E. Count V
Plaintiff's Count V is generally a recapitulation of the preceding Counts I, II and IV. Only one portion of it raises a new claim, and that is that the federal defendants acted illegally because they "failed to permit the President's Advisory Council on Historical Preservation to comment on the impact the proposed project would have on the Park and have since disregarded the comments of the council with regard to the tower."
It is true that the Advisory Council was not consulted prior to the execution of the Land Exchange Agreement on July 2, 1971. However, the Department of the Interior did refer the Agreement to the Advisory Council on January 24, 1972, for its comments as required by 16 U.S.C. § 470f. (Reed Affidavit Exhibit Y.) As noted in Part I, supra, the Council concluded that the tower would have an adverse impact on the Gettysburg area and recommended that the Interior Department should attempt to block its construction. The federal defendants did make a bona fide effort to block the tower even to the extent of testifying for the plaintiff in the action before Judge MacPhail.
The Secretary substantially complied with 16 U.S.C. § 470f when he referred the Agreement to the Advisory Council for its comments. If he deviated from its recommendation, the Secretary was authorized to do so in his discretion by the express terms of the statute.
Accordingly, Count V also must be dismissed for failure to state a cause of action.
The object of plaintiff's lawsuit comes more clearly into focus under Count III. In it, plaintiff avers that the action of the federal defendants in executing the "Agreement and Land Exchange"
on July 2, 1971, was a "major federal action significantly affecting the quality of the human environment," and that prior to taking said action, it was necessary to have prepared and filed an environmental impact statement in accord with Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C).
It should be emphasized at the outset that what we are dealing with in Count III is a right-of-way over federal land for a distance of some scant 200 feet, which has been built at no cost in effort, time, personnel or money to the federal government. We are not dealing with the impact of the privately-financed tower, located on private land, which is beyond the reach of this Court and as to which the Pennsylvania courts have already determined adversely to the plaintiff's claim of environmental injury. See Section I, supra.
There is no doubt that the execution of the Agreement providing for the right-of-way represents some federal action. Whether the plaintiff has standing to challenge that action on NEPA grounds is a threshold question. If standing is recognized then, of course, the Court must determine whether the action constituted "major Federal Action" which requires the filing of an impact statement under NEPA.
The federal defendants challenge the plaintiff's standing to sue alleging that the plaintiff cannot meet the "injury in fact" of the "zone of interests" tests to obtain judicial review under § 10 of the Administrative Procedure Act, 5 U.S.C. § 702. Sierra Club v. Morton, 405 U.S. 727, 733, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972); Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970).
The Court is mindful, however, of the recent pronouncement of this Court of Appeals that "(standing) need not be founded on a rock; a pebble or even a cobweb may do." New Jersey Chapter Inc. of the American Physical Therapy Association, Inc. v. Prudential Life Ins. Co. of America, 164 U.S. App. D.C. 40, 502 F.2d 500, 504 (D.C. Cir. 1974).
This would seem to be particularly true when the case involves a state suing as parens patriae for alleged environmental injury on behalf of its citizens. See, e.g., Illinois v. City of Milwaukee, supra ; Missouri v. Illinois, 180 U.S. 208, 241, 21 S. Ct. 331, 45 L. Ed. 497 (1901); State of Alabama ex rel. Baxley v. Woody, 473 F.2d 10, 14-15 (5th Cir. 1973). In this case neither the injury in fact nor the zone of interest is well articulated in the pleadings, particularly as it relates to the use of the right-of-way as such. But, on the other hand, the road is there, it is in use and its presence does have some environmental effect; and it cannot be denied that a state on behalf of its citizens has some interest in the use of lands lying within its borders. Accordingly, we recognize standing.
This brings us to the question of whether an impact statement was required to be filed in the circumstances of this case.
The Court cannot ignore the lofty purposes of NEPA and its action-forcing requirements that environmental values be taken into account by all Federal agencies at every discrete stage of the decision-making process. See, e.g., Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). The agencies must conduct an environmental cost-benefit analysis of any proposed project, Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1332 (4th Cir.), cert. denied sub nom. Fugate v. Arlington Coalition on Transportation, 409 U.S. 1000, 93 S. Ct. 312, 34 L. Ed. 2d 261 (1972), and consider possible "alternative" courses of action. Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972).
In view of NEPA's mandate, then, and the fact that no environmental impact statement was prepared by the federal defendants for the then-proposed "Agreement and Land Exchange," the Court concludes that a remand to the Secretary of the Interior "for further consideration of the environmental issue within the framework of NEPA" is appropriate.
Arizona Public Service Co. v. FPC, 157 U.S.App.D.C. 272, 280, 483 F.2d 1275, 1283 (1973).
Accordingly, it is this 13th day of September, 1974,
Ordered and adjudged
1. That Count I of plaintiff's complaint is hereby dismissed with prejudice as barred by the doctrine of res judicata ;
2. That summary judgment is granted to the defendants as to Count II;
3. That Counts IV and V are hereby dismissed with prejudice for failure to state a cause of action;
4. That for purposes of ultimate disposition of Count III hereof, the cause is hereby remanded to the Secretary of the Interior for a statement by him of the reasons why, in his opinion, it was unnecessary to file an impact statement, such statement of reasons to be filed with the Clerk of the Court and served upon the plaintiff within 30 days of the date of this Order, and any objections or exceptions thereto by the plaintiff to be filed with the Clerk of the Court and served upon the Secretary of the Interior within 14 days thereafter.