CITIZENS TO PRESERVE OVERTON PARK v. VOLPE
Legal provision: Administrative Procedure, or Administrative Orders Review
Argument of John W. Vardaman, Jr
Chief Justice Warren E. Burger: The case of Citizens to Preserve Overton Park against Secretary Volpe.
Mr. Vardaman, you may proceed whenever you are ready.
Mr. John W. Vardaman, Jr: Mr. Chief Justice and may it please the Court.
This case is here today on an application for stay, pending the filing of a petition for writ of certiorari.
We seek an application to stay the respondents in this case, the Secretary of Transportation and the Commissioner and the Department of Highways of the State of Tennessee, from authorizing the beginning of construction of a six-lane interstate highway which will pass through Overton Park, a large public park located in Memphis, Tennessee.
If this stay is not granted, the respondents will authorize construction, and that construction will proceed before this Court has an opportunity to act on a petition for certiorari.
That construction will inflict grave and irreparable damage to the park.
Justice Potter Stewart: When is the latest date for filing a petition for certiorari?
Mr. John W. Vardaman, Jr: Your Honor I think we have until the January 28, I believe, towards the end of January.
However, as we suggested in the brief which we've filed, we are willing to have the Court act upon these papers as the petition for certiorari.
We can meet the formal requirements by filing the petition with the Court.
We are ready to proceed immediately.
We have not filed a petition thus far because there is the threat, if the stay is not granted proportions of the case maybe mooting.
We're willing to proceed immediately with the filing of the petition.
Justice Potter Stewart: And to corporate with any expedited schedule would be --
Mr. John W. Vardaman, Jr: Certainly.
Justice Potter Stewart: -- that might be a suggested.
Mr. John W. Vardaman, Jr: Yes sir, that's correct.
If the respondents are permitted to proceed with this construction, they may likely moot this case.
If they do, they would have been successful without ever having filed an answer to the petitioner's complaint, without putting one witness on the witness stand, without having one of their officials subject to examination by deposition, but instead on a basis, out of court, the litigation affidavits, filed in support of a motion for summary judgment, that's the record in this case.
So, the decision below is based solely on affidavits.
The District Court granted summary judgment which was affirmed by the Court of Appeals.
This case arises under a statute passed in 1966 which articulates a national policy for preserving park lands, recreation areas, historic sites, waterfowl and wildlife refuges.
That statute provides that the Secretary of Transportation shall not approve any project which affects a parkland or recreation area, unless there are no feasible and prudent alternatives, or unless the design of the project includes all possible planning to minimize harm.
The park which is involved in this case is a large 342 acre public park located in Memphis, Tennessee.
It has within it approximately a 170-acres of Woodland Forest.
As of 1965, it's constituted one-half, of the City of Memphis; Memphis's woodland Forest.
If this highway goes through that part of the park, according to Department of Interior officials who proposed this project, there will be very little left of the Woodland park.
Justice John M. Harlan: Could I interrupt you a moment to go back to the question that my brother Stewart asked you.
As far as you're concerned, are you willing to treat this argument as an argument on the merits to distinguish on mere application per se?
Mr. John W. Vardaman, Jr: Your Honor we're willing, yes, we are willing to treat this argument as an argument on the merits as well.
Justice John M. Harlan: I see that when I read your papers.
Mr. John W. Vardaman, Jr: Yes, we are -- we are -- if the the Court would like to consider this as an argument on the merit, we're willing to have it treated that.
This highway project involves a construction of the six-lane interstate highway with the right of way between 250 feet and 450 feet wide.
As it proceeds through the wooded area of the park, if it's constructed, as it's presently planned, it will take a swath of 450 feet out of the wooded section, and pass through a small picturesque lake and a pond.
It will pass immediately adjacent to the zoo, and it will be a literal barrier to either side of the park.
It'll literally cut this park in two.
Justice Harry A. Blackmun: Is the 450 feet conceded, that's a 150 yards, if my mathematics is correct?
Mr. John W. Vardaman, Jr: Yes, it is Your Honor, I think that's an undisputed fact that on this record.
Chief Justice Warren E. Burger: And is it undisputed that to depress this highway was going to cost 20 some million dollars, just to depress, as distinguished from tunneling?
Mr. John W. Vardaman, Jr: No, Your Honor, the figures in this record are that to tunnel it and they suggest two types of tunnels, it would cost, they estimate, they don't have any calculations, they are estimates, would cost up to $40 million.
