lack the financial resources to distribute their t-shirts for
Because the Court finds that the regulation does not impose a
substantial burden on plaintiffs' free exercise of their religion
pursuant to the law as enunciated by this Circuit, the Court need
not address whether the government can demonstrate a compelling
interest in imposing such burden and whether it did so in the
least restrictive means possible.
B. The Fifth Amendment's Equal Protection Clause
Plaintiffs have also bottomed their amended complaint on the
basis of a denial of their equal protection rights. The right to
equal protection under the law is made applicable to the federal
government through the Due Process Clause of the Fifth Amendment.
Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed.
Plaintiffs claim that since the amended regulation was
promulgated, they have observed t-shirt sales in the vicinity of
the Mall. This observation has not been substantiated. Indeed,
the contrary has been shown. In the Second Declaration of Richard
Merryman, Chief of the Division of Park Programs, National
Capital Parks-Central in the National Capital Region of the
National Parks Service, which was submitted in support of
defendants' motion, Merryman states that the NPS did not extend
permission for such sales and that enforcement action against
violators has been taken. Plaintiffs have not disputed these
findings. Accordingly, the Court finds no violation to
plaintiffs' right to equal protection under the law.
C. The Administrative Procedures Act
Plaintiffs claim that defendants violated the APA with respect
to the issuance of the four notices following the Court of
Appeals' decision upholding the constitutionality of the amended
regulation in Friends I. In their amended complaint, plaintiffs
allege that these four notices were promulgated by the NPS
without prior notice and comment as required by the APA.
The notices dated August 18, 1997 and August 22, 1997, announce
the Court of Appeals' decision in Friends I and apprise the
public that the provisions of the regulation will be enforced.
The notices dated August 21, 1997 and September 5, 1997, discuss
the scope of permissible sales transactions under the regulation.
These two notices announce that the items prohibited from sale
under the amended regulation may not be sold via an "artifice,"
which the notices illustrate by example as the giving away of a
prohibited item in connection with the sale of a permitted one.
To the extent the four notices reiterate the provisions of the
regulation in dispute or announce the Court of Appeals' decision
in Friends I, the Court finds that notice and comment are not
required. They do not promulgate a new rule of general
application but only restate a regulation whose promulgation
pursuant to the APA is not challenged by plaintiffs. The notices
also announce the decision of the Court of Appeals upholding the
constitutionality of the regulation, which is not a matter that
is subject to notice and rule making requirements.
With respect to the explanations of permissible sales
transactions appearing in the August 21, 1997 and September 5,
1997 notices, the Court finds that they reflect the language
appearing in the preamble to the final rule set forth in the
Federal Register, which provides that "[a]ttempts to offer or
sell items, whether directly or by the use of an artifice, other
than books, newspapers, leaflets, pamphlets, buttons and bumper
stickers on park land are prohibited. For example, restricted
merchandise cannot be `given away' and a `donation accepted' or
one item `given away' in return for the purchase of another item;
such transactions amount to sales." 60 Fed.Reg. at 17,648.
The preamble, which gives official interpretive guidance to the
should be accorded due deference unless clearly erroneous or
contrary to the terms of the regulation. See Innovative Health
Sys., Inc. v. City of White Plains, 931 F. Supp. 222, 236 n. 6
(S.D.N.Y. 1996). Notably, the contested language in the preamble
does not contravene the language of the regulation, see National
Propane Gas Ass'n v. United States Dep't of Transp.,
43 F. Supp.2d 665, 683 (N.D.Tex. 1999), and illustrates what amounts
to permissible and impermissible sales under the regulation and
the types of evasive tactics by putative vendors that will not be
tolerated by the NPS. The Court will not disturb the official
agency interpretation of the regulation set forth in the preamble
and referenced in the two notices by invoking yet another round
of rule making.*fn3
D. The First Amendment Claims
Plaintiffs also challenge the constitutionality of the
regulation as a violation of the Free Speech, Free Press, and
Free Exercise Clauses of the First Amendment. Their free speech
and free press claims are a recasting of First Amendment
arguments that have been previously made before this Court and
the Court of Appeals, and plaintiffs have presented no new
grounds for reconsideration of this issue. Since the Court of
Appeals fully addressed the issue, this Court believes that
nothing further can be gained by a further discussion of these
claims. As for plaintiffs' claim styled "hybrid right of free
exercise," because the Court finds that plaintiffs' other First
Amendment claims fail, plaintiffs do not have a viable cause of
action on this claim and it will be dismissed. See Employment
Div., 494 U.S. at 872-73, 110 S.Ct. 1595.
Although the Court will grant defendants' motion, it remains
sympathetic to plaintiffs' claims, as noted in its decision in
Friends I. This is because the Court of Appeals in a detailed
opinion upheld the NPS regulation at issue here. It would be
incongruous for this Court to now find that these plaintiffs
would have the right to sell their wares on the National Mall but
preclude the many equally deserving plaintiffs in the Friends I
litigation from delivering their messages. As a nation that
believes in the rule of law, the final authority having spoken,
the litigation on the validity of defendants' amended regulation
must come to an end.
An appropriate Order accompanies this Memorandum Opinion.
This matter is before the Court on defendants' Motion to
Dismiss, or in the Alternative, for Summary Judgment. For the
reasons set forth in the accompanying Memorandum Opinion, it is
ORDERED that defendants' motion be GRANTED.