D.C. Federation of Civic Associations, Inc. v. John A. Volpe ( 1970 )

J. SKELLY WRIGHT, Circuit Judge:

This suit concerns the interpretation of Section 23 of the Federal-Aid Highway Act of 1968.¹ In that section Congress directed the District of Columbia government and the Secretary of Transportation to construct certain of the remaining portions of the Interstate Highway System in the District. Among the projects mentioned in the Act was the Three Sisters Bridge, a proposed span across the Potomac River upstream from Key Bridge crossing from Spout Run in Virginia to the Georgetown section of Washington.

The Act became law with the signature of the President on August 23, 1968. In September of 1969 the District let the first contracts for building the Three Sisters Bridge. Taxpayers and civic associations in the District brought this suit in October of 1969 for a declaratory judgment and for injunctive relief. Appellants alleged that the Secretary of Transportation and the District government were building the Bridge in violation of several provisions of Title 23 of the Únited States Code.

After an expedited hearing the District Court refused to grant the injunction and granted summary judgment for appellees. The court concluded that appellants’ allegations of violations of Title 23 would not be considered because “Congress intended [by enacting Section 23] that the District of Columbia commence construction on the Bridge project as soon as possible, and that no further planning or hearing requirements of Title 23 need be complied with.” ² Because we do not find that Congress intended to deny the residents of the District of Columbia the protections accorded all United States citizens by Title 23, we reverse the decision of the District Court and remand the cause for hearings to determine whether there has been compliance with Title 23 in this case.

I

Section 23 of the Federal-Aid Highway Act of 1968 provides as follows:

DISTRICT OF COLUMBIA

Sec. 23. (a) Notwithstanding any other provision of law, or any court decision or administrative action to the contrary, the Secretary of Transportation and the government of the District of Columbia shall, in addition to those routes already under construction, construct all routes on the Interstate System within the District of Columbia as set forth in the document entitled “1968 Estimate of the Cost of Completion of the National System of Interstate and Defense Highways in the District of Columbia” submitted to Congress by the Secretary of Transportation with, and as a part of, “The 1968 Interstate System Cost Estimate” printed as House Document Numbered 199, Ninetieth Congress. Such construction shall be undertaken as soon as possible after the date of enactment of this Act, except as otherwise provided in this section, and shall be carried out in accordance with all applicable provisions of title 23 of the United States Code.

(b) Not later than 30 days after the date of enactment of this section the government of the District of Columbia shall commence work on the following projects:

(1) Three Sisters Bridge, 1-266 (Section B1 to B2).

(2) Potomac River Freeway, I-266 (Section B2 to B4).

(3) Center Leg of the Inner Loop, 1-95 (Section A6 to C4), terminating at New York Avenue.

(4) East Leg of the Inner Loop,

1-295 (Section Cl to C4), terminating at Bladensburg Road.³

Appellees argue strenuously that Section 23 was intended to eliminate the necessity for compliance with the “pre-construction” provisions of Title 23 of the United States Code in building the Three Sisters Bridge. Specifically, appellees urge that, despite the explicit statement in Section 23 that “all applicable provisions” of Title 23 are to govern the project, the following sections of Title 23, while applicable to similar projects throughout the country, are inapplicable to the Three Sisters Bridge project⁴: (1) 23 U.S.C. § 128(a) (Supp. IV 1965-1968), which requires any state⁵ building a federally financed road to hold public hearings as to design and location of any proposed highway or bridge, and to consider the “economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community”;⁶ (2) 23 U.S.C. § 134 (1964), which requires the Secretary of Transportation to withhold approval of new highway projects unless and until he has made an explicit finding that “such projects are based on a continuing comprehensive transportation planning process carried on cooperatively by States and local communities in conformance with the objectives stated in this section”; and (3) 23 U.S.C. § 138 (Supp. IV 1965-1968), which requires the Secretary of Transportation to withhold approval of projects involving the use of park land “unless there is no feasible and prudent alternative to the use of such land, and * * * such program includes all possible planning to minimize harm to such park * * * resulting from such use.”

If we were to accept appellees’ inter-, pretation of Section 23, we would be confronted with difficulties, possibly of constitutional magnitude. The provisions listed above are the essential safeguards which Congress has established, on a nationwide basis, to ensure that massive freeway projects are not constructed unless there has been a good faith effort on the part of the state and local planners to take community needs and resources into consideration. Congress has directed the planners to design projects consistent with growth and development patterns, to refrain from any unnecessary destruction of valuable state or local park land, and, most importantly, to accord area residents a full and fair hearing. The Secretary of Transportation is charged with overseeing the planning and may not approve road projects, thus allowing them to be built with federal funds, until he finds that all these considerations have been properly taken into account.

