Catharsis on the Mall, LLC v. Jewell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CATHARSIS ON THE MALL, LLC,

Plaintiff,

v.
Civil Action No. 16-2231 (CKK)
SALLY JEWELL, in her official capacity as
Secretary of the Interior,

Defendant.

MEMORANDUM OPINION
(November 11, 2016)

Plaintiff filed suit on November 10, 2016, seeking preliminary and injunctive relief against

Sally Jewell in her official capacity as Secretary of the Interior and Robert A. Vogel in his official

capacity as Regional Director of the National Park Service, National Capital Region (“NPS-

NCR”). Presently before the Court is Plaintiff’s [2] Application for Temporary Restraining Order

and Preliminary Injunction. Plaintiff raises a First Amendment challenge to Section 16 (“Bonfire

Requirements”) of the NPS-NCR’s “Outdoor Event & Tent Requirements” both facially and as-

applied to Plaintiff who sought and was denied a permit for a temple burn ceremony on the

National Mall on November 12, 2016. Given the time-sensitive nature of Plaintiff’s request, the

Court held an on-the-record hearing with the parties on November 10, 2016, and has limited its

discussion to the arguments set forth by the parties, including Plaintiff’s written briefing and the

Government’s oral representations. In light of the information gleaned during the on-the-record

hearing, the Court concluded that it obviated the need to hold an evidentiary hearing prior to

issuing its ruling. Upon consideration of the pleadings, the relevant legal authorities, and the

1
record as a whole, 1 the Court DENIES Plaintiff’s [2] Application for Temporary Restraining Order

and Preliminary Injunction.

I. BACKGROUND

The National Park Service is responsible for promoting and regulating the use of the

National Park System. 54 U.S.C. § 100101. Plaintiff is a limited liability company created and

maintained to serve the administrative needs involved in producing Catharsis on the Mall (“the

Vigil”), an annual 72-hour vigil and political demonstration. Compl. ¶¶ 8, 11. Plaintiff held its

first annual Vigil (“2015 Vigil”) last year from November 20, 2015, to November 22, 2015, on the

north lawn of the Washington Monument grounds. Id. ¶ 12. The 2015 Vigil included a “Temple

of Essence,” a wooden structure approximately 12 feet tall, 10 feet wide, and 10 feet long, with a

single interior room resembling a prison inmate’s cell, complete with wooden bed and toilet. Id.

¶ 13. The Temple of Essence was ceremonially burned on Saturday night of the 2015 Vigil to

“symbolize the vigil participants’ call to change our system of mass incarceration.” Id. ¶¶ 13, 15.

At the time of the 2015 Vigil, NPS-NCR followed a general rule set forth in a compendium

that prohibited open fires, cooking or otherwise, on all park land except East Potomac Park. The

compendium also provided that a permit may be authorized to allow open fires related to

demonstrations or ceremonial events. The Temple Burn at the 2015 Vigil was permitted by NPS

under the general provision in the compendium, id. ¶ 14, and was executed as part of the 2015

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In reaching its decision, the Court considers Plaintiff’s Application for Temporary
Restraining Order and Preliminary Injunction (“Pls.’ TRO & PI”), ECF No. [2], Plaintiff’s Verified
Complaint for Preliminary and Permanent Injunctive Relief (“Pls.’ Compl.”), ECF No. [3], and
the parties’ arguments set forth during the hearing held on November 10, 2016. The Court also
considers the following documents submitted to chambers at the Court’s request during the
hearing: NPS-NCR’s “Outdoor Event & Tent Requirements” and NPS permit issued to Plaintiff
dated November 10, 2016. The Court relied on notes and an unofficial transcript of the on-the-
record hearing. In an exercise of its discretion, the Court finds that holding further oral argument
on the instant motion would not be of assistance in rendering a decision. See LCvR 7(f), 65.1(d).

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Vigil. Specifically, Plaintiff represents that in 2015 as part of the permit process, NPS indicated

that it would issue a permit pending a safety review and inspection by D.C. Fire & Emergency

Medical Services (“DC FEMS”), which ultimately deemed the Temple Burn safe. 2 The

government noted at that time, NPS-NCR did not have its own Fire Marshal, but has since hired

one.

