UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CONCEPTION PICCIOTTO, et al.,
UNITED STATES OF AMERICA, et al.,
CA NO. 99-2113
Washington, D.C August 6, 1999 5:40 p.m.
TRANSCRIPT OF TEMPORARY RESTRAINING ORDER
BEFORE THE HONORABLE HENRY H. KENNEDY, JR.,
UNITED STATES DISTRICT JUDGE
For the Plaintiff:
MR. WILLIAM THOMAS, Pro se
For the Defendant:
ERIC JAFFE, ESQ.
RANDOLPH MYERS, ESQ.
EDWARD N. HAWKINS, RMR
Official Court Reporter
Room 6806, U.S. Courthouse
Washington, D.C. 20001
Proceedings reported by machine shorthand, transcript produced
by computer-aided transcription
P R O C E E D I N G S
THE DEPUTY CLERK: Civil Action Number 99-2113. Conception
Picciotto vs the United States, et al.
Would counsel please please identify themselves and who
MR. JAFFE: Good evening, Your Honor. Eric Jaffe
from the U.S. Attorney's office and Randy Myers from the National
Park Service would appear on behalf of the defendants.
MR. THOMAS: Good evening. I'm William Thomas, Pro
se. I'll be appearing on behalf of the plaintiffs.
THE COURT: All right. Before the court this afternoon
is the plaintiff's, all proceedings pro se, as I understand it,
for a temporary restraining order. I have read the complaint and
the documents that are attached to it, and that's it. I'll hear
I'll first hear from you, Mr. Thomas, then I'll hear from
either you, Mr. Myers or Mr. Jaffe, and then if you wish to be
heard further, I'll hear from you some more.
MR. THOMAS: Thank you.
I'm here as an individual who is deeply concerned with
freedom of thought and expression of assembly.
I am troubled by the Park Service's plan to handle the
demonstrations in Lafayette Park that are scheduled for tomorrow,
August the 7th. I think that they are unreasonable; therefore,
capricious. I think that they stifle freedom of
expression and freedom of assembly and freedom of thought.
THE COURT: Mr. Thomas, let me make sure that I understand
actually the facts. And I'm doing this so that I'm sure that I
understand what your position is and what's happening.
I understand that you and perhaps two other people are
engaged in what is described in the complaint as a 24-hour 365-day
vigil expressing opposition to global nuclear warfare.
MR. THOMAS: That's close, yes. That's what it says
I in the complaint.
THE COURT: Okay. I take it that the vigil of which
you speak is one where one or more of the plaintiffs are physically
present 24 hours a day.
MR. THOMAS: Yes.
THE COURT: And that as part of the vigil there are
signs, and the signs are actually described in the complaint as
4 by 4 or 4 by 6. So 4 by 6 feet?
MR. THOMAS: They are 4 feet by 4 feet and then they
are raised 2 feet off the ground which is what the regulations
limit signs to.
THE COURT: Where are the signs as we speak?
MR. THOMAS: Well, if you look at the Exhibit Number
THE COURT: Yes.
MR. THOMAS: That's just simply the same as the Park
Service map that's Exhibit 2. I just blew it up to make
it a little more, a little clearer, and the signs are indicated
by those little dots adjacent to Pennsylvania Avenue there.
There are two immediately to the east of the easternmost
walk that cuts through the center of the Park, and then there
are two more directly in the center of the sidewalk there.
And I'd like to point out, if I may at this point, that
those signs provide ample room for large trucks to pass on the
sidewalk, so they don't present any sort of an impediment or obstruction
to vehicular traffic or pedestrian traffic or anything else.
THE COURT: Okay. Go on. I just wanted to make sure
that I understood.
And it is your desire to remain where you are with the
signs where they are during the demonstration. As I understand
it, two groups have permits to demonstrate on either side of Lafayette
MR. THOMAS: Exactly, Your Honor. That's our desire,
to stay there.
THE COURT: And it's the - well, the Government can
speak for itself.
MR. THOMAS: I'd like to point out, if I may, that
each of the plaintiffs have submitted declarations indemnifying
the Government against any personal injury that may happen to
us as a result of being in the wrong place at the wrong time,
if that happens to be the case.
And also, we've promised not to impede either of the other
demonstrations that are taking place there. I think that this
is significant. And I guess this is the problem to the court.
There's a need to, I think, balance security and freedom.
And if freedom gets the upper hand, then -- if security gets the
upper hand, then there's no freedom left.