The net effect of Section 23, construed as appellees insist it must be, is to divide citizens of the United States affected by road projects into two classes. One small group of citizens, the residents of the District of Columbia who will be affected by the Three Sisters Bridge, is deprived of these important rights to participate in planning the future of the community. The other class, consisting of all residents of the 50 states, still retains these federally guaranteed rights to influence all federally assisted road building. On its face, therefore, appellees’ interpretation of Section 23 would result in discrimination between the District residents affected by the Bridge and all other residents of the United States affected by highway projects in their localities.

The finding of such a discrimination, however, must be only the starting point of our inquiry. In the constitutional sense, many discriminations are simply benign. The question remains whether this discrimination is based on an invidious classification between groups of citizens which rises to the level of a violation of the equal protection clause of the Constitution.⁷ We find that appellees’ interpretation of Section 23 would endanger its constitutionality. We reject that interpretation to save the statute.'

We start our analysis by explicitly recognizing, as the Supreme Court has announced on many occasions, that it is not every legislative discrimination between similarly situated groups which is violative of equal protection guarantees.⁸ The legislative branches of government, state and federal, must be given great freedom in choosing how to overcome a designated evil. The latitude given the legislature in enacting schemes of economic regulation has been especially broad.⁹

But while eschewing a close review of economic regulation, the Court has explicitly stated that it will apply “strict scrutiny,” ¹⁰ a much more searching standard of review, when “individual and personal”¹¹ or “fundamental”¹² rights are involved. As the Court recently explained, in economic regulation cases “the Court has merely asked whether there is any rational foundation for the discrimination, and has deferred to the wisdom of the state legislatures.”¹³ When fundamental and personal rights are at stake, however, the statute can only be sustained by meeting “the very heavy burden of justification.” ¹⁴ In at least some of these cases the discrimination “must be shown to be necessary to the accomplishment of some permissible state objective” ¹⁵ (emphasis added) if the statute is to pass constitutional muster.¹⁶ We think that the interpretation of Section 23 which appellees urge would unnecessarily deny District residents important personal rights granted by Title 23 to citizens elsewhere in the United States.

All provisions of Title 23 discussed above were enacted primarily for the benefit of the local residents whose homes and lives may be affected by a national highway construction project. These provisions were designed to keep federally assisted highways from encroaching on local parks, from being located except in accordance with an inter-community scheme of comprehensive planning, and to make sure that state planning officials are apprised of the nature and depth of local residents’ feelings about the wisdom of a particular project. The legislative history of the hearing provision as it was originally enacted 20 years ago shows that Congress was concerned lest state and federal planners, thinking only of the needs of an efficient and fast nationwide highway network, fail to consider the specific particularized needs of the local communities affected by the projects.¹⁷ As a result Congress required each state to hold public hearings at which the affected residents could demonstrate, in an orderly, regularized procedure, the community’s particular requirements which the planners ought to take into account.

This hearing requirement applied to all federally aided highways. Just recently, as part of the Federal-Aid Highway Act of 1968, Congress again explicitly broadened the scope of the required hearing.¹⁸ The present statute,¹⁹ as interpreted by the Secretary’s regulations,²⁰ now requires the states to hold both location and design hearings. Furthermore, the statute requires the states to have “considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community.”²¹ This history shows a long-standing and ever increasing congressional concern that highway planners be directly and publicly confronted with opposing views, to ensure that the planners take close account of the objections and desires of individual citizens affected by the proposed projects during the planning process.

Given this expression of legislative intent, we cannot say that this right of citizen participation in the highway planning process is an unimportant right, easily to be discarded. Those who are concerned with and most immediately affected by federal highway projects have been accorded an opportunity to both commend and criticize planned highway construction projects, projects which are inherently disruptive of the status quo in any community. According to appellees, however, Congress, while broadening (in the Highway Act of 1968) this federally enforced right to a hearing, has at the same time deprived one small group, the citizens of the District of Columbia, of this right to be heard.

These provisions of Title 23 are the only form of direct citizen participation in decisions about the construction of massive freeways, decisions which may well have more direct impact on the lives of residents than almost any other governmental action. Public hearings are the forum ordained by Congress in which citizens, particularly the citizens of the District of Columbia, participate in highway planning decisions. The Supreme Court has made it clear in a series of cases that the right of effective participation in the political process “is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”²² These rights, according to the Court, are “individual and personal,” ²³ they touch a “sensitive and important area of human rights,” ²⁴ and they involve the “basic civil and political rights” ²⁵ of citizens. Any classifications which “might invade or restrain” these “fundamental rights and liberties * * * must be closely scru-’ tinized and carefully confined.”²⁶

We think these Supreme Court decisions must guide our analysis of the language of Section 23. The preservation of a democratic form of government requires all concerned to protect the right of each citizen to influence the decisions made by his government. Since this case involves the right of citizens to participate in the political process as it relates to federal highway projects, w« subject this statute to the same scrutiny we would apply to any legislative effort to preclude some, but not all, citizens’ participation in decision making.²⁷

We of course recognize that the right to participate in a highway hearing is not the exact equivalent of the right to vote on the project. However, the similarities between voting and the public hearing are strong. The purpose and the effect of a hearing may be the same as those of a vote. Both are designed to elicit the wishes of the “electorate.” Furthermore, we take judicial, notice of the fact that public hearings have oftentimes resulted in the abandonment or redesign of ill conceived projects.

