US v. 18.67 Acres of Land, 1:CV-91-1315.

• Decision Date: 14 May 1992
• Docket Number: No. 1:CV-91-1315.,1:CV-91-1315.
• Citation: 793 F. Supp. 582
• Parties: UNITED STATES of America, v. 18.67 ACRES OF LAND, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

793 F. Supp. 582

UNITED STATES of America, v. 18.67 ACRES OF LAND, et al., Defendants.

No. 1:CV-91-1315.

United States District Court, M.D. Pennsylvania.

May 14, 1992.

Robert R. Long, Jr., Asst. U.S. Atty., Scranton, Pa., for U.S.

Henry Heiser, Swope, Heiser & McQuaid, Gettysburg, Pa., for defendants.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND

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.

2. The estate in fee simple, sought to be acquired by the Plaintiff in this condemnation action, is not the minimum interest necessary to achieve the objectives identified for the specific area of the Park where the land is situate and to achieve the overall objectives of the Gettysburg National Military Park.

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.

DISCUSSION

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, 75 S.Ct. 98, 103-04, 99 L.Ed. 27 (1954); and Shoemaker v. United States, 147 U.S. 282, 298, 13 S.Ct. 361, 368, 37 L.Ed. 170 (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, 75 S.Ct. at 104.

Here, Congress has expressly granted to the Secretary the authority to acquire property for the Park:

(a) General Authority

The Secretary is authorized to acquire lands and interests in lands within the park by donation, purchase with donated or appropriated funds, exchange, or otherwise. In acquiring lands and interests in lands under sections 430(g)-4 to 430(g)-10 of this title, the Secretary shall acquire the minimum Federal interests necessary to achieve the objectives identified for specific areas and the park. (emphasis added)

16 U.S.C. § 430g-5.

The Secretary may acquire such property by condemnation, pursuant to 40 U.S.C. § 257.¹

Plaintiff argues that the Secretary's designee, the National Park Service, has determined that the taking of the 18.67 acre Yingling tract is necessary to provide for the administration and preservation of the Park, and that it is not for this court, nor any court, to review or question the substance or validity of that judgment.

Public Purpose

Defendants' first restated defense is that the purpose for which the property is taken is not a public use. However, it is quite clear that the condemnation action is for a congressionally authorized public purpose. Congress, by Pub.L. 101-377, § 1, Aug. 17, 1990, 104 Stat. 464, delineated the new boundary for the Park:

§ 430g-4(a) Lands included in the park

In furtherance of the purposes of section 430g of this title, the Gettysburg National Military Park (hereafter in sections 430g-4 to 430g-10 of this title referred to as the "park") shall hereafter comprise the lands and interests in lands within the boundary generally depicted as "Park Boundary" on the map entitled "Gettysburg National Military Park Boundary Map", numbered NPS 305/80034-B, and dated March 1990, which shall be on file and available for public inspection in the Office of the Director of the National Park Service, Department of the Interior.

While plaintiff did not provide to the court a copy of the official Gettysburg National Military Park Boundary Map referred to in 16 U.S.C. § 430g-4(a), the court assumes that Schedule C to the complaint, which purports to be a map of the Park, accurately places the Yingling tract within the new Park Boundary.

Plaintiff's complaint (Schedule "A") states the public uses for which the land is being taken:

The land is required for the proper administration, preservation, and development of the Gettysburg National Military Park for the use, benefit, and enjoyment of the public.

It is quite clear that the use for which the property is being taken is a public use, and one authorized specifically by Congress when it approved a boundary map for the Park (16 U.S.C. § 430g-4) and authorized the Secretary to acquire lands and interests in lands within the Park (16 U.S.C. § 430g-5). See: United States v. Gettysburg Electric Railway Co., 160 U.S. 668, 16 S.Ct. 427, 40 L.Ed. 576 (1896).

Given this public use and the specific congressional approval for the taking of property within the Park boundary, this court has no jurisdiction to review the Secretary's decision that the 18.67 acre Yingling tract is necessary for the administration, preservation and development of the Park. Moreover, the timing of the take is entirely in the hands of the Secretary. The Third Circuit, in reviewing 40 U.S.C. § 257, found that the "statute indicates that the judgment as to the proper time of taking is to be that of the government official to whom the exercise of the power of eminent domain has been delegated by Congress." United States v. Certain Parcels of Land, 215 F.2d 140, 147 (3d Cir.1954) (passing on the Secretary of the Interior's authority to condemn historical buildings for the Independence National Historical Park in Philadelphia).

Minimum Federal Interests

The only issue of substance for the court to decide is the role of the court in reviewing the necessity for the National Park Service to take a fee simple interest in the subject land, rather than some lesser interest. A fee simple interest is the maximum possible interest in real estate, as it includes the total bundle of rights and privileges...