And in an open and free society there are risks. Personally,
I am committed enough to the consents of freedom of expression
and assembly that I'm willing to run personally whatever risk
and not take the Government to task just for the right to remain
in a public park. And as indicated in there, in the declarations
that have been submitted by the other two defendants (sic), they
share that opinion.
THE COURT: All right. Anything further?
MR. THOMAS: I think I'll just wait and see what
the Government has to --oh, well, another thing I guess I'll point
out is that the Park is isn't closed. Although the notice says
it's closed, it's open, and it's been divided into two areas and
these areas are surrounded by metal fences. So we actually have
two pens here which will contain these competing groups. Personally,
I don't feel aligned with either of them, but I'm willing to listen
And the Park Service is offering to let us participate
in one of the demonstrations, but apparently won't let us participate
in the other demonstration. And I think that this is problematic.
THE COURT: Let me just say this. The way I read
you l paper, and I have not read anything from the United States,
it was that one of the demonstrations indicated that they had
no objection to your setting up your sign in their quarter, and
I have not heard one way or the other whether the other side felt
the same way. So do you know something that I don't know?
MR. THOMAS: Well, I tried to contact the other side
by phone, actually, the -- D.W. Hawk, he calls himself. Actually,
his birth certificate identifies him as Andrew Greenbaum. He's,
apparently, the leader of the -- and according to what I read
in the Washington Post, he's the individual who got the permit
for The Knights of Freedom demonstration.
And apparently from his web site I wouldn't be surprised
if there aren't -- I would be surprised if there was more than
a dozen people in that whole group. It seems from his web site,
it seems like he is the Knights of Freedom.
THE COURT: As you pointed out, you said that most
demonstrators want supporters and you said -- I think in your
paper you say that you think that you probably would be welcome
MR. THOMAS: I can't imagine why either side would
want to exclude us. And that's the point, I think, of a public
demonstration, and that I think is what's being thwarted by the
Park Service's plan here. I think the idea of a public demonstration
is not to have a private party.
The letter says that we can get entrance to this one public
demonstration if we present the letter to the Park Police. This
is like requiring invitations to go to a public demonstration.
It sort of seems to defeat the whole purpose of what a public
demonstration is supposed to be about. That's why I think it's
not reasonable at all.
MR. JAFFE: Good evening, Your Honor.
To briefly provide the court with background as to what's
going on here -
THE COURT: And you're Mr. Jaffe?
MR. JAFFE: Yes, Your Honor.
The Knights of Freedom Nationalist Party applied for and
obtained a permit to demonstrate on a portion of Lafayette Park
Additionally, a group called Shalom International also
applied for and obtained a permit to carry on a counterdemonstration
occupying the other portion of Lafayette Park.
The Park Service has determined that it is important to
maintain a certain level of security and safety while these demonstrations
are taking place.
I understand that there also are a number of other events
that are occurring throughout the mall area related to the demonstrations
that are going to be occurring at Lafayette Park.
There additionally have been threats from certain other
groups that they would react with physical violence or an attempt
to disrupt the Knights of Freedom's demonstration.
There have been threats to displace or prevent the Knights
of Freedom from occupying the space that they have obtained through
the permit with the National Park Service.
At least partially motivated by the threats and the controversy
that has been generated pursuant to this, the demonstration and
the counterdemonstration, the Park Service is determined that
a certain security check needs to take place prior to the demonstration
which will necessitate those occupying the Park area to vacate
the area for a brief period of six hours while the area is surveyed
and for security reasons, and then will also need to limit subsequent
access to the areas to the demonstrators who have obtained permits.
THE COURT: For how long would it be, should the
court deny this motion for a temporary restraining order, would
Mr. Thomas and Ms. Thomas and Mr. -- I can't pronounce -Picciotto,
for how long would they not be permitted in this area?
MR. JAFFE: My understanding is that from 6 a.m.
noon no one will be allowed in the area marked off to enable
THE COURT: Six o'clock a.m.
MR. JAFFE: Until 12 noon. A six-hour period.
THE COURT: Just a second. Six a.m., what day?
MR. JAFFE: Tomorrow.
THE COURT: To 12 noon, which is August 7th.
MR. JAFFE: Yes. Six a.m. August 7th through noon
the Park Service --
That's not to say that plaintiffs or anyone else cannot
demonstrate in other areas. It is solely limiting the area delineated
in the charts that have been provided to the court.
THE COURT: I understand that. But what you're saying
is that -- at least, it is your understanding based upon your
talks, I suppose, with the law enforcement authorities, that the
time that this particular area you indicate is needed for a buffer
zone is six hours. Is that right or not?
