Under § 4(f) of the Department of Transportation Act of
1966 and § 138 of the Federal-Aid Highway Act of 1968, the
Secretary of Transportation may not authorize use of federal funds
to finance construction of highways through public parks if a
"feasible and prudent" alternative route exists. If no such route
is available, he may approve construction only if there has been
"all possible planning to minimize harm" to the park. Petitioners
contend that the Secretary has violated these statutes by
authorizing a six-lane interstate highway through a Memphis public
park. In April, 1968, the Secretary announced that he agreed with
the local officials that the highway go through the park; in
September, 1969, the State acquired the right-of-way inside the
park; and in November, 1969, the Secretary announced final
approval, including the design, of the road. Neither announcement
of the Secretary was accompanied by factual findings. Respondents
introduced affidavits in the District Court, indicating that the
Secretary had made the decision and that it was supportable.
Petitioners filed counter affidavits and sought to take the
deposition of a former federal highway administrator. The District
Court and the Court of Appeals found that formal findings were not
required, and refused to order the deposition of the former
administrator. Both courts held that the affidavits afforded no
basis for determining that the Secretary exceeded his
authority.
Held:
1. The Secretary's action is subject to judicial review pursuant
to § 701 of the Administrative Procedure Act. Pp.
401 U. S.
413.
(a) There is no indication here that Congress sought to limit or
prohibit judicial review. P.
401 U. S.
410.
(b) The exemption for action "committed to agency discretion"
does not apply, as the Secretary does have "law to apply," rather
than wide-ranging discretion. Pp.
401 U. S.
410-413.
2. Although, under § 706 of the Act,
de novo
review is not required here, and the Secretary's approval of the
route need not
Page 401 U. S. 403
meet the substantial evidence test, the reviewing court must
conduct a substantial inquiry and determine whether the Secretary
acted within the scope of his authority, whether his decision was
within the small range of available choices, and whether he could
have reasonably believed that there were no feasible alternatives.
The court must find that the actual choice was not "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law," and that the Secretary followed the necessary procedural
requirements. Pp.
401 U. S.
413-416.
3. Formal findings by the Secretary are not required in this
case. Pp.
401 U. S.
417-419.
(a) The relevant statutes do not require formal findings, and
there is no ambiguity in the Secretary's action. P.
401 U. S.
417.
(b) Although a regulation requiring formal findings was issued
after the Secretary had approved the route, a remand to him is not
necessary, as there is an administrative record facilitating full
and prompt review of the Secretary's action. Pp.
401 U. S.
417-419.
4. The case is remanded to the District Court for plenary review
of the Secretary's decision. Pp.
401 U. S.
419-420.
(a) The lower courts' review was based on litigation affidavits,
which are not the whole record, and are an inadequate basis for
review. P.
401 U. S.
419.
(b) In view of the lack of formal findings, the court may
require the administrative officials who participated in the
decision to give testimony explaining their action or require the
Secretary to make formal findings. P.
401 U. S.
420.
432 F.2d 1307, reversed and remanded.
MARSHALL, J., wrote the opinion of the Court, in which BURGER,
C.J., and HARLAN, STEWART, WHITE, and BLACKMUN, JJ., joined. BLACK,
J., filed a separate opinion, in which BRENNAN, J., joined,
post, p.
401 U. S. 421.
BLACKMUN, J., filed a separate statement,
post, p.
401 U. S. 422.
DOUGLAS, J., took no part in the consideration or decision of this
case.
Page 401 U. S. 404
Opinion of the Court by MR. JUSTICE MARSHALL, announced by MR.
JUSTICE STEWART.
The growing public concern about the quality of our natural
environment has prompted Congress in recent years to enact
legislation [
Footnote 1]
designed to curb the accelerating destruction of our country's
natural beauty. We are concerned in this case with § 4(f) of
the Department of Transportation Act of 1966, as amended, [
Footnote 2] and § 18(a) of
Page 401 U. S. 405
the Federal-Aid Highway Act of 1968, 82 Stat. 823, 23 U.S.C.
§ 138 (1964 ed., Supp. V) (hereafter § 138). [
Footnote 3] These statutes prohibit the
Secretary of Transportation from authorizing the use of federal
funds to finance the construction of highways through public parks
if a "feasible and prudent" [
Footnote 4] alternative route exists. If no such route is
available, the statutes allow him to approve construction through
parks only if there has been "all possible planning to minimize
harm" [
Footnote 5] to the
park.
