Udall v. Washington, Virginia and Maryland Coach Co., 21394

• Citation: 398 F.2d 765,130 US App. DC 171
• Decision Date: 12 June 1968
• Docket Number: No. 21394,21395.,21394
• Parties: Stewart L. UDALL, Secretary of the Interior, et al., Appellants, v. WASHINGTON, VIRGINIA AND MARYLAND COACH COMPANY, Inc., Appellee, D. C. Transit System, Inc., Intervenor. UNITED STATES of America, Appellant, v. WASHINGTON, VIRGINIA AND MARYLAND COACH COMPANY, Inc., Appellee, D. C. Transit System, Inc., Washington Metropolitan Area Transit Commission, and Virginia State Corporation Commission, Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

130 US App. DC 171, 398 F.2d 765 (1968)

Stewart L. UDALL, Secretary of the Interior, et al., Appellants, v. WASHINGTON, VIRGINIA AND MARYLAND COACH COMPANY, Inc., Appellee, D. C. Transit System, Inc., Intervenor.

UNITED STATES of America, Appellant, v. WASHINGTON, VIRGINIA AND MARYLAND COACH COMPANY, Inc., Appellee, D. C. Transit System, Inc., Washington Metropolitan Area Transit Commission, and Virginia State Corporation Commission, Intervenors.

Nos. 21394, 21395.

United States Court of Appeals District of Columbia Circuit.

Argued May 15, 1968.

Decided June 12, 1968.

Petitions for Rehearing Denied August 5, 1968.

Mr. A. Donald Mileur, Atty., Department of Justice, with whom Asst. Atty. Gen. Clyde O. Martz, Acting Asst. Atty. Gen. Harold S. Harrison, and Messrs. Roger P. Marquis and Thos. L. McKevitt, Attys., Department of Justice, were on the brief, for appellants. Mr. J. Edward Williams, Atty., Department of Justice, also entered an appearance for appellants.

Mr. Manuel J. Davis, Washington, D. C., for appellee and for intervenor D. C. Transit System, Inc.

Mr. Russell W. Cunningham, Arlington, Va., with whom Mr. Renn C. Fowler, Washington, D. C., was on the brief, for intervenors Washington Metropolitan Area Transit Commission and Virginia State Corporation Commission.

Messrs. Wilmer S. Schantz, Jr. and Samuel M. Langerman, Washington, D. C., were on the brief for intervenor D. C. Transit System, Inc.

Before PRETTYMAN, Senior Circuit Judge, and WRIGHT and TAMM, Circuit Judges.

Petitions for Rehearing En Banc August 5, 1968.

J. SKELLY WRIGHT, Circuit Judge:

The facts of this appeal can be quickly stated. The United States owns and controls a strip of land which runs along the Potomac River on the Virginia side. Located on this strip is a multi-lane highway, known as the George Washington Memorial Parkway, which stretches from Mount Vernon at its southern end through the city of Alexandria, north through Arlington and Fairfax Counties, past Memorial and Key Bridges, to its northern end at the intersection of the Capital Beltway, Route 495. The Parkway is administered by the National Park Service of the Department of the Interior, whose Secretary has been charged by Congress to "make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service * *."¹

Pursuant to this authority the Secretary has issued a series of regulations relating to the operation of commercial vehicles and common carriers on the George Washington Memorial Parkway. The regulations relevant to this appeal provide that passenger carrying vehicles for hire or compensation, other than licensed taxicabs and airport transport vehicles carrying fewer than 14 passengers, are permitted to use the Parkway only with a permit from the Regional Director of the Park Service and only under certain conditions. In essence, permits are granted for unlimited commercial bus service south of Memorial Bridge and, because of the condition of the road surface, no bus service is permitted from Memorial Bridge north to Key Bridge. North of Key Bridge sightseeing buses are allowed pursuant to a permit, as are buses operating nonstop to and from Dulles International and National Airports. But the Secretary's regulations forbid regular commuter bus service over the northern sector of the Parkway except for "direct nonstop passenger service from Key Bridge to a terminus at the Central Intelligence Agency Building at Langley, Virginia, and direct return, and (c) to provide limited direct nonstop passenger service from the interchange at Route 123 to a terminus at the Central Intelligence Agency Building at Langley, Virginia, and direct return."²