MR. JAFFE: Actually, that's not quite correct. Maybe
I should have mentioned this at the start.
The Park Service has brought Mr. Sal Lauro, the acting
commander of the Park Police officers, who is prepared to offer
testimony regarding what's going to take place tomorrow and the
security measures that are going to be implemented to the extent
the court would like to hear from him.
Getting back to Your Honor's particular question. The six-hour
period, from 6 a.m. to noon, will not provide the buffer zone,
but will allow the Park Service, I believe in connection with
MPD -- although I'm not certain of that -- to perform a security
check of the area and make sure that the area is safe for the
demonstrations to occur later. Then from 12 noon until, I believe
it is 8 p.m. the area is somewhat restricted. However, as Your
Honor correctly pointed out, Shalom International
THE COURT: The demonstrators and counterdemonstrators,
does their permit indicate that's the period of time they have
to demonstrate: 12 noon to 8 o'clock on August 7th?
MR. JAFFE: I believe so, Your Honor, if I could
just have a second.
MR. MYERS: That's correct.
MR. JAFFE: That is correct, Your Honor.
As Your Honor also pointed out in conversations with Mr.
Thomas, Shalom International has allowed, or offered to allow
the plaintiffs to continue their demonstrations during the period
of time while the demonstration or counterdemonstrations are going
on within the area that they have been permitted.
As a result, if Your Honor looks at the exhibit that plaintiff
referred to earlier, the signs that plaintiffs
presently maintain will be moved what I have been told roughly
20 to 30 feet from where they are.
Moreover, the Park Service has told plaintiffs they can
maintain those signs in that area while the security check is
going on so that the signs will not be taken out. Their message
will continue to be conveyed. There's no limitation there for
any period of time. It's a question of moving it 20 feet away.
The buffer zone to which Your Honor referred is the middle
strip between the demonstration and the counterdemonstration which
the Park Service has determined must be maintained for security
and safety reasons during the course of the demonstrations.
With that background, turning to the plaintiffs' particular
claim here for a TRO. It really becomes clear that the plaintiffs
cannot succeed on any of the four prongs required in order to
have a TRO issued.
As an initial matter, plaintiffs are not able to show any
likelihood of success, nevertheless a substantial likelihood of
success on the merits.
The Supreme Court has held that expression is subject to
reasonable time, place and manner restrictions, and that l restrictions
are allowable if they are done without reference to the content
of the speech, they are narrowly tailored to a l significant governmental
interest, and they allow alternate
channels of communication.
In the present instance all of those requirements clearly
are met. The restrictions have no regard for the particular content
and instead deal with a particular land area where certain activities
need to be curtailed while a security check is done.
Clearly the restrictions are limited to the specific governmental
interests in maintaining the security and safety not only of the
plaintiffs, but also the demonstrators, counterdemonstrators and
any other members of the public that happen to be in that area.
And further, it's unquestioned that alternate channels
of communication remain. The plaintiffs are free to continue their
demonstration outside of this particular area and, in fact, fairly
close by for the six-hour period while the security check is performed.
Moreover, they can continue their demonstration 20 feet
from where they presently do so for the the ensuing eight-hour
period while the demonstration and counterdemonstration are ongoing.
That also ties into the question of whether the plaintiffs
can demonstrate any actual harm if the TRO is denied and, obviously,
they cannot since there is going to be no curtailment of their
ability to demonstrate in very close proximity to where they are
doing, so the signs as I noted will
be maintained throughout the period of time and they will be
allowed to demonstrate very close by at all times and literally
20, 30 feet away for that eight-hour demonstration period.
On the other hand, the harm to the Government as well the
public is significant here. The Park Service, obviously with a
great expertise in security and handling situations, such as demonstrations
that occur at places in the mall, has determined a level of security
necessary to ensure the safety of all those involved in the demonstrations
and those that will be nearby and possibly observing them.
To enter the TRO will severely curtail the Government's
ability to maintain the level of security that it has already
determined is necessary in order to maintain that level of safety.
Obviously, that would jeopardize the Government's ability as well
as the public's ability to remain safe should any of the security
measures be limited in any way.
As I noted, Your Honor, we do have Mr. Lauro who would
be willing to provide additional testimony if the court so desires.
Other than that, I'd be happy to answer any particular questions.
THE COURT: All right.
MR. JAFFE: Thank you.
THE COURT: Mr. Thomas.
