Citizens to Preserve Overton Park, Inc. v. Volpe, 20344

• Citation: 432 F.2d 1307
• Decision Date: 07 December 1970
• Docket Number: No. 20344,20345.,20344
• Parties: CITIZENS TO PRESERVE OVERTON PARK, INC., William W. Deupree, Sr., Sunshine K. Snyder, Sierra Club, and National Audubon Society, Inc., Plaintiffs-Appellants, v. John A. VOLPE, Secretary Department of Transportation, and Charles W. Speight, Commissioner Tennessee Department of Highways, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

432 F.2d 1307 (1970)

CITIZENS TO PRESERVE OVERTON PARK, INC., William W. Deupree, Sr., Sunshine K. Snyder, Sierra Club, and National Audubon Society, Inc., Plaintiffs-Appellants, v. John A. VOLPE, Secretary Department of Transportation, and Charles W. Speight, Commissioner Tennessee Department of Highways, Defendants-Appellees.

Nos. 20344, 20345.

United States Court of Appeals, Sixth Circuit.

September 29, 1970.

Rehearing Denied October 30, 1970.

Certiorari Granted December 7, 1970.

COPYRIGHT MATERIAL OMITTED

Charles F. Newman, Memphis, Tenn., for appellants; John W. Vardaman, Jr., Norman Sinel, Wilmer, Cutler & Pickering, Washington, D. C., Charles Forrest Newman, Burch, Porter & Johnson, Memphis, Tenn., on brief.

Thomas F. Turley, Jr., and J. A. Hanover, Memphis, Tenn., for appellees; Thomas F. Turley, Jr., U. S. Atty., David M. Pack, Atty. Gen. of Tenn., Lutron C. Goodpasture, Asst. Atty. Gen., of Tenn., Nashville, Tenn., J. Alan Hanover, Sp. Counsel, Hanover, Walsh, Barnes & Jalenak, Memphis, Tenn., on briefs.

Before WEICK, CELEBREZZE and PECK, Circuit Judges.

Certiorari Granted December 7, 1970. See 91 S.Ct. 246.

WEICK, Circuit Judge.

The present action was brought by plaintiffs, Citizens to Preserve Overton Park (a corporation organized for the purpose its name implies), William W. Deupree, Sr. (a taxpayer), Sunshine K. Snyder (a taxpayer and owner of property affected by the proposed highway route), the Sierra Club (a nonprofit corporation organized for conservation of natural resources), and the Audubon Society, Inc. (also a conservation organization). The defendants are John A. Volpe, Secretary of Transportation, and Charles W. Speight, Commissioner of the Tennessee Department of Highways.¹

The plaintiffs, claiming that Secretary Volpe had not complied with statutory mandates before releasing federal funds for an interstate highway and that administrative procedures had not been substantially followed, sought injunctive relief against Secretary Volpe prohibiting him from releasing federal funds (which represent 90% of the total cost) for the construction of a section of Interstate 40 through Overton Park, a public park in Memphis, Tennessee, and also enjoining Commissioner Speight from proceeding further on the proposed segment of the highway through Overton Park.²

The District Court granted defendants' motion for summary judgment. 309 F.Supp. 1189 (W.D.Tenn.1970). The plaintiffs appealed. We affirm.

Overton Park is a 342 acre, municipally owned park in midtown Memphis used for a zoo, a 9-hole golf course and other recreational purposes. The proposed section of the interstate highway extends in an east and west direction through the Park over the presently existing paved, non-access highway used by diesel buses which is approximately 4,800 feet in length. The existing highway is 40 to 50 feet wide. The proposed interstate will consist of six lanes — three running in each direction, separated by a median strip approximately 40 feet wide. The interstate right-of-way will vary from approximately 250 feet in width to approximately 450 feet in width, and will require the use of approximately 26 acres of the Park. The proposed design requires that a large portion of the highway be depressed sufficiently to remove traffic from the sight of users of the Park, however, five or six feet of fill will be required where a creek runs across the right-of-way. A 1200 foot access ramp will be located within the eastern end of the park.

Because this case is on appeal from a summary judgment, the only question is whether there remains a genuine issue over any material fact in dispute. Appellants argue that there are several material facts which are genuinely disputed. They contend that it is disputed whether the Secretary made the determinations required by law before authorizing the release of federal funds.³ Appellants also argue that administrative procedures were not followed because of failure to include in the notice of a public hearing any provision for the submission of written statements.

When considering a motion for summary judgment a court is required to "construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent's are indulgently treated." Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962). If, after having done that, the court is able to say there is no genuine issue as to any material fact, summary judgment is appropriate.

