U.S. v. Barley, CR 04-0408 WHA.
| Decision Date | 02 June 2005 |
| Docket Number | No. CR 04-0408 WHA.,CR 04-0408 WHA. |
| Citation | 405 F.Supp.2d 1121 |
| Parties | UNITED STATES of America, Appellant, v. Gretchen BARLEY, Stephen S. Sayad, and Donald Kieselhorst, Respondents. |
| Court | U.S. District Court — Northern District of California |
Denee A. Diluigi, United States Attorney's Office, San Francisco, CA, for Appellant.
Christopher J. Cannon, Sugarman & Cannon, San Francisco, CA, for Respondents.
Stephen S. Sayad, San Francisco, CA, pro se.
ORDER OF AFFIRMANCE
For the reasons stated by Magistrate Judge Elizabeth D. Laporte, the dismissals are AFFIRMED. All further issues raised on appeal are, in this Court's view, adequately answered as follows.
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Off-leash dog use had been a long tradition at various fields and beaches within what became the Golden Gate National Recreation Area in 1974. When the GGNRA was formed, an issue arose over the extent to which this tradition should continue. So far as this record reveals, neither the National Park Service nor anyone else then suggested that park service regulations might prohibit off-leash dog use in the GGNRA. Rather, the issue was cast as one of balancing pet owners' recreation against public safety and resource protection. And, it was cast solely as a local issue for the GGNRA superintendent to decide.
After considerable input via the Golden Gate National Recreation Area Advisory Commission, a statutory creature, 86 Stat. 1302, the GGNRA superintendent adopted a policy of allowing off-leash dog use at seven or more locations within the GGNRA, including at Crissy Field and its beach but closing other sites altogether to pets. In this regard, the Advisory Commission's recommendations were adopted "in total" by the superintendent in 1978 (Tab B). In 1982, the off-leash areas were further incorporated into the GGNRA general management plan (Tab K).
Time and again, the NPS reiterated that off-leash dog use was allowed within the GGNRA (in designated areas). This came in 1992, for example, from no less authority than the legendary Stanley T. Albright, then the Regional Director of the Western Region (in a letter to a United States senator) (Tab D). In a 1995 letter, GGNRA Superintendent Brian O'Neill stated to the president of the San Francisco SPCA that "we have no intent to eliminate the availability of the Presidio's northern waterfront (including Crissy Field) as an off-leash dog-walking area" (Tab G).
Similarly, in 1993, the next regional director, John Reynolds, stated that the "GGNRA has adopted a pet policy that is more liberal than the regulations enforced at other national park sites throughout the United States, where pets are required to be leashed at all times ..." (Tab M). He added:
GGNRA has, with the assistance of the park's Advisory Commission, established a pet policy that allows some opportunity for visitors to enjoy a few designated areas with their pets under less restrictive restraint. Certain areas of the park have been designated as voice-control areas where pets are allowed off-leash. Other sites are open only to leashed pets, and some portions of the park are closed to pets to protect sensitive resources.
Plainly, as this letter shows, the NPS regional director was aware of the general leash rule but understood that it had been relaxed and liberalized in the GGNRA. And at least implicitly his letter indicated that such relaxation was lawful.
In 1996, GGNRA Superintendent O'Neill "approved" and signed formal provisions entitled (Tab J):
Golden Gate National Recreation Area
Code of Federal Regulations Title 36, Chapter 1
Compendium Amendment.
The preamble stated that the superintendent was issuing the rules in accordance with the following authorities:
In accordance with regulations and the delegated authority provided in Title 36, Code of Federal Regulations, Chapter 1, Parts 1 through 7, authorized by Title 16, United States Code, Section 3, the following regulatory provisions are established for the proper management, protection, government and public use of the portions of Golden Gate National Recreation Area, the Presidio of San Francisco, Muir Woods National Monument, and Fort Point National Historic site under the jurisdiction of the National Park Service.
The rule designated Crissy Field (and its beach) for obedient pets on voice control, off-leash (Tab J). A note stated that the areas designated were subject to modification or termination for safety or resource protective reasons. Maps indicated the off-leash areas. (A year later, however the next revised compendium was silent as to off-leash areas.)
