Certiorari Denied March 27, 1972. See 92 S.Ct. 1290.
BAZELON, Chief Judge:
This appeal injects us back into the midst of a long and sometimes acrimonious imbroglio over the proposed construction of a bridge across the Potomac River from Virginia into the District of Columbia. In an earlier appeal we held that the so-called Three Sisters Bridge could not be built except in compliance with the hearing, environmental protection, safety, and other provisions of federal law applicable to the construction of federally-assisted highway projects.
The factual background of this dispute has been described in detail in our earlier opinion
On April 6, 1970, we held that the hearing and planning requirements of title 23 of the United States Code were fully applicable to this project notwithstanding a 1968 Act directing that construction of the bridge begin not later than thirty days after the Act's passage.
Given our earlier decision, the Secretary's approval of the bridge must be predicated on compliance with a number of statutory provisions. Plaintiffs
A. Requirements of § 138
If a proposed federally-assisted highway project would encroach on parkland or historic sites, the Secretary of Transportation must determine before construction can begin that there is "no feasible and prudent alternative to the use of such land," and, assuming such a finding, that the "program includes all possible planning to minimize harm to such park * * * or historic site."
In defending the Secretary's action, the government can hardly maintain that there was no "feasible" alternative to construction of the Three Sisters Bridge. This exemption applies, as the Supreme Court indicated in Citizens to Preserve Overton Park, Inc. v. Volpe, only if the Secretary finds that "as a matter of sound engineering it would not be feasible to build the highway along any other route."
Our review of the Secretary's determination is hindered not only by the lack of any formal findings, but also by the absence of a "meaningful administrative record within the Department of Transportation evidencing the fact that proper consideration has been given to the requirements of this section."
Secretary Volpe's testimony before the District Court did little to allay the doubts generated by the lack of an administrative record. Indeed, his testimony — on occasion uncertain and inconsistent with the testimony of others
Furthermore, an apparent misconception about our earlier decision may itself have distorted the Secretary's determination under § 138. The government has read our earlier opinion to mean that a bridge must be built, albeit in accordance with the provisions of title 23, somewhere in the vicinity of the proposed Three Sisters Bridge. Congress did direct, as we previously indicated, "that a bridge be built over the Potomac following the general configurations laid out in the cost estimates."
While these difficulties give rise to at least a substantial inference that the Secretary failed to comply with § 138, that inference ripens into certainty when one turns to the second determination required by § 138. Before the project can begin, the Secretary must determine that all possible planning has been done to minimize harm to the affected parkland and historic sites. Yet the District Court found, and the Secretary apparently concedes, that final design of the ramps and interchanges is not yet complete. Thus, when Secretary Volpe purportedly complied with § 138 in August, 1969, he could at best have been "satisfied * * * that the designs which would be developed based on the preliminary plans would result in a minimum taking of parkland,"
Absent a finalized plan for the bridge, it is hard to see how the Department could make a meaningful evaluation of "harm." Furthermore, Secretary Volpe did not consult with other planning agencies to coordinate efforts to minimize harm to the park and historic sites.
B. Requirements of § 134
The Secretary cannot approve federally-assisted highway projects in urban areas unless he finds "that such projects
We are unwilling to resolve this dispute by some abstract balancing of NCPC disapproval against TPB approval. That approach would, we are convinced, entirely miss the point of § 134. That section does not suggest that the Secretary has satisfied his statutory responsibility as soon as he has found a single plan which incorporates a proposed highway project. Nor can it reasonably be interpreted to mean that the project must be approved by every plan applicable to the affected region. The section speaks, after all, in terms of "planning," not "plans," and it is not our function to decide that one plan has merit while another does not. Rather, it is for the Secretary to determine whether a particular project will be consistent with sound transportation planning for the region.
Decisionmaking responsibility under § 134 has been delegated by Secretary Volpe to the Public Roads Division Engineer, Mr. Hall. Mr. Hall disregarded NCPC disapproval of the project because he believed that "TPB [was] the primary agency to which he should look in making his finding."
Since the determination was not grounded on a correct understanding of the statute's requirements, we need not now decide whether the substantive result, if reached pursuant to appropriate procedures, would itself be supportable. But to aid the Department's redetermination under § 134, we should make clear our misgivings about the result and our doubts that it could be upheld on the present record even under the constrained standard of substantive review.
C. Requirements of § 109(a)
The Secretary's approval of plans for a federally-assisted highway project is conditioned on a determination that the proposed facility will "adequately meet the existing and probable future traffic needs and conditions in a manner conducive to safety, durability, and economy of maintenance."
Plaintiffs also argue, however, that the project was approved before the Secretary could be certain, first, that river bed conditions would support the bridge, and second, that no safety hazard would arise from the increase in air pollution attributable to traffic on the bridge. Again, we are unable to accept the District Court's disposition. With regard to river bed conditions, the District Court noted that
Called to testify before the District Court, Mr. Hall still could not be certain "that the present planned foundation is adequate."
The District Court's findings are not entirely clear as to whether questions about the safety of river bed conditions could be more fully resolved before construction resumes. We hold that if such questions do exist, the Secretary must take steps to resolve them to the fullest practical extent before granting approval of the project under § 109(a).
Plaintiffs' second contention under § 109(a) concerns the dangers of air pollution. The District Court concluded that evidence of a potential air pollution hazard was insufficient to support a finding "that the defendants are required to undertake a study of such [air pollution] effects."
