Petition for Writ of Certiorari — Washington Metropolitan Area Transit Commission v. United States

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VIPREME COURT. U. BB

FILED

OCT 14 1968

! JBHN F. BAWS, CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968

No. 639

WASHINGTON METROPOLITAN

AREA TRANSIT COMMISSION,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

STEWART L. UDALL, Secretary of the Interior, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

RUSSELL W. CUNNINGHAM

General Counsei

Washington Metropolitan Area

Transit Commission

1815 North Fort Myer Drive

Arlington, Virginia 22209

Attorney for Petitioner

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QUESTIONS PRESENTED FOR REVIEW..............

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STATEMENT OF THE CASE ... 1... cr cecvcrscvvees

REASONS FOR GRANTING THE WRIT ..............

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II. The Court of Appeals’ Decision Not Only Ignores

the Actual Evidence, It Is Formulated on a Doc-

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III. The Court of Appeals Failed to Consider Whether

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INDEX TO APPENDICES

APPENDIX A—Order of Court of Appeals ..............

APPENDIX B—Opinion of District Court............ ho!

Findings of District Court... 1... cece ene

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TABLE OF AUTHORITIES CITED

Baker v. Schofield, 243 U.S. 114, 37 S.Ct. 333

“Boski v. Comingore, 177 U.S. 459, 20 S.Ct. 701 (1900)

Butte and Superior Copper Co. v. Clark Montana Realty Co.,

249 US. 12, 39 S.Ct. 231

District of Columbia v. Pace, 320 U.S. 698, 64 S.Ct. 406

*Federal Trade Commission v. Universal-Rundle, 387 U.S. 244,

87 S.Ct. 1622

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“Cases chiefly relied on.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968

No.

WASHINGTON METROPOLITAN

AREA TRANSIT COMMISSION,

Petitioner,

¥,

UNITED STATES OF AMERICA,

STEWART L. UDALL, Secretary of the Interior, et al.,

Respondents.

—_—_— —— ———

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES “OURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The Washington Metropolitan Area Transit Commission,

petitioner, respectfully prays that a writ of certiorari issue

to review the order of the United States Court of Appeals

for the District of Columbia Circuit which was entered on

June 12, 1968.

OPINIONS BELOW

The opinion of the District Court is reported at 268

F.Supp. 34, and is set forth in the Appendix hereto, pp.

26-59, and the order of the Court of Appeals reversing the

btn at

Saar eS racer ns SIO LP *

hil atic at aaa age, able ea EAN IE Se IR A AE ec 0 gE BORE Oe oO = ob

order of the District Court is set forth in the Appendix, pp.

17-25.

JURISDICTION

The order of the Court of Appeals was entered on June

12, 1968. A petition for rehearing en banc was denied on

August 5, 1968; two judges would have granted rehearing,

four judges declined rehearing, and two judges did not par-

ticipate. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

QUESTIONS PRESENTED FOR REVIEW

Are regulations of the Secretary of the Interior unlawful

when they employ the double standard of (a) prohibiting

one bus carrier from operating at all on a public road, (b)

permitting another carrier to operate 52 daily trips, but

restricted as to their use after.they !eave that road, and (c)

allow others to operate more than 800 daily trips on an

unrestricted basis, when all of the buses have identical phy-

sical characteristics and perform an identical service?

May the Court of Appeals reverse a District Court’s deci-

sion’ that the evidence does not show a rational basis for

discriminatory regulations, when that reversal is predicated

and bottomed on evidence outside the trial record?

May an appeals court base its decision on “opinion” evi-

dence never adduced at the trial?

When the Secretary of Interior is authorized by law to

establish regulations necessary or proper for the use and

management of a Parkway under his jurisdiction, and he

promulgates a regulation authorizing a carrier to use that

Parkway enroute to an area off of the Parkway for a stated

purpose, does he exceed his authority when he also

attempts to control the use of the carrier’s vehicles after it

has fulfilled that purpose?

STATUTES INVOLVED

The primary statute provisions involved are:

Act of August 25. 1916 (39 Stat. 535 as amended, 16

U.S.C. $81, 3).

The primary regulatory statute provisions promulgated

by the Secretary of the Interior which are involved herein

are:

36 C.F.R. § 50.36(b)(3)(i).

STATEMENT OF THE CASE .

A highway runs along the Virginia side of the Potomac

River from the Beltway on the north to Mt. Vernon on the

south. This road, the George Washington Memorial Park-

way (Parkway), is owned by the United States and under

the control of the Secretary of the Interior (Secretary).

Regulations governing the use of the Parkway have been

promulgated by the Secretary, including its use by buses.

The scope of these regulations may be briefly summar-

ized. South of Memorial Bridge the road is open for use

by all types of buses—commuter buses, sightseeing buses,

airport buses, charter buses; of just the commuter buses,

there are more than 800 daily trips. North of Key Bridge

the Secretary’s regulations permit unlimited use of the road

by airport buses and sightseeing buses. However, severe

restrictions are placed on its use by commuter buses. The

W.V. & M. Coach Company is permitted to run commuter

service to the CIA Building and return directly, but they

may not go beyond the CIA Building to serve Virginia

suburb areas. These buses load in the District of Columbia,

then enter the Parkway. There is no pickup or discharge

of passengers on the Parkway. The buses leave the Park-

way and enter the CIA grounds. After this service was

established, the W. V. & M. Coach Company received addi-

tional certification from the Transit Commission to extend

the service from the CIA to serve points in the suburban

northern Virginia areas. D.C. Transit System, Inc., also

received certification from the Transit Commission to trans-

port passengers from Maryland and the northwest portion

of the District of Columbia over the Beltway and the

northern portion of the Parkway to the CIA. However, the

Secretary’s regulations prohibit any commuter service on

the Parkway between the CIA and the Beltway. On the

other hand, about 200 airport and sightseeing buses use ail

portions of the northern part of the Parkway daily under

the Secretary’s regulations.

This action arose below in May, 1963. when the United

States sought to block the commuter service beyond CIA as

being in violation of its regulations. W. V. & M. Coach Com-

pany brought a counteraction. D.C. Transit System, Inc.,

the Transit Commission, and the state Corporation Commis-

sion of Virginia became parties to this consolidated action

either as parties-dcfendants or bv intervention.

Early in the litigation, the United States filed a motion

for summary judgment. That motion was denied February

28, 1964.

Trial commenced in Noveraber, 1966. On April 13, 1967,

the Trial Court, Judge Sirica, entered its opinion, together

with its “Findings of Fact” and “Conclusions of Law.” A

final order was filed June 9, 1968.

The District Court stated that all parties were in accord

with the legal principles’ by which the case was to be

resolved. In essence, the regulations could be declared

invalid only if they lacked ‘‘a rational basis,’’ were arbitrary

or beyond the Secretary’s authority. The Trial Court thus

posed and answered the issue:

- In view of the broad discretion vested in the Secre-

tary and the Park Service, and in view of the limited

role of the reviewing Court, does the evidence show

a rational basis for the regulations here in issue? I

! Acknowledged by the Court of Appeals to be correct.

’

conclude that the evidence does not show a rational

basis for the regulations as they now exist. (App. p.

40)

In its opinion, the Trial Court noted that certain affidavits

of the Secretary and others had been filed in support of the

government’s motion for summary judgment. After reciting

the denial of the motion, the court went on to state that

“[slince the affidavit of the Secretary was not introduced

into evidence, it cannot be considered by the Court.”

After reciting the contentions of the Secretary, the Trial

Court rejected them, stating that they are “clearly wrong”

and that the weaknesses of the argument are “‘so manifest

that the Court has no choice except to hold that the Secre-

tary has exceeded his authority and employed means that

are not at all appropriate to the end specified in the Act of

Congress.” (App. p. 42.)

Again, at page 43, the court said that the Secretary’s

“theories do not have substantial evidence in the rec-

ord to support them and they do not provide a

rational basis for the unfair and discriminatory dou-

ble standard regulations which presently apply to the

suburban buses using the Parkway. These, neverthe-

less, are the contentions advanced by the government

and I have no alternative but to invalidate this

regulatory pattern in the absence of a rational basis

in the evidence of record.”

The District Court opinion was reversed by a panel of the

United States Court of Appeals for the District of Columbia

Circuit, by a split decision, Judge Tamm dissenting.

Relying almost exclusively upon the opinions set forth in

the affidavit of the Secretary, the Court of Appeals felt

that “the Secretary’s discrimination in the use of the Park-

way has a rational basis in the record” for the regulations.

Judge Tamm, in dissenting, stated that he concurred in the

District Court’s finding that the regulations lacked a rational

basis, for “it is inconceivable to me that the Secretary is

able to justify as reasonable and authorized in law, his action

in permitting two other bus operators to route identically

constructed buses over the Parkway while refusing to permit

a third operator, id est, [W. V. & M.] Coach Company also

to operate thereupon.”

A petition for rehearing en banc was declined; two judges

stated that they would grant the petition, four judges voted

to deny the petition for rehearing, and two judges did not

participate.

REASONS FOR GRANTING THE WRIT

The petitioner here is 1 regulatory agency charged by law

with protecting the public interest in the field of public trans-

portation in the Washington Metropolitan Area. Its role in

the proceedings below was to protect the public’s interest in

conflict between the proprietor and a user of 2 public high-

way.

Our expressed position was that certain regulations of the

Secretary of the Interior were not only contrary to the

public’s interest, they had no rational basis behind them

and were so discriminatory that they were clearly arbitrary

and capricious. Sustaining the regulations will deprive

hundreds of people of an adequate means of public trans-

portation.

When the regulations were challenged, the District Court

invalidated them in a painstaking and illuminating opinion.

As will be shown, there is a “very obvious and exceptional

showing of error” upon the part of the Court of Appeals.

Graver Tank & Mfg. Co. v. Linde Air Products Co., 336

U.S. 271, 69 S. Ct. 535 (1949). We submit that the action

of the Court of Appeals was so contrary to both the facts

and the law—and so damaging to the interest of a large seg-

ment of the public—that it must be reversed. In fact, its

decision is so unfair and erroneous that this Court should

not only reverse, it should summarily affirm the order of

the District Court.

THERE IS NO “REASONABLE BASIS” FOR

ADMITTED DISCRIMINATION

It seems patently arbitrary to impose the artificial restric-

tion embodied in the Secretary’s regulation. The very notion

that buses are somehow more objectionable than automobiles

on such a road is highly questionable. The modern bus is

an attractive vehicle; it moves at high speed along with other

traffic; its noise and fumes, particularly at highway speeds,

are no worse than that of automobiles. Moreover, there are

positive benefits which flow from bus usage of the highway

in question. More detrimental to enjoyment of the scenic

values of this road than the appearance of buses is the con-

gestion of the roadway by commuter traffic. Each loaded

bus can reduce the number of automobiles on the road by

fifty or more and add significantly to enjoyment of the road

by all.

Even if it were true that buses are somehow esthetically

less desirable than cars, the Secretary’s action would still be

completely unreasonable. He has not kept all buses off the

roadway. He permits airport and sightseeing service, in

vehicles substantially identical to those used for commuter

runs. Somehow, though, the commuter buses are objection-

able while the others are not. Indeed, he even permits

commuter runs provided they end at CIA. Hence, the 52

commuter buses now using the Parkway will continue to do

so if the regulation is upheld. The only difference will be

that they must terminate at CIA instead of going beyond

that point on other roads to provide better service for Vir-

ginia commuters. Thus, the Secretary’s regulation will not

even have any significant impact on the actual bus usage of

the Parkway. It will only diminish the quality of service

beyond CIA. This can only be regarded as patently capri-

cious. Moreover, it exceeds his statutory authority.

