Harlan L. Jacobsen v. United States Postal Service

Cir.1985). ardous substances from the Mid-South site. The district court credited the testi Appellants argue undisputed it is mony expert witness Dr. Harbison and Mid-South site has been and is the reposito- the methodology found appellants’ expert ry products for waste processing, from wood suspect. Id. at 19. The district court specifically, compounds, PCP, creosote adopted Dr. Harbison’s view that no release They argue CCA. further that all of these of hazardous substances from the Mid-South substances have been “released” into en- site had occurred and that there vironment from the Mid-South site have threat of such a release. Id. at 44. After a migrated off the site ground means of record, careful review of the we hold the water, surface water and air-borne dust. finding district court’s of no or release threat Appellants samples contend that water taken of release is not clearly erroneous. PCP, from the Mid-South site contain arsen- agree We holding in Amoco that ic, and chromium and that the district court there is no quantitative minimum require- in finding erred there been no had release or ment to establish a release or threat of a threat of release because the test levels were release of a hazardous substance under lower than the test in the levels Safe Drink- Amoco, CERCLA. 668-69; 889 F.2d at see Appellants Water Act. admit the test Alcan, also Amoco, 964 F.2d at 259. In low, levels are but they argue that under court found that there had been a release CERCLA there is no quantitative minimum because disposed defendant had of hazardous requirement for a release of a hazardous substances on the gas was ema- substance, is, any release of a substance nating from the hazardous substances. 889 (or on the List Hazardous Substances Alcan, F.2d at 668-69. In parties stipu- other or federal state environmental stan- lated that there had been a release. 964 dard) violates CERCLA as a matter of law. 259, case, F.2d n. present 9. unlike agree Ehlco and Mid-South Alcan, that there is Amoco and the issue was whether or quantitative no minimum requirement for a not there had been release at all. substances, release of hazardous argue but In view of our holding that the district required “factual inquiry” is in order de finding court’s that there had been no release particular termine whether the justi hazard release, or threat of we appel- need not reach any response fied action and. therefore lants’ second Accordingly, issue. judg- “caused” the response incurrence of costs. ment of the district court is affirmed. See, e.g., Borden, Inc., Amoco Oil Co. v. (5th Cir.1989) (Amoco); F.2d 669-70 see

also United States v. Alcan Aluminum (3d (Al

Corp., Cir.1992) 964 F.2d ).

can argues Mid-South regardless Amoco, can be no liability CERCLA JACOBSEN, Harlan L. Plaintiff- quantitative unless some level has been Appellant, reached, posing a threat to the argues environment. appellants Mid-South UNITED SERVICE, POSTAL STATES failed to prove that substances came Defendant-Appellee. from the opposed Mid-South site as na No. 89-16054. chromium, ture copper, because and arsenic naturally. occur argues Ehlco there is no United States Court Appeals, liability cleaning up naturally CERCLA Ninth Circuit. occurring discharges substances or for pur Argued and Submitted March 1992. permits, which, suant to state federal it July Decided 1992. argues, is occurred what here. April As Amended

We review the district court’s factual finding that there was no release or threat clearly

release to if it Rog see erroneous. Masem, (8th

ers v.

