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DAINGERFIELD ISLAND PROTECTIVE SOCY. v. HODEL

April 7, 1989

DAINGERFIELD ISLAND PROTECTIVE SOCIETY, et al., Plaintiffs,
v.
DONALD P. HODEL, Secretary, U.S. DEPARTMENT OF INTERIOR, et al., Defendants



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE.

 Three citizens groups, Daingerfield Island Protective Society ("DIPS"), Save the George Washington Parkway, Northeast Citizens Association, and three individuals bring this action against the Secretary and Assistant Secretary of the United States Department of Interior ("the Secretary"), certain named officials of the National Park Service, and the National Capital Planning Commission. Plaintiffs seek to set aside a 1970 Land Exchange Agreement, under which the United States Government acquired title to certain wetlands, known as Dyke Marsh located along the shores of the Potomac River between Alexandria and Mount Vernon, in exchange for granting the former owner of the wetlands an easement over the George Washington Memorial Parkway near Daingerfield Island to construct an interchange providing access to and from a parcel of land referred to as Potomac Greens. Plaintiffs also seek to void the approval of the interchange design granted by the National Park Service in 1981 and the National Capital Planning Commission in 1983. On November 26, 1986, Richmond, Fredericksburg and Potomac Railroad Company ("RF&P"), the owner of Potomac Greens, and Potomac Greens Associates Partnership were granted leave to intervene as defendants.

 Plaintiffs contend that the departmental decisions that led to the execution of the Exchange Agreement and approval of the interchange violate the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., as well as numerous other statutes.

 Background

 On June 5, 1970, Secretary of the Interior Walter Hickel signed a Land Exchange Agreement (hereinafter sometimes "Exchange Agreement"), under which the United States would receive title to a 28.8-acre tract of land known as Dyke Marsh *fn1" in exchange for an easement over the George Washington Memorial Parkway near Daingerfield Island to construct a traffic interchange. *fn2" As stated previously, the traffic interchange is intended to provide access over the George Washington Parkway to a 38.5-acre parcel of land referred to as Potomac Greens (or Potomac Center) located across the Parkway from Daingerfield Island. *fn3"

 Pursuant to the Agreement, the United States obtained title to Dyke Marsh by Warranty Deed dated June 30, 1971. See Warranty Deed, Admin. Rec. at Tab 30. *fn4"

 Environmental Reviews

 There have been numerous environmental reviews over the past nearly two decades. On May 13, 1970, prior to the approval of the land exchange by the Secretary of Interior, the Associate Director for Professional Services of the National Park Service prepared a memorandum entitled "Environmental Factors, Dyke Marsh-Potomac Center Project," which 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.

 Admin. Rec. Tab 21 at 97.

 In 1976, the National Capital Region of the National Park Service prepared a draft environmental assessment regarding granting the access rights over the Parkway. See "Potomac Center Access, Environmental Assessment, Mount Vernon Memorial Parkway" (August 1976), Admin. Rec. at Tab 55. After reviewing aesthetic and traffic considerations of various alternative approaches *fn5" to granting the access rights, this environmental assessment concluded that conveying access rights to the Parkway from Potomac Center would have a detrimental environmental impact and that the access rights should not be granted. See id., Tab 55 at 492. This 1976 environmental assessment was never adopted as final, however, because the National Capital Region was informed by its counsel that, under the Exchange Agreement, it was bound by the terms of the Exchange Agreement and could not refuse to convey access rights to the developer. See Admin. Rec. at Tabs 54, 58. The 1976 environmental assessment thereafter became a working paper for the Regional Director's recommendation that the access rights be purchased back from the developer. See Admin. Rec. at Tab 58. However, the National Park Service never adopted the Regional Director's recommendation that the access rights be repurchased for the likely reason that funds were not available.

 In 1978, two of the plaintiffs in the instant proceeding, DIPS and Kenneth Williams, brought suit against the Department of Interior seeking to enjoin the Department from considering approving the interchange design of the access over the Parkway until an Environmental Impact Statement had been prepared. The District Court dismissed the case as premature because the National Park Service had not acted upon any proposal for the interchange design. See Daingerfield Island Protective Society v. Andrus, 458 F. Supp. 961 (D.D.C. 1978); Plaintiffs did not challenge the validity of the Exchange Agreement which at the time had been in existence for seven years.

 In October of 1983 the National Park Service completed an environmental assessment ("EA") of the design of the proposed interchange. See "Environmental/Design Assessment, Crossing of George Washington Memorial Parkway at Daingerfield Island" (October 1983), Admin. Rec. at Tab 148. Because it was believed that the Park Service was legally obligated under the Exchange Agreement to grant the access rights, the EA did not consider the alternative of not granting the access rights. See id., Tab 148 at 806.

 The Commission of Fine Arts had previously approved the design of the proposed interchange on April 19, 1983, see Admin. Rec. at Tab 131; *fn6" the National Capital Planning Commission approved the interchange on November 3, 1983, see Admin. Rec. at Tab 153.

 In 1982, the Fairchilds sued to rescind the Exchange Agreement for lack of consideration. After this suit was dismissed on jurisdictional grounds, the Fourth Circuit Court of Appeals reversed. Upon remand, Judge Bryan of the United States District Court, in a lengthy opinion, denied the Fairchilds' claim to rescind, holding that "the railroad would be prejudiced if rescission were granted, in the light of the delay caused by plaintiffs' [Fairchilds'] conduct". Fairchild v. United States, No. 82-71-A, slip op. at 14 (E.D. Va. June 4, 1984) aff'd, No. 84-1854, slip op. (4th Cir. Aug. 22, 1985). ...


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