Citizens to Preserve Overton Park, Inc. v. Volpe

• Decision Date: 26 February 1970
• Docket Number: Civ. A. No. C-70-17.
• Citation: 309 F. Supp. 1189
• Parties: CITIZENS TO PRESERVE OVERTON PARK, INC., William W. Deupree, Sr., Sunshine K. Snyder, Plaintiffs, Sierra Club and National Audubon Society, Inc. v. John A. VOLPE, Secretary of Transportation, and Charles W. Speight, Commissioner, Tennessee Department of Highways, Defendants.
• Court: U.S. District Court — Western District of Tennessee

309 F. Supp. 1189

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

Civ. A. No. C-70-17.

United States District Court, W. D. Tennessee, W. D.

February 26, 1970.

COPYRIGHT MATERIAL OMITTED

John W. Vardaman, Jr., Washington, D. C., and Charles F. Newman and W. J. Michael Cody, Memphis, Tenn., for plaintiffs Citizens to Preserve Overton Park, Inc., Deupree and Snyder.

H. Donald Harris, Jr., San Francisco, Cal., for plaintiff Sierra Club.

Donald C. Hays, New York City, for plaintiff National Audubon Society.

Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., for defendant Volpe.

Lurton Goodpasture, Jr., Asst. State's Atty. Gen., Nashville, Tenn., and J. Alan Hanover, Memphis, Tenn., for defendant Speight.

MEMORANDUM DECISION AND JUDGMENT

BAILEY BROWN, Chief Judge.

This is an action to enjoin the Secretary of Transportation from releasing federal funds to the Highway Department of the State of Tennessee for construction of a segment of an expressway in the City of Memphis through Overton Park, which is a municipally owned and operated park used for a zoo and other recreational purposes. Plaintiffs Deupree and Snyder are residents, property owners and taxpayers in the City of Memphis; plaintiff Citizens To Preserve Overton Park, Inc., is a nonprofit corporation organized and operated by Memphians for the purpose indicated by its name; plaintiffs Sierra Club and National Audubon Society, Inc. are non-profit corporations organized and operated to promote conservation. Defendant John A. Volpe is Secretary of Transportation and defendant Charles W. Speight is Commissioner of the Tennessee Department of Highways.

This action was filed in the District Court of the District of Columbia against defendant Volpe alone; thereafter, upon argument of his motion to dismiss and before decision thereon, that Court transferred the cause to this court in order that defendant Speight could be joined as such. This has since been done.

This court then set for hearing on February 20, 1970 both plaintiffs' motion for a temporary injunction and defendant Volpe's motion to dismiss. Defendant Volpe, prior to the hearing, also filed a motion for summary judgment, in which defendant Speight joined at the hearing, and this motion, rather than the motion to dismiss, was argued at the hearing. The motions for summary judgment and the motion for a temporary injunction are based on a large number of affidavits, including exhibits thereto, and not only have we studied such affidavits and exhibits but also we have had the benefit of extensive argument.

Plaintiffs contend that the Secretary's final formal approval in November, 1969 of the involved project (which approval is necessary before the federal funds to be contributed, amounting to 90% of the total cost, can be released) is void because he did not follow procedures prescribed by statute and by regulation issued by the Bureau of Public Roads. They further contend that such approval is void because his determination, as required by statute, that this is the only feasible and prudent corridor for the expressway and his determination, as also required by statute, that all possible design safeguards have been taken to protect the park are arbitrary and capricious determinations.

Defendants contend that plaintiffs do not have standing to maintain this action, which contention we can forthwith overrule at least as to plaintiff Citizens To Preserve Overton Park. This organization through its officers and members has actively participated for some years in administrative proceedings for selection of the corridor and design of the expressway. Nashville I-40 Steering Committee v. Ellington, 387 F.2d 179 (6th Cir.1967) and South Hill Neighborhood Ass'n, Inc., et al. v. Romney et al., 421 F.2d 455 (6th Cir. decided November 24, 1969).

Defendants also contend that the record shows without dispute: (1) that the prescribed procedures were complied with; (2) that, even if there was a deviation from prescribed procedures, there was substantial compliance with them; (3) that any deviations from such procedures were harmless errors; (4) that if there was any deviation, such was a deviation only from the procedures prescribed by the Bureau of Public Roads in a Policy and Procedure Memorandum, which need not be followed as would a regulation; and (5) that the prescribed procedures upon which plaintiffs rely did not apply to the selection of the corridor for the expressway since such selection had been made prior to the promulgation of the procedures. Defendants, finally, deny that defendant Volpe's approval of this project, either as to corridor or design, was arbitrary and capricious.

We deal first with plaintiffs' contention that the Secretary's approval is void because of procedural defects in the administrative proceedings.

With respect to their contention that statutory and regulatory procedures were not complied with, plaintiffs rely on 23 U.S.C. § 128, which provides in part:

"(a) Any State highway department which submits plans for a Federal-aid highway project * * * going through, any city * * * shall certify to the Secretary that it has had public hearings, * * * and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community. * * *

(b) When hearings have been held under subsection (a), the State highway department shall submit a copy of the transcript of said hearings to the Secretary, together with the certification."

In this connection, plaintiffs further rely on Policy and Procedure Memorandum 20-8 of the Bureau of Public Roads, which is Appendix A to Title 23 C.F.R., Chapter I, Part 1. The relevant provisions are as follows:

"§ 8 Public hearing procedures.

* * * * * *

(b) Conduct of public hearing.

* * * * * *

(2) Provision shall be made for submission of written statements and other exhibits in place of, or in addition to, oral statements at a public hearing. The procedure for such submission shall be described in the notice of public hearing and at the public hearing. * * *"

(e) Transcript.

* * * * * *

(1) The State highway department shall provide for the making of a verbatim written transcript of the oral proceedings at each public hearing. It shall submit a copy of the transcript to the division engineer within a reasonable period * * * after the public hearing. * * *"

Section 10 of Policy and Procedure Memorandum 20-8 further provides that the corridor and design of an expressway will not be approved until the requirements of the Memorandum have been complied with.

It is undisputed that the notice of the May, 1969 hearing which was run in a local newspaper did not indicate that written statements could be submitted at the hearing. It is also undisputed that the equipment which was set up at the hearing for transcribing the proceedings malfunctioned so that some of the statements at the hearing were not included in the transcript that was sent to the Bureau of Public Roads. It is plaintiffs' contention that, with such defects in the notice and in the transcription, there was a deviation from the prescribed procedures and that therefore the approval of the project is void. It is, on the other hand, undisputed that all who appeared and whose oral statements were not transcribed were advised by certified mail that they could file a statement, that several of them did file such statements, and that a total of about forty statements were filed after the hearing. Further, plaintiffs have not even alleged, let alone shown by affidavit or otherwise, that there were persons who desired to make a statement but who did not do so because of lack of notice, or that there was any fact, argument, theory or position in support of another location or in support of another design which had not been, or at the hearing was not advanced to the state and federal authorities.

We recognize the requirement that an administrative agency follow its own procedural regulations. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L. Ed.2d 1012 (1959). We further assume that the involved Policy and Procedure Memorandum should, for this purpose, be treated as a regulation. While doing so, however, we might say that we have considerable doubt that the Policy and Procedure Memorandum was intended to have the effect of a regulation. The preface to this Memorandum explicitly states that it was not being issued as a new part to the Bureau's regulations and was being made an Appendix to Part 1 to obtain for it the broadest distribution. This Memorandum is not included in the Code of Federal Regulations.

This Court has jurisdiction under 5 U.S.C. § 706 to determine whether...