In August 2016, NPS-NCR adopted “Outdoor Event & Tent Requirements” that includes,

among other things, certain restrictions for bonfires. Pursuant to Section 16 of those requirements,

“[a] bonfire, is an open burning fire, constantly attended outdoor fire utilized primarily for

ceremonial purposes . . .” The fire safety requirements of the provision allow a maximum fuel

area of 5 feet in diameter by 5 feet in height (“the size limitation”), which mirrors the size limitation

in the D.C. fire code. Based on the record before the Court, it is clear that these requirements were

adopted in official form in August 2016. However, at the time of the 2015 Vigil, the Government

represented that NPS had a restriction on burns in draft form although the specific content of the

draft version at that time is unknown. It is also undisputed that the Temple Burn completed by

Plaintiff at the 2015 Vigil would not have complied with the newly-adopted size limitation

restriction.

This year the Vigil (“2016 Vigil”) centers on veterans’ and PTSD survivors’ access to

treatment and is scheduled to take place from today, Friday, November 11, 2016, to Sunday,

November 13, 2016, in the same location as the previous Vigil. Id. ¶ 11. Pursuant to the permit

issued for this event, Plaintiff expects approximately 4,000 participants. At the 2016 Vigil,

2
Plaintiff’s briefing indicates, “The NPS issued a First amendment permit for the 2015
ceremony and DC Fire & Emergency Medical Services (‘DC FEMS’) issued permits for the burn
as well.” Pl.’s TRO & PI at 6. However, during the hearing, it was clarified that NPS was the
actual entity that issued the permit for the Temple Burn after consultation with DC FEMS.

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Plaintiff plans to feature a “Temple of Rebirth” that resembles a Phoenix. Id. ¶ 17. The Temple

is larger than the one at the 2015 Vigil and measures 24 feet tall, 12 feet wide, and 12 feet long,

although Plaintiff notes that “[t]he design quickly tapers off at 6 feet in height.” Id. ¶ 19.

Participants will be invited to place letters and symbols inside the Temple and write messages on

the Temple regarding their personal struggles with trauma and PTSD, frustration with government

policy, and prayers for change. Id. ¶ 17. The proposed bonfire, which is larger than the 2015

Temple Burn, exceeds the size limitation set forth in Section 16 of NPS’s recently-adopted

Requirements (“Bonfire Requirements”).

Plaintiff sought and was denied a permit by NPS to set the Temple on fire on November

12, 2016, at 9:00 p.m. Id. ¶¶ 20-30. Though not expressly provided for in the restrictions,

Plaintiff sought an exemption to the newly-adopted size limitation on bonfires in order to proceed

with its Temple Burn as planned. On November 8, 2016, Plaintiff was informed at a meeting by

Robert A. Vogel, Regional Director of NPS, that its request for an exemption to the restriction was

denied due to safety concerns and concerns about turf protection. Id. ¶¶ 28, 29. Present at the

meeting were: Vigil organizers; Regional Director Vogel; Superintendent Gay Vietzke; Chief of

Permits Division Robbin Owen; NPS-NCR Fire Marshals Jim King and Raul Castille; NPS’s turf

specialists for the region, Michael Stachowicz; and DC FEMS officials Captain Jerome Young,

Sergeant Robert Kearney, and Lieutenant Aaron Hazel. Id. ¶ 28.

In lieu of taking live testimony on the pending motion, the parties accepted during the

hearing the following representations would have been made regarding that meeting:

When questioned as to whether the proposed temple burn was safe, DC Fire & EMS
Sergeant Robert Kearney stated, without reservation that ‘the fire can be done
safely.’ He stated, however, that DC FEMS required approval of the NPS before it
could endorse the activity. The other two DC FEMS officers expressed the same
position, stating that ‘We [DC FEMS] can put this fire out, but we need the other
agency’s consent.’ NPS Assistant Fire Marshall [sic] Castillo expressed concerns

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 that the temple burn is unsafe. When asked for specifics, he mentioned the
possibility of ‘fly embers’ and ‘it [the fire] could distract traffic.” NPS Fire
Marshall [sic] King also expressed that he did not feel the fire could be done safely.
When Mr. King was asked about what the differences were between the National
Mall and the much larger temples permitted and burned safely each year with
similarly-sized perimeters and open areas in the Black Rock Desert, he stated that
weather was different and that the two places cannot be compared. No specific
explanation was given as to why the NPS’s turf protection concerns remain despite
the existence of a burn pad.

