Gemeinschaft zum Schutz des Berliner Baumbestandes v. Marienthal

No. 78-1836 (D.D.C. November 9, 1978)

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

[9 ELR 20011]

Richey, J.:

Presently before the court is a motion by the plaintiffs to enjoin the United States Army from constructing an apartment complex in West Berlin for violations of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and Defense Department environmental regulations, 40 C.F.R. part 214. For the reasons that follow, the court declines to issue a preliminary injunction.

In order to invoke NEPA and the environmental regulations of the Department of Defense, "federal action" must be involved. 42 U.S.C. § 4332; 32 C.F.R. § 214.2 ("Defense action"). In this case, the housing project which is being challenged was initiated by the German goverment, is being constructed by the German government, is being paid for by the German government, and, if the building is completed, title will be in the German government. The plaintiffs contend that federal action is involved because of a land swap arrangement the federal government participated in, the ordering of a temporary halt in construction by the American Commandant, the refusal of the Army to allow a local Berlin court to hear a challenge to the project, and the pervasive American influence on the project.

The court finds that the plaintiff has yet to demonstrate that this may add up to federal action. In order to qualify as federal action there must be some affirmative conduct on the part of the government, not simply a failure to prevent what the government has the power to prevent. NAACP v. Wilmington Medical Center, 436 F. Supp. 1194, 1200 [8 ELR 20012] (D. Del. 1977); State of Alaska v. Andrus, 429 F. Supp. 958, 963 [7 ELR 20505] (D. Alas. 1977). Intervening to temporarily halt construction and failing to consent to a German court's challenge to the construction cannot qualify as such action. Merely swapping the land to preserve buildings of historical interest at the German government's request does not amount to federal action under the circumstances in this case. Merely because the Army has declined to intervene and exercise its authority to halt construction is insufficient to transform action by the German government into rederal action. If the court were to accept the plaintiffs' argument that a failure to intervene is sufficient to constitute federal action, all major actions by the German government would be subject to review by the American courts because technically, the United States Army has the ultimate authority in the American sector to modify local law. Plainly, such a rule of law would be unacceptable.

Moreover, in balancing the hardship to the parties, the court recognizes that, at this time, judicial interference in the German government's actions in West Berlin raises serious foreign policy considerations. Since the plaintiffs have failed to present a "substantial case on the merits" and the balance of hardship is not in the plaintiffs' favor, the plaintiffs' request for injunctive relief is denied. Accordingly, it is, by the court, this ninth day of November 1978,

ORDERED, that the plaintiffs' motion for a preliminary injunction be, and the same hereby is, denied.