Petition for Writ of Certiorari — John A. Volpe v. D. C. Federation of Civic Associations

Supreme Court brief1972

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SUPREME reg O- 71-4 I ig 9 3 1

t, vs

a the Supreme Goutt af: the gy ai Court, US.

I es a Tay, leas J] AN uy 197?

; “€. ROBERT SEAVER, CEERI

jy OHN A ‘Vests, cictenon OF TRANSPORT ATION, =

es . s, Pe ~~

v. . ds 4

‘De Fupenatiox OF Crvic AsioctammONS Et 4 id:

"PETITION FOR A WRIT OF CERTIORARI 10 THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT ce ;

. ERWIN N. GRISWOLD,

Waker. Solicitor General, :

e KENT FRIZZELL, > ks

oo itt At bOr ney Generar

et peter i gees ALLAN A. TUTTLE, |

"g ; ot - Assistant to.the Solicitor General, g

; EDMUND B. CLARK, , . °

‘THOMAS L.. McKEVITT, ake et a

aS PETER R. ‘STEENLAND, Sees SPURT —

a ee eats vanecstt pe yect

’ ra ; Ps Z Attorneys,

‘ ‘ : : a, - Department of Justice,

« Washington, D.C. $0530..

JOHN w. ‘BARNUM, :

General. Counsel,

Deportment of Transportation,

400 7th Street, S.W..,

; Washington, D Cr 20590.

Cc. FRANCIS MURPHY, ~

Corporation Counsel,

. ‘JOHN R. HESS, ae

Principal Assistant Corporation Counsel, ONS ee ie Tee

- District of Columbia, : Br ce

District. Building,

a oe _ 14th and E Streets, N.W., ; ae Ris

% att ae. D.C. 20004. re i 8?

—- K\

pila IE LO GS RE Se , a =~ r meme RID RIE ? i a

“4(f), as amended, 49 U.S.C, 1653(f) IPI GR et AI Fe 11

Federal-Aid Highw: ay Act of 1968,°82 Stat. 815, et seq, =~

as amended: ,

Sec. 18 (23 U. S.C..138) vase ue : 2, 5, 6, 11, 12 13, 215a

See.23_ ones ee | » 3, 4, 6, 16, 17, 19, 215a

: a)

452-396—72——1

INDEX re

. ; ‘Page

Opinions Wiley ee mks emaca we SE ea '

NE oo ooo Seca wowcxawee Deamketaeenaey oe

Stataites involved. ____--.--_---.-------4- Jets oe

Questions presented ..220120 2.2222 egenneetogceele ne ee ase

Statement::________________ ‘spo eyeeeeee aekcia alent i 3 2... Bs

Reasons for granting the w Mo wee Sieeeus 5 :

Ci a gages himeaee 20—

Appendix ee Pe I EBERT Sr la

Appendix | ee eae a eed eee Se <aeawsie:

Appendix ©!) __°.____- femora aden re her a ys --- 64a *

Appendix D____-_____- hia ae ec oecly oem ove cee 65a |

Appendix E.... Epreenieace en Bp e a Wea tes eee ’ 67a |

Appendix F Pin eager s eee pean ee si pene 1538

Appendix G___- - Bil SRN ee. roses skeet ee

Appendix H______.__--_-- ‘ (haan ena ghee aaie as-- $380 te

CITATIONS fr

Cases: wee

‘Citizens to Preservé Cente Park v. Volpe, 401 U. S. 402 12

DA. Federation of Civie Associations vy. Airis, 391 :

» Bice Se ee poe ee 2

Statutes and Rule:

Department of Trausportation Act: of 1966, Sectietn .

‘i : 28 .

RCAC TRU ile mei Std coe ERS Vas Ghia Tp, OE ey Se eS ai

> e ie a i o _ re ae 2 Sa

2 5 te

- ‘Singuits wil ida iiathiiea” ae r .

_ Title 23, U.S. ‘Code: | ho a hee at Page

See. | TET apie ope _ 2, 4, ‘* 6, 11, 213a

Sec.. fn a aaa ications 2, 4,5, 6, 13, 14, 213a

2S6e194__ 2-2-2 e- ones -ay---| 25,6, 7,8, 10, 214a

’ Title 7, D.C. IR oneness nanan} oa ek mae 3

“Rule 52, F.R. Civ. __ See em cee eee ceo | eee

Miscellaneous: ee thn a os

-- 414 Cong. Rec. 24030 (1968)..-------2------------ 19

114 Cong. Rec..23710 (1968). 2... = ---+----- 2

_H. Rept. No. 1799, 90th Cong., 2d Sess___-__ eee

-H. Rept. No. 1948, 87th Cong., 2d Seas ..2..21--- 25 9

S. Rept. No. 1997,.87th Cong., 2d Sess___---------- 9

= . o :

; ane: e ; : ; a eo

= 3 the picnin Gow oft the inited sis

OcroBER TERM, 1971 .

No. 71-, j

J OHN A. Vor PE, ‘SECRET: ARY OF TR ANSPORT ATION,

ET AL, PETITIONERS

7 Vv. : ; :

D.C. are ae oF CIVIC AssocraTIons, ET AL.

" PETITION FOR A WRIT OF CERTIORARI T0 THE UNITED STATES | -

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

. CIRCUIT

an a

The Solicitor General, on behalf of the federal. peti-

tioners, and the Corporation. Counsel 6f the District

CPS IE H

of Columbia, or. behalf of the District of Columbia .

: petitioners, pray that a writ of certiorari issue to re-

“+ view the judgment ‘of the United States Court of

— for the District, of Columbia Cironit: in this

case. ‘tien - adel eae

; OPINIONS BELOW rae

‘The opinion of the court of appeals (Pet. App.

_ A, 1a) is not yet reported. The opinion of the distritt

court (Pet. App. E, _ is si guise 316. F. Supp.

154. ae d E : : ws ‘ ' 3s is

a sey Boe JURISDICTION _

The judgment of the court of appeals was en-

| tered on October 12, 1971: (Pet. App. B, 62a). A:

timely petition for rehearing” was denied: on ccs

(1) 0

_ @

naa “

- . FF

2, 1971 (Pet. App. €, 64a)" The \jurisdiction of this

Court is oe under 28 U.S.C. 14(1).. ,

: : | STATUTES INVOLVED

The statutes involved are Title : 23,. United States

Code, Sections 109, 728; 134 and. 138, and Section 23 of

the Federal-Aid Highway Act -of 1968 8, 82 Stat. a et

seq. These statutes are reproduced as Appendix H,.

infra, ‘Pp. 21: a—216a.. Oe a oie

QUESTIONS PRESENTED .. ||

dL Whether the regional planning, safety, envir

mental protection, and location hearing provision:

23 U.S.C. bar, the Secretary of Transportation fr

_ authorizing federally assisted highway projects s nintil :

/ “final plans’’ have been prepared. : ;

2. Whether Section 23 of the Federal: Aid Highway:

Act of 1968 pr ecludes the application ofr thosé pro- -

visions of: 23 U.S. C. which would delay cofmencement

ofxconstruction of ‘the Three ; Sisters Bridge heyond

“the 30- “day period. specified in: Section. ¥3: LA

: STATEMENT : ff

This controve ersy arises out: ‘of ‘the, proposed con-

struction of. the Three. Sisters Bridge over >the

Potomae River between the Georgetown) waterfront.

in the District of Columbia and Spout Run-in Vir: »

ginia.The full, history of this litigation is set forth’

in the. most recent opinion of the district court, 316 _

F.Supp. 754;\at 758-761 (Pet. App. Bia-TBa), and

may be: Bes oR as follows: - 2°

Following the decision in D.C. Federation: of Civie -

Associations v v. Airis, 391 F. 2d 478 (¢. A.D.C. 2 which’

: pers with plans for the bridge in violation of eer-

tain provisions of Title 7-of ‘the D.C. Code, Congress: -’

on. August 23, 1968, enacted Section 23 of the Feder ‘al

held that the District ‘of, Columbia was isle. pr me

Aid Highway Act of 1968. That Section required: the

-. Distriet of Columbia, “Nw otwithstanding any other pro-.

"vision of: law, ox any, court decision or administrative

a tion -plan. which did, not inchide the Three Sisters{

action to the contrary, * * ** to begin construction of

the Three Sisters. ‘Bridge within 30 days,. with such

coustruction to “be « ‘arried out in accordance with all®

applicable: provisions of title 23 of the United States.

Code. ” In December .1968 the National Capital. Plan-

ning Comniission adopted a compreher nsive transporta-

Bridge (Pet: App. 70a)}.’..The I).C. Council approv ed

‘that plan and; in January 1969, the bridge Wax delete d.

from the interstate highway system (Pet. _ApP. 70a). :

In August 1969, the D.C. Council ‘reversed its previous: .°

action andthe Secretary of Transportation directed

_ the bridge’s reinstatement in the interstate system.

A contract. for preliminary construgtion, was let in

September 1969 (Pet. App. 71a). .

‘In October: 1969, the respondents filed this suit site.

a to: -enjoin further construction tintil the District

Columbia arid the Department of Transportation

) h ck complied with, inter alia, certain provi isiong of

23. U.S.G. and Title 7 of the D.C, Code. The ‘dénial

| by. the district court ¢ of the re espon lents’ motion for a

‘

’ The tou plarining agency, the ip alisport tation Planning ;

Board of the Washington Council of | Governments. has ap-

proved the Tliree Sisters: Bridge project continuously since

December 1967 (Pet. App. 146a)." as

"preliminary injunetion was affirmed by the court of

-appeals on October 31, 1969 (Pet. App. 72a). After a

hearing, the district court.on January “12, 1970, ruled |

for the petitioners, holding- that Section 2 3 of the Fed- °.

eral-Aid Highway Act constituted a directiv e from Con-

gress that the project should go forward as soon as

possible, and without the necessity of compliance with

planning provisions of Title 23 wich would delay

the commencement of construction..On April 6, 1970,

the court of appeals reversed this ruling, and remanded

the case for an evidentiary hearing to ascertain

whether petitioners had complied with the provisions

of Title 23 (Pet. App. 157a; 434 F. 2d 436). ° | |

Following ten days of trial, more than 100 exhibits,

and over 1,500 pages of transcript (which included

a full day of testimony by Seeretary of Transporta- °

tion John A. Velpe), the district court issued a 45-page

opinion (316 F. Supp. 754, Pet. App. 67a-is2a)

enjoining construction of the bridge until the

defendants had complied with the design hearing ©

" vequirements of Section 128 and the safety require--

-ments of 109, but holding that in all other respects,

the Déestrict of Columbia and the Secretary of Trans-

portation had complied — the a es of .

Title 23.

* The cai has since held Section 128 design hearings.

In contrast to the later holding of the- court of «appeals,

the district court found it consistent with Section 109(a) for

the Secretary to ‘et contracts for pier excavations, in order to

explore the subsurfacé conditions. but it enjoined actual con-

struction of the bridge until it was found structurally feasible.

Subsequent model testing has since confirmed the structural

fe asibility of the proposed bridge...

« e " it OSD en eT ee ee ee eee eee eee ea

° - eee

The case was again iene to the court of -ap-

peals by appeals and eross-appeals. On October 12,

1971, a majority of the appellate court panel held

that the petitiofers had failed to comply with any of

the provisions of Title 23 considered by the district

‘court. The court found that the petitioners had not

complied with Section 138 (parklands) ; Section 134

(continuous comprehensive transportation planning) ;

Section 109(a) (safety and structural feasibility) ;

‘ and Section 128 (location héaring) (Pet. App. 1a). The

court of appeals remanded the case “to the District |

‘ Conrt with directions that it return the case to the See-

retary [of Transpertation] for himto perform his statu-

tory functign in accordance with this opinion” ( Pet.

App. 32a)° A timely petition for rehearing and sug-

gestion of rehearing cu bane ' was denied (Pet. App.

G2a, 64a).

REASONS FOR GRANTING THE WRIT

The decision below construing the planning, safety,

environmental protection and location hearing pro-

“One member of the majority panel. Chief Jiidge Bazelon.

declared that extraneous political pressure from members of —

Congress. who sought to expedite construction of the bridge

by blocking appropriations for the District of Columbia pub-

way system, was by itself sufficie nt to invalidate the Secretary's

actions, even if there had been formal compliance with the

"applies able statutes (Pet. App. 24a—jla). Since the judge con-

curring to constitute the majority found it “unnecessiry to

decide the case on this independent ground™ and was “not en-

tirely_ convineed™ that “extrangous pressure had influenced the

. Secret ary’s decision™ (Pet. App. 25a-26a). there is no majority

finding of such impropriety in this case. We therefore do not

consider Chief Judge Raze lon’s views on that subject im this

petition. .

: |

= rear

visions of Tithe 23 (23 UNC. 134, 109, 138, 128) to

prevent the Secretary and Department of Transporta-

tion from. authorizing highway projects until final

plans are prepared inisconceives the purpose of these

" provisions and the nature of the highway planning

and building process, and imposes requirements on

the Department. inconsistent with the proper dis-

charge of its duties in implementing the federal high-

way program. Compliance with the court of appeals*

view of the: Departihent’s statutory obligations would,

in most -instances, aésult ino substantial delays and —

require substantial additional expenditure of public

funds and would, in some instances, be almost impos-

sible: Review by. this Court is needed _to resolve these

important differences between the responsible govern-

ment agency and the court below concerning the basic

manner in which the federal highway prograin is to be

administered under the governing statutes.

Moreover, the decision below and the previous deci-

sion of the court of appeals frustrated the mtent of

Congress that construction of the Three Sisters

Bridge should .commence within thirty days of the

enactment of the Federal-Aid Highway. Act of 1968

ar? that only those provisions of Title 23 which did not

delay construction would be applicable to this partie-—

ular. project. The court’s failure to comply with Con-

gress’ specifie directive concerning this bridge also,

we submit, warrants this Court’s review so that the

case can be considered in its full statutory context. |

‘.1. The court of appeals set aside nearly every deter-

mination of fact and law made in favor of the peti-

tioners.’ The court of appeals held that the absence of

final plans invalidated each determination required to —

. be made by the Secretary under. Title 23 before the

Three Sisters Bridge project could commence. Wersub-

mit that, with respect te each of the Secretary’s deter-

niinations, the information before him was adequate

and was all that is required or, indeed, appropriate ,

under the statutes at issue. For, under these provisions

of Title 23, the Secretary has 2 continuing obligation

to assure that the planning, safety, and eny ironmental

requirements will be observ ed as plans are developed.

during the course of the project—and not merely after -

the final plans have been made. And, as the dissenting -

“judge below noted, adequate judicial review is “assured

by ‘the possibility of subsequent attack if it develops

that the final plans do not meet the statutory standairds

(Pet. App. 45a).

SECTION 13%

Section 134 ‘requires that any highway project in

an urban area approved by the Secretary he “based

on a continuing comprehensive transportation plan-

ning process carried oh cooperatively by States and

local communities * * *.” The detertnination of com-

pliancé with this standard here was delegated to the

Division Engineer of the Bureau of Public Roads, Mr..

Charles Hall. In 1965 Mr. Hall recognized the Trans-

‘ portation Planning Board (TPB) of the Washington -

*While we believe the court of appeals exceeded the proper

scope of appellate review under Rule 92, Fed. R. Civ. P..

-in-setting aside the district court's carefully documented fac-

tual findings, we limit our discussion to what, we submit, were

the court of appeals” errors of law relating to,the questions pre- -

sented-in this petition. - ; \

———

TODOS OS Ree nes GAL, Aloe sg? ae ‘

Linke SAL eT an at gi ie NT GARE

Council of Governments (COG). asthe relevant orga-—

_ nization to refer to for regional planning ‘‘carried on

cooperatively by States and loval communities” in the

National Capital area (Def. Exh. 10). The COG is an

organization composed of the local governments of the

District of Columbia and several local jurisdictions in

Maryland and Virginia in the greater metropolitan

area. The TPB i is the Senepergion: ssoves arny of

Dam oe Salamaiiallin planning agency in the proc-

ess of developing «bmprehensive transportation

-plans.’ At the time.Mr. Hall made his determination

under Section 134, ‘in August or September of 1969,

he knew of TPB’s approval of the Three Sisters

Bridge in 1967- (Pet. App. 146a),.as well as its con-

“tinning review of the project (Pet. App. 146a). The _

_ district court approved the Department’ s determina-

tion. . ’

The court of ead rejected the Department’s de-

- termination on several grounds.” At bottom, however,

the court. of appeals held that no regional planning

approval could be given to the Three Sisters Bridge

project’ until the final plans were drawn. “‘[WJe

* The Distriat of Columbia government itself has recognized |

the TPB as the appropriate agency for Section 134 determina-

tions (Pet. App. 147a: Def. Exh. 12).-The National Capital

Planning Commission (NCPC), referred to by the court of

appeals, is, by contrast, a strictly local planning agency of the

District. of Columbia.

*The court of appeals found an improper delegation to the

* TPF based on Mr. Hall’s statement that he “look{ed|~ to the

TPB (Pet. App. 13a); however, Mr. Hall's “look{ing]” to the

TPB appears proper since the comprehensive planning upon

which the Section 134 determination is to be made is planning .

“by States and local communities”.

would still have difficulty accepting the Department’s

finding without some explanation of how the Section

134 determination could be made before plans for the

bridge are finalized” (Pet. App. 14a). , '

. The requirement of “finalized’”’ plans for each. proj- ‘

ect before it- may be considered to “be “based on a:

continuing comprehensive transportation planning

ase process” misconceives the requirements of the Act and

the nature of regional transportation planning. The

- Ret requires that individual projects be based upon

regional planning, not that regional plans be based

upon final plans fox individual projects. It’ is note-

worthy that, as the court ‘of appeals observed im a

different context, the - Act refers to “planning,” not

plans. This choice of terms was deliberate. As the

Senate and House Committees explained: e

The committee recognizes that transportation

planning is ‘almost invariably a continuing

process; hence, this section has been ‘drawn in

such way as to make it clear that @ completed

com prehensive plan, as such, is not necessary to

eS meet its requirements. [S. Rept. 1997, p. 25;

Vi CH Rept. 1948, p. 13, 87th Cong., 2d Sess, (1962) ;

(emphasis added) ]." >

Long term. transportation planning requires “the

development of transportation systems, embracing vari-

- “ous modes of transportation in a-manner that will serve

the States and local eommunities efficiently and effec-

7 It is thus without significance, as the district court observed,

- that’ the TPB had not ‘inally adopted a comprehensive plan. It

‘js undisputed that the TPB approval was based upon. its

planning process. The fact that the local planning agency,

NCPC, had promulgated a final plan—omitting the bridge—

did not entitle the NCPC’s opinions to greater weight.

ia y =

a =< .