Page 401 U. S. 406
Petitioners, private citizens as well as local and national
conservation organizations, contend that the Secretary has violated
these statutes by authorizing the expenditure of federal funds
[
Footnote 6] for the
construction of a six-lane interstate highway through a public park
in Memphis, Tennessee. Their claim was rejected by the District
Court, [
Footnote 7] which
granted the Secretary's motion for summary judgment, and the Court
of Appeals for the Sixth Circuit affirmed. [
Footnote 8] After oral argument, this Court granted a
stay that halted construction and, treating the application for the
stay as a petition for certiorari, granted review. [
Footnote 9] 400 U.S. 939. We now reverse the
judgment below and remand for further proceedings in the District
Court.
Overton Park is a 342-acre city park located near the center of
Memphis. The park contains a zoo, a nine-hole municipal golf
course, an outdoor theater, nature trails, a bridle path, an art
academy, picnic areas, and 170 acres of forest. The proposed
highway, which is to be a six-lane, high-speed, expressway,
[
Footnote 10] will sever the
zoo from the rest of the park. Although the roadway will be
depressed below ground level except where it crosses a small creek,
26 acres of the park will be destroyed. The highway is to be a
segment of Interstate Highway I-40, part of the National System of
Interstate and
Page 401 U. S. 407
Defense Highways. [
Footnote
11] I-40 will provide Memphis with a major east-west expressway
which will allow easier access to downtown Memphis from the
residential areas on the eastern edge of the city. [
Footnote 12]
Although the route through the park was approved by the Bureau
of Public Roads in 1956 [
Footnote 13] and by the Federal Highway Administrator in
1966, the enactment of § 4(f) of the Department of
Transportation Act prevented distribution of federal funds for the
section of the highway designated to go through Overton Park until
the Secretary of Transportation determined whether the requirements
of § 4(f) had been met. Federal funding for the rest of the
project was, however, available; and the state acquired a
right-of-way on both sides of the park. [
Footnote 14] In April, 1968, the Secretary announced
that he concurred in the judgment of local officials that I-40
should be built through the park. And in September, 1969, the State
acquired the right-of-way inside Overton Park from the city.
[
Footnote 15] Final approval
for the project -- the route as well as the design -- was not
announced until November, 1969, after Congress had reiterated in
§ 138 of the Federal-Aid Highway Act
Page 401 U. S. 408
that highway construction through public parks was to be
restricted. Neither announcement approving the route and design of
I-40 was accompanied by a statement of the Secretary's factual
findings. He did not indicate why he believed there were no
feasible and prudent alternative routes, or why design changes
could not be made to reduce the harm to the park.
Petitioners contend that the Secretary's action is invalid
without such formal findings, [
Footnote 16] and that the Secretary did not make an
independent determination, but merely relied on the judgment of the
Memphis City Council. [
Footnote
17] They also contend that it would be "feasible and prudent"
to route I-40 around Overton Park either to the north or to the
south. And they argue that, if these alternative routes are not
"feasible and prudent," the present plan does not include "all
possible" methods for reducing harm to the park. Petitioners claim
that I-40 could be built under the park by using either of two
possible tunneling methods, [
Footnote 18] and they claim that, at a
Page 401 U. S. 409
minimum, by using advanced drainage techniques, [
Footnote 19] the expressway could be
depressed below ground level along the entire route through the
park, including the section that crosses the small creek.
Respondents argue that it was unnecessary for the Secretary to
make formal findings, and that he did, in fact, exercise his own
independent judgment, which was supported by the facts. In the
District Court, respondents introduced affidavits, prepared
specifically for this litigation, which indicated that the
Secretary had made the decision and that the decision was
supportable. These affidavits were contradicted by affidavits
introduced by petitioners, who also sought to take the deposition
of a former Federal Highway Administrator [
Footnote 20] who had participated in the
decision to route I-40 through Overton Park.
The District Court and the Court of Appeals found that formal
findings by the Secretary were not necessary, and refused to order
the deposition of the former Federal Highway Administrator because
those courts believed that probing of the mental processes of an
administrative decisionmaker was prohibited. And, believing that
the Secretary's authority was wide, and reviewing courts' authority
narrow, in the approval of highway routes, the lower courts held
that the affidavits contained no basis for a determination that the
Secretary had exceeded his authority.
We agree that formal findings were not required. But we do not
believe that, in this case, judicial review based solely on
litigation affidavits was adequate.
