Community for Creative Non-Violence v. Watt, N-VIOLENCE
| Decision Date | 25 January 1982 |
| Docket Number | No. 81-2381,NON-VIOLENCE,N-VIOLENCE,81-2381 |
| Citation | 216 U.S.App.D.C. 394,670 F.2d 1213 |
| Parties | COMMUNITY FOR CREATIVE, et al. v. James G. WATT, Secretary of Interior, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-2844).
Robert Craig Lawrence, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Royce C. Lamberth, Kenneth M. Raisler, Asst. U. S. Attys., and Dianne Kelly, Atty., Dept. of Interior, Washington, D. C., were on the brief for appellants.
Ralph S. Tyler, Washington, D. C., with whom Ilene J. Jacobs and Arthur B. Spitzer, Washington, D. C., were on the brief, for appellees.
Before ROBINSON, Chief Judge, and WALD and EDWARDS, Circuit Judges.
Opinion PER CURIAM.
This case comes to us on appeal from an order of the District Court granting in part the appellees' motion for summary judgment. The appellees are the Community for Creative Non-Violence ("CCNV"), an unincorporated religious association working on behalf of homeless persons, and ten named individuals. 1 In the fall of 1981, the appellees applied to the Department of the Interior, National Park Service, for a permit to hold a demonstration in Lafayette Park, across Pennsylvania Avenue from the White House, from November 26, 1981 through March 20, 1982, as a means of calling attention to the plight of homeless persons. 2 The application indicated that CCNV would provide the demonstration participants with shelter, in the form of tents, sleeping bags and blankets; meals, either in its drop-in centers or in the Park; and all necessary sanitation facilities. 3 By letter dated September 30, 1981, the Park Service denied this application, citing 36 C.F.R. § 50.27. 4 That Park Service regulation restricts "camping" to areas designated by the Superintendent of National Capital Parks. 5 Lafayette Park is admittedly not so designated.
Following receipt of this denial, the appellees filed suit in the District Court seeking to enjoin the National Park Service from denying them permission to demonstrate in the manner sought, 6 and moved for a preliminary injunction. 7 By order dated November 25, 1981, the District Court denied this motion. 8
On November 30, the National Park Service granted the appellees a permit for a seven-day demonstration in Lafayette Park. 9 This permit excluded any use of the area for camping or living accommodations, but did provide for the erection of nine "symbolic" tents. 10 Apparently, permission for this latter activity was granted pursuant to 36 C.F.R. § 50.19(e)(8), which provides that "(i)n connection with permitted demonstrations or special events, temporary structures ... shall be permitted." 11
On December 17, the appellees moved in the District Court for summary judgment on their complaint and for entry of a permanent injunction. 12 In response the Government moved for summary judgment or dismissal. 13 The District Court, following arguments, denied the Government's motion and granted the appellees' motion in part. 14 The District Court order provided that:
Plaintiffs are entitled to sleep in the nine (9) tents which plaintiffs have placed in Lafayette Park pursuant to a valid permit issued by defendants. Plaintiffs are not entitled to engage in "camping activities," such as the preparation or service of food in Lafayette Park.... 15
The District Court stayed the judgment and injunction pending the Government's appeal to this court. 16
The appellees have not challenged that portion of the District Court order prohibiting them from engaging in camping activities such as the preparation or service of food; we are thus concerned only with the appellees' ability to sleep in the nine tents during the course of their demonstration. At oral argument before this court, counsel for the Government acknowledged that Park Service regulations do not prohibit sleeping per se. Counsel also admitted that the appellees are not prohibited from maintaining a continuous presence in and around the symbolic tents now standing in the Park, or from placing either cots or blankets inside those tents. Indeed, as counsel for the Government also conceded, the appellees may, without violating any regulations, lie down on a cot or blanket inside a tent; they simply may not fall asleep. Thus, the issue presented for resolution is necessarily narrow. We need only decide whether the Park Service regulations prohibiting camping in all but designated areas 17 properly encompass the sleeping activities proposed by the appellees.