P ——— s e P . © a

tively” -(23°U.S.C. 134). Once it is determined that

aroadora bridge, in a described location, will serve the

transpor tation needs of a region, the project may be said

to be “based ona Contant compr ehensive tr ansporta-

tion planning process.” The requirement of final plans

before a project may “be included in a “tr insportation

system” would reverse the logical order of integrated

regional planning and-substitute a Balkanized patch-

work of complete but unrelated designs. Moreover, the

requirement of final plans on each particular project

before the planning determination is made could waste

substantial publie funds. in-creating individual plans

which might later be found to be Inconsistent with re-

gional needs.

SECTION 109

The determinations with regard to the safety of the

project were also made for the Department by Mr.

Hall. When Mr. Hall approved the project on: Septem-

her 2, 1969, he had before him “the plans, specifications,

and estimates for the constryction of the piers for

the Three Sisters Bridge which had heen submitted

to. him by the District, of Columbia Department of

Highways and Traftie’’ (Pet. App. 157a). At the time

of this approval preliminary preconstruction bérings

had heen conducted but were, as of then, inconclusive.

The district court held that the Department had prop-,

erly let contrac ts fore ‘xploratory exe avatrons and bor-

ings, but held that the bridge itself should not be

constructed ‘until it was detyrmined to be structurally

feasible and safe. t |

The court of appeals again set aside .the district

court’s finding of compliance wh Section 109(a) at

the time contracts were let for pier construction, hold--

2 that the statute requires a final conclusion as to

catty before any, actual construction work can begin .

(Pet. App. 1€). The court of ‘appeals’ requirement

that all safety testing be done “on paper”. (Pet. App.

l6a) igrfores Mr: Hall's testimony, relied. on by- the

district eowrt,.“that it is only after the commencement -

of the actual excavation for the pier foundations that

the engineers can be certain that subsurface conditions

are sufficient to support the piers’’ (Pet. App. 138a; Tr.

604.) In this instance a requirement of final plazis

would se ‘viously thwart the building process by requir- |

ine’ conclusions to be’ reached “on paper’ * which ‘ean

only conclusively be reached as the building pyocess

begins. The contracts in‘this case, like all other gov-

ernment contracts, anticipate and accommodate prob-

lems, such as. subsurface. conditions, that may be en-

countered in building by means of a modification

clause allowing changes .to meet” such ‘unforeseen

difficulties.

a; _ SECTION 138 me i

Section 138° of Title 23 prohibits the ‘Secretary

from approving — which will require the use

of parklands or historic sites unless he finds: that @

“(1) there is no emerge" prudent alternative to

the use of such land, and (2) such program ‘includes

all possible planning . to minimize harm” to such

* Section: 18 of the Federal-Aid Highway Act of 1968,. 82

Stat. 823. The language is identical to that of Section 4(2). of

the Department of Transportation Act of 1966, as amended,

49 U.S.C. 1653(f). :

sn Peprr sees

eres ey ‘é

- a ‘ . ¢

lands/ The’ Secretary. of Transportation 10 testified

’ that’ ‘in August of 1969- when he assessed the environ-

mental impact of the Three Sisters Bridge under

Section 138 he had before him the bridge design in an

artist’s rendering which had been approved by the.

Fine Arts Commission (Tr. 804,728, 723). Moreover,

as the district court observed, “preliminary planning

for the ramps and interchanges * * * * had been done at

_-that time’’ (Pet. App. 108a). While. the . Secretary con-

-ceded that “we did not have the complete design’ avail-

able as to exactly the degree of the turns’’ and “we did

not pin down to a tenth of an acre the amount of land

that would be required” (Tr. 736-7137), he stated

that the approaches had been narrowed to*two alter-_

‘natives (Tr. 737).

The district court held that the Secretary v’s deter:

minatioy based on these preliminar y. plans adequate-

ly satisfied Section 138; in view of the Secretary’s

recognition of a continuing obligation to:assure “that

the designs which would be dev eloped hased on the

* *° Judicial notice may be taken of the fact that any bridge

constructed across the Potomac River between Vi irginia and the

District of Columbia will necessarHy encroach on parkland.

1° We note that in renianding the case to the Secretary for

the development of “a full-scale administrative record™ (Pet. App.

82a) the court. of appeals ignored this ¢ ‘ourt’s recent decision in

Citizens to, Preserve. Overton Park v. Volpe, 401 U.S. 402. That

decision-held that formal findings were not required in the kim of

administrative decision-making here involved and that, where

the administrative record: was inadequate for judicial review,

the testimony of the decision-maker could compensate for that

-lack. The district court in this case anticipated Overton Park

by taking extensive testimony of Secretary V olpe to conipensate

for the “lack of -any meaningful administrative record” (Pet.

App. 92a).

me - e , a

preliminary plans would result in a minimum taking

of parkland’ (Pet. App. 103a).. .

The court of appeals rejected the findings of the

Secretary and the district court, holding that “Ta]bsent

a finalized plan for the bridge it is hard to ? ses how

the: Department could make a meaningful “evaluation

of ‘harm’ ” (Pet. App. 11a). But “a finalized plan for

the bridge” is not needed for this determination. Sec- ©

tion ‘138 is not concerned with. reinforcing rods or the

placement of rivets_in ‘finalized plans’’. It is con-

cerned with the impact that the bridge and its ap-

proaches will have on parklands. .These matters were —

known. Requiring final plans befere the use of. park-

land« ‘an be appr oved. or disapprov ed would be unduly

eostly because it would require the detailing of mat-

ters which are unrelated to the ends of the statute.

‘Here again the statute calls for ‘a program [which]

includes all possible planning to minimize harm” to

the park area. (emphasis added). The opinion below

appears to envisage that all planning be done at one -

time and codifie din “final pl: ms * and is contrary to

the s tute’s requirement of a dynamic program to.

minimize harm. ‘te

SECTION’ 128

; , ~ ties i ° ‘|: “Ye 2

Public lieatings with réspect to the location of the

projected bridge across the Potomac were held in No-

vember 1964. The possible locations considered were

based upon a study pr epared by a consulting engimeer-

‘ing firm (Plt. Exh: 10, Pet. App: 110a). One of the loea-

tions then considered was.that of a bridge whose ter-

Snel

—_

€

mini w ould. be 950 feet. decieieaas ani on the Vi irgimia

shore and 1500 feet. downstream on the District of

Columbia shore fromthe site of- the Three Sisters

Bridge as it is now. planned. The district court ruled

that the presently planned location Was not a “new

location”. which would require a pew location hearing

under the Department’ s, Poltey and Procedur e Mem-

-orandum implementing: Seetion 128.

The cout of appeals’ set aside this determination

with the obser vation that ‘ithe differences inthe plans,

[might]; in fact, havea substantially different impact

on both, shores’? (Pet. App. 19a): This again is’ the’

finality - requirement reintroduced, as a. speculation.

The original location hearing included consideration

8 . ry . . . e d

of locations all the way from the vicinity of Theodore -

Roosevelt Island dewnstream from. Key Bridge to a

location, 2400 feet upstream from: the Three Sisters

Tslands in the vicinity of the George Washington Res-

ervoir (Pet..App. 11a), inchiding a bridge‘only a few

hundred yards from the present site, “The De partment

the refor e had before it A the time of tlie hearing Views:

of residents and affected. persons governing every con-

ceivable location. ‘The, court of appeads’ suggestion

tliat a new location hearing might be appropriate for

every. miner variation of the original project plats in

effeet? would require the lécetion hearing tor he heid

- only after final plans have been made,y. This vould

frustrate the purpose of lowe ation hear ings, whic hoi is to

consider community res action to alternative locations

before. planning has reached ‘a stage. which would

COLES MLE

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make chi ings impractical, unduly. expe lisive or incon-,

. bins : , &

¢ oe 3

genial to the planning author ity.

; In sum we believe that the court’s construction of

Title 25

-Minations can be made is contrary to the purposes of-

that Title and would impede, its efficient adnrinistra-

tion by the Department. We helieve the better rule

ie. was suggeste ‘d by the court of appeals itself, in a foot- |

note from which, we submit, its holding. departs’ | Pet.

app. 14a, n. #2): : if = ee

retary Js not required, of COUrSe, to re-

The figs

solve evely conceivable ambiguity in a propose «l

_pli in before testing dty compliance. with the ap-

oplie “abf€ statutory provisions. But where he does

purport to make a determination required by

statute, for example under 9134, in advance of

the completion of planning, his determination

must remain flexible and be subject to continuing —

reconsideration as the plans far the project

mature, . : Man

| Perhaps the re quirement of final plans “on paper”

would facilitate the process of judic ial reylew by creat-

. ing a document which the rey iewing court can hold

up ag aust the statute. But suc ‘ha rule would prevent

the respons sible officials from making their decisions

at the times in -the planning. and building

they

“proe CSS

when ean best be’ made—and when Congress

As we have neted, allow-

ing decisions t6 be made at the proper time and place

intended them’ to be made.

in the planning precess will not prevent the courts.

as requiring final plans before relevant deter- |

ERY Be Se Meee a er ee ee COR eee oof

_ (16

at the appropriate time, from-reviewing the De ‘pare-

ment’s administration of the-Act. As the dissenting: -

judge below observed: -

“Tf it subsequently develops that tthe final plans

for some phase of the project do not meet the .-

statutory standards they may be attacked at

that time. Alternatively, the preliminary plans

could be attacked upon a showing that they

did not meet’statutory standards” [Pet. App.

43a].

2. The intent of Congress that the Three Sisters

Bridge be constructed and that ‘the government of

the District.of Columbia shall comimence work on”

it within 30 days after the enactment of Section 25

of the Federal-Aid Highway Act of 1968 has been

‘thwarted by the court of appeals. The erroneous 1970

interpretation of Section 23 by the court of appeals, .

434 F. 2d at 446 ( Pet. App. 157a), reaffirmed in its latest

decision (Pet App. la) disregards the plain language

of the Act and the supporting legislative history in

determining that all provisions of Title 23, however

time-consuming, must be met- prior to ‘starting con-

struction.

The congressional directive that this particular

bridge be constructed, as planned, without further

delay is, we submit, a complete answer to the present

litigation. The thirty days specified in Section 23 was

‘ obvionsly not enough time in which to begin again the

planning of this bridge or to hold additional hearings.

Congress hadé clearly approved the. bridge as planned

and lecated. Hearings had been held, and redoing the

preliminary werk would have been redundant. The

plain words of the 1968 Act, eho ‘asa whole and in

the light of the history of this bridge, eliminate the -—

need for redoing the already accomplished prelimi-

nary planning.

Any doubts that Section 23 meant that the bridge

was to be constructed and work was to begin with-

in 30 days are removed’ by an_ examination of the

relevant legislative history. For present purposes we

refer to only three expressions of congressional in-

tent.”

~The statement signed by seven managers on the ~

‘part of the House, which is contained in the Confer-

ence. Report, sets forth in the most positive terms the

intent to have the bridge constructed without holding

any additional public hearings or seeking the ‘approval

of any individual or group respecting the necessity

fer, the locatieh of, or Ge design of the bridge. It

-states:

In early 1966 an- agreement was reac «hed

among all affected parties.as to the location of -

the Three Sisters Bridge. Consultant engineers

- on the bridge.’

The specific design for ‘the art was ap-

" pieved by the Fine Arts Commission on Sep-

- tember 20, 1967. In writing te the Department

of Highways and Traffie granting its approval,

Mr. William Walton, Chairman of. the Fine

Arts Commission, stated in part: **We felt your

designer had performed brilliantly in creating

. : have completed 4 type-size-and-location re Port

_ ™ We invite the Court's attention to the discussion of this

matter in greater detail in the dissenting opinion below (Pet.

App. 182a-211a).

is.

a design for ane of the most important scenic

sites around the Capitad: Its simplicity and its

daring both are very-commendable chatacteris®

tiés.” _ eS os

- The detision of the, Rine Arts Commission

inthis respect saféguards the aesthetie values’

of concern to so many and preserves the beauty

and recreational. characteristics of the Potomac

River. The design approved by the Fine Arts

Commission shall be carried out precisely as ap-

"proved: with respect to-mmaterials and architec-

ture, “

The National Capital Pi: anning y , Saeeer eae

* approved the general alinement of the bridge

on September 15, L966, and the géometries on

May 2, 1967, subject to certain reviews by the

Department of Transportation. The Depart-!

ment of Transportation by letter to the National ;

Capital Dianning Commission in’ February of |

1968 returtied the decision to local prerogatives.

The bridge location and geometric shall there-

fore proceed as presented to the National Capi-

tal Planning Conimission in September of 1966

and Mas of 1967 with no further actions te-

quired by that or any other body.

With respect to the scheduling of construe-

tion, the Congress directs that the first substruc-

ture contracts, be advertised for, construction

within 90 days of the enactment of this legis-

lation [H. Rept. No. 1799, 90th Cong., 2d Sess.

1968, p. 34-35]. a

See also the introduction of the Conference Report

in the House by Congressman Wr ight (114 Cong. Ree.

ee. ;

‘19:

> The court of canis brushed. aside the Statement

of the House Managers as mere dictum, not express-

ing the will of the. Senate conferees (Pet. App.. 13a,

n. 38). Contrary to the implication sought to be drawn

_by the. court of appeals, however, the Senate clearly

understood the import of Section 25, It was explained

to the Senate by Senator Randolph (Chairman of the

Senate conferees) as follows (114 Cong. Ree. 24030) :

‘One of the most. difficult issnes before -the’.

conference was that involving the District ‘of

Columbia interstate highway program. The,

language of the House bill required immediate -

_ construction of those hig hways in the District

of Columbia as contained in the 1968 cost.

estimate. The Senate bill had no comparable

language. °

The Senate conferees. approae ‘hed this matter’

with reluctance and reservation. ‘We did ‘not

helieve that this was a matter that should be

handled in a national highway act. However,

in the interest of comity and with the desire

to bring a bill out of conference, we proposed

certain changes in the House language and in

the give-and-take which ensued, the language

of section “25 *of the. conference report) was

~ developed.

Under the terms of this section, the District

of Cohunbia government. and the Secretary of

Transportation are directed to proceed with

four projects: The completion of the center leg

to New York Avenue: the construction of the

éast leg; the Potomae River Freew ay: and the

Three Sisters Bridge. Per

> «aren

_ CONCLUSION

The petition for a writ of certiorari should be

granted. an | _

_ Respectfully submitted. |

ERwin N. Grisworp,

Solicitor General.

Kent Frizzere, |

Assistant Attorney General.

Arian A. Turtrs,

Assistant to the Solicitor Gt neval.

Epuenp B. CLaRK, --

’ ; THomas L. McKevrrt,

} . Perer R. STEENLAND,

aie D. HEL,

pede | Attorneys.

JoHN W. ‘ante,

General Counsel,

Department of en tation.

C. Francis Mvrpuy,.

. Corporation Coun sel,

Joun R. Hess, _

Principal Assistant Cor poration Counsel,

‘District of Columbia.

| January 1972.

APPENDIX A +.

United States Court of Appeals for the ‘District of .

Columbia Circuit

No. 24.838:

D.C. Feperatiox oF Civic AssociaTIONS, ET AL.,

APPELLANTS

- . yy

- s *

JoHN A. VoLpe, Seerérary OF TRANSPORTATION, ET AL.

° No. 24,843 ee,

D.C. Feperstion or Crvic ASSOCIATIONS, ET AL.,

Joux A. Noire, SecreTary oF TRANSPORTATION,

° APPELLANT teas

THE District oF COLUMBIA, ET AL.

- Water J. Hicker, Secretagy or INTERIOR, T AL. -

APPELLANTS —

Seana from the United States District Court

for the District. fa Columbia

‘Decided October 12, 1971

Before ~ BazELoN, Chief Judge, Fany, Senior Cir-

—eut Judge, and MacKrxxox, Circuit Judge.*

*Judge MazvKinnon dissents, but. in the interests of expediting

this matter consents to the immediate release of the major ity’

opinion and reserves his, right to file a dissenting opinion.

(la) — ‘ ¥

2A ate

Bazeton, Chief Judge. This appeal. injects us baek

into the midst of a long and sometimes acrimonious

imhroglio over the proposed construction ef a bridge

across the Potomac River from Virginia into the Dis-

trict of Columbia. In an earlier appeal -we held that

the so-called Three Sisters Bridge could not be bitilt

except In compliance with the hearing, environmental

protection, safety, and other provisions of federal law

applicable to the construction of federally-assisted

highway -projects... That question, accordingly, is no -

— longer open, We- must now decide whether the De-.

partment of Transportation did, in fact and in law,

heed the applicable federal statutes when it decided

that the bridge should be-built..On the basis of an

extended factual inquiry, the District Court cone uded

: that the Department had failed to’ comply with some’

* of the provisions.* We affirm that part of the District

Cont’ s judgment. As to the provisions with which the

D.C. Federation of Civie Ass‘ns, Ine. ¥. . Volpe, —— U.S.

App. D.C. ——, 433 F.2d 436 (1970), holding that “both the

» Nanking and. building of the Three “Sisters Bridge [must].

] .

~—-“omply with all applicable provisions of Title 23.° /d7. at 447.

In their complaint before the District Court on reimand plain- ,

tiffs alleged that the Secretary had not complied with the fol-_

lowing provisions: 23 U.S.C. §s 102, 103, 128(a), 134, 135, and

B17 (1970), and .the. regulations implementing $ 128(a). 23

C.F.R. Part 1, App. A (1970). Apart from alleged violations

of, title 23, plaintiffs also complained. of. violations of various

séctions of title 7 of the District of Columbia Code. and of. 16

oeheion S81, 470: 33 US.C..$$ 401, 403, 525; and 49 U.S.C.

$1655 (1970). At the commencement of trial. the - District

Colt granted, plaintiffs’ motion to amend their coniplaint to

allege also 4 violation of 23 U 5.C. § L09(a) (1970). The Court’

granted plaintiffs a hearing on ene hi complaint under title 23,

but not under any of the other statutory. provisions. Sve pp:

21-25 gnfra; D.C. Federation of Civie -Ass‘ns, Ine. v. . Volpe,

316 F. Supp. 754. 761 & nn. 13-14 (D.D.C. 1970).

°316 F. Supp. 754 (D.D.C. abla

3a Mae reat

Disivict Court found compliance, however, we have

concluded that the statutory requirements were not

satisfied, and the case will therefore be remanded to

afford the Secretary an opportunity to make appro-_

priate determinations as required by the statute.

