UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WASHINGTON METROPOLITAN AREA

TRANSIT AUTHORITY, a body

corporate,

Plaintiff-Appellee,

v.

JULIUS FLEISCHMAN,

No. 96-1868

Defendant-Appellant,

and

ONE PARCEL OF LAND IN PRINCE

GEORGE'S COUNTY, MARYLAND;

UNKNOWN OWNERS,

Defendants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Alexander Williams, Jr., District Judge.

(CA-95-2423)

Submitted: March 31, 1997

Decided: May 8, 1997

Before ERVIN, WILKINS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Theda Braddock, ZANECKI BRADDOCK & SILBER, P.C., Greenbelt, Maryland, for Appellant. Lois J. Schiffer, Assistant Attorney
General, Lynne A. Battaglia, United States Attorney, David C. Shilton, Michael K. Baker, Douglas R. Wright, Robert H. Oakley,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Julius Fleischman owned a parcel of property in suburban Washington, D.C. The Washington Metropolitan Area Transit Authority

("WMATA") filed a condemnation action against a portion of the

property for use in the construction of a new station for its Metro rail

system. Fleischman filed an amended answer raising five affirmative

defenses. WMATA filed a motion to strike all five affirmative

defenses, and Fleischman filed a cross-motion for injunctive relief.

After conducting a de novo review, the district court adopted the magistrate judge's recommendation that WMATA's motion be granted

and Fleischman's be denied. On appeal, Fleischman challenges the

striking of his affirmative defense asserting that inadequacies in an

environmental impact statement ("EIS") rendered the condemnation

action arbitrary and capricious, causing the condemnation to lack a

public purpose. Finding no reversible error, we affirm the order of the

district court.

It is undisputed that this court reviews a condemnation proceeding

only to determine whether the purpose for which the property was

condemned was for a congressionally authorized public use. United

States ex rel. Tenn. Valley Auth. v. Welch, 327 U.S. 546, 551-52

(1946). Here, the purpose of the condemnation was to secure property

for the building of parking facilities for a new Metro rail station, and

we find that this satisfies the requirements in Welch.

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We find that Fleischman's assertion that failure to prepare an adequate EIS causes WMATA's action to exceed its congressional

authority to be without merit. The National Environmental Policy Act

("NEPA"), 42 U.S.C. § 4332(2)(C) (1994), requires all federal agencies to prepare an EIS addressing the impact on the quality of the

human environment prior to embarking on any major project. Failure

to prepare an EIS is not an affirmative defense to a condemnation

action. United States v. 178.15 Acres of Land , 543 F.2d 1391 (4th Cir.

1976); see also United States v. 0.95 Acres of Land, 994 F.2d 696,

699 (9th Cir. 1993); United States v. 255.25 Acres of Land, 553 F.2d

571, 572 n.2 (8th Cir. 1977). We adopt the reasoning in 0.95 Acres

of Land that a condemnation action is merely a transfer of legal title

with no environmental impact. Id. at 699.

We therefore affirm the order of the district court. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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