459 F.2d 1231 (D.C. Cir. 1971), 24838, D.C. Federation of Civic Associations v. Volpe

Docket Nº:24838, 24843.
Citation:459 F.2d 1231
Party Name:D. C. FEDERATION OF CIVIC ASSOCIATIONS et al., Appellants v. John A. VOLPE, Secretary of Transportation, et al. D. C. FEDERATION OF CIVIC ASSOCIATIONS et al. v. John A. VOLPE, Secretary of Transportation, Appellant The District of Columbia, et al., Walter J. Hickel, Secretary of Interior, et al., Appellants.
Case Date:October 12, 1971
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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459 F.2d 1231 (D.C. Cir. 1971)

D. C. FEDERATION OF CIVIC ASSOCIATIONS et al., Appellants

v.

John A. VOLPE, Secretary of Transportation, et al.

D. C. FEDERATION OF CIVIC ASSOCIATIONS et al.

v.

John A. VOLPE, Secretary of Transportation, Appellant

The District of Columbia, et al., Walter J. Hickel, Secretary of Interior, et al., Appellants.

Nos. 24838, 24843.

United States Court of Appeals, District of Columbia Circuit.

October 12, 1971

Argued July 22, 1971.

Dissenting Opinion Filed Nov. 4, 1971.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Supplemental Opinion

On Denial of Rehearing

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Messrs. Roberts B. Owen and Gerald P. Norton, Washington, D. C., for appellants in No. 24,838 and appellees in No. 24,843.

Mr. Thomas L. McKevitt, Atty., Department of Justice, with whom Asst. Atty. Gen. Shiro Kashiwa, Messrs. Thomas A. Flannery, U. S. Atty., Joseph M. Hannon, Asst. U. S. Atty., and Edmund B. Clark, Atty., Department of Justice, were on the brief, for federal appellees in No. 24,838 and federal appellants in No. 24,843.

Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. C. Francis Murphy, Corporation Counsel, and Richard W. Barton, Assistant Corporation Counsel, were on the brief, for D. C. appellees in No. 24,838 and D. C. appellants in No. 24,843.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and MacKINNON, Circuit Judge.

BAZELON, Chief Judge:

This appeal injects us back into the midst of a long and sometimes acrimonious imbroglio over the proposed construction of a bridge across the Potomac River from Virginia into the District of Columbia. In an earlier appeal we held that the so-called Three Sisters Bridge could not be built except in compliance with the hearing, environmental protection, safety, and other provisions of federal law applicable to the construction of federally-assisted highway projects. 1 That question, accordingly, is no longer open. We must now decide whether the Department 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 concluded that the Department had failed to comply with some of the provisions. 2 We affirm that part of the District Court's judgment. As to the provisions with which the District 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 appropriate determinations as required by the statute.

The factual background of this dispute has been described in detail in our earlier opinion 3 and in the opinion of the District Court. 4 Briefly stated, the

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controversy 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 with federal funds, would traverse the Three Sisters Islands, would "affect the Georgetown Historic District," 5 and would use some parkland. The precise amount of harm to parkland and historic sites has not yet been determined, however, since the planning of the bridge -including the approaches and access roads-is not yet finalized. 6 A source of continuous controversy since its conception, the proposed bridge was deleted from the Interstate Highway System in January, 1969, when the National Capital Planning Commission, the official planning body for the District, adopted "a comprehensive transportation plan which did not include the Three Sisters Bridge." 7 The bridge was redesignated part of the Interstate System six months later after Representative Natcher, Chairman of the Subcommittee on the District of Columbia of the House Appropriations Committee, indicated unmistakably that money for construction of the District's subway system would be withheld if the bridge plan were not revived. 8 To satisfy the Chairman, it was necessary, first, for the District of Columbia City Council to reverse its earlier position, 9 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 exerted by Representative Natcher. 10 The second prerequisite of redesignation was a decision by Transportation Secretary Volpe that the project should go ahead as part of the Interstate System. He announced that decision on August 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 notwithstanding a 1968 Act directing that construction of the bridge begin not later than thirty days after the Act's passage. 11 We remanded the case to the trial court for an evidentiary hearing to determine whether the Secretary had complied with the pertinent provisions in concluding that the project should be revived. The case is before us on appeal and cross-appeal from the trial court's decision.

I.

Given our earlier decision, the Secretary's approval of the bridge must be predicated on compliance with a number of statutory provisions. Plaintiffs 12 challenged 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 unrelated to the merits of the questions presented. They allege-and argue, moreover, that the District Court specifically found-that pressures exerted by Representative Natcher contributed to the decision to approve the bridge. Second, they argue that quite apart from the allegations of pressure, the record and applicable legal principles do not support a finding of compliance. The two strands of argument are plainly related, in plaintiffs' view, since the alleged shortcomings under

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each statutory provision illustrate and lend substance to the argument that the rational, impartial evaluation of the project envisioned by the statute was impermissibly distorted by extraneous pressures. We consider first plaintiffs' argument that the determinations could not stand even if there were no issue of extraneous pressure.

A. Requirements of § 138

If a proposed federally-assisted highway project would encroach on parkland or historic sites, the Secretary of Transportation must determine before construction can begin that there is "no feasible and prudent alternative to the use of such land," and, assuming such a finding, that the "program includes all possible planning to minimize harm to such park * * * or historic site." [12a] The District Court concluded that Secretary Volpe had complied with each of these requirements.

In defending the Secretary's action, the government can hardly maintain that there was no "feasible" alternative to construction of the Three Sisters Bridge. This exemption applies, as the Supreme Court indicated in Citizens to Preserve Overton Park, Inc. v. Volpe, only if the Secretary finds that "as a matter of sound engineering it would not be feasible to build the highway along any other route." 13 It could still be argued, however, that the Secretary rejected each of the feasible alternatives because none of them was "prudent." In construing this second exemption, the Supreme Court pointed out that

the very existence of the statute indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems. 14

Our review of the Secretary's determination is hindered not only by the lack of any formal findings, but also by the absence of a "meaningful administrative record within the Department of Transportation evidencing the fact that proper consideration has been given to the requirements of this section." 15 However regrettable, the failure to provide explicit findings indicating why all possible alternatives to the bridge would be unfeasible or imprudent does not, in itself, invalidate the Secretary's action. 16 But the complete non-existence of any contemporaneous administrative record is more serious. Absent a record, judicial review of the Secretary's action can be little more than a formality 17 unless the District Court takes the disfavored step of requiring the Secretary to testify as to the basis of his decision. 18 And even the Secretary's " post hoc rationalizations," 19 filtered through a factfinder's

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understandable reluctance to disbelieve the testimony of a Cabinet officer, will rarely provide an effective basis for review. Furthermore, it is hard to see how, without the aid of any record, the Secretary could satisfactorily make the determinations required by statute. The absence of a record, in other words, simultaneously obfuscates the process of review and signals sharply the need for careful scrutiny.

Secretary Volpe's testimony before the District Court did little to allay the doubts generated by the lack of an administrative record. Indeed, his testimony-on occasion uncertain and inconsistent with the testimony of others 20 -itself gives rise to at least a serious question whether he considered all possible...

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