MR. THOMAS: Counsel referred to the O'Brien test.
I think the prerequisite is to serve a substantial Government
interest. Of course, the Government is complaining that they
have security concern. Again, I think that it's necessary to balance
security against liberty.
THE COURT: Well, let me ask you. I understand the
words. Do you doubt that there is a basis for having some security
concern? As I understand it -
MR. THOMAS: I doubt that there is a basis for certain
security concerns. I doubt, for example, that there is any basis
for a concern about our signs or the property that we have in
our immediate area.
I doubt that there is any concern that our being there
will in any way interfere with any security check, either of ourselves
and the things in our possession or of any other par of the Park.
I don't see -- I mean, on the one hand the Government is
saying, "Well, all you have to do is go 20 feet over there
and you can still demonstrate." But I don't see what reason
there is for us to just go 20 feet over there. And, on the other
hand, what if we want to go 20 feet over there?
Part of my dealing with people in the street in the marketplace
of ideas is to listen to what other people are saying to me. I
want to listen to what these people have to say, and I want to
listen to what these people have to say.
Now, if I am free to just move my signs into this closed-in
area over here, I'm not free to go to that closed-in
area over there. So I can hear what these people have to say,
but I can't hear what those people have to say.
And I just don't see that there's any security concerns
that are really being met by imposing that restriction on me.
Again, anything is possible. You run risks in a free country,
but I'm willing to take those risks. And I don't think that there
are any -- I don't think that our presence in the area where we
have always been presents any valid security concerns. Perhaps,
you know, the captain could explain some, but I'm at a loss to.
THE COURT: What do you think that he could explain?
MR. THOMAS: I don't have any idea. I mean, he might
be able to come up with some reason that our presence in our present
location is going to cause some valid security concern, but I'm
at a loss to imagine what it might be.
So while there may be valid security concerns surrounding
this event, I think that they are more than amply met by fencing
off -- although I don't think this is the best way to do it. I
think the best way to have handled this thing was just to have
not issued two permits to two competing ideologies for the same
place at the same time. That's one thing.
And another thing that I would like to mention because
I think it's very important -
THE COURT: Do you think that that might have raised
some First Amendment concerns by others?
MR. THOMAS: They do it all the time. It's part of
the regulations, in fact, that the Park Service can deny a permit
if it is likely to be some conflict as a result of it.
But on the other hand, recently, not too long ago, there
were simultaneous demonstrations in Lafayette Park with pro and
anti-Serbian groups, and although there were a few very minor
-- very minor, no serious injuries or anything -- one person pushing
another, that sort of thing, the police handled it very well and
they didn't have to have large sections of the Park closed down
and everything like they are doing here.
So I think that -- and the other thing that I wanted to
point out is I didn't receive any notice of this until after four
o'clock yesterday afternoon.
I'm not operating at my peak right now because I haven't
been to sleep since I received this information. I'm not a lawyer
and it took me a long time to prepare these papers.
And, I think that there's a problem when the Park Service
-- because this didn't just happen, this demonstration. This didn't
just come to their attention yesterday. They have been planning
for it for quite a while. I don't know how long they've known
about it, but I read it about it in the Washington Post over a
month ago. So they've known about it
I'm sure longer than I have.
And 36 CFR Section 1.9 sets out certain prerequisites that
the Park Service is supposed to meet before closing parks or parts
of parks and they don't bother to do that.
Thirty-six hours before the thing is going to happen they
come around and give me a piece of paper and say, Here, it's a
done deal. And so it's very difficult for me to try to get any
hearing on the matter because it doesn't give me much time to
So I think that this is another thing that the court should
consider, is the manner in which the Park Service has engineered
THE COURT: Mr. Jaffe, do you want to respond to
the last point Mr. Thomas makes? That is, that -- and part of
his complaint is that there's been a violation of the regulations
that governs the closing of public parks and parts of public parks.
At least, that's Mr. Thomas's allegation. Do you want to respond
MR. JAFFE: Certainly, Your Honor. Thank you.
First of all, I believe Mr. Thomas was referring to Section
1.5, although I think he noted 1.9, which I believe doesn't exist.
A review of the regulation in question demonstrates that
the situation at hand is not one that is subject to the portion
of the regulations cited in the plaintiff's complaint
This regulation deals with situations where there is a
closure of a park space or a portion of a space which is of a
nature, magnitude and duration that will result in a significant
alteration in the public use pattern of the Park area; adversely
affect the Park's natural, aesthetic, scenic or cultural values;
require a long-term or significant modification in the resource
management objectives of the unit or is of a highly-controversial
nature, and then such publication in the Federal Register is required.
