National Park Service

Federal Register / Vol. 35 / No. 193 / Thursday, October 4, 1990

National Park Service
36 CFR Part 7
RIN 1024-AB93

National Capital Region Parks;
Prohibition of Storage of Property in Lafayette Park

AGENCY: National Park Service, Department of the Interior.

ACTION: Proposed rule and policy statement with request for comments..

SUMMARY: This proposed rule suggests amendments to the National Park Service regulations governing the storage of material in Lafayette Park. A proposed Administrative Policy Statement explains the administration of these regulations. These amendments and statement are intended to formalize restrictions regarding the storage of property in Lafayette Park.

DATES: Written comments must be received on or before December 3, 1990.

ADDRESSES: Written comments may be sent to: Robert Stanton, Regional Director, National Capital Region, National Park Service, 1100 Ohio Drive SW, Washington, DC 20242.

FOR FURTHER INFORMATION CONTACT: Sandra Alley. Associate Regional Director, Public Affairs, National Capital Region National Park Service, 1100 Ohio Drive SW, Washington, DC, 20242, telephone (202) 619-7223: Richard G. Robbins, Assistant Solicitor, National Capital Park, Office of the Solicitor, Department of the Interior, Washington, DC 20240, telephone: (202) 208-4338.

SUPPLEMENTARY INFORMATION
:

Background
1. History of Lafayette Park

Lafayette Park, originally known as the President's Park is a rectangular area of approximately seven acres of land situated directly north of the White House on Pennsylvania Avenue. It on bounded on the east by Madison Place, north by H Street, and west by Jackson Place. The property was one of the first parcels of land donated by the original patentees to the District of Commissioners of the formation of the Federal City (later Washington) in 1791. The site of what is now Lafayette Park (Park) was originally included in the area known as the President's House and the President's Park according to the plans of Major Pierre L'Enfant. The entire area extended from 15^th to 17^th Street NW., and from H Street on the North and to the Potomac River on the south. In the early1800's President Thomas Jefferson authorized the Park's separation from the President's House, intending its use for local residents and visitors to Washington. The boundaries of the Park have not been altered up the present day.

In 1824, the grounds were improved and walks laid out in the square on the occasion of the visit of the Marquis de Lafayette, the French general and hero of the American Revolution.

The square was known as the "President's Park" until 1834, when the name "Lafayette Square" was adopted. Since 1933, when control of the National Capital Parks was returned to the Interior Department, the term "Lafayette Park" has been the preferred name and has been adhered to by the National Park Service.

2 Unique Features of the Park

Five memorial statutes, specifically authorized by legislation of Congress, honoring General Andrew Jackson and four foreign heroes of the American Revolution grace Lafayette Park. The equestrian statue of General Andrew Jackson, the second one of its type ;to be cast on the United States, stands in the canter of the Park. It was dedicated by Senator Stephen area Douglas in 1853. The south heroic bronze statue of General Lafayette, which stands at the southeast corner of the Park, was dedicated in 1891. The second Frenchman honored in the Park is the Counte de Rochambeau, who led the French Expeditionary Force to America during the Revolution. President Theodore Roosevelt dedicated the Rochambeau statue, which stands at the southwest corner of the Park, in 1902. The statue of General Thaddeus Kosciuszko, the Polish engineer who designed some of America's fortifications during the Revolutionary War, was dedicated in 1910 and stands at the northwest corner of the Park. The fifth statue, dedicated by President William Howard Taft in 1910, is that of Baron von Steuben, the Prussian disciplinarian and Inspector General of the Continental Army. It stands at the northwest corner of the e Park.

In addition to honoring these five notable figures of America's on past, Lafayette Park functions as a formal garden park of meticulous landscaping with flowers, trees, fountains, walk and benches. This aesthetic aspect of the Park has a rich history, going back over 130 years. In 1851, President Millard Fillmore endorsed the appointment of A. J. Downing, one of the most celebrated landscape architect of the day, to prepare plans for the landscaping of Lafayette Square and other park areas of the Nation's Capital.

Downing is credited with the landscape plan of Lafayette Park, which has generally been adhered to over the years with only slight revisions. The central theme then consisted of wide gravel paths leading to the statue of General Andrew Jackson as smaller meandering walks went past beds of roses and other flowers.

A second major change to take place in the landscaping of Lafayette Park was undertaken by the National Capital Parks in 1936 and 1937. The overall changes made during this period were the removal of the bronze urns on to their present-day locators, the redesigning and widening of the walks, the relocation of trees and shrubbery, the closing of small gravel paths and the relocation of flower beds. The overall effect enhanced the beauty of the original Downing plan and made the Park more accessible to those people for whom the Park had originally been intended by President Jefferson— visitors and Washington residents.

Money was appropriate by Congress during the Presidency of John F. Kennedy for the purpose of installing decorative fountains in the Park. By 1969, a water sprinkler system for maintenance of the Park, as well as attractive interior brick walkways, was added to Lafayette Park. Improvements to the Park continue up to the present day. A new Park lighting system, historically accurate to the lamps used in the mid-l800's, was installed in 1985.

