National Park Service: 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

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).

By way of background, on December 7, 1999, President Bill Clinton signed Public Law 106-131, authorizing the NPS to enter into an Operating Agreement with the IVCC. The express Congressional intent of Public Law 106-131 was clearly stated as:

“The purpose of this Act is to authorize the Secretary of the Interior to enter into a cooperative agreement with the Gateway [Independence] Visitor Center Corporation to construct and operate a regional visitor center on Independence Mall.” (emphasis added)

From December 7, 1999, 3,794 days -- or ten years, four months, and twenty days -- elapsed before the Operating Agreement was executed on April 26, 2010.

The existence of an Operating Agreement is rather straightforward -- an Operating Agreement either exists or it does not -- there is no middle ground. The fully signed Operating Agreement did not exist until April 26, 2010. Curiously, however, the National Park Service has offered conflicting and often unverifiable assertions regarding the existence of an Operating Agreement before April 26, 2010.

On November 23, 2009, Michael Levy, Margaret Hutchinson, and Viveca Parker, the U.S. Attorneys representing the National Park Service as Defendants against The Constitutional Walking Tour ("The Constitutional"), erroneously asserted in their Motion to Dismiss The Constitutional Walking Tour's complaint filed in the U.S. District Court for the Eastern District of Pennsylvania that,

“Secretary [of the Interior, Ken Salazar] – a party to the [operating] agreement [between the NPS and IVCC] – asserts that the agreement does exist.” (Defendants Reply, page 7)

This Orwellian assertion by the U.S. Attorneys and NPS that the Operating Agreement existed as of November 23, 2009 was made without reference to any supporting document or affidavit, and that assertion was completely false. (For the record, the U.S. Attorneys and the NPS also erroneously claimed that senior NPS officials do not serve, and moreover have never served, on the Independence Visitor Center Corporation's ("IVCC") Board of Directors.)

For example, on April 27, 2009, United States Congressman Robert Brady wrote to Secretary of the Interior Ken Salazar to criticize NPS's management of Independence National Historical Park ("INHP") and the IVC because,

"While the Visitor Center was completed in 2001, the NPS has heretofore not executed an operating agreement with the IVC ..." (emphasis added)

On July 28, 2009 -- mere months before the assertion by the U.S. Attorneys -- Jonathan Jarvis, then President Barack Obama's nominee for Director of the National Park Service, affirmed the lack of any Operating Agreement in his sworn confirmation testimony in response to questions from Senator Lisa Murkowski before the United States Senate Committee on Energy and Natural Resources, saying,

"I am told that there are only a few legal and policy matters where agreement has not been reached...." (emphasis added)

On December 24, 2009, the Philadelphia Daily News published a Letter to the Editor from James J. Cuorato, President and CEO of the Independence Visitor Center Corporation. Mr. Cuorato -- a party to the Operating Agreement between the Secretary of the Interior/National Park Service and the IVCC (allegedly existing as of November 23, 2009) -- asserted that there was no Operating Agreement as of December 24, 2009, let alone on November 23, 2009 when the U.S. Attorneys filed the NPS's Motion to Dismiss stating that there was an Operating Agreement,

"We are working to complete this formal [Operating] agreement, which could serve as a model for other [national] parks. In the meantime, the practical aspects of the cooperative management of the Visitor Center by the Park Service and IVCC have long been agreed upon, and IVCC has been legally operating in the Visitor Center via special-use permits issued by the Park Service. Once the operating agreement is signed, IVCC and the Park Service will continue to operate the Visitor Center as it is currently, successfully, operated." (emphasis added)

On or about January 14, 2010, the NPS's Cynthia MacLeod issued and published the 2009 Superintendent's Annual Narrative Report for Independence National Historical Park for Fiscal Year 2009 from October 1, 2008 September 30, 2009,

"INDE [Independence National Historical Park] is in the process of finalizing a long-term [Operating] agreement with the Independence Visitor Center Corporation (IVCC). Because of the complexity of this agreement pursuant to federal legislation, which will create a partnership unique within the NPS, it still is being drafted by the partner and the Department’s Office of the Solicitor. The IVCC continues to operate under a Special Use Permit. The lack of a signed agreement between the IVCC and the NPS and friction between a tour operation and the IVCC were cited by the tour operator who initiated a lawsuit against the IVCC, the NPS, and current and former superintendents." (emphasis added)

