Citizens To Preserve Overton Park v. Volpe

PETITIONER:Citizens To Preserve Overton Park
RESPONDENT:Volpe
LOCATION:Ohio State Bar Association

DOCKET NO.: 1066
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 401 US 402 (1971)
ARGUED: Dec 07, 1970 / Jan 11, 1971
DECIDED: Mar 02, 1971

Facts of the case

Question

  • Oral Argument – December 07, 1970
  • Audio Transcription for Oral Argument – December 07, 1970 in Citizens To Preserve Overton Park v. Volpe

    Audio Transcription for Oral Argument – January 11, 1971 in Citizens To Preserve Overton Park v. Volpe

    Warren E. Burger:

    Citizens to Preserve Overton Park against Volpe, Mr. Vardaman you may proceed whenever you are ready.

    John W. Vardaman, Jr.:

    Mr. Chief Justice, and may it please the Court.

    This case was previously before Your Honors on December 7, at which time the parties engaged in extensive oral argument on petitioner’s application for stay to prevent the construction of a large six-lane interstate highway through Overton Park in Memphis Tennessee.

    After hearing argument, the Court granted the stay, granted certiorari, set the case for argument on the merits today.

    As Your Honors will recall, this case arises under a federal statute, generally, referred to as Section 4 (f) of the Department of Transportation Act which provides that the Secretary of Transportation shall not approve a highway project which affects a public park such as Overton Park, unless there are no feasible and prudent alternative routes or unless the design includes all possible planning to minimize harm.

    As we pointed out in the argument on December the 7, there are all alternative routes to that through the park, there are all alternative designs which would minimize harm to the park, designs admittedly possible in this case.

    We have alleged supported that the proper determinations which are required by Section 4 (f) of the Department of Transportation Act, were not made and indeed even if they were made, they were infirm or legally invalid.

    Since this Court granted certiorari, there have been two important developments in this case.

    Immediately thereafter, the Solicitor General on behalf of the Secretary, filed a motion to remand in which he conceded that the courts below had erred in granting and affirming summary judgment on the basis of affidavits which merely characterize documents on which these determinations, he said, had been made.

    We certainly agree that the summary judgment was wrong, but we have oppose an immediate remand because of the other important issues which we believe should be decided in this case.

    The second important development which has occurred since we were here before, occurred approximately 10 minutes ago.

    At that time, the Solicitor General handed me two pieces of paper, which purport to be affidavits which I understand he is attempting to file in this case at this time, one of which says that as an affidavit of Alan S. Boyd and which he says as a matter of fact that he did make the determination which we have alleged he did not make and which we have offered to prove that he did not make.

    The second piece of paper which he has filed purports to be an affidavit of John Volpe that he made certain determinations.

    Now I know that no president which permits a party to filed in this Court, at this stage in the proceedings affidavit.

    I do recall that there was a case here, I believe in 1968 entitled Bumpers against North Carolina, in which the case, in which this Court, it granted certiorari to consider the validity of a warrantless search.

    And as I recall that case during the course of the oral argument, the attorney for the state said for the first time in the proceedings that in fact the search in that case had not been without a warrant, that he had found the warrant after the decision below and I believe he attempted to file the warrant in this court.

    As I recall the opinion in that case, the Court said, it’s too late.

    You make your record in a trial court and at that point you consider that’s where these facts are tried out.

    Potter Stewart:

    Are you familiar with the case Giles against Maryland?

    John W. Vardaman, Jr.:

    Generally, I am not familiar with any aspect that would bear on this point.

    Potter Stewart:

    Well, it is a big aspect that bears very directly on this point.

    John W. Vardaman, Jr.:

    Well, perhaps if the Court would like, memorandum on whether this evidence is properly before the Court at this time, I would be happy to file a memorandum, but I think that this is an extraordinary effort in which — the manner in which to present evidence in a case, particularly since we were not permitted, in fact, the Court of Appeals held that we were barred by this Court’s decision in Morgan from taking a deposition which we had specifically offered, will dispute one of these affidavits.

    If as we submit one of the crucial issues in this case, is whether the determinations under Section 49 (f) of the Department of Transportation Act have been made.

    We think that it’s undisputed that that is a crucial issue in this case then that issue should be tired out in the way disputed issues in fact are traditionally tried in lawsuit.

    We should put on our evidence and they should put theirs on.

    Each side’s evidence should be subject to cross examination.

    We should not try it up by affidavits filed in this Court.

    Warren E. Burger:

    These paper will be lodged and the Court will determine their posture at a latter date and if we need anything from you Mr. Vardaman will then indicate to you that — we’ll invite you come and offer it.

    John W. Vardaman, Jr.:

    Thank you, Your Honor.

    With respect to — I might add that in my review of these documents at the time before they were filed indicates to me that they do not fulfill the requirements of the department, the transportation order which was as I understand promulgated on October 7, 1970, which now requires formal findings, in cases under Section 4 (f) of the Department of Transportation Act.

    John W. Vardaman, Jr.:

    So even if the Court were consider, to consider this evidence the Secretary has still not complied with that order.

    And I think under this courts decision in the Thorpe case, where it states the general rule that the issues presented here must be determined in accordance with the law as it existed at the time of decision.

    Even if you consider these pieces of paper it would still not be compliance with that order, or with the law and a remand would be necessary.

    The second issue which remains in this case, aside from the question of whether there was adequate compliance with Section 4 (f) by the Secretary’s failure to render any written document at the time the decision was made, the second issue which remains is whether, whether the court below was proper in holding that petitioners were barred from deposing formal Federal Highway Administrator, Bridwell in order to determine whether or not the decisions under this Statute were made.

