Opposition — Board of Supervisors v. Coleman

—— _e—

Bupreme Court, U R.

IN THE ocr 4

Supreme Court of the Writed States «~

OcTOBER TERM, 1

No. 76-231

Boarp oF Supervisors OF Farrrax OCouNTy, VIRGINIA

AND THE CoUNTY OF NassAU, NEW YORK,

Petitioners,

v.

Wuu1A4M T. CoLEMAN, JR., et al.,

and

BritTIsH AIRWAYS, COMPAGNIE NATIONALE AIR FRANCE,

AND Paciric LEGAL FounpDATION,

Respondents.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENT PACIFIC LEGAL

FOUNDATION IN OPPOSITION

RonALD A. ZUMBRUN

RAYMOND M. MoMBOISSE

PactFic LEGAL FounDATION

455 Capitol Mall

Sacramento, California 95814

JOHN H. MIDLEN, JR.

MIpDLEN & REeppy

1990 M Street, N.W.

Washington, D. C. 20036

Counsel for Respondent

Pacific Legal Foundation

GLENN E. Davis

Pactric LEGAL FounDATION

1990 M Street, N.W.

Washington, D. ©. 20086

Of Counsel

14837-10.76 Passs or Brnow S. ApamMs Paovrinc, Iwc., Wasnincron, D. C.

:

‘

ee a RR. la ee ee

SUBJECT INDEX

Page

EE sb dn dunes $60%104204405400000000000% 1

Oe ee ee eee eee 2

rE 0 ls ant u thee bibhetéeneecencees 2

I ode oak aseuceg béscudasesweeecsses 2

SPE GET GP GOD oo vac cccsoncvovceveveceseces 2

Neen i ee eee 7

I. The Secretary’s Decision To Allow a Trial

Period of Commercial Supersonic Transport

Flights Into the United States in Order To Aid

in Promulgation of an SST Noise Regulation

Was Within His Authority and Discretion .... 8

II. The Secretary’s Decision Was Made Solely on

ee Pe Oe TD I oon occ ciccevcecccevcs 13

PT Ghueeieueenkeuse tenes ides eeundewestewns 16

TABLE OF AUTHORITIES CITED

CAsEs:

Board of Supervisors of Fairfax County, Virginia, et

al. v. MeLueas, Civil No, 76-0139 (D. D.C.) .7, 10, 13, 15

National Cable Television Ass’n. v. U.S., 415 U.S. 336,

{jie eae 7

Teleprompter Corp. v. CBS, 415 U.S. 394, 407-408

i ctiidet choc ea tee see eed wean danve-s< 7

United States v. Johnson, 268 U.S. 220, 227 (1925) .. 8

Rice v. Sioux City Cemetery, 349 U.S. 70, 74 (1953).. 8

Udall v. Tallman, 880 U.S. 1, 16 (1965) ............. 11

Power Reactor Development Co. v. International Union

of Electrical Workers, 367 U.S. 396 (1961) ...... 11

Norwegian Nitrogen Products Co, v. United States,

gS nn een 11

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402 (1971)

il Table of Authorities Cited Continued

Page

STATUTES:

49 U.S.C. § 1431 (Federal Aviation Act of 1958)....2, 5,6

49 U.S.C. § 1655(e), 1657 26... cece eee eee teen renee 11

42 U.S.C. § 4321 (National Environmental Protection

Act) Perr reTTTTTeTTT oe 6

ADMENISTRATIVE REGULATIONS:

40 Fed. Reg. 14093 .......c ccc eeee cece ceeeeeseerees 6

41 Fed. Reg. 6270, 6274-6275 (Feb. 12, 1976) .......-- 6

MISCELLANEOUS:

118 Cong. Ree. 18645 (1972) ......- eee e cece creer 12

118 Cong. Ree. 644-645 (1972) (Sen. Tunney) ....2<. 12

OruER AUTHORITIES:

“The Seeretarv’s Decision on Concorde Supersonic

Transport,’’? February 4, 1976 [The Honorable

William T. Coleman, Jr., Secretary of the U.S.