Page 401 U. S. 410
A threshold question -- whether petitioners are entitled to any
judicial review -- is easily answered. Section 701 of the
Administrative Procedure Act, 5 U.S.C. § 701 (1964 ed., Supp.
V), provides that the action of "each authority of the Government
of the United States," which includes the Department of
Transportation, [
Footnote
21] is subject to judicial review except where there is a
statutory prohibition on review or where "agency action is
committed to agency discretion by law." In this case, there is no
indication that Congress sought to prohibit judicial review, and
there is most certainly no "showing of
clear and convincing
evidence' of a . . . legislative intent" to restrict access to
judicial review. Abbott Laboratories v. Gardner,
387 U. S. 136,
387 U. S. 141
(1967). Brownell v. We Shung, 352 U.
S. 180, 352 U. S. 185
(1956). [Footnote
22]
Similarly, the Secretary's decision here does not fall within
the exception for action "committed to agency discretion." This is
a very narrow exception. [
Footnote 23] Berger, Administrative Arbitrariness and
Judicial Review, 65 Col.L.Rev. 55 (1965). The legislative history
of the Administrative Procedure Act indicates that it is applicable
in those rare instances where "statutes are drawn in such broad
terms that, in a given case, there is no law to apply." S.Rep. No.
752, 79th Cong., 1st Sess., 26 (1945).
Page 401 U. S. 411
Section 4(f) of the Department of Transportation Act and §
138 of the Federal-Aid Highway Act are clear and specific
directives. Both the Department of Transportation Act and the
Federal-Aid Highway Act provide that the Secretary "shall not
approve any program or project" that requires the use of any public
park land
"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. . . ."
23 U.S.C. § 138 (1964 ed., Supp. V); 49 U.S.C. §
1653(f) (1964 ed., Supp. V). This language is a plain and explicit
bar to the use of federal funds for construction of highways
through parks -- only the most unusual situations are exempted.
Despite the clarity of the statutory language, respondents argue
that the Secretary has wide discretion. They recognize that the
requirement that there be no "feasible" alternative route admits of
little administrative discretion. For this exemption to apply, the
Secretary must find that, as a matter of sound engineering, it
would not be feasible to build the highway along any other route.
[
Footnote 24] Respondents
argue, however, that the requirement that there be no other
"prudent" route requires the Secretary to engage in a wide-ranging
balancing of competing interests. They contend that the Secretary
should weigh the detriment resulting from the destruction of park
land against the cost of other routes, safety considerations, and
other factors, and determine on the basis of the importance that he
attaches to these other factors whether, on balance, alternative
feasible routes would be "prudent."
But no such wide-ranging endeavor was intended. It is obvious
that, in most cases, considerations of cost, directness of route,
and community disruption will indicate that park land should be
used for highway construction
Page 401 U. S. 412
whenever possible. Although it may be necessary to transfer
funds from one jurisdiction to another, [
Footnote 25] there will always be a smaller outlay
required from the public purse [
Footnote 26] when park land is used, since the public
already owns the land, and there will be no need to pay for
right-of-way. And since people do not live or work in parks, if a
highway is built on park land, no one will have to leave his home
or give up his business. Such factors are common to substantially
all highway construction. Thus, if Congress intended these factors
to be on an equal footing with preservation of park land, there
would have been no need for the statutes.
Congress clearly did not intend that cost and disruption of the
community were to be ignored [
Footnote 27] by the Secretary. [
Footnote 28] But the very existence of the statutes
[
Footnote 29] indicates that
protection of park land was to be given paramount
Page 401 U. S. 413
importance. The few green havens that are public parks were not
to be lost unless there were truly unusual factors present in a
particular case or the cost or community disruption resulting from
alternative routes reached extraordinary magnitudes. If the
statutes are to have any meaning, the Secretary cannot approve the
destruction of park land unless he finds that alternative routes
present unique problems.
Plainly, there is "law to apply," and thus the exemption for
action "committed to agency discretion" is inapplicable. But the
existence of judicial review is only the start: the standard for
review must also be determined. For that, we must look to §
706 of the Administrative Procedure Act, 5 U.S.C. § 706 (1964
ed., Supp. V), which provides that a "reviewing court shall . . .
hold unlawful and set aside agency action, findings, and
conclusions found" not to meet six separate standards. [
Footnote 30] In all cases,
Page 401 U. S. 414
agency action must be set aside if the action was "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law" or if the action failed to meet statutory, procedural, or
constitutional requirements. 5 U.S.C. §§ 706(2)(A), (B),
(C), (D) (1964 ed., Supp. V). In certain narrow, specifically
limited situations, the agency action is to be set aside if the
action was not supported by "substantial evidence." And in other
equally narrow circumstances, the reviewing court is to engage in a
de novo review of the action and set it aside if it was
"unwarranted by the facts." 5 U.S.C. §§ 706(2)(E), (F)
(1964 ed., Supp. V).