Id. ¶ 30. As such, for the purposes of this analysis, it is undisputed that DC FEMS officials have

indicated that they can extinguish the fire if the need arises, but that NPS is the entity that must

issue the permit to authorize the burn. Second, it is undisputed that the NPS Fire Marshal

expressed his view that the proposed burn could not be done safely.

The parties do not contest that Plaintiff’s proposed Temple Burn at the 2016 Vigil exceeds

the size limitation of Section 16 of NPS-NCR’s “Outdoor Event & Tent Requirements,” and NPS

has indicated that it would issue a permit to Plaintiff for the 2016 Vigil to complete a burn that

comports with the Bonfire Requirements, including the size limitation. Plaintiff asserts that the

Bonfire Requirements violate the First Amendment on its face and as applied to Plaintiff. Plaintiff

seeks a temporary restraining order and preliminary injunction from the Court enjoining Defendant

from enforcing the Bonfire Requirements of Section 16 against Plaintiff and permitting Plaintiff

to perform its proposed burn of the “Temple of Rebirth” on November 12, 2016, at 9:00 p.m.

II. LEGAL STANDARD

A temporary restraining order or preliminary injunction is “an extraordinary remedy that

may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Sherley v.

Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7, 22 (2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary

injunction is an extraordinary and drastic remedy, one that should not be granted unless the

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movant, by a clear showing, carries the burden of persuasion.” (emphasis in original; quotation

marks omitted)). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely

to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary

relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public

interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at

392 (quoting Winter, 555 U.S. at 20) (alteration in original; quotation marks omitted)). “‘When

seeking a preliminary injunction, the movant has the burden to show that all four factors, taken

together, weigh in favor of the injunction.’” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir.

2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). “The

four factors have typically been evaluated on a ‘sliding scale.’” Davis, 571 F.3d at 1291 (citation

omitted). Under this sliding-scale framework, “[i]f the movant makes an unusually strong showing

on one of the factors, then it does not necessarily have to make as strong a showing on another

factor.” Id. at 1291-92.

The Court notes that it is not clear whether this Circuit’s sliding-scale approach to assessing

the four preliminary injunction factors survives the Supreme Court’s decision in Winter. See Save

Jobs USA v. US. Dep’t of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C. 2015). Several judges

on the United States Court of Appeals for the D.C. Circuit have “read Winter at least to suggest if

not to hold ‘that a likelihood of success is an independent, free-standing requirement for a

preliminary injunction.’” Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296 (concurring

opinion)). However, the Court of Appeals has yet to hold definitively that Winter has displaced

the sliding-scale analysis. See id.; see also Save Jobs USA, 105 F. Supp. 3d at 112. In any event,

this Court need not resolve the viability of the sliding-scale approach today as the Court determines

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that “a preliminary injunction is not appropriate even under the less demanding sliding-scale

analysis.” Sherley, 644 F.3d at 393.

III. DISCUSSION

A. Likelihood of Success on the Merits

Plaintiff challenges the size limitation on bonfires adopted by NPS-NCR in August 2016,

as part of its “Outdoor Event & Tent Requirements” (“Bonfire Requirement”). Plaintiff brings

both a facial and as-applied challenge to the constitutionality of the Bonfire Requirement, although

Plaintiff’s briefing does not fully develop its facial challenge and Plaintiff does not distinguish

between the two challenges. The parties dispute the appropriate level of scrutiny that applies to

Plaintiff’s First Amendment claim. Plaintiff asserts that the Bonfire Requirement is a retaliatory,

content-based restriction subject to strict scrutiny. Defendant argues that the Bonfire Requirement

is a valid time, place, and manner restriction that survives intermediate scrutiny. For the reasons

described herein, the Court finds that Plaintiff has failed to demonstrate a likelihood of success on

the merits because the Bonfire Requirement appears to be a valid time, place, and manner

restriction that is narrowly tailored to serve the significant governmental interest of public safety,

and because it appears that the Bonfire Requirement is valid on its face.

In order to determine whether there has been a violation of the First Amendment, the Court

must “(1) assess whether the conduct or speech at issue is protected by the First Amendment, (2)

identify the nature of the forum in order to determine the extent to which the government may limit

the conduct or speech, and then (3) assess whether the justifications for restricting the conduct or

speech satisfy the requisite standard.” Watters v. Otter, 854 F. Supp. 2d 823, 828 (D. Idaho 2012),

opinion clarified, No. 1:12-CV-001-BLW, 2012 WL 2065549 (D. Idaho June 8, 2012) (citing

Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 797 (1985)).

