The Secretary of the Interior and the National Park Service Have Abused Their Management Discretion at America’s Birthplace in Philadelphia – Home of Where the Second Amendment was Adopted in 1791
The Secretary of the Department of the Interior ("DOI"), acting through the National Park Service ("NPS"), has acted randomly and arbitrarily, and in turn has restricted various Constitutional rights, including those of the Second Amendment, at Independence National Historical Park ("INHP"), a unit of the NPS, in Philadelphia. Just two months after the Federal law governing possession of firearms inside a National Park changed on February 22, 2010, the Secretary of the Interior entered into a statutorily authorized, detailed and long-term Operating Agreement between the United States Department of the Interior - National Park Service and the Independence Visitor Center Corporation ("Operating Agreement") dated April 26, 2010.
This matter is a significant public policy issue for those concerned about Civil Rights, and as such various groups should take action including the National Rifle Association ("NRA") and the NRA's Institute for Legislative Action, especially since this is happening in the shadow of Independence Hall where the Second Amendment was adopted in 1791.
Overview
According to the Operating Agreement, the NPS has placed random and arbitrary limitations on the Second Amendment. Specifically, Section C.20 (page 16) of the Operating Agreement, "Marketing Partnerships and Commercial Activities Undertaken by Third-Parties," states,
Independence National Historical Park Background
Independence National Historical Park ("INHP") is America’s Birthplace. "The park represents the founding ideals of the nation and is a national and international symbol of democracy and liberty." The Bill of Rights was adopted in 1791 in INHP, and Independence Park has a distinct and singular association with the right of assembly, the right of free speech, the right to petition the government and the right to keep and bear arms.
INHP consists of fifty-four (54) acres in the heart of Center City Philadelphia and includes many historic sites such as the Liberty Bell and Independence Hall, which is a World Heritage Site. INHP was established in 1948 and has been restored and maintained through the joint efforts of the NPS, the City of Philadelphia, and private donors. INHP is considered "the premier cultural park in the National Park System," according to Mary Bomar, recently retired Director of the National Park Service (October 2006 to January 2009), former Regional Director of the Northeast Region of NPS (July 2005 to October 2006), former Superintendent of INHP (2003 to July 2005), and former member of the Board of Directors of the Independence Visitor Center Corporation (2005 to 2008).
National Park Service Policies on Firearms
The NPS already has laws governing firearms at INHP. According to the National Park Service’s Web site for INHP,
Legally, such an embargo on a group of persons or businesses by the NPS should be left to Congress or the Courts to decide. However, the NPS's decisions are based on its unfettered management "discretion" to ignore existing laws and silently enter this onerous clause into the Operating Agreement.
Random and Arbitrary Actions
By way of background, the random and arbitrary actions of the National Park Service and Independence Visitor Center Corporation in administering the Independence Visitor Center (outside the Second Amendment issues) have been very damaging to The Constitutional Walking Tour of Philadelphia ("The Constitutional"). Since 2006, the IVCC and NPS have unfairly given preference to other tour operators and vendors, including Ride the Ducks and Philadelphia Trolley Works, for example, and the IVCC and NPS have discriminated against The Constitutional Walking Tour. The NPS has enabled the creation of this unlevel playing field business environment because of its unfettered management discretion and lack of meaningful oversight. The NPS and the IVCC have ignored and circumvented Federal management and concessions laws at Independence National Historical Park that require open, transparent, competitive, independent and appealable processes awarding concessions contracts for the sale of goods and services including tours such as The Constitutional. Now the NPS has set its sights on leveraging its management discretion to legislate and circumvent Constitutional rights with the Second Amendment.
Independence Visitor Center Background
In 1999, the Gateway [Independence] Visitor Center Authorization Act ("Public Law 106-131") was signed by President Bill Clinton, and it authorized the Secretary of the Department of the Interior to execute a detailed management agreement with the Independence Visitor Center Corporation to construct and operate the Independence Visitor Center ("IVC") on Federal land. The Independence Visitor Center is owned by the Federal government and administered by NPS, which has contracted with a private entity, the Independence Visitor Center Corporation, to operate the facility. As a Pennsylvania 501(c)(3), the IVCC is a taxpayer supported public charity which has received various public funds, including $850,000.00 in annual Federal appropriations since 2001.
In addition to the over $8.0 million in Federal appropriations that the IVCC has received to date, the IVCC has also received approximately $2.9 million of Commonwealth of Pennsylvania taxpayer dollars from 2002-2009 in Tourism Promotion Agency ("TPA") funds. Additionally, the IVCC has continued to receive other public funding, including from the Commonwealth of Pennsylvania.