Petitioners argue that the Secretary's approval of the
construction of I-40 through Overton Park is subject to one or the
other of these latter two standards of limited applicability.
First, they contend that the "substantial evidence" standard of
§ 706(2)(E) must be applied. In the alternative, they claim
that § 706(2)(F) applies, and that there must be a
de
novo review to determine if the Secretary's action was
"unwarranted by the facts." Neither of these standards is, however,
applicable.
Review under the substantial evidence test is authorized only
when the agency action is taken pursuant to a rulemaking provision
of the Administrative Procedure Act itself, 5 U.S.C. § 553
(1964 ed., Supp. V), or when the agency action is based on a public
adjudicatory hearing.
See 5 U.S.C. §§ 556, 557
(1964 ed., Supp. V). The Secretary's decision to allow the
expenditure of federal funds to build I-40 through Overton Park was
plainly not an exercise of a rulemaking function.
See 1 K.
Davis, Administrative Law Treatise § 5.01 (1958). And the only
hearing that is required by either the Administrative Procedure Act
or the statutes regulating the distribution
Page 401 U. S. 415
of federal funds for highway construction is a public hearing
conducted by local officials for the purpose of informing the
community about the proposed project and eliciting community views
on the design and route. 23 U.S.C. § 128 (1964 ed., Supp. V).
The hearing is nonadjudicatory,
quasi-legislative in
nature. It is not designed to produce a record that is to be the
basis of agency action -- the basic requirement for substantial
evidence review.
See H.R.Rep. No.1980, 79th Cong., 2d
Sess.
Petitioners' alternative argument also fails.
De novo
review of whether the Secretary's decision was "unwarranted by the
facts" is authorized by § 706(2)(F) in only two circumstances.
First, such
de novo review is authorized when the action
is adjudicatory in nature and the agency factfinding procedures are
inadequate. And there may be independent judicial factfinding when
issues that were not before the agency are raised in a proceeding
to enforce nonadjudicatory agency action. H.R.Rep. No.1980, 79th
Cong., 2d Sess. Neither situation exists here.
Even though there is no
de novo review in this case and
the Secretary's approval of the route of I-40 does not have
ultimately to meet the substantial evidence test, the generally
applicable standards of § 706 require the reviewing court to
engage in a substantial inquiry. Certainly, the Secretary's
decision is entitled to a presumption of regularity.
See, e.g.,
Pacific States Box & Basket Co. v. White, 296 U.
S. 176,
296 U. S. 185
(1935);
United States v. Chemical Foundation, 272 U. S.
1,
272 U. S. 14-15
(1926). But that presumption is not to shield his action from a
thorough, probing, in-depth review.
The court is first required to decide whether the Secretary
acted within the scope of his authority.
Schilling v.
Rogers, 363 U. S. 666,
363 U. S.
676-677 (1960). This determination naturally begins with
a delineation of the scope of
Page 401 U. S. 416
the Secretary's authority and discretion. L. Jaffe, Judicial
Control of Administrative Action 359 (1965). As has been shown,
Congress has specified only a small range of choices that the
Secretary can make. Also involved in this initial inquiry is a
determination of whether, on the facts, the Secretary's decision
can reasonably be said to be within that range. The reviewing court
must consider whether the Secretary properly construed his
authority to approve the use of park land as limited to situations
where there are no feasible alternative routes or where feasible
alternative routes involve uniquely difficult problems. And the
reviewing court must be able to find that the Secretary could have
reasonably believed that, in this case, there are no feasible
alternatives, or that alternatives do involve unique problems.
Scrutiny of the facts does not end, however, with the
determination that the Secretary has acted within the scope of his
statutory authority. Section 706(2)(A) requires a finding that the
actual choice made was not "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C.
§ 706(2)(A) (1964 ed., Supp. V). To make this finding, the
court must consider whether the decision was based on a
consideration of the relevant factors and whether there has been a
clear error of judgment. Jaffe,
supra, at 182.
See
McBee v. Bomar, 296 F.2d 235, 237 (CA6 1961);
In re
Josephson, 218 F.2d 174, 182 (CA1 1954);
Western Addition
Community Organization v. Weaver, 294 F.