On March 3, 2010, Jane Cowley, Public Affairs Officer, Independence National Historical Park, wrote,

"The operating agreement has not been signed." (emphasis added)

On March 8, 2010, Senator Arlen Specter and Senator Bob Casey wrote to the National Park Service,

"We write regarding implementation of the Gateway Visitor Center Authorization Act of 1999 (P.L 106-131), which was introduced by Senator Specter and signed into law on December 7, 1999. This legislation authorized the Secretary of the Interior to enter into an agreement with the Gateway Visitor Center Corporation to facilitate the construction and operation of the Independence Visitor Center (IVC), which was completed in 2001 at Independence National Historical Park, in Philadelphia, PA. It is our understanding that the Department of Interior has not yet signed an operating agreement with IVC, but has instead issued a series of Special Use Permits. Does the Department intend to sign a long-term operating agreement with the IVC and, if so, what is the status of negotiations?" (emphasis added)

On April 6, 2010, over four months after the U.S. Attorneys claimed that the Operating Agreement "does exist," Darrell Strayhorn, Esq., FOIA & Privacy Act Appeals Officer for the U.S. Department of the Interior, asserted in painstaking detail that the Operating Agreement has not yet been completed, which is why there is no Operating Agreement to be released under the Freedom of Information Act. Ms. Strayhorn definitively stated,

"As a final point on your assertion that the NPS has adopted an unspecified version of the Draft Long Term Agreement, please note that in connection with the evaluation of the arguments you raise in your reconsideration request, the NPS reconfirmed that it has not adopted any version of the document [Operating Agreement] formally or informally."

On February 17, 2011, Dennis Reidenbach, Regional Director, Northeast Region, NPS, wrote to Congressman Patrick Meehan,

"I am happy to report that one of these requests - that the National Park Service (NPS) signed a long-term operating agreement with the Independence Visitor Center Corporation (lVCC) - has already been completed. That agreement was signed in April 2010." (emphasis added)

The Bottom Line - No Operating Agreement At Anytime Prior To April 26, 2010
The past three Superintendents of INHP (Dennis Reidenbach, Darla Sidles and Cynthia MacLeod - all of whom are individual Federal Defendants in the case brought by The Constitutional), a United States Congressman (Congressman Robert Brady), two United States Senators (Senators Specter and Casey), the Secretary of the Interior (Secretary Ken Salazar), the Department of the Interior's FOIA counsel (Darrell Strayhorn), and the Director of NPS (Jonathan Jarvis), the President and CEO of the Independence Visitor Center Corporation (James Cuorato), individually and collectively have established that the Operating Agreement never existed between the NPS and IVCC at anytime prior to April 26, 2010.

Despite the reality that various government officials associated with Independence National Historical Park and the oversight of the National Park Service all indicated that no Operating Agreement existed at anytime prior to April 6, 2010, and despite that the executed Operating Agreement was dated April 26, 2010, the United States Attorneys, on behalf of the National Park Service, somehow claimed in Orwellian fashion that the Operating Agreement existed on or before November 23, 2009. (See Note 1 below.)

Involvement and Supervision by the National Park Service of the Independence Visitor Center Corporation's Operation of the Independence Visitor Center
The Independence Visitor Center (IVC) in Philadelphia is a Federal facility owned and operated by the United States of America - National Park Service, which has then sub-contracted with the IVCC, a taxpayer supported public charity, to manage the IVC. The IVC is located in Independence National Historical Park, a unit of the NPS. The IVCC has received $850,000.00 annually from the Federal government via the National Park Service for the operation of the IVC. It is believed that NPS has paid the IVCC more than $8.5 million total from 2001 to the present.

From November 19, 2001 to April 26, 2010, the IVCC's operation of the Independence Visitor Center was governed by the NPS's Special Use Permits through which the IVCC managed the IVC "subject to the supervision of the [NPS's] Superintendent" and "consent of, the National Park Service." (See Note 2 and Note 3 below.)

In lieu of an Operating Agreement, the NPS issued a bare-bones temporary Special Use Permit to the Independence Visitor Center Corporation in November 2001 and then extended it 29 (twenty nine) separate times over ten years, four months and twenty days "to allow additional time to finalize a formal [Operating] Agreement."

