12-Acre
Closure Book
1:FFDW Org
2:Enabling
3:Survey
6:Erosion
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ENABLING
LEGISLATION
This addresses the enabling legislation for Golden Gate
National Recreation Area. We
explain what the enabling legislation is and its significance in the
management and operation of Fort Funston.
In explaining its significance">
12-Acre Closure
Book 1:FFDW
Org 2:Enabling 3:Survey 6:Erosion Editor:
fortfunston@hotmail.com Webmaster:
Wedosites@mail.com
ENABLING
LEGISLATION This addresses the enabling legislation for Golden Gate
National Recreation Area. We
explain what the enabling legislation is and its significance in the
management and operation of Fort Funston.
In explaining its significance, we explore what Congress, the courts,
the Department of Interior, and the National Park Service’s own internal
publications say about the enabling legislation. We then apply the facts in this case to the law to set forth
the meaning of each statutory mandate. The
Enabling Legislation The enabling statute for GGNRA is found in Title 16, section
460bb of the United States Code. The
statutory mandates of section 460bb are as follows: (1)
To preserve for public use and enjoyment certain areas of Marin and San
Francisco Counties, California, possessing outstanding natural, historic,
scenic, and recreational values, (2)
To provide for the maintenance of needed recreational open space
necessary for urban environment and planning, (3)
To utilize the resources in a manner which will provide for recreation
and educational opportunities, in a manner consistent with sound principles of
land use planning and management, (4)
To preserve the recreation area, as far as possible, in its natural
setting, and (5)
To protect the recreation area from development and uses which would
destroy the scenic beauty and natural character of the area. Further, the courts and the Park Service have stated that, in
order to more clearly understand each park unit’s enabling legislation, the
legislative history for each park also must be examined.
Legislative history includes the reports of the House of
Representatives and Senate, as well as transcripts of hearings before these
bodies. Thus, the enabling
legislation is comprised of the enabling statute plus the legislative history. A portion of the legislative history for GGNRA is found in
report number 1391 of the House of Representatives. In this report, the House recognized the extreme need for
open recreational space in the Bay Area and provided the following additional
guidelines regarding the GGNRA: (1)
This legislation will . . . [establish] a new national urban recreation
area which will concentrate on serving the outdoor recreation needs of
the people of the metropolitan area. (Emphasis
added.) (2)
Action is required if . . . the relatively natural areas within the
city are to be available to satisfy the growing need for outdoor
recreational opportunities. (Emphasis
added.) (3)
The objective of H.R. 16444 is to assure the preservation of open
spaces presently prevailing within the proposed recreation area, to
provide public access along the waterfront, and to expand to the maximum
extent possible the outdoor recreation opportunities available to the region.
(Emphasis added). Contrast the statute establishing GGNRA with the statute
which created another urban recreational area (Gateway National Recreation
area, or “GNRA”) on the same day in 1972.
GGNRA and GNRA were the first urban recreation areas ever created in
the national park system. GNRA was established merely to “preserve and protect for
the use and enjoyment of present and future generations” an area in New
York. The enabling statute says nothing
about (1) “needed recreational open space necessary to urban environment and
planning,” (2) “sound principles of land use planning and management,”
(3) “preserving the recreation area, as far as possible, in its natural
setting,” or (4) protecting the area from uses which would “destroy the
scenic beauty and natural character of the area.”
We believe these four distinguishing provisions were included in the
GGNRA legislation on the insistence of San Francisco City officials,
specifically to have the meanings which are described below. What
Congress Has Said about the Enabling Legislation Much has been said throughout the underlying Fort Funston
litigation about the mission of the National Park Service.
The mission of the Park Service is found in Title 16, section 1 of the
United States Code. This section
provides that the fundamental purpose of national parks, monuments, and
reservations is -- [T]o conserve the scenery and the natural and historic and
the wild life therein and to provide for the enjoyment of the same in such a
manner and by such means as will leave them unimpaired for the enjoyment of
future generations. The
individuals, however, who are such ardent proponents of the above section
completely overlook a related provision in Title 16, section 1a-1.
Section 1a-1 was added to the United States Code in 1978 when the laws
governing national parks were rewritten to provide that all national parks
unit would be governed uniformly. Congress
was concerned that, even though all park units would be governed uniformly,
the unique purposes of each park would be overlooked.
Accordingly, Congress provided in section 1a-1 that the value and
purpose of each park unit would control in the management and administration
of each unit, and only Congress could circumvent this.
Section 1a-1 provides in relevant part: The
authorization of activities shall be construed and the protection, management,
and administration of these areas . . . shall not be exercised in derogation
of the values and purposes for which these various areas have been
established, except as may have been or shall be directly and specifically
provided by Congress. (Emphasis
added.) What
this means is that the Congressional mandate for each park unit, as set forth
in the enabling statute and accompanying legislative history, are to be the guiding
principles for each specific park unit, and the framework for each and
every decision affecting a park. Park
superintendents may not use Section 1's purposes to override the enabling
legislation for each park. What
the Courts Have Said about the Enabling Legislation Federal
courts look to the enabling legislation of particular park units to determine
whether the enabling legislation is being applied.
