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

Supreme Court brief1969

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SUBJECT INDEX

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Questions Presented............. rar ee repeats 2

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INDEX TO APPENDICES

Appendix A - Opinion and Order of the District Court ..... App. 1

Appendix B - Opinion of the Court of Appeals ../..... App. 32

Appendix C - Affidavit of the Secretary of the Interior, dateu

January 10, 1964, in Support of Government’s Motion for

fg PTT TT TUTE eee ee ee App. 41

Appendix D - Statutes Involved................008- App. 44

Appendix E - Regulations Involved ....... ae me ete App. 51

TABLE OF AUTHORITIES CITED

Cases:

A. T. & T. Co. v. United States, 292 U.S. 232 (1936) ....... 18

Beard v. City of Alexandria, La., 341 U.S. 622 (1951) ....... 10

Boske v. Comingore, 177 U.S. 459 (1900) .............. 6,9

Camfield v. United States, 167 U.S. 518 (1896) ........... 9

Campbell v. Rankin, 99 U.S. 261 (1878) ............... 12

Edwards v. California, 314 U.S. 160(1941) ............. 10

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

EE be PEaRCE ST Uso awe Ee ENED See bee es 12

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State of Tennessee v. United States, 256 F.2d 244 (C.A. 6,

See Oe ee ee Tee eee 9

Statutes:

Act of August 25, 1916

Pe Oey OO es OP LS 6 oo os ta cnstuesens 4,7,11

Act of May 29, 1930

ee ee ee eee eee ee eee 11,14

Act of August 8, 1953

op Se eT UU LEPC CERTE CCL T Te ee 7

Act of September 15, 1960

74 Stat. 1031, D.C. Code (1967 Ed.) §§ 1-1410 to 1416 . .2,6,9

Miscellaneous:

Hearings on The 1957 Supplemental Approoriation Bill (A-t

of July 27, 1956, 70 Stat. 678) Before subcommittees of

the House Committee on Appropriations, 84th Cong., 2d

Peer r rere rere re ere eee 15

er |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968

No.

WASHINGTON, VIRGINIA AND MARYLAND COACH

COMPANY, INC. and D. C. TRANSIT SYSTEM, INC.,

Petitioners

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

Washington, Virginia and Maryland Coach Company, Inc.

and D.C. Transit System, Inc. petition for a writ of certiorari

to review the opinion of the United States Court of Appeals

for the District of Columbia Circuit which was entered on

June 12, 1968.

OPINIONS BELOW

The opinion and order of the United States District Court

for the District of Columbia are set forth in Appendix A,

and the opinion of the Court of Appeals reversing the order

of the District Court is set forth in Appendix B.

adler! nt Neck Ranting a

JURISDICTION

The jurisdiction of this Court is invoked under the provi-

sions of 28 U.S.C. § 1254(1) and within the 90-day period

prescribed at 28 U.S.C. § 2101(c). The opinion of the Court

of Appeals was entered on June 12. 1968, and petitions for

rehearing en banc were denied on August 5, 1968.

QUESTIONS PRESENTED

1. Ip administering the national park system does the

Secretary of th~ Interior have authority to regulate activities

performed outside the parks?

2. Is the affidavit of the Secretary of the Interior, which

had not been introduced in evidence at the trial, a proper

basis for the Court of Appeals to reverse the findings of the

District Court?

3. Is there any rational basis in the evidence of record

for the involved regulations of the Secretary of the Interior?

STATUTES INVOLVED

The primary statutes involved are the Washington Metro-

politan Area Transit Regulation Compact, as approved by

Act of September 15, 1960, 74 Stat. 1031, D.C. Code (1967

Ed.) 8 1-1410 to 1416, and the acts providing for the admin-

istration of the national park system by the Secretary of the

Interior. Relevant portions of these statutes are printed in

Appendix D.

STATEMENT OF THE CASE

The first of the two complaints consolidated herein was

initiated by the United States in the United States District

Court for the District of Columbia to enforce against the

Washington, Virginia and Maryland Coach Co., Inc. (“W. V.

& M.”’) regulations of the Secretary of the Interior (“‘Secre-

tary”) governing commercial use of the George Washington

Memorial Parkway (‘“‘Parkway”’). The District Court’s juris-

tion over this action was based on the provisions of 28

U.S.C. § 1345. D.C. Transit System, Inc. (“‘Transit’’), the

Washington Metropolitan Area Transit Commission (““Com-

mission”), and the State Corporation Commission of the

Commonwealth of Virginia intervenec as defendants.

The second complaint, brought by W. V. & M. to invali-

date the Secretary’s regulations, involves substantially the

same issues and parties, with the Secretary and the Director

of the National Park Service (“Service”) being named in

place of the United States. The District Court’s jurisdiction

over this action was based on the provisions of 28 U.S.C.

§§ 2201 and 2202.

In an opinion filed April 13, 1967, and an order filed

June 9, 1967, the District Court found the Secretary’s regu-

lations invalid insofar as they arbitrarily discriminate against

W. V. & M. and Transit. The United States, the Secretary,

and the Director of the Service thereafter appealed to the

United Sta*zs Court of Appeals for the District of Columbia.

By decision of June 12, 1968, a three-judge panel of the

Court of Appeals (one judge dissenting) reversed the findings

of the District Court, concluding that the Secretary’s dis-

crimination in the use of the Parkway has a reasonable basis

in the record. The commissions, jointly, and the carriers,

jointly, filed separate petitions for rehearing en banc, both

of which were denied on August 5, 1968.

The Parkway is a strip of Federal land running between

Mount Vernon and the Capital Beltway in Virginia. It is, at

one and the same time, a beautiful scenic area following the

contour of the Potomac River and an interstate highway on

which commuter traffic during the daily rush hours is fre-

quently bumper to bumper (JA 124-25, 173, 189, 192; W. V.

& M. Exs. 37 and 38)./

1 All references to JA are to the Joint Appendix filed with the

re of Appeals and included in the certified record transmitted to

this Court.

From a structural standpoint, the section of the Parkway

between Key Bridge and Arlington Memorial Bridge does

not have the subsurface strength that underlies the other

sections. It is therefore subject to constant cracking from

seepage as well as the stresses of heavy traffic and has been

a maintenance problem (JA 108-09, 190-91, 221; Gov’t Exs.

15-21).

Commercial use of the Parkway is regulated by the Secre-

tary, through the Service, pursuant to the Act of August 25,

1916, 39 Stat. 535, 16 U.S.C. 8 1, 3 (App. D, p. 49).

- Regulations adopted by the Secretary on November 16,

1962 contain the following relevant provisions (36 C.F.R.

50.36, reproduced in Appendix E):

1. Taxicabs and sightseeing buses are permitted on

any portion of the Parkway.

2. Regularly scheduled commuter buses are permit-

ted on the Parkway between Mt. Vernon and Arling-

ton Memorial Bridge (the southern portion) and

between Key Bridge and Virginia Route 123 (the

northern portion). A restriction imposed on service

operated over the northern portion requires a “direct

return” upon leaving the Central Intelligence Agency

Building (“CIA”), thereby prohibiting service to

communities adjacent to the Parkway.

3. Airport buses are permitted on the Parkway

between Washington National Airport and Virginia

Route 123.

The following bus operations are being performed on the

Parkway with permits issued by the Service:

Commuter Buses

The Alexandria, Barcroft and Washington Transit Company

(“A. B. & W.”) performs daily scheduled operations over the

Parkway between Mt. Vernon and Arlington Memorial

Bridge, providing commuter service to the adjacent commu-

nities, as much as 6 miles away, of Alexandria, Belle View,

Bucknell Manor, and Orleans Village (JA 138-39, 236). A.B.

& W. operates a total of 820 one-way trips per day over this

southern portion of the Parkway (JA 244).

W. V. & M. performs daily scheduled operations over the

Parkway betweer. Key Bridge and Virginia Route 123 in

serving the CIA at Langley, Virginia. Upon leaving the CIA,

in violation of its permit, W. V. & M. operates over Virginia

Highway 123 to provide commuter service to nearby McLean,

Tyson’s Corner and Vienna (JA 116-17, 122). W. V. & M.

operates 52 one-way trips per day over this northern portion

of the Parkway (JA 121).

Sightseeing Buses

The Gray Line, White House Sightseeing Corporation

(“White House’), and A. B. & W. perform extensive sight-

seeing operations on the Parkway, using the southern portion

almost exclusively (JA 132-34, 144, 168-69). During the

period January 1 to October 31, 1966, for example, Gray

Line and A. B. & W., combined, operated some 1800 sight-

seeing trips thereover (JA 269, 275).

Ai port Buses

Airport Transport, Inc., performs daily non-scheduled oper-

ations over both the northern and southern portions of the

Parkway for the convenience of airline passengers using

Washington National and Dulles airports (JA 127, 130). Air-

port Transport operates 98 cne-way trips daily over just the

northern portion (JA 130-31).

The CIA itself performs a daily scheduled shuttle service

for its employees over the northern portion of the Parkway,

operating 52 one-way bus trips per day (JA 134-35, 235).

The described commuter, sightseeing, and airport opera-

tions are being performed with similar buses, generally about

20,000 pounds in weight, 96 inches in width and 35 to 40

feet in length (JA 119-20, 129, 143, 197, 233, 246, 274).