Under the NPS's own regulations, these Special Use Permits are supposed to allow a "short-term activity" that "provides a benefit to an individual, group or organization, rather than the public at large." Clearly, the operation of the Independence Visitor Center is not a short-term activity, and the Independence Visitor Center benefits the public at large. The NPS certainly does not need any law per se to issue Special Use Permits, including Public Law 106-131 (the Authorization Act) to issue the IVCC a Special Use Permit. Special Use Permits should be used for events such as assemblies and demonstrations, not as a loophole for avoiding the laws passed by Congress.

The repeated renewals of the Special Use Permit are also curious in that according to all of the audited financial statements of the Independence Visitor Center Corporation since 2003, the NPS and Independence Visitor Center Corporation have "substantially established a management agreement" that "calls for the NPS to make an annual payment of $850,000.00 to the IVCC in exchange for the services provided by the IVCC more fully described in the agreement." While about $8.5 million has been spent by the Federal government to fund the Independence Visitor Center Corporation's operations since 2001, the NPS and IVCC only finally executed an Operating Agreement on April 26, 2010, and the Operating Agreement, which was supposedly done since 2003, was confidential and not available for public inspection, until May 24, 2010.

On April 3, 2008, the Philadelphia Daily News published an editorial entitled "Mall Madness",

"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."

Note 1
Plaintiffs' The Constitutional Walking Tour et al. believe that the U.S. District Court erred in arguing that the repeated issuance of Special Use Permits to the Independence Visitor Center Corporation fell within the discretion entrusted to the National Park Service by Public Law 106-131 since the Special Use Permit failed to meet the statutory requirement that the agreement between the NPS and IVCC be "under appropriate terms and conditions" as per the Authorization Act.

By Order and Opinion dated March 31, 2011 ("Order and Opinion"), the United States District Court for the Eastern District of Pennsylvania granted the National Park Service's Motion to Dismiss the lawsuit filed by The Constitutional Walking Tour. The Honorable C. Darnell Jones, II dismissed Plaintiffs’ (The Constitutional Walking Tour et al.) Federal claims for violations of the Administrative Procedures Act and violations of the Plaintiffs' Constitutional rights.

On April 29, 2011, The Constitutional Walking Tour filed a timely appeal with the United States Court of Appeals for the Third Circuit.

By way of background, Judge Jones found that the Special Use Permits (SUPs) issued by the NPS to the IVCC sufficiently met the conditions of Public Law 106-131 since the Secretary of the Interior has the discretion to create whatever agreement deemed necessary for the context,

"In this case, Federal Defendants never entered into a formal agreement but instead, utilized Special Use Permits ("SUPs"). Assuming arguendo that these SUPs constituted an “agreement” for purposes of the Authorization Act, they would be in compliance with same, as the SUPs specifically reference the Authorization Act and cite to 106 P.L. 131 for purposes of establishing the authority of the Secretary and delineating the terms by which IVCC would be permitted to operate their facility." (Order and Opinion, page 11) (emphasis added with bold and underline)

Judge Jones erred when he found on March 31, 2011 that the National Park Service "never entered into a formal [Operating] agreement" with the Independence Visitor Center Corporation. As discussed herein, the Federal Defendants and the Independence Visitor Center Corporation entered into a formal Operating Agreement on April 26, 2010. Unfortunately, Judge Jones did not permit any discovery in the underlying action -- United States District Court for the Eastern District of Pennsylvania, Case Number: 2-09-cv-03083 -- and so no evidentiary record was created which would have provided much-needed relevant background on one of The Constitutional Walking Tour's major underlying arguments in this case.

Additionally, it cannot be assumed, however, and it is certainly not conceded by The Constitutional Walking Tour, that the SUPs constituted an agreement given that NPS has consistently exhibited its belief that the SUPs did not constitute an agreement. In Judge Jones' Order and Opinion dated March 31, 2011, the District Court found,

"The APA [Administrative Procedures Act] does not allow the court to overturn an agency decision because the court disagrees with the decision or with the agency’s conclusions about environmental impacts. An agency's decision may be set aside only if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' The standard is deferential. The court 'may not substitute its judgment for that of the agency concerning the wisdom or prudence of [the agency’s] action,'" (Order and Opinion, page 8).