We have located two federal district court decisions which specifically
explored a park unit’s enabling legislation -- the district court in the
Northern District of California and the district court for the District of
Columbia. The Park Service,
therefore, is accountable to the courts for complying with the enabling
legislation for each park unit. What
the Department of Interior Has Said about the Enabling Legislation As
explained above, Congress changed the laws in 1978 to provide that all park
units would be governed uniformly. In
the early 1980s, the Department of Interior revised the federal regulations to
reflect this new statutory treatment. In
these new regulations, the Department of Interior properly recognized that
each park unit is to be treated in accordance with its own enabling
legislation. An example of some comments found in the Federal Regulation
when the new regulations were promulgated are as follows: Each
unit of the System must now be given more individual attention in planning and
management to ensure that legislative mandates and policy requirements
are met. 47 Fed. Reg. 11598 (Mar
17, 1982). (Emphasis added.) The
management tools of 36 C.F.R. “may not be used if they conflict with
enabling legislation, such as 16 U.S.C. 1 or the enabling legislation of a
specific park.” 47 Fed.
Reg. 11598, 11599; 48 Fed. Reg. 30252, at 30254 (June 30, 1983). (Emphasis
added.) [T]he
Service recognizes the high public value associated with outdoor recreation
and fully intends to comply with the legislative history governing the
intended public use of these areas. 48
Fed. Reg. 30252, at 30253. (Emphasis added.) What
the National Park Service Says about the Enabling Legislation The
Park Service’s internal manuals and publications have numerous references to
the necessity of following the enabling legislation.
Some examples of these provisions are found in the Park Service’s
“Management Policies” and “Field Guide to National Park Service
Performance Management.” These
provisions are: Management
Policies 1.
Congress has stated in the enabling legislation of most units of the
national park system that they have their own particular purposes and
objectives. 2.
Park managers should ascertain park-specific purposes and management
direction by reading the park’s enabling legislation or proclamation
and determine general management direction, not inconsistent with the
enabling legislation, from the organic act.
Wide variations exist in the degree to which the laws and proclamations
creating the individual units of the national park system prohibit or mandate
specific management actions. Where
Congress has provided specific guidance on particular management actions, it
is to be followed. (Emphasis
added.) Field
Guide The
purpose of a park, program or central office is usually defined in, or derived
from, the unit’s enabling legislation and from other legal documents
providing for its establishment. The
legislative history, congressional hearings, congressional reports on
legislation, presidential proclamations, and secretarial guidelines may
also have statements regarding a unit’s purpose . . .. Purpose statement
represents the government’s commitment (Congress’ expectation) to the
public how an area will be managed for the public benefit.
(Emphasis added.) What
the Enabling Legislation for GGNRA Means It
should be clear from the above that the enabling legislation for GGNRA must be
followed. What does this mean for
each of the statutory mandates? Mandate:
To preserve for public use and enjoyment certain areas of Marin and San
Francisco Counties, California, possessing outstanding natural, historic,
scenic, and recreational values. Meaning:
Fort Funston is to be used and enjoyed by the public, not set aside as
a nature reserve. How can the public use and enjoy an area if it is closed off? Mandate:
To provide for the maintenance of needed recreational open space
necessary for urban environment and planning. Meaning:
This mandate incorporates the theme that runs throughout the
legislative history and the documents surrounding the City and County of San
Francisco’s transfer of Fort Funston. There
was a crying need for open recreational space.
In one hearing, it was noted that children who are raised in Chinatown
would only experience concrete and asphalt under their feet.
San Francisco was, and still is, one of the most densely populated
cities in the country. The
recreational open space was, and still is, necessary to give people a respite
from the pressures of urban life. Fort
Funston is to be maintained as a public park, as it had been since 1961.
When San Franciscans voted on transferring Fort Funston to the Park
Service, they were assured that this would be just a jurisdictional shift or a
technical change, and that the park would be preserved for “recreational use
by all citizens.” Recall
the public park in which you played as a child.
Park visitors were allowed to roam the park freely, and there was no
concept of forbidden “social trails.”
Those parks are still there, providing wide-open play to generation
after generation of children. The
mandate requiring “the maintenance of needed recreational open space” does
not contemplate a park shut off to visitors, where visitors are allowed only
on a few designated trails. Fort
Funston is not Yosemite, the Grand Canyon, or even Alcatraz Island, where the
visitor population differs from day to day, and the typical visitor visits the
park only once in a lifetime. Fort
Funston is a public park in a crowded urban area, and must be managed and
operated accordingly. Mandate:
To utilize the resources in a manner which will provide for recreation
and educational opportunities, in a manner consistent with sound principles of
land use planning and management. Meaning:
Again, the focus here is “recreation.”
But, what is meant by “sound principles of land use planning and
management”? We believe this
provision was included to address the City and County of San Francisco’s
concerns that the City would lose control over its city parks once they were
transferred to the Park Service. This
provision, therefore, would insure adherence to principles of land use
planning and management, which mean that the public is involved in the
planning and management, and planning and management is executed with the
public’s needs and views in mind. The
Park Service’s “Management Policies” even require public input at all
stages of park planning, and provide: Throughout
the planning process, opportunities will be provided for the public at the . .