Department of Transportation ]

at P. 3 .....cccccccvcsecccccsccscccsssss 1,4, 12

at pes. 15-16 2... . cc eee eee eee eee ee eeeees 9

at p. 17 ...ccccccccecevvscccccvessessnsess :

at p. 5B ....cccccccccccvsccccscccceseseees 12

at p. 3 ..ccccccccccecccsteseuee seen en nmmEE 14

oe

IN THE

Supreme Court of the United States

OcToBER TERM, 1976

No. 76-231

BoarD OF SupeRviIsoRS OF FarrRFAX CouNTY, VIRGINIA

AND THE CoUNTY oF Nassau, NEw York,

Petitioners,

Vv.

WituiAM T. CoLeMAN, JR., et al.,

and

3RITISH AIRWAYS, COMPAGNIE NATIONALE AIR FRA©ceR,

AND Pactric LEGAL FouNDATION,

Respondents.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENT PACIFIC LEGAL

FOUNDATION IN OPPOSITION

OPINIONS BELOW

The Decision of the Secretary of the Department of

Transportation on the Concorde supersonic transport

is unreported, but copies have been lodged separately

with this Court. The Order of the United States Court

of Appeals for the District of Columbia Circuit affirm-

2

ing the Decisicn of the Secretary of Transportation is

also unreported, but is set forth in the Appendix to

the Petition for Certiorari (Pet. App. la-4a).

JURISDICTION

The jurisdictional requisites are adequately set forth

in the Petition.

QUESTIONS PRESENTED

1. Whether the decision of the Secretary of Trans-

portation to allow a limited trial period of flights of

the Concorde supersonic transport into the United

States prior to the promulgation of supersonic aireratt

noise regulations was within the authority and disere-

tion of the Secretary when such trial period is, inter

alia, for the purpose of aiding in the promulgation of

such regulations.

29, Whether the court of appeals below erred in

choosing to believe the statement of the Secretary of

Transportation that his decision to permit limited trial

flights of the Concorde supersonic transport was based

entirely upon the record before him, rather than be-

lieving the petitioners’ allegations that such decision

was influenced by other considerations not of record.

STATUTE INVOLVED

The provisions of Seetion 611 (49 U.S.C. § 1431) of

the Federal Aviation Act of 1958, as amended by the

Noise Control Act of 1972, are set forth in Pet. App.

oa-10a.

STATEMENT OF THE CASE

This case involves the ongoing attempt by the Board

of Supervisors of Fairfax County, Virginia and the

County of Nassau, New York to stop the Concorde

supersonic transport aircraft (SST) from operating

oe

3

in the United States for a test period of sixteen months.

It involves an effort to stop the development of a new,

first generation, technology which has shortened long-

distance, trans-oceanic travel time by one-half and im-

proved communications between nations. It involves

an effort by petitioners to overturn an exemplary gov-

ernmental decision which is a model of completeness

and accuracy and which carefully balances all relevant

factors—and which arrives at a conelusion extremely

favorable to the publie interest. And, this ease in-

volves an attempt by petitioners to deal a harsh blow

to two traditional friends of the United States, the

United Kingdom and the Republie of France, who

have made a massive commitment of human, techno-

logical, economic, and other resources to the project

which the petitioners would have this Court stop.

Simply put, Fairfax and Nassau Counties want to

“stop Concorde’’ because they do not like it. The los-

ing litigants do nothing more than advance a myopic

construction of a statute, the relevance of which to

this case is not demonstrated; and a question of facet

that was not aecepted by the court of appeals below.

The Coneorde SST is the result of over a decade of

cooperative effort by the governments and private in-

dustry of the United Kingdom and the Republic of

France. These two nations committed thirteen years

and $3 billion to the project. The result, the Concorde,

is capable of carrying 100 passengers at a cruising

speed of 1,300 miles per hour—twice the speed of sound.

it is presently in limited commercial operation by

British Airways and Air France on the Washington

to London and Washington to Paris routes. It has

reduced the flying time between those cities from seven

to three and one-half hours. So far, the results demon-

strate that it is a technological marvel; its chances for

|

+

commercial success are good; and it is environmentally

sound. In short, all of the dire predictions made by

Fairfax County and others below about the Concorde

have failed to materialize. On the contrary: the Con-

eorde works.