I newspa- singles publishes Harlan Jacobsen surrounding The events Arizona. pers in place- have to do with appeal vending machines newspaper ment locations. at three Post Offices States placed his Nebraska, Lincoln, walkway lies post office on the rack lot. parking and its post office between complained some customers Apparently, Jacob- publication. the nature about result, stand paper his as a claims sen shortly by government, the removed was in racks on sale for after, newspapers all the perimeter to the walkway were moved city sidewalk. Jacobsen, pro se. L. Harlan Dakota, Aberdeen, General South In the Arkfeld, Atty., Phoe- Asst. U.S. R. Michael Building, Jacobsen Administration Services defendant-appellee. AZ, nix, for newspapers near his to vend again wished the make-up of physical The post office. that a munic- building is such of that exterior of of the terrace front runs in ipal sidewalk from steps that lead building. There are the WISDOM,* BEEZER Before: terrace, the district which to the the Judges. Circuit TROTT’ accommodate were “intended found court the office for the from to and traffic TROTT, Judge: Circuit was Jacobsen postal business.” of conduct con- placed newsracks Jacobsen Harlan order by government officials told Single or Solo newspapers Scene taining his ter- rack on raised newspaper his leave federal build- outside locations RFD three licensed under race, have he would He Post Offices. housing States ings 41 C.F.R. Act. Under Randolph-Sheppard Ninth injunction in the preliminary awon vending (1991), commercial § 101-20.308 his of removal governmental against Circuit operating exception prohibited with sidewalks, perimeter on located newsracks pursuant by the blind conducted stands Appeals, The Court fora. which 20 U.S.C. Act. See Randolph-Sheppard court the howéver, to the district remanded (1988). § 107 walkways ingress-egress of whether question 1985, Jacobsen September court, On re- on The district public fora. were the stairs bottom of at the ordered, newsrack but his injunction as mand, issued Jacob- September terrace. On fact, were, on the located the newsracks found for newsrack to remove was called sen walks, held to be which it ingress-egress then was newsrack The safety reasons. those racks The removal fora. approxi- location to a by Jacobsen injunc- moved scope of to violate found not was away from feet mately ten or fifteen Appeals. by the Court contemplated tion municipal sidewalk terrace Randolph- raised found court also district pole. Oth- to a currently chained it is where Act, requires percentage which Sheppard terrace, not newspapers on the raised er on federal vendors receipts of Jacobsen, in com- permits have by published First blind, not violate did given Randolph-Sheppard Act. pliance with We affirm. Amendment. * Wisdom, sitting by designation. Senior Unit- John Minor Honorable Circuit, Judge the Fifth Circuit States ed Dakota, Fargo, building North preliminary injunction was issued on issue also a General Services 27,1987, Administra- May 15, 1987, and on June building. building tion This owned has two contempt filed against motion Post entrances, immediately and each entrance is al Service for the removal of one of the adjacent to a sidewalk. The them- entrances newsracks, seeming injunc violation of the granite selves surrounded marble or hearing tion. injunction A on the and con rising slab ten inches above the sidewalk. tempt was held motion on November placed, Jacobsen’s newsracks were at differ- A contempt second was served motion times, granite/marble part ent on the on February and the building railing and fastened to a next to the 1, 1988. answered on March motion However, lobby times, entrance. at other finally filed on March 1988. On June they concrete, set on partially were on the 1989, the permanently enjoined district court federally part owned Origi- the sidewalk. removing the news- nally, placed along rack was side perimeter sidewalks, racks from the but de Minneapolis Tribune rack. After the injunctive nied ingress-egress relief for the government forced Jacobsen to move his walkways. respect With to the first con rack, removed all the other tempt concerning motion Post Lincoln racks from the front of the build- sidewalk, Office the district court concluded ing. entirely All newsracks are now on the walkway that the was an ingress-egress way municipal sidewalk. government and the pre did not violate the preliminary injunction is confined to liminary injunction by removing the news- the three locations described Howev- above. racks. The contempt second motion not was er, court, in his brief to this Jacobsen also addressed. post mentions five other office locations respect With to the three locations at issue Moines, where he maintains newsracks —Des appeal, in this the district court found the Iowa; Falls, Dakota; Rapid Sioux South location of Jacobsen’s newsrack in Fargo was Dakota; Deadwood, City, South South Dako- hazard, safety a partly on the federal ta; Atchison, and Kansas. It is evident building, and was not a forum. he mentions these other locations not an Aberdeen, the location of his newsrack the on granted effort to appeal, be relief in this but front of the-stairs was found to simply examples to show ruling of how a hazard, safety be a the terrace was found to against him would affect other locations. (cid:127) nonpublic, be and the Randolph-Sheppard events, sought Because of these Jacobsen Act was found not violative of the First injunction an against government’s the re- Lincoln, Amendment. the location of the Aberdeen, Lincoln, moval his newsracks at newsrack was found to be on an ingress- Fargo. January and On the district egress walkway nonpublic forum. —a preliminary injunction court a denied and appeals lifting injunc- Jacobsen temporary restraining sought by order Ja- respect tion with placement against cobsen the United States Office. Post newsracks district court found were ruling Circuit Ninth overturned this placed in ingress-egress locations. prelimi- the district court to a Jacobsen directed “issue appeals nary also a second motion injunction ordering government contempt any regarding that he filed newspaper appel- to the location of a remove rack of the news- However, at lant which does not obstruct or rack Sioux Falls. access endan- this motion ger pedestrians any by is on was not on which ruled district court. perimeter by govern- sidewalk owned adjacent

ment to a office.” v. Jacobsen II Serv., United States Postal 812 F.2d (9th Cir.1987). However, a 1154 the Ninth “When district court holds a restriction constitutional, speech Circuit remanded to the court the we conduct an inde- district walkways pendent, ingress-egress issue of whether de novo examination of the facts.” Munro, subject Daily should also be preliminary Herald Co. v. (9th Cir.1988) (citation

injunction. omitted). Id. 383 “We 654 (1985). public fora Traditional 567 L.Ed.2d record review independent an conduct by long tradition which places “those actual- question speech be sure that devoted have been fiat by category, and protected within

ly falls omit (quotation Id. assembly debate.” factors constitutional whether determine fora, but may ted). create Gaudiya applied.” been properly have Francisco, create a government does City San Soc’y “[t]he v. Vaishnava Cir.1991) limited by permitting (9th (quotation inaction forum F.2d a intentionally opening “to requires discourse, only by us omitted). case instant but juris- discourse.” Amendment of First principles nontraditional apply omitted). may (citation facts of case.” not “infer specific We prudence to Id. Phoenix, F.2d to create City intended ACORN omitted). Cir.1986) (9th (quotation nature of when the public forum activity.” Id. expressive inconsistent may ban complete nonpublic, If a forum Ill proper function imposed where A activity. by expressive disrupted ty would be (citing post ACORN, Green local “the F.2d at argues that 2686). country across burgh, 453 U.S. in communities office to communication on as dedicated looked [sic] Kokinda, in opinion in plurality Under the community these In each among people. out- the sidewalk whether to determine order Post to U.S. leading sidewalks public owned forum, we must side Amendment open First should Offices postal layout of the physical “the evaluate are the sidewalks much as as activities governmental express ... its premises building.” Supreme Court U.S. front Note, An, Speech, Free purpose.” Mildred Court Supreme plurality least a At Forum and the Public Post Sidewalks Office en leading to the “The sidewalk disagrees: Kokinda, 497 v. States Doctrine —United traditional is not the post office try of the 3115, 571 720, 111 L.Ed.2d 110 S.Ct. U.S. Perry to referred forum sidewalk public 635, 643 (1990), Harv.C.R.-C.L.L.Rev. 26 Educators’ Perry Local v. Ass’n [Educ. Kokinda, (1991). Supreme Court In 948, 37, 74 L.Ed.2d Ass’n, S.Ct. 103 460 U.S. of a parts of exterior what dealt with Kokinda, 497 (1983) v. States ].” United 794 public of traditional areas constitute 3120, 3115, 111 727, 720, 110 S.Ct. U.S. nonpublic: fora, parts are what (1990) “The Govern (plurality). L.Ed.2d 571 not have at issue does postal sidewalk The not auto property ownership of does ment’s tra- public of sidewalks the characteristics public.” to matically open activity. The expressive ditionally open to (citing 725, at 3119 at 497 Id. U.S. parallel that runs Greenburgh municipal sidewalk v. Council Serv. Postal States public passage- is a this road in case 101 Ass’ns, S.Ct. 453 U.S. Civic not (1981)). way. Postal Service’s More 2685, 517 2676, L.Ed.2d 69 Rather, only it leads thoroughfare. scrutiny a when such over, level is a lower the front door area to regula parking one of from the is not function postal sidewalk pro [T]he a as licensing, but office.... tion, lawmaking, or for the solely provide & Res (citing constructed Id. was owner. prietary Cafeteria 886, postal engaged McElroy, U.S. individuals passage 367 v. Workers taurant 1749, 1230 1743, L.Ed.2d 6 896, business. 81 S.Ct. (1961)). 727, at 3120. Kokinda, 110 S.Ct. at 497 U.S. walk- ingress-egress approach, this Under three has defined Supreme Court fora, the district public ways are not forum, traditional “the types of fora: injunction can that an determination court’s des by government created public forum sidewalks perimeter only apply to Corneli forum.” nonpublic ignation, ac- legally correct walks Fund, ingress-egress 473 & Educ. Legal NAACP v. us Def. plurality. 3449, Kokinda cording to the 3439, 87 802, 788, 105 S.Ct. U.S.