    And we sought to depose formal Federal Highway Administrator, Bridwell because the documents in this case indicate that if he wasn’t the sole person who made the determinations at least he was intimately involved in any determination that would have been made.

    Indeed the record never refers, at least, until these documents submitted today there was no reference in the record to decision made by former secretary Boyd.

    Wherever his name appeared, it appeared jointly with Federal Highway Administrator Bridwell.

    More over it was Mr. Bridwell who went to Congress to testify about what occurred in this case.

    So we noticed the deposition of Mr. Bridwell.

    We have offered to prove through his deposition that no such determination was made.

    That in fact, he merely delegated this to City Council of Memphis and left it up to them to decide.

    The Court of Appeals said that this Court’s decision in Morgan against United States prohibited any interrogation of the Secretary as to determine whether or not he made these decisions.

    We believe that that is erroneous extension of the Morgan Doctrine.

    While Morgan may prohibit inquiry as to how decisions were made it does not.

    I believe this Court’s decisions in Accardi case show that it does not prohibit inquiry as to whether a decision which is required by law to be made was in fact made and I think the point is even sharpened more by the fact that now we have an affidavit.

    An affidavit from a man who has not been cross examined, an affidavit which we have not been permitted to impeach which purports through what is a disputed fact.

    Warren E. Burger:

    If this time the statement, these two statements and part of the original record, would you think that you could cross examine the former Secretary and the present Secretary on how they reached the conclusions and what their —

    John W. Vardaman, Jr.:

    Well, I think that would present a much more difficult issue Your Honor, but I think we should be able to interrogate them particularly if they are not operating on the basis of a contemporaneous document.

    In other words, these are not documents that were written at the time the decision was made.

    These are, what I characterize as litigation affidavits.

    These are obviously prepared with the help of a lawyer, with the scope of lawsuit firmly in mind and filed in the court and I think it would not be an appropriate in circumstances of that nature to ask him, whether in fact he made the decisions and if so what materials he had before him.

    I don’t think it would be proper, and may not be proper to say, did you read every page as they tried to do in Morgan or did you consider this factor on page one and that factor on page two.

    But I think it is fair, I think those attacking decisions must be able to ascertain what decisions were made and what the basis that is, what the documents before the person would have been in order that they can seek a review , in other words they can seek a review of what he did on the basis of what he purportedly acted upon.

    Supposing the appellant to the Chief Justice’s question, supposing the secretary had made formal findings of that (Inaudible)

    John W. Vardaman, Jr.:

    I would say that in order to cross examine in a case such as that, you’d have to make a strong showing that there had been some impropriety.

    There are cases, and I believe in Accardi case there was a finding or in the Singer Sewing Machine Case there were some findings where these quasi judicial body’s members I don’t remember, people associated with them were interrogated.

    But certainly there would be no reason if we had formal findings in this case, it would take a very strong showing in order to interrogate him and I’m not prepared to say, it would even being necessary, if we had the proper findings in this case.

    But the important fact is —

    Hugo L. Black:

    Proper findings based on what?

    John W. Vardaman, Jr.:

    Proper findings — of course, that would be a question as to whether or not they are based on evidence which supports them.

    John W. Vardaman, Jr.:

    Whether or not the Secretary has considered everything, he ought to have considered and whether or not, what he did consider supports what he did.

    I think it’s not, there is no —

    (Inaudible) on the record though surely, wouldn’t it, (Inaudible)

    John W. Vardaman, Jr.:

    Well, I think that’s correct.

    I think that’s correct.

    It will determine, whether he made a proper investigation and brought before him the materials which he ought to brought before him for making such determination and whether these materials support his determination.

    Hugo L. Black:

    You say, depend on the record, do you mean the record of evidence or something on which the findings were made?

    John W. Vardaman, Jr.:

    Well, I don’t mean any formal record.

    Hugo L. Black:

    I am not talking about formal, could he just make a statement,without any hearing of evidence of any kind or character and would that close it out?

    John W. Vardaman, Jr.:

    No, I don’t believe it would, Your Honor.

    Potter Stewart:

    He testified to the administrator record, isn’t that correct?

    John W. Vardaman, Jr.:

    Well, there is in this case, no specific administrator record.

    Potter Stewart:

    Well, then (Inaudible) my brother Harlan’s question.

    You have findings and an administrative record, you’d see, whether or not the findings were supported by the administrative record.

    That the test I know, of review is something that’s in controversy in this case, but in any event that’s the way you would approach it, isn’t it?

    John W. Vardaman, Jr.:

    I don’t think that we would be limited to the administrative record.

    Certainly, if we could show that, that his findings were not supported by what is characterized as the administrative work record, we would be entitled to relief, but I think that we should be able to show, we would also be entitled to relief if he didn’t prepare a proper record, but further more if he has considered matters which those attacking his decision and not yet had an opportunity to rebut, I think that we would be entitled to rebut that evidence in someway and if we can cast some doubt on the credibility or the substantially of these findings based on evidence which we submitted, I think we will be entitled to relief —

    Potter Stewart:

    That answer suggests to me that you consider this adversary action an almost a full scale lawsuit between you and your group, your client on the one hand and the secretary on the other, is that the way you visualize this procedure?

    John W. Vardaman, Jr.:

    Well, I think we must be given a right to rebut evidence which we have not been appraised of on which he relied on, an evidence which we heretofore had not been —

    Potter Stewart:

    Why, why?

    What gives your client standing to become an adversary in a litigation between — with the secretary under the statute?

    John W. Vardaman, Jr.:

    Well, I think that the question of our standing is, I think at least not been opposed at this point.

    We do have standing, I believe under —

    Potter Stewart:

    Yes, but the question is standing to do what?

    John W. Vardaman, Jr.:

    That’s correct.

