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DAINGERFIELD ISLAND PROTECTIVE SOCY. v. BABBITT

June 7, 1993

DAINGERFIELD ISLAND PROTECTIVE SOCIETY, et al., Plaintiffs,
v.
BRUCE BABBITT, Secretary, U.S. DEPARTMENT OF INTERIOR, 1 et al., Defendants.



The opinion of the court was delivered by: PRATT

 This case is currently before the Court on parties' cross motions for summary judgment. Since there is no genuine dispute as to the facts material to the disposition of this case, summary judgment is appropriate. For the reasons set forth below, we grant defendants' motion for summary judgment.

 Name plaintiff Daingerfield Island Protective Society is a corporation organized under the laws of the District of Columbia. It is a nonprofit corporation created to promote, protect and enhance the quality of the environment of Daingerfield Island, an area of approximately 107 acres located along the Potomac River in Alexandria, Virginia. Additional plaintiffs include residents of Virginia who utilize Daingerfield Island for recreation, and the George Washington Memorial Parkway ("Parkway") for transportation, as well as an additional nonprofit corporation, and an unincorporated citizens' association.

 Defendant Bruce Babbitt is Secretary of the Department of the Interior. He is responsible for, among other things, management of the National Park Service ("NPS"). The remaining defendants are the National Capital Planning Commission, and officials of both the Department of the Interior and the National Park Service. Richmond, Fredricksburg and Potomac Railroad Co. ("RF&P") and Potomac Greens Associates Partnership are intervenor defendants in this action as of right, having demonstrated to the Court an interest in the property at issue.

 Plaintiff seeks declaratory and injunctive relief as well as costs and attorneys fees.

 Background

 The facts of this case were presented in detail in Daingerfield Island Protective Society, et al., v. Hodel, 710 F. Supp. 368 (D.D.C. 1989), so we will only summarize them here. In 1970, the Secretary of the Interior signed a Land Exchange Agreement ("Exchange Agreement") under which the National Park Service ("NPS") would receive title to Dyke Marsh, *fn2" approximately 28.8 acres of environmentally sensitive wetland on the Potomac River between Alexandria and Mount Vernon, Virginia. In exchange for Dyke Marsh, NPS granted developer Charles Fairchild & Co. ("Fairchild") an easement to build an interchange on the Parkway which would connect the Parkway with property leased by Mr. Fairchild from intervenor RF&P on Daingerfield Island. That Daingerfield Island property sits along the Potomac River, just south of National Airport. Fairchild planned to build a large office, hotel, and residential complex to be named "Potomac Greens" on the leased Daingerfield Island property.

 Fairchild waited until July 6, 1971 to sign the Exchange Agreement, at which time it transferred the deed to Dyke Marsh to the United States. The terms of the Exchange Agreement provided that prior to the commencement of construction, the interchange design had to be approved by NPS, the National Capital Planning Commission ("NCPC") and the Fine Arts Commission. The Agreement further specified essential features of the design, thus limiting the agencies' discretion. See Exchange Agreement in the Administrative Record ("Admin. Rec.") at Tab 22. The first construction plans for the interchange were submitted in 1975. Many disagreements between Fairchild and NPS ensued. A draft environmental assessment by the NPS recommended that access to the Parkway be denied. Admin. Rec. at Tab 55. Counsel for NPS, however, cautioned that Fairchild's right to Parkway access had vested in 1971, so that NPS could not refuse to grant access. Id. NPS then recommended repurchasing the access rights, but this recommendation was not adopted, most likely because funds were not available to do so. Id.

 In May of 1978, plaintiff Daingerfield Island Protective Society sought to enjoin the Department of the Interior and NPS from approving any interchange design. This challenge was dismissed without prejudice as premature, since no design had yet been approved. Daingerfield Island Protective Society v. Andrus, 458 F. Supp. 961 (D.D.C. 1978). In April of 1981, NPS approved an interchange design, reserving its right to make changes when a more detailed proposal was made. The Commission of Fine Arts approved the design in April of 1983, as did NCPC later that year. NPS issued a deed for the easement in 1984. See Admin. Rec. at 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. *fn3" 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). *fn4"

 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. *fn5" After appeal by plaintiffs, the case returned to us on remand from the Court of Appeals, pursuant to its decision of November 30, 1990. *fn6" 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). *fn7" 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. *fn8" 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. *fn9" 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, . . ." *fn10" The Act provides for the acquisition of land and appropriates funds through the fiscal year ending June 30, 1931. *fn11" 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." *fn12"

 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." *fn13" The Act appropriates such funds "as required for the expeditious, economical, and efficient development and completion" of certain projects, including the Parkway. *fn14" 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). *fn15" Since the proposed interchange design is located strictly within the city of Alexandria, *fn16" 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 ...

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