655 However, only in Kokinda was' plu decision Ninth Circuit has not taken being controlling. ralities as In the decision of the Court. Tanner v. plurality a and not Heise, (9th 572, Cir.1989), 879 F.2d 581 n. 8 analysis, Kennedy’s opinion in an con- Justice the Ninth Circuit stated: judgement, curring in the “differs essen- The district court analysis. erred its characteriza respects” plurality’s from the tial , Supreme tion of 737, precedent. Court Kokinda, 497 U.S. at 110 S.Ct. at 3125 portion [City City Oklahoma v.] J., concurring). Kennedy (Kennedy, Justice 808, 2427, Tuttle U.S. [471 105 S.Ct. 85 public’s postal proper- that “the use of stated opinion 791] L.Ed.2d from which the dis purposes ty for communicative means that trict court Supreme concluded that surrounding walkways may appro- be an single Court had “made clear” a inci rights priate place for the exercise of vital activity dent of unconstitutional is not suf However, though it expression.” Id. even impose ficient liability under section may a “the Government intend proof 1983 unless of that incident demon impose some limitations on the forum’s strates that it was underlying caused an Kokinda, Kennedy In felt use.” Id. Justice joined policy only by unconstitutional necessary ... “it to make a [was] precise Justices_ plurality In a subse determination whether this sidewalk and oth- quent case ... the Court was unable to forums; ers like it are majority achieve position approv either view, my postal regulation at issue meets disapproving language. applied the traditional standards we have Bates, 388, United States time, pro- place, and manner restrictions of (9th Cir.1990), n. argu[ed] “the dissent expression.” Id. 497 at tected U.S. [, that the decision in [United States Jorn v.] 3125-26.1 400 U.S. 91 S.Ct. 27 L.Ed.2d 543 dissenting justices in (1971) The four Kokinda plurality.” a mere Id. was] Then the approach to this issue and took different majority argue teachings went on to that the fora, concluded that all sidewalks are required particular holding. of another case Stores, colleagues Inc., period. Lucky Justice Brennan and his In Garibaldi v. Food (9th T367, Cir.1984), rejected plurality’s approach as firmly F.2d 1372-73- cert. de nied, pigeonholing.” “doctrinal Id. U.S. unrestrained (1985), the Ninth L.Ed.2d 839 Circuit tried to at 3128. 497 U.S. S.Ct. ground plurality view, find common between government property dissent’s left the and concurrences. forum, public open to the is a and anyone rightfully there “carries with Thus, who is yet give Supreme the has to Court right to him as elsewhere the constitutional ingress- us a definitive answer on whether express orderly in an fashion.” Id. egress walkways his views are fora.2 Faced Texas, situation, prece- (quoting v. 318 turn to our own Jamison U.S. this we with (1943)) guidance. . L.Ed. 869 dents for 63 S.Ct. 87 case, airports nonpublic regulation While we at issue is the that fora. 1. In the instant the held may presume § Supreme that in Kokinda. Title 39 C.F.R. 232.- same as that now the Court would 1(h) (1991) prohibits "[s]oliciting, electioneering, holding post for a is a have five votes debts, advertising.” collecting vending, Ko O’Connor, nonpublic currence, Justice in her con Democratic Na kinda involved volunteers for the distinguish airports from is careful Policy who had a table for tional Committee - U.S. at -, post S.Ct. at offices. See id. 112 books, contributions, selling soliciting dis J., (O’Connor, concurring); also 2711 see infra Kokinda, tributing literature. 497 U.S. at 720- (discussion concur note 4 of Justice O’Connor’s case in 110 S.Ct. at 3117-18. The instant Moreover, rence). jurisprudence in the this area prohibition vending personal volved the —not ISKCon, making quite muddied with it is now we do not decide this case solicitation. Because exactly Supreme comprehend how the difficult to concurrence, Kennedy’s on the basis of Justice concerning newsracks Court would rule in case reach the of whether section we do not issue offices, post opposed as to solicitation and at time, 232.1(h) place, and manner is a reasonable leafletting agree airports. We with Justice regulation regards as it newsracks. offices, which are often small O’Connor that very buildings single purpose, are devoted to a Soc'y In International Krishna Conscious for Therefore, -, ness, Lee, airports. we continue different from Inc. v. - U.S. ("ISKCon”), (1992) case. Kokinda as closer to the instant five Justices to follow 120 L.Ed.2d 541 as non- qualify enough to Kokinda similar Cent. County Monterey Democratic In , that the Although stresses Jacobsen public. Postal States v. United Comm. Serv. actually with is continuous public sidewalk (9th Cir.1987), that certain held we F.2d 1194 sidewalk,, it from distinguishing federal In so the public fora. walkways were postal Kokinda, federal and between break the rule adopted and followed holding, we obvious, and once is nonfederal sidewalks to overcome “allows the clearly a is separate, two sidewalks public fora sidewalks are presumption that federal land lot between them. obviously parking federally owned sidewalk when the clearly sidewalks, is demarcated. appris municipal separate is from of the difference.” approach ing those who Dakota, Aberdeen, South Grace, 461 (citing United States at 1197 Id. pole on to a currently chained newsraek 1702, 1708-09, S.Ct. U.S. sidewalk, feet ten fifteen municipal (1983)).3 Tang, in his Judge L.Ed.2d leading up office. stairs concurrence, anticipate Kokinda seemed removing the racks injunction against by the stressing “this result mandated location, at that newsraek apply to the would walkway on layout particular physical keeping with government is satisfied and the Id. at premises.” service postal however, Jacobsen, there. newsraek J., concurring). (Tang, on the either place his newsraek wishes to newspapers or on the with the other Therefore, terrace this circuit the rule of directly next to the stairs public sidewalk plurality the Kokinda consistent —feder the ter terrace. Because leading up to the mu obviously separate from the al sidewalks clearly be considered race would postal cus devoted to nicipal sidewalk gov plurality, the under the Kokinda Accordingly, in order nonpublic. tomers regu may regulate area. ernment of the was a violation it to determine whether satisfy the re requiring lation government to remove Ja injunction Randolph-Sheppard Act is newsracks, quirements each we must evaluate cobsen’s compli just regulation. Whether such layout, determine physical location’s Act is un Randolph-Sheppard rights ance with First Amendment whether Jacobsen’s next will be discussed constitutional any locations of the three were violated section. appeal. in this issue placement of the case, respect to the Lincoln, With Nebraska steps of the just in front of the municipal machines separated from post office is terrace, clearly is on a placement this area. Jacobsen by parking traditional sidewalk —a walkway on federal on the his newsracks forum. created a placement claims post office—not directly in front land entry it obstructed safety hazard claims because sidewalk. Jacobsen municipal on the the exhibits A review of pedestrians. record for the submitted “[pjhotographs placement of desired reveals Jacobsen’s side where the.Lincoln reflect difference potential a just the stairs Hardly rack below angle. municipal at an joins the

