AGENCY: National Park Service. Interior. ACTION: Final Rule and
policy statement
SUMMARY: This document specifies the types of activities
considered by the National Park Service to be camping which must
be confined to designated camping areas. An Administrative Policy
Statement explains the administration of this regulation a recent
court opinion has made it necessary to specify the types of
activities considered to be camping.
EFFECTIVE DATE: June 4, 1982
FOR FURTHER INFORMATION CONTACT. Sandra Alley, Associate Regional
Director, Public Affairs, National Capital Region. National Park
Service. 1100 Ohio Drive SW., Washington D.C 20242 telephone:
202-426-6700; Richard G. Robbins, Assistant Solicitor. National
Federal Register / Vol. 47. No. 108 / Friday. June 4, 1982
/ Rules and Regulations, page 24299
Federal Register / Vol. 47. No. 108 / Friday. June 4, 1982
/ Rules and Regulations, page 24300
Capital Parks, Office of the Solicitor. Department of the
Interior, Washington, D.C. 20240, telephone 202-343-4338.
SUPPLEMENTARY INFORMATION The following persons participated in
the writing of this regulation: Richard G. Robbins and Dianne H.
Kelly, Office of the Solicitor.
I Background
On November 13. 1981. an administrative policy statement and
amendments to the National Park Service regulations governing
demonstrations and special events in Washington, D.C. and its
environs were published in the Federal Register. 48 FR 55959.
November 13. 1981. In Community for Creative Non-Violence v.
Watt, -F.2d ~ slip op W-2381 (Decided January 22 1982) the United
States Court of Appeals for the District of Columbia Circuit held
that sleeping by demonstrators in connection with the conduct of
their First Amendment activities did not constitute camping as
interpreted by the National Park Service in its administrative
policy statement accompanying the recent revision of 36 CFR 50.19
(46 FR 55959). The National Park Service thus finds it necessary
to specify the types of activities considered to be camping which
must be confined to designated camping areaS.
II. Effective Date
The Director of the National Park Service finds that good cause
exists for suspending the 30-day delay of effectiveness of final
regulations provided for in 5 U.S.C. 553(d).
III. Analysis of Comments
The American Civil Liberties Union submitted comments critical
of the prohibition on sleeping in symbolic campsites, alleging,
among other things. that the Park Service had violated the terms
of the settlement agreement which it negotiated with the ACLU in
Women Strike for Peace v. Andrus (now Women Strike for Peace v.
Watt). Civ. No. 741303 (D.C.C.). The settlement produced revised
regulations and an administrative policy statement which
clarified long-standing Park Service policy that temporary
structures could be erected as a symbolic campsite provided that
the structures were not used for living accommodations. (46 FR
55959, November 13. 1981). The articulation of this principle in
the policy statement involved no change of position by the Park
Service; it merely served as explicit recognition of previous
practice and policy. Further, the inclusion of the paragraph on
symbolic campsites evolved from the Good faith efforts of the
Park Service to clarify a number of issues of concern to the ACLU
which were not raised or addressed in the litigation. Finally, it
must be emphasized that discussions about symbolic campsites
were always based on the understanding between the Park Service
end the ACLU that any structures erected for such a purpose
would not be used for living accommodation activities such as
overnight sleeping. The ACLU's claim in its comments that the
Park Service failed to abide by it's own policy statement in
opposing overnight sleeping in campsites (Community for Creative
Non-Violence v. Watt) appears to be a repudiation of the
understanding on the uses of such campsites agreed to by the Park
Service and the ACLU. The Park Service must accordingly reject
that portion of the ACLU's comments.
The ACLU also asserted that the Park Service proposes to treat
demonstrators differently from non-demonstrators. since napping
in parks by office workers and the breaking of ground and
building of fires in an event such as the Christmas Pageant of
Peace are not prohibited. The Park Service wishes to make clear
that sleeping and other activities listed as prohibited in the
administrative policy statement and rule ere prohibited if a
reasonable person, viewing the totality of the circumstances,
would conclude that the participants, in conducting these
activities, were using the site as a living accommodation. In
response to this concern expressed by the ACLU, the Park Service
is adding to the third paragraph of the policy statement and to §
50.19[e)(8) a statement to read as follows:
The above-listed activities are prohibited outside designated
campgrounds when it reasonably appears in light of all the
circumstances, that the participants. Ln conducting these
activities, are in fact using the area as a living accommodation
regardless of the intent of the participants or the nature of any
other activities in which they may also be engaging.