From approximately January 1, 2007 to the present, John Estey, Esq. has served as the Chairman of the IVCC. While serving as Chairman of the IVCC, Mr. Estey was also: i) Chief of Staff to Pennsylvania Governor Ed Rendell from January 21, 2003 to February 14, 2008, and ii) senior partner at Ballard Spahr from February 15, 2008, to the present. From approximately January 1, 2002 to December 31, 2006, Lynn Axelroth, Esq., senior partner at the law firm Ballard Spahr, served as the Chairwoman of the IVCC. For most of the last decade, a senior partner at Ballard Spahr was in charge of corporate governance at the IVCC. Additionally, Ballard Spahr has served as the IVCC's paid-for legal counsel since at least 2005. Ballard Spahr is also the law firm where former Pennsylvania Governor Rendell is currently a partner, and where Governor Rendell worked as a partner prior to becoming Pennsylvania's Governor.
Just like Governor Rendell did from 2003-2010, Governor Tom Corbett of Pennsylvania has a "Governor's Representative" who serves on the Board of Directors of the state taxpayer funded Independence Visitor Center Corporation. However, Governor Corbett and former Governor Rendell have turned a blind eye and deaf ear to the people's Governor's Representative on the IVCC's Board of Directors by arguing that there is "no responsibility, reporting or other relationship with the Office [of the Governor] regarding that Board position [of the 'Governor's Representative' on the IVCC's Board of Directors]." (see page 12)
In spite of the IVCC's public purpose and public funding, the IVCC operates in secret, and it is unknown why the IVCC takes random and arbitrary actions in conjunction with and on behalf of the National Park Service. Unfortunately, the taxpayer supported IVCC has proven litigious, clandestine and defensive when information is sought under the Pennsylvania Right to Know Law and Freedom of Information Act about its operations.
Federal Appropriations Funding for the IVCC
Despite the lack of Congressional approval for this egregious use of "discretion," the Federal government continues to fund the IVCC. To date, approximately $8.25 million has been spent through Federal appropriations to fund the IVCC. This figure does not even include the additional $38 million which it cost to construct the Independence Visitor Center.
According to the Operating Agreement, Section G.1.(u), page 31,
National Park Service Is Violating the "Carefully Controlled Safeguards Against Unregulated and Indiscriminate Use" at America's Birthplace
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 concessionaires, 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 mean 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).
For the record, The Constitutional Walking Tour and its owners do not sell, distribute, trade in or are otherwise associated with alcohol, tobacco, firearms or pornographic material. The NPS and IVCC have just chosen to act randomly and arbitrarily against The Constitutional using their unfettered management discretion to treat The Constitutional differently than other vendors at INHP and not follow the "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.
NPS Officials Have Previously Been Found of Violating the First Amendment
In 1987, protesters were barred from Independence Mall during events honoring the Bicentennial of the Constitution of the United States. In response, the protesters took their case to Federal Court (Case: Pledge of Resistance, et al., (Plaintiffs) versus We the People 200, Inc., et al., (Defendants), Civil Action No. 87-3975, United States District Court for the Eastern District of Pennsylvania), citing a violation of Constitutional rights. A New York Times article on the We the People 200 Court case reported,
Even twenty years after the 1998 Permanent Injunction, the officials controlling Independence Mall, which is the centerpiece of Independence National Historical Park, still lack an appreciation of the First Amendment. In 2008, the National Park Service, along with the Federally-funded Independence Visitor Center Corporation, worked in concert with one another to silence one of their critics through a pretextual confidentiality agreement. Specifically, the NPS and IVCC tried to silence The Constitutional Walking Tour. The efforts of the NPS and IVCC to do so shocked the conscience since the NPS's and IVCC's actions represented a very high level of abuse of power in which the NPS and its agent, the IVCC, acted randomly and arbitrarily, against The Constitutional.
Conclusion
The taxpayer-supported NPS and IVCC use their unfettered management "discretion" in a variety of ways that not only violate established Constitutional rights and Federal legislation but also cause direct and indirect harm to visitors, citizens, taxpayers and businesses. One such example is the Operating Agreement which ignores the Second Amendment to the Constitution, even on the very land that the amendment was ratified. Persons or businesses dealing in guns are not permitted to enter into partnerships with the IVCC, despite the Constitutional guarantee of a right to bear arms that should be honored, especially at Independence National Historical Park in Philadelphia.