walk Moreover, moving the rack a safety hazard. distinguish public needs the indication way of the of away place it out feet ar few traditional between —to post up the walking stairs people sidewalks special Federal oasis eas and some per It is a alternative. office—is reasonable normal from and excluded reserved somehow to move the rack for the missible A review of activities.” Amendment First v. International however, safety record, for reasons. re in the photographs Heffron Inc., Consciousness, Soc’y is Krishna is on a sidewalk rack veals that the municipal side U.S. not a clearly and a federal (1981) (“As matter, it general a layout is L.Ed.2d physical walk. We hold "whether pelled order to determine to remand in County on March Monterey was decided 3. as to appropriate is preliminary injunctive relief 1987. on March was decided 1987. Jacobsen walkways.” 812 F.2d at ingress/egress Monterey Coun- decided been after Had Jacobsen might have felt com- panel ty, the Jacobsen forum, protecting space. nonpublic This is a that a State’s interest and is not is clear injunction. protected-by persons using ‘safety and convenience’ of objec- governmental forum is a valid a the extent that the newsrack was To omitted)). (citation tive” municipal on the sidewalk —with its counter Dakota, is the most difficult Fargo, granite North weight on the slab or chained to the part and where we com- grill location to evaluate on a metal al —it Determining whether pany though safety with the dissent. we conclude it was a hazard. is, space nonpublic or admitted- The record indicates the other racks located very along gran An examination of the ly, a close call. sidewalk were either presented portion building in the district court leads ite of the or in the alcove exhibits overhang. call from the dissent. under the We conclude there was to make a different us adequate justification moving Jacobsen’s directly in of the The sidewalk front newsrack, which was situated in the middle sidewalk, municipal but the walk- office is a sidewalk, way of the to an area out of the railings way overhang, which has under the traffic, lamp post, foot next to the ten about office, leading to the door of the away feet on the other side sidewalk. rack is property. Jacobsen’s now federal Héintzman, building manager As Patricia a municipal light pole a on the placed next to stated, Fargo, for the G.S.A. “[t]here clearly permissible and on sidewalk —this is heavy during traffic there at various times public property. The district court order day somebody bumped could have placement news- protects the current of that easily.” placement into it rather conclude, however, that the de- rack. We counterweight of the concrete block are within the sired locations of the newsrack granite chains on the slab seems to show that federal enclave. protruding his device was too far into placed rack either Jacobsen first his permissible govern sidewalk. It was for the ,of building, granite ledge on the public safety. ment to move the rack for counterweight and chains concrete Heffron, 452 U.S. 101 S.Ct. at 2565. granite ledge with his newsrack on the on the curb, just placement The current on the ledge granite part is a sidewalk. entrance, across the sidewalk from the is a building nonpublic fo federal and is'thus alternative. reasonable rum. locations, In the above three newsrack restricted access to

The second location where fora, nonpublic an next to one of the we note that the was set back in area entrances, curtilage but within has

building. Although separated park right to make distinctions access [t]he lot, County, Monterey as Kokinda subject matter.... on the basis These line of demarcation there is a clear may impermissible pub- in a distinctions entry distinguishes the federal sidewalk that inescapable lic forum but are inherent way municipal sidewalk. The con process limiting in the fo- overhang space under the is divided tested compatible the in- rum to activities grill partitions by pillars metal that ex property. purpose of the tended property. This to the end of the federal tend evaluating touchstone for these distinctions the en space is a created because light alcove they are reasonable in is whether trance was set back from the sidewalk. purpose the forum at issue which serves. person ap- that a would be

