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Legal Considerations for the National Mall and Pennsylvania Avenue National Historic Park

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Legal Considerations for the National Mall and Pennsylvania Avenue National Historic Park LEGAL CONSIDERATIONS FOR THE NATIONAL MALL AND PENNSYLVANIA AVENUE NATIONAL HISTORIC PARK To aid in the discussion about the future of the National Mall and Pennsylvania Avenue National Historic Park, this document describes guiding principles for the National Park Service (NPS), as well as the national park system, followed by some of the key legal authorities that affect the management of these special areas and that will factor into the planning decisions for the National Mall plan. By no means does this discussion mention all of the authorities that apply. Contents enshrine our nation’s enduring principles, and places that remind us of the tremendous sacrifices Americans have made on behalf of NPS Laws, Regulations, and Policies .................. 1 those principles. They are the most remark- The National Park System ............................... 1 able collection of places in America for rec- NPS Organic and General Authorities Acts .. 2 reation and learning. Visitors can immerse Regulating Public Use ........................................... 2 themselves in places where events actually happened and enjoy some of the most signif- First Amendment Jurisprudence ......................... 3 icant natural and historic places in America. Memorials and the Reserve.................................. 4 As required by the 1916 Organic Act, these Commercial Activities and Transportation........ 4 special places must be managed in a special Pennsylvania Avenue National Historic Park.... 5 way — a way that allows them to be enjoyed For More Information .......................................... 6 not just by those who are here today, but also by generations that follow. (NPS Manage- ment Policies 2006, p. iii.) NPS LAWS, REGULATIONS, AND Laws, regulations, and authorities that govern POLICIES the management of the National Mall and Pennsylvania Avenue National Historic Park The National Park System include those that are applicable to all national parks and to the National Park Service as a The National Mall and Pennsylvania Avenue federal agency. As explained in the NPS National Historic Park are part of the national Management Policies 2006, park system, and as such are administered by the National Park Service. NPS historians describe The management of the national park system and the National Mall as one of the oldest elements NPS programs is guided by the Constitution, of today’s national park system, dating from the public laws, treaties, proclamations, executive creation of the District of Columbia in the 1790s, orders, regulations, and directives of the Secre- tary of the Interior and the Assistant Secretary for while Pennsylvania Avenue National Historic Fish and Wildlife and Water. (NPS Management Park is among the newer, joining the system in Policies 2006, p. 2). 1996. Knowing why these legal considerations apply is essential to factoring them into the The National Historic Preservation Act, the planning decisions for the National Mall plan. In National Environmental Policy Act (NEPA), the this instance, many of these laws and other re- Clean Air Act, and the Clean Water Act are quirements are applicable because these areas among these laws applicable across the system. are part of the national park system. As de- There are other laws that apply more narrowly, scribed by the NPS Management Policies 2006, such as those for making planning decisions affecting parks in the greater Washington, D.C., The national park system was created to area and which involve the National Capital conserve unimpaired many of the world’s Planning Commission and the U.S. Commission most magnificent landscapes, places that of Fine Arts, and there are other laws and 1 LEGAL CONSIDERATIONS FOR THE NATIONAL MALL AND PENNSYLVANIA AVENUE NATIONAL HISTORIC PARK requirements that apply to just the National Mall located. The NPS-specific regulations are in or Pennsylvania Avenue National Historic Park, Title 36 of the code, and 36 CFR 7.96 contains such as those for individual memorials. those regulations that are just for the greater Washington, D.C., area. The following are NPS Organic and General provisions that center on public uses and figure prominently in the administration of the Authorities Acts National Mall and Pennsylvania Avenue According to the NPS Management Policies 2006, National Historic Park. (pp. 9–10), the most important statutory direc- tive for the National Park Service is provided by Recreational Activities — Regulations pertain- interrelated provisions of the NPS Organic Act ing to recreational activities require permits for of 1916 and the NPS General Authorities Act of organized games such as baseball and football, 1970, including amendments to the latter law in and for model airplane flying; prohibit athletics 1978. The key management-related provision of if the grounds are wet or otherwise unsuitable the Organic Act is as follows: for play without damage to the turf; allow fishing in accordance