    I think we have standing, we certainly have standing to present during the course of the administrative process at the public caring and elsewhere, we have standing to present evidence to —

    Potter Stewart:

    There was a public hearing in the Memphis City Council?

    John W. Vardaman, Jr.:

    That’s correct and there were certain —

    Potter Stewart:

    And I suppose your people were heard from, were they not?

    John W. Vardaman, Jr.:

    They certainly were but now the secretary offers another, if I can give, Your Honor, one example, I think it will point out the necessity for this.

    John W. Vardaman, Jr.:

    They say we couldn’t, apparently — in document, they said in their affidavit, we couldn’t like depressed route through this park, because this would require use of a particularly type of pump and this is unsafe in highway projects of this nature.

    Now if we are not permitted to rebut that in any way, we would not be able to show that the Department of Transportation has authorized for use in the interstate highway, the same type of pump in other areas and that cast such strong doubt as to either the investigation which he has made to the safety in this case, or as to creditability of this explanation, that it’s evidence I submit, should is relevant for the consideration of the Trial Court.

    It may send it — it maybe relevant only to whether or not he’s made the proper investigation for making his determination, but it’s evidence of that nature.

    In fact, there has been no objection heretofore on introducing such evidence.

    The Secretary has never objected of introduction of evidence of that nature.

    We have introduced affidavits which documented that the use of siphon in Department of Interior projects, we introduced affidavits of the use of this type of pump that would be required here, we have introduced affidavits as to the type of the use of tunnels in the interstate system.

    They have not heretofore objected to that type of evidence.

    But it would only — I don’t think that this would not be a De novo advisory proceeding in which we tried out every fact.

    It would only be in case we are able to present some evidence which created some dispute over whether what the Secretary found on the basis of the administrative record.

    Warren E. Burger:

    I am not quite sure Mr. Vardaman, in response to the questions and so I would like to try again on this matter of cross examination of the Secretary.

    If he had made the findings, and then said on the basis of these findings, I have concluded that this project is desirable and in conformance with the statutory requirements and it is hereby approved.

    In that circumstance with those formal findings, I don’t quite understand whether you say you can examine — cross examine him a little bit or not at all?

    John W. Vardaman, Jr.:

    I wouldn’t say we can cross examine him a little bit.

    We would not, I say, be permitted to cross examine him unless we would meet the strong burden in the trial court that suggested some impropriety in what he did.

    For instance, and I don’t mean to suggest that this would be true in this case or whatsoever, but as a hypothetical example, if there were some evidence to indicate fraud or bribery, it might be that type of attack on the findings I believe it would be proper and I think we could cross examine.

    In the Accardi case, there was an allegation that the Board of Immigration Appeals acted solely on the basis of the attorney general’s list that had been published and there the court held, it was proper to cross examine.

    But only after we have met a very strong burden of demonstrating that there is some impropriety.

    I think it would shift the burden to us, it would place a very heavy burden upon us but in the general case, in the usual case, I would suggest that we would not cross examine in those circumstances, but in this particular case, where have this affidavit of Secretary, former Secretary Boyd, we do have evidence which will dispute this.

    I am not so concerned about cross examining Secretary Board as I am presenting that evidence.

    And it’s interesting the reason it hasn’t been presented heretofore is because former Highway Administrator Bridwell said he didn’t think it was proper when I talked to him, to present this by affidavit.

    He thought it was better if he wouldn’t take side, that we would testify in court and let both sides have a shot at him.

    We weren’t permitted to put him on the stand to have him testify.

    Warren E. Burger:

    Do you think he is the appropriate person to make that decision?

    John W. Vardaman, Jr.:

    No I don’t but I am simply explaining why we don’t have an affidavit of the same nature that they do here today.

    Hugo L. Black:

    Does these affidavit — are these statements here, late statement, show when a decision was made if a decision was made?

    John W. Vardaman, Jr.:

    Well the certificate of Allen Boyd says, in April of 1968, he made a decision that there was no feasible and prudent alternative routing the highway generally along in the —

    Hugo L. Black:

    It was three years ago, has anything else shown except this evidence?

    John W. Vardaman, Jr.:

    Not on this affidavit but —

    Hugo L. Black:

    Do you think in the record claims to show that they did have an investigation and did make a finding as to what route was feasible?

    John W. Vardaman, Jr.:

    Well there are very vague allegations in an affidavit that in 1968, Secretary Boyd and former Federal Highway Administrator, Bridwell reaffirmed a previous decision and that’s the extent of the documentation.

    Hugo L. Black:

    1960 — 1968 affirmed and previously —

    John W. Vardaman, Jr.:

    That’s correct.

    Hugo L. Black:

    But when was the previous —

    John W. Vardaman, Jr.:

    They claimed it was made in 1956, but that other evidence in the record which —

    Hugo L. Black:

    Anything in the record they have that shows except this affidavit three-five days ago?

    John W. Vardaman, Jr.:

    Not that shows that these decisions were made, not that it says these decisions were made.

    In fact the record indicate, the affidavit of Volpe refers to another determination in 1969.

    The record is equally unclear on that point.

    Finally, the third point which we submit should be resolved by this Court before any remand which the Solicitor General, as I understand is conceded is necessary in this case, would be the appropriate standard of review.

    The Court of Appeals felt that the only standard of review is the arbitrary and capricious standard.

    The Administrative Procedure Act posses that is the minimum constitutional requirement.

    So the legislative history says and the act we believe requires a Court to go further and even if the finding is not arbitrary capricious, it requires a review of the evidence to support it.

    Either under the substantial evidence standard or the unwarranted by the fact standard, we believe that the court below was in error in limiting its review to the arbitrary and capricious standard

    Warren E. Burger:

    Thank you Mr. Vardaman.

