The City of Sausalito's lawsuit over a development plan for the former Fort Baker Army base at the north end of the Golden Gate Bridge is headed back to district court. The Ninth U.S. Circuit Court of Appeals ruled that the Fort Baker proposal may be inconsistent with the San Francisco Bay Plan, and held that the district court should determine whether the National Park Service must get a “take” permit under the Marine Mammal Protection Act because of fishing pier and marina construction.

Although the Ninth Circuit rejected numerous other claims made by Sausalito, the ruling was a victory for the city. Sausalito has fought since the 1990s to prevent development at the closed base, which lies within the Marin County portion of the Golden Gate National Recreation Area. The city, which abuts the former base, would like to see Fort Baker's historic sites restored without additional commercial development. The Park Service contends that it must generate most of the money locally for the restoration of historic sites and natural resources.

To raise the funds, the Park Service adopted a plan in June 2000 that provides for a conference center and retreat with up to 350 guest rooms. The plan also provides for expansion of an existing museum, an addition to a Coast Guard facility, opening the marina to the public, restoring a beach and 42 acres of natural habitat, and rehabilitating hiking trails.

Sausalito's lawsuit alleges that the Park Service, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service violated no fewer than 10 different statutes, including the National Environmental Policy Act, the Endangered Species Act and the Coastal Zone Management Act. Federal Magistrate Judge Elizabeth Laporte ruled that Sausalito lacked the legal standing to pursue its claims in court. On appeal, the Ninth Circuit found that the city had standing, but that nearly all of its claimed failed. Two assertions, however, did survive the Ninth Circuit's review.

The Coastal Zone Management Act (CZMA) requires federal activities within the coastal zone to be consistent with state management programs “to the maximum extent practicable.” Fort Baker is covered by the San Francisco Bay Plan adopted by the San Francisco Bay Conservation and Development Commission. That plan specifically states that no commercial uses should occur at Fort Baker except for the convenience of park visitors. The Bay Commission approved a consistency determination submitted by the Park Service based on the theory that the new convention center would fund objectives of the Bay Plan, such as historic structure rehabilitation and park programs. However, lack of funding is “specifically forbidden as a criterion” for making a consistency determination, the Ninth Circuit ruled.

“The regulations implementing the CZMA specifically provide that 'federal agencies shall not use a general claim of a lack of funding … as a basis for being consistent to the maximum extent practicable with an enforceable policy of a management program,' 15. C.F.R. § 930.32(a)(3). In arriving at its consistency determination, and in procuring the Bay Commission's concurrence in that determination, the Park Service relied on just such a 'general claim' of insufficient funding,” the court ruled.

The second area where Sausalito had some success concerned the Marine Mammal Protection Act. The Park Service relied in part on United States v. Hayashi, 22 F.3d 859 (9th Circuit 1993) to determine that it would not “harass, hunt, capture or kill” marine mammals within the act's definition. However, the Ninth Circuit pointed out, the statutory definition of “harassment” has expanded since the Hayashi decision.

Because the District Court did not consider the merits of Sausalito's claim under the Marine Mammal Protection Act, the Ninth Circuit remanded the matter back to the lower court, along with the question of CZMA consistency.

The Case:
City of Sausalito v. O'Neill, No. 02-16585, 04 C.D.O.S. 9334, 2004 DJDAR 12799. Filed October 20, 2004.
The Lawyers:
For the city: Stephan Volker, (510) 496-0600.
For O'Neill, Barbara Goodyear, Department of the Interior, (510) 419-0413.