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GETTYSBURG BATTLEFIELD PRESERVATION ASSN. v. GETTY

July 2, 1992

GETTYSBURG BATTLEFIELD PRESERVATION ASSOCIATION; DR. WALTER L. POWELL; TIMOTHY H. SMITH; and EDWIN R. PETERSON, Plaintiffs
v.
GETTYSBURG COLLEGE; THE GETTYSBURG RAILROAD; MANUEL LUJAN, UNITED STATES DEPARTMENT OF THE INTERIOR; JAMES W. COLEMAN; and THE NATIONAL PARK SERVICE, Defendants



The opinion of the court was delivered by: SYLVIA H. RAMBO

 Before the court are separate motions to dismiss submitted by the federal defendants, Gettysburg College, and Gettysburg Railroad. All motions have been briefed and are ripe for consideration. Prior to examining the merits, the court will discuss the factual background of the action and the standard utilized in examining such motions.

 I. From the Complaint and Judicial Notice of Applicable Statutes

 Gettysburg National Military Park ("the Park") is administered by the National Park Service ("the NPS"), an agency of the United States Department of the Interior. In 1987, Congress enacted legislation, based on concerns about the lack of a clearly defined boundary for the Park. Congress directed the NPS to conduct a boundary study of the Park and report back to Congress within a year with recommendations regarding the "final development" of the Park. See Pub. L. 100-132, 101 Stat. 807 (1987), codified at 16 U.S.C. § 430g (Historical and Statutory Notes). The NPS was to consult with the community, and interested individuals and groups. Id. The boundary study, with accompanying Environmental Assessment was completed in August, 1988. In 1990, Congress passed further legislation. It adopted the recommended boundaries in the study, 16 U.S.C. § 430g-4(a), and excluded land outside of these depicted boundaries from the park, 16 U.S.C. § 430g-4(b). It gave the Secretary of the Interior the general authority to acquire and convey land within the park, 16 U.S.C. § 430g-5(a) & (b), and to exchange or sell federal lands excluded from the park as a result of the legislation "subject to such terms and conditions as will assure the use of the property in a manner which, in the judgment of the Secretary, will protect the park and the Gettysburg Battlefield Historic District." 16 U.S.C. § 430g-5(c).

 One of the recommendations in the boundary study was the deletion of a 7.5 acre tract of land located along the boundary between the Park and Gettysburg College from the Park's boundaries for the purpose of rerouting the Gettysburg Railroad from its then current location on the Gettysburg College campus. The report characterized this deletion as involving only minor park-boundary alterations, and represented that it would have no adverse impact on known historical resources.

 On September 26, 1990, this 7.5 acre federal parcel was exchanged by the NPS for conservation easements on 46.35 acres of land owned by Gettysburg College, and a sum representing the difference in value between the two. Both tracts were located within the Park Historic District.

 II. Undisputed Allegations from the Pleadings

 Gettysburg College then purchased from Gettysburg Railroad the 3,600 foot segment of former rail line crossing its campus, and granted Gettysburg Railroad a right of way over the 7.5 acre parcel for the relocation of its rail. Beginning in January, 1991, the Gettysburg Railroad completed the necessary excavation for the rerouting of the tracks. At this point the construction of the new tracks is complete but a prospective railroad maintenance building has yet to be completed (the progress on the building construction is unclear from the pleadings).

 The Boundary Assessment study discussed above concluded with a Finding of No Significant Impact ("FONSI"). No environmental impact statement was done on the federal defendants' exchange of the 7.5 acres. The Boundary Assessment Study's conclusion of no significant environmental impact was not challenged on its release, nor did plaintiffs seek a preliminary injunction to block the land exchange or the construction of the tracks.

 III. The Parties and the Cause of Action

 Plaintiff Gettysburg Battlefield Preservation Association ("GBPA"), a non-profit public interest corporation whose members study, respect and value the historical significance of the Park and are dedicated to maintaining its historical integrity, brings this suit both on its own and its members' behalf. Plaintiff Walter L. Powell is the President of GBPA, and uses and appreciates the Park. Timothy H. Smith, and Edwin R. Peterson use and appreciate the Park as well; Smith is a member of GBPA and Peterson is apparently not.

 The complaint alleges a litany of legal claims against the defendants (Department of the Interior and its Secretary, National Park Service and its director, Gettysburg College and Gettysburg Railroad).

 Plaintiffs allege that defendants' actions with regard to the 7.5 acre parcel are violative of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470, and the Gettysburg National Military Park Boundary Legislation of 1990 ("Boundary Act"), 16 U.S.C. § 430g-4. They allege that this particular deleted acreage was historically sensitive ground which included part of the Seminary Ridge Railroad Cut, and that the NPS did not follow the appropriate procedures in deleting and conveying the parcel from the Park.

 The complaint seeks a declaratory ruling and mandamus order that the federal defendants now circulate a detailed NEPA environmental impact statement on the effect of rerouting the Gettysburg Railroad, and alternatives to that rerouting, as well as an injunction directed at the private defendants to undo the land exchange, cease all construction, remove the track and facilities, and return the land to its original condition. The complaint alleges that the federal defendants similarly failed to undertake the required NHPA review prior to the transfer of the 7.5 acre parcel, and apparently seeks the court to order it be done now.