D. Requirements of § 128
While the government did not admit error with regard to the design hearing, it nevertheless chose to hold the necessary hearing in a commendable effort to reduce the number of issues outstanding. Since the question has now been mooted, we express no opinion on the District Court's conclusion.
E. Requirements of § 317
If the Secretary determines that lands owned by the United States are needed for a proposed highway project, he must
After concluding that the bridge project would use federal parklands under the jurisdiction of the Interior Department's National Park Service, and after noting defendant's admission that a map had not been filed, the District Court still found "compliance with the spirit, if not the letter, of § 317."
We agree with the District Court that the failure to supply a map should not be an absolute bar to the construction of the bridge if the purposes of § 317 have in fact been realized. That section is designed, as the District Court acknowledged, to
We need not decide whether the District Court erred in finding compliance with the spirit of § 317. In view of our conclusion that the case must be remanded for new determinations, it would not appear to be a significant burden on the Department to remove all doubts under this section by filing the appropriate map.
F. Provisions Other Than Title 23
At the hearing below, the District Court barred plaintiffs from presenting evidence on a number of allegations in their complaint because those allegations related to statutory provisions which the District Court found inapplicable to the Three Sisters Bridge project. Thus, the Court concluded that the project was exempted by Congress from compliance with certain provisions of the federal Code, as well as provisions of the District of Columbia Code.
In 1968 we held in D.C. Federation of Civic Associations, Inc. v. Airis
The District Court then held explicitly that the Three Sisters Bridge had been exempted from all of the pre-construction provisions of title 23, and implicitly that the bridge had been exempted from the comparable provisions of the D.C. Code.
The applicability of these provisions was not squarely faced in the parties' briefs,
Under these circumstances, we are reluctant to resolve the dispute without providing the parties an opportunity to discuss the question on the merits. Accordingly, we defer judgment on this issue to permit the parties to file, within twenty days from the date of this opinion, memoranda dealing with the question.
As Part I of this opinion makes clear, the Secretary's determinations failed to comply with a significant number of title 23 provisions applicable to the Three Sisters Bridge. Taken as a whole, the defects in the Secretary's determinations — in particular, his effort to make the determinations before plans for the bridge were complete — lend color to plaintiffs' contention that the repeated and public threats by a few Congressional voices did have an impact on the Secretary's decisions. As the District Court pointed out,
When funds for the subway were, in fact, blocked, Representative Natcher
The author of this opinion is convinced that the impact of this pressure is sufficient, standing alone, to invalidate the Secretary's action. Even if the Secretary had taken every formal step required
In my view, the District Court clearly and unambiguously found as a fact that the pressure exerted by Representative Natcher and others did have an impact on Secretary Volpe's decision to approve the bridge. The Court pointed out that
The Court also found, on the basis of the Secretary's contemporaneous statements and his testimony before the Court, that
The Secretary's testimony indicated, as the court below pointed out, that "his decision was based on the merits of the project and not solely on the extraneous political pressures."
Notwithstanding these findings of fact, the Court determined as a matter of law that since the Secretary was not acting in a judicial or quasi-judicial capacity, his decision would be invalid only if based solely on these extraneous considerations.
The District Court was surely correct in concluding that the Secretary's action was not judicial or quasi-judicial,
If, on the other hand, the Secretary's action had been purely legislative, we might have agreed with the District Court that his decision could stand in spite of a finding that he had considered extraneous pressures. Beginning with Fletcher v. Peck,
Thus, the underlying problem cannot be illuminated by a simplistic effort to force the Secretary's action into a purely judicial or purely legislative mold. His decision was not "judicial" in that he was not required to base it solely on a formal record established at a public hearing. At the same time, it was not purely "legislative" since Congress had already established the boundaries within which his discretion could operate. But even though his action fell between these two conceptual extremes, it is still governed by principles that we had thought elementary and beyond dispute. If, in the course of reaching his decision, Secretary Volpe took into account "considerations that Congress could not have intended to make relevant,"
It is plainly not our function to establish the parameters of relevance. Congress has carried out that task in its delegation of authority to the Secretary of Transportation. Nor are we charged with the power to decide where or when bridges should be built. That responsibility has been entrusted by Congress to, among others, the Secretary, who has the expertise and information to make a decision pursuant to the statutory standards. So long as the Secretary applies his expertise to considerations Congress intended to make relevant, he acts within his discretion and our role as a reviewing court is constrained. We do not hold, in other words that the bridge can never be built. Nor do we know or mean to suggest that the information now available to the Secretary is necessarily insufficient to justify construction of the bridge. We hold only that the Secretary must reach his decision strictly on the merits and in the manner prescribed by statute, without reference to irrelevant or extraneous considerations.
For the purposes of the foregoing discussion, we have assumed that pressures exerted by Congressional advocates of the bridge are irrelevant to the merits of the questions presented to Secretary Volpe. It does not seem possible to make even a colorable argument of relevance except with regard to § 138. But it might be argued that the potential loss of the subway was the type of "unique problem" and cost of "extraordinary magnitude"
Neither the section's legislative history nor the Supreme Court's decision in Overton Park indicates clearly whether or not this sort of consideration should be deemed relevant. We are persuaded, however, that holding these pressures relevant would effectively emasculate the statutory scheme. The purpose of § 138, in our view, was to preserve parkland by directing the Secretary to reject its use except in the most unusual situation where no alternative would be available. The "unusual situation" posited here is entirely the product of the action of a small group of men with strongly-held views on the desirability of the bridge, who, it may be assumed, are acting with the interests of the public at heart. They may well be correct in concluding that a new bridge is needed and that no alternative location is available. But no matter how sound their reasoning nor how lofty their motives, they cannot usurp the function vested by Act of Congress in the Secretary of Transportation. Until the
To avoid any misconceptions about the nature of our holding, we emphasize that we have not found — nor, for that matter, have we sought — any suggestion of impropriety or illegality in the actions of Representative Natcher and others who strongly advocate the bridge. They are surely entitled to their own views on the need for the Three Sisters Bridge, and we indicate no opinion on their authority to exert pressure on Secretary Volpe. Nor do we mean to suggest that Secretary Volpe acted in bad faith or in deliberate disregard of his statutory responsibilities. He was placed, through the action of others, in an extremely treacherous position. Our holding is designed, if not to extricate him from that position, at least to enhance his ability to obey the statutory command notwithstanding the difficult position in which he was placed.
