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NATIONAL COALITION TO SAVE OUR MALL v. NORTON

August 16, 2001

NATIONAL COALITION TO SAVE OUR MALL, ET AL., PLAINTIFFS,
V.
GALE NORTON, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kennedy, District Judge.

MEMORANDUM OPINION

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 the final 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 "Pub.L. 107-11").

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.

I. BACKGROUND

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

II. ANALYSIS

Defendants move to dismiss on the grounds that Public Law 107-11 expresses Congress' clear intent to preclude judicial review over the various administrative decisions that are the subject of this suit. While apparently conceding that the new legislation — if constitutional — essentially withdraws this court's jurisdiction over most of their claims,*fn3 plaintiffs maintain that this court still has jurisdiction over their claims arising under NEPA. First, plaintiffs note that Public Law 107-11 does not mention the National Park Service's decision to forego preparation of an Environmental Impact Statement ("EIS"). Given this fact, plaintiffs suggest that Public Law 107-11 does not repeal, either expressly or by implication, NEPA's applicability to the WWII Memorial. Second, plaintiffs argue that the new legislation violates separation of powers principles by unconstitutionally encroaching on this court's Article III powers. Plaintiffs maintain that Congress has used the new legislation essentially to tell this court how it should rule in this case. Finally, in an argument presented for the time in their opposition papers, plaintiffs contend that "any ...


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