The factual background of this dispute has been

described in detail in our carlier opinion’ and in the

opinion of the District Court.’ Briefly stated, tle con-

troversy concerns a projected bridge _ between the

Georgetown waterfront in the District of ‘Columbia

and Spout Run in Virginia. The bridge, which would —

be part of the Interstate Highway System and would

-be built largely w ith federal funds, would tr averse

the Three Sisters Islands, would ‘‘affect the Geor ge-

town Historic District,”’’ and would .uye- some park-

land. The precise amount of harm to>~arkland and

historic sites has not yet been determined, however,

since the planning of the bridge—including the ap-

proaches and access roads—is not yet. finalized.” A

source of continuous Controversy: since its conception,

the proposed bridge was deleted from. the Interstate

Highway Svstem in January, 1969, when the National

Capital Planning Commission, the official planning °

body - for the District, adopted ‘a comprehensive

transportation plan awvhich did not include’ the Three —

Sisters Bridge.”’* The bridge was redesignated part —

of the Interstate System six months later after Re-

presentative Natcher, Chairman of the Subcommittee

on the District of Columbia of the House Appropria-

tions’ Committee, indicated unmistakably that money

for ereeacti of the District’s subway system would

s___ .S. App. D.C. ——. 434 F.2d 436 (1970).

4316 F. Supp. 754 (D.D.C. 1970). ° ~

‘Td. at TT. : ns ae

TId. at 759. a

ened

nies - ald Aa =

e . ~ be withheld if the ‘bridge plan were ‘not revived.’ To

satisfy the Chairman, it was necessary, first, for the

District of Columbia City Council te reverse its

; ; earlier position,” and -vote to approve the project. On

August 9, 1969, the District government so voted, with | |

_ the swing members loudly protesting that they would

\ not have changed their votes but for the pressures

7 ‘exer ted by Representative Natcher.” The second pre-'

requisite of redesignation was a decision by Trans-

portation. Secretary .Volpe that the project should go

ahead as part of the Interstate System. He announced.

that decision on Augiist 12, 1969, and the project

sprang full-blown back to life on the following day.

- On ‘April: 6, 1970, we held that the hearing and

planning requirements of title 23 of the United States _

_Code were fully applicable to this project notwith-

standing a 1968 Act directing that construction of the

bridge begin not later than thirty days-after the Act's

Ppassage."\We remanded the case to the trial court for

an evidentiary hearing to determine whether the Sec-

retary had complied with the pertinence proyisions in

concluding that the projeet should be revived. The

ease is befor2 us on appeal and ‘cross- -appeal from the

trial court’s decision. : , ee ea.

| : a ieee

Given our earlier decision, the Ber vetary’s approv al\.

. of the bridge must be predicated on compliance with

°Td.

°On Jan. 17, 969, the District’s City ent had voted to

‘approve the NCPC transportation plan which rejected the Three

Sisters Bridge as unnecessary and undesir able. Td.

%° Jd. at 764, 767.-

"Pub. L. No. 90-495, 82 Stat. 827 (1968): ef. pp. 22-23

infra. . . ane

a to

Tr i Ss |

‘a number of statutoty provisions. ° Plaintiffs % chal-

lenge with two lines of argument the District Court’s

finding: of compliance. First; they maintain that the

- Secretary’s determinations under the. statute were

tainted by his consideration of extraneous factors un--

- related to thé merits of the questions presented. They

allege<and argue, moreover, that the District Court .

speCifieally found—that pressures, exerted by Repre-

sentative Natcher contributed to the decision to ap-

prove the bridge. Second, they argue that qtute apart

~ from the allegations of pressure, the record and appli-

cable legal principles do not support a finding of com-

pliance. The two strands of argument are plainly

related, in plaintiffs’ view, since the alleged short-

comings under each statutory provigion illustrate and

tend substance to the argument that the rational, im- |

paitial evaluation of the project. envisioned by the

statute was impermissibly distorted by extraneous

pressures. We. consider first plaintiffs’ argument that

the determinations could not stand even if therewere -

no issue of extraneous. pressure, © eee

A. REQUIREMENTS OF § 158

If a proposed federally-assisted highway project

would encroach on parkland or historic sites, the Sec-

retary of Transportation, must determine before con-

struction can begin that there is **no feasible and

prudent’ alternative ‘to the use of such land,’’ and,

_ assuming such a finding, that ‘the project includes all

12 For purposes of this opinion we refer to the D.C. Federa-

“tion of Civic Associations, appellants (arid cross-appellees) in

this Court, as “plaintiffs,” and to Secretary Volpe, the District

of Columbia, and the other appellees (and cross-appellants) as

“defendants.” oe ee

nti He

> A

. od

‘ = : . ‘

3 : . *. ¢ ,

> PY . ' : ; ‘

° '

possible planning to minimize harm to such park...

or historic site.” The District Court concludéd that

Secretary Volpe had complied with each -of these

HUI’ ements.

In defending. the Secretiry’s > action, the govern-

-ment ean hardly°maintain that there was no **feasi-

ble’* alternative to construction of the Three: Sisters.

Bridge. This exemption applies, as the Supreme

Court: indicated in’ Citizens, to. Preserve Overton

Park, Tne. ve Volpe, only if the Seerftar "'y finds that

“as a matter of sound engineering Qt would not be

feasible’. ‘to build the highway along any - other

— route.””!" It could still be argued, however, that the

eee rejected each of the ‘feasible alternatives

because none. of them was ‘‘prudent.”’ In constr uing

this.- second — — the. Supreme Court pointed

out that

the very éxistence of the: statute indicates that

protection. of park] and’ was to be’ given para-

“mount importance. The few ereen havens that

_. are -publie parks were not to be. lost unless,

theres were truly unusual factors presents i ua

ruption. eccnene: from alternative routes

reached extraordinary magnitudes. If the stat-

utes are to have any meaning, the Secretary

cannot approve. the- déstruetion: ‘of parkland: :

nnless he finds that alternative routes present

uniqite problems,"

Our review of the See retary’ S détermination is‘ hin-

déred not only by the lack of any formal findings, but

also by the absence of a ‘‘me: wiingful administr nhivs

Yeeord within the Department of ‘Transportation

evidencing the fact that. proper « consider; ation has been

a); S.C. § 138 (1970), | canes

<i 401 U.S. 402, 411 (1971) (emphasis added).

14 Td. at 412-13. ° ee Sas

eiven to the requirements, of this section.” However

regrettable, the failure to provide explicit findings

indicating why all possible alternatites to the bridge

would be unfeasible or impr uy Ht does not, in itself,

invalidate the Secretary's adtion. * But the complete

non-existence, of ‘any contempor aneous ‘administrative

record is more ser lous. Absent a record, judicial: re-

view of the. See retary’s ; action can be little more than

a formality * unless-the District Court takes the dis- °

favor ed step of requiring the Sec ‘retary to testify as

‘to the basis of his decision.” And ‘even the Secretary’s

“‘nost hoe vationalizations,”” * filtered through a fact-

finder’s | understandable - reluctance to disbelieve the

testimony of a Cabinet officer, will rarely proyide an

effective basis for review. Furthermore, it.is hard to

“see liow, without the aid of any record, the Secretary

Court did little to allay the doubts generated by the

could: § satisfactorily make the determinations requited

- by statute. The absence of a record, in other words,

simustaneously obfuseates the. process of review and

signals sharply the need for careful serutiny.

Secretary Volpeé’s testimony: before the District

* :

49316 F, Supp. at 769, ,

4% Citizens to Preserve Overton’ Park, Ine. y. Volpe, 4M

vs S.. 402, 409 (1971). But see note 8Sinfran oon

70 itizens to Preserve Overton ‘Park, Inc. v. 1 Volpe, 401 U.S

402, 420 (“review. lot the Secretary's decision] is to be bane

on the ,full administrative revord that was before the Secretary

at the time he made his decision”). See also ‘Environme ntal

Defense. Fund, Inc. v. “Ruckelshaus, —— U.S. App. D.C.

439 F.2d 584,598 (L971). .

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

402, 420 (1971) : United States vy. Morgan, a8 U.Se 409, 429 |

(1941), f

19 OF. C itizens to Pa Overton Park. Age Volpe. 401

b.S. 402, 420 (1971) (“Such an‘ explanation will, ‘to some ex-

tent, he a ‘post hoc rationalization’ and thus must be viewed

eritically.”). ,

: ¢

‘ Sa ;

; cus —

- lack of an administrative record. Indeed, his testi-

Mony—On occasion uncertain and inconsistent. with:

the testintony of others’ itself gives rise to at least a

serious question whether he considered all péssil

alternatives to the plan eventually approved.” It

clear, moreover, that the Departnient of Trans}

‘tion failed te apply its san procedures gen

applicable te determination: under § 138. TI

ure is especially disquieting sinee the pre res red

- issne Were designed specifically to msure that deteé

‘ininations under . 13S wold be. made. in the Secre-

". tary’s words, only safte? “a, great amount of real in-

~ dependent and genuine review [by] people who were

* not prticularly highway oriented * * * °° ©

; |

“Secretary Volpe testified: for example shat he “believed

that he had consulted with Mr. Braman’s Office with respect

to the Bridgg project.” (Tragseript at 808-00), let Mr. Bro-

fyan pointed oft that hix office was “not involved in the Three

(Sisters matter at any time.” (Tr. at 1005). The Seeretary also

testified that the Feder Highway -Administrator, Mr. Turner,

bal discussed with hie the $138 problem. and that the ure

istrator had made an. oral * regommendation. at 722).

Neverthéless, Mr, Tarner indicated in his test} y that bev .

net believe he had made any ’

or-had-even discussed with him’ the. specific question ‘of the

determination under { 138, (Tr. at WT). See. generally Vriet

for Appellants at 34-35. Asked about his conisidgration of-a.

number of alternatives to the Three Sisters Bridge, Secretary *

* Volpe testified that he could net recall having congidered, the

possibility of a tunnel at “any location other than the Three

Sisters Islands.” (Tr. at 780), uparading the Jefferson ‘Davis’. :

Highway to Interstate standards (Tr. at_ 779), or a number Me

of -other potential alternatives. Sve Brief for- Appellants at .

WSS, - A z : P

316 F. Supp. at T60-70. The procedures in question in- .

volved the -Departuent’s Office of Environmental ayl Urban | +

Systems, headed by Mr. James Braman. : ‘ f

- Tr. at 644 (tegtimony of Secretary Volpe).

ea.

on en Ne a |

Furthermore, an apparent misconception about our.

earlier decision may itself have distorted the Secre-

~ tary’s determination under $138, The government has

read .onr earlier opinign to meat that a bridge must

-be built, albeit in accordance With the provisieus of a 3

title 23; somewhere in the vicinity of the proposed

Three Sisters Bridge. Congress did direet, as @e pre-

viously indicated, “that a bridge be built over the

Pototitae follwing the general configurations laid out-

in the cost estimates.” ~ Viewed-in context, however, .

the statement does not convey the meaning which ° ]

the government suggests, for we held that **nething

in the statute indicates that, Congress intended the. -

bridge to be built contrary to its own laws.” “ If the

bridge canmet be built consistently with appticable

law, then piainly it must not be built. It ig not ineon-

‘evivable,, for example, that the Seeretary , might

determine that: present and foreseeable traffie needs

can be handled (perhaps by expansiqn of existing

bridges) without construction of an additional river

crossing. In that case, an entirely prudent and feas-

ible alternative te the Three— Sisters Bridge might

he ne bridge at. all,” anid its construction’ would vie-

fate § 138. Thus, the, Secretary may have disregarded

one ‘possible prudent and feasible alternative to the — -

use of parkland and historic ‘sites on the mistyken

assumption that that alternative was foreclosed dy

- ovr earlier decision.”

2 =. 1S. App. DC. ——. 41 F. 2d at 46°

1 Ia. at 447.

“0%. Efivironmental Defense Fund. line.” v. Carps of Engi-

neers, (25 F. Samp. 749. 761 (ED. Ark. 1971). | :

* Testifying before the District Court, Secretary Volpe did

indicate that he “had considered several alternatives including

_ the bridge,’ no bridge. the tunnel, virions types of nmap fon- ¢

nections ete... . ~ (Tr. at 742? temphasi< adlded). It ix

10a

While these difficulties give rise to at least a sub-

stantial ference that the Secretary failed to comply

with .§ 138, that inference ripens into certginty when

‘one .turns to the second .determinition required by -

§ 138. Before the project can begin, the Seeretary

“must determine that all possible planning has been

done to minimize harm to the affected parkland and

histori@ sites. Yet the Distriet Court found, and the

Secretary apparently concedes, -thaY final. design of

the ramps and interchanges is not vet complete. Thus,

when Secretary Volpe puirportedly complied with

‘§ 138 in August, 1969, he could At best have been “sat-

istied ... that the designs which would be developed

based on the preliminary plans would result in a mini-

mum taking of parkland,” but he could not have con-

eluded that the necessary planning had alrendy. heen

done. The District Court’ reasoned that the expecta-

tion of future planning could satisfy ¢ 138, But that

reasoning seems inepnsistent with the Supreme

Court's subsequent admonition that § 158 can bie

obeyed “only if-there has been ‘all possibte planning

to minimize harm’ to the park.’ ‘Morcover, the Dis-

trict Court approved the § 138 dete rmination om the

hasis of the. Secretary's testimony that a “minimum

of parkland would he taken” for the ramps and mter-

- changes” More is at stake, howe ver, than the “wini-

possible, however, that the’ Seerfary: tight have given that

alternative (and the studies whic ‘hh seene to support It, xk

irief for Appellants at 36 n2) more extensive consideration

if his Department had not been convinced, judging by its

“representations before this Court, that “ne bridge” was not’ -a

viable alternative in view of Section 23 of the Federal.Aid

His _— av Act of 196s, t

316 F. Supp. at 775 (emphasis added), . .

5¢ itizens to Preserve Overton Park, Inc. v. Volpe. 401 U.S.

402. £05 (emphasis ‘added ). .

316 F Supp. at 775. ~ Pas ES

ee VN AW aN Eber Cayenne a AES

lla

nuh taking” of parhiond, Section 138 speaks in curio

of minimizing “harm.” to parkland and historic sites,

and the evaluation of harm requires a far more subtle

calculation than merely totaling the number of acres

to be asphalted. For example, the location of the af-

fected acres in relation to the remainder of the park-

land may be a more important determination, from

the.standpoint of harm to the park, than determining

the number of affected acres. The Secretary has not

vet determined which acres will be taken. In addition,

va project which respects a park's territorial integrity’

nay still; by means of noise, air pollution and general

unsightliness, dissipate its aesthetie value, crush its

wildlife, defoliate its vegetation, and “take” it in every

pri actical sense? > -*

Absent a. finalized pk in for the’ bridge, it is hard to

see how the De ‘partment could make a meaningful

evaluation of “harm.” Furthermore, Seeretary Volpe

flid not consult with. ‘other planning agenci ‘ies to co-

‘wrdinate efforts to minimize harm to the park and

historic sites.-He also made no studies of potential

air pollution damage to the park. His approval of the

project under § 138 was, in short, entirely premature,

and we hold that he niust make new determinations

consistent with the statutory standards.

B. REQUIREMENTS OF § 124

The- Secretary cannot approve | federallyy-assisted

highway’ projects in urban areas unless he finds “that

such projects are based.on a continuing comprehen-

sive transportation planning process’’ carried out in

“Compare Brief for Federal Appellees at 11: “Tlie park

areas underneath the. bridge would; in essence. remain avatl-

_ for park purpose uses * * *.” . .

316 F. Supp. at TOL

eas . Ilva

- conformance With Congress's objective of -promoting

the development of transportation systems. * The Sec-

retary reasoned, and the District Court approved his

reasoning, that the bridge project Was consistent with

such a planning process since the bridge had been ap-

proved by, and was subject to the continuing serutiny

of. the Transportation Phammine Board (TPE) of the

Metropolitan Washington Couneil oF Cioveriments.

Plaintiffs, on the other hand, emphatically, deny com-

plianee with & 134 on the eronnds that-the “COMPOS «

hensive transportgtion platr promulgated by the Na-

tional Capital Planyine Commission ..NOCP@) jn

December, 1968, specifically ‘refiets the Thive Sisters

- Bridge... as being beth Hinecessary amd mndesir-

able.” * While plaintiffs point out-theat NOP! isthe -

official planning ageney for the Distriet of Columbia

and that it alone has prepared i COMTPPEHOMSTN trtis-

portation (plan, the government contends! that the

Courfeil of Governinents, wilike the NOPC. is.a re-

gional organization whieh nist consider the’ interests -

of the surrounding Jurisdictions,

~ We are unWilline to réeselve this dispute by some

abstract balancing of NCPC disapproval against TPR

approval. That approach Would, we are eonvineed,

. entirely miss the point of 6134. That section debs ret

suggest that the Seeretary has: satisfied his statutory

kesponsibility as soon ashe Ins found a sinele plen.

Which Incorporates a proposed highway project, Xor

can “it reasonably be interpreted te mean that -the

project must be approved by every planapplicable to

the affected region. The section speaks, after all, in

* terms of *“planning.” not . Plans,” and, it is net

723 U.S.C. .8 134 (1970). .

‘316 FL Sapp. at TOH © !

7d. : = -

~@ nln Oe eI Oe ee ne retin a SSS ER:

a 13a /

our function to’ decide that one plan has merit while

~. another does not. Rather, it is for the Secretary to

‘Getermine whether .a particular -projeet will be ‘con-

- sistent -with sound transportation planning .for the

region, %

Decisionmaking responsibility: under § 134 h: as been

delefated by Seeretary Volpe to the Public Roads.

Division Enginee rr, Mr. Hall. Mr. Hail disregarded -

PNCOPC disapproval of the project because he belie ved

that “TPB was the primary agency te which he

~ shold look in making his finding." °° The District

Court approved -his finding on that same reasoning.

ut that reasoning cannot do SETV IEG - for the more

sophisticated determinatfou reypived by the statute,

-ln making his *tmental™ finding “of compliance with

STH. Mr. Halleapparently did no more than adept:

T PE*s conclusion that the praject was“ consistent with

comprele nsive planning’ for the regions? Vet that

ix, precisely the dete rtiination that the Departinient

of Pranusportation, ‘takifie ito-acconnt the. recom

mendations of local plans, mast make. Fhe statute

plainly does not permit the De ‘partment to delegate its

_ Statutory responsibilite to a local’ planning ageney.

‘On. remand, the Department must reevaluate: the

project in light of the purposesof § 134. ‘

7 Since the deterniination was’ net grounded ona

eérrect nnderstanding of the statute’s requirements,

we need not now decide whether the substantive result,

if reached pursui iit te appropriate procedures, would

itself he stipportable.. ‘But to aid the Department's re-

‘determination under. & 134; we should niake clear our

DNseivings about. the result and our doubts that it

* 316 F. Supp. at, 4. ag _ ;

* Tr. at 110%). s3"

7316 F. Supp at 74.

“ ‘

could be- “upheld on the sicaint oreo | even under the

coustrained standard of-substantive review. TPB ap-

lfa :

proved the bridge project in 1967, two years before -

Mr. Hall made his finding under 8 134." No compre-

hensive transpoftation plan. had bean adopted at that

time, either by TPB or any other planning ageney.

