Citizens To Preserve Overton Park, Inc. v. Volpe , 432 F.2d 1307 ( 1970 )

WEICK, Circuit Judge.

The present action was brought by plaintiffs, Citizens to Preserve Overton Park (a corporation organized for the purpose its name implies), William W. Deupree, Sr. (a taxpayer), Sunshine K. Snyder (a taxpayer and owner of property affected by the proposed highway route), the Sierra Club (a nonprofit corporation organized for conservation of natural resources), and the Audubon Society, Inc. (also a conservation organization). The defendants are John A. Volpe, Secretary of Transportation, and Charles W. Speight, Commissioner of the Tennessee Department of Highways.¹

The plaintiffs, claiming that Secretary Volpe had not complied with statutory mandates before releasing federal funds for an interstate highway and that administrative procedures had not been substantially followed, sought injunctive relief against Secretary Volpe prohibiting him from releasing federal funds (which represent 90% of the total cost) for the construction of a section of Interstate 40 through Overton Park, a public park in Memphis, Tennessee, and also enjoining Commissioner Speight from proceeding further on the proposed segment of the highway through Overton Park.²

The District Court granted defendants’ motion for summary judgment. 309 F.Supp. 1189 (W.D .Tenn.1970). The plaintiffs appealed. We affirm.

Overton Park is a 342 acre, municipally owned park in midtown Memphis used for a zoo, a 9-hole golf course and other recreational purposes. The proposed section of the interstate highway extends in an east and west direction through the Park over the presently existing paved, non-access highway used by diesel buses which is approximately 4,800 feet in length. The existing highway is 40 to 50 feet wide. The proposed interstate will consist of six lanes — three running in each direction, separated by a median strip approximately 40 feet wide. The interstate right-of-way will vary from approximately 250 feet in width to approximately 450 feet in width, and will require the use of approximately 26 acres of the Park. The proposed design requires that a large portion of the highway be depressed sufficiently to remove traffic from the sight of users of the Park, however, five or six feet of fill will be required where a creek runs across the right-of-way. A 1200 foot access ramp will be located within the eastern end of the park.

Because this case is on appeal from a summary judgment, the only question is whether there remains a genuine issue over any material fact in dispute. Appellants argue that there are several material facts which are genuinely disputed. They contend that it is disputed whether the Secretary made the determinations required by law before authorizing the release of federal funds.³ Appellants also argue that administrative procedures were not followed because of failure to include in the notice of a public hearing any provision for the submission of written statements.

When considering a motion for summary judgment a court is required to “construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent’s are indulgently treated.” Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962). If, after having done that, the court is able to say there is no genuine issue as to any material fact, summary judgment is appropriate.

Although a court must be hesitant to grant summary judgment, cases challenging administrative action are ripe for summary judgment. See, e. g., Todaro v. Pederson, 205 F.Supp. 612, 613 (N.D.Ohio 1961), aff’d 305 F.2d 377 (6th Cir.), cert. denied 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124 (1962). Unlike civil actions originating in the District Court, litigants challenging administrative action are not entitled to a de novo hearing. See, e. g., Dredge Corp. v. Penny, 338 F.2d 456, 462 (9th Cir. 1964). Rather, in such cases the court ntus^ determine whether the administrator’s decision was arbitrary and capricious. 5 U.S.C. § 706(2) (A).⁴

In addition to the narrow scope of review of administrative action, plaintiffs are faced with the additional burden of overcoming a presumption of regularity afforded the acts of an administrator. See Goldberg v. Truck Drivers Local Union No. 299, 293 F.2d 807, 812 (6th Cir.), cert. denied 368 U.S. 938, 82 S.Ct. 379, 7 L.Ed.2d 337 (1961); Nolan v. Rhodes, 251 F.Supp. 584, 587 (S.D.Ohio 1965), aff’d 383 U.S. 104, 86 S.Ct. 716, 15 L.Ed.2d 616 (1966). The presumption of regularity is a particularly strong one. See, e. g., Braniff Airways, Inc. v. C. A. B., 126 U.S.App.D.C. 399, 379 F.2d 453, 460 (1967). This, of course, does not relieve the party moving for summary judgment from the burden of showing that there remains no dispute concerning any material facts It does, however, affect the type of evidence required to carry his burden. It also makes clear that a party opposing summary judgment must do more than merely assert that the administrator’s actions were unlawful. He must be able to show by affidavit, or other evidence, that there is at least a possibility that he will be able to overcome the presumption of regularity. 379 F.2d at 462.

