401 U.S. 402 (1971), 1066, Citizens to Preserve Overton Park v. Volpe

Docket Nº:No. 1066
Citation:401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136
Party Name:Citizens to Preserve Overton Park v. Volpe
Case Date:March 02, 1971
Court:United States Supreme Court
 
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401 U.S. 402 (1971)

91 S.Ct. 814, 28 L.Ed.2d 136

Citizens to Preserve Overton Park

v.

Volpe

No. 1066

United States Supreme Court

March 2, 1971

        Argued January 11, 1971

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS

        FOR THE SIXTH CIRCUIT

        Syllabus

        Under § 4(f) of the Department of Transportation Act of 1966 and § 138 of the Federal-Aid Highway Act of 1968, the Secretary of Transportation may not authorize use of federal funds to finance construction of highways through public parks if a "feasible and prudent" alternative route exists. If no such route is available, he may approve construction only if there has been "all possible planning to minimize harm" to the park. Petitioners contend that the Secretary has violated these statutes by authorizing a six-lane interstate highway through a Memphis public park. In April, 1968, the Secretary announced that he agreed with the local officials that the highway go through the park; in September, 1969, the State acquired the right-of-way inside the park; and in November, 1969, the Secretary announced final approval, including the design, of the road. Neither announcement of the Secretary was accompanied by factual findings. Respondents introduced affidavits in the District Court, indicating that the Secretary had made the decision and that it was supportable. Petitioners filed counter affidavits and sought to take the deposition of a former federal highway administrator. The District Court and the Court of Appeals found that formal findings were not required, and refused to order the deposition of the former administrator. Both courts held that the affidavits afforded no basis for determining that the Secretary exceeded his authority.

        Held:

        1. The Secretary's action is subject to judicial review pursuant to § 701 of the Administrative Procedure Act. Pp. 413.

       [91 S.Ct. 817] (a) There is no indication here that Congress sought to limit or prohibit judicial review. P. 410.

        (b) The exemption for action "committed to agency discretion" does not apply, as the Secretary does have "law to apply," rather than wide-ranging discretion. Pp. 410-413.

        2. Although, under § 706 of the Act, de novo review is not required here, and the Secretary's approval of the route need not

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meet the substantial evidence test, the reviewing court must conduct a substantial inquiry and determine whether the Secretary acted within the scope of his authority, whether his decision was within the small range of available choices, and whether he could have reasonably believed that there were no feasible alternatives. The court must find that the actual choice was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and that the Secretary followed the necessary procedural requirements. Pp. 413-416.

        3. Formal findings by the Secretary are not required in this case. Pp. 417-419.

        (a) The relevant statutes do not require formal findings, and there is no ambiguity in the Secretary's action. P. 417.

        (b) Although a regulation requiring formal findings was issued after the Secretary had approved the route, a remand to him is not necessary, as there is an administrative record facilitating full and prompt review of the Secretary's action. Pp. 417-419.

        4. The case is remanded to the District Court for plenary review of the Secretary's decision. Pp. 419-420.

        (a) The lower courts' review was based on litigation affidavits, which are not the whole record, and are an inadequate basis for review. P. 419.

        (b) In view of the lack of formal findings, the court may require the administrative officials who participated in the decision to give testimony explaining their action or require the Secretary to make formal findings. P. 420.

        432 F.2d 1307, reversed and remanded.

        MARSHALL, J., wrote the opinion of the Court, in which BURGER, C.J., and HARLAN, STEWART, WHITE, and BLACKMUN, JJ., joined. BLACK, J., filed a separate opinion, in which BRENNAN, J., joined, post, p. 421. BLACKMUN, J., filed a separate statement, post, p. 422. DOUGLAS, J., took no part in the consideration or decision of this case.

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        MARSHALL, J., lead opinion

        Opinion of the Court by MR. JUSTICE MARSHALL, announced by MR. JUSTICE STEWART.

