Lemmon v. Trump

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MICHAEL LEMMON, et al., Plaintiffs, v. Civil Action No. 26-cv-544 (TSC) DONALD J. TRUMP, et al., Defendants. DISTRICT OF COLUMBIA and COMMONWEALTH OF VIRGINIA, Plaintiffs, v. Civil Action No. 26-cv-3838 (TSC) NATIONAL PARK SERVICE, et al., Defendants. CONSOLIDATED CASES MEMORANDUM OPINION District of Columbia residents and visitors alike have long stood on the steps of the Lincoln Memorial and looked east. The view is among the most famous in the country: down the long expanse of the Reflecting Pool, past the World War II Memorial, to the Washington Monument, and, eventually, in the distance, the U.S. Capitol. On the other side of the Memorial, facing west, the city gives way to the Potomac River and the Arlington Memorial Bridge, which stretches across the water and toward Virginia. Across the river, where the bridge ends, is a traffic circle, or roundabout: Memorial Circle. That circle serves as a central link in a mile-long ceremonial, historic route that runs from the Lincoln Memorial, across the river, and down Memorial Avenue Page 1 of 33 to the gates of Arlington National Cemetery. Memorial Circle’s construction began in 1940, and the land within it has remained undeveloped green space, affording an unobstructed view of Arlington Cemetery, for more than 85 years. Last October, President Trump announced plans to change that, declaring that he intended to build a 250-foot-tall arch in Memorial Circle. Three Vietnam War veterans and an architectural historian sued in February 2026 to prevent the construction of the arch. See Compl., Lemmon v. Trump, No. 26-cv-544 (D.D.C. Feb. 19, 2026), ECF No. 1 (“Lemmon Compl.”) ¶¶ 7–10. They allege that Defendants—President Trump, Domestic Policy Council Director Vince Haley, the Executive Office of the President of the United States, and the National Park Service (“NPS”)—do not have the necessary congressional authorization to proceed with construction of the arch. Id. ¶¶ 53–57. Nonetheless, on October 21, 2026, Defendants filed notice that construction of the arch could begin as soon as November 5. ECF No. 63. On October 31, 2026, Plaintiffs the District of Columbia (“the District”) and the Commonwealth of Virginia (“Virginia”) filed a separate action, asserting claims under the Administrative Procedure Act (“APA”), as well as ultra vires and mandamus claims. See Compl., District of Columbia v. NPS, No. 26-cv-3838 (D.D.C. Oct. 31, 2026), ECF No. 1 (“D.C. & Va. Compl.”) ¶¶ 108–175. The court consolidated the cases. Order, District of Columbia v. NPS, No. 26-cv-3838 (D.D.C. Oct. 31, 2026), ECF No. 4. The Department of the Interior issued its final decision on November 5, 2026 approving construction of the arch. NPS, Decision Record: Triumphal Arch at Memorial Circle (Nov. 5, 2026), ECF No. 109-1 (“Decision Record”). Before the court are the Lemmon Plaintiffs’ motion for preliminary injunction, ECF No. 64, No. 26-cv-544, and the District and Virginia’s motion for a temporary restraining order (“TRO”) and stay of agency action, No. 26-cv-3838, ECF No. 2. For the following reasons, the Page 2 of 33 court will GRANT the District and Virginia’s motion for a temporary restraining order, DEFER ruling on the motion for stay of agency action, and HOLD IN ABEYANCE the Lemmon motion for a preliminary injunction.1 I. BACKGROUND A. Legal Background “Washington, D.C. has been a carefully planned city since it became the seat of the United States government in 1790.” DC Pres. League v. Bd. of Trs. of the John F. Kennedy Ctr. for the Performing Arts, 2026 WL 1506709, at *2 (D.D.C. May 29, 2026) (citing Planning History, Nat’l Cap. Planning Comm’n, https://perma.cc/K6S8-6ZZG (last visited Nov. 2, 2026)). Congress has stewarded Washington’s development throughout the twentieth century, passing multiple statutes to ensure continued oversight of the city’s planning and growth. See id. Accordingly, these statutes have imposed restrictions on construction projects in the District and its environs. In 1912, for example, Congress enacted a statute prohibiting construction of “any building or structure” on public, federal land in the District of Columbia “without express authority of Congress.” Act of Aug. 24, 1912, Pub. L. No. 62-302, ch. 355, 37 Stat. 417, 444 (formerly codified at 40 U.S.C. § 68). That command, perhaps “the most straightforward of Congress’s planning directives,” remains in force today. See DC Pres. League, 2026 WL 1506709, at *2. Now codified at 40 U.S.C. § 8106, the statute provides in full: “A building or structure shall not be erected