Tabs 115, 130, 153. The deed was issued to RF&P as successor to Fairchild, which had terminated its lease due to the delays in the approval process.
In 1986, RF&P entered into a joint venture and announced plans to develop a somewhat smaller Potomac Greens complex than Fairchild had originally proposed. Plaintiffs then commenced this action, which culminated in an amended complaint filed February 20, 1987 consisting of 32 pages containing 137 separate factual allegations and 15 separate prayers for relief. In this free-swinging and far-reaching complaint, plaintiffs allege that the Exchange Agreement violated numerous statutes.
Plaintiffs in addition allege that NPS' approval of the interchange design violated numerous statutes, including the National Environmental Policy Act of 1969 ("NEPA") (Count I); the Mount Vernon Highway Act and the Capper-Cramton Act (Count III); the National Park Service Organic Act (Count IV); the Administrative Procedure Act ("APA") (Count VI); the National Historic Preservation Act (Count IX); as well as Executive Order No. 11988 and Floodplain Management Guidelines found at 45 Fed. Reg. 35916 (May 28, 1980) (Count VIII).
This case is not new to us. The procedural history begins with our decision of April 14, 1989, which dismissed plaintiffs' challenges to both the validity of the 1970 Exchange Agreement, and the approval of the interchange design by NPS in 1981.
After appeal by plaintiffs, the case returned to us on remand from the Court of Appeals, pursuant to its decision of November 30, 1990.
Intervenors petitioned the Supreme Court for review on the applicability of the laches doctrine, but certiorari was denied on October 7, 1991. Richmond, Fredericksburg & Potomac Railroad Co. v. Daingerfield Island Protective Society, 116 L. Ed. 2d 31, 112 S. Ct. 54 (1991).
On July 14, 1992, we entered a Memorandum Opinion which dismissed plaintiffs' remaining challenges to the Exchange Agreement as time barred pursuant to 28 U.S.C. § 2401(a).
In that opinion, we expressly reserved reaching plaintiffs' remaining claims regarding the approval of the interchange design pending a hearing. A hearing was held on the remaining claims before this Court on September 21, 1992, at which time we requested the parties rebrief the remaining issues. We now address plaintiffs' remaining challenges to the approval of the interchange design.
Pursuant to Fed. R. Civ. P. 56(c), a party is entitled to summary judgment upon a showing "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Each party has moved for summary judgment on the remaining issues in this case.
We seek to be clear that plaintiffs' remaining right of action is limited to the judicial review provision of the Administrative Procedure Act ("APA") 5 U.S.C. § 702.
The standard of review set forth in the APA is highly deferential. This Court must uphold an agency action unless we find that the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971) (citing 5 U.S.C. §§ 706 (2)(A), (B), (C), (D) (1964 ed., Supp. V)); accord Matson Navigation Co., Inc. v. Federal Maritime Comm'n, 295 U.S. App. D.C. 35, 959 F.2d 1039, 1043 (D.C. Cir. 1992). Our role in review is limited. We are not called upon to agree or disagree with NPS' actions. The APA forbids substituting a court's judgment for that of the agency, and requires us to affirm an agency action if a rational basis exists for the agency decision. Ethyl Corp. v. Environmental Protection Agency, 176 U.S. App. D.C. 373, 541 F.2d 1 (D.C. Cir. 1976); Natural Resources Defense Council, Inc. v. S.E.C., 196 U.S. App. D.C. 124, 606 F.2d 1031 (D.C. Cir. 1979). Counts I, II and V have been previously dismissed and are no longer before us. We will treat plaintiffs' remaining claims one at a time, in the order in which they were brought.
Plaintiffs' Count III: The Mount Vernon Memorial Highway Act ("MVMHA") and The Capper-Cramton Act
Plaintiffs allege that the NPS violated the letter and intent of the MVMHA and the Capper-Cramton Act when in 1981 it approved the interchange design. Plaintiffs claim that such an interchange would "disrupt the aesthetic and scenic quality of the Daingerfield Island stretch of the Parkway; dramatically increase the amount of traffic on the Parkway, thereby degrading the air and water quality and increasing noise levels; and will result directly in . . . a visual intrusion on the scenic character of the Parkway." Plaintiffs' Amended Complaint at pp. 17-18.
The MVMHA was enacted on May 23, 1928. The Act authorizes and directs the construction of "a suitable memorial highway to connect Mount Vernon, the home and burial place of George Washington, in the State of Virginia, with the south end of the Arlington Memorial Bridge, . . ."
The Act provides for the acquisition of land and appropriates funds through the fiscal year ending June 30, 1931.
The only reference the MVMHA makes to action beyond the construction of the Parkway, is that the Secretary of Agriculture shall cause the Parkway to be "properly maintained."
The Capper-Cramton Act was enacted two years later on May 29, 1930. It expanded upon the MVMHA, providing "for the acquisition, establishment, and development of the George Washington Memorial Parkway . . . and to provide for the acquisition of lands in the District of Columbia and the States of Maryland and Virginia requisite to the comprehensive park, parkway, and playground system of the National Capital."