        The growing public concern about the quality of our natural environment has prompted Congress in recent years to enact legislation1 designed to curb the accelerating destruction of our country's natural beauty. We are concerned in this case with § 4(f) of the Department of Transportation Act of 1966, as amended,2 and § 18(a) of

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the Federal-Aid [91 S.Ct. 818] Highway Act of 1968, 82 Stat. 823, 23 U.S.C. § 138 (1964 ed., Supp. V) (hereafter § 138).3 These statutes prohibit the Secretary of Transportation from authorizing the use of federal funds to finance the construction of highways through public parks if a "feasible and prudent"4 alternative route exists. If no such route is available, the statutes allow him to approve construction through parks only if there has been "all possible planning to minimize harm"5 to the park.

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        Petitioners, private citizens as well as local and national conservation organizations, contend that the Secretary has violated these statutes by authorizing the expenditure of federal funds6 for the construction of a six-lane interstate highway through a public park in Memphis, Tennessee. Their claim was rejected by the District Court,7 which granted the Secretary's motion for summary judgment, and the Court of Appeals for the Sixth Circuit affirmed.8 After oral argument, this Court granted a stay that halted construction and, treating the application for the stay as a petition for certiorari, granted review.9 400 U.S. 939. We now reverse the judgment below and remand for further proceedings in the District Court.

       Overton Park is a 342-acre city park located near the center of Memphis. The park contains a zoo, a nine-hole municipal golf course, an outdoor theater, nature trails, a bridle path, an art academy, picnic areas, and 170 acres of forest. The proposed highway, which is to be a six-lane, high-speed, expressway,10 will sever the zoo from the rest of the park. Although the roadway will be depressed below ground level except where it crosses a small creek, 26 acres of the park will be destroyed. The highway is to be a segment [91 S.Ct. 819] of Interstate Highway I-40, part of the National System of Interstate and

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Defense Highways.11 I-40 will provide Memphis with a major east-west expressway which will allow easier access to downtown Memphis from the residential areas on the eastern edge of the city.12

        Although the route through the park was approved by the Bureau of Public Roads in 195613 and by the Federal Highway Administrator in 1966, the enactment of § 4(f) of the Department of Transportation Act prevented distribution of federal funds for the section of the highway designated to go through Overton Park until the Secretary of Transportation determined whether the requirements of § 4(f) had been met. Federal funding for the rest of the project was, however, available; and the state acquired a right-of-way on both sides of the park.14 In April, 1968, the Secretary announced that he concurred in the judgment of local officials that I-40 should be built through the park. And in September, 1969, the State acquired the right-of-way inside Overton Park from the city.15 Final approval for the project -- the route as well as the design -- was not announced until November, 1969, after Congress had reiterated in § 138 of the Federal-Aid Highway Act

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that highway construction through public parks was to be restricted. Neither announcement approving the route and design of I-40 was accompanied by a statement of the Secretary's factual findings. He did not indicate why he believed there were no feasible and prudent alternative routes, or why design changes could not be made to reduce the harm to the park.

        Petitioners contend that the Secretary's action is invalid without such formal findings,16 and that the Secretary did not make an independent determination, but merely relied on the judgment of the Memphis City Council.17 They also contend that it would be "feasible and prudent" to route I-40 around Overton Park either to the north or to the south. And they argue that, if these alternative routes are not "feasible and prudent," the present plan does not include "all possible" methods for reducing harm to the park. Petitioners claim that I-40 could be built under the park by using either of two possible tunneling methods,18 and they claim that, at a

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minimum, by using advanced drainage techniques,19 the expressway could be depressed below ground level along the entire route through the park, including the section that crosses the small creek.

        Respondents argue that it was unnecessary for the Secretary to make formal findings, and that he did, in fact, exercise his own independent judgment, which was supported by the facts. In the District Court, respondents introduced affidavits, prepared specifically for this litigation, which indicated that the Secretary had made the decision and that the decision was supportable. These affidavits were contradicted by affidavits introduced by petitioners, who also sought to take the deposition of a former Federal Highway Administrator20 who had participated in the decision to route I-40 through Overton Park.

        The District Court and the Court of Appeals found that formal findings by the Secretary were not necessary, and refused to order the deposition of the former Federal Highway Administrator because those courts believed that probing of the mental processes of an administrative decisionmaker...

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