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Brady Case Against NPS Concealed Carry Rule

Introduction

The Brady Campaign would appear to be going through discovery in trying to build it’s case against the rule change that allows people with state licenses to carry a firearm in a National Park in states which allow for such a thing.  Their press release here and blog post here give some idea of what their public line of reasoning is, but you can find the actual complaint here.

Organic Act Claims

They make many claims in the pleadings, but one of them is that these regulations are actually required in order for the NPS to fulfill its goal under the National Park Service Organic Act.  One would have to wonder, then, how the National Park System was misregulated from the years 1916, when the Organic Act was passed, until 1960, when the National Park Service first promulgated regulations on carrying of firearms within the National Park System.  Either way, the Brady Claim under the Organic Act is that by allowing concealed firearms, they put the people in danger, and threatens other’s enjoyment of the parks.

NEPA Claims

The second, and probably more interesting claim is that the Department of the Interior violated the National Environmental Policy Act, which requires federal agencies to perform an Environmental Impact Statement on any federal action which “may significantly impact the qualify of human environment.”  The NPS claimed in the rule which eventually appeared in the Federal Register on December 10th, that:

Consistent with this commitment, we have analyzed the final rule under NEPA and concluded that (i) the action is subject to a categorical exclusion under 43 CFR 46.210 since the final regulation is in the nature of a legal change to existing regulations, and (ii) no “extraordinary circumstances” exist which would prevent the proposed action from being classified as categorically excluded.

That regulation that covers that claimed exclusion is here.  NEPA requires all federal agencies to promulgate regulations to implement their compliance with NEPA, which DOI has done.  The exclusion claimed under the Department of Interior regulations are among the category of “Categorical Exclusions” which are allowed by the agency regulations promulgated in 40 CFR 1508.4.

Categorical exclusion means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.

Brady’s claim under NEPA is essentially that concealed weapons represent a threat to human health, and thus an Environmental Impact Statement must be prepared.

APA Claims

The third leg of the Brady Campaigns case asserts that the Department of Interior violated the Administrative Procedure Act (APA) which is the federal law that outlines the rulemaking process.  The Brady assertion under this act is that their new rule was “arbitrary, capricious, an abuse of discretion […]”  Largely because the DOI “acted hastily and in utter disregard of the procedural mandates of the APA […] Indeed, in their rush to judgement, defendants failed to adequately consider and address most of the approximately 125,000 comments that opposed this rule change, including the Brady Campaign’s comments, in violation of the APA.”  I’m pretty sure the vast majority of the public comments were in favor of this rule change, and that most of those 125,000 comments were pro-gun.

Conclusion

In their Prayer for Relief, the Brady Campaign is not only asking for this rule to be overturned, but also for a permanent injunction to be placed on the Department of Interior from ever promulgating any regulation allowing for possession of loaded and concealed firearms in National Parks.  I think the Brady case is pretty weak, but it will be up to the Solicitor, now under Obama, to defend this regulation in court, so it’s hard to say what will happen.  It’s amazing that their hysteria and desperation manages to come through clearly in their pleadings, and I also think it’s interesting they mislead the court that there were huge numbers of public comments against this rule change.  Let us hope this regulation stands.

15 Responses to “Brady Case Against NPS Concealed Carry Rule”

  1. Carl in Chicago says:

    Brady said: “Late Friday night, the United States Department of Justice filed a response to lawsuits filed by the Brady Campaign to Prevent Gun Violence as well as the National Parks Conservation Association and the Coalition of National Park Service Retirees.”

    I would like to view the Justice Department’s response to the Brady’s lawsuit. Anyone know where it is available?

  2. Sebastian says:

    I’m not sure whether they are talking about filing a response to their discovery request, or whether they filed their response to the Brady’s complaint. I’d need a PACER account to check, and I don’t have one.

  3. sigboy40 says:

    Very well written and informative post. Thank you for enlightening me today. Also, your short post also covers the high points and leaves very little substance out.

