Another Setback for Foes of Memorial Site (The Washington Post)

By Bill Miller, The Washington Post

A federal appeals court refused yesterday to revive a lawsuit seeking to halt construction of the World War II memorial on the Mall, ruling that Congress acted legally last spring when it passed a law shielding the project from judicial review. The ruling, which enables work to remain on schedule at the 7.4-acre site between the Washington Monument and the Lincoln Memorial, was another legal blow to the National Coalition to Save Our Mall and other groups opposed to the memorial’s location. The groups had filed a federal lawsuit challenging the $160 million project, but the case was dismissed in August by a federal judge who said Congress took away his jurisdiction.

Yesterday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously declared that Congress had the right to clear the way for the memorial’s construction.

Mike Conley, spokesman for the American Battle Monuments Commission, the project’s sponsor, said officials can now concentrate on construction. He said he was pleased that the ruling came before this year’s Veterans Day observations.

“We’re two months into a 30-month construction schedule,” Conley said. “So we’ve got 28 months to go, and we’ll have this magnificent memorial done.”

In recent weeks, workers have erected fencing and completed other preparatory work at the site near 17th Street NW, in the area of the Rainbow Pool. Plans call for excavation to begin early next year, with the project scheduled for completion in 2004, Conley said. The white marble memorial will feature 56 17-foot-high pillars, two four-story arches and a sunken plaza with a new pool.

The National Coalition to Save Our Mall and other site opponents have waged a year-long court fight and public relations campaign to halt the project. They maintained that federal agencies and commissions did not follow proper procedures in choosing and approving the location. They also argued that the memorial and its grand design will spoil the character of the historic Mall and mar vistas long enjoyed by the public.

Congress stepped into the matter in May, passing a measure that barred further judicial review of the project, and President Bush signed the legislation on Memorial Day at a ceremony attended by veterans. In light of the legislation, U.S. District Judge Henry H. Kennedy Jr. dismissed the opponents’ lawsuit in August, leading to the appeal.

In yesterday’s decision, the appellate judges ruled that Congress did not violate the Constitution by taking away the courts’ authority. The judges also rejected the contention that Congress did not explicitly rule out enforcement of environmental and other laws that formed the basis for the lawsuit.

The judges noted that the legislation specifically stated that the decision to locate the memorial at the Rainbow Pool site and the actions of various agencies “shall not be subject to judicial review.” In addition, the judges pointed out that Congress called for the work to move expeditiously “notwithstanding any law.”

“It is hard to see how Congress could make it clearer,” wrote Senior Judge Stephen F. Williams, who was joined by David B. Sentelle and David S. Tatel.

Judy Scott Feldman, co-chair of the coalition, said the groups will meet with attorneys to decide whether to take further legal action. They could ask the entire D.C. Circuit appeals court to hear the case or ask the Supreme Court to consider the matter.

“It’s just so disappointing,” she said of the ruling. “We tried to stop this before a huge mistake is made.”

Veterans groups and other advocates have said they want the memorial to be dedicated while some of those who served in World War II are still alive to appreciate it. Of the 16 million citizens who served in uniform in World War II, 5 million are alive, supporters said, noting that veterans are dying at a rate of 1,100 a day.