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A.N.S.W.E.R. Coalition v. Salazar

United States District Court, District of Columbia

January 14, 2013

A.N.S.W.E.R. COALITION, Plaintiff,
v.
Ken SALAZAR, Secretary, United States Department of the Interior, et al., Defendants.[1]

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[Copyrighted Material Omitted]

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Carl L. Messineo, Mara E. Verheyden-Hilliard, Partnership for Civil Justice, Inc.,

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Washington, DC, Carol A. Sobel, Santa Monica, CA, for Plaintiff.

Marina Utgoff Braswell, U.S. Attorneys Office for the District of Columbia, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

Plaintiff A.N.S.W.E.R. (Act Now to Stop War and End Racism) Coalition (" ANSWER" ) filed this lawsuit in January 2005 against the Secretary of the Interior, the Director of the National Park Service (" NPS" ), and the Director of the Secret Service, challenging the constitutionality of certain policies that restrict ANSWER's ability to engage in expressive activity during the Presidential Inaugural Parade in Washington, D.C. This matter is now before the Court on the Secretary of the Interior's motion on behalf of NPS to dismiss ANSWER's Supplemental Pleading in part, for lack of subject matter jurisdiction. The Secretary claims that ANSWER lacks standing to challenge the regulations governing access to the parade route to the extent that the regulations apply to areas outside of Freedom Plaza on Pennsylvania Avenue. After carefully considering the parties' papers, the relevant legal authorities, and the entire record in this case, the Court concludes that ANSWER has met its burden of showing standing at the pleadings stage, such that ANSWER may pursue its claim in full.[2] The Court therefore denies the Secretary's motion to dismiss.

I. BACKGROUND

The pending motion stems from ANSWER's ongoing efforts to secure sufficient space for its members and affiliates to engage in political dissent during the Presidential Inaugural Parade. This Court has previously described the factual and procedural background of this case. See A.N.S.W.E.R. Coalition v. Kempthorne, 493 F.Supp.2d 34, 37-41 (D.D.C.2007) (" ANSWER I " ); A.N.S.W.E.R. Coalition v. Kempthorne, 537 F.Supp.2d 183, 186-93 (D.D.C.2008) (" ANSWER II " ); A.N.S.W.E.R. Coalition v. Salazar, Civil Action No. 05-0071, at 2-4 (D.D.C. March 5, 2012) (" ANSWER III " ). It therefore will limit its discussion accordingly.

ANSWER is an unincorporated grassroots organization that engages in political organizing and activism in opposition to war and racism. Am. Compl. ¶ 1. Every four years since 2005, ANSWER has attempted to organize a mass demonstration along Pennsylvania Avenue to engage in political dissent during the Presidential Inaugural Parade. Id.; Supp. Pleading ¶ 1. This dispute arises from National Park Service regulations, as now amended, that grant the Presidential Inaugural Committee (" PIC" ) exclusive access to some of these same areas on and in connection with events relating to the Presidential Inauguration. See 36 C.F.R. § 7.96(g)(4)(iii) (2012).

A. Statutory and Regulatory Framework

The Department of the Interior has the authority to issue and implement, through NPS, rules and regulations that oversee

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the use of federal grounds within the National Park System. See 16 U.S.C. §§ 1, 3. Pursuant to this authority, NPS has promulgated regulations for a permitting system that allows the use of National Park System land around the national capital region for special events and demonstrations. See generally 36 C.F.R. § 7.96(g). The Secretary has additional statutory authority under the Presidential Inaugural Ceremonies Act to " grant to the Inaugural Committee a permit to use [federal] reservations or grounds during the inaugural period." 36 U.S.C. § 503(a).

When ANSWER initiated this suit in 2005, the relevant NPS regulations set aside only the White House sidewalk and three-quarters of Lafayette Park for the exclusive use of the PIC for inaugural activities. 36 C.F.R. § 7.96(g)(4)(i)(F) (2005).[3] The regulations provided that permits for demonstrations and special events for other areas would be issued on a first-come, first-served basis, id. at § 7.96(g)(4)(i), and NPS had a " strict policy" to not " accept any permit applications submitted more than one year in advance of the start date for any event on Park Services land." ANSWER II, 537 F.Supp.2d at 186-87. In practice, however, NPS deviated from its policy and submitted permit applications for itself over a year in advance of Inauguration Day activities to reserve for the PIC over one-third of the sidewalk space on Pennsylvania Avenue between 4th Street and 15th Street, Northwest, in addition to the Lafayette Park and White House sidewalk areas set aside by regulation. See id. at 187, 190.

B. Procedural History

ANSWER's first claim (" Count I" ) challenged NPS' actions to exempt itself and the PIC from the relevant permitting regulations. Am. Compl. ¶¶ 87-97. ANSWER's second claim (" Count II" ) challenged the Secret Service's prohibition on supports for signs and placards. Id. ¶¶ 98-102. ANSWER's third claim (" Count III" ) challenged NPS' policy of granting to the PIC exclusive use of space along the parade route, regardless of whether such policy was inconsistent with NPS' regulations. Id. ¶¶ 103-08. ANSWER asserted that the conduct described in each count violated the First Amendment and the Equal Protection Clause, and requested declaratory and injunctive relief, including a " [d]eclaratory judgment that the NPS policy and practice of granting to the PIC exclusive use of the public space abutting the Inaugural Parade route is unconstitutional; an injunction prohibiting such discriminatory conduct in the future; and a mandatory injunction that the NPS make the sidewalks abutting the Inaugural Parade generally open for the public for use[.]" Id. at 27. ANSWER did not challenge the regulatory set-aside of the White House sidewalk and Lafayette Park. Id. ¶ 104.

The Court addressed the justiciability of ANSWER's claims in an Opinion and Order dated June 13, 2007, in which the Court held that ANSWER had both organizational and representational standing to challenge NPS' then-uncodified policy and practice of granting PIC exclusive use of public space along the parade route. See ANSWER I, 493 F.Supp.2d at 42-48. NPS then moved for summary judgment on Counts I ...


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