There is however, a suggestion that was made by the Department of Interior officials for fully depressed ground which would not be a tunnel, and there are no cost figures on that design.
Chief Justice Warren E. Burger: I thought that someone tossed in a figure of $20 million in relation to --
Mr. John W. Vardaman, Jr: No, I think there is an estimate of $40 million but that involves first fully depressing and then totally covering it.
What is known as I understand is a cut-and-covered tunnel.
But, if you simply depressed it all the way through the park, that would minimize harm to the park, but there are no cost figures on that.
And my point, incidentally they have raised an objection that this would create certain drainage problems within -- there's a small creek which runs through the park, and they maintain that this -- it can't go pass that creek where the depressed ground.
There are affidavits on file, in this case which suggest that difficulty could be overcome by standard engineering techniques which are use in the interstate system, just today, have been in use in the interstate system for sometime, if they refused to use them in this case.
Justice Hugo L. Black: What is the acreage of the park?
Mr. John W. Vardaman, Jr: The acreage of the park is Your Honor is 342 acres.
Justice Hugo L. Black: How much of it would be taken?
Mr. John W. Vardaman, Jr: 26 centrally located acres, would be taken.
Justice Potter Stewart: As I read the papers last week, the plans are to depress the highway except where it crosses the stream.
Mr. John W. Vardaman, Jr: That's correct.
Justice Potter Stewart: Where they say it has cross a grade in order to eliminate drainage problem.
Mr. John W. Vardaman, Jr: That's correct, Your Honor, but the problem with that is, is that the stream is only slightly west of the center of the park and they actually go above grade at that point.
So, although they depress it in the Eastern part of the park, as it rises to that portion of above grade for a substantial part of it's nearly at grade and you have to --
Justice Potter Stewart: It's an east-west highway, is it?
Mr. John W. Vardaman, Jr: That's correct.
This is part of a Cross Continental East-west interstate.
Justice Potter Stewart: East-west and the park lies in the westward part of Memphis.
Mr. John W. Vardaman, Jr: The park lies practically in the middle of the city, if you look at the map of Memphis.
Justice Potter Stewart: Western Memphis is the Mississippi river.
Mr. John W. Vardaman, Jr: That's correct.
This park is practically in the middle of the city.
Justice Potter Stewart: That's where the zoo is.
Mr. John W. Vardaman, Jr: That's correct.
The zoo – and this highway will run adjacent to the southern boundary of the zoo.
This highway was approved in November 1969.
This action was filed immediately thereafter.
Prior to the time this highway was approved there was a study of several alternative routes, one which would swing immediately to the north of the park, and one which would swing immediately to the south of the park.
And it's my understanding that Mr. Reynolds will bring a map in the Court during his argument.
He'll show you the bands on the map, where these alternatives would go.
Now, in the Department of Transportation, in the Secretary's papers which are on file, he's maintained that those alternatives were rejected because of large displacement of persons and businesses.
In his affidavit, he gives you some statistics, as to the number of people who'd be displaced by the route which goes to North and that which goes to the South.
What he doesn't give you in the affidavit is the number of people who'd be adversely affected not only in the use of the park but in their home's and businesses by the route which uses the park.
And when you search the record further and find those statistics, they demonstrate that the alternative to the North of the park which he rejected actually either displaces more people from their homes or adversely affects people in their businesses or schools.
So, the test which he asserts, he's applied in this case, was mis-applied, if the test is the number of people who'd be adversely affected, or the number of people who will be displaced from their homes.
The route to the North according to their own calculation will either displace or adversely affect 2386 people and route through the park according to their own figures, will adversely affect to displace 2607 people, actually more people than the route to the North.
And this is the case, even though in their calculation they've made no allowance for the people, they've not counted as adversely affected people who use the park.
For instance, over a million people a year use this zoo, and they haven't calculated the effect on those people.
Further more this --
Chief Justice Warren E. Burger: How would calculate that Mr. Vardaman?
Mr. John W. Vardaman, Jr: Your Honor --
Chief Justice Warren E. Burger: They won't stop using the park, will they?
Mr. John W. Vardaman, Jr: Some of them may stop using the park, some of them may not but one of the problems in trying to use mathematical formulas in a dispute of this kind is that it's difficult to quantify the values of a parkland, and that's what the one of the reasons this statute was passed.