    I have Mr. Solicitor General —

    Erwin N. Griswold:

    It’s the same one that was here before and while it’s coming, I will refer to the facts of the case to which Mr. Vardaman has not made much reference this morning.

    The park which is involved here, Overton Park in Memphis, is about 8 tenths of a mile across.

    One place in the record, it says 4800 feet, another place it seems to indicate it’s 4100 feet and I take an intermediate place and call it 8 tenths of a mile.

    Potter Stewart:

    That is from East to West Mr. Solicitor General?

    Erwin N. Griswold:

    From east to west.

    Potter Stewart:

    Which is the direction —

    Erwin N. Griswold:

    Which is the direction that the highway comes.

    The record is clear that the location of the road through the park was approved by the Bureau of Public Roads in 1956, 15 years ago now.

    It is true as Mr. Vardaman says that at later times, there have been suggestion that it might be subject to reconsideration, but that would be like a petition for rehearing, that does not negative the fact that it was approved in 1956.

    It was reaffirmed by Federal Highway Administrator, Whitton in January 1966, five years ago and both of these were before there was any statutory provisions with respect to parks.

    Section 4 (f) of the Department of Transportation Act was enacted in October 1966 and effective April 1, 1967.

    The approval of the route was reconfirmed by the Department of the Transportation Secretary, Boyd on April 1968.

    The Section 4 (f) was amended and Section 138 of the Federal Aid Highway Act was enacted and effective in August 1968 and the design, only the design, because Secretary Volpe gave no consideration to the location, that had been determined in 1956, 1966 and reconfirmed by Secretary Boyd in 1968, the design was approved by Secretary Volpe on November 5, 1969.

    I would like to recall the fact that the statute provides that and I quote, “To the greatest extend possible” the state shall select the route for highways and this route has been approved by the state, the city and by the Memphis Park Board.

    The Tennessee highway department was authorized to proceed with the purchase of the right-of-way on May 29, 1967 nearly four years ago, and commenced doing so, and the area is not immediately adjacent to the park.

    Erwin N. Griswold:

    At the present time and this is true with one or two exceptions that at the time the suit was started, all of the land has been acquired to and through the park.

    99% of the nearly 2,000 people living their had been displaced and 75% of the buildings had been demolished.

    Some of the land has been (Inaudible) Now the red line East to West is the approved route of the park.

    That which has the green dash lines beside it is land where the right-of-way was cleared prior to April 1968, the date of Secretary Boyd’s approval.

    All of this was cleared by August 1966, before the effective date of either the statutes involved here.

    The land with a yellow along the red is land which was cleared after April 1968, after the date of Secretary Boyd’s approval.

    Hugo L. Black:

    Was that in the park?

    That land you refer to was that in the park?

    Erwin N. Griswold:

    No, the park is this area Mr. Justice from there to there, and that is all that we are concerned with here.

    What I am trying to point out is that the land up to the park on both sides was cleared after April 1968, and substantially all cleared by January 1969 when Secretary Volpe took office, and all cleared by November 1969, when he approved the design.

    Now here it is, one of the alternate which was considered, here is another alternate that was considered, this triangular line is an alternate which is suggested in one of the affidavits that’s filed by the petitioners in this case.

    This is a pedestrian bridge for access to the zoo.

    This also is a pedestrian bridge with access to the zoo, and this is a cross street, which is left open.

    The state has bought the 26 acres through the park, for $2,200,000, and the city has already expended $1,000,000 for 160 acre park with a golf course, and it spent $200,000 on improvements to the zoo, and is obligated to expend the remaining million dollars for additional parkland.

    And thus the park resources of Memphis will be increased by some 320 acres on account of the loss of 26 acres in Overton Park.

    Potter Stewart:

    Of course acreage is more important but even more important in parks, with respect to parks is their locations, one of the few things perhaps I learned as a member of the city council of Cincinnati that where the parks are is of the greatest importance?

    Erwin N. Griswold:

    I understand Mr. Justice, and I am little bit inhibited because there is nothing in the record about where the parks are.

    I had made inquiries and as far as I am concerned, the park has substantial improvement to the park facilities of Memphis in terms of location as well as area.

    But I can’t —

    Potter Stewart:

    Accessibility to the people who need the park —

    Erwin N. Griswold:

    I am so advised and perhaps and Mr. Hanover can tell you more about that.

    The location of the new park does not appeared in the record.

    Our brief answers the arguments made by the petitioners and I believe that we have an argument and answer to each argument.

    We rely on that brief.

    In the brief time available to me for oral argument, I cannot deal with all of the arguments here, but I will confine my consideration to four points.

    There are special circumstances here, which makes this a suitable place to put this role and which support the determination of the Secretary that there is no other ‘feasible and prudent’ and I emphasis the fact that the statute says ‘and prudent’ alternative to this route. Overton Park has always been divided.

    There is in fact the park and the zoo, and for 75 years or so they have been separated.

    This is the zoo.

    The zoo has been extended into this area and this although it appears to be trees, is trees has parking space under it.

    The park is south of the road.

    Erwin N. Griswold:

    At first there was a narrow gauge railway across the land at this point, then trolley tracks, and for the past 30 years or so the trolley tracks have been replaced by a paved bus route.

    This right-of-way is 40 or 50 feet wide and it has city bus traffic with no protection, and that is been there for 60 or 70 years in one form or another.

    There is however and always has been limited access to the zoo, and that’s what they want.

    Along the bus route at the South side of the zoo there is a chain link fence 6 or 7 feet high, except at the East end where the parking lot for the zoo is located and will continue to be located.

    The bus route already occupies 4 or 5 acres which of course has no trees on it.

    So we are talking about 21 or 22 acres.

