The opinion of the court was delivered by: JAMES F. MCCLURE, JR.
On October 4, 1991 the United States of America filed a complaint in condemnation seeking to take fee simple title to 18.67 acres of land in Cumberland Township, Adams County, Pennsylvania, to be added to the Gettysburg National Military Park (the "Park"). According to the complaint (Schedule "B"), the purported owners are Harold L. Yingling, Betty J. Yingling, Keith L. Yingling and Kevin R. Yingling (the "Yinglings").
On November 27, 1991 the Yinglings filed an answer to the complaint setting forth the following three affirmative defenses:
1. The condemnation of the land is not necessary for the proper administration, preservation, and development of the Gettysburg National Military Park for the use, benefit and enjoyment of the public.
3. The condemnation of the land is not authorized by law.
On December 19, 1991 the United States filed a motion to strike the defenses raised in the Yinglings' answer. Supporting, opposing and reply briefs have been filed, and the motion is ripe for disposition.
The Yinglings, in their opposing brief, contend "that their answer either states or infers three legally sufficient defenses which they should be allowed to develop through discovery and litigate by a hearing on the merits." The brief then restates the three defenses as follows:
1) That the purpose for which the property [is taken] is not a public use;
2) That the Secretary of the Interior has not been vested with discretion in the acquisition of land within the park, pursuant to 16 U.S.C. § 430g-5, and shall only acquire the minimum Federal interest necessary to achieve the objectives identified for the specific areas of the park. And, by taking a fee simple interest in the subject land, the Secretary has overstepped the authority granted by Congress in enacting the statute; and
3) In the alternative, if it is determined that the Secretary of the Interior has been vested with limited discretion in the acquisition of land within the park pursuant to 16 U.S.C. § 430g-5, the Defendants contend that the Secretary has abused that discretion by taking more than the minimum Federal interest necessary to achieve the objectives identified for the specific area of the park.
Plaintiff, in its reply brief, contends that this represents an attempt by the condemnees to amend their answer by rephrasing their defenses in their opposing brief. Plaintiff cites various rules for the proposition that if the defense was not set forth in the answer, it has been waived. Plaintiff concedes, however, that the condemnees have arguably preserved their defense challenging the public use by denying paragraph 2 of the complaint and by raising its first original defense. Plaintiff further contends that no reading of the three original defenses raises the contention that the Secretary of the Interior ("the Secretary") abused its discretion. Nevertheless, anticipating that the court might accept and entertain the three modified defenses, plaintiff did reply to them.
The court believes that, for the purposes of the motion to strike, the defenses as restated in condemnees' brief are sufficiently stated or implied by the defenses set forth in the answer. Moreover, it is likely that, if requested, the court would grant leave to Yinglings to file an amended answer. The answer will, therefore, in the interest of judicial economy, be deemed amended to reflect the restated defenses.
The court clearly has the authority under Fed.R.Civ.P. 12(f) to strike from a pleading "any insufficient defense". This court has previously provided guidance for evaluating the sufficiency of defenses raised in condemnation cases.
The duty of this court is to determine whether such defenses as presented do indeed present substantial questions of law or fact which may not be stricken. . . . If any such substantial questions exist, the motion cannot be granted; . . . neither will it be granted if the insufficiency of the defense is not clearly apparent on the face of the pleadings, . . . nor can reasonably be inferred from any state of facts in the pleadings. . . .
United States v. 187.40 Acres of Land, Huntingdon County, Pennsylvania, 381 F.Supp. 54, 56 (M.D.Pa. 1974) (Nealon, J.).
In support of it's motion to strike, plaintiff argues that the court has no jurisdiction to review the decision of the Secretary in this matter. Plaintiff contends that the United States Supreme Court has held that decisions involving the nature or extent of a take are within either legislative or administrative discretion, and, therefore, immune from judicial review, citing Berman v. Parker, 348 U.S. 26, 35-36, 99 L. Ed. 27, 75 S. Ct. 98 (1954); and Shoemaker v. United States, 147 U.S. 282, 298, 37 L. Ed. 170, 13 S. Ct. 361 (1893).
It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of the land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.
Berman v. Parker, supra, 348 U.S. at 35-36.
Here, Congress has expressly granted to the Secretary the authority to acquire ...