Citizens to Preserve Overton Park, Inc. v. Volpe, Civ. No. C-70-17.

• Citation: 335 F. Supp. 873
• Decision Date: 05 January 1972
• Docket Number: Civ. No. C-70-17.
• Parties: CITIZENS TO PRESERVE OVERTON PARK, INC., et al., Original Plaintiffs, and Sierra Club et al., Intervening Plaintiffs, v. John A. VOLPE, Secretary, Department of Transportation, and Charles W. Speight, Commissioner, Tennessee Department of Highways, Original Defendants, and City of Memphis et al., Intervening Defendants.
• Court: U.S. District Court — Western District of Tennessee

335 F. Supp. 873

CITIZENS TO PRESERVE OVERTON PARK, INC., et al., Original Plaintiffs, and Sierra Club et al., Intervening Plaintiffs, v. John A. VOLPE, Secretary, Department of Transportation, and Charles W. Speight, Commissioner, Tennessee Department of Highways, Original Defendants, and City of Memphis et al., Intervening Defendants.

Civ. No. C-70-17.

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

January 5, 1972.

John W. Vardaman, Jr., Williams, Connolly & Califano, Washington, D. C., Charles F. Newman, Burch, Porter & Johnson, Memphis, Tenn., for original plaintiffs Citizens to Preserve Overton Park, Inc., Deupree and Snyder.

Michael R. Lackner, Memphis, Tenn., Paul Henry Kidd, Monroe, La., for plaintiff Sunshine Snyder.

H. Donald Harris, Jr., San Francisco, Cal., John W. Vardaman, Jr., Washington, D. C., and Charles F. Newman, Memphis, Tenn., for Sierra Club.

Donald C. Hays, New York City, John W. Vardaman, Jr., Washington, D. C., and Charles F. Newman, Memphis, Tenn., for National Audubon Society: (plaintiff)

John W. Vardaman, Jr., Washington, D. C., and Charles F. Newman, Memphis, Tenn., and Robert M. Kennan, Jr., Washington, D. C., for plaintiff National Wildlife Federation.

Thomas F. Turley, Jr., U. S. Atty., James N. Raines, Asst. U. S. Atty., David C. Porteous, Asst. U. S. Atty., Memphis, Tenn., for defendant Volpe.

David M. Pack, Atty. Gen., of Tennessee, Lurton C. Goodpasture, Jr., Asst. Atty. Gen., Nashville, Tenn.; J. Alan Hanover, James B. Jalenak, Hanover, Walsh, Barnes & Jalenak, Memphis, Tenn., Special counsel, for defendant Speight.

Dale Woodall, Evans, Petree, Cobb & Edwards, Memphis, Tenn., for intervening defendants City of Memphis, Memphis Chamber of Commerce, Future Memphis, Inc., and Downtown Association.

MEMORANDUM DECISION

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 interstate highway through Overton Park in Memphis. This Court granted summary judgment for defendants. 309 F.Supp. 1189 (1970). The Court of Appeals for the Sixth Circuit affirmed. 432 F.2d 1307 (1970). The Supreme Court reversed and remanded for a plenary review of Secretary Volpe's approval of the release of federal funds for this project in November, 1969. 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). This hearing has since been held. The background of this litigation is fully set out in those opinions.

In its opinion, the Supreme Court gave a narrow interpretation to the requirement of § 4(f) of the Department of Transportation Act of 1966 (49 U.S.C.A. § 1653(f))¹ that the Secretary not release funds for the construction of a highway using public parkland unless there is no "feasible and prudent" alternative. It held that, while such factors as cost, directness of route and community disruption were not to be ignored, the purpose of this provision was to give "protection of parkland . . . paramount importance." 401 U.S. at 412-413, 91 S.Ct. 814.² It held that an alternative route is "feasible" within the meaning of this provision unless its use would be contrary to "sound engineering." 401 U.S. at 411, 91 S.Ct. 814. And it further held that an alternative route is "prudent" within the meaning of this provision unless its use involved "truly unusual factors" or its use involved "cost or community disruption . . . of extraordinary magnitudes." 401 U.S. at 413, 91 S.Ct. at 822. Although there is a proviso in § 4(f) that would appear to make the provision applicable only if the local officials having jurisdiction of the park determined it to be of local significance for § 4(f) purposes, the opinion gave no such effect to this proviso; indeed, the opinion implicitly holds that the fact that local officials in Memphis had approved this route through Overton Park could not properly be given any weight by the Secretary in making his determination.³