We conclude (quoting Monterey County, F.2d at 1198 property prised of the fact she was on federal 957). Perry, at 103 S.Ct. at the over- 460 U.S. inside an alcove tucked under when Fargo in Currently are total bans and by pillars, hang and in the area defined the against placement of newsracks on If Lincoln grills, line in the sidewalk. metal and the government property. The post the not have business with one did office, would be allowed on the intentionally deviate claims that Jacobsen have to one would comply he to with terrace in Aberdeen were within this path from one’s order walk the from income obtained vending machine A Post Act. Office Randolph-Sheppard the on Federal vending machines operation of banning where purpose single is a (1) licen- to the blind accrue shall Randolph-Shep- newsraeks, the except under facility on such vending operating a see Act, There is no indica- is reasonable.4 pard (2) in the event there is property, or Ser- the Postal case that in the instant tion facility on such operating licensee blind view- discourage intended to vice agency in to the State property, such Therefore, court order the district points. property is locat- the Federal State whose agency re- any “enjoining Government ed. by plain- rack owned moving any newspaper 107d-3(a) (1988). § 20 U.S.C. any perimeter on and tiff regulation requiring vendors The adjacent and by United States owned for the to a fund to contribute newspapers rack and which post office a United States prop on federal to all vendors applies blind endanger pedes- access does obstruct neutral. difference content The erty is and order, with trians,” consistent proper is a that is not Constitution regulation between yet had although Kokinda Kokinda — is, aimed “the first is is that al one that and court time the district at the been decided impact the conduct communicative at the Monterey County. The district order —and unless unconstitutional proscribed, it will be with re- the issues decided properly court message trig shows that three locations. spect to above and regulation presents ‘clear gering the ,. is aimed at danger’ -. the second present B conduct, impact it is the noncommunicative constitutional, applied Act, [to as someone enacted even Randolph-Sheppard as The H. particular view].” Laurence expressing a requires § that 20 U.S.C. under airports multipurpose goes discuss how are Soc'y on to Con Krishna Lee v. International — -, sciousness, Inc., because U.S. facilities ("Lee”), curiam) not to limit (1992) Authority [has] chosen Port (per 120 L.Ed.2d control, airports [and] its under ban of distri access to Supreme total struck down Court open huge complex travelers airports. created The Court issued has literature in bution of airports house opinion af alike. per which nontravelers curiam and a one sentence cafeterias, bars, restaurants, coffee ex snack Circuit for reasons the Second firmed banks, O'Connor, offices, lounges, post shops, Justice cocktail pressed in Justice ISKCon - stores, offices, clothing shops, drug telegraph Id. U.S. Kennedy, Justice Souter. and nurseries, stores, -, currency Rehnquist, shops, Justice at 2710. barber Chief S.Ct. food exchanges, Scalia, White, exhibits, advertis- joined by Thomas— art commercial Justices bookstores, newsstands, Justice O'Con- majority dental of- displays, in ISKCon minus dissented, finding the ban reasonable. private clubs. fices and nor— O'Connor, "[t]he reasonableness For Justice Id. Justice difficulty interpreting Lee is that therefore, the restrictions inquiry, is not whether opinions Kennedy’s strike Justice Souter’s preserving the speech with are consistent on airports ground that on down ban travel, they are but property for air whether rejected by explicitly position public fora—a multipur- maintaining reasonably related to Only O'Con- Supreme ISKCon. Justice Court Authority has pose the Port fora, environment that airports that nor believes deliberately Id. created." striking ban leaf- upholds down of a total inquiry case in the instant so, reasonableness doing letting airports. she J., inconsistent (O'Connor, (citing up post offices to all newsraeks is concurring) of Kokin at 2712 3115). single office. da, 720, purpose of the then at 110 at She 497 S.Ct. U.S.

659 (2d Tribe, public only Law 798 excluded from a American Constitutional when the 1988) City (citing City necessary ed. Council exclusion is compelling to serve a of of Vincent, Angeles Taxpayers 466 Los v. narrowly state interest and the exclusion is for L.Ed.2d 772 U.S. S.Ct. (quotation drawn to achieve that interest” (1984) municipal rule that forbad (upholding omitted)). public places, In “communication public property, where posting signs of may entirely prohibited.” Monterey not be political prevention candidate effect County, Supreme 812 F.2d at 1196. The . signs)) regulation posting This does that, right Court has “[t]he stated to use a among types communica not discriminate place expressive activity may public be ' respect tion based on content. With to news only weighty restricted reasons.” nondiscriminatory permis papers, taxes are Grayned City Rockford, v. 408 U.S. Minneapolis and Tribune sible. See Star 2294, 2302-03, 92 S.Ct. 33 L.Ed.2d 222 Revenue, 460 Co. v. Minnesota Comm’r of (1972). right newspapers by The to sell 1365, 1369-70, 575, 581, U.S. 103 S.Ct. newspaper vending means of machines is (1983) (“It beyond dispute L.Ed.2d protected by the First Amendment. Lovell , Federal that the States and the Government City Griffin, 303 U.S. subject newspapers generally applica can to (1938) (“Liberty 82 L.Ed. 949 regulations creating economic without ble circulating is as essential to freedom as problems”). constitutional omitted)). liberty publishing” (quotation would, If Randolph-Sheppard Act in ef original opinion Ninth Circuit fect, complete create a ban on the exercise of open question this case left of whether forum, rights public First Amendment in a it imposed “the burdens section 107d-3 justified would be unconstitutional. public that are can areas forums under these cobsen, 812 F.2d at 1154. The Ninth Circuit determined: plish a upheld ner serve and leave absolute tion of Grace, make impose a substantial “content-neutral, 1702 at al use of a traditional are no blind vendors constraints practical economically impossible newspaper compelling governmental interest.” only 1707]. prohibition or at the significant government open ample alternative channels [Constitutional] U.S. if effect of the statute is may Other narrowly ^[171] vending very be enforced handicap time, place and man- narrowly these areas “will be public forum. An least, drawn to standards.” Ja machines on the competition, 177[, on tradition- where there tailored if interest, they accom- opera- S.Ct. to Act that were Jacobsen to the. forum. his rack with the others Aberdeen. al case cations —in dolph-Sheppard panel assigned to this case. Even if the dolph-Sheppard Randolph-Sheppard Act were unconstitution with, respect Act on the question in a Aberdeen, forüm, We, too, however, only attempting Moreover, public sidewalk in Aberdeen. nonpublic does not to terrace — Act in Act, government in the instant regulating Constitutionality try he is welcome to fora.5 comply as did the clearly ingress-egress must leave apply apply newsracks with the only the Act to nonpublic the Ran previous invokes of the claims place Ran- open in a lo (quoting Perry communication.” Id. Fargo, Jacobsen’s rack was when Perry Ass’n v. Local Edu- Educational banned, requiring talk of the news- there was Ass’n, 37, 45 [103 cators’ 460 U.S. S.Ct. paper at the office to start dealers then (1983)). 948, 955, 74 794] L.Ed.2d abiding by Randolph-Sheppard Act. But 1153-54; through, were Jacobsen, that fell all newsracks also when see ACORN, municipal (“Speakers may moved to the nonfederal sidewalk. 798 F.2d at 1265 5, However, by, any department, agency occupied or Randolph-Sheppard Act instru- itself (including mentality ap- United States ... open possibility it could be leaves Service).” 395.1(g) § applies 34 C.F.R. plied U.S. Postal in a forum. Act (1991). building, irrespective any of whether it is property This is federal land, "means —which owned, leased, forum. real or other 660 395.32(e) (1991); § see agency.” 34 C.F.R. only at- then, Fargo, 107d-3(b)(l). If is § also 20 U.S.C. areas. nonpublic Act to apply the

