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Gemeinschaft zum Schutz des Berliner Baumbestandes v. Marienthal

Citation: 9 ELR 20011
No. No. 78-1836, 12 ERC 1337/(D.D.C., 11/09/1978) Preliminary injunction denied

The court declines to issue a preliminary injunction against construction of an apartment complex in West Berlin after determining that the plaintiffs have filed to present a substantial case on the merits of their claim that the requirements of the National Environmental Policy Act (NEPA) have been violated. Plaintiffs have not demonstrated that NEPA's provisions are applicable because neither a land exchange to preserve historic buildings, earlier imposition of a temporary halt to construction, failure to consent to a German court's challenge to the project, nor the United States Army Commandant's decision not to exercise his authority to suspend construction of the complex, which is to be financed and owned by the German government, constitute federal action under the circumstances. The court recognizes, moreover, that the balance of hardships is not in plaintiffs' favor because judicial interference in the German government's actions in West Berlin raises serious foreign policy considerations.

Counsel for Plaintiffs
Lee L. Bishop, Ronald J. Wilson, Barbara B. Graham
810 18th St. NW, Washington DC 20006
(202) 628-3160

Counsel for Defendants
Sanford Sagalkin, Lois J. Schiffer, William M. Cohen, Charlotte R. Bell
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4150

John Oliver Birch, Ass't U.S. Attorney
U.S. Courthouse, 3rd & Constitution Ave. NW, Washington DC 20001
(202) 426-7327