Supp. 433 (ND Cal.1968).
See also Wong Wing Hang v.
Immigration and Naturalization Serv., 360 F.2d 715, 719 (CA2
1966). Although this inquiry into the facts is to be searching and
careful, the ultimate standard of review is a narrow one. The court
is not empowered to substitute its judgment for that of the
agency.
Page 401 U. S. 417
The final inquiry is whether the Secretary's action followed the
necessary procedural requirements. Here, the only procedural error
alleged is the failure of the Secretary to make formal findings and
state his reason for allowing the highway to be built through the
park.
Undoubtedly, review of the Secretary's action is hampered by his
failure to make such findings, but the absence of formal findings
does not necessarily require that the case be remanded to the
Secretary. Neither the Department of Transportation Act nor the
Federal-Aid Highway Act requires such formal findings. Moreover,
the Administrative Procedure Act requirements that there be formal
findings in certain rulemaking and adjudicatory proceedings do not
apply to the Secretary's action here.
See 5 U.S.C.
§§ 553(a)(2), 554(a) (1964 ed., Supp. V). And, although
formal findings may be required in some cases in the absence of
statutory directives when the nature of the agency action is
ambiguous, those situations are rare.
See City of Yonkers v.
United States, 320 U. S. 685
(1944);
American Trucking Assns. v. United States,
344 U. S. 298,
344 U. S. 320
(1953). Plainly, there is no ambiguity here; the Secretary has
approved the construction of I-40 through Overton Park, and has
approved a specific design for the project.
Petitioners contend that, although there may not be a statutory
requirement that the Secretary make formal findings, and even
though this may not be a case for the reviewing court to impose a
requirement that findings be made, Department of Transportation
regulations require them. This argument is based on DOT Order
5610.1, [
Footnote 31] which
requires the Secretary to make formal
Page 401 U. S. 418
findings when he approves the use of park land for highway
construction but which was issued after the route for I-40 was
approved. [
Footnote 32]
Petitioners argue that, even though the order was not in effect at
the time approval was given to the Overton Park project, and even
though the order was not intended to have retrospective effect the
order represents the law at the time of this Court's decision and
under
Thorpe v. Housing Authority, 393 U.
S. 268,
393 U. S.
281-282 (1969), should be applied to this case.
The
Thorpe litigation resulted from an attempt to evict
a tenant from a federally funded housing project under
circumstances that suggested that the eviction was prompted by the
tenant's objections to the management of the project. Despite
repeated requests, the Housing Authority would not give an
explanation for its action. The tenant claimed that the eviction
interfered with her exercise of First Amendment rights, and that
the failure to state the reasons for the eviction and to afford her
a hearing denied her due process. After denial of relief in the
state courts, this Court granted certiorari
to consider whether [the tenant] was denied due process by the
Housing Authority's refusal to state the reasons for her eviction
and to afford her a hearing at which she could contest the
sufficiency of those reasons.
393 U.S. at
393 U. S.
272.
While the case was pending in this Court, the Department of
Housing and Urban Development issued regulations requiring Housing
Authority officials to inform tenants of the reasons for an
eviction and to give a tenant the opportunity to reply. The case
was then remanded to the state courts to determine if the HUD
regulations were applicable to that case. The state court held them
not to be applicable, and this Court reversed on the
Page 401 U. S. 419
ground that the general rule is "that an appellate court must
apply the law in effect at the time it renders its decision." 393
U.S. at
393 U. S.
281.
While we do not question that DOT Order 5610.1 constitutes the
law in effect at the time of our decision, we do not believe that
Thorpe compels us to remand for the Secretary to make
formal findings. [
Footnote
33] Here, unlike the situation in
Thorpe, there has
been a change in circumstances -- additional right-of-way has been
cleared and the 26-acre right-of-way inside Overton Park has been
purchased by the State. Moreover, there is an administrative record
that allows the full, prompt review of the Secretary's action that
is sought without additional delay which would result from having a
remand to the Secretary.
That administrative record is not, however, before us. The lower
courts based their review on the litigation affidavits that were
presented. These affidavits were merely "
post hoc"
rationalizations,
Burlington Truck Lines v. United States,
371 U. S. 156,
371 U. S.
168-169 (1962), which have traditionally been found to
be an inadequate basis for review.
Burlington Truck Lines v.
United States, supra; SEC v. Chenery Corp., 318 U. S.
80,
318 U. S. 87
(1943). And they clearly do not constitute the "whole record"
compiled by the agency: the basis for review required by § 706
of the Administrative Procedure Act.