In addition to permits from the Service, the described

commercial operations required certification by the Com-

mission in accordance with the Washington Metropolitan

Area Transit Regulation Compact (“Compact”), Act of

September 15, 1960, 74 Stat. 1031, D.C. Code (1967 Ed.)

$$ 1-1410 to 1416 (App. D, pp. 44-48).?_ Under Articles I

and II of the Compact the Commission has been given juris-

diction over the Metropolitan District (the District of Colum-

bia and nearby counties in Maryland and Virginia, including

all of the Parkway) for the regulation and improvement of

transit and the alleviation of traffic congestion. Section 3

of the Act of 1960, 74 Stat. 1050, D.C. Code § 1-1412,

however, specifically preserves the “normal and ordinary

police powers of the . . . Director of the National Park Serv-

ice with respect to the regulation of vehicles, control of

traffic and use of streets, highways, and other vehicular

facilities”. ;

REASONS FOR GRANTING THE WRIT

In their joint briefs filed with the District Court and the

Court of Appeals, W. V. & M. and Transit have argued that

the Secretary’s regulations of November 16, 1962 exceed his

statutory authority. The District Court agreed with this

argument, quoting from Boske v. Comingore, 177 U.S. 459,

470 (1900):

the Court has no choice except to hold that the

Secretary has exceeded his authority and employed

means that are not at all appropriate to the end spec-

ified in the Act of Congress. (App. A, p. 17.)

Without any consideration whatsoever of this basic denial

of the Secretary’s statutory authority, a divided panel of the

Court of Appeals has decided in effect that the Secretary,

as the caretaker of the national parks and parkways, is

authorized to regulate activities performed after leaving the

parks and parkways. This unmeditated decision represents

2The Commission has also authorized Transit to operate on the

Parkway between the Capital Beltway and the CIA but the Service

has refused to permit such operations (JA 276-91).

Br rdenl ag iweb

the first judicial recognition of any such statutory authority

and, in view of its far-reaching negative implications on free-

dom of movement, particularly in interstate commerce,

raises an “important question of federal law which has not

been, but should be, settled by this court”?

A review by this Court is further warranted under Rule

19 by the Court of Appeals’ drastic departure from the

accepted and usual course of judicial proceedings, having

based its decision primarily on an affidavit not introduced

in evidence.

1. The Secretary’s Regulations Exceed

His Statutory Authority.

The regulations of November 16, 1962, have been pre-

scribed pursuant to the authority conferred on the Secretary

by the Act of August 25, 1916, 16 U.S.C. § 3 (App. D, p.

49), which provides in part:

The Secretary of the Interior shall make and pub-

lish such rules and regulations as he may deem nec-

essary or proper for the use and management of the

parks, monuments, and reservations under the juris-

diction of the National Park Service.4

The statute is thus quite clear in requiring all regulations of

the Secretary to be related to the “use and management” of

the national park system.

Such “use” is fully described in the Act of 1916 as follows

(16 U.S.C. $1, App. D, p. 49): »

There is created in the Department of the Interior

a service to be called the National Park Service. . .

The service thus established shall promote and regu-

late the use of the Federal areas known as national

FRule 19 of this Court.

4National parkways are embraced by such jurisdiction under the

Act of August 8, 1953, 67 Stat. 495, 496, 16 U.S.C. § Ic (App. D, p.

50).

parks, monuments, and reservations . . . by such

means and measures as conform to the fundamental

purpose of the said parks, monuments, and reserva-

tions, 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. (Emphasis added)

In short, the “‘use’”’ of the parks is intended by the Congress

_ to be in conformity with the “purpose” of conserving the

scenery and natural beauty of the land for present and

future enjoyment.

It is submitted that there is no reasonable relationship or

plain consistency between the Secretary’s regulations and

this Congressional purpose. To illustrate, W. V. & M.’s com-

muter buses operate to McLean, Tyson’s Corner, and Vienna

over Virginia Highway 123 after leaving the Parkway to serve

the CIA. Can these buses possibly constitute any menace

to the Parkway’s scenery while they are conducting opera-

tions several miles away? Can these buses possibly injure

the natural beauty of the Parkway to any different degree

while they are performing the unauthorized service to these

Northern Virginia communities than while they are perform-

ing the authorized service to the CIA? The effect of

W. V. & M.’s commuter operations on the scenery and nat-

ural beauty of the Parkway is obviously the same whether

its buses terminate at the CIA or go beyond, over state

roads, to nearby communities.”

As a practical matter, it would seem that the Secretary

himself has demonstrated that W. .V. & M.’s operations over

5On page 8 of its opinion (App. B, p. 39) the panel majority sug-

gests that the 52 daily trips which W. V. & M. is now operating over

the Parkway in commuter service might well become several hundred

if sanctioned by the Secretary. This would not seem likely, as the

public demand for such service, which determines the frequency of

operations, has remained almost unchanged since July 1, 1964. (See

W. V. & M. Exhibit No. 34, JA 218.)

the Parkway have no harmful effect on the scenery and

beauty thereof. By permitting A. B. & W.’s buses to oper-

ate 820 one-way trips in daily commuter service, the Secre-

tary has recognized that commuter operations do not impair

the scenery and beauty of the southern portion of the Park-

way. In view of the similarity of the equipment used and

the much smalier frequency of service, can the Secretary, at

the same time, reasonably conclude that the 52 one-way

trips operated daily by W. V. & M. have an entirely different

effect on the northern portion of the Parkway? It would

seem not.

The Secretary’s proscription of operations performed off

the Parkway is so patently unrelated to the intended use

and purpose of the Parkway that he has clearly “exceeded

his authority and employed means that are not at all appro-

priate to the end specified in the Act of Congress.’

The unauthorized aspect of the Secretary’s regulations is

further evidenced by reference to the Act of September 15,

1960, 74 Stat. 1050, D.C. Code $ 1-1412, establishing the

regulatory jurisdiction of the Commission over the Metro-

politan District and suspending the applicability of the laws

of the United States. Congress therein specifically preserved

the “normal and ordinary police powers” of the Director of

the Service.

It would seem clear that the term “‘police powers” should

be interpreted as including the full scope of the pre-existing

authority delegated by the Congress to the Secretary to make

rules and regulations for the administration of property of

the United States, the national parks and parkways. Cam-

field v. United States, 167 U.S. 518, 525 (1896); State of

Tennessee v. United States, 256 F.2d 244, 258 (C.A. 6,

1958); Robbins v. United States, 284 Fed. 39, 45 (C.A. 8,

1922). However, such term surely did not confer upon the

Secretary any greater authority than that delegated to him

by the Act of 1916. It merely emphasized the Congres-

6 Boske v. Comingore, supra, 177 US. 459, 470.

sional intent to limit the authority of the Secretary to

activities occurring on the Parkway; for the exercise. of

police powers has been traditionally limited to matters aris-

ing within the physical borders of the jurisdiction. Beard

y. City of Alexandria, La., 341 U.S. 622 (1951); Edwards

v. California, 314 U.S. 160 (1941).

In the final analysis, to the extent the Secretary’s regula-

tions proscribe activities which are performed entirely off

the Parkway, the Secretary has exceeded the scope of his

statutory authority as described in the Act of 1916 and as

' preserved in the Act of 1960.

The Court of Appeals completely ignored this statutory

question.

2. The Court of Appeals Improperly Based Its Reversal

of the Findings of the District Court

upon Facts Not in Evidence.

Early in this litigation, the Secretary filed an affidavit in

support of a pre-trial motion of the Government for sum-

mary judgment (App. C). The motion was denied and the

affidavit was not subsequently introduced into evidence. The

District Court therefore determined that it could not con-

sider the affidavit. (App. A, p. 13) The Government never

challenged this determination in its appeal to the Court of

Appeals.

Notwithstanding these circumstances, the Court of Appeals

has placed primary reliance on the Secretary’s affidavit in

reversing the decision of the District Court. The following

extract is taken from pages 5 and 6 of the opinion of the

Court of Appeals (App. B, pp. 36-37):

In essence the trial judge felt that the regulations

were discriminatory and invalid for two reasons: first,

because they unreasonably allow unlimited bus serv-

ice south of Memorial 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 prohibiting general com-

muter service on this section of the Parkway.

The Secretary explained his reasons for the regu-

lations in an affidavit in support of the United States’

motion for summary judgment. He felt that the use

of the Parkway ay “ever increasing numbers of com-

muter buses with their great bulk, trucklike charac-

teristics, and odors, as is contemplated by the Wash-

ington, Virginia & Maryland Coach Company, would,

in my opinion, physically damage the scenic value

of the Parkway.”

The trial judge, however, concluded that the Sec-

retary’s regulations were not reasonably related to

his goal of preserving the scenic value of the Park-

way. For he felt that thie southern sector of the

Parkway was more scenic than the northern sector

and consequently to allow unlimited traffic on the

southern sector, while prohibiting it to the north, was

unreasonable. He felt also that, because the CIA

Building, airport and sightseeing buses were physically

identical with the WV & M buses, to bar the latter

on the northern sector of the Parkway, while per-

mitting the former, was unreascnably discriminatory.

He emphasized that he could not “‘understand how

52 suburban commuter buses operated by W. V. &

M. could be aesthetically objectionable when approx-

imately 200 airport and C.I.A. commuter buses * * *

are not aesthetically objectionable.”” 268 F.Supp. at

The Secretary, however, did not find that only

WV & M buses were unsightly. In his affidavit he

“reluctantly” concluded, “after weighing the interest

of the public in retaining the present natural beauty

of the Parkway and its environs® as against the com-

pelling necessity to provide CIA employees swift and

The Secretary pointed out in his affidavit that Congress

had expressed 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

USC. § 1).

immediate access to their Agency,” that direct com-

mercial transportation to the CIA Building should be

permitted on the Parkway. Similar considerations

prompted his decision with regard to the use of the

Parkway for access to Dulles International Air-

port...

The Court of Appeals’ consideration of the Secretary’s

affidavit is clearly contrary to the decision of this Court in

an analogous case. In Campbell v. Rankin, 99 U.S. 261, 264

(1878), this Court held that an affidavit in support of a

pre-trial pleading was in no judicial sense before the Court

on the trial and could only be used, if at all, when introduced

by one of the parties for some legitimate purpose.

