National Park Service: November 2011

Tuesday, November 15, 2011

National Park Service Also Erroneously Claimed in Federal Court Filings that the Long-Term Operating Agreement Between the National Park Service and the Independence Visitor Center Corporation Existed Five Months Before the Actual Agreement Was Executed

The Great Conundrum: Did the Long-Term Operating Agreement Exist Between the National Park Service and Independence Visitor Center Corporation as of November 23, 2009?

The answer is no! As of November 23, 2009, a Long-Term Cooperative Operating Agreement ("Operating Agreement") did not exist between the United States Department of the Interior - National Park Service ("NPS") and the Independence Visitor Center Corporation ("IVCC") regarding the operation of the Independence Visitor Center ("IVC") in Philadelphia. The NPS and the IVCC only entered into this Operating Agreement on April 26, 2010, "for the purposes of establishing roles and relating to the funding, operation, use and maintenance of the Independence Visitor Center..." (Operating Agreement, Page 1).

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Monday, November 14, 2011

National Park Service Erroneously Claimed in Federal Court Filings that National Park Service Officials Have Never Served on the Board of Directors of the Independence Visitor Center Corporation, a Private Corporation

The Paper Trail and Money Trail Show That Senior National Park Service Managers Have Served in Their Official Capacities on the Board of Directors of the Independence Visitor Center Corporation

On November 23, 2009, Michael Levy, Margaret Hutchinson, and Viveca Parker, the United States Attorneys representing the National Park Service ("NPS") defendants in the lawsuit brought by The Constitutional Walking Tour of Philadelphia ("The Constitutional"), erroneously argued in the NPS's Motion to Dismiss filed in the U.S. District Court for the Eastern District of Pennsylvania that NPS officials do not serve, and moreover have never served, on the Independence Visitor Center Corporation's ("IVCC") Board of Directors,

"Mr. [Dennis] Reidenbach and Ms. [Cynthia] MacLeod are not IVCC board members, and never have been, but they attend board meetings as representatives of the [Independence National Historical] Park and NPS. See current IVCC Board of Directors, and page 1 of June 18, 2009 minutes of Board meeting, attached hereto." (Defs. Reply, p. 9) (emphasis added)

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Wednesday, November 9, 2011

10th Anniversary of the National Park Service's Independence Visitor Center - Spotlight on Fact that Concessions Award Process is Followed in All Other National Parks Across the U.S., Except in Philadelphia

The Independence Visitor Center Corporation's (IVCC) Expenses Have Grown Substantially Over Time, The IVCC's Expenses Have Vastly Exceeded Congressional Budget Office Estimates, and The IVCC Has Failed Over a Prolonged Period of Time to Be Economically Self-Sufficient from Revenue Generating Activities

At the nearly 400 national parks across the country where commercial visitor services occur (i.e., Yellowstone, Yosemite), the concessions award process is followed - however, that is not the case in Philadelphia. As the National Park Service (“NPS”) and Independence Visitor Center Corporation mark the 10th anniversary of the Independence Visitor Center on November 10th, it is time for Congress and the Courts to ensure that all commercial contracts at Independence National Historical Park (“INHP”), including at the Federally owned and funded Independence Visitor Center, are issued fairly, subject to existing laws governing the NPS.

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Monday, November 7, 2011

Media Alert - Summary of the Matter Pending in Front of the United States Court of Appeals for the Third Circuit: Oral Argument Scheduled for December 6, 2011

Media Alert

Who
The Constitutional Guided Walking Tours, LLC, Jonathan Bari and Leslie Bari (Plaintiffs-Appellants) vs. Independence Visitor Center Corporation, William W. Moore, National Park Service, Dennis Reidenbach, Cynthia MacLeod and Darla Sidles (Defendants-Appellees)

What
Lawsuit pending with the United States Court of Appeals for the Third Circuit (Case Documents can be found here)

When
December 6, 2011 - Oral Argument scheduled (time to be determined)

Where

Federal Court in Philadelphia, Pennsylvania with the literal and figurative backdrop of Independence National Historical Park (a unit of the NPS) featuring Independence Hall and the Liberty Bell – America’s Birthplace

Why
This is a David v. Goliath fight between a small business - The Constitutional Walking Tour vs. the National Park Service and its agent, the Independence Visitor Center Corp. This story focuses on backroom deals, pay to play politics, crony capitalism, heavy hand of government, random and arbitrary government regulations, etc. At the nearly 400 national parks across the country where commercial visitor services occur (i.e., Yellowstone, Yosemite), the concessions award process is followed - however, that is not the case in Philadelphia.

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Case Documents - In the Matter of The Constitutional Guided Walking Tours, LLC, Jonathan Bari and Leslie Bari (Plaintiffs) vs. Independence Visitor Center Corporation, William W. Moore, National Park Service, Dennis Reidenbach, Cynthia MacLeod and Darla Sidles (Defendants)

Following are the Case Documents in the Matter of The Constitutional Guided Walking Tours, LLC, Jonathan Bari and Leslie Bari (Plaintiffs) vs. Independence Visitor Center Corporation, William W. Moore, National Park Service, Dennis Reidenbach, Cynthia MacLeod and Darla Sidles (Defendants).

