Daingerfield Island Protective Soc. v. Lujan

Decision Date30 November 1990
Docket NumberNo. 89-5165,89-5165
PartiesDAINGERFIELD ISLAND PROTECTIVE SOCIETY, et al., Appellants, v. Manuel LUJAN, Jr., Secretary, Department of Interior, et al. and Richmond, Fredericksburg & Potomac Railroad Company and Potomac Greens Associates Partnership, Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

Ronald J. Wilson, for appellants.

Mark E. Nagel, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for federal appellees.

Thomas J. Farrell, II, for appellees, Richmond, Fredericksburg and Potomac Railroad Co., et al.

Before WALD, Chief Judge, MIKVA and RUTH BADER GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

The origin of this case is a 1970 agreement ("Exchange Agreement") by which the National Park Service ("NPS," "the Service") completed its acquisition of Dyke Marsh, an environmentally sensitive wetland on the Potomac River between Alexandria and Mount Vernon, Virginia. In exchange for the wetland property it acquired, NPS granted developer Charles Fairchild & Co. an easement to build an interchange on the George Washington Memorial Parkway ("Parkway"). Fairchild hoped that this interchange would one day channel traffic to Potomac Greens, a mammoth office, hotel and residential complex he planned to build on land he leased from intervenor-appellee Richmond, Fredericksburg & Potomac Railroad Co. ("RF & P"). Twenty years later, Fairchild's hopes remain unrealized: no construction has begun on either the interchange or the Potomac Greens complex.

Daingerfield Island Protective Society and its coappellants (collectively, "the Society") commenced this action in 1986 to set aside the 1970 Exchange Agreement and to void the approval of the interchange design granted by NPS in 1981 and the National Capital Planning Commission ("NCPC") in 1983. In response to defendants' motion for summary judgment, the district court dismissed the complaint in its entirety. The court declared moot all claims to void approval of the interchange design; and it rejected the attack on the 1970 Exchange In December 1989, we summarily affirmed the district court's decision to the extent that it dismissed as moot the Society's claim alleging violations of the National Environmental Policy Act of 1969 ("NEPA"). We now vacate the district court's mootness disposition to the extent that it covers counts of the complaint other than the NEPA claim; we also reverse the ruling on laches, and remand the case for further proceedings.

Agreement on the ground of laches. Daingerfield Island Protective Soc'y v. Hodel, 710 F.Supp. 368, 377 (D.D.C.1989).

I.

In the years before the 1970 Exchange Agreement, Fairchild unsuccessfully pursued various development strategies on his Dyke Marsh property. He first planned in 1964 to construct highrise apartments, but failed to obtain the necessary rezoning. Admin.Rec. at Tab 17. The next year he sought permission to fill the marsh and to dredge canals for a "50-home Palm Beach type development." Admin.Rec. at Tab 97. Because the marsh is a vital habitat to wading and water birds and various other small animals, environmental groups joined area residents, who feared the effects of new development, to oppose Fairchild's plans. These groups pressed the government to acquire the entire Dyke Marsh area. By 1966, NPS owned most of the acreage. Id. Facing dimming prospects of development on his 28.8-acre Dyke Marsh tract, Fairchild turned his attention to the 38-acre property across the Parkway that he leased from RF & P.

The 1970 Exchange Agreement provided that Fairchild would be entitled to Parkway access as soon as he deeded his Dyke Marsh property to the government. After delaying for more than a year, Fairchild conveyed a deed to the property in June 1971 and signed the Exchange Agreement on July 6, 1971. Id. at Tab 22. By its terms, the Agreement became effective on that date. The Agreement provided that Fairchild's construction could not commence until NPS, NCPC, and the Fine Arts Commission approved the design of the Parkway interchange; a paragraph of the Agreement, however, specified essential features of the design, and thus controlled the agencies' discretion. Id.

Fairchild did not submit construction plans for the interchange until 1975. Id. at Tab 41. His relations with NPS grew acrimonious, as the Service opposed Fairchild's complicated "reverse-flow" design. In 1976, after increased population and traffic had made NPS's limited 1970 environmental review obsolete, NPS ordered a full-scale environmental assessment of the interchange. Id. at Tabs 43, 54. The draft assessment, prepared by the National Capital Region of NPS, recommended that access be denied. 710 F.Supp. at 371. NPS's counsel, however, cautioned that Fairchild's right to Parkway access had vested in 1971, so that NPS could not simply refuse to grant access. Id. The National Capital Region of NPS then recommended repurchasing Fairchild's access rights. NPS did not adopt this recommendation, probably because it doubted that funds would be available for the repurchase. Id.

