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.