We are dealing with a short-term limited restriction in
this case that in no way falls within something of the magnitude
or duration contemplated by this particular regulation.
And I'll note for the court that similar challenges by
this very plaintiff, that the Park Service similarly violated
this regulation have been denied on three separate occasions by
this very court on this -- at least in some of those instances
on the very similar basis. That this regulation does not contemplate
situations such as the one at hand with a much smaller magnitude
THE COURT: Do you have a specific knowledge of that
of what you speak? That is, that there have been other judges
who have considered the application of this section of the code
to similar or analogous arguments by Mr. Thomas?
MR. JAFFE: I do, Your Honor. We could certainly
provide the court with opinions where the issues were addressed.
I do not believe opinions have been published in West Publishing.
THE COURT: Do you have them?
MR. JAFFE: I have copies --
MR. MYERS: I have three copies for Your Honor's
THE COURT: I've just had some documents handed to
Mr. Thomas. All right. Go ahead.
MR. JAFFE: That's all I have, Your Honor, unless
you have any questions.
THE COURT: Mr. Thomas, do you want to respond to
MR. THOMAS: Briefly, Your Honor.
I think that there is significant public change here. As
I pointed out in my complaint this has never happened before.
I was there the first time the Park was ever closed, which
was in 1987 on Mr. Gorbachev's first visit. At that time I argued
that it shouldn't be done. At that time the Government argued
that there was concerns about visiting head of state.
Okay. I can -- I can't argue with that. I mean, at this
point I can't argue about that. But there's something
different here. This isn't a visiting head of state. This is
a public demonstration.
And the Government has never done anything like this before.
That, I think, makes it significant, because they've never done
this before. This is entirely new.
Additionally, I don't know whether you got a copy of this,
but this is an order that came out of the hearing that we had
on December 7, 1987, where Judge Oberdorfer at that time kind
of split the difference. He was afraid to challenge the security
THE COURT: I can assure you that Judge Oberdorfer
was not afraid to do anything. I can assure you that.
MR. THOMAS: Let me rephrase that. He was a little
reluctant to -- or perhaps it was just that again I didn't have
enough time to put my case together and -- but, at any rate, at
that time -- another thing is at that time the Government argued
that this was an extraordinary event. It was probably never ever
going to happen again.
At that time I argued that it was like letting the camel
get his nose under the tent. You let him do it this time and mark
my words, they are going to do it more and more frequently.
And just this year alone we are in the seventh month, the
eighth month, starting into the eighth month, I believe there
have been 18 Park closures just this month. And the
first one that ever happened in history didn't happen until
1987. So -- but now we are moving the envelope a little bit more.
It's not -- well, the Government is moving the envelope a little
It's not just a visiting head of state that we're concerned
about now, now we can close the Park for a demonstration. Didn't
happen before. So this is a significant change in public usage,
Would you like to see this? This is -- here the judge said
that although they could -- although they could exclude us from
the Park for short periods of time -- and these were short periods
of time, this was like 15 minutes on these -- we had to leave
our signs there. So, that was the compromise that was made in
THE COURT: Mr. Thomas, at least on the face of it,
it seems that the case that you handed me is the case that was
handed to me by Mr. Thomas (sic), although you seem to have something
else attached to it.
MR. THOMAS: That was originally attached to it.
THE COURT: It's a brief biography of Chairman D.W.
Hawk. Who is he?
MR. THOMAS: Yes, that is something. That's Andy
Greenbaum, the gentleman who holds the -
THE COURT: Does this go with it?
MR. THOMAS: No. He's the person -- that's off the
web site of the person who holds the permit for the Knight's
THE COURT: Freedom?
MR. THOMAS: Freedom.
THE COURT: The court will take the matter under
advisement for 20 minutes, perhaps longer, but perhaps no more
than 20 minutes, and I will come back and render my decision.
(Recess from 6:15 p.m. until 7:05 p.m.)
THE COURT: All right. The court has taken under
advisement its decision, which of course is the motion, is a decision
that will be a resolution of the plaintiff's motion for a temporary
restraining order -- application for a temporary restraining order.
