Price v. Barr, Civil Action No. 19-3672 (CKK)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtCOLLEEN KOLLAR-KOTELLY United States District Judge
PartiesGORDON M. PRICE, Plaintiff, v. WILLIAM P. BARR, U.S. Attorney General, et al., Defendant.
Docket NumberCivil Action No. 19-3672 (CKK)
Decision Date22 January 2021

GORDON M. PRICE, Plaintiff,
WILLIAM P. BARR, U.S. Attorney General, et al., Defendant.

Civil Action No. 19-3672 (CKK)


January 22, 2021


Plaintiff Gordon M. Price is an independent filmmaker from Yorktown, Virginia. In this action, Mr. Price asserts a facial constitutional challenge to the permitting requirements imposed on commercial filming by 54 U.S.C. § 100905 and its implementing regulations, 43 C.F.R. Part 5 and 36 C.F.R. § 5.5. Mr. Price brings this action against the Attorney General of the United States of America, the Secretary of the Department of the Interior, and the Director of the National Park Service ("NPS") (collectively, "Defendants"). Defendants have now moved for a judgment on the pleadings, seeking the complete dismissal of Mr. Price's case. See Defs.' Mot. at 1. In turn, Mr. Price has filed a cross-motion for a judgment on the pleadings in his favor. See Pl.'s Mot. at 1.

Upon consideration of the briefing, the relevant authorities, and the record as a whole,1 the Court concludes that Mr. Price has established his claim on the merits that the restrictions on

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commercial filming set forth in 54 U.S.C. § 100905 and its implementing regulations, 43 C.F.R. Part 5 and 36 C.F.R. § 5.5, violate the First Amendment. Accordingly, the Court DENIES Defendants' motion for a judgment on the pleadings and GRANTS Mr. Price's cross-motion for a judgment on the pleadings. As set forth below, the Court will enter a declaratory judgment and permanent injunction in Mr. Price's favor.


A. Section 100905

Mr. Price raises a facial constitutional challenge to 54 U.S.C. § 100905 and its implementing regulations, 43 C.F.R. Part 5 and 36 C.F.R. § 5.5. See Compl. ¶ 1. Section 100905 provides that the Secretary of the Interior "shall require a permit and shall establish a reasonable fee for commercial filming activities or similar projects in a System unit." 54 U.S.C. § 100905(a)(1). The statute's paid permit requirement, however, does not apply to non-commercial filming. See id. Separately and in addition to the permit fee required for commercial filming by § 100905(a)(1), the Secretary of the Interior "shall [also] collect any costs incurred as a result of filming activities or similar projects, including administrative and personnel costs." Id. § 100905(b). Additionally, § 100905(c) imposes a distinct permit requirement for "still photography," applicable in limited circumstances. Id. § 100905(c)(1)-(2). Section 100905's permitting regime for "commercial filming" and "still photography" applies to "any area of land and water administered by the Secretary [of the Interior], acting through the Director [of the National Park Service], for park, monument, historic, parkway, recreational, or other purposes." Id. § 100501 (defining a "system unit"); see also id. § 100102(1)-(6). Section 100905 itself does not define the terms "commercial filming" or "still photography." See id. § 100905; Compl. ¶ 24.

The permitting regime required by § 100905 promotes two principal goals: land preservation and rent extraction. As to the former, Congress endeavored to reduce "the impairment

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of the values and resources which are to be protected on federal lands." H.R. Rep. 106-75, at 3 (1999). Accordingly, § 100905 prohibits the issuance of a permit for "any filming" or "still photography" that threatens "a likelihood of resource damage." 54 U.S.C. § 100905(d)(1). Section 100905, however, also furthers the purpose of rent extraction. On its face, § 100905 states that the permit fees imposed on "commercial filming" "shall provide a fair return to the United States," measured in relation to the "number of days of the filming activity," the "size of the film crew present," the "amount and type of equipment used," id. § 100905(a)(1)(A)-(C), or any other factor the Secretary of the Interior deems "necessary," id. § 100905(a)(2). All such fees collected under § 100905 "shall be available for expenditure by the Secretary [of the Interior], without further appropriation and shall remain available until expended." Id. § 100905(e)(1). Notably, the statute's legislative history emphasizes the fact that "high-grossing films" are produced in national parks and indicates that § 100905's purpose "is to authorize the Secretary of the Interior . . . to assess fees for commercial filming activities on Federal lands." S. Rep. 106-67, at 2-3 (1999). Relatedly, Congress has declared "that it is the policy of the United States that the United States receive fair market value of the use of the public lands and their resources." 43 U.S.C. § 1701(a)(9).

