author: SIMMONS, District Judge.

text:
    A.J. CUNNINGHAM PACKING CORPORATION; Chicago Dressed Beef Co., Inc.; Continental Food Products, Inc.; and Florence Beef Company, Plaintiffs, v. CONGRESS FINANCIAL CORPORATION and Philadelphia National Bank, Defendants. PIERCE TRADING COMPANY, Plaintiff, v. CONGRESS FINANCIAL CORPORATION and Philadelphia National Bank, Defendants.
    Civ. A. Nos. 84-2061, 84-2063.
    United States District Court, W.D. Pennsylvania, Civil Division.
    May 28, 1985.

      Michael Malakoff, Michael Fishbein, John P. Curran, Philadelphia, Pa., for plaintiffs.
    Eric A. Shaffer, Pittsburgh, Pa., Morton L. Gitter, New York City, for defendant Congress Financial.
    Richard DiSalle, Henry J. Kupperman, Philadelphia, Pa., for defendant Philadelphia Nat. Bank.
   OPINION

SIMMONS, District Judge.

I.

Plaintiffs brought these above-captioned actions against the Defendants Congress Financial Corporation and Philadelphia National Bank on August 29, 1984, alleging violations of RICO [Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.] common law deceit, and misrepresentation. Plaintiffs claim that between September, 1979, and January, 1981, Defendants made false representations to Plaintiffs concerning the financial strength and capitalization of American International Meat Importers, Inc. (AIMI), and a related company, American International Meat Co. (AIMC), which misrepresentations the Plaintiffs allege that they relied upon in selling meat to AIMI on a credit basis.

Defendants have moved for summary judgment, contending that the above-captioned cases are time-barred by the two year limitations period in Pennsylvania applicable to common law fraud. It is the Defendants’ contention that by January 27, 1981, the date bankruptcy petitions were filed by AIMI, the Plaintiffs knew, or should have known, of the alleged misrepresentations regarding the financial condition of AIMI, and that the Plaintiffs thereafter had until January 27, 1983 to file a timely complaint.

Oral argument has been held on all of the motions for summary judgment, briefs have been submitted in support of the respective positions, and the matter is now ready for decision by this Court. The Defendants contend that at the relevant time, the period of limitations for common law fraud in Pennsylvania was two years; Plaintiffs, however, claim that the appropriate limitations period at the relevant time was six years. Plaintiffs concede that they were on notice of the facts giving rise to their claim for relief more than two, but less than six years before the above-captioned cases were commenced.

II.

It is uncontested that there is no specified period of limitations for cases brought under RICO, and it is likewise uncontested that in cases brought under RICO, the common law fraud action is the most analogous state cause of action appropriate to effectuate the remedial purposes of RICO. See Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Polite v. Diehl, 507 F.2d 119, 122 (3d Cir.1974) [en banc). Plaintiffs acknowledge that there is no dispute as to any fact material to the resolution of Defendants’ motions, and the only matter to be resolved by this Court is the question of law of whether at the relevant time, the two year or six year limitations period applied to actions for common law fraud in Pennsylvania.

The Pennsylvania Supreme Court has never addressed this question of the applicable limitations period for common law fraud in Pennsylvania subsequent to the enactment of the 1976 Judicial Code, so this Court must predict how the Pennsylvania Supreme Court would decide the matter, and in so predicting, this Court must accord the decisional law of lower state courts “proper regard” but not conclusive effect. Safeco Insurance Company of America v. Wetherill, 622 F.3d 685, 688 (3d Cir.1980); McKenna v. Ortho Pharmaceutical Corporation, 622 F.2d 657, 661 (3d Cir.1980).

Relevant to the consideration of the above-captioned cases are certain statutory provisions: 12 P.S. § 31, 42 Pa.C.S.A. § 5524(3), 42 Pa.C.S.A. § 5524(3) as amended, and 42 Pa.C.S.A. § 5527.

A two year limitations period is provided in 42 Pa.C.S.A. § 5524 (Purdon 1981), as follows:

The following actions and proceedings must be commenced within two years:
(3) An action for taking, detaining or injuring personal property, including actions for specific recovery thereof.

A six year limitations period is set forth in 42 Pa.C.S.A. § 5527 (Purdon 1981), which contains a residual provision:

The following actions and proceedings must be commenced within six years:
(6) Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation).

These two sections, sections 5524 and 5527, were created by the Judicial Code, Act of July 9, 1976, Act No. 142, 1976 Pa.Laws 586, and became effective on June 27, 1978. However, any proceeding where the statute of limitations was reduced could be commenced within one year after the effective date of the enactment, or the period heretofore limited by statute, whichever was less. Section 25(a) and 25(b) of Act 1976, July 9, P.L. 586, No. 142. The Official Source Notes indicate that section 5524(3) was derived from 12 P.S. § 31.

Prior to the 1976 enactment of the Pennsylvania Judicial Code, the limitations period for common law fraud was six years, as set forth in 12 P.S. § 31:

§ 31. Personal actions, when to be brought.
All actions of trespass quare clausum fregit, all actions of detinue, trover and replevin, for taking away goods and cattle, all actions upon account and upon the case ..., all actions of debt grounded upon any lending, or contract without specialty, all actions of debt, for arrearages of rent, ... and all actions of trespass, of assault, menace, battery, wounding and imprisonment ... shall be commenced and sued within the time and limitation hereafter expressed, and not after; that is to say, the said actions upon the case, other than for slander, and the said actions for account, and the said actions for trespass, debt, detinue and replevin, for goods or cattle, and the said actions of trespass quare clausum fregit ... within six years next after the cause of such actions or suit, and not after. And the said actions of trespass, of assault, menace, battery, wounding, imprisonment, or any of them, within ... two years next after the cause of such actions or suit, and not after; ____

12 P.S. § 31 (1953).

The Pennsylvania statute, 42 Pa.C.S.A. § 5524(3), which mandates a two year limitations period for actions involving “taking, detaining or injuring personal property” does not specifically mention an action for fraud, and so, if-it is not included under the provisions of section 5524, an action for common law fraud would be subject to the residual limitations period expressed in 42 Pa.C.S.A. § 5527(6), which specifies that a six year limitations period is applicable.

To further complicate matters, in 1982 the Pennsylvania legislature amended 42 Pa.C.S.A. § 5524 to include the following among the actions and proceedings which must be commenced within the two year limitations period:

(7) Any other action or proceeding to recover damages for injury, to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding. in trespass, including deceit or fraud,____

42 Pa.C.S.A. § 5524(7) (Supp.1984-85). As amended, 1982, December 20, P.L. 1049, No. 326, Art. II, § 201, effective in 60 days.

Section 403 of the Act of December 20, 1982, provided in part that the amendment “shall apply only to causes of action which accrue after the effective date of this act.” As of February 18, 1983, then, the limitations period for fraud and deceit in Pennsylvania was clearly two years.

The Pennsylvania Supreme Court has never addressed the issue of whether a two year or a six year limitations period applies during the time period between the effective date of the enactment of section 5524 (June 27,1978) and the effective date of the 1982 amendment to section 5524 (February 18, 1983). The Superior Court of Pennsylvania in Bickell v. Stein, 291 Pa.Super.Ct. 145, 435 A.2d 610 (1981), assumed the applicability of the two year limitations period without otherwise discussing the matter. Some federal courts have held that a two year limitations period is applicable, while others have held that the limitations period is six years. See, e.g., Sharp v. Coopers & Lybrand, 649 F.2d 175 (3d Cir.1981); Culbreth v. Simone, 511 F.Supp. 906 (E.D.Pa.1981) (Giles, J.); D’Iorio v. Adonizio, 554 F.Supp. 222 (M.D.Pa.1982) (Caldwell, J.); Eisenberg v. Gagnon, 564 F.Supp. 1347 (E.D.Pa.1983); Bernicker v. Pratt, 595 F.Supp. 1034 (E.D.Pa.1984) (Lord, J.), for cases applying the six year limitations period. See, e.g., Fickinger v. C.I. Planning Corporation, 556 F.Supp. 434 (E.D.Pa.1982) (Shapiro, J.); Malley-Duff Associates, Inc. v. Crown Life Insurance Co., Civil Action Number 81-439, Memorandum Opinion (W.D.Pa. March 23, 1984) (Bloch, J.), for cases applying a two year limitations period.

III.

In Biggans v. Bache Halsey Stuart Shields, 638 F.2d 605 (3d Cir.1980), an action was brought by a customer claiming damages from a brokerage house for excessive trading of a customer’s account. The United States Court of Appeals for the Third Circuit recognized the problem created by the Pennsylvania Judicial Code with respect to the limitations period for fraud, but declined to resolve it:

Under the new scheme, it is unclear whether the two-year period applicable to actions for “taking, detaining or injuring personal property ...” id. § 5524(3) or the six-year catch-all provision, id § 5527(6), applies to an action based on common law fraud____ We need not decide that issue because it would not make a difference under the circumstances presented here. If the six-year catchall provision applies, the limitations period is the same under both the old and new statutes. Even if the two-year statute is generally applicable to fraud actions it would be inapplicable in this case because of the operation of the transition section,____

638 F.2d at 607 n. 2.

This problem was next addressed by the Third Circuit in Sharp v. Coopers & Lybrand, 649 F.2d 175, 191-92 (3d Cir.1981), where the Court cited Biggans, supra, as authority for a six year limitations period for common law fraud. However, because the cause of action in Sharp accrued in 1973, well before the effective date established by the Pennsylvania Judicial Code, the effect of the Pennsylvania Judicial Code on the limitations period for fraud was not discussed or considered. Sharp, therefore, is of no assistance in resolving the issues presently before this Court.

In Bickell v. Stein, 291 Pa.Super.Ct. 145, 435 A.2d 610 (1981), the Superior Court of Pennsylvania simply assumed that 42 Pa.C. S.A. § 5524(3), the two year limitations period for “taking, detaining or injuring personal property” was the applicable limitations period for a cause of action based on fraud, and the Court then focused on whether in that case there were sufficient facts alleged to justify the tolling of the statutory limitations period. 291 Pa.Super. at 149-151, 435 A. 2d 610.

