The opinion of the court was delivered by: MATTHEWS
Five motions are before the court. Before discussing them, the nature of this action will be briefly stated. Plaintiff, Anne Archbold, seeks to enjoin the construction of a multiple lane highway upon land she dedicated to the United States for use as a public park and to obtain a declaratory judgment in respect of that land. Charles C. Glover, Jr., as an intervenor plaintiff seeks similar relief as to adjoining land which was dedicated to the District of Columbia for use as a public park and children's playground by his father who is now deceased. The defendants are the Commissioners of the District of Columbia, members of the National Capital Planning Commission, Fred A. Seaton, Secretary of the Interior, and Conrad L. Wirth, Director of National Park Service.
The Motions before the Court
The defendant Commissioners of the District of Columbia have filed two motions to dismiss or in the alternative for summary judgment, one as to Mrs. Archbold's complaint and one as to Mr. Glover's intervening complaint. The other defendants have filed a motion seeking similar relief as to both complaints. Plaintiffs have moved to drop certain defendants and for leave to file an amended complaint. A motion to intervene as plaintiffs has been made on behalf of: Audubon Society of the District of Columbia, Inc., Committee of 100 on the Federal City, Harold Leventhal and Kathryn K. Leventhal, his wife, and Cecil J. Wilkinson and Nell Wilkinson, his wife, individually and on behalf of all others similarly situated, including West Glover-Archbold Citizens Association.
The Motion of the Plaintiffs
Consideration will first be given to the plaintiffs' motion for leave to amend and to drop certain defendants.
After the filing of this action on July 25, 1959 plaintiffs utilized available procedures for discovery. In the light thereof they now assert that the parties they propose to drop are unnecessary to this action, these being the defendants sued as members of the National Capital Planning Commission. They further say that the proposed amended complaint will more appropriately state their claims against the remaining defendants -- the three Commissioners of the District of Columbia, Mr. Seaton and Mr. Wirth.
Rule 15(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides that leave to amend 'shall be freely given when justice so requires.' The primary consideration in determining whether to grant or deny an application for leave to amend is whether the allowance thereof will work an injustice to any of the parties, and the practice is to permit amendments freely to cure defective or imperfect pleadings, particularly to remedy objections raised on motions to dismiss. Barron and Holtzoff, Federal Practice and Procedure, Vol. 1, sec. 447, pp. 893, 898.
It is the view of the court that the granting of the application to amend and to drop certain defendants would not result in an injustice to any party.
The plaintiffs, however, point out that in 1948 an agreement was made between the Government of the District of Columbia and the then Acting Director of the National Park Service whereby the National Park Service, which is the agency charged with the administration, maintenance, improvement and protection of the parks in the District of Columbia, agreed to 'make available' to the District of Columbia rights of way through Glover-Archbold Park for the construction of a 'parkway', that the context of the agreement appears to contemplate a four-lane divided parkway to form part of a through passenger 'traffic way' and that this was in consideration of an agreement by the District of Columbia to turn over to the National Park Service for park purposes certain portions of a right of way known as 'Arizona Avenue'. The plaintiffs allege that representatives of defendant Conrad L. Wirth, the present Director of the National Park Service, acting under the direction of the defendant Fred A. Seaton, the Secretary of the Interior, have asserted that the National Park Service now intends to comply with said agreement.
The import of this agreement as to Glover-Archbold Park may be reflected in the depositions taken herein by plaintiffs for discovery purposes. Harry T. Thompson, the Superintendent of National Capital Parks, estimated that if the plan of the Highway Department for the parkway in question were put into effect it would mean that fifty percent of the sum total of the acreage in Glover-Archbold Park would be 'graded in some manner, either by filling or cutting over that percentage of the acreage.' Major General Ulysses S. Grant, former Chairman of the National Capital Park and Planning Commission testified that the proposed highway is designed 'for fast moving traffic' and to get people 'through the park and not into the park' and that it would 'spoil the * * * park entirely.' In an article written by General Grant (Exhibit 2 attached to his deposition) he says:
'Now it is proposed to build a four-lane divided freeway along the whole length of the valley. (Glover-Archbold Park.) Because of its narrowness, the valley's natural beauty would be utterly destroyed by such a freeway, and the traffic would be a mortal danger to the children playing with what space remained to them.'
It is without dispute that the defendant Commissioners of the District of Columbia requested and obtained from Congress an appropriation of $ 880,000 for the fiscal year ending June 30, 1960 to begin construction of the proposed highway, and that an additional $ 1,150,000 has been sought ...