Case 15

Pennsylvania v. Morton, 381 F. Supp. 293 (D.D.C. 1974).

The Commonwealth of Pennsylvania brought suit against the Secretary of the Interior and private defendants to stop the private construction of a tower on private land adjacent to the Gettysburg National Military Park, administered by the National Park Service (NPS) of the Department of the Interior. When the private defendants proposed to construct the tower, NPS negotiated with them to minimize the effect that the tower would have on the park. As a result, NPS and the private parties entered into an Agreement and Land Exchange under which the private parties would relocate the tower to a site with less adverse impact on the park and the Federal Government would grant a 200-foot right-of-way to the private parties.

The Commonwealth initially instituted an action in State court to enjoin construction of the tower. The State trial court concluded that the tower would not irreparably damage the historic values of the park and refused to enjoin the project. The Commonwealth filed exceptions to the judge's decision, arguing that the agreement violated Federal law because it had not been reviewed by the Advisory Council on Historic Preservation as required by Section 106 of the National Historic Preservation Act (NHPA).

As the case progressed through the State courts, the Department of the Interior submitted the already executed agreement to the Council for review. The Council agreed that the tower would have an adverse effect on the park and recommended that Interior attempt to block its construction. Following this recommendation, Interior unsuccessfully attempted to stop construction. The State court recognized the Council's comments and Interior's efforts but still refused to enjoin the project.

Plaintiff then instituted suit in the Federal court alleging that construction of the tower would harm the historic park, that NPS had violated Section 106 by executing the agreement without seeking the Council's comments, and that the agreement was a major Federal action requiring an environmental impact statement under the National Environmental Policy Act (NEPA).

The Federal district court rejected plaintiff's first claim on the ground of res judicata, holding that the question of the tower's impact on the park had been fully litigated in the State courts. 381 F. Supp. at 297. The court also rejected plaintiff's argument that NPS violated Section 106. Although NPS did not refer the agreement to the Council until after its execution, the agency did seek, obtain, and attempt to follow the Council's comments. The court held that NPS had therefore substantially complied with Section 106. If NPS deviated from the Council's recommendation, it had the discretion to do so. Id. at 299.

Finally, after finding that the Commonwealth had standing to represent the interests of its citizens in the use of land within its borders, the court remanded the matter to the agency for further consideration of the environmental issues under NEPA. Id. at 300.

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