We conclude that the case should be remanded to the District Court with directions that it return the case to the Secretary
Reversed and remanded.
MacKINNON, Circuit Judge (concurring in part and dissenting in part):
From time immemorial the public interest has suffered from various types of bottlenecks which injure the public in many ways. This case arises out of governmental efforts which seek to improve the highway transportation facilities of the Washington Metropolitan area by removing a number of highway bottlenecks. One of these is the traffic bottleneck in the vicinity of, and across the river from, Georgetown in Northwest Washington. There the increasing congestion on parkland highways, an antiquated street system and historic road patterns which are additionally confined
The governmental authorities responsible for dealing with this situation concluded that it is necessary to erect the Three Sisters Bridge across the Potomac River as one essential part of the overall highway improvement program proposed for the entire metropolitan area. The erection of this bridge is here opposed by a citizens group of the District of Columbia which does not seriously attack the basic merits of the overall program to improve highway traffic congestion but instead ground their opposition on an alleged failure to comply with certain procedural requirements imposed by statute which are applicable to the planning and construction of the project. In such matters, under our form of government with its separation of powers, the function of policy making is assigned to the Legislative and Executive Branches. Congress enacts the basic laws and these are carried out by (1) the Executive Department functioning principally through the Department of Transportation, headed by the Secretary of Transportation, a member of the President's Cabinet, Mr. Volpe, though other federal departments may perform isolated functions; and (2) by the District of Columbia acting through its Highway Department.
It should also be noted that the Constitution vests Congress with complete control over the entire area of the District of Columbia for all governmental purposes and insofar as legislation is concerned vests it with the combined powers of the federal and state governments. U.S. Constitution, art. I, § 8; Kendall v. United States, 12 Pet. 524, 618, 9 L.Ed. 1181 (1838); Stoutenburgh v. Hennick, 129 U.S. 141, 147, 9 S.Ct. 256, 32 L.Ed. 637 (1889); Shoemaker v. United States, 147 U.S. 282, 300, 13 S.Ct. 361, 37 L.Ed. 170 (1893); Atlantic Cleaners and Dyers v. United States, 286 U.S. 427, 434-435, 52 S.Ct. 607, 76 L.Ed. 1204 (1932); O'Donoghue v. United States, 289 U.S. 516, 539, 53 S.Ct. 740, 77 L.Ed. 1356 (1933). The Constitution thus imposes a precise duty upon the members of Congress to look after the needs of the District of Columbia in addition to those of their individual district constituents. Members of Congress are also charged with guarding all the interests of the entire nation in the District of Columbia as the seat of our national government. Pursuant to this assignment of responsibilities, Congress and its members have taken cognizance of the need for transportation facilities in the District of Columbia and the surrounding metropolitan area. To meet the area's anticipated transportation needs it has authorized the appropriation of federal funds for the construction of a metropolitan subway system and has also authorized and directed that substantial additions be constructed to the thru-highways in the area. These additions include the erection of the Three Sisters Bridge.
The remainder of this opinion deals with the very extraordinary majority
Majority opinion, page 1235. In this terse manner the extensive findings of the trial court are effectively negated. The discussion of the application of the separate statutes (Title 23, U.S.Code) which follows fully demonstrates the wide gulf between the majority and the practical trial judge who heard all the witnesses in an extensive 12-day hearing, received 1,025 pages of depositions and then thoroughly documented his findings in an opinion covering 40 printed pages. D.C. Federation of Civic Associations v. Volpe, 316 F.Supp. 754 (D.D.C. 1970).
Section 138 — Feasible and Prudent Alternatives and Planning
The majority opinion sets aside the determination of the trial court that the Secretary had complied with the requirements of section 138
Further, I would not conclude that the Secretary failed to indulge in all possible planning to minimize harm to the park because his consideration of the amount of land to be taken by the ramps was based on the preliminary plans for the ramps. In this respect the opinion of the trial court states:
D.C. Federation of Civic Associations v. Volpe, supra, 316 F.Supp. at 774-775. I construe this statement of the trial court as a finding that the Secretary took into consideration the amount of parkland that might be required under all the limited alternatives for the ramps and interchanges. Thus, the final selection of any ramp, etc., design would not present any problem that the Secretary has not already considered.
As to the suggestion of the majority that the use of the word "harm" in the statute confers authority upon the courts in this case, where only Government land is involved, to pass upon the "subtle calculations" inherent in determining the "aesthetic value" of this bridge, it is my view that Congress had more practical considerations in mind and did not thereby direct the rejection of projects which while they may be "pleasing" to the eye might by some personal standards be considered not to be "beautiful." See Webster's New International Dictionary, 2d ed.