It is high time for the NPS to carry out the laws of Congress, not to unilaterally change them.
Note
For the record, neither The Constitutional Walking Tour nor its principals sell, distribute or trade in, or is otherwise clearly associated with alcohol, tobacco, firearms and/or pornographic material. Nonetheless, the National Park Service and Independence Visitor Center Corporation have found numerous other random and arbitrary ways to discriminate against The Constitutional Walking Tour.
Exhibits
*Operating Agreement between the United States Department of the Interior - National Park Service and the Independence Visitor Center Corporation, 4-26-10.
*Biography of Dennis Reidenbach, Northeast Regional Director of the National Park Service
*Independence National Historic Park, Long-Range Interpretive Plan, US Department of the Interior, Dec. 2007.
*Mary A. Bomar Sworn-In as Director of the National Park Service, NPS News Release, 10-17-06.
*Gateway [Independence] Visitor Center Authorization Act ("Public Law 106-131").
*Biography of John Estey, Chief of Staff to Governor Ed Rendell, from the Commonwealth of Pennsylvania's Web site.
*Office of the Governor v. Jonathan Bari; IVCC v. Jonathan Bari; Commonwealth Court of Pennsylvania, 9-13-10 (see page 12).
*Notice of Intent to Award, National Parks Service, US Department of the Interior.
*Brady, Robert. Letter to Secretary of the Interior Ken Salazar, 4-27-09.
*William K. Stevens. "Judge Says U.S. Officials, Honoring Constitution, Violated Protesters' Rights." The New York Times, July 11, 1987.
*Pledge of Resistance, et al., (Plaintiffs) versus We the People 200, Inc., et al., (Defendants), Civil Action No. 87-3975, United States District Court for the Eastern District of Pennsylvania, Permanent Injunction, November 28, 1988.
The Secretary of the Department of the Interior ("DOI"), acting through the National Park Service ("NPS"), has acted randomly and arbitrarily, and in turn has restricted various Constitutional rights, including those of the Second Amendment, at Independence National Historical Park ("INHP"), a unit of the NPS, in Philadelphia. Just two months after the Federal law governing possession of firearms inside a National Park changed on February 22, 2010, the Secretary of the Interior entered into a statutorily authorized, detailed and long-term Operating Agreement between the United States Department of the Interior - National Park Service and the Independence Visitor Center Corporation ("Operating Agreement") dated April 26, 2010.
This matter is a significant public policy issue for those concerned about Civil Rights, and as such various groups should take action including the National Rifle Association ("NRA") and the NRA's Institute for Legislative Action, especially since this is happening in the shadow of Independence Hall where the Second Amendment was adopted in 1791.
Overview
According to the Operating Agreement, the NPS has placed random and arbitrary limitations on the Second Amendment. Specifically, Section C.20 (page 16) of the Operating Agreement, "Marketing Partnerships and Commercial Activities Undertaken by Third-Parties," states,
"Further, the IVCC [Independence Visitor Center Corporation] agrees that it will not enter into a marketing partnership or agreement with any individual or entity who sells, distributes or trades in, or who is otherwise clearly associated with, alcohol, tobacco, firearms or pornographic material, nor will it enter into any marketing partnership or agreement requiring actions on federal property which may result in a violation of the Establishment Clause of the Constitution." (emphasis added)It appears that the Secretary of the Interior, acting through the National Park Service's Northeast Regional Director Dennis Reidenbach, is now legislating through the NPS’s unfettered management discretion at INHP. To that end, it makes no sense that the NPS has placed these arbitrary restrictions on its "partner," the Independence Visitor Center Corporation. Instead of exercising the NPS's discretion to create new rules that violate clearly established Constitutional rights, the NPS should simply follow the laws already in place for the management and operation of National Parks, including those laws governing concessions and commercial operations at National Parks. For the record, the signatories on the Operating Agreement are Mr. Reidenbach acting on behalf of Interior Secretary Ken Salazar and James J. Cuorato, President and CEO of the Independence Visitor Center Corporation.
Independence National Historical Park Background
Independence National Historical Park ("INHP") is America’s Birthplace. "The park represents the founding ideals of the nation and is a national and international symbol of democracy and liberty." The Bill of Rights was adopted in 1791 in INHP, and Independence Park has a distinct and singular association with the right of assembly, the right of free speech, the right to petition the government and the right to keep and bear arms.