Presumably Congress could have given citizens affected by federal highway projects the right to vote thereon ²⁸ Instead Congress has sought to channel the comments and criticisms of individual citizens concerning road projects into a public hearing. This formal, regularized procedure, with due notice to all concerned, subjects officials to the differing views of competing interest groups and forces them to take account of prevailing views while the project plans are still being formulated.²⁹ Clearly Congress would not have insisted on such a procedure unless it intended to expose the road builders quite closely to the direct participation of citizens in the formulation of their decisions, in accord with the theory of our democratic process. Since these road projects may irreparably affect or destroy basic rights —for example, the basic right of a citizen to live in his home — we must carefully and meticulously scrutinize any proposal which would deny to some the federally created right to influence the course of a highway in their neighborhood to determine whether this discrimination is “necessary to the accomplishment” of the congressional objective — a federally financed interstate highway system.

Appellees argue that Congress intended by enacting Section 23 to bypass the hearing process because hearings would only expose community sentiment adverse to the construction of the Bridge, and that Congress intended that the Bridge be built irrespective of the wishes of the citizens of the District of Columbia. Appellees further argue that to allow a public hearing would cause the local authorities to delay the Bridge, and that Congress meant to preclude hearings for this reason as well.

Such a reading of the statute would condemn it as unconstitutional. A legislature may not constitutionally disenfranchise a group of citizens because of their expected views: “ ‘Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible. ‘[T]he exercise of rights so vital to the maintenance of democratic institutions,’ * * cannot constitutionally be obliterated because of a fear of the political views of a particular group of bona fide residents.” Carrington v. Rash, 380 U.S. 89, 94, 85 S.Ct. 775, 779, 13 L.Ed. 675 (1965).

In addition to giving closer review to classifications involving individual rights, the Court has also imposed a higher burden of justification on some forms of classification which are “constitutionally suspect” ³⁰ or “traditionally disfavored.” ³¹ If we were to accept appellees’ reading and interpretation of Section 23, Congress would have excluded from the statutory protection only one group, a totally unrepresented and voiceless minority of citizens. Any legislative classification which singles out for invidious treatment a small group of citizens totally excluded from the political process does not meet the usual deference from this court. The usual deference which courts accord legislative and administrative judgments stems from the confidence which courts have that these judgments are just resolutions of competing interests.³² In the Carolene Products ease, the Supreme Court pointedly raised the question “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” ³³

Because the resulting classification would deprive only an already voiceless minority of its important personal right to contest disruptive highway projects enjoyed by citizens generally, we conclude that we would be hard pressed to find on this record reasons adequate to sustain the “heavy burden of justification” necessary to support the discrimination which would result from appellees’ interpretation of Section 23. Appellees argue that “justification” in this case stems from Congress’ desire to have the Bridge built as soon as practicable. However, if this were found to be the intent of Congress, we would have to consider whether a less burdensome alternative path to the same end might have been possible.³⁴ For example, Congress might have obtained speedy construction, and preserved the rights of citizen participation and comment, simply by requiring that all hearings and Title 23 determinations be concluded with reasonable promptness. Other possible “justifications” may be dredged up from the legislative history of the statute in an attempt to balance off the invidiousness of the discrimination for which appellees contend. We do not stop to search them out because we are convinced that appellees’ position that Congress intended such discrimination is unsupported by the language and history of the statute.

II

Considering the statute as it was written, we do not read Section 23 as foreclosing the orderly procedures prescribed by Title 23. Appellees’ primary argument to the contrary is that the statute directs “construction” of all the Interstate projects in the District. On the four projects mentioned in Section 23(b), including the Three Sisters Bridge, “work” was to commence within 30 days. Appellees attempt to draw a negative inference from Congress’ assurance that “construction” was to be carried out in accordance with “all applicable provisions” of Title 23. Since, appellees argue, Congress only said that “construction” was to be in accordance with Title 23, it must have meant that all “pre-construction” provisions of Title 23 were . somehow repealed as to these projects in the District of Columbia. We cannot agree. To our mind, any repeal of the provisions of Title 23 would have to be supported by more substantial evidence. Moreover, our interpretation conforms with the language of the statute read in the light of Title 23 which shows that “construction” includes planning.³⁵ We hold that Title 23 applies to all phases of the Three Sisters Bridge project.