In this ease, the threshold question is whether the Secretary made the proper determinations at all, let alone whether those determinations were arbitrary and capricious.

Congress has declared it a national policy to preserve parklands and has forbidden the Secretary to approve a project which affects a park unless he first determines “(1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park * * * result from such use.” 49 U.S.C. § 1653(f).⁵

Appellants urge that there is no evidence that the Secretary ever made the necessary two findings before authorizing the release of funds.

There is no requirement in the statute that the Secretary articulate his findings. Nor are we free to impose such a requirement on him. See Braniff Airways, Inc. v. C. A. B., supra at 460.

We are of the opinion that the moving party introduced competent evidence tending to prove that the necessary determinations were made by the Secretary.

An affidavit was submitted on behalf of the Secretary by Edgar H. Swick. Swick was Deputy Director of Public Roads ⁶ and therefore could give competent evidence from his personal knowledge concerning the necessary determinations.⁷ Mr. Swick attested that the original decision with respect to the route was made in 1956 by the Bureau of Pub-lie Roads. Although the relevant statutes dealing with parklands were not in force in 1956 and, therefore, it is unlikely that the Bureau had specifically in mind the necessary requirements, subsequent determinations were made reaffirming the original decision to route along the bus highway. Mr. Swick attested :

“The location of 1-40 along the bus route through Overton park was approved by the Bureau of Public Roads in 1956. All alternate alignments were rejected because of large displacements of persons, hospitals, schools, churches, and commercial establishments. For instance, the route immediately north of the park would have involved the taking of three schools, including Southwestern University and the largest high school in Memphis, plus churches attended by 4,000 people, industries, and the residences of more than 1,500 people. The route south of the park would have involved taking two schools, three churches attended by 7,500 people, 46 commercial establishments, residential units being occupied by over 3,000 persons and a hospital and home for the aged. Incidentally, the construction and right-of-way costs of the least expensive of these alternate routes would exceed the costs of the chosen route by many millions of dollars.

“The 1956 determination that the only feasible and prudent location for the highway was on the present bus route through the park was reaffirmed by Federal Highway Administrator Whitton in 1966, [Exhibit A], Federal Highway Administrator Bridwell and Secretary of Transportation Boyd in 1968, [Exhibit B], and Federal Highway Administrator Turner and Secretary of Transportation Volpe in 1969, [Exhibit C] * *

The exhibits referred to consist of press releases and correspondence between various officials of the state and federal governments. Appellants challenge the admissibility of these documents. These documents were admissible to show what was considered by the Secretary when he made his determinations. Mr. Swick’s assertions that the necessary determinations were made and the reasons therefor are unchallenged by any evidence, and there is nothing to indicate that his statements could be disputed at a trial. With respect to the routing of the road, it is clear that the Secretary made the determinations required by law.

In addition to the valid reasons for choosing the route listed in the affidavit, Mr. Swick went on to point out that as of 1967, prior to the time Secretary Volpe took office, all of the right-of-way leading up to either side of the Park had been acquired and substantial work had been done. The right-of-way through the Park had also been acquired by the state from the City of Memphis, though no work on it has yet been done.⁸ As of the time of this ease, the interstate route had been excavated up to either end of the park with the resulting disruption of homes and businesses that necessarily result whenever a major highway is routed through a city. See Nashville I-40 Steering Committee v. Ellington, 387 F.2d 179, 185 (6th Cir. 1967), cert. denied 390 U.S. 921, 88 S.Ct. 857, 19 L.Ed.2d 982 (1968). If it were not determined that a new route be chosen (the only suggested alternatives ⁹ include businesses and residences) not only would there be additional disruption, but that already caused would have been futile and wasteful. Even assuming that the Secretary was not aware of this condition, the court could not ignore the social and economic impact of changing the route at this late date. See Road Review League, Town of Bedford v. Boyd, 270 F.Supp. 650, 664 (S.D.N.Y.1967).¹⁰

Appellants argue that they have introduced evidence which tends to dispute the fact that the Secretary ever made a determination that there were no feasible and prudent alternatives. Specifically they submitted as an exhibit, the testimony of Lowell K. Bridwell, the former Federal Highway Administrator who approved the route in 1968, to a Congressional committee with respect to his approval.