3. The Secretary’s Regulations Constitute an

Arbitrary and Discriminatory Exercise

of His Statutory Authority

Both the District Court and the panel majority aptly put

the question respecting the reasonableness of the Secretary’s

regulations into proper perspective by reference to the fol-

lowing guideline:

The judicial function is exhausted when there is

found to be a rational basis for the conclusions

approved by the administrative body. Miss. Valley

Barge Co. v. United States, 292 U.S. 282, 286-287

(1934).

From this common point of departure two different con-

clusions were reached: The District Court found that “while

searching the facts and circumstances of this case to find a

rational basis for the regulations, just the contrary has

become clear to the Court” (App. A, p. 16). The panel

majority found that the “‘Secretary’s discrimination in the

use of the Parkway has a reasonable basis in the record”

(App. B, p. 39). It is respectfully submitted that the evi-

dence of record admits only the first conclusion, as expressed

by Judge Tamm in his dissent:

.. . the Secretary’s justification constitutes an army

of words escorting 2 modicum of reason. His action

is nothing more than arbitrary bureaucracy masquer-

ading as reasoned judgment. (App. B, p. 40.)

Two separate explanations have been given for the Secre-

tary’s regulations. First, it is contended that the regulations

are necessary to preserve the scenery and natural objects

found along the Parkway. Second, it is contended that the

northern and southern portions of the Parkway are treated

differently because the Parkway historically has been a

commuter highway between Mt. Vernon and Arlington

Memorial Bridge and a scenic highway between Key Bridge

and the Capital Beltway. Closely scrutinized, each of these

aesthetic and historic “reasons” is revealed to be completely

unreasonable.

Beginning with the aesthetic “reason”, the panel majority

has found the rational basis therefor existing entirely in an

affidavit of the Secretary (App. C). As noted in Argument

No. 2 herein, this affidavit was not introduced into evidence

and should not have even been considered by the panel

majority. From a practical standpoint, however, the affida-

vit provides little if any rationale for the Secretary’s regula-

tions. Most of the statements therein are merely self-serving

expressions of opinions rather than facts and are applicable

equally as well to both portions of the Parkway. No oppor-

tunity was afforded counsel to cross-examine the Secretary

on such expressions, and no independent corroborating

evidence was introduced by persons familiar with the scenic

values of the Parkway.

Moreover, most of the statements therein are misleading.

To illustrate, the Secretary states that the Parkway “abounds

_ in natural beauty and affords the people of the Washington

Metropolitan Area a panorama ofgunsurpassed scenic splen-

dor. Observation stations have been established along the

Parkway where motorists may stop in the course of their

travels and derive some benefit from the natural beauties

which surround our Nation’s Capital.”” The implication here

is that the Parkway is an idyllic backwoods road fairly insu-

lated from heavy automobile traffic. While it may be a

beautiful scenic area, the Parkway from Mt. Vernon to the

Capital Beltway is also a primary multi-lane highway for

Maryland, Virginia, and D. C. commuter traffic, often bumper

to bumper during rush hours. As noted by the District

Court (App. A. p. 18):

[t]he motion pictures which are in evidence amply

support 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 weekday rush hours

and no amount of wishful thinking can make it so. . .

Under these circumstances, commuters using the Parkway

daily, whether the northern or southern portion, have abso-

lutely no opportunity to enjoy its “unsurpassed scenic

splendor’”’.

The Secretary then refers to the Act of May 29, 1930,

46 Stat. 482, 483, as representing an expression of Congres-

sional concern for the conservation of the scenery and natural

objects found on the Parkway. In authorizing the initial

purchase of Parkway land, this Act of 1930 also specifically

provided that the “acquisition of any land in the Potomac

River Valley for park purposes shall not debar or limit, or

abridge its use for such works as Congress may in the future

authorize for the improvement and the extention of naviga-

tion . . . or for flood control or irrigation or drainage, or

for the development of hydroelectric power.” From the

very beginning, then, Congress has emphasized that the

preservation of the scenic beauty of this area along the

Potomac River is compatible with its use for other public

purposes.

One such purpose, public transportation, was highlighted

in the hearings preceding the appropriation of funds for the

construction of the Parkway from Spout Run to the CIA.

At such hearings, Director Dulles underscored the need of

the CIA employees commuting to work for “[p]ublic trans-

portation . . . supplied by the bus lines serving the general

area”.’ It would seem clear therefore that W. V. & M.’s use

of the northern portion of the Parkway to provide commuter

service to nearby communities in Northern Virginia was

fully contemplated and approved by the Congress.

The Secretary’s next statement apparently contains the

gravamen of his complaint, indicating that:

_ . it would be contrary to the public interest to

allow permanent commuter bus service upon the

[Parkway] for the purpose of transporting passengers

between the Virginia suburbs and the District of

Columbia. The use of this Parkway by ever-increas-

ing numbers of commuter buses with their great bulk,

trucklike characteristics, and odors, as is contem-

plated by [WV&M], would, in my opinion, physically

damage the scenic value of the Parkway.

This statement of opinion is entirely unsupported by any

evidence of record that commuter buses damage the scenery

of the Parkway. Granted that such buses are bulkier and

heavier than automobiles, are such physical characteristics —

aesthetically objectionable per se? The District Court quite

properly answered this question in the negative (App. A,

p. 12). Furthermore, the very fact that commercial buses

are allowed on other scenic lands administered by the Serv-

ice is convincing evidence that they cause no obvious physi-

cal damage to the scenery thereof (36 C.F.R. 8 5.4 and

6.3).

Although, in passing, it might have been argued that

commercial buses physically damage the surface of the

Parkway, as opposed to its scenery, the Secretary has made

7Hearings on The 1957 Supplemental Appropriation Bill (Act of

July 27, 1956, 70 Stat. 678) Before Subcommittees of the House

Committee on Appropriations, 84th Cong., 2d Sess., Part 1, p. 255

(1956). See also pages 247, 273, and 304 thereof cited on page 7 of

the Opinion (App. B, p. 38).

no such argument except as to the portion of the Parkway

between Arlington Memorial and Key bridges.

Respecting the Secretary’s reference to “odors,” there is

no evidence of record that commercial buses are odoriferous

generally, that W. V. & M.’s buses are odoriferous in partic-

ular, or that W. V. & M.’s buses produce more or different

“odors” than the physically identical buses operated by

A. B. & W., Airport Transport, White House, Gray Line, and

the CIA itself. Additionally, there is no evidence of record

that W. V. & M.’s 52 buses are more odoriferous than the

thousands of automobiles permitted to use the Parkway

daily.

Finally, the Secretary’s reference to the “ever-increasing”

numbers of commuter buses is inaccurate. As shown on

W. V. & M. Exhibit No. 34 (JA 218), commuter bus opera-

tions by W. V. & M. tztween July 1, 1962 and December

31, 1963, the only period for which the Secretary had infor-

mation at the time of his affidavit, stayed at a fixed level

of approximately 10,500 miles per quarter. While this figure

grew to approximately 16,000 miles by the last quarter of

1964, no subsequent increase has occurred and none is

anticipated? |

In short, there is absolutely no evidentiary support for the

Secretary’s opinion that commuter buses physically damage

the scenic value of the Parkway. Moreover, even assuming

arguendo that commuter buses do such damage, the Secre-

tary has still acted arbitrarily in applying the “public inter-

est” factor to only the northern portion of the Parkway and

not the southern portion where A. B. & W. is daily allcwed

to operate over 800 one-way trips in “permanent conmmuter

bus service . . . between the Virginia suburbs and the District

of Columbia”. Surely, a commuter bus operated by A. B.

& W. between Mt. Vernon and Arlington Memorial Bridge

Sw. Vv. & M. Exhibit No. 49 (JA 240-43) details the fixed nature of

the mileage operated by A. B. & W. in commuter service on the south-

ern portion of the Parkway.

does as much physical damage to the scenic value of the

Parkway as a similar bus operated by W. V. & M. between

Key Bridge and Virginia Route 123.

One other statement:in the Secretary’s affidavit warrants

passing comment. The Secretary states that “other routes

are available for transportation of passengers between the

District of Columbia and the suburbs of Northern Virginia.”

Presumably, reference here is to Virginia highways 123 and

193 which are alternate routes for the Parkway between the

CIA and, respectively, Key Bridge and the Capital Beltway.

The mere presence of an alternate route, however, does not

make it a desirable route. In connection with Highway 193,

for example, the Commission found that “the Parkway offers

the most direct and shortest route, the fastest and most

efficient service, and just as important, the safest route.

Highway 193 is a narrow two-lane road, and its intersection

with Interstate 495 raises hazards not present on the Park-

way route” (JA 285-86). Additionally, on the Secretary’s

theory, U. S. 1 would provide an appropriate alternate route

for A. B. & W.’s commuter buses operating on the southern

portion of the Parkway.

In light of the foregoing, it is submitted that the Secre-

tary’s reguiations of November 16, 1962 cannot be rational-

ized on an aesthetic basis. As noted by the District Court

in this connection (App. A, p. 16):

[t]he Court cannot understand how 52 daily subur-

ban commuter buses operated by W. V. & M. could

be aesthetically objectionable when approximately

200 airport and C.I.A. commuter buses of the same

style and size, operating over the same route, are not

aesthetically objectionable. Second, the Court can-

not understand how the governmert can, in good

faith, request injunctive relief against these 52 daily

bus trips when the Park Service allows more than

800 daily trips below Memorial Bridge by buses

with identical physical characteristics and performing

an identical service. Even without more, these facts

establish the ailegations that the regulations lack a

at pane cpmentte =

rational basis and that they are discriminatory, unrea-

sonable and therefore invalid.