Only two months ago, the National Park Service issued amendments to its regulations governing demonstrations and special events in and around Washington, D.C., and an Administrative Policy Statement interpreting those regulations. 18 In construing the Park Service's regulations, we are guided by the principle that a court will not pass upon the constitutionality of a statute or a regulation if a construction is fairly possible by which the question may be avoided. 19 We need not strain to find that saving construction here, because we believe that the Park Service's regulations plainly allow the appellees to sleep in the tents as an intrinsic part of their protest against governmental policies which they allege contribute to their lack of shelter.
It is axiomatic that an agency is bound by its own rules and policies. 20 Moreover, in interpreting an agency's regulations, a court may rely upon the agency's contemporaneously issued Policy Statement as an accurate representation of the agency's intent. 21 In this case, the National Park Service's Administrative Policy Statement accompanying the changes to 36 C.F.R. § 50.19 was in fact "intended ... to clarify and simplify the regulatory system." 22 The Policy Statement describes the scope of section 50.19(e) (8) as follows:
Camping is prohibited in all park areas except those specially designated as official campsites (36 CFR 50.27). The National Park Service does permit the use of symbolic campsites reasonably related to First Amendment activities. However, camping primarily for living accommodation must be confined to designated campsites. 23
This Policy Statement, likely reflecting the Park Service's view of what is required by the First Amendment, makes a clear distinction between "the use of symbolic campsites reasonably related to First Amendment activities" and "camping primarily for living accommodation."
We have no doubt as to which category encompasses the activities in question here. First, the appellees are engaged in a political protest and a petition for redress of grievances. As part of their protest, the appellees desire permission to sleep in their tents in Lafayette Park. This appears to be no more than "the use of (a) symbolic campsite()." 24 Moreover, as the District Court found, 25 in this case sleeping itself may express the message that these persons are homeless and so have nowhere else to go. 26
Second, there is no evidence in the Record suggesting that the handful of tents in Lafayette Park is intended "primarily for living accommodation." The appellees will not prepare or serve food there; they will not build fires or break ground; they will not establish sanitary or medical facilities. Indeed, the uncontroverted evidence in the case is that the purpose of the symbolic campsite in Lafayette Park is "primarily" to express the protesters' message and not to serve as a temporary solution to the problems of homeless persons. 27 Thus, the only activity at issue here-sleeping in already erected symbolic tents-cannot be considered "camping" proscribed by 36 C.F.R. § 50.27.
Before ROBINSON, Chief Judge, and WRIGHT, TAMM, MacKINNON, ROBB, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges.
A member of the Court has sua sponte suggested consideration of this case by the en banc Court. A majority of the Court has indicated they are not in favor of such consideration.
MacKINNON, ROBB and WILKEY, Circuit Judges, would have this matter considered by the en banc Court for the reasons set forth in the attached memorandum.
I vote to en banc this case and vote for summary reversal because it violates established precedent. Morton v. Quaker Action Group, 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971).
What appears in the court's decision to be a limited holding to enable demonstrators to "sleep( ) in already erected symbolic tents" for a limited period of time in reality extends to the appellants a defeasible right to indefinite occupancy at Lafayette Park. Although not readily apparent from a casual reading of the court's memorandum, Community for Creative Non-Violence v. Watt, No. 81-2381 (D.C. Cir. Jan. 22, 1982) (hereinafter Memo. at ----.), the court has reached this result by ignoring the controlling precedent on point and by manipulating a National Park Service policy statement to support its conclusion. This decision opens the door for virtually any group of demonstrators in presumed furtherance of First Amendment rights to convert national monuments, symbols, and grounds into sites for sleeping accommodations of indefinite duration.
This is not a case of first impression in this circuit. At least twice before this court has interpreted regulation 36 C.F.R. § 50.27(a) 1 which prohibits camping in areas not designated for such use by the Superintendent of National...
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