See Admin. Rec., Tab 115 at 775. The Park Service retained the right to make additional changes to the project, noting that RF&P still needed specific construction permits before it could begin work on the interchange. See Admin. Rec. at Tabs 68, 124.
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;
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). In reaching his decision, Judge Bryan of necessity had to assume the continuing validity of the Exchange Agreement then almost thirteen (13) years old.
In August of 1984, the United States conveyed to RF&P
a deed of easement, which granted the railroad a perpetual easement across the parkway. See Admin. Rec. at Tab 159. No construction permits have been approved for the interchange.
On August 27, 1986, plaintiffs in a lengthy complaint (later amended on February 20, 1987) commenced the instant action. They allege that the Secretary's approval of the Land Exchange Agreement in June of 1970 and the National Park Service's subsequent approval of the interchange design in 1981 violate the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; the National Capital Planning Act, 40 U.S.C. § 71 et seq.; the Capper-Cramton Act, 46 Stat. 482; the Mount Vernon Highway Act, 45 Stat. 721; the National Park Service Organic Act, 16 U.S.C. § 1 et seq.; the Land and Water Conservation Fund Act, 16 U.S.C. § 460l(b)-22; the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq.; and Executive Order No. 11,988 concerning floodplain areas.
The Position of Defendants
Defendants raise three threshold defenses against plaintiffs' claims.
First and foremost, they assert that plaintiffs' claims are barred by the doctrine of laches. Second, defendants argue that those counts
of the Amended Complaint asserting violations of the Land and Water Fund Conservation Act, the National Park Service Organic Act, the Mount Vernon Memorial Highway Act, the Capper-Cramton Act, the National Capital Planning Act, and Executive Order No. 11,988 cannot be enforced by plaintiffs because none of these statutes or the Executive Order give rise to a private cause of action. Finally, they argue that count I of the Complaint (violations of NEPA) is moot since Congress enacted legislation requiring the Park Service to prepare an EIS on the traffic impact of the Potomac Greens development.
A. The Defense of Laches
Defendants assert that plaintiffs' challenges to the Secretary's 1970 approval of the Land Exchange Agreement and the National Park Service's 1981 approval of the interchange design are barred by laches, plaintiffs' complaint having been filed 16 and 5 years after the challenged actions respectively. Although laches is a disfavored defense in environmental suits, see Coalition on Sensible Transportation, Inc. v. Dole, 642 F. Supp. 573, 588 n.5 (D.D.C. 1986), it is nevertheless well settled that, under the appropriate circumstances, this equitable doctrine applies to environmental litigation. See, e.g., Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860, 867 (5th Cir. 1975), Peshlakai v. Duncan, 476 F. Supp. 1247, 1256 (D.D.C. 1979). As with other types of litigation, the party asserting a laches defense bears the burden of proving 1) unreasonable delay by the plaintiffs in asserting a claim, and 2) undue prejudice as a result of the delay. Id.
Furthermore, for the purpose of this discussion, we confine the defendants' assertion of laches as going to the plaintiffs' failure to challenge the Land Exchange Agreement for over fifteen years. We reserve for separate consideration that aspect of plaintiffs' complaint which challenges the approval of the interchange design.
1. Unreasonable delay
Plaintiffs challenge the agency action consisting of the Secretary's approval of the Land Exchange Agreement in which the United States acquired 28.5 acres of wetlands destined for development in return for a right of access over the Parkway. Plaintiffs argue that the Land Exchange Agreement is invalid because the Secretary failed to comply with various statutory requirements prior to approving the land exchange.10 Thus, plaintiffs' complaint was filed 16 years after the Secretary's approval of the land exchange and 15 years after the Exchange Agreement, which plaintiffs now seek to have invalidated, took effect.
We have no difficulty in concluding that plaintiffs 16-year delay in bringing their claims challenging the validity of the Exchange Agreement was clearly excessive. Whether a delay in bringing suit is unreasonable also depends on a number of additional factors, including whether the plaintiff has expressed early opposition to the challenged agency action, the nature of the agency's response, and the extent of actions, such as preparatory construction, that tend to motivate citizens to investigate legal bases for challenging the agency action. See Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 854 (9th Cir. 1982). All of these add up to excuses offered by plaintiffs for their inaction.
Plaintiffs do not contend that they were unaware of the Secretary's approval of the land exchange.
Rather, they argue that the 16 year delay in asserting their challenge to the Exchange Agreement should be excused because the United States did not convey an easement over the Parkway until 1984 and that, for a number of years, the Regional Director of the National Park Service recommended that the easement be repurchased. We note that only one plaintiff, Northeast Citizens Association, voiced opposition to the land exchange itself prior to instituting the instant suit.
We find this excuse to be without merit.