on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress.” 1 Unless otherwise specified, all subsequent docket numbers refer to the docket of Case No. 26- cv-544. Page 3 of 33  Later in the twentieth century, Congress passed the Commemorative Works Act of 1986 (“CWA”), Pub. L. No. 99-652, 100 Stat. 3650 (codified as amended at 40 U.S.C. §§ 8901–8909), to “preserve the integrity of the comprehensive design of . . . the Nation’s Capital,” 40 U.S.C. § 8901(1). The CWA seeks to ensure that commemorative works on federally administered land are “appropriately designed, constructed, and located,” and that they “reflect a consensus of the lasting national significance of the subjects involved.” Id. § 8901(4). To this end, it imposes several procedural requirements for the construction of a “commemorative work,” defined as “any statue, monument, sculpture, memorial, plaque, inscription, or other structure . . . designed to perpetuate in a permanent manner the memory of an individual, group, event or other significant element of American history.” Id. § 8902(a)(1). The most salient of these is that any commemorative work erected in “areas administered by the National Park Service . . . in the District of Columbia and its environs” is to “be established . . . only as specifically authorized by law” by Congress, and “subject to applicable” procedures. Id. §§ 8901(4), 8903(a)(1), (a)(2). Among these procedures is the requirement of a “sponsor authorized by law to establish a commemorative work.” Id. § 8905. Separately, federal construction in the District is subject to review by two planning bodies: the National Capital Planning Commission (“NCPC”), which must approve the site and building plans for federal projects in the District, see 40 U.S.C. § 8722(b)(1), (d), and the Commission of Fine Arts (“CFA”), which advises on the design and location of monuments in the District’s public spaces, see 40 U.S.C. § 9102(a). B. Factual and Procedural Background In October 2025, President Trump announced plans to build a new monument on Memorial Circle. Lemmon Compl. ¶¶ 29–30. On various occasions, the project has taken on different names, Page 4 of 33 including the “Independence Arch” and the “Triumphal Arch.” See id. ¶¶ 29–37. The court refers to it here simply as “the Arch.” Since the initial announcement, the President has discussed his plans on social media, at press conferences, and during White House dinners. See id. ¶¶ 30–36. He has displayed models and diagrams of the Arch. Id. According to an October 9, 2026 NPS Revised Environmental Assessment, the Arch is planned to stand 250 feet tall—more than double the height of the Lincoln Memorial. Lemmon Defs.’ Opp’n to Pls.’ Second Mot. for Prelim. Inj., Ex. A (“Revised EA”) at 3, ECF No. 74-1. The Arch is slated for construction on Memorial Circle—a park administered by NPS and located in Washington, D.C., between the Lincoln Memorial and Arlington National Cemetery. Revised EA at 1, 3, 55; D.C. & Va. Compl. ¶ 44 (“Today, Memorial Circle, located within the boundaries of the District of Columbia in Lady Bird Johnson Park, connects Arlington Memorial Bridge to Memorial Avenue, forming a gateway to Arlington National Cemetery.”). The project has rapidly advanced. See D.C. & Va. Defs.’ Opp’n to Pls.’ Mot. for a TRO (“Opp’n”) at 9, ECF No. 95. The CFA has approved the design; the Federal Aviation Administration issued a determination of no hazard to air navigation; and the NCPC gave preliminary approval to site and building plans. Id. NPS’s Revised Environmental Assessment found adverse effects on historic properties, including Arlington National Cemetery and the Lincoln Memorial, and described the Arch as a commemorative feature celebrating 250 years of independence. Revised EA at 1, 84; id. App. C at 27–53 (stating Arch “would result in adverse effects to” many historic properties including “Memorial Avenue Corridor Cultural Landscape” and “Arlington National Cemetery Historic District”). That Assessment projects two to three months of site preparation and excavation, four to five months of foundation work, and two to three years of construction in total. Revised EA at 7–8, 52. Page 5 of 33  1. Lemmon v. Trump, No. 26-cv-544 On February 19, 2026, three Vietnam War veterans and an architectural historian sued, alleging the construction of the Arch was proceeding without necessary congressional authorization. Lemmon Compl. ¶¶ 53–57. The Veteran Plaintiffs are Michael Lemmon, Shaun Byrnes, and Jon Gundersen. Lemmon was drafted into the Army in 1966 and served as a helicopter pilot in Vietnam. Decl. of Michael