INHP consists of fifty-four (54) acres in the heart of Center City Philadelphia and includes many historic sites such as the Liberty Bell and Independence Hall, which is a World Heritage Site. INHP was established in 1948 and has been restored and maintained through the joint efforts of the NPS, the City of Philadelphia, and private donors. INHP is considered "the premier cultural park in the National Park System," according to Mary Bomar, recently retired Director of the National Park Service (October 2006 to January 2009), former Regional Director of the Northeast Region of NPS (July 2005 to October 2006), former Superintendent of INHP (2003 to July 2005), and former member of the Board of Directors of the Independence Visitor Center Corporation (2005 to 2008).
National Park Service Policies on Firearms
The NPS already has laws governing firearms at INHP. According to the National Park Service’s Web site for INHP,
"The law governing possession of firearms inside a national park changed on February 22, 2010. Visitors may possess firearms within a national park unit provided they comply with federal, state, and local laws. The role of the responsible gun owner is to know and obey the federal, state, and local laws appropriate to the park they are visiting. Please remember that federal law prohibits firearms in certain park facilities and buildings. These places are marked with signs at public entrances."Apparently, this regulation of firearms is insufficient for the NPS. Instead, the NPS must not only prevent citizens from being able to bear arms inside certain National Park facilities (which is part of the law), but the NPS additionally is preventing the IVCC from even doing business "with any individual or entity who sells, distributes or trades in, or who is otherwise clearly associated with,... firearms." (Operating Agreement, Section C.20, page 16)
Legally, such an embargo on a group of persons or businesses by the NPS should be left to Congress or the Courts to decide. However, the NPS's decisions are based on its unfettered management "discretion" to ignore existing laws and silently enter this onerous clause into the Operating Agreement.
Random and Arbitrary Actions
By way of background, the random and arbitrary actions of the National Park Service and Independence Visitor Center Corporation in administering the Independence Visitor Center (outside the Second Amendment issues) have been very damaging to The Constitutional Walking Tour of Philadelphia ("The Constitutional"). Since 2006, the IVCC and NPS have unfairly given preference to other tour operators and vendors, including Ride the Ducks and Philadelphia Trolley Works, for example, and the IVCC and NPS have discriminated against The Constitutional Walking Tour. The NPS has enabled the creation of this unlevel playing field business environment because of its unfettered management discretion and lack of meaningful oversight. The NPS and the IVCC have ignored and circumvented Federal management and concessions laws at Independence National Historical Park that require open, transparent, competitive, independent and appealable processes awarding concessions contracts for the sale of goods and services including tours such as The Constitutional. Now the NPS has set its sights on leveraging its management discretion to legislate and circumvent Constitutional rights with the Second Amendment.
Independence Visitor Center Background
In 1999, the Gateway [Independence] Visitor Center Authorization Act ("Public Law 106-131") was signed by President Bill Clinton, and it authorized the Secretary of the Department of the Interior to execute a detailed management agreement with the Independence Visitor Center Corporation to construct and operate the Independence Visitor Center ("IVC") on Federal land. The Independence Visitor Center is owned by the Federal government and administered by NPS, which has contracted with a private entity, the Independence Visitor Center Corporation, to operate the facility. As a Pennsylvania 501(c)(3), the IVCC is a taxpayer supported public charity which has received various public funds, including $850,000.00 in annual Federal appropriations since 2001.
In addition to the over $8.0 million in Federal appropriations that the IVCC has received to date, the IVCC has also received approximately $2.9 million of Commonwealth of Pennsylvania taxpayer dollars from 2002-2009 in Tourism Promotion Agency ("TPA") funds. Additionally, the IVCC has continued to receive other public funding, including from the Commonwealth of Pennsylvania.
From approximately January 1, 2007 to the present, John Estey, Esq. has served as the Chairman of the IVCC. While serving as Chairman of the IVCC, Mr. Estey was also: i) Chief of Staff to Pennsylvania Governor Ed Rendell from January 21, 2003 to February 14, 2008, and ii) senior partner at Ballard Spahr from February 15, 2008, to the present. From approximately January 1, 2002 to December 31, 2006, Lynn Axelroth, Esq., senior partner at the law firm Ballard Spahr, served as the Chairwoman of the IVCC. For most of the last decade, a senior partner at Ballard Spahr was in charge of corporate governance at the IVCC. Additionally, Ballard Spahr has served as the IVCC's paid-for legal counsel since at least 2005. Ballard Spahr is also the law firm where former Pennsylvania Governor Rendell is currently a partner, and where Governor Rendell worked as a partner prior to becoming Pennsylvania's Governor.
