THOMAS v. REAGAN

USDC Cr. No. 84-3552

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM THOMAS, et al    
     Plaintiff Pro Se    
                         
versus                          CA 84-3552
                                Judge Louis Oberdorfer
UNITED STATES, et al            Magistrate Arthur Burnett
     Defendants

DEPOSITION OF MANUS J. FISH
Washington, D.C.

August 21, 1986

The above-entitled matter came on for DEPOSITION OF MANUS J. FISH before ARTHUR L. BURNETT, United States Magistrate for the District of Columbia ("THE COURT"), on August 21, 1986.

APPEARANCES:

On behalf of Federal Defendants and Mr. Fish:

Michael Martinez ("M")
Assistant U.S. Attorney

On behalf of Department of Interior:

Patricia Bangert ("B")
Assistant Solicitor and Defendant in this Action

On behalf of Plaintiffs:

William Thomas, acting Pro Se ("T")
Ellen B. Thomas representing Peace Park Antinuclear Vigil ("MRS. T")

C O N T E N T S

Deposition of: Manus J. Fish

Transcript by Ellen B. Thomas

1

P R O C E E D I N G S

THE CLERK: Please raise your hand. Do you solemnly swear that the testimony you're about to give will be the truth, the whole truth and nothing but the truth, so help you God?

Fish: I do.

THE COURT: All right, Mr. Thomas, you may proceed. First, just so the record's clear, have the witness fully identify himself, his official title and job status, if not now employed, any other records necessary to establish new witnesses testifying. Based on previous proceedings, I think you have a pretty good idea what the Court thinks is relevant to your inquiry, so I think you can proceed as of this point.

Thomas: Thank you, your Honor. Could you state your name for the record please?

Mrs. Thomas: Excuse me. Excuse me. Could you talk right into the microphone please?

Fish: My name is Manus J. Fish, Jr.

Thomas: And how are you employed?

Fish: I'm Regional Director for the National Park Service in this area.

Thomas: And what are your responsibilities in that position?

Fish: I'm responsible for the 30 National Park Service areas in the Washington, D.C. area, the state of Virginia, state of Maryland, and state of West Virginia.

Thomas: Do you have any specific responsibilities with respect to the promulgation of regulations?

Fish: Yes, I do.

Thomas: Could you give us some idea what they are?

Fish: Well, as Regional Director it's my responsibility to promulgate the regulations for activities in the parks.

Thomas: So when a regulation comes out in the Federal Register, do you have any specific responsibility with respect to the accuracy of the information that's published in the Federal Register?

Fish: Yes. Uh huh. Sure.

Thomas: If something is incorrect, do you have some responsibility for that?

Fish: I would assume so.

Thomas: So we can understand some definitions from the beginning I think, if I might get this marked for evidence--

THE COURT: Fish Exhibit One.

Martinez: I'll take official notice--

Thomas: Could you just read those into the record and identify them?

Fish: It's Title 36 Parks (unclear) and Public Property, 50.19 demonstrations and special events. "(a) Definitions. (1) The term 'demonstrations' includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve communication or expression of views or grievances engaged in by one or more persons the conduct of which has the effect, intent or propensity to draw a crowd of onlookers" -- OR onlookers -- "This term does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers." Then there's another one down here, "(b)(1) Demonstrations involving 25 persons or less may be held without a permit provided that the other conditions required for the issuance of a permit are met and provided further that the group is not merely an extension of another group already availing itself of the 25-person maximum under this provision, or will not unreasonably interfere with other demonstrations or special events."

Thomas: With respect to the second definition, do you have any idea when that first came into effect?

Martinez: Objection, your Honor, I think, this is taken out of context, if we had the Federal Register in front of us or the Code of Federal Regulations we could find that out, but to ask him to remember that off the top of his head is clearly improper.

THE COURT: Well, let's find out for the record does he know, he may know factually, if he does, fine, if he doesn't he can say "I don't know," "I don't have a recollection at this point."

Fish: I do not recall, your Honor.

THE COURT: All right, very well.

Thomas: (unclear)

THE COURT: Fish Exhibit Two for identification. Show it to counsel first.... Okay, Mr. Thomas, you may proceed. The witness has (unclear).

Thomas: If you could just review that, please, Mr. Fish.

THE COURT: To himself, just briefly?

Thomas: Yeah, just briefly, with a mind to telling me who produced it if you can.

(long pause)

Fish: This would have been prepared by our Solicitor's office and, and others in our Regional Office.

Thomas: Could you specify the individual who would have been responsible for -- going by the date, who would have had primary--

Fish: That was probably Rick Robbins and his staff.

Thomas: Okay. Could you, on the second page there's a highlighted section, would you just read those highlighted sections into the record, please?

Martinez: Objection, your Honor, I think that the (unclear) speaks for itself. I don't have any problem with him (unclear).

THE COURT: I assume Mr. Thomas would have a followup question, so to read it into the record, I assume is merely to put his followup question in context, I presume that's what he intended to do.