Lafayette Park is appreciated by Washington, DC residents and visitors alike as a unique natural and historic site. Residents and workers come to Lafayette Park each day to play chess, eat a picnic lunch, stroll through the landscaped setting, or to sit quietly on a bench and read a book. Visitors come to the Park for many of the same reasons in addition to touring the gardens and the monuments. Lafayette park provides and unequaled setting for viewing the north side of the White House. During the summer months thousands of persons visit the Park each day.

The National Park Service has long recognized the unique environment and sensitive nature of Lafayette Park as a major component in the historic setting of the White House and the national significance of the five major memorials which it contains. The Park Service has neither sponsored nor permitted special events in Lafayette Park for almost ten years. Unlike Farragut Square, where the Park Service permits noontime concerts, or the Ellipse, where the Park Service co-sponsors the National Christians Pageant of Peace, Lafayette Park has been kept free of all Park Service-sponsored activities.

3. Current situation in Lafayette Park

Being located across from the White House, Lafayette Park is a popular location for park visitors including visitors conducting demonstrations of every sort. Under National Park Service regulations, groups numbering over twenty-five participants must apply for a permits to demonstrate.

The National Park Service, pursuant to 35 CFR 7.96(g)(5)(xii)(1985), had for several year imposed as a condition for a permit a rule which restricted the storage of property in Lafayette Park. On May 23,1989, the National Park Service stopped imposing the rule when the United Slates Court of Appeals for the District of Columbia Circuit reversed the criminal conviction against a defendant charged with a violator of the rule restricting the storage of certain property in Lafayette Park. The conviction was reversed because the storage of property rule bad not been published for notice and comments pursuant to the Administrative Procedure Act. United States for Picciotto. 875 F.2d 345 (D.C Air 1989).

Aside from a prohibition against the storage of personal belonging in the context of illegal camping the National Park Service has no specific regulation governing the placement or storage of property in Lafayette Park. The Park Service has regulations governing the use of structures but this does not regulate the placement and storage of other property in Lafayette Park.

Over the years, Lafayette Park has become increasingly littered by assorted property placed or stored there by park visitors—demonstrators and nondemonstrators alike. On any one day, it is not uncommon to have amounts of tarps, bedding, blankets, pillows, sleeping bags, tools, food, luggage, clothes, household items and other similar types of property found within Lafayette Park. Some of such property has been found to remain in the Park for long periods of time. The National Park Service believes the accumulation of such property has had a negative impact on the enjoyment of Park by the visiting public.

A few demonstrators, who maintain 24-hour vigils in the park store substantial amounts of their personal property within the park. Such possessions have included bedding, blankets, sleeping bags, clothes, luggage and assorted household items. In addition, there have been numerous park visitors when are not demonstrators who also store personal property such as bedding, blankets, sleeping bags, clothes, luggage and assorted household items in the Park.

United States Park Police officers and National Park Service employees assigned to Lafayette Park during tourist seasons receive many complaints from visitors each year to the effect that the personal property placed and stored in Lafayette Park is unsightly. Complaints noted by the officers and employees include the fact that on occasion paint and lumber are used and stored in the park. National Park Service employees have noted that the use of paint in the Lafayette park has caused damage to park resources including sidewalk and walkways. The use and storage of bedding, blankets and sleeping bags on turf areas have caused damage to these areas. Further, old clothing and shoes have been found littered throughout Lafayette Park. Other complaints noted by the officers and employees include the fact that bedding, blankets and sleeping bags also litter the area.

In addition, over the past three years, the National Park Service has received at least five written requests for some action against the visual blight in Lafayette Park. Typical of these request is the following from a Virginia man:

I believe that my pursuit of happiness includes my right to peaceful enjoyment of our privileges and rights. In that respect, I am not happy when I am forced to pass by, and am forced to see the unsightly mess the people who camp and live on Lafayette park have crated in the exercise of their rights of political dissent.

We pay huge sums of money, in the form of taxes, to maintain the monuments and keep the National Parks a place in which all the people can enjoy and appreciate our heritage. The people who exercise their rights of political dissent, as those in Lafayette Park, deny to all the rest of us our rights of peaceful enjoyment.

I am not advocating the removal of those people, nor their unsightly and distasteful expression of political dissent. I do strongly disagree with their rights (if such rights exist) of cluttering so much of the park by the unsightly spreading of their bedding over the park. I mean they make it ugly.

The National Perk Service believes the presence of these items in the Park has a negative impact on the historical and finely landscaped nature.

Regulatory Changes

1. Storage of Property

In order to meet substantial government interests in aesthetics and preservation of park resources, the .National Park Service is proposing a rule that would limit the storage of property in Lafayette Park. As noted above, there are no current limitations specifical1y related to the storage of proper is the Park. Further, enforcement of existing camping and abandoned property regulation was not designed to and has not cured the problem of property storage.