    The park now contains 150 acres of unimproved woodland.

    It can be seen here at the lake so that the statement made in one of the letters in the record and relied on in the petitioners’ brief that there won’t be much in the way of wooded park left in Overton Park after an interstate highway is routed through it is obviously a greatly over exaggerated statement.

    There will be at least 130 acres of wooded parkland left in Overton Park.

    Potter Stewart:

    What’s a climax forest, do you have any idea?

    Erwin N. Griswold:

    No Mr. Justice I have some recollection that I read about it once many years ago, but I can’t tell you —

    Potter Stewart:

    I heard about it in the petitioners’ brief and I perhaps will look it up in the dictionary but I just wondered if you knew about it?

    Erwin N. Griswold:

    Perhaps the petitioners enlighten you.

    I should have looked into it.

    It is a tree term, but I don’t know it.

    With respect to the design much of the highways to be depressed so as to minimize the noise and interference with view.

    Secretary Volpe took great pains with respect to that.

    The place for the highway will be above grade to enable it to cross on (Inaudible), where engineering difficulty would be considerable and continuing, if the highway were depressed.

    The statute doesn’t say, no other possible alternative.

    It does not even say no other feasible alternative.

    What it says is no other ‘feasible and prudent’ alternative in the conjunctive.

    There must be no other route that is prudent as well as feasible.

    According to my dictionary, prudent means wise in handling practical matters, exercising good judgment or common sense.

    The legislative history shows that it was intended that the Secretary should make this judgment.

    We submit that it is cleared on this record that both Secretaries had adequate support for their conclusion.

    That there is no feasible and prudent alternative to the use of this land and that all possible planing to minimize harm to the park has been done.

    Now I turn to the question of findings.

    The statute doesn’t require findings or a trial-type hearing by the Secretary, and it would be a mistake for this Court to conclude we respectfully submit that findings by the Secretary are required or that he should be required to conduct a trail-type hearing.

    Following a suggestion which was made in the previous oral argument in this case, we have obtained from both Secretaries involved certificates, stating their findings.

    Now these are referred to by Mr. Vardaman, understandably as affidavits, but they are not so denominated themselves.

    Erwin N. Griswold:

    They are certificates made by a high government officer with respect to actions which they took and they do we submit serve to clarify any ambiguity which may lie in the record by reason of the fact that they did not make formal findings, which I again submit the statute does not require them to do.

    We recognize that the presentation of these documents is unusual.

    We submit them for what effect they can properly be given.

    I repeat the suggestion came from the previous oral argument in the Court.

    We had them nicely printed up, but Secretary Volpe has been out of town.

    His affidavit was cleared with him by telephone.

    It was to be signed this morning and when he came to sign it, he wanted to change and of course, it’s his certificate and so he changed it, and the result is that we have withdrawn the printed copies which we had prepared in advance and have submitted the original of the certificates to the Court and had provided the xerox copies to counsel and to the Court.

    Hugo L. Black:

    Mr. Solicitor General, may I ask you in view of your statement, there is no formal findings a requirement. What kind, would you say — what do you thought to take care of the precautionary action which the Congress has prescribed?

    Erwin N. Griswold:

    Well, yes, Mr. Justice.

    I think that it should appear in some appropriate way and I hope that these certificates are shall I say, last resort appropriate way.

    That the Secretaries did, in fact, recognize and take into account and undertake to operate under the statutory requirement, clearly and validly made by Congress.

    We think that even without these formal certificates from the Secretaries, there is sufficient in the record to show that they did proceed on that basis.

    But what the statute says is that the Secretary shall not approve any program or project involving park lands unless one, there is no feasible and prudent alternative to the use of such land and two such program includes all possible planning to minimize harm to such part resulting from such use.

    It does not even say, unless the Secretary finds that there is no such alternative and I suspect that, that was because Congress deliberately wanted to avoid the Secretary having to hold hearing and take evidence and balance the evidence and then in the way, that a Court does after a trial type hearing make a finding of fact.

    Hugo L. Black:

    Is there anything in the congressional hearings or record to support that?

    Erwin N. Griswold:

    Yes, Mr. Justice, the legislative history is detailed both in the appendix to petitioner’s brief and in our brief.

    Particularly, on page 21 there are statements of our brief.

    There are statements in the report of the Senate Public Works Committee and in the report of the House Committee on Public Works.

    Committee is extremely concerned that the highway program be carried out in such a manner as to reduce in all instances, the harsh impact on people which results from the dislocation and displacement by reason of highway construction.

    Therefore, the use of park lands properly protect it and with the damage minimized by the most sophisticated construction techniques is to be preferred to the movement of large numbers of people.

    There is a colloquy in the Senate to which reference is made in the appendix to the petitioner’s brief, which he seems to say, at least, to the conclusion that the Secretary has no discretion but which we read in exactly the opposite way.

    We read it to say that if the local people say that these parks can’t be used, then the Secretary has no discretion, but that if they say they can be used, it still remains a matter for the Secretary’s judgment as to whether there is a feasible and prudent alternative.

    Am I right in thinking that your current departmental regulations do provide it?

    Erwin N. Griswold:

    Yes, Mr. Justice, the department is upgrading the procedures here and I think that’s sound, but I know off no reason why that should be applied retroactively to proceedings which were already filed along by the time that was adopted and I don’t read the Thorpe case on which the petitioners rely as leading to any such conclusion.

    The question here is whether — it is clear here that here that both Secretaries understood the requirement of the statute and they’ve now both certified, but they did understand it and that they complied with it.

    Now this Court has often held that formal finding should not be insisted on, when they’re not legislatively commanded.

    The standard of review should be whether the actions of the Secretaries was arbitrary and capricious.

