The opinion of the court was delivered by: CORCORAN
CORCORAN, District Judge.
The plaintiff is the Commonwealth of Pennsylvania. The defendants are (1) the Secretary of the Interior; (2) the Director, National Park Service; (3) the National Gettysburg Battlefield Tower, Inc., and (4) Thomas R. Ottenstein. Defendants (1) and (2) are hereinafter referred to as the "federal defendants" and defendants (3) and (4) as the "private defendants."
The plaintiff seeks both declaratory and injunctive relief in a five-count complaint.
The Court's jurisdiction is premised upon 28 U.S.C. §§ 1331, 1332, 1361, 2201-2202; 42 U.S.C. § 4321 et seq. ; and 16 U.S.C. § 470f (1970).
The facts necessary to an understanding of this dispute follow.
In 1970, the private defendants proposed to construct a 300-foot steel observation tower on private property immediately adjacent to the Gettysburg National Cemetery. Upon learning of the proposal, the National Park Service (NPS) became concerned as to its impact upon the battlefield park. Mr. George P. Hartzog of NPS registered his opposition. The private defendants then decided to relocate the tower, again on private property, at a site known as Colt Park, nearby to the site of Pickett's historic charge between Seminary and Cemetery Ridges. The NPS reiterated its previous objections, although recognizing that since the tower was to be located on private property, it, NPS, was without legal authority to prevent its construction. NPS was so advised by the office of the Solicitor of the Interior Department.
In early May, 1971, the private defendants began construction of the tower at Colt Park. Negotiations nevertheless continued between the NPS and the private defendants during the months of May and June. The negotiations culminated on July 2, 1971, in an "Agreement and Land Exchange" by which NPS granted to the private defendants a 200-foot right-of-way across federal park lands to a so-called Stonehenge site where the private defendants agreed to locate the tower.
The private defendants also agreed to convey the Colt Park site in fee to the federal government.
Like the Colt Park site, the Stonehenge site was, and is, private property lying outside the boundaries of the Gettysburg National Military Park.
On July 20, 1971, the Commonwealth of Pennsylvania brought suit against the private defendants in the Court of Common Pleas of Adams County in which the Stonehenge site is located. The Commonwealth sought to enjoin construction of the tower.
After lengthy proceedings, Judge MacPhail of the Court of Common Pleas on October 26, 1971, made a Finding of Fact that the "proposed tower at the proposed site will not irreparably damage the natural, historic, scenic or aesthetic values of the environment of the Gettysburg . . ." (III Record 495a), and refused to order injunctive relief. The Commonwealth filed exceptions to the MacPhail order on the ground that the Agreement violated federal law, not because it violated the National Environmental Policy Act, but because it had not been reviewed by the President's Advisory Council on Historic Preservation. On January 14, 1972, the Court again dismissed the exceptions to its refusal to grant injunctive relief. The Commonwealth then appealed to the Commonwealth Court, an intermediate appellate court.
Shortly thereafter, the President's Advisory Council on Historic Preservation reviewed the Agreement and concluded that the proposed tower would have an adverse effect on the Gettysburg scene, and that Interior should attempt to block its completion. (Reed Affidavit, Exhibit AA.)
Following the Advisory Council recommendations, the Secretary of the Interior, on May 26, 1972, notified plaintiff that the Agreement "did not in any way, by its specific terms or by implication, constitute an approval by (Interior) of the concept of the tower as a feature of the Gettysburg area scene, whether it is located at the Stonehenge site or any other site." However, the Secretary continued, it was Interior's belief that the Stonehenge site "would be less destructive of historic values than at the Colt Park site . . .," and that the "agreement constituted an effort on our part to minimize the adverse effect of the tower on Gettysburg . . . ." (Reed Affidavit, Exhibit CC.) From that ...