Decisions have been made on locating kind of ways on the basis of cost and residences dislocated, and where you have decisions to made that way, it was the values of the parkland, the aesthetic values, the recreational values were often overlooked and that was one of the motivating forces for passage of this Act.
Chief Justice Warren E. Burger: Approximately when was all the clearance to the approaches completed, a year ago, two years ago, how long?
Mr. John W. Vardaman, Jr: It's hard, the record -- the record shows that that construction began in 1967.
They authorized to the acquisition the right-of-way.
They began to acquire it also by parcel.
By 1968 the record shows that much of it had been acquired.
Chief Justice Warren E. Burger: Well at that time it was reasonably clear that there were going through the park?
Mr. John W. Vardaman, Jr: No Your Honor at that time the Secretary of Transportation, in a letter to the President of citizens to preserve Overton Park stated that the Federal highway administrator had told the Memphis city council in the April of 1968 that the Department of transportation has no final decision from the location of this highway.
Chief Justice Warren E. Burger: When it was clear that it -- the route would go through the park approximately?
Mr. John W. Vardaman, Jr: That's one of the difficulties of this case.
The final decision which made in 1969, November of 1969, a previous decision that whether that was a type of decision that couldn't have been changed, is simply is not clear from this record.
At that time --
Chief Justice Warren E. Burger: At that stage in 1969 November, would a declaratory judgment and the injunction had been an available remedy in your view?
Mr. John W. Vardaman, Jr: It certainly would have, that's exactly what we saw, declaratory injunction -- the declaratory judgment and injunction.
I understand it Your Honor, it is trouble by the point of granting an injunction against this highway where there has been clearing of this right-of-way up to the park, but I think it's important to bear in mind the sequence of a events here.
They began clearing that right away fully two years before any final decision was made, and much of it was acquired at the time the Department of Transportation was saying we have no final decision on this matter.
That if the Secretary is to be allowed thwart any review of his decisions by this piecemeal acquisition of right-of-way of right up to the park, then the administration and the effectiveness of the statute, is whittled away.
Because every time he has a controversy of project, it will be possible to box himself in, or box according to present you with a (Inaudible), simply by acquiring the right-of-way right to the park, before he ever approves the park which involves the park.
And I would point that it's only once he approves that segment that citizens have a cause of action under the statute, under which this action was brought.
And where there has to be a final agency action involving a park before we can bring this suit and obtain the review.
Chief Justice Warren E. Burger: And that's under the suit under the Act?
Mr. John W. Vardaman, Jr: That's correct and therefore our cause of action didn't accrue until November 1969 and we are then met with the defense well we have acquire this right-of-way by -- before approving the section which involves the park.
Justice Byron R. White: Mr. Vardaman, what are the issues that you are presenting to us?
is the first one, whether or not he has made the required statutory findings?
Mr. John W. Vardaman, Jr: That's correct, Your Honor.
Justice Byron R. White: And even if he had, your second issue or at least one of your issues is that his findings are infirm?
Mr. John W. Vardaman, Jr: That's correct.
Now the first issue we have maintained throughout that it is a disputed issue of fact, but we have framed it, in presenting at to this Court, we have framed it a little differently.
It's undisputed that at the time we made these decisions there was no contemporaneous documentation.
He never made a record of that and we maintain that even if he made a minimal finding simply decided in his own mind, that that's inadequate here.
We also maintain that he never made such --
Justice Byron R. White: Well, would your first point be mooted if he presented in this court a piece of paper that made the findings that you say are missing?
Mr. John W. Vardaman, Jr: I think at first point, I think, it would be mooted.
We would then proceed to whether or not the finding, the determination was infirm.
Justice Byron R. White: Well his brief pretty well makes that, doesn't it?
Mr. John W. Vardaman, Jr: I don't think it does Your Honor.
And let me point out that, there is one contemporaneous document, which he produced the Your Honor, and that's a press release.
We litigated this case in the District Court --
Justice Byron R. White: Yes he nevertheless could moot the point by presenting a piece of paper, if he hasn't already had done so?
Mr. John W. Vardaman, Jr: That's correct and he hasn't done so, not in the explicit terms which I think this Court should demand in order to review what he did, but I want to go back to one point involving the press release.
He seems to take the position that he felt the route had been determined, and as whether he made any decisions as to alternative routes, I think is open to questions.
Justice Byron R. White: And your -- and the second point, your second is what, is that his decision was wrong?
Mr. John W. Vardaman, Jr: His decision, that is -- that is an additional point.
