The opinion of the court was delivered by: Kennedy, District Judge.
On May 25, 1993, Congress authorized the construction of a
memorial in the District of Columbia to honor members of the
Armed Forces who served during World War II and to commemorate
the United States' participation in that war. See Pub.L.
103-32, 107 Stat. 90, 91 (1993). The act empowered the American
Battle Monuments Commission ("ABMC"), in connection with a
newly-created World War II Memorial Advisory Board, to select a
location for the WWII Memorial, develop its design, and raise
private funds to support its construction. On October 25, 1994,
Congress approved the location of the WWII Memorial in "Area 1"
of the District, which generally encompasses the National Mall
and adjacent federal land. See Pub.L. 103-422, 108 Stat. 4356
(1994). The ABMC reviewed seven potential sites within Area I and
endorsed the Rainbow Pool site at the east end of the Reflecting
Pool between the Lincoln Memorial and the Washington Monument as
location for the WWII Memorial.*fn1 Finally, in May, 2001,
Congress passed new legislation directing the expeditious
construction of the WWII Memorial at the selected Rainbow Pool
site. See Pub.L. 107-11, 115 Stat. 19 (2001) (hereinafter
The National Coalition to Save Our Mall, World War II Veterans
to Save the Mall, Committee of 100 on the Federal City, and
District of Columbia Preservation League (hereinafter
"plaintiffs") filed this suit for declaratory and injunctive
relief, challenging the actions of the United States Department
of the Interior, National Parks Service, Commission of Fine Arts,
National Capital Planning Commission, and the American Battle
Monuments Commission (hereinafter "defendants") in approving the
design and location of the WWII Memorial at the historic Rainbow
Pool site in the District. Before the court is defendants' motion
to vacate the stay of this case imposed on March 13, 2001, and to
dismiss. Upon consideration of the motion, the opposition
thereto, and the record of this case, the court concludes that
defendants' motion to dismiss must be granted because the court
lacks subject matter jurisdiction over plaintiffs' claims.
Plaintiffs allege that defendants violated the Commemorative
Works Act ("CWA"), 40 U.S.C. § 1001 et seq., National
Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(2)(C),
National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470f et
seq., and the Federal Advisory Committee Act ("FACA"),
5 U.S.C. App. II, § 10(a), in approving the proposed WWII Memorial.
Plaintiffs filed a motion for a preliminary injunction on
February 15, 2001, and applied for a temporary restraining order
("TRO") on March 8, 2001. At the conclusion of the hearing on
plaintiffs' TRO application, the court granted the request,
temporarily enjoining defendants from "undertaking any activities
to remove or prune trees in connection with the construction of
the WWII Memorial at the Rainbow Pool Site on the Washington
Mall." National Coalition to Save Our Mall, et al. v. Norton, et
al., No. 00-2371(HHK) (D.D.C. March 8, 2001) (order granting
temporary restraining order). The next day defendants filed an
unopposed motion to stay the proceedings in this case because
"[a] question [had arisen] about the validity of certain NCPC
[National Capital Planning Commission] decisions related to the
Memorial." Defs.' Mot. to Stay Proceedings and Suspend Scheduling
Order ¶ 2 (filed March 9, 2001). At issue was the legitimacy of
several votes that former NCPC Chairman Harvey B. Gantt had cast
after his term as chairman had expired on January 1, 1999.
Defendants' motion to stay proceedings was granted.
On May 28, 2001, the President signed into law legislation
directing the expeditious construction of the WWII Memorial at
the Rainbow Pool site in the District of Columbia. See Pub.L.
107-11, § 1. The legislation states in its entirety:
SECTION 1. APPROVAL OF WWII MEMORIAL SITE AND DESIGN.
Notwithstanding any other provision of law, the World
War II memorial described in plans approved by the
Commission of Fine Arts on July 20, 2000 and November
16, 2000, and selected by the National Capital
Planning Commission on September 21, 2000 and
December 14, 2000, and in accordance with the
special use permit issued by the Secretary of the
Interior on January 23, 2001, and numbered
NCR-NACC-5700-0103, shall be constructed
expeditiously at the dedicated Rainbow Pool site in
the District of Columbia in a manner consistent with
such plans and permits, subject to design
modifications, if any, approved in accordance with
applicable laws and regulations.
SECTION 2. APPLICATION OF COMMEMORATIVE WORKS ACT.
Elements of the memorial design and construction not
approved as of the date of enactment of this Act
shall be considered and approved in accordance with
the requirements of the Commemorative Works Act
(40 U.S.C. § 1001 et seq.).
SECTION 3. JUDICIAL REVIEW.
The decision to locate the memorial at the Rainbow
Pool site in the District of Columbia and the actions
by the Commission of Fine Arts on July 20, 2000 and
November 16, 2000, the actions by the National
Capital Planning Commission on September 21, 2000 and
December 14, 2000, and the issuance of the special
use permit identified in section 1 shall not be
subject to judicial review.
Pub.L. 107-11. Contending that Public Law 107-11 precludes
judicial review of all administrative decisions concerning the
location and design of the WWII Memorial, defendants filed the
present motion to vacate the court's stay and dismiss this suit
for lack of jurisdiction.*fn2