the site. In this regard, it is important to note that the defendants themselves possess the means to implement the section 106 review process. A direct correlation exists between the vigor and speed with which they comply with the statutory mandate and the point at which construction of the CTF can resume.
Finally, although their desire to proceed with the CTF and their frustration with this lawsuit is certainly understandable, defendants have not complied with the requirements of a statute passed by the Congress and, more significantly, they have not offered an acceptable explanation for their failure to do so. NHPA was enacted, however, to strike "a meaningful balance . . . between preservation of the important elements of our heritage and new construction to meet the need of our ever growing communities and cities." H. Rep. 1916, 89th Cong., 2d Sess. 7 (1966). Cavalier disregard for those procedures, or a judicial determination that they should be foregone, would impermissibly tilt the balance created by Congress and would ill-serve the critical goals codified in the Act. Even for so important a public project as construction of a new jail, government frustration cannot be permitted to trump requirements contained in the law.
For the reasons set forth above, the plaintiffs are entitled to the declaratory and injunctive relief that they seek. Although this relief will be granted and this case dismissed, plaintiffs also have requested attorney's fees and costs. See Complaint at 19. This matter can be and customarily is briefed subsequently to the decision on the merits. Accordingly, briefing is temporarily deferred to afford the parties an opportunity to amicably resolve this issue. If an agreement is not reached, the parties shall submit briefs in accordance with the schedule set forth in the accompanying Order.
A separate Order accompanies this Memorandum Opinion.
March 1, 1989
In consideration of the Memorandum Opinion issued this date, it is
DECLARED that defendants have failed to comply with the obligations and duties imposed by sections 106, 110(b) and 110(d) of the National Historic Preservation Act and Executive Order 11,593 prior to the expenditure of funds for the construction of the District of Columbia's community treatment facility; it is
ORDERED that the defendants, Attorney General Richard Thornburgh, Secretary of Interior Manuel Lujan, Jr., the District of Columbia, Mayor Marion Barry, Jr., and Director of the District of Columbia's Department of Public Works John Touchstone, and all of their agents, are hereby enjoined from taking any action that may adversely affect Gallinger Municipal Psychopathic Ward (Gallinger Hospital), the prehistoric archaeological site, and the Congressional Cemetery, unless and until the defendants have fully complied with the requirements of sections 106, 110(b) and 110(d) of the National Historic Preservation Act and Executive Order 11,593; it is
FURTHER ORDERED that, in consideration of the immediacy of the matters hereby enjoined and for the reasons stated in the Memorandum Opinion granting this injunction, there shall be no stay of this Order in the event that defendants elect to note an appeal; it is
FURTHER ORDERED that plaintiffs shall file their application for attorney's fees and costs on or before April 3, 1989; opposition shall be filed by April 24, 1989; reply, if any, is due by May 1, 1989. Should there be a timely appeal, this separate order as to fees and costs shall be stayed until the United States Court of Appeals for the District of Columbia has issued its final ruling in this case; and it is
FURTHER ORDERED that this action be and it hereby is dismissed.
March 1, 1989