Decision Date02 July 1992
Docket NumberCiv. A. No. 1:CV-91-1494.
Citation799 F. Supp. 1571
PartiesGETTYSBURG 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.
CourtU.S. District Court — Middle District of Pennsylvania


Robyn J. Katzman, Eugene E. Dice, Harrisburg, Pa., for plaintiffs.

Judith G. Hirsh, Goldberg, Katzman & Shipman, P.C., Harrisburg, Pa., for defendant Gettysburg College.

Daniel J. Sweeney, Washington, D.C., Scott W. Morgan, Morgan and Morgan, Harrisburg, Pa., John M. Cutler, Jr., McCarthy, Sweeney & Harkaway, P.C., Washington, D.C., for defendant the Gettysburg R.R.

Michael J. Kane, Harrisburg, Pa., Robert J. DeSousa, U.S. Atty.'s Office, Lewisburg, Pa., for defendants Manuel Lujan, James Coleman, U.S. Dept. of Interior and Nat. Park Service.


RAMBO, District Judge.

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 et seq., the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470 et seq., 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.


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, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80). 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).


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 decision-making." 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. § 4332. This statement is referred to as an Environmental Impact Statement ("EIS").1

NEPA does not require any particular substantive outcome in a given situation. The requirement to prepare an...

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