Turning row to the historic “reason” given for the Secre-

tary’s regulations, the panel majority focused upon testimony

that the southern portion of the Parkway has been developed

as a commuter highway and the northern portion has been

developed as a scenic highway. (Testimony of Robert C.

Horne, Associate Regional Director of the Capital Region

of the Service, JA 160-61, 172-73}. The implication here

is that the Parkwav is really two separate roads used for

two entirely different purposes.

This historical rationalization is “‘so entirely at odds” with

reality “‘as to be an expression of a whim rather than an

exercise of judgment”. A. 7. & T. Co. v. United States, 292

U.S. 232, 236 (1936). A mere look at the map introduced

in evidence by W. V. & M. (JA 192) refutes the existence

of any physical separation or distinction between the north-

ern and southern ends of the Parkway. More significantly,

the use made of the so-called commuter portion is as much

scenic in nature as that made of the so-called scenic portion.

Conversely, the use made of the so-called scenic portion is

as much commuter in nature as that made of the so-called

commuter portion.

To illustrate, between January 1 and October 31, 1966,

Gray Line and A. B. & W. alone were issued over 1800 one-

day sightseeing permits for tours conducted over the “com-

muter” portion of the Parkway (JA 144-46, 170-71, 269

and 275). Furthermore, the Service issued over 1600 one-

day sightseeing permits at Mt. Vernon during just the two

months of June and November, 1965 (JA 124, 216-17).

The panel majority suggests that this sightseeing traffic

on the southern portion of the Parkway may be attributable

to an interest in historic sites rather than in scenic beauty

(Opinion, page 5, note 5, App. B, p. 36). It is respectfully

submitted that the millions of persons annually visiting Mt.

Vernon and Arlington National Cemetery are greatly

attracted, in the words of the Secretary’s affidavit describing

‘a tesa

the natural beauty along the Potomac River in Virginia, by

the “panorama of unsurpassed scenic splendor” (JA 14).

As for the northern or “scenic” portion of the Parkway,

the bumper to bumper rush-hour traffic shown in the motion

pictures introduced in evidence (W. V. & M. Exs. 37 and 38,

JA 219) readily substantiates that this portion is a heavily

traveled commuter highway. It is also significant that

W. V. & M., Airport Transport, and the CIA operate some

200 one-way commuter trips daily, while sightseeing buses

operate rarely, over this “scenic” portion of the Parkway

(JA 121, 130-31, 134-35).

In short, the very use being made of the Parkway negates

any historic rationalization of the Secretary’s regulations.

In concluding, the most striking example of the objectivity

and validity of the review by the District Court is found in

connection with the portion of the Parkway between Arling-

ton Memorial and Key bridges. Evidence was introduced

concerning structural deficiencies in the roadway which make

this portion unsuitable for heavy bus traffic. The District

Court concluded that such evidence “demonstrated a rational

basis” for prohibiting the operation of commuter buses

thereover (App. A, p. 19). It would seem quite clear there-

fore that to the extent a sound reason was given for any

aspect of the Secretary’s regulations the District Court read-

ily recognized such fact.

CONCLUSION

For the foregoing reasons, it is respectfuily submitted that

this petition for a writ of certiorari should be granted.

Respectfully submitted,

Manuel J. Davis

Samuel M. Langerman

Attorneys for Petitioners

as wv

App. 1

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

WASHINGTON, VIRGINIA &

MARYLAND COACH COMPANY,

INC.,

Defendant Civil Action No.

1172-63

and

D.C. TRANSIT SYSTEM, INC., .

WASHINGTON METROPOLITAN

AREA TRANSIT COMMISSION,

and

VIRGINIA STATE CORPORATION

COMMISSION,

Intervenors-Defendant

WASHINGTON, VIRGINIA &

MARYLAND COACH COMPANY,

INC.,

Plaintiff, ;

and Civil Action No.

D.C. TRANSIT SYSTEM, iNC., side

Intervenor-Plaintiff,

STEWART UDALL, Secretary of

the Interior, et al.,

Defendants.

CONSOLIDATED

OPINION

This litigation involves a complex factual background and

numerous legal issues; however, one issue stands out as para-

mount. That issue is whether the Secretary of the Interior

through his delegate, the Director of the National Park Serv-

ice, has discretionary power to limit suburban commuter

bus traffic on part of the George Washington Memorial

Sees Smet oe

_ App. 2

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 Secretary has

exercised his discretion in a reasonable and non-discrimina-

tory manner under the circumstances and whether the Sec-

retary has the authority to exact a fee from suburban com-

muter bus companies for such use of the Parkway as is per-

mitted.

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 shali 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 unauthorized

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 com-

plained that W.V. & 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 Regulations 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 unauthorized use

than it would be if the Parkway were used only as au-

thorized to serve the C.I.A. and direct return to Key Bridge.

The government asserted that the regulations which grant

to suburban commuter buses only limited access to the

’ App. 3

Parkway above Key Bridge are reasonable and necessary to

preserve the scenic values of the Parkway.

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

ity of the regulations upon which the United States re-

quested this injunctive relief, claiming that the regulations

are discriminatory in that they permit all buses except sub-

urban 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 com-

muter buses, to use the portion of the Parkway below the

Arlington Memorial Bridge in connection with services ren-

dered 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 discriminatory to insist on

the preservation of scenic standards on the Parkway above

Key Bridge but not below the Arlington Memorial Bridge,

W. V. & M. also counterclaimed for a return of fees paid

under protest to the National 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 Na-

- _unneeee — ' ,

Pew MERE Nae ee oy eee SA ta tsi Set an ar wen anne

App. 4

tional Park Service to regulate the kind and amount of sub-

urban commuter bus traffic on the Parkway. The interests

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 substan-

tially the same issues with three minor additions: first, ?

W. V. & M. sought review of Park Service Regulations 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 northwest

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 en-

joined 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 permit suburban com-

muter 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 at the C.I.A., across

the Potomac River via the Cabin John Bridge on the Belt-

way (Interstate Route 495). Because present regulations

preclude D.C. Transit from using the two-mile “shortcut”

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.1.A. entrance.

The parties are slightly different in the second suit.

Rather than the United States, the Secretary of the Interior

and the Director of the National Park Service were named

as defendants. The WMATC and the Virginia State Com-

mission were named defendants in the second action al-

though the positions taken by them are almost identical

with those taken by the plaintiff bus companies. Whatever

procedural advantages may have been obtained by naming

App. 5

the two commissions as defendants in the second suit, the

Court will now treat both bus companies and both com-

missions as being aligned on the same side against the

United States, the Secretary of the Interior, and the Direc-

tor of the National Park Service.

BACKGROUND AND FACTUAL SUMMARY

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 fea-

ture. From Mount Vernon, at its southern end, it stretches

northwestward through Fairfax County, the City of Alexan-

dria, 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 Washington metropolitan

area.

For purposes of this litigation the Parkway has been re-

ferred to by various sections according to the sequence in

which it was constructed. First, there is the southeastern

part running from Mount Vernon through the City of Alex-

andria, past the National Airport, and terminating 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 southwestward, 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.

App. 6

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 circum-

ferential highway. The C.I.A. 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.I.A. site and continue

toward Washington as Route 123. Going tuward the Dis-

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

123 goes over the Parkway at a clover-leaf intersection be-

low 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 permit-

ted to travel on any portion of the Parkway without pay-

ment of any fee. Commercial trucks are not permitted on

any part of the Parkway except in special cases and conse-

quently 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 desired

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 serv-

ice between the C.I.A. and points in downtown Washington.

These government-owned buses are permitted on the Park-

way south of the C.I.A. without payment 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 Park-

way from Key Bridge to the C.I.A., but contingent upon

payment of a fee of one cent per vehicle mile. Park Serv-

tis en) odes Cae w is Sie oa ads Sea Atak Wea neem pl ek AOR an eet Raa Satin bs inh hh A RE SN te he wis Si aI

* x =y

a sacsetonge§ 2

_ App. 7

ice Regulations prohibit W. V. & M. (or any suburban com-

muter bus company) from going beyond the C.I.A. to serve

suburban residents in outlying northern Virginia, and, thus,

these “C.I.A. commuter buses” operated by W. V. & M. are

to be distinguished from “suburban commuter buses.” In

reality, therefore, any bus company (Such as W. V. & M.)

which operates on the Parkway to and from the C.LA.

under this special regulation, is merely operating a shuttle

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 Regulations

deals only with “suburban commuter buses.” Rather than

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

distinction is based on different parts of the Parkway. For

example, commuter buses which actually carry passengers

between downtown Washington and points in residential

areas of suburban Virginia (“suburban commuter buses’’)

are allowed unlimited use of the Parkway only on the

southern part between Memorial Bridge and Mount Vernon.

Such buses, regardless of what company owns them, cannot

operate above Memorial Bridge except for the limited

“C.LA. commuter service,” without violating Park Service

Regulations.

Simply stated, the regulations appear to discriminate

against suburban commuter bus companies desiring to use

the Parkway to serve the northern section of suburban Vir-

ginia. This is the basic complaint of the bus companies in

this litigation. They want the restrictive regulations de-

clared invalid, including the provisions which require the

payment of a fee for such use of the Parkway as is not

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-

trasted with the treatment accorded other bus companies

rendering other kinds of passenger service over the same

App. 8

portion of the Parkway. Using the nine month period from

January 1 to September 30, 1966, as en example, the evi-

dence 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 subur-

ban Virginia in excess of the authority granted by Park Serv-

ice permits and Reguiaiions. Using the same period as an

example, the evidence shows that Airport Transport, Inc.

operates an average of avout 98 one-way trips per day be-

tween Dulles Airport and a terminal in downtown Washing-

ton. These airport buses use the Parkway between Key

Bridge and its intersection with Route 123 near the C.LA.

