Pennsylvania v. National Gettysburg Battlefield Tower, Inc.

No. 2 (Pa. Ct. C.P. Adams Cty. July 27, 1972, July Term 1971)

In this suit, challenging the building of an observation tower overlooking the Gettysburg Battlefield, the Commonwealth Court remanded the case for further evidentiary hearings. The remand instructions ordered the court to hear and consider any evidence, including evidence available but excluded at the prior hearing, all in light of newly discovered evidence. The evidence offered is excluded as being irrelevant, repetitive of other evidence already admitted or not being the best evidence available. The newly discovered evidence, consisting of a recommendation from the Advisory Council on Historic Preservation to the Department of the Interior, is admissible according to the remand instructions; those instructions did not deal with the weight to be attached to the Advisory Council's views. In light of the agreement of the Federal government to swap land for the erection of the tower, the Advisory Council's views should be accorded little weight. The previous decrees and opinions of the court are ratified and affirmed.

Counsel for Pennsylvania
J. Shane Creamer Attorney General
State Capitol
Harrisburg, Pa. 17120

Counsel for Defendants
Jerome H. Gerber
Handler, Gerber and Widmer
301 Market Street
Harrisburg, Pa. 17100

[2 ELR 20517]

MacPhail, J.

This matter is before us again on an order of remand from the Commonwealth Court. That order is not a general order of remand but rather directs us to "hear and consider any evidence, including evidence available at the prior hearings below, which, because of the newly discovered evidence, it deems relevant to consideration of this matter . . . ." It is our understanding that the "newly discovered evidence" presented by the Commonwealth to the Commonwealth Court, which prompted the remand order, consisted of the report and recommendations of the Advisory Council on Historic Preservation to the Department of Interior. The Commonwealth contends that this report and recommendation nullifies this Court's Finding of Fact No. 9 and renders erroneous that part of our opinion dated October 26, 1971, wherein we stated (at page 14), "For whatever reason, the National Park system has implied by this agreement that the historical values of Gettysburg will not be [2 ELR 20518] damaged by the erection of this tower at this site." The defendants' position at this time is that the report and recommendation changes nothing from the situation as it existed at the time of trial on August 3, 1971.

Pursuant to the order of the Commonwealth Court, we held an evidentiary hearing and counsel have submitted briefs and presented oral arguments. In addition to contending that our original decision in this matter was erroneous in the light of the newly discovered evidence presented, the Commonwealth challenges our rulings on the admission of certain evidence it offered in the hearing held pursuant to the remand order.

Since the remand order also authorizes the filing of a supplemental opinion, we will do so at this time.

EVIDENTIARY RULINGS

The Commonwealth offered a report of the Advisory Council on Historic Preservation to the President and Congress dated June 1971.There was nothing in that report that had the remotest connection with the issue now before this Court (N.T. 15). It was irrelevant and properly excluded.

The Commonwealth offered a letter dated January 24, 1972, from the Assistant Secretary of Interior to Dr. Stevens, Chairman of the Advisory Council on Historic Preservation. It was stipulated by the defendants at the time the exhibit was offered that such a letter was written and received and that as a result of that letter the Council held hearings and made a recommendation to the Department of Interior. The Commonwealth pressed for the introduction of the letter itself on the ground that it sets forth the position of the Department of Interior with respect to the tower. We excluded the exhibit because the Commonwealth had announced at the outset of the hearing that they would produce as a witness the Director of the National Park Service who would "take us through, step by step, the federal government's position throughout the case which really has been substantially consistent in that they have been opposed to the tower . . . ." (N.T. 6). In light of the oral testimony there was no purpose to be served by admitting a letter which apparently said the same thing. The best evidence was the witness, not the letter.

Mr. Ottenstein's report to the Advisory Council was excluded without protest on the part of the Attorney General (N.T. 29).

The Commonwealth offered a report prepared for the Advisory Council by the Department of Interior setting forth its position with respect to the tower. The exhibit was excluded for the same reason that the letter to Dr. Stevens was excluded. Moreover, the Court is and was of the opinion that the basis upon which the Council arrived at its recommendations was irrelevant in this proceeding. For this same reason, the report of Mr. McGrath to the Advisory Council was likewise excluded. It appears from the record that the proceedings before the Council were very informal. No rules of evidence apply at the hearings, there is no right to cross-examine witnesses and there is no legal officer presiding over or advising the Council. Under such circumstances, matters received by the Council would have no probative value in a judicial proceeding.