The decision to permit “ . . . limited scheduled com-

mercial flights into the United States for a trial period

not to exceed 16 months under limitations and restric-

tions ...’’! (footnote omitted) was made by the Hon-

orable William T. Coleman, Jr., Secretary of the De-

partment of Transportation on February 4, 1976. That

sixty-one page decision was made after meticulous

evaluation of a record which included: a draft envi-

ronmental impact statement (DEIS) (March 3, 1979)

by the Federal Aviation Administration (FAA); a

series of public comments on the DEIS; FAA’s inde-

pendent research on proposed Concorde operations ;

FAA’s comprehensive final environmental impact

statement (FEIS) (November 13, 1975); an unprece-

dented seven-hour public hearing conducted by the

Secretary of Transportation personally on January 5,

1976, to consider public comments on the FEIS; nu-

merous written submissions by the public following

the Coleman hearing; and an Addendum to the FEIS.

After careful consideration of numerous public com-

ments? Secretary Coleman announced his favorable

decision on February 4, 1976. Fairfax and Nassau

Counties and others sought review of that decision in

the United States Court of Appeals for the District of

1«*«The Seeretary’s Decision on Concorde Supersonic Transport”’

at 3 (Feb. 4, 1976) (hereinafter referred to as the ‘‘Secretary’s

Decision’’).

2 Pacifie Legal Foundation sponsored the oral and written tes-

timony of four expert witnesses at the hearings before Secretary

Coleman.

4)

Columbia Circuit. Pacifie Legal Foundation, as well

as Air France, British Airways, and others, sought

and were granted permission to intervene in all aec-

tions seeking review in the Court of Appeals. On May

19, 1976, that court affirmed the Secretary’s Decision

in an Order which appears at Pet. App. la-4a.

Apparently mindful of the folly of seeking review

of the numerous other aspects of Secretary Coleman’s

Decision alleged to be illegal below, Fairfax and Nas-

sau Counties now press but two claims, (a) that in

reaching his conclusion the S. cretary erred in permit-

ting limited trial commercial flights of the Coneorde

SST into the United States in the absence of a final

SST noise rule; and (b) the Secretary was untruthful

in stating he had reached his decision only upon the

materials of reeord. Neither of these two matters rises

to a level of importance worthy of consideration by

this Court. ,

Concurrently with the development of the record

which led to Secretary Coleman’s Decision, the En-

vironmental Protection Ageney (EPA) and the FAA

were moving forward with a joint effort to promulgate

a noise control rule in regard to supersonic transport

aircraft as required by § 611 of the Federal Aviation

Act of 1958, 49 U.S.C. § 1431, as amended by the Noise

Control Act of 1972 (Pet. App. 5a-10a). The Envi-

ronmental Protection Agency, as required by that

statute,” proposed SST noise standards to FAA on

* Section 611 mandates a complex series of interagency maneu-

vers before promulgation of aircraft noise rules. Briefly sum-

marized, the law requires EPA to propose a rule, but the FAA

is given ultimate authority for review and promulgation of the

rule after consultation with EPA. In the event of a disagree-

ment between the agencies, further complex negotiations and

studies are mandated.

6

February 27, 1975. The FAA published the proposal

as a notice of proposed rule making on March 28, 1975.

40 Fed. Reg. 14093. It was then the subject of public

hearings on May 16 and 22, 1975. Simultaneously, an

environmental impact statement ( EIS) under the

National Environmental Poliey Act of 1969, 42 U.S.C.

§ 4321, et seq. (NEPA) was begun. All of these steps

are mandated by § 611 which prescribes the time pe-

riods within which the FAA must commence to act

once EPA has initiated the process. The statute also

states that FAA shall act upon an EPA proposal

‘*[w]ithin a reasonable time after the conclusion of

[the public] hearing and after consultation with EPA

-++» §$611(¢)(1). Pet. App. Ta.