NCPC, which did not forniulate its plan until Decem-

ber, 1968, was,on record at the time of TPB's action

in 1967 as Approving. the -bridge project. TPB ap-

proved the project not imder 8 134, but undér the Dem-

onstration Cities and Metropolitan Development. Act

of 1966. NCPC, on the other hand, developed a trans-_

portation pla in response to President Johnson's call

for the development of a “comprehensive plan for a

D.C. highway system’ ‘Avhich would permit the De-

parte nt. of “Transportation — to determine whether

the Three Sisters Bridge and other projeets would

be “appropriate links” in such a plant" it then snd

jected the bridge proposal. ‘And even ff TPB approval

were not—at least om its facé—stale, inapposite, and

“unsupported by any underlying, comprehensive plan,

we would still have difficulty accepting the Depart-

ment’s finding without. some explanation af how the

134 determination could be made before \plans for

‘the bridet are finalized.” Nothing in the redord sue

\ve Citizens to. Preserve Overton Park, Inc. v. Volpe, 401

Us. 402, 445-16 (1971).

“316 F. Supp: at-794. >. .

}v Us.c. g9554 C1970): see S16. Supp. ‘at m4 We.

"Statement of President. Johnsons August 25. 1968.0 114

Cong. Ree. (Part 24) 230959 (1968).

* The Secretary is not. reqitired, of course, to resolve every

concewable ambiguity in a proposed plan before .testing. its ;

ea cg e with the applicable statutory provisions. Bur where,

‘he does purport to make a determination required by statute.

for example under $134. in -advanece of the contpletion of

BA RRS a ACLS AB REE NINE ag GES REARING 3 Th et ep at ea,

tC)

15a

gests that TPB i pproval—whatever. its other appar-

ent shortcommes—embraced, each conceivable . design

that night sigs st he adopted.

- REQT REME rs OF 109 (A),

The Secretary's’ approval of rilans for a federally- .

assisted highway project is conditioned on a determi-

nation, that. the proposed facility, will “adequately mect

the vxisting and probable future tr alfic needs and con-

ditions in a manner conduei ive ‘to safety, durability.

and economy of maintenance.” The District Court

held, that phkwiming for the Three Sisters Bridge had

hot “proc ‘eoded to a-sutticiont degree for the responsi-

ble offiel “li us to determine that the planned facility is

|. strvvetarally feasible.” “ Accordingly, the Court en-

joined construction of the bridge until the planning

had advanced to a stage where structural fe asibility

was assured, We find the Mistrict Court’s judement

consistent withthe statute. and the | facts presented,

and it is therefore affirmed. nam:

Plaintiffs akko argue, however, that the praject was

approved before the. Secretary, could. be certain, first,

that river bed conditions would support the bridge,

and second, that no safety hazard would arise from

the increase Invair pollution attributi tble to traffie on,

the bridge, Again, we are tmalfie to ac cept the District

Court's disposition: With regard to river bed condi-

tions, the Distriet Court noted that

[blefore the construction of a bridge, it 1s

necessary. to make extensive inve -stigations of

subsurface conditions to determine if the Vv are:

sufficient to support the foundations for the

planning, his determination must remain flexible and be sib:

ject to éontinuing reconsideration as the plans for the project

mature, oe |

"4893 TLS.C. § 109(a) (1970).

316 F. Supp. at 793. *

ee.

i ee: A = ee

bridge piers. This is done siinaiiy by means.

of borings. ... At the time Mr. Hall approved

. > the plans, specifications and estimates for the

Sts - pier construction, these borings had not been:

- .completed, and ‘subsequently “problems devel-

2 oped so that the’ pi ins for the project had to he

modified... |

Called to testify before the. District ‘Coutt,- Mr. Hall

still could not be ce rtain “that. the present planned

‘Yourtidation ix adequate. " Nevertheless, the District

Court found compilane © with § LO9¢a) because of Mr.

- Hal is testimony “that the re is 1 question that the

pegs can be built te support the bridge as preséntly-’

ph ned.” The > De vigrimnent of TT ransportation 1s

vbylously unwilling to construct F bridge known-to be

unsafe, and during the céitse of construction the

Department would surely verify the: suitability of the

river bed condities — But §109¢a)- requires: not only

that the bridge be safy. but afso—and no less ‘impor-

_ tant—that its safety Re ascertained before the Seere- °

tary approves the project. That requirement mini-

mizes the safety hazards and at the’same thye Msures

that publie funds will not be squandered on a demon-

strably unsafe proposal. Where planning reveals’ de-

: fects in design or location, those defects’ can be cor-

~, a on paper rather than Ou.steel and goneret

Vhe District Court's findings are not entirely we ar,

as te whether questions about the safety ef river bed~

conditions could be more ful resolved before eon-

‘action restunes. We hold that if such questions do**

exist, the Secretary must iake steps to resolve them to

the fullest practical extent Derore eranting” approval *

6f the project under § 109(a).

*316 F, Supp.at 7907 RE aks.

“Tr. at G04. F

gee "316 KE. Supp, at 790.

Plaintiffs’ second contention under. § LO9(a) con-

cérms the dangers of air pollution, The District Court: -

concluded that evidpnee 6f\a potential air pollution

hazard was insufficient to support a finding “that the

defendants are required to undertake a study of such

[i \ir-pollution ] effetts.”” * We can find no basis in the.

statute’s language or purpose for the conclusion that

certain hazards-are, as a matter of law, immaterial to

the Secretary’s evalution of a project’sssafety. The

District Court would surely agree that Congress did.

not intend to permit construction of a ‘bridge in a

situation, however rare, where air pollutrons would be

a significant threat to safety. It does ot follow, of

course, that air pollution will be a significant hazard

int all—or even any —highway projects. And the Dis-

trict Court, apparenthy concluded that No extraotdi-

nary. dangers are likely to arise from the Three Sisters

1 idee. Stil, the fathering and 6 atuation. of eVvie——

dence on potential ian: hi wards is. the responsi-

bihtyv of the Secretary of Transportation, and. he -

undertook no study of: the problem. His staff has ‘far

‘greater resources and expertise on this matter ‘than

the District Court, and it is. possible ‘that a study by

the Department would reveil significant dangers

| which had eséaped the attention of the District € ourt.

Inquiry into this issue cannot De foreclosed merely

because, the District Court found no significant evi-

dence .of air pollution hazards, That determination ~’

must de. made in the first insti Mice hy the Secrets ry:

of Transportation.”

*316-F. Supp. at 791.

"We express no opinion at this time on 1 the amount or type

of investigation which the Secretary Should undertake in eval-

uating the air pollution hazards. -In his testimony hefore the

District Court, Secretary io indie: ated, that his Depaitinent.

—

‘

Ph not adokionG

WS,

Spit.

., dence seemed insufficient; in its, view. to’ warrant a holding

. A App. A (1970).°

SSeS) om 2 - Me

Se REQUIREME NTS OF § 128

Section 128 °° requires that public hearings he held

" before construction ¢: in begin. In the earlier appeal.

we specifically held: applicable.-to the Three Sisters’,

. Bridge project not only § 128, but also the. Department

of Tri msportation’s implementing regulations.” Those

regulations require, inh. cestain: specified situations, a

hearing on project location. and a hearing on ee

design. After exh: ustive consideration of the: reeord,

not: complied with the design hearing requirement,

but that fre 1 loc ‘ation hears requirement. had. been

satisfied . ; : : 2,

While the ‘ oOve >rnment did n tel admit error with ree

ecard ‘to the design hearing, it nevertheless’ chose to.

hold the necessary hearing in a Gomme ndable. effort

to reduce the number of issues outst: mding. Sin CO: the ©

ars has now heen mooted, we express no. opmian

on the Disp ‘ict Comt’s: Cone lusion. > As for the lo: ation

“consic fs] air pollution in the ovérall consideration of all

ourprojects,” Tr. at 811, and it is possible that-the considera-.

tion-already given would satisfy the requirements of the st: tute,

But the District Court made no ‘findings On the Secretary's

action, and approved. the project apparently beeause the evi-

that the® Department must undertake a sea Af the problem.

316 F. Supp. at 791, Rather than returning case to the Dis-

trict Court for clar ification of its. findings on this point, ié seems

most’ efficient, in view of our ‘remand to the Secretary under

other prov sions, to: pernit theCSecretary to reconsider at the |

same time. his determination under $109(a).

" 50-93 U.S.C. § 128(a) (1970).

* 54 Policy ot Procedure ° Memorandiun 20- 8, 23 Cc FR. Part

*2 Naturally, we do not Pree r Whether ‘the design hearing”

held by the Department complied with the _ requirements of

PPM 20-8-and § 148(a). That question has not been presented

to us. If plaintiffs lyvave objections to the hearing, those objec-

tions should be lodged in the. District Court.. ° even

the District Court concluded that the Department. had ~

» ¥

ite fas ® ate een Seat wr ea RGR I mae

4 } F : E —

i ae: ;

hearing; _the Distt ict Court reasoned tha

held-in 1964 satisfied the requirement, een though

different proposals were the’ BEDJept ‘of tht hearing,”

since the change in plan was “so insubsti

public would not be. affected: any differently than by

the original proposal which formed, the basis ‘for thie

first hearing ....’’"* We have no quarrel with the

District Court's . reasoning, but .on the present record

we are unable to accept its application to this case:

Of the ‘preposals submitted at the 1964. hearing, the

one most similar to current plans for: “the bridge was

still, off by 1500. feet on the: District of Columbia shore:

and -950 feet on the Virginia shore.” Raimps-and inter-

ch: nges as well as. the. routing of traffic have also been

substantially redesigned. “Nevertheless,. the District *

Court could not “cone -eive how any: members of the

public would be ‘affected differently. by the present

_loe: ation than hy one of the three’ ’ considered 3 in 1964."

It ij is entirely coneely able to- us_that the differ enees in |

the plans would, in fact, have a. substantially different

impact ‘on. persons. on, both. shores. We would be re-

luctant, of course, to disturb the Distriet-Gourt’s find-

ing of fact on this point‘if,it were clear that a finding

had actually been made. Tkut. there‘is no indication in

the record he ‘fore us that the District Court gathered

evidence on this isstie,-and sve- have nothing to support

the conclusion but the conclusion isself. Moreoy er, in

. making the determinations required by this opinion, .

ithe. Seeretary may, conclude: that current plahs must -

Be abandoned in favor ‘of a new loc sstien. Aecord-

ingly, we remand: this issue to the District Court for

°° Thesplan aiuaer consideration in 1964, the so-citled Hogvard~"

Needles | report, proposed three. possible locations “for a central

Potomactcrossing, 316 F. Supp. at (iS. . a

547d. at TY9. wae a a hi tha ges Care ae f

Td. at 778. bes eet Fe |

BIG Re re ee 7

. . . e , .

. . } ss o*hs Cie

. ‘ ‘ Ze ja

oy ‘ A p e + ‘

’ 4 d “)

. Heres s. ; ay ‘

- € n .

r sf .

a hearing’

itial that tlie .

‘ a .

- "@

*e. e 3 o> ~ge & ’ oy

Pe / 7 Me, Bee

_ clarification of the f factugh basis at its conclusion, apd

Tor Thedhsideration in Licht of Any further lofatic; oF

siangrs tly: Seerctary of Teaniparigtion may onder,

eo KE REGU IREMENTS of S3tf ".°

If the Secretary de terminis that landagw ned by the

. United States, an teeded: for. a proposed highway

£ project lre wnist

file - with the Sertetary,. of the coisa nt.:-

supervising the adminittration of sigh Jand sor

*. interests in lands a taip-shewing the peytion of

. . such lands on interysts im lated whieh i is de-

Be ‘ sired ty appropriate. @ x

Ager coneliding that the. br rilze project work! ‘use

federal spark: und: under the’ jurisdiction of tht [n-

stertar Department's National Park Servier, and after

“hoting de ‘Tetdant’s Adinission thas‘ may had net- been

filed the Distriet Coturt still: found ‘couplianee with

a the spire’ if nreat ‘the ‘heTViere, of re The court based

a TEN

its filings on the constitation Detave en the Tyrinspor,

tatiun and Inte ‘tier De partnents with ward to this

project, and: an the issugner by the latipes of periniits

for the use of the parkland. _ ~~ .

.- .

“e' The Dittyict. 4ontt ‘made an * geben ional finding oft error *

‘under S.lzsia). Lhe section Beguine. that tht “State High: ay

department * 2 * rertify to the Necrytacy Olhat it, taves tavel poatslic

bee ~aringes “8 2” “emphasis ‘adiled) Phe Disttien Coprt hebl.

ank we’ agree. that the certifying oMicer “hum? Se one whe

*Eiiews as a fhet- hat the actions to whic h ge i err fing?

have heen taken.* 316 F. Supp. at Tso. The District, ( omert

foutid that’ the certi ifying officer had ‘atsuneed that certifi cat bean

was approphiite “memly heeanse the project hak ozache! the

stage” whese the certification is nermally marke.” /.. Chat as-

sumption, the District Court held, was an Srtuflicient. basis for

thie. sertHicagion” Id, at 7. The le fendants do not contest’

‘that finding, and it TS tlprefore affirmed.

23 Taka $317 (1970).

ae F, Supp. 01, 796-97 2 aoa *.

Sa ame yous

- We agree wit") ihe District Coutt that the failure ty

supply a sue dremel test be an absolnte har to the |

construction. of the bridge if the PUrpeeses of $317.

have in fact beet realized. That seetion is désigned, as

the District Court ackhnow ledged, to ™

require the, Sceretary yf Transportation te give

notice to the Seefetary ofthe Department hav- -

ing eontrol of the jand, aud provide a menns by

-. .Whiich the latter may protect any government: al

S° interest in use of the eproperty for purposes

other than Highway construction”.

We need net decide whether the Distriet © ort ¢ ored

in finding compliance with the spirit af » 317. In view

of or conchiston that the ease must be remanded for

ew determinctionss it wold met eppeer to be a sig-

‘nificant. ditden on the Departnient te reniove all

doubts “under _ #tion by filing the -apprepriate

“« map. « - © .

~ | hited Siates” Vv: ‘je Acres of "Land, 44 F. a Py aye

(Bh Cir. 1970). i ye J Yes Ae

- “© Safsequent to-the District Court’ * dieisien. the ae wad

"ark Service announced in a_letter (a photecopy Of which is

incluited im Brief for Appelignt=) that it-does abject to at least.

one aspect of the bridge plan. Letter from: George B. Hatz i,

dr.. Director. National Park Service. Deportinent of the le

_ terior, Yo Martin K. Schaller, Executive Seeretary, Whites cif

* the Mayor-Comufissioner, Dee. 15, 1970, reproduced in Hrief for

* Appellants. at App. A? That objection. moreover, ineludes‘an ~

* allegation that current plans for the bridge “contliet a ithe thee

_ > Service's] understanding of the terms af an agreement -ned

May25, 1966, by the National Park Service” and the Virgini:

amd Drstitet of Colum) highway departments. Wt is preci a

that prier—and. perhaps. misconsteued—agreement on whieh °¢

. the government . niw relies to demonsirate comptiance with th. 7°

“spirit” of $317. The letter may, in other words, hate Wader-ut-

. _ Sthe factual predicate of the District ¢'ourt’s Peeagyng. What-. .

evtr the senificince of thes atteenpted! sup plemeutaticga of the

record, it ts cleorr that-angy doubts wilf je removed by our -

Trokling that the SeerePary nowt comply with the letter of $517. *-

F. PROVISIONS GTHER THAN TITLE. 23

\f the hearing below, the Distriet Court barred:

plaintiffs Train presenting evidence on a number eof

allegations in their complaint becaitse those allegations

rel; aye mak Io statutory provisions which the. District

Court found inapplicable to the Three Sistéts Bridge

project, Thus, the Court coneluded that the project

was exempted by Congress from compliance With cer-

tain provisions of tle federal Code, as well as provi-

sions of the District af . ‘olninbia Code.” °

bn 1968 we ae Vd in DLO Beds ration ‘of Civic. Pa a

tions, Tue, Airis * -thitt this project must comply

With pie rtinent reqnirenments of “the D.C. Code. Later

that vegir Terres. directed, in Section 23 of the

Federil: Aid Highway Ret that =

AX llotwithstanding any other provisigfis of law

vrany court deci ‘sion or administrative Action.

to the contrary... constriction Lo? the Three

Sisters Bridge] shall be undertaken aS SOON as

. possible... and shall be ear ried out in accord-

~anee with all applicable provisions of Title 23°

. of the United States Code." — .

The District Court then held explicitly that’ the Tree

‘Sisters B rilge chad been exeinpted | from all of the

pre-construction provisions of title 23, and huplic itly

that thi ridge had been exempted froth the cm

parable provisions of the D.C. Code.” On appeal feam

that decision, we held that se rye nuISt Ce muaply

ith all applicsbly provisions of title 2 23. Our opinion

~_ ——

‘ . - a ° -

At Issue are 16 TSC, S$ 1, 1a); 33 77.S.C. $491, 403, arid

-” >

ght 49 Us, £1635 (4970). and. rarious pectin of title 7

ot a Jiistrict, of Columbia Code. ae <

29 ToS. App. D.C. 125: 391- F.2d. 478 (1968),

) Pub. L. No. 90-495, 82 Stat. S27 (1968), * af

«FL Supp. 423 6D.D.C. 1970). )

dion. ;, ak ; 4

App. D.c. — ——y

ee ee

did not indicate ‘flatly, however, that the project

hust also comply with apne title 23: provisions. In View

of the | District Courts jy. couc ‘his tom that. compliance”

with hion- litle 23 provisions is not required, we must

now resolve the ambiguity arguably left by our eartier

opinion, . ‘ Pp ety a

The applicability of these "provisidus was ~ not

squarely faced in the parties” briefs, nor was it dis- —

‘cussed at oral argument: While our earlier opinion

_ id Inake one specific reference td the isstie, tHe par-

ties now draw opposite concehisiolts from that -refe =

enée, Discussing section 23's directive thi at the bridge:

tee Dadi “nat withstanding any... court decision...

to the contrary,” ive pointed out that ~~ . |

[presumably the. commt decision” lansniage

refers to our decision in Airs [holding 11.0.

Code provisions applicable to the Three Sisters

iS Bifge |, but the reference is niistaken sine

that de “@ISTON Was lot “to raed CONTTAL v. pee

Under these clrennistances, We. are rehictanft to he's.

svive the dispute without providing the parties an.

opportunity To discuss the question: inhi the merits. Ac-

cordingly, we defer 2itidgment on this issue to perniit *

"the parties to file, Withiri twenty days from the-date - -

of this opinion, memoramda dealing’ evith the «ies-

As Part I of this o) pirien. anakes clear, the Sevres?

tary’ < determinations’ failed to comply w. ith’ 2 SILHiti-

“© Plaintiits clearly asked for a ruline: ia this Court on 7

-UIS.C. $470(f) (1970), and provisions of title 7 of the D.C.

; Code. They have nat explicithy asked fora ruling onsiny other

non-title v3 qrovis Ht.

° D.C. Federation of Civic Ans. tak.