Martinez: If that's the case, your Honor, I withdraw my objection, but if it's merely to read it into the record, I think it speaks for itself.

THE COURT: All right. I presume you do have a followup question, Mr. Thomas, about that particular highlighted area?

Thomas: Well, I do have a followup question at some point, I wasn't sure if I wanted to ask it right at this point now.

THE COURT: Well, I think you'll make a clearer record if you have him read a particular highlighted part and ask a specific question, so we're not just having reading ad nauseum, 'cause if you're just after the document, the Court can read the document. If you have a specific question about specific phrases or passages, as you do one, ask the question.

Thomas: Okay. Well, maybe I'll just hold onto it then until I get to that point.

THE COURT: Fish Deposition Exhibit Number Three.

Thomas: Thank you. Could you read the highlighted section, sentence in that -- could you identify the document first, please?

Fish: This is a Department of the Interior news release from the office of the Secretary dated for release March 5, 1986. It says, "Park Service publishes its final regulations for Lafayette Park demonstrations." The highligh

Thomas: "We believe that the exercise of First Amendment rights is of great importance."

Thomas: Would you identify--

Fish: That's a quote apparently from Secretary of the Interior Donald Hodel.

Thomas: Thank you. And could you identify who the "we" referred to in that sentence denotes?

Fish: Well, I guess it's Secretary Hodel using the phrase "we believe the exercise of First Amendment rights is of great importance."

Thomas: Would that be Secretary Hodel speaking for himself in the plural, or--

THE COURT: How is that relevant or material at this point, Mr. Thomas?

Thomas: Well, I'm wondering whether or not the Secretary is speaking for the Department of Interior or--

THE COURT: I think the document speaks for itself as an official issuance; at this point the witness here would be speculating as to what was going through Secretary Hodel's mind, whether that was a genuine feeling or view on his part or not. So let's ask this witness -- the purpose for having this witness here is to ask about his personal involvement in the issuance of any regulations, his personal involvement with reference to any knowledge or awareness of your activities, and so forth, not as to anyone else's. In the Court's view this deposition should only take about a half hour. Any information he has you should be able to cover in a half hour or forty-five minutes at the most.

Thomas: Do you agree with that statement?

Martinez: Objection, your Honor, what statement?

THE COURT: The statement about the First Amendment. Again I'll sustain, whether he agrees with it or not, that's ultimately a decision for the Court to make as to whether regulations are or are not consistent with First Amendment freedoms or First Amendment rights exercised by Mr. Thomas.

Fish: Yes, I strongly--

THE COURT: No, you don't have to answer the question if I sustain it.

Fish: Oh, I'm sorry, okay.

Thomas: May I ask what, what you believe the importance of First Amendment rights to be?

Martinez: Objection, your Honor.

Thomas: Do you perceive--

THE COURT: Sustained. Again, that's a kind of theoretical discussion, why,ask him -- questions, questions about your conduct--

Thomas: Well--

THE COURT: -- questions about your conduct, if he knows anything about you prior to today. At this point it hasn't even been established on the record that he ever heard of you before. Ask your questions, was he aware of your demonstration activities, what role did he have in propagating the regulations, promulgating regulations, did he in any way make any recommendations which would curtail or prohibit what you were doing? That's what this case is all about, as I understand it. And whether what he attempted to prohibit you from doing in his view in any way at all affected your First Amendment rights. Did he have anything to do with recommending or authorizing park policemen to arrest you, whether they had probable cause or didn't have probable cause, to destroy your signs, those are the issues in the case. The first ten minutes you haven't touched any of those yet. Like I say, it's not my duty to ask your questions for you.

Thomas: That's true, but I'm trying to lay the groundwork for -- um -- an inquiry into the purpose for the promulgation of the Lafayette Park regulation.

THE COURT: Well, why don't you ask him that?

Thomas: Well, that's what I'm doing--

THE COURT: You don't need to take an hour--

Thomas: The Department of the Interior has issued a press release which says that they believe that First Amendment rights are important, and they see First Amendment rights--

THE COURT: The Department of Interior is a big institutional complex, I don't even know if this witness even saw the release before today, maybe you can ask him that.

Thomas: Okay. Did you see the release before today, Mr. Fish?

Fish: I don't know for sure.

THE COURT: Did you have anything to do with reference to preparing or writing the release?

Fish: Not that I recall, your Honor.

THE COURT: All right. Go ahead, Mr. Thomas, I've suggested to you hopefully what are the most relevant lines of inquiry in my last colloquy, why don't you proceed down that line?

Thomas: Okay, I'll try this. I have three exhibits I'd like to have marked.

THE COURT: Speak loud enough so the tape player can pick it up. Fish Deposition Exhibit offered. (pause) The witness has had a chance to review Exhibits Four, Five and Six, Mr. Thomas. You may ask your questions.