. [local level] to voice their concerns about planning and management of
parks. (Emphasis added.) NPS
Director’s Order 2 similarly requires public involvement, and provides: Public
participation in planning and decision-making will ensure that the National
Park Service fully understands and considers the publics’ interests in the
parks . . . . To the maximum
extent possible, the National Park Service will actively seek out
and consult with existing and potential visitors, neighbors, people with
traditional cultural ties to park lands, scientist and scholars . . .
(Emphasis added.) The
statutory mandate, coupled with the Park Service’s own requirements,
obligate the Park Service to work with the public before it implements a
change to park, not after the fact. Local
Park Service officials have implemented the proposed twelve-acre closure
backwards. The Park Service set
the objective of creating wildlife habitat at Fort Funston.
(This objective itself violates the mandate for recreational open
space.) The bank swallow colony provided the perfect pretext for
closures. Since 1991, Fort
Funston has been, and is being, closed off in piecemeal fashion in order to
achieve the original objective. The
public never has been allowed to participate in any of this planning or
decision-making. Now
that the Park Service’s actions have been found to violate federal
regulations, the Park Service has put together a proposal premised on faulty
scientific grounds to justify after the fact a decision made years ago.
It now is soliciting cursory public input on what may well be a done
deal. Shutting
the public out of the process until the last minute, then allowing them in
only under pressure from a federal court, to comment on a proposal that
probably is a foregone conclusion violates both the legislative mandate for
planning, and Park Service requirements. This is not what Congress or the City
and County of San Francisco envisioned. Mandate:
To preserve the recreation area, as far as possible, in its natural
setting. Meaning:
This mandate is not absolute. The
term “as far as possible” allows some flexibility. In
addition, the proposed closure for habitat is not a “preservation” of Fort
Funston in its “natural setting.” As
discussed fully in another section of this Opposition, Fort Funston never was
an area of lush “native” plants. Instead,
it was a moving sand dune with spotted vegetation. Proponents
of this closure have presented no evidence which remotely demonstrates that
Fort Funston once was the landscape that now is proposed.
The proposed plan is for the sole purpose of “creating” an
environment and ecology that never existed at Fort Funston in the first place,
in clear violation of the federal mandate and the 1975 Agreement with the City
and County of San Francisco. Mandate:
To protect the recreation area from development and uses which would
destroy the scenic beauty and natural character of the area. Meaning:
When GGNRA was established, there was great concern in the Bay Area
that our valued coastal open areas would be transformed by developers into
massive concrete structures. The
“development” contemplated in the statute is the development brought on by
over-zealous contractors. The
Park Service’s “Management Policies” specifically address the tension
between recreational use and the conservation of resources.
These policies permit only “temporary” closures of land, but only
if there is a “reasonable basis” that the resources are threatened, and
only after education and interpretation have failed.
This is very important. The
Management Policies provide: There
will inevitably be some tension between conservation of resources on the one
hand and public enjoyment on the other. The
National Park Service is charged with the difficult task of achieving both. As the population of the United States increases and become
more urbanized, education and interpretation will become increasingly
important in acquainting the public with its responsibility to protect
resources while using them. But
if and when a superintendent has a reasonable basis to believe a resource is
or would become impaired, the Park Service may, as one of its management
tools, temporarily close a specific area or otherwise place
limitations on public use. (Emphasis
added.) Education
— a requirement of the “Management Policy” — also is included in the
third mandate set forth above. Yet,
local Park Service officials never have tried education or interpretation in
an effort to protect the resources at Fort Funston.
Ron Schlorff, the California Fish & Game biologist responsible for
bank swallow protection, even has criticized the Park Service for its lack of
education at the park. In
addition, the Park Service has provided no reasonable basis for the proposed
closure, as required by the “Management Policy.”
Instead, the justification for the closure is made up of vague
generalities or erroneous science. Most
significantly, Park Service policy only recommends temporary closures, not a
closure that will last forever. Regarding
the scenic beauty, the fences at Fort Funston have destroyed the scenic
beauty, and transformed this gorgeous resource into a maze of unsightly
fences. The fences have blemished
the gorgeous views at the park, and ultimately could foreclose those views
forever. We
do not dispute that the fundamental goal of the Organic Act is resource
protection. We believe, however,
that resource protection at Fort Funston must be accomplished with the enabling
legislation and Park Service requirements in mind. Conclusion Local
Park Service officials must follow the enabling legislation in planning for,
administering, and operating Fort Funston.
Foremost, Fort Funston has baleen set aside to provide “recreational
open space.” It is a public
park in a very crowded urban area. The
public must be involved in all stages of the planning process, and the
public’s views must be considered.
Where the resources are threatened, the Park Service must educate the
public first, and use temporary closures as a last resort. Before
implementing any closure at Fort Funston, the Park Service must
first understand completely the legislative requirements.
Only then may it proceed, and then it must comply fully with all facets
of the mandates established so clearly by Congress.