While NPS repeatedly issued Special Use Permits for the IVCC to operate the Federal facility, the Superintendents of Independence National Historical Park repeatedly asserted that they were attempting to finalize an Operating Agreement with the IVCC. The Superintendent's Annual Narrative Reports of 2006, 2007, 2008, and 2009 (issued by Dennis Reidenbach in 2006, by Darla Sidles in 2007, and by Cynthia MacLeod in 2008 and 2009) state that the Operating Agreement did not exist; rather, NPS was "finalizing" the Operating Agreement.

As discussed, the NPS and the IVCC eventually finalized a long-term Operating Agreement on April 26, 2010. The efforts towards finalizing the statutorily authorized Operating Agreement and the ultimate execution of such an Operating Agreement clearly demonstrated that the NPS, in its discretion, determined that Special Use Permits were insufficient. The District Court ruled, “Part of the discretion granted to federal agencies is the freedom to change positions” River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010). However, with the NPS and the IVCC, this is not a case of NPS altering a prior position; this is a case of NPS establishing as early as 2006, that Special Use Permits were insufficient, and failing to resolve those insufficiencies. As such, the failure to execute a long term Operating Agreement within a reasonable time represents an abuse of discretion by NPS, in which an agency (the NPS) determined the appropriate course of action -- namely, executing a detailed, long-term Operating Agreement -- and failed to perform the discrete act of executing the Operating Agreement that the agency's judgment determined necessary, thereby enabling a private corporation (the IVCC) to act without sufficient regulation on Federal property.

Note 2
As discussed, from November 19, 2001 to April 26, 2010, the IVCC's operation of the Independence Visitor Center was governed by the NPS's Special Use Permits through which the IVCC managed the IVC "subject to the supervision of the [NPS's] Superintendent" and "consent of, the National Park Service."

Emphasizing the Federal Defendants’ awareness of their managerial, financial and operational oversight, in early 2009, in what appears to be an attempt to conceal their responsibilities, NPS officials silently omitted from the IVCC’s Special Use Permit the key term that,

“For the duration of this permit, operational procedures for the Independence Visitor Center will be determined through consultation with, and consent of, the National Park Service."

The initial Special Use Permit was dated November 19, 2001 and the subsequent nineteen extensions thereto (Special Use Permit NER-INDE-5300-016 and Amendments 1-19, ranging from January 21, 2002 to January 31, 2009), all included nine terms under the “Conditions of this Permit” section, including the following:

“8. For the duration of this permit, operational procedures for the Independence Visitor Center will be determined through consultation with, and consent of, the National Park Service."

"9. No operational procedures agreed to by means of this permit shall establish a precedent for future operational agreements entered into between the National Park Service and Independence Visitor Center.”

Amendment #20 (which was signed by the NPS's Cynthia MacLeod on January 13, 2009 and by the IVCC's Bill Moore on January 15, 2009) contained key changes the “Conditions of this Permit” from having nine “Conditions of this Permit” to seven "Conditions of this Permit". Curiously, this revised Special Use Permit Amendment #20 was signed immediately following the Independence Visitor Center Corporation’s receipt of the draft lawsuit that The Constitutional Walking Tour’s legal counsel sent to the IVCC via FedEx on December 24, 2008 and right before Bill Moore's departure as the IVCC's President and CEO was announced on January 21, 2009.

Note that Amendment 20 did not mention anything about the parties modifying the Conditions of this [Special Use] Permit; rather it only stated that,

“The purpose of the amendment is to allow additional time to finalize a formal agreement between the National Park Service and the Independence Visitor Center Corporation.”

The NPS used the seven Conditions of this [Special Use] Permit from January 31, 2009 to November 15, 2010 for Amendments 20 through 25 of the Special Use Permit. Starting with Amendment 26, dated November 15, 2009 (which was the first SUP Amendment signed after the NPS filed its Motion to Dismiss on October 26, 2009), and continuing through Amendment 29 (March 1, 2010 to April 30, 2010 – the Operating Agreement was signed on April 26, 2010), all nine Conditions of this [Special Use] Permit were replaced and once again included:

“8. For the duration of this permit, operational procedures for the Independence Visitor Center will be determined through consultation with, and consent of, the National Park Service."

"9. No operational procedures agreed to by means of this permit shall establish a precedent for future operational agreements entered into between the National Park Service and Independence Visitor Center.”

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).