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 For the purposes of this analysis, the Court accepts that Plaintiff’s proposed Temple Burn

at the 2016 Vigil is expressive conduct protected to some extent by the First Amendment and that

the National Mall, the proposed location of the Temple Burn, is a public forum. However, even

in a public forum the government may impose reasonable time, place, or manner restrictions on

oral, written, or symbolic expression. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989);

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). To determine whether a

particular time, place, or manner restriction passes constitutional muster, a court must first

determine whether a particular restriction is content-based or content-neutral as this determination

dictates the appropriate level of scrutiny to apply. The Supreme Court of the United States

(“Supreme Court”) explained:

The principal inquiry in determining content neutrality, in speech cases generally
and in time, place, or manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with the message it
conveys. The government’s purpose is the controlling consideration. A regulation
that serves purposes unrelated to the content of expression is deemed neutral, even
if it has an incidental effect on some speakers or messages but not others.
Government regulation of expressive activity is content neutral so long as it is
‘justified without reference to the content of the regulated speech.’

Ward, 491 U.S. at 791 (internal citations omitted). If a time, place, or manner restriction is content-

neutral, it is valid provided that it is “narrowly tailored to serve a significant governmental interest,

and that [it] leave[s] open ample alternative channels for communication of the information.”

Clark, 468 U.S. at 293.

Here, Defendant asserts that the government’s purpose in adopting the Bonfire Restriction

is to protect the safety of public, including the Vigil participants. This governmental purpose is

unrelated to the content of Plaintiff’s expression and the safety provisions apply equally to all

groups who seek to build bonfires in the designated areas regardless of their message. See Ward,

491 U.S. at 791 (noting that a justification that has nothing to do with content satisfies the

8
requirement that a time, place, or manner regulation must be content neutral). As such, based on

the record before the Court at this time, it appears that the Bonfire Restriction at issue is content

neutral. The fact that the Bonfire Restriction has some effect on Plaintiff’s expressive activity

does not undermine this conclusion. Indeed, as the Supreme Court recognized, “reasonable time,

place, or manner regulations normally have the purpose and direct effect of limiting expression

but are nevertheless valid.” Clark, 468 U.S. at 295.

The Court must next consider whether the Bonfire Restriction is narrowly tailored to serve

a significant governmental interest and if it leaves open ample alternative channels for

communication of the information. The Court finds the Supreme Court’s opinion in Clark v.

Community for Creative Non-Violence, 468 U.S. 288 (1984), instructive on this issue. In Clark, a

group sought NPS permits to conduct a wintertime demonstration to demonstrate the plight of the

homeless in Lafayette Park and on the National Mall. Id. at 291-92. NPS granted a permit that

authorized the erection of two symbolic tent cities, one at Lafayette Park with 20 tents that would

accommodate 50 people and one on the Mall with 40 tents that would accommodate 100 people.

Id. at 292. However, NPS, relying on a regulation prohibiting camping in these two areas, denied

the group’s request that demonstrators be permitted to sleep in the tents. Id. The group raised a

First Amendment challenge to the application of the no-camping regulations to their proposed

demonstration. Id.

In Clark, the Court found that the no-camping regulation “narrowly focuses on the

Government’s substantial interest in maintaining the parks in the heart of our Capital in an

attractive and intact condition, readily available to the millions of people who wish to see and

enjoy them by their presence.” Id. at 296. The Court rejected the demonstrator’s argument that

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the regulation should not apply to them because other than sleeping, they did not intend to engage

in other “camping activities” like cooking or digging, explaining:

Perhaps these [government] purposes would be more effectively and not so
clumsily achieved by preventing tents and 24–hour vigils entirely in the core areas.
But the Park Service’s decision to permit nonsleeping demonstrations does not, in
our view, impugn the camping prohibition as a valuable, but perhaps imperfect,
protection to the parks. If the Government has a legitimate interest in ensuring that
the National Parks are adequately protected, which we think it has, and if the parks
would be more exposed to harm without the sleeping prohibition than with it, the
ban is safe from invalidation under the First Amendment as a reasonable regulation
of the manner in which a demonstration may be carried out. As in City Council of
Los Angeles v. Taxpayers for Vincent, the regulation ‘responds precisely to the
substantive problems which legitimately concern the [Government].’