The authoritative legislative history supports our interpretation.³⁶ The Senate and House reports do not indicate that any provisions of Title 23 are not to apply.³⁷ (The Conference Report contains no analysis of the bill as passed.³⁸) We fully recognize that it is not without risk to rely on the remarks of individual members of Congress for legislative history.³⁹ Nevertheless, we think it noteworthy that we have been able to find no statement during the floor debate by a proponent⁴⁰ of Section 23 indicating that any or all provisions of Title 23 were not to be applied in planning and building the Bridge. Indeed, the only discussions of the issue clearly .indicate support of our interpretation from those supporting Section 23. For example, Representative Cramer, a leading proponent of Section 23, explicitly stated that the City Council could hold further hearings to determine route locations and designs, within the broad “corridors” established by Congress ⁴¹ Senator Randolph gave his word to the Senate that

Section 317 of Title 23 would be in effect for a specific project mentioned in Section 23(b) of the Act.⁴² We also take note of the fact that when the bill was passed the Secretary of Transportation also interpreted Section 23 as we do today.⁴³ The contemporaneous construction of a statute by one charged with its enforcement is entitled to great weight from this court.⁴⁴

Appellees have urged that it would be futile to hold hearings or to require the Secretary to make the determinations called for by the statute in light of the finality of the location and design plans which Congress is said to have prescribed for the District, Congress, however, only directed construction of the routes “as set forth” in certain cost estimates. These cost estimates by their own terms did not constitute final route placements.⁴⁵ They only located a “corridor” within which roads were proposed.⁴⁶ The preface to the cost estimates document carefully explained that the routes were laid out only for the purpose of approximating costs, and that the cost figures there presented were based on the “least costly” of “several feasible alternatives which will serve the function of the designated route.”⁴⁷ Therefore, we find no indication in the record before us that, as appellees contend, a public hearing or Title 23-re-quired action by the Secretary would serve no useful purpose.

Congress has directed that a bridge be built over the Potomac following the general configurations laid out in the cost estimates. But there are still many variations of bridge design and location (particularly in relation to the placement of the access ramps) which could be adopted and still be consistent with the congressional mandate. Given the forum of a public hearing, citizens may well be able to offer constructive alternatives to the final proposals produced by the District officials, alternatives which more effectively minimize dislocation in the historically important Georgetown area.⁴⁸ In like manner, the Secretary, when required to make the determinations called for by Title 23, may well find that other feasible routes, or a tunnel, destroy fewer acres of valuable park land.

Appellees contend that construing the statute as we do to allow flexibility to federal and District officials in formulating the final plans does violence to the “ [notwithstanding * * *” language of the statute. We disagree. Several years ago a suit was brought by some of the plaintiffs in this action to block construction of the Three Sisters Bridge and other highway projects because the District had not complied with District and federal highway laws governing the planning and construction of the projects. This court, in D. C. Federation of Civil Associations, Inc. v. Airis,⁴⁹ held that the District could not construct any future freeways without complying with-the relevant provisions of the District of Columbia Code. Our decision did not prevent the District from participating in interstate construction projects. The District government was free to build the freeways simply by holding the required hearings and complying with the other provisions of the law. However, instead of moving forward with the Three Sisters Bridge, the District government apparently decided to abandon the project altogether. The City Council took no further action in relation to the Bridge; the National Capital Planning Commission disapproved of the project; and finally the Secretary of Transportation deleted the Bridge from his comprehensive maps of the Interstate System for the District.

Congress reacted to the District government’s inaction on highway construction by ordering a bridge to be built “ [n] otwithstanding any other provision of law, or any court decision or administrative action to the contrary.”⁵⁰ There can be little doubt that it was Congress’ intent to countermand the District government’s “administrative action” which had stopped further interstate construction. But nothing in the statute indicates that Congress intended the Bridge to be built contrary to its own laws. In essence, then, Section 23 amounts to a direction from Congress to the relevant District and federal officials to continue with the bridge and highway plans they had been formulating prior to the Airis decision.

We hold that Section 23 requires that both the planning and the building of the Three Sisters Bridge comply with all applicable provisions of Title 23. Since the District Court ruled otherwise, we remand the case to the District Court for an expedited evidentiary hearing to determine whether appellees have in fact complied with the provisions of Title 23. ■

In aid of the remand we feel it appropriate to comment on the meaning of the hearing requirement of 23 U.S.C. § 128. Of course, it will be for the District Court to determine, after hearing all the evidence, whether the six-year-old hearings alluded to in the papers before us satisfy the requirements of Title 23. However, it should be made clear that the Secretary’s regulations ⁵¹ implementing Section 128 apply to this Bridge project. The basic requirement is that both a location hearing (held “before the State highway department is committed to a specific proposal”) and a design hearing (held “after the route location has been approved, but before the State highway department is committed to a specific design proposal”) must be scheduled.⁵² The regulations make specific provision for projects like this one on which some hearings have been held before the effective date of the regulations.⁵³ Since the regulations apply by their terms and since in promulgating the regulations the Secretary made reasonable provisions for those projects which had been the subject of hearings before the effective date of the regulations, we see no reason not to apply these regulations to this case.⁵⁴

Reversed and remanded for proceedings consistent with this opinion.

