a declaratory judgment and an injunction against Landmark to prevent it from operating a particular tour service until the corporation complied with certain licensing and registration requirements of the D.C. Code. The service that the District of Columbia claimed Landmark was operating illegally was an interpretive transportation service -- that is, a bus tour with vocal commentary along the way. It ran on a circuit from the parking lot of Robert F. Kennedy Memorial Stadium partly along city streets to various points of interest for tourists on the Mall and back again. The parking lot is located about two miles east of the Capitol. The Mall, a federal park, extends generally from the Capitol west past the Washington Monument to the Lincoln Memorial and is bordered by museums and art galleries.
The Washington Metropolitan Area Transit Authority and the Washington Metropolitan Area Transit Commission ("WMATC") have been allowed to intervene to support the plaintiffs.
Landmark, the defendant, has contracted with the Secretary of the Interior ("Secretary") to provide the interpretive transportation service at issue in this case. Its sole defense has been that 40 U.S.C. § 804 (Supp. 1974) gives exclusive authority to the Secretary to regulate this service and that therefore the firm is immune from the enforcement of these local regulations against it.
The second suit, United States v. District of Columbia, C.A. No. 75-2148, was brought because of the first suit. Its entire purpose and effect have been to make the federal government an intervenor-defendant in that suit; therefore, the Court will treat the United States as such and decide the matter accordingly.
The relevant facts are not in dispute. The federal government and Landmark on one side and the D.C. government on the other have each sought judgment in their favor. However, before addressing the merits of these motions, the Court must first decide whether the issues raised are still ripe for adjudication. On January 27, 1976, while both these suits were pending, the acting director of the National Capital Parks did give public notice that the service in controversy here had been suspended because relatively few people were using it. 41 Fed. Reg. 3887-88 (1976). But the director also said at that time that he intends to begin service again if the demand becomes great enough. Since the number of visitors coming to the Washington area generally increases in the spring and summer, and since the number is especially likely to increase substantially in this Bicentennial year, the Court concludes that, although an injunction may no longer be appropriate, the controversy still has sufficient life to support jurisdiction for purposes of a declaratory judgment. Therefore, the Court must consider the merits of the motions made.
The District of Columbia claims that Landmark must comply with the following D.C. regulations if it is to operate interpretive transportation service from the Robert F. Kennedy Memorial Stadium parking lot to the Mall and back again:
(1) D.C. Code § 40-102 (1973) (vehicle registration);
(2) D.C. Code § 40-201 et seq. (1973) (vehicle inspection);
(3) D.C. Code § 47-2338 (1973) (licensing of tour guides);
(4) D.C. Code § 29-933 (1973) (certification and filing of annual reports as a foreign corporation).
Landmark admits that ordinarily it would have to comply with these regulations. Its argument is that its contract with the Secretary was authorized by 40 U.S.C. § 804 (Supp. 1974) and that this provision specifically exempts the operator of the service from that obligation. Section 804 provides as follows:
The Secretary [of the Interior] is directed to utilize the authority under [ 16 U.S.C. § 1 et seq.], to provide interpretive transportation services between or in Federal areas within the District of Columbia and environs, including, but not limited to, transportation of visitors on, among, and between the Mall, the Ellipse, the National Visitor Center, John F. Kennedy Center for the Performing Arts, and East and West Potomac Park, and such other visitor facilities as may be established pursuant to this chapter, and with the concurrence of the Architect of the Capitol, to provide such services on, among, and between such areas and the United States Capitol Grounds. The Secretary shall determine that such services are desirable to facilitate visitation and to insure proper management and protection of such areas. Such interpretive transportation services shall, notwithstanding any other provision of law to the contrary, be deemed transportation by the United States and shall be under the sole and exclusive charge and control of the Secretary. [emphasis added]
The District of Columbia's primary concern obviously is with the last sentence of the section. Its first argument is a direct one -- that, despite the rather absolute language of that sentence, Congress did not intend to give a concessionaire of the services described in the statute absolute immunity from all local regulation, but only immunity from that which might be actually inconsistent with the concessionaire's obligations to the Secretary. The regulations at issue, D.C. claims, are not inconsistent with Landmark's obligations. D.C.'s other argument is more indirect -- that the Secretary's particular contract with Landmark was not authorized by § 804 and that therefore the last sentence of that section does not come into play. D.C. gives two reasons why § 804 does not authorize this contract. The first is that the section authorizes only contracts for "interpretive transportation services," and the service Landmark would provide would not meet that definition because Landmark did not on at least some occasions when the service was active provide commentary on the tour at all and, therefore, presumably would not should the service begin again. The second reason is that the Robert F. Kennedy Memorial Stadium parking lot is not one of the areas to which Congress intended the Secretary's contracting power under § 804 to extend.
In order to address these issues properly, some background to the enactment of § 804 is necessary.
The Secretary first began to experiment with interpretive transportation service during the mid 1960's. At the start, he limited the service to the geographic confines of the Mall itself. Tourists quickly became enchanted with the service, and so, in turn did the Secretary.
But the WMATC soon brought suit against the operator of the service, Universal Interpretive Shuttle Corporation ("Universal"), to enjoin the tours until the firm fulfilled the local regulatory prerequisite of obtaining a certificate of convenience and necessity from the Commission. Universal's defense was similar to that in this case: that the Secretary had exclusive authority under D.C. Code §§ 8-108 and 8-109 to regulate interpretive bus service within the limits of the Mall and that therefore the corporation was immune from the enforcement of the WMATC's requirements.
The Secretary agreed completely with Universal and quickly turned for help to Congress, which was at that time considering what was to become the National Visitor Center Facilities Act of 1968, Pub. L. No. 90-264 (March 12, 1968), 40 U.S.C. §§ 801-31 (1970). The Secretary proposed that it add to the bill the following provision:
The Secretary is directed to utilize the authority under [ 16 U.S.C. § 1 et seq.] to provide interpretive transportation services between or in Federal areas within the District of Columbia and environs, including transportation of visitors on, among and between the Mall, the Ellipse, and East and West Potomac Park when he deems such action advisable to facilitate visitation and to insure proper management and protection of such areas. Such interpretive transportation services shall, any provision of law to the contrary notwithstanding, be deemed transportation by the United States and shall be under the sole and exclusive regulation of the Secretary. The Secretary is further directed to provide such services on, among, and between the areas referred to in the first sentence of this section and the National Visitor Center and such other visitor facilities as may be established pursuant to this Act. [S. Rep. No. 959, 90th Cong., 2d Sess. 10 (1968)]