tempts to be the fee would competition, then the Act blind attempt to use seems to be There 395.32(c); § income. 34 C.F.R. of the 100% Lincoln. in 107d-3(b)(l). § 20 U.S.C. fora, nonpublic respect With property which “regulations of ma “vending regulations define upheld if will be expressive conduct affect receipts after reduction as chine income” pur legitimate state rationally further they com private forum —where of costs.6 In 1200 County, at Monterey pose.” the 50% be allowed—even plete would ban omitted); Par also Planned see (quotation apply' to is Constitu fee that would Dist., County School v. Clark enthood state’s rationally to the it related tional for (9th Cir.1991) (en banc) F.2d helping the blind. in interest (“ forum nonpublie to a access over ‘[c]ontrol injunction Moreover, preliminary at subject speaker matter can be based Marcus, the Chief Conces- hearing, Robert distinctions drawn long as the identity so in the General Services Branch Officer sion by purpose served light in reasonable ” fact, is, in “50 the fee stated Administration (quot viewpoint neutral’ and are the forum commission, rather negotiated percent of a Cornelius, 473 U.S. (Emphasis gross sales.” percent than (“The 3451)); Government’s id. at 830 n. case, added.) re- the record In the instant nonpublic access to a restrict decision Aberdeen, that, a com- in such at least veals reasonable; it need not only be need quite be small. Business mission would only reason or the reasonable the most Department of Supervisor for the Enterprise omitted)). We (quotation limitation” able state Rehabilitation Vocational then, decide, regards a as must the event Solo “[i]n stated South Dakota regulation reasonable whether the agree into a contract to enter RFD would legitimate of a in furtherance its compliance the Ran- with our office with interest. anticipated we Act it is dolph-Sheppard provide “blind Act is to purpose of the per newspa- cents request a fee oí would five en- employment, persons with remunerative added.) (Emphasis per.” of the opportunities economic larging the given interpretation should be def- greater Marcus’ blind, stimulating the blind erence, interpretation of its agency’s for “[a]n self- make themselves striving to efforts 107(a). generally to a entitled regulations pursue § To own 20 U.S.C. supporting.” up- should degree of deference and high who is not is a vendor when one goal, this plainly or long it is not erroneous as as vending machine held blind, of all per centum “50 regula- language of the with the inconsistent on Federal vending machines from income Robertson, Forest Indust. competition tion.” Stone not direct property which are Cir.1991). (9th Certain- F.2d by a blind facility operated vending with a case, interpretation Marcus’ licensing ly, in the instant to the State accrue shall vendor services, operates, and main- per concern which is "50 regulation that the tax 6. states vending Federal income," machines on tains vending machine of all centum regulation of, for, department, approval or with "Vending Income” Machine defines agency, instrumentality of the United States. or as l(z). "or § It would seem that the 34 C.F.R. vendor) (other those of a receipts blind vending than paid by ... a commercial commissions case, operations on Federal vending apply machine the instant concern” would goods deducting sold working the cost property, after One on commission. Jacobsen is require regulation maintenance those (including reading service and would reasonable customary receipts pay money'through business with 50% accordance make who costs concerns), government, who vending and those over practices of commercial commissions, serviced, pay through 50% operated, money or make the machines where However, of, government. approval a de- over by, that amount maintained partment, way being interpreted instrumentality regulation is not agency, (other See dis- States, Services Administration. paid than the General or commissions vendor) vending cussion by a commercial to a blind infra. subject being prior approval ... to the and how Act is shall accurately portrays supervision responsible of the on-site official applied to Jacobsen.7 property property for the Federal Therefore, regards to Jacobsen’s with management department, agency, or instru- Aberdeen, regulation is hot in newsrack mentality, Keensing agency.” and the State overly way. in an burdensome being applied 395.35(e); § regulation 34 C.F.R. does fora, nonpublic only being applied It is appear grant considerable discretion to regu- agency’s interpretation of the given the the on-site official. lations, not even a threat to take 50% there is complains oper- the Act regulation is rea- Jacobsen does not of income. Jacobsen’s rationally legiti- uniformly. implies agency related to ate He blind sonable helping to be mate interest will allow some views distributed properly apphed court found that He claims the Act is not The district not others. blind. merely “operates publishers as a uniform tax to the other with their newsracks the Act nonpublic products part distributed on Federal within the office. applied to all property.” argument merit. lacks grants if the Act too much discretion to Even C he or the administrator when she determines admin- finally complains that the Jacobsen property, allowed federal public who is onto Act Randolph-Sheppard istrator under case, attempt there is the instant handing out has unfettered discretion Moreover, apply in a area. Act permissions to use newsracks. the record reveals no evidence of an abuse of grant Again, an official is unconstitutional to the administrator’s discretion. Ab “[I]t erdeen, Act, deny permit complies appli if with the his unfettered discretion Jacobsen grants Such discretion officials rack would be allowed onto the terrace —a cation. spectre Fargo, In Lincoln power nonpublic to discriminate and raises forum. currently complete basis of the of news- enforcement on the there are bans of selective Therefore, Gaudiya justiciable is no con speech.” Vaishnava racks. content omitted). (quotations troversy respect Soc’y, 952 F.2d at 1066 to the reasonableness speech granted can federal discretion license of who is licenses to vend on “Unfettered bodies.” the Act. See Gannett Satel be left to administrative under Auth., NAACP, Transp. Region City Rich Network v. Metro Western lite Info. Cir.1984). (2nd Cir.1984). (9th mond, F.2d imple- According regulation IV Randolph-Sheppard Act: ments the appeals a motion for also second Jacobsen vending operated facilities Articles sold at against contempt govern- filed he may newspa- by blind licensees consist received Apparently ment. confections, publications, pers, periodicals, February 1988. copy of the motion on foods, products, beverages ... and tobacco government filed a motion to strike and or services as are deter- other articles contempt motion on response to the second agency, in licensing mined the State Oddly, Jacobsen did not March 1988. re- with the on-site official consultation actuahy complaint until March file the property of the sponsible for the Federal 1988. agency, property managing department,