: Vain: Scion ATS:

‘. 434 F. 21 436, Ly & ha Ciyay,

: . 24a :

evvit number of title 23. provisions applicable to the

Three-Sisters Bridge. Taken as a whole, the defects in

the Seefetary’S determinations—in. particular, lis ef-

fort to make the determinations before plans for’ the

bridge were complete—lend color. te plaintiffs? con °

tention that the repeated and public threats by a few

Congressional veices did have an inpact oti, the Scere-

~ tarv’s decisions, ‘As the, District Court pointed cut,-

[t ]here is no question -that the evidenee indi:

cates that strong political pressure was a] iplicd

bv certain members of Congress im order to

secure appreaval of. the - bridge project. Con-

ASS eréssman Natcher stated publicly and aade ve

secret this gi that heeworrk! da everything

that he could to withhold -Congresstonalappre-

priatiotis for the Distriet of Cohinibio vapid

" transit svsteyn, the need for hich is Wuiversal-

oe ly recognized in the Washitecton aret, until the

District complied with fhe 1968 Act.”

ANhen funds fer the subway. were, in fact, bloexed,

opresentative Nateher.. + > .:

made his qposition perfectly elear, stating that

*isssvon as the freeway project vets: under wav

beyond recall then we will come hack to the

-° Honse and recomimerid that coustietion funds

for rapid transit Tyee approved.” oo .«*

The auther of tas acinion is convineed that the tm- >

pruct of this pre a bs. sufficient, stand ne cudertaas, Te

‘Avatidate the Secor ovav’s action. Even if the Secre-

hiew haditaken every formal step required by every

oa plieable: Statutory provision, reversal would be res:

juired, immy Opinio. because extraiegus pressure ti

rended’ inté the caleulus ef considerations on which

‘316. F. Supp. at “The. “The “1968S Act.” section \ of the

~Poderal-Aid Highway Act of 1965, is divenssed at pp) 22°25

sy? beat. : : = Pi 1 . :

+ “316 F. Supp. at 762.

-_——

the Sec ‘retary’s <lecision was ae | Judge Fahy, on

the ather hand, has concluded that since critical deter- re

Minations cannot stand irrespective of ‘the allegations

of pressure, he finds it Unnecessary to decide thé case ,

on this independent round _

In my view, the District Court clearly and unam- -

higtiously found as a fact that the pre SSULE exerted by

Representative Nateheér and others did have an impact

on Raeretary Tolee’s’ decision to’ approve the bridge. .._

Th cnet Dainite “lout that : $e a

tthe statement issued hy the See ‘retary: at*the.

tine he dtreeted the F ederal Highway -Adimm-

istrafor ti resto re the bridge. ta.the: Interstate

System Indicates that the pressure on the i

transit funds su cousideration ‘at that time:

The Gout also found. on -the basis of the See ‘retary’s

* Conte TTF MTA oils <tiite hiehts and his testin ion be fore

ile ¢ Conet that

there is tre question that the press? tre regarding

- The rapid transit Appropr lations wes given some, 2

consideration at the tine of th¢ appror ‘al. of the .

project in Augtst, 1969," aa :

Lhe Seeretary’s .testimeny indicted, as the court.

below poiited out, that “his decision: was based om fhe

merits of the preje ct and hot solely on the extraneotis

pelitie “al pressures, $5 : Wee Sa

Notwithstanding: these findings of fact, “the Cou rt

determined us a matter of law that since the Secretary re

Was net acting in a jeidicial or quasi-judical capacity, ;

his.deei ‘ixion. would he invalid only If based solel on. ,-

the <¢ extraneous cousiderations,’ . DT cannot accept that

‘formulation of the. appticabie legal prine ‘ple. While

” 7d. at 764- tid (emphasis added). —

S/d. at THK (emphasis wed). sos a ee ’

2 Tad. at T65-66 (empha isis added), , Phe i

_ ld. at 765.. Pa - ; Aa ee >

26a,

Judge Fahy is net entirely convinced that the District

Court ultifmately found as a-fact that the extrancous

pwessure had uinfluenced’ the Seeretary’s decision-a

point which is for me clear—he has authorized aie to.

.nete his cone urrence In Mw: discussion of the eontrel-

Jing principle of law: name iv, that the deci ‘ision woul l.

be invalid.if based in whole er it part on the pressures

emanating from Representative Natcher. Judge Fahy

agrees, and we therefore ‘hold, tliat on rvemafid the

‘Seeretary. must make view determinations based,

strictly on the merits and ‘completely without’ regard

‘tor any considerations not mi dle relevant by Congress

ink the applicablg statutes. Pe

The Distric)-C OUrE Wats Sure Wy correes in concluding

that the Seefetary’s actidn Was not judicial or quasi-

_judicial,* aN fof that reason we agree-that aaich of

the doctrine cited by plaintiffS is inapposite.: If he

had been acting in such a capacity, * pypintitis could

have force fully argued that the decision was invalid

hee -ause of the de “istlonmaker’s bias,” or because he had’

received ex parte communications.” . Well-extabtished

principles cold have heen Invoked to Support | these

arguments, and Waits. might lave prev: ailed evel

without showing that the pressure had actually: in-

fluenced the Sécretary’s decision.” With regard to.

judicial decision: aking, whether by court or ageney,

™* See Citizens To Preserve Overton Park, Inc. v. Volpe, 401

U >. 402, » 414-1 15 (1971), ; tea

- .% See, é.g.. Pillsbury Co. v. FTC, 354 F2d 952 (sth Cir. .

my Jarrot.v. Scrivene » 225 FL. Supp. 827 (D.D.C. 1964).

6 See generally 2 K. Davis, AnMINISTRATIVE oie $$ 12.01

Cf S¢é q- (1958).

“CF, Sangamon Valley ‘rant iDe.¢ . United States, -

106-18. App. D.C. 30, 269 F.2d £1 (D.C. Cir. 1959},

- NG e.- O.4.s Pillsbury ( ‘a. we a : fk he ot | Sera | Cy: oS ag baa) [ { ath ,

Cir. 1H).

the appearance of bias er pressure may be‘ na less

objectionable than the reality. "But since the Secie-

tarv’s action was not Judicial, that meariese has. ne

‘application here. . |

If, on the otherhi md, thre Seéret: y's action had ie ell

purely levisl: itive, we might have agreed with the Dis-_

“trict Court that Iris decision could stand in.spite of a

finding that he had considered. e xtraneous pressures,

Beginning with # ‘létcher Vv. Peck,” the. Supreme Cor:

has maintained that a statute cannot be invalidated

me rely because the legislature's action was motivated

by iMipermissible considerations (except, perhays, in

special circumstances not applicable: here“) <, Lnideed, |

that very-principle requires us to rejeet” plaintiffs’

‘~ arguinent that the approval of the bridge by the Dis-

trict of Columbia City Council was in Same elise in-

‘valid. We donot sit in: judgment sof the motives of the

District's legisl: itive baily, nor do we have authority to |

review its dec asions. The aC ity. Cotneil’s action con-

stituted; in our view, the or of the project re-

quired by statutes: es

<0" Ph: the unde lying problem chnnot Dre iHuminated

IY ae simplistic effort to force the SeCretary’ S action |

into a purely -judieial or purely legislative moid. His -?

decision. was not * jnidicial”’ in that he was vot. required

to base it solely on a formal record established atia

public hearing. At tlte same time, it was not’ purtly

‘legislitive” since. Congress, had ealre: ady established .

_ the boundaries within which his diseretion could oper-

“ate. Bat even though his action fell between these. two

10 U.S. (6 Cranch.). 87, 129-31 (1810).

maps Griffin v. County School Bd. ef Prince Edward ( County

3¢¢ U.S, 218, 231 (1964) : Gomillion v. Lightfoot, 864 U.S. 330)

» 347 ae But see Palmer v. Thompson, 403 US . 217, 224-95,

(1971). ey ra ?

5 See 9 93 3 USCS 103(d) (1970). <

452-396—71——_4

7 28a het ; : ¢

conceptual extremes, it is til gov erned by prine iples

that we had thought. clémenta: ‘vy and beyond disptite.

If, in the coirse of. Feaching his decisign, Secretary

Volpe took into-accouit *¢ onsiderations that C ONgTeSsS -

could not have intended to make relev: ant." 2 his ae-

tion proceeded from an erroneous: premise ind. his:

dew Isien cannot stand. ‘The error world he more flag-

“United States ex. ve/. Kaloudis y. Shaughnessy. 180 F. 2d

ISO, 49] (2d Cir. 1950). See also Tnited States ea rel. Aceardi

Shaughnessy. 347 U.S. 260. (1954). a ease remarkably sin- :

nied to the one before us. Cf Shaughnessy v. United States ex

Aceardi. 349 U.S. 280 (1955). Fe

“Cf. Perry v. Perry. 88 U.S. App: D.C. 337. 338,190 Fd

GEL. G02 (1951). :

** Citizens to Pheserve Overtén Park, Tne y. Volpe M01 US.

42, 4160 (19TL) {“the| court must consider whethe? the de.

cision was based on a lconsideration. of the releraut factors”)

"--deniphasis. added): W opie Wing Hang v. 1. & NUS. 360 F.2d

eho. 019 (2b Cir, 1966). cited oetth capproeal. in Citizens ‘to

Preserve Overton Park, Ine. . Volpe, supra, at 416: L. Jarre.

Jcpienan, Coxrro. ‘or Suinianassbes ACTION 182 (1965), —

Nee also, SEC -v. Chenery Corp... 518 U.S."S80. 87-88. 92-94

(1942). where the Court. pointed ‘out. inter alia, san SCTE. an

order “is valnl only as a determination of pohey Figerseiger

whie h the agency alone is authorized ‘to make sia which.

has not made, a, judic ial judgment «annot be made to do Set I

ive, for an administrative judgment.” Id. at 88. Accord, SEC:

. Chenery, Corp.. 3532 U.S. 194,196 (197): Sunbeams Tele-

vision Corp. v. FCC, f6a Pos. App. D.C. 82, 243 aps mAb (1200)

(Fahy, JQ: Chae-Sik Lee y. Kennedy, 111 U. S. App. me "33,

YR. 2d 251 (1961). °

‘It might. be argued tha; geremarid would he futile here since *.

the | agency ean only, repeat \the process ‘it pPugports already. to”

have undertaketr: namely, considering the project solely ‘pn its

merits. While- we agree that a rémand would be aedédemic

Friendly, Tie “Limited Ofitce™ oF the- Chenery Decision. 91°

Ap. L. Rev. 1. 5 (1968). it seems entirely possible that the

_ if the ageney would. inevit: ihly arrive at the’same result, NLRB +

s. Wryman-Gordon Co. 504 U.S. 1, 766-67 n.6 (1969);

rant, of course, if the Secretary had based his decision

solely on: the’ pressures generated by Representative

Natchér, But “it should be-« lear that his action would

not be immunized merely because he also considered

some rele vant factors:

[t is plainly not our function te establish the:

parameters. of relevarice, Congress: has carried out ..

that task in its delegatint of authority te the Secre- —

tareof ‘Transportation. Nor are we chareed with the

power “te decide where -or* when bride res’ should be’

built. That*respoysibility has been entrusted by Con-

eress to, among: others, the Sevretary, who has the

expertise said information to make. a decision pur-

'. Suant to. the sti itutory standards, So: long as the See-

“retary applies his expértise to considerations C ONETeSS

intended to make rele DY ant, he acts. WwW ithin his dis®Petion

gid our role asa review ing conrt ds corstr Ane “dL. Wedo.

res hold. in other words, that the bridge can never be

Aynilt, Nor do ‘we khow or incan to suggest that’ the

information now available to the Secretary is neces-

sarily insufficient to justify construction. of the bridge.

We 7 told only that the Secret anv sees re ach his de-

-CESTOT stiic tly Oy the ments and j 1 the iInanner pre-

‘ . . . ¢, .

Y setibed by. sti ifute, ; Without Ve Ferenc e- to it nclevany

or extraneous considerations, :

For the purposes of the ‘foregoing dis¢iission, Wwe

have assumed that presst “OS exerted hy C ongressional

avehey could reach we difterons rocaite if, it could insul: ate itself 5

_figin-extraneous pressures unrelated to. the merits of: the ‘ques-

tion. On remand: the agency. wilf have an oppartunity to take

steps ta achieve. the insulation required by eratute and lohe-

established principles ‘of adhyinistratiye law. perhaps by com-=

-piling a -fuil- scale administrative record, utilizing fully intra-.

. ageney review procedures, ane consulting with other moENCOS

and planning groups. 2 SK Cee os

os 2 Sanborn Television C orp. v. FCC, 100 1. (om D.C.

82,°8433 F.2d 26 (1957). : 3 ey eebae

» Nesieieas,

radvocatds of.the bridge. are Irrelevant-to: the merits ‘of.

the questions | presented to See retary V ol pe. “Ite doe 3}

not seem possible. to make even a colorable argunent

of relevance e xcept with regard to § 138, ‘But it might

be argued that the potential loss of the, subiwuy Was

the type of “inuque problem” -and cost of. “extra--

ordinary magnitude? * that the Secretary could prop-

erly conside¥ in dec ding, pursuant to 8133, that there

were no prudent alteriatives to the use .of parkland

for the bridge. The eee Vv plainly understood that

the price of abandonitie: modifyi ings or even del aying

constinetion of the bridge was the loss of approprias

tions: for the District!s subwa¥, He undoubtedly -

viewed the prospect, of that loss with understandable:

alarm, and may have concluded :that the destruction

of parkland was inescapable and appropriate in the

face of -Represe ntative. Natcher’s clear and enforce-

able threat. We cannot agree, es that a-deter-_

mination grounded on that re

the requirements of $138. . §° te ‘

Neither the section’ ecidtive Niistory: nor the

soning would satisiv

‘Supreme Court's decision. in Overton Parle indidates

clearly whether or not ‘this sort of . consideration

-shonld be deemed. relevant, We: are persuaded, how:

ever. that holding. these pressitrey relevant would

ceetive ‘y emasenlate athe statutory scheme, The pur>

posé of » 138, in our view, Was té preserve parkland |

by directing the & Secretary to reject its, use except in

' the most unusual situation where no alternative would

be available.’ The .“anusual situation’? “posited, here is:

entirely the produet of the action of a small group of

men with strongly -held views on the deSirability. of

the bridge, who, it may be «assumed, are acting with

. sie Nee Ci itizens’ to Preser Overton Park, Inc*-v : Volpe, 101

US, 402, Hz. 1s (1971).

¢ .

‘extremely treacherotis position. Our. holding is -de-

“least “to, enh: nce

= 3la

the interests. of the public at heart. They Vv may well ‘be

correct in. concluding that a new bridge is needed’ and |

that no alte ‘ryative location Isyavailable, But no matter,

how sound their: reasoning nor how lefty their motives,

they cannot. usurp the funttion vested by Act of Con-

gress in the Seeretary of Transportation, Uotrl the

Statutecis amended or repealed by anothér Act of Corn

OVPSS, the Secretary must: himself’ decide. - be; aring* in

mind the statite’s mandate for the ‘preservation of

park: wd, whether-a prudent alternative .is-available.

‘Congress could not have contemplate d. that an jilte Mmia-

tive: Would be “imprudent” merely because person's.

Who are cominced that parkland shold he used have

the plover to decree that all alternatives to the ase of>

- that parkla ind shall -henceforth pe agonizing. Our inter.

pretation of 61: 8 Is esse tis if the Secret: inv is to be

insulated “from extraieons pressures that haye ho.

relevance to his assigned’ gtatutory task,

To vole anty inlisconceptions about the -aatirre of

“our holding we. emphasize th: at We hve: not found

nor, fax that gnatter, have we ough An sugeestion

of impropriety ov, legality in\the actions of R repre

sentative Nate her and. ae Who strongly advoen te

the br idee, Thev are surely entitled to their own view

on the need for the Three Sisters. Bridge, and, we

indicate no OpINjON On their authority tos exe rt pre

sire of Seere ta Ly V olpes Nor do Wwe me ay ‘to Bee ST

that Secretary ae acted in bad faith 1 delib-

erate disregard of his statutory elpamanaiGes Th

was’ placed, -through ‘the action ‘of others, in ane

signed, if not to extricate | from tliat positions 11

nity to abey the 'tatutoy

sean: notay ithistar ding’ the diffieul posit for. i

which he was placed, | ae me

a eee

32a )

Bs gee

Ww e eohclude that the case aa he venieaiind >

the District Court with directions that it’ retur n the :

case to the Seeretary™ for him to’ perform his statu-

tory function in accordance with this opinion. It

seems clear that even though formal administrative

findings are: not required by statute, the Secretary

could best serve the interests of the parties as well as

the reviewing court by. establishing a full-seale ad-

ministrative ‘record which. might dispel any doubts

about the true basis of his action.~ Accordingly, tire

District Court is directed to enjoin construction-of the

bridge until the defendants Jaye complied with the

applicable statutory. provisions as’ set forth in our

opinion. | ,

Reversed and voiced

VF. dd. at 419 n.33.

“While formal findings are not required-by st: atute, ies aire

compelled hy one of the Department's own internal regulations.

DOT Order 5610.1. issued on October 7 (. 1970. See generally

Citizens to Preserve Overton Park, Inc. v. Volpe. 401 U.S. 462.

417-19 (1971). That Order was not in effect at the time the

Secretary’s determinations were made. Plaintiffs argue that the

Order should be applied retrespectively, and that ‘it should

therefore constitute. an independent basis for reversal. While

the. Supreme Court rejected a similar claim in Overton Park.

supra, that decision may be distinguishable in that a full ad-

ministrative record was available there to facilitate review. //.

at 419. While the proposed distinction’ would seem to have a

good deal of force. we need. not reach the question in view of

usion that the Secretary failed, irrespective of DOT

Order 5610. make the determinations required. by statute.

When the Secretary makes new determinations on remand. the

~ Order will presumably apply.

A ee aE & te oe

33a

Separate opinion by Circuit Judge MacKinnon, con-

curring in part and dissenting i in, part

ois [Referred to in opinion -of the

Court filed. October 12,-1971]

- Filed November. 4,1971 °°

Mac KINNON, Circuit: Judge, concurring in part

sand: disseriting in part: Frém time: immemorial the

public interest has suffered. from’ various types of

bottlenecks whieh injure the publie in many Waxs,

This case arises out .of governmental efforts which

seek to improve the highway. sac tition facilities

of the Washington Metropolitan aréa by removilg a

number of highway bottlenecks. One of these is the -

traffic bottleneck in the vicinity. of,-and across the

- viver from, Georgetown in Northwest Washington.

There the increasing .¢ongestion on parkland high-.