The issue of the applicable limitations period was specifically analyzed by Judge Shapiro in Fickinger v. C.I. Planning Corporation, 556 F.Supp. 434, 438 (E.D.Pa.1982). The Court made reference to the Pennsylvania Superior Court opinion of Bickell, supra, and determined that the decision in Bickell was in accord with the policy of the Pennsylvania legislature in revising the limitations period, as was evidenced by the Explanatory Memoranda of the Pennsylvania Bar Association’s Special Committee on the Judicial Code, which stated:

[P]eriods applicable to conversion of or injury to personal property and waste or trespass to real property are reduced from six years to two years to conform to the modern principle that claims based on conduct, and hence heavily relying on unwritten evidence, should have relatively short statutes of limitations, so as to bring them to trial (after allowance for trial delays) before memories have faded.

556 F.Supp. at 439.

The Fickinger Court was persuaded that the limitations period for fraud in Pennsylvania was shortened from six years to two years by the enactment of 42 Pa.C.S.A. § 5524(3):

Sometimes representations alleged to have been fraudulent are written but often they are oral. Whether or not the representations themselves were in writing, proof of reliance generally depends upon the plaintiff’s memory of the defendants’ conduct and the reaction to such conduct. Proof of the elements of fraud may present even more problems of lapsed memory than proof of physically-manifested torts; this suggests that the Legislature intended to place fraud in the same category as such torts.

Id.

The reasoning in Fickinger was cited with approval by Judge Bloch of this district in Malley-Duff Associates, Inc. v. Crown Life Insurance Co., Civil Action Number 81-439 (W.D.Pa. March 23, 1984) (presently on appeal). On the other hand, Bernicker v. Pratt, 595 F.Supp. 1034 (E.D.Pa.1984) and Culbreth v. Simone, 511 F.Supp. 906 (E.D.Pa.1981), both discussed the limitations period for common law fraud in Pennsylvania, but concluded that the six year limitations period rather than the two period was applicable. Culbreth held that in the absence of any state law precedent or clearly manifested legislative intent, a change in the limitations period could not be presumed. Bernicker, supra, cited Fickinger but declined to follow it, accepting instead the reasoning of Judge Giles in Culbreth, supra. Although Culbreth was decided prior to the Pennsylvania Superior Court’s decision in Bickell, supra, Judge Lord in Bernicker nevertheless relied on Culbreth, believing that Bickell was not a definitive and authoritative state law precedent and therefore holding:

The inclusion of fraud within the two-year statute can be done only by reliance on omission and implication. Neither the language of the Judicial Code nor its legislative history makes clear whether the legislature intended to alter the statute of limitations for actions for common law fraud, and there is no satisfactory state court decision interpreting the statute. I can only conclude that the limitations period for fraud has not been drastically reduced from six to two years.

Bernicker, 595 F.Supp. at 1037.

Of the other cases advocating the six year limitations period rather than the two year period, two of these are inapplicable. D’Iorio v. Adonizio, 554 S.Supp. 222 (M.D.Pa.1982), relied on Sharp v. Coopers & Lybrand, supra, which as this Court has already noted, did not arise under the new limitations period, contained in section 5524(3), and Eisenberg v. Gagnon, 564 F.Supp. 1347 (E.D.Pa.1983), was premised on the reasoning stated in D'Iorio.

This Court notes that on December 20, 1982, the Pennsylvania legislature amended 42 Pa.C.S.A. § 5524, to add a provision to that section which specifically included actions for deceit and fraud within the scope of the two year limitations period contained in that section, however, the causes of action in the above-captioned cases arose pri- or to the effective date of the 1982 amendment, so that amendment is inapplicable here. None of the cases which advocated the six year limitations period discussed or took into account the effect of the 1982 amendment, or considered whether the 1982 amendment could be interpreted as indicating that the legislature intended a two year limitation period for fraud claims when it enacted the 1976 Judicial Code. Plaintiffs place strong reliance on the fact that section 5524(7) was not given retroactive effect, but was instead to take effect 60 days after its enactment, and therefore contend that the intent to make the two year limitations period applicable to common law fraud was first manifested by the Pennsylvania Legislature in 1982.

This Court is of the opinion that section 5524(7) was added to section 5524 in order to clarify that deceit and fraud are actions in trespass which are therefore subject to the two year limitations period contained in section 5524. It is significant that when the 1976 Judicial Code was enacted it became effective two years after enactment, and appropriate provisions were then made for the commencement of actions where the time for bringing suit was reduced by the 1976 enactment:

(a) Any civil action or proceeding:
(1) the time heretofore limited by statute for the commencement of which is reduced by any provision of this act; ...
may be commenced within one year after the effective date of this act, or within the period heretofore limited by statute, whichever is less.

Section 25(a) of Act 1976, July 9, P.L. 586, No. 142 [Emphasis added].

This indicates that in 1976 the Pennsylvania legislature intended to reduce certain limitations periods. Since no such provisions for the commencement of actions whose time for bringing suit was reduced were contained in the 1982 amendment, the statutory revisions of 1976 therefore evidence the legislative intent to reduce the period of limitations for fraud, an action in trespass, from six years to two years.

This Court believes that the Pennsylvania Supreme Court, if faced with the question, would choose the two year limitations period rather than the six year limitations period for common law fraud, and further believes that the Fickinger decision properly takes into account Bickell, supra, as well as the intent of the Pennsylvania legislature as evidenced by the language of section 5524. The 1982 amendment clearly evidences the intent of the Pennsylvania legislature to clarify the 1976 revisions to the limitations period, which 1976 revision changed the limitations period from six years to two years. Since the basis of the causes of action alleged in the instant cases are that the financial conditions of certain companies were misrepresented, and since it is uncontested that bankruptcy proceedings were filed at the end of January, 1981, Plaintiffs were put on notice of the alleged fraudulent misrepresentations by February, 1981 at the latest. Indeed, the Plaintiffs concede that they were on notice of the facts giving rise to their claim for relief more than two years before the above-captioned cases were commenced. The two year limitations period began to run in February, 1981, and these actions filed August 29, 1984 were therefore filed untimely. The motions of the Defendants for Summary Judgment will be granted, and an appropriate Order will be entered.


source: Caselaw Access Project

author: HERBERT F. MURRAY, District Judge.

license: Public Domain

text:
    BEAUTIFAX, INC. v. PUERTO RICO MARINE MANAGEMENT, INC.; Commerce of Minnesota; Phillips Brothers Warehousing and Distributing Corporation; and Baltimore & Ohio Railway Company.
    Civ. No. HM83-4157.
    United States District Court, D. Maryland.
    May 29, 1985.

      Francis P. Crotty, Darling, Jobes & Heyd, Jersey City, N.J., Michael E. Marr, Robert B. Scarlett, Marr & Bennett, Baltimore, Md., for plaintiff.
    Geoffrey S. Tobias, Ober, Kaler, Grimes & Shriver, Baltimore, Md., for Puerto Rico Marine Management, Inc.
    Harry P. Strong, Bertie, Bettenburg & Strong, St. Paul, Minn., for Commerce of Minnesota.
    Frank X. Gallagher, Michael P. May, Baltimore, Md., for Phillips Brothers Warehousing Corp.
    C. Keith Meiser, H. Russell Smouse, George F. Pappas, and Melnicove, Kaufman, Weiner & Smouse, Baltimore, Md., for defendants.
   MEMORANDUM AND ORDER

HERBERT F. MURRAY, District Judge.

Plaintiff Beautifax, Inc. brings the instant action against defendants Puerto Rico Marine Management, Inc. [hereinafter PRMMI]; Commerce of Minnesota; Phillips Brothers Warehousing & Distributing Corporation [hereinafter Phillips Brothers]; and the Baltimore & Ohio Railway Company [hereinafter B & 0] pursuant to the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11707 (Supp. IV 1981), formerly 49 U.S.C. § 20(11). The eight-count Complaint charges the aforementioned defendants with breach of contract and negligence in the care and handling of plaintiff’s product. Initially, plaintiff filed a two-count Complaint against defendant PRMMI in the Superior Court of New Jersey. Subsequently, plaintiff filed an Amended Complaint alleging the same causes of action but adding Commerce of Minnesota, Phillips Brothers and B & O as named defendants. Defendants thereafter removed the action to this court pursuant to 28 U.S.C. § 1441(c). Presently before the court are plaintiff Beautifax’s Motion for Partial Summary Judgment as to Liability; defendant Phillips Brothers’ Motion for Summary Judgment; and defendant B & O’s Motion for Summary Judgment. The court heard arguments on the pending motions on Friday, April 12, 1985 and has considered the papers submitted and is now-prepared to rule.

I. Plaintiff Beautifax’s Motion for Partial Summary Judgment as to Liability

Plaintiff Beautifax has filed a Motion for Partial Summary Judgment as to Liability pursuant to Rule 56 of the Federal Rules of Civil Procedure. In support of the motion, plaintiff asserts that the doctrine of res ipsa loquitur permits the court to find the defendants liable for the damage to plaintiff’s product because the damage to the product occurred while the product was in defendants’ possession and control. (Plaintiff’s Motion for Partial Summary Judgment as to Liability [hereinafter Mo. for Partial S/J], p. 4; Plaintiff’s Memorandum of Law in Support of Motion for Partial Summary Judgment [hereinafter Memo in Support of Mo. for Partial S/J], pp. 1-5). Moreover, plaintiff contends that defendants are liable pursuant to the Uniform Commercial Code provisions governing Uniform Bills of Lading because of defendants’ failure to exercise reasonable care in handling plaintiff’s product. (Mo. for Partial S/J, p. 4; Memo in Support of Mo. for Partial S/J, pp. 5-8). Plaintiff thus asks the court to enter partial summary judgment as to liability in favor of the plaintiff and declare defendants liable for the direct and proximate cost of the damage to plaintiff’s products.

Defendants Phillips Brothers, B & 0 and PRMMI have filed opposition to plaintiff’s Motion for Partial Summary Judgment. Defendant Commerce of Minnesota has filed a “Memorandum on Behalf of the Defendant, Commerce of Minnesota” which the court has determined to treat as an opposition to plaintiff’s Motion for Partial Summary Judgment.

In opposition to plaintiff’s Mo. for Partial S/J, defendant Phillips Brothers argues that partial summary judgment as to liability in favor of plaintiff is inappropriate because the damage to plaintiff’s product occurred after the product left the possession, custody and control of defendant Phillips Brothers. (Defendant Phillips Brothers Opposition to Plaintiff’s Mo. for S/J, p. 2). Defendant Phillips Brothers also argues that the doctrine of res ipsa loquitur is inapplicable in the instant case because the requisite of exclusivity of control, a necessity for invocation of the doctrine, does not exist. (Id. at pp. 6-10). Defendant contends that the appropriate theory, instead, is bailment for hire which is not addressed by plaintiff. (Id. at pp. 4-6). Finally, defendant Phillips Brothers argues that § 7-309 of the Uniform Commercial Code does not render defendant liable because defendant’s delivery of plaintiff’s product was reasonable and in compliance with the directives as set forth on the applicable Bill of Lading. (Id. at pp. 10-12). Defendant Phillips Brothers therefore requests the court to deny plaintiff’s Motion for Partial S/J.