See n 30,
supra.
Page 401 U. S. 420
Thus, it is necessary to remand this case to the District Court
for plenary review of the Secretary's decision. That review is to
be based on the full administrative record that was before the
Secretary at the time he made his decision. [
Footnote 34] But since the bare record may not
disclose the factors that were considered or the Secretary's
construction of the evidence, it may be necessary for the District
Court to require some explanation in order to determine if the
Secretary acted within the scope of his authority and if the
Secretary's action was justifiable under the applicable
standard.
The court may require the administrative officials who
participated in the decision to give testimony explaining their
action. Of course, such inquiry into the mental processes of
administrative decisionmakers is usually to be avoided.
United
States v. Morgan, 313 U. S. 409,
313 U. S. 422
(1941). And where there are administrative findings that were made
at the same time as the decision, as was the case in
Morgan, there must be a strong showing of bad faith or
improper behavior before such inquiry may be made. But here there
are no such formal findings, and it may be that the only way there
can be effective judicial review is by examining the decisionmakers
themselves.
See Shaughnessy v. Accardi, 349 U.
S. 280 (1955).
The District Court is not, however, required to make such an
inquiry. It may be that the Secretary can prepare formal findings
including the information required by DOT Order 5610.1 that will
provide an adequate explanation for his action. Such an explanation
will, to some extent, be a "
post hoc rationalization," and
thus must be viewed critically. If the District Court decides
Page 401 U. S. 421
that additional explanation is necessary, that court should
consider which method will prove the most expeditious so that full
review may be had as soon as possible.
Reversed and remanded.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
See, e.g., The National Environmental Policy Act of
1969, 83 Stat. 852, 42 U.S.C. § 4321
et seq. (1964
ed., Supp. V); Environmental Education Act, 84 Stat. 1312, 20
U.S.C. § 1531
et seq. (1970 ed.); Air Quality Act of
1967, 81 Stat. 485, 42 U.S.C. § 1857
et seq. (1964
ed., Supp. V); Environmental Quality Improvement Act of 1970, 84
Stat. 114, 42 U.S.C. §§ 4371-4374 (1970 ed.).
[
Footnote 2]
"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
significance as determined by the Federal, State, or local
officials having jurisdiction 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."
82 Stat. 824, 49 U.S.C. § 1653(f) (1964 ed., Supp. V).
[
Footnote 3]
"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 the effective date of the Federal-Aid
Highway Act of 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 significance as determined by the
Federal, State, or local officials having jurisdiction 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."
23 U.S.C.§ 138 (1964 ed., Supp. V).
[
Footnote 4]
49 U.S.C. § 1653(f) (1964 ed., Supp. V); 23 U.S.C. §
138 (1964 ed., Supp. V).
[
Footnote 5]
Ibid.
[
Footnote 6]
See 23 U.S.C. § 103
[
Footnote 7]
The case originated in the United States District Court for the
District of Columbia. On application of the Secretary of
Transportation, it was transferred to the United States District
Court for the Western District of Tennessee, which entered the
summary judgment.
[
Footnote 8]
432 F.2d 1307 (CA6 1970).
[
Footnote 9]
This Court ordered the case to be heard on an expedited
schedule.
[
Footnote 10]
The proposed right-of-way will be 250 to 450 feet wide, and will
follow the route of a presently existing, nonaccess bus route,
which carries occasional bus traffic along a 40- to 50-foot
right-of-way.
[
Footnote 11]
See 23 U.S.C. § 103(d) (1964 ed., Supp. V).
[
Footnote 12]
I-40 will also provide an express bypass for east-west traffic
through Memphis.
[
Footnote 13]
At that time, the Bureau of Public Roads was a part of the
Department of Commerce. The Department of Transportation Act, 49
U.S.C. § 1651
et seq. (1964 ed., Supp. V), which
became effective on April 1, 1967, transferred the Bureau to the
new Department of Transportation.
[
Footnote 14]
The Secretary approved these acquisitions in 1967 shortly after
the effective date of § 4(f).
[
Footnote 15]
The State paid the City $2,000,000 for the 26-acre right-of-way
and $206,000 to the Memphis Park Commission to replace park
facilities that were to be destroyed by the highway. The city of
Memphis has used $1,000,000 of these funds to pay for a new
160-acre park, and it is anticipated that additional park land will
be acquired with the remaining money.
[
Footnote 16]
Respondents argue that the only issue raised by petitioners'
pleadings is the failure of the Secretary to make formal findings.