The Secretary’s position, moreover, ignores a fact which

is known and obvious to everyone familiar with this area.

The Parkway north of Key Bridge is not simply a scenic

highway for the enjoyment of sightseers.? Anyone who

travels it during the peak hours for travel between home

and work is forcibly made aware that it is a major corridor

for commuters? in this area. There is no justification what-

ever for discriminating against use of the highway by bus

users. The mass transit rider is entitled to the same consid-

eration and facilities as the automobile driver. This is a clear

case of a denial of the use of public property to one class

of citizens as opposed to another, Sproles v. Binford, 286

U.S. 374, 52 S. Ct. 581 (1932).

The court of appeals stated that there was more to the

Secretary’s “rational basis”? than just his conclusion that the

buses were unsightly: ‘‘‘. . . the compelling necessity to

provide CIA employees swift and immediate access to their

Agency’” requires “‘that direct commercial transportation to

the CIA Building should be permitted on the Parkway.”

(App. p. 22.) On December 12, 1962, D. C. Transit was

refused a permit to carry CIA employees over the Parkway

to the CIA, despite a Transit Commission finding that “the

Parkway offers the most direct and shortest route, the fast-

est and more efficient service, and just as important, the

safest route.” This can only be “‘arbitrary bureaucracy mas-

querading as reasoned judgment.’ Once again we find a crass

example of a “double standard”; again, we find the reason-

ing of the Secretary being applied to one person and withheld

from another.

A further illustration of the arbitrary nature of the regu-

lations in question is the different treatment accorded the

_ Parkway section below Memorial Bridge. There, full usage

by commuter buses is allowed. Yet, as the trial judge

found, that section is fully as scenic, if not more so, than

the section above Key Bridge.

2A finding of the Trial Court (App. p. 43).

3For graphic proof, see W.V. & M. Exhibits Nos. 37 and 38,

motion pictures of the rush hour traffic on the Parkway.

4 Judge Tamm, dissenting in court of appeals decision.

The Commission is itself an independent agency whose

decisions are subject to judicial review. We would be the

last to suggest that the exercise of administrative discretion

be lightly overturned by the courts. Occasions do arise,

however, when an administrator falls into error and renders

an arbitrary and capricious decision. This is patently one of

those situations. The Secretary’s attempt to bar a limited

group of commuters from the use of the Parkway is discrim-

inatory, capricious, and contrary to sound public policy.

The distinctions he draws against buses in general, and against

a certain limited class of commuter buses in particular, are

indefensible.

This is not to say that the Secretary is powerless to pro-

tect his highway from excessive burdens or to maintain it

in a safe and good condition. There are ways and means to

regulate the use of the highway by buses. The regulations

employed here are, however, a denial of the use of the road

by ene member of a class, while other members of that class

are permitted an unrestricted use. This Court in Sproles y.

Binford, 286 U.S. 374, 52 S. Ct. 581. indicated such arbi-

trary discrimination could not stand.

The limitation of the regulation has ‘“‘no appropriate rela-

tion to highway protection.” Sproles v. Binford, 286 U.S. at

394, 52 S. Ct. at 587. The regulations do not limit or even

attempt to define the number of trips the carrier may oper-

ate over the Parkway to the CIA, which is not on the prop-

erty administered by the Secretary. Hence, under the:

regulations, the carrier could double the number of daily

trips operated between the District of Columbia and the

CIA.

Nevertheless, the Secretary insists that the vehicles must

turn around at the CIA and return directly to the District

of Columbia.

Why does he insist upon this? The record, even if it

included his affidavit, is completely barren of any fact

which might supply an answer.

THE COURT OF APPEALS’ DECISION NOT ONLY IGNORES

THE ACTUAL EVIDENCE, !T IS FORMULATED ON A

DOCUMENT NOT IN EVIDENCE

The Trial Court recognized that the parties were not at

issue over matters of law. The trial court stated, “‘What the

issue comes down to is this: In view of the broad discretion

vested in the Secretary and the Park Service, and in view of

the limited role of the reviewing Court, does the evidence

show a rational basis for the regulations. . .?”” (App. p. 40)

(Emphasis supplied)

A. Evidence Not in the Record

The trial court then reviewed the evidence to support the

two concepts argued by the Government as the “rationale”

or “rational basis”’ of the regulations. The trial court found

that the “scenic value” and “oid highway-new parkway”

theories “‘. . . do not have substantial evidence in the record

to support them. ...’’ (Emphasis added)

Significantly, the Court of Appeals, in reversing these evi-

dentiary findings, relies not on the evidence adduced during

the trial, but falls back upon the depths of the pretrial

pleadings for an affidavit attached to a motion—a motion

denied almost two years prior to the trial. Despite the

express finding? by the trial judge that the affidavit of Sec-

retary Udall “‘was not introduced into evidence” and “‘it

cannct be considered by this Court,’ the majority decision

of the Court of Appeals initiates its discussion of the case

by declaring that the “Secretary explained his reasons for

the regulations in an affidavit... .” (App. p. 21.) That

the document is the very crux of the Court of Appeals’

opinion is glaringly apparent, for repeatedly the court refers |

to or quotes from it. (App. pp. 21-22.)

This finding was not challenged by the United States in its appeal

to the District of Columbia Circuit Court.

Uncontradicted evidence strongly supports District Judge

Sirica’s findings. The United States simply failed to make

out a case for sustaining the Secretary’s regulations. This

failure was not due to lack of opportunity to present evi-

dence, including the calling of the Secretary to the stand.

The essential predicate for upholding the regulations is

the Secretary’s affidavit. The non-evidentiary status of that

document, seemingly a condition precedent to its use, the

court of appeals avoids. It simply assumes, without overrul-

ing the District Court, that the affidavit was part of the trial

record.

In Federal Trade Commission v. Universal-Rundle, this

Court, in setting aside a Court of Appeals’ decision on other

grounds, stated that it was improper for the lower court to

reach questions raised by “‘post-proceeding”’ evidence. 387

U.S. 244 at 252 (n.5), 87 S. Ct. 1622, at 1627.

The logic of this rule applies equally as well to pretrial

affidavits, especially where attached to motions which are

denied before trial.

Fundamental concepts of fairness preclude reliance upon

such untested documents. The petitioncr had absolutely no

chance to “test” the statements—which were mainly opin-

ion—contained in the affidavit. In short, we have been denied

the most basic concept of due process of law.

B. Improper Review

The standards by which the Court of Appeals conducted

its review are not articulated in its opinion. While the opin-

ion is silent as to the standards employed, it is readily

apparent that certain standards were not used.° For exam-

6 «Findings of fact by the trial judge are presumptively correct and

are to be accepted by reviewing courts unless clearly wrong.” Butte

and Superior Copper Co. v. Clark Montana Realty Co., 249 US. 12,

30, 39 S.Ct. 231, 236; Baker v. Schofield, 243 US. 114, 118, 37

S.Ct. 333, 334; District of Columbia v. Pace, 320 US. 698, 64 S.Ct.

406.

tc!

Oe ee me

ple, the Court of Appeals does not say that the lower court’s

findings lack st ostantial evidence or are “clearly errone-

ous.” Sucprtsingly, it does aot even discuss the evidentiary

status of the Secretary's affidavit.

The inescapable conclusion to be drawn from the Court

of Appeals’ opinion is simply that the court tried the case

de novo, relying almost exclusively on the unsupported

opinions of the Secretary, as well as its own speculations.

For example, the Secretary is quoted as finding W. V. & M.

buses to be unsightly and hence, aesthetically objectionable.

Yet the trial court found that “the government has net

proved that suburban commuter buses have any adverse

effect upon scenic aspects of the Parkway at the time of

day when such buses would be using it.” (App. p. 37.)

The “scenic value” theory cannot be sustained in the face

of the evidence, the Government admitted below that the

southern part of the Parkway “‘is a scenic attraction which

equals and perhaps surpasses the newer section above Key

Bridge.’ Nevertheless, the majority blandly asserted that

“aesthetic reasons” justify the double standards imposed by

the Secretary, without commenting on the finding of the

trial judge that his search of the facts for a rational basis

revealed the contrary. The Court of Appeals declares that

“252 buses are more unsightly and objectionable than |

200.°% No one so testified. Upon what evidence does the

majority form this conclusion? Following the rationale of

the majority, it would have been more logical for the Secre-

tary to permit the 52 commuter trips and eliminate the 200

sightseeing. government, and airport trips.

7“Findings of fact shall not be set aside unless clearly erroneous.

...” Fed. Rules Civil Procedure, Rule 52(a), 28 U.S.C.A.

Sin holding to the contrary, the trial court had before it actual

pictures of the bumper-to-bumper, rush-hour traffic on the Parkway.

It would be interesting to hear any expert witness attempt to substan-

tiate this statement. Moreover, enforcement of the regulation would

not eliminate the 52 W.V. & M. commuter trips; see discussion of

this point, supra, p. 11.

The Court of Appeals then compounds its error by com-

pletely unfettering its imagination: ‘But even more impor-

tant, the 52 trips . . . might well become several hundred.

... (App. p. 24.) This is pure conjecture, for there is no

evidence to support this “‘straw man” the majority so vigor-

ously attacks.

But assume, for the moment, that the conjecture had

some substance to it. How does it vitiate the trial court’s

decision? Who would benefit from it? The Secretary allows

over 800 commuter trips daily on the southern portion of

the Parkway without, presumably, detracting from its equally

scenic attraction. Moreover, additional trips would only

enhance the quality of service available to CIA employees.

The more one examines the “rational basis” of the Secre-

tary, the less rational it becomes. And the more penetrating

the analysis, the more apparent the “‘de novo” review of the

reviewing court becomes.

Perhaps in recognition of the weakness of this argument,

the Court of Appeals then stated that the Secretary “did

not find that only W. V. & M. buses were unsightly,” but

that it was a “compelling necessity to provide CIA employees

swift and immediate access to their Agency.” (App. p. 22.)

If this is so, upon what rational basis did the Secretary refuse

D. C. Transit a permit to transport CIA employees over the

Parkway to the Agency? The buses are identical; the class

of passengers are the same; both services have alternate, but

longer routes. This persistence in establishing double stand-

ards must be stopped; these flagrant discriminations compel

this Court to take corrective action. Moreover, the Court

should consider the novel concept of judicial review espoused

by the Court of Appeals’ decision, wherein a lower court is

reversed simply because the appellate court does not agree

with his interpretation of the evidence. The law cited by

the reviewing court to govern the trial court in reviewing

administrative action is reflective of an equally stringent

standard of review by the appellate court. A de novo deter-

mination of the case based on evidence outside the trial

record simply does not comport with acceptable standards

of judicial review.

THE COURT OF APPEALS FAILED TO CONSIDER WHETHER

THE SECRETARY EXCEEDED HIS AUTHORITY

It was discussed earlier in this pleading that the transpor-

tation authorized b~ the Secretary began and ended off of

the Parkway. The amazing thing about this controversy is

that the Secretary is attempting to control the transportation

«fter the vehicles leave the Parkway. And this, we submit,

exceeds the scope of his statutory authority.

Congress has directed the Secretary of the Interior and

the National Park Service to

“promote and regulate the use of the Federal areas

known as national parks * * * by such means and

measures as conform to the fundamental! purpose of

the said parks, monuments, and reservations, which

purpose is to conserve the scenery and the natural

and historic objects and the wild life therein and to

provide for the enjoyment of the same in such man-

ner and by such means as will leave them unimpaired

for the enjoyment of future generations.” (16 U.S.C.

§ 1.)

That Act also authorizes the Secretary to make “such rules

and regulations” as are necessary for the use and manage-

ment of those lands and parks. 16 U.S.C. 8 3.