Occasionaily, Airport Transport ulso carries passengers be-

tween Duiles and National Airports, in which event the

Parkway is also used between Key Bridge and National Air-

port. On sich occasions a limousine, rather than a bus, is

generally used. The goverrm:nt-owned shuttie service be-

tween the C.I.A. and Key Bridge on the Parkway also in-

volves about 99 one-way trips per day, about 52 of which

are by bus and the rest bv limousine.

The most glaring exampic, however, of the discriminatory

effect of the regulations can be illustrated by comparing 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 & Washington Transit

Company), also a suburban commuter bus company. A. B.

& W. is permitted to operate about 820 one-way trips per

day on the Parkway below Arlington Memorial Bridge. It

should be noted that uot all of these trips cover the entire

stretch between the Memorial Bridge and Mount Vernon.

Many, if not most, of these trips enter or leave the Parkway

between these two poiits; 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 out-

lying suburban areas off the Parkway.

For a complete comparison between Parkway use by

suburban commuter buses above Key Bridge with all other

' App. 9

use of the Parkway by ail other buses, something should be

said about sightseeing buses. Between January | and Octo-

ber 31, 1966, the National Park Service issued 1224 one day

permits (an average of abcut 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 Park-

way. In almost the same period (January Ist to Octobder

19th) A. B. & W. was issued 610 sightseeing permits (aa

average of about 2 per day) for operations over the same

portion of the Parkway. The White House Sightseeing Cor-

portation 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 operating over the

scuthern portion of the Parkway are granted an indetermi-

nate number of sightseeing permits at Mt. Vernon by the

National Park Service for operations over the southern por-

tions of the Parkway. The evidence adduced at trial indi-

cates 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 proposed

interstate agreement (“Compact”) between Virginia, Mary-

land and the istrict of Columbia. This Compact, finally

ratified by the three signatories on December 22, 1960, es-

tablished a commission, the WMATC, for the regulation 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

OS Oe Te IEP ee i eee ost

. App. 10

and Fairfax and that portion of Loudoun County occupied

by Dulles Airport. In Maryland this District includes Mont-

gomery and Prince Georges Counties. The District there-

fore includes all parts of the Parkway involved in this liti-

gation.

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 convenience

and necessity, prescribe routes, set fares, and otherwise to

govern commuter bus traffic in the metropolitan area.

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 requiring the carrier to satisfy Park Service Reg-

ulations 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

subdivisions thereof and of the Director of the Na-

tional Park Service with respect to the regulation of

vehicles, contro! of traffic and use of streets, high-

ways, and other vehicular facilities.

ere di

App. 11

With respect to the fee requirement of one cent per ve-

hicle mile for use of the Parkway by suburban commuter

buses, I find that such fees are well within the limits set by

other governmental authorities as to fees (“road taxes’’) re-

quired 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 commuter

buses on the Parkway above Key Bridge is aesthetically ob-

jectionable, 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 points to the availability of the alter-

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

sit 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 con-

tention 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 desig-

nated as part of the George Washington Memorial “‘Park-

way.” The government further contends that when this

section was constructed it partially took the place of a pre-

sia NETS (lin Kise askbes shhs aiio ict SHAS ah a isc cd ina a aes Mains 008 ———

. ies a niin =

App. 12

existing commuter railway; that it was designed and con-

structed 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 histori-

cally and realistically proper for the Secretary and the Park

Service to consider it and govern it as a separate entity i

apart from the new section of the Parkway above Key

Bridge.

Apart from the availability of alternate routes, the govern-

ment has not established this theory from the evidence ad-

duced 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 at-

tempts to justify a per se approach to this problem. In my

view, a per se approach to solving a problem is only used

when prior experiences with similar or identical 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 ..hen such buses would be 3

using it.

In this case the government’s only odiiens that sub- '

burban commuter buses are spoilers of parkway scenic 4

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

of the National Park Service to the WMATC dated Novem-

ber 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 Di-

Sith AO CIS: ie 2 dal Nn RE

App. 13

rector of the Park Service on the contents of the letter 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 sup-

port of the government’s motion for summary judgment.

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

affidavit of the secretary was not introduced into evidence,

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 affi-

davit 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 Park-

way for the purpose of transporting passengers be-

between the Virginia suburbs and the District of Co-

lumbia. The use of this Parkway by ever-increasing

numbers of commuter buses with their great bulk,

trucklike characteristics, and odors, as is contem-

plated by the Washington, Virginia & Maryland

Coach Company, would, in my opinion, physically

damage the scenic value of the Parkway. Further,

other routes are available for transportation of pas-

sengers between the District of Columbia 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 fac-

App. 14

tors to only part of the Parkway. Since the affidavit shows

no recognition of the fact that on a daily basis more than

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

on the Parkway below the Arlington Memorial Bridge, it

toses any relevance to the issues as they are now befcre 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 commercial

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 sub-

urban commuter buses employ a double standard—depend-

ing upon which part of the Parkway is involved.

| 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 combin-

ing and unifying all preexisting 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 con-

struction and cannot withstand heavy bus traffic, discrimi-

nate against suburban commuter bus companics desiring to

use the Parkway above Key Bridge. The regulations dis-

criminate 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.

App. 15

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 F.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 cited to the same effect.’ Re-

liance is also placed on Section 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 dis-

cretion, or otherwise not in accordance with law***.”

The WMATC and the Virginia State Commission urge a

similar standard. Citing Sproles v. Binford, 283 U.S. 374,

396 (1932), and Lindsley v. Natural Carbonic Gas Co., 220

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

the regulations must be declared invalid if they “lack a ra-

tional basis.”

This is precisely the same test which the government

seeks to have applied in this case. “The judicial function is

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

conclusions approved by the administrative body.” Miss.

Valley Barge Co. v. United States, 292 U.S. 282, 286-287

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

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

broad discretion vested in the Secretary and the Park Serv-

ice, and in view of the limited role of the reviewing Court,

does the evidence show a rational basis for the regulations

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. Iowa 1955);

NLRB v. Minnesota Min. & Mfg., 179 F.2d 323, 326 (8th Cir. 1950);

and Willapoint Oysters v. Ewing, 174 F.2d 676, 695 (9th Cir. 1949)

cert, denied 338 U.S. 860, rehearing denied, 339 U.S. 945.

App. 16

here in issue? I conclude that the evidence does not show

a rational basis for the regulations as they now exist.

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 circum-

stances of this case to find a rational basis for the regula-

tions, 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 aesthet-

ically 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 objectionable.

Second, the Court cannot understand how the government

can, in good faith, request injunctive relief against these 52

daily bus trips when the Park Service allows more than 800

daily trips below Memorial Bridge by buses with identical

physical characteristics and performing an identical service.

Even without more, these facts establish the allegations that

the regulations lack a rational basis and that they are dis-

criminatory, 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 es-

tablish that the Parkway is a scenic Parkway only above

Key Bridge, with an older, multiple access “Highway”

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

ing that this is factually not true, the evidence establishes

the contrary. In direct conflict with this contention is the

fact that literally thousands of sightseeing bus trips are »

made every year 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 activ-

ity of these sightseeing buses is strong evidence, contrary

to the government’s contention, that the Parkway below

Memorial Bridge is a scenic attraction which equals and per-

naps surpasses 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”

eed

Bnaaa its

App. 17

argument is “so manifest that the Court has no choice ex-

cept to hold that the Secretary has exceeded his authority

and employed means that are not at all appropriate to the

end specified in the Act of Congress.””2

In addition to the foregoing, something should be said

about ceitain aspects of this case which may not be clearly

presented on the record. The Court received the impression

that there is more to this controversy tinan 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 evi-

dence—all pointing to the same problem—for the Court not

to comment. My comments are also intended as an as-

surance to the parties that certain elements of the case did

not go unnoticed by the Court.

The “‘buried problem” involves the whole question of ade-

quate highways and mass transit facilities to handle the

large and growing volume of commuter traffic in the Dis-

trict of Columbia metropolitan area. The 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 as-

Quoting from Boski v. Comingore, 177 U.S. 459, 470 (1900)

(cited in the government’s post-trial brief). The Act of Congress which

is relevant here is the 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 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).

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, monuments, and reservations under the

jurisdiction of the National Park Service.” (16 U.S.C. § 3).

App. 18

pect of this problem because the Parkway provides direct

access to Key Bridge, Theodore Roosevelt Memorial Bridge,

Arlington Memorial Bridge and the “14th Street” Bridge,

ail of which provide Virginia commuters with direct access

to the downtown area of the District of Columbia. The

motion pictures which are in evidenee amply support a

finding of which the Court could take judicial notice any-

way; that however one might view it, the Parkway is an ex-

tremely heavily travelled commuter highway. To the thou-

sands of commuters who use it and to the officials who

use it and to the officials who must regulate it, it is not a

scenic parkway during weekday rush hours and no amount

of wishful thinking can make it so without a drastic high-

way 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 apart 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 de-

tect 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

chan 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.

Fer eters A —

SNe eiesSee

App. 19

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 Memorial Bridges. The cost of mainte-

nance is a substantial and rational basis for these two as-

pects 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 . return of $2,284.16

representing fees paid by W. V. & M. up to the time of

trial, the Court concludes, as an alternative reason for deny-

ing 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. 8 1345(a) (2), _

because it is not based on either an express contract or

a contract implied in fact. It is therefore a claim for dam-

ages 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. Minne-

sota 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 D.C. Transit unlimited

commuter bus use of the Parkway below Arlington Memo-

rial 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 discrim-

inatory. Such regulations could permit -such traffic only

during certain hours of the day or during:all hours of the

day, but whenever granted the present distinctions between

buses using the northern and southern portions of the Park-

way cannot be part of the regulatory pattern.

