Case 127

Daingerfield Island Protective Society v. Babbitt, 40 F.3d 442 (D.C. Cir. 1994).

Environmental organizations and individuals sued the Department of the Interior to set aside a land exchange agreement under which the National Park Service (NPS) granted an easement to a developer in exchange for title to wetlands. The developer planned to use the easement to construct interchange access to a parkway in order to facilitate a major mixed-use development along the Potomac River. The agreement provided that the interchange design would be approved by NPS, the National Capital Planning Commission (NCPC), and the Fine Arts Commission. Plaintiffs argued that the exchange agreement and the interchange design approval violated various Federal laws, including the National Park Service Organic Act (NPSOA), the National Historic Preservation Act (NHPA), the National Capital Planning Act (NCPA), and Executive Order No. 11988, which protects flood plains.

First, the court of appeals held that the Tucker Act's six-year statute of limitations barred plaintiffs from challenging NPS' decision to enter into the lease exchange agreement. Defendants had stated the affirmative defense with sufficient specificity by summarily stating that "plaintiffs' claims are barred by the applicable statute of limitations." 40 F.3d at 444. Further, the court stated that because the defense was appropriately raised in the defendant's answer, it was not waived by the defendant's failure to reassert the defense in its subsequent summary judgment motion. Id. at 445.

Next, the court addressed plaintiffs' allegations regarding the interchange design. The court found that the interchange design approval did not violate NPSOA, which requires NPS to promote the use of national parks. The court interpreted the act as giving NPS broad discretion in deciding how to protect park resources. According to the court, NPS had properly considered various designs and their effects on the environment; thus, NPS' determination was not arbitrary, capricious, or an abuse of discretion and was based on a reasonable construction of the law. Id. at 446.

With regard to NHPA, plaintiffs alleged that although NPS had consulted with the Advisory Council on Historic Preservation and obtained Council approval of the interchange design, it had not provided adequate information about historic properties. Specifically, plaintiffs claimed that NPS failed to inform the Council that the project would affect historic Alexandria, Virginia, located nearby. The court reasoned that the Council was aware of the location of the proposed interchange and its proximity to Alexandria and, if it had deemed it important, could have requested more information about the project's effects or considered the effects sua sponte. Because the Council acted on the information before it and approved the design, the court found that NPS had complied with NHPA. Id. at 446-47.

Plaintiffs' NCPA claim alleged that the NCPC inappropriately approved the interchange design after preliminarily finding that any interchange would be inconsistent with its comprehensive regional plan. The court of appeals found that the NCPC had fulfilled its statutory duty to advise Federal agencies on the effects of their projects and had objectively examined the design and properly expressed its views. Id. at 447.

Finally, the court found that NPS had fulfilled its obligations under Executive Order No. 11988 by considering various alternatives to the interchange design, including the no build alternative, and incorporating design changes to mitigate adverse effects on the flood plain.

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