Just like Governor Rendell did from 2003-2010, Governor Tom Corbett of Pennsylvania has a "Governor's Representative" who serves on the Board of Directors of the state taxpayer funded Independence Visitor Center Corporation. However, Governor Corbett and former Governor Rendell have turned a blind eye and deaf ear to the people's Governor's Representative on the IVCC's Board of Directors by arguing that there is "no responsibility, reporting or other relationship with the Office [of the Governor] regarding that Board position [of the 'Governor's Representative' on the IVCC's Board of Directors]." (see page 12)
In spite of the IVCC's public purpose and public funding, the IVCC operates in secret, and it is unknown why the IVCC takes random and arbitrary actions in conjunction with and on behalf of the National Park Service. Unfortunately, the taxpayer supported IVCC has proven litigious, clandestine and defensive when information is sought under the Pennsylvania Right to Know Law and Freedom of Information Act about its operations.
Federal Appropriations Funding for the IVCC
Despite the lack of Congressional approval for this egregious use of "discretion," the Federal government continues to fund the IVCC. To date, approximately $8.25 million has been spent through Federal appropriations to fund the IVCC. This figure does not even include the additional $38 million which it cost to construct the Independence Visitor Center.
According to the Operating Agreement, Section G.1.(u), page 31,
"[National Park] 'Service Contribution' shall mean the annual financial assistance contributed by the [National Park] Service to the IVCC [Independence Visitor Center Corporation] to support operations and maintenance activities. It is the [National Park] Service’s intent to provide annual financial assistance to the IVCC of up to a maximum of eight hundred and fifty thousand dollars ($850,000) through annually executed cooperative agreements. The transfer of any [National Park] Service Contribution to the IVCC shall be contingent on the availability of appropriations and on a [National Park] Service finding that funds are actually needed for the payment of IVCC Operating Expenses and/or the IVCC Capital Expenses."On February 3, 2011, the National Park Service (NPS) filed a Notice of Intent to Award $850,000.00 in Federal appropriations to fund the "Operation, Use and Maintenance" of the IVCC (See Notice of Intent to Award, Funding Announcement NPS-11-NERO-0026, posted on February 3, 2011). Note that Notice of Intent document states under the section National Park Service Involvement with the IVCC,
"Serve on the [IVCC] board and attend [IVCC] board meetings; undertake at the Visitor Center activities related but not limited to, provision of appropriate visitor information and interpretative facilities and programs related to the Park and the National Park Service ;..." (emphasis added)Some in the Federal government have seemingly been uninterested in the fact that the continued Federal funding of the IVCC through the NPS is costing millions of taxpayer dollars that are in effect being used to oppose Constitutional rights. Congressman Robert Brady, however, did try to shed light on this shady situation with regard unfair business practices in an April 27, 2009 letter to Secretary of the Interior Ken Salazar:
"I am writing to you today about my deep concerns regarding the actions of the National Park Service (NPS) and specifically what appears to be the subjective and disparate treatment of private vendors within Independence National Historical Park (INHP) in Philadelphia, including at the Independence Visitor Center (IVC) which is located within INHP… The lack of any transparent and fair “rules of the road” for vendors is not only causing some vendors to contemplate shutting their doors, including The Constitutional Walking Tour ('The Constitutional'), but more important is violating the very values and spirit of Independence National Historical Park and the principle of non-discriminatory treatment enshrined in the Constitution."Unfortunately, the efforts to end the suppression of rights enforced by the NPS at INHP have yielded few positive results. The NPS and the IVCC continue to operate at INHP in a manner distinctly opposed to the spirit of individual and economic liberty.The continued funding of the IVCC by the NPS represents a decision by the Federal government to waste taxpayer dollars in an effort to oppose Constitutional rights and economic liberty. This must stop.
National Park Service Is Violating the "Carefully Controlled Safeguards Against Unregulated and Indiscriminate Use" at America's Birthplace
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 concessionaires, 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 mean 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).
For the record, The Constitutional Walking Tour and its owners do not sell, distribute, trade in or are otherwise associated with alcohol, tobacco, firearms or pornographic material. The NPS and IVCC have just chosen to act randomly and arbitrarily against The Constitutional using their unfettered management discretion to treat The Constitutional differently than other vendors at INHP and not follow the "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.