Ways, an antiquated street system and historie read

patterms which are additionally confined’ within’ the

adverse topographical features of the beginnings of

the Potomac Gorge, combine with the. necessity of

‘bridging the Potomac River fo. cause great Incon-

venience to those attempting to enter or leave the Dis-

trict of Columbia by means of the existing streets fd

_highw ays. The resplt is great inconvenience te thou-

sands of highway users entering and leaving the. cay

tal and a substantial lengthening of many workers’

day. - :

- The governmental ecitieaetises responsible for deal-

ing with this situation concluded that it is nee eSSarV

to erect the Three Sisters Bridge across the Potomac

River as one essential part of the overall highway

dinprovement program proposed for the entire metre-

'. politan area. The erection of this bridge is here op-

posed. by, a-citizens group of the District of Columbia —

—

REP 8

Bde

_ Which-does not seriously attack the basic merits of the °

overall program to improve highway traffic congestion

but instead’ ground their opposition on an alleged

failure to. comply. with certain procedural require-

Yments imposed\by statute which are applicable to the

planning and ‘construction of the -project. In such

" matters, under. our form of government “with its

separation of powers, the function of policy making

is ‘assigned to the Legislative ~and- Executive

Branches. Congress enacts the basic laws and these are

carried out by, (1) the Executive Department fune-

tioning princip: y_thr ‘the De “Prans-

portation, headed by the’ Secretary of Transportation, .

a member of the President’s Cabinet, - Mr. Volpe,

though other fedéral departments may perform ‘iso-

lated functions;.and (2) by the District of Colum-

‘bia acting through its Highway Department.

“It should also he noted that the Constitution vests

Congress with complete control over the entire area

of the District of Columbia for all-governmenital pur-

poses and insofar as legislation is concerned vests it

with the combined powers of the federal and state

governments. 07.8. Constitution, art. T, §8; Kendall

Vv. United States, 12. Pet. 524, 618 ( 1838) ; Stouten-

burgh v. Hennick, 129 U.S. 141, 147 ‘( 1889}; Shoe-

maker v. United States, 147 U.S. 282, 300 (1893):

Atlantic Cleaners and Dyers v. Unitéd States, 286

U.S. 424, 434-35 (1932); O’Donoghue v. Unitéd

States, 289 U.S. 516, 539 (1933). The Constitution

thus imposes a -precise duty upon the members of

Congress to look after the needs of the District of

‘Columbia in addition to those of their individual dis-

_ triet constituents. Members of Congress are, also

charged: with guarding all-the interests of the entire

nation in the District of Columbia as the seat of our

national government, Pursuant to this. assignment of .

Yesponsibilities, Congress and its members have taken > 4

cognazance of the rieed for’ transportation facilities - :

in the District of Columbia and the ‘surrounding

metropolitan’ area. To meet the area’s anticipated:

transportation needs it has authorized the. appropri-

ation of. federal funds for the construction of a metro-

politan subway system and has also authorized and

directed that substantial additions be constructed - to _'&§

the- ——a in the area. These additions include_-_____—

—~——the erection of the Three Sisters Bridge.’ In this con-

nection it was the decision-of Congress that the sub-

way construction and the additional highways (in-’

- eluding thé Three Sisters Bridge) would be. built con-

> ~ * temporanecusly. This conclusion ‘follows from the.

facts of the contemporaneous appropriations and the

express congressional direction. that * work ‘on the

Three Sisters Bridge begin within thirty-days after —

-. the congressional enactment (82 Stat. 815). | oe

The remainder of this opinion deals with the very - r

extraordinary majority opinion—extraordinary in _

that it effectively sets aside for one alleged reason —-—-—

or another every finding of the trial court that the ~

Government had in any way complied with the stat-

utes in question. In its own language: *

As to the provision with which the. District

. Court found ‘compliance, however, we have con-

eluded that the statutory requirements were

not satisfied . | ; nf

Majority opinion, page 3, vi |

‘In this terse manner the extensive findings of the

trial court are effectively negated. This discussion of

——

- 2 The proposed Rietdgn lies almost completely in the District

of Columbia sinee. the Potomac River is entirely within the

District: The bridge approaches on tlie south bank ‘would -be

within the jurisdiction of Virginia. - a ‘Tre wae ‘

NT ?

— 86a.,

- the. application. of the separate statutes (Title 23,

U.S. ¢ ‘ode) Which follows fully demonstrates the: wide :

gulf between: the mifjority and ‘the practiéal: trial.

judge who heard all the witnesses in ar. extensive 12-

day hearings, received 1 025 pages of: depositions and

then thoroughly documented his findings in an opinion ’

covering 40 printed pages. D.C. Federation of Civic

aprorsatens Vv. seni 316 BF, Supp. 7 + (D. D.C, 1970).

SEC TION 158—Fr ASIBLE AND: PRUDENT ALTERN ATIVES

AND -PLANNING

The majority opinion sets aside the de dormaitlatiol 3

of the trial court that: the Seeretary. had- complied

with the requirements of section. 138 largely because

GF an abstnee of formal findings and an adiinistra-

tive record in. the Department of Transportation... The

majority opinion asserts that al] possible plaiining to

minimize harm to the affected patkiond and historic

sites’ could not dive: been carried out beeaise the

sieahglnespieinti

“$158 requires a determination th: at there was’ “no feasible

and prudent alternative to the use of such land” and that “the

‘project includes all possible planning to ‘ninimize harm to-such

park . . .,or historic site.” 23 U.S.C. §138.. ;

? Cheorge town as-an historic. site. The Old Georgetown Dis- -

trict was. created within the District. of Columbia by Chapter

IS4, approved September 22, 1950 (64 Stat. 903). Its west —

boundary was fixed at “Archbold Parkway from Reservoir

Road to the Potomae River. 2 . * The district so established

would be slightly to the east of ihn presently prescribed Joca-

tion of the Three Sisters Bridge. if any of the ramps or inter- .

changes were to come within: said \dist ric se obyi lous’ from, |

the maps that it would only touch’ a de minimus area at the

‘Southwest cornér, of the district which ‘is devoid of buildings.

~ Thus, the. Three ‘Sisters Bridge dees not imperial the architec-

ture’ in Georgetown. The Old Georgetown District wes estinb-

lished “to preserve and protect: places and ‘areas of histori ie in-

te rest, exterior architectural features and -e: samples, of the type.

of ‘architecture used in the: National Capitil in its initial

id : y ie . ec me ‘

DLL LOBOS OP. SA RES ROE

Lae as ene 37a :

final’ Pee of the 1 raps ‘and Lee ae not

_ been completed when the Sccretaty approved the ~

" project. However, the lack of findings andthe normal

departmental administrative reeord is fullysand satis-

factorily explained by the fact that ‘the Secretary

personally made the necessar v ‘decisions and the De-

_\. partment file: thus does: not include the usiial inter-

_ office memoranda *eflecting action: by subondinates

which is a feature of those projects when the Secre-

“tary does not personally exercise his statutory ‘re-

: Spemibiate “After ,all, the statute places - the duty,” /

years. wo. .” (64 Stat. 904) oto effectuate the intent of .Con-

eress the ‘Ac t- required the Commissioners of the’ District’ of

‘Columbia before issuing any permit for the construction, altera-

tion, reconstrudtion or razing of atiy Sulding within the Old

Georg zetown. District, to refer the plais to the National, Com-

mission. on Fine a for a report as to “the exterior wrchitec- oa

tural features. ight, appearance, color and’ texture of: “y

matetinis of éxterior constriction which is subject to public .

‘view from a public highway.” The Conmnission was i

quired to report. its recommendations as to: whether thd “plans

with respect to any building swould® coals ao historic -value.

of said ‘district and if not to suggest changes. Thus, while the —

“Act referred to, “places. and areas” of Scaces ic interest, the op-

erative features of .the law were «dirceted solely to buildings

Within the district and there was no showing made in this

ease that. any buildings within the distri#t would be affected by

the Three Sisters Bridge or any of the ramps and inttr-_

changes ‘that would be constructed under any plan. And as °

stattd above, only a de minimus area at the southwest corner |

might be affected by the ramps and interchanges. The bridge

itself would not’ touch the Old Georgetown District. Also the

character of the: ‘so-called parkland on the north bank of the

Potomae (the D.C. side) where the bridge abutments would

be erected consists practically entirely of a railroad right-of-

way. the Chesapeake and Ohio Canal and a public highway.

Thus, any substantial interference with “green places” on the

District ofS Columhia side of the river has not been: demon-

strated. :

his decision ‘should rot be set aside because of the

~ ae. -- :

upon the Secretary to make such determinations and

absence of documents which are not necessary or

normal, when he personally exercises that responsi-

_ bility. This Secretary of Transportation is not a fig-

urehead. He has had extensive prior ‘experience in.

highway p¥ograms: His background and record indi-

cate that he is. personally capable. of making not -

only the ‘ultimate decision. on the britlge project but

also many of the underlying mimor, but basic,. de-

cisions.*. - a SCS © ake a a a alae

Further, I would -not conclude_that the Secretary

failed to indulge in all possible -planning to minimize *

harm ‘to the. park’ because . his consideration of ‘the

amount of land-to be taken by the ramps was based

* Biographical data on Secretary of Transportation John A.

.Volpe indicates that he was born December '8, 1908, graduated

from high school and following two: years of night schoo!

majored in’ architectural construction at Wentworth Institute.

He engaged in the construction business in. Massachusetts from

* 1933 to 1943 when he‘ volunteered for duty with: the Civil Engi-

ner Corps (Seabees) of the United States Navy. On his re-

turn. to civilian ‘life he held the rank of Lt. Commander and

he then reopened: his construction company. As the business

grew, he set up 6ftices in Washington, D.C. and “Miami, Florida.

He served as Commissioner of Public Works for the State

of Massachusetts for four years beginning in 1953. In this posi-

tion he undertook one of the largest highway construetion pro-

grams in the history’ of Massachusetts. President Eisenhower

named him as the. first Federal Highway Administrator of. the

United States and ‘he served in ‘this position "in 1956 and 1957

and thus became one of the architects of the $40 billion Tnter-

state Highway Progtam initiated by the United States at that

_time. He is a member and past president- of the Society of

American Military Engineers and is also past president of the

_ Associated Gerieral Contractors of America. He was also elected

to three terms as Governor of Massachusetts. CONGRESSIONAL

Dmecrory, 92nd Cong., Ist Sess. 973) (1971).

- that tlie Secretary has not’ already

BAK SOs LRSM DALY BEF SNR

39a

on the pr eliminary plans for the ramps. In this re re-_

spect the opinion of the trial court states:

Secretary Volpe testified that he based his. de-

termination on the preliminary planning for/.

the ramps.and interchanges which had ‘bee

done at that, time. Although lie conceded tha

the final design of ‘the ramps was not complet ‘

he. pointed out .that there were very limitéd

aietaatines available. He ‘stated that before /he

approved the bridge project, he was satis ed,

a ‘and the Department, of Interior, which had -

. jurisdiction over the parklands, was’ satisfied,

that the designs ‘which would be dev oped

based on the preliminary plans would regult in

a. minimum taking Qt pee, [ Ex phasis

added.] j /

* D.C. Federation of Civie Associations v. Volpe, supra, -

316 Ky Supp. at 774-75. I construe: this .s temont of

the trial court. as a finding that the Se retary took

into consider ation the amount of. park lafid that might

be required under all the limited alterfatives for the

‘amps: and. interchanges. Thus, the ffaal selection of

any ramp, ete. , design’ would not present any problem

considered.

As to the suggestion of ‘the’ majority that the use

of the word ‘“‘harm” in the-statrite confers authority

‘upon the courts in/this case, w 1ereonly Government

land is involved, to pass upon the: “subtle ‘calcula-

tions” inherent in detérmit ing the ‘‘aesthetic value?—~

of this bridge, it is my vigw that Congress had more

. practical considerations An mind and‘did not thereby —

direct the rejection of ,projects,which while. they may.

be -**pleasing”’ ‘to: thé eye might ‘by some personal

standards. be ‘considered not’ to be “beautiful.’’ See

Webster’s New International Dictionaty, 2d.ed.

The majority opinion further states that the Gov-

vernment can, hardly maintain that there . was no

ntl

vicinity of the 'Phree Sisters Tslands.*. To we

sand bar. - ;

40a

“feasible ’ alte rhative to the constr amen éf the Three

. Sisters Britge’ because: this exemption under Overtoi ©

Park? only applies if the Sec retary. ee that as a

matter of “sound engineering’ it would not be feasi-

ble to build the highway along any other route. To my

inind this argument is not foreclosed: to the Govern-

ment in-the least. The. ma jovity’ Ss comment may have

heen falsely premised ona belief that sound engineéring %

referred only to structural fe: tures, but there is much

‘more to lughway, engineering than, the stability of the

structural features that may be constructed. Cert unly

the location of present, highways and bridges in the

- Washington area whet combined With various ‘topo-

graphical features, extsting ‘tr affic flow patterns, and -

the fact that one objec tive of the Three Sisters Bridge

project was doubtlessly intended to alleviate some of

the traffic congestion presently existing on the. hight

‘ays within the parklands on both sides of the river

in the vicinitveof the Three Sisters Biidge, might

compel the conclusion that as a mater of sound high-

way engineering the only feasible, project that would

correct the congestion would be to erect a br idge in the:

Ud thus.

engi--

doea-

not. rule out the possibility: that. sound. highwa r

neering would practically dictate abr idge at tha

“tion and’ that ‘it would not be feasible to correct that

‘traffic congestion by. the construction or expansion of

‘a bridge at any“ other Joeation. The controlling engi-

neering principles when -apptied to -the facts here

present may. net pr oduce such a concdiision but ‘there

* Citizens .to Preserve Overton Park v. Sac 401 ve 402

(1971):. - aot : oe

* The so-called Three Sisters Isl: ends consist of nathing hiore

than three small rocks which project above the waters of the’

Potomac River. At low tide they are connected by a smatl

s .

’

aan > "aie BE Re DOE GOR AEA A fol PDI GTAG OT TERS ROTA TRUE

aia... as

Is ‘nothing an this record to indicate that such ‘beasts

sion could “not. properly be dictated by the: ‘applieatian

a of seund Aighway engineering principles. .

The personal involvement of” the Secretar v in the

decision also explains the alleged, failure of the De-

partment’ to process the matter through hormal, pro-

cedural channels’ in the Department. W hen a statute:

direct’ a Cabinet officer to make a decision, that de-

-¢ision should not be criticized: or found to ie. faulty

because he did not delegate thie groundwork td sub-

ordinates and: then rubber stamp their deci ‘ision.

The majority opimion also ‘states that

Secretary ° Volpe: did’ not: ee other

planning agencies to coordinate efforts to mini-

mize harm to thte park and historic ‘sites.

Majority opinion, page IL. This statement refers to.

something that. is not veqiired by the statute. ‘Tt*seems

cleat that the provision of sec tion 138 requiring ‘all

possible planning to minimize harm to such. park ;

or historic site from such use’? “does not réquire that:

the Secretary of Transportation “consult with other

planning: agencies to ‘coordinate ones *0 minimize

harm to the park and” historit sites,’ * (Emphasis

added). The Majority. opinion while it does not state

. SO exactly, seems to be tr vingsby-such. language, to:

give the “Natioual Capital Planning’ Conuprission a

x i’ the. Seeretary decision by compelling ‘the

Seeretary to “consult” with theni, But the statute

does not. so provide, It requires only that the Seere-

tary engtge in all possible lanning and not that-he .

consult ever Vv group that may have an axe to erind—

‘he may consult with sneh groups but ‘a ‘IS no.

| requirement that he, do more than indulg@ in’ “all

i 1283 US C. fo : oa a

* § Majority opinion, p.-11.

42a

possible planning.” Clearly consulting is something

more than planning. The statute directs the Secretary

to make the decision and he is not forced to share

- that decision with outside agencies under the guise of

consulting. The. ‘statutory requirements are already.

cumbersome enough without having the majority try

" to invent new requirements.

As for air pollution, I find the trial court’s finding.

that ‘air pollution was an oVerall consideration in

this as well as all interstate -highway projeéts’’’ to

completely satisfy any requirement in this respect.

Moreover, it seems obyious to mé that the bridge

would not create any air pollution, and that.to the ex-

tent that it relieved highway congestion on the present

highways in the parks it would decrease air pollution.

In this respect, as in other instances, appellants and

the majority are straining at gnats. Instead of sus-

_ taining appellants” vague generalized objections to the

present plans, -L would require the objectors to show

precisely how some of the plans being considered by

the Seeretary failed to meet the statutory standard or

It also seems to me that, in requiring approval by

_ the Seeretary of. final engineering plans for all de-

tails before the project can proceed, the majority are

giving an overly technical, legalistic and impractical

Interpretation to the statute. What the Act requires is

that the Secretary “not approve any program or proj-

ect... Unjess there is no feasible and prudent alter-

native » . . and all possible planning to minimize

*harm....” was indulged in. To my way 6f thinking

this would permit the Seerétary to approve a program

or project which is described by general specifications

*D.C. Federation of Civie poe ‘lations vy. Volpe. 316 F.

Supp. Tot. 775 (DPC. 1970). :

Wi =a sk

and reasonably precise locations without having the.

final blueprints. Certainly as a practical matter there

must be room for ‘some preliminary approval prior to

- ~* the py eparation of blueprints becatse no goverment

-Is going te spend the millions of dollars necessary to

prepare the final drawings without seme prior ap-

praval that the drawings are being prepared along

linex acceptable to the approving authority. If it sub-

sequently develops that the final plans for some phase

of the project do not meet the. statutory standards

‘they may be attacked ‘at that time, Alternatively, the

preliminary plans could be attacked upon a showing

that they did not meet statutory standards. Buf there

ix neither such showing here and T would not held up

projects, as the. majority holds up this project, unless

the obje Mrs could demonstrate that substantial harm

woud result from the presently existing plans tvhich

would be alleviated. by somt other’ plan. Insefar as this

affects the possible ramps and interchanges here it

worl! be a relhtively simple matter to consider all the

“limited alternatives” and, make a deejsion thereon.

[ wonld thus net remand for any purpose: connected

With section 138.

SeevioNn 154—CoMPrenexsive TRANSPORTATION

PLANNING Process

This section requires the See r" tary to cooperate with

the states and not approve liighway projects unless

he finds them to be hased on a continuing comprehen-

-sive transportation planning process carried on co-

operatively by “states and local communities. we

Iie considering the requirements of this section the

majerity reverse the trial court by coneiding that

the Publie Roads Division Engineer (Mr. Hall). te

"3 US. § 834.

. . (> | : ;

whom the Secretary delegated his responsibility under

section 134, had improper iv in turn delegated hits re-

sponsibility to the Transportation Planning Board

(TPB) of the Metropolitan Washington Council ‘of,

ketene (COG), betaise,\they allege, Mr. Hall

helieved that “TPB: was the primary agency te which

he should look in making his findings.”’ But certainly

the belief that TPB was “the primary agency’ for

such purposes does not constitute a delegation of his

authority.. The record thus does not support the ma-

jority’s finding of improperly delegated authority.