Agreeing that camping primarily for living accommodation should
not be permitted in undesignated parks. the ACLU suggested that
camping which is incidental and integral to demonstration
activity should be permitted. Such a distinction would put the
Park Service in a position of having to scrutinize the content of
every demonstration's message to determine when camping is or is
not "incidental and integral" to a demonstration. This
determination would have to turn not on the practical question of
whether people are in fact living at a site, but rather on the
natura and degree of the relationship between the content of the
expression and the camping activities proposed. Were the Park
Service to undertake this responsibility. it would be forced to
exercise exactly the same type of content-based discretionary
decision making consistently condemned by the courts. Since the
assertion of a nexus between content and camping would result in
the provision of free, convenient living space for persons
pursuing speech activities, it is reasonable to assume that the
frequency of such claims would greatly multiply if the ACLU's
suggestion were adopted. Therefore, the Park Service believes
that fair administration of its regulations requires the
prohibition of use of park land for living accommodations for all
park users. whether or not conducting demonstration activities.
The Washington Legal Foundation, Chamber of Commerce, and
several other commentators, while supporting the ban on use of
parks for living accommodations, submitted broader suggestions to
restrict the erection and use of temporary structures in park
areas. The Washington Legal Foundation presented a petition for
rulemaking reflecting the comments which it also submitted on the
proposed rules. Their petition urged the Park Service to
determine the appropriateness of structures based on each park's
size and location. to regulate the size and aesthetic quality of
temporary structures, to allow such structures in only a small
percentage of park areas, and to ban structures within a three
hundred yard radius of the White House.
As a result of the court decision in Women Strike for Peace v.
Morton, 472 F. 2d 1273. the Park Service is required to allow the
erection of structures by demonstrators to the same extent that
it participates in or sponsors the erection of structures itself.
Under current regulations, the Director of the National Capital
Region has the authority to impose reasonable restrictions on the
structures permitted in the interest of protecting the park areas
involved. traffic and public safety considerations, and other
legitimate park value concerns. 36 CFR 50.19(e)[8)(iii). The Park
Service believes that the first three proposals of the Washington
Legal Foundation, the Chamber of Commerce. and other commentator
are already adequately addressed in these existing regulations.
Furthermore, the use of temporary structures for living
accommodations has been an isolated, temporary situation which
should be corrected by the proposed regulations dealing with the
specific harm caused by such use.
Federal Register / Vol. 47. No. 108 / Friday, June 4, 1982
/ Rules and Regulations, Page 24301
There is also no indication that allowing temporary structures
within three hundred yards of the White House poses any danger
which regulations should address. Courts have consistently held
that regulations governing First Amendment activity must be drawn
as narrowly as possible in furtherance of a legitimate government
interest In the absence of an identifiable threat the existence
of e legitimate government interest appears too tenuous to
support more restrictive regulations
The Park Service has previously considered the necessity of
maintaining selected park- areas as places of quiet reflection
where demonstrations are not permitted The result of such
consideration has been the barring of demonstration activities at
portions of historic monuments such as the Lincoln and Jefferson
Memorials and the Washington Monument. In Washington ~ Free
Community v. Wilson, 334 F Supp 77 (1971), however, the court
indicated that the hustle and bustle of some National Capital
Region parks such ar Lafayette Park preclude attempts to restrict
demonstration activities to foster serenity which is not
attainable in the midst of a downtown business district.
Comments.by the Community for Creative Non-Violence and counsel
for the group asserted that the proposed regulations were
unconstitutional since they furthered no legitimate government
interest and violated court rulings. The Park Service believes
that a substantial government interest is involved in the
prevention of use of the National Capital Parks as campgrounds
for those wishing to express a point of view or, indeed for any
park visitors. The regulations banning the use of parks for
living accommodations are designed not to stifle First Amendment
expression but to protect undesignated parks from activities for
which they are not suited and the impacts of which they cannot
sustain. Short-time, casual sleeping which does not occur in the
context of using the park for living accommodations will not be
effected by these regulations.
The Park Service also believes that the regulations are drawn in
accord with relevant court decisions. The only case which found
sleeping to be sufficiently expressive in nature to implicate a
threshold First Amendment scrutiny was confined to the peculiar
facts of the case and the particular regulation involved, which
the court found provided too much open-ended discretion to the
Park Service. The court explicitly stated that an
across-the-board ban on sleeping outside official campgrounds
might well be constitutionally acceptable if duly promulgated and
even-handedly enforced United States v. Abney, 534 F.2d 984 @.C.
