Tate v. Department of Conservation and Development

Decision Date07 July 1955
Docket NumberCiv. A. No. 1295.
Citation133 F. Supp. 53
CourtU.S. District Court — Eastern District of Virginia
PartiesLavinia G. TATE et al., Plaintiffs, v. DEPARTMENT OF CONSERVATION AND DEVELOPMENT, Raymond V. Long, Director, et al., Defendants.

Victor J. Ashe, J. Hugo Madison, Norfolk, Va., James A. Overton, Portsmouth, Va., for plaintiffs.

J. Lindsay Almond, Jr., Atty. Gen., Virginia, Henry T. Wickham, Sp. Asst., Richmond, Virginia, for defendants.

HOFFMAN, District Judge.

Seashore State Park, located in Princess Anne County at or near Cape Henry, is one of nine state parks scattered throughout Virginia. All of these parks have been maintained and operated under the supervision and control of the Department of Conservation and Development, an agency of the Commonwealth of Virginia. The parks, with their attendant recreational facilities, are supported by the taxpayers of Virginia, although charges are made for the individual use of cabins and other special purposes. By reason of its location on the Chesapeake Bay, Seashore State Park is extremely popular and, from a financial standpoint, is the most profitable of all parks in Virginia.

On June 16, 1951, the four named plaintiffs sought the use of the recreational facilities at Seashore State Park, but were denied admission solely by reason of the fact that they were members of the Negro race. Five days later they instituted this proceeding as a "class action" naming as parties defendant the Department of Conservation and Development, Division of Parks, its Director, and various other individuals related to the maintenance and operation of the Park in controversy. In substance, the complaint is a proceeding by way of declaratory judgment seeking an injunction against future violations because of the denial of plaintiffs' constitutional rights. The prayer for relief requests a permanent injunction against the defendants, their lessees, agents and successors in office.

The defendants, while admitting plaintiffs' rights in the use of the Park as a settled principle of law, vigorously urge that no decree may be entered by this Court which will have the force and effect of limiting the right to lease the Park. It is the contention of the defendants that the Virginia statute authorizes the leasing of any or all of the state parks and that, as long as no express provision is contained in the lease which would deprive plaintiffs of their constitutional rights, the normal lessor-lessee relationship would be applicable, thus permitting the lessee to establish his own rules and regulations as to use and occupancy. On the evidence presented, defendants insist that there has been no showing of threatened irreparable harm to justify a permanent injunction which would affect a lease agreement to be hereafter executed.

The present action has remained dormant on the docket of this Court since defendants filed their answer on July 16, 1951, until March 12, 1955, when plaintiffs were granted leave to file an amended complaint substituting a successor defendant and requesting a preliminary, as well as a permanent, injunction. On this latter date the Court, upon motion for a preliminary injunction, granted same, thereby restraining the leasing of Seashore State Park. In compliance with the Court's order plaintiffs gave bond in penalty of the sum of $25,000. The matter now comes before this Court on the application for permanent injunction.

The reasons for delay in prosecution are unknown to the Court, although the file indicates that the matter was continued generally on motion of counsel for plaintiffs, in which motion the Attorney General of Virginia joined. At a pre-trial conference on November 5, 1954, the matter was set for trial on April 26, 1955. The April hearing resulted in an informal conference, including a stipulation as to certain facts, and an agreement that the original answer would stand as an answer to the amended complaint. Thereafter briefs were filed and the Court, upon request of plaintiffs, fixed June 29, 1955, for the purpose of taking the testimony of Raymond V. Long, Director of the Department of Conservation and Development, and hearing argument of counsel. This opinion follows.

It is interesting to note that there was no specific consideration given to leasing any of the state parks until after the pretrial conference on November 5, 1954. According to Long there had been some general discussion in April, 1953, on the subject of competition with private enterprise occasioned by the use of cabins for overnight accommodations. Since the State operated all parks in 1954 on a so-called competitive basis and, during the 1955 season, has elected to similarly operate all parks excepting the one which is the subject matter of this action, it may be fairly assumed that the State has not yet given serious consideration to the abolition of any such competition, if any, with private enterprise. The State elected not to operate Seashore State Park, although the Court's preliminary injunction only restrained the leasing of the Park and its facilities.