The EPA’s 1975 proposal was pending before FAA

at the time of Secretary Coleman’s January 5, 1976,

publie hearing on the Concorde. Part of the Seere-

tary’s consideration at that hearing was whether he

could legally allow the Concorde to land in the absence

of a final SST noise rule.

The record of that hearing closed January 13, 1976.

The next day, EPA submitted a new, substantially

revised SST noise proposal to FAA. Thus the entire

process began again—as § 611 requires. The FAA

published the proposal within thirty days. 41 Fed.

Reg. 6270, 6274-6275 (Feb, 12,1976). Publie hearings

were held on April 5, 1976, within sixty days of pub-

lication of the proposal in the Federal Register, At

present, a new EIS is being prepared.

There is presently pending in the United States Dis-

trict Court for the District of Columbia an action

brought by petitioner Fairfax County to compel the

Administrator of FAA to adopt supersonic aircraft

noise control regulations. Board of Supervisors of

Fairfax County, Virginia, et al. v. MeLueas, Civil No.

76-0139 (D. D.C.). Petitioner Fairfax has there

moved for summary judgment.

ARGUMENT

By no stretch of the imagination can petitioners be

deemed to have met the criteria suggested in Rule 19

(1)(b) of this Court for the granting of writ of cer-

tiorari. They have pointed to no conflict between the

courts below,’ or between the order below and appli-

cable decisions of this Court,’ or any important federal

question.” Nor have they demonstrated that the agency

“and court below departed from the accepted and usual

course of judicial proceedings. On the contrary, the

remedy sought—remand to a United States District

Court for the finding of facts from which may be con-

cluded the veracity of the Secretary of Transportation

—would be an extreme departure from the usual defer-

ence accorded members of the Cabinet and would, in-

deed, constitute no more than a sniping at his personal

integrity.

Concerning the noise control rule argument, peti-

tioners’ attempt to concoct an important question of

federal law is fatally weak. This case goes no further

than petitioners’ unique desire to stop one particular

type of aircraft from using certain airports in the

* National Cable Television Ass’n v. U.S., 415 US. 336, 340

(1974).

* Telcprompter Corp. v. CBS, 415 U.S. 394, 407-408 (1974).

"Td. at 399.

8

United States. It is but episodie.? They offer no

federal law the Secretary may be said to have trans-

gressed. Rather, petitioners merely allege that he has

‘“‘take[n] immoral advantage’’ of the lack of a super-

sonie noise control regulation. Pet. 7-8. The Secre-

tary’s morality was not heretofore in issue and the

Supreme Court of the United States is an inappropri-

ate forum in which to seek to find arbiters thereof.

Petitioners would also have this Court review cer-

tain documentary matters (contained in Pet. App.

17a-34a) which they attempted to offer to the court

of appeals below. In so doing, they merely ask this

Court to review facts considered and rejected below

by the court of appeals. Such an effort is hardly

worthy of the attention of a Court which, in the past,

has stated:

We do not grant a certiorari to review evidence

and discuss specific facts. United States v. John-

son, 268 U.S, 220, 227 (1925).

I,

The Secretary's Decision To Allow a Trial Period of Com-

mercial Supersonic Transport Flights Into the United

States in Order To Aid in Promulgation of an SST Noise

Regulation Was Within His Authority and Discretion.

The thrust of petitioners’ first argument is that

promulgation of an SST noise rule under § 611 of the

Federal Aviation Act was a legal condition precedent

to landings of the Concorde SST in the United States.

For various reasons, their legal analyses are in error

and their factual premises are lacking in crucial detail.

7**Snecial and important reasons’’ which may justify the grant

of a writ of certiorari imply a reach to a problem beyond the aca-

demic or episodic—Rice v. Sioux City Cemetery, 349 U.S. 70, 74

(1955).

9

The assertion that ‘‘. . . the FAA has adamantly

refused to develop supersonic Luise standards”’ (Pet.