  4. mobo says:

    I never really understood this why this whole “national park carry” thing is an issue in the first place. It seems to me that if the federal government owns land within a state, that state should still have sovereign authority. Isn’t what this rule change basically does?

    At issue is who has the power to police federally owned land, correct?

  5. Sebastian says:

    The constitution gives the federal government power over federal lands and property. So they can choose to follow state law or not.

  6. Gene Hoffman says:

    NRA will be intervening to defend this from Brady. Most expect that intervention to be successful and I expect the NRA will be able to pretty deftly handle the NEPA claim. The other two claims are quite specious actually.

    -Gene

  7. Sebastian says:

    Won’t it be the Solicitor General’s office that will handle defending the rule?

  8. Steve says:

    Thanks for this great post! Nothing to do now but see what happens in the new administration, eh?

    Funny how this is something the Bush administration “rushed through at the last minute” when I remember months of delays as the Park Service took more time to go over responses. It was a 2 year long process or thereabouts.

    I just don’t understand how the pro-gun side wasn’t able to out comment the anti-gun side. Sounds suspicious, but even the NPS report said the same.

  9. Jim Manley says:

    Mountain States Legal Foundation was involved in the comment period when the rule was being drafted and has also moved to intervene on behalf of concealed carry permittees. In fact, MSLF was involved in the case before the NRA.

    The government’s response was to the Plaintiffs’ motion requesting a preliminary injunction (they also filed an answer to the complaint). This motion asks the court to prevent the rule from being enforced while the suit is pending. MSLF also filed a brief in opposition to the preliminary injunction and an answer denying all the Plaintiffs’ claims.

    Jim Manley
    MSLF Staff Attorney

  10. Carl in Chicago says:

    Mr. Manley, allow me to offer and warm and heartfelt “Thank You” for your efforts, and those of the MSLF.

  11. Jim Manley says:

    Carl in Chicago,

    Without the support of people like you MSLF and other public interest law firms would be nothing. Thank you for your praise and support. I would be happy to send along PDFs of any documents if you contact me through the MSLF website (I’d rather not post my email for spam bots to find). Thanks!

    – Jim

  12. tarpon says:

    How does carrying a concealed gun for self defense have any effect whatsoever on the environment? This is just stupid.

    For instance, a State highway goes through a National Park locally. If self defense guns are not permitted to be carried in a National Park, you are severely restricted in carrying self defense weapons because you can’t transit the park. Since the Supreme Court has now ruled the enumerated right to self defense, is a now an enumerated right (yeah I know, I know) does that not overrule any concern for the penumbra and emanations from the environment?

    It is totally unclear, how my carrying a self defense gun would do any harm to the environment.

  13. Sebastian says:

    tapon:

    That’s why the DOI asserted that this rule change was categorically excluded from having to perform and EA or EIS under NEPA. I think it’s a strong position, and the Bradys are making a weak argument. But that’s not to say a judge who doesn’t like the idea of guns in parks is going to rule what the law is.

  14. Jack says:

    I’ve read a lot about concealed carry in National Parks, but what about open carry? I’m a new (hand) gun owner, and new to shooting. I’m thinking about visiting Yellowstone and Grand Teton this summer (not far from my home.) However I just want to have some protection in the remote event of an “up close and personal” encounter with a bear. The laws of my home state (Wyoming) allow me to carry my gun in the trunk of my car, or in the passenger compartment as long as the gun is visible from the outside.

Trackbacks/Pingbacks

  1. SayUncle » Brady v. NPS - [...] looks at the suit they filed against the Park Service. I’m glad they’re wasting their limited resources so [...]
  2. Snowflakes in Hell » Blog Archive » Standing Case Heard at the Supreme Court - [...] this the basis of the Brady Campaign’s lawsuit against the Department of the Interior?   Can we get this dismissed…
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