"substantially in accordance" with House Document 565. The particular change in question; to wit, the increase in acreage from 15,715 acres to 29,300 acres under the proposed acquisition schedule, was the result of a detailed study and plans for the project prepared pursuant to an appropriation of funds by Act of Congress, December 31, 1963, P.L. 88-257. Subsequently, during the hearings on public works appropriations for 1968, a House of Representatives subcommittee considered the proposed Raystown Lake Project with the 29,300 acres recommended to be acquired (See Ex. 1 of the government's motion to strike). Thereafter, funds for the actual construction of the flood control project reservoir were appropriated by Act of Congress, August 25, 1972, P.L. 92-405, 92nd Congress. For these reasons the court believes that the plans as altered by the Secretary of the Army were sufficiently authorized by Congress.
Defendant Morningstar further contends that if the court finds that authority does exist for the taking of his property, then, in any event, such authorization constitutes an illegal delegation of discretion and authority by the Congress to the Secretary of the Army in his administrative capacity. The court does not agree. The court will not consider broadside allegations that the purported public use is merely a pretense to explain arbitrary official conduct absent specific allegations of egregious bad faith. UNITED STATES v. 416.18 ACRES OF LAND, 514 F.2d 627, 631-32 (7th Cir. 1975). Defendant in the present case does not contend that the proposed condemnation of his property is out of actual malevolence of the Secretary of the Army toward defendant. Furthermore, the Secretary of the Army is vested with sufficient authority to alter initial plans for proposed projects only insofar as the changes are necessary to successfully complete the approved project, and these changes are subject to the further scrutiny and approval of Congress when additional funds are requested to effectuate the changes. As to the particular change in the total acreage sought to be acquired by the Secretary in the present case, the court is of the opinion that the project as altered has been sufficiently reviewed and approved by Congress and that such change does not render the Secretary's exercise of discretion either arbitrary or capricious, or in any way constitute an abuse of his discretion. See, UNITED STATES v. 187.40 ACRES OF LAND, etc., supra, at 57.
Defendant also claims that the proposed condemnation of his property was not included as a part of the original project in the maps prepared by the Corps of Engineers and is not now necessary for any valid public use in connection with the flood control project. As a consequence defendant contends that the present proceedings constitute an arbitrary and discriminatory abuse of power by the Secretary of the Army.
The role of the court upon judicial review of condemnation cases does not encompass consideration of whether the land taken is actually necessary for the successful operation of the project. Our inquiry is concluded once we establish the requisite statutory authority and the propriety of the public purpose of such acquisitions; the need and necessity of the land being taken is wholly within the opinion of the Secretary and the taking of more land than is necessary for the express public use is no defense to condemnation acquisition. UNITED STATES v. 187.40 ACRES OF LAND, etc., supra, at 57; BERMAN v. PARKER, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct. 98 (1954); UNITED STATES ex rel. T.V.A. v. WELCH, 327 U.S. 546, 90 L. Ed. 843, 66 S. Ct. 715 (1946).
The role of the court in considering whether the exercise of the power of eminent domain is for a public purpose in this instance is also circumscribed and extremely narrow. The determination of what constitutes a public purpose and what type of taking is for a public use is peculiarly within the function of Congress pursuant to the application of its police power and in the interest of promoting the general welfare. The amount and character of the land to be taken for the approved project and the need for a particular tract rests in the discretion of the legislative branch, and the agency authorized by the legislature to do the taking may do so to the full extent of its statutory authority. BERMAN v. PARKER, supra, at 32; UNITED STATES ex rel. T.V.A. v. WELCH, supra, at 551-52. The remaining function of the court is solely to consider whether the purpose for which defendant's property was taken is in fact for a congressionally authorized public use. UNITED STATES v. 416.18 ACRES OF LAND, 514 F.2d 627, 631 (7th Cir. 1975).
The declaration of taking filed in connection with the proposed condemnation of defendant's property sets forth the public use for such taking as follows: "The said land is necessary to provide for the establishment of a flood control project and for other uses incident thereto." Defendant states, however, that on November 18, 1974, he was advised by the District Engineer for the Corps of Engineers that one of the purposes of the acquisition of defendant's property was to establish a relatively uniform project boundary, and that in considering an easily identifiable boundary and with the utilization of natural ridges and existing roads for that purpose, the Army Corps of Engineers had previously decided to acquire only a portion of defendant's land. Defendant contends that this is not a valid public use in justification for the exercise of the power of eminent domain.