7) could not be further from the truth. As the history

of the proposed SST noise rule reveals, the FAA has

acted diligently and in good faith in formulating such

a regulation.

As for why an SST noise rule was not promulgated

eight and one-half years ago as Fairfax and Nassau

Counties apparently claim it should have been (Pet.

7), Seerctary Coleman spoke of this in his Decision:

__. the decision not to act precipitously on super-

sonie aircraft should not be surprising in light of

the history of the development of the supersonic

transport. During the early developmental stages

of this type of aireraft, both in the Ll nited States

and Europe, the technological capacity to mini-

mize the noise levels generated by an engine suffi-

ciently powerful to drive a supersonic transport

was uncertain. Promulgation of a feasible noise

rule at that time would therefore have been highly

speculative. By the time scientists had gained

a sense of the limits on the ability to control super-

sonie aireraft noise levels, the design of the

Concorde was fixed and, for all practical purposes

immutable. (Emphasis added ) (footnote omitted)

Secretary’s Decision at 15-16.

The Seeretary’s ultimate conclusion on this issue,

made after reviewing the record and the submissions

of numerous legal memoranda to him by the publie,

was:

I must therefore conclude that the absence of a

noise rule promulgated under the Federal Aviation

Act does not compel a decision either way on

whether the Concorde should be permitted to land.

Secretary’s Decision at 17.

10

This conclusion was concurred in by the Environmental

Defense Fund* and the Eavironmental Protection

Agency. In a subsequently submitted affidavit, the

Honorable Russell Train, EPA Administrator, stated

that the decision of when to issue a generally applicable

SST noise rule is totally independent of the narrow

question of whether to allow limited, demonstration

lights of Concorde:

It was EPA’s intention that the Secretary of

Transportation take into consideration its January

13, 1976, proposal in reaching his decision on

February 4, 1976, concerning the British Airways

and Air France applications for Concorde service

into the U.S. EPA did not intend to cause the

Scerctary to postpone his decision, nor did EPA

intend to preempt the Secretary’s authority to

make «a decision on the specific issue before him,

which was whether to direct the FAA to amend the

operations specifications of the two foreign air

earriers to allow up to six daily flights of the Con-

corde into two U.S. airports, John F. Kennedy

International (JFK) and International Airport

at Dulles (LAT!), under certain restrictions, and

subiect to any subsequently-adopted, applicable

regulations,

It was EPA’s intention that the FAA in accord-

ance with the requirements of 49 U.S.C. 1451, pro-

coed as expeditiously as possible to consider and

promulgate a final rule regarding supersonic air-

eraft noise.” (Emphasis added).

S**We believe that this fact [the absence of an SST noise rule]

is without significance to your present decision.’’ Final Submission

of the Environmental Defense Fund on the Concorde SST.

* Exhibit A to Memorandum of Defendants in Opposition to

Plaintiffs’ Motion for Preliminary Injunetion, dated February 20,

1976, in Board of Supervisors of Fairfar County, Virginia, et al.

Vv. VeLuecas, Civil No. 76-0139 (D. D.C.)

11

Thus, the two agencies, EPA and DO'T" charged with

promulgation of the noise coutrol rule were in complete

accord on the legal issue: It was within the Seeretary’s

discretion to make the decision he did, allowing the

Concorde to land at Duiles and John F, Kennedy

International Airports for a limited period of time

and under stringent conditions irrespective of the

existence of a supersonic noise control rule. Tradi-

tionally, this Court, when confronted with a statutory

construction question, ‘‘shows great deference to the

interpretation given the statute by the officers or

agency charged with its administration.’? Udall v.

Tallman. 380 U.S. 1,16 (1955). Further, it is unneces-

cary to find that the ageney’s ‘construction is the only

reasonable one, or even that it is the result [the

Court] would have reached... im the first in-

stance... Id. Almost presciently this Court, in

Power Reactor Development Ce, Vv. International

Union of Electrical, Radio aud Machine Workers, 367

U.S. 396 (1961), stated:

We see no reason why we should not accord to the

[Atomic Energy | Commission's interpretation of

its own regulation and governing statute that

respect which is customarily given to practical ad-

ministrative construction of a disputed provision.