The Attorney General of Virginia addressed a letter to the Director, Raymond V. Long, on November 26, 1954, pointing out the serious impact on state parks by reason of any adverse decision in the pending case. Thereafter, at the Board meeting of January 13, 1955, representatives of the Attorney General's office were present and explained the involved problems in connection with the continued operation of Seashore State Park. At the same meeting a motion was adopted authorizing the Director to "negotiate a proper lease of the Seashore State Park, with the consent and approval of the Governor, and with the advice and approval of the Attorney General and the Executive Committee of the Board, for the season of 1955".

In response to a press release on February 25, 1955, 18 applicants expressed an interest in leasing the park in controversy. According to the evidence the matter of an "open bid" or "highest bid" was rejected in favor of a "negotiated lease"; the reasons assigned being that the State was interested in obtaining a lessee "whose attitude promised to offer the most by way of recreational facilities to those who wished to benefit by them".

The following question propounded to the Director and answered by him rather concisely states the purpose in the contemplated leasing:

"Q. Why did the Board decide to lease the park that was bringing in the most revenue when it was a question of revenue? A. Well, I think that was explained in previous question and answer, that that was a large revenue producing park, Seashore, and that we could not under the State's declared policy operate it on an unsegregated basis, and in view of the pending litigation we probably would not be able to operate it on a segregated basis, and rather than lose that lucrative income it was deemed wise to undertake leasing Seashore as the first in this contemplated series of leasings".

With all due respect to the able leaders of this Commonwealth, it is perfectly apparent to the Court that the fundamental reason for the contemplated leasing lies in the problem of use by members of all races. It is probably true that financial reasons are paramount, but the potential financial loss is brought about by the decisions of many courts, State and Federal, universally holding that property acquired, maintained, and operated by the Federal, State and local governments shall be made equally available to all races, subject to reasonable rules and regulations. The proposed "negotiated lease" effectively vests in the hands of a small group the power to accomplish by indirection exactly what all Courts have said cannot be done. The control exercised in a "negotiated lease" through the medium of "selecting" the lessee is as powerful as the actual words of any written lease.

The history of the Virginia park system is of interest in approaching the general subject now before the Court. A State Commission on Conservation and Development was established by authority of the General Assembly of Virginia in 1926, Acts of Assembly 1926, Chap. 169. The Commission was authorized and empowered to adopt all rules and regulations for the proper disposition and administration of any property acquired or over which it gained control. The legislative history through 1954 fails to mention the subject of "race" in any of its pronouncements relating to state parks. The acts appropriating funds for the park system make no reference to "white" or "colored" parks as such. The original Act states that the acquisition, preservation and maintenance of properties is for "the use, observation, education, health and pleasure of the people of Virginia". With no equal facilities made available to members of the colored race, it is a source of some amazement that this question has not heretofore been decided in Virginia.

The establishment of the state park system in Virginia is an outgrowth of the depression days of the early thirties. The report of W. E. Carson, Commission Chairman, showing the history and activities from 1926 to 1935, discloses that, in 1933, President Roosevelt authorized the use of the CCC in building seven of Virginia's nine parks. The estimated expenditure by the Federal Government in these seven parks was in excess of $4,000,000, whereas the Legislature of Virginia appropriated only $50,000. By reason of some declared policy, the source of which is unknown, the first eight state parks were reserved for use by "the people of Virginia" who were members of the white race. In 1950 the Prince Edward County State Park was established for Negroes and, at the present time, is being operated at a financial loss. All other parks, except the Staunton River Park, are financially profitable.

A revenue bond issue in 1950 yielded $600,000, against which there remains an indebtedness of $415,000. The primary purpose of the bond issue was to erect 67 cabins at an...

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