The personal involvement of the Secretary in the decision also explains the alleged failure of the Department to process the matter through normal procedural channels in the Department. When a statute directs a Cabinet officer to make a decision, that decision should not be criticized or found to be faulty because he did not delegate the groundwork to subordinates and then rubber stamp their decision.
The majority opinion also states that:
Majority opinion, page 1239. This statement refers to something that is not required by the statute. It seems clear that the provision of section 138 requiring "all possible planning to minimize harm to such park . . . or historic site from such use"
As for air pollution, I find the trial court's finding that "air pollution was an overall consideration in this as well as all interstate highway projects"
It also seems to me that, in requiring approval by the Secretary of final engineering plans for all details before the project can proceed, the majority are giving an overly technical, legalistic and impractical interpretation to the statute. What the Act requires is that the Secretary "not approve any program or project. . . unless there is no feasible and prudent alternative . . . and all possible planning to minimize harm. . . ." was indulged in. To my way of thinking this would permit the Secretary to approve a program or project which is described by general specifications and reasonably precise locations without having the final blueprints. Certainly as a practical matter there must be room for some preliminary approval prior to the preparation of blueprints because no government is going to spend the millions of dollars necessary to prepare the final drawings without some prior approval that the drawings are being prepared along lines acceptable to the approving authority. If it subsequently develops that the final plans for some phase of the project do not meet the statutory standards they may be attacked at that time. Alternatively, the preliminary plans could be attacked upon a showing that they did not meet statutory standards. But there is neither such showing here, and I would not hold up projects, as the majority holds up this project, unless the objectors could demonstrate that substantial harm would result from the presently existing plans which would be alleviated by some other plan. Insofar as this affects the possible ramps and interchanges here it would be a relatively simple matter to consider all the "limited alternatives" and make a decision thereon. I would thus not remand for any purpose connected with section 138.
Section 134 — Comprehensive Transportation Planning Process
This section requires the Secretary to cooperate with the states and not approve highway projects unless he finds them to be based on a continuing comprehensive transportation planning process carried on cooperatively by "states and local communities."
In considering the requirements of this section the majority reverse the trial court by concluding that the Public Roads Division Engineer (Mr. Hall), to whom the Secretary delegated his responsibility under section 134, had improperly in turn delegated his responsibility to the Transportation Planning Board (TPB) of the Metropolitan Washington Council of Governments (COG), because, they allege, Mr. Hall believed that "TPB was the primary agency to which he should look in making his finding." But certainly the belief that TPB was "the primary agency" for such purposes does not constitute a delegation of his authority. The record thus
Moreover, the TPB was the only agency in the area that did satisfy the requirement of the statute of a body carrying on a "continuing comprehensive transportation planning process . . . cooperatively by states and local communities . . ." Also, as the trial court noted, the District of Columbia, through resolution of its Board of Commissioners on June 17, 1965, provided for the District's participation in the planning processes carried on by TPB.
What is really involved in the majority's opinion in this respect, as with its criticism under section 138 that Secretary Volpe did not consult with other planning agencies, is another backhanded attempt to elevate the National Capital Planning Commission (NCPC) to a point where it can obstruct the project for its own ends. However, the NCPC is "concerned with planning solely for the District of Columbia," and thus does not meet the requirement of the statute for a planning organization being carried on "cooperatively by states and local communities." In contrast, the TPB is a regional organization
A further example of the tenuous rationale of the majority in its reversal appears in its attempted characterization of the TPB approval of the Three Sisters Bridge as a "stale" approval.
I thus concur in the trial court's finding that the requirements of section 134 were fully complied with and dissent from the contrary conclusion of the majority here.
Section 109(a) — The Safety of the Project
I concur in the trial court's conclusion to require further study of the structural feasibility of the bridge but dissent from that portion of the majority opinion which states that the Secretary "undertook no study of the [air pollution] problem." As previously stated the Secretary testified that "air pollution was an overall consideration in this as well as all interstate highway projects"
Section 128 — The Location Hearing
Since the record is devoid of any proof that the present location of the bridge and ramps would affect the public in any manner substantially different from the three locations (which spread eagled the present location) discussed at the 1964 hearing, I would concur in the findings of the trial court that the public hearing requirements were substantially complied with. I thus dissent from the statement by the majority that the trial court's opinion was not clear that a finding had actually been made. To me it is perfectly clear that the court so found when it ruled that the present location was "not a new location" within the meaning of section 6a(1) of the PPM. The finding by the trial court that "no private property will be taken for the bridge or its ramps and interchanges" is also relevant to the finding with respect to the location.
Section 317 — The Map
This section requires that a map should be filed showing the portions of land which a department desires to appropriate. In this connection the majority opinion in footnote 61 refers to a letter of December 15, 1970 from the National Park Service and indicates that the plaintiffs may present this matter to the District Court for reconsideration of its ruling under Section 317. It seems clear, however, that the letter does not relate to any parkland but only to the "adverse impact (of traffic conditions) on the parkway (the highway)." It is thus my opinion that the letter would not have any relevance to any issue under section 317.
Congress, Representative Natcher and So-called Political Influence
In Part III of the majority opinion Judge Bazelon deals with the position of Congress and refers principally to some statements by Representative Natcher relating to the Three Sisters Bridge. The opinion infers that Representative Natcher by his acts was a party to forcing approval of the Three Sisters Bridge without regard to its merits, but the record does not so reflect. As the trial court found, Representative Natcher stated that he would do what he could to withhold appropriations for the construction of the District of Columbia rapid transit system "until the District complied with the 1968 Act" and "the freeway program gets under way beyond recall."
