- The Washington Times - Friday, June 8, 2001

A federal judge yesterday refused to issue a temporary restraining order that would have delayed construction of the World War II Memorial on the National Mall.
U.S. District Judge Henry H. Kennedy Jr. ruled that opponents of the project did not prove in their request for an injunction that the American Battle Monuments Commission would cause irreparable harm by signing a contract to begin building the memorial.
"No ground will be tilled, no tree roots will be pruned, no actual construction will begin," until after the July 4 activities on the Mall, Judge Kennedy said at a brief hearing yesterday morning.
He said signing a contract "does not mean construction will immediately begin."
The judges ruling comes 10 days after President Bush signed legislation placing the planning and assembly of the memorial outside normal review procedures in an effort to end lawsuits and other delays. Congress approved the legislation last month, citing the advanced age of World War II veterans.
The memorial, sponsored by the American Battle Monuments Commission, is slated to go up at the Rainbow Pool between the Washington Monument and the Lincoln Memorial.
Opponents of the project — the National Coalition to Save Our Mall and the World War II Veterans to Save the Mall — claimed in their request that the new law was unconstitutional because it encroached on judicial powers.
Judge Kennedy disagreed, saying that while he wasnt making a "definitive ruling" on the legislation, it appeared constitutional and seemed to strip the courts of its jurisdiction over the case.
"It seems that Congress exercised its authority to remove final decisions on the World War II memorial from judicial review," the judge said.
The opposition groups also claimed in court papers that the National Park Service violated the National Environmental Policy Act (NEPA) when it planned the memorial site. They contend the Park Service did not prepare an adequate environmental impact statement to determine the memorials effect on its surroundings.
Justice Department attorneys argued the project no longer fell under the NEPA statute because of the congressional action taken last week. They also said the memorials sponsor had received special construction permits that would protect the Malls environment.
After the hearing, opponents said they were disappointed with the ruling and vowed to continue their fight in the courts. Andrea Ferster, attorney for the groups, said she would ask that the judge immediately issue an order on the merits of the case so an appeal could be filed.
"Appellate review is essential," she said.
Judy Scott Feldman, co-chairman of the coalition, said it will "follow the law to its fullest extent."
"We are not going to quit," she said. "We all agree with the concept of the memorial, but its now time for people to look at whats actually being proposed, and to seriously see that we have a huge mistake and a huge desecration of the Mall about to occur."
The monument commission was pleased with the decision. Spokesman Mike Conley said, "This is a favorable decision for the memorial and for that entire generation were trying to honor."
Several hours after the ruling, the commission awarded a $56 million building contract to Tompkins Builders and Grunley-Walsh Construction, a joint venture. The companies have participated in several government-related projects, including the renovation of the Washington Monument, the Jefferson Memorial, the FDR Memorial and the U.S. Capitol.
Justice Department officials said on-site construction is expected to begin July 5 and to be completed in spring 2004.

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