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Catharsis on Mall LLC. v. Jewell

United States District Court, District of Columbia

November 11, 2016

SALLY JEWELL, in her official capacity as Secretary of the Interior, Defendant.


          COLLEEN KOLLAR-KOTELLY United States District Judge.

         Plaintiff filed suit on November 10, 2016, seeking preliminary and injunctive relief against Sally Jewell in her official capacity as Secretary of the Interior and Robert A. Vogel in his official capacity as Regional Director of the National Park Service, National Capital Region (“NPS-NCR”). Presently before the Court is Plaintiff's [2] Application for Temporary Restraining Order and Preliminary Injunction. Plaintiff raises a First Amendment challenge to Section 16 (“Bonfire Requirements”) of the NPS-NCR's “Outdoor Event & Tent Requirements” both facially and as-applied to Plaintiff who sought and was denied a permit for a temple burn ceremony on the National Mall on November 12, 2016. Given the time-sensitive nature of Plaintiff's request, the Court held an on-the-record hearing with the parties on November 10, 2016, and has limited its discussion to the arguments set forth by the parties, including Plaintiff's written briefing and the Government's oral representations. In light of the information gleaned during the on-the-record hearing, the Court concluded that it obviated the need to hold an evidentiary hearing prior to issuing its ruling. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, [1] the Court DENIES Plaintiff's [2] Application for Temporary Restraining Order and Preliminary Injunction.

         I. BACKGROUND

         The National Park Service is responsible for promoting and regulating the use of the National Park System. 54 U.S.C. § 100101. Plaintiff is a limited liability company created and maintained to serve the administrative needs involved in producing Catharsis on the Mall (“the Vigil”), an annual 72-hour vigil and political demonstration. Compl. ¶¶ 8, 11. Plaintiff held its first annual Vigil (“2015 Vigil”) last year from November 20, 2015, to November 22, 2015, on the north lawn of the Washington Monument grounds. Id. ¶ 12. The 2015 Vigil included a “Temple of Essence, ” a wooden structure approximately 12 feet tall, 10 feet wide, and 10 feet long, with a single interior room resembling a prison inmate's cell, complete with wooden bed and toilet. Id. ¶ 13. The Temple of Essence was ceremonially burned on Saturday night of the 2015 Vigil to “symbolize the vigil participants' call to change our system of mass incarceration.” Id. ¶¶ 13, 15.

         At the time of the 2015 Vigil, NPS-NCR followed a general rule set forth in a compendium that prohibited open fires, cooking or otherwise, on all park land except East Potomac Park. The compendium also provided that a permit may be authorized to allow open fires related to demonstrations or ceremonial events. The Temple Burn at the 2015 Vigil was permitted by NPS under the general provision in the compendium, id. ¶ 14, and was executed as part of the 2015 Vigil. Specifically, Plaintiff represents that in 2015 as part of the permit process, NPS indicated that it would issue a permit pending a safety review and inspection by D.C. Fire & Emergency Medical Services (“DC FEMS”), which ultimately deemed the Temple Burn safe.[2] The government noted at that time, NPS-NCR did not have its own Fire Marshal, but has since hired one.

         In August 2016, NPS-NCR adopted “Outdoor Event & Tent Requirements” that includes, among other things, certain restrictions for bonfires. Pursuant to Section 16 of those requirements, “[a] bonfire, is an open burning fire, constantly attended outdoor fire utilized primarily for ceremonial purposes . . .” The fire safety requirements of the provision allow a maximum fuel area of 5 feet in diameter by 5 feet in height (“the size limitation”), which mirrors the size limitation in the D.C. fire code. Based on the record before the Court, it is clear that these requirements were adopted in official form in August 2016. However, at the time of the 2015 Vigil, the Government represented that NPS had a restriction on burns in draft form although the specific content of the draft version at that time is unknown. It is also undisputed that the Temple Burn completed by Plaintiff at the 2015 Vigil would not have complied with the newly-adopted size limitation restriction.

         This year the Vigil (“2016 Vigil”) centers on veterans' and PTSD survivors' access to treatment and is scheduled to take place from today, Friday, November 11, 2016, to Sunday, November 13, 2016, in the same location as the previous Vigil. Id. ¶ 11. Pursuant to the permit issued for this event, Plaintiff expects approximately 4, 000 participants. At the 2016 Vigil, Plaintiff plans to feature a “Temple of Rebirth” that resembles a Phoenix. Id. ¶ 17. The Temple is larger than the one at the 2015 Vigil and measures 24 feet tall, 12 feet wide, and 12 feet long, although Plaintiff notes that “[t]he design quickly tapers off at 6 feet in height.” Id. ¶ 19. Participants will be invited to place letters and symbols inside the Temple and write messages on the Temple regarding their personal struggles with trauma and PTSD, frustration with government policy, and prayers for change. Id. ¶ 17. The proposed bonfire, which is larger than the 2015 Temple Burn, exceeds the size limitation set forth in Section 16 of NPS's recently-adopted Requirements (“Bonfire Requirements”).