Judge Fahy does not agree that the trial court found that extraneous pressure had influenced the Secretary's decision and I find it impossible to read the findings and conclusions of the District Court as announcing that holding. In this respect the trial court's opinion states:
D.C. Federation of Civic Associations v. Volpe, 316 F.Supp. 754, 765, 766-767 (D.D.C. 1970).
It is submitted that any fair reading of the trial court's opinion cannot twist its language to support Judge Bazelon's conclusion that it held that the Secretary's decision would be invalid "only if based solely on these extraneous considerations." While the trial court found as a fact that the Secretary's decision was "based on the merits of the project and not solely on extraneous political pressures," this is only one of several fact findings; it is not the basis for the decision of the trial court and such factual finding is not the application of any rule of law. The trial court also found that "the mere fact that the Secretary was aware of this [congressional] pressure does not invalidate his decision . . . ." But most importantly, the controlling conclusions by the trial court recognized the "implied requirement that the [the Secretary] base his decision on the merits of the project" and that the Secretary had
It thus seems clear to me that the trial court (Chief Judge Sirica) thereby found that the Secretary had based his decision upon the merits of the project. I specifically concur in this conclusion of the trial court and disagree with Judge Bazelon's solitary conclusion with respect to this phase of the case. Judge Fahy also does not agree with Judge Bazelon that the trial court found that extraneous pressure had influenced the Secretary's decision. It is thus clear that as presently articulated in these opinions a majority of the judges on this panel do not require that new determinations "on the merits" be made because of the interjection of any, for want of a better name, political pressure.
Judge Bazelon's opinion also discusses the relevance of the position of Congress on the appropriations to the matter of the Three Sisters Bridge. Under Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971), the Supreme Court indicated that "The court must consider whether the decision [on the use of parklands] was based on a consideration of the relevant factors." I find that the trial court made the proper finding when it determined after a lengthy trial that the Secretary based his decision on a "review of the merits of the project . . . [and] . . . that study." While the majority opinion states it is not holding that the bridge can never be built, if Judge Bazelon's individual view as to the position of Congress in this and other matters were to prevail, the result would come close to setting up legalistic standards which are practically impossible of compliance. Judge Bazelon's opinion would do that here by deciding, contrary to the finding of the trial judge, that because a member of the Cabinet had knowledge of the position of Congress on appropriations for subways and highways in the District of Columbia that his decision with respect to the merits of a highway project must necessarily have been improperly influenced by that information.
Actually any member of the Cabinet worthy of his position would necessarily know the position of Congress on such matters. No person with the position and ability to make the decision with respect to the Three Sisters Bridge would be ignorant of the publicly expressed congressional position on such matters. What Judge Bazelon fails to consider is that there were congressional pressures both ways and that the trial judge after full consideration found as a fact that the Secretary based his decision on a study of the merits of the project. For an appellate court to reverse such conclusion on this appeal is to overstep its authority
Judge Bazelon also reflects an overly suspicious view with respect to the effect of so-called political pressures. An individual's attitude toward this type of question is closely related to his individual trust in human beings — whether he believes a human being can resist improper pressures. I do not find it unusual for a Cabinet member to be capable of resisting such pressures. Moreover the law is that in the absence of evidence to the contrary (and there is no such evidence here) public officers are to be presumed to perform official acts in accordance with the law.
The realities of this situation are that under the Constitution the Congress of the United States has a wider voice in the affairs of the District of Columbia than it does in the affairs of states or other cities. Pursuant to its constitutional mandate Congress does take a firm hand in matters affecting the District and that is precisely what this court found was lacking in the first case (1968) involving the District highway program. D.C. Federation of Civic Associations, Inc. v. Airis, 129 U.S.App.D.C. 125, 391 F.2d 478 (1968). But no Congressman has any weight in such matters beyond his ability to speak for Congress and to the extent that he does speak for Congress he is only calling attention to the expressed will of Congress.
Congress has spoken in this matter. In Section 23 of the Highway Act of 1968
Moreover, Congress has also declared that the relationship of the highway improvement program in any state, or the District of Columbia, be coordinated with plans for improvements in other affected forms of transportation (this would include subways) which are formulated with due consideration to their public effect on the future development of larger urban areas. In this respect Title 23, § 134, provides as follows:
Thus, this congressional mandate applies to both the subway and to the highway program for the Washington Metropolitan
In its discussion of "prudent alternatives" the majority opinion really attempts to define the problem as being one to determine whether a unique problem of extraordinary magnitude was posed by the potential loss of appropriations for the District subway. This is completely foreign to what section 138 is all about and does nothing more than indicate a preoccupation with the position of Congress. Actually when section 138 speaks of prudent alternatives it refers to alternatives to the use of parkland for the erection of the bridge at one location or another. The majority generally ignore the fact that the topographical features of the river with the high, steep banks of the Potomac Gorge, when coupled with the existing highways and parklands on both sides of the river, would cause the location of any other bridge that would meet the traffic congestion problem to affect existing parklands in a substantially similar manner to the Three Sisters project. The case is unique in those respects. It is obvious that the viable alternatives would affect parklands substantially to the same extent.