By this application plaintiffs seek a court order the would
prohibit the National Park Service from forcing them to relocate
their 24-hour-a-day 365-day-a-year vigil for the global elimination
of nuclear weapons, one that has persisted since 1981, the court
is told from an area located in Lafayette Park which the Park
Service indicates that it needs and intends to use as a buffer
zone between competing demonstrations in the Park: one on the
left side of the park and the other on the -well, east and west
side of the park. Plaintiffs say that to permit this relocation
will trammel upon their First Amendment rights.
The court has considered the plaintiffs' arguments,
the ones made in their papers which expands upon what I have
just said, as well as the statements of Mr. Thomas at this hearing
as well as the arguments made in opposition to the application
by representatives of the Government.
Having considered these arguments the court concludes that
the application should be denied.
It is, of course, black letter law that in a legal proceeding
seeking injunctive relief the party seeking such relief carries
a very heavy burden, one of showing, among other things, that
he or she is likely to prevail on the merits;
That he or she will suffer irreparable injury should the
temporary restraining order or the injunctive relief not be granted;
And that the issuance of the injunctive order would not
disserve the public interests.
The court is of the view that plaintiffs have not demonstrated,
one, that they will suffer irreparable injury and, two, that issuance
of this order would not disserve the public interests.
The bottom line is that the plaintiffs may maintain their
vigil within 30 feet of where it is located at this very moment
at all times.
Requiring plaintiff to move such a short distance for such
a temporally-limited period of time, while implicating First Amendment
concerns, in my view, this does so only barely.
And in the court's view the Park Service's action is consistent
with the law which permits limited content neutral regulation
The court notes that other judges who have been faced with
similar challenges by the plaintiffs in this suit have determined
that plaintiffs' First Amendment rights have not been violated
by portions of Lafayette Park.
Here, the court has reference to the cases of -- the names
of the cases are Conception -- I'll spell the last name of this
plaintiff -- P-i-c-c-i-o-t-t-o vs Donald Waddell, Civil
Action Number 87-3290. This is a case that was decided by Judge
Oberdorfer and one brought to the attention of the court by both
the Government as well as Mr. Thomas.
The same plaintiff vs the United States, Civil Action
Number 94-1935, a case decided by Judge Richey of this court.
And the same plaintiff vs Emanuel Juan, Civil Action
The court notes that each one of these cases, as I said,
address similar issues. Obviously no case is the same, but some
of the principles that are stated have applicability in each one
of the cases and here, are all cases before the District Court.
It may very well be that this tolls the bell insofar as
this court's decision right here right here and now will not --
will decide the case.
I must say that, you know, Mr. Thomas may wish to try to
somehow take an appeal so that this can be decided by a higher
As I indicated, the other -- aside from believing that
this, what I see as a relatively inconsequential move, requiring
a movement of this vigil is not implicating or barely implicating
First Amendment concerns, the court is of the view that it very
well may, and probably would, disserve the public interest to
issue this injunction.
First, the court simply does not believe that it has the
competence to explore the fine points of what is reasonable to
maintain peace and good order during these competing demonstrations.
The court does not have to blink at the reality that one
of the demonstrators, I understand, is associated with the --
or is thought to be associated in some way with the KKK, and that
there are very, very strong feelings against what that demonstration
stands for by Shalom International, and indeed certainly on the
public airways there's much talk about the potential for violence
The court frankly believes that it should give a certain
amount of deference to the police expertise in the areas. And
I must say I simply don't believe that it's appropriate for the
court to place very much stock in Mr. Thomas's assessment of what
is or is not reasonable under
the circumstances, which is not to criticize him for making
the points which he's made, but I believe that the court should
give some deference to the police authorities.
The court has also considered the plaintiff's position
that this action by the Park Service is in violation of 36 CFR
I believe that the section of that section that is applicable
is found in subsection(b), which states that -- and I just quote
here -- that, except in emergency situations, a closure designation,
use, or activity, restriction, or condition, or the termination
or relaxed section of such which is of a nature, magnitude, and
duration that will result in a significant alteration in the public
use pattern of the Park area, adversely affect the Park's natural
esthetic, scenic or cultural values require a long-term or significant
modificatiomodification in the resource management objectives
of the unit or is of a highly controversial nature shall be published
as rule making in the Federal Register.
And the court is of the view that this situation is simply
not covered by this section that would require this activity of
the partial closing to be first published in the Federal Register.
For these reasons, the application for a temporary restraining
order is denied.
(Proceedings concluded at 7:16 p.m.)
I, EDWARD N. HAWKINS, Official Court Reporter, certify
that the foregoing pages are a correct transcript from the record
of proceedings in the above-entitled matter.
Edward N. Hawkins, RMR