BAZELON, Chief Judge

(concurring).

I join in Part II of Judge Wright’s opinion. I agree that the planning provisions of Title 23 apply to the Three Sisters Bridge Project, and that the case must be remanded to determine whether there has been compliance. Because that conclusion is compelled in my view by an analysis of the statutory language and the legislative history, I find it unnecessary to reach the constitutional questions, and therefore I express no opinion on the matters discussed in Part I.

The legislative history of the Federal-Aid Highway Act of 1968 reveals a fundamental conflict over the procedures to be followed in commencing work on the Three Sisters Bridge Project. Undoubtedly some legislators thought that a statute ordering immediate construction of the Bridge would eliminate the necessity for at least some preliminary procedures.¹ Others contemplated that the statute would simply reverse the District government’s inaction and compel the government to recommence work on the Bridge in compliance with the procedures of Title 23.² This conflict produced an ambiguous statute, compelling the court to resolve the disagreement.³

The plain language of the statute directs the District of Columbia to construct the Bridge in accordance with all applicable provisions of Title 23, and to commence work on it within 30 days. If the legislators had reached agreement on the suspension of hearings and other planning procedures, they could have expressly suspended particular provisions of Title 23. We cannot read into the reference to “applicable” provisions of Title 23 a suspension of particular provisions as inapplicable, without explicit criteria for the distinction in the language of the statute itself. The Statement of the House Managers is of course entitled to respect in determining the legislative intent.⁴ It cannot, however, supply the specificity necessary to make fine distinctions since no basis for those distinctions can be found in the language chosen by the legislative conferees.

Our construction of Section 23 of the Highway Act is the one adopted by the Secretary of Transportation at the time the statute was enacted. The Secretary’s interpretation may well have been based in part on the failure of Congress to distinguish between applicable and inapplicable provisions with the specificity necessary for effective administration.

Finally, our interpretation is further fortified by the fact that it avoids treating District residents less favorably than all other citizens with respect to the federal highway system. The court has no occasion to consider at this time the impact of any particular Bridge location or design on the public interest. It is precisely these issues which appellants seek to ventilate. Apart from constitutional considerations, we should not lightly presume that Congress has deprived District residents of an opportunity afforded to all other citizens, at least in the absence of the clearest legislative mandate, which is lacking here.

1 . Pub.L. No. 90-495, 82 Stat. 827-828 (1968).

2 . D. C. Federation of Civic Associations v. Volpe, D.D.C., 308 F.Supp. 423 (1970).

3 . The rest of the section reads as follows:

(c) The government of the District of Columbia and the Secretary of Transportation shall study those projects on the Interstate System set forth in “The 1968 Interstate System Cost Estimate”, House Document Numbered 199, Ninetieth Congress, within the District of Columbia which are not specified in subsection (b) and shall report to Congress not later than 18 months after the date of enactment of this section their recommendations with respect to such projects including any recommended alternative routes or plans, and if no such recommendations are submitted within such 18-month period then the Secretary of Transportation and the government of the District of Columbia shall construct such routes, as soon as possible thereafter, as required by subsection (a) of this section.

(d) For the purpose of enabling the District of Columbia to have its Federal-aid highway projects approved under section 106 or 117 of title 23, United States Code, the Commissioner of the District of Columbia may, in connection with the acquisition of real property in the District of Columbia for any Federal-aid highway project, provide the payments and services described in sections 505, 506, 507, and 508 of title 23, United States Code.

(e) The Commissioner of the District of Columbia is authorized to acquire by purchase, donation, condemnation or otherwise, real property for transfer to the Secretary of the Interior in exchange or as replacement for park, parkway, and playground lands transferred to the District of Columbia for a public purpose pursuant to section 1 of the Act of May 20, 1932 (47 Stat. 161; D.C.Code, sec. 8-115) and the Commissioner is further authorized to transfer to the United States title to property so acquired.

(f) Payments are authorized to be made by the Commissioner¹, and received by the Secretary of the Interior, in lieu of property transferred pursuant to subsection (e) of this section. The amount of such payment shall represent the cost to the Secretary of the Interior of acquiring real property suitable for replacement of the property so transferred as agreed upon between the Commissioner and the head of said agency and shall be available for the acquiring of the replacement property.

4 . Appellants have also argued that other sections of Title 23, for example, § 317, also apply. In text we discuss only three sections for the sake of clarity. But our holding applies to all of Title 23.