Having so interpreted § 4(f) of the Act, the Supreme Court further held (401 U.S. at 413, 91 S.Ct. 814) that, since there is "law to apply" by the Secretary, his determinations are reviewable under the Administrative Procedure Act (5 U.S.C.A. § 701 et seq.) and proceeded to determine the standard for review. It concluded that the determination is not to be reviewed de novo and not even to be subjected to the "substantial evidence" standard. 401 U.S. 414-415, 91 S.Ct. 814. It held, however, that, while the Secretary's determination is entitled to a presumption of regularity, this court, in reviewing his determination, must "engage in a substantial inquiry . . . which is thorough, probing, in-depth . . ." (401 U.S. at 415, 91 S.Ct. at 823), and the opinion then explicitly spells out the standard for our review as follows:

"The court is first required to decide whether the Secretary acted within the scope of his authority. Citation omitted. This determination naturally begins with a delineation of the scope of the Secretary's authority and discretion. Citation omitted. As has been shown, Congress has specified only a small range of choices that the Secretary can make. Also involved in this initial inquiry is a determination of whether on the facts the Secretary's decision can reasonably be said to be within that range. The reviewing court must consider whether the Secretary properly construed his authority to approve the use of parkland as limited to situations where there are no feasible alternative routes or where feasible alternative routes involve uniquely difficult problems. And the reviewing court must be able to find that the Secretary could have reasonably believed that in this case there are no feasible alternatives or that alternatives do involve unique problems.

"Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706(2) (A) requires a finding that the actual choice made was not `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' 5 U.S.C. § 706(2) (A) (Supp. V). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citations omitted. 401 U.S. at 415-416, 91 S.Ct. at 823.

We believe that the foregoing language of the Supreme Court's opinion should be interpreted and may be paraphrased as follows. The first question to be answered is the question whether the Secretary acted within the scope of his authority. To answer this question it is necessary, in turn, to answer two subsidiary questions. The first of these is: did the Secretary properly construe his authority, that is, did he apply the correct legal standard, as such is set out in the opinion, in determining whether there was a feasible and prudent alternative. The second of these is: could the Secretary have reasonably believed, considering the information and materials he had before him, that there was no such feasible and prudent alternative. Here we must consider both the content and the completeness of the information and materials before the Secretary. In order to determine that the Secretary acted within the scope of his authority, we must answer both of these subsidiary questions in the affirmative.⁴ If we determine that the Secretary acted within the scope of his authority, we must also determine whether the actual choice made was arbitrary, capricious or an abuse of discretion. Here we must consider whether, in making the choice, the Secretary actually considered the factors held by the Court to be relevant and if so whether, in giving weight to the factors as prescribed by the Court, he committed a clear error of judgment.

Although the opinion of the Supreme Court, as has been seen, admonished us to conduct a thorough plenary hearing and explicitly set out the determinations that we are to make, the opinion adds this caveat: "Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." 401 U.S. at 416, 91 S.Ct. at 824.

The Supreme Court held that, contrary to the contention of plaintiffs, the failure of the Secretary to make formal findings and state his reason for his approval does not require a remand to him. 401 U.S. at 417-419, 91 S.Ct. 814. The Court also held, however, that it was improper to base our review, as we did when we granted summary judgment, on the litigation affidavits with exhibits and that the basis for review should be the "`whole record' compiled by the agency: the basis for review required by § 706 of the Administrative Procedure Act." 401 U.S. at 419, 91 S.Ct. at 825.

Thus the Court held that the case must be remanded to this court for plenary review of the Secretary's decision, "the review . . . to be based on the full administrative record that was before the Secretary at the time he made his decision." 401 U.S. at 420, 91 S.Ct. at 825. It pointed out, however, that the "bare record may not disclose the factors that were considered or the Secretary's construction of the evidence . . .," and that therefore testimony of the persons involved in making the decision might be necessary. 401 U.S. at 420, 91 S.Ct. at 825. Such inquiry into mental processes, the Court said, should ordinarily be avoided, and where there are formal findings and reasons stated in support thereof at the time the decision is made, there must be clear proof of bad faith or other improper conduct before the mental processes of the agency people may be investigated. The Court pointed out that the Secretary could even later make formal findings that might provide a sufficient explanation of his decision, but such findings would, like the affidavits before the Court on motion for summary judgment, have the aspect of a "post hoc...