Id. at 297 (quoting Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466

U.S. 789, 810 (1984)).

Turning to the instant action, it is the Court’s view that the government has advanced a

more significant interest in adopting the Bonfire Restriction than in Clark. As a practical matter,

the burning of fires on the National Mall is inherently more dangerous than permitting

demonstrators to sleep on the Mall. Here, the government has a substantial interest in maintaining

the safety of those who visit the National Mall and in protecting National Parks. See id. at 291

(recognizing the National Mall as “unique resource[] that the Federal Government holds in trust

to the American people” that is “visited by vast numbers of visitors from around the country, as

well as by large numbers of residents of the Washington metropolitan area.”). The Bonfire

Restriction is narrowly tailored to address that substantial government interest. Indeed, NPS has

determined that it will permit the burning of bonfires on the National Mall but has simply sought

to control the manner in which these fires are set and maintained. One such restriction is the

inclusion of a limitation of the size of the maximum fuel area, which specifically mirrors the size

limitation in the D.C. fire code, to advance its content-neutral goal of ensuring public safety.

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 In the instant action, NPS has issued a permit for Plaintiff to engage in other expressive

activity on the National Mall, including a ceremonial vigil sequence commencing with a sneakpeak

press event on November 10, 2016, a ceremony with dancers, art, activities, and installations on

November 11, 2016, and a sunrise ceremony, march, and potluck picnic on November 12, 2016.

Moreover, Defendant indicated that it is willing to issue Plaintiff a permit for the Temple Burn if

it complies with the size limitations of the Bonfire Restriction. Notably, Plaintiff only asserts that

its expressive conduct is limited by size of the bonfire it would be permitted to burn at its Vigil.

Here, the Court finds that Plaintiff has not demonstrated a substantial likelihood of success on the

merits because, at least on this record, the Bonfire Restriction appears to be a valid time, place, or

manner restriction both on its face and as applied, is narrowly tailored to serve the significant

governmental interest of public safety, and leaves open ample alternative channels for

communication of Plaintiff’s information.

In the interest of completeness, the Court shall briefly address several arguments raised by

Plaintiff with respect to its likelihood of success on the merits. Plaintiff asserts that the Bonfire

Restriction is content-based and, accordingly, requires the Court to apply strict scrutiny, for two

reasons: (1) because the Regulation was specifically drafted to apply only to ceremonial bonfires;

and (2) because the Regulation was adopted in retaliation for Plaintiff’s 2015 Temple Burn.

Plaintiff also asserts that the Bonfire Restriction does not pass constitutional muster because the

proposed Temple Burn can be completed safely as evidenced by the Temple Burn at the 2015 Vigil

and based on the representations of DC FEMS officials.

Turning first to Plaintiff’s argument that the Bonfire Restriction is content-based,

“[g]overnment regulation of speech is content based if a law applies to particular speech because

of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, Ariz., - U.S. -,

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-, 135 S. Ct. 2218, 2227 (2015). In conducting this analysis, a court must “consider whether a

regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” Id.

“Some facial distinctions based on a message are obvious, defining regulated speech by particular

subject matter, and others are more subtle, defining regulated speech by its function or purpose.”

Id. Here, Plaintiff appears to assert that the Bonfire Restriction is content-based on its face because

it only applies to ceremonial bonfires. However, the regulation at issue indicates that “[a] bonfire,

is an open burning fire, constantly attended outdoor fire utilized primarily for ceremonial purposes

. . . .” The Bonfire Restriction acknowledges that bonfires are primarily used for ceremonial

purposes but does not limit the definition to only those fires that are used for ceremonial, and not

for some other, purpose. Indeed, the Title of the Section 16 is “BONFIRE/RECREATIONAL

FIRES . . . .” 3 As such, the Court rejects Plaintiff’s argument that the inclusion of the reference to

“ceremonial purposes” within the Bonfire Restriction renders it content-based on its face.

Plaintiff also asserts that the Bonfire Restriction is content-based because it was

specifically adopted in response to its Temple Burn during the 2015 Vigil. Indeed, facially

content-neutral regulations may nonetheless be content-based if they “were adopted by the

government ‘because of disagreement with the message [the speech] conveys.’” Id. at 2227

(quoting Ward, 491 U.S. at 791). The record at least at this time does not support this contention.