Defendant B & 0 similarly opposes plaintiff’s Mo. for Partial S/J. In support of its Motion for S/J and in opposition to plaintiff’s Mo. for Partial S/J, defendant B & 0 asserts that as a connecting carrier in the shipment of plaintiff’s goods under a through Bill of Lading, it cannot be liable under the Carmack Amendment of the Interstate Commerce Act for damage to plaintiff’s goods in the course of an interstate shipment. (Defendant B & O’s Mo. for S/J and Response to Plaintiff’s Mo. for Partial S/J, pp. 4-6). Alternatively, defendant B & 0 argues that even if the court finds that the Carmack Amendment preserves the common-law remedies available to a shipper against an intermediary carrier, B & 0 is not liable for damages to plaintiff’s product because B & 0 released the goods to Phillips Brothers in compliance with plaintiff’s directives to defendant Commerce of Minnesota as incorporated in the Bill of Lading. {Id. at pp. 7-8). Defendant B & 0 therefore requests the court to deny plaintiffs Mo. for Partial S/J and grant its Mo. for S/J as a matter of law.

In similar opposition to plaintiffs Mo. for Partial S/J, defendant Commerce of Minnesota argues that as a Shipper’s Agent within the meaning of § 402(c)(2), Part IV, of the Interstate Commerce Act, its activities are exempt from the Act. Defendant contends that it acts as an agent of the shipper and is responsible only for making the necessary arrangements with railroad companies; specifically, preparing bills of lading and other shipping documents, making arrangements with a local cartage carrier where the shipment originates to drop the trailer off at the shipper’s dock for loading, and transporting the trailer to the railroad yard upon completion of the loading. (Memorandum on Behalf of the Defendant, Commerce of Minnesota, pp. 1-2). Defendant contends that it complied with the plaintiff’s instructions in the execution of its duties and therefore is not liable for the damage to plaintiff’s goods as alleged in the complaint. {Id. at pp. 2-3).

Like defendants Phillips Brothers, B & 0 and Commerce of Minnesota, defendant PRMMI also opposes plaintiff’s Mo. for Partial S/J. Defendant PRMMI contends that summary judgment in favor of the plaintiff is inappropriate because of the existence of disputed facts in the case at bar; namely, whether Puerto Rico Marine Management, Inc. or Puerto Rico Maritime Shipping Authority is the proper party in this action; whether plaintiff filed this action in a timely fashion; whether the carrier is protected from liability by its published tariff; and whether the instructions received by PRMMI were clear. (Defendant PRMMI’s Memorandum in Opposition to Plaintiff's Mo. for Partial S/J, pp. 2-4). Defendant PRMMI thus requests the court to deny plaintiff’s Mo. for Partial S/J.

Summary judgment is appropriate only if the pleadings “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” F.R.Civ.P. 56(c). The facts of the instant case are virtually uncontroverted. Plaintiff Beautifax, Inc., a Minnesota corporation, shipped a trailer load of shampoo and similar products from Minnesota to Puerto Rico. On or about March 25, 1980, a Motor Truck Carrier picked up the beauty care products from plaintiff’s warehouse in Fridley, Minnesota and loaded them onto trailer number S00Z 502100, a trailer owned by SOO Line Railroad. The trailer was delivered to defendant B & O’s terminal in Chicago where it was placed on a B & O freight car for piggy-back shipment to B & O’s Baltimore terminal. On March 31, 1980, defendant Phillips Brothers picked up the trailer from B & O’s terminal in Baltimore and transported it to PRMMI’s shipping terminal also in Baltimore for the ocean shipment of the beauty care products to San Juan, Puerto Rico. Defendant Commerce of Minnesota prepared a bill of lading covering the land portion of the interstate shipment of plaintiff’s products from Fridley, Minnesota to Baltimore, Maryland which provided, in pertinent part, “HEATER SERVICE REQUIRED FROM MINNEAPOLIS TO BALTIMORE, SET TEMP AT 50 DEGREES, SHUT UNIT OFF AT BALTIMORE, PROTECT FROM EXTREME HEAT OR COLD.” PRMSA, as principal for defendant PRMMI, prepared a bill of lading covering the sea-going portion of the through shipment from Baltimore, Maryland to San Juan, Puerto Rico. {See exhibits 2, 3 attached to plaintiff’s Motion for Partial Summary Judgment).

“At the time of delivery [of the trailer by Phillips' Brothers to PRMMI] the trailer’s seal was intact and the unit’s temperature control machinery was set to maintain a temperature of 50° fahrenheit. PRMMI personnel, operating the terminal for the Puerto Rico Maritime Shipping Authority, broke the seal, opened the trailer, and noted that the temperature within the trailer was 50° and that the cargo itself was apparently 52°. The container was resealed with seal No. 371587969”. See plaintiff’s Motion for Partial Summary Judgment, p. 3, adopting PRMMI’s answer to plaintiff’s interrogatory No. 10; See also exhibit 1, attached to plaintiff’s Motion for Partial Summary Judgment.

After resealing the container, PRMMI personnel loaded the trailer aboard the SS Fortaleza for the ocean shipment of plaintiff’s goods to San Juan, Puerto Rico. The shipment was delivered to plaintiff’s consignee, Clairol Caribe, Inc., on April 8, 1980. “At the time of delivery, PRMMI’s agents inspected the trailer and the product and discovered the temperature control unit on the trailer had been turned off; the trailer recorded a temperature of 100 degrees fahrenheit.” (Plainitff’s Motion for Partial Summary Judgment, pp. 3-4; see also exhibit 4, attached to plaintiff’s Motion for Partial Summary Judgment). Plaintiff’s product was damaged such that part of it had to be destroyed. Having discussed the relevant facts, the court will now examine the law bearing on the issue at bar.

The law on the liability of a carrier is well established. In order to establish a prima facie case of liability against a common carrier under the Carmack Amendment, 49 U.S.C. § 11707, for damage to goods during shipment, the shipper, the plaintiff herein, must show delivery of the goods to the carrier in good condition, arrival of the goods in a damaged condition at the final destination, and the amount of damage. Morrell & Co. v. Frozen Food Express, Inc., 700 F.2d 256 (5th Cir.1983); S.C. Johnson & Son, Inc. v. Louisville & Nashville R. Co., 695 F.2d 253 (7th Cir.1983); Gordon H. Mooney, Ltd. v. Farrell Lines, Inc., 616 F.2d 619 (2d Cir.), cert. denied, 449 U.S. 875, 101 S.Ct. 217, 66 L.Ed.2d 96 (1980). Once the shipper makes out a prima facie ease of liability, the burden of proof then shifts to the carrier to show both that it was free from negligence and that the damage to the transported goods was caused by an act of God, an act of a public enemy, an act of the shipper, an act of a public authority, or the inherent nature or vice of the goods. Missouri Pacific R.R. v. Elmore & Stahl, 377 U.S. 134, 137-38, 84 S.Ct. 1142, 1144-45, 12 L.Ed.2d 194 (1964); Joseph Schlitz Brewing Co. v. Transcon Lines, 571 F.Supp. 52, 57 (E.D.Wis.1983); see also Johnson & Johnson v. Chief Freight Lines Co., 679 F.2d 421 (5th Cir.1982). The court will now assess plaintiff’s Motion for Partial Summary Judgment as to each defendant in light of these principles.

A. Defendant B & O Railway Company

Plaintiff Beautifax brings the instant action against defendant B & O under the Carmack Amendment and the common law. B & O, in response to plaintiff’s motion for partial summary judgment and in support of its motion for summary judgment, argues that plaintiff has no cause of action against it under either the Carmack Amendment or the common law because the Carmack Amendment applies only to an initial carrier or a delivering carrier and because plaintiff has failed to prove defendant’s negligence to support its common law cause of action. Thus, the question before the court is whether plaintiff has a maintainable action against defendant B & O under either the Carmack Amendment or the common law.

The Carmack Amendment provides in pertinent part:

A common carrier providing transportation or service ... shall issue a receipt or bill of lading for property it receives for transportation under this subtitle. That carrier and any other common carrier that delivers the property and is providing transportation or service ... are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by (1) the receiving carrier, (2) the delivering carrier, or (3) another carrier over whose line or route the property is transported in the United States or from a place in the United States to a place in an adjacent foreign country when transported under a through bill of lading ... Failure to issue a receipt or bill of lading does not affect the liability of a carrier. A delivering carrier is deemed to be the carrier performing the line-haul transportation nearest the destination but does not include a carrier providing only a switching service at the destination.

49 U.S.C. § 11707(a)(1).

The Amendment was enacted to “relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods,” Reider v. Thompson, 339 U.S. 113, 119, 70 S.Ct. 499, 502, 94 L.Ed. 698 (1950), and allows a shipper to maintain a cause of action against the initial carrier (the carrier issuing the bill of lading) or the delivering carrier (the carrier delivering the goods to the final destination) for damage to goods in the course of an interstate shipment on a through bill of lading. See generally S. C. Johnson & Son v. Louisville & Nashville Railroad Co., 695 F.2d 253, 256-57 (7th Cir.1982); AAACON Auto Transport, Inc. v. State Farm Mutual Automobile Insurance Co., 537 F.2d 648, 653-54 (2d Cir.1976); United States v. Mississippi Valley Barge Line Co., 285 F.2d 381, 389 (8th Cir.1960); Komatsu America Corp. v. Portside Cargo Securing Company, 514 F.Supp. 619, 620-21 (S.D.N.Y.1981); Season-All Industries, Inc. v. Merchant-Shippers, 417 F.Supp. 998, 1001 (W.D.Pa.1976); Matter of: Southeastern Freight Lines, 63 Op.Comp.Gen. 242, 245 (1984). The initial or delivering carrier may in turn seek to recover from the connecting carrier over whose line or route the loss or injury occurred the amount required to be paid to the owners of the property. 49 U.S.C. § 11707(b).

