return, NPS would relinquish the height restriction on the Phase II properties in favor of a 60 foot height restriction and would grant WHA an easement over the bed of the Potomac for construction of a seawall, boardwalk and dock. Fish Aff. at para. 14.
On January 17, 1984, following the Federal Register notice, the NPS held a public hearing on the Environmental Assessment of the proposed exchange. The Commission of Fine Arts then held a public meeting on January 31, 1984 to consider the design plans for the proposed project. Based on comments made at those hearings, NPS sought legal advice from the Department of the Interior as to whether NPS had the authority to enter into the proposed exchange of interests. On March 9, 1984, the Solicitor's Office advised NPS that it did have such authority.
WHA then submitted a draft deed of exchange which was rejected by NPS on March 12, 1984.
In rejecting the draft, NPS indicated that certain changes should be made in the agreement, including a decrease in the height of the buildings on Phase II and a further increase in the setback of the buildings from the shoreline. The Park Service also sought additional landscaping and maintenance guarantees, $1 million to construct a park on federal property along the Potomac River west of 31st Street, N.W., and a promise to reconstruct the C & O Canal tidelock at an estimated cost of $350,000. WHA agreed to the changes on April 17, 1984. Thereafter, a revised EA was prepared and distributed. The final proposal provided for a hotel height of 52 feet and an office building height of 60 feet on the Phase II properties.
Additional hearings were held before the D.C. Historic Preservation Board, the Old Georgetown Board of Consultants to the Commission of Fine Arts, the Commission of Fine Arts, the C & O Canal Advisory Commission in June and July, 1984. Those boards and commissions, representing District of Columbia and federal interests, approved the proposed exchange. In July, 1984, plaintiffs requested that the Park Service hold a public hearing on the subject of valuation of the proposed exchange. That request was rejected in short order.
On August 2, 1984, the National Capital Planning Commission approved the proposed exchange in a public hearing. At that time, pursuant to its statutory authority, 43 Stat. 463; D.C. Code §§ 1-2009; 8-101 (1981), the Commission established a national park encompassing the Georgetown Waterfront area.
In October, 1984, the NPS stated its intention to enter into the proposed exchange with WHA.
The process of valuing the interests to be exchanged in the NPS-WHA agreement began in December, 1983. NPS returned WHA's initial appraisal submitted to it in January, 1984 for consideration of additional economic and valuation factors. Another appraisal was submitted in May, 1984, which NPS also concluded would need to be revised. WHA's final appraisal was received on July 20, 1984. Thereafter, NPS proceeded to evaluate and analyze the appraisal and concluded that the interests exchanged were of "approximately equal value" in accord with 16 U.S.C. § 460 l -22(b).
After concluding its appraisal analysis, NPS announced its intention to enter into the proposed agreement in October, 1984. WHA and NPS executed a deed and an escrow agreement for the exchange on January 7, 1985. The agreement included the provisions for the scenic and access easements along the Waterfront, the scenic easement through Phase I, the landscape and perpetual maintenance agreements, the reconstruction of the C & O Canal tidelock, and the modification of the height restriction on Parcel G to allow a 52 foot building on the southern portion and a 60 foot building on the northern portion. The attached map, prepared by the defendants and utilized at the motions hearing (Exhibit 1), illustrates the proposed exchanges. A condition precedent to the agreement is the $1 million payment by WHA for construction of a waterfront park between 31st Street, N.W. and Wisconsin Avenue, N.W. The organizational and institutional plaintiffs in turn filed the present complaint on January 8, 1985 challenging the decision of the federal defendants.
The plaintiffs contend that the proposed exchange is unlawful because it violates 16 U.S.C. § 460 l -9(c), a 1977 amendment to the Land and Water Conservation Fund Act of 1965, 16 U.S.C. § 460 l -5. Alternatively, the plaintiffs argue that if the exchange is permitted, a remand is necessary either to hold a hearing on whether the statutory valuation condition has been met, 16 U.S.C. § 460 l -22(b), or to supplement the record on the valuation question. In their motion for summary judgment, the defendants have raised several issues: the plaintiffs' standing, NPS' statutory authority to enter into the proposed exchange pursuant to 16 U.S.C. § 460 l -22(b), the compliance with the public hearing requirement, id., and the support in the record for the valuation decision. Before reaching the statutory argument, the Court must consider whether plaintiffs have standing to challenge the proposed exchange.
The basic criteria for standing are clear and certain.