Lemmon ¶ 2, ECF No. 7-2. He now lives in Washington, D.C. Id. ¶ 7. For decades, he has visited the gravesites of fellow veterans buried at Arlington National Cemetery and attended ceremonies there. Id. ¶ 6. He hopes to be buried at Arlington alongside his fallen comrades. Id. ¶ 9. Byrnes— who lives in Falls Church, Virginia—served in the Navy. Decl. of Shaun Byrnes ¶¶ 2–3, 8, ECF No. 7-3. In October 1965, while aboard a destroyer supporting operations in Vietnam, he suffered burns over half of his body and was hospitalized for seven months, then volunteered to return to active duty. Id. ¶ 3. Two of his shipmates are buried at Arlington National Cemetery; he visits their graves, regularly brings visiting foreign friends to the cemetery, and hopes one day to be buried there. Id. ¶ 8. Gundersen served as an Army lieutenant in Vietnam beginning in 1968. Decl. of Jon Gundersen ¶¶ 2–3, ECF No. 7-4. He now lives in South Carolina. Id. ¶ 6. Once or twice a year, he travels to Washington to visit Arlington National Cemetery and honor comrades buried there, and he intends to continue those visits. Id. ¶¶ 6–7. Plaintiff Calder Loth worked for forty years at the Virginia Department of Historic Resources, most recently as Senior Architectural Historian, and has led tours of Washington’s classical architecture. Decl. of Calder Loth ¶¶ 2–3, ECF No. 7-5. Loth studies and photographs the reciprocal views between the Lincoln Memorial and Arlington National Cemetery, and he intends to continue doing so. Id. ¶¶ 5–7; see also Lemmon Compl. ¶ 10. Page 6 of 33  The Lemmon Plaintiffs bring two claims. Count One asserts that Defendants’ Arch proposal was ultra vires—in excess of legal authority and without congressional approval—in violation of 40 U.S.C. § 8106, the CWA, the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332(2)(C), and the National Historic Preservation Act (“NHPA”), 54 U.S.C. § 306108. Lemmon Compl. ¶¶ 52–59. Count Two, brought against President Trump, alleges that the President’s actions have violated the Take Care Clause of the Constitution, which “limits the President’s power and ensures that he will faithfully execute Congress’s laws.” Id. ¶¶ 60–64. Shortly after filing suit, on February 27, 2026, the Lemmon Plaintiffs moved for a preliminary injunction. Lemmon Pls.’ First Mot. for Prelim. Inj., ECF No. 7. They asked the court to (1) declare construction of the Arch without congressional authorization unlawful, (2) enjoin Defendants Haley and the Executive Office of the President from taking any steps to construct the Arch without congressional authorization, and (3) enjoin NPS from authorizing or permitting construction of the Arch without congressional authorization. Lemmon Pls.’ Mem. Supp. First Mot. for Prelim. Inj. at 24, ECF No. 7-1. Defendants opposed the preliminary injunction, arguing that there had been no “final decision on arch design, subject, construction timeline,” and therefore Plaintiffs’ claims were “clearly unripe for judicial resolution.” Lemmon Defs.’ Opp’n to First Mot. for Prelim. Inj. at 1, ECF No. 12. Plaintiffs filed a reply on March 13, 2026. Lemmon Pls.’ Reply in Supp. of First Mot. for Prelim. Inj., ECF No. 13. The court held a hearing on the motion for a preliminary injunction on April 2, 2026. See Apr. 2, 2026 Hr’g Tr., ECF No. 19. After that hearing, the parties jointly represented that the then- pending motion for a preliminary injunction would be resolved through a proposed consent order. See Joint Status Report, Apr. 6, 2026, ECF No. 22. The parties proposed, and the court entered, an order providing that NPS “shall not authorize construction of an arch on Memorial Circle to Page 7 of 33 begin before NPS has published a notice” and that NPS “shall provide at least fourteen days’ notice prior to commencement of construction, or demolition in preparation for construction, of an arch on Memorial Circle.” See Apr. 8, 2026 Consent Order at 1, ECF No. 26. Given that agreement, Plaintiffs’ motion for a preliminary injunction was denied without prejudice. Id. Defendants filed a motion to dismiss on April 28, 2026, ECF No. 31, Plaintiffs filed their opposition on May 12, 2026, ECF No. 33, and Defendants filed their reply on May 26, 2026, ECF No. 35. Plaintiffs then filed a motion for summary judgment on May 27, 2026. See Lemmon Pls.’ Mot. for Summ. J., ECF No. 36. In response, Defendants filed a combined opposition to Plaintiffs’ motion and a cross-motion for summary judgment. Lemmon Defs.’ Cross Mot. for Summ. J., ECF No. 44. On September 3, 2026, the Secretary of the Interior announced that Defendants were “preparing to start, over the next two-week period, the excavation work necessary for the Great Triumphal Arch . . . at Memorial Circle.” Lemmon Pls.’ Mem. Supp. Mot. for TRO at 1, ECF No. 56-1 (quoting Sec’y Doug Burgum (@SecretaryBurgum), X (Sept. 3, 2026, 3:01 PM)). The next day, Plaintiffs moved for a temporary restraining order barring Defendants from “taking any steps to construct or to direct or facilitate construction of any structure in Memorial Circle absent congressional authorization.” Lemmon Pls.’ Mot. for TRO at 1, ECF No. 56. Defendants responded that the planned activity was the mechanical excavation of four test pits to identify archaeological resources, which they claimed “is not construction, or demolition in preparation for construction, of an arch.” Defs.’ Resp. at 2, ECF No. 57. On September 4, 2026, the court ordered Defendants to “provide the court with 48 hours’ notice before engaging in any activity on Memorial Circle other than on-site information gathering.” Sept. 4, 2026 Minute Order. The court reminded Defendants that “any construction Page 8 of 33 or demolition in preparation for construction before the National Park Service issues final agency action authorizing construction or without 14 days’ notice would be a violation of this Order” and of the previous Consent Order. Id. Defendants then moved to dissolve or clarify the September 4 Order, contending that it interfered with public safety and routine park maintenance. Defs.’ Mot. to Dissolve or Clarify, ECF No. 58. On September 17, 2026, the court clarified that the words “any activity” in the Order “apply only to activities related to or in preparation for the construction of an arch on Memorial Circle” and “do not apply to emergency response or routine park maintenance activities unrelated to the planned arch.” Sept. 17, 2026 Minute Order. Because both parties agreed that the September 4, 2026 Minute Order fully resolved the issue, the court denied Plaintiffs’ motion for a temporary restraining order as moot. Id. On October 21, 2026, pursuant to the court’s April 8, 2026 Consent Order, Defendants filed notice that the NCPC is scheduled to meet to consider the Arch proposal on November 5, 2026. ECF No. 63. Defendants stated that if the NCPC approves the Arch proposal, and if the Department of the Interior thereafter issues a final decision authorizing construction, then “construction or demolition in preparation for construction of an arch on Memorial Circle could commence immediately upon the [NPS] publishing a notice of that authorization.” Id. The notice also stated that NPS “may publish such notice as early as November 5, 2026,” and construction could begin as early as that same date. Id. Prompted by Defendants’ notice, Plaintiffs filed a second motion for a preliminary injunction on October 22, 2026. Lemmon Pls.’ Second Mot. for Prelim. Inj., ECF No. 64. Defendants filed their opposition on October 28, 2026. ECF No. 74. Alongside that response, Defendants submitted NPS’s Revised Environmental Assessment and historical correspondence regarding the Arlington Memorial Bridge Commission. See Revised EA, ECF No. 74-1. They also submitted declarations from the Secretaries of War and Homeland Page 9 of 33 Security, which—for the first time in this litigation—describe the Arch as a potential platform for supporting “coordinated protective operations.” Decl. of Pete Hegseth, Sec’y of War (“Hegseth Decl.”) ¶¶ 10–12, ECF No. 74-9; see also Decl. of Markwayne Mullin, Sec’y of Homeland Sec. (“Mullin Decl.”) ¶¶ 12–18, ECF No. 74-8. Plaintiffs filed their reply on October 29, 2026. ECF No. 85. The court heard argument the next day. 2. District of Columbia v. National Park Service, No. 26-cv-3838 On October 31, 2026, the District of Columbia and Virginia filed their own lawsuit against NPS; Jessica Bowron, in her official capacity as Comptroller Exercising the Delegated Authority of the Director of NPS; the U.S. Department of the Interior; and Doug Burgum, in his official capacity as Secretary of the Interior. D.C. & Va. Compl. ¶¶ 10–13. The District and Virginia allege that the construction of the Arch “will inflict immediate and irreparable harm on the District and Virginia,” as the Arch is “slated to be built on a busy traffic circle that abuts the border between the jurisdictions, at the center of a historic viewshed, in a river whose environment the District has a statutory responsibility to protect.” Id. ¶ 65. They further allege that construction would “clog traffic,” cause the District to “expend additional resources on emergency planning and preparedness,” have “environmental impacts,” and “change the District’s historic character.” Id. ¶¶ 66, 72, 79, 88. The District and Virginia bring eight claims, six under the APA, alleging that Defendants’ actions violate the CWA, 40 U.S.C. § 8106, the Height of Buildings Act, the NHPA, and NEPA, and are arbitrary and capricious; one ultra vires claim; and one claim for mandamus and prohibition. Id. ¶¶ 108–175. The court consolidated the District and Virginia suit with Lemmon. Order (Oct. 31, 2026), District of Columbia v. NPS, No. 26-cv-3838, ECF No. 4. Page 10 of 33  Alongside their Complaint, the District and Virginia moved for a temporary restraining order and a stay of agency action. D.C. & Va. Pls.’ Mot. for TRO, District of Columbia v. NPS, No. 26-cv-3838, ECF No. 2. Briefing on that motion was completed on November 4, 2026. See D.C. & Va. Defs.’ Opp’n to Pls.’ Mot. for TRO, ECF No. 95; D.C. & Va. Pls.’ Reply Supp. Mot. for TRO (“Reply”), ECF No. 100. II. LEGAL STANDARDS A. Temporary Restraining Order A temporary restraining order, like a preliminary injunction, “is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Hanson v. District of Columbia, 120 F.4th 223, 231 (D.C. Cir. 2024) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Experience Works, Inc. v. Chao, 267 F. Supp. 2d 93, 96 (D.D.C. 2003) (“The same standards apply for both temporary restraining orders and preliminary injunctions.” (citing Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977))). To make this showing, the movant must establish “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20 (citations omitted); see also Clevinger v. Advoc. Holdings, Inc., 134 F.4th 1230, 1233 (D.C. Cir. 2025). Where, as here, “the Government is the opposing party,” the balance of the equities and the public interest “merge.” Ctr. for Taxpayer Rts. v. IRS, 190 F.4th 990, 1011 (D.C. Cir. 2026) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). B. Stay of Agency Action Section 705 of the APA authorizes a “reviewing court” to “issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights Page 11 of 33 pending conclusion of the review proceedings” on “such conditions as may be required and to the extent necessary to prevent irreparable injury.” 5 U.S.C. § 705. The standard for obtaining a Section 705 stay is the same as that for obtaining a preliminary injunction. See Cuomo v. U.S. Nuclear Regul. Comm’n, 772 F.2d 972, 974 (D.C. Cir. 1985) (citing Holiday Tours, Inc., 559 F.2d at 843). But the two remedies differ in nature, “with an injunction commanding a party and a stay suspending the agency action itself.” Coal. for Indep. Tech. Rsch. v. Rubio, 836 F. Supp. 3d 215, 232 (D.D.C. 2026) (citing Nken, 556 U.S. at 428–29). III. ANALYSIS A. TRO and Stay Factors All four factors—the likelihood of success on the merits, irreparable harm, public interest, and the balance of the equities—favor the District and Virginia. 1. Likelihood of Success on the Merits The first factor, the “likelihood of success on the merits, is the ‘most important factor.’” Friends of the Earth U.S. v. Exp.-Imp. Bank of the U.S., 187 F.4th 616, 625 (D.C. Cir. 2026) (quoting Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014)). In the context of preliminary relief, “the ‘merits’ on which a plaintiff must show a likelihood of success encompass both substantive theories and establishment of jurisdiction.” Id. (cleaned up) (quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015)). i. Standing A threshold requirement for federal jurisdiction is that a plaintiff have “standing to sue under Article III of the Constitution.” FDA v. All. for Hippocratic Med., 602 U.S. 367, 378 (2024). To establish standing, a plaintiff must demonstrate “(i) that she has suffered or likely will suffer an injury in fact, (ii) that the injury likely was caused or will be caused by the defendant, and (iii) Page 12 of 33 that the injury likely would be redressed by the requested judicial relief.” Id. at 380. A plaintiff moving for a temporary restraining order must “‘clearly’ show that it is ‘likely to establish each element of standing.’” Nat’l Tr. for Historic Pres. v. NPS, 185 F.4th 1185, 1207 (D.C. Cir. 2026) (alteration omitted) (quoting Murthy v. Missouri, 603 U.S. 43, 58 (2024)). And although “states lack ‘standing as parens patriae to bring an action against the Federal Government’”—i.e., they “cannot sue the federal government on behalf of their injured state citizens”—a government “that demonstrates direct harm to its economic, environmental, or administrative interests as a result of federal action may have standing to sue.” Clean Wis. v. EPA, 964 