Claiming to act on the basis of the Congressional direc-

tive, the Secretary adopted certain regulations relating to the

operation of commercial vehicles on the Parkway. As

pertinent here, the regulations provided:

“Section 3.36 is amended to read as follows:

(b) George Washington Memorial Parkway, passen-

ger-carrying vehicles; permits, fees... .

_ (3) Passenger-carrying vehicles for hire or compen-

sation, other than those to which subparagraphs (1)

and (2) of this paragraph apply, may be permitted

on the George Washington Memorial Parkway upon

application for, and the granting of a permit by the

Regional Director, National Capital Region, National

Park Service under the following conditions:

(i) When operating on a regular schedule (a) to

provide passenger service on any portion between

Mount Vernon and the Arlington Memorial Bridge,

(b) to provide limited direct nonstop passenger service

from Key Bridge to a terminus at the Central

Intelligence Agency Building at Langley, Virginia,

and direct return, and (c) to provide limited direct

nonstop passenger service from the interchange at

Route 123 to a terminus at the Central Intelligence

Agency Building at Langley, Virginia, and direct

return. (Emphasis supplied)

Once the Secretary allows the vehicle to be used on the

Parkway, how does its subsequent use affect his statutory

obligation to provide for the proper use and management of

that public road? What difference does it make if, of ten

passengers, eight are destined to the CIA and two are des-

tined beyond? Will enforcement of the regulation reduce

the number of commuter trips and still permit adequate

service to the CIA? If it is important for CIA employees?

to have “swift and immediate access to their agency,” is it

not equally important for the residents of northern Virginia

to have a corresponding service? Or the residents of the

District of Columbia who work in the Virginia suburbs? The

answers to these questions should have been supplied by the

United States, in order to correlate the restriction with the

statutory authority. The United States simply did not meet

the burden of proof, and the Court of Appeals misconstrued

the function of judicial review when it proceeded nonethe-

less to speculate upon what might have motivated the Sec-

retary. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, at

35, 87 S. Ct. 1792, at 1798 (1967).

The regulations do not restrict the service to employees; hence,

the most casual visitor may be served.

In what manner restricting the use of the vehicle after it

leaves the Parkway aids the Secretary in conserving the

scenery or wild life has not been exposed in this record. On

its face, the regulation appears to be “plainly and palpably

inconsistent with the law,” Boski v. Comingore, 177 U.S.

459, 470, 20 S. Ct. 701, 706 (1900), and should be invali-

dated.

CONCLUSION

For the reasons stated, the judgment of the Court of

Appeals should be reversed and the opinion and order of the

District Court affirmed.

Respectfully submitted,

RUSSELL W. CUNNINGHAM

Attorney for Petitioner

October 8, 1968

APPENDIX A

Anited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 21,394

STEWART L. UDALL, Secretary of the Interior, et al,

Appellants

Vv.

WASHINGTON, VIRGINIA AND MARYLAND COACH COMPANY, INC.,

Appellee

D.C Transit System, INc., Intervenor

No. 21,395

UNITED STATES OF AMERICA, Appellant

Vv.

WASHINGTON, VIRGINIA AND MARYLAND COACH COMPANY, INC.,

Appellee

D. C. TRANSIT SYSTEM, INC., WASHINGTON METROPOLITAN AREA

TRANSIT COMMISSION, and VIRGINIA STATE CORPORATION

ComMISSION, Intervenors

Appeals from the United States District Court

for the District of Columbia

Decided June 12, 1968

Mr. A. Donald Mileur, Attorney, Department of Justice,

with whom Assistant Attorney General Martz, Acting Assist-

ant Attorney General Harrison, and Messrs. Roger P. Marquis

and Thos. L. McKevitt, Attorneys, Department of Justice,

were on the brief, for appellants. Mr. J. Edward Williams,

Attorney, Department of Justice, also entered an appearance

for appellants.

a EAS A sD a

Mr. Manuel J. Davis for appellee and for intervenor D. C.

Transit System, Inc.

Mr. Russell W. Cunningham, with whom Mr. Renn C. Fow-

ler was on the brief, for intervenors Washington Metropolitan

Area Transit Comnussion and Virginia State Corporation

Commission.

Messrs. Wilmer S. Schantz, Jr. and Samuel M. Langerman

were on the brief for intervenor D. C. Transit System, Inc.

Before PRETTYMAN, Senior Circuit Judge, and WRIGHT and

TaAMM, Circuit Judges.

WRIGHT, Circuit Judge: The facts of this appeal can be

quickly stated. The United States owns and controls a strip

of land which runs along the Potomac River on the Virginia

side. Located on this strip is a multi-lane highway, known

as the George Washington Memorial Parkway, which

stretches from Mount Vernon at its southern end through

the city of Alexandria, north through Arlington and Fair-

fax Counties, past Memorial and Key Bridges, to its north-

ern end at the intersection of the Capital Beltway, Route

495. The Parkway is administered by the National Park

Service of the Department of the Interior, whose Secretary

has been charged by Congress to “make and publish such

rules and regulations as he may deem necessary or proper

for the use and management of the parks, monuments and

reservations under the jurisdiction of the National Park

Service * * *,.”/

Pursuant to this authority the Secretary has issued a series

of regulations relating to the operation of commercial vehi-

cles and common carriers on the George Washington Memo-

rial Parkway. The regulations relevant to this appeal pro-

vide that passenger carrying vehicles for hire or compensa-

tion, other than licensed taxicabs and airport transport ve-

1 act of August 25, 1916, § 3, 16 US.C. § 3 (1964 ed.).

hicles carrying fewer than 14 passengers, are permitted to

use the Parkway only with a permit from the Regional

Director of the Park Service and only under certain condi-

tions. In essence, permits are granted for unlimited com-

mercial bus service south of Memorial Bridge and, because

of the condition of the road surface, no bus service is per-

mitted from Memorial Bridge north to Key Bridge. North

of Key Bridge sightseeing buses are allowed pursuant to a

permit, as are buses operating nonstop to and from Dulles

International and National Airports. But the Secretary’s

regulations forbid regular commuter bus service over the

northern sector of the Parkway except for “direct nonstop

passenger service from Key Bridge to a terminus at the Cen-

tral Intelligence Agency Building at Langley, Virginia, and

direct return, and (c) to provide limited direct nonstop pas-

senger service from the interchange at Route 123 to a termi-

nus at the Central Intelligence Agency Building at Langley,

Virginia, and direct return.”””

In 1961 Washington, Virginia and Maryland Coach Com-

pany, the appellee, obtained a permit from the Park Service

to run its buses on the northern sector of the Parkway in a

manner consistent with the Secretary’s regulations. Then,

apparently in 1962, it came to the attention of the Park

Service that WV&M was not obeying the regulations in that,

after making their runs to the CIA Building, its buses were

continuing on into northern irginia, collecting and discharg-

ing passengers, and then returning to the Parkway for the

return trip south. This procedure violated its permit, which

authorized only nonstop trips to the CIA Building and direct

return.

After negotiation with WV&M, its permit was reissued

with this requirement of direct return made even more ex-

plicit. Nevertheless, WV&M has consistently denied the val-

idity of the regulations and has continued to violate their

736 C.F.R. § 50.36(b)(3)(i) (Supp. 1968).

terms. Consequently the United States brought suit to re-

strain WV&M from continuing its unauthorized operation

of a suburban commuter bus service on the Parkway between

Key Bridge and the CIA Building. D.C. Transit System,

Inc., the parent corporation of WV&M, and the Washington

Metropolitan Area Transit Commission’ intervened as defend-

ants. In answer to the suit, WV&M denied the validity of

the regulations and counterclaimed for a return of fees paid

to the Park Service. In a separate action in which D. C.

Transit and WMATC joined as plaintiffs, it sued the Secre-

tary of the Interior to challenge the validity of his regula-

tions.

After the consolidation and trial of these cases the Dis-

trict Court ruled that WV&M was not entitled to refund of

the $2,284 in fees which it had paid up to the time of trial

to use the Parkway. It also denied the claim of the United

States for injunctive and declaratory relief, ruling that the

Secretary’s regulations were ‘“‘unreasonable, arbitrary, capri-

cious, discriminatory, and therefore invalid, insofar as they

do not permit suburban commuter buses owned by W. V.

& M. * * * to operate without limitation on the Parkway

3The WMATC has authorized the WV&M bus service which the

Secretary of the Interior has sought to curtail. But WMATC’s argu-

ment as intervenor is only that the Secretary’s regulations are unrea-

sonable. The Commission has not urged that its authority overrides

that of the Secretary. The trial court addressed itself to the issue of

the relationship between the Commission and the Secretary, holding:

“The Act of September 15, 1960 (74 Stat. 1031, 1037), cre-

ating the Washington Metropolitan Area Transit Commission

(the WMATC) with authority to issue certificates of public con-

venience and necessity * * * in the Washington Metropolitan

District, did not revoke by implicatio.: or supersede the author-

ity of the Secretary of the Interior to promulgate reasonable

regulations with respect to administration and use of the George

Washington Memorial Parkway.” United States v. Washington,

Virginia & Maryland Coach Co., D. D.C., 268 F Supp. 34, 50-

51 (1967).

This conclusion of law has not been challenged on appeal and is not

now before this court.

above the Key Bridge * * *.” 268 F.Supp. at 51. We

affirm this decison with respect to the validity of the fees

exacted, but reverse the denial of injunctive and declaratory

relief.

In essence the trial judge felt that the regulations were

discriminatory and invalid for two reasons: first, because

they unreasonably allow unlimited bus service south of Me-

morial Bridge while limiting such service north of the

Bridge? ; and second, because they allow sightseeing, airport

and CIA Building buses north of Key Bridge while prohibit-

ing general commuter service on this section of the Parkway.

The Secretary explained his reasons for the regulations in

an affidavit in support of the United States’ motion for sum-

mary judgment. He felt that the use of the Parkway by “ever

increasing numbers of commuter busses with their great bulk,

trucklike characteristics, and odors, as is contemplated by the

Washington, Virginia & Maryland Coach Company, would,

in my opinion, physically damage the scenic value of the

Parkway.”

The trial judge, however, concluded that the Secretary’s

regulations were not reasonably related to his goal of pre-

serving the scenic value of the Parkway. For he felt that

the southern sector of the Parkway was more scenic than

the northern sector and consequently to allow unlimited

*Below Memorial Bridge the Alexandria, Barcroft and Washington

Transit Company operates about 820 regularly scheduled one-way

trips per day. That so much bus service is permitted below Memo-

rial Bridge while comparatively little is permitted above Key Bridge

constituted to the trial judge “[t]he most glaring example * * * of

the discriminatory effect of the regulations * * *.” 268 F.Supp. at

40.

>The basis for this conclusion was the fact that, while thousands

of sightseeing bus trips are made each year on the southern portion

of the Parkway, only a handful venture to the north. But the riders

of sightseeing buses may well be more interested in historic sites than

in scemic beauty. This could well explain the sightseers’ preference

for the southern sector of the Parkway.

traffic on the southern sector, while prohibiting it to the

north, was unreasonable. He felt also that, because the CIA

Buiiding, airport and sightseeing buses were physically iden-

tical with the WV&M buses, to bar the latter on the northern

sector of the Parkway, while permitting the former, was

unreasonably discriminatory. He emphasized that he could

not “understand how 52 daily suburban commuter buses

operated by W. V. & M. could be aesthetically objecticn-

able when approximately 200 airport and C.I.A. commuter

buses * * * are not aesthetically objectionable.” 268

F.Supp. at 44.