Thomas: All right. Maybe before we go to those exhibits, Mr. Fish, we could touch on the questions that the Magistrate was asking. Did you have any knowledge of my existence before we met today?

Fish: I knew, knew of you, yes.

Thomas: And what did you know of me?

Fish: Just that you demonstrated in the, in the park.

Thomas: How long have you known that?

Fish: I don't really recall.

THE COURT: It hasn't been established for the record yet, how long have you held your present position, back to when?

Fish: Back to 1973, your Honor.

THE COURT: So during the relevant period here, from 19, June of 1981 to date, you have occupied the same position you now hold--

Fish: Yes.

THE COURT: -- for the time period involved in this case?

Fish: Yes, your Honor.

THE COURT: All right, very well.

Thomas: Can I ask you what your position was, whether you worked in the Department of Interior before, before you moved into your present position?

Fish: Yes, I was.

Thomas: And what position where you in at that time?

Fish: Well, just prior to being Regional Director I was Deputy Regional Director.

Thomas: National Capital Region?

Fish: National Capital Region, yes.

Thomas: Is the name Stacey Abney familiar to you?

Fish: (pause) No.

THE COURT: While those are being marked, do you have any questions about the three exhibits you've shown him already?

Thomas: I think that I'm going to use these first.

THE COURT: All right, Mr. Thomas, very well. (long pause)

THE CLERK: Fish Deposition Eight through Thirteen.

Thomas: Okay, I'm showing Mr. Martinez No. 12 and 13.

Martinez: Could I see the others?

Thomas: Yeah.

THE COURT: If Mr. Martinez can look at the others while the witness goes over them, then maybe we'll finish by lunchtime, perhaps.

Thomas: Thank you.

THE COURT: It might be better for you to put the tape recorder on the witness stand box and you probably, I don't know how you can keep your paperwork if you sit here, but you'll be able to stop it, and that way you'll be sure to pick up the witness's testimony.

Mrs. Thomas: All right, thank you, your Honor. (Tested recorder, stayed at plaintiff's table.)

THE COURT: All right, Mr. Thomas, you may proceed.

Thomas: Could you identify those documents?

Fish: Exhibit 12 is a letter on National Capital Region, National Park Service stationery dated June 4, 1982, to "To Whom It May Concern," and it's signed by me as Regional Director of the National Capital Region.

Thomas: Could you read the highlighted part of that letter please?

Fish: Actually, there's no highlighted part here, but I can read one paragraph there, "This is to advise you that you are in violation of said regulations, and (unclear) appropriate law enforcement action may include arrest or imposition of the penalties described above if you do not remove the temporary structures you are now using for living accommodation purposes from (unclear) desist camping in park areas not designated as public camping grounds by 9 a.m. on Monday, June 7, 1982."

Thomas: All right, I'm sorry, the specific paragraph that I was interested in here was this second paragraph, first sentence.

Fish: Okay. "I have determined that you are using the park as a living accommodation, and that you are in violation of regulations contained in 36 CFR Sections 50.19(e)(8) and 50.27(a). Persons violating these regulations may be punished by a fine of not more than $500 or imprisonment for a period not exceeding six months or both."

Thomas: Okay, now if you could identify the other document and read the highlighted part in that.

Fish: This too is a letter from the National Capital Region Park Service to Mr. Mitch Snyder dated November 13, 1981, signed by myself. The highlighted portion: "As we explained at the meeting, Park Service regulations, while allowing some form of symbolic camping, do not permit camping primarily for living accommodations in undesignated areas such as Lafayette Park. Your proposal as presented would utilize tents and other equipment primarily for living accommodations, and is therefore not permissible under the regulations."

Thomas: Do you recall what transpired with respect to that demonstration, the CCNV demonstration, in 1981? On the, specifically November 27?

Fish: No, I wouldn't, I can't remember that, November 27.

Thomas: May I have this marked [as exhibit ___] -- does that refresh your recollection as to November 27 of 1981?

Fish: Well, I remember generally. This was on the 26th of November and on the 27th, an incident record.

Thomas: Do you recall the meeting that's referred to in, I believe it's Exhibit 12, your letter to the Community for Creative Non-Violence?

Fish: That would be Exhibit 13.

Thomas: Thirteen.

Fish: I do not. And, I don't seem to recall that meeting.

THE COURT: Mr. Thomas, the Court still has a problem how that's relevant to your case, why don't you go on and ask questions that somehow deal with your situation at this point. As to how inquiry about Mitch Snyder and living accommodations and tents, ask your question specifically about yours, we've gone for a half hour now, and I don't, haven't heard over two minutes of testimony that appears to enlighten me, or enlighten the Court as to issues you raised in this case to this point. Except for marking a whole lot of documents we haven't gotten anywhere.

Martinez: Your Honor, if I might add to that, also all of these documents relate to a period a year before any of the regulations that are supposedly at issue in this case, so therefore they're even less relevant.

Case Listing --- Proposition One ---- Peace Park