App. 20

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 ef law

in this case.

Counsel will submit an appropriate order.

John J. Stree

April 13, 1967 United States District Judge

{A map attached to the above Opinion as an appendix, is

reproduced as a foldout page herein at the end of this

volume |

App 21

APPENDIX B

FINDINGS OF FACT

(1) Title to the George Washington Memcrial Parkway

is vested in the United States. Administration of the Park-

way is a responsibility of the National Capital Region of the

National Park Service under the jurisdiction of the Secre-

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

535, as amended, 16 U.S.C. § 3), 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, monuments, and reservations under the juris-

diction of the National Park Service.”

(2) Pursuant to Section | 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 meas-

ures 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 manier and by such means as will leave

them unimpared for the enjoyment of future generations.”

(3) Foilowing 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 Washington Memo-

rial Parkway upon application for, and the granting

of a permit by the Superintendent, National Capital

Parks, issued on an annual basis, effective from April

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

each passenger-carrying seat in every vehicle so op-

Se ay oe

SS ae

FPG ALLL NAS EFAS AIELLO TS UT LEG

App. 22

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

passenger service on any portion between Mount

Vernon and the Arlington Memorial Bridge, (ii) to

provide limited direct non-stop passenger service be-

tween 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 Intel-

ligence Agency Building 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, con-

clusions of law, or orders was ever served on W. V. & M.

(4) On April 18, 1°60, the Interstate Commerce Com-

mission! issued a certificate of nublic convenience and ne-

cessity to W. V. & M. to provide commuter bus service to

the C.I.A. 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 authorized bus

travel over the Spout Run Parkway. A restriction in the

permit stated that:

The authority granted herein is subject to compli-

ance by said carrier with any rules, regulations, or

requirements which may be by law maintained or

adopted by the Secretary of the Interior in connec-

tion with his administrative jurisdiction over matters

relating to national parks.

(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 Park-

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

the foregoing regulation, a Park Service permit was issued

!The WMATC had not yet been created, thus, the I.C.C. still had

jurisdiction over the commuter service rendered by W. V. & M. between

Virginia and the District of Colurnbia.

App. 23

authorizing use of the Parkway, as requested, to furnish

service to and from the C.I.A. Building only. The pertinent

provisions of this permit were as follows:

Permission is granted to operate buses on the fol-

lowing portions of the George Washington Memo-

rial Parkway in accordance with existing regulations:

1. To provide limited direct non-stop passenger

service between Key Bridge and the Central In-

telligence Building at Langley, Virginia.

2. To provide limited direct non-stop passenger

service between the Interchange at Route 123

and the Central Inteiligence Buiiding at Lang-

ley, 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 scheduied route that pro-

ceeded down Highway 123, over the Parkway at a clover-

leaf intersection, across Chain Bridge into the District of

Columbia, and thence to downtown Washington.

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

W. V. & M. had ceased to use the Parkway solely for com-

muter service to the C.I.A. Building. Instead, suburban

commuters were’ picked up in Washington whose destina-

tion 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

the George Washington Memorial Parkway into Washington.

Although the scheduled route via Route 123 and Chain

Bridge was still used by W. V. & M., the unauthorized in-

crease in Parkway use lessened the use of Route 123 and

Chain Bridge.

—

Oh lak Mee lanl De dl

i RINE GEIL gf BALE LOL GM e POE, TOI OI LON, LITE

EE RSP IRE MOY

ie Heal

App. 24

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

applicable 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. kmew it was not au-

thorized to use the Parkway for carrying passengers picked

up or to be discharged beyond the C.I.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 im the applicable reg-

ulation, 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, with-

out explanation or further elucidation of the reasons for re-

stricting 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 representatives

of the Department of the Interior, continuously exceeded

the terms-of the permit and the regulations by operating

buses on the George Washington Memorial Parkway 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 proceeding east to the District of Columbia down U.S.

Highways 29 and 211 through the center of Arlington and

across Key Bridge, goes the opposite direction of those

highways and eventually proceeds down Route 123, and the

Parkway, to Key Bridge.

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

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

App. 25

covering the Route 5-C, which prescribed use of the Park-

way for transporting commuters to and from < large area

of Northern Virginia. This certificate contained the fol-

lowing statement: “It is for the carrier to meet any re-

quirements adopted by the Signatories and the Park Serv-

ice 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 reg-

ulations.

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

WMATC to operate over che 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 Capital Region of

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

suance of general unlimited permits for commuter bus serv-

ice on that portion of the Parkway »etween Mount Vernon

and the Arlington Memorial Bridge. This unlimited 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 Na-

tional Airports for the accommodation of air travelers. Air-

port Transport, Inc., by a concession agreement with the

Federal Aviation Authority, provides nonscheduled, direct,

nonstop service between Dulles and downtown Washington,

and between Dulles and National Airports for the accommo-

dation 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 connection with

this use of the Parkway. The regulations also allow sight-

seeing 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

a Y . ~ aa

App. 26

Parkway to certain portions thereof; however, as a practi-

cal matter, almost all sightseeing bus traffic is south and

east of the Arlinjston Memorial Bridge.

(14) The regulations of the Secretary 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

authorized 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 and 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 Memo-

rial Bridge. These latter two bridges provide a quicker and

more direct route between certain parts of suburban Vir-

ginia 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 Pa*kway which has the practical effect of

requiring the buses which wouid otherwise use this section

of the Parkway to use slower routes to reach either Key

Bridge, Roosevelt Bridge or the Arlington Memorial Bridge.

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

and the Arlington Memoria! Bridge was constructed in 1937

and it does not have the same subsurface strength that

underlies other portions of the Parkway. It is subject to

seepage from the adjacent hillsides and breaks easier under

the stresses of heavy traffic. It has teen a maintenance

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 no commuter buses are al-

lowed 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. Sight-

seeing buses rarely use this or any other part of the Parkway

above the Arlington Memorial Bridge. 7

App. 27

CONCLUSIONS OF LAW

(1) The Court has jurisds:tion over all claims and counter-

claims 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 reason-

able, within the authority of the Secretary of the Interior

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 discrimi-

natory. Thus, the claims seeking injunctive relief or declara-

tory injunctive relief against the Secretary of the Interior

and the Regional Director of the National Park Service re-

straining them from present and future collection of fees

are without merit and the Secretary of the Interior and the

Regional Director of the National Park Service will not be

enjoined from collecting such fees for such present and fu-

ture 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 f

of fees alreacty paid, although the Court concludes that it :

has no jurisdiction over this counterclaim because it is a

non-contractual money claim against the government with-

out the government’s consent to be sued, the Court also }

concludes, assuming it has jurisdiction, that the regulations f

pursuant to which these fees were paid were within the au-

thority 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 na- E

tional park, and they were applied equally to all buses of ;

the same class and therefore they were not discriminatory.

Thus, this counterclaim is without merit.

WO AEA

red

PR OPRET CDRA RI OR A ke

App. 28

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

1037), creating the Washington Metropolitan Area Transit

Commission (the WMATC) with authority to issue certifi-

cates of public convenience and necessity and to prescribe

routes with respect to transportation for hire by motor ve-

hicles in the Washington Metropolitan District, did not re-

voke by implication or supersede the authority of the Secre-

tary of the Interior to promulgate reasonable regulations

with respect to administration and use of the George Wash-

ington 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 suf-

ficient 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 of the Interior through the National Park

Service in issuing permits for such use according to such

reasonable regulations.

(6) The National Park Service Reguiations promulgated

by the Secretary of the Interior are unreasonable, arbitrary,

capricious, discriminatory, and therefore invalid, insofar as

they do not permit suburban commuter buses owned by

W. V. & M. and D.C. Transit to operate without limita-

tion on the Parkway above the Key Bridge including the

Spout Run section pursuant to their certificates from the

WMATC. The regulations are unreasonable, arbitrary, capri-

cious, discriminatory and therefore invalid insofar as, and

so long as, other regulations do permit suburban commuter

buses owned by other bus companies to operate without

limitation of the Parkway below the Arlington Memorial

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

a ES ee OR

App. 29

the southern part of the Parkway but not on the portions

above the Key Bridge, so, too, is any refusal of the Secre-

tary 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 refusal on such un-

reasonable, arbitrary, capricious, discriminatory, 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 seek-

ing a declaration of invalidity as to the regulations which

deny their suburban commuter buses unlimited access 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 com-

muter buses unlimited access to the Parkway below Arling-

ton 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-

ness and inaintenance 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

invalidity as to the regulations which deny its suburban

commuter buses any access to this portion of the Park-

way will be denied.

(10) All parties shall bear their own costs.

John J. Sirica

April 13, 1967 United States District Judge

ee Ne Pe tae

ORDER OF JUNE 9, 1967, OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLUMBIA

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

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 is by the Court, this 9th day of June, 1967,

Orperep, Apsupcrp anv Decree, ia 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

‘Jong 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

Orperep 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, ard it is finally

Orperep that the request of the Washington, Virginia

and Maryland Coach Company, Inc. for a refund of —

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

App. 31

And it is Orveren, Apsupcep AND Decreep, in Civil Ac-

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

Capital Region, National Park Service, as amended De-

cember 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

Orneren that all requests for affirmative relief are denied.

/s/ Joun J. Strica

United States District Judge

Ce SE ee Ree

App. 32

APPENDIX 3

Anited States Cowt 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.

’

App. 33

Transit System, Inc.