Cir. 1876). Even when an activity might provoke initial First
Amendment consideration a legitimate government interest
expressed in the most narrowly drawn restrictions possible is not
an unconstitutional burden on free expression. The Park Service
believes that preventing the use as public campgrounds of the
Memorial Core and other park areas in the national capital
constituted such a legitimate government interest
IV. Regulatory Changes -
The decision by the United States Court of Appeals for the
District of Columbia Circuit in Community for Creative
Non-Violence v. Watt, which ~ interpreted current regulations to
allow sleeping by demonstrators in connection with First
Amendment activity, has necessitated the addition of a
definitional sentence to § 50.27 to avoid -· the use of the
Memorial Core and other park areas of the nation's capital as a
camping ground. Experience with administering the court's
decision allowing sleeping has revealed that sleeping activity by
demonstrators expands to include other aspects of living
accommodations such as the storage of personal belongings and the
performance of necessary functions which have converted the
sleeping area into actual campsites. Since the urban and
nationally significant nature of the national capital parks
render them unsuitable for camping and incapable of sustaining
the impacts from that type of activity, the National Park Service
wishes to make clear that activities normally associated with
camping. such as sleeping, which occur in the context of living
accommodations. are not permitted outside designated campgrounds.
This clarification win occur through the addition of a sentence
to § 50.27 specifically defining the types of activities which
the Park Service believes generate the adverse impacts of
camping.
Reference to Prefatory Statement
In order to aid readers in understanding the administrative
policies which have been developed to implement the revised
regulations, a citation to the applicable Federal Register
reference will appear at the conclusion of 38 CFR 5027.
V. Administrative Policy Statement Structures and Campsites
Because of the decision of the United States Court of Appeals
for the District of Columbia Circuit in Community for Creative
Non-Violence v. Watt, --F.2d ---- (D.C. Car. 1982). slip. op.
812381, the National Park Service finds it necessary ta clarify
the definition of symbolic campsites and the extent to which
temporary structures are permitted in connection with First
Amendment activities -
It has been the long-standing administrative policy and practice
of the National Park Service to allow demonstrators to erect
temporary structures reasonably necessary For the conduct of
their demonstration. including the provision of logistical
support. The requirement that the erection of temporary
structures be permitted arose out of the decision of the United
States Court of Appeals for the District of Columbia Circuit in
Women Strike for Pence v. Morton.·472 F.2d 1273 (D.(1 Car. 1972).
Following this decision. it became the policy of the National
Park Service to allow tents to be erected as temporary structures
in connection with permitted demonstrations tents may be erected
as a means of symbolizing the message of demonstrating groups or
of providing support and logistical services. Examples of
activities where the Park Service has permitted the erection of
tents in connection with demonstration activities include: a
demonstration by the Community for Creative Non Violence in which
a number of tents symbolized the need for housing for the
homeless; demonstrations by anti-war veterans groups where the
tents symbolized conditions in Vietnam; Indian tepees by Indian
rights groups to symbolize the plight of Indians; and numerous
other demonstrations when support service tents were used for
first aid facilities for lost children area. and to shelter
electrical and other sensitive equipment or displays.
Although it is the policy of the National Park Service to permit
tents aa temporary structures for the above purposes in
connection with permitted demonstration activities, the Park
Service does not permit camping or the erection of tents for
camping in connection with demonstration activities in other than
formally designated and maintained campgrounds Camping is defined
as the use of park land for living accommodation activities such
as sleeping, or making preparations to sleep (including the
laying down of
Federal Register / Vol. 47, No. 108 I Friday, June 4. 1982/
Rules and Regulations, Page 24302
bedding for the purpose of sleeping). or storing personal
belongings or making any fire. or using any tent or shelter or
other structure or vehicle for sleeping or doing any digging or
earth breaking or carrying on cooking activities. The
above-listed activities constitute camping when it reasonably
appears. in light of all the circumstances, that the
participants. in conducting these activities. are in fact using
the area as a living accommodation regardless of the intent of
the participants or the nature of any other activities in which
they mag also be engaging. This policy is not intended to
prohibit eating, cooking. and other traditional picnicking
activities in areas designated for picnicking pursuant to 36 CFR
50.14.
The National Park Service emphatically believes that the
Memorial Core area of the nation's capital is an especially
unsuitable location for camping activities The Memorial Core
includes the Mall area. the Washington Monument grounds, the
White House area, the Ellipse, Lafayette Park, East and West
Potomac Park. the Jefferson and Lincoln Memorials. and the
Kennedy Center. Were camping permitted in this area. other park
visitors, including demonstrating park visitors. would be
deprived of use of this nationally significant space. Camping
could cause significant damage to park resources, create serious
sanitation problems. and seriously tax law enforcement resources.