    We think that the petitioners are far from having sustained their burden of proof, that there was such arbitrary and capricious action here.

    We think that his record contains ample material that shows that both Secretaries acted carefully, thoughtfully, deliberately and was full awareness of their obligation under the statute, but it was their decision and they made it.

    The task was one of great responsibility and they should be upheld.

    Erwin N. Griswold:

    The Administrative Procedure Act does not apply to this, because it’s a grant making matter which is especially excluded from the Act, but if it does reply, it would lead to the same result.

    But if the Court feels that the question–

    May I ask Mr. Solicitor, my recollection is (Inaudible)

    Erwin N. Griswold:

    Yes, Mr. Justice, I’m just turning to that.

    If the Court feels that the question of arbitrary and capricious action cannot be determined on this record, and we felt there was some indication of that in the previous argument then we rely on our motion to remand for the purpose of allowing the admission of the administrative record in the District Court.

    We do not think that there should be a remand for a full trial, unless the District Court finds after examining the administrative record, that it cannot decided the issue of arbitrary and capricious action without a further a trial.

    We filed the motion of remand not for the purpose of conceding error here as Mr. Vardaman says, but for the purpose of narrowing the scope of any remand, and for the purpose of negativing any suggestion, that there should not be such a limited remand because we have not asked for such a limitation.

    Now the — I see that my time is virtually expired.

    I will have to summarize my remaining points.

    The third one I wanted to make was that a remand here, would it seems to me be a triumph for formalism.

    With the benefit for hindsight this record is not all that I might like to have.

    It would be nicer, if the Secretaries had made formal findings at the time they made their determinations, though they have made such a findings nows.

    It would be better, if we didn’t have to piece out the essence of their determinations from other actions which they took like press releases and resolutions and letters and affidavits.

    And it was for this reason, that we moved for the introduction of the remand, or the introduction of the administrative record, but is this not really an exercise in futility.

    Would it not be a triumph of formalism over substance or Mr. Justice Frankfurter in it’s well known words, a case of marching the king’s men up the hill and then marching them down again.

    And remand for further proceedings, would I think be a kind of mechanical jurisprudence more of fitting for barren park than for the final third the 20th Century.

    Hugo L. Black:

    I don’t quite understand that Mr. Solicitor?

    Congress has passed an Act which seems to attach great importance for not not going to trial (Inaudible) feasible and prudent (Inaudible)

    Erwin N. Griswold:

    Mr. Justice, my point is that I think that there is ample and adequate in the record now to make it plain, that if this is remanded, it will great deal of motion will be generated and when you get through the motion, there will then be a nice new record which will have adequate material to show that the route is not — there is no feasible and prudent —

    Hugo L. Black:

    (Voice Overlap) record which does not now appear?

    Erwin N. Griswold:

    Mr. Justice, we think that there isn’t.

    If this test of review is whether the Secretary acted in an arbitrary and capricious manner which we think is the test, we think it is a apparent from this record that neither Secretary acted in an arbitrary or capricious manner, ignoring their requirements of the statue.

    If that does not adequately appear, then we think the case should be remanded so that the administrative record can be seen by the District Court and that question determined on the administrative record.

    What we think should not be done here, is anything which requires a trail type hearing before the Secretary or anything which leads to, what amounts to a trial de novo before a district court and a decision of this question in effect by the District Court rather than by the Secretary.

    Because that is my final point, a fundamental question here, one of the separation powers, of the proper allocation of the function that courts, legislatures and the executive branch in the important and complex task of carrying on government.

    Two things are clear, one is that Congress is legislated certain specific requirements with respect to the use of park lands and the other is that it is allocated the administration of that provision to the executive branch specifically to the Secretary of Transportation.

    This doesn’t mean that there is no role for the courts where the Secretary should be held and check if he ignores the legislative requirements.

    But it does mean that the proper role of the courts is now unlimited one and it is important I submit, both through the administration of the government and for the courts, that the limited nature of that role be recognized and observed.

    It is not good government to have all governmental decisions decided by courts or even that have a situation where as a matter of routine, all questions arising in the administration of the government are habitually referred to courts.

    In recent years, more and more governmental decisions are being made by courts.

    Erwin N. Griswold:

    The recent broadening or near elimination of concepts of standing and the limitations on sovereign immunity as a defense have contributed to this result.

    Of course, court should see that the constitution is complied with and that the statutory rules are followed, but is it wise that the substance of all administrative actions should be subject to reevaluation in the courts.

    What the two secretaries have done here, they have acted, what they have done is rational, and it complies that is directives given to them by Congress.

    The decision was to remand, it should be upheld.

    The judgment below should be affirmed.

    Mr. Chief Justice, I’m afraid I have trespassed some on Mr. Hanover’s time and I hope that he can have some of his time.

    Warren E. Burger:

    We’ll work it out reasonably Mr. Solicitor General.

    Mr. Hanover you may proceed.

    J. Alan Hanover:

    Mr. Chief Justice, may it please the Court.

    I will not at this time attempt to restate the facts or using time for that purpose, since I think that the Solicitor General has stated them quite well to the Court.

    I’ve being the only attorney at the bar today who has played in this park.

    I do feel that I probably know more the details than either of my colleagues.

    I would be of course happy to answer questions in that vein but I will pass from the facts to take up what I feel are the issues that affects this case, and affect my client, the State of Tennessee.

    I think the best place to start any argument is at the beginning and I think it would be helpful to the Court, if I went back to the beginning of this case, as it will help you to understand all five issues in this case.

    And the beginning of this case is the beginning of any case is the pleadings and the complaint filed by the petitioners in this case sets up the case, it sets up the standard of judicial review and it sets up what type of judicial review should be had in this case.