The majority also ignore the fact that the so-called parklands involved on the Virginia side of the river are all in the George Washington Memorial Parkway. Highways have always been an important part of this highway park. The George Washington Memorial Parkway was established by Congress (46 Stat. 482 et seq.) as a narrow elongated parkway along both banks of the Potomac River from Mt. Vernon and Fort Washington to the Great Falls of the Potomac. It parallels the Potomac River from Mt. Vernon to a point above the Great Falls on the Virginia side, except for the City of Alexandria, and from Fort Washington (in Maryland across from Mt. Vernon) to a similar point above the Great Falls on the Maryland side, except within the District of Columbia. One of the congressional purposes in establishing the parkway as a memorial was to provide for the construction of extensive highways within the dedicated area. The legislation also sought to protect and preserve the natural scenery of the Potomac Gorge and the Great Falls of the Potomac, to preserve the historic Patowmack Canal and to acquire that portion of the Chesapeake and Ohio Canal below Point of Rocks (46 Stat. 482-483).
The fact that this park has to a substantial extent, and always has had extensive highways within its confines, makes it practically impossible for any proposed bridge in this area to be erected without affecting some of its lands.
It is thus submitted that (1) the restrictive alternatives occasioned by the topography and location of the parklands, and (2) the nature of the parkland here involved, established by congressional legislation with substantial highways within its confines as one of its principal purposes, make the proposed Three Sisters Bridge a unique problem. It should also be noted that this highway park was established by Congress and that Congress has power by a subsequent act to change it.
In its peroration to Part II the majority opinion attempts to disclaim obvious implications of its decision. However, in so doing, it merely emphasizes the partial and slanted view it takes of the facts. Thus it states they are not suggesting any impropriety in the acts of those who "strongly advocate the bridge"; then next imply that there is some question as to the authority of such persons to exert pressure on Secretary Volpe which resulted in placing the Secretary in such an extremely treacherous position; and then conclude by denying that they are suggesting that Secretary Volpe acted in bad faith or in deliberate disregard of his statutory responsibility. Finally, they set aside the Secretary's finding on grounds which the Secretary testified under oath did not exist and the finding of the trial court supported the Secretary's finding. The result reached by the majority opinion thus contradicts its disclaimers. So whether the majority are implying that the Secretary acted contrary to his statutory responsibilities or not, they end up at exactly the same place as though he had.
However, all of this buys time for the objectors and keeps alive the hope that a new Secretary or a new Council will succumb to pressure and disapprove the project. The majority opinion does not criticize pressure from the objectors and it does not fully state the history of the prior approvals and disapprovals of the project. Originally the Three Sisters Bridge was designated as part of the entire metropolitan freeway project. Nothing in this record indicates that this was not a decision on the engineering merits uninfluenced by any improper pressures. However, in the waning days of an outgoing Presidential Administration, the then Secretary of Transportation on January 17, 1969, three days before a new administration was to take office, deleted the bridge from the Interstate Highway System following disapproval of the bridge project by the District government. The majority do not question the basis of this action, but only attack the reversal of this decision.
Procedure on Remand
In the conclusory paragraph of its opinion the majority suggests that the Secretary establish a "full scale administrative record which might dispel any doubts about the true basis of his action." When members of an appellate panel, for no reason more substantial than their own innate suspicion, elect to disbelieve the sworn testimony of a member of the Cabinet that his final decision was not influenced by outside factors, and also to circumvent the factual finding of the trial court to the same effect, in my opinion, it is not likely that a more extensive administrative record would cause them to believe him in the future. A court that has gone to the great extremes that this court has to reverse the trial court here can always find reasons satisfactory to it for avoiding practically any subjective decision required with respect to the bridge. It may well be that the only hope to carry out the expressed
To the extent that the majority opinion differs from the views hereinbefore set forth, I respectfully dissent and I concur in the remainder.
FAHY, Senior Circuit Judge, with whom BAZELON, Chief Judge, concurs:
Our decision in D.C. Federation of Civic Ass'ns v. Volpe, 148 U.S.App.D.C. ___, 459 F.2d 1231 (1971), issued October 12, 1971, was rendered on appeal by the plaintiffs in the litigation from the decision of the District Court in D.C. Federation of Civic Ass'ns v. Volpe, 316 F.Supp. 754 (1970). In important respects we agreed with the findings of the District Court in that case that the Secretary of Transportation had not complied with certain applicable provisions of Title 23 of the United States Code. We could not agree, however, with the rulings of the District Court that the Secretary in other important respects had met the requirements of Title 23. We accordingly remanded the case with directions that construction of the bridge be enjoined until those requirements are met, as set forth in our opinion.
The plaintiffs had also contended in the District Court that the defendants were required and had failed to comply with statutory provisions other than Title 23, including certain provisions of the Code of the District of Columbia. In rejecting this contention the District Court held that the project had been exempted by Section 23 of the Federal-Aid Highway Act of 1968
The relevant provisions of Title 7 of the D.C. Code are §§ 108, 109, 115 and 122, briefly described in an Appendix to this opinion.
Section 23 of the Federal-Aid Highway Act of 1968 was the legislative response to the administrative decision of certain District of Columbia officials to abandon the bridge project, and in response also to the decision of this court in D.C. Federation of Civic Ass'ns v. Airis, 129 U.S.App.D.C. 125, 391 F.2d 478 (1968), requiring compliance with Title 7 of the D.C. Code, "particularly §§ 7-108 to 7-115." By Section 23, Congress directed that construction of the bridge go forward "notwithstanding any other provision of law, or any court decision or administrative action to the contrary," subject, as we held in D.C. Federation of Civic Ass'ns v. Volpe, 140 U.S.App.D.C. 162, 434 F.2d 436 (1970), to compliance with the applicable provision of Title 23 of the United States Code.