         Plaintiff sought and was denied a permit by NPS to set the Temple on fire on November 12, 2016, at 9:00 p.m. Id. ¶¶ 20-30. Though not expressly provided for in the restrictions, Plaintiff sought an exemption to the newly-adopted size limitation on bonfires in order to proceed with its Temple Burn as planned. On November 8, 2016, Plaintiff was informed at a meeting by Robert A. Vogel, Regional Director of NPS, that its request for an exemption to the restriction was denied due to safety concerns and concerns about turf protection. Id. ¶¶ 28, 29. Present at the meeting were: Vigil organizers; Regional Director Vogel; Superintendent Gay Vietzke; Chief of Permits Division Robbin Owen; NPS-NCR Fire Marshals Jim King and Raul Castille; NPS's turf specialists for the region, Michael Stachowicz; and DC FEMS officials Captain Jerome Young, Sergeant Robert Kearney, and Lieutenant Aaron Hazel. Id. ¶ 28.

         In lieu of taking live testimony on the pending motion, the parties accepted during the hearing the following representations would have been made regarding that meeting:

When questioned as to whether the proposed temple burn was safe, DC Fire & EMS Sergeant Robert Kearney stated, without reservation that ‘the fire can be done safely.' He stated, however, that DC FEMS required approval of the NPS before it could endorse the activity. The other two DC FEMS officers expressed the same position, stating that ‘We [DC FEMS] can put this fire out, but we need the other agency's consent.' NPS Assistant Fire Marshall [sic] Castillo expressed concerns that the temple burn is unsafe. When asked for specifics, he mentioned the possibility of ‘fly embers' and ‘it [the fire] could distract traffic.” NPS Fire Marshall [sic] King also expressed that he did not feel the fire could be done safely. When Mr. King was asked about what the differences were between the National Mall and the much larger temples permitted and burned safely each year with similarly-sized perimeters and open areas in the Black Rock Desert, he stated that weather was different and that the two places cannot be compared. No specific explanation was given as to why the NPS's turf protection concerns remain despite the existence of a burn pad.

Id. ¶ 30. As such, for the purposes of this analysis, it is undisputed that DC FEMS officials have indicated that they can extinguish the fire if the need arises, but that NPS is the entity that must issue the permit to authorize the burn. Second, it is undisputed that the NPS Fire Marshal expressed his view that the proposed burn could not be done safely.

         The parties do not contest that Plaintiff's proposed Temple Burn at the 2016 Vigil exceeds the size limitation of Section 16 of NPS-NCR's “Outdoor Event & Tent Requirements, ” and NPS has indicated that it would issue a permit to Plaintiff for the 2016 Vigil to complete a burn that comports with the Bonfire Requirements, including the size limitation. Plaintiff asserts that the Bonfire Requirements violate the First Amendment on its face and as applied to Plaintiff. Plaintiff seeks a temporary restraining order and preliminary injunction from the Court enjoining Defendant from enforcing the Bonfire Requirements of Section 16 against Plaintiff and permitting Plaintiff to perform its proposed burn of the “Temple of Rebirth” on November 12, 2016, at 9:00 p.m.


         A temporary restraining order or preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” (emphasis in original; quotation marks omitted)). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392 (quoting Winter, 555 U.S. at 20) (alteration in original; quotation marks omitted)). “‘When seeking a preliminary injunction, the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.'” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). “The four factors have typically been evaluated on a ‘sliding scale.'” Davis, 571 F.3d at 1291 (citation omitted). Under this sliding-scale framework, “[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Id. at 1291-92.

         The Court notes that it is not clear whether this Circuit's sliding-scale approach to assessing the four preliminary injunction factors survives the Supreme Court's decision in Winter. See Save Jobs USA v. US. Dep't of Homeland Sec., 105 F.Supp.3d 108, 112 (D.D.C. 2015). Several judges on the United States Court of Appeals for the D.C. Circuit have “read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.'” Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296 (concurring opinion)). However, the Court of Appeals has yet to hold definitively that Winter has displaced the sliding-scale analysis. See id.; see also Save Jobs USA, 105 F.Supp.3d at 112. In any event, this Court need not ...

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