit of the National Park System, Fort Baker was included in the Recreation Area's boundaries, with the expectation that it would be fully incorporated once it was no longer needed by the Army. See 16 U.S.C. § 460bb-2. The Army has been transferring portions of the site to the National Park Service ("Park Service") since the mid-1980s. The Base Closure Act, 10 U.S.C. § 2687, mandated that Fort Baker be closed as an Army facility and completely transferred to the Park Service by 2001.

Fort Baker has been described as "one of the most special gems" of the Golden Gate National Recreation Area. It is praised for its serenity, hiking trails, wildlife, water access, and scenic views. Numerous species of wildlife and vegetation live at Fort Baker, including the endangered Mission Blue Butterfly, for which the Fort is one of its few remaining habitats. The site includes 183 acres of tideland, more than a mile of rocky shoreline, and a harbor at Horseshoe Bay that is

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protected by a ten-acre breakwater. Because of two dozen historic buildings arranged around the perimeter of a ten-acre "Parade Ground," the Fort is classified as a historic district in the National Register of Historic Places. The Fort is also home to the Bay Area Discovery Museum, a United States Coast Guard Station, and the Presidio Yacht Club.

In 1980, the Park Service drew up a General Management Plan ("GMP") for the Golden Gate National Recreation Area, including a discussion of the possible future uses of Fort Baker. Pursuant to the National Environmental Protection Act, the GMP was accompanied by an environmental impact statement ("EIS"). The GMP approved the use of historic buildings at Fort Baker as a conference center, the removal of a wooden bulkhead to restore a beach, improvements to the landscape, and the construction of additional parking. In anticipation of the complete transfer of Fort Baker to its authority, the Park Service later sought to update the GMP's proposals to account for critical developments that had occurred since 1980, such as the discovery of a federally listed endangered species at the site. The Park Service therefore prepared a new EIS, which is site-specific to Fort Baker.

The Park Service initiated public scoping in 1997, followed by a period of public comments and meetings. In October 1998, the Park Service released its draft EIS. Thereafter, the Park Service conducted another public scoping, took public comments, and held an additional public meeting. After close of the review period in December 1998, the Park Service agreed to hold additional meetings with Sausalito to address its concerns about the draft EIS.

A final EIS ("FEIS") was released in October 1999. The FEIS details four alternatives for developing Fort Baker, and selects one of these as the plan it proposes to implement ("Fort Baker Plan" or "Plan"). In formulating these alternatives and selecting the Fort Baker Plan, the FEIS identifies the needs of the site, the purpose for the action, and the objectives the Park Service seeks to achieve.

The FEIS identifies three major needs to which the proposed action responds. First, the FEIS recognizes a need to "arrest deterioration" of Fort Baker's historic buildings and "allow for occupancy that will provide for their ongoing care." Second, noting that "Fort Baker's natural values are also exceptional," the FEIS recognizes that "[p]rotection and enhancement of the natural resources of the site as it receives greater public use will require a comprehensive strategy to balance these needs." Third, the FEIS notes that "existing facilities and features for visitors' enjoyment for the site are minimal and inadequate" and that "[t]he Bay Area Discovery Museum [] requires additional space at Fort Baker for its program...."

Based on these stated needs, the FEIS identifies five purposes of the proposed action. These purposes are to identify: (1) "the program and types of uses that would be accommodated in the historic buildings that would generate adequate revenue for building rehabilitation and preservation"; (2) "improvements to facilitate public uses, including new construction and removal of buildings, landscape treatments, trails, parking circulation, and locations and patterns of use"; (3) "waterfront improvements"; (4) "opportunities for habitat restoration"; and (5) "an approach to the protection, rehabilitation and maintenance of historic and natural resources."

Based on these needs and purposes, the FEIS proposes six objectives designed to "create a framework for considering and evaluating new uses and site improvements." First, the proposed action

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should promote the Park Service's mission by providing public programs and opportunities; protecting, restoring, and maintaining historic, cultural, and natural resources; and providing opportunities for education and interpretation to a diverse public constituency. Second, the proposed action should achieve both environmental and financial sustainability. The latter objective means that the proposed action should "[g]enerate a stable source of revenue that contributes to historic, cultural and natural resource preservation and interpretation including overall site and infrastructure costs." Third, the proposed action should retain and complement the site's special qualities by demonstrating a compelling reason for the program's location at Fort Baker, and by providing waterfront access. Fourth, the proposed action should promote public access by providing for park user and program diversity and promoting public access to buildings and programs. Fifth, the proposed action should minimize environmental impacts, including impacts to the site, adjacent communities, other park sites, traffic, and parking....

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