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12/29/77 United States of America v. District of Columbia

December 29, 1977

UNITED STATES OF AMERICA

v.

DISTRICT OF COLUMBIA, APPELLANT; DISTRICT OF COLUMBIA, ET AL., APPELLANTS

v.

LANDMARK SERVICES, INC., APPELLEE 1977.CDC.288



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeals from the United States District Court for the District of Columbia (D.C. Civil 75-2148 and 75-1798).

APPELLATE PANEL:

Leventhal, Mackinnon and Wilkey, Circuit Judges. Opinion for the Court filed by Circuit Judge Wilkey.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY

The National Visitor Center Act, as amended, *fn1 ("the Act") authorizes the Secretary of the Interior to provide certain kinds of transportation services between Federal areas within the District of Columbia. The Act further provides that such services "shall be under the sole and exclusive charge and control of the Secretary [of the Interior]." *fn2 This is an appeal by the District of Columbia from a judgment of the District Court (Sirica, J.)3 holding that the Act precluded application of certain local District of Columbia laws to Landmark Services, Inc. ("Landmark"),4 a private corporation operating a bus shuttle service between the Mall5 and a parking lot at Robert F. Kennedy Memorial Stadium6 pursuant to a contract with the Secretary of the Interior. These local laws required the registration and inspection of motor vehicles, the licensing of tour guides, and the certification of foreign corporations.

We are in general agreement with the District Court's analysis of the issues, with two exceptions; hence, we modify and affirm the District Court's judgment. The purpose of this opinion is to identify and place the law on these latter two issues in what we deem the correct posture. I. BACKGROUND

The Secretary of the Interior is responsible for maintaining the national parks, and for providing services for their public enjoyment.7 In particular, the Congress has conferred on the Secretary "exclusive charge and control" over the Mall and other parks in the District of Columbia.8

Since 1967 the Secretary, pursuant to this broad authority, has provided within the Mall so-called "interpretive visitor transportation services" which are simply bus tours with vocal commentary. These narrative tours have been provided by Landmark Services, Inc., a private corporation under contract with the Secretary. In 1968 the Supreme Court held in Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Commission9 that these Mall tour services were subject solely to the regulation of the Secretary. This immunity from local regulation, however, was held -- in the absence of further specific Congressional authorization -- to be limited to areas, such as District of Columbia parks, which are under the "exclusive charge and control" of the Secretary.

First in 1968 and then again in 1973, the Secretary requested that Congress expand his authority to provide the public with interpretive transportation services beyond the Mall. In 1973, as part of an amendment to the National Visitor Center Facilities Act, the Secretary's request was granted. By Act of 6 July 197310 Congress amended the National Visitor Center Act of 1968, authorizing the Secretary to provide

interpretive transportation services between or in Federal areas within the District of Columbia and [its] environs, including, but not limited to, . . . the Mall . . . and such other visitor facilities as may be established pursuant to this chapter.

The amendment further directed that11

such interpretive transportation services shall, notwithstanding any other provision of law to the contrary, be deemed transportation by the United States and shall be under the sole and exclusive charge and control of the Secretary [of the Interior].

In January 1975 the Secretary, acting pursuant to this amendment (hereinafter "Section 804"), determined that interpretive transportation services between the Mall and a parking lot at the Robert F. Kennedy Stadium would be desirable to facilitate visitation and to insure proper management and protection of the Mall.12 Thereafter the Secretary negotiated with Landmark an amendment to its contract expanding existing shuttle services to include a designated route between the Mall and the Stadium parking lot.13 The Stadium and its parking lot are located in Anacostia Park, which, like the Mall, is a park in the District of Columbia under the "exclusive charge and control" of the Secretary. A distance of approximately 2 miles separates the Mall from that portion of Anacostia Park on which the Stadium is located. The Mall-Stadium shuttle route, therefore, traversed streets within the jurisdiction of the District of Columbia government.

On 13 October 1975 Landmark started the Mall-Stadium shuttles. In operating these services, however, Landmark refused to comply with the following local ...


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