Moreover, the TPB was the only ageney in the

area that did satisfy the requirement of the statute

of a body carrying on a “continuing comprehensive

transportation planning process *-* * cooperatively by

states and local communities * * *.° Also, as the trial

cout noted, the District of Columbia, through resolu-

tion of its Board of Commissioners on June 17, 1965,

provided for the District’s participation in the plan-

ning processes carr ied on by TPB. |

What is really involved in the majority’s opinion

in this respect, ax with its criticism under section 138

that Secretary Volpe did not éonsul# with other plan-

ning agenctes, is another backhand attempt to elevate

the National Capital Planning Commission (NCPC)

to a point where: it can obstruct the project for ifs

own ends. However, the NCPC is “concerned with

planning solely for the District of Columbia,” and

thus dees not meet the-requirement of the statute for

a planning organization being carried on ‘edepera-"

tively by states and local commiities.”” In contrast,

the TPB fs a regional organization " and does satisfy

the statute. Tt is thus my conclusion that the majority

"D.C, Federation of Civie Associations v. Volpe. sp: note

9,316 F. Supp: af 795. ss ;

Ks eA, Pe OLA BDI RE a ETT ee Rt ON EPO AAPL AG BREE Ue Met BIB

exceeded its authority on this. appeal when it ruled,

contrary to the facts, that Mr. Hall had delegated his

authority. Similarly, the majority are acting contrar vy

to the statute, if they are attempting to compel the

Secretary. th be governed by the views of the NCPC.

I might add that the situation here is not novel

the United States. Comprehensive highway plans

traditionally. run into many local objections, some

selfish and some meritorious.. When such situations

arise they can only be solved by a fair application of

the law, which I do not consider here justifies the ma-

. . ° . ° -t . . »

jority in indirectly suggesting an interpretation of

the statute that would give appellants, through the

narrow interests-of the NCPC, a whip hand in the

final decision. .

A further example of the tenuous rationale of: the

majority in. its reversal appears in its attempted,

characterization of the TPB approval of the Three

Sisters Bridge as a ‘stale’? approval.” The TPB

formally appreved the Three Sisters Bridge in De-

cember 1967 as *tconsistent with comprehensive plan-

ning in the region” and since that time, as the District

Court found, “the TPB has continnotsly reviewed the

transportation system for the area and * * * the

approval ~ the Three Sisters Bridge has never been

rescinded.” The Division Engineer of the. Burean

of Publie Roads (Mr. Hall) considered ‘this approval

of the bridge.when he made his finding in August

_ or September, 1969, that. the project was “hased -

om oa continuing comprehensive — transportation:

planning process carried on -coeperatively by states

and local communities.” On these admitted facts,

"2 See pace 15 of majority ovimMien,

RIG r. Supp. if TO. : ‘ ‘wy

13 Ii.

46a iP, ; a

I consider it to be a gross distortion of the record

to characterize Mr. Hallas acting upen a “stale”

approval, when the original T PD approval was within:

, twenty months, and the. area transportation, system

had been “continuously reviewed” by the TPB since

then without any alteration in its approval of the

bridge. It is also incorrect, to call such approval “ine.

appesite” And to require a ‘comprehensive. plan —

which the-const+efers TO, Whatever that might. mean

as applied to a project for a single bridge), as op-

posed to: Fequiringss Mat project to’ be consistent with

comprehensive planning,” ix to attempt to impose a

requirement that is. hot imposed by the statute.’

| thus concur in the trial court's finding: that the

requirements of section 134 were fully complied with

nad dissent from the contrary: conclusion of the ma-

jority here.

Srorioy 109(a)—THE Sarery or TH} Prosect

I concur in the trial court’s: coneliision to require

further study of, the structural feasibility of the

bridge but dissent from that portion of the majority

opinion which states. that the Secretary ‘undertook

no study of .the fair pollution] problem.” As pre-

viously stated the Secretary testified that “air pollu-

tion wasean overall conside ration in this.as well as all

interstate highway projects” : thus [ consider that .

the air pollution problem: was properly considered

and disposed of, [ would ftirther permit work to pro-.

ceed upon the ercavation for the piers becuse this. -

work is in the nature of a preliminary fest’ since pre-

tonstrnetion borings are net cone ‘Jusive. Thus, accord- °

ing to the testimony there will always be some doubt.

ag TSC. $1

316 F.Supp. at Tro.

A al ict nina DRS SEN 1 Re Tia SRR LORI, Cepia Lode

. 47a

as to the absolute feasibility of ae location and plans

until the excavation is completed for the piers., It is

my view that given the approval of Congress, and the |

necessary available appropriations (both of which the

project has), it is within the proper discretion of the

- Secretary to proceed Seek eee .

Saiveen 28—T HE - ATION HEARING

—

Since the record is-devoid of any proof that the — ,

present location of the bridge and ramps would affect

the public in any manner substantially different from

the three location’ (which spread cagled-the present

location) disenssed at the 1964 hearing, T avoukd con-

cur in the findings of the trial court that the public

hearing requiretents were sthstantially - complied

with. T thus dissent from the statement by the ma-

. jority that the trial court’s opinion was not clear that

a finding had ac tually heen made. To me it is perfectly

‘clear that the court se found when it ruled that the

preaeat location was “hot a new Jocation” within the

meaning of section 6a(1) of fhe PPM. The finding by

the trial eouit that “no private property will be taken

-for the bridge or its ramps ahd interchanges” is also

relevant ta the finding with respect to the location.

_ Sect wenn 357-—The. Map

Pur scetion requires that a-map should be filed

showing the pertions ef land Which a department de-

Sires to appropriate. In this connection the majority

opinion in footnote Gl refers to a letter ‘of Decena-

hey 15, 1970 from the “National Park Service .and .

indicates that the plaintiffs may present this matter

te the District Court for reconsideration of its rmniing |

under Seetion 317. It seems clear, however, that the

letter does not relate te any parkland but only to the

—~v

| es | , 48a. | Z

“adverse inpact (of trattic couditions) on the park-

way (the highway). It is this my opinion that the

efter would net have any relevance to any issue under

Section 1 y Pe ‘ .

. > 5 7 ®

CONGRESS, REPRESENTATIVE NATCHER AND SO-CALLED

POLEEICAL INFLUENCE

Tn Part TL of the majority opinion Judge Bazelon

deals with the position of Congress and refers princi-

opally-te some statements by Representative’ Natcher

relating. to the Three Sisters Bridge. The opinion in-

fers that Representative Natcher by his acts was a

* party te forcing approval of the Thi o Sisters Bridge

without regard te its merits, but the ‘eeard does Hot

cso veileet. As the Triahk court found, Representative

Nateher stated that he would) do what : ti

withheld, Appropriations for the construction of the

Distriet of Columbia vi apid transit system “until: the

Distriet complied with the 1968 Act and: the free-

sentative Nateher was thus merely attempting te see

that the laws enacted, by Coneress were carried out.

“The Threet Sisters Bridge was just one of several

_° Teoway projects upon which Congress in 1968 nae

Qipected the District of Columbia to commence work,

It is not nausnal or improper for Congress ‘Yo with-

‘hold app Fopriations until its laws are complied with.

In discussie the public position of Congress, as artie-

“Hated bi its Jaws and Represe ntative Nateher, Fudee

Bavelon states:

. [The aan of this. [eongressienal pressure

is sufficient, standing alone, t6 invalidate the |

Secretary's actions’ Even if the Secretary had.

Ad at T6025 - :

“ts Poh, L. Ne. 90-495, Se Stat. Sloe fo6s).

Anda ft

Andee

DRL RD RL ARS ‘ - % ”

49a °

taker every formal step required by every ap-

pheable statutory provision, reversal would be

- required, in my opinion, because: extraneous

pressure intruded into-the calculus of consider-

ations on which the Secretary’ s decision Avas

Pconiug (Majority ope, p. 24y

‘auither:

ach |he tri: W court a terminedeas a matter of

law that: since the Secretary was not acting in

2 judicial or. quasi-judicial capacity, his decision’

would be imvalid only if based solely on these

extraneous Gonsidet ‘ations hos influence ema-

nating from Representative Nate her]. ——

ity opinion, p. 25) rene

Fahy does not agree that the trial court, teal

that extraneous pressure had influenced the Secre-

tary’s decision .and ‘[ find it imjsossible to. read the

fidi: ies and conclusions of the District Court as an.

Paths

ang that holding.‘In this 5 the trial court” s

op! Hiet states:

The mere fact that the: Secretary: was aware —

of the Congressional pressure to build the Three -

Sisters Bridge is not sufficient to invalidate his

action in directing that the bridge be restored

ty.the Interstate System. Since,the jssvie in this

suit is whether there has been compliane e with

Title 23 of the United States Code, the political .—

pressure exerted by members of Congress ts

relevant only as tow hether fomay have oe

Secretary Volpe to act without considering

merits of the project as required by Title 23. As °

will be. discussed) in) connection with § 138,

Mr. Volpe commenced an exhaustive study of

the merits of the Three Sisters Bridge project

soon after taking office, and did not come to a

decision that the bridge was essential iumtil the

Sumnier of 1969. The Court belicucs the\Secre-

—tary’s testimony that his decision was based on

the merits of the project. and not solely on ex

Hie

50a

trancous political pressures, Ut is trie *that

Mr. Vokpe was also interested in securing the

release of the rapid trausit appropriations, and

that the approval of the bridge led tothe re-

lease of those funds. Bat the Court finds: fhial

the meré fact/that the Secretary was aware of

this. pressure docs not invalidate his decision

that the Three Sisters Bridgeds au tin portiut

anid wecessary part of the Lutcrstate Highiray }

System, : ae , Ope

* os * F ,

‘The pliintiffs contend that the Congressional

“pressure for the sconstruction of the Three

Sisters Bridge was 6f stichea character that it

ean reasonably be inferred that it had) some

in fucnee, conscious or inconscious, on the deei-

sion of the Secretary to redesignate the bridge

as part of the Interstate System. From -the

evidence-of the contemporaneous statements of

Secretary Volpe, and. hts testimony in this case,

‘there kk ne anestion that the prpssure reeard-

ing the yapid transit appropriations was given

some consideration at the time of the approval

of the. project in August, 1969. But the Court

concludes that this does net invalidate the dect-

sion of the Seeretary in this case... . The

statute vommits the decision to the Secretary's

discretion. There is-noe requirement .that he

base-his decision enly.on amatters presented at -

a public hearing, but rather, (ere ts only thee

implied requirement that he base his degisron

onthe merits of the project. In view of the

Secretary's testimony that he made an exhouus-

tive review of the merits of the project ind

based his decision on that study, this Court

will not invalidate: his decision. Thee present

case is further distinguishable from Jarroff i

that there the contacts with the Board were

secret, while here the actions of Congressman

Natcher and others are a matter of spublic rec-

ord contained in. offieial, Congressional . docu--

dla -

ments and speec shes made on the floof of the

House of Representatives. [Footnote omitted,

emphasis added. ] | |

DA. Fedevation of Civic Associations vs Y side: “316.

KF. Supp. 754, 765-766-167 (D.D.C. 1970).

See is submitted that any fair re ading of the trial

court’s opinion ‘cannot twist its language to support es

Judge Bazelon’s conclusion that it: held that the Sec- |

retary’s decision would be invalid “only if “base

solely -on these extraneous considerations,’” While

trial conrt found ‘as a fact that the Secretary’sAleci-

sion was “based on the merits of the progect and

not solely’ on extranesus political presstres,” this.

iseonly one of several fact, findings; it is nof the

basis for the decision of, the trial court and. such

factual finding is not. the application of any rule of °

law. The trial court also found that ‘‘the mere fact

that the Secretary Avas aware of this [congressional |

pressure does not invalidate his decision * * *.” But | ;

“most importantly, the controlling conchisions by the

trial-court recognized the “implied requirement that

he_ [the Secretary] base his decision on the merits ;

‘of thy project” and that the Secretary had eee os

7 made an exhaustive, review of the merits of- -

the project. and based his decision on..that

study, fand] this Court will not inv alidate his

decision. (Emphasis added).

It thus seems clear to me that the trial court (Chief

Judge Sirica) thereby found that the Secretary had

“based his decision upon ‘the: meyits of the project. .

T specific: illy conenr in this conclusion of the trial

court and disagree with Judge Bazelon’s solitary con-

clusion with respect: to this phase of the case. Judge

Fahy also does not agree’ with J udge Bazelon that

the. trial court “found that extraneous pressure had

influenced the: Secretary’s ‘decision. It is thus. clear

ova

that as” presently articulated. ino these opindens a

miajortyer the judges on this paner da net require

“that new determinations: * "on, the merits’ be rade

hecause of the interjection of any, for want of a

better hame,. political pressure,

Judve Bazelon’s opyrion also discusses the oolercniiece

. of the position of GCongress on the appropriations to’

the matter of the Three noel Brides, Ux

Citizens to Preserve Overlan Park ve V ol pe, WON teen

402, 416 (L971), the Supreme Court indies ted hat

“The court taust consider whether the sdecision ‘fon

the-suse of pa rkl nds | was based on a considerition of

the Yelevant fnetors.” LE find that the trial ee ride

the proper finding when it determined after ¢ lenethy

Atrial that the Seeretary based his decision on a ‘re:

view, of the merits of the project

that study.” While the majority: opiiion states it. is

“not holding that the bridge gan never be butt. if,

[and]

Judge Bazelou’s individual view as to the position of

Congress in this and other matters were to prevail,

standards which are practically impossible of eom-

‘pliance. Judge Bazelon’s opinion would do that here by

- deciding, contrary té the finding of -the tris cS idee,

that because A member of the ( ‘abinet had kvotledge

of the positian of Congr®ss on) approprka tans for

~ subways and. highw: avs in the Distriet of Columbia

that his decisian with respect to the nierits of a high-

way project must necessatity have been imprope ‘iy in-

thienced by that:information.

Actually atv member of the Cabinet, worthy of his

position: would necessarily know the position of Con-

evess on such matters. No person with the position.

the result would Gome elose to setting up legalistie ,

and ability to make the decision with respect to the

Three Sisters sridae would ‘he ignorant of the >

. ; ; ada

; . : ca eS .

publicly expressed congressional position ol such mat-.

; ters,’ Whit Judge Baze lon. fails to consider, is that

there were congressional pressures beth ways: and that’

the trial judge after full eonsideration foynd as’a fact

that the Secretary: based his decision on,a study of

the merits of the project. For .an appellate court to

reverse such conclusion on this appeal is to overstep,

Its authority to. determine ‘whether the Action of the

» * Seeretary was “arbitrary, eapricious, an abuse of dis--

eretion, on otherwise hotNn eneeordance with law.’

“The Supreme Court has said that this court has no, -

. aythority tu set aside Ahe Secretarv’s action on a

finding that it avas ‘not supported Jy substantial evi-

denee vor TDW: ie anted: jy the facets” Citizens 10°

Preserve Overton: Rark yo Volpe, supra, 40b CLS. at

Lid. Likewise, Nhe credibility, of withesses is a matter

in whielv the trial judge is normally considered to have

a particnlar provineé incactions trted upon the facts

+ without a juny. Fep. Re cuy. P52 (a). Judge: Bazelon’s

a ; au é

’ “pep. civ. P. o2(a) prov ides:

(2) Effect. In-all actions tried upon- the facts without ‘a-

jury or with an advisory jury, the cour shall find the faéts ~

specially and state bie its conclusions of law there-

on and qgudement- shall. be entered pursuant to tule 58:

-and in granting or refusing interlocutory, injén tipns the

court. shall — arly set. forth the findings. of fact and

conclusions of Aaw avhich | constitute the eronnds of its

“action, Re: PEON tor findings are rot necessary for prrpdses

of review. Firidings of fact shall not be set aside unless

clearly ervoncous, and due regard | shall be ‘given to the

opportunity ef the trial court to indee of the credibility of

the witnesses. The findings of a master, to the extent th: at

the court adopts them, shall be corisidered as the idndings

of the court. If an opinion of memorandum of deviston is

~ filed, it Will be suitieient if the findings of fact and con-

clusions of law appear therein, Findings of. facet and con-

y clusions of law are une: “issahy, on: decisions bi motions

ee under Rules 12° or 56 or any other motion except 2s prose"

; vided in Ride 41()). Ye eee Se ——.

Ps ‘ a ae | | 5

A aa tS BD

view of the iuatter Wonld violste both of these rules.

Judge Bazelon also reflects an overly suspicions

view with respect toe the effect of so-called political -

pressures. An individual's attitude towird this type of

question is clos#ie yelated to” his individual trust in

hitman heings—whether he believes a niiman being can -

resist improper pressures. I do not find it unusual for

‘a Cabinet member t@ be capable. of vesisting such

pressures. Moreover the law is that in the absence of

«vidence to the contrary (and there is no such evi-

dence heré) public officers are to be presumed to per-

form. official acts in accordance with the law.” As I

read Judge Bazelon’s opitiion, however, it is his in-—

dividual view that such pressures are irresistible. Tn

the face of such colossal distrast of Government offi-

cials, the mere existence of the vestiges of pressure be-

comes equivalent to the reality of duress. T find, that

“conelusion te be tnsupportable—and .contrary te Taw.

The realities of this Situation are that under the -

* Constitution the Congress of the United States has a

wider voice in the affairs of the District of Columbia

than it does in the affairs of states or.other cities. Pur- -

suiant to its constitutional mandate Congress does take

a firm hand in matters affecting the District and that

is precisely What this court found was lacking in the

first case (1968) invelving the District highway. pro-

* United States v. Chemical Foundation. 272 U.S. 12 M15

(1926) states: ;

The presumption of regularity supports the official acts

of public: officers and. in the absence of clear evidence to

the contrary. courts presume that they have properly dis-

‘charged their officials duties, Confiscation. Cases, 20 Wall, 92,

ls: Vaited States v. Page. UT Ul. 672. 678-80; Tnited

_ States. Varo 189 US. 199, 205,

. gstéreich v. Selective Service Bd. No. 11. 398 ULS. 255, 211

(1968) (Harlan. cohewrring). isto the same effect.

- gram. D..- Federation of kgs Associations, Fue. Vv.

Airis, 129. U.S. App.D.C. 125, 391 F.2d 478 (1968).-But

! we Congressman has any ” weight in such matters

hevend his ability te speak for Congress and to the

extent ‘that he does speak for Congress he. is only

calling attention te the expressed will of Congress.

Congress has spoken in this matter. In Séetion 23 of

the rer Act of 1968“. it ordered the erection of

$25 of the Federal- Aid Highway Act_of 1968 prov cides:

_ See. 25. (4) Notwithstanding any-otber prov ision of law.-

or any court decision or administrative action te the, con-

trary, the Secretary of Transportation and the government

of the District of Columbia shall. in addition to those

‘routes already under construction. construct #1! routes on

the Interstate System within the Distriet of Columbia a=

set forth in the document entitled “1968 Estimate of the

Cost of Completion of the National System Of Interstate

and Defense Highways in the District of Columbia” suls-

mitted to Congress by the Secretary of *Tran%portation

with, and as a part of, ~The 1968 Interstate System Cost

Estimate™ “printed -as House Document Numbered -199.