The Act appropriates such funds "as required for the expeditious, economical, and efficient development and completion" of certain projects, including the Parkway.
Like the MVMHA, no reference is contained in the Capper-Cramton Act regarding governmental actions subsequent to the Parkway's completion. Furthermore, plaintiffs' argument that the Capper-Cramton Act applies to the approval of the interchange design by the NPS in 1981, already farfetched, loses all credibility in light of that portion of the Act which decrees that it shall apply to the Parkway, "to include the shores of the Potomac, and adjacent lands, from Mount Vernon to a point above the Great Falls on the Virginia side, except within the city of Alexandria," (emphasis added).
Since the proposed interchange design is located strictly within the city of Alexandria,
the Act, by its own express terms, does not apply to the proposed interchange.
It is clear from reading both the MVMHA and the Capper-Cramton Act that neither of these acts was intended to reach the specific conduct of which plaintiffs complain. It is clear that these Acts were intended to relate primarily to appropriations functions. The one reference to future maintenance found in the MVMHA is far too vague to allow for such specific enforcement as plaintiffs here request. The Capper-Cramton Act likewise fails to provide for future maintenance and planning, and, as noted above, expressly does not apply to Alexandria, VA, the site of the proposed interchange. Accordingly, we can not find that NPS approval of the interchange design violated either one of these statutes, assuming that either or both applied. Nor can we find that NPS' approval was somehow arbitrary, capricious, or an abuse of discretion in light of these statutes.
Plaintiffs' Count IV: The National Park Service Organic Act
Plaintiffs allege that NPS' approval of the interchange design violated the National Park Service Organic Act ("Organic Act"), 16 U.S.C. § 1 et seq. The Organic Act establishes the National Park Service and directs it to:
promote and regulate the use of Federal areas known as national parks, monuments, and reservations . . . by such means and measures as conform to the fundamental purpose of said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.
16 U.S.C. § 1. Unlike in the case of the MVMHA and the Capper-Cramton Act, we do not question the applicability of the Organic Act to NPS' actions regarding the proposed interchange. The Parkway is a part of the "national park system," as defined in the Organic Act.
It is clearly covered by the Organic Act and thus is within the administrative jurisdiction off the NPS.
The question before us is whether NPS' approval of the interchange design was a violation of the APR in light of the provisions of the Organic Act. Congress clearly intended the Secretary of the Interior ("Secretary") to have an affirmative duty "to take whatever actions and seek whatever relief as will safeguard the units of the National Park System." Senate Report 95-528, 95th Cong., 1st Sess., 9 (October 21, 1977). Congress did not, however, spell out any specific direction as to how this duty must be undertaken.
Accordingly this court concluded in Sierra Club v. Andrus, 487 F. Supp. 443 (D.D.C. 1980), that the Secretary has broad, but not unlimited discretion in determining what actions are best calculated to protect Park resources.
In order to determine whether NPS had a rational basis for its approval of the interchange design, it is most instructive to examine the extensive Administrative Record and the information available to the NPS at the time the approval decision was made by the Department of the Interior in April of 1981.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1972). We may not properly consider the "evidence" of the negative effects predicted to flow from the proposed interchange taken by plaintiffs from an Environmental Impact Statement apparently published in February of 1991.
It is not disputed that there is a judicial presumption favoring the validity of an administrative action. See Duesing v. Udall, 121 U.S. App. D.C. 370, 350 F.2d 748 (D.C. Cir. 1965). The Administrative Record reveals that NPS spent more than seven years studying interchange design options and their projected impacts on the Parkway. Admin. Rec. Tabs 35-115. Multiple studies of the impact of the proposed interchange designs on both traffic flow and the surrounding environment were commissioned and examined. See, for example, Admin. Rec. at Tabs 45, 53, 55, 72, 76-78. Previous studies undertaken in relation to the Exchange Agreement were also considered. The NPS considered and rejected several designs proposed by Fairchild, in part for being "inadequate" and unduly interfering with recreational activities on Daingerfield Island, including biking, soccer and a marina. Admin. Rec. Tab 87. Plaintiffs do not dispute that the final diamond interchange design approved by NPS, which reserved the right to make subsequent modifications, is the most appropriate and least intrusive of all of the interchange designs proposed.
Plaintiffs seem to suggest that NPS' approval of any interchange design was arbitrary and capricious and an abuse of discretion in light of the information available. indeed, there is evidence that NPS itself considered recommending that no interchange be approved or built and that the government explore repurchasing the easement rights it had traded to Fairchild in the 1970 Land Exchange Agreement.
However, NPS was firmly advised by counsel that the Exchange Agreement was legally binding. See Admin. Rec. at Tab 153. Thus the only choice left to NPS was to approve the least intrusive interchange possible, which it did, or to refuse to approve any interchange at all, which would have violated the Exchange Agreement that it had been informed was legally binding on the federal government.