The record reflects that beginning in 1976, the Regional Director of the National Park Service recommended that the access rights be repurchased. See Admin. Rec. at Tabs 56, 162. However, the National Park Service never adopted this recommendation. At the same time, the Service made efforts to obtain more concrete plans for the proposed Potomac Center development and interchange in order to facilitate review of the construction plan and minimize the environmental impact before approving the access rights in 1984. See Admin. Rec. at Tabs 67, 69, 70, 77, 80, 92, 93.
Although it is clear that the Park Service considered repurchasing the access rights, the record also demonstrates that the Park Service, nevertheless, at all times, treated the Agreement as binding. The fact the Park Service considered, among its various options, repurchasing the access rights provides no excuse for plaintiffs' 15-year delay in challenging the validity of the Agreement. In delaying instituting action on the Agreement, plaintiffs ran the risk that the agency ultimately would not approve repurchasing the access rights. This is, in fact, exactly what occurred in the instant case. The mere hope that the agency would someday repurchase the access rights that the agency bound itself to convey as early as 1971, is not sufficient justification for plaintiffs' failure to act.
It is also of no help to plaintiffs that an action brought by two of the plaintiffs now before us in 1978 was held to be premature. As previously mentioned, that suit, decided by Judge Gasch of this Court, did not challenge the validity of the Exchange Agreement itself. Rather that proceeding sought only to enjoin the defendants from acting on an application for approval of construction plans for the traffic interchange until the defendants complied with the procedural requirements of NEPA. That action did not seek to have the Agreement itself invalidated. That issue was ripe for judicial review at that time, since the approval took place in 1970. Instead, plaintiffs slept on their rights and chose not to press their claims regarding the validity of the Exchange Agreement until 1986, 16 years after the agency action which they now challenge.
2. Undue prejudice
Plaintiffs argue that setting aside the Exchange Agreement at this late date would still be efficacious, since no construction activities on the interchange have begun and the natural environment in that area remains undisturbed. However, plaintiffs completely ignore the other half of the Exchange Agreement: the United States acquisition of ownership of Dyke Marsh. Even though there has been no preparatory construction on the site of the traffic interchange, we cannot overlook or turn our back to the environmental importance of the wetlands having been placed under government ownership since 1971. It is singularly ironic that plaintiffs dedicated to the preservation of environmental values should pay no attention to these factors.
Dyke Marsh is a particularly delicate wetlands area, the development of which would have been environmentally disastrous. See Admin. Rec. at Tab 21. These wetlands have become an integral part of the National Park System which the public has been able to enjoy for almost 20 years. Their acquisition protected the environmental integrity of over 400 acres of abutting wetlands already owned by the United States. Setting aside the Exchange Agreement at this late date would terminate a right the public has enjoyed for almost a decade: the right to continued enjoyment of the wetlands in their pristine state. "Laches does serve other purposes collaterally, if not directly, including minimizing the disruption and expense caused by granting certain relief." Powell v. Zuckert, 125 U.S. App. D.C. 55, 366 F.2d 634, 638 (D.C. Cir. 1966).
Additional factors to be weighed in determining the existence of undue prejudice include the level of time and resources already committed to a project by the defendants and the degree to which project construction has progressed. Although we do not view this time and expense standing alone or the degree of development at the interchange site
to rise to the requisite level of prejudice that would justify application of the laches doctrine, we do conclude that they in combination with the prejudice to the public that would ensue from depriving the public of the continued enjoyment of the wetlands constitutes sufficient prejudice to the government to invoke the defense of laches.
We accordingly hold that this doctrine of repose is especially applicable to the facts herein and that plaintiffs are barred by laches from presenting their challenge to the validity of the Exchange Agreement.
B. The Issue of Mootness
Entirely apart from plaintiffs' challenge to the Land Exchange Agreement, which we preclude on grounds of laches, there remains the separate issue of the approval by the National Park Service in 1981 of the interchange design. Plaintiffs claim that this approval violated NEPA because no EA or EIS was prepared and no public participation or interagency consultation occurred prior to said approval. Plaintiffs further seek to have this Court order the Park Service to prepare an EIS or a supplemental EA on the entire transaction including the interchange design.
On December 21, 1987, Congress enacted legislation
requiring the National Park Service to prepare an EIS for the Potomac Greens site. The Act precludes the Park Service from awarding a construction permit for the Potomac Greens interchange until it has prepared an EIS that reviews:
the traffic impact of only the proposed 38-acre development opposite Daingerfield Island west of the George Washington Memorial Parkway . . . [and] the impact of the planned development on the visual, recreational and historical integrity of the Parkway. Id. (Emphasis supplied.)
The Act further states:
The [EIS] shall also provide an evaluation of the alternative acquisition strategies to include but not be limited to appraisal estimates for the access rights, the entire 38-acre parcel, that portion of the 38-acre parcel as defined approximately by the historic boundary line, and any other recommendations by the Park Service to mitigate the Parkway degradation effects of the proposed development so as to adequately protect and preserve the Parkway.