In the case at bar, defendant Commerce of Minnesota, a freight forwarder, issued a bill of lading to plaintiff and, therefore, is an initial carrier and a proper defendant in the instant action. Defendant Phillips Brothers was the delivery carrier under the through bill of lading issued by Commerce of Minnesota and is also a proper defendant in this action. Defendant B & O, however, was an intermediate connecting carrier and thus is not amenable to suit under the Carmack Amendment.

Having found that plaintiff cannot maintain a cause of action against defendant B & O as an intermediate carrier under the Carmack Amendment, the court will now examine whether plaintiff can maintain a common law action against B & O. The court recognizes that federal courts have reached inconsistent results as to whether the Carmack Amendment preempts or preserves common law actions by a shipper against a carrier for damage to interstate shipments. Compare Air Products & Chemicals, Inc. v. Illinois Central Gulf Railroad Co., 721 F.2d 483 (5th Cir.1983) (Carmack Amendment preempts common law action); Fulton v. Chicago, Rock Island and Pacific Railroad Company, 481 F.2d 326, 331-32 (8th Cir.1973) (same); Wirth v. Silvretta, 575 F.Supp. 1274, 1276-77 (N.D.Ill.1984) (same) with Reed v. AAACON Auto Transport, Inc., 637 F.2d 1302, 1304-05 (10th Cir.1981) (common law action not preempted by Car-mack Amendment); AAACON Auto Transport, Inc. v. State Farm Mutual Automobile Insurance Co., 537 F.2d 648, 654-55 (2d Cir.1976) (same); Season-All Industries, Inc. v. Merchant Shippers, 417 F.Supp. 998, 1003 (W.D.Pa.1976), modified 451 F.Supp. 727 (1978) (same). The court believes that it need not address this issue because even if the Carmack Amendment does not preempt common law actions by shippers against carriers, plaintiff has not produced evidence of negligence or breach of contract on the part of B & O to support its common law claims. In fact, the evidence indicates the contrary.

At common law, a common carrier is liable only for damage occurring during its portion of the total transportation. United States v. Mississippi Valley Barge Line Co., 285 F.2d 381, 388 (8th Cir.1960). Here, the evidence indicates that B & O complied with the directive of the bill of lading issued by Commerce of Minnesota and released the goods to Phillips Brothers in good order. See Memorandum of Law in Support of Defendant B & O Railway’s Motion for Summary Judgment and Response to Plaintiff’s Motion for Partial Summary Judgment, pp. 2, 8; Affidavit of George W. Betz in Support of Motion of Phillips Brothers’ for Summary Judgment and In Opposition to Plaintiff’s Motion for Partial Summary Judgment. Absent evidence that B & 0 damaged the goods during its portion of the transportation and released the goods in a damaged condition, plaintiff’s common law action is not maintainable. Having found that plaintiff does not have a cause of action against defendant B & 0 under either the Carmack Amendment or the common law, the court will deny plaintiff’s Motion for Partial Summary Judgment and grant B & O’s Motion for Summary Judgment.

B. Defendant Phillips Brothers

An initial inquiry before the court is whether the transportation of the goods from Fridley, Minnesota to Baltimore, Maryland for ultimate reshipment to Puerto Rico should be characterized as one trip or two distinct trips. The resolution of this issue affects the status of defendant Phillips Brothers under the Carmack Amendment. If there was only one trip, then Phillips Brothers was an intermediate carrier and not a proper defendant under the Carmack Amendment. If, however, there were two distinct trips, a second one beginning after Phillips Brothers released the goods to PRMMI, then Phillips Brothers was a delivering carrier and a proper defendant under the Carmack Amendment.

Whether the transportation of the goods in the instant action should be characterized as one trip or two trips is a question of fact. See S.C. Johnson & Son v. Louisville & Nashville Railroad Co., 695 F.2d 253, 257 (7th Cir.1982) (citing Season-All Industries, Inc. v. Merchant Shippers, 451 F.Supp. 727, 731 (W.D.Pa.1978); United States v. Mississippi Barge Line Co., 285 F.2d 381, 393 (8th Cir.1960)). The court has examined the facts and believes that the transportation of the goods in the case at bar involves two trips. Significantly, the bill of lading issued by defendant Commerce of Minnesota to plaintiff Beautifax covered the land portion of the interstate shipment and designated Baltimore, Maryland as the destination. See Exhibit 1, attached to Memorandum in Support of B & O’s Motion for Summary Judgment. A second bill of lading was issued by defendant PRMMI, as agents for PRMSA, to plaintiff covering the ocean portion of the transportation; this bill of lading designated San Juan, Puerto Rico as the Port of Discharge. See Exhibit 2, attached to Memorandum in Support of Defendant B & O’s Motion for Summary Judgment. The court believes that more than one trip existed because there was not an arrangement between carriers “giving to one or the other, or both, such an interest in or control over the entire undertaking as to constitute the continuous transportation in some sense of common enterprise.” See United States v. Mississippi Valley Barge Line Co., supra, 285 F.2d at 391. The trip ended when Phillips Brothers delivered the goods to PRMMI, and Phillips Brothers was under no further obligation. Moreover, charges for freight transportation were assessed individually by each issuer of the bills of lading and the parties evidenced no concert of action. The court thus believes that the transportation of the goods in the instant case involved two separate trips covered by two bills of lading and that Phillips Brothers, therefore, is a delivering carrier under the bill of lading issued by Commerce of Minnesota and a proper defendant under the Carmack Amendment.

Even though Phillips Brothers is a proper defendant under the Carmack Amendment, plaintiff has not made a prima facie showing of liability under the Carmack Amendment in order to maintain its action. In order to sustain a suit against a delivering carrier under the Car-mack Amendment, plaintiff must prove delivery in good condition to the initial carrier and delivery in damaged condition by the delivering carrier. Season-All Industries, Inc. v. Merchant Shippers, 451 F.Supp. 727, 735 (1978). Plaintiff has not made such a showing in this case. In fact, plaintiff admits that defendant Phillips Brothers delivered the goods to PRMMI in good condition at the Baltimore marshalling yard of PRMSA as directed by the bill of lading issued by Commerce of Minnesota. Plaintiff admits that “[a]t the time of delivery [by Phillips Brothers], the trailer’s seal was intact and the unit’s temperature control machinery was set to maintain a temperature of 50 (degrees) fahrenheit. PRMMI personnel, operating the terminal for the Puerto Rico Maritime Shipping Authority, broke the seal, opened the trailer and noted that the temperature within the trailer was 50 (degrees) and that the cargo itself was apparently 52 (degrees).” Plaintiff’s Motion for Partial Summary Judgment As to Liability, p. 3. As the court noted earlier, the bill of lading issued by Commerce of Minnesota provided: “HEATER SERVICE REQUIRED FROM MINNEAPOLIS TO BALTIMORE, SET TEMP AT 50 DEGREES, SHUT UNIT OFF AT BALTIMORE, PROTECT FROM EXTREME HEAT OR COLD.” Viewing plaintiff’s admission in light of the directive of the bill of lading, the court cannot find that Phillips Brothers delivered the goods in a damaged condition and, thus, is compelled to find that plaintiff has not sustained its burden of proof under the Carmack Amendment.

Whether plaintiff has a common law cause of action against Phillips Brothers is yet another issue. As noted supra, the court will not address whether the Car-mack Amendment preempts or preserves common law action by shippers against carriers because, again, the court finds that plaintiff has not sufficiently alleged acts of negligence to support its common law action. Common law liability is limited to damage that occurred during the carrier’s portion of the transportation. See United States v. Mississippi Valley Barge Line, supra, 285 F.2d at 388. Plaintiff has admitted that Phillips Brothers was not negligent and, in fact, delivered the goods to PRMMI undamaged. See Plaintiff’s Motion for Partial Summary Judgment, p. 3. Plaintiff, thus, does not allege any grounds upon which common law liability may be based. The court thus finds that plaintiff has failed to prove adequately its causes of action under the Carmack Amendment and the common law and, accordingly, will deny plaintiff’s Motion for Partial Summary Judgment and grant Phillips Brothers Motion for Summary Judgment.

C. Defendant Puerto Rico Marine Management, Inc.

As to defendant PRMMI, the court believes that various factual disputes relevant to the issue of liability preclude the court from granting plaintiff's Motion for Partial Summary Judgment as a matter of law. Specifically, the parties dispute whether the plaintiff sued the proper party, whether the plaintiff filed suit in a timely fashion, whether the carrier is protected by its published tariff, and whether the instructions received by PRMMI were clear. The court believes that these disputable factual issues must be resolved by a trier-of-fact and, therefore, will deny plaintiff’s Motion for Partial Summary Judgment.

D. Defendant Commerce of Minnesota

Preliminarily, the court finds that defendant Commerce of Minnesota is a freight forwarder and an initial carrier under the Carmack Amendment. As a freight forwarder, defendant arranged for the shipment of the goods by various common carriers from Fridley, Minnesota to Baltimore, Maryland. See 49 U.S.C. § 10102(9). As an initial carrier, defendant issued the bill of lading covering the land portion of the transportation of the goods from Minnesota to Baltimore. Defendant is therefore a proper defendant under the Carmack Amendment which permits suits against an initial or delivering carrier for damages to goods in an interstate shipment.

Defendant argues that it is not a proper party to this action because it acted only as a shipper’s agent in making arrangements for the transportation of the shipper’s goods and not as a carrier. The court finds this argument unconvincing. Even if defendant acted only as an agent of the shipper, it may still be an initial carrier under the Carmack Amendment. See Season-All Industries v. Merchant Shippers, supra, 417 F.Supp. at 1003-04 (citing Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. Acme Fast Freight, 336 U.S. 465, 69 S.Ct. 692, 93 L.Ed. 817 (1949)). Defendant’s liability under the Carmack Amendment, however, is limited to any damage occurring between Fridley, Minnesota and Baltimore, Maryland. The uncontroverted evidence indicates that no damage to the goods occurred during this land portion of the transportation. Significantly, the evidence indicates that the goods were delivered to B & 0 in good order and delivered by B & 0 to Phillips Brothers in good condition. Phillips Brothers thereafter delivered the goods to PRMMI in good order. See Plaintiff's Motion for Partial Summary Judgment, p. 3; Memorandum of Law In Support of Defendant B & O’s Motion for Summary Judgment, pp. 2-3; Affidavit of George W. Betz In Support of Motion of Phillips Brothers for Summary Judgment, p. 2. The bill of lading issued by Commerce of Minnesota provided for shipment to Baltimore, Maryland. Once Phillips Brothers delivered the goods to PRMMI’s shipping terminal in Baltimore, Maryland in good order, the trip was at an end and Commerce of Minnesota’s liability under the Carmack Amendment for any damage was also at an end. Plaintiff, thus, has not made out a prima facie case of liability under the Carmack Amendment as to defendant Commerce of Minnesota.