instrumentality, partic- to be suitable for failed to rule on this The district court ular location. motion its decision June second record, 395.35(c)(3). Moreover, According clerk’s this per- § 34 C.F.R. subsequently decided. motion was also never provide that installation mit “shall further "negotiated as a commis- government’s interpretation of the machine income” 7. Because sion,” Jacobsen, plainly Given the regulation helpful to and Jacobsen erroneous. here, profits, challenge generous interpre- fora involved either 50% 50% more does not tation, negotiated would be Constitu- commission of whether of a we do not reach the issue regulation’s of “vend- tional. interpreting definition contempt motion. We do of the first court al district that the states contempt motion. rule on the second ruling the motion be- in not correct moved January cause on concurring in WISDOM, Judge, Circuit without a further to rule the lower court dissenting part: in fact, con- and part second evidentiary In this trial. in with

tempt order dealt by ma- in the result reached I concur court, granting Falls, district and the Sioux Lincoln, Nebraska respect to the jority with limine, deter- in motion government’s Aberdeen, I locations. Dakota and South hearing injunction preliminary mined at however, dissent, the result respectfully limit “our discussions going to it was that respect to the majority by the reached have at problems [Lin- that we today to the location. Fargo, North Dakota Aberdeen, if Mr. Fargo], And coln, County Monterey majority reads course, of he problems, other has Jacobsen v. United States Comm. Democratic Cent. someplace The dis- else.” file an can action opinion in plurality and the Postal Service1 rule on this failed to probably trict court holding that no as v. Kokinda2 United States case to it limited the motion because a ingress-egress is federally sidewalk owned was no evi- three locations there above suggest I op. at 654-66. public forum. See injunc- preliminary presented at dence overly reading of those cases this Falls. hearing about Sioux tion a feder- of cases held that Both those broad. thor- walkway public not a ally that is owned ruled on not Because the issue was pub- from the separated oughfare and that is court, jurisdic have we do not by the district by parking lot is necessari- a not lic sidewalk (1988) § 1291 to review 28 tion under U.S.C. Thus, ques- two there are ly public a forum. (“The § 1291 28 U.S.C. this motion. See (1) walkway question a in ask: is the tions to jurisdiction appeals ... shall have of courts (2) walkway is the thoroughfare and public from all final decisions appeals public indistinguishable from the physically States_”). courts of district are traditional- sidewalks Because sidewalk. Moreover, not district court has because the fora,3 this should ly public Court considered action, yet sanctioned it has not ruled public a forum is not hold that contempt. “Our government for civil in questions are only if these answered adjudica- an frequently held that has circuit negative. appealable until contempt civil tion of v. imposed.” Aberdeen, Donovan been Lincoln, sanctions have In both Nebraska (9th Cir.1985) 1411, Mazzola, 761 F.2d requirements are met. Dakota these South omitted). (citations Lincoln, postal separates the parking lot In sidewalk, public and the