Particularly is this respect due when the admini-

strative practice at stake “involves a contempora-

neous construction of a statute by the men charged

with the responsibility of setting its machinery in

motion, of making the parts work efficiently and

emoothly while they are yet untried and new.”

Norwegian Nitrogen Products Co.v. Un ited States,

983 US. 294 (1933).

Id. at 408 (cited in Udall v. Tallman, supra, 380

U.S. at 16).

1 The FAA is an agency within the Department of Transpor-

tation. 49 U.S.C. §§ 1655(¢), 1657.

12

Nor does Secretary Coleman’s decision contravene

the remarks of Senator Tunney which petitioners offer

(Pet. 8) as the definitive statement on the legislative

history of this law.! The Senator stated that he

expected a final SST noise rule to be promulgated

«before such aircraft are in commercial service.”’

118 Cong. Ree. 18645 (1972). No final decision on

allowing the Concorde to engage in commercial service

in the United States has been made. Coleman « Feb-

ruary 4, 1976, Decision permits only a sixteen-month

demonstration period, Seeretary’s Decision at 3. The

final decision to permit commercial flights may be

years away: the sixteen-month period must elapse

and the Secretary has announced that an EIS must be

prepared and considered before his final decision is

issued. Thus, the Secretary’s non-final decision must

be deemed in compliance with Senator Tunney’s

remarks.

Furthermore, the Secretary’s decision to allow trial

flights of Concorde was intended to aid in promulga-

tion of an SST noise rule. Coleman noted in his Deci-

sion that:

The unique characteristics of Concorde noise and

the publicity that has surrounded its advent may

well aggravate the eommunity’s response to this

source of noise. This subjective characteristic of

noise response may best be evaluated through a

controlled demonstration period of sufficient length

to enable an assessment, after the initial publicity

11 A closer reading of the history of the Noise Control Act in-

dicates that Senator Tunney’s remarks were an apparent attempt

to make law via ‘‘legislative history’’ shortly after the substance

of his comment had been rejected by the House of Representatives

as an amendment. to the Noise Control Act. 118 Cong. Ree. 644-

645 (1972) (Remarks of Sen. Tunney).

13

has subsided, of community reaction to Concorde

noise. A demonstration will also enable additional

testing at various measuring points to supplement

the data contained in the EIS. The information

from this demonstration will enable us to deter-

mine whether these original Concordes should be

permitted to operate into designated United States

airports in accordance with specified operating

procedures and restrictions. It will also provide

useful information im the review and evaluation

of the EPA’s latest proposal for an SST noise

standard, although consideration of that standard

will not be delayed until the completion of this

demonstration but will proceed with deliberate

speed. (Emphasis added).

Seeretary’s Decision at 58.

His decision to allow an extremely limited number

of flights for a relatively short time was entirely rea-

sonable since it will actually foster thorough compli-

ance with § 611. It was not at all immoral.

Finally, the petitioners’ comment that they ‘‘are

without redress”? in regard to the absence of an SST

noise rule is fallacious. As noted, they are presently

actively pursuing a mandamus action to eompel the

FAA to promulgate an SST noise rule.”

Il.

The Secretary's Decision Was Made Solely on the Basis

of the Record.

Petitioners’ insinuations that the Seerctary’s Deci-

sion ‘‘was prompted by factors outside the record and

was made principally by governmental officials other

12 Board of Supervisors of Fairfax County, Virginia, et al. v.

McLucas, Civil No. 76-0139 (D. D.C.).

14

than the Secretary’’ (Pet. 10) are nothing more than

idle speculation and gossip. In the Decision which he

personally signed, Secretary Coleman states:

Today’s decision is based entirely on my review

of the EIS, on the January 5 hearing, and on my

subsequent review of the transeript and other

written materials submitted for the record. At

the public hearings, the United Kingdom’s Minis-

ter of State for the Department of Industry and

France’s Lirector of Air Transport Civil Avia-

tion Department, each testified that there was no

expressed or implied commitment that the United

States was obliged to permit the Concorde to land

in the United States, and no one has brought to

my attention any such expressed or implied agree-

ment.