The court also believes that plaintiff has not made out a prima facie of liability under the common law as to defendant Commerce of Minnesota. Plaintiff has not produced evidence that any damage occurred during any portion of the transportation for which defendant Commerce of Minnesota may be responsible. The evidence indicates that the goods were undamaged during defendant’s portion of the transportation. Plaintiff thus has failed to sustain its burden of proof regarding defendant’s liability under both the common law and the Carmack Amendment. Plaintiff’s Motion for Partial Summary Judgment as to Liability therefore will be denied.

The court acknowledges receipt of defendant’s letter dated January 9, 1985 indicating that defendant has ceased doing business and has no funds available to defend this action. The court, however, will continue to recognize defendant Commerce of Minnesota as a party to this action until appropriate motions are filed.

For the foregoing reasons, the court has determined to deny plaintiff’s Motion for Partial Summary Judgment as to all defendants. The court believes that the aforestated reasons prohibit it from granting plaintiff’s motion and indicate the inappropriateness of• plaintiff’s reliance on the doctrine of res ipsa loquitur and § 7-309 of the U.C.C., a detailed discussion of which the court finds unnecessary. Accordingly, plaintiff’s Motion for Partial Summary Judgment is hereby denied.

II. Defendant B & O’s and Defendant Phillips Brothers’ Motions for Summary Judgment

For the aforegoing reasons, the court finds that defendant B & O’s and defendant Phillips Brothers’ Motions for Summary Judgment should be granted. Without repeating the foregoing discussion, the court believes that summary judgment is appropriate because plaintiff has failed to sustain a cause of action against defendants B & 0 and Phillips Brothers under either the Carmack Amendment or the common law. (See discussion supra, pp. 542-545). The instant action against defendants B & 0 and Phillips Brothers, therefore, is without a sufficient basis and should be dismissed as a matter of law.

ORDERED:

(1) that plaintiff’s Motion for Partial Summary Judgment as to Liability be, and the same hereby is, Denied;

(2) that defendant B & 0’s Motion for Summary Judgment be, and the same hereby is, Granted;

(3) that defendant Phillips Brothers’ Motion for Summary Judgment be, and the same hereby is, Granted; and

(4) that the Clerk of the Court mail copies of this memorandum and order to the parties.

      . The court believes that the doctrine of res ipsa . loquitur is inapplicable to the instant action because plaintiff has not proven, and the evidence does not indicate, that the liability of the multiple defendants herein was joint or that "they were in joint or exclusive control of the injury producing factor.” See Joffre v. Canada Dry Ginger Ale, Inc., 222 Md. 1, 158 A.2d 631 (1960). In fact, the evidence indicates that the alleged injury producing factor, the exposure to excessive heat, did not occur until after Phillips Brothers released the goods from its control. Absent evidence of joint liability or joint or exclusive control of the instrumentality causing the injury, the court finds the doctrine of res ipsa loquitur inapplicable.
      The court also finds that invocation of § 7-309 of the Uniform Commercial Code is not sufficient in the instant case to justify granting plaintiff's Motion for Partial Summary Judgment. In fact, with regard to defendants' Commerce of Minnesota, B & O, and Phillips Brothers, the evidence adduced indicated that they exercised reasonable care in the handling and care of plaintiff's products. With regard to defendant PRMMI, whether its actions were reasonable is indeterminate in light of the disputable issue as to whether the instructions received by PRMMI were clear.


author: BARRINGTON D. PARKER, District Judge:

text:
    COMMITTEE OF 100 ON the FEDERAL CITY, et al., Plaintiffs, v. Donald P. HODEL, Secretary of the Interior, et al., Defendants.
    Civ. A. No. 85-0059.
    United States District Court, District of Columbia.
    May 30, 1985.

      Cornish F. Hitchcock, Public Citizen Litigation Group, Washington, D.C., for plaintiffs.
    Mitchell R. Berger, Asst. U.S. Atty., Washington, D.C., for Federal defendants.
    Irwin Goldbloom, William C. Kelly, Jr., David D. Sandalow, Latham, Watkins & Hills, Washington, D.C., for defendant-intervenor Rosewood Hotels, Inc.
    David H. Schwartz, Robert J. Kheel, S. Scott Morrison, Wilkie, Farr & Gallagher, Washington, D.C., for defendant-intervenor Washington Harbour Associates.
   MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

INTRODUCTION

The plaintiffs in this proceeding are four local organizations concerned with and interested in the maintenance and preservation of federal parklands in Washington, D.C. (“District of Columbia” or “District”). They seek to set aside a decision of the National Park Service (“Park Service” or “NPS”) to surrender an easement restricting building heights on a parcel of land on the waterfront in the Georgetown section of the District of Columbia to 20 feet or one story. The land involved is situated along the banks of the Potomac River and Rock Creek. The surrender of the easement would permit construction of a 60 foot office building and a 52 foot hotel building by a private developer, Washington Harbour Associates (“Washington Harbour” or “WHA”). In exchange for the surrender of the easement, the developer would convey to the Park Service certain access and scenic easements on its privately-owned land and neighboring property and make improvements on that as well as on adjoining Park Service land.

The plaintiffs include two citizen groups, the Committee of 100 on the Federal City and the Committee for Washington & Riverfront Parks (“organizational plaintiffs”), who bring this action on behalf of their members, and the Human Environment Institute and the Environmental Policy Institute (“institutional plaintiffs”), who pursue this action on their own behalf. The named defendants are the Secretary of the Interi- or, and two National Park Service officials who are sued solely in their official capacities (“federal defendants”). In addition, the Court permitted Washington Harbour Associates, the owner and developer of the privately-owned property involved herein, and Rosewood Hotels, Inc. (“Rosewood”), the planned purchaser of a portion of the private development, to intervene as defendants (“defendant-intervenors”).

Plaintiffs are seeking injunctive and declaratory relief to prevent the proposed exchange of interests between Washington Harbour and the Park Service on the grounds that it violates a 1977 amendment to the Land and Water Conservation Fund Act of 1965, 16 U.S.C. § 460/-9(c). In the alternative, plaintiffs seek a remand to the Secretary of the Interior of the decision to enter into the agreement on either of two independent grounds: failure to hold a public hearing in violation of statutory authority, 16 U.S.C. § 460/ -22(b), or that the Secretary’s determination that the interests being exchanged were approximately equal in value was arbitrary and capricious.

Before the Court are cross motions for summary judgment. This matter has been extensively briefed and ably argued by counsel for the parties. After review and consideration of the record, the pleadings and submissions of the parties, the Court concludes that plaintiffs’ motion for summary judgment should be granted and that the proposed exchange of interests be enjoined.

BACKGROUND

This controversy deals with a section of land situated on the shore of the Potomac River bordering Washington, D.C. The entire shoreline of the Potomac River in the District is owned and managed by the federal government through the Park Service, with the exception of a particular area of the shoreline known as the Georgetown Waterfront. A sizeable portion of the entire Potomac shoreline outside of the District is publicly owned. A long-established goal of the federal government has been to acquire and protect as much of the Potomac shoreline as possible. March 25, 1985 Affidavit of Manus J. Fish, Jr., Regional Director for the National Capital Region of NPS at ¶ 3.

The Georgetown Waterfront area consists of approximately 19 acres of land. Six acres are privately owned, eight acres are owned by the District, two and one half acres are owned by the federal government, and two and one half acres are local street right-of-ways. The federal government obtained its land on the Georgetown Waterfront in 1938 when it purchased the Chesapeake and Ohio Canal. Compl. at 1110. The receivers of the Canal withheld nineteen parcels of land from sale to the government which were then being used primarily by the Baltimore and Ohio Railroad. However, the United States was able to acquire an easement over one of the nineteen parcels of land. That portion, known as Parcel G, consists of approximately 1.21 acres of land. The easement limits the height of buildings on that Parcel to 20 feet or one story. Formalized in 1941, the restrictive height easement still runs with the land.

Washington Harbour Associates owns some of the private Georgetown Waterfront property. That property is located in three parcels: lot 102, lot 81, and lot 97. Lots 81 and 97 comprise Parcel G. In 1979, the then-Secretary of the Interior rejected a plan to purchase the privately held Georgetown Waterfront property. The purchase price was estimated to be $22 million. Fish Aff. at II7. The Park Service then entered into an agreement with the District of Columbia, the National Capital Planning Commission, and WHA for joint development of the Georgetown Waterfront area. That agreement involved some land exchanges, including the easement at issue in this matter. The developer’s design plans, however, were rejected by the Commission of Fine Arts in 1980. Fish Aff. at MI 8-9. Because the joint development plan had been effectively foreclosed, WHA decided to implement its own plans for development on Lot 102. Washington Harbour was able to proceed with its plans absent NPS involvement because no federal interests are involved on that land. That development, known as Phase I, is currently under construction as a complex for office, retail, and residential purposes.

Washington Harbour then sought to pursue its interest in developing Parcel G (Lots 81 and 97). That development is known as Phase II. Defendant-intervenor Rosewood has contracted to purchase the developed Phase II properties from Washington Harbour.

In 1983, WHA and the NPS began negotiating toward another comprehensive agreement which would encompass the Georgetown Waterfront area. An agreement was reached for a proposal which the government stated would “guarantee permanent public access along the waterfront and Rock Creek, ... preserve river views from Georgetown, and allow landscape improvements to National Park Service lands.” 48 Fed.Reg. 55643 (Dec. 14, 1983). In exchange, the government surrendered the restrictive height easement on Parcel G.

The proposal was set forth in an Environmental Assessment (“EA”) in December, 1983, which was made available to the public through notice in the Federal Register. Id. Under the proposed exchange, WHA would guarantee permanent public aecess and scenic easements on its property along the Potomac River and Rock Creek, provide a scenic easement on a portion of its Phase I property and also agree to landscape and maintain the public access easement areas as well as certain adjacent parklands. In return, NPS would relinquish the height restriction on the Phase II properties in favor of a 60 foot height restriction and would grant WHA an easement over the bed of the Potomac for construction of a seawall, boardwalk and dock. Fish Aff. at II14.