To implement the permitting regime required by § 100905, the Department of the Interior ("DOI") promulgated the regulations found at 43 C.F.R. Part 5. The regulations thereunder "cover[] commercial filming and still photography activities on lands and waters administered by the National Park Service, the Bureau of Land Management, and the U.S. Fish and Wildlife Service." 43 C.F.R. § 5.1. In accordance with § 100905, the DOI implementing regulations require a permit for "[a]ll commercial filming." Id. § 5.2(a). The DOI regulations define "commercial filming" as:

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[T]he film, electronic, magnetic, digital, or other recording of a moving image by a person, business, or other entity for a market audience with the intent of generating income. Examples include, but are not limited to, feature film, videography, television broadcast, or documentary, or other similar projects. Commercial filming activities may include the advertisement of a product or service, or the use of actors, models, sets, or props.

Id. § 5.12. The DOI regulations, however, specifically exempt "news-gathering" activities from the permitting regime. Id. § 5.4(a). For the purposes of 43 C.F.R. Part 5, "news" is defined as "information that is about current events or that would be of current interest to the public, gathered by news-media entities for dissemination to the public." Id. § 5.12. The DOI regulations also set forth a separate set of less restrictive permitting criteria for "still photography." Id. § 5.2(b).

Finally, the DOI regulations enumerate seven permissible bases for the denial of a commercial filming or still photography permit. See id. § 5.5(a)-(g). Specific to the national parks themselves, a permit may be denied where the commercial filming or still photography would "[r]esult in unacceptable impacts or impairment to National Park Service resources or values." Id. § 5.5(d). Failure to comply with any provision of 43 C.F.R Part 5, including the obligation to procure a permit for commercial filming or still photography, is a violation of 36 C.F.R. § 5.5. Thereunder, a permit violation carries the potential for fines and up to six months in prison. See 18 U.S.C. § 1865; 36 C.F.R. § 1.3.

B. Mr. Price's Commercial Filming

Mr. Gordon Price is a part-time independent filmmaker who lives and works in Yorktown, Virginia. See United States v. Price, No. 4:19-po-180-DEM (E.D. Va. July 31, 2019), ECF No. 10-1 (Price Decl.), ¶ 1. In February 2017, Mr. Price and a colleague began filming an independent feature entitled Crawford Road about "a stretch of road in York County, Virginia, that has long been the subject of rumors of hauntings and was the location of unsolved murders." Id. ¶ 2. Mr. Price filmed some Crawford Road scenes "in areas open to the general public at about four

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locations within the Yorktown Battlefield in the Colonial National Historical Park," which is property administered by NPS. Id. ¶ 8. Mr. Price shot multiple scenes on the Yorktown Battlefield, as well as a location known as "Crybaby Bridge" along Crawford Road. Id. ¶ 9. No more than four people were present during this filming, and Mr. Price used only a camera tripod and a microphone, without any "heavy equipment," for his recordings in the park. Id. Mr. Price, however, "neither sought nor received a permit from [NPS] before filming on the Battlefield." Id. ¶ 10.

Crawford Road premiered at a restaurant in Newport News, Virginia on October 17, 2018 before a crowd of approximately 250 people. Id. ¶¶ 3-4. The film garnered some attention in the local press and on social media sites. See id. ¶¶ 5-6. In December 2018, however, two NPS officers located Mr. Price at work and "issued him a violation notice for failure to obtain a commercial filming permit under 36 C.F.R. § 5.5(a)." Id. ¶ 11; see also United States v. Price, No. 4:19-po-180-DEM (E.D. Va. Mar. 26, 2019), ECF No. 1 (Not. of Violation), at 1. Mr. Price subsequently appeared before the United States District Court for the Eastern District of Virginia, and, after retaining counsel, challenged his 36 C.F.R. § 5.5 violation on grounds that § 100905 was "facially invalid as a content-based prior restraint of freedom of speech." United States v. Price, No. 4:19-po-180-DEM (E.D. Va. July 31, 2019), ECF No. 9 (Mot. to Dismiss), at 1. In response, the government elected to dismiss the charge against Mr. Price rather than litigating the constitutional question raised, explaining that "the interests of justice [were not] served by pursuing this prosecution." United States v. Price, No. 4:19-po-180-DEM (E.D. Va. Aug. 27, 2019), ECF No. 19 (Gov't Mot. to Dismiss), ¶ 6.

Nonetheless, the government maintained that § 100905's permitting regime was constitutional, that all commercial filming within NPS's jurisdiction still required a permit, and

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that "failure to comply with any provision of 43 CFR part 5 is a violation." Id. ¶¶ 2-5. As such, "the government did not suggest in any way that it would refrain from issuing further violation notices to Mr. Price if he films on federal land in the future." Compl. ¶ 53; Am. Answer ¶ 53. Ultimately, the district court dismissed the criminal case against Mr. Price and found that the government's voluntary dismissal deprived the court of jurisdiction to consider the...

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