In March 1999, Superintendent O'Neill wrote the Honorable Nancy Pelosi stating that the GGNRA had adopted a pet policy more liberal than pet regulations at other national park sites throughout the country, stating that "[c]ertain areas of the park have been designated as voice control areas when pets are permitted off-leash" (Tab O). As above, the letter left no doubt that the superintendent knew of the general leash regulation but understood that the GGNRA had authorized more liberal designations permitting certain off-leash use.
In December 1999, Superintendent O'Neill stated in a letter to a San Francisco resident (Tab N):
Traditionally, dogs have been allowed off-leash and under voice control along the entire Crissy Field promenade and waterfront. Dogs and their owners may continue to enjoy Crissy Field off-leash and under voice control in the cypress grove, the turf area near the Marina Street entrance, as well as along certain portions of the beach. Dogs will be allowed off-leash and under voice control in the West Bluff Picnic Area and in the airfield meadow when restoration of those areas has been completed. In off-leash areas, a dog must be leashed immediately if it displays aggressive behavior towards other visitors, dogs or wildlife, or is not immediately responding to voice commands.
A park brochure entitled "Enjoying the Park with Your Dog" stated "[d]ogs may be off leash under voice control on Crissy Field east of the west gate of the Golden Gate Promenade ..." (Tab P). An April 1998 NPS press release stated that the GGNRA had designated appropriate areas where dog walking could take place on- or off-leash without negatively impacting the resources or other uses (Tab Q).
In 2000, a heated controversy arose when the GGNRA closed a portion of Fort Funston, part of the GGNRA, to dog-walking. This Court heard the dispute and granted a preliminary injunction against the closure until the NPS complied with its own rule requiring notice and public comment prior to land closure of a "highly controversial" nature. Ft. Funston Dog Walkers v. Babbitt, 96 F.Supp.2d 1021 (N.D.Cal.2000).
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In 2002, the NPS reversed field. In a Federal Register notice on January 11, 2002, the NPS acknowledged that "[f]or more than 20 years" a "voice control" policy had been in place within the GGNRA but stated that this had been "in error." The NPS stated that this policy was in conflict with a general nationwide regulation that all pets be on leash in all parks. 67 Fed. 0Reg. 1424 at 1425. The regulation, 36 C.F.R. 2.15(a)(2), prohibited park visitors from:
Failing to crate, cage, restrain on a leash which shall not exceed six feet in length, or otherwise physically confine a pet at all times.
This new interpretation of the law was conceived by the United States Attorney's office in the Fort Funston litigation, according to government counsel herein, and then adopted by the NPS.
With the 2002 notice, the GGNRA began enforcement of the general leash rule and closed the entire park to off-leash use. The 2002 notice called for public comment on whether the GGNRA should adopt a local regulation making an exception to the general leash rule. One specific option on which comment was requested was whether "off-leash dog use" should be allowed "in specific locations within the park." The notice stated that "[t]his option would require rulemaking." Id. at 1430. So far no final rule has emerged from the 2002 notice.
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In sum, for more than twenty years, the GGNRA officially designated at least seven sites for off-leash use. This was not accidental. It was a carefully articulated, often studied, promulgation. The responsible GGNRA officials in 1978 and thereafter presumably believed they were acting lawfully. Even now, the government concedes that the GGNRA had full authority at all times to relax the general leash rule at the GGNRA but argues it could have done so, at least after 1983, only via a "special regulation." In other words, the agency allegedly used the "wrong" procedure back in 1978 (and thereafter) even though a "right" procedure to reach the desired result was available and could have been used. The government has not revealed its internal justification for following the "wrong" process. Whatever it was, the justification was abandoned in 2002 with the two-word explanation that it had been "in error." With this ipse dixit, the NPS wiped away two decades of policy, practice, promulgations, and promises to the public.
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All agree that the three accused were cited for off-leash dog walking at Crissy Field, an area open to such use since at least 1978 (until the 2002 closures). Judge Laporte held that the 2002 closures in question violated 36 C.F.R. 1.5(b). This order agrees.
In 1983, the NPS revamped its regulations and added a new provision to require notice-and-comment procedures before any "highly controversial" closure or opening of NPS land or before any such action that would have a major impact on visitor-use patterns. Specifically, this provision required a notice-and-comment procedure before "a closure, designation, use or...
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