A dispute between two state agencies over gamelands along the Blair County/Centre County line could turn into a precedent-setting case if it is decided by a judge.
The Pennsylvania Game Commission is asking the Court of Common Pleas of Blair County to dismiss a move by PennDOT to use eminent domain to extend I-99 through gamelands on Bald Eagle Mountain. In paperwork filed late Tuesday the commission questioned whether or not PennDOT can condemn land that is already held in the name of the commonwealth for use by another state agency.
PennDOT plans to take 68 acres of the 1,946-acre Tract 278 but the commission and Citizens for Pennsylvania’s Future (PennFuture), a state environmental group, are working toward having PennDOT take an alternative route, along Route 220.
PennDOT initiated its eminent domain proceeding Aug. 9. The condemnation includes a one and one-half acre construction easement. Negotiations between the commission and the highway department are ongoing. A date for a hearing has not yet been set.
“It’d be difficult to put a timeline on this,” Jerry Feaser, commission press secretary, told The Daily News. “We had to make a response to the (PennDOT) filing.”
In the brief filed Tuesday, which supports its preliminary objections filed Sept. 12, the commission said the question of one state agency condemning ground belonging to another is a novel one. The commission reported that there are a number of cases addressing the condemnation of land that is already being used for public purposes but none involving two state agencies.
Feaser would not elaborate on negotiations. He said PennDOT made an offer that the commission rejected and said the commission subsequently made a counter offer.
PennDOT officials told The Daily News, for a story a month ago, that an offer to the commission included building a public access to Tract 278’s Parcel Number Three.
Feaser said the commission will take into consideration what residents have to say.
“Any negotiation that’s finalized will ultimately need to be approved by the board of game commissioners,” said Feaser. “There will be an opportunity for public comment — on the negotiation end.”
A month ago PennFuture filed a petition to intervene in the condemnation by PennDOT. The petition, filed on behalf of the Pennsylvania Sportsmen’s Clubs Inc. and the Bald Eagle Ridge Protection Association, challenged the issue of a final Department of Environmental Protection permit for the I-99 extension.
George Khoury, district engineer with PennDOT’s District Two, said there is no word yet on when the final permit from DEP might be issued.
“We have supplied DEP with follow up information, after a hearing with DEP about a month ago” he said. “They are evaluating what we have submitted to them.”
“We obviously would hope to have the permit in order to let the project begin in December,” added Khoury. “We don’t know what litigation might ensue if the permit is issued.”
Khoury said it is still hoped that the commission and PennDOT can come to an agreement through negotiation. He said having to challenge another state agency for use of ground is unfamiliar territory for PennDOT.
Game Commission officials charge that the use of the gamelands cannot legally be changed.
A portion of the commission’s Tuesday filing read: “The generally accepted rule in the United States is that property already devoted to a public use cannot be appropriated for another public use inconsistent with the prior use absent express legislation to that effect.”
The commission also charges that destruction of “a substantial part” of state game lands violates the Pennsylvania Constitution.
The commission reported that if a hearing is scheduled it will show that the gamelands is forested with mature trees and contains a number of spring seeps, perennial streams and vernal pools which provide recharge to large wetland areas on the side and at the base of Bald Eagle Mountain immediately to the north of the condemned tract.
The commission said the wetlands at the base of the mountain provide habitat for the matted spike rush, a Pennsylvania threatened species. Additionally the National Audobon Society has designated Bald Eagle Mountain an Important Bird Area.
PennDOT officials maintain that the decision to go along the side of the mountain came after eight years of study and has the least cultural and environmental impact.
If the DEP permit is issued construction on the extension could begin next year with the road opening in 2007.