But when petitioners' complaint is read in the revealing light of
Conley v. Gibson, 355 U. S. 41
(1957), it is clear that petitioners have also challenged the
merits of the Secretary's decision.
[
Footnote 17]
Petitioners contend that former Federal Highway Administrator
Bridwell's account of an April 3, 1968, meeting with the Memphis
City Council given to the Senate Subcommittee on Roads of the
Senate Committee on Public Works supports this charge.
See
Hearings on Urban Highway Planning, Location, and Design before the
Subcommittee on Roads of the Senate Committee on Public Works, 90th
Cong., 1st and 2d Sess., pt. 2, pp. 478-480 (1968).
[
Footnote 18]
Petitioners argue that either a bored tunnel or a cut-and-cover
tunnel, which is a fully depressed route covered after
construction, could be built. Respondents contend that the
construction of a tunnel by either method would greatly increase
the cost of the project, would create safety hazards, and, because
of increases in air pollution, would not reduce harm to the
park.
[
Footnote 19]
Petitioners contend that adequate drainage could be provided by
using mechanical pumps or some form of inverted siphon. They claim
that such devices are often used in expressway construction.
[
Footnote 20]
Petitioners wanted to question former Highway Administrator
Bridwell.
See n 17,
supra.
[
Footnote 21]
In addition, the Department of Transportation Act makes the
Administrative Procedure Act applicable to proceedings of the
Department of Transportation. 49 U.S.C. § 1655(h) (1964 ed.,
Supp. V).
[
Footnote 22]
See also Rusk v. Cort, 369 U.
S. 367,
369 U. S.
379-380 (1962).
[
Footnote 23]
The scope of this exception has been the subject of extensive
commentary.
See, e.g., Berger, Administrative
Arbitrariness: A Synthesis, 78 Yale L.J. 965 (1969); Saferstein,
Nonreviewability: A Functional Analysis of "Committed to Agency
Discretion," 82 Harv.L.Rev. 367 (1968); Davis, Administrative
Arbitrariness is Not Always Reviewable, 51 Minn.L.Rev. 643 (1967);
Berger, Administrative Arbitrariness: A Sequel, 51 Minn.L.Rev. 601
(1967).
[
Footnote 24]
See 114 Cong.Rec.19915 (statement by Rep.
Holifield).
[
Footnote 25]
See n 15,
supra.
[
Footnote 26]
See 114 Cong.Rec. 24037 (statement by Sen.
Yarborough).
[
Footnote 27]
See, e.g., S.Rep. No. 1340, 90th Cong., 2d Sess.,
18-19; H.R.Rep. No. 1584, 90th Cong., 2d Sess., 12.
[
Footnote 28]
The legislative history indicates that the Secretary is not to
limit his consideration to information supplied by state and local
officials but is to go beyond this information and reach his own
independent decision. 114 Cong.Rec. 24036-24037.
[
Footnote 29]
The legislative history of both § 4(f) of the Department of
Transportation Act, 49 U.S.C. § 1653(f) (1964 ed., Supp. V),
and § 138 of the Federal-Aid Highway Act, 23 U.S.C. § 138
(1964 ed., Supp. V), is ambiguous. The legislative committee
reports tend to support respondents' view that the statutes are
merely general directives to the Secretary requiring him to
consider the importance of park land as well as cost, community
disruption, and other factors.
See, e.g., S.Rep. No. 1340,
90th Cong., 2d Sess., 19; H.R.Rep. No. 1584, 90th Cong., 2d Sess.,
12. Statements by proponents of the statutes as well as the Senate
committee report on § 4(f) indicate, however, that the
Secretary was to have limited authority.
See, e.g., 114
Cong.Rec. 24033-24037; S.Rep. No. 1659, 89th Cong., 2d Sess., 22.
See also H.R.Conf.Rep. No. 2236, 89th Cong., 2d Sess., 25.
Because of this ambiguity, it is clear that we must look primarily
to the statutes themselves to find the legislative intent.
[
Footnote 30]
"To the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and determine
the meaning or applicability of the terms of an agency action. The
reviewing court shall -- "
"(1) compel agency action unlawfully withheld or unreasonably
delayed; and"
"(2) hold unlawful and set aside agency action, findings, and
conclusions found to be -- "
"(A) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;"
"(B) contrary to constitutional right, power, privilege, or
immunity;"
"(C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right;"
"(D) without observance of procedure required by law;"
"(E) unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on the
record of an agency hearing provided by statute; or"
"(F) unwarranted by the facts to the extent that the facts are
subject to trial
de novo by the reviewing court."
