Defendants contend that because the Park Amendment was deemed approved at the end of 60 days in the absence of any adverse decision by the National Commission, the plaintiffs' action comes too late. According to defendants, the only time that a justiciable legal challenge may be filed against the National Commission is within the 60-day period.
Defendants essentially ask this Court to rule that any time the National Commission fails to act, its inaction is unreviewable. Defendants depict their argument as allowing a limited period for judicial review, but, plainly, their tortured interpretation of the statute allows no time in which a legal attack may properly be mounted.
There obviously exists no cause of action until the National Commission has acted in some way -- either by rejecting or approving the Amendment, or by allowing the 60 days to expire without acting. In the face of inaction by the National Commission, plaintiffs' cause of action could not accrue until the 60th day had expired. Until that time, the National Commission might still have acted to reject, approve, or otherwise deal with the proposed Amendment. Defendants' position is clearly untenable, as it would mean that plaintiffs' cause of action expired the moment it accrued.
The National Commission's failure to act does not become "unreviewable" simply because the proposal has become effective, as defendants argue. Defendants contend that since the NCPA provides that a plan "shall be implemented" if the Commission fails to act, the plan is now immune from attack. If this were the case, anytime an agency made a decision which had the force of law, no judicial review would be available. This is an untenable conclusion and a misinterpretation of the NCPA. While an agency's decision may have the force of law, a legal challenge filed in the proper judicial forum may result in that action being reversed or invalidated. The National Commission's actions or failures to act are not immune from judicial review anymore than the actions of any other agency.
Defendants next argue that this Court may not invalidate a District of Columbia law, because it has the force of a Congressional enactment. The Park Amendment became law when Congress failed to act upon the Comprehensive Plan in the time allowed by the Home Rule Act. Defendants' position lacks merit entirely. Clearly Congress could not have intended that its silence could permit an invalid law to withstand legal challenge. This Court has authority to invalidate the District of Columbia's actions where those actions contravene federal law.
Where the NHPA has been violated and an action is being undertaken in violation of the Act's requirements, "injunctive relief should be granted against continuation of the action until the agency brings itself into compliance." Realty Income Trust v. Eckerd, 183 U.S. App. D.C. 426, 564 F.2d 447, 456 (D.C. Cir. 1977). In Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S. App. D.C. 380, 463 F.2d 783 (D.C. Cir. 1971), the Atomic Energy Commission had failed to prepare a sufficient environmental impact statement, and the court ruled that the project could therefore not go forward, even though Congress had authorized and released funds for the project. Congressional approval of agency action is contingent on the agency's following the necessary procedures. Congress cannot excuse an agency from executing its duties, and any claim of a violation must be determined and remedied by the courts. Id. at 705.
Likewise, a court may apply its equity powers to invalidate a statute passed due to an agency's violation of the law. In this case, Congress' approval of the Comprehensive Plan was based on the assumption of its having been validly prepared and submitted. Certainly, had Congress been aware that the Plan was the product of regulatory violations, it is hoped it would have exercised its veto authority. This Court has determined that the Park Amendment was improperly approved and is therefore invalid. The appropriate remedy, therefore, is to void the Park Amendment and to prohibit any actions taken in reliance upon it.
The NHPA stresses Congressional commitment to this nation's historic, cultural, and environmental heritage. In addition, Congress enacted a specific procedure for land-use and planning in the District of Columbia, which emphasizes the importance of these concerns in the nation's capital. The National Commission has a responsibility to abide by the governing procedures, regardless of the agency's independent assessment of the proposal. If, as defendants contend, the Park Amendment has little effect on the protected interests in the Park, the § 106 procedure should not be burdensome.
It is hoped, the process will bring together important competing interests and, under the aegis of the Advisory Council, allow for a compromise from which the parties as well as the citizens of the District of Columbia will profit. The procedure is not designed to inhibit development; rather, its purpose is to assure that land development takes place in a manner which respects the historic and cultural interest that this nation has in its Capital. The National Commission's failure to comply with the procedure was unacceptable. Because its approval of the Park Amendment is void as an arbitrary and capricious act in violation of the governing statutes, the defendants will be enjoined.
An Order accompanies this Opinion.
ORDER - March 21, 1991, Filed
Upon consideration of cross-motions for summary judgment, the memorandum and exhibits in support thereof, all responses and oppositions thereto, oral argument, and the entire record in this case, it is hereby
ORDERED, that plaintiffs' motions for summary judgment are granted in part; and it is further
ORDERED, that the McMillan Park Amendment of the Comprehensive Plan Amendments Act of 1989, D.C. Law 8-138, is void as a matter of law because the National Commission failed to comply with § 106 of the NHPA; and it is further
ORDERED, that defendants are hereby enjoined from implementing the McMillan Park Amendment until such time as the National Commission has complied with the § 106 procedure.