Vietnam vets ask judge to block excavation work on Trump's 'triumphal arch'

Attorneys for a group of Vietnam War veterans suing to block construction of the proposed 250-foot "triumphal arch" championed by President Donald Trump have asked a federal judge to issue a temporary restraining order to prevent the administration from moving forward with excavation work on the project recently announced by Interior Secretary Doug Burgum.

"The imminent course of action that Secretary Burgum has announced to the American people is unlawful many times over," the attorneys wrote in a motion for a restraining order filed on Friday, citing the absence of congressional authorization to build the arch, as well as a lack of 14 days' notice that the judge in the case has ordered before work begins.

The motion also points to the demolition of the White House East Wing, which happened without notice and before courts could weigh in.

"Permitting Defendants to proceed with construction on the arch would risk a similar situation in which construction before this Court has issued a final judgment would render the arch a fait accompli before this Court has reached a determination on whether it is authorized by law," the lawyers stated.

The filing also notes that the National Capital Planning Commission has yet to issue final approval for the arch's construction plan.

It's unclear when or whether U.S. District Court Judge Tanya Chutkan, who is hearing the case will call a hearing in the case or grant the temporary restraining order that the vets have requested.

In April, Chutkan ordered that the Trump administration must provide the court with 14 days' notice before any construction on the arch can begin. 

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The veterans' motion comes a day after Burgum announced that excavation work for the construction of the arch will begin over the next two weeks.

"We are pleased to announce that after a very long wait (over 125 years!), we are preparing to start, over the next two-week period, the excavation work necessary for the Great Triumphal Arch and Military Observation Deck, at Memorial Circle on Columbia Island between the Lincoln Memorial and Arlington National Cemetery," Burgum wrote in a social media post on Thursday.

"This will be one of the Great Pieces of American Architecture, honoring the history and significance of Arlington Cemetery and befitting the most powerful Capital in the World," Burgum added.

In response to the veterans' motion, the Justice Department said the excavation work heralded by Burgum on Thursday is, in reality, "not construction, or demolition in preparation for construction, of an arch."

Instead, a National Park Service official attested in a notice filed Friday, the work is "a standard predecisional, information-gathering technique used to plan for potential construction projects and ensure compliance with statutes such as the National Historic Preservation Act."

The DOJ's filing said the work will involve the excavation of four test pits, in what is described as "archeological survey work," and that the digging would begin no sooner than Sept. 21 and last through the end of October.

"This activity will be carried out to satisfy NPS compliance obligations and to inform NPS and the public about the history of Columbia Island," the administration's lawyers said.

The lawyers said the plan to do this work was previously disclosed in publicly available documents published online late last month and in June.

They said the work should not trip Chutkan's order requiring 14 days' advance notice before construction begins because NPS has not yet issued a "final agency action authorizing construction of an arch." Should it issue that decision, the lawyers said the Trump administration will provide at least 14 days' notice on construction plans.

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The veterans suing over the arch have argued it would obstruct views of Arlington National Cemetery and can't be built without congressional authorization.

The Trump administration has argued that a 100-year-old statute related to the building of the nearby Arlington Memorial Bridge authorizes construction of the arch. Department of Justice lawyers have also argued that the plaintiffs lack standing and that the lawsuit is premature. 

In recent court filings, both sides referenced the Supreme Court's move earlier this week to allow continued construction of the White House ballroom -- another of Trump's key Washington projects.

In a filing Thursday, the Trump administration said the veterans' claims are "indistinguishable" from the one rejected by the high court's five-member majority earlier this week in the ballroom case, finding the National Trust for Historic Preservation likely lacked standing to sue.

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"Plaintiffs' personal and professional experiences cannot transform distaste for the arch and its proposed placement into concrete and particularized injuries required for Article III standing," the Justice Department's filing said.

The veterans have argued in a recent filing that their case is different from the ballroom one in that their injury "is not based on the construction of something that gives them offense but rather on the destruction of a landscape that they regularly visit and that holds profound personal significance for each of them in its present state."

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In July, the National Capital Planning Commission (NCPC) voted to approve the preliminary site and building plans for the arch after hearing hours of public testimony against the project.

Ahead of that meeting, NCPC agency staff recommended initial approval but also a series of revisions to the project to comply with the Height of Buildings Act. The century-old federal law restricts building heights in Washington, D.C., to preserve the city's skyline.

The commission has not yet approved the final design for the arch.

Trump's proposed arch would be more than twice as tall as the 99-foot Lincoln Memorial, and taller than France's Arc de Triomphe.

Earlier this year, the Commission of Fine Arts, another federal agency made up entirely of Trump appointees, voted to give the project initial approval. 

The National Park Service plans to have construction take place 20 hours per day over the next two to three years, according to  planning documents  released by the Interior Department earlier this summer.