"In making the foregoing determinations, the court shall review
the whole record or those parts of it cited by a party, and due
account shall be taken of the rule of prejudicial error."
5 U.S.C. § 706 (1964 ed., Supp. V).
[
Footnote 31]
The regulation was promulgated pursuant to Executive Order
11514, dated March 5, 1970, 35 Fed.Reg. 4247, which instructed all
federal agencies to initiate procedures needed to direct their
policies and programs toward meeting national environmental
goals.
[
Footnote 32]
DOT Order 5610.1 was issued on October 7, 1970.
[
Footnote 33]
Even if formal findings by the Secretary were mandatory, the
proper course would be to remand the case to the District Court,
directing that court to order the Secretary to make formal
findings.
See R. Robertson & F. Kirkham, Jurisdiction
of the Supreme Court of the United States § 446, p. 929 (R.
Wolfson & P. Kurland ed.1951). of course, the District Court is
not prohibited from remanding the case to the Secretary.
See
infra at
401 U. S.
420.
[
Footnote 34]
The Solicitor General now urges that, in order to avoid
additional delay, the proper course is to remand the case to the
District Court for review of the full administrative record.
Separate opinion of MR. JUSTICE BLACK, with whom MR. JUSTICE
BRENNAN joins.
I agree with the Court that the judgment of the Court of Appeals
is wrong, and that its action should be reversed. I do not agree
that the whole matter should be remanded to the District Court. I
think the case should be sent back to the Secretary of
Transportation. It is apparent from the Court's opinion today that
the Secretary of Transportation completely failed to comply with
the duty imposed upon him by Congress not to permit a federally
financed public highway to run through a public park
"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. . . ."
23 U.S.C. § 138 (1964 ed., Supp. V); 49 U.S.C. §
1653(f) (1964 ed., Supp. V). That congressional command should not
be taken lightly by the Secretary or by this Court. It represents a
solemn determination of the highest lawmaking body of this Nation
that the beauty and health-giving facilities of our parks are not
to be taken away for public roads without hearings, factfindings,
and policy determinations under the supervision of a Cabinet
officer -- the Secretary of Transportation. The Act of Congress, in
connection with other federal highway aid legislation, [
Footnote 2/1] it seems to me,
Page 401 U. S. 422
calls for hearings -- hearings that a court can review, hearings
that demonstrate more than mere arbitrary defiance by the
Secretary. Whether the findings growing out of such hearings are
labeled "formal" or "informal" appears to me to be no more than an
exercise in semantics. Whatever the hearing requirements might be,
the Department of Transportation failed to meet them in this case.
I regret that I am compelled to conclude for myself that, except
for some too-late formulations, apparently coming from the
Solicitor General's office, this record contains not one word to
indicate that the Secretary raised even a finger to comply with the
command of Congress. It is our duty, I believe, to remand this
whole matter back to the Secretary of Transportation for him to
give this matter the hearing it deserves in full good faith
obedience to the Act of Congress. That Act was obviously passed to
protect our public parks from forays by roadbuilders except in the
most extraordinary and imperative circumstances. [
Footnote 2/2] This record does not demonstrate the
existence of such circumstances. I dissent from the Court's failure
to send the case back to the Secretary, whose duty has not yet been
performed.
[
Footnote 2/1]
See 23 U.S.C. § 128 (1964 ed., Supp. V) and
regulations promulgated thereunder, 34 Fed.Reg. 727-730 (1969).
[
Footnote 2/2]
See also Named Individual Members of the San Antonio
Conservation Society v. Texas Highway Department, 400 U.
S. 968, 972 (1970) (dissents from the denial of
certiorari).
MR. JUSTICE BLACKMUN.
I fully join the Court in its opinion and in its judgment. I
merely wish to state the obvious: (1) The case comes to this Court
as the end product of more than a decade of endeavor to solve the
interstate highway problem at Memphis. (2) The administrative
decisions under attack here are not those of a single Secretary;
some were made by the present Secretary's predecessor and, before
him, by the Department of Commerce's Bureau of Public
Page 401 U. S. 423
Roads. (3) The 1966 Act and the 1968 Act have cut across former
methods, and here have imposed new standards and conditions upon a
situation that already was largely developed.
This undoubtedly is why the record is sketchy and less than one
would expect if the project were one which had been instituted
after the passage of the 1966 Act.