United States v. Carter
In United States v. Carter, 339 F.Supp. 1394 (D.Ariz. 1972), the court upheld the Secretary of the Interior's interpretation and application of regulation 36 C.F.R. 5.3 which prohibited anyone from "engaging in or soliciting any business in park areas, except in accordance with provisions of a permit, contract, or other written agreement with the United States . . . ."
Although we are not bound by the holding in Carter, this Court finds it to be persuasive.
In Carter, the defendant Warren G. Carter (Carter) had rented boats in the town of Page, Arizona, outside the boundaries of the Glen Canyon National Recreational Area (Glen Canyon).
The rental of a boat included the service of launching the boat on Lake Powell which was within Glen Canyon.
In addition, Carter provided a guide service for fishing and sightseeing trips on Lake Powell within Glen Canyon.
Because Carter launched boats guided by his agents, the court found he had engaged in business within the recreation area within the meaning of 36 C.F.R. 5.3. Carter, however, did not have a permit or agreement allowing him to do so.
Carter was advised by the National Park Service that business operations could be conducted within the boundaries of the recreation area only with permission of the United States pursuant to 36 C.F.R. 5.3. Carter then requested a permit from the superintendent of the recreation area for the right to provide his services.
The superintendent advised Carter that such a permit would not be issued because the concessioner in the recreation area, Canyon Tours, Incorporated, had reasonably supplied the type of service Carter sought to provide and the issuance of such a permit would "constitute a hazard to the present concessioner". Id. at 1396.
The government sought to enjoin Carter's business operations within Glen Canyon and the court granted the injunction.
In Carter, the court found that statutory and case law dictated that Congress intended the Secretary of the Interior to regulate business activities such as defendant's.
The court explained:
Congress has since the inception of the modern-day park system given the Secretary the general power to construct and maintain recreational facilities in park areas so that they may be preserved for posterity. 16 U.S.C. 1 (1916). He was also given the power to let contracts to responsible individuals or corporations to provide the services he felt were necessary to carry out that purpose. 16 U.S.C. 3 (1916); 16 U.S.C. 17b (1930). The courts interpreted this language to give the Secretary the right to let contracts to concessions and to exclude all other competition from the park area, whether the service provided concerned the land Robbins v. United States, supra or water United States v. Gray Line Water Tours of Charleston, supra . . . .Id. at 1398.
In Carter, it was recognized that Congress intended to charge the Secretary with the administration of the statute.
The Court acknowledged that the Secretary was given the authority to publish regulations for the administration of park areas "as he may deem necessary or proper for the use and management of the parks . . . ." 16 U.S.C. 3 (1916).
The Secretary interpreted the statute to include a right to control business activities within Glen Canyon. Pursuant to 16 U.S.C. 3 (1916), the Secretary of the Interior promulgated 36 C.F.R. 5.3 prohibiting individuals from "engaging in or soliciting any business in park areas . . . ." Consistent with the statutory authority, the Secretary determined that Carter was violating the regulation.
In Carter, after it had been determined that Carter was "engaging in . . . business in a park area . . .", Carter requested a permit to continue engaging in business in the park in compliance with the federal regulation. Carter was denied a permit.
The court upheld the denial because the regulation authorized the Secretary to regulate all business activities within the park, including the issuance or denial of a permit, contract or written agreement to engage in any business in the state park.