The Commonwealth attempted to offer through Mr. Hertzog a letter from himself to the Secretary of Interior dated May 17, 1971, stating his opposition to the tower. It was stipulated by defense counsel that such a letter was sent. The witness was present to testify what his position was and he did so in no uncertain terms. The letter would add nothing to the case and, at best, would be a self-serving statement. It was properly excluded.

Finally, the Commonwealth offered a letter from the Secretary of the Interior to the Attorney General of the Commonwealth. Mr. Hertzog said the letter stated the position of the Secretary in substantially the same terms as Mr. Hertzog had recited that position on the witness stand and that there was nothing in the letter which added anything to what Mt. Hertzog had already testified. Again, the letter added nothing to the Commonwealth's case and, as in the case of all the other exhibits offered and refused, would only add unnecessarily to an already extensive record.

The Commonwealth offered a Mr. Fabringer as a witness. The gentleman was identified as a landscape architect and planner. His testimony it was said, would establish "scientifically" the effect of the tower on the battlefield. This witness was prepared to show photographs of scenes of the battlefield whereon he had superimposed the proposed tower.The Attorney General admitted that the Commonwealth had the opportunity to present such evidence at the original trial, but says it didn't know this type of testimony was available. It was argued that because this was an extraordinary case the Court should interpret the Commonwealth Court's order broadly. We disagree. This witness's testimony was clearly not contemplated by the order of the Commonwealth Court. It had nothing to do with the position of the federal government at the time the agreement with the defendants was executed.Moreover, since by the Commonwealth's own admission this testmony could have been produced at the initial hearing, we had no authority to hear it later. This was not a re-trial of the case.

At the time of the hearing, we reserved a ruling on the admissibility of Mr. Hertzog's testimony as to whether or not the agreement and land exchange between the federal government and the defendant was intended to sanction the erection of the tower. We permitted the witness to testify, subject to the defendants' objection (N.T. 64). We now overrule that objection in order that a complete record will be available to the appellate courts, although we have grave reservations about the admissibility of such evidence.

DOES THE NEWLY DISCOVERED EVIDENCE COMPEL A REVERSAL OF THE DECREE OF THIS COURT ENTERED OCTOBER 26, 1971?

First, we must ascertain specifically what the newly discovered evidence is.

The Advisory Council's recommendation was not in existence in August of 1971 at the time of the trial of this case. However, the agreement and land exchange was signed July 2, 1971. The Advisory Council has regular meetings in May, August, November and February of each year and the chairman may convene special meetings thereof "under unusual and special circumstances" (N.T. 37). Notwithstanding the obvious importance that the Department of Interior attached to the tower, this matter was not referred to the Council until May of 1972. Mr. Hertzog attributes this delay to "bureaucratic inexperience." Yet this is the same project Mr. Hertzog had classified as a "monstrosity" and "generally disastrous". Moreover, the Council's recommendations were not substantially different than those made by the Citizens' Advisory Board on National Parks, Historic Sites, Buildings and Monuments (N.T. 36), which recommendations were available to us at the August trial and were available to the Department of Interior on July 2, 1971. (See page 2 of Commonwealth Exhibit #10.) Finally, the defendant attacks the jurisdiction of the Council in this matter since it does not appear that the tower itself falls within any of the areas of the Council's concern under Section 106 of the Historic Preservation Act of 1966. The Council's report does not repudiate the agreement, though it does "look unfavorably" upon the consequences of that agreement.

What we seem to have then in the Advisory Council's report is another advisory board's recommendation to the Department of Interior which substantially conforms to the advice already available to the Department in July and August of 1971. The Commonwealth Court has already determined that the Council's report is newly discovered evidence, but we feel that the weight of this evidence is for our own determination. In our opinion, the report is a recommendation to the Department of Interior, filed belatedly, which is nothing more than corroborative of evidence already before us in August of 1971.

