Citizens To Preserve Overton Park, Inc v. Volpe

Decision Date02 March 1971
Docket NumberNo. 1066,1066
Citation91 S.Ct. 814,401 U.S. 402,28 L.Ed.2d 136
PartiesCITIZENS TO PRESERVE OVERTON PARK, INC., et al., v. John A. VOLPE, Secretary, Department of Transportation, et al
CourtU.S. Supreme Court
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. 409 413.

(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 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 were 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 in 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.

John W. Vardaman, Jr., Washington, D.C., for petitioners.

Sol. Gen. Erwin N. Griswold, for respondent, Secretary of Transportation.

J. Alan Hanover, Memphis, Tenn., for respondent, Charles W. Speight, Commissioner Tennessee Dept. of Highways.

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 the Federal-Aid 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.

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 91 S.Ct. 246, 27 L.Ed.2d 262. We now reverse the judgment below and remand for further proceedings in the District Court.

Overton Park is 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 sixlane, 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 of Interstate Highway I—40, part of the National System of Interstate and 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 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 findings16 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 minimum, by using advanced drainage techniques19 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 litigationWhich 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 was prohibited. And, believing that the Secretary's authority was wide and reviewing courts' authority narrow in the approval of highway routes, the lower courts held that the affidavits contained no basis for a determination that the Secretary had exceeded his authority.

We agree that formal findings were not required. But we do not believe that in this case judicial review based solely on litigation affidavits was adequate.

A threshold question—whether petitioners are entitled to any judicial review—is...

To continue reading

Request your trial
6360 cases
  • Empresa Cubana Exportadora v. U.S. Dept. of Treas.
    • United States
    • U.S. District Court — District of Columbia
    • September 27, 2007
    ...action." Id. Yet a "presumption of regularity" applies to agency actions, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) [hereinafter Overton Park], and courts should uphold them so long as a "rational connection between the facts fo......
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003)
    • United States
    • U.S. District Court — District of Columbia
    • October 30, 2003
    ...broad terms that in a given case there is no law to apply," Webster v. Doe, 486 U.S. 592, 599 (1988) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971)), and "a court would have no meaningful standard against which to judge the agency's exercise of discretion," He......
  • CONSERVANCY of Sw. Fla. v. UNITED States FISH, Case No. 2:10-cv-106-FtM-SPC
    • United States
    • U.S. District Court — Middle District of Florida
    • April 6, 2011
    ...statutes are drawn in such broad terms that in a given case there is no law to apply. . . ." Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)(internal quotation omitted)). "Provisions for agency reviewdo not restrict judicial review unless the statutor......
  • Pasco Terminals, Inc. v. United States
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • September 26, 1979
    ...the court when, as here, it had a rational basis in fact and was not contrary to law. See, e. g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Suwannee Steamship Co. v. United States, 435 F.Supp. 389, 79 Cust.Ct. 19, 23-24, C.D. 4708 (1977).......
  • Request a trial to view additional results
153 books & journal articles
  • Depoliticizing Judicial Review of Agency Rulemaking
    • United States
    • University of Washington School of Law University of Washington Law Review No. 84-3, March 2015
    • Invalid date
    ...courts review other forms of agency action, such as informal adjudication. See, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). It could be prudent for courts to use the same rational basis with bite standard in reviewing those other forms of agency action ......
  • Federal Grazing Lands as 'Conservation Lands' in the 30 by 30 Program
    • United States
    • Environmental Law Reporter No. 52-4, April 2022
    • April 1, 2022
    ..., 14 Env’t L. 1, 49 (1983). 46. Id . at 50. 47. Id . at 59. 48. Id . at 74 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 1 ELR 20110 (1971)) (internal quotation marks omitted). 49. George C. Coggins et al., Federal Public Land and Resource Law 759 (7th ed. 201......
  • Future prospects for mining and public land management: the federal 'retention-disposal' policy enters the twenty-first century.
    • United States
    • Environmental Law Vol. 26 No. 2, June 1996
    • June 22, 1996
    ...(325) Marsh v. Oregon National Resources Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). (326) Bowen, 476 U.S. at, 627. (327) U.S. Const. amend. XIV, [sections] 1. (328) In a leading case, City of Cleburne v. Cleburne L......
  • 2011 Ninth Circuit environmental review.
    • United States
    • Environmental Law Vol. 42 No. 3, June 2012
    • June 22, 2012
    ...Cir. 1998) (citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (623) Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1169 (9th Cir. 2011). (624) Ctr. for Biological Diversity v. Nat'l Highway Traffi......
  • Request a trial to view additional results
1 provisions
  • 49 C.F.R. 520 app Attachment 1 to Part 520 Form and Content of Statement
    • United States
    • Code of Federal Regulations 2023 Edition Title 49. Transportation Subtitle B. Other Regulations Relating to Transportation Chapter V. National Highway Traffic Safety Administration, Department of Transportation Part 520. Procedures For Considering Environmental Impacts
    • January 1, 2023
    ...any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems. 401 U.S. 402, 412(1971).d. If there is no feasible and prudent alternative, description of all planning undertaken to minimize harm to the protected area an......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT