By John Beck, for The Press Democrat
December 6, 2024 3:46 PM
The National Park Service agreed in court Friday to stop taking down the fence in Point Reyes National Seashore that separates several hundred tule elk from adjacent dairy farms and ranches, bowing for now to a last-minute legal challenge from ranchers.
It’s the latest twist in the ongoing saga of an 8-foot-high fence that environmentalists are calling the “ungulate Berlin Wall” and ranchers see as the next step in an ongoing push to oust them from the park.
“It’s a win for what it’s worth,” seashore rancher Kevin Lunny said of Friday’s court proceeding.
In the hearing in U.S. District Court Judge Jacqueline Scott Corley’s San Francisco courtroom, attorneys for the federal government agreed to halt fence removal that started Tuesday morning, a day after park officials issued a decision to remove the nearly 50-year-old fence, culminating several years of public comment and environmental assessment.
“That is actually absolutely the rational decision to make,” Corley told Assistant U.S. Attorney Michael Keough, who voluntarily stipulated to halt fence removal immediately. “I mean, that just makes complete sense in the circumstances.”
The seashore’s ranchers and farmers, who operate on about 18,000 leased acres within the public park, oppose the fence’s removal for fear of greater impacts on stored feed, pasture, water troughs and fences they rely on to raise their herds.
San Francisco attorney Tony Francois, who filed a preliminary injunction Tuesday and temporary restraining order Wednesday on behalf of the California Cattlemen’s Association and its member ranches on the West Marin peninsula, was pleased with the outcome.
“We think it’s a good day,” he said. “And it tends to show that probably somebody at the Park Service realizes that, like the expression about asking for forgiveness instead of permission, they really should have proceeded in a more straightforward manner with this.”
For now, it leaves a hole the size of nearly three football fields where the seashore’s largest elk herd can pass freely from the 2,900-acre reserve that had contained them at the northern end of Tomales Point onto nearby farms and ranches in the seashore.
After a small herd of once-endangered tule elk were relocated to Tomales Point in 1978, their numbers grew over the decades. But several hundred elk died during the severe droughts of 2013-2015 and 2020-2022, which led to a park reassessment of the 2-mile fence and their captive enclosure.
Recognizing the reality of a now-incomplete fence, California Cattlemen’s Association attorney Peter Prows requested in the hearing that the park return any elk that had crossed the open fence line in recent days, pointing to the park’s earlier general management plan amendment to deal with any elk that wandered out of the reserve.
“We’re just asking the Park Service to do what it had already decided to do,” Prows said. “The Park Service in 2021 didn’t perceive a practical difficulty in returning any elk from the Tomales Point area that managed to get into the pastoral zone back to the Tomales Point area. And we’re just asking that it stick with its decision.”
But Judge Corley would not rule on that, saying the request of a temporary restraining order only pertained to stopping the removal of the fence, not the returning of elk to the reserve.
Despite the latest decision, Jeff Miller and other seasoned environmentalists closely watching the case expect the park service will eventually prevail in court.
“The Park Service went through a formal environmental review process regarding the removal of the fence, and received a record number of public comments, overwhelmingly supporting taking down the elk-killing fence,” said Miller, a senior conservation advocate for the Center for Biological Diversity. “We’re confident that the court will rule that the review was legal and consistent with park policies, and that removal of the ungulate Berlin Wall and restoration of Tomales Point will be allowed to proceed.”
The Center for Biological Diversity is one of three environmental groups that filed suit against the National Park Service in 2022, challenging the park’s general management plan and the rights of ranchers to continue farming in the park. The litigation has been in mediation since June of 2022, with The Nature Conservancy joining the secret, closed-door talks earlier this year that some observers say could result in phasing out the four remaining dairies and 17 cattle ranches in the seashore.
An attorney representing many farmworker families who live on Point Reyes ranches has requested to intervene in the case, but no ruling has been issued. The next hearing is scheduled for January 10.
Francois thinks the next hearing to consider a preliminary injunction in the elk fence case will be held in mid-February. Until then, roaming elk will be free to come and go through the 850-foot-hole.
“We are concerned about elk getting through that portion of the fence while it’s down,” he said. “In the preliminary injunction proceedings to follow, we will be asking the court to direct them to put the fence back up. And we’re going to be asking that the Park Service not take any action to move elk out of Tomales Point toward that breach in the fence.”