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

ler was on the brief, for intervenors Washington Metropolitan

Area Tratisit Commission 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

TamM, 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 Pa~~

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.).

App. 34

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-

snitted from Memorial Bridge north to Key Bridge. North

of Key Rridge 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 te 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 Virginia, 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

- 236 CER. § 50.36(b)(3Xi) (Supp. 1968).

App. 35

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.

Aiter 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 timitation 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 implication 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.

App. 36

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 reason. 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 Memio-

rial Bridge while comparatively little is permitted above Key Bridge

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

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

40.

5The 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 2 handful venture to the north. But the riders

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

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

for the southern sector of the Parkway.

App. 37

traffic on the southern sector, while prohibiting it to the

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

Building, 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 objection-

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 aad 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 “thet 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).

LIMES PNR OLD 2 OEE LITE IR PID IS ITS NG BT

SE ARON PLAT

PES OO POLLO INL NE PIORL ID NE A Se

“ce AE Enema LO OE ibe

TETRA EADIE LAE Be Om

App. 38

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 allowed 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 uphold it. For where there is more than one solution to

an administrative proolem the court will uphold any one

that has a rational basis. Udall v. Tallman, 380 US. 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.

8 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).

App. 39

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

abuse.” A. T. & T. Ca. v. United States, 299 U.S. 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. v. Udall, i114 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 concluded 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 sightsecing buses make 200, is certainly not

decisive. Two hundred and fifty-two buses, authorized 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.

Reversed.

pec SE ects

App. 40

TamM, Circuit Judge, dissenting: | would affirm the action

of the District Court. I agree with the ! sowledgeable trial

judge that the Secretary’s regulations are “‘unreasonable,

arbitrary, capricious, discriminatory, and therefore invalic,

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 cperator, id

-st, 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.

App. 41

APPENDIX C

Affidavit of The Secretary of Tue Interior in Support of

Government’s Motion for Summary Judgment, Filed

January 16, 1964

District of Columbia

Stewart L. Udall, being duly sworn, says that:

1. I am Stewart L. Udall, Secretary of the United States

Department of the Interior, having been duly appointed by

The President of the United States, on January 21, 1961.

2. By Statute, 16 U.S.C. $5, I am charged with the

responsibility of promulgating such rules and regulations

as I may deem necessary ot proper for the use and manage-

ment of parks of the national capital region. The George

Washington Memorial Parkwey is 4 part of the park

system of the national capital region. This Parkway, which

is located along the Potomac River in Virginia and Mary-

land, abounds in natural beauty and affords the people of

the Washington Metropolitan area a panorama of unsur-

passed scenic splendor. Observation stations have been

established along the Parkway where motorists may stop in

the course of their travels, and derive some benefit from

the natural beauties which surround our Nation’s Capital.

Congress by virtue of the provisions of the act of May 29,

1930 (46 Stat. 482) and the act of August 95, 1916 (39 Stat.

535), as amended (16 U.S.C. § 1), has expressed its concern

that the scenery and natural objects found on the George

Washington Memorial Parkway (as well as on other Fed-

eral lands within the National Park System) be conserved

‘n such a manner as will leave these natural landmarks of

our Nation’s Capital unimpaired for the enjoyment of

future generations.

City of Washington -

tN Be, —? pt, re 2 nee

App. 42

3. 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 purpose of -

transporting passengers between the Virginia suburbs and

the District of Columbia. The use of this Parkway by

‘ ever-increasing numbers of commuter busses with their

“great bulk, trucklike characteristics, and odors, as is con- -

templaied by the Washington, Virginia & Maryland Coach

Company, would, in my opiniex, physically damage the

scenic value of the Parkway. Further, other routes are

availahie for transportation of passengers between the Dis-

trict of Columbia and tke suburbs of Northern Virginia.

4. In ray judgmeut, allowing permanent commuter bus

service of the nature described above, would not be in the

_ psblic interest, and would be inconsistent } wae the intend-

ment of Congress. '

5. I have therefore proraulgated elation whick

strictly limit the tse of the George Washingtor Memorial

Parkway between Washington, D. C., and McLear, Virgizia,

by commuter bus service to direct nonstop service to the

Central Intelligence Agency building in Virginie, and to

novscheduled direct, nonstop service for Dulles Interna-

tional Airport, both of which ure Federa! facilities. In

my judgment, and after weighing the interest of the public

in retaining the present natural beauty of the Parkway

and its environs as against the compelling necessity to

provide OIA employees swift and immediate access to

their Agency, the latter consideration required that I,

however, reluctantl;,, make the Parkway available for serv-

ice to the Central Intelligence Agency. Similar considera-

tions prompted my decision with regard to the use of the

Parkway for access to Duiles International Airport. No

such countervailing considerations ate present in the case

of permitting use to be made of the Parkway by the Wash-

ington, Virginia & Maryland Coach Company, for com-

iene

App. 43

muter service between the Northern Virginia suburbs and

Washington, D. C. :

/s/ Srewast L. Upatn

Stewart L. Udall,

ees re Secretary of the Interior

" District of Columbis :

I, Harold I. Carleon, 9 notary public in and for the

District of Columbia, do hereby certify that Stewart. L.

Udall, Secretary of the Interior, personally appeared before

"me in said District, the said Stewart L. Udall being per-

sonally well known to rae as the person who executed the

, affidavit hereto annexed, and acknowledged the same to

be his act and deed, as said Secretary of the Interior.

Given under my hand and seal this 2nd day of January,

1964.

/s/ Harotp L. Cartson

Notary Pubiic

My Commission expires November 14, .1968

App. 44

APPENDIX D

Statutes Involved

Pertinent parts of the Washington Metropolitan Area Transit Regule-

tion Compact, as approved by Act of September 15, 1960, 74

Stat. 1031, D. C. Code, § 1-1410 to 1-1416 (1967 ed.):

* * a

Resolved by the Senate and House of Representatives

_ of the United States of America in Congress. as-

' sembled. That the consent and approval of Congress is

i; hereby given to the State of Virginia and Maryland

: and to the District of Columbia to enter into a com-—

; pact, substantially as follows, for the regulation and

improvement of mass transit in the Washington metro-

politan area, which compact, known as the Washington

Metropolitan Area Transit Regulation Compact, has been

negotiated by representatives of the States and the

District of Columbia and has been adopted by the State

of Virginia (ch. 627, 1958 Acts of General Assem-

bly), and in substance by the State of Maryland:

Compact, Article I

ARTICLE I

There is hereby created the Washington Metro-

politan Area Transit District, hereinafter referred

to as Metropolitan District, which shall embrace

the District of Columbia, the cities of Alexandria

and Falls Church, the counties of Arlington and

Fairfax, and political subdivisions of the State of

Virginia located within those counties and that

portion of Loudoun County, Virginia, occupied by

the Dulles International Airport and the counties

tbat ike tt. Mi Fes 60th BI BRD AIGI 0 ie PGS

App. 45

of Montgomery and Prince Georges, in the State

of Maryland and political subdivisions of the

Stzte of Maryland located within said counties, and

all other cities now or hereafter existing in Mary-

land or Virginia within the geographic area

bounded by the outer boundaries of the combined

area of said counties, cities and airport.

Compact, Article II ,

ARTICLE II

The signatories hereby create the “Washington

Metropolitan Area Transit Commission,” herein-

after called the Commission, which shall be an in-

strumentality of the District of Columbia, the

Commonwealth of Virginia and the State of Mary-

land, and shall have the powers and duties set forth

in this compact and such additional powers and

duties.as may be conferred upon it by subsequent

action of the signatories. The Commission shali

have jurisdiction coextensive with the Metropolitan

District for the regulation and improvement of

transit aud the alleviation of traffic congestion

within the Metropolitan District on a coordinated

basis, without regard to political boundaries with-

in the Metropolitan District, as set forth herein.

Compact, Article XII, §§ 1(a) and 4(a)

ARTICLE XII

Transportation Covered

1. (a) This Act shall apply to the transporta-

tion for hire by any carrier of persons between any

points in the Metropolitan District and to the per-

aa AC AED Cita aS sg sneien naan

App. 46

sons engaged in rendering or performing such

transportation service, except—

(1) transportation by water;

(2) transportation by the Federal Government,

the signatories hereto, or any political —_——

thereof ;

(3) transportation by motor “hides employed

solely in transporting school children and teachers

to or from public or private schoois;

(4) transportation performed in the course of

an operation over a regular route, between a point

in the Metropolitan District and a point outside the

Metropolitan District, including transportation be-

tween points on such regular route within the

Metropolitan District as to interstate and foreign

commerce, if authorized by certificate of public

convenience and necessity or permit issued by the

Interstate Commerce Commission, and any carrier

whose only transportation within the Metropolitan

District is within this exemption shall not be

deemed to be a carrier subject to the Compact;

provided, however, if the primary function of a

carrier’s entire operations is the furnishing of

mass transportation service within the Washing-

ton Metropolitan Area Transit Disirict, then such

operations in the Metropolitan District shall be sub-

ject to the jurisdiction of the Commission;

(5) transportation performed by a common car-

rier railroad subject to Part I of the Interstate

Commerce Act, as amended.

——

App. 47

Certificates of Public Convenience and Necessity;

Routes and Services. |

4. (a) No person shall engage in transportation

subject to this Act unless there is in force a cer-

tificate of public convenience and necessity issued

by the Commission authorizing such person to en-

"gage in such transportation . .

Consent Legislation, §3.

That, upon the effective date of the compact

and so long thereafter as the compact remains ef-

fective, the applicability of the laws of the United

- States, and the rules, regulations, and orders pro-

mulgated thereunder, relating to or affecting trans-

portation under the compact and to the persons en-

gaged therein, including those provisions of ‘sec-

tion 6(e) of the District of Columbia Traffic Act,

“1925, as amended by the Act approved February

27, 1931 (46 Stat. 1426; Sec. 40-603(e), D.C.

