August 17, 2020

Ms. Margaret Everson
Counselor to the Secretary, Exercising the Delegated Authority of the Director National Park Service
1849 C Street, N.W. Washington, DC 20240

Dear Acting Director Everson:

I am writing to you on behalf of over 1,800 members of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization composed of retired, former and current employees of the National Park Service (NPS). The Coalition studies, speaks and acts for the preservation of America’s National Park System. As a group, we collectively represent over 40,000 years of experience managing and protecting America’s most precious and important natural, cultural, and historic resources.

We are contacting you now to express our concerns about continuing reports that the Trump Campaign or Republican National Committee is planning to hold upcoming campaign events in units of the National Park System (parks). For example, recent news articles report that Vice President Mike Pence is considering holding his nomination acceptance speech at Ft. McHenry National Monument and Historic Shrine. In addition, we understand that the campaign has requested, or is considering requesting, permits from the National Park Service (NPS) to conduct campaign events at other NPS venues.

As we stated previously in our August 11, 2020 letter regarding President Trump’s proposal to hold his nomination acceptance speech at Gettysburg National Military Park, it is inappropriate for the NPS to permit partisan political campaign events to be conducted in parks. While such proposals implicate a number of laws regarding political campaigns and the involvement of federal employees, we will limit our comments here to the applicable NPS legal authorities that constrain such events.

First, we call your attention (again) to National Park Service general regulations at 36 CFR § 2.50, which sets forth the permit requirements for “special events” to occur in parks. Provisions of the regulation relevant to the proposed use of parks for campaign events include, but are not limited to, the following:

  • In order for the National Park Service (NPS) to permit (i.e., issue a permit for) such an event, there must be “a meaningful association between the park area and the event, and the observance [must] contribute to visitor understanding of the significance of the park area.” § 50(a)
  • A permit shall be denied if such activities would (among other things): Be contrary to the purposes for which the natural, historic, development and special use zones were established; or unreasonably impair the atmosphere of peace and tranquility maintained in wilderness, natural, historic, or commemorative zones; Result in significant conflict with other existing uses. § 2.50(a)(1-6)
  • As a condition of permit issuance, the superintendent may require: The filing of a bond payable to the Director, in an amount adequate to cover costs such as restoration, rehabilitation, and cleanup of the area used, and other costs resulting from the special event; and the acquisition of liability insurance in which the United States named as co-insured in an amount sufficient to protect the United States. § 50(c)(1-2)

Based on our extensive experience administering the NPS special use permitting authority in accordance with 36 CFR § 2.50 and Director’s Order 53 (Special Park Uses), we firmly believe that any competent superintendent, if allowed to exercise that authority as intended, would deny a permit request to hold a political campaign event within a unit of the National Park System. Such an event fails to pass the red face test with regards to having “a meaningful association between the park area and the event.”

However, we fully realize that Secretary Bernhardt is unlikely to object to any Republican campaign event proposals and NPS may be directed to permit some or all of these patently partisan political events, which are clearly in conflict with NPS regulations and policies. In the event that the NPS or the Secretary chooses to permit campaign event(s) under the guise of a “First Amendment activity,” we call your attention (again) to NPS regulations at 36 CFR § 2.51 regarding “Demonstrations and Available Park Areas.” As stated in § 2.51(a-c):

  • “The term ‘demonstrations’ includes… speechmaking… and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to attract a crowd or onlookers.” § 2.51(a)
  • “Demonstrations are allowed within park areas designated as available under paragraph (c)(2) of this section, when the superintendent has issued a permit for the activity” (unless the activity involves groups of 25 or less). §51(b)
  • The NPS may limit such demonstrations, including speechmaking, to designated areas provided certain conditions are met; and “the superintendent must designate on a map…the locations designated as available for demonstrations.” § 51(c)(1-2)

In addition to the permit and location requirements established under 36 CFR§ 2.51, NPS management of First Amendment activities should also comply with NPS Management Policies 2006 Section 8.6.3, which states, in part:

