Defying government shutdown, national park visitors play 'catch me if you can'

Some Americans are challenging government shutdown national park closures by leaping over barricades or tossing cones aside in acts they call civil disobedience, but which some authorities call just breaking the law.

With the US government shutdown well into its second week, growing numbers of Americans are gleefully engaging in what they call “civil disobedience” by tossing aside cones or jumping over government shutdown-inspired barricades around national monuments, malls, and park entrances.

Whether their acts are punishable by law or a legitimate citizen protest against the federal government is an emerging question as the shutdown entered Day 8. 

Hundreds of national park and forest service sites from Washington State to Washington, D.C., have been barricaded or closed amid a government shutdown over the implementation of Obamacare. The political sniping has focused on who is to blame for the budget impasse: Republicans for pushing the issue to a budgetary brink, or President Obama and Democrats for failing, at least, to entertain Republican ideas.

Yet the barricaded federal lands issue has particularly focused on whether it’s really necessary to close off public lands that aren’t regularly patrolled, that are leased to private entities, or are simply open-air monuments without pay gates. For some areas, millions of dollars in tourism revenue is at stake.

“We’ve gone from ‘this land is your land, this land is my land,’ to the government saying this land is its land,” writes University of Tennessee law professor Glenn Reynolds in an e-mail. “President Obama said that government is just a word for the things we do together. Apparently that includes kicking WWII veterans off their memorial.”

The politics took on a sharper tone on Tuesday, as a pro-immigrant rally was allowed to take place at the “closed” National Mall near where, five days earlier, World War II veterans first breached barricades in a high-profile moment in the shutdown. The Park Service has since padlocked the area, but has intermittently allowed veterans (though nobody else) to enter.

In the Great Smoky Mountain National Park in Tennessee, rangers shut down Foothill Parkway, a major thoroughfare used by School Bus 49 to shuttle kids to school from the small community of Top of the World, causing a frustrated Blount County Mayor Ed Mitchell to tell Fox News: “We were founded on a Declaration of Independence. And they are about to push the people to the line again.”

At the Gettysburg National Military Park Museum and Visitor Center, gate-crashing visitors posted Twitter photos from the battlefield with the phrase “Catch Us If You Can” written on notes. At Zion National Park and Badlands National Park, visitors have taken to simply tossing cones aside or pushing away barricades to enter.

The 3,000 Park Service personnel who remain on duty (20,000 have been furloughed) have been hesitant to get too heavy-handed in response. On Sunday, however, a jogger was fined $100 for taking a run inside Valley Forge National Monument, despite signs saying it was closed. He says he’ll fight the ticket in federal court.

One area where the government seems to have the clear right to put up barricades or “closed” signs is where there are pay gates to enter an area. But for parks and monuments where people can simply wander onto federal lands, blocking access touches on a “a huge [legal] gray area,” says Dale Goble, a land policy expert who specializes in the sagebrush rebellions of the West.

One issue that remains unclear is the legal foundation for those closure protocols, including what authority rangers have to either remove “trespassers” or even ticket and arrest them. If the rangers don’t have that power, then many of the barricaded areas are, by default, still open to the public.

Under a 1981 memo by then-budget Director David Stockman, which is still in effect, the federal government in shutdown mode is allowed to keep policing and protecting “federal lands, buildings, waterways, equipment and other property owned by the United States.” Other essential services cannot be funded, however, including most of the primary mission of the Park Service: providing guidance and interpretation for visitors.

In that way, visitors coming into the parks could be seen as a distraction for rangers providing basic protection, land policy experts suggest.

Still, US law, court precedents, and Department of Justice rulings don’t make it clear whether federal agents can actually keep people out of the parks, beyond suggesting that people don’t enter in the first place. For example, would someone entering a national park area in order to get a drink of water from a stream actually be breaking the law?

To many, attacks on the Park Service for its barricade tactics seems opportunistic and political, especially considering that more than 300 parks were closed during brief shutdowns in 1995 and '96.

“The Park Service could hardly pick favorites – opening the memorial for the Second World War but not for the Vietnam War, opening Yellowstone not Yosemite – and it shouldn’t be asked to,” writes Margaret Talbot this week in the New Yorker.

Yet to some people, it also seems federal officials are going out of their way to make the shutdown painfully symbolic. Many of the open-air monuments currently barricaded were not closed during earlier shutdowns. Some, including the World War II Memorial, were closed by express orders from the White House, according to the Park Service.

At Gettysburg, park officials barricaded pulloffs on a public road so people couldn’t stop and view the monuments from the public right of way. Such pulloff barricades suggest to experts like Mr. Reynolds at the University of Tennessee that the cones are simply there out of spite – an evocation of the power and necessity of the federal government.

At Valley Forge National Historical Park, a man named John Bell entered the monument through what he said was an ungated entrance, but was ticketed by two rangers when he returned to his car. At Maine’s Acadia National Park, rangers have also been issuing fines to campers, bikers, and hikers who have jumped the barricades.

On Monday, the US Sportsmen’s Alliance joined the fray, sending Mr. Obama a letter protesting the shuttering of public hunting lands and inland fisheries at the cusp of the hunting season.

The letter stated that the closures are happening on lands deemed by law to be “priority public use,” which sportsmen argue supersedes any quibbling over the federal budget. The lands were not closed during government shutdowns in 1995 and '96, notes USSA president Nick Pinizzotto, in a press release.

“Not only are these closures unnecessary, they run contrary to law,” he said.  “This is ‘political theatre’ at its very worst.”