The Secretary, however, did not find that only WV&M

buses were unsightly. In his affidavit he “reluctantly” con-

cluded, “after weighing the interest of the public in retain-

ing the present natural beauty of the Parkway aud its envi-

rons® as against the compelling necessity to provide CIA

employees swift and immediate access to their Agency,”

that direct commercial transportation to the CIA Building

should be permitted on the Parkway. Similar considerations

prompted his decision with regard to the use of the Park-

way for access to Dulles International Airport.

A rationale for the Secretary’s distinction between the

southern and northern sectors of the Parkway was offered

by Robert C. Horne, Associate Regional Director of the

Capital Region of the National Park Service. He explained

that the portion of the Parkway between Alexandria and

Mount Vernon was authorized in 1928 and constructed in

1932. It replaced a previously existing commuter railway,

and there have never been any limitations on commuter bus

©The Secretary pointed out in his affidavit that Congress had ex-

pressed its concern “that the scenery and natural objects found on

the George Washington Memorial Parkway * * * be conserved * * *,”

citing act of May 29, 1930 (46 Stat. 482), and act of August 25,

1916 (39 Stat. 535), as amended (16 U.S.C. § 1).

service.’ It provides the two entrances to National Airport

and connects with several cross streets and bisects several

communities south of Alexandria. By contrast, the Parkway

north of Key Bridge is a limited access road with no inter-

secting cross streets. It is known for its scenic beauty and

was constructed in part to accommodate CIA personnel. It

replaced no existing commuter highways or railroads, and

general commuter bus service has never been aliowed on

any portion of it.’

As the distinguished trial judge recognized, there is a judi-

cial presumption of validity of administrative action, and

the burden is on WV&M to overcome that presumption.

Duesing v. Udall, 121 U.S.App.D.C. 370, 374, 350 F.2d

748, 752 (1965), cert. denied, 383 U.S. 912 (1966). The

court should not seek to make a de novo determination,

and it need not agree with the Secretary’s judgment in order

to uphoid it. For where there is more than one solution to

an administrative problem the court will uphold any one

that has a rational basis. Udall v. Tallman, 380 U.S: 1

(1965). Here the task of weighing the competing uses of

federal property has been delegated by Congress to the Sec-

retary of the Interior. The balance which he strikes will

not be judicially upset unless it is arbitrary or beyond his

authority. United States v. Shimer, 367 U.S. 374, 381-382

(1961), quoting Bates & Guild Co. v. Payne, 194 U.S. 106,

7The section of the Parkway from Memorial Bridge south to Alex-

andria was originally closed to commuter buses, but was opened to

such buses in 1942 as a wartime conservation measure to provide

service to National Airport, then under construction.

®The section from Memorial Bridge north to Key Bridge was opened

to traffic in 1937. The section from Key Bridge north to Spout Run

was opened in early 1951. It is the section from Spout Run north

to the CIA Building that was opened in 1959, in part to provide easy

access to CIA personnel. See HEARINGS ON THE 1957 SUPPLEMEN-

TAL APPROPRIATION BILL (Act of July 27, 1956, 70 STAT. 678) BE-

FORE SUBCOMMITTEES OF THE HOUSE COMMITTEE ON APPROPRIA-

TIONS, 84th Cong., 2d Sess., Part 1, pp. 247, 255, 273, 304 (1956).

108-109 (1904). “Error or unwisdom is not equivalent to

abuse.” A. T. & T. Co. v. United States, 299 US. 232, 236

(1936). Where administrative control has been congression-

ally authorized, the judicial function is exhausted once there

is found some “rational basis” for the action taken. Missis-

sippi Valley Barge Line Co. v. United States, 292 U.S. 282,

286-287 (1934). See also Thor Westcliffe Development,

Inc. y. Udall, 114 U.S.App.D.C. 252, 314 F.2d 257, cert.

denied, 373 U.S. 951 (1963).

Such a basis clearly exists in this case. The Secretary

reasonably conclided that, for historical and aesthetic rea-

sons, unlimited commuter bus traffic should be permitted

south of Memorial Bridge but not north of it. Similarly he

reasonably concluded that, while all buses north of Memo-

rial Bridge did detract from the Parkway’s scenic beauty,

considerations of public interest compelled the allowance

of the limited service the Secretary permits. The fact that

WV&M now makes only 52 unauthorized commuter trips

per day on the Parkway north of Key Bridge, while the air-

port, CIA and sightseeing buses make 200, is certainly not

decisive. Two hundred and fifty-two buses, autherized or

unauthorized, are more unsightly and objectionable than

200. But even more important, the 52 daily trips which

WV&M now runs in violation of the law might well become

several hundred were its operations sanctioned by the Sec-

retary or, though opposed by the Secretary, “authorized”

by the courts.

Since the Secretary’s discrimination in the use of the

Parkway has a reasonable basis in the record, WV&M must

seek a political, rather than a judicial, solution to its prob-

lem.

P Reversed.

TaAmM, Circuit Judge, dissenting: 1 would affirm the action

of the District Court. I agree with the knowledgeable trial

judge that the Secretary’s regulations are “unreasonable,

arbitrary, capricious, discriminatory, and therefore invalid,

insofar as they do not permit suburban commuter buses

owned by W.V.&M. .. . to operate without limitation on

the Parkway above the Key Bridge ....” It is inconceiv-

able to me that the Secretary is able to justify as reasonable

and authorized in law, his action in permitting two other

bus operators to route identically constructed buses over

the Parkway while refusing to permit a third operator, id

est, Washington, Virginia, and Maryland Coach Company

also to operate thereupon. To me the Secretary’s justifica-

tion constitutes an army of words escorting a modicum of

reason. His action is nothing more than arbitrary bureauc-

racy masquerading as reasoned judgment. I do not believe

that case law permits an administrative officer, even of cab-

inet rank, to bestow or withhold valuable franchises with

the arrogance of an emperor distributing fiefdoms.

APPENDIX B

[Filed April 13, 1967]

C.A. No. 1172-63 and C.A. 2874-63 Consolidated

Opinion

This litigation involves a complex factual background and

numerous legal issues; however, one issue stands out as

paramount. That issue is whether the Secretary of the In-

terior through his delegate, the Director of the National

Park Service, has discretionary power to limit suburban

commuter bus traffic on part of the George Washington

Memorial Parkway while not limiting such traffic on other

parts of the Parkway. This litigation involves only those

parts of the Parkway which are on the Virginia side of the

Potomac River. Included in this issue is whether the Sec-

retary has exercised his discretion in a reasonable and non-

discrminatory manner under the circumstances and whether

the Secretary has the authority to exact a fee from subur-

ban conimuter bus companies for such use of the Parkway

as is permitted.

Annexed hereto as Appendix A is a map showing most of

the Parkway. Included are the sections of the Parkway

which are involved in this litigation, the site of the Central

Intelligence Agency (C.I.A.), and all bridges, access roads

and intersecting roads which shall be referred to in this

opinion.

Also annexed hereto as Appendix B are detailed Findings

of Fact and Conclusions of Law.

PLEADINGS AND PaRTIES

The first of these two consolidated actions was initiated

by the United States, requesting injunctive relief against

the Washington, Virginia & Maryland Coach Company,

Inc. (W. V. & M.), restraining it from continuing its un-

authorized operation of a suburban commuter bus service

over the Parkway between the Key Bridge and the C.I.A.

site, the newest section of the Parkway. The United States

complained that W. Y. & M. only has limited permission to

use the Parkway—to carry passengers to and from the

C.I.A.—and therefore it is violating Park Service Regula-

tions by adding a wide network of commuter service to and

from areas of northern Virginia beyond the C.I.A. Building

and by routing this commuter traffic onto the Parkway.

The government contends that W. V. & M.’s use of the

Parkway is substantially more extensive under its unau-

thorized use than it would be if the Parkway were used

only as authorized to serve the C.I.A. and direct return

to Key Bridge. The government asserted that the regula-

tions which grant to suburban commuter buses only limited

access to the Parkway above Key Bridge are reasonable

and necessary to preserve the scenic values of thé Parkway.

In answer to this complaint, W. V. & M. denied the

validity of the regulations upon which the United States

requested this injunctive relief, claiming that the regula-

tions are discriminatory in that they permit all buses

except suburban commuter buses to use this portion of

the Parkway in connection with services rendered off the

Parkway, and by permitting all kinds of buses, including

suburban commuter buses, to use the portion of the Park-

way below the Arlington Memorial Bridge in connection

with services rendered off the Parkway. The government’s

contention that suburban commuter buses detract from

the Parkway’s scenic values was answered by a denial

that such buses have any noticeable effect upon prevailing

aesthetic standards on the Parkway, and that even if there

is such an effect it would still be unreasonable and dis-

criminatory to insist on the preservation of scenic stand-

ards on the Parkway above the Key Bridge but not below

the Arlington Memorial Bridge. W. V. & M. also counter-

claimed for a return of fees paid under protest to the Na-

tional Park Service of one cent per vehicle mile. These

fees, for prior use of the Parkway, amounted to $2,284.16

at the time of trial.

The D. C. Transit System, Inc., the parent corporation of

W. V. & M., intervened as a defendant. Also intervening as

defendants were the Washington Metropolitan Area Transit

Commission (hereinafter referred to as the WMATC) and

the State Corporation Commission of the Commonwealth

of Virginia (hereinafter referred to as the Virginia State

Commission). Although limited, the interventions of the

two commissions was for the purpose of joining with the

bus companies in emphasizing the legislative aspects of this

litigation. The legislative element in this case concerns

the issue of whether the act of September 15, 1960, (74

Stat. 1031) authorizing The Washington Metropolitan Area

Transit Regulation Compact has any effect upon the powers

and authority of the Secretary of the Interior or -the

National Park Service to regulate the kind and amount of

suburban commuter bus traffic on the Parkway. The inter-

ests and contentions of the commissions and D. C. Transit

are substantially identical with those of W. V. & M.

The second suit, brought by W. V. & M., raised sub-

stantially the same issues with three minor additions: first,

W. V. & M. sought review of Park Service Regulatious to

the extent that they do not permit suburban commuter

buses to travel on the Spout Run ‘‘neck’’ of the Parkway

(a short deviation from the main Parkway route north-

west of Key Bridge into Arlington proper), and between

Key Bridge and Memorial Bridge (Route 50); second,

W. V. & M. requested that the Secretary and the Park

Service be enjoined from collecting fees for any use of

the Parkway by commuter buses; and, third, D. C. Transit

intervening as plaintiff sought review of Park Service

‘Regulations to the extent that such regulations do not per-

mit suburban commuter buses to use the northernmost

part of the Parkway from the Beltway southward to the

C.i.A., a stretch of about two miles. D.C. Transit presently

carries suburban commuters from Maryland, who work et

the C.I.A., across the Potomac River vix the Cabin John

Bridge on the Beltway (Interstate Route 495).. Because

present regulations preclude D. C. Transit from using the

two-mile ‘‘shorteut’’ on the Parkway from the Beltway

to the C.I.A., a longer and more indirect route must be

taken by continuing west on the Beltway past the entrance

to the Parkway, on to Route 193, then doubling back on

Route 193 to the other C.I.A. entrance.

The parties are slightly different in the second suit.

Rather than the United States, the Secretary of the In-

terior and the Director of the National Park Service were

named as defendants. The WMATC and the Virginia

State Commission were named defendants in the second

action although the positions taken by them are almost

identical with those taken by the plaintiff bus companies.

Whatever procedural advantages may have beey obtained

by naming the two commissions as defendants ixf the second

suit, the Court will now treat both bus companies and both

commissions as being aligned on the same side against the

United States, the Secretary of the Interior, and the

Director of the National Park Service.