Secretary’s Decision at 2.

At oral argument in the court of appeals, eounsel for

the Department of Transportation responded to Nas-

sau County’s last minute attempt to introduce the

documents (Pet. App. 17a-34a) which allegedly show

‘outside influence’? on the Concorde decision:

Mr. Catterson Feounsel for Nassau County] comes

in. in the final few minutes of the argument, and

attempts to cash in on a sort of fear that we all

have, and it’s understandable since Watergate,

that the whole thing is a fraud; that Seeretary

Coleman, when he said in his opinion that he had

only seen things on the publie record—and he says

that explicitly—must have been lying: Do not be-

lieve him.

Well, if it takes an affidavit from Secretary Cole-

man, we will supply the affidavit from Secretary

Coleman, and he will swear that he is not lying.

(Partial Tr. 7)

15

Petitioners’ contentions here are of the same nature:

they ask this Court to disbelieve Secretary Coleman’s

signed statement and urge “‘remission to the District

Court * for development of a full record, or in the

alternative, a plenary inquiry into the underlying

facts.” Petitioners’ assertions are unsubstantiated,

Secretary Coleman’s statement is entitled to substan-

tial credence, and petitioners’ claims to the contrary

simply do not rise to the level of significance required

to merit the attention of this Court.”

Further, petitioners’ assertion that these documents

were not before the court of appeals is in error. They

appeared as appendices in several of the petitioners’

reply briefs below. Counsel for the Department of

Transportation indicated at oral argument in the court

of appeals that he had no objection to the court’s read-

ing them, and in fact, asked the court to take them into

account. (Partial Tr. 7). He argued that these ‘‘docu-

13 It should be noted that the ‘‘court of first impression’’ in

this case was the agency itself (DOT) and that direct review of

the Secretary's Decision was properly brought in the court of

appeals. Petitioners initially sought review of the Secretary’s

Decision in a district court which dismissed their case for lack

of jurisdiction, indicating that petitioners should have sought

direct review of the Seeretary’s Order in a court of appeals.

Board of Supervisors of Fairfar County, Virginia, et al. v. Me-

Lucas, Civil No. 76-0139, (D. D.C.), Order of March 12, 1976.

Thus petitioners’ request here for ‘‘remission to the District Court’’

is meaningless since the question of the legality of the Seeretary’s

Decision was never properly before a district court. Therefore,

petitioners’ reliance upon Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402 (1971), is misplaced as that case was properly

brought in federal district court. Jd. at 406 n.7.

14 We are unable to perceive how the issue of the credibility of

the Secretary of Transportation fits into or meets any of the

criteria listed in this Court’s Rule 19 which requires more than

insinuations as a basis for granting the writ.

16

ments are of historical interest only.”’ (Partial Tr. 10).

Fortunately, this last minute frantic effort by Fairfax

and Nassau Counties to use the documents to prove

the existence of a ‘‘deal’’ came to nothing: the court

of appeals apparently chose to consider those docu-

ments as the historical but wholly irrelevant docu-

ments they are. In doing so, that court committed no

error.

CONCLUSION

For the foregoing reasons it is respectfully sub-

mitted that this petition for a writ of certiorari should

be denied.

Respectfully submitted,

RonaLp A. ZUMBRUN

RayMonpD M. MOMBOISSE

Pactric LEGAL FOUNDATION

455 Capitol Mall

Sacramento, California 95814

Joun H. MIpDLen, JR.

Mipien & Reppy

1990 M Street, N.W.

Washington, D. C. 20036

Counsel for Respondent

Pacific Legal Foundation

GLENN FE. Davis

Paciric LEGAL FouNDATION

1990 M Street, N.W.

Washington, D. C. 2005

Of Counsel

October 5, 1976