The Park Service intends this proposed rule to place reasonable content-neutral limitations on property storage in order to protect park resources and the unique aesthetic quality of Lafayette Park so that visitor may continue to enjoy the history and beauty of the park and demonstrators will continue to enjoy avenues to communication. This proposed rule in not intended to prohibit demonstrations in Lafayette Park, nor is it intended to place additional limitations on signs or other similar communicative conduct above and beyond the limitations included in the existing regulations. This proposed rule is also not intended to irterfers with demonstrators ability to distribute literature, march, speak, hold vigils or otherwise exercise first amendment rights.

Specifically, the proposed rule would limit the storage of construction material, tools, lumber, paint, tarps, bedding, blankets, pillows, steeping bags, food, clothing, literature, papers and all other similar types of personal property which might tend to harm park resources including aesthetic interests. Further, the proposed rule would allow quantities of literature, food and clothing that are actually in use or that are reasonably required during one 24-hour period, as long as such property occupies no more than three cubic feet of space and that the property is attended at all times while in the Park. The three cubic foot limitation was selected as that is the approximate size of a large duffel bag. The National Park Service believes a large duffel bag of gear is more than sufficient to sustain a demonstrator for a day. But, the National Perk Service specifically invites public comments on whether the 24-hour criteria or the 3 cubic foot space limitation will fail to afford individuals ample alternatives for communication. Also, the proposed regulation requires park visitors to "attend" their property at all times. Attended is defined as being within three feet of the owner. It is the intention of the National Park Service to require persons to stay near their property while in the park and to take it with them when they leave.

Conclusion

The National Park Service believes that the proposed regulatory restriction, taken as a whole, accomplishes the purpose of maintaining Lafayette Park as a historic site and formal garden while still allowing ample avenues of communication for those who wish to demonstrate in Lafayette Park or elsewhere in the vicinity of the White House. The Park Service believe that it has a responsibility to maintain a high level of aesthetic quality in the parks under its administration, consistent with its duty to allow citizens an opportunity to express their First Amendment rights. Further, the National Park Service believe that there is clear legal authority for promulgation of this regulation as it is content-neutral, leaves open ample alternative avenues of communication, and is narrowly tailored to meet substantial government interests. The substantial government interest in aesthetic has been affirmed repeatedly by the courts. In fact, the Supreme Court has recognized aesthetic as a substantial government interest in at least two cases decided within recent years. Meiromedia, Inc v. San Diego, 453 U.S. 490 (1981), City Council of Los Angeles v. Taxpayers for Vincent, 465 U.S. 798 (1983).

Public Participation

The Department of the Interior wishes to ensure that the public will continue to have an opportunity to enjoy the unique history and beauty of Lafayette Park. At the same time, the Park Service recognizes that Lafayette Park provides demonstrations with an important location to exercise their first amendment rights. Because it is very difficult to regulate the use of the Park so that both of these goals can be met simultaneously, the Park Service especially invites comments from all segments of the public, demonstrators and other visitors alike, on all aspects of this proposed rule. Accordingly, interested persons may submit written comments, suggestions, or objections regarding the proposed rule to the address noted at the beginning of the rulemaking.

Drafting Information

The following persons participated the writing of this rule: Richard G Robbins and Randolph J. Myers, Office of the Solicitor, U.S. Department of the Interior.

Compliance with other Laws

The National Park Service has determined this document is not a major rule under E.O. 12891 and certifies this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 USC 601 et seq.).

This rule does not contain information collection requirement which require approval by the office of Management and Budget under 44 U.S.C. 3501et seq.

This rule does not constitute a major Federal action which significantly affects the quality of the human environmental Policy Act of 1969 (42 U.S.C. et seq.).

This rule is not a policy that has taking implications under E.O.12630.

List of Subjects in 36 CFR Part 7 as follows:

National Park National Capital Region parks.

ln consideration of the foregoing, it is proposed to amend 36 CFR part 7 as follows:

PAR, 7—SPECIAL REGULATIONS, AREAS OF THE NAT1ONL PARK SYSTEM

The authority citation for part 7 continue to read as follows:

Authority 16 U.S.C. 1, 3, 9a 480(g), 482 (k); Sec. 7.96 also issued under D C Code 9-137 (1981) and D C Code 40-721(1981).

2. Section 7.96 is amended by adding a new paragraph (g) (5)(x)(C) to read as follows:

§7.96 National Capital Region Parks.

(g)

(5)

(x)

(C) Storage of construction material, tools, lumber, paint, tarps, bedding, blankets, pillows, sleeping bags, food, clothing, literature, papers and all other similar types of personal property which might tend to harm park resources including aesthetic interest. Provided, however, that the presence of quantities of literature, food, clothing, and other personal property actually in use or that are reasonably required by a person during any one 24-hour period sha11 not constitute storage of properly provided that no such property may occupy more than three (3) cubic feet of space and provided further that such property must be attended at all times while in the park (th term "attended" is defined as an individual being within three (3) feet of his or her material).

Dated September 21, 1990.

S. Scott Seweil, acting assistnat Secretary for Fish and Wildlife and Parks.