    In the petitioners’ original complaint, they charge that the Secretary didn’t make findings, that is really the only basic issue in the lawsuit.

    Actually, although, I was glad to see this morning the affidavits are filed by the Solicitor General and of course, the other affidavits in the record as to approval of the route and reaffirmation actually on the motion for summary judgment that was before the District Court and the Court of Appeals and is before this Court, None of those affidavits were actually necessary.

    The complaint filed by Mr. Vardaman states all of the necessary facts for this determination.

    He states that Secretary Boyd approved the route and of course, the word approved is the keyword in the statute.

    There is no dispute concerning the approval.

    There is no dispute concerning the final approval of the route design in November 1969.

    Since the complaint filed by the petitioner states all of those facts, and therefore they admit it.

    He raises the issue as to whether or not findings as such were required under the parkland statute and in the record, in the appendix, you’ll see as cited in our brief, the colloquy that it occurred between Mr. Vardaman and District Judge Brown on this very point, as to what the issues were and what he was contending.

    I think it’s quite clear that the issue was whether or not specific findings are necessary under the Act and that is, of course, I think the main problem that this Court has to face.

    If this Court believes as I do, and as the Solicitor General does that this is a discretionary statute that Congress gave the Secretary of Transportation, a discretion to make this decision and that findings as such or not require by the statute or by either the application or non-application of the Administrative Procedure Act.

    I feel I have discuss quite fully in our brief that it does not apply to discretionary decision of this type, that the Court can reach its conclusion and end this case one way or the other on that point alone.

    Hugo L. Black:

    What do you mean by discretionary?

    J. Alan Hanover:

    As contrasted Mr. Justice Black to a ministerial duty.

    He has to exercise judge, he has to exercise his judgment rather than the judgment of Mr. Vardaman or the Solicitor General or myself or any of the protagonist in this case.

    Hugo L. Black:

    You mean a non-renewable?

    J. Alan Hanover:

    No, sir.

    I will take that point right now.

    I tend to agree to a certain extent with the Solicitor General, although we do disagree on one or two other points in this case, regarding administrative record, that the Administrative Procedure Act does not apply, but it really doesn’t make any difference whether it does or not, the result in the case is the same.

    Now the question of review, as I stated earlier the complaint filed about Mr. Vardaman does not charge Secretary Volpe with any misconduct.

    It’s always been my understanding of the law that when you challenge the actions of an administrator and you want to have a review on the question of whether he was arbitrary or capricious, you must allege some fact to bring it before the Court to have a trial on the merits which is what Mr. Vardaman ultimately wants.

    They didn’t say, as a matter of fact, they didn’t even make a conclusory allegation that Secretary Volpe was arbitrary and capricious.

    They just said he didn’t make any findings.

    Now this Court holds the findings he must make, that’s the end of that issue.

    If the Court holds that findings he need not make, that again is a dispositive to the issue.

    Now it’s not that he is precluded from judicial review or this Court is precluded from reviewing case.

    It’s because he did not allege facts that warrant judicial review beyond what he has here today.

    If he had said that Secretary Volpe laid this route out because he had a relative nearby who’d profit from the sale of his land or the enhancement of its value or that he deliberately refused to consider evidence or that he deliberately chose engineers to advise him and whom he knew were not properly trained, that maybe the basis for a review beyond the sculpt that we have here on the question of summary judgment, but he did not.

    He just simply said, he made no findings although he admittedly admits that he approved the route.

    Now going from that, there are many cases that have been before this Court and the lower Federal Courts to the effect that with those allegations, you can go farther and you can question the Secretary.

    I would think that if he had charged Secretary Volpe with some improper conduct, he would have a prefect right to examine him on that point.

    Hugo L. Black:

    Why did he fall short of it?

    J. Alan Hanover:

    He just didn’t allege any —

    Hugo L. Black:

    What did he allege?

    J. Alan Hanover:

    He only alleged, may it please Your Honor, that these various routes have been approved, the designs have been approved and that the Secretary has failed to make findings.

    Now, we’ve quoted that extensively in our brief to call it to the attention of the Court.

    I see that my time has expired.

    In conclusion I again ask the Court to, before determining the standard of judicial review or the question of whether the Secretary or Federal Administrator Bridwell should have been opposed, to carefully examine the pleadings to determine what the issues are.

    I think all of the other issues fall into place, after you see what the petitioners are actually claiming in this case.

    Warren E. Burger:

    Thank you Mr. Hanover.

    Mr. Vardaman.

    John W. Vardaman, Jr.:

    Mr. Chief Justice, the respondents in this case traditionally start each argument with the statement that this highway will run along a bus route through the park, and the implication being we’ll have practically no effect on this.

    This bus route which is displayed here is narrow facility, some 25 feet wide, on which buses run through about once in an hour, in fact it’s so narrow that the trees from the wooded part of the park hang over the bus route freely crossed by pedestrians.

    Hugo L. Black:

    Will it be for passengers only?

    John W. Vardaman, Jr.:

    The bus route is only used for about one bus an hour, no cars, no other traffic.

    Hugo L. Black:

    Is the road to be used for passengers only, or from passengers and freighters?

    John W. Vardaman, Jr.:

    And trucks that interstate — for commercial and passenger vehicles.

    Hugo L. Black:

    Freight?

    John W. Vardaman, Jr.:

    Freight, trucks.

    The statements which they claim is unwarranted.

    The statement would says there won’t be much of a wooded area left in the park, that’s not a statement we made.

    That’s a statement that an official of Department of Interior made, a department which the Secretary is statue found to consult with on projects of this nature.

    It is a document, fully part of the administrative record.

    They don’t seek to dispute that.

    They within any other evidence they simply say it can’t be right.

