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United States v. Barley

June 29, 2005

UNITED STATES OF AMERICA, APPELLANT,
v.
GRETCHEN BARLEY, STEPHEN S. SAYAD, AND DONALD KIESELHORST, RESPONDENTS.



The opinion of the court was delivered by: William Alsup United States District Judge

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.

* * * 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 ...


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