JOHN H. PRATT, Judge.
This case is currently before the Court on parties' cross motions for summary judgment. Since there is no genuine dispute as
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.
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,
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
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.
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.
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).
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.
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 Capper-Cramton Act was enacted two years later on May 29, 1930. It expanded upon the MVMHA, providing "[f]or the acquisition,
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:
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.
The question before us is whether NPS' approval of the interchange design was a violation of the APA 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.
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.
It is not disputed that there is a judicial presumption favoring the validity of an administrative action. See Duesing v. Udall, 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.
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., 398 F.2d 765 (D.C.Cir.1968), cert. denied, 393 U.S. 1017, 89 S.Ct. 620, 21 L.Ed.2d 561 (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
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,
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.
First, the APA defines a "rule" as:
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).
Subsection (D) requires agencies to publish three things: "[s]ubstantive 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 of 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:
40 U.S.C. § 71a(e).
Interestingly, the review provided for in the Exchange Agreement is in part more far-reaching than the review provided by statute. Under the review provision cited by plaintiffs, 40 U.S.C. § 71d(a), the Commission reviews a proposed project in its entirety— including whether or not it should be built at all—submits its findings to the agency and ultimately issues a final report. Under the statutory review provisions, the agency must consider the final report, but need not act accordingly.
The narrow issue before us is whether by conducting its review under the terms of the Exchange Agreement, instead of under the statutory review provisions of the NCPA, the Commission acted in a way that was arbitrary, capricious, or an abuse of law. Courts traditionally accord substantial deference to an agency's own interpretation of a statute that it is charged with implementing. See Chevron U.S.A. v. National Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). We "may not substitute (our) own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. We find that it was reasonable of the Commission to conduct its review under the terms of the Exchange Agreement. It was reasonable for the members of the Commission to rely upon both the judgment of their own General Counsel
The NCPA requires each Federal and District of Columbia agency to advise and consult with the Commission prior to (1) the preparation of construction plans originated by such agency for proposed developments and projects, or (2) commitments for the acquisition of land paid for in whole or
Plaintiffs' Claim VIII: Violations of Executive Order 11988 and Floodplain Management Guidelines
Plaintiffs allege that NPS violated Executive Order 11988 and NPS guidelines implementing that Executive Order (sometimes "EO")
A threshold question for the Court is whether an agency's alleged violations of an Executive Order are judicially reviewable. Executive Order 11988 does not expressly create a private cause of action.
After reviewing NPS' actions under the APA's arbitrary and capricious standard, however, we conclude that there is ample evidence in the record to support defendants' contention that they did indeed sufficiently consider floodplain impact in their decisions regarding the interchange design. See e.g. the 1983 Environmental Assessment at Admin.Rec. Tab 148, ("Because the site of the interchange is in the 100 year floodplain designated by the City of Alexandria, all ramps to the proposed overpass would be structured spans rather than roadways on fill ... [t]he structural design alternative allows free flow of flood waters"); see also the correspondence at Admin.Rec. Tab 149, (documenting NPS' requirement that RF & P agree to set aside additional floodplain property to compensate for whatever amount of official floodplain must be covered with fill in order to build the interchange).
Plaintiffs' Claim IX: Violations of the National Historic Preservation Act
Finally, plaintiffs allege that NPS violated Section 106 of the National Historic Preservation Act, specifically 16 U.S.C. § 470f, in the following respects: failure to take into account the adverse effects of the interchange on the Historic District of the City of Alexandria and on the Mount Vernon Memorial Highway; failure to give the Advisory Council on Historic Preservation ("Advisory Council") reasonable opportunity to comment on the interchange design; failure to make a finding as to whether the interchange design would have an adverse effect on the Historic District of Alexandria or on the Mount Vernon Memorial Highway; failure to notify the Advisory Council of NPS' actions regarding the proposed interchange; and failure to consult with the Advisory Council regarding those actions.
The National Historic Preservation Act, as amended, together with Executive Order 11593, provides a broad framework for coordinating federal historic preservation activities. The Act allows the Advisory Council to comment on federal actions affecting properties included in or eligible for inclusion in the National Register of Historic Places. The relevant part of the Act provides as follows:
16 U.S.C. § 470f. The entire Parkway was listed in the National Register of Historic Places in 1981. The parties do not dispute that the proposed interchange would be built in part directly on property protected under the Act. Plaintiffs additionally assert that the interchange will have a drastically negative effect on the nearby Historic District of Alexandria, VA.
We find that apart from the issue of whether or not NPS was obliged to comply with 16 U.S.C. § 470f,
Plaintiffs admit that NPS did consult with the Advisory Council, but argue that "there were such serious inadequacies in NPS's submission that it did not conform to the Council's regulations, and the Council's concurrence is an empty formality." Plaintiffs' Motion for Partial Summary Judgment at p. 73. In light of the Advisory Council's regulations promulgated in response to the NHPA and Executive Order 11593,
Plaintiffs argue that NPS' submission was legally inadequate because it only mentioned one historic site to be affected by the interchange design, the Parkway itself, while failing to also mention the nearby Historic District of the city of Alexandria, Virginia. Plaintiffs label this a serious omission because the interchange may result in traffic congestion in the Historic District, as well as local population growth. We quite agree with plaintiffs that the existence of an interchange will likely have the described effect on Alexandria's Historic District. Plaintiffs mistake, however, the scope of NPS' submission. As discussed previously, plaintiffs' challenges to the Exchange Agreement of 1970 which conveyed to Fairchild the right to an interchange onto the Parkway, have been dismissed as time-barred.
This narrow interpretation of the review sought by NPS is supported by the content of its submission, and this speaks to plaintiffs' second objection. Detailed information is included regarding the proposed physical appearance of the bridge, including a cut stone veneer finish for all abutments, recessed lighting for the roadway surface, and landscaping of the adjacent area "with evergreen
Finally, it is clear from the Administrative Record as a whole that the public was fully aware of the development of the interchange project from the moment the Exchange Agreement was signed in 1970 up through the present. This same Administrative Record eloquently documents the careful consideration given to compliance with the applicable statutes. Based on this extensive record it is clear that the defendants' actions were neither arbitrary, capricious nor an abuse of law.
In keeping with the above opinion, summary judgment is hereby granted for the defendants, and this case is dismissed with prejudice. An order consistent with this opinion is entered this same day.
Pursuant to the Memorandum Opinion issued this same day by this Court in the above-captioned matter, it is hereby
ORDERED that Defendants' Motion for Summary Judgment is granted; and it is
ORDERED that Intervenors' Motion for Summary Judgment is granted; and it is
ORDERED that Plaintiffs' Motion for Summary Judgment is denied; and it is
FURTHER ORDERED that this matter is hereby dismissed with prejudice.
5 U.S.C. § 552(a) (1977).