In 1961 Washington, Virginia and Maryland Coach Company, the appellee, obtained a permit from the Park Service to run its buses on the northern sector of the Parkway in a manner consistent with the Secretary's regulations. Then, apparently in 1962, it came to the attention of the Park Service that WV&M was not obeying the regulations in that, after making their runs to the CIA Building, its buses were continuing on into northern Virginia, collecting and discharging passengers, and then returning to the Parkway for the return trip south. This procedure violated its permit, which authorized only nonstop trips to the CIA Building and direct return.

After negotiation with WV&M, its permit was reissued with this requirement of direct return made even more explicit. Nevertheless, WV&M has consistently denied the validity of the regulations and has continued to violate their terms. Consequently the United States brought suit to restrain WV&M from continuing its unauthorized operation of a suburban commuter bus service on the Parkway between Key Bridge and the CIA Building. D. C. Transit System, Inc., the parent corporation of WV&M, and the Washington Metropolitan Area Transit Commission³ intervened as defendants. In answer to the suit, WV&M denied the validity of the regulations and counterclaimed for a return of fees paid to the Park Service. In a separate action in which D. C. Transit and WMATC joined as plaintiffs, it sued the Secretary of the Interior to challenge the validity of his regulations.

After the consolidation and trial of these cases the District Court ruled that WV&M was not entitled to refund of the $2,284 in fees which it had paid up to the time of trial to use the Parkway. It also denied the claim of the United States for injunctive and declaratory relief, ruling that the Secretary's regulations were "unreasonable, arbitrary, capricious, discriminatory, and therefore invalid, insofar as they do not permit sub-urban commuter buses owned by W. V. & M. * * * to operate without limitation on the Parkway above the Key Bridge * * *." 268 F.Supp. at 51. We affirm this decision with respect to the validity of the fees exacted, but reverse the denial of injunctive and declaratory relief.

In essence the trial judge felt that the regulations were discriminatory and invalid for two reasons: first, because they unreasonably allow unlimited bus service south of Memorial Bridge while limiting such service north of the Bridge⁴; and second, because they allow sightseeing, airport and CIA Building buses north of Key Bridge while prohibiting general commuter service on this section of the Parkway.

The Secretary explained his reasons for the regulations in an affidavit in support of the United States' motion for summary judgment. He felt that the use of the Parkway by "ever increasing numbers of commuter busses with their great bulk, trucklike characteristics, and odors, as is contemplated by the Washington, Virginia & Maryland Coach Company, would, in my opinion, physically damage the scenic value of the Parkway."

The trial judge, however, concluded that the Secretary's regulations were not reasonably related to his goal of preserving the scenic value of the Parkway. For he felt that the southern sector of the Parkway was more scenic than the northern sector⁵ and consequently to allow unlimited traffic on the southern sector, while prohibiting it to the north, was unreasonable. He felt also that, because the CIA Building, airport and sightseeing buses were physically identical with the WV&M buses, to bar the latter on the northern sector of the Parkway, while permitting the former, was unreasonably discriminatory. He emphasized that he could not "understand how 52 daily suburban commuter buses operated by W. V. & M. could be aesthetically objectionable when approximately 200 airport and C.I.A. commuter buses * * * are not aesthetically objectionable." 268 F.Supp. at 44.

The Secretary, however, did not find that only WV&M buses were unsightly. In his affidavit he "reluctantly" concluded, "after weighing the interest of the public in retaining the present natural beauty of the Parkway and its environs⁶ as against the compelling necessity to provide CIA employees swift and immediate access to their Agency," that direct commercial transportation to the CIA Building should be permitted on the Parkway. Similar considerations prompted his decision with regard to the use of the Parkway for access to Dulles International Airport.

A rationale for the...