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DAINGERFIELD ISLAND PROTECTIVE SOCY., INC. v. ANDR

July 18, 1978

DAINGERFIELD ISLAND PROTECTIVE SOCIETY, INC., et al., Plaintiffs,
v.
Cecil D. ANDRUS et al., Defendants



The opinion of the court was delivered by: GASCH

MEMORANDUM

Plaintiffs request declaratory and injunctive relief against defendants for alleged violations of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. ┬ž 4321 Et seq. Specifically, they seek to enjoin defendants from further consideration of an application for approval of a plan for construction of an access structure immediately opposite Daingerfield Island. Plaintiffs base their claim on the contention that the procedural requirements under NEPA have not been complied with "to the fullest extent possible." Presently before the Court are plaintiffs' motion for preliminary injunction and defendants' motion to dismiss, or in the alternative, for summary judgment.

 Plaintiffs include five individuals who use and enjoy the facilities at Daingerfield Island and use Mount Vernon Memorial Highway (also known as the George Washington Memorial Parkway) and Daingerfield Island Protective Society (DIPS), a nonprofit organization whose members use Daingerfield Island. Daingerfield Island is an area (approximately 106.27 acres) of Mount Vernon Memorial Highway in Alexandria, Virginia, along the Potomac River adjacent to the southern boundary of Washington National Airport. Daingerfield Island contains a public sailing marina, recreational facilities, and a segment of a bike path. The purpose of DIPS is to promote the protection and preservation of the environmental quality of Daingerfield Island. Defendants include Cecil Andrus (Secretary of the Department of the Interior); Robert Herbst (Assistant Secretary for Fish, Wildlife, and Parks of the Department of the Interior); William J. Whalen (Director of the National Park Service); Manus J. Fish (Director of the National Capital Region of the National Park Service), and Hugh B. Muller (Acting Superintendent of the George Washington National Parkway). On July 7, 1978, Richmond, Fredericksburg and Potomac Railroad Company, owner of the property that is the subject of this litigation, and Fairchild & Company, lessee of the same property, were granted leave to intervene as defendants.

 BACKGROUND

 On or about February 27, 1967, it was proposed that the Department of the Interior (Department), Richmond, Fredericksburg and Potomac Railroad (RF&P) and Fairchild and Company (Fairchild) enter into an exchange agreement involving lands in the Alexandria, Virginia area. Pursuant to this exchange agreement, which was executed on June 5, 1970, the Department granted Fairchild and RF&P an easement on the Mount Vernon Memorial Highway at the entrance of Daingerfield Island in consideration for conveyance to the United States of approximately twenty-nine acres of Potomac River marshland located in Fairfax County, Virginia (known as Dyke Marsh tract) owned by Fairchild. This exchange agreement provided access from the Mount Vernon Highway to a 38.5 acre parcel of land (known as the Potomac Center tract) situated across the highway from Daingerfield Island. The Potomac Center tract is owned by RF&P and is leased by Fairchild.

 The exchange agreement specifically provides that:

 
(t)he United States will deed, grant, and/or issue such easements or other interests in land of the United States as may be necessary to establish adequate perpetual access to, including ingress and egress from, the Parkway to The Potomac Center tract . . ..

 P (1). In consideration for this easement, Fairchild and RF&P agreed "at no cost to the United States, to provide a center-piered bridge comparable in "H Loading" style and type to the southernmost bridge leading from the National Airport south to Alexandria." P 3. Finally, the parties agreed that "all plans for construction of the bridge and related approaches, ramps, and connections are to be approved by the National Park Service, the National Capital Planning Commission, and the Fine Arts Commission." P 11.

 On May 13, 1970, prior to the execution of the exchange agreement, the Associate Director for Professional Services of the National Park Service prepared a memorandum, entitled "Environmental Factors, Dyke Marsh-Potomac Center Project," in an attempt to comply with the requirements of the newly-enacted National Environmental Policy Act. After addressing traffic and aesthetic considerations, the memorandum concluded:

 
there would be minimal adverse environmental import (sic) by reason of granting access to the George Washington Memorial Parkway, and there would be some environmental benefits by reason of Federal ownership of an additional portion of Dyke Marsh.
 
The proposed agreement is in the public interest and should be concluded.

 Since 1973, Mr. Fairchild has submitted several plans for construction of the Potomac access structure. The National Park Service (NPS) has determined that all diagrams submitted by Mr. Fairchild were inadequate. In a letter dated July 7, 1978, the NPS informed Mr. Fairchild that his latest submission was unacceptable. The NPS has not yet approved a plan for construction of the bridge and does not presently have a proposal under consideration.

 MERITS

 Section 102(2)(V) provides, in relevant part, that all federal ...


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