A.N.S.W.E.R. Coal. v. Salazar

• Decision Date: 14 January 2013
• Docket Number: Civil Action No. 05–0071 (PLF).
• Citation: 915 F.Supp.2d 93
• Parties: A.N.S.W.E.R. COALITION, Plaintiff, v. Ken SALAZAR, Secretary, United States Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

915 F.Supp.2d 93

A.N.S.W.E.R. COALITION, Plaintiff,

v.Ken SALAZAR, Secretary, United States Department of the Interior, et al., Defendants.¹

Civil Action No. 05–0071 (PLF).

United States District Court, District of Columbia.

Jan. 14, 2013.

Carl L. Messineo, Mara E. Verheyden–Hilliard, Partnership for Civil Justice, Inc., Washington, DC, Carol A. Sobel, Santa Monica, CA, for Plaintiff.

Marina Utgoff Braswell, U.S. Attorneys Office for the District of Columbia, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

Plaintiff A.N.S.W.E.R. (Act Now to Stop War and End Racism) Coalition (“ANSWER”) filed this lawsuit in January 2005 against the Secretary of the Interior, the Director of the National Park Service (“NPS”), and the Director of the Secret Service, challenging the constitutionality of certain policies that restrict ANSWER's ability to engage in expressive activity during the Presidential Inaugural Parade in Washington, D.C. This matter is now before the Court on the Secretary of the Interior's motion on behalf of NPS to dismiss ANSWER's Supplemental Pleading in part, for lack of subject matter jurisdiction. The Secretary claims that ANSWER lacks standing to challenge the regulations governing access to the parade route to the extent that the regulations apply to areas outside of Freedom Plaza on Pennsylvania Avenue. After carefully considering the parties' papers, the relevant legal authorities, and the entire record in this case, the Court concludes that ANSWER has met its burden of showing standing at the pleadings stage, such that ANSWER may pursue its claim in full.² The Court therefore denies the Secretary's motion to dismiss.

I. BACKGROUND

The pending motion stems from ANSWER's ongoing efforts to secure sufficient space for its members and affiliates to engage in political dissent during the Presidential Inaugural Parade. This Court has previously described the factual and procedural background of this case. See A.N.S.W.E.R. Coalition v. Kempthorne, 493 F.Supp.2d 34, 37–41 (D.D.C.2007) (“ANSWER I ”); A.N.S.W.E.R. Coalition v. Kempthorne, 537 F.Supp.2d 183, 186–93 (D.D.C.2008) (“ANSWER II ”); A.N.S.W.E.R. Coalition v. Salazar, Civil Action No. 05–0071, at 2–4 (D.D.C. March 5, 2012) (“ ANSWER III ”). It therefore will limit its discussion accordingly.

ANSWER is an unincorporated grassroots organization that engages in political organizing and activism in opposition to war and racism. Am. Compl. ¶ 1. Every four years since 2005, ANSWER has attempted to organize a mass demonstration along Pennsylvania Avenue to engage in political dissent during the Presidential Inaugural Parade. Id.; Supp. Pleading ¶ 1. This dispute arises from National Park Service regulations, as now amended, that grant the Presidential Inaugural Committee (“PIC”) exclusive access to some of these same areas on and in connection with events relating to the Presidential Inauguration. See36 C.F.R. § 7.96(g)(4)(iii) (2012).

A. Statutory and Regulatory Framework

The Department of the Interior has the authority to issue and implement, through NPS, rules and regulations that oversee the use of federal grounds within the National Park System. See16 U.S.C. §§ 1, 3. Pursuant to this authority, NPS has promulgated regulations for a permitting system that allows the use of National Park System land around the national capital region for special events and demonstrations. See generally36 C.F.R. § 7.96(g). The Secretary has additional statutory authority under the Presidential Inaugural Ceremonies Act to “grant to the Inaugural Committee a permit to use [federal] reservations or grounds during the inaugural period.” 36 U.S.C. § 503(a).

When ANSWER initiated this suit in 2005, the relevant NPS regulations set aside only the White House sidewalk and three-quarters of Lafayette Park for the exclusive use of the PIC for inaugural activities. 36 C.F.R. § 7.96(g)(4)(i)(F) (2005).³ The regulations provided that permits for demonstrations and special events for other areas would be issued on a first-come, first-served basis, id. at § 7.96(g)(4)(i), and NPS had a “strict policy” to not “accept any permit applications submitted more than one year in advance of the start date for any event on Park Services land.” ANSWER II, 537 F.Supp.2d at 186–87. In practice, however, NPS deviated from its policy and submitted permit applications for itself over a year in advance of Inauguration Day activities to reserve for the PIC over one-third of the sidewalk space on Pennsylvania Avenue between 4th Street and 15th Street, Northwest, in addition to the Lafayette Park and White House sidewalk areas set aside by regulation. See id. at 187, 190.

