Government shutdown: Gate-jumpers at national parks entering gray legal areas

Rangers have cited some who have crossed into national parks, which are all closed by the government shutdown. Gate-jumpers could face up to six months in jail, although land policy experts raise some questions.

Merry pranksters daring the National Park Service to “catch us if you can” on federal parklands closed by the government shutdown could face an unpleasant date with a federal judge and up to six months in jail.

Inspired by Twitter rubrics like #YesWeCone and #SpiteHouse, small but outspoken numbers of Americans are kicking aside cones and barricades erected to wall off America’s publicly owned but budget-busted natural treasures – including the Badlands in South Dakota, the Maroon Bells in Colorado, Maine’s Cadillac Mountain, and Valley Forge in Pennsylvania.

This week, gate-jumpers photographed themselves at the closed Civil War battlefield at Gettysburg, Pa., holding up handwritten notes daring the National Park Service to “catch us if you can.”

But park rangers are beginning to push back, citing 21 people on Monday for breaching barricades at Arizona’s closed Grand Canyon National Park and ticketing at least two people at Valley Forge. Other reports of hikers being ticketed have come from Acadia National Park in Maine.

All those ticketed will have a mandatory hearing with a federal judge, who has jurisdiction over federal lands situated inside state borders. The maximum penalty is six months in jail.

The growing tension between rangers and hikers marked Day 9 of a partial government shutdown tied to the inability of Democrats and Republicans to come to terms on appropriations legislation to fully fund the government. Republicans have said they want concessions on the implementation of Obamacare, while Democrats, including President Obama, have said they won’t negotiate.

The closings of not just national parks and monuments, but also massive tracts of federal forests, have become the human face of the crisis. They’ve highlighted the immediate effect of the shutdown on Americans who want to enjoy the bounty and beauty of public lands, and they’ve brought on political sniping about whether the National Park Service, directed by the White House Office of Management and Budget, is going out of its way to inflict maximum pain to score political points.

The gate-crashing scenes playing out at landmarks across the United States have been noticed in Washington. Promising hearings starting on Oct. 16, Rep. Doc Hastings (R) of Washington, chairman of the House Natural Resources Committee, declared: “Across the country, Americans are deliberately being denied access to open-air memorials and national parks ... that were not closed by the Clinton Administration during the last government shutdown.... This is shameful and wrong and we intend to hold the Obama Administration accountable for their actions.”

Indeed, while many national parks closed during the government shutdown over two periods in 1995 and 1996, the closures are more widespread this time around. And at least to some, they seem spiteful – as in cases where park rangers have put cones around road pull-offs so people can’t stop to view federal scenery. At Maroon Bells, for example, rangers closed 5-1/2 miles of a county road that leads to the entrance of the park, with one National Park Service official explaining that “it’s our facility.”

To be sure, many of the shutdown procedures and protocols were described and detailed in publicly available budget documents leading up to the shutdown. Yet the closings and ensuing gate jumping has the hallmarks of what some have come to call “shutdown theater” – the clamoring for political points, with some of America’s most majestic sites as the backdrop.

“Knowing what we know about the Obama administration and about the current crop of Republicans, I have no problem believing that much of the shut-down effects were purposely and callously designed to make the public suffer because it makes a good bargaining chip/talking point,” writes Simcha Fisher on the “Patheos” blog. “At the same time, knowing what I know about the lumbering, nonsensical, illogical workings of government, I have no problem believing that much of it is just how things shook out once the process was set into motion.”

And so a small but poignant civil disobedience movement has flourished, sparked when a group of military veterans refused to be barricaded away from the World War II Memorial on the National Mall last week. Much of the protest has been proudly documented on Twitter and other social media platforms.

Alongside a picture, cross-country tourist Noelle Bruno of New Jersey tweeted this week: “my daughter inside the coned off area Bad Lands, SD! Not gonna ruin our vacation!”

And in addition to the tickets that were issued at the Grand Canyon on Monday, 50 protesters stormed the main Grand Canyon gate, where park superintendent David Uberuaga tried to mollify the agitated mob. When people shouted at Mr. Uberuaga to open the gate, he replied, "I cannot open the gate. Only Congress can open the gate."

The National Park Service has indeed been undeterred by the protests, vowing to step up patrols intended to protect the national landmarks from shutdown trespassers.

Still, the flurry of citations against gate-jumpers suggests that the civil disobedience movement is now moving into a new phase. Lawyers are delving into how, exactly, federal agents have the legal authority to keep Americans off their own land and whether people can in fact be punished by up to six months in jail for “violating a temporary use restriction,” as several of the tickets have stated.

The lawyer for John Bell, a jogger ticketed for running at Valley Forge over the weekend, says he plans to argue that the National Park Service failed to give proper notice of the closure. His client says he entered the park through a little-used entrance that was not clearly posted as closed. Mr. Bell also says he saw other people using the park.

There are also deeper gray areas around the legal authority of the National Park Service. True, park superintendents have statutory authority to issue tickets, but whether those statutes abide by the greater spirit of “public use” that undergird the idea of national parks and lands remains an open question, land policy experts say.

The National Park Service wants people out of the parks because it can no longer fund its primary mission, which is to interpret landmarks for visitors. Instead, a skeleton crew of rangers is left to simply protect the landmarks.

University of Idaho law professor Richard Seamon says the across-the-board closures are probably inspired by fears of liability-related lawsuits and concerns about criminals taking advantage of the empty parks.

But land policy experts say that US law, court precedents, and Department of Justice rulings don’t make it clear whether federal agents can actually keep otherwise law-abiding people out of the parks – especially in open-air sections that don’t have facilities and are not regularly patrolled.

Of those ticketed Monday at the Grand Canyon, some were caught walking on South Rim trails, others sneaking in on little-traveled dirt roads, and yet others moving road barricades to take a closer peek at one of the Seven Natural Wonders of the World – despite the sign at the front gate, ordered by faraway Washington, that says, “Grand Canyon Closed.”