F.3d 1145, 1158 (D.C. Cir. 2020) (per curiam) (emphasis added) (quoting Alfred L. Snapp & Son, Inc. v. P.R. ex rel. Barez, 458 U.S. 592, 610 n.16 (1982)). The District and Virginia have demonstrated a “substantial likelihood” of standing. Mennonite Church USA v. DHS, No. 25-5209, slip op. at 11 (D.C. Cir. Oct. 20, 2026) (quoting Food & Water Watch, 808 F.3d at 913). Because the District and Virginia seek “prospective relief,” they must “establish a sufficient likelihood of future injury.” All. for Hippocratic Med., 602 U.S. at 381 (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013)). And the threatened harm must be “concrete” and “particularized.” Murthy, 603 U.S. at 57 (quoting Clapper, 568 U.S. at 409). The District and Virginia face tangible economic harms from the construction of the Arch. See TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021). The record indicates that construction will lead to “lane closures,” “reconfigurations,” and “detours,” as well as lead to “reducing westbound traffic from Arlington Memorial Bridge to two lanes,” “restricting eastbound traffic,” “prohibiting northbound traffic from . . . entering the circle,” and requiring additional changes to traffic patterns. Revised EA at 53. Even once the Arch is complete, new traffic patterns at Page 13 of 33 Memorial Circle—created to accommodate thousands of expected daily visitors—could “result[] in significant delay[s]” in the circulation of traffic, “reduced maneuverability, and limited ability to recover from disruptions.” Id. at 54. NPS’s Revised Environmental Assessment indicates that Memorial Circle already “experience[s] periods of heavy” traffic, particularly during peak commuting hours “when inbound traffic toward Washington, D.C. is at its highest.” Id. at 50. The congestion is not expected to improve: Defendants “project[]” that traffic will “remain high under future peak-hour conditions.” Id. All of this would require the District and Virginia to expend resources in assessing and responding to the congestion. Defendants’ own projections demonstrate that the Arch will disrupt the level of service on roadways maintained by Virginia. See Revised EA at B-24 to B-27, B-30 (Richmond Highway ramps). And both during and after construction the Arch will affect the “movement of” thousands of “District commuters, visitors, and emergency personnel.” See Decl. of Phil Mendelson (“Mendelson Decl.”) ¶ 57, ECF No. 2-4, Case No. 26-cv-3838. As the Chairman of the D.C. Council avers, the D.C. Department of Transportation (“DDOT”) will need to “expend staff time and operating resources” to “affirmatively and proactively manage temporary detours, crashes or disabled vehicles, unanticipated incidents, major special events, or changed construction conditions.” Mendelson Decl. ¶ 62. Indeed, “continued transportation planning and coordination to assess the impact of the Arch on the District, both when construction begins and for years into the future” will consume resources the DDOT could spend elsewhere. Id. ¶¶ 62, 64. Where, as here, governmental action “causes a state to undertake ‘expenditures to mitigate and recover from harms that could have been prevented’” by the absence of that action, “the state suffers an injury to its proprietary interest sufficient to confer standing.” Sierra Club v. U.S. Dep’t of Transp., 125 F.4th 1170, 1181 (D.C. Cir. 2025) (quoting Air All. Hous. v. EPA, 906 F.3d 1049, Page 14 of 33 1059–60 (D.C. Cir. 2018)). Indeed, the D.C. Circuit has recognized that “exacerbated administrative costs and burdens imposed” on state and local governments, such as the ones the construction of the Arch threaten to impose, “constitute a concrete and particularized injury” for standing purposes. New Jersey v. EPA, 989 F.3d 1038, 1046 (D.C. Cir. 2021) (citing Clean Wis., 964 F.3d at 1158). Nor are these harms “speculative.” Diamond Alt. Energy, LLC v. EPA, 606 U.S. 100, 111 (2025) (quoting All. for Hippocratic Med., 602 U.S. at 381). Defendants have told this court that construction of the Arch “could commence as early as” the day NPS approves it. See Notice, ECF No. 63. And the threatened harms will materialize as soon as construction begins, in part because the traffic disruptions will occur immediately. Accordingly, these harms are “real and immediate” for standing purposes. Murthy, 603 U.S. at 58 (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). Defendants protest that “standing is assessed ‘at the time the action commences,’” and that, “[a]s of October 31, 2026,” the NCPC had not voted to approve the project, nor had Interior issued a final