National Park Service: Inconsistency

Showing posts with label Inconsistency. Show all posts

Thursday, May 5, 2011

National Park Service ("NPS") and the Independence Visitor Center Corp. ("IVCC") Enforced Censorship At Independence Park - The IVCC and NPS Retaliated Against The Constitutional Walking Tour & Damaged Relationship with "Where Philadelphia" Magazine

Overview
Through policies that changed so frequently, randomly and arbitrarily as to preclude the existence of any true standard policy, the National Park Service ("NPS") and Independence Visitor Center Corporation ("IVCC") enforced censorship at Independence National Historical Park ("INHP"), a unit of the NPS in Philadelphia. Furthermore, the IVCC, with the complicit oversight of NPS, retaliated against The Constitutional Walking Tour ("The Constitutional") for challenging these random and arbitrary acts of censorship. Such retaliation by the IVCC, with the approval of NPS, irreparably damaged a critical business relationship between The Constitutional and Where Magazine.

Censorship at America's Birthplace
On May 25, 2007, Bill Moore, former President and CEO of the IVCC, gave his staff instructions at the Independence Visitor Center's ("IVC") Main Information & Sales Desk to inform The Constitutional that it would no longer be allowed to distribute its new 2007 marketing brochure, The Independent, inside of the Federally owned Independence Visitor Center, despite the fact that the same content had previously been deemed acceptable in The Constitutional’s prior brochures and in turn distributed at the IVC. Copies of The Independent at the Independence Visitor Center were confiscated and removed by the IVCC's management from all display racks at the Independence Visitor Center, including at the IVC's Main Information & Sales Desk.

On information and belief, Mr. Moore did not like The Independent since he viewed it as competitive with the "Historic Philadelphia Gazette" (also just referred to as "The Gazette"), another news pamphlet/brochure distributed by the Independence Visitor Center. NPS and Historic Philadelphia, Inc. ("HPI"), have officially collaborated for many years on publishing The Gazette which is taxpayer funded and which serves as the official news pamphlet/brochure of INHP; "the Gazette is a joint venture of HPI and the National Park Service." Additionally, according to Mr. Moore, the IVCC has “regular discussions with the staff that publishes the Historic Philadelphia Gazette regarding content and information.”

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Thursday, March 12, 2009

A Constitutional Crisis within Our National Park Service (NPS) System

Independence National Historical Park (INHP or the Park)

Philadelphia, Pennsylvania

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. [1]

With these words our nation launched a great experiment in freedom and democracy within a representative form of government where the rule of law and not the proclivities of individuals would govern civil society. These principles enshrined in one of our nation’s founding documents have endured for over 200 years and serve as a beacon to the world. However, in the City where these principles were forged, a gross violation of their spirit is occurring by the NPS.

OverviewIn an April 3, 2008 editorial entitled “Mall Madness,” The Philadelphia Daily News said that,

“For nine years, the [Independence] visitor center and [National] Park Service have failed to come up with an agreement to run the center that might make the rules governing tour companies more consistent and less arbitrary... This is a shameful state of affairs."[2]

Issue – Requesting a Breakthrough (Not a Bailout) for a Small Business
It should not take four years and a team of lawyers for a small business to try to compete on a level playing field free from unconstitutional, unfair, random and arbitrary practices by the National Park Service. However, that is exactly the case for Jonathan and Leslie Bari, husband and wife entrepreneurs, who invested in and developed their own American dream with The Constitutional Walking Tour of Philadelphia (The Constitutional). The Constitutional annually employs 30 people in providing guided walking tours of America’s Birthplace at INHP which features many historic sites including the Liberty Bell, Independence Hall and the National Constitution Center.

Even though The Constitutional is consistent with INHP’s enabling legislation,[3] is complementary to the Park’s mission and visitor experience objectives, is appropriate for public use and enjoyment of the Park, is an environmentally friendly “green” tour, does not cause unacceptable impacts on the Park,[4] and benefits the Independence Visitor Center (Visitor Center) and in turn the NPS financially from ticket sales for The Constitutional, NPS has exhibited an ongoing pattern and practice of malfeasance and discrimination against The Constitutional and violations of its owners’ various Constitutional rights.

In this unprecedented economic crisis, the bottom line is that The Constitutional is being regulated and taxed out of business by the National Park Service. While many companies in diverse industries are seeking a Federal bailout, The Constitutional is simply seeking a Federal breakthrough to overcome NPS’s non-compliance with Federal laws and NPS’s intransigence that have been enabled to date without any meaningful oversight.

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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).