“We went to the city council of Memphis and we said, ‘Yes, there are alternatives. We won’t even give you any information on what the alternatives cost in dollars because we don’t want that to be a factor in your recommendation of which line to choose. Rather, we would like you to focus upon the conflicting set of community values that are inherent in this kind of a situation.’ ”

Appellants contend that the Secretary merely delegated his duty to the Memphis City Council by allowing it to choose the route.

In our opinion, the testimony of Mr. Bridwell is further evidence that the Secretary complied with the statute. The legislative history of the statute makes it clear that local preferences are to be considered :

This amendment of both relevant sections of law is intended to make it unmistakably clear that neither section constitutes a mandatory prohibition against the use of the enumerated lands, but rather, is a discretionary authority which must be used with both wisdom and reason. The Congress does not believe, for example, that substantial numbers of people should be required to move in order to preserve these lands, or that clearly enunciated local preferences should be overruled on the basis of this authority. 1968 U.S.Code Cong. & Adm. News at p. 3538.

Appellants contend that the Secretary did not determine that the approved plan included “all possible planning to minimize harm” to the Park. Appellants argue that there are at least three designs which are possible and which would minimize harm to the Park: a bored tunnel, a cut and cover tunnel or a highway depressed below the ground level.

The affidavit of Mr. Swick mentions all of these possibilities and the reasons for rejecting them. It is unnecessary to go into elaborate detail. However, it is basically undisputed that instead of the estimated $3.5 million cost of the present design, a cut and cover tunnel would cost approximately $41.5 million and a bored tunnel over $100 million. While not controlling on whether these designs are possible, cost is certainly a legitimate consideration. Mr. Swick’s affidavit also attests that not only would there be a huge price differential, but the benefits to be gained would be minimal. The Park’s vegetation would not be preserved; there would be air pollution problems at the tunnel vents; there would be additional traffic hazards; and there would be serious drainage problems caused by depressing the road beneath the level of a creek that runs across the proposed right-of-way.

The affidavit makes it clear that the Secretary was fully aware of the alternative designs and chose the one now in effect. Other than appellants’ bald assertion that the Secretary did not make such a finding, the evidence points to the fact that the Secretary did determine that the proposed design included “all possible planning to minimize harm” to the Park. By introducing affidavits tending to show alternative designs, appellants really raise the issue of whether there is a genuine dispute that the Secretary’s determination was arbitrary and capricious. Whether the Secretary’s determination that the proposed plan included “all possible planning to minimize harm” to the Park depends on an interpretation of the word “possible.” It would be unrealistic to say the Secretary must approve any possible plan no matter what the cost and engineering problems compared to whatever minimal gains. “Possible” must be interpreted within the bounds of wisdom and reasonableness.

The District Court was correct that it cannot hear de novo the determination of the Secretary. In another case involving a section of this same interstate highway, this Court has cited Berman v. Parker, 348 U.S. 26, 35, 75 S.Ct. 98, 104, 99 L.Ed. 27 (1954), where the Supreme Court held: “It is not for the courts to oversee the boundary line nor sit in review on the size of a particular project area.” Nashville 1-40 Steering Committee v. Ellington, supra, 387 F.2d at 185. This holding applies with equal force to the design for the highway. The pleadings, affidavits and exhibits in this case make it clear that there is no factual dispute about what design was chosen and what the alternatives were. The only issue is the wisdom of the choice. Under these facts, the District Court, in our opinion, was justified in holding that the necessary determinations required by the statutes were made in good faith by the Secretary and that such determinations were not arbitrary or capricious. A trial on the issues would be an exercise in futility.¹¹

Appellants contend that there was not substantial compliance with the requirements for a public hearing. 23 U.S.C. § 128 requires a state submitting plans for a federal-aid highway to conduct a public hearing and to forward a transcript of the hearing to the Secretary along with a certification by the state highway department that it “has considered the economic and social effects of such a location [of a road through a city], its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community.” Relative to the notice for such hearing, the Department of Transportation issued Policy and Procedure Memorandum 20-8, 23 C.F.R., Chap. I, part. 1, § 8, which provides in relevant part:

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

It is undisputed fact that the Tennessee Highway Department gave notice of a public hearing to be held on May 19, 1969, but that the notice failed to contain any provision for the submission of written statements. It is also undisputed that written statements were submitted.¹² Appellants are unable to cite a single instance in which an interested party was deprived of an opportunity to be heard, nor are they able to indicate any additional information that was not submitted at the hearing as a result of the deficiency in the notice. In dealing with errors committed by administrative agencies we are required to take due account of the rule of prejudicial error. 5 U.S.C. § 706; see, e. g., Braniff Airways, Inc. v. C. A. B., supra, 379 F.2d at 465-466. We are in accord with the District Court that the failure to include a method by which to submit written statements was, on the facts of this case, harmless error.