BackGRrounp aNnpD Facrua, SusrmMary

The Parkway is owned and controlled by the Federal

Government. In Virginia it consists of an elongated na-

tional park running parallel to the bank of the Potomac

River with a multi-lane highway as its most distinctive

feature. From Mount Vernon, at its southern end, it

stretches northwestward through Fairfax County, the City

of Alexandria, Arlington County, and again, Fairfax

County, Virginia. On its northwestern end it terminates

at Interstate Route 495, the circumferential highway which

forms a beltway around the major portions of the Wash-

ington metropolitan area.

For purposes of this litigation the Parkway has been

referred to by various sections according to the sequence

in which it was constructed. First, there is the south-

eastern part running from Mount Vernon through the

City of Alexandria, past the National Airport, and term-

inating at the Arlington Memorial Bridge (Route 50).

This part of the Parkway was once known as the ‘‘ Mount

Vernon Memorial Highway’? and was completed in 1932.

The Parkway above the Arlington Memorial Bridge was

added section by section. In 1937, a short stretch was

completed between Memorial Bridge and Key Bridge. In

December 1950, the ‘‘Spout Run’? section of the Parkway

was completed. This section runs northwestward from

Key Bridge but after less than one mile it deviates south-

westward, away from the Potomac River and goes into

Arlington proper.

The final stretch of the Parkway was completed in early

1960. It begins where the Spout Run portion deviates

away from the Potomac, and continues northwestward

along the Potomac Gorge, terminating at the Beltway.

The building which houses the Central Intelligence

Agency was completed and opened in the fall of 1961. The

C.I.A. site is adjacent to the Parkway, about two miles

southeast of where the Parkway terminates at the cir-

cumferential highway. The C.LA. site is served with an

access road to and from the Parkway. The C.I.A. site

is also served on its opposite side by State Routes 123

and 193, which join when they reach the C.LA. site and

continue toward Washington as Route 123. Going toward

the District of Columbia and after passing the C.I.A. site,

Route 123 goes over the Parkway at a clover-leaf intersec-

tion below the C.I.A. site and continues southeastward

between the Parkway and the Potomac, connecting with

Chain Bridge into the District of Columbia.

The National Park Service views the various sections of

the Parkway differently with reference to what kind of

commercial traffic will be permitted. Taxicabs are per-

mitted to travel on any portion of the Parkway without

payment of any fee. Commercial trucks are not permitted

on any part of the Parkway except in special cases and

consequently there is no general provision for fees as to

them.

With respect to commercial buses, however, use of the

Parkway depends on two factors: what kind of service the

buses render, and what portion of the Parkway is involved.

First, as to the kind of service rendered, sightseeing buses,

and airport buses serving Dulles and National Airports,

are permitted on any portion of the Parkway which is de-

sired and needed for those particular services subject to

obtaining a permit and paying a fee. There are also buses

owned by the Federal Government which are used as a

shuttle service between the C.I.A. and points in downtown

Washington. These government-owned buses are per-

mitted on the Parkway south of the C.I.A. without pay-

ment of a fee and in this respect are given more favored

treatment than buses of W. V. & M. which are permitted

the same use of the Parkway from Key Bridge to the

C.LA., but contingent upon payment of a fee of one cent

per vehicle mile. Park Service Regulations prohibit W. V.

& M. (or any suburban commuter bus company) from going

beyond the C.I.A. to serve suburban residents in outlying

northern Virginia, and, thus, these ‘*C.1..A. commuter

buses’? operated by W. V. & M. are to be distinguished

from ‘‘surburban commuter buses.’’ In reality, therefore,

any bus company (such as W. V. & M.) which operates on

the Parkway to and from the C.I.A. under this special

regulation, is merely operating a shuttie service for the

benefit of the C.I.A. and its employees in competition with,

and identical to, the government-owned shuttle service.

The second distinction made by Park Service Regula-

tions deais only with ‘‘suburhan commuter buses.”’ Rather

than depending on the kind of service which a bus renders,

this distinction is based on different parts of the Park-

way. For example, commuter buses which actually carry

passengers between downtown Washington and points in

residential areas of suburban Virginia (‘‘suburban com-

ere

— oo

muter buses”) are allowed unlimited use of the Parkway

only on the southern part between Memoria! Bridge and

Mount Vernon. Such buses, regardless of what company

owns them, cannot operate above Memorial Bridge except

for the limited ‘C.I.A. commuter service,’’ without violat-

ing Park Service Regulations.

Simply stated, the regulations appear to discriminate

against suburban commuter bus corapanies desiring to use

the Parkway to serve the northern section of suburban

Virginia. This is the basic complaint of the bus companies

in this litigation. They want the restrictive regulations

declared invalid, including the provisions which require the

payment of a fee for such use of the Parkway as is now

permitted or will in the future be permitted.

A few statistics will demonstrate the difference in treat-

ment accorded suburban commuter bus companies desiring

use of the Parkway above the Memorial Bridge when con-

trested with the treatment accorded other bus companies

rendering other kinds of passenger service over the same

portion of the Parkway. Using the nine month period

from January 1 to September 30, 1966, as an example, the

evidence established that W. V. & M. operates an average

of 52 one-way trips per day between Key Bridge and the

C.LA. This use of the Parkway includes service to outlying

suburban Virginia in excess of the authority granted by

Park Service permits and Regulations. Using the same

period as an example, the evidence shows that Airport

Transport, Inc. operates an average of about 98 one-way

trips per day between Dulles Airport and a terminal in

downtown Washington. These airport buses use the Park-

way between Key Bridge and its intersection with Route 123

near the C.LA. Occasionally, Airport Transport also car-

ries passengers between Dulles and National Airports, in

which event the Parkway is also used between Key Bridge

and National Airport. On such occasions a limousine, .

rather than a bus, is generally used. The government-

owned shuttle service between the C.I.A. and Key Bridge

on the Parkway also involves about 99 one-way trips per

day, about 52 of which are by bus and the rest by limousine.

The most glaring example, however, of the discrimina-

tory effect of the regulations can be illustrated by compar-

ing the use of the Parkway above Key Bridge by W. V. &

M. with the use of the Parkway below Arlington Memorial

Bridge by A. B. & W. (Alexandria, Barcroft & Washing-

ton Transit Company) also a suburban commuter bus com-

pany. A. B. & W. is permitted to operate about 820 one-

way trips per day on the Parkway below Arlington Me-

morial Bridge. It should be noted that not all of these

trips cover the entire stretch between the Memoria] Bridge

and Mount Vernon. Many, if not most, of these ffips enter

or leave the Parkway between these two points; however,

the fact remains that about 820 suburban commuter buses

per day are permitted to travel at least some distance on

the Parkway below the Memorial Bridge while carrying

passengers to and from outlying suburban areas off the

Parkway.

For a complete comparison between Parkway use by

suburban commuter buses above Key Bridge with all other

use of the Parkway by all other buses, something should

be said about sightseeing buses. Between January 1 and

October 31, 1966, the National Park Service issued 1224

one day permits (an average of about 4 per day) to the

Gray Line in connection with its sightseeing tours A and D

conducted over the Memorial Bridge—Mt. Vernon portion

of the Parkway. In almost the same period (January lst

to October 19th) A. B. & W. was issued 610 sightseeing

permits (an average of about 2 per day) for operations

over the same portion of the Parkway. The White House

Sightseeing Corporation also operates one or two daily

sightseeing trips, and perhaps as many as 5 per day during

the peak tourist periods, most of which are conducted over

this southern portion. Finally, out-of-state carriers op-

erating over the southern portion of the Parkway are

granted an indeterminate number of sightseeing permits at

Mt. Vernon by the National Park Service for operations

over the southern portions of the Parkway. The evidence

adduced at trial indicates that very few, if any, sightseeing

buses travel on the Parkway above Key Bridge.

Because an issue has been brought into this case of

whether certain legislation enacted in 1960 may have modi-

fied or diminished the power of the Secretary of the In-

terior to regulate suburban commuter bus traffic on the

Parkway, some facts as to this legislation should be stated.

On September 15, 1960, the Congress of the United States

gave its consent and approval (74 Stat. 1031) to a pro-

posed interstate agreement (‘‘Compact’’) between Vir-

ginia, Maryland and the District of Columbia. This Com-

pact, finally ratified by the three signatories on December

22, 1960, established a commission, the WMATC, for the

reguiation of carriers of passengers between points in the

metropolitan area of the District of Columbia. Under

Article I of the Compact, the District of Columbia and

suburban counties in Virginia and Maryland were included

in a ‘‘Washington Metropolitan Area Transit District’’

over which the WMATC would have regulatory authority.

In Virginia this District includes the City of Alexandria,

the Counties of Arlington and Fairfax and that portion of

Loudoun County occupied by Dulles Airport. In Mary-

land this District includes Montgomery and Prince Georges

Counties. The District therefore includes all parts of the

Parkway involved in this litigation.

The purpose of the enabling Act and Compact was the

unification in one agency of all authority over commuter

transit within this District which was previously vested in

the several signatories and the Interstate Commerce Com-

mission. The newly created Commission, the WMATC,

was granted the power to issue certificates of public con-

venience and necessity, prescribe routes, set fares, and

otherwise to govern commuter bus traffic in the metropoli-

tan area. 3

Another important. factor is that W. V. & M. and D. C.

Transit have been granted certificates by the WMATC to

travel on the contested portions of the Parkway to serve

suburban commuters. These certificates, however, contain

a proviso that the bus companies must meet any criteria

set by the Park Service. In other words, the WMATC, in

prescribing a route over the Parkway, does not assume to

have the power to overrule Park Service Regulations to

the contrary; instead, the WMATC specifically states that

it is for the bus company involved to comply with Park

Service Regulations with respect to Parkway use.

This practice of the WMATC in adding a proviso to its

certificates reyuiring the carrier to satisfy Park Service

Regulations is no doubt based upon the specific language of

Section 3 of the Act of Congress which authorized the

Compact and the creation of the WMATC. Section 3 con-

tains the following proviso:

* * * Provided further, That nothing in this Act or in

the compact shall affect the normal and ordinary police

powers of the signatories and of the political sub-

divisions thereof and of the Director of the National

Park Service with respect to the regulation of vehicles,

control of traffic and use of streets, highways, and

other vehicular facilities.

With respect to the fee requirement of one cent per

vehicle mile for use of the Parkway by suburban com-

muter buses, I find that such fees are well within the

limits set by other governmental authorities as to fees

(‘*road taxes’’) required for use of city and state roads by

commuter buses. <Arlington County and the District of

Columbia require fees of one cent per vehicle mile. These

so-called ‘‘franchise fees’? are also exacted on a mileage

basis by the City of Fairfax, the City of Falls Church, and

the City of Vienna, Virginia.

Returning now to the discrimination issue, certain facts

should be stated about the government’s position. The

government argues that the presence of suburban com-

muter buses on the Parkway above Key Bridge is aestketic-

ally objectionable, per se, and therefore the regulations

designed to limit access to the Parkway by such buses

have a rational basis and are valid.

The government also points to an alternative route, via

Route 123 and Chain Bridge, which W. V. & M. buses em-

ployed before the northern leg of the Parkway was com-

pleted and which is still available, although it is slower and

a more circuitous route to and from downtown Washington.

With respect to D. C. Transit’s desire to use the two-mile

shortcut to the C.I.A. at the northwest end of the Parkway,

the government also peints to the availability of the alter-—

nate route via the Beltway and Route 193 which D. C.

Transit is presently using.