decision authorizing construction. Opp’n at 15. Defendants thus insist that “Plaintiffs will be unable to establish standing until they file an amended complaint after Interior issues a final decision.” Opp’n at 15–16 (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 191 (2000)). But that argument mistakes final agency action—which is a merits question under the APA—with standing. “[I]t is ‘now firmly established’ that finality under the APA is non-jurisdictional.” Flytenow, Inc. v. FAA, 808 F.3d 882, 888 (D.C. Cir. 2015) (quoting Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654, 661 (D.C. Cir. 2010)). In other words, the absence of final agency action can no more deprive a court of jurisdiction than the presence of it can confer jurisdiction where none exists. The appropriate standing inquiry, therefore, is whether, on October 31, there was a “substantial risk” of harm “in the near future.” Murthy, 603 U.S. at 58. Page 15 of 33  That standard is amply met here. In their notice to this court, Defendants stated that the NCPC would meet on November 5, that NPS approval could occur “as early as” the same day, and that construction could also begin “as early as” that day. Notice, ECF No. 63. The District and Virginia filed suit five days before November 5. Given the timeline, and that (1) the NCPC had approved preliminary designs in July by an 8–1 vote,2 (2) substantial elements of the designs remained unchanged since that meeting,3 and (3) the NCPC meeting on November 5 was the final external review before the project’s approval, there was plainly a “substantial risk” on October 31 that harm would occur “in the near future.” Murthy, 603 U.S. at 58. Next, Defendants insist that the District and Virginia “cannot establish standing based on the costs of assessing and studying the Arch project’s impacts or mitigation planning” because “[n]o law obligates” them “to spend money” for those purposes, Opp’n at 17 (quoting D.C. & Va. Compl. ¶ 71), and a plaintiff “who ‘has not suffered a concrete injury caused by a defendant’s action cannot spend his way into standing,’” id. (quoting All. for Hippocratic Med., 602 U.S. at 394). But Defendants’ own materials show that their actions will significantly increase congestion not only during construction of the Arch, but even once it is completed. See Revised EA at 50– 54, B-24 to B-30. And it is a “commonsense inference[]” that when nearby construction threatens to clog a major artery to a city, the city will take measures to assess and overcome its effects. First Choice Women’s Res. Ctrs., Inc. v. Davenport, 608 U.S. 174, 190 (2026) (quoting Diamond Alt. Energy, 606 U.S. at 116). No law obligating such expenditures is required. 2 See Associated Press & Darlene Superville, Trump’s Plan for a Triumphal Arch in DC Wins Early Approval from a Key Federal Agency, WECT News 6 (July 10, 2026, at 00:46 ET), https://perma.cc/KC4X-5ALR. 3 U.S. Dep’t of the Interior, Synopsis for the New Monumental Arch, at 1, https://perma.cc/G5GF- F2W5 (last visited Nov. 3, 2026). Page 16 of 33  Put differently, the District and Virginia’s economic harm is “fairly traceable” to Defendants’ actions because they would have no “incentive to engage in []any of the[se] countermeasures” were the Arch not being constructed. Clapper, 568 U.S. at 417. And because Defendants’ “action causes” the harm faced by the District and Virginia, enjoining the construction of the Arch will likely redress their injuries. All. for Hippocratic Med., 602 U.S. at 381. Defendants’ belated and unsupported assertion that the Arch will yield national security benefits does not alter this analysis. See infra Part III.A.3. Accordingly, the District and Virginia have demonstrated a “substantial likelihood” of standing. Mennonite Church, No. 25-5209, slip op. at 11 (quoting Food & Water Watch, 808 F.3d at 913). ii. APA Claims Turning to the merits of their claims, the District and Virginia argue, inter alia, that Interior’s final approval violates the CWA and is therefore contrary to law under the APA. See 5 U.S.C. § 706(2)(A), (C); D.C. & Va. Compl. ¶¶ 108–117. In response, Defendants contend that the harms the District and Virginia face fall outside the zone of interests protected by the CWA, and that in any event, Congress has authorized the construction of the Arch. See Opp’n at 24–30. On the record before the court, the District and Virginia are likely to succeed. a. Final Agency Action The APA restricts judicial review to “final agency action.” 