Negotiated Rulemaking


In 2001, the GGNRA tried to outlaw off-leash recreation on its lands by rescinding the 1979 Pet Policy. This effort ultimately failed when individuals challenged their leash-violation tickets in court four years later, arguing successfully that the GGNRA could not unilaterally rescind its formally constituted policy without public comment or process.

However, in 2002, three years before the court decisions, then-Superintendent Brian O’Neill responded to overwhelming public support for off-leash recreation and announced that the GGNRA would begin a Negotiated Rulemaking (NR) Process to determine if there were any places in the GGNRA where dogs could be walked off-leash. Keep in mind that he assumed he had made off-leash dog walking illegal everywhere in the GGNRA and was starting the process from scratch, with no existing off-leash areas.

Negotiated Rulemaking assumed off-leash dog walking was illegal

The announcement of NR included a list of places under consideration for off-leash dog walking, suggested by the GGNRA. This list included some but not all of the sites where off-leash had been legal in the 1979 Pet Policy. When NR was finally begun in 2006, however, two federal courts had reinstated the 1979 Pet Policy. The GGNRA should have changed the baseline for the NR discussions to acknowledge the courts’ rulings, and, at the very least, should have included all the sites where off-leash recreation was allowed in the 1979 Pet Policy. Indeed, the “Situation Assessment Report” on the Proposed Negotiated Rulemaking, prepared by the facilitators chosen by the GGNRA to run the meetings (and issued on September 14, 2004, before the court rulings), stated: “other litigation is pending… These lawsuits could prove to have only minor substantive impact on a committee’s work, or could have a significant effect on rulemaking by changing the relevant legal framework for decision making.”

However, the GGNRA chose to continue with the rulemaking process as it had originally proposed. Instead of being treated as a legally acceptable activity that had been going on for decades (as per the court rulings), dog walking was treated as an aberration that should never have been allowed to happen. This resulted in a clear bias against off-leash dog walking in the negotiations.

 Restrictions on which sites the NR Committee could consider for off-leash access

When the GGNRA published the Advanced Notice of Proposed Rulemaking (ANPR) in the January 11, 2002 Federal Register, they listed sited that were precluded from discussion in the negotiations.  The Notice of Intent to Establish a NR Advisory Committee (NOI) published in the June 28, 2005 Federal Register also included a list of sites precluded from discussion, but, in this second document, a few additional sites were precluded (e.g., all trails in undeveloped areas). Click here to read the NOI It is not clear why the lists of precluded sites in the two documents did not match. Both the ANPR and the NOI listed only areas not under consideration. A reasonable reading of both documents indicated that the NR Committee would be considering everywhere else in the GGNRA.

On July 31, 2006, GGNRA staff distributed to the NR Committee a document entitled “Parameters and Scope of Negotiated Rulemaking Discussion.” The Parameters document included a list of all sites open to discussion in NR and whether they could be considered for off-leash, on-leash only, or no dogs at all.  GGNRA staff should not have arbitrarily restricted the sites open for discussion or to decide a priori what type of access for people with dogs would be acceptable at each site.

As a result, instead of negotiating a park-wide dog management policy for the GGNRA, as the ANPR and NOI implied, the NR Committee were told that they could only approve or disapprove dog walking at a few pre-selected sites. The sites included in the Parameters document were much more restrictive than anything in the ANPR or the NOI. Representatives of dog groups were told that they could not add to or change the twelve sites on the Parameters list. However, there was nothing in the ANPR or the NOI that precluded the NR Committee from discussing these other sites. Preventing the Committee from discussing any site not on the Parameter list violated the spirit and the requirements of Negotiated Rulemaking.

When one dog group (Ocean Beach DOG) objected to the way the GGNRA was proposing to conduct NR, they were removed from the NR Committee before its first meeting. As a result, users of one of the major areas where people walk their dogs off-leash were not represented during NR.

Problems once NR began

In theory, the negotiated rulemaking process seemed a reasonable way to deal with a controversial issue. Representatives of various affected stakeholders sit down together and try to hash out a compromise that all can live with. However, to be successful, NR requires that the people in the room negotiate in good faith, that they honestly listen to one another’s views and re-examine their own over the course of the negotiations. Unfortunately, this was not the case.

In August 2005, several months before NR was scheduled to begin, off-leash opponents submitted an Emergency Petition to the GGNRA demanding that it once again rescind the 1979 Pet Policy and require dogs to be leashed everywhere in the GGNRA. This petition was largely denied (the GGNRA did impose additional restrictions on off-leash at Ocean Beach and Crissy Field), but it poisoned the atmosphere for negotiation before it even had a chance to begin.

Before being appointed to the NR Committee, stakeholder representatives were asked if they were “open” to off-leash dogs as an option, and also if they understood that a consensus regulation might also limit off-leash access. Everyone said they were open to both options. However, once NR meetings began, it became clear that some Committee members had no such flexibility. For example, some off-leash opponents refused to budge from demands that off-leash areas either be surrounded by six-foot-tall impermeable barriers (like chain-link fences) or not exist at all. They stuck to this position even after GGNRA staff made clear that fences around off-leash areas were not an option they would consider.

By contrast, proponents of off-leash recreation were willing to discuss some limits on off-leash access at certain sites. They submitted a proposal for managing dogs at the sites under consideration that included options that included restrictions such as timed use – dogs required to be on-leash on parts of some beaches at peak times (mid-day) on summer weekends, but allowed off-leash the rest of the time on those same parts. Even though there was broad Committee support for the compromises suggested by the dog caucus at these sites, a few off-leash opponents were able to prevent any from being adopted by the full NR Committee. Click here to read the final report of the team who facilitated the NR Committee discussions for more on how NR played out.

Non-results of Negotiated Rulemaking

In 2006, and again in July 2007, during the period when the NR Committee was ostensibly negotiating where dogs could be off-leash, GGNRA staff erected signs at Lands End and Fort Funston that said dogs had to be on leash in those areas. Representatives of dog groups complained that the court rulings had made it clear that dogs were indeed still allowed off-leash in those areas (they were included in the 1979 Pet Policy). Plus both sites were ostensibly still under consideration for off-leash dog walking in NR. As a result of the complaints, GGNRA staff pasted a temporary sticker over the posted restriction, a sticker that would be easy to remove if (or when) the GGNRA changes the off-leash status of those areas. These actions did call into question, however, the GGNRA’s commitment to NR and the possibility of off-leash access in those areas where it had traditionally occurred.

The full NR Committee met seven times from March 6, 2006 to October 27, 2007. A Technical Subcommittee met nine times during that same period. In essence, the GGNRA hoped that the NR Committee would develop consensus plan on where dogs could be off-leash. This consensus plan would then become the basis for one of the alternatives studied in the Draft Environmental Impact Study for a new Dog Management Plan released in January 2011, and would likely have become the GGNRA’s Preferred Alternative. However, largely because of the unfair way NR was conducted, no consensus plan was developed.

When it ended in October 2007, the NR Committee, in its final meeting, did agree that dogs could be off-leash on a portion of one trail in the Marin Headlands. But because this single agreement was isolated and not part of any larger, GGNRA-wide plan, it was essentially meaningless.

Click here to read a letter sent by SFDOG to GGNRA Superintendent Brian O’Neill on September 5, 2007, near the end of NR, outlining our concerns and complaints about NR. We never received a response from the GGNRA.