Jump to Navigation
Jump to Content

Pennsylvania v. Morton

Citation: 5 ELR 20008
No. No. 73-2188, 381 F. Supp. 293/7 ERC 1274/(D.D.C., 09/13/1974)

The court refuses to enjoin construction of a 300 foot tower on private property adjacent to Gettysburg National Park, but remands the case to the Secretary of the Interior for a statement of reasons why no NEPA impact statement was prepared in conjunction with the execution of a land exchange transferring a right-of-way over federal land to the tower's owner. Plaintiff has standing to maintain this NEPA claim, and the question which the Secretary must answer is whether the land exchange alone, since the owner will pay for and build the access road on the right-of-way, constitutes a major federal action significantly affecting the environment. The court admits that the remand may be an exercise in futility, since even if an EIS is ultimately ruled necessary, the only corrective action available would be a restriction on use of the right-of-way pending NEPA compliance, and this would have no effect on the operation of the tower as a tourist attaction.

Counsel for Plaintiff
David L. Kurtz Asst. Attorney General
Commonwealth of Pennsylvania
Harrisburg, Pa. 17120

Counsel for Defendants
Myles E. Flint
Department of Justice
Washington, D.C. 20530

Jerome H. Gerber
Handler, Gerber & Weinstock
Suite 500
301 Market Street
Harrisburg, Pa. 17101