Finally, the government contends that a rational basis

exists for the regulations which differentiate between the

old and new sections of the Parkway (below Memorial

Bridge and above Key Bridge, respectively). As to this

contention the government argues that the old section

below Memorial Bridge was originally a ‘‘Highway’’ and

that only after it was authorized and construction begun

was it designated as part of the George Washington Me-

morial ‘‘Parkway.’? The government further contends

that when this section was constructed it partially took the

place of a pre-existing commuter railway; that it was de-

signed and constructed with bus stops; and that unlike the

newer section above Key Bridge, it has many intersecting

streets (without clover-leaf features) which are regulated

by stop lights. In effect, the government is saying that

although this old ‘‘highway” is now under the authority

of the Park Service and is designated as part of a Federal

Parkway, it is historically and realistically proper for the

Secretary and the Park Service to consider it and govern

it as a separate entity apart from the new section of the

Parkway above Key Bridge.

Apart from the availability of alternate routes, the gov-

ernment has not established this theory from the evidence

adduced at trial. First, from the evidence I cannot find

that there is anything aesthetically objectionable, per se,

about having commuter buses on the Parkway above Key

Bridge. The government has offered no valid reason which

even attempts to justify a per se approach to this prob-

lem. In my view, a per se approach to solving a problem

is only used when prior experiences with similar or iden-

tical problems is so convincing that evidence need not be

introduced in a given instance to prove what has been

proven many times in previous cases. The Court has found

no such prior cases involving parkways and commuter buses

and the parties have cited none.

Second, and without taking a per se approach, I find that

the government has not proved that suburban commuter

buses have any adverse effect upon scenic aspects of the

Parkway at the time of day when such buses would be

using it.

In this ease the government’s only evidence that subur-

ban commuter buses are spoilers of parkway scenic values

is a self-serving letter to that effect from the Director of

the National Park Service to the WMATC dated November

2, 1962 (Government Exhibit No. 23). The statements

made in that letter are opinions rather than facts; there

was no opportunity afforded counsel to cross-examine the

Director of the Park Service on the contents of the letfer

or the assumptions upon which it was based; and there

was no independent evidence introduced along the same

lines such as expert opinions or testimony of lay persons

who were familiar with the scenic values of the Parkway.

Early in this litigation, on January 10, 1964, affidavits

by Stewart L. Udall, the Secretary of the Interior, and

other officials of the Department of the Interior were filed

in support of the government’s motion for summary judg-

ment. That motion was denied on February 28, 1964. Since

the affidavit of the Secretary was not introduced into evi-

dence, it cannot be considered by the Court; however, even

if it were evidence in this case, it would give little support

to the government’s position. The pertinent parts of the

affidavit are as follows:

In my judgment, it would be contrary to the public

interest to allow permanent commuter bus service upon

the George Washington Memorial Parkway for the pur-

pose of transporting passengers between the Virginia

suburbs and the District of Columbia. The use of this

Parkway by ever-increasing numbers of commuter

buses with their great bulk, trucklike characteristics,

and odors, as is contemplated by the Washington, Vir-

ginia & Maryland Coach Company, would, in my opin-

ion, physically damage the scenic value of the Park-

way. Further, other routes are available for trans-

portation of passengers between the District of Colum-

bia and the suburbs of Northern Virginia.

In my judgment, allowing permanent commuter bus

service of the nature described above, would not be in

the public interest, and would be inconsistent with the

intendment of Congress.

_ In addition to the. fact that this opinion was. not offered

‘into evidence, nowhere does the Secretary attempt to justify

the application of these alleged public interest factors to

only part of the Parkway. Since the affidavit shows no

recognition of the fact that on a daily basis more than 800

suburban commuter buses are operated by A. B. & W. on

the Parkway below the Arlington Memorial Bridge, it loses

any relevance to the issues as they are now before the

Court. The basic problem in this case is no longer whether

the preservation of scenic values, alone, would justify ex-

clusion of commuter buses from the Parkway. The Court

agrees that, as an abstract principle, the Secretary does

have the authority to deny access by any class of commer-

cial vehicle to all sections of the Parkway. Such a policy

has been adopted by the Secretary with respect to trucks.

They are not allowed on any section of the Parkway

except in special cases. However, the regulations which

govern suburban commuter buses employ a double stand-

ard—depending upon which part of the Parkway is

involved.

I find that regardless of the historical background of the

various sections of the Parkway, it is now one Parkway—

not two—and¢ that the original congressional authorization

for its construction and maintenance had the effect of cor-

bining and unifying all pre-existing parts of it, together

with such extensions of it as may be added thereafter, into

one continuous National Parkway.

To summarize the factual situation just presented, the

evidence convinces me that the Park Service Regulations

here in issue, except those as to fees and those designed

to protect a short stretch of the Parkway which has weak

construction and cannot withstand heavy bus traffic, dis-

criminate against suburban commuter bus companies de-

siring to use the Parkway above Key Bridge. The regula-

tions discriminate between Parkway use above Key Bridge

when contrasted with Parkway use below Memorial Bridge ;

and with respect only to the Parkway above Key Bridge

there is also a double standard—one for commuter buses

and the other with respect to other buses rendering similar

but not identical services such as airport buses.

Discussion

The issues of discrimination and unreasonableness must

be analyzed within a legal framework which is fairly clear

and about which all the parties seem to agree. The bus

companies, citing Eastern Central Motor Carriers Ass’n v.

United States, 239 ¥. Supp. 591, 594 (D.C.D.C. 1965} main-

tain that the allegedly discriminatory regulations must be

found invalid if they are without a rational, substantial

or sound basis. Other cases are citee te the same effect.’

Reliance is also placed on Sectior. 10 of the Administrative

Procedure Act, 5 U.S.C. 1009, which contains a general

prohibition against administrative regulations or orders

which are either ‘‘* * * arbitrary, capricious, an abuse of

discreticu, or otherwise not in accordance with law * * *.”’

The WMATC and the Virginia State Commission urge 2

similar standard. Citing Sproles v. Binford, 286 U.S. 374,

$96 (1952), and Lindsley v. Natural Carboxic Gas Co., 220

U:S. 61 (1911). the commissions contend in their brief that

the regulations must be declared invalid if they ‘lack a

rational basis.’’

This is precisely the samme test which the government

secks to have applied in this case. ‘‘The judicial function

is exhausted when there is found to be a rational basis for

the conciusions approved by the administrative body.”’

Miss. Valley Barge Co. 7. United States, 292 U.S. 282, 2S86-

987 (1934) (cited in the gcvernment’s post-trial brief).

What the issue comes down to is this: In view of the

bread discretion vested in the Secretary and the Park

Service, and in view of the limited role of the reviewing

Court, does ihe evidence show a rational basis for the

regulations here in issue? JI conclude that the evidence

does not show a rational basis for the regulations as they

now 2xist.

1 Jenkins v. Macy, 237 F. Supp. 60, 62 (E.D. Mo. 1964), affirmed 357 F. 2d

62; Irvin v. Hobby, 131 F. Supp. 851, 865 (N.D. Towa 1955); NLEB v. Min-

nesota Min. & Mfg. 179 FP. 2d 323, 326 (8th Cir. 1950); and Willapoint

Oysters v. Ewing, 174 F. 2a 676, 695 (9th Cir. 1949) cert. denied 338 U.S.

860, rehearing denied, 339 U.S. 945.

The first step in applying the ‘‘rational basis’’ test which

the parties seem to agree upon, is a proper understanding

of the facts; however, while searching the facts and cir-

cumstances of this case to find a rational basis for the

regulations, just the contrary has become clear to the Court.

First, the Court cannot understand how 52 daily suburban

commuter buses operated by W. V. & M. could be aestheti-

cally objectionable when approximately 200 airport and

C.I.A. commuter buses of the same style and size, operat-

ing over the same route, are not aesthetically objection-

able. Second, the Court cannot understand how the gov-

ernment can, in good faith, request injunctive relief against

these 52 daily bus trips when the Park Service allows more

than S00 daily trips below Memorial Bridge by buses with

identical physical characteristics and performing an iden-

tical service. Even without more, these facts establish the

allegations that the regulations lack a rational basis and

that they are discriminatory, unreasonable and therefore

invalid.

The government, perhaps anticipating the Court’s rejec-

tion of its contention that ‘‘preservation of scenic values”’

is, per se, a rational basis for the regulations, sought to

establish that the Parkway is a scenic Parkway only above

Key Bridge, with an older, multiple access ‘‘Highway”’

tacked onto its southern extremity. In addition .+ my find-

ing that this is factually not true, the evidence establishes

the contrary. In direct confiict with this contention is the

fact that literally thousands of sightseeing bus trips are

made every vear on the Parkway south of the Memorial

Bridge but that very rarely do any of them travel on any

portion of the Parkway above Memorial Bridge. The

activity of these sightseeing buses is strong evidence, con-

trary to the goverament’s contention, that the Parkway

below Memorial Bridge is a scenic attraction which equals

and perhaps surpasscs the newer section above Key Bridge.

In my opinion, the Secretary and the Park Service are

‘*clearly wrong’’ and the weakness of the ‘‘scenic values’’

argument is ‘‘so manifest that the Court has no choice

except to held that the Secretary has excecded his author-

ity and employed means that are not at all appropriate to

the end specificd in the Act of Congress.’??

In addition to the foregoing, something should be said

about certain aspects of this case which may not be clearly

presented on the record. The Court received the impres-

sicn that there is more to this controversy than meets the

eye. Because of the peculiar or unusual nature of certain

cases it is often difficult to understand the ‘‘theory’’ upon

which the respective parties are proceeding; however, in

this case there were too many inferences to be drawn from

the evidence—all pointing to the same problem—for the

Court not to comment. My comments are also intended

as an assurance to the parties that certain elements of the

case did not go unnoticed by the Court.

The ‘“buried problems’’ involves the whole question of

adequate highways and mass transit facilities to handie the

large and growing volume of commuter traffic in the Dis-

trict of Columbia metropolitan area. Tne problem is most

acute in the Virginia suburbs because traffic to and from

the District of Columbia must squeeze onto a few bridges

across the Potomac River. This case presents a unique

2 Quoting from Boski v. Comingore, 177 U.S. 459, 470 (1900) (cited in the

government’s post-trial bricf). The Act of Congress which is relevant here

is the Act of August 25, 1916 (39 Stat. 535 as amended, 16 US.C. $$ 1, 3)

which directs the Secretary of tho Interior and the National Park Service to

‘¢promote and regulate the use of the Federal areas known as national

parks * * * by such means and measures as conform to the fundamental

purpose of the said parks, monuments, and reservations, which purpose

is to conserve the scenery and the natural and historic objects and the

wild life therein and to provide for the enjoyment of the same in such

manner and by such means as will leave them unimpaired for the enjoy-

ment of future generations.’’ (16 U.S.C. § 1).

This Act also authorized the Secretary of the Interior to make ‘‘such rules

and regulations as he may deem necessary or proper for the use and manage-

ment of the parks, monuments, and reservations under the jurisdiction of

the National Park Service.’’ (16 U.S.C. § 3).

i as

aspect of this problem because the Parkway provides direct

access to Key Bridge, Theodore Roosevelt Memorial

Bridge, Arlington Memorial Bridge and the ‘‘14th Street’

Bridge, all of which provide Virginia commuters with di-

rect access to the downtown area of the District of Colum-

bia. The motion pictures which are in evidence amply sup-

port a finding of which the Court could take judicial notice

anyway ; that however one might view it, the Parkway is an

extremely heavily travelled commuter highway. To the

thousands of commuters who use it and to the officials who

must regulate it, it is not a scenic parkway during week-

day rush hours and no amount of wishful thinking can

make it so without a drastic highway building program in

suburban Virginia to ease the load on the Parkway.

The significance of this state of affairs is that the Secre-

tary may have reasons quite a part from what he calls

‘ ‘*scenic values’’ for the strange and discriminatory set of

regulations which now prohibit suburban commuter buses

from the northern portion of the Parkway. I seem to detect

an implied warning, directed across the Potomac toward

Virginia, and also toward the WMATC, that the Parkway

cannot be relied upon, as it has been in the past, as a route

to be used for easing the mounting pressure of commuter

traffic, including mass transit, in lieu of new highways being

opened.