5 . For purposes of Title 23, the District of Columbia is considered to be a “state.” 23 U.S.C. § 101 (1964).

6 . The statute requires the states to hold “public hearings”; the regulations specify separate location and design hearings. 23 C.F.R. Part 1, Appendix A (1970). For a discussion of the applicability of these regulations to this project, see pp. 447-448 infra.

7 . See Shapiro v. Thompson, 394 U.S 618, 641-642, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

8 . See, e. g., Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

9 . With reference to economic legislation, the Supreme Court has said that “[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). In overseeing economic legislation, where the ways of reaching a particular goal for the legislature are almost countless, and where close judicial examination of the means chosen by the legislature can only result in a resurgency of the second guessing of the legislature inherent in the concept of “substantive due process,” the judiciary must of necessity avoid close ' scrutiny of these schemes lest it become only a super-legislature. See Developments in the Law- — Equal Protection, 82 Harv.L.Rev. 1065, 1128, 1131-1132 (1969).

10 . Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).

11 . Reynolds v. Sims, 377 U.S. 533, 561, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).

12 . Harper v. Virginia Board of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 16 L.Ed. 2d 169 (1966), quoting Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed 220 (1886).

13 . Loving v. Virginia, 388 U.S. 1, 9, 87 S.Ct. 1817, 1822, 18 L.Ed.2d 1010 (1967); see McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).

14 . Loving v. Virginia, supra Note 13, at 9, 87 S.Ct. at 1822. Professor Cox has written that these modern equal protection cases “appear to rest upon two largely subjective judgments, * * * the relative invidiousness of the particular differentiation, * * * [and] the relative importance of the subject with respect to which equality is required.” Cox, Foreword : Constitutional Adjudication and the Promotion of Human Rights, 80 Harv. L.Rev. 91, 95 (1966).

15 . Loving v. Virginia, supra Note 13, at 11, 87 S.Ct. at 1823; see Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed. 2d 675 (1965).

16 . A commentary has summarized the recent cases as follows: “Thus, the cases indicate that when a fundamental interest is impaired or a suspect distinction drawn, the Court will demand a convincing demonstration that the classification is well tailored to achieve the statutory objective. How well tailored the classification must be remains somewhat obscure. The state must show at least that this classification is more than just one of several reasonable ways of achieving its goal.” Developments in the Law — Equal Protection, 82 Harv.L.Rev. 1065, 1122 (1969).

17 . See S.Rep.No.2044, 81st Cong., 2d Sess. 8 (1950).

18 . See Federal-Aid Highway Act of 1968 § 24, Pub.Li. No.90-495, 82 Stat. 828 (1968).

19 . 23 U.S.C. § 128 (Supp. IV 1965-1968).

20 . 23 C.F.R. Part 1, Appendix A (1970).

21 . 23 U.S.C. § 128.

22 . Reynolds v. Sims, supra Note 11, 377 U.S. at 555, 84 S.Ct. at 1378.

23 . Id. at 561, 84 S.Ct. 1362, 1381.

24 . Id. at 561, 84 S.Ct. at 1381, quoting Skinner v. Oklahoma ex rel. Williamson, supra Note 10, 316 U.S. at 536, 62 S.Ct. 1110.

25 . Reynolds v. Sims, supra Note 11, at 562, 84 S.Ct. 1362.

26 . Harper v. Virginia Board of Elections, supra Note 12, 383 U.S. at 670, 86 S.Ct. at 1083.

27 . This close analysis is not unavailable because the rights in this case are derived only from statutes. In Harper v. Virginia Board of Elections, supra Note 12, the Supreme Court proceeded on the explicit assumption that the state had no constitutional duty to allow its citizens to vote, but had allowed some to vote as a matter of legislative grace. In holding such action violative of equal protection, the Court stated: “For it is enough to say that once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause * * 383 U.S. at 665, 86 S.Ct. at 1081. It is settled law that “the State, having made [a procedural right] generally available on this issue, may not, consistent with the Equal Protection Clause of the Fourteenth Amendment, arbitrarily withhold it from some.” Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 762-763, 15 L.Ed. 2d 620 (1966). See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

28 . There is, of course, no constitutional right of citizens of the United States to vote on federally supported highway projects. Nor do District citizens have a constitutional right to vote generally. See Carliner v. Board of Commissioners of the District of Columbia, D.D.C., 265 F.Supp. 736 (1967), affirmed, 134 U.S.App.D.C. 43, 412 F.2d 1090 (1969). The point here is that Congress, having by statute accorded all citizens the right to participate in the determination of highway projects, may not deny District citizens alone that right without adequate justification for this discrimination. See Note 27, supra.