The second point which could possibly also be mooted if he gave a satisfactory written determination, although I wouldn't concede it would be mooted, is that the court below held even though the Secretary made no documentation of his finding that this Court's decision in Morgan, United States against Morgan prohibit any inquiry of the Secretary as to whether he did make the finding.
And the difficultly which is presented to anyone seeking review under the statute, seeking enforcement of the statute under the holdings below, is that the first the Secretary is not required to record the fact that he made the determination required by statute, and those seeking review aren't entitled to ask him whether he made it.
The court below simply doesn't answer the question of how those who seek review or to have it be able to determine whether --
Justice Byron R. White: He presented affidavit and affidavit saying that he had made it?
Mr. John W. Vardaman, Jr: The affidavit has been construed that way.
It is much less than clear from that affidavit that he made these decisions, and we have contended throughout that there is a dispute on that issue.
The affidavit is set out partly in the briefs, and it's the record, I won't go through it word by word.
Rather than saying the Secretary made a decision, there being no feasible and prudent alternatives which he could have said, had he made the determination, the affidavit is too much is very, very vague.
Justice Byron R. White: Well, assuming it, assuming you didn't get by, you didn't prevail on those two points, what standard, assume that the Secretary has made the findings here simply challenging their sufficiency, what standard are you urging the courts must use in reviewing administrative procedures?
Mr. John W. Vardaman, Jr: We think that proper standard in this case is that suggested by Judge Celebrezze below, whether it supported by substantial evidence.
The substantial evidence test under the Administrative Procedure Act is required where there has been a hearing required by statute and there are hearings in this case which are required by --
Justice Byron R. White: Yes but not by him?
Mr. John W. Vardaman, Jr: Not by him, that's correct, but there are statute --
Justice Byron R. White: He doesn't have to give notices and go through the hearings and take the evidence under the statute --
Mr. John W. Vardaman, Jr: He doesn't, no but the transcripts of the hearings have to be forward into him and if the standard is not the substantial evidence test it would be entirely possible that the Secretary might simply disregard the evidence in those hearings.
If it's merely arbitrary and capricious standard and the court looked only to that evidence which supported this decision as opposed to the entire record, and gave some consideration that which detracted from it, the court would -- the Secretary might disregard the evidence in those hearings and the court would not be required to review it.
This we suggest this is substantial evidence test.
I think – excuse me.
Justice John M. Harlan: (Inaudible) in absence of formal findings as I read the government's (Inaudible) insofar as the future is concerned that the recored By regulation and by --
Mr. John W. Vardaman, Jr: Your Honor if I recall the government's brief I think that's a policy which was adopted which has been changed once.
We don't know whether it would be changed again.
We don't know for instance whether it might be waived in particular cases.
There is some effort along this line as I understand it, but I don't think that, that is any reason that this Court shouldn't consider that issue, Because I think if as we assert these findings are required of judicial review in order to make sure that we have these findings in every case I think this Court should so hold.
Justice Potter Stewart: That is a factor that would be a legitimate one under the rules of our Court in deciding whether or not to grant a petition for certiorari, would you agree with that, would you?
Mr. John W. Vardaman, Jr: I would agree with Your Honor that it's something to be considered, but I would note that this policy has been amended once and there is a I believe a department of the transportation memorandum which is not citied in the brief, so I could provide you with the citation which states that no policy memorandum, no regulations are intended to create any rights in private proprieties and I think the intent of that is to, to say we may have a policy such as this, but if we don't obey it in any particular case, the citizens don't have any review.
And unless this Court holds differently, lower courts are undoubtedly going to follow the Sixth Circuit's decision that he need to make no formal findings.
Furthermore I think, it's important, another important issue in this case, is a question of whether he can obtain a summary judgment solely on the basis of affidavits instead of submitting to the court on his own notion for summary judgment the record on which he acted, instead he submits affidavits which characterize that record, and we think --
Justice John M. Harlan: Is that affidavit part of the record for us?
Mr. John W. Vardaman, Jr: Yes, it is Your Honor.
That's the affidavit of Mr. Edgar Sway (ph).
Thus I would suggest to Your Honors that because of the narrow constricted judicial review, which the Sixth Circuit dictates in cases of this nature, if that decision is not reversed, it practically precludes any effective judicial review under the statutes on which we rely.
For that reason I suggest that this a case of extreme Federal importance, the emerging Federal efforts to protect the environment is worthy of consideration by this Court.