Defendant represented that at the time of the 2015 Vigil, NPS had a restriction on burns in draft

form although the specific content of the draft version at that time is unknown. However, Plaintiff

3
Plaintiff asserts that this case is a content-based restriction based on the Supreme Court’s
analysis in Reed, 135 S. Ct. 2218. However, Reed is distinguishable. In Reed, the Court found a
town code that distinguished between “Temporary Directional Signs,” “Political Signs,” and
“Ideological Signs” based on the message of a particular sign to be content based. Unlike the code
at issue in Reed, the Bonfire Restriction does not distinguish between the message that a proposed
bonfire conveys.

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contends that the real impetus of enacting the Bonfire Restriction at issue was its 2015 Vigil and

that officials have made this representation. As such, Plaintiff argues that the Restriction was

targeted specifically at Plaintiff’s annual event. Defendant sets forth that other groups, although

not recently, have sought permits to complete burns in National Parks and that even if the Temple

Burn at the 2015 Vigil sparked the need to enact a Bonfire Restriction, it was not because of

Plaintiff’s particular message. The Court agrees based on this record. Indeed, the Bonfire

Restriction is one part of a comprehensive set of requirements adopted by NPS-NCR addressing a

range of safety issues, including temporary tents, cooking booths, exit and emergency signage, fire

extinguishers, portable heaters and generators, and fire hydrants. Based on this record, the Court

cannot conclude that Plaintiff has demonstrated that the Bonfire Restriction was specifically

targeted at its event such that it is a content-based regulation. 4 However, the Court notes that even

if it were to apply strict scrutiny as advanced by Plaintiff, the government interest in protecting the

safety of the public is a substantial one and it appears that the NPS Fire Marshal expressed safety

concerns specific to Plaintiff’s proposal for the Temple Burn at the 2016 Vigil.

Plaintiff next argues that even if the Court determines, as it has here, that intermediate

scrutiny is applicable, the Bonfire Restriction is impermissibly burdensome on Plaintiff’s

expressive conduct. Plaintiff contends that its proposed Temple Burn is safe in light of its

4
Plaintiff’s reliance on Watters, 854 F. Supp. 2d 823, opinion clarified, No. 1:12-CV-001-
BLW, 2012 WL 2065549, is not persuasive. In Watters, the U.S. District Court for the District of
Idaho granted a preliminary injunction against the state from removing a symbolic tent city that
was part of Occupy Boise, but denied the request as to camping, sleeping, or storing camping-
related personal property at the site. The Watters Court found that the statute at issue did not
permit the state to remove the symbolic tents and that the state’s removal of the tents was “content-
based enforcement” beyond its statutory authority. Notably, the Watters Court relying on Clark
denied the request for an injunction with respect to the restrictions on camping, sleeping, or storing
camping-related personal property at the site. Here, there is no dispute that Plaintiff’s proposed
Temple Burn does not meet the requirements of the Bonfire Restriction and, as such, Plaintiff
cannot demonstrate that the government is participating in “content-based enforcement.”

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successful completion of a Temple Burn during the 2015 Vigil and because DC FEMS officials

have expressed their ability to extinguish the proposed Temple Burn at the 2016 Vigil if the need

arose. The Court is not persuaded by Plaintiff’s argument for the following reasons. First, the

proposed Temple Burn this year is significantly larger than the Temple Burn at the 2015 Vigil.

Indeed, the 2016 structure is double the height of the 2015 structure and will result in

approximately 75% greater bonfire size from the 2015 structure. Pl.’s TRO & PI, Ex. 1 ¶ 11 (Decl.

of Michael Verdon). The fact that there was no damage caused by the Temple Burn last year is

not indicative of the fact that there will be no issue this year. Second, on the record before the

Court at this time, there appears to be, at best, conflicting information regarding the safety of

completing the proposed Temple Burn. Indeed, DC FEMS officials have expressed that they can

extinguish the fire if the need arises, but have expressly indicated that they defer to NPS regarding

the issuance of permits to authorize the fire. NPS has enacted a regulation and Plaintiff’s proposal

does not comply with that regulation. The NPS Fire Marshal has reviewed Plaintiff’s proposed

Temple Burn and expressed safety concerns specific to that proposal and, as such, has declined to

issue a permit.