with state law; allow ice skating [The National Park Service] shall promote only in designated areas; and prohibit swimming and regulate the use of the Federal areas (36 CFR 7.96(b) through (e)). known as national parks, monuments, and reservations hereinafter specified . by such means and measures as conform to the fun- Demonstrations and Special Events — Dem- damental purpose of the said parks, monu- onstrations and special events are defined as ments, and reservations, which purpose is to follows (36 CFR 7.96(g)(1)): conserve the scenery and the natural and historic objects and the wild life therein and • Demonstrations — includes demonstra- to provide for the enjoyment of the same in tions, picketing, speechmaking, marching, such manner and by such means as will leave holding vigils or religious services, and all them unimpaired for the enjoyment of future other like forms of conduct that involve the generations. (16 USC 1.) communication or expression of views or grievances, engaged in by one or more Congress supplemented and clarified these persons, the conduct of which has the provisions through enactment of the General effect, intent, or propensity to draw a Authorities Act in 1970, and again through crowd or onlookers. enactment of a 1978 amendment to that act. These acts added • Special events — includes sports events, pageants, celebrations, historical reenact- [t]he authorization of activities shall be ments, regattas, entertainments, exhibi- construed and the protection, management, tions, parades, fairs, festivals, and similar and administration of these areas shall be events (including such events presented by conducted in light of the high public value the National Park Service), which are not and integrity of the National Park System and shall not be exercised in derogation of demonstrations as previously defined, and the values and purposes for which these which are engaged in by one or more per- various areas have been established, except sons, the conduct of which has the effect, as may have been or shall be directly and intent, or propensity to draw a crowd or specifically provided by Congress. (16 USC onlookers. la-1.) These terms do not include casual park use by visitors or tourists that does not have an intent REGULATING PUBLIC USE or propensity to attract a crowd or onlookers. There are regulations in the Code of Federal Special events and demonstrations with more Regulations (CFR) that apply to all federal agencies, and others that apply only to the than 25 people within the National Mall & administration of the national park system, Memorial Parks generally require a permit issued by the National Park Service. To preserve including some specifically for the NPS National Capital Region, where the National Mall is an atmosphere of calm, tranquility, and 2 First Amendment Jurisprudence reverence, certain memorial areas exclude While recognizing the importance of the Na- demonstrations or special events. These areas tional Mall and its nearby monuments and include specific portions of the Washington memorials, the United States Court of Appeals Monument, the Lincoln Memorial, the Jefferson for the District of Columbia Circuit has stated Memorial, and the Vietnam Veterans Memorial that “the Mall is more than home to these (see 36 CFR 7.96(g)(3)(ii) for specific areas enduring symbols of our nationhood.” The excluded). court opinion continues, Its location in the heart of our nation’s capital A permit may be denied if multiple uses cannot makes it a prime location for demonstrations. be accommodated in the same area at the same It is where Martin Luther King, Jr., delivered time; there is a clear and present danger to the his famous “I Have a Dream” speech, where public safety, good order, or health; the pro- both sides of the abortion debate have staged posed demonstration or special event is of such their demonstrations, and where on any given a nature or duration that it cannot reasonably be day one may witness people gathering to voice accommodated in a certain area; or activities are their public concerns. As the court has stated contrary to other applicable laws or regulations. before, “It is here that the constitutional rights of speech and peaceful assembly find their Limitations on permits for demonstrations and fullest expression” (Friends of Vietnam Memo- special events include how long events may last; rial v. Kennedy, 116 F.3d 495, 496 (D.C. Cir. hours of operation to avoid unreasonable inter- 1997), quoting ISKCON of Potomac v. ference with rush-hour traffic; and allowance of Kennedy, 61 F.3d 949, 952 (D.C. Cir. 1995)). temporary structures erected for the purpose of symbolizing a message or meeting logistical In the context of such longstanding First Amend- needs (such structures may not unreasonably ment jurisprudence, and consistent with NPS harm park resources and shall be removed as regulations and policies that allow demonstration soon as practicable) (36 CFR 7.96(g)(4)(iii), and sales activities under certain conditions, (5)(vi)). demonstrations must be considered to be at least legally consistent with the special nature and Sound amplification equipment is allowed in sanctity of the Mall.
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