Code, 1951 edition), relating to the powers of the

Public Utilities Commission of the District of Co-

lumbia and the Joint Board created under such

section, is suspended, except as otherwise specified

in the compact, to the extent that such laws, rules,

regulations, and orders are inconsistent with or in

duplication of the provisions of the compact: Pro-

vided, That upon the termination of the compact,

the suspension of such laws, rules, regulations, and

orders, if not theretofore repealed, shall terminate

and such laws, rules, regulations, and orders shall

thereupon again become applicable and legally ef-

fective without further legislative or administra-

App. 48

tive action: Provided further, That nothing in

this Act or in the compact shall effect the normal

and ordinary police powers of the signatories and

of the political subdivisions thereof and of the Di-

rector of the National Park Service with respect

to the regulation of vehicles, control of traffic and

use of streets, highways, and other vehicular facili-

ties: Provided further, That nothing in this Act

or in the compact consented to and approved here-

by shall impair or affect the rights, duties, and ob-

ligations created by the Act of July 24, 1956 (ch.

669, 70 Stat. 598), granting a franchise to D.C.

Transit System, Inc |

Consent Legislation, $ 6 |

Sec. 6. Jurisdiction is hereby conferred (1) upon the

United States Court of Appeals for the Fourth Circuit and

the United States Court of Appeals for the District of

Columbia Circuit, respectively, to review orders of the

Washington Metropolitan Area Transit Commission as

provided by section 17, article XII, title II, of the Wash-

ington Metropolitan Area Transit Regulation Compact, and

(2) upon the United States district courts to enforce the

provisions of said title II as provided in section 18, article

XII, title II, of said Compact.

ST METER TY) SPRUE ATTY :

App. 49

i a

Pertinent parts of the acts administered by the Secretary of the Interior

in managing the national park system:

1. Section 1 of the Act of August 25, 1916, 39 Stat. 535,

16 U.S.C. $ 1:

There is created in the Department of the Interior

a service to be called the Nationai Park Service .. .

The service thus established shall promote and regu-

late the use of the Federal areas known as national

parks, monuments, and reservations . . . by such

means and measures as conform to the fundamen-

tal purpose of the said parks, monuments, and res-

ervations, which purpose is to conserve the scenery

and the netural 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. S

2. Section 3 of the Act of August 25, 1916, 39 Stat.

535, 16 U.S.C. § 3:

The Secretary of the Interior shall make and pub-

lish such rules and regulations as he may deem nec-

essary or proper for the use and management of the

parks, monuments, and reservations under the juris-

diction of the National Park Service, and any viola-

tion of any of the rules and regulations authorized

by this section *** shall be punished by a fine of

not more than $500 or imprisonment for not ex-

ceeding six months or both, and be adjudged to pay

all costs of the proceedings. ***

3. The Act of May 29, 1930, 46 Stat. 482, 483:

... there is hereby authorized to be appropriated

the sum of $9,000,000, . . . for acquiring and de-

veloping, except as in this section otherwise pro-

vided, in accordance with the provisions of the Act

of June 6, 1924 [43 Stat. 463, 40 U.S.C. sec. 71

et seq.}, entitled “An Act providing for a compre-

App. 50

hensive development of the park and_playground

system of the National Capital,” as amended, such

lands in the States of Maryland and Virginia as are

necessary and desirable for the park and parkway

system of the National Capital in the environs of

Washington. Such funds shall be appropriated as re-

quired for the expeditious, economical, and effici-

ent development and completion of the following

projects:

(a) For the George Washington Memorial Parkway,

to include the shores of the Potomac, and adjacent

lands, from Mount Vernon to a point above the

Great Falls on the Virginia side, except within the

city of Alexandria, and from Fort Washington to a

similar point above the Great Falls on the Maryland

side except within the District of Columbia, and in-

cluding the protection and preservation of the natu-

ral scenery of the Gorge and the Great Falls of the

Potomac, the preservation of the historic Patowmack

Canal, and the acquisition of that portion of the

Chesapeake and Ohio Canal below Point of Rocks,

$7,500,000: Provided, That the acquisition of any

land in the Potomac River Valley for park purposes

sha!l not debar or limit, or abridge its use for such

works as Congress may in the future authorize for

the improvement and the extension of navigation

_. . or for flood control or irrigation or drainage,

or for the development of hydroelectric power .. .-

4. The Act of August 8, 1953, 67 Stat. 495, 496, 16

U.S.C. § le:

(a) The term ‘‘National Park System” means all

federally owned or controlled lands which are ad-

ministered under the direction of the Secretary of

the Interior in accordance with the provisions of the

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

and which are grouped into the following descrip-

tive categories: (1) National parks, (2) national

monuments, (3) national historical parks, (4) na-

tional memorials, (5) national parkways, and (6) na-

tional capital parks.

| eae Doth or hr he eC AAG AT AL

App. 51

APPENDIX E

REGULATIONS OF THE SECREIFARY OF THE IN-

TERIOR ADOPTED ON NOVEMBER 16, 1962 (36

C.F.R. 50.36)

(a) Operation in park areas prohibited; exceptions. Com-

mercial vehicles and common carriers, loaded or unloaded,

are prohibited on park roads and bridges except on roads

designated by order of the Superintendent, or when author-

ized vy official permit in an emergency, or when operated

in compliance with paragraphs (b), (c) or (d) of this section.

(b) George Washington Memorial Parkway; passenger-

carrying vehicles; permits; fees. (1) Taxicabs licensed in

the District of Columbia, Maryland, or Virginia, shall be

permitted on any portion of the George Washington Memo-

rial Parkway without being required to obtain a permit or

make payment of fees.

(2) Passenger-carrying vehicles for hire or compensation,

other than taxicabs, having 3 seating capacity of no. more

than fourteen (14) passengers, excluding the driver, when

engaged in services authorized by concession agreement to

be operated from the Washington National Airport and/or

Dulles International Airport, shall be permitted on any por-

tion of the George Washington Memorial Parkway in Vir-

ginia without being required to obtain a permit or make

payment of fees. Such vehicles when operating on a sight-

seeing basis shall comply with subparagraph (4) of this para-

graph.

(3) Passenger-carrying vehicles for hire or compensation,

other than those to which subparagraphs (1) and (2) of this

paragraph apply, may be permitted on the George Wasning-

ton Memorial Parkway upon application for, and the grant-

ing of a permit by the Regional Director, National Capital

Region, National Park Service under the following condi-

tions:

sat Pie PPE Ai lS Malt as Yad

App. 52

(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 ter-

minus at the Central Intelligence Agency Building at Lang-

ley, 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. 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.

(ii) When operating nonscheduled direct, nonstop serv-

ice primarily for the accommodation of air travellers arriv-

ing at or leaving from Dulles International Airport or Wash-

ington National Airport (a) between Dulles International

Airport and a terminal in Washington, D.C., over the George

Washington Memorial Parkway between Virginia Route 123

and Key Bridge; (b) between Washington National Airport

and a terminal in Washington, D.C., over the George Wash-

ington Memorial Parkway between Washington National Air-

port and 14th Street Bridge; and (c) between Dulles Inter-

national Airport and Washington National Airport over the

George Washington Memorial Parkway between Virginia

Route 123 and Washington National Airport. Permittees

shall file a report of all operations and total miles operated

on the George Washington Memorial Parkway.

(iii) Permits shall be issued, normally for a period of one

year effective from July 1 until the following June 30, at

the rate of one cent (1¢) per mile for each mile each such

vehicle operates upon the parkway. Payment shall be made

quarterly within twenty (20) days after the end of the quar-

ter based upon a certification by the operator of the total

mileage operated upon the parkway.

(4) Sightseeing passenger-carrying vehicles for hire or

compensation other than taxicabs may be permitted on the

avn ae

PR ON eshte tLe Soret etal 2 Meee Ps 1 ORR i TS

App. 53

George Washington Memorial Parkway upon application for,

and the granting of a permit by the Regional Director, Na-

tional Capital Region, to provide sightseeing service on any

portion of the parkway. Permits may be issued either on

an annual basis for a fee of three dollars ($3.00) for each

passenger-carrying seat in such vehicles; on a quarterly basis

for a fee of seventy-five cents (75¢ ) per seat; or a daily basis

at the rate of one-dollar ($1.00) per vehicle per day.

commercial trucks when such trucking is in no way con-

nected with the operation of the park system is prohibited,

except (1) on the section of Constitution Avenue east of

19th Street, (2) that in special cases, trucking permits may

be issued at the discretion of the Superintendent.

(d) Taxicabs—(1) Operations around memorials. Parking,

except in officially designated taxicab stands, or cruising on

the access roads to the Washington Monument, the Lincoln

Memorial, the Jefferson Memorial, and the circular roads

around the same, of any taxicab or hack without passengers

is prohibited. However, this section shall not be construed

to prohibit the operation of empty cabs responding to defi-

nite calls for hack service by passengers waiting at such

Memorials, or of empty cabs which have just discharged pas-

sengers at the entrances of the Memorials, when such opera-

tion is incidental to the empty cabs leaving the area by the

shortest route.

(2) Stands. Taxicab stands to serve the public conven-

ience may be established by order of the Superintendent in

suitable and convenient places.

(e) The provisions of this section prohibiting commercial

trucks and common carriers shall not apply within “other

Federal reservations”, in the environs of the District of Co-

lumbia, as defined in § 50.4(b), and shall not apply on that

portion of Suitland Parkway between the intersection with

Maryland Route 337 and the end of the Parkway at Mary-

land Route 4, a length of 0.6 mile.

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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.