The opinion of the court was delivered by: OBERDORFER
Louis F. Oberdorfer, United States District Judge
This is an action for declaratory and injunctive relief brought by the Community for Creative Non-Violence (CCNV) and Mitch Snyder, its primary spokesperson. Defendants are Donald P. Hodel, Secretary of the Interior, and Manus J. Fish, Jr., Regional Director, National Capital Region, of the National Park Service (Park Service).
The controversy in this case stems from the Park Service's denial of CCNV's request to include a statue it commissioned in the 1985 Christmas Pageant of Peace. The Christmas Pageant is an annual "national celebration event" held on the oval portion of the Ellipse during the last weeks of December. 36 C.F.R. § 50.19 (d)(1) (1985). It will begin this year on December 12, 1985, at which time the several artifacts of a Christmas celebration will be in place.
The Christmas Pageant is sponsored by the Park Service with the cooperation of The Christmas Pageant of Peace, Inc. The policy of the Park Service is to "encourage the expression of views regarding [the Pageant]." 46 Fed. Reg. 55,961. To that end, a public meeting is held several weeks before the Pageant to present a general plan for the event, and to solicit public "suggestions for activities within the theme and format of the Christmas Pageant." Id.
This year, the Park Service held its annual meeting to solicit public views, at which James H. Riley, President of The Christmas Pageant of Peace, Inc., announced that the theme for the 1985 Pageant was to be "traditions." At that meeting, plaintiff Mitch Snyder also announced the plan of CCNV to commission a sculpture from a noted black artist, James Earl Reid, of a man, woman and child on a heating grate with the inscription, "And there is still no room at the Inn."
See Plaintiffs' Exhibit 14. Snyder requested that the sculpture be included as part of the Christmas Pageant. On November 26, 1985, the Park Service informed plaintiffs by letter that that it had "decided to deny [CCNV's] request." The letter went on:
The Christmas Pageant of Peace is a non-partisan, non-political special event held each year on the Ellipse. It is co-sponsored by the National Park Service and Christmas Pageant of Peace, Inc., a non-sectarian, non-partisan civic organization. . . .
The statue that you wish to have displayed along with those items, as described in your remarks in the public meeting, is not appropriate for the Pageant of Peace. It is not a traditional symbol of the Christmas holiday. Further, the statue and accompanying sign represent your group's statement on a political issue now the subject of great controversy. In addition, as pointed out in your remarks at the public meeting and in your recent press release on the statue, the statue will be used to raise monies for a national fund for the homeless. While this goal is admirable, we believe that it is inappropriate to initiate any fund-raising campaign at the Pageant of Peace. Finally, we are concerned about the expense to the National Park Service resulting from the installation of a functional heating grate, an important part of the statue, on the Pageant site. Although you gave us few details on the statue, it appears that considerable replanning would have to be done to accommodate the statue as a part of the Christmas Pageant of Peace display.
Plaintiffs' Exhibit 1-A. The letter concluded:
You may set up your statue on the Ellipse in close proximity to the Pageant of Peace under regulations applicable to First Amendment activities on park lands. In this regard, I have enclosed an application for a permit to conduct your activity.