I mention this latent element in this case because there

undoubtedly must be more to the government’s position

than the ‘‘scenic values” and ‘‘old highway-new parkway’’

_ arguments which have been relied upon. These two theories

do not have substantial evidence in the record to support

- them and they do not provide a rational basis for the un-—

fair and discriminatory double standard regulations which

presently apply to the suburban buses using the Parkway.

These, nevertheless, are the contentions advanced by the

government and I have no alternative but to invalidate

this regulatory pattern in the absence of a rational basis

in the evidence of record.

The government, on the other hand, has demonstrated a

rational basis for the fee requirement which applies to

buses using the Parkway and to the prohibition against

buses traveling on the structurally weak section of the

Parkway between Key and Mernorial Bridges. The cost of

maintenance is a substantial and rational basis for these

two aspects of the Parkway regulatory pattern.

As to the counterclaim by W. V. & M. in Civil Action No.

1172-63 (the first of these two actions, wherein the United

States is plaintiff) requesting a return of $2,284.16 repre-

senting fees paid by W. V. & M. up to the time of trial,

the Court concludes, as an alternative reason for denying

this particular request, that it is without jurisdiction. This

- counterclaim is a demand against the United States and

even though it is under $10,000.00 it does not state a claim

under the Tucker Act, 28 U.S.C. § 1345 (a) (2), because it

is not based on either an express contract or a contract im-

plied in fact. It is therefore a claim for damages against

the government without the government having given its

consent to be sued. See Cobb v. Shore, 87 U.S. App. D.C.

162, 183 F.2d 980 (1950); Alabama v. United States, 282

U.S. 502, 506 (1931); United States v. Minnesota Mutual’

Investment Co., 271 U.S. 212, 217 (1926).

The Court concludes therefore that the Regulations of

the Park Service are valid and have a rational basis except

for those which deny W. V. & M. and DPD. C. Transit un-

limited access to the Parkway above Key Bridge for their

suburban commuter buses. So long as the regulations

permit unlimited commuter bus use of the Parkway below

Arlington Memorial Bridge, permits for such traffic above

the Key Bridge must also be granted.

The regulations may exclude all commuter buses from

the Parkway, but access or exclusion must not be discrimina-

tory. Such regulations could permit such traffic only dur-

ing certain hours of the day or during all hours of the day,

but whenever granted the present distinctions between

Reena ener ——————————————————=———=———EeEeee

buses using the northern and southern portions of the

Parkway cannot be part of the regulatory pattern.

This opinion, together with the detailed Findings of Fact

and Conclusions of law annexed hereto as Appendix B

shall constitute all of the findings of fact and conclusions

of law in this case.

Counsel will submit an appropriate order.

' /s/ Joun J. Sratca

United States District Judge

April 13, 1967

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[Filed April 13, 1967]

FINDINGS OF FACT

(1) Title to the George Washington Memorial Parkway

is vested in the United States. Adm.unistration of the Park-

way is a responsibility of the National Capital Region of

the National Park Service under the jurisdiction of the

Secretary of the Interior. The Act of August 25, 1916 (39

Stat. 535, as amended, 1f U.S.C. § 3), authorized the Secre-

‘ary of the Interior to make ‘‘such rules and regulations

as he may deem necessary or proper for the use and man-

agement of the parks, monuments, and reservations under

the jurisdiction of the National Park Service.”’

(2) Pursuant to Section 1 of the Act of August 25, 1916

(39 Stat. 535, 16 U.S.C. § 1), the National Park Service is

directed to ‘‘promote and regulate the use of the Federal

areas known as national parks * * * by such means and

measures as conform to the fundamental purpose of the

said parks, monuments, and reservations, which purpose is

to conserve the scenery and the natural and historic objects

and the wild life 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.”’

(3) Following the opening of the George Washington

Memorial Parkway from Spout Run to the C.I.A. Building

on November 3, 1959, the Department of the Interior, on

December 30, 1959 (24 Fed. Reg. 11019), adopted the fol-

lowing regulation [36 C.F.R. (1960 Rev.) 3.36(b)(2)], with

particular reference to the operation of commuter buses

on the Parkway:

Passenger carrying buses for hire or compensation

shall be permitted on the George Washhington Me-

morial Parkway upon application for, and the grant-

ing of a permit by the Superintendent, National Capital

Parks, issued on an annual basis, effective from April

fen a es Te SO

1 until the following March 31, at the rate of $3 for

each passenger-carrying seat in every vehicle so op-

erated. Such permits may be issued (i) to provide

passenger service on any portion between Mount Ver-

non and the Arlington Memorial Bridge, (ii) to pro-

vide limited direct non-stop passenger service between

Key Bridge and the Central Intelligence Agency at

Langley, Virginia, and (iii) to provide limited direct

non-stop passenger service between the interchange at

Route 123 and the Central Intelligence Agency Build-

ing at Langley, Virginia.

Subsequent to the publication of these regulations, the

W. V. & M. Coach Company, on February 15, 1960, peti-

tioned the Secretary for a modification thereof and a hear-

ing on the petition. Such hearing was held on February

29, 1960; however, no report containing findings of fact,

conclusions of law, or orders was ever served on W. V.

& M.

(4) On April 18, 1960, the Interstate Commerce Com-

mission’ issued a certificate of public convenience and neces-

sity to W. V. & M. to provide commuter bus service to the

C.LA. Building. This permit authorized W. V. & M. to

travel over the Parkway between Arlington Memorial

Bridge (Route 50) and the C.I.A. Building and it author-

ized bus travel over the Spout Run Parkway. A restric-

tion in the permit stated that:

The authority granted herein is subject to compliance

by said carrier with any rules, regulations, or require-

ments which may be by law maintained or adopted by

the Secretary of the Interior in connection with his

administrative jurisdiction over matters relating to

national parks.

1The WMATC had not yet been created, thus, the I.C.C. still had jurisdic-

tion over the commuter service rendered by W.V.&M. between Virginia and

the District of Columbia.

(5) With the opening of the C.I.A. Building in the fall

of 1961, W. V. & M. applied for a permit to ‘‘initiate ex-

press bus service over the George Washington Memorial

Parkway to the C.I.A. Building at Langley, Va.’? Pursuant

te the foregoing regulation, a Park Service permit was

issued authorizing use of the Parkway, as requested, to

furnish service to and from the C.J.A. Building only. The |

pertinent provisions of this permit were as follows:

Permission is granted to operate buses on the follow-

ing portions of the George Washington Memorial

Parkway in accordance with existing regulations:

1. To provide limited direct non-stop passenger serv-

ice between Key Bridge and the Central Intelli-

gence Building at Langley, Virginia.

2. To provide limited direct non-stop passenger serv-

ice between the interchange at Route 123 and the

Central Intelligence Building at Langley, Virginia.

(6) For a short period of time in late 1961, W. V. & M.

operated a bus service, as authorized by the Park Service ,

permit and regulations, from downtown. Washington to the

C.I.A. Building and return. At this time, W. V. & M. pro-

vided suburban commuter bus service from the northern

Virginia area to Washington by a scheduled route that

proceeded down Highway 123, over the Parkway at a

clover-leaf intersection, across Chain Bridge into the Dis-

trict of Columbia, and thence to downtown Washington.

(7) In the summer of 1962, it was ascertained that W. V.

& M. had ceascd to use the Parkway solely for commuter

service to the C.I.A. Building. Instead, suburban com-

muters were picked up in Washington whose destination

was beyond the C.I.A. Building, and these buses, after

stopping at the C.I.A. Building, would proceed beyond that

point into suburban Virginia to discharge passengers. On

return runs, suburban commuters would be picked up by

a bus that would stop at the C.I.A. and then proceed down

aia Sr gn OT

the George Washington Memorial Parkway into Washing-

ton. Although the scheduled route via Route 123 and

Chain Bridge was still used by W. V. & M., the unauthor-

ized increase in Parkway use lessened the use of Route

123 and Chain Bridge.

(8) On November 16, 1962 (27 Fed. Reg. 11346), the ap-

plicable regulation [36 C.F.R. (1966 Supp.) 3.36(b) (3) (i)]

was amended. The provision relating to commuter buses

was altered slightly to make clear that the service to the

C.I.A. was to a ‘‘terminus” at the C.I.A. Building, with

‘‘direct return.’’ In other words, this amendment was de-

signed to make sure that W. V. & M. knew it was not au-

thorized to use the Parkway for carrying passengers

picked up or to be discharged beyond the C.7.A. Building.

(9) On November 16, 1962, a revised Park Service per-

mit was issued to W. V. & M. to be effective until June 30,

1963. This permit merely modified the language of the

previous permit to reflect the changes in the applicable

regulation, that is, to plainly state that the Parkway use

was limited to a ‘‘terminus’’ at the C.I.A. Building and

‘direct return’’ to Key Bridge.

(10) On December 14, 1962 W. V. & M. petitioned the

Secretary for a modification of these regulations and for

a hearing. This petition was denied on March 14, 1963,

without explanation or further elucidation of the reasons

for restricting commuter buses on the Parkway above Key

Bridge. Meanwhile, W. V. & M. did not accept the revised

permit and has since, despite objections made by repre-

sentatives of the Department of the Interior, continuously

excceded the terms of the permit and the regulations by

operating buses on the George Washington Memorial Park-

way which carry suburban commuters and not limited to

providing service only to the C.I.A. Building and direct

return. For example, W. V. & M.’s Route 5-C picks up

passengers as far away as Seven Corners, Virginia. This

route, instead of procceding east to the District of Colum-

oases >

bia down U. S. Highways 29 and 211 through the center of

Arlington and across Key Bridge, goes the opposite direc-

tion on those highways and eventually proceeds down

Route 123, and the Parkway, to Key Bridge.

(11) On October 27, 1964, the WM ATC issued a certifi-

cate of public convenience and necessity to W. V. & M., cov-

ering the Route 5-C, which prescribed use of the Parkway

for transporting commuters to and from a large area of

Northern Virginia. This certificate contained the follow-

ing statement: ‘‘It is for the carrier to meet any require-

ments adopted by the Signatories and the Par Service

pursuant to their ‘normal and ordinary’ police powers.”’

Without meeting such requirements, W. V. & M. is, never-

theless, operating its Route 5-C as authorized only by the

WMATC while contending that its failure to comply with

Park Service Regulations is due to the invalidity of the

regulations.

(12) For its part, D. C. Transit has authority from the

WMATC to operate over the portion of the Parkway be-

tween the C.I.A. site and the Beltway (Interstate 495) ;

however, the Park Service has refused to permit such op-

erations. D. C. Transit, while objecting to this refusal by

the Park Service, has refrained from using the Parkway.

(13) The regulations of the National Capits! Region of

the National Park Service (36 C.F.R. 3.36) authorize the

issuance of general unlimited permits for commuter bus

service on that portion of the Parkway between Mount

Vernon andthe Arlington Memorial Bridge. This un-

limited use is in contrast to the limited use permitted north

and west of the Key Bridge. The regulations also permit

concession-authorized nonscheduled bus service to Dulles

and National Airports for the accommodation of air travel-

ers. Airport Transport, Inc., by a concession agreement

with the Federal Aviation Authority, provides nonsched-

uled, direct, nonstop service between Dulles and downtown

Washington, and between Dulles and National Airports for

Se and + Sa set aa eee Se Ge Ne

7 Se ee |

BAPE EINE MO tk Ue SL RA

the accommodation of air travelers in the Washington area.