Defendant further maintains that any taking of his land for the purpose of "wildlife mitigation" is an illegal exercise of the power of eminent domain in that it is not a use which was set forth in the applicable declaration of taking and because such an acquisition would be to the benefit of the Commonwealth of Pennsylvania and not the United States.
It is the court's conclusion based on the facts and circumstances adduced from the record in this case that the proposed taking of defendant's land is for a valid, congressionally-approved public use; namely, to provide an area to mitigate the loss of wildlife habitat resulting from the flooding of the acreage consisting of the permanent reservoir and possible additional flood pools. (See Ex. 3 attached to the government's motion to strike). "Wildlife mitigation" areas together with recreational facilities are clearly two important considerations in a flood control project. House Document 565 and other maps prepared by the Corps of Engineers and considered by Congress prior to their approval of the Raystown Lake Project specifically provide for various recreational and wildlife mitigation areas within the project's recommended boundaries. While the area including the defendant's property is not within the portion of the project area designated as a wildlife mitigation area in the map prepared by the Corps of Engineers and included in defendant's amended answer as Exhibit "B", the defendant's property is clearly within the delineated boundaries of the proposed project as originally planned and drawn on the map. It is true that the map does not indicate a specific use to be allocated the area encompassing defendant's property, but, nevertheless, defendant's property was intended to be acquired from the outset, presumably for a use to be determined later depending on the needs of the flood control project; to wit, as a wildlife mitigation area. Congress considered the Raystown Lake Project as presented in House Document 565 and authorized it by Act of Congress, October 23, 1962, P.L. 87-874, 87th Congress, 76 Stat. 1173, to be funded by Act of Congress, August 25, 1972, P.L. 92-405, 92nd Congress, and to be constructed "substantially in accordance with. . . H.D. 565. . . ."
The possibility that the acquisition of defendant's property is also for the purpose of establishing a definite boundary along a natural and identifiable ridge would not render the "wildlife mitigation" purpose invalid. The creation of a boundary is always involved in the designation of a specific area to a particular use and is a natural consequence of the acquisition of such lands. Such use is merely ancillary to the main purpose of "wildlife mitigation" and does not serve to defeat its validity as a congressionally-approved public use. It is not within the province of the courts to review the choice of a boundary line or the extent to which property should be taken for a public use; once having determined that the taking is for a recognized and authorized public use the judicial function is exhausted, providing that just compensation is made. BERMAN v. PARKER, supra, at 35-36; SHOEMAKER v. UNITED STATES, 147 U.S. 282, 37 L. Ed. 170, 184, 13 S. Ct. 361 (1893).
Similarly, the court will not inquire into whether these acquired lands are to be made available to the Pennsylvania Game Commission or the Pennsylvania Fish Commission for wildlife management purposes pursuant to the authorized public use, rather than remaining in the possession and control of the United States. Clearly the cooperation of the various states in the management of wildlife and wildlife habitat on lands acquired by the federal government and administered by its agencies is authorized and provided for in the Fish and Wildlife Coordination Act, March 10, 1934, P.L. 85-624, 16 U.S.C. § 661, et seq. Having determined that the purpose of "wildlife mitigation" is within the authority of Congress, the means of executing it and fulfilling the ends of the project are solely for Congress to determine. BERMAN v. PARKER, supra, at 33.
The court is further of the opinion that the public use for which defendant's property is being taken is sufficiently set forth in the complaint and declaration of taking and that these documents adequately apprise defendant both of the proposed taking and use of such property. The declaration of taking states that the purpose of the acquisition is the "establishment of a flood control project and for other uses incident thereto." The creation and administration of areas for the management of wildlife displaced by reason of the flood control project is clearly an incidental use within the meaning of the declaration of taking. Where the taking as proposed appears to be within the congressionally-approved project there is no reason for the court to require an amended complaint and declaration of taking, amplifying and elaborating on the specific purpose for the particular taking incident to the general authorized public use. See, UNITED STATES v. 64.88 ACRES OF LAND, etc., 244 F.2d 534, 536 (3d Cir. 1957).
Accordingly the motion to strike the defenses filed by the United States pursuant to Rule 12(f) will be granted.
An appropriate order will be entered.
R. Dixon Herman United States District Judge
AND NOW, this 26th day of April 1976, in accordance with the memorandum filed this date in the above-captioned case, IT IS ORDERED that the motion of the plaintiff to strike the amended answer be and is hereby granted.
R. Dixon Herman United States District Judge