29 . Compare Office of Communication of United Church of Christ v. F. C. C., 123 U.S.App.D.C. 328, 359 F.2d 994 (1966). There we allowed listeners to intervene as parties in F.C.C. hearings in order to ensure that the F.C.C. fulfilled its duty to take the public interest into account. Rights of full and active participation in the hearings were deemed essential by the court:

“We cannot believe that the Congressional mandate of public participation which the Commission says it seeks to fulfill was meant to be limited to writing letters to the Commission, to inspection of records, to the Commission’s grace in considering listener claims, or to mere non-participating appearance at hearings. We cannot fail to note that the long history of complaints against WLBT beginning in 1955 had left the Commission virtually unmoved * * *. Such beneficial contribution as these Appellants, or some of them, can make must not be left to the grace of the Commission.”

123 U.S.App.D.C. at 338, 359 F.2d at 1004. (Footnotes omitted.)

30 . McLaughlin v. Florida, supra Note 13, 379 U.S. at 192, 85 S.Ct. 283, quoting Bolling v. Sharpe, supra Note 7, 347 U.S. at 499, 74 S.Ct. 693, 98 L.Ed. 884. See Thompson v. Shapiro, D.Conn., 270 F. Supp. 331, 337, affirmed, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

31 . Harper v. Virginia Board of Elections, supra Note 12, 383 U.S. at 668, 86 S.Ct. 1079, 16 L.Ed.2d 169.

32 . Hobson v. Hansen, D.D.C., 269 F.Supp. 401, 507 (1967), affirmed sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969).

33 . United States v. Carolene Products Co., 304 U.S. 144, 153 n.4, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938).

34 . See Carrington v. Rash, supra Note 15.

35 . Expenses of “construction” include “all expenses incidental to the construction or reconstruction of a highway, including locating, surveying, and mapping * * *, [and] costs of rights of way.” 23 U.S.C. § 101. Engineering costs, and the expenses of other activities, such as public hearings, which clearly take place long before what the statute defines as “actual building” (23 U.S.C. § 101), also qualify as “construction” costs. See 23 U.S.C. § 121(d) (1964); 23 C.F.R. Part 1, Appendix A, § 12 (1970).

36 . We find no support in that history for appellees’ argument that hearings were precluded because they would take too much time. There was some talk in Congress of the need to move ahead with the project. But it does not follow, as appellees insist it does, that a congressional concern with completing the Bridge soon requires that certain time-consuming procedures, such as hearings, be waived, while other equally time-consuming practices also required by Title 23, such as advertising for sealed bids, are to be followed. A statute would have to be much more specific if it is to eliminate certain, but not all, “time-consuming” procedures.

37 . See H.R.Rep.No.1584, 90th Cong., 2d Sess., 17-19 (1968). The Senate Report, No. 1340, 90th Cong., 2d Sess. (1968), U.S.Code Cong. & Admin.News 1968, p. 3482, sheds no light on § 23 because there was no similar provision in the Senate version of the bill.

38 . H.R.Rep.No.1799, 90th Cong., 2d Sess. (1968). The “Statement of the Managers on the Part of the House” was only appended to the Conference Report, U.S. Code Cong. & Admin.News 1968, p. 3531. It did not represent the will of the Senate conferees and can only be said to represent the personal opinions of those who signed it. The chairman of the Senate managers, Senator Randolph, agreed that the specifics in the House Managers’ Statement were “dictum” and not the “intent of the Senate.” See 114 Cong.Rec. (Part 18) 24035 (1968) (remarks of Senators Mansfield and Randolph). See also id. at 24028 (remarks of Senator Cooper) : “I was amazed when I read the report of the managers to discover what they had written out in their managers’ report.” But even the House Managers’ Statement contains no indication that any of the provisions of Title 23 were to be inapplicable.

39 . United States v. Matthews, 136 U.S.App.D.C. 196, 201 n.9, 419 F.2d 1177, 1182 n.9 (1969): “ * * * [T]he isolated remark of one Congressman does not constitute any authority for the proposition that Congress as a whole intended [the particular result],”

40 . The statements of proponents are much more likely to portray an accurate representation of Congress’ intent than are the views of the opponents. ‘•[W]e have often cautioned against the danger, when interpreting a statute, of reliance upon the views of its legislative opponents. In their zeal to defeat a bill, they understandably tend to overstate its reach. * * * ‘It is the sponsors that we look to when the meaning of the statutory words is in doubt.’ Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-395, 71 S.Ct. 745, 95 L.Ed. 1035 * * *.” N. L. R. B. v. Fruit & Vegetable Packers & Warehousemen, 377 U.S. 58, 66, 84 S.Ct. 1063, 1068, 12 L.Ed.2d 129 (1964).