NPS Officials Have Previously Been Found of Violating the First Amendment
In 1987, protesters were barred from Independence Mall during events honoring the Bicentennial of the Constitution of the United States. In response, the protesters took their case to Federal Court (Case: Pledge of Resistance, et al., (Plaintiffs) versus We the People 200, Inc., et al., (Defendants), Civil Action No. 87-3975, United States District Court for the Eastern District of Pennsylvania), citing a violation of Constitutional rights. A New York Times article on the We the People 200 Court case reported,
"A Federal district judge, declaring that the officials who control Independence Mall 'may not fully appreciate the reach of the First Amendment,' found today that they had violated the free-speech rights of protesters at a ceremony honoring the Constitution's bicentennial." (emphasis added)The Defendants -- the Regional Director of the U.S. [National] Park Service, the Superintendent of the Independence National Historical Park, the City of Philadelphia, the Police Commissioner of the City of Philadelphia, Robert Mitchell, Walter Donahue and Frank Friel -- were permanently enjoined individually on November 28, 1988 by Judge John P. Fullam, United States District Court for the Eastern District of Pennsylvania,
"a. from denying to Plaintiffs, or any other person permission to lawfully distribute leaflets and other printed matter or to wear, display or carry signs, placards, or insignia, by reason of the message contained therein and sought to be conveyed;"
"b. from preventing plaintiffs, individuals or groups from distributing literature, assembling or soliciting signatures in Independence National Historical Park or on streets, sidewalks, parks or other areas open to the public, so long as such activities do not involve breaches of the peace, and do not actually interfere with similar activity by others, or with public events in progress."A Gag Order
Even twenty years after the 1998 Permanent Injunction, the officials controlling Independence Mall, which is the centerpiece of Independence National Historical Park, still lack an appreciation of the First Amendment. In 2008, the National Park Service, along with the Federally-funded Independence Visitor Center Corporation, worked in concert with one another to silence one of their critics through a pretextual confidentiality agreement. Specifically, the NPS and IVCC tried to silence The Constitutional Walking Tour. The efforts of the NPS and IVCC to do so shocked the conscience since the NPS's and IVCC's actions represented a very high level of abuse of power in which the NPS and its agent, the IVCC, acted randomly and arbitrarily, against The Constitutional.
Conclusion
The taxpayer-supported NPS and IVCC use their unfettered management "discretion" in a variety of ways that not only violate established Constitutional rights and Federal legislation but also cause direct and indirect harm to visitors, citizens, taxpayers and businesses. One such example is the Operating Agreement which ignores the Second Amendment to the Constitution, even on the very land that the amendment was ratified. Persons or businesses dealing in guns are not permitted to enter into partnerships with the IVCC, despite the Constitutional guarantee of a right to bear arms that should be honored, especially at Independence National Historical Park in Philadelphia.
It is high time for the NPS to carry out the laws of Congress, not to unilaterally change them.
Note
For the record, neither The Constitutional Walking Tour nor its principals sell, distribute or trade in, or is otherwise clearly associated with alcohol, tobacco, firearms and/or pornographic material. Nonetheless, the National Park Service and Independence Visitor Center Corporation have found numerous other random and arbitrary ways to discriminate against The Constitutional Walking Tour.
Exhibits
*Operating Agreement between the United States Department of the Interior - National Park Service and the Independence Visitor Center Corporation, 4-26-10.
*Biography of Dennis Reidenbach, Northeast Regional Director of the National Park Service
*Independence National Historic Park, Long-Range Interpretive Plan, US Department of the Interior, Dec. 2007.
*Mary A. Bomar Sworn-In as Director of the National Park Service, NPS News Release, 10-17-06.
*Gateway [Independence] Visitor Center Authorization Act ("Public Law 106-131").
*Biography of John Estey, Chief of Staff to Governor Ed Rendell, from the Commonwealth of Pennsylvania's Web site.
*Office of the Governor v. Jonathan Bari; IVCC v. Jonathan Bari; Commonwealth Court of Pennsylvania, 9-13-10 (see page 12).
*Notice of Intent to Award, National Parks Service, US Department of the Interior.
*Brady, Robert. Letter to Secretary of the Interior Ken Salazar, 4-27-09.
*William K. Stevens. "Judge Says U.S. Officials, Honoring Constitution, Violated Protesters' Rights." The New York Times, July 11, 1987.
*Pledge of Resistance, et al., (Plaintiffs) versus We the People 200, Inc., et al., (Defendants), Civil Action No. 87-3975, United States District Court for the Eastern District of Pennsylvania, Permanent Injunction, November 28, 1988.