On January 17, 1984, following the Federal Register notice, the NPS held a public hearing on the Environmental Assessment of the proposed exchange. The Commission of Fine Arts then held a public meeting on January 81, 1984 to consider the design plans for the proposed project. Based on comments made at those hearings, NPS sought legal advice from the Department of the Interior as to whether NPS had the authority to enter into the proposed exchange of interests. On March 9, 1984, the Solicitor’s Office advised NPS that it did have such authority. WHA then submitted a draft deed of exchange which was rejected by NPS on March 12, 1984.

In rejecting the draft, NPS indicated that certain ■ changes should be made in the agreement, including a decrease in the height of the buildings on Phase II and a further increase in the setback of the buildings from the shoreline. The Park Service also sought additional landscaping and maintenance guarantees, $1 million to construct a park on federal property along the Potomac River west of 31st Street, N.W., and a promise to reconstruct the C & 0 Canal tidelock at an estimated cost of $350,000. WHA agreed to the changes on April 17, 1984. Thereafter, a revised EA was prepared and distributed. The final proposal provided for a hotel height of 52 feet and an office building height of 60 feet on the Phase II properties.

Additional hearings were held before the D.C. Historic Preservation Board, the Old Georgetown Board of Consultants to the Commission of Fine Arts, the Commission of Fine Arts, the C & O Canal Advisory Commission in June and July, 1984. Those boards and commissions, representing District of Columbia and federal interests, approved the proposed exchange. In July, 1984, plaintiffs requested that the Park Service hold a public hearing on the subject of valuation of the proposed exchange. That request was rejected in short order.

On August 2, 1984, the National Capital Planning Commission approved the proposed exchange in a public hearing. At that time, pursuant to its statutory authority, 43 Stat. 463; D.C.Code §§ 1-2009; 8-101 (1981), the Commission established a national park encompassing the Georgetown Waterfront area. In October, 1984, the NPS stated its intention to enter into the proposed exchange with WHA.

The process of valuing the interests to be exchanged in the NPS-WHA agreement began in December, 1983. NPS returned WHA’s initial appraisal submitted to it in January, 1984 for consideration of additional economic and valuation factors. Another appraisal was submitted in May, 1984, which NPS also concluded would need to be revised. WHA’s final appraisal was received on July 20, 1984. Thereafter, NPS proceeded to evaluate and analyze the appraisal and concluded that the interests exchanged were of “approximately equal value” in accord with 16 U.S.C. § 460Z -22(b).

After concluding its appraisal analysis, NPS announced its intention to enter into the proposed agreement in October, 1984. WHA and NPS executed a deed and an escrow agreement for the exchange on January 7, 1985. The agreement included the provisions for the scenic and access easements along the Waterfront, the scenic easement through Phase I, the landscape and perpetual maintenance agreements, the reconstruction of the C & 0 Canal tidelock, and the modification of the height restriction on Parcel G to allow a 52 foot building on the southern portion and a 60 foot building on the northern portion. The attached map, prepared by the defendants and utilized at the motions hearing (Exhibit 1), illustrates the proposed exchanges. A condition precedent to the agreement is the $1 million payment by WHA for construction of a waterfront park between 31st Street, N.W. and Wisconsin Avenue, N.W. The organizational and institutional plaintiffs in turn filed the present complaint on January 8, 1985 challenging the decision of the federal defendants.

ANALYSIS

The plaintiffs contend that the proposed exchange is unlawful because it violates 16 U.S.C. § 460/-9(c), a 1977 amendment to the Land and Water Conservation Fund Act of 1965, 16 U.S.C. § 460/-5. Alternatively, the plaintiffs argue that if the exchange is permitted, a remand is necessary either to hold a hearing on whether the statutory valuation condition has been met, 16 U.S.C. § 460/-22(b), or to supplement the record on the valuation question. In their motion for summary judgment, the defendants have raised several issues: the plaintiffs’ standing, NPS’ statutory authority to enter into the proposed exchange pursuant to 16 U.S.C. § 460/-22(b), the compliance with the public hearing requirement, id., and the support in the record for the valuation decision. Before reaching the statutory argument, the Court must consider whether plaintiffs have standing to challenge the proposed exchange.

I. STANDING

The basic criteria for standing are clear and certain.

Art. Ill requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ ... and that the injury ‘fairly can be traced to the challenged action,’ and ‘is likely to be redressed by a favorable decision____’

Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472,102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Gladstone Realtors v. City of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)). The standing requirement itself is made up of a constitutional component, the redressable injury in fact test, and a prudential component. The prudential requirements are such that the plaintiff’s complaint must allege more than a generalized grievance shared by the entire population and “that the plaintiff’s complaint fall within ‘the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’ ” Valley Forge, 454 U.S. at 475, 102 S.Ct. at 760 (quoting Association of Data Processing Service Orgs. v. Camp, Inc., 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970)). See also Glass Packaging Institute v. Regan, 737 F.2d 1083,1087-88 (D.C.Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 509, 83 L.Ed.2d 400 (1984).

Defendants contend that there is no allegation or showing that the plaintiffs actually use the national park area around which this litigation revolves or that they would be affected by the proposed development and that the injuries claimed are “undifferentiated” from that of the general public. Federal Defendants’ Memorandum in Support of Motion to Dismiss or for Summary Judgment at 5. They do not appear to challenge the zone of interests requirement, but rather focus on the injury in fact and generalized grievance principles. There should be little doubt that the organizational plaintiffs have standing to pursue an action on behalf of their members who contend that they would be injured by the proposed exchange. The Supreme Court has clearly held that the injury in fact test is satisfied where an environmental or aesthetic harm is claimed if the organization demonstrates that its members use the area and “claim[] that the specific and allegedly illegal action of the Commission would directly harm them in their use of the natural resources of the ... Area.” United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973). The fact that the harm is generalized does not diminish their claim to standing. Id. Cf. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (although a generalized environmental and aesthetic injury can constitute an injury in fact, plaintiff, who did not show a direct injury through its members use, did not have standing to sue).

The organizational plaintiffs have submitted an affidavit demonstrating that its members use the area affected by the proposed exchange. March 30, 1985 Affidavit of Ann Satterthwaite at Hit 4, 5. The fact that the government is surrendering only air rights, rather than a parcel of property, does not diminish the injury. The alleged injury resulting from the exchange, namely taller structures on Parcel G, would directly impact the users of neighboring Rock Creek Park or the Potomac River. This injury is independent of the plaintiffs’ desire to have the entire area converted into a federal park and thus is a more concrete injury than a “disappointed dream.” The harm occurs only when the height restriction is lifted as evidenced by the fact that Parcel G is currently privately held, yet plaintiffs are claiming no injury from the fact that the area is not an entire federally owned national park. The plaintiff organizations have satisfactorily established that they have standing to challenge the action taken by the National Park Service. Capital Legal Foundation v. Commodity Credit Corp., 711 F.2d 253, 259 (D.C.Cir.1983). See also Glacier Park Foundation v. Watt, 663 F.2d 882 (9th Cir.1981) (party seeking to challenge award of concession contract in national park had standing to sue because its economic and aesthetic interests were within the zone of interests); National Audubon Society v. Hodel, 606 F.Supp. 825, 831-33 (D.Alaska 1984) (organizations had standing to seek declaratory relief to prevent a proposed land exchange in Alaska authorized by the Secretary of Interior pursuant to statute which allows the exchange if it is determined to be in the “public interest” where the lands exchanged are of unequal value).

The determination of an institution’s standing is also governed by the same principles as that which controls individual standing — the injury in fact test. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982) (“If, as broadly alleged, petitioners’ steering practices have perceptibly impaired HOME’S ability to provide counseling and referral services for low-and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact”). The allegations in the affidavit submitted on behalf of the Human Environment Center indicates that pursuit of its goals would be injured by the proposed exchange. A.pril 3, 1985 Affidavit of Sydney Howe at 1Í 3.

II. STATUTORY INTERPRETATION

A. 16 U.S.C. § 460/-22(b)

The defendants rely on 16 U.S.C. § 460/ -22(b) [“§ 22(b)”], a 1968 amendment to the Land and Water Conservation Fund Act, sufra, for their authority to proceed with the proposed land exchange. Section 22(b) provides:

Exchange of lands; other disposal; equal land values
b) The Secretary of the Interior is authorized to accept title to any non-Federal property or interest therein within a unit of .the National Park System or miscellaneous area under his administration, and in exchange therefor he may convey to the grantor of such property or interest any Federally-owned property or interest therein under his jurisdiction which he determines is suitable for exchange or other disposal and which is located in the same State as the non-Federal property to be acquired: Provided, however, That timber lands subject to harvest under a sustained yield program shall not be so exchanged. Upon request of a State or a political subdivision thereof, or of a party in interest, prior to such exchange the Secretary or his designee shall hold a public hearing in the area where the lands to be exchanged are located. The values of the properties so exchanged either shall be approximately equal, or if they are not approximately equal, the values shall be equalized by the payment of cash to the grantor from funds appropriated for the acquisition of land for the area, or to the Secretary as the circumstances require. (Emphasis in original).

Defendants contend that § 22(b) permits the exchange of park land and that they have satisfied the conditions imposed by the statute. Therefore, they claim that the proposed exchange is lawful.

The Court does find that some of the conditions imposed by the statute have been satisfied by defendants. Initially, the interest in property accepted by the Park Service from Washington Harbor is within a national park — the Georgetown Waterfront Park, created in August, 1984. Secondly, the easement on Parcel G is under the jurisdiction of the Secretary of the Interior and is located in the same state (the District of Columbia) as are the interests acquired from Washington Harbour.

The Court further finds that Congress contemplated that land under Park Service jurisdiction could be exchanged under the authority of § 22(b). The statute, as an amendment to the Land and Water Conservation Fund Act of 1965, provided for additional sources of revenue for the fund and also included miscellaneous provisions for dealing with land acquisition by the federal government. The legislative history of § 22(b) indicates that the House version of the bill originally contained language that permitted only federal land within the same unit as the land received to be exchanged. Since the statute states that the land received must be within the national park system, the legislators, by implication, intended to include park land as land which could be exchanged. See Conf. Report No. 1598, 90th Cong., 2d Sess. reprinted in 1968 U.S.Code Cong. & Admin.News 2613, 2632. The Senate version, which required that the federal land exchanged be only within the same state as the received land, was eventually adopted. One reason the Senate version was enacted was presumably due to the Secretary of Interior’s letter to Senator Henry Jackson, chairman of the Senate committee considering the bill, which stated that

The section as written, however, would not be of substantial value because it authorizes only the exchange of Federal property located within the boundaries of the park unit involved. There is a limited amount of Federal property within a park boundary that could be utilized for exchange purposes.

