Case 119

Gettysburg Battlefield Preservation Association v. Gettysburg College, 799 F. Supp. 1571 (M.D. Pa. 1992), aff'd, 989 F.2d 487 (3d Cir. 1993).

A preservation organization and several individuals sued the Department of Interior, the Gettysburg Railroad, and Gettysburg College in Pennsylvania as the result of a land exchange agreement between the National Park Service (NPS) and the college involving the Gettysburg National Military Park. Plaintiffs alleged that defendants failed to conduct an environmental impact study as required by the National Environmental Policy Act (NEPA) and failed to comply with the National Historic Preservation Act (NHPA) prior to exchanging the land. Plaintiffs sought a declaratory ruling and mandamus order requiring the Interior Department to perform the EIS and conduct a Section 106 review, in addition to an injunction against private defendants to "undo" the land exchange and return the land to its original condition.

Prior to the land exchange, NPS conducted an environmental assessment as part of a boundary study for the park. The study recommended the deletion from park boundaries of a 7.5 acre tract of land that lay between the park and Gettysburg College to facilitate the rerouting of the Gettysburg Railroad. The report found that the boundary change would have no adverse impact on known historic resources and a finding of no significant impact was made. After the land exchange, the college granted the railroad an easement to relocate its rail line over the 7.5 acres, and construction of the tracks was completed.

Plaintiffs' NEPA claim was based on defendants' failure to perform an environmental impact statement (EIS) prior to the land exchange, which plaintiffs argued constituted a major Federal action. Defendants countered that even if plaintiffs' allegations were true, the court lacked jurisdiction to hear the case, because there was no longer Federal involvement in the project; therefore, the case was moot and plaintiffs lacked standing. 799 F. Supp. at 1576. Generally, defendants argued that plaintiffs could no longer obtain redress from the court because the Federal Government was no longer involved in the 7.5-acre parcel, and private parties had complete control over the land. As support for their proposition, defendants relied on Environmental Rights Coalition, Inc. v. Austin, 780 F. Supp. 584 (S.D. Ind. 1991), which addressed similar circumstances.

The district court adopted the opinion of the Austin court: "Without the requisite involvement in a project by a federal agency the project simply does not involve 'major federal action' [necessary to trigger NEPA requirements] no matter how much the project may impact the environment." 799 F. Supp. at 1577 (quoting Austin, 780 F. Supp. at 594). The court acknowledged that non-Federal parties fell under the purview of NEPA when the Federal Government was sufficiently involved in the project. Id. For example, a private project is viewed as Federal for purposes of NEPA if the private entity consents to Federal regulation, accepts Federal funding, grants the Federal agency control over the outcome of the project or agrees to a joint venture with a Federal agency. Id. (citing Austin, 780 F. Supp. at 594-96).

The district court agreed with a test developed by the court in Austin to determine if there was enough Federal agency control over a project to reach non-Federal entities under NEPA: The court should consider if the project at any time involved a major Federal action and, if so, whether the agency continued to be involved in the project in such a way that the project could be terminated or significantly impacted. Id. Applying this test, the district court found no ongoing Federal control over the project.

Plaintiffs, however, alleged that the court had authority over the case because defendants acted in bad faith by intentionally disregarding NEPA, withholding information, and misleading the public. The court rejected plaintiffs' argument, concluding that bad faith should not be part of the inquiry into whether Federal involvement exists. Id. at 1578. In explaining its determination, the court stated that such an inquiry would open a floodgate of litigation; parties would make conclusory allegations and search in hindsight for support for the allegation. Id. at 1580. The court distinguished several cases cited by plaintiffs which suggest that bad faith may be considered in deciding whether the court has authority to apply NEPA to completed projects. Those cases, the district court noted, did not involve private projects with no ongoing Federal control. Id. at 1578-80.

Addressing the NHPA claim, the district court observed that like NEPA, NHPA was a procedural statute and that "the invocation of NHPA involve[d] a similar search for federal involvement as NEPA . . . ." Id. at 1580. The court found support for its position in several NHPA cases. The court cited Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271 (3d Cir. 1983), which concluded that NHPA applied as long as the Department of Housing and Urban Development retained the authority to make funding approvals or demand changes to the project. 799 F. Supp. at 1581. Similarly, the court cited Vieux Carré Property Owners, Residents &;Associates, Inc. v. Brown, 948 F.2d 1436 (5th Cir. 1991), which held that "'NHPA review is required as long as a federal agency has the ability, under any statute or regulation, to require changes to the federal license authorizing a project.'" 799 F. Supp. at 1581 (quoting Vieux Carré, 948 F.2d at 1449). Without Federal involvement or control in the project, the court found that it had no jurisdiction to order a Federal agency to comply with NHPA or to enjoin the project.

The court also rejected several State claims against the Federal defendants, finding them barred by the doctrine of sovereign immunity. As a final matter, the court dismissed plaintiffs' allegations that defendants violated the Federal Tort Claims Act, determining that plaintiffs failed to exhaust administrative remedies before bringing the claim.

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