    We submit that Department of Interior —

    Warren E. Burger:

    (Inaudible) is relevant or not but looking at the map from where I’m sitting, it could not conceivably be right?

    John W. Vardaman, Jr.:

    But I think what the official had in mind, not that a major part of the woodland would be taken.

    There will be a 450 foot right-of-way through that area.

    But what he meant was, not only that you take the 450 feet, but you really destroy the rest of the park because immediately you don’t have a woodland park, immediately adjacent to the highway, if you got a six lane interstate highway going.

    You have beside the sound, the general pollution associate with these highways, which spread further than the right-of-way.

    Hugo L. Black:

    How wide would you say it would be?

    John W. Vardaman, Jr.:

    450 feet in the wooded area of the park, and I think anyone who has ever stood anywhere close to an interstate highway of this nature knows that the effects don’t stops at the age of the pavement and I think Your Honor that’s what the department of Interior official —

    Potter Stewart:

    The 400 — the outer edge of the 450 feet are not paved?

    John W. Vardaman, Jr.:

    Well, there is very I — it’s not clear but I think —

    Potter Stewart:

    It really hasn’t got much to do with the case, but I think you find that the 450 feet of the entire right-of-way doesn’t extent nearly to the edge?

    John W. Vardaman, Jr.:

    But this was showed as I think in the case are very narrow.

    That’s one of the points I made also that they didn’t take very much.

    A second point which they raise is that the right-of-way for this route was acquired long before the decision — was acquired after the decisions were made.

    In fact, the department of transportation authorized the acquisitions for the right-of-way of this project before they ever made any effort to comply with the statute.

    Even if we assume, what the Solicitor General says is correct, and even if we assume what is stated in these certificates are right, the department of transportation told the state to go ahead and acquire the land for this project in May 1967, a month after the statue was affected, but 11 months before any effort was made to comply with it.

    And I submit that right-of-way acquired under that authorization is acquired illegally which should not prejudice the petitioners’ position.

    Review under the case briefly what is exactly that you expect to be able to show if this case is remanded?

    John W. Vardaman, Jr.:

    I’ll be able to show Your Honor, that in my test, my evidence would show that the officials of the department of transportation left this decision solely to the City Council of Memphis.

    They went down and made an explanation, and they although they pointed out alternatives both to the North and to the South of the park, they never decided one way or the other in the Department of Transportation, that these alternatives, whether these alternatives were prudent and feasible.

    They attempted to delegate to the City Council, and once a City Council made up its mind, they simply rubber stamped that.

    John W. Vardaman, Jr.:

    They approved the highway without ever making their own independent judgment as to whether they were feasible and prudent alternatives.

    Warren E. Burger:

    Are you going to do that without cross-examining Mr. Boyd and Mr. Volpe?

    John W. Vardaman, Jr.:

    Well, that’s what Mr. Bridwell would testified to.

    I think it’s also supported by the evidence, his testimony before the Congress which is in exhibit in this case, but that’s what Secretary Bridwell would testify to.

    And I think that even in footnote 25 of the Solicitor General’s brief, he concedes that the statute imposes an obligation on the Secretary of Transportation, to make an independent determination, and we will show that independent determination was never made in this case.

    Warren E. Burger:

    (Inaudible) as a practical question (Inaudible) the certificates (Inaudible)

    John W. Vardaman, Jr.:

    That’s correct Your Honor.

    I say, we have evidence which would dispute —

    Hugo L. Black:

    I gather you claim that they not only did not make the so called formal findings, but they made no findings at all?

    John W. Vardaman, Jr.:

    That’s correct, didn’t even make a minimal determination.

    Further with respect to the design, we would show that designs which they reject as impossible are in fact designs which are clearly possible.

    They are the types of designs that are used through out the interstate highway system and clearly possible here.

    And that there is no basis — I don’t know on what basis they can possibly say that they were impossible in terms of the statute, but we’ll prove they certainly were possible.

    Potter Stewart:

    In fact Mr. Vardaman you don’t question that these are the signatures of Secretary Volpe or Boyd, do you?

    John W. Vardaman, Jr.:

    Oh, no.

    I have no ground of which to question that.

    No I simply say —

    Potter Stewart:

    You are rights are proper and so on.

    These are genuine.

    John W. Vardaman, Jr.:

    No, I don’t have the authenticity on these pieces of paper.

    I merely say that I think we would have evidence to contradict it.

    Furthermore there was a reference made to the legislative history.

    I think that’s a misnomer.

    For the legislative materials to which the Solicitor General refers, are not history at all.

    Those are materials that were created or put in the congressional record over year after the the statute was passed.

    This statute was passed I believe by the 89th Congress in 1966, and all of the materials to which he refers are the materials taken from the 90th Congress in 1968, hardly we submit legislative history.

    Warren E. Burger:

    In a developing field do you suggest that what they said two years later is not relevant?

    John W. Vardaman, Jr.:

    I suggest that it is not relevant Your Honor, because I think that we pointed out in our brief, those statements were made generally by people who opposed this statute in the beginning, who tried to amend it to weaken the statute and in fact the secretary of transportation opposed any amendment.

    So they were in effect efforts to cut down the force of this statute on the floor of the Congress.

    We submit the statute is clear on its face (Inaudible) interpreting by looking at the statute.

    John W. Vardaman, Jr.:

    Finally, I would say to Your Honors that this case is not only important to my clients, the petitioners in this case, but the people of Memphis.

    This case has great importance to the people of this nation.

    The importance of this statute is one which will drastically effect at least the battle to preserve this nation’s environment against projects such as that involved here.

    Thank you.

    Warren E. Burger:

    Thank you Mr. Vardaman, Mr. Solicitor General, Mr. Hanover.

    The case is submitted.