Ninetieth Congress. Stich construction shall be undertaken

as soon as possible after the date of enactment of this Act.

except as otherwise provided in this section. and shall Le

carried out in accordange with all applicable provisions Df

title 25 of the I ‘nited States Code. :

(b) Not later than 30 days after the date of enactromyt

‘of this section the government -of the District of -Colum-

- bia shell commence work on the following projects:

(1) Three Sisters Bridge. 1-266 (Section. [1 te Hz)

(2) Potomac River Freeway, 1-266 (Section Bz te

. Ba). <s . |

(3)° Center Leg of the Inner Loop. T-95 (Section

> AG to C4). terminating at New York A veane.

(4) East Lég of the Inner Loop. 1-295 (Section C1

to C4). terminating at Bladensburg Road.

(¢) The gavernment of the District of Columbia and the

Secretary of Trarsportation shall study those projects on

the Interstate System set forth m “The 1968 Interstate

- . . i ww

the Three Sisters Bridge, net.as a single project but

as part of the Ibrord highway improvement programa

forthe AW ashington Metropolitan area. And Congress

and these who dpeak for it have a continuing interest

in seeing that, the expresséd* will of Congress, as

clearly enuneiated ma statute: signed by the President,

be earried out. .

Moreover, Congress has also dec lared that the rela-

tionship of the highway improvement program in any

statezor the District of Columbia, be coordinated w ith

plans for improvements in other affected forms of

transportation (this would include subways), which

are formulated with due consideration to their public

effect on the future development of large. urban areas.

In this respect Title 23, 9 154, prov, ides as follows: ay

$134. T ransporti ition planning i in certain urh: ay

areas . ‘i

It is declarcd to be tn the national interest

. to eneotrage and promote the development of

transportation systems, embracing various

modes of transport in a manner that will serve

the States and local communitics efficiently and

effectively, To saccomplish this objective the

Secretary. shall cooperate with the States, as

authorized in’ this title, in the development of

long-range highway plans and programs which

are properly coordinated with plans for tin-

System Cost Estimate”. Tlouse Document Niimbered 199.

Ninetieth Congress. within the District, of Columbia which

are not specified in subsection (bh) und shall report to Con-

gress not later than 1s months after the date of enactment

of this section their recommendations with: respect te such

projects inchiding any recommended ‘alternative rontes or

plans. and if no such recommendations are submitted...

within such 18-month period then the Sccretaty of Trans-

‘portation and the government of the Distriet of Columbia

shall cousiruct such routes. as soon as possible thereafter. as

required by subsection Ga} of thris section, (S2 Stat. S27 8)

a7a

provements ti other affected forms. of transpor-

fetion and which are-formulated with due con--

sideration to their probable effect onthe future

developemnt of urban areas of more than fifty

thousand population, After. July 1, 1965, the

Secretary shall net approve under section: 105

of this title any program for projects in any

urban area of more than fifty thousand .popu-

lation tmless he finds that such projects are

based on a continuing com prehcusive transpor-

te ition planning process carried on cooperatively

hy States and local communities 7x conformance

with the objectives stated in this section. Added

Pub. L. 87-866, 8 9(a), Oct. 23, 1962, 76 Stat.

1148. (Emphasis added). |

Thos, this vongressional mandate ayplies to beth the

subivay and to the highway program for the W ashings

ton Met repolitan area with whieh we are*here con-

cerned. To the extent that it provides that the Secre-

tary. shall jot approve highway projects i in large urban

areas vinless:he finds such projects are based ona con-

tinting compeehcousive (.c., vail and highways) trans-

portation planning process in conformance with the

adjectives stated in Section 134, it is essential that the

Secretary of Transportation in approving highway

pkins be concermed with the program to build subways

in the district of Columbi: a. Endeed it would be impos-

sible and contrary to law for any Secretary of Trans-

portation to pass on any majer highway project in

the Pestriet o€ Columbia: without being familiar with

and eomsidering its effect gd relationship to the suke-

Way construction program. Pho carryving out this statue -

tory duty the Seeretary nmst. determine, in this ease

with respect ta the Disttiet of Columbia, that the

proposed subway and En vay plans will comhene to

produce “medes of tran ee Moin a manner that

will serve the Statesa vy on “al communities here the

jSa

Washington Mefropolitan Area] efficiently and effee-

tively.” It is obvious, if the subway program were to

proceed without the necessary highway construction,

that the modes of trarisportation being built would not -

_ be efficient or éffective. To this extent some joint cen-

sideration of subway and highway construction (in-

cluding the Three Sisters Bridge) was a relevant mat-

ter and I do not find that the Secretary exceeded his

‘authority by giving such matters more weight or eon-

sideration than was required by the statute.

Tn its discussion of **prudent alternatives” the mia-

jority opinion really attempts to define the problem

as being one to-determine whether a unique problem

of extraordinary, magnitude w was posed by the poten-

tial loss of appropr ‘iations, . for the District subway.

This is completely foreign to what section’ 138 is all -

about and does nothing more than indicate a preoecu-

pation with the position of Congress. Actually when

section 138 speaks, of prudent alternatives it refers to

alternatives to the use of parkland for the erection of

the bridge at .one location or another. The majority.

generally ignore the facet that the topographical fea-

tures of: the river with the ‘high, steep banks of the

Potomac Gorge, when coupled with the existing high-

ways and parklands on ,both sidés of the river, would

cause the l6eation of any other bridgé that would meet

the traffic congestion problem to affect existing park-.

lands in a substantially similar manner te the Three

Sisters project. The case is unique in those respects.

It is obvious that the viable alternatives would affect

parklands substantially to ‘the same extent.

The majority also ignore the fact that the so-called

parklands involved on the Virginia side ef the river

are all-in the George Washington Memorial Parkeay.

Highways have always been an important part ef this

highway park. The-Geerge Washington Memorial

eo az. mic inp RO MR Rat tn at aaa 3 + RAR AA ae oe ome ee DRS Aa

o9a oe

’arkway was established by Congress (46 Stat. $82

et seq.) as a narrow elongated parkway along beth °

banks of the Potomac River from Mt. Vernon and_

Fort Washington to the Great Falls of ‘the Potomac.

It parallels the Potomac River. from Mt: Vernon toa

point above the Great Falls on the Virginia side, ex-

cept for the City of Alexandria, arid from Fort Wash- |

_-ington (in-Marvland across from Mt. Vernon) toa - s

similar point above the Great Falls on the Maryland

side, except within the District of Columbia. One of

the congressional purposes, iif &stablishing the park-

Way as a memorial was to provide for, the construc-

. tion of extensive highways. within the dedicated area.

The legislation also sought to protect and preserve the

_ natural scenery of the Pitomae Gorge and the Great

Falls of the Potomac, to preserve the historic Patow- .

mack Canal and to acquire that portion of the, Chesa-

peake and Ohio Canal below Point of Rocks (46 Stat.

482-83). .

- The faet that this park has to a subst Kal extent,

_ and. always has had extensive highways within its con-

fines, makes it prac ticalfy impossible for any proposed

bridge in this area to be ‘erected without affecting :

some of its lands. This results from the fact that

-much of. the traffic congestion Which the proposed

bridge seeks to relieve is traffic over the automobile

lighways within the parkway itself.

It is ‘thus submitted that (1) the restrictive adter- :

natives vecasioned by the topography-and Jocation of — +

the parklands, and (2) the nature of the parkland “5

here involved, est thlixhed by congressional Jegislation _

-Witli substantial highways within its confines as one of

its principal purposes, make. the proposed Three Sis.

ters Bridge a nnique problem. It.should also be hoted

that this highway park was est: Wolished by Congre SS

“60a

: and the Congress hgis power bya subsequent wet to

change it. ae

In its peroration to Part ' the majority opinion

attempts t6 disclaia certain obvious implications of its

decision. However, tn so doing, it merely emphasizes

the partial and slanted view it takes of the facts. Thus

It st ates they are not suggesting zany impropriety in

oY Mt.

ae cis of those who “strongly advocate the bridge” ;

eit Wext imply that there is some question as to the

ant arity of such persons to exert pressure on Secre-

tary Volpe Which resulted in placing the Secretary in

such on extremely. treacherous position: and then con-

clude by denying that they are suegesting that Seere-

tary Volpe aeted in bad faith or in deliberate dis- |

regard of his statutory responsibility. Finally, they set |

aside. the Secretary's finding on grounds which -the

Secretary testified wander oath. did not exist arid the

finding of the trial court supported the Secretary's

finding. The result: reached by the majority opinion

thus contradicts its disclaimers. So’ whether. the ma-

johity are implying that the Secretary acted contrary.

to his statutory responsibilities or net. they end up at

exactly the same place as though he had. |

However, all of this buys time for the objectors and

keops alive the hope that a new Sceretary, or a new —

pr ajeet. The majority opinion does not eritieize pres- -

Sure ae the objeétors and it does net fully. state

the history ‘of the priorapprovals and dis: approvats of

the project. Originally the "Pree Sisters Bridge was

designated: as part of the entire metropolitan freéwayv

project: Nothing in this record indicates that this: was

hot a decision on the engineering merits uninflienced

by any’ improper pressures.. However, in the waning

days of an outgoing Presidential Administration, a

lame duck City Catnei) of E Oe. District of Colmmabia‘on

on at aan tN ene <) -

Ola

January 17, 1969, three days before a new adininis-

tration was to take office, deleted the bridge froni- the

Interstate Highway System at the request of the Dis--

trict -government. Tle majority do not question the,

basis of this ae tion, but only-attack the reversal of this:

decision.” It may well be that, they should question

thle bae ‘keround of that decision rather than what ‘may

well have been a rectification of a prior error or im-

proper action. oo eae: ‘

PROCEDURE ON REMAND E

In the conclusory paragraph of its opinion the

Majority suggests that the Scerctaseyablish a “full

scale administrative record which mi@ht dispel any

doubts about the trie basis of his action.”? When mem-

hers oF an appellate panel, for uo reason more sub-

stantial than. their own Innate suspicion, elect to

dishehieve the sworn testimony of asmember: of the

Cabinet th: it his final decision was not influenced by .

‘outside - fae tors, and -also to-¢ircumfent the ‘fae trial.

finding of the trial court to, the same effect. in my

opition, it is net likely that a more extensive adminis-

trative record would cause them to believe him in the

mutiure, A court that has gone to the great extremes

that this court has to reverse the trial court here can

always. find reasons: satisfactory to it for avoiding

practically . any subjective decision required with re-_

speet to the bridge. It may well be that the only hope

to carry out the expressed’ will of Congress lies w ith

‘the Supreme Court. \

To the extent that the majority opinion diffe vs from:

the views hereinbefore set forth, I respectfully dissent |

and PT eoneur in the remi under. 3 ae

‘cdiosioonnenanceall ; \

“Tf the present ieee: were associated with the -dis-

approval of the Three Sisters Bridge projeet in 1969 for rea--

sons tnrelated ‘ta tts merits, it may be that they do’not come ~ | —

into court with-eclean leands. :

“

APPENDIN b

vl “nited States Court of ‘Appeals | for the District of

Cohumbia Cireuit

No. ‘ 24838

- Civil Action 927 C9.

D: on F EDERATION OF. C VIC Assoc TATIONS, . ¥D at...

ce APPELL ANTS

; : ve

Joun x. v OL F, SEC RETARY OF iiaiemiaiien ET AL.

No. 24843

D.C. Feperarion oF Civic Associations, ET Ate

JOHN Ry g\ OLPE, SECRETARY OF TRANSPORT ATION,

: 7 APPELLANT

: Tur: Districy og Cotesia, ET AL. |

Wanrer J. Hickent, SECRETARY OF INTE RIOR, UT AL.

a APPELLANTS \

SE PTEMBER TER M, 1971 - Seen

Appeals: a the United States District. Court Tor,

the District of Colunibia ;

| Before: Bazeton, Chief Judge, F ALLY, Senior Cireuit

| Judge, and Mackinnon, Circuit Judge *

Judgment

These eases came on tor be heard on the record. on

appeal from the United St: ites District Court for the

PMstrict of Columbia, and were argued hy counsel,

On consideration thereof, it is |

a . 2 .

chabianaimndiagls ; \

*Civenit. Judge MaeKinnon dissents. but jin the interests of

‘expediting this miatter consents fe thie immediate release of the

majority opinion .:ind reserves his, right to file a’ dissenting

opinion: .

(62a)

o OS ~

: 63a ae

ORDERED AN cp ADJUDGED by this ee that:

the Jjudgnient ‘of the Distr ict Court appealed from

herein ishereby. affirmed i m part and reversed in part,

ri he cases are hereby remanded to the District ~

ourt Ww ith directions that it return the’ case to the

Secretary of Transportation for hint to act in accord-

ance with the opinion of this Conrt filed herein this

date. Q ”

The District eee is furthe 1 ms ected to enjoih COH-

- struction of the br idge until the Secretary has con-

plicd with the applic able statutory provisions as. set.

forth in the opinion of this Court filed herein this.

“dite.

Po Curiam For the Const:

N ATH AN J. Pav LSON,’

| Cle rk.

Dated: October 12, 1971. ao ca

Opinion by Chief Judge Bazelon. oan,

AP Pr NDIX € j

Unite at States Court. of Appe als for the Distret of

Cohunbia Circuit ee +

No. 24838 ;

D.C. Beperarion oF Civic AsSsocLvPIONS, ET Xi.

‘NEPELLANTE— = +

| lta? | 2

JOHN A. VoLPrs SECRETARY OF TRANSPORTATION, ET AL.

¢ . J, . ~ ‘ ae * . ;

No. 24843 .

D.C. Fepenation oF @ivic’ A bciatioxs, ED AG,

Jarin A. VoLre, SECRETARY, OF ‘TRANSPORTATION,

Sar ° USPPELLANT =o. .

The District or Cone MBIA, ET CAL,

Waren J. Hicker. SECRETARY, OF, IN TPRION, nt at...

APPELLANTS oF, =

September Te rin, 1971

sofores Bazenon, Chief Judge: F ANY, Senior Ci rent 7

; Judge aid Mac KINNOS? C ineuit Judee

: Order. |

Jings it is : e 3 |

ORDERED by the ae that appellees” aforesared'

‘petition is: denied, AE hee :

Por Curiam: | oe , .

~ The members of the Court reserve the right to-tile

a statement, of their views ata later dates +

Circuit Judge Mae inno would evant the petition

for rele aU ne’.

q oa ; ‘ “1 64n) |

MB to ce

* p

i ae

: pa,

Lo AF i :

ZZ of ;

/ 4 a :

se wba 1D

ag. 3 nited Stites Pye

Colitmbia Cirenit. = thy 2, Nae”

ee / No, 24838 |

: Civil Action 2821 69

/ D.C. Pubs RATION or CIVIC ASSOCIATIONS, ET.AL

APPELLANTS |

mt }

° i f |

JOHN A, VoLpe, SECRETARY OF PRANSPOR TATION, ET MA

. ! No, 24843 - oe a one

D.C. Feperation or Crvic’ Associations, ET At.

Ca ix = ; ~

bettas f.

JOHN AL Vorpr, SEGREPARY TR ANSPORT s b1ON,

APPELLANT | Soe

Tie Disrrier or Conn MB TA, “EV AL.

Watrer J. THieken, SECRETARY OF IXvErior, ET Al.

. ' APPELLANTS * 8

Ne pte Mmnber Term, 1971

Before: - 3AZELON, Chief Judge: Wricut, McGowan,

Taam, LEVENTHAL, RoBinson, MacKixnnox, Ropp .

and WiInKEY, Cireuit anges ee a oe

, (: sé | . - Orde; _ € cals

On consideration of appellees’ ‘suggestion foP e-

hearing ex bane and there. not bei ine a najority of

the Judges in. .regular active service in. f; Wor of hav-

Ing’. this Case reheard en bane, it Is

. (5a).

fF Appeals for the District of

. tia

ORDERED hy the Court ca bane that appelfees”

stggvestion for: rehearing cn bane is denied. .

Por Carigm:

Cirenit: Judges havea and Robb did not par-

tie ipate in the consideration or determination of the

‘sStegestion for rehearing en bane, -

Cjrenit Judges Tanm, MacKinnon and Wilker vote :

fw crant rehearing en bane. -

A PPEN DI XE

United States Bistiiet Con?t,

-. District of Cohumbia. sg

August 3, 1970, . Si

DCS Prornanion or Civiw Assoc AMOS, ‘Isc, . ET Abe

: i ry. MINTHPRS,

Joux A. Vourr er u.. |. Derespaxts.

Civ. A. No. 2821-49,

of Ca Op wien.

SIRICA, Dist rict Judae: ti this action several citi-

Zens assoriations and individual citizens and property

owners of the District 6f Cohumbia challenge the pryp-

eedures employed by the District of Colambia and the

Department of Transportation in the planning-and

the commencement of construetion of the Three Six

ters Bridge project.’

‘Io their complaint? the plaintiffe detitied the sope of the

“project™. that they are challenging: to le not only the lnvlge

Atrueture from chore to shore, hat alet “related haghw ays and

highway structures,” The defendants at several jonetures in

the trial argued that the jexne hefore the Court was limited te *

the bridge iteelf from shore to shore. The Cotirt reieet< thix

argument. A reasemalle definition of the, projet challenged

in this cae must include net only the <hore to shore span, but

alse the ‘ramps and interchanges whéeeh will move traffic front

the bridge to other highway« or streets. Both Sewetfry Volpe

(Tr. 736-37) and Federal Highway ‘Administrator Turner (Tr.

‘O7D-76) testified that the ramps aind- spectral nit he ton-

| Silered part of the — project. . 5

Md ‘Gia --

ONa2

The Bridge from thie Spout Run area of Vi irginia to

- the Distriet af Columbia upstream from Key Bridge

ix presently in the preliminary stages of constryction

"as ymat of the Interstate Highway System and is des-

inated as part of rente 1-66, The Interstate High-

Way System Was ereated by the Congress te provide a

plan of federal-state COOPEn: ation in the gonstruction

of highways so as to insure “the prompt and early

eolupletian of the. National Svstem of Interstate and

Mefease Hiehways.°* The statute provides that the

federal ; sovernment shall bear 99° of the total cost of

any interstate project with the state invelved paying |

the rooming 105. The routes-of the system are first

sitoet, “a hy the st; ate invelved (for the purposes of the

Act the District of Columbia is de signated a state), »

subjeet te the appreval of the Scerctiry of Transpor. -

tation.’ But the statute is very clear that'no federal |

pavinent will be made unless the project is designated

as part of the Interstate Svstem with the approv al of:

the Seeretarve “Tithe

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