Mr. Hertzog's testimony is certainly emphatic and unequivocal concerning his opinion of the tower from the time he first heard of it. Yet, he apparently did not consider it of sufficient importance for him to attend the trial of the case (even though the Commonwealth had sought to subpoena him), nor did he seek the Council's advice on the matter before taking action, nor did he object to the agreement and land exchange about which he had been consulted prior to its execution. In pointing out these matters, we do not intend criticism of Mr. Hertzog or of the federal government but rather intend to illustrate the justification of this Court's original opinion that the federal government did have a "two-sided approach" to this problem — one which they conveyed by letter to the Governor of the Commonwealth and another which they conveyed by the execution of the agreement and land exchange less than a month after that letter was written. It will appear from Mr. [2 ELR 20519] Hertzog's testimony that the letter from Secretary Morton to Governor Shapp was written at the time the tower was proposed for the Colt Park site and that condemnation procedures were contemplated as well as negotiations for the purchase of that tract. This Court takes judicial notice of the fact that there was and is a suit pending in equity initiated by private citizens against the erection of the tower prior to the time the Commonwealth instituted this action.

Why then the subsequent agreement? The federal government's answer seems to be that they were "forced" into it because the erection of the tower at its presently proposed site would have less impact on the historic area than it would at the Colt Park site. However, it appears that the present site is one of the three commercial areas proposed for "intensive commercial development" in a comprehensive plan for the Gettysburg area prepared for the National Park Service and sent to the Assistant Secretary of the Department of Interior several years ago (N.T. 60).

Thus, the Court is confronted with an agreement which mentions nothing about any of the Government's reservations and misgivings and gives to the defendants a right of way over federal land to make the tower even more accessible to tourists that it would have been had entry been limited to access from Route 140.With great reluctance, we must come to the conclusion that it is inconceivable to this Court that the federal government could have been "forced" into such an agreement under such circumstances.

However, we must return to the legal issue in this case. Under all the evidence will this tower adversely affect the natural, scenic, historic and aesthetic values of the environment to the extent of causing irreparable harm thereto? This case cannot be decided upon one's personal feelings about the tower as such. This Court, by its prior decisions, in no way indicated or intended to indicate its personal feelings about the tower. Furthermore, this is a court of equity and what is popular or unpopular is of no moment. This Court found as a fact that the agreement of July 2, 1971, "sanctioned" the construction of the tower. There is nothing which was presented at the remand hearing which causes us to change that finding. As noted in our supplemental opinion of January 13, 1972, the agreement uses the word "approved". That agreement gives the defendants the permission, the approval and the consent of the federal government for the defendants to proceed. If that is not a "sanction", then most of the present day English dictionaries must be incorrect.

Despite the testimony of Mr. Hertzog and the findings of the Council, we are persuaded that the action of the United States Department of Interior - National Park Service, in executing the agreement of July 2, 1971, was done with full recognition of what its impact on historical values might be. If the Department was of the opinion at that time that the construction of the tower at the proposed site would irreparably harm those values, they would not or should not have signed that agreement. It is significant that, to this date, the Department of Interior has not said that the agreement was wrong or a mistake.

OTHER CONSIDERATIONS

Since the case was remanded by the Commonwealth Court, we have had the benefit of briefs amicus curiae filed by other interested parties. In the brief filed by former Judge Robert E. Woodside we are reminded that the question of historical values is, indeed, "open-ended." Those values may mean one thing to a historian and something entirely different to a student or even to a school dropout. It may be thrilling for some to walk where generals walked and it may be a waste of time for others. But no matter what happens to the tower, no one will be prohibited from walking the battlefield at will, driving through it or flying over it (as many tourists do). Indeed, it is suggested that what the tower may do is give a better appreciation of what the historical values are in this area to persons who might otherwise fail to grasp them altogether.

Finally, we must note that the Commonwealth's right to bring this action is founded on an amendment to the Constitution of the Commonwealth. That same constitution confirmed in "all men" the right (among others) to acquire, possess and protect property, and to pursue their own happiness (Article I, Section 1, Constitution of Pennsylvania). Truly, men should not be permitted to do this if it injures others. But where the injury is not certain, or amounts to nothing more than a difference of opinion among reasonable men, then the individual right must prevail.

It was said by the Attorney General in his closing argument that this Court has the "burden of protecting this town, this community and this National Shrine." That burden is not a judicial function. That burden must be discharged by those empowered by law to provide such protection. The judicial function in this and every other case is to determine the issues to be resolved, to ascertain the burden of proof each side must carry and then to decide from the evidence if that burden has been met. Where it has not, the Court should not and cannot act.

AND NOW, July 27, 1972, for the reasons set forth in the attached Memorandum Opinion, the previous decrees and opinions of this Court in the within matter are hereby ratified and affirmed.