41 . See 114 Cong.Rec. (Part 15) 19923 (1968) (remarks of Representative Cramer) :

“There still can be changes in that route within the traffic corridor. At the same time there can be hearings. * * * [T]he language in the bill does not preclude hearings. As far as I am concerned, let the City Council hold hearings, let them decide which location within the traffic corridor should be finally approved pursuant to the section of the bill.

“The term ‘routes’ as used in [§ 23] * * * refers to the traffic corridors * * * and is not intended to prescribe a specific location for any of the inter- ■ state highways to be constructed.”

42 . See 114 Cong.Rec. (Part 18) 24033 (1968) (remarks of Senator Randolph).

43 . See Transcript of News Conference of the Secretary of Transportation, August 24, 1968. See also Statement of President Johnson, August 23, 1968, 114 Cong. Rec. (Part 24) 30958-30959 (1968) (Secretary of Transportation to approve projects named in § 23 only when they are “shown to be appropriate links in a comprehensive transportation jdan for the District”).

The incumbent Secretary has recently recommended further planning on at least one project mentioned in § 23(b). See Letter from Secretary of Transportation to Spiro T. Agnew and John W. McCormack, February 22, 1970, Enclosure 4.

44 . Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). “ ‘Particularly is this respect due when the administrative practice at stake “involves a contemporaneous construction of a statute by the men charged with setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.” ’ Power Reactor [Development] Co. v. [International Union of] Electricians, 367 U.S. 396, 408 [81 S.Ct. 1529, 6 L.Ed.2d 924].” Id. at 16, 85 S.Ct. at 801.

45 . In any case we would hesitate to construe § 23 as precluding any further planning by local officials in view of Congress’ long-standing practice not to make such precise decisions. See H.R.Rep.No.1584, 90th Cong., 2d Sess. 53 (1968) (additional views) : A rule of the House Committee on Public Works provides “ * * * it shall not be in order for any bill providing for general legislation in relation to roads to contain any provision for any specific road.” See also S.Rep.No.1965, 84th Cong., 2d Sess. 4 (1955) (interstate system to be locally planned; routes not to be dictated by federal government) ; 23 Ü.S.C. § 103(d) (1) (Supp. IV 1965-1968) : “The routes of this system, to the greatest extent possible, shall be selected by joint action of the State highway departments of each State and the adjoining States, subject to the approval by the Secretary * *

46 . See remarks of Congressman Cramer, supra Note 41.

47 . 1968 Estimate of the Cost of Completing the National System of Interstate and Defense Highways in the District of Columbia, Preface (1967).

48 . Cf. Secretary’s letter, supra Note 43, recomending further planning and thought about a route mentioned in § 23(b) and detailed in cost estimates.

49 . 129 U.S.App.D.C. 125, 391 F.2d 478 (1968).

50 . Presumably the “court decision” language refers to our decision in Airis, but the reference is mistaken since that decision was not “to the contrary.”

51 . 23 C.F.R. Part 1, Appendix A (1970).

52 . Id. at §§ 4(a), 4(b).

53 . Id. at § 6(d).

54 . These regulations apply to all projects which had not received both location and design approval from the Department of Transportation before the effective date of the regulations. Appellees assert that approval of the final location of the Bridge was obtained before that date. The accuracy of that assertion will be for the District Court to determine. However, appellees concede in their briefs that there has been no design hearing on the bridge and that approval of the final design was not obtained before the regulations became effective. The regulations provide in § 6(d) (2) (b) :

If design approval is requested within 3 years after the date of the hearing, compliance with the design hearing requirements is nevertheless required unless the division engineer finds that the hearing adequately dealt with design issues relating to major design features.

It may be that design approval was not requested before the end of the three-year period (see 23 C.F.B.. Part 1, Appendix A, § 6(d) (2) (a)), or that, as ai>pellees concede, the division engineer has not made the finding required by the regulation quoted above, or that even if the division enginer has made the required finding, the record will not support that finding. In any such case of non-compliance, the Bridge cannot proceed until design hearings which conform to the regulations have been held.

We have discussed the requirements of the hearing regulations with specificity because that issue has been clearly raised by the parties. We do not, however, confine the scope of the remand hearing to the question of compliance with those regulations. If the District Court finds that appellees have not complied with any provision of Title 23 (including the regulations contained in 23 C.E.R. Part 1, Appendix A), the District Court should enjoin further action on the Bridge project until appellees have complied with all such provisions.

1 . See, e. g., Statement of the Managers on the Part of the House, H.R.Rep.No.1799, 90th Cong., 2d Sess. (1968).

2 . See, e. g., 114 Cong.Rec. (Part 18) 24033 (1968) (remarks of Senator Randolph).

3 . Compare, e. g., Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (April 6, 1970) (Harlan, J.).

4 . It is not, however, entitled to the weight of a conference report, since it was not signed by a majority of the Senate conferees. See 79 Cong.Rec. 12237-39 (1935) (ruling by the Speaker of the House).