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December 9, 1994

BRUCE BABBITT, et al., Defendants.

The opinion of the court was delivered by: PAUL L. FRIEDMAN

 The Anacostia Watershed Society and several other environmental and community organizations *fn1" brought suit against the Secretary of the Interior, the Department of the Interior, the National Park Service, and the Regional Director of the National Capital Regional Office of the Park Service, alleging violations of the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act. Plaintiffs challenge the decision of the National Park Service to transfer jurisdiction over certain portions of Anacostia National Park -- Heritage Island and the southern portion of Kingman Island -- to the District of Columbia for the development of a National Children's Island theme park. Plaintiffs contend that defendants' failure to prepare an environmental assessment or an environmental impact statement prior to effecting the transfer violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., the regulations under the Act, 40 C.F.R. §§ 1500 et seq., and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. Plaintiffs seek a declaratory judgment that the transfer decision violates NEPA and its implementing regulations, and rescission of the transfer decision. The case is before the Court on cross-motions for summary judgment.


 The material facts in this case are not disputed. The National Park Service holds title to and is responsible for managing Anacostia Park, which is located in the southeastern quadrant of Washington, D.C., and borders on the Anacostia River. Anacostia Park includes two islands that are the subject of this dispute: Heritage Island and a portion of Kingman Island.

 The National Capital Planning Commission ("NCPC") is "the central Federal planning agency for the Federal Government in the National Capital." 40 U.S.C. § 71a(a)(1). In 1968, the NCPC approved general development concepts for a recreational facility in Anacostia Park. A.R. 1395.

 In 1975, the District of Columbia proposed the development of a children's recreational facility at the site as part of the nation's bicentennial celebration. The District of Columbia Office of Environmental Planning and the National Park Service each prepared an environmental assessment for the plan. A.R. 31-35; 15-30. Subsequently, the Park Service and the District entered into a three year memorandum agreement to facilitate the bicentennial project. A.R. 1032. The bicentennial plan called for a short term, seasonal demonstration project with a minimum of permanent structures to be built on park land. The project entailed development of a public facility owned by the Park Service and operated by the District of Columbia. The Park Service retained authority to review and approve or preclude all development plans for the islands. A.R. 1034-35.

 In 1977, the NCPC extended to January 15, 2002, its approval of the final site and building plan for the recreational project. A.R. 1739 The Park Service submitted a supplemental environmental assessment as part of its request for the extension, finding that the project contemplated was "not substantially changed since the previous assessment." A.R. 10.

 In 1978, the Park Service and the District of Columbia entered into a memorandum of agreement to last until September 30, 2000, to aid in the effort to develop the property as a children's recreational site. A.R. 1051. In the memorandum, the District agreed to prepare an environmental assessment addressing all facets of the proposed development and to prepare an environmental impact statement if required. A.R. 1053. Later that year, the agreement was amended to make clear that the District of Columbia held "exclusive operational authority" over the land. A.R. 1057-58.

 In 1982, the District entered into an agreement with National Children's Island, Inc. ("NCI"), a non-profit corporation, to select a developer for the project, which had become known as the National Children's Island. A.R. 1059. In 1983, NCI selected Playland Corporation, now known as Island Development Corporation ("IDC"), a for-profit corporation, to manage the project's development and arrange financing. A.R. 1065. After 1983, public funds were no longer available for the development. Thus, to financially support the costs of development, greater density of structures and year-round attractions were suggested as a part of the proposed Children's Island project. A.R. 1527-28.

 In November 1992, the Park Service requested the National Capital Planning Commission to consider whether the Park Service should transfer jurisdiction over portions of Anacostia Park to the District of Columbia. A.R. 1411. On December 22, 1992, the NCPC completed an environmental assessment and issued a finding of no significant impact. A.R. 1-2. On December 30, 1992, without preparing its own environmental assessment or environmental impact statement, the Park Service transferred jurisdiction over portions of Kingman Island and Heritage Island to the District of Columbia. The purpose of the transfer was to facilitate construction of the National Children's Island. A.R. 1402.

 The Record of Decision issued by the Park Service in support of the transfer of jurisdiction to the District stated that "it has become apparent that placing the area under the jurisdiction of a single entity will be more efficient and productive in the realization of the long planned National Children's Island." A.R. 1402. The decision stated that the transfer is conditioned on permitting only limited development of the property. It required that improvements to the property be reviewed and approved by the NCPC and the Commission of Fine Arts. It also required that the District of Columbia, "as the sponsoring agency," comply with NEPA. The Record of Decision concluded that "there is no environmental impact effect [sic] upon the property by the conditioned transfer of the property" and that "no environmental analysis is required by the National Park Service as a part of this land transfer action." Id. The Park Service did not mention or allude to the NCPC environmental assessment in the Record of Decision.