S.Rep. No. 1071, 90th Cong.2d Sess. 16, reprinted in 1968 U.S.Code Cong. & Admin.News 2613, 2626.

Further, Senator Wayne Morse, who was deeply involved in shaping the final version of the legislation, inserted a speech he had previously delivered to constituents into the Congressional Record which stated his understanding of the bill. “The language is so broad that it would, in effect, permit a Secretary of the Interior, as I said, to trade off even part of one park in a State to create another.” 114 Cong.Ree. 11011 (April 30, 1968) (Sen. Morse). Senator Morse was instrumental in getting a provision inserted in the bill which excluded timber lands harvested under a sustained yield program from federal lands which could be exchanged. Id. at 11009-11012. No such similar exclusion was made for park land. Therefore, it is reasonable to construe Congress’ intent to allow park land to be exchanged under this provision. See also Commonwealth of Pennsylvania v. Morton, 381 F.Supp. 293, 298 (D.D.C.1974).

B. 16 U.S.C. § 460/ -9(c)

In seeking relief before this Court, the plaintiffs rely on a 1977 amendment to the Land and Water Conservation Fund Act of 1965, supra. That amendment, 16 U.S.C. § 460/ -9(c) [“§ 9(e)”], was enacted some nine years after § 22(b). The plaintiffs claim that the defendants have violated § 9(c) and that they are thus precluded by law from engaging in the exchange. Section 9(c) provides:

(c) Boundary changes; donations
Whenever the Secretary of the Interior determines that to do so will contribute to, and is necessary for, the proper preservation, protection, interpretation, or management of an area of the national park system, he may, following timely notice in writing to the Committee on Interior and Insular Affairs of the House of Representatives and to the Committee on Energy and National Resources of the Senate of his intention to do so, and by publication of a revised boundary map or other description in the Federal Register, (i) make minor revisions of the boundary of the area, and moneys appropriated from the fund shall be available for acquisition of any lands, waters, and interests therein added to the area by §uch boundary revision subject to such statutory limitations, if any, on methods of acquisition and appropriations thereof as may be specifically applicable to such area: Provided, however, That such authority shall apply only to those boundaries established subsequent to January 1, 1965; and (ii) acquire by donation, purchase with donated funds, transfer from any other Federal agency, or exchange, lands, waters, or interests therein adjacent to such area, except that in exercising his authority under this clause (ii) the Secretary may not alienate property administered as part of the national park system in order to acquire lands by exchange, the Secretary may not acquire property without the consent of the owner, and the Secretary may acquire property owned by a State or political subdivision thereof only by donation. Prior to making a determination under this subsection, the Secretary shall consult with the duly elected governing body of the county, city, town, or other jurisdiction or jurisdictions having primary taxing authority over the land or interest to be acquired as to the impacts of such proposed action, and he shall also take such steps as he may deem appropriate to advance local public awareness of the proposed action. Lands, waters, and interests therein acquired in accordance with this subsection shall be administered as part of the area to which they are added, subject to the laws and regulations applicable thereto. (Latter emphasis added).

The purpose of the 1977 amendment was to establish “a special account to expeditiously acquire the backlog of lands previously authorized for inclusion in our national park system____” H.R.Rep. No. 156, 95th Cong., 1st Sess. 2 (1977). The amendmeftt also included provisions to allow the Secretary of the Interior to make minor boundary changes in certain national parks and to accept qualifying land adjacent to a national park by donation. Id.

Section 9(c)(ii) permits the Secretary of Interior to acquire land adjacent to a national park by exchange, provided that “the Secretary may not alienate property administered as part of the national park system in order to acquire lands by exchange.” That section prohibits the proposed exchange because of the unique geography of the land involved. Immediately adjacent to the Georgetown Waterfront Park authorized in 1984 is another unit of the national park system — Rock Creek and Potomac Parkway. The body of water known as Rock Creek, national park property, is immediately adjacent to an interest in land which will be acquired by the federal government — the public access easement on the west bank of Rock Creek. See attached map, Exhibit 1. In order to obtain that interest in land, the government is exchanging national park service property, the restrictive height easement. Therefore, the proposed exchange violates the express caveat of § 9(c) that no park service property be exchanged to acquire land adjacent to a national park. The Court is faced with resolving the apparent conflict between the two statutes.

C. § 9(c) is the Applicable Statute

The Court initially notes that the two statutes in this case are not in fact, inconsistent, see infra at 24-25, but only lend themselves to an apparent conflict with the unique set of facts here presented — where two national parks border each other and where the private land to be acquired within one park is situated exactly adjacent to the neighboring park. The Court’s interpretation of the interplay of the two statutes is limited by the facts of this case. The defendants’ view that the two statutes apply in two distinct geographic spheres, § 22(b) where land is acquired within a national park and § 9(c) where land is acquired adjacent to a national park, is generally the correct method to view a proposed exchange. However, where, as here, there is an intersection of the two spheres, the Court must decide which statute is applicable.

Defendants initially argue that the March 9, 1984 opinion of the Office of the Solicitor of the Department of the Interior, approving the proposed exchange pursuant to § 22(b), is entitled to considerable deference by this Court. Federal Defendants’ Motion for Summary Judgment at Exhibit 4. The Supreme Court has recently explained the standard of review that a court must give to an agency interpretation. The Court initially held that if the language of the statute is clear, the agency and the court must heed the specific language. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., — U.S. -,---, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). However, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. 104 S.Ct. at 2782. The specific problem of the limited interplay between § 22(b) and § 9(c) is not addressed in the latter statute. Thus, this Court’s review of the agency’s determination is limited to determining whether the agency opinion was “reasonable.” Id. Accord State of Montana v. Clark, 749 F.2d 740, 745-46 (D.C.Cir.1984).

The Court finds that in light of the language of § 9(c), the agency’s interpretation of the interaction between the two statutes was unreasonable. The agency opinion concluded:

We have also reviewed the applicability of the provisions of 16 U.S.C. § 406/ -9(c) (1982). This is a limited exchange authority involving the expansion of boundaries established by legislation subsequent to January 1,1965. This authority is not applicable to the proposed exchange. The proposed exchange does not involve a change in boundaries of a specific park unit established subsequent to January 1, 1965 for the purposes specified in § 460/ -9(c). Rather, as indicated above, the exchange involves establishing new park areas under the authorities unique to units of the National Park System within the District of Columbia. For exchanges such as are involved here, the broader provisions of 16 U.S.C. 460Z -22(b) are applicable. 16 U.S.C. 460/ -22(b) was not repealed by implication upon the passage of 16 U.S.C. 460/ -9(c).

Exhibit 4, supra, at 3-4.

The agency’s decision was based on a clearly erroneous interpretation of § 9(c). The agency held that § 9(c) was not applicable to the proposed exchange because it is only a provision dealing with the change of park boundaries in parks established after January 1, 1965. The agency was apparently examining clause (i) of § 9(c) which deals with boundary changes. This is especially evident by the agency’s use of the 1965 date. That date affects only clause (i) because of its placement in the statute. “ ‘[WJhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Russello v. United States, 464 U.S. 16, -, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983) (quot ing United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)). Accord Persinger v. Islamic Republic of Iran, 729 F.2d 835, 843 (D.C.Cir.1984). Further, the plain language of § 9(c) is such that the boundaries clause is separate from the adjacent land clause. Cf American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982) (plain language of a statute is conclusive absent expressed contrary legislative intent). The legislative history reinforces Congress’ intent that the two clauses of § 9(c) be read separately. The Senate Report on the bill distinguishes between the two clauses when it lists the Secretary’s authority to make boundary changes and to accept adjacent land as separate powers. S. Rep. No. 162, 95th Cong., 1st Sess. 6, reprinted in 1977 U.S.Code Cong. & Admin.News 322, 326. See also 123 Cong.Rec. 16689 (May 25, 1977) (Rep. Burton) (listing the separate amendments to the legislation). Thus, the agency’s interpretation of § 9(c) is not conclusive because it is not reasonable.

In determining which statute controls the proposed exchange, the Court is guided by the general principle of statutory construction that it should “ ‘find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested.’ ” Commissioner of Internal Revenue v. Engle, 464 U.S. 206, -, 104 S.Ct. 597, 604, 78 L.Ed.2d 420 (1984) (quoting NLRB v. Lion Oil Co., 352 U.S. 282, 297, 77 S.Ct. 330, 338, 1 L.Ed.2d 331 (1957) (Frankfurter, J., concurring in part and dissenting in part)). At the recent motions hearing, plaintiffs argued that § 9(c) could be viewed as a repeal by implication of § 22(b)’s authority to exchange park land. Plaintiffs, however, further argued that if § 22(b) permitted exchange of park land, that was a repeal by implication of the Organic National Park Service Act of 1916, 16 U.S.C. § 1 et seq. These views are rejected.

Implied repeals are generally disfavored by courts. See, e.g., St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 787-88, 101 S.Ct. 2142, 2150-2151, 68 L.Ed.2d 612 (1981); Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974); Executive Limousine Service, Inc. v. Goldschmidt, 628 F.2d 115, 120 (D.C.Cir.1980). It is not necessary to accept the plaintiffs' argument that § 9(c), in effect, revoked NPS’ authority contained in § 22(b) to exchange park land. Rather, § 22(b) states that before the Secretary may convey federal property, he or she must determine that it “is suitable for exchange.” 16 U.S.C. § 460Z-22(b). If the exchange has the effect of triggering § 9(c) because the land received is adjacent to a national park, then the park land is no longer “suitable for exchange.” This comports with the maxim of statutory construction “that statutory provisions, whenever possible, should be construed so as to be consistent with each other.” Citizens to Save Spencer County v. United States Environmental Protection Agency, 600 F.2d 844, 870 (D.C.Cir.1979). Moreover, this interpretation ensures “that the maximum possible effect should be afforded to all statutory provisions, and, whenever possible, none of those provisions rendered null or void.” Id.

The determination that § 9(c) precludes the proposed exchange is supported by the congressional declaration of policy behind national park service legislation, 16 U.S.C. § 1 et seq., and by the history of the restrictive height easement on Parcel G. In a recent congressional document, Staff of House Comm, on Interior and Insular Affairs, 98th Cong., 2d Sess., Land Acquisition Policy and Program of the National Park Service, (Comm. Print 1984), basic issues of park land acquisition were examined.

