consideration of the project's socioeconomic effects was inadequate.
The Corps moves for summary judgment on plaintiff's remaining claims under NHPA, WRDA and Pennsylvania law. Because the court finds that the defendants have fulfilled their obligations under these statutes, plaintiff's claims are dismissed and summary judgment is granted for defendants.
First, plaintiff alleges violations of the National Historic Preservation Act, 16 U.S.C. § 470 et seq. That statute and implementing regulations require the agency undertaking an action to, in consultation with the State Historic Preservation Officer ("SHPO"), identify affected properties included in or eligible for inclusion in the National Register and assess the action's impact on those properties. 16 U.S.C. § 470f; 36 C.F.R. § 800.3-800.6 (1992). As an additional safeguard, the Federal agency must give the Advisory Council on Historic Preservation an opportunity to comment on the proposed undertaking. Id. Subsequently, the federal agency and other interested parties should enter into a binding Memorandum of Agreement ("MOA") detailing the steps to be taken to moderate any adverse effects resulting from the project. Plaintiff concedes that the agency entered into a MOA but declares the MOA fatally flawed. Under plaintiff's theory, the original MOA is invalid because the Corps failed to amend the MOA when new data concerning Memorial Park became available.
Plaintiff is unable to identify the specific statutory or regulatory requirement violated by the defendants. The regulations specifically state that they are to be implemented "in a flexible manner . . . as long as the purposes of . . . the Act and these regulations are met." 300 C.F.R. § 800.3(b) (1992). Indeed, the regulations nowhere require that the MOA be updated as new information is developed or received. The regulations indicate that a MOA may be amended but do not make amendment compulsory. 36 C.F.R. § 800.5(e)(5). Moreover, while the Corps are strongly encouraged to obtain an MOA, the regulations do not so mandate, and in fact even contemplate situations in which the SHPO and the agency are unable to reach agreement. 36 C.F.R. § 800.6(b) (1992).
Where, as here, the Corps performed eight studies of the area's archeological resources, discussed the project's impact on historic properties and entered into a valid MOA, the Court cannot say that the purposes of the statute have been violated. Accordingly, defendants' motion for summary judgment on plaintiff's NHPA claims is granted.
Finally, plaintiff's claims under the WRDA and Pennsylvania Law, 53 Pa. Stat. § 2862 must be dismissed.
Plaintiff alleges that pursuant to the Pennsylvania law, the Corps were required to obtain the consent of townships not actually within but arguably affected by the project. The plain language of the statute rebuts this contention and provides that "no such works or improvements shall be erected . . . in any municipality not joining in the erection or construction thereof, unless such municipality shall first consent thereto." 53 Pa. Stat. § 2862 (1989). By its own terms, the statute does not apply to municipalities only tangentially effected by but not within the project. It is undisputed that all municipalities in which the project will be constructed have consented. Therefore, defendants' motion for summary judgment on these counts is granted.
For the reasons stated above, summary judgment for plaintiff is denied and summary judgment on all counts is granted for the defendants.
Harold H. Greene
ORDER - April 15, 1993, Filed
Upon consideration of plaintiff's motion for summary judgment and defendants' cross motion for summary judgment, the oppositions and replies thereto, and the entire record herein; it is this 15th day of April, 1993, in accordance with the Memorandum issued contemporaneously herewith
ORDERED that summary judgment for plaintiff be denied; and it is further
ORDERED that defendants' motions for summary judgment on all counts be granted; and it is further
ORDERED that judgment is entered in favor of defendants.
HAROLD H. GREENE
United States District Judge