In May 1978, the Society sought to enjoin the Department of Interior and NPS from approving any interchange design. In its prayer for relief, the Society did not demand that the Agreement be set aside, nor, except for a hint in Paragraph 22 of its 52 paragraph complaint, did it even allege that the 1970 Exchange Agreement was unlawful. Rather, the Society's attention trained on NPS's consideration of the interchange design. See Verified Complaint for Declaratory and Equitable Relief under the National Environmental Policy Act of 1969, Daingerfield Island Protective Soc'y v. Andrus, (D.D.C.1978) (No. 78-0937). Because NPS had not yet acted on any proposed design, the district court dismissed the Society's challenge, without prejudice, as premature. Daingerfield Island Protective Soc'y v. Andrus, 458 F.Supp. 961 (D.D.C.1978).

In April 1981, after Fairchild at last gave up on his "reverse-flow" plan, NPS approved the interchange design, reserving its right to make changes when Fairchild submitted more detailed plans. 710 In 1986, RF & P entered a joint venture with developer Savage/Fogarty Companies, Inc.; in late summer, Savage/Fogarty announced the joint venture's plans to build a somewhat smaller Potomac Greens complex. Admin.Rec. at Tabs 169-70. The Society then commenced this action. The Society's complaint, filed in August 1986, alleged that when NPS approved the 1970 land exchange, the Service violated NEPA (Count I), the Land and Water Conservation Fund Act (Count II), the Mount Vernon Highway Act and the Capper-Cramton Act (Count III), the National Park Service Organic Act (Count IV), the National Capital Planning Act (Count V), the Administrative Procedure Act ("APA") (Count VI), and the National Historic Preservation Act (Count IX). The complaint also alleged that NPS's approval of the interchange design violated NEPA (Count I), the Mount Vernon Highway Act and the Capper-Cramton Act (Count III), the National Park Service Organic Act (Count IV), the National Capital Planning Act (Count V), the APA (Count VI), Executive Order 11988 and Floodplain Management Guidelines (Count VIII), and the National Historic Preservation Act (Count IX). Plaintiffs further charged that NCPC's approval of the interchange design violated the National Capital Planning Act (Count VII). 1

                F.Supp. at 371-72.    NPS's October 1983 Environmental Assessment concluded that the design was satisfactory, noting that because of the terms of the 1970 Exchange Agreement, the Service could not recommend a "no build" alternative.  Id. at 372.    The Commission of Fine Arts approved the design in April 1983, as did NCPC in November 1983.  NPS issued a deed for the easement in August 1984.  Prior to these approvals, in early 1982, RF & P had responded to Fairchild's delays by terminating his lease.  The deed therefore went to RF & P as successor to Fairchild.  Id. at 372 & n. 7
                

The federal defendants and supporting private intervenors, 2 raising threshold defenses, moved for dismissal or summary judgment. During the pendency of the motion, Congress acted. As part of its December 22, 1987 Continuing Appropriations Act ("CAA"), Congress directed NPS to prepare, within eighteen months, an Environmental Impact Statement ("EIS") concerning the effect that Potomac Greens would have on traffic and on "the visual, recreational and historical integrity of the Parkway." 3 The EIS was to evaluate "alternative acquisition strategies," including but not limited to the possibilities of acquiring RF & P's access rights, the portion of its 38-acre parcel lying within the Alexandria historical district, or the entire parcel. Congress further instructed NPS to investigate any other reasonable means by which the Parkway could be preserved. No construction permit for the interchange was to issue until the completed EIS had been reviewed by the "appropriate" congressional committees for 60 days. NPS was to be sole judge of "the legal and factual sufficiency of the [EIS] and its compliance with [NEPA]." Finally, Congress provided:

The [EIS] shall be separate from, independent of, and in no way intended to affect or modify any pending litigation. Notwithstanding any other provision of law, no court shall have jurisdiction to consider questions respecting the factual Pub.L. No. 100-202, 101 Stat. 1329-224 (1987).

and legal sufficiency of the [EIS] under [NEPA].

The Society moved to stay consideration of its NEPA claim until the EIS issued. The district court denied that motion and granted defendants' motion for summary judgment, holding that all challenges to the 1981 and 1983 approvals of the interchange design were mooted by the CAA, and that all...

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