Art. III requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' . . . and that the injury 'fairly can be traced to the challenged action,' and 'is likely to be redressed by a favorable decision. . . .'
Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (quoting Gladstone Realtors v. City of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976)). The standing requirement itself is made up of a constitutional component, the redressable injury in fact test, and a prudential component. The prudential requirements are such that the plaintiff's complaint must allege more than a generalized grievance shared by the entire population and "that the plaintiff's complaint fall within 'the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'" Valley Forge, 454 U.S. at 475 (quoting Association of Data Processing Service Orgs. v. Camp, Inc., 397 U.S. 150, 153, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970)). See also Glass Packaging Institute v. Regan, 237 U.S. App. D.C. 378, 737 F.2d 1083, 1087-88 (D.C. Cir. 1984), cert. denied, 469 U.S. 1035, 105 S. Ct. 509, 83 L. Ed. 2d 400 (1984).
Defendants contend that there is no allegation or showing that the plaintiffs actually use the national park area around which this litigation revolves or that they would be affected by the proposed development and that the injuries claimed are "undifferentiated" from that of the general public. Federal Defendants' Memorandum in Support of Motion to Dismiss or for Summary Judgment at 5. They do not appear to challenge the zone of interests requirement,
but rather focus on the injury in fact and generalized grievance principles. There should be little doubt that the organizational plaintiffs have standing to pursue an action on behalf of their members who contend that they would be injured by the proposed exchange. The Supreme Court has clearly held that the injury in fact test is satisfied where an environmental or aesthetic harm is claimed if the organization demonstrates that its members use the area and "claim that the specific and allegedly illegal action of the Commission would directly harm them in their use of the natural resources of the . . . Area." United States v. SCRAP, 412 U.S. 669, 687, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973). The fact that the harm is generalized does not diminish their claim to standing. Id. Cf. Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972) (although a generalized environmental and aesthetic injury can constitute an injury in fact, plaintiff, who did not show a direct injury through its members use, did not have standing to sue).
The organizational plaintiffs have submitted an affidavit demonstrating that its members use the area affected by the proposed exchange. March 30, 1985 Affidavit of Ann Satterthwaite at paras. 4, 5. The fact that the government is surrendering only air rights, rather than a parcel of property, does not diminish the injury. The alleged injury resulting from the exchange, namely taller structures on Parcel G, would directly impact the users of neighboring Rock Creek Park or the Potomac River. This injury is independent of the plaintiffs' desire to have the entire area converted into a federal park and thus is a more concrete injury than a "disappointed dream." The harm occurs only when the height restriction is lifted as evidenced by the fact that Parcel G is currently privately held, yet plaintiffs are claiming no injury from the fact that the area is not an entire federally owned national park. The plaintiff organizations have satisfactorily established that they have standing to challenge the action taken by the National Park Service. Capital Legal Foundation v. Commodity Credit Corp., 228 U.S. App. D.C. 467, 711 F.2d 253, 259 (D.C. Cir. 1983). See also Glacier Park Foundation v. Watt, 663 F.2d 882 (9th Cir. 1981) (party seeking to challenge award of concession contract in national park had standing to sue because its economic and aesthetic interests were within the zone of interests); Nationalal Audubon Society v. Clark, 606 F. Supp. 825, slip op. at 13-16 (D. Alaska 1984) (organizations had standing to seek declaratory relief to prevent a proposed land exchange in Alaska authorized by the Secretary of Interior pursuant to statute which allows the exchange if it is determined to be in the "public interest" where the lands exchanged are of unequal value).
The determination of an institution's standing is also governed by the same principles as that which controls individual standing -- the injury in fact test. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 71 L. Ed. 2d 214, 102 S. Ct. 1114 (1982) ("If, as broadly alleged, petitioners' steering practices have perceptibly impaired HOME's ability to provide counseling and referral services for low-. and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact"). The allegations in the affidavit submitted on behalf of the Human Environment Center indicates that pursuit of its goals would be injured by the proposed exchange. April 3, 1985 Affidavit of Sydney Howe at para. 3.
II. STATUTORY INTERPRETATION
A. 16 U.S.C. § 460 l -22(b)
The defendants rely on 16 U.S.C. § 460 l -22(b) ["§ 22(b)"], a 1968 amendment to the Land and Water Conservation Fund Act, supra, for their authority to proceed with the proposed land exchange. Section 22(b) provides:
Exchange of lands; other disposal; equal land values