B. Procedural History

ANSWER's first claim (“Count I”) challenged NPS' actions to exempt itself and the PIC from the relevant permitting regulations. Am. Compl. ¶¶ 87–97. ANSWER's second claim (“Count II”) challenged the Secret Service's prohibition on supports for signs and placards. Id. ¶¶ 98–102. ANSWER's third claim (“Count III”) challenged NPS' policy of granting to the PIC exclusive use of space along the parade route, regardless of whether such policy was inconsistent with NPS' regulations. Id. ¶¶ 103–08. ANSWER asserted that the conduct described in each count violated the First Amendment and the Equal Protection Clause, and requested declaratory and injunctive relief, including a “[d]eclaratory judgment that the NPS policy and practice of granting to the PIC exclusive use of the public space abutting the Inaugural Parade route is unconstitutional; an injunction prohibiting such discriminatory conduct in the future; and a mandatory injunction that the NPS make the sidewalks abutting the Inaugural Parade generally open for the public for use[.]” Id. at 27. ANSWER did not challenge the regulatory set-aside of the White House sidewalk and Lafayette Park. Id. ¶ 104.

The Court addressed the justiciability of ANSWER's claims in an Opinion and Order dated June 13, 2007, in which the Court held that ANSWER had both organizational and representational standing to challenge NPS' then-uncodified policy and practice of granting PIC exclusive use of public space along the parade route. See ANSWER I, 493 F.Supp.2d at 42–48. NPS then moved for summary judgment on Counts I and III, and ANSWER moved for summary judgment on Count I. See ANSWER II, 537 F.Supp.2d at 192–93.⁴In an Opinion and Order dated March 20, 2008, the Court denied NPS' motion for summary judgment and granted ANSWER's motion for summary judgment on Count I. See ANSWER II, 537 F.Supp.2d at 206. The Court held that NPS' “policy and practice of exempting itself and/or the [PIC] from compliance with the generally applicable permitting regulations, 36 C.F.R. § 7.96(g) [was] unconstitutional” and enjoined NPS from doing so “with respect to events relating to the Inauguration.” Id. The Court also denied NPS' motion for summary judgment on Count III. Noting that the Inauguration is a public event at which protestors have a right to engage in political speech, the Court rejected the government's argument that ANSWER was “not entitled to ‘insert itself into PIC's permitted activities.’ ” Id. at 204 (internal citation omitted). The Court did not reach the question of “[h]ow much, if any, of the Pennsylvania Avenue sidewalks can be reserved for the exclusive use of the government and its ticketed guests on Inauguration Day.” Id. at 205–06.

Following the Court's decision, NPS amended its regulations regarding permits for demonstrations and special events for Inaugural activities. SeeAreas of the National Park System, National Capitol Region, 73 Fed.Reg. 67,739 (Nov. 17, 2008); 36 C.F.R. § 7.96(g)(4). The regulations now provide, in relevant part:

(i) NPS processes permit applications for demonstrations and special events in order of receipt. NPS will not accept applications more than one year in advance of a proposed continuous event (including set-up time, if any). Use of a particular area is allocated in order of receipt of fully executed applications, subject to the limitations in this section.

...

(ii) In connection with Presidential Inaugural Ceremonies the following areas are reserved for priority use as set forth in this paragraph.

(A) The White House sidewalk and Lafayette Park, exclusive of the northeast quadrant for the exclusive use of the Presidential Inaugural Committee on Inaugural Day.

(B) Portions of Pennsylvania Avenue, National Historic Park and Sherman Park, as designated in the maps included in paragraph (g)(4)(iii)(E) of this section, for the exclusive use of the Presidential Inaugural Committee on Inaugural Day for:

(1) Ticketed bleachers viewing and access areas, except that members of the public may use a ticketed bleacher seat that has not been claimed by the ticket holder 10 minutes before the Inaugural Parade is scheduled to pass the bleacher's block[.]

36 C.F.R. § 7.96(g)(4). The referenced maps show reserved PIC bleacher space on portions of Pennsylvania Avenue between 7th Street and 15th Street, Northwest, including most of Freedom Plaza (located on Pennsylvania Avenue between 13th Street and 14th Street), and parts of Sherman Park (located at 15th Street and Pennsylvania Avenue). 36 C.F.R. § 7.96(g)(4)(iii)(E). According to NPS, these regulations grant the PIC additional priority and exclusive use of approximately fourteen percent of Pennsylvania Avenue along the Inaugural Parade route. ANSWER III at 10 (citing Defendant's Opposition to Plaintiff's Motion to Enforce Injunction, Dkt. No. 111 at 8, 25).

ANSWER subsequently filed a motion to enforce the injunction against NPS on the grounds that the amended regulations violated the Court's March 20, 2008 Order. See Dkt. No. 105. The Court denied that motion. ANSWER III at 16. Although the amended regulations expanded the reach of the regulatory set-aside, the Court found that they did not contravene the terms of the Court's injunction, which merely enjoined NPS'...