The Case Documents include those filed in the following Federal Courts:

United States District Court for the Eastern District of Pennsylvania - Case Number: 2-09-cv-03083 Note: Oral Argument in the United States Court of Appeals for the Third Circuit Court in Philadelphia is scheduled for December 6, 2011.
United States Court of Appeals for the Third Circuit Court- Case Number: 11-2146

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

I. COMPLAINT
Original Complaint - The Constitutional Walking Tour
July 10, 2009
The Constitutional Guided Walking Tours, LLC, Jonathan Bari and Leslie Bari (Plaintiffs) vs. Independence Visitor Center Corporation, William W. Moore, National Park Service, Dennis Reidenbach, Cynthia MacLeod and Darla Sidles (Defendants); United States District Court for the Eastern District of Pennsylvania at No. 09-cv-03083; July 10, 2009.

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Background on The Constitutional’s disputes with the NPS and Independence Visitor Center

The Constitutional Walking Tour of Philadelphia (“The Constitutional”) offers guided walking tours of the Independence National Historical Park area by providing a primary overview of Independence Park and visiting more than 20 of Independence Park’s most historic sites including the Liberty Bell, Independence Hall, Carpenters’ Hall, Declaration House, etc.

From 2005 to 2010, the Independence Visitor Center Corporation sold tickets for The Constitutional’s various tours only at the IVC’s main information and sales desk. The IVCC has received a 20.0% (twenty percent) sales commission on each ticket that it has sold for The Constitutional (ranging on average in gross price from $12.50 to $17.50). Since 2005, The Constitutional has requested to also license a dedicated ticket sales booth from the National Park Service and IVCC on fair, reasonable and non-discriminatory terms commensurate with Ride the Ducks and Philadelphia Trolley Works, for example. Additionally, since 2005, The Constitutional has requested to also license marketing opportunities and commercial use authorizations from the National Park Service and IVCC on fair, reasonable and non-discriminatory terms.

The Independence Visitor Center (“IVC”) is owned and operated by the United States of America - National Park Service (“NPS”), which then sub-contracts with the Independence Visitor Center Corporation (“IVCC”), a taxpayer supported public charity, to manage the IVC.

The IVCC and NPS have preferenced third parties including Ride the Ducks and Philadelphia Trolley Works, and the IVCC and NPS have discriminated against The Constitutional Walking Tour. The National Park Service has enabled the creation of this unfair business environment. The National Park Service and the IVCC have ignored and circumvented Federal management and concessions laws for the sale of goods and services at Independence National Historical Park that require open, transparent, competitive and appealable processes awarding concessions contracts for the sale of goods and services including tours.

To facilitate the administration of the National Park Service System, the Secretary of the Department of the Interior, acting through the NPS, is authorized under the National Park Service Organic Act (“Organic Act”) to carry out twelve categories of activities, none of which include transferring administrative responsibility to a private party [i.e., IVCC] or engaging in cooperative administration with a private party [i.e., IVCC]. 16 U.S.C. § 1a-2(a)–(l). Rather than grant the NPS discretion in its dealings with park concessioners, Congress established “carefully controlled safeguards against unregulated and indiscriminate use” of the parks in the National Parks Omnibus Management Act of 1998 (“Management Act”), which governs all national park public accommodations, facilities, and services. 16 U.S.C. § 5951 et seq.; see also 36 C.F.R. Part 51.2 (“policy underlying concessions contracts”). The safeguards are not limited to nationwide policy: Congress also manages the parks with significant visitor traffic on a park-by-park basis. See, e.g., 16 U.S.C. §§ 21–40c (Yellowstone), §§ 91–110d (Mount Rainier), §§ 212–218a (Abraham Lincoln’s Birthplace), and §§ 410z–410z-5 (Boston National). One of the dozens of national parks managed by specific statutes is Independence National Historical Park (“INHP”). 16 U.S.C. §407m–407s. As such, compliance here going forward would require the NPS, first, to reassume from the private IVCC the NPS’s duties “to administer, operate, manage, lease, and maintain” properties at INHP pursuant to 16 U.S.C. § 407s; second, to award “all proposed concessions contracts … through a competitive selection process” pursuant to 16 U.S.C. § 5952; and, third, to issue commercial use authorizations in a rational manner pursuant to a reasonable interpretation of 16 U.S.C. § 5966(c).

The IVCC and NPS have arbitrarily and randomly selected business partners in a non-competitive and clandestine manner; as such, the actions of the NPS and IVCC have from an economics perspective stifled competition, innovation and consumer choice. Ultimately the IVCC’s actions have enabled prices to increase for its preferred vendors to strengthen the for-profits’ financial performance. Visitors to Philadelphia will be better served when the IVCC’s management, manners and methods are fundamentally changed. This would include having the National Park Service abide by Federal concessions management laws. Specifically, this will entail only having the NPS award concessions sales contracts and not having the IVCC involved in any of the selecting, awarding, contracting and managing of Independence Park’s third party concessions, including inside the Independence Visitor Center. This is the model that is practiced in virtually every other of the 390 (three hundred ninety) National Park Service units across the United States (in 49 states) including at Yosemite, Yellowstone, Statue of Liberty, etc. Additionally, visitors and all stakeholders will be better served once the operation of the taxpayer funded IVCC is totally transparent and accountable. While part of the issue centers on a publicly funded charity competing against the private sector (i.e., by offering guided tours and services), it more so has to do with the manner in which the IVCC and NPS operate and discriminate against third party concessionaires, tour operators and vendors in a random and arbitrary fashion (i.e., with the licensing and leasing ticket sales kiosks by the IVCC to third party companies, for example).