Skirmish Lost, but Battle Over World War II Memorial Rages on (Stars and Stripes)

By Dave Eberhart, Stars and Stripes

While President Bush dedicated the National D-Day Memorial in the bloodied town of Bedford, Va., and venerable U.S. paratroopers were feted at Normandy’s Utah Beach, opponents of the World War II Memorial on the National Mall marked the 57th anniversary of the Allied storming of Fortress Europe by assaulting a Washington, D.C., courthouse in an attempt to halt construction of the memorial in “just in the wrong place.”

The Rainbow Pool site would result in an unsightly, environmentally unsound memorial that would encroach on other memorials, they said.

“You have raised a fitting memorial to D-Day, and you have put it in just the right place,” Bush said in an ironic twist during his Bedford speech. In 1944 a town of 3,200 people, Bedford suffered the highest per-capita loss of life of any community in the United States during D-Day. Nineteen soldiers from Bedford were cut down in a hail of German machine-gun fire from the bluffs overlooking Omaha Beach.

But when the smoke of rhetorical battle cleared on the morning of June 7, Judge Henry Kennedy of the U.S. Court of Appeals for the District of Columbia had denied the plaintiffs’ request for a 10-day restraining order on the World War II Memorial’s construction. He said that construction would not begin until after July 4.

‘These Bureaucrats’
“We’ve lost a skirmish,” an upset Beth Solomon, a spokesperson for World War II Veterans to Save the Mall, told The Stars and Stripes. “There are battles and a war yet to be fought.”

Solomon said that a number of World War II veterans have offered to lie down before the bulldozers if efforts to halt the project are foiled. “These bureaucrats must realize that this controversy is never going to go away,” she said.

Veterans who on May 21 threatened to return their battle decorations to the government if the memorial proceeds as planned, she added, will be doing so “in a very visible and dramatic way.”

“Having fought in the Battle of the Bulge, I’m used to long fights,” said World War II veteran George Idelson, who fought under Gen. George S. Patton. “Our National Mall and the integrity of our democracy are worth fighting for. We are going to keep fighting the good fight.”

“We don’t think it’s over at all,” said Andrea C. Ferster, an attorney for the plaintiffs, vowing to take their cause to the D.C. Circuit of the U.S. Court of Appeals if broader, still-pending litigation results in an adverse ruling.

Flood Plain, Arsenic, ‘Dream’
In their bid for a temporary injunction, the National Coalition to Save Our Mall (NCSM), World War II Veterans to Save the Mall, the Committee of 100 on the Federal City and the D.C. Preservation League argued that the memorial is to be built on an unstable flood plain that harbors arsenic, a poison, encroaches on the Lincoln Memorial and is revered by many as the venue of Martin Luther King’s “I Have A Dream” speech in 1963.

In his June 7 ruling, Kennedy left open charges that the government violated environmental regulations and those specifically intended to protect the Mall’s wide vistas. He indicated, however, that he is not inclined to intervene in the wake of legislation signed by President Bush May 28 expediting the memorial’s construction and barring further judicial review of actions by federal agencies in approving the project.

At a hearing June 6, Ferster argued that H.R. 1696 (now Public Law 107-17) did not prevent them from attacking the project on environmental grounds.

But Kennedy pointed to language in the new law that Congress wanted work on the memorial to proceed expeditiously, “notwithstanding any other law.”

“The ‘notwithstanding’ clause seems to me to be what it says,” Kennedy said in his ruling. “Indeed, it is hard to imagine a clearer expression of Congress’s desire that the World War II Memorial be built expeditiously at the Rainbow Pool.”

Attorneys for Interior Secretary Gale Norton and others named as defendants had sought a dismissal of the NCSM’s suit, saying the May 28 law overrides the court’s jurisdiction. Ferster said that an opposing motion would be filed by tomorrow (the deadline is June 15) in order to hasten the process and make certain outstanding issues ripe for appeal if Judge Kennedy rules unfavorably.

Further Violations Cited
Those issues, Solomon told The Stars and Stripes, include alleged violations of the National Environmental Policy Act (NEPA), such as the absence of an impact statement, violation of the Constitutional separation of powers and allegations that the project fails to meet the requirements of the National Historic Preservation Act.

Argued attorney and Constitutional law scholar William Mayton at the June 6 hearing: “Even if H.R. 1696 does purport to withdraw the court’s jurisdiction over the remainder of the claims in this action, this withdrawal of jurisdiction unconstitutionally encroaches on the powers assigned to the federal judiciary by Article III of the U.S. Constitution.”

The disputed language:
“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.”

But Ferster argued that “H.R. 1696 contains no specific language that repeals the applicability of NEPA to the World War II Memorial.”

Ferster argued further that the NEPA claim was not a challenge to a 1995 decision on the memorial’s location, but “rather…is directed at the National Park Service’s 1998 finding of ‘no significant impact,’ which she said approved “neither the location nor design of the memorial, but instead represented the Park Service’s determination that no environmental impact statement would be prepared pursuant to NEPA in connection with the memorial.”

The plaintiffs argued in their original suit in February that because the World War II Memorial would destroy the Rainbow Pool and obstruct ground-level views of the Lincoln Memorial, both of which are “integral components” of the Lincoln Memorial grounds, the proposed memorial violated a provision in the Commemorative Works Act prohibiting encroachment on an “existing commemorative work.”

‘An Omnibus Exclusion…’
Ferster called the May 28 law “an omnibus exclusion of the World War II Memorial from all existing legal standards. It would be one thing for Congress specifically to amend, say, the National Historic Preservation Act or NEPA, to provide new standards under which the siting of the memorial might be judged. It is another thing to simply exempt it from all provisions of the law.”

Opponents of the memorial have argued that its construction, as proposed, would result in “irreparable injury” to the Rainbow Pool, damage to the elm trees surrounding it and harm to public health and the quality of Potomac River water from excavation of arsenic-contaminated soil and the discharge of contaminated water into the Tidal Basin.

Government attorneys said the memorial’s designers are eager to build it while ever-dwindling numbers of World War II veterans are still alive to appreciate it.