Catharsis on the Mall, LLC v. Jewell
217 F. Supp. 3d 154
| D.D.C. | 2016Background
- Catharsis on the Mall, LLC (Plaintiff) organizes an annual multi-day vigil on the National Mall that in 2015 included a ceremonially burned wooden “Temple”; NPS issued a permit for the 2015 burn after safety review.
- In August 2016, NPS–National Capital Region adopted new “Outdoor Event & Tent Requirements,” including Section 16 limiting bonfires to a maximum fuel area of 5 ft. diameter by 5 ft. height (the Bonfire Requirement), mirroring the D.C. fire code.
- Plaintiff’s 2016 Temple of Rebirth is larger than the 2015 structure and would exceed the new size limit; Plaintiff’s request for an exemption was denied after an NPS safety review and meeting with DC FEMS and NPS fire officials.
- DC FEMS representatives stated they could extinguish the burn if needed but deferred permitting authority to NPS; NPS fire marshals expressed safety and turf-protection concerns and declined to permit the larger burn.
- Plaintiff sued, seeking a temporary restraining order and preliminary injunction to block enforcement of the Bonfire Requirement (facial and as-applied), and to allow the planned burn on November 12, 2016.
- The Court held an on-the-record hearing and denied the TRO/PI, concluding Plaintiff failed to show a substantial likelihood of success on the merits and that other preliminary-injunction factors were at best in equipoise.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Bonfire Requirement is content‑based (triggering strict scrutiny) or a content‑neutral time/place/manner restriction | The rule is content‑based because it applies to “ceremonial” bonfires and was adopted in response to Plaintiff’s 2015 burn | The rule is content‑neutral: safety-driven, applies to all burns, part of broader safety regulations | Court held the restriction appears content‑neutral and not targeted at Plaintiff’s message; intermediate scrutiny applies |
| Whether the Bonfire Requirement is narrowly tailored to serve a significant government interest | Plaintiff: ban (or size limit) is overly burdensome and unnecessary because prior burn was safe and DC FEMS can manage risks | NPS: size limit is narrowly tailored to protect public safety, park integrity, and mirrors local fire code; alternatives and permits exist for compliant burns | Court held Plaintiff failed to show likelihood of success; size limit is narrowly tailored to safety and leaves alternative channels |
| As‑applied claim (denial of exemption) — was denial arbitrary or viewpoint retaliation? | Plaintiff: denial was retaliatory and arbitrary given DC FEMS’ willingness to manage the burn | Defendant: NPS fire marshal raised safety/turf concerns specific to this larger structure; denial was safety‑based, not retaliatory | Court found record did not show targeted, content‑based retaliation; NPS safety concerns credible |
| Whether preliminary relief is warranted (irreparable harm, equities, public interest) | Plaintiff: loss of the planned burn would irreparably harm expressive program and community planning | Defendant: public safety and park protection weigh against allowing an oversized burn; NPS offered to permit a compliant burn | Court held irreparable harm, public interest, and balance of equities are in equipoise and, combined with lack of likelihood on merits, denied TRO/PI |
Key Cases Cited
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standard for preliminary injunctions requires showing of likelihood of success and irreparable harm)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (test for content neutrality and validity of time, place, manner restrictions)
- Clark v. Community for Creative Non‑Violence, 468 U.S. 288 (1984) (upholding park regulation as narrowly tailored to protect park resources despite effect on expressive conduct)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content‑based regulation defined by whether law draws distinctions based on message)
- Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) (discussing Winter and preliminary injunction standards)
- Mazurek v. Armstrong, 520 U.S. 968 (1997) (preliminary injunctions are extraordinary remedies)
- Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) (quotation of preliminary injunction factors)
- Abdullah v. Obama, 753 F.3d 193 (D.C. Cir. 2014) (movant must show all four preliminary‑injunction factors)
- Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) (sliding‑scale approach to preliminary‑injunction factors)
- Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (regulation responding to legitimate government concerns may be upheld even if imperfect)