walkway from the designed used as a walkway nor is neither V Aberdeen, thoroughfare. public public clearly not a thor- raised terrace is of the district the decision We AFFIRM access only purpose is to allow oughfare-its court, court’s deni- the district and AFFIRM also, County, (9th Monterey at 1197: Cir.1987). See 1. 812 F.2d 1194 pedestrian places traffic— outdoor “Public 3115, representative ar long 111 L.Ed.2d 571 have been U.S. 110 S.Ct. 2. 497 sidewalks— eas held expressive (1990). public activi open for to the ties”; Postal Ser v. United States and Jacobsen Grace, See, Cir.1987): (9th vice, U.S. e.g. United States F.2d public 75 L.Ed.2d presumptively Sidewalks are (1983): by though they the federal are owned even separation, government. Where course, Sidewalks, among areas of those government side- or other fence indication traditionally have been public property that special way being used in some walks are open public expressive activities for held abut, building they federal with the connection public clearly areas of within those deprive considered, of their cannot them generally may simple forum character inquiry, without further statutory expedient definition. of a property. park- permissible building. Although there is no that it is into reasons, safety the terrace from the separating lot move the newsrack for mere sidewalk, that it is elevated five or justification the fact safety of a invocation will certainly sidewalk is six feet above protect government’s suffice to actions. apprise who separation to those sufficient Heintzman, building Patricia the GSA approach the difference. manager Fargo, testified that both loca- ledge, Fargo, agree granite I that the Mr. tions which his news- building, actually part of the is not a which is way pedestrian rack were traffic. Thus, permissible for public forum. it was majority adequate that there finds Mr. to move justification moving Mr. Jacobsen’s news- (or counterweight) its concrete newsrack allegedly rack because it was situated the hold, however, I ledge. would that sidewalk, middle of the whereas the other by portion of the sidewalk owned allegedly granite racks were either on the government public is a forum. ledge or in the alcove. Mr. Jacobsen’s news- majority a states “there is clear line of The public govern- in rack was a and the that in the sidewalk distin- demarcation proving validity ment has the burden of entryway from the mu- guishes the federal justification. safety reviewing of its After Majority op. A sidewalk.” at 657. nicipal transcript, the records and the I find that the transcript of the and exhibits reveals review exact location of the other newsracks is un- only a crack demarcation consists of that knowing clear. the location of the Without in the sidewalk between two sections newsracks, impossible analyze it other in the and a difference texture concrete accuracy government’s assertions. person approaching A the concrete itself. I that would hold did not apprised not be of the difference. would carry its burden. Kokinda, Monterey in the federal side- distinguishable from the physically walk was My is bolstered other facts conclusion sidewalk, municipal and both courts stressed government’s position. that cast doubt on physical separation as a factor their that Mr. his newsrack next to Here, physical separa- there is no decisions. several other newsracks each instance. tion, only property line and the fact there is Mr. newsrack was first removed poured the concrete so that the contractor September lawsuit was filed 1985. This fortuitously located on or near that a crack is November 1985. Mr. Jacobsen’s newsrack line. from its second in Jan- was removed location Furthermore, federally owned side- uary None the other newsracks 1986. thoroughfare. No Fargo public walk in is a located in the same “hazardous” which were municipal sidewalk is a disputes one that the Jacobsen’s, Mr. were moved to the area as municipal public thoroughfare, and that short, August until 1987.5 almost curb public forum. Because there is sidewalk is a years elapsed between the time Mr. Ja- two federally physical separation, the owned no removed, ostensibly was cobsen’s newsrack nothing more than an extension sidewalk is reasons, safety and the time that Thus, thoroughfare. I public of this same from the newsracks were removed other that the sidewalk front of the would find Indeed, testimony re- same location. Fargo post is a forum.4 other newsracks garding the removal of the finally they removed be- shows that were permissible majority finds that it was complied with the cause the vendors had not Mr. Jacobsen’s for the to move Randolph-Sheppard Act—not because safety While it is true newsrack for reasons. location, they ... Fargo to the curb and sidewalks respect street 4. With Grace, special type of enclave”.. Id. entered some have 461 U.S. States v. 180, 103 S.Ct. at 1708-09. (1983), highly instructive. L.Ed.2d 736 surrounding the the sidewalks Court held that injunc- building passing preliminary Supreme were fora be- that the Court 5. I note in fence, August "[tjhere hearing originally separation, scheduled for no tion was is no cause stepping persons from the whatever to indication government’s con- safety hazard. awas newsrack that Mr. Jacobsen’s

tention safety hazard it created because

removed analysis light these withstand

does not

facts. justification only newsrack is removing Mr. Jacobsen’s

has for Randolph-Shep- non-compliance with

his opinion express an

pard Act. I do not applica-

constitutionality of that Act and its such as the sidewalk

bility Fargo post office. The dis-

in front of the aspect consider this of this

trict court did not found, mistakenly I the court

suit because

believe, was not that this sidewalk portion I would remand

forum. court parties district

case so that opportunity full to address this

might have a

issue. HENDRICKS, Dean

Jackie

Petitioner-Appellant, ZENON, Oregon Superintendent,

Carl Institute, Correctional

State

Respondent-Appellee.

No. 92-35289. Appeals, States Court

Ninth Circuit. January

Argued 1993. and Submitted April

Decided 1993. July

As Amended notes County, Monterey very As we held in different. airports are not determination "[t]he 232.1(h), prohibits § which soli- Title 39 C.F.R. inquiry.” only begins Id. our fora thus postal property, except (O’Connor, J., vending as - U.S. at -, citing and concur S.Ct. at 2712 Act, Randolph-Sheppard see under allowed ring). because reasonableness "[t]he This is 8071-72, reasonably infra, relat- ... must as discussion restriction the Government's objective post single office—to purpose ed of the forum light sessed collection, sorting, and system (quotation efficient surrounding Id. circumstances.” all ."'an ” County, Monterey However, delivery omitted). of mail nationwide.' Justice O’Connor admits 403(b)(1)). § (quoting 39 U.S.C. inherently at 1199 airports dif inquiry respect to with require offices, ;'[o]rdinarily it would be unreasonable We post hold that of ferent than space to accom- non-public of a cases we ... been confronted ... have discrete, desire to vendors who single- all newsraeks modate the fora at issue were where opening Id. - U.S. -, any particular office. S.Ct. vend in purpose facilities."

Case Details

Case Name: Harlan L. Jacobsen v. United States Postal Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 30, 1993

Citation: 993 F.2d 649

Docket Number: 89-16054

Court Abbreviation: 9th Cir.