It ia probable that the cumulative impact of permitting any
camping activities in the Memorial Core-and other National
Capital Park areas would cause the National Park Service to incur
additional costs for park restoration, sanitary facilities and
extra park personnel, including law enforcement personnel. Even
though camping is now prohibited. the Park Service nevertheless
receives several requests each year for camping in connection
with demonstration activities. It is believed that these requests
would increase dramatically were camping permitted because it
would offer free. convenient living space for persons pursuing
speech activities. Such use of park space would amount to e
federal subsidy of the living costs of demonstrating park
visitors and would create pressure from non-demonstrating
visitors for similar accommodations.
It is the opinion of the National Park Service that allowing
participants in any activity to live at the site of their
activity would create unacceptable adverse impacts to park areas.
deprive other visitors of use of the park area and create law
enforcement confrontations arising from attempts to confine
activities within specific parameters. In fact, experience with
administering the court's decision in Community for Creative
Non-Violence v. Watt revealed that activities by demonstrators
expanded into a campground situation with serious adverse effects
on Lafayette Park.
The National Park Service is mindful of the need to provide
camping facilities in park areas within the Washington, D.C.
metropolitan area. Fully equipped and maintained campgrounds are
located in parks which can sustain the impacts from camping
activities and which are within reasonable proximity to the
capital. Demonstrating park visitors are free to avail themselves
of these facilities.
Impact Analysis
The National Park Service has determined that this document is
not a major rule requiring preparation of a Regulatory Impact
Analysis under Executive Order 12291 and does not require a small
entity flexibility analysis under Pub. L 96354. The rule is
designed only to specify the types of activities considered by
the National Park Service to be camping which must be confined to
designated camping areas. People wishing to camp in the
Washington, D.C. metropolitan area will continue to have access
to park areas designated as public campgrounds. The rule will
have no substantial impact on any aspect of the economy.
List of Subjects in 36 CFR Part 50
District of Columbia, National Park& National Capital Parks.
Date Approved: May 11, 1882
J. Craig Potter,
-Assistant Secretory for Fish and Wildlife and Parks.
PART 50--NATIONAL CAPITAL PARKS REGULATIONS
In consideration of the foregoing,
§ 50.21 of Title 36 of the Code of Federal Regulations is
accordingly amended:
1. The authority citation for Part 50 reads as follows: Authority. Sec. 8. 30 Stat 571. secs. 19. 98 Stat. 535. as amended. sec. 18. 43 Stat 1128 as amended. 82 Stat 81. secs. 1. 2
87 Stet 495-498: 8 D.C Code 143. 16 U.S.C 1, 16, 1c, 2, 2; 40 D.C Code 6813.
§ 50.27 Amended]
2. By revising § 50.27(a) to read as follows:
(a) Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for
the purpose of sleeping), or storing personal belongings. or making any fire. or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth breaking or
carrying on cooking activities. The above-listed activities
constitute camping when it reasonably appears, in light of all
the circumstances, that the participants. in conducting these
activities are in fact using the area as a living accommodation
regardless of the intent of the participants or the nature of any
other activities in which they may also be engaging. Camping is
permitted only in areas designated by the Superintendent who may
establish limitations of time allowed for camping in any public
camping ground. Upon the posting of such limitations in the
campground no person shall camp for a period longer than that
specified for the particular campground.
3. By amending § 50.27 to add paragraph (h) to read as follows:
(h] Further information on administering these regulations can
be found at 41 FR 24302 (June 4. 1982).
[FR Doc 82-15254 filed 6-3-82 8:45 am] Billing Code 4370-M
36 CFR Part 50
National Capital Parks, Regulations; Camping
AGENCY: National Park Service, Interior Action: Final Rule and
policy statement.
SUMMARY This final rule contains amendments to the National Park
Service regulations governing demonstrations and special events
in Washington, D.C. and its environs. An Administrative Policy
Statement explains the administration of this regulation. These
amendments and statement clarify the definition of symbolic
campsites and the extent to which temporary structures are
permitted in connection with First Amendment activities.
EFFECTIVE DATE: June 4. 1982
FOR FURTHER INFORMATION CONTACT: Sandra Alley, Associate Regional
Director. Public Affairs. National Capital Region, National Park
Service. 1100 Ohio Drive, S.W, Washington. D.C 20242, telephone
202-426-6700; Richard G. Robbins, Assistant Solicitor, National
Capital Parks. Office of the Solicitor. Department of the
Interior. Washington D.C. 20240, telephone: 202343-4338.
Continued ...
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