[O]ne cannot address acquisition issues, without looking at the fundamental purpose of the National Park System itself. Under the so-called Organic Act of 1916 which established the National Park Service, the Congress said that the purpose of the parks is ‘to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.’

Id. at 26 (quoting 16 U.S.C. § 1).

Since the purpose of the 1916 Organic Act is to protect and conserve all park land, the interests of the neighboring national park, Rock Creek and Potomac Parkway, must weigh heavily in determining the applicable statute. The history of the government’s interest in obtaining the restrictive easement is such that it was obtained for the express purpose of protecting the view from Rock Creek and Potomac Parkway. Plaintiffs have submitted a March 21,1985 affidavit of John Nolen, Jr., Director of Planning at the National Capital Park and Planning Commission (“NCP & PC”) when the easement was obtained. He stated that two tall cement elevators were located on Parcel G at the time that the C & 0 Canal, with the exception of 19 parcels, was sold to the United States. Nolen Aff. at 1T1T 8-10. The government found the elevators to be intrusive on the Parkway and eventually it was able to negotiate the restrictive easement to protect the view and to protect adjacent Rock Creek Park. The agreement contained the concession that the easement would not be effective in the first two years after the deed was signed. The deed was eventually signed in 1941. Nolen Aff. at ¶¶ 12-14. Mr. Nolen concludes in his affidavit that “[t]he covenant restricting the height of any construction to ground level uses was a fortuitous answer to the threat of any intrusive usages at the junction of two major elements of the park system of the nation’s capital, i.e., the C & 0 Canal and the Rock Creek and Potomac Parkway.” Id. at ¶ 16 (emphasis in original). Further, at the January 17, 1984 hearing, John Parsons of NPS, stated “that the intent of [the 1941] agreement was to restrict building heights adjacent to park lands, adjacent to Rock Creek Park, as well as what was then the remnants of the C & 0 Canal.” Plaintiff’s Motion for Summary Judgment, Exhibit C at 5. He also stated that the thrust of restrictive height easements was “to protect park resources.” Id. Section 9(c) directly addresses the issue of adjacent park land; thus its application to the proposed exchange is in keeping with the philosophy of park service legislation and the policy behind the initial acquisition of the restrictive easement on Parcel G.

Defendants, however, contend that the proposed exchange is more attune with the Organic Act in that they claim the net effect of the exchange will be to provide more general access to the Georgetown Waterfront area through the scenic and public access easements. However, there have been recent indications that Congress prefers the practice of purchasing land rather than alternative methods such as easements or land exchanges. See, e.g., House Comm, on Interior and Insular Affairs, Land Acquisition Policy at 6-7, 26 (Comm. Print 1984). The Committee noted problems associated with easements such as the cost of monitoring and enforcing them and their decreased effectiveness over time. Id. at 29-30. The Secretary of the Interior’s unwillingness to purchase the private property on the Georgetown Waterfront (perhaps due to lack of funds), and thus the resort to a “second best” option, will not cure the legal defect inherent in the exchange.

Moreover, the proposed development of the private property within the Georgetown Waterfront Park is directly contrary to congressional policy. Defendants have placed themselves in a difficult dilemma in that a national park, which encompasses the WHA private property, was created in order to cause the exchange to fall within § 22(b). Yet, Congress has repeatedly reaffirmed its intention that the amendments to the Land and Water Conservation Fund Act of 1965 be used to further the goal of acquiring all private inholdings within national parks. See, e.g., S.Rep. No. 162, 95th Cong., 1st Sess. 6, reprinted in 1977 U.S.Code Cong. & Admin.News 322, 326 (“the committee clearly recognizes that the intent of Congress is to eventually acquire all inholdings located in the national park system”); 123 Cong.Ree. 16690 (May 25, 1977) (Rep. Sebelius) (the 1977 amendments were necessary “to promptly eliminate the adversity of private inholdings within the public’s national park areas... ”). The government’s facilitation of the development of a hotel and office complex within a national park effectively eliminates that goal because the cost of eventually acquiring the inholding would be prohibitive. During the debate on the 1977 amendments, a member of Congress commented that after acquiring developed inholdings in national parks “the Government should plan to remove the structures and development in a reasonably expeditious manner.” 123 Cong.Ree. 10205 (April 4, 1977) (Rep. Sebelius).

The existence of 16 U.S.C. § 460Z -9(c) and the particular facts of this case compel the conclusion that the government’s restrictive height easement on Parcel G is not “suitable for exchange” within the authority of 16 U.S.C. § 460Z -22(b). That exchange must, therefore, be enjoined.

      . The National Park Service is a unit within the Department of the Interior. 16 U.S.C. § 1.

      . Because they raise the question of standing, the federal defendants’ motion is a motion to dismiss or for summary judgment. With the exception of the standing argument, the briefs submitted by the federal defendants and the defendant-intervenors raise identical arguments.

      . The Georgetown Waterfront extends along the Potomac River from the Potomac Palisades to the west and Rock Creek to the east.

      . The purpose and the history of the easement are described infra at 26-27 (Aff. of John Nolen, Jr.).

      . Lot 102, square 1173, is located between 30th and 31st Streets, N.W., south of K Street, N.W., and north of the Potomac River.

      . Lot 81, Square 1171, is located between 30th Street, N.W., and Rock Creek Park, south of K Street, N.W., and north of an unopened extension of Virginia Ave., N.W.

      . Lot 97, Square 1172, is located between 30th Street, N.W., and Rock Creek Park, south of an unopened extension of Virginia Ave., N.W., and north of an area, owned by the federal government, along the Potomac River known as the "Mole.”

      . The National Capital Planning Commission, an independent federal agency, is responsible for acquiring all NPS land in the District of Columbia. 43 Stat. 463; D.C.Code §§ 1-2009; 8-101 (1981).

      . This authority was pursuant to 16 U.S.C. § 460 /-22(b). See infra at 21-24.

      . The Georgetown Waterfront Park has as its boundaries K and Water Streets, N.W. on the north, the Potomac River on the south, Rock Creek and Potomac Parkway on the east, and Palisades Park (formerly Potomac Palisades Parkway) on the west.

      . NPS made its determination that the valuation was approximately equal through a three step analysis. The first step compared the value of the proposed exchange of easement interests. That analysis concluded that WHA received a net benefit of approximately $2.1 million. The second step analyzed the costs of the fixed improvements on federal land and on the public access areas. NPS concluded that the cost to WHA of making those fixed improvements would be $2.2 million. The third step was to analyze the annual costs of WHA’s landscape maintenance obligations, which it had agreed to undertake in perpetuity. NPS concluded that the first year cost of the maintenance would be $150,000. NPS claims that it did not capitalize either the third step maintenance costs or WHA’s $1 million contribution for adjacent park development because the approximately equal standard had been met after the first two stages in that NPS received a net benefit of $102,000 through the easement and improvement agreements. Fish Aff. at ¶¶ 30, 31.

      . It is clear that plaintiffs are within the zone of interests sought to be protected by the National Park Service legislation at issue. See 16 U.S.C. § la-1 ("these [national park system] areas derive increased national dignity and recognition of their superb environmental- quality through their inclusion jointly with each other in one national park system preserved and managed for the benefit and inspiration of all the people of the United States ...”).

      . The plaintiff, Environmental Policy Institute, has not submitted a similar affidavit in support of standing.

      . Plaintiffs, in oral argument, belatedly raise the issue that NPS had not complied with the § 22(b) requirement that a public hearing be held on the suitability question. The January 17, 1984 hearing satisfied that requirement. NPS believed that an environmental review hearing satisfied the statutory requirement on the suitability issue. Exhibit 4 to Federal Defendants' Motion for Summary Judgment at 3. The agency determination is entitled to deference and will not be disturbed. Cf. discussion at 21-22 infra. Plaintiffs, however, argue that no public hearing was held on the valuation question. They claim that this is a violation of § 22(b), especially in light of the fact that their counsel, on July 2, 1984, requested that such hearing be held. Exhibit 9 to Federal Defendants’ Motion for Summary Judgment. That request was denied on July 12, 1984. Exhibit 10 to Federal Defendants’ Motion for Summary Judgment.
      The critical question in this respect is whether § 22(b) contemplates a NPS hearing on valuation. It is clear that the valuation question could not have been fully aired at the January, 1984 hearing as the appraisal data were not yet available. Exhibit 10, supra, at 2 ("This final appraisal will not be available to us until mid July at which time we will perform our final review"). Given the Court’s decision- on the statutory issue, there is no need to solve the dilemma left by the murky legislative history on this issue. See, e.g., 114 Cong.Rec. 11010 (April 30, 1968) (Sen. Morse).

      . Because the Court concludes that the statutory scheme prohibits the proposed exchange, the question of the rationality of NPS’ approximately equal value decision need not be reached.

      . Senator Morse’s statement was in the context of his attempt to persuade the Senate to insert the public hearing and timber land restriction provision in the bill.

      . The decision in Morton was announced in 1974, three years prior to the enactment of 16 U.S.C. § 460/-9(c). Therefore, the Court’s citation of it is intended only to address the purpose of § 22(b) and does not address the issue of the interaction of § 22(b) and § 9(c). See infra at 21-29.

      . The parties represented at the hearing that Rock Creek and Potomac Parkway technically encompasses Rock Creek, Rock Creek Park, and the road known as Rock Creek and Potomac Parkway.

      . The reasonableness standard, as opposed to the arbitrary or capricious standard, is employed where the delegation to the agency to interpret an ambiguous statute is implicit rather than explicit. Chevron, U.S.A., 104 S.Ct. at 2782. Accord State of Montana v. Clark, 749 F.2d 740, 745-46 (D.C.Cir.1984).

      . Although containing the same interpretive error concerning the view of § 9(c) as only a boundary modification provision, even the Department of the Interior, at one time, recognized that the effect of the exchange must be examined to determine the applicable statute.

        If the effect of the exchange is to create a boundary modification, the more stringent requirements of the 1977 amendments apply. However, if the exchange does not involve a boundary revision, section 460/-22(b) authorizes the exchange of park lands for private lands.
      August 2, 1978 Letter from the Office of the Solicitor, Department of Interior to Director, NPS, Defendant-Intervenors’ Motion for Summary Judgment, Exhibit G at 5. (emphasis added).

      . NCP & PC is a forerunner of the National Capital Planning Commission. Mr. Nolen served NCP & PC for more than 20 years in several important capacities, including City Planner, Director of Planning, and Director.