We do not read D. C. Federation of Civic Associations, Inc. v. Volpe, 434 F.2d 436 (D.C.Cir. 1970) to dictate a different result. In that case no hearing at all had been provided for, while in the present case there was a very adequate hearing.

Other issues have been raised which we considered but do not deem them as meriting discussion.

The injunction pending appeal is dissolved and the judgment of the District Court is affirmed.

1 . The action was originally filed in the United States District Court for the District of Columbia solely against Secretary Volpe. Before the motion for preliminary injunction and the motion to dismiss were decided, the action was transferred to the United States District Court for the Western District of Tennessee where Commissioner Speight was made a defendant.

2 . While there may be some question whether the District Court had jurisdiction to enjoin Commissioner Speight, in view of our disposition of the case, it is unnecessary to decide that issue. There are cases indicating that there is jurisdiction. Nashville 1-40 Steering Committee v. Ellington, 387 F.2d 179 (6th Cir. 1967), cert. denied 390 U.S. 921, 88 S.Ct. 857, 19 L.Ed.2d 982 (1968) ; Road Review League, Town of Bedford v. Boyd, 270 F.Supp. 650, 663-664 (S.D.N.Y.1967). It may well be doubted, however, whether the District Court could properly enjoin Commissioner Speight if the state desired to use its own funds to construct the highway on its own property.

3 . Release of the funds was enjoined by order of this Court pending disposition of the appeal.

4 . The Administrative Procedure Act is made applicable to actions of the Department of Transportation by 49 U.S.C. § 1655(h).

5 . The text of 49 U.S.C. § 1653(f) in full is as follows:

It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State or local signifieance as determined by the Federal, State, or loeal officials having jurisdicdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.

This same provision is contained in 23 U.S.C. § 138.

6 . The Bureau of Public Roads, originally a part of the Department of Commerce, was transferred to the Department of Transportation in 1967. 49 U.S.C. § 1655.

7 . The Secretary is authorized to act through delegates. 49 U.S.C. § 1657(e) (1).

8 . The state paid the City $2,000,000 and acquired the legal title to the strip of land consisting of 26 acres by deed. The state paid the City an additional $209,000 to construct additional parking areas, to move a wooden pavilion, and to relocate various utilities. The City was required by ordinance to replace any parklands taken with additional parks. The City has spent $1,000,000 of these funds for a 160 acre golf course; $209,000 will be spent on the zoo, and the balance of $1,-000,000 is required to be expended for other parklands.

9 . The fact that alternative routes can and have been suggested goes to the issue of the reasonableness of the Secretary’s decision. We have indicated in the text that alternatives would now be unreasonable on the facts of this ease. A discussion of reasonableness as a disputed fact is included infra.

10 . The legislative history of the statute is revealing:

The committee would further emphasize that while the areas sought to be protected by section (4) (f) of the Department of Transportation Act and section 138 of title 23 are important, there are other high priority items which must also be weighed in the balance. The 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 protected and with damage minimized by the most sophisticated construction techniques is to be preferred to the movement of large numbers of people. 1968 TJ.S.Code Cong. & Adm. News at p. 3500.

11 . The case of Medical Committee for Human Rights v. Securities and Exchange Commission, 432 F.2d 659 (D.C.Cir.1970), relied on in the dissent, involved the question whether a decision of the Commission relating to proxy material was actually subject to judicial review. It does not support the thesis of the dissent that the Secretary of the Department of Transportation, whenever he approves the location, design and construction of a highway must adopt findings of fact and conclusions of law. These matters, in our judgment, involve the exercise of discretion and are reviewable only when they are “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. §706(2) (A).

Nor do we believe that the District Court abused its discretion by not permitting discovery for the purpose of probing the mental processes of the Secretary in arriving at his decision. United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941) ; Braniff Airways, Inc. v. C.A.B., 126 U.S.App.D.C. 399, 379 F.2d 453, 462 (1967).

12 . Written statements were specifically requested and received from witnesses whose testimony was not recorded because of a failure of the recording device. The 1969 hearing was on the design. About 40 statements were filed after the hearing. A corridor hearing was held in 1961. Both hearings were well attended. Both corridor and design were approved by federal, state and city authorities.