We have not overlooked that appellants also invoke certain provisions of the D.C. Code other than those in Title 7, namely, D.C. Code §§ 1-1005(a), 1407(a)(7) and 8-115, also briefly described in the Appendix to this opinion. We did not include these provisions among those which our October 12, 1971 decision reserved for further consideration. See footnote 2, supra. Nevertheless, we consider them. The issue as to their applicability to the project had been presented to the court in Airis, although they did not surface in the opinion. We think they are also fairly included in the target of Section 23. Even were we to interpret the omission from the Airis opinion of any discussion of these provisions to mean that the court regarded them as applicable to the bridge project we nevertheless think the impact of Section 23 upon these provisions is the same as we have construed its impact to be upon the Title 7 provisions, as above set forth. The language of Section 23, and its history and objective, persuade us that the overriding intention of Congress was also to exempt the project from the necessity of further compliance with these recommendatory and consultative provisions of the local Code.
Clearly one of the objectives of Congress was to have the bridge project go forward promptly. The "notwithstanding * * * any law * * *
We consider finally whether the appellees must comply with 16 U.S.C. §§ 470, 470f, which are part of the United States Code. Only Section 470f is really involved. It provides that in the case of a project such as the Three Sisters Bridge the head of the Federal Agency having direct or indirect jurisdiction, prior to the approval of the expenditure of any federal funds on the undertaking, shall take into account the effect of the undertaking on any site that is included in the National Register of historical sites, and shall afford the Advisory Council on Historic Preservation, established under Title 16, a reasonable opportunity to comment on the undertaking. This provision was not considered in Airis and it is not a local highway statute. It is a part of a national plan to protect historic sites. Section 23 of the 1968 Act was passed, as we understand its purpose, to free the bridge from further planning under the local statutes. We cannot say that Congress also intended to render inapplicable this federal law of general application affecting historic sites. The Secretary of Transportation is a member of the Advisory Council on Historic Preservation created by 16 U.S.C. § 470. Accordingly, if he has not already done so since our decision in D.C. Federation of Civic Ass'ns v. Volpe, 140 U.S.App.D.C. 162, 434 F.2d 436 (1970) — we understand he may already have done so — the Secretary is required to comply with Section 470f before final approval of the project, for areas affected by the bridge project are listed in the National Register.
As to 33 U.S.C. §§ 401, 403 and 525, and 49 U.S.C. § 1655, referred to in footnote 2, supra, apparently appellants and appellees agree that the authorities have complied with these provisions. No issue with respect to them is raised on this appeal.
7 D.C.Code § 108 prohibits the construction of any highway in the District at a width of more than 160 feet.
D.C.Code §§ 7-109, 7-115 and 7-122 require that whenever the D.C. Government proposes a new highway plan, the plan must be the subject of a public hearing with notice given to the affected landowners. A map reflecting the plan shall be prepared and certified to the National Capital Planning Commission for modification and approval, followed by filing and recording with the District Surveyor.
D.C.Code § 1-1005(a) requires any agency of the District Government, when it plans a new highway project, to consult NCPC in an effort to conform agency plans with over-all NCPC planning for the National Capital.
D.C.Code § 8-115 authorizes Federal and District authorities administering U.S.-owned property to transfer jurisdiction over such properties, for purposes of administration and maintenance, among themselves, provided the recommendation of the NCPC is first secured and that all such transfers are reported to Congress.
D.C.Code § 1-1407(a)(7) requires the District to submit its plans for highway projects to WMTA for its review. (This
16 U.S.C. § 470f, requires the Secretary of Transportation to give the Advisory Council on Historic Preservation a reasonable opportunity to comment on plans for an interstate highway project that will affect historic areas in the National Register.
MacKINNON, Circuit Judge (concurring specially and dissenting in part):
I concur in the Supplemental Opinion of Judge Fahy except to the extent that it differs from my prior dissenting opinions in D.C. Federation of Civic Associations v. Volpe, 140 U.S.App.D.C. 162, 434 F.2d 436 (1970) and D.C. Federation of Civic Associations v. Volpe, 148 U.S.App.D.C. ___, 459 F.2d 1231 (Nos. 24838 & 24843, dissenting opinion filed 11/4/71), and to my views herein expressed.
Judge Fahy's opinion at pages 4-5 would have initially exempted the Three Sisters Bridge project from compliance with those provisions that would conflict with the provisions of section 23 of the Highway Act of 1968 so that work on the bridge could have commenced within thirty days. That date having passed he now concludes that compliance with those provisions as had not occurred by the end of the 30-day period does not constitute a condition to the approval or construction of the project. I would express our opinion more affirmatively. In my view the provisions of section 23 of the Highway Act of 1968 effectively eliminated the application of any provisions of the D.C.Code which would conflict with the construction schedule or plans referred to in the Act for —
The Congress clearly incorporated the 1968 District of Columbia Highway Estimate, and whatever it includes, into the law so that its plans, routes, specifications and schedules should be controlling.
Judge Fahy's opinion also concludes that pursuant to Title 16 U.S.C. § 470f, the Department of Transportation should be required to afford the Advisory Council on Historic Preservation a reasonable opportunity to comment with regard to the Three Sisters Bridge project insofar as it may affect any district, site, building, structure or object that is included in the National Register. Section 470f was enacted on October 15, 1966.
