# Petition for Writ of Certiorari — John A. Volpe v. D. C. Federation of Civic Associations > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0511%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 1030 ## Text | ae a ‘ic: . : pre 4 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) y 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 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 4 : : = 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 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 we 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 4 "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. . 2? : | = 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 oO $8 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”. 9 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 = 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 20 _ 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. o APPENDIX A +. United States Court of Appeals for the ‘District of . Columbia Circuit o 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) — ‘ ¥ > eo 2A ate 2a 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 a 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). ° ~ © 7d. at 769. Ct ae ‘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 a wo ° =) 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 A . od ‘ = : . ‘ 3 : . *. ¢ , > PY . ' : ; ‘ ° ' ba 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. 2 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 © particnlar case or the c¢ost. or. ‘community dis- 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 -* 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 t 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 .0 ~ 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 a *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 . s ‘ 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 e 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. *- a eg 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 .: 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. 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“) 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). ¢ . ae a ‘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 hi 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. os 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 — — - Ae 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., 7 - 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 e 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 ‘ a « 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 i 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 © that some other feasible plan would cause less harm. 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 é 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. av 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 . aa 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- way project wetssunder way hevond recall.” © Repre- 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 ‘ - % ” pc 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 we 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-- 4 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 e 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 4a 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). 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 s - . . 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 wu 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 — Corneil will succumb to pressure and, (isapprove the © 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 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 NP La POG AR ENS ie RC j thal - _? ‘la ‘end, Congressman Natcher threatened to de lete the appropriations for the planned metropolitan ared rapid transit. system from the District of Columbia budget unless construction and/or plitning was cori meneed in-complianee with (23 of the 1968 Act. The District of Columbia government, on the-other hand, ‘was determined that noe freeway be constructed in the city other thaw in accordane with the NCPC éom- prehensive plan. Seon after entering office, the new Secretary of Transportation, Mr. Volpe, undertook tc: try te re solve the impasse. wes On Angust 9, 1969, the District of Columbia City Couiteil Vielded to meunting pressure from Congress and voted to comply withthe 1968 Act. which in-. cluded going forward with the construction -of the Three Sisters Bridge. Secretary Volpe, on Au-- list 12, 1969, issiedga press release’ to the effeet that he was ‘directing the Federal Highway Administrator tu rescind the prior deletion ef the bridge from the Interstate System. On August 15, 1989, the. project was redesignated as part of the Interstate System hy the Federal Highway Administrator. Ty September, 1969, the District of Columbia advertised for bids for the constrr ction of the piers for the bridge, awarded a.coutract, and work on the project was commenced.’ Also in Septembes, 1969, Congressman Natcher agreed fo the release of the, rapid transit approp tations, This snit was filed on October. 3, 1969. The. plain-. tiffs sought a preliminary injinetion against any fur- . ther work on the project until the Distritt of Colum- hia government and the De ‘partment of Transportation * had complied with the previsions of Title 23 of the United States Code. Title 7 6f the District of Colum- hia Code, and various ether statutes. After a-hearing. this Conrt denied the request for a preliminary in- junction. An appeal was taken, but, by an order dated - . é a8 October ‘BL, 1969, the ‘Court of Appeals denied oe — relief without prejudice and remanded the “ase to this. Comé for an expedited hearing oti thie = cle Cross-motions for summary | judgement were 9 filed, and this Court on January 12, 1970, after a hear ing, granted the motions of the federal arid District of Columbia defendants.” This Court interpreted 6 25 of the 1968 Act asa directive from Congress that the’ enumerated projects should go forward as soon as possible without the need to comply with the normal planning and procedural prerequisites for Tite estate Highway projects. : The Court of Appeals, in an opinion dated Aprit 6,. 1970, reversed this rulme.” The panel majerity dis- agreed with this Court's statutory inter pre tation. They. held that it was not the intent of Congress to exempt the bridge and the other projects eninmerated in the 1968 Act from the hearing and planning requirements of Tithe 23 of the United States Code. Their decisten Was based on the language of the L96S Act that “con- struction * * * be carried out ‘in accardanee with all applicable provisions of Tithe 23 of the United States Code™ and their interpretation of the. legislative lis- tory ‘as Indicating that “construction” includes the planning phases of the projects, bia’ holding of the Court is stated snee Inetly : We hold that Section 23. requines that beth the planning and the building of the Three Sis- ters Bridge camply with afl applicable. provi sions of Title 23. Since the District Court rujed otherwise, we remand the case to the District.” Court for an expedited evidentiary heatiha to * ‘D.C. Federation oft Civie Associations. Tne. ve Vole. No. ISTO (B.C .Cir.. 1970). : . srg D.C. Federation of Civie Associations: Tne. v4 oie Fed - (DCCir. April 6. 1970) .-MaceKintién.. J... dis enfing). — , : s ” « ° ~ - . f . . Re . * ; . %. - * ee The t testimony of q cabinet officer was necessary in this c Hse #8 een ofthe somewhat unique citcimstances surrounding the approval of the Three Sisters Bridge project by the Department 6f Trfisportation. The Secretary was personally invelyed in the aittiempts to‘solve the rapid transit-freeway Hnpasse which pre- . ceded the August, 1968 approval Of the project. Several of the " ‘deeisions required by Title 23 were made personally by the See- ‘ retary for this project. Since some of these decisions were. nt: committed to writing at the -tine they were made, it was only “4 by allowing the questioniny of thie Secretary himself that the ‘ Court could, ascertain whether the decisions were In fact tarde ‘and what constituted the basis for the decisions. ! The Court is aware that the Siipreme Court in United States. Y v. Morgan, 313 U.S. 409, 422. 61 °S.C't. go, So L.Ed. 14z0 (1T). prohibited the probing of the mental process of — soe ‘ministr ative decision maker to deterniine dis reasoning in reaet ing a decision. ‘The interrozatio& of Sec retary Volpe here was limited to the actions which he took, ean. the naaterials which he considered as the basis for has deternsinution, rate! er tian his mental process in considering. the ‘seomaterials, The’ d/ ‘ holding. spre. bas been “narrowly construed’ to Lye it such = questioning. Née Virgo Corp. ve Paiewonsky, 39 “ERD. 9 (D.VLE1966) : Union’ Savings Bank v. Saxon. 209 F. Supp. 31 (D.EACLI962) 2 ef. Sinver Sewing Machine Co. vv NLRB. ove Fvd 200 (ith Cir 1964). : yd In: retrospect. the Court fecls that its ‘decision te requir th e Secretary to testify wis a wise one, Mr. Volpe testified far over five hours concerning his rele in the approval of the Three Sisters Bridge ‘and the relation between the apores al of. tlie’ ‘ "project end the restoration of the repid transit Lpproprigtions. The Secretary nupressed the-Court as a sincere. and dedicated * 74a trator Turner, and District.of Columbia Highway De- partinent Director Airis. Relying on the Court of. Appeals decision; this Court limited. the scope of the remand heari Ing {to. the question of compliance with the hed 3 applicable provisions. of Title 23," and did not con- sider the alleged? noncompliance with other statutory provisions raised i in the complaint.” Xo preliniin ry question is the scope of thts. Court’ 5 power, of review of the agtions of the District of Coltunbia and fede rabotticials which are challenged’ in this action, As a’ edneral ride, a-prestimption of regu- larity attaches to the actions of public officials taken within the scope. of them authority. U nited States v. Chemien Poundation, Ine:.. 272 US. 1, 47 8.2.1, L.Ed. 13 (1926). When a statute authorizes an = heinistrative offic ial to make cer [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0511%3A1. Public record. Not legal advice.