  • The National Park Service will authorize the use of park land for public assemblies… and other public expressions of views protected under the First Amendment of the U. S. Constitution, in accordance with 36 CFR 2.51 or 36 CFR 7.96…[T]he Service may manage these activities by issuing a permit to regulate the time, location, number of participants, use of the facilities, and number and type of equipment used, but not the content of the message
  • For all parks [outside of] portions of the National Capital Region, locations… available for public assemblies and other First Amendment activities… will be so designated by the superintendent on a map in accordance with procedures and criteria found in NPS regulations…Selected National Capital Region parks are subject to special demonstration regulations found at 36 CFR 7.96(g)(4)(iii) and do not have such areas designated by the superintendent.
  • When the Service allows one group to use an area or facility for expressing views, it must provide other groups with a similar opportunity, if requested. No group wishing to assemble lawfully may be discriminated against or denied the right of assembly provided that all permit conditions are met.
  • NPS staff on duty in an area in which a First Amendment activity is being conducted will be neutral toward the activity, but will remain responsible for the protection of participants, spectators, private property, public property, and park
  • When a permit is requested for the exercise of First Amendment rights… the superintendent will issue the permit without any requirement for fees, cost recovery, bonding, or insurance.

Regarding “the locations designated as available for demonstrations,” such locations have likely already been designated in each park unit’s Superintendent’s Compendium under §2.51 “Public assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views.” It would be highly inappropriate for NPS to grant a §2.51 permit to hold a campaign event or other First Amendment activity at any location other than those currently designated as available for demonstrations.
If NPS allows political campaign events to occur in parks under the guise of a First Amendment activity, we respectfully suggest the following actions for NPS to properly manage such an event:

  • If permitted, such events should be conducted at a scale that will fit entirely within the respective park’s designated First Amendment area; and, ideally, should not require additional NPS supervision beyond what is normally provided for such events.
  • One would reasonably expect counter-demonstrations to the campaign event to occur at or near the park site as well. As described in Management Policies Section 8.6.3, if NPS allows one group the opportunity to use a park site for expressing its views, it must also provide other groups with a similar First Amendment permit opportunity, if requested.
  • If a Trump Campaign event or events are held at any park(s) outside of the National Capital region, NPS should consider activating a national incident management team to plan and manage the event(s) and likely counter-demonstration(s), including providing for public safety during the event, site preparation and clean-up, and tracking all costs incurred by NPS that are associated with the event.
  • If any campaign events are permitted at NPS venues, it is imperative that NPS personnel not be perceived as engaging in political activity, which is defined in Office of Special Counsel (OSC) guidance as any “activity directed at the success or failure of a political party, partisan political group, or candidate for partisan political office.” NPS must ensure that all park employees and NPS incident management team personnel are informed of OSC’s guidance regarding “President Donald Trump as a candidate for reelection,” which is available at: https://www.doi.gov/sites/doi.gov/files/migrated/ethics/upload/update_hatch_act_guidance_tru mp_2020_ao.pdf.

While this letter is focused on the proposed campaign events in the current election cycle, we are aware that from time to time other events of lesser significance but still political in nature have been staged in National Park System units. We are similarly concerned about the authority for such events. For that reason we recommend that NPS issue clear policy guidance, in the form of a revised Director’s Order, setting forth standards and procedures for special events and identifying those circumstances, such as the currently proposed campaign events, that cross the line and should not be authorized under any circumstances.

While this letter is focused on the proposed campaign events in the current election cycle, we are aware that from time to time other events of lesser significance but still political in nature have been staged in National Park System units. We are similarly concerned about the authority for such events. For that reason we recommend that NPS issue clear policy guidance, in the form of a revised Director’s Order, setting forth standards and procedures for special events and identifying those circumstances, such as the currently proposed campaign events, that cross the line and should not be authorized under any circumstances.

In closing, we strongly oppose allowing partisan political campaign events to occur in units of the National Park System. There are other, far more appropriate venues for such activities that would not be in apparent conflict with NPS regulations and policies.

Sincerely,

Phil Francis Signature

 

 

 

Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks

cc: David Bernhardt, Secretary of the Interior
Rob Wallace, Assistant Secretary of the Interior, Fish, Wildlife and Parks Shawn Benge, Acting Deputy Director for Operations, National Park Service
Gay Vietzke, Region 1 Regional Director, National Park Service
Lisa Mendelson-Ielmini, Acting Area Director, National Capital Area, National Park Service
Congressman Raul Grijalva, Chair, House Committee on Natural Resources
Congressman Rob Bishop, Ranking Member, House Committee on Natural Resources
Senator Lisa Murkowski, Chairman, Senate Committee on Energy and Natural Resources Senator Joe Manchin, Ranking Member, Senate Committee on Energy and Natural Resource