Portions of the Parkway are used to provide this service to

air travelers and Airport Transport holds a permit in con-

nection with this use of the Parkway. The regulations also

allow sightseeing buses to use any portion of the Parkway

at any time upon obtaining a permit and payment of fees.

The airport and sightseeing buses are not limited in their

use of the Parkway to certain portions thereof; however,

as a practical matter, almost all sightseeing bus traffic is

south and east of the Arlington Memorial Bridge.

(14) The regulations of the Seeretary of the Interior,

since their amendment on December 30, 1959 [24 Fed. Reg.

11019, 36 C.F.R. (1960 Rev.) 3.36(b)(2)], have not au-

thorized the issuance of a permit to W. V. & M. to use the

Parkway between Key Bridge and Arlington Memorial

Bridge (Route 50). In practical effect, this means that

buses providing direct service to ana from the C.I.A. Build-

ing or suburban commuter service to outlying areas must

enter and leave the District of Columbia via Key Bridge

rather than via the Roosevelt Bridge or the Arlington Me-

morial Bridge. These latter two bridges provide a quicker

and more direct route between certain parts of suburban

Virginia and much of the downtown area of Washington

than does the Key Bridge. In addition, the regulations do

not permit the operation of commuter buses down the

Spout Run part of the Parkway which has the practical

effect of requiring the buses which would otherwise use

this section of the Parkway to use slower routes to reach

either Key Bridge, Roosevelt Bridge or the Arlington Me-

morial Bridge.

(15) The section.of the Parkway between the Key Bridge

and the Arlington Memorial Bridge was constructed in

1937 and it does not have the same subsurface strength

that underlies other portions of the Parkway. It is sub-

ject to seepage from the adjacent hillsides and breaks easier

under the stresses of heavy traffic. It has been a mainte-

eine

ES a RR Laie dD EGR DAR RTE ae

nance problem and today shows evident signs of constant

cracking and patching. it is considered by the Interior

Department and the Park Service as not being capable of

withstanding heavy bus traffic. At present nu commuter

buses are allowed on this portion of the Parkway. The

limited amount of travel by Airport Transport, Inc. on

this section is almost exclusively by limousine rather than

by heavy buses. Sightseeing buses rarely use this or any

other part of the Parkway above the Arlington Memorial

Bridge.

ConcuLusions or LAw

(1) The Court has jurisdiction over all claims and

counterclaims except for the counterclaim of W. V. & M. in

Civil Action No. 1172-63 for the return of fees in the amount

of $2,284.16 which have already been paid for the use of

the Parkway.

(2) Park Service Regulations requiring the present and

future payment of fees of one cent per vehicle mile for

use of the Parkway by suburban commuter buses are rea-

sonable, within the authority of the Secretary of the Jn-

terior to promulgate, have been adopted pursuant to the

inherent police powers of the Secretary to regulate and

maintain a government-owned national park, and they

apply equally to all buses of the same class and therefore

are not discriminatory. Thus, the claims seeking injunc-

tive relief or declaratory injunctive relief against the

Secretary of the Interior and the Regional Director of the

National Park Service restraining them from present and

future collection of fees are without merit and the Secre-

tary of the Interior and the Regional Director of the Na-

tional Park Service will not be enjoined from collecting

such fees for such present and future use of the Parkway

by suburban commuter buses as may be permitted.

(3) With respect to the counterclaim of W. V. & M. in

the first action (Civil Action No. 1172-63) for the return of

St er ao

fees already paid, although the Court concludes that it has

no jurisdiction over this counterclaim because it is a non-

contractual money claim against the government without

the government’s consent to be sued, the Court also con-

cludes, assuming it has jurisdiction, that the regulations

pursuant to which these fees were paid were within the

authority of the Secretary of the Interior to promulgate,

they were adopted pursuant to the inherent police powers

of the Secretary to regulate and maintain a government-

owned national park, and they were applied equally to all

buses of the same class and therefore they were not dis-

criminatory. Thus, this counterclaim is without merit.

(4) The Act of September 15, 1960 (74 Stat. 1031, 1037),

creating the Washington Metropolitan Areca Transit Com-

mission (the WMATC) with authority to issue certificates

of public convenience and necessity and to prescribe routes

with respect to transportation for hire by motor vehicles in

the Washington Metropolitan District, did not revoke by

implication or supersede the authority of the Secretary of

the Interior to promulgate reasonable regulations with re-

spect to administration and use of the George Washington

Memorial Parkway.

(5) The issuance of a certificate of public convenience

and necessity by the WMATC authorizing a route over the

George Washington Memorial Parkway is not in itself

sufficient to permit operations on the Parkway. Use of the

Parkway pursuant to such certificate is conditioned upon

compliance with reasonable regulations promulgated by

the Secretary of the Interior regarding such use and it is

also conditioned upon the reasonable exercise of discretion

by the Secretary ofthe Intcrior through the Nationai Park

Service in issuing permits for such use according to such

reasonable regulations.

(6) The National Park Service Regulations promulgated

by the Secretary 6f the Interior are unreasonable, arbi-

trary, capricious, discriminatory, and therefore invalid,

insofar as they do not permit suburban commuter buses

owned W. V. & M. and D. C. Transit to scrate without

limitation on the Parkway above the Key Bridge inciuding

the Spout Run section pursuant to their certificates from

the WMATC. The regulations are unreasonable, arbitrary,

capricious, discriminatory and therefore invalid insofar as,

and so long as, other regulations do permit suburban com-

muter buses owned by other bus companies to operate with-

out limitation of the Parkway below the Arlington Me-

morial Bridge.

(7) To the extent that the Park Service Regulations are

unreasonable, arbitrary, capricious, discriminatory, and

therefore invalid, by allowing commuter buses to operate

on the southern part of the Parkway but not. on the por-

tions above the Key Bridge, so, too, is any refusal of the

Secretary of the Interior or any of his delegates, to issue

permits to W. V. & M. and D. C. Transit for unlimited

access to the Parkway above Key Bridge basing such re-

fusal on such unreasonable, arbitrary, cepricious, dis-

criminatory, and invalid regulations.

(8) The claim of the United States in Civil Action No.

1172-63 for injunctive relief against W. V. & M. will be

denied, and the claims of W. V. & M. and D. C. Transit

seeking a declaration of invalidity as to the regulations

which deny their suburban commuter buses unlimited ac-

cess to the Parkway north of Key Bridge will be granted

because such regulations are invalid and will be invalid

so long as they remain unreasonably discriminatory by

allowing commuter buses unlimited access to the Parkway

below Arlington Memorial Bridge while denying unlimited

commuter bus use of the Parkway above the Key Bridge.

(9) The National Park Service Regulations promulgated

by the Secretary of the Interior which do not permit any

suburban commuter buses to use that section of the Park-

way between the Arlington Memorial Bridge and the Key

Bridge are reasonable and valid because of structural weak-

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LAGS orcs tbl I SINE ENP RE Lm

ness and maintenance problems, but only so long as all

buses, including sightseeing buses and airport buses (not

including limousines), are similarly denied access. <Accord-

ingly, the claims of W. V. & M. seeking a declaration of in-

validity as to the regulations which deny its suburban

commuter buses any access to this portion of the Parkway

will be denied.

(10) All parties shall bear their own costs.

/s/ Joun J. Sirtca

United States District Judge

April 13, 1967

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

{Filed June 9, 1967]

C.A. Nos. 1172-63 and 2874-63

Order

These consolidated actions came on for trial without a

jury, and upon consideration of all the oral testimony,

documentary evidence, legal memoranda, the Court’s Find-

ings of Fact, Conclusions of law and Opinion filed herein

on April 13, 1967, and also in consideration of the argu-

ments of counsel upon proposed orders on May 19, 1967,

it js by the Court, this 9th day of June, 1967,

Orperep, Any upGED aND DecreEep, in Civil Action No. 1172

63, that the Regulations of the National Capital Region,

National Park Service, as amended December 30, 1959, and

November 16, 1962, are discriminatory, invalid and in-

operative insofar as they do not permit suburban commuter

buses owned by the Washington, Virginia and Maryland

Coach Company, Inc. and the D. C. Transit System, Inc. to

operate without limitation on the George Washington Me-

morial Parkway in the State of Virginia above Key Bridge

pursuant to their certificates from the Washington Metro-

politan Area Transit Commission. The regulations are

discriminatory, invalid and inoperative insofar as, and so

long as, suburban commuter buses owned by other bus

companies are allowed to operate without limitation on

the Parkway below the Arlington Memorial Bridge, an it

is further

Orprerep that the request of the United States for an

injunction and declaratory judgment against the Wash-

ington, Virginia and Maryland Coach Company, Inc. be,

and the same hereby is denied, and it is finally

Orverep that the request of the Washington, Virginia

and Maryland Coach Company, Ine. for a refund of

$2,284.16 be, and the same hereby is, denied.

An4 it is Orverep, ApsupGEp anp Decreep, in Civil Ac-

tion No. 2874-63, that the Regulations of the National

Capital Region, National Park Service, as amended De-

eember 30, 1959, and November 16, 1962, are discriminatory,

invalid and inoperative insofar as they do not permit

suburban commuter buses owned by the Washington, Vir-

ginia and Maryland Coach Company, Inc. and the D. C.

Transit System, Inc. to operate without limitation on the

George Washington Memorial Parkway in the State of

Virginia above Key Bridge pursuant to their certificates

from the Washington Metropolitan Area Transit Commis-

sion. The regulations are discriminatory, invalid and in-

operative insofar as, and so long as, suburban commuter

buses owned by other bus companies are allowed to operate

without limitation on the Parkway below the Arlington

Memorial Bridge, and it is further

Orvrrep that all requests for affirmative relief are denied.

/s/ Joun J. Strica

United States District Judge

6 Ade ae

APPENDIX C

Act of August 25, 1916 (39 Stat. 535 as amended, 16

U.S.C. 88 1, 3) which directs the Secretary of the Interior

and the National Park Service to

“promote and regulate the use of the Federal areas

known as national parks * * * by such means and

measures as conform to the fundamental purpose of

the said parks, monuments, and reservations, which

purpose is to conserve the scenery and ihe natural

and historic objects and the wild life therein and to

provide for the enjoyment of the same in such man-

ner and by such means as will leave them unimpaired

for the enjoyment of future generations.” (16 U.S.C.

§ 1).

This Act also authorized the Secretary of the Interior to

make “such rules and regulations as he may deem necessary

or proper for the use and management of the parks, monu-

ments, and reservations under the jurisdiction of the Natior.al

Park Service.” (16 U.S.C. § 3).

APPENDIX D

27 Fed. Reg. 11346,

2. Section 3.36(b) is amended to read as follows:

(b) George Washington Memorial Parkway; pas-

senger-carrying vehicles; permits, fees. * * *

° ° . * + . *

(3) Passenger-carrying vehicles for hire or compen-

sation, other than those to which subparagraphs (1)

and (2) of this paragraph apply, may be permitted on

the George Washington Memorial Parkway upon ap-

plication for, and the granting of a permit by the Re-

gional Director, National Capital Region, National

Park Service under the following conditions:

(i) When operating on a regular schedule (a) to

provide passenger service on any portion between

Mount Vernon and the Arlington Memorial Bridge,

(b) to provide limited direct nonstop passenger service

from Key Bridge to a terminus at the Central Intelli-

gence Agency Building at Langley, Virginia, and direct

return, and (c) to provide limited direct nonstop pas-

senger service from the interchange ut Route 123 to a

terminus at the Central Intelligence Agency Building at

Langley, Virginia, and direct return. Permittees shall

file a schedule of operation and all schedule changes

with the office of National Capital Region showing the

number of such vehicles and total miles to be operated

on the parkway.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.