This requires the head of any Federal agency having jurisdiction over the Three Sisters Bridge to take into account
An exchange of correspondence included in the record below
ON DENIAL OF REHEARING BY THE DIVISION OF THE DECISION OF OCTOBER 12, 1971
FAHY, Senior Circuit Judge, with whom BAZELON, Chief Judge, concurs:
On December 2, 1971, an order was entered denying appellees' suggestion for a rehearing en banc of the decision of October 12, 1971, which had been rendered by a three-judge division of the court. On the same date the division, consisting of Chief Judge Bazelon, Circuit Judge MacKinnon and myself, also denied a rehearing. Judge MacKinnon who had dissented from the decision of October 12, 1971, would have granted a rehearing. Each of us reserved the right to file later a statement of reasons for our position as to the denial of rehearing. This I now do in brief form.
By §§ 23(a) and (b) of the Federal-Aid Highway Act of 1968, to which reference has been made in the foregoing Supplemental Opinion, Congress provided among other things that the Secretary of Transportation and the District of Columbia should resume construction of the abandoned bridge project as soon as possible after enactment, the construction to be
Work was to commence not later than 30 days after enactment. Work did commence but was brought to a halt by the litigation which questioned whether the construction was being carried out "in accordance with all applicable provisions of title 23 of the United States Code." This court had held in D.C. Federation of Civic Ass'ns v. Volpe, 140 U.S.App.D.C. 162, 434 F.2d 436 (1970), that the applicable provisions of Title 23 included those governing "both the planning and building" of the bridge. This interpretation of the intention of Congress created a conflict with the implications of the intention expressed in the 30-day clause. The difficulty was resolved of necessity by suspension of the work while the questions thus raised were settled. Obviously the substantive provisions of Title 23, involving, inter alia, vital decisions of the Secretary of Transportation, took precedence over the apparently inconsistent time provision. The project could not proceed in disregard of Title 23. Accordingly, our 1970 decision, next above cited, required a remand of the case to the District Court for an expedited hearing with respect to compliance with Title 23. The Government did not seek Supreme Court review of that decision, and it became the law of the case. The soundness of this court's remand was soon manifested by the further proceedings
The situation thus briefly outlined with respect to compliance with the applicable provisions of Title 23 called upon this court to hold that the approval given by the Secretary was, as a legal matter, not in conformity with the applicable statutes, and that the findings and conclusions of the District Court that they were, could not be accepted under the standards of judicial review applied in such a case by the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-415, 91 S.Ct. 814, 28 L.Ed.2d 77 (1971).
It is well to keep in mind that Title 23 of the United States Code is a comprehensive congressional enactment governing the deep involvement of the federal government in the Interstate Highway System, of which the Three Sisters Bridge was to be a part. The provisions of the Title could hardly find a more appropriate place for careful application than in and about the Capital of the nation, especially if a proposed project encroaches upon parklands and historic sites, both subjects of express congressional solicitude. It therefore was quite natural, notwithstanding the desire that the bridge project proceed promptly, for Congress also to require compliance with the applicable provisions of Title 23. It is equally well to note, as the Government points out, that in such a project the Secretary must be permitted to make decisions in what might be called a progressive manner — not everything can be pulled together all at once. But when decisions necessary to final approval are made, such as those required with respect to parklands by Section 138 of Title 23, they must be made conditionally and tentatively, subject to readjustment and reconsideration as the process toward final determination goes forward. And final approval must await and be dependent upon completion of this process.
In thus briefly supplementing our October 12, 1971, opinion, we refer to it in the respects there more fully stated as reasons for our denial of the motion for rehearing.
MacKINNON, Circuit Judge (dissenting):
I dissent from the denial of rehearing of the decision of October 12, 1971 for the reasons expressed in my opinion in that case, filed November 4, 1971.
The majority opinion comments that prior decisions on certain issues have become "the law of the case." While that rule of judicial practice imposes some restriction upon the trial court it does not prohibit the appellate court in a proper case from reconsidering its decision.
However, I concur in the statement expressed at page 1240 of the majority opinion that would allow Government agencies to make decisions conditionally and tentatively in a progressive manner. This conforms to the view expressed in my dissenting opinion filed November 4, 1971 in which I stated that I would permit work to proceed upon the excavation for the piers of the Three Sisters Bridge because Congress has approved the project, the necessary appropriations were available and the excavation is in the nature of a preliminary test since preconstruction borings are not conclusive.
See also SEC v. Chenery Corp., 318 U.S. 80, 87-88, 92-94, 63 S.Ct. 454, 87 L.Ed. 626 (1942), where the Court pointed out, inter alia, that "[i]f an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment." Id. at 88, 63 S.Ct. at 459. Accord, SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); Sunbeam Television Corp. v. FCC, 100 U.S.App.D.C. 82, 243 F.2d 26 (1957) (Fahy, J.); Chae-Sik Lee v. Kennedy, 111 U.S.App.D.C. 35, 294 F.2d 231 (1961).
It might be argued that a remand would be futile here since the agency can only repeat the process it purports already to have undertaken: namely, considering the project solely on its merits. While we agree that a remand would be academic if the agency would inevitably arrive at the same result, NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766-767 n. 6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969); Friendly, The "Limited Office" of the Chenery Decision, 21 Ad.L.Rev. 1, 5 (1968), it seems entirely possible that the agency could reach a different result if it could insulate itself from extraneous pressures unrelated to the merits of the question. On remand, the agency will have an opportunity to take steps to achieve the insulation required by statute and long-established principles of administrative law, perhaps by compiling a full-scale administrative record, utilizing fully intra-agency review procedures, and consulting with other agencies and planning groups.
Oestereich v. Selective Service Bd. No. 11, 393 U.S. 233, 241, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968) (Harlan, concurring), is to the same effect.
82 Stat. 827 (1968).