Justice Potter Stewart: If -- now this statute was rather recently enacted?
Mr. John W. Vardaman, Jr: 1966 Your Honor.
Justice Potter Stewart: Yes and amended in 1968 or 1969, I think?
Mr. John W. Vardaman, Jr: Yes.
Justice Potter Stewart: Now there is some indication in the record, that this basic decision was made back in the 1950s.
Mr. John W. Vardaman, Jr: That's correct.
Justice Potter Stewart: And if that's true then I suppose the statute wouldn't be applicable at all, would it be?
Mr. John W. Vardaman, Jr: Let me explain what else is in the record.
Justice Potter Stewart: Alright.
Mr. John W. Vardaman, Jr: The record does say that the decision was made in 1956.
However, it's clear that with respect to the alternatives that would be shown to you on this map that's brought in, the one immediately North of the park and South of the park, those weren't even studied until 1965 and the Federal Highway Administrator was still suggesting them to the city council as alternatives in 1968.
And there is in the record in this case, a document, a letter from the secretary of transportation which indicates in 1968 we had no final decision on this route.
So although, some preliminary decision may have been made in 1956, and we don't know the nature of that preliminary decision, it's clear that the secretary transportation was exploring alternatives in 1968, and rejected those alternatives.
Justice John M. Harlan: Suppose the – can I ask you one more question?
I suppose if you prevail (Inaudible)?
Mr. John W. Vardaman, Jr: Depended on what project the state wish to use its own fund for.
If the state wishes to build a highway in this park with its own funds, the interstate specifications to be linked with an interstate highway on the West of the park and on East of the park and to provide the missing link of interstate 40, I think that the Federal Government -- that the state would be acting in concert with acts as an agent with Federal Government and would be susceptible to equity powers of this Court.
I think, it would be a blatant effort to avoid the requirements of the statute.
I think it would be in anticipation in a Federal enterprise.
I think that any effort to circumvent the statute in that matter would certainly be correctable by this Court, or by any Federal Court.
Justice Potter Stewart: This property now does belong to the state it's been conveyed by the city?
Mr. John W. Vardaman, Jr: That's correct Your Honor.
Justice Potter Stewart: This acreage?
Mr. John W. Vardaman, Jr: That's correct.
Justice Potter Stewart: And the city has already expanded half of the proceeds more or less or a portion of the proceeds for considerably more acreage for a public golf course and has another substantial amount of the proceeds which is explicitly earmarked under local law for the acquisition of park property?
Mr. John W. Vardaman, Jr: That's correct, Your Honor.
We think it's highly appropriate that the city should buy more parkland, but we hardly think that the way to raise money for that parkland is selling that which they already have.
Justice Potter Stewart: Well so you'll end up with substantially increased park acreage?
Mr. John W. Vardaman, Jr: That's correct but I wish --
Justice Potter Stewart: Of course it may be the park that you might submit in the wrong place?
Mr. John W. Vardaman, Jr: The quality of the parks, the accessibility of the parks, the location of the parks, all of those are important.
This park has been described as one of the most beautiful city parks in the country and I think that, that should be sufficient to invoke the statute.
Chief Justice Warren E. Burger: Thank you Mr. Vardaman.
Argument of Reynolds
Mr. Reynolds: Mr. Chief Justice, may it please the Court. Secretary of Transportation opposes this stay essentially because the issues to be presented are not sufficient importance to warrant a grant for certiorari.
I will confine my remarks to this aspect of the case.
Mr. Hanover, counsel for Commissioner Speight will then discuss the effect such a stay would have on the respondents.
Interstate I-40, we have been told --
Justice Potter Stewart: Your point is that if we can confidently predict, that certiorari would not be granted in this case, even though majority of the Court might think that the Court of Appeals for the Sixth Circuit was wrong, but if we can confidently predict that certiorari would not be granted then we must vacate the stay or a temporary stay and not grant a permanent stay, even though the decision of the Court of Appeals for the Sixth Circuit might be wrong.
Does it follow, is that correct?
Mr. Reynolds: We would --
Justice Potter Stewart: We simply going to deny certiorari than that's – we're going to – it follows that the Court of Appeals decision is going to be left undisturbed even though wrong, is that correct?
Mr. Reynolds: Not necessarily Your Honor.
There is involved in the stay application, the question of whether the determination by the Court of Appeals as to whether they were no undisputed facts here, and therefore supporting summary judgment whