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Fraud - A Case Against the NPS/GGNRA
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Jon Jarvis takes the oath of office as National Park Service Director

Fraud - A Case Against the NPS/GGNRA
Dr. Suzanne Valente and Stephen R. Golub

To truly understand why the Golden Gate National Recreation Area (GGNRA) is proceeding with their intended policy to limit the access of dogs and their guardians to this National Recreation Area, you must look beyond the GGNRA. We decided to compare another local conflict between stakeholders in the Point Reyes National Seashore (PRNS) to see if reviewing that circumstance could shed any light on the current situation in the GGNRA. Remarkably, the fog clears and we can see that the National Park Service (NPS) has repeatedly utilized a nefarious technique commonly referred to by scammers and their victims as “bait and switch” in order to perpetrate their vision of what Park properties should be. These actions were taken first in the PRNS because it was established 10 years prior to the GGNRA, but you will see the same pattern of practice over time in the GGNRA. The NPS has, indeed, defrauded the public as they endeavor over the years to deprive us of the recreational access they promised as a condition of their acquisition of public lands. They deprive us of access despite their acknowledgement at the time of acquisition that recreational access was necessary for our life, liberty and pursuit of happiness.

Let’s look for a moment at the enabling legislation for the Point Reyes National Seashore, established in 1962. “In order to save and preserve, for purposes of public recreation, benefit, and inspiration, a portion of the diminishing seashore of the United States that remains undeveloped, the Secretary of the Interior (hereinafter referred to as the “Secretary”) is authorized to take appropriate action in the public interest toward the establishment of the national seashore set forth in section 459c-1 of this title.”

Legislators proposing the creation of the PRNS acknowledged that management of the seashore would need to include “certain compatible exceptions” to the usual NPS policies governing existing parks, in order to provide a wider range and greater number of recreational opportunities. They cited, as examples, small-craft boating and sailing, sport fishing, swimming, and, possibly, golf.1 The sponsors suggested that agricultural uses of the land, such as grazing, could be allowed under permit in certain areas of the seashore. In 1962, Assistant Secretary John Carver wrote that the NPS considered existing oyster production and commercial fishing operations at Point Reyes as “being compatible with the national seashore concept.” 1

In March 1963, the President’s Recreational Advisory Council released “Policy Circular No. 1.” In it, the council laid out a new outdoor recreation policy for all agencies, with the key stipulation that all national recreation sites (including NPS national seashores) be accessible at all times for “all-purpose recreational use.”1 To make the point even clearer, it asserted that agency management of NRAs should be more responsive to recreational demands than to other such considerations as “preserving unique natural or historical resources.”1 The NPS was left with little choice but to heed these stipulations.

In response, the NPS advisory board decided to create three separate operating units and management goals for traditional NPS natural or Wilderness areas, Historical Monuments, and for the broad category of recreation areas. Secretary of the Interior Udall made official the new categories in his July 10, 1964, memorandum to new NPS director George B. Hartzog, Jr. Udall outlined the prescribed management policies for the recreational area category: “Outdoor recreation shall be recognized as the dominant or primary resource management objective.” Resource use would emphasize “active participation in outdoor recreation in a pleasing environment.”1

In part based upon these new management guidelines, the NPS was able to acquire the properties for the PRNS over the next ten years (1962-1972). Consistent with the guidelines, in 1965, the State of California granted to the federal government title to the entire tidal zone and submerged lands within the external boundaries of the national seashore.108 Chapter 983 of the California Act of July 9, 1965, reserved mineral and prospecting rights (excluding wells or drilling on surface) for the state and the right of California residents to “fish in the waters underlying the lands described.”1 The reservation included the right to collect, gather, or harvest shellfish.

Concurrently, the NPS was negotiating for properties to create the GGNRA. In 1972, the first GGNRA Superintendent William J. Whalen made specific promises to San Francisco voters that the new NRA would retain historical recreational access (including off-leash recreation) should they vote to include SF park properties in the GGNRA.

The enabling legislation (circa 1972) for the GGNRA states: “In order to preserve for public use and enjoyment certain areas of Marin and San Francisco Counties, California, possessing outstanding natural, historic, scenic, and recreational values, and in order to provide for the maintenance of needed recreational open space necessary to urban environment and planning, the Golden Gate National Recreation Area (hereinafter referred to as the ''recreation area'') is hereby established. In the management of the recreation area, the Secretary of the Interior (hereinafter referred to as the ''Secretary'') shall utilize the resources in a manner which will provide for recreation and educational opportunities consistent with sound principles of land use planning and management. In carrying out the provisions of this subchapter, the Secretary shall preserve the recreation area, as far as possible, in its natural setting, and protect it from development and uses which would destroy the scenic beauty and natural character of the area...”

A review of the Administrative history of the NPS and the enabling legislation for the PRNS and GGNRA clarifies that RECREATION and protection from residential and commercial development were the primary goals in setting aside the lands that now comprise the GGNRA and PRNS.

It is critical to note that the NPS was forced to implement these new and different management guidelines for Recreational Park properties. Even as the properties were being secured, the National Park Service was moving in the direction of abolishing the National Recreation, Historical Monuments, and Wilderness Management Categories. The General Authorities Act of 1970 began the legal unraveling of the three management categories. Officials in Washington assured field operations that these changes were administrative and "not intended to create significant changes in the management of parks."1 But in reality, the move was being made to reverse the priority of recreation. We shall now track the progression of this move to place “preservation/restoration” over recreation in both locations.

In 1974, the NPS created an official organizational structure that put PRNS, Muir Woods, Fort Point, and GGNRA under one administrative umbrella. William J. Whalen, superintendent of GGNRA, became the general superintendent in charge of the entire park complex in July 1974.1 In October 1977, PRNS returned to its prior status as a separate NPS unit. However, under Whalen’s watch, several decisions were made that were essential to the move away from recreation.

At PRNS: It was the belief of PRNS management that by the early 1970s, the ballooning number of seashore visitors was taking a toll on the Point Reyes coastal environment. The proximity of Point Reyes to San Francisco Bay Area, once a primary rationale for developing the peninsula’s recreational potential, now undergirded the need for greater natural resource protection.1

In response: In 1976 with the approval of PRNS officials, Congress designated the vast majority of the PRNS as wilderness.

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in accordance with with section 3(c) of the Wilderness Act (78 Stat. 890; 16 U.S.C. 1132(c)), the following lands are hereby designated as wilderness, and shall be administered by the Secretary of the Interior in accordance with the applicable provisions of the Wilderness Act: (k) Point Reyes National Seashore, California, wilderness comprising twenty-five thousand three hundred and seventy acres, and potential wilderness additions comprising eight thousand and three acres, depicted on a map entitled “Wilderness Plan, Point Reyes National Seashore”, numbered 612-90,000-B and dated September 1976, to be known as the Point Reyes Wilderness.”1

The definition of wilderness is as follows:

A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this Act an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.1

Except as otherwise provided in this Act, wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use. 1

Prohibition of certain uses:
Except as specifically provided for in this Act, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area.1

Certainly this new designation significantly changed the use/priorities of the PRNS. Further, it bears scrutiny that the remaining 8003 acres not designated as “wilderness” were designated as “potential wilderness”. The relevance of this will be obvious in 2004.

At the GGNRA: Considering his representations to SF voters and elected officials, it seems duplicitous at best that in 1977 the same William J. Whalen (a newly appointed Director in the NPS) officially dismantled the three-category distinctions which provided different management for National Recreation Area category properties (which included the GGNRA and PRNS). To answer the obvious question as to how the priority of recreation was still to be honored, it was said the promulgation of new regulations were developed to reflect "the actual Management practices which have become established in park areas, either through legislative requirements or policy decision." (Memo from Associate Director, Management and Operations to Directorate and Field Directorate, 12/22/77).

Congress bolstered NPS Director Whalen’s decision to further de-emphasize the Recreational preference in the Redwoods Act of 1978, which included an amendment to the General Authorities Act declaring the “regulation of the various areas of the National Park System, . . . shall be consistent with and founded in the purpose established by the [Organic Act] to the common benefit of all the people of the United States.”1

In response to public pressure to live up to the promise of recreational prioritization, the GGNRA created the “1979 Pet Policy” to allow off-leash recreation and access for dogs and their guardians on-leash in other parts of the GGNRA. However, the duplicity lay in the GGNRA’s intentional failure to designate the 1979 Pet Policy as a Section Seven Special Regulation—the type of regulation referred to in the Memo dated 12/22/77 referenced above. The significance of this will be apparent in 2001.

Finally, Director William J. Whalen’s 1980 NPS Management Policies produced a systemwide change in overall policy and management. In 1980, a revised "General Management Plan, Point Reyes National Seashore" arrived embedded within a joint PRNS-GGNRA publication. The clear directive was preservation first, recreation second.1

Fast forward to today, where the PRNS harbors controversy over the renewal of the lease for the Johnson oyster farming operation, and the GGNRA has controversy over access for dogs and their guardians. Consider the parallels as outlined below.

Both activities pre-date the management of these properties by the NPS, and the NPS promised to “grandfather” these activities despite the general prohibition of these activities in the National Park system. The oyster farming business dates back to 1934, and off-leash recreation on GGNRA properties has been in practice for well over 50 years.

It seems NPS management decided many years ago to renege on their promises and eliminate the oyster farm and dogs in the GGNRA; and the foundation to do so was set with malice aforethought. In 1976, 8,003 acres which included the oyster farming operation were designated as “potential wilderness”. In 1979, the Pet Policy was intentionally not implemented as a Section Seven Special Regulation. The following are six strategies the NPS has utilized to fulfill their goal of eliminating the oyster farm and dogs in the GGNRA:

  1. The NPS later attempted to manipulate these prior decisions to disavow themselves of both activities.

    In 2001, when the GGNRA moved to eliminate off-leash recreation in the GGNRA entirely, their reasoning was that the 1979 Pet Policy was never in compliance with Federal law beacuse it was not a Section Seven Special Regulation. Fortunately, a Federal judge saw the duplicity/fraud in the circumstance and reinstated the 1979 Pet Policy with the following explanation:

    “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.” (United States v. Barley, Order Of Affirmance, supra, p. 5.)

    A 2004 memo by the Department of the Interior's San Francisco field office regarding PRNS concluded that the federal government is empowered to treat "potential wilderness" as wilderness, and to "steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status."

  2. The NPS attempts to subvert established law regarding the rights of the State of California in these areas.

    This same 2004 Department of Interior memo rejects the assertion made by both Lunny (today’s oyster farm owner) and former Assistant Secretary of the Interior John Kyl that the Wilderness Act could not transfer to the federal government the fishing and mineral exploration rights held by the state of California.2 We remind the reader that Chapter 983 of the California Act of July 9, 1965, reserved mineral and prospecting rights (excluding wells or drilling on surface) for the state and the right of California residents to “fish in the waters underlying the lands described.” The reservation included the right to collect, gather, or harvest shellfish. 1

    The GGNRA intends to ban the recreational activities of dogs and their guardians upon the tidelands that are adjacent to GGNRA beaches. These tidelands remain subject to State “public trust” uses and may not have their longstanding recreational usage turned into purely conservation areas without violating State law and the terms of the permit under which the GGNRA manages some of these tidelands. The GGNRA’s position that the public trust doctrine goes into “dormancy” while it manages these tidelands is without any legal support. The 1987 permit specifically allows for enforcement of federal regulations on these State-owned tidelands only to the extent they are not inconsistent with State law. The “public trust” doctrine has been significant State law since California’s admission into the Union in 1850. The general recreational uses of these tidelands are not subject to federal rulemaking of any type.

  3. The NPS has a pattern of practice to allege environmental damage and provide questionable or no science/studies to support the elimination of activities they do not want to take place on their properties.

    At PRNS, in the midst of negotiations and discussions about extending the oyster farming operations 2012 lease, the Park Service came out with accusations of environmental damage, setting off a series of dueling scientific reports. Corey Goodman, a biological scientist reviewed Park Service studies on oysters. Goodman used Park Service records to refute much of the disputed data, and subsequent review by an independent panel concluded that the Park Service "selectively presented, over-interpreted, or misrepresented the available scientific information on potential impacts of the oyster mariculture operation."

    The current DEIS is premised as a necessity to save the GGNRA from being permanently degraded by overuse of the park. From the GGNRA DEIS Executive Summary, "Since the 1990s, the San Francisco Bay Area population and overall use of GGNRA park sites have increased…” However, based upon the GGNRA’s own records, the number of park visitors has NOT increased dramatically over the past 20 years. In fact, in 1987 the GGNRA experienced its greatest number of visitors, coming in at 21,767,176 recreational visitors. According to NPS statistics, in 2010, the total number of recreational visitors was 14,271,503, down about 34% from 1987. Consider also that in the past 20 years the GGNRA acreage has almost doubled in size, and expanded into San Mateo County. This puts a far larger population in direct proximity to the Recreation Area, yet the visitor numbers are down dramatically. As to the claims of environmental damage, the GGNRA conducted no studies and made no Staff Report to document the alleged environmental damage prior to initiating this DEIS. The GGNRA cannot provide justification for even conducting this DEIS. Further, evaluation of the data in the DEIS does not substantiate environmental damage due to dogs and their guardians. As was noted in the PRNS oyster situation, studies which conclude dogs and their guardians are not harmful to flora and fauna are omitted from the DEIS, and the studies relied upon by the GGNRA are merely observational studies conducted by individuals with a documented bias against dogs and their guardians.

  4. The NPS has a practice of abuse with respect to the Endangered Species Act.

    At PRNS, just as the designation of “potential wilderness” is re-interpreted as license to remove all human vestiges in an area, the NPS designates areas as “potential habitat”. The NPS treats “potential habitat” as if it were “critical habitat” and embraces all legal restrictions that would enure from that status.

    In the GGNRA, management routinely designates property adjacent to areas popular with off-leash recreationists and people who enjoy other recreational activities as “potential habitat” for sensitive, threatened or endangered species of plants or animals, and then proceeds to restrict access as if the area in question were “critical habitat”. These decisions have no basis in actual law. A perfect example of this type of action would be the 2008 restriction of dogs and their guardians at Ocean Beach and Crissy Field which are not critical habitat for the plover. Further, a 2007 study the GGNRA participated in that concluded dogs and people did not disrupt the plover’s activities was disregarded and restrictions were implemented.

  5. When it appears the NPS may not have the upper hand with respect to the law and the environmental issues they have brought up, they bring in their co-conspirators—a coalition of environmental organizations whose members generally provide data for their observational studies and run interference in the media. Additionally, these organizations have been known to exert political pressure on behalf of the NPS with Federal legislators.

    With respect to PRNS: A coalition of 15 environmental organizations, including the Environmental Action Committee of West Marin, the Marin Audubon Society, the Marin Conservation League, the National Wildlife Federation and the Sierra Club sent a letter to House Speaker Nancy Pelosi and other congressional leaders urging them not "to grant new federal benefits to an individual business interest."2

    In 2008, the GGNRA and it’s partnered environmental groups supported an attempt by Nancy Pelosi to surreptitiously slip a Park name change (and therefore a change in the governing mandates) from National Recreation Area to National Park through bill H.R. 6305. This action can be construed as an admission that the NPS/GGNRA is aware their actions do not conform to the enabling legislation. Public outcry upon the discovery of this section in HR 6305 forced Nancy Pelosi to withdraw her blatant attempt to circumvent the will of the people and the Federal Court.

  6. Last but not least, when the NPS has been shown to have relied upon science which is fatally flawed, they will do what they want to do anyway - regardless of the requests made by legislators including Senator Dianne Feinstein.

    With respect to the PRNS oyster farm issue: "The National Park Service has to make a decision soon on whether to renew (owner Kevin Lunny's) permit to continue their mariculture operations in the Drakes Bay," Feinstein wrote to Interior Secretary Ken Salazar. "The National Academy of Sciences report does not present any compelling ecological reason for refusing to renew the Drakes Bay Oyster Company lease in 2012."2  Jon Jarvis, current Director of the NPS, stated in response, "The permit of use and occupancy expires in 2012 and that really is a policy and law issue, not a science issue."3

    In the past, the GGNRA has implemented restrictions at Ocean Beach and Crissy Field based upon the seasonal presence of the Western Snowy Plover. When a study the GGNRA participated in determined that the recreation of humans and dogs was not affecting the plover, the GGNRA chose to ignore the study and implement restrictions anyway. Formal comments questioning their decision were submitted during the final comment period but they went unanswered and the restrictions were implemented. The current DEIS will further restrict activities at these areas although the latest study relied upon by the GGNRA found no legally defined harassment of the plover. There is no legal or practical basis for these restrictions. It’s just policy.

Citizens and the City and County of San Francisco should seriously consider reversion or an official request to the Congress to implement the original 1979 Pet Policy and make allowances for properties added after 1979 as a new Section Seven Special Regulation for the GGNRA.

1 Drakes Bay Oyster Company Special Use Permit Environmental Impact Statement Background Information (
2 Marin Independent Journal; “Feinstein backs extension of Drakes Bay oyster permit”; May 7, 2009; Rob Rogers
3 San Francisco Chronicle; “Scientists find errors in reports by Park Service”, May 6, 2009; Peter Fimrite

Congressman Issa's letter to DOI Secretary Salazar