Where several administrative solutions exist for a problem, courts will uphold any one with a rational basis, so long as the balancing of competing solutions is not an arbitrary one. See Wilderness Public Rights Fund v. Kleppe, 608 F.2d 1250, 1254, (9th Cir. 1979) citing Udall v. Washington, Virginia and Maryland Coach Co., 130 U.S. App. D.C. 171, 398 F.2d 765 (D.C. Cir. 1968), cert. denied, 393 U.S. 1017, 21 L. Ed. 2d 561, 89 S. Ct. 622 (1969). It is clear from the Administrative Record that NPS' approval of the diamond interchange design was not an arbitrary decision. The Administrative Record clearly demonstrates that NPS expended years of effort to select the least intrusive design alternative for the proposed interchange. Defendants plainly were acting within the scope of their statutory authority, and plaintiffs' claim must fail.
Plaintiffs' Claim VI: Violations of the Administrative Procedure Act ("APA")
Plaintiffs allege that the approval of the interchange design constituted a "rule" as defined by the APA at 5 U.S.C. § 551. If the approval was a rule as plaintiffs allege, then the government was required to provide "interested persons" with notice and opportunity to comment as a part of the rulemaking process,
which the government clearly did not do. Plaintiffs further allege that whether or not the approval of the interchange design constituted a rulemaking, the government was required to publish in the Federal Register notice of the approval as an action that may affect members of the public, pursuant to 5 U.S.C. § 552. The government clearly did not publish such notice.
Defendants object that the approval of the interchange design was not a "rule" as defined in 5 U.S.C. § 551(4), and therefore the APA's notice and comment requirements do not apply. Defendants further argue that 5 U.S.C. § 552 does not apply to the actions at issue. We agree with defendants and find that NPS' approval of the interchange design was not a "rule" under the APA, and hence did not require compliance with that Act's notice and comment procedures.
We further find that defendants were not required to publish notice of the design approval in the Federal Register pursuant to 5 U.S.C. § 552. At the risk of being charged with "overkill," our reasoning is as follows.
First, the APR defines a "rule" as:
the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services, or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.
5 U.S.C. § 551(4). Rulemaking is defined as "agency process for formulating, amending, or repealing a rule." Id. § 551(5). The APA identifies several necessary components of a rule: it must be of "general or particular applicability"; it must be of "future effect"; and it must be designed to "implement, interpret or prescribe law or policy". See In Re FTC Corporate Patterns Report Litigation, 432 F. Supp. 291, 301 (D.D.C. 1977). NPS' approval of the interchange design was clearly not designed to implement, interpret or prescribe law or policy. The approval was an isolated agency act, which in no way proposed to effect or govern subsequent agency acts or decisions. The approval has no future effect on any other party before the agency. This sort of isolated act is not what the Congress intended to subject to the APA's formal notice and comment process.
Plaintiffs' second claim under the APA alleges that defendants violated the public notice provisions of 5 U.S.C. § 552 by not publishing notice of their approval of the interchange design in the Federal Register. The types of agency information required to be published in the Federal Register are listed at 5 U.S.C. § 552(a)(1).
Although Plaintiffs' Amended Complaint fails to specify what part of § 552(a) was allegedly violated, we assume from the more specific reference found in Plaintiffs' Renewed Motion for Summary Judgment
and from our own reading of the statute that plaintiffs are specifically referring to 552(a)(1)(D).
Subsection (D) requires agencies to publish three things: "substantive rules of general applicability"; "statements of general policy"; and "interpretations of general applicability." 5 U.S.C. § 552 (a)(1)(D). The NPS' approval of the interchange design fits none of these three categories. It was neither generally applicable, nor did it effect general policy. Accordingly, we find that the NPS was under no obligation to publish notice of its approval of the interchange design under 5 U.S.C. § 552 (a)(1)(D).
Plaintiffs' Claim VII: Violations of the National Capital Planning Act
Plaintiffs allege that defendants the National Capital Planning Commission ("the Commission") violated the National Capital Planning Act, 40 U.S.C. § 71a et seq., ("NCPA"), by approving plans for the interchange design which were not in accord with the Commission's comprehensive plan for development of the National Capital region, and argue accordingly that the Commission's approval should be disallowed as arbitrary, capricious and an abuse of discretion. Plaintiffs further argue that the Commission must reconsider the interchange design in light of the altered nature of the proposed development project and in light of "the significant increase in estimated traffic flows on the Parkway" since approval was given in 1983. Plaintiffs' Amended Complaint at p. 23-24.
Plaintiffs appear to have misrepresented the scope of the Commission's review. Defendants cite the Exchange Agreement as the only source of the Commission's review authority. Under the Exchange Agreement the Commission's authority is limited to approval or disapproval of certain design elements off the interchange, and does not include approval or disapproval of the project as a whole. Defendants point to changes in the interchange design that were made in response to the Commission's comments, and argue that the Commission fulfilled its duties under the Exchange Agreement.
The Commission was created by statute in 1924, with its principal duties being:
"to (1) prepare, adopt, and amend a comprehensive plan for the Federal activities in the National Capital and make related recommendations to the appropriate developmental agencies; (2) serve as the central planning agency for the Federal Government within the National Capital region, and in such capacity to review their development programs in order to advise as to consistency with the comprehensive plan; and (3) be the representative of the Federal and District Governments for collaboration with the Regional Planning Council, . . ."