5 U.S.C. § 704. That requirement is met here, as Defendants have conceded that the Department of the Interior’s approval, following NCPC authorization, is “final agency action” within the meaning of the APA. See Oct. 30, 2026 Hr’g Tr. 51:4–10, ECF No. 89 (conceding as much); Lemmon Defs.’ Reply to Opp’n to Mot. for Summ. J. at 1, ECF No. 51 (same); Decl. of Joshua Fisher (“Fisher Decl.”) ¶ 4, ECF No. 24-1 (averring that NPS’s “authorizing arch construction to proceed” will constitute Page 17 of 33 “final agency action”); Decision Record, ECF No. 109-1. And for good reason: the approval appears to (1) “mark the ‘consummation’ of the agency’s decisionmaking process” and (2) “determine ‘rights or obligations,’ or produce ‘legal consequences.’” Ass’n of Flight Attendants- CWA v. Huerta, 785 F.3d 710, 713 (D.C. Cir. 2015) (quoting Bennett v. Spear, 520 U.S. 154, 177– 78 (1997)). As to the first prong, there is nothing “tentative” or “interlocutory” about Interior’s decision, Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 417 F.3d 1272, 1279 (D.C. Cir. 2005), which has come after months of assessments,4 reviews from the CFA and the NCPC,5 and the emergence of a “final design.” Oct 30, 2026 Hr’g Tr. 48:15. Defendants have themselves characterized the decision of the Department of the Interior—which houses NPS—following the NCPC’s approval as “a final decision” on the Arch. ECF No. 63. So Interior’s approval is plainly the culmination of its decisionmaking process. As for the second prong, Interior’s final approval carries significant legal consequences: it authorizes the construction of a 250-foot arch over a period of roughly three years that will disrupt traffic, create noise, result in large-scale excavation, and more. See Revised EA at 11–68. The approval will authorize the exclusion of the public from the construction area, divert traffic, and create what will amount to legal nuisances. These “concrete consequences” make it clear that the second prong of the finality analysis is also met. Racing Enthusiasts & Suppliers Coal. v. EPA, 45 F.4th 353, 358 (D.C. Cir. 2022) (quoting Sierra Club v. EPA, 955 F.3d 56, 63 (D.C. Cir. 2020)). Accordingly, the approval is likely final agency action. 4 See, e.g., NPS, Triumphal Arch at Memorial Circle: Revised Environmental Assessment (Oct. 9, 2026), https://perma.cc/G2Q6-RWK6. 5 See, e.g., NCPC, Commission Action (July 9, 2026), https://perma.cc/UER7-3MJJ. Page 18 of 33  b. Zone of Interests In addition to demonstrating final agency action, a plaintiff suing under the APA must show that “[t]he interest he asserts . . . [is] ‘arguably within the zone of interests to be protected . . . by the statute’ that he says was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). As the APA makes “agency action presumptively reviewable,” this test “is not meant to be especially demanding.” Id. at 225 (quoting Camp, 397 U.S. at 153, and Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 403 (1987)). The injury need only “bear[] a ‘plausible relationship to the policies’ underlying” the statute. CSL Plasma Inc. v. U.S. Customs & Border Prot., 33 F.4th 584, 593 (D.C. Cir. 2022) (citing Clarke, 479 U.S. at 403). Defendants insist that the District and Virginia cannot invoke the CWA because the harms they have pleaded for standing purposes fall outside “the zone of interests” protected by the statute. Opp’n at 25. But one of the CWA’s express purposes is “to ensure that future commemorative works . . . in the District of Columbia and its environs . . . are appropriately designed, constructed, and located.” 40 U.S.C. §§ 8901(4)(A). And the District and Virginia’s threatened economic injuries, which are tied to increased traffic, delays, and disruption, arise out of the scale of the Arch, its multi-year construction, and its location at a traffic nerve center in the area. Because these harms “bear[] a ‘plausible relationship to the policies’ underlying” the CWA, they fall within the zone of interests protected by the statute. CSL Plasma, 33 F.4th at 593 (citing Clarke, 479 U.S. at 403). Page 19 of 33  c. Agency Action That Is Contrary to Law The APA requires reviewing courts to “hold unlawful and set aside agency action” that is “in excess of statutory jurisdiction, authority, or limitations,” “without observance of procedure required by law,” or “otherwise not in accordance with law.” 5 U.S.C. §§ 706(2)(A), (C), (D). In determining whether an agency has violated a statute’s congressional command, courts “‘decide all relevant questions of law’ and ‘interpret . . . statutory provisions’” without deference to the agency’s position. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 398 (2024) (emphasis and alteration omitted) (