In essence, Plaintiff appears to be asking the Court to conclude that Defendant must revert

to its earlier policy of generally banning fires altogether but granting exemptions in some instances

(and, presumably, that NPS must grant an exemption in this particular circumstance). “[T]hese

suggestions represent no more than a disagreement with the Park Service over how much

protection the core parks require or how an acceptable level of preservation is to be attained.”

Clark, 468 U.S. at 299. This Court’s application of the First Amendment to the instant facts does

not “assign to the judiciary the authority to replace the Park Service as the manager of the Nation’s

parks or endow the judiciary with the competence to judge how much protection of park lands is

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wise and how that level of conservation is to be attained.” Id. Accordingly, the Court concludes

that Plaintiff has failed to establish a substantial likelihood of success on the merits both facially

and as applied and this factor tips in favor of denying Plaintiff’s request for preliminary relief.

B. Irreparable Harm

In its briefing, Plaintiff argues that it will suffer an irreparable harm if the request for a

preliminary injunction is denied because “the Temple Burn will be banned, thus ruining a year’s

worth of planning irreparably.” Pl.’s PI & TRO at 15. While it appears that Plaintiff will suffer

some harm if it is not permitted to execute its Temple Burn in the manner it planned, the Court is

not convinced that this meets the “high standard for irreparable injury.” Chaplaincy of Full Gospel

Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). Indeed, Defendant has indicated that it

will permit Plaintiff to conduct a burn as part of its event, but the burn must meet the size

limitations of the Bonfire Restriction. As such, the Court concludes that this factor is in equipoise. 5

C. Public Interest and Balance of Equities

In evaluating a request for preliminary relief, the Court “‘must balance the competing

claims of injury and must consider the effect on each party of the granting or withholding of the

requested relief.’” Winter, 555 U.S. at 24 (quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S.

531, 542 (1987)). “‘In exercising their sound discretion, courts of equity should pay particular

5
The Court does not consider the argument that Plaintiff has demonstrated irreparable
injury because it has alleged a threatened constitutional deprivation, because this argument has not
been advanced by Plaintiff. See Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013). However,
the Court notes that even if it were to accept that Plaintiff has demonstrated that it will suffer an
irreparable injury if relief is not granted, it would not alter the Court’s conclusion that preliminary
relief should be denied in light of its balancing of the four factors including the Court’s finding
regarding Plaintiff’s failure to demonstrate its likelihood of success on the merits. See Wrenn v.
District of Columbia, 167 F. Supp. 3d 86, 103 (D.D.C. 2016) (“[A]n alleged constitutional
violation may be enough to satisfy the irreparable injury prong. However, such an allegation is not
determinative of the Court’s assessment of the balance of the equities or of the impact on the public
interest or, ultimately, of the outcome of the preliminary injunction analysis.”).

15
regard for the public consequences in employing the extraordinary remedy of injunction.’” Id.

(quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)).

Plaintiff argues that the balance of equities tips in favor of granting its request for an

injunction because it is “an all-volunteer, not for profit community organization, [that] has

diligently strived in good faith to meet all of NPS’s requirements, despite the failure of the Parks

to act with similar consideration and organization.” Pl.’s TRO & PO at 15. Plaintiff also argues

that it is in the public interest to grant its request because “[t]he nation will benefit as a whole from

this powerful symbolic act of love and collective healing.” Id. at 16. Defendant argues that these

factors favor denying the request for a preliminary relief because of the interest in ensuring that

there is not a burn that is larger than one which has been deemed to be safe by NPS.

Here, Plaintiff has advanced an interest in using its proposed Temple Burn to communicate

its message related to veterans’ and PTSD survivors’ access to treatment. Defendant also has

advanced an interest in protecting the public safety by restricting the size of bonfires on the

National Mall. Accordingly, the Court finds these factors are in equipoise.

IV. CONCLUSION

For the foregoing reasons, the Court finds that Plaintiff has failed to establish that it has a

substantial likelihood of success on the merits. Moreover, the Court finds that the factors of

irreparable harm, balance of equities, and the public interest are in equipoise. Accordingly, the

Court DENIES Plaintiff’s [2] Application for Temporary Restraining Order and Preliminary

Injunction.

An appropriate Order accompanies this Memorandum Opinion.

/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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