 Furthermore, plaintiffs claim that defendants have violated state law by failing to obtain approval of a site development plan, as required by local ordinances, and failing to comply with Article I, Section 27 of the Pennsylvania Constitution. The complaint originally also alleged intentional fraud, and sought both unliquidated and punitive damages, both in excess of $ 10,000. In their response brief, plaintiffs abandoned the intentional fraud and punitive damages claims, and now assert a tort claim for the intentional infliction of emotional distress.

 Discussion

 A Rule 12(b)(6) motion to dismiss for failure to state a claim challenges the legal sufficiency of plaintiff's case: the court must decide whether, even if plaintiff could prove all her allegations, she would be unable to prevail. Mortensen v. First Fed. Savings & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In a Rule 12(b)(6) motion, the burden is on the moving party to show this. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980); Mortensen, 549 F.2d at 891. When facing a 12(b)(6) motion, the plaintiff is afforded certain protections. The material allegations of plaintiff's complaint are taken as true and construed in the light most favorable to him. Pennsylvania House, Inc. v. Barrett, 760 F. Supp. 439, 449 (M.D. Pa. 1991). However, "conclusory allegations of law, unsupported conclusions and unwarranted inferences need not be accepted as true." Id. at 449-50 (citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 ). When the court addresses a 12(b)(6) motion, it may dismiss the plaintiff's complaint "only if it appears to a certainty that no relief could be granted under any set of facts which could be proved." D.P. Enters. Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984).

 I. NEPA

 The National Environmental Policy Act ("NEPA") is "primarily a procedural statute . . . designed to ensure that environmental concerns are integrated into the very process of [federal] agency decisionmaking." Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 274 (3d Cir. 1983). It obliges the federal government to use all practicable means

 to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may . . . preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice.

 42 U.S.C. § 4331. The core NEPA requirement is found in 42 U.S.C. § 4332. That statute obligates all federal agencies to include in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment, a detailed statement on: the environmental effect of the proposed action, any unavoidable environmental effects of the action, any alternatives to the proposed action, the relationship between local short-term environmental use and the maintenance and enhancement of long-term productivity, and any irreversible commitments of resources necessitated in the proposed action. 42 U.S.C. § 1332. This statement is referred to as an Environmental Impact Statement ("EIS"). *fn1"

 NEPA does not require any particular substantive outcome in a given situation. The requirement to prepare an EIS merely is intended to make federal decisionmakers aware of the environmental ramifications of actions. Pennsylvania Protect Our Water & Envtl. Resources, Inc. v. Appalachian Regional Comm'n, 574 F. Supp. 1203, 1212 (M.D. Pa. 1982), aff'd without op., Borough of Moosic v. Appalachian Regional Comm'n, 20 Envtl. Rep. Cas. 1456 (3d Cir. 1983).

 Here, federal defendants argue that, even assuming that plaintiffs' allegations are true and the federal defendants' exchange of the 7.5 acres was a major federal action significantly affecting the human environment and requiring the preparation of an EIS, the court lacks jurisdiction to hear this action. They characterize this as an issue of standing, or alternatively mootness.

 Whether this is viewed as an issue of standing or mootness, the court believes that the federal defendants' argument has some merit. Under constitutional standing doctrine, the plaintiff must claim an injury to himself that is traceable to the challenged action and likely to be redressed by a favorable court decision. See, e.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976); City of Los Angeles v. National Highway Traffic Safety Admin., 286 U.S. App. D.C. 78, 912 F.2d 478, 483 (D.C. Cir. 1990). In addition, the Administrative Procedure Act, the procedural route for a NEPA claim, requires the plaintiff's injury to fall within the zone of interests sought to be protested by the statute forming the legal basis for his complaint. 5 U.S.C. § 702; Lujan v. National Wildlife Fed., No. 89-640, 497 U.S. 871, 58 U.S.L.W. 5077, 5080, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (June 27, 1990). Under mootness doctrine "the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence. . . ." See, e.g., South East Lake View Neighbors v. Department of Housing & Urban Dev., 685 F.2d 1027, 1039 n.9. (7th Cir. 1982). Here federal defendants argue that, because NEPA only applies to federal projects, courts only have the authority to apply it in situations where there is continuing federal involvement in the challenged project. They argue that the redress sought by plaintiffs is no longer available because federal involvement with the 7.5 acre parcel at issue has long since ended, and all control over the parcel lies in the hands of private parties: NEPA cannot be used to force the federal defendants to issue an EIS, or to limit the conduct of private parties in an essentially private project. Gettysburg College, and Gettysburg Railroad make similar arguments.

 Federal defendants have submitted a very extensive and thoughtful memorandum opinion written by a district court in the Seventh Circuit, Environmental Rights Coalition, Inc. v. Austin, No. TH 90-89-C (S.D. Ind. December 23, 1991), now reported at 780 F. Supp. 584 (S.D. Ind. 1991), which this court hereby adopts. The latter opinion is directed to whether or not NEPA provides a remedy for the failure of GSA to complete an EIS prior to ...


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