 On January 7, 1993, the National Capital Planning Commission approved the transfer of jurisdiction. A.R. 1391. On May 13, 1993, the District of Columbia, NCI and IDC entered into a 30 year lease on the property, with a 30 year renewal option. Lease, Exhibits and Declarations in Support of Plaintiffs' Motion for Summary Judgment, Exhibit 8. Prior to issuing its decision to approve the transfer of jurisdiction, the Park Service had been provided with a copy of the proposed lease, which was nearly identical to the one the parties ultimately signed on May 13, 1993. Defendants' Answer at P 37; A.R. 1413.

 The lease grants National Children's Island, Inc. the "exclusive right to use and operate, and an exclusive possessory interest in," portions of Kingman Island and Heritage Island. Lease, Exhibit 8 at 4; see also A.R. 1416. In addition to requiring the developer to build a Children's Playground free to the public, the lease provides that

the Project may include, without limitation, any one or more of the following: (i) landscaped environment with trees, shrubs, flowers, lawns, gardens, reflection pools, fountains and play areas, (ii) exhibitions and pavilions, (iii) restaurants, food courts and other food vending facilities (with indoor and/or outdoor seating and/or carry-out facilities), (iv) concession stands and souvenir shops, (v) exhibits and rides, (vi) indoor and/or outdoor facilities for live or recorded musical, theatrical or other performances, (vii) ticket, administrative and other offices and related support facilities, (viii) parking and utility facilities, equipment and related apparatus, and (ix) new or expanded bridges connecting the Islands to the adjacent parklands . . .

 Lease, Exhibit 8 at 5; see also A.R. 1416. The lease also sets out design parameters, including requirements that buildings and structures shall not exceed 50 feet in height, "building footprints shall not exceed a total of more than five (5) acres" and "paved surfaces, including paved areas occupied by structures, but not including the areas occupied by buildings, shall not exceed twenty-three percent" of the premises. Lease, Exhibit 8 at 12; see also A.R. 1423. The lease requires Island Development Corporation to prepare an environmental assessment and, if required, an environmental impact statement. Lease, Exhibit 8 at 5; see also A.R. 1417. The lease also obligates the parties to comply with the terms of the official Transfer of Jurisdiction plat. Lease, Exhibit 8 at 3-4; see also A.R. 1415-16.

 On August 14, 1993, the Park Service signed the official Transfer of Jurisdiction plat. A.R. 1852. The Transfer of Jurisdiction plat states that "the Recreational Park shall only be used for the purposes of constructing and operating a cultural, educational and family-oriented recreational park" and that the lands designated as "the Playground shall only be improved and maintained as a children's playground available to the public free of charge." Defendants' Answer at 7; A.R. 1376. It repeats the design parameters contained in the Lease between the District, NCI and IDC. A.R. 1376. It provides that the District's authority over the property will revert to the National Park Service if certain conditions are not met, including the failure to commence improvement of the property within a certain period of time and abandonment of the property. A.R. 1377. It also requires that "no modification of the landscape of the Property shall be made prior to completion of all environmental compliance required by Federal or District of Columbia law or regulation. . . ." A.R. 1376. Reiterating the Record of Decision, the Transfer of Jurisdiction plat states that only the NCPC and the Commission of Fine Arts are required to review and approve development of the islands for the federal government. A.R. 1376, 1402.

 The transfer became complete when it was accepted by the District of Columbia government, approved by the District of Columbia City Council, signed by the Mayor of the District of Columbia, and submitted to Congress for a 30 day review period, which elapsed with Congress's having taken no action. See 40 U.S.C. § 122; D.C. Code § 8-111. On July 13, 1993, the City Council also approved an agreement between the District, NCI and IDC covering the construction and financing of the proposed project. 40 D.C. Reg. 5515 (1993).

 The Park Service did not prepare an environmental impact statement evaluating the impacts of or alternatives to its decision to transfer jurisdiction. Nor did it prepare an environmental assessment evaluating whether an environmental impact statement should be prepared. The Park Service did not invoke a categorical exclusion from NEPA's requirements. The question before the Court is whether the Park Service was required to prepare its own environmental impact statement or environmental assessment before transferring jurisdiction over Heritage Island and portions of Kingman Island to the District of Columbia.


 A. This Matter Is Ripe For Decision

 Defendants argue that this case should be dismissed because it is not ripe for decision. In determining whether a case is ripe, the Court must consider (1) the fitness of the issue for judicial decision, and (2) the hardship to the parties of withholding court consideration. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). The rationale behind the ripeness doctrine is that the courts should not involve themselves prematurely and should wait until an administrative decision "has been formalized and its effects felt in a concrete way" by the plaintiffs. Id. Under the APA, the fitness of the issue may be evaluated as a question of whether the agency action ...

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