Although a court must be hesitant to grant summary judgment, cases challenging administrative action are ripe for summary judgment. See, e. g., Todaro v. Pederson, 205 F.Supp. 612, 613 (N.D.Ohio 1961), aff'd 305 F.2d 377 (6th Cir.), cert. denied 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124 (1962). Unlike civil actions originating in the District Court, litigants challenging administrative action are not entitled to a de novo hearing. See, e. g., Dredge Corp. v. Penny, 338 F.2d 456, 462 (9th Cir. 1964). Rather, in such cases the court must determine whether the administrator's decision was arbitrary and capricious. 5 U.S.C. § 706(2) (A).⁴

In addition to the narrow scope of review of administrative action, plaintiffs are faced with the additional burden of overcoming a presumption of regularity afforded the acts of an administrator. See Goldberg v. Truck Drivers Local Union No. 299, 293 F.2d 807, 812 (6th Cir.), cert. denied 368 U.S. 938, 82 S.Ct. 379, 7 L.Ed.2d 337 (1961); Nolan v. Rhodes, 251 F.Supp. 584, 587 (S.D. Ohio 1965), aff'd 383 U.S. 104, 86 S.Ct. 716, 15 L.Ed.2d 616 (1966). The presumption of regularity is a particularly strong one. See, e. g., Braniff Airways, Inc. v. C. A. B., 126 U.S.App.D.C. 399, 379 F.2d 453, 460 (1967). This, of course, does not relieve the party moving for summary judgment from the burden of showing that there remains no dispute concerning any material facts It does, however, affect the type of evidence required to carry his burden. It also makes clear that a party opposing summary judgment must do more than merely assert that the administrator's actions were unlawful. He must be able to show by affidavit, or other evidence, that there is at least a possibility that he will be able to overcome the presumption of regularity. 379 F.2d at 462.

In this case, the threshold question is whether the Secretary made the proper determinations at all, let alone whether those determinations were arbitrary and capricious.

Congress has declared it a national policy to preserve parklands and has forbidden the Secretary to approve a project which affects a park unless he first determines "(1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park * * * result from such use." 49 U.S.C. § 1653(f).⁵

Appellants urge that there is no evidence that the Secretary ever made the necessary two findings before authorizing the release of funds.

There is no requirement in the statute that the Secretary articulate his findings. Nor are we free to impose such a requirement on him. See Braniff Airways, Inc. v. C. A. B., supra at 460.

We are of the opinion that the moving party introduced competent evidence tending to prove that the necessary determinations were made by the Secretary.

An affidavit was submitted on behalf of the Secretary by Edgar H. Swick. Swick was Deputy Director of Public Roads⁶ and therefore could give competent evidence from his personal knowledge concerning the necessary determinations.⁷ Mr. Swick attested that the original decision with respect to the route was made in 1956 by the Bureau of Public Roads. Although the relevant statutes dealing with parklands were not in force in 1956 and, therefore, it is unlikely that the Bureau had specifically in mind the necessary requirements, subsequent determinations were made reaffirming the original decision to route along the bus highway. Mr. Swick attested:

"The location of I-40 along the bus route through Overton park was approved by the Bureau of Public Roads in 1956. All alternate alignments were rejected because of large displacements of persons, hospitals, schools, churches, and commercial establishments. For instance, the route immediately north of the park would have involved the taking of three schools, including Southwestern University and the largest high school in Memphis, plus churches attended by 4,000 people, industries, and the residences of more than 1,500 people. The route south of the park would have involved taking two schools, three churches attended by 7,500 people, 46 commercial establishments, residential units being occupied by over 3,000 persons and a hospital and home for the aged. Incidentally, the construction and right-of-way costs of the least expensive of these alternate routes would exceed the costs of the chosen route by many millions of dollars.

"The 1956 determination that the only feasible and prudent location for the highway was on the present bus route through the park was reaffirmed by Federal Highway Administrator Whitton in 1966, Exhibit A, Federal Highway Administrator Bridwell and Secretary of Transportation Boyd in 1968, Exhibit B, and Federal Highway Administrator Turner and Secretary of Transportation Volpe in 1969, Exhibit C * * *."

The exhibits referred to consist of press releases and correspondence between various officials of the state and federal governments. Appellants challenge the admissibility of these documents. These documents were admissible to show what was considered by the Secretary when he made his determinations. Mr. Swick's assertions that the necessary determinations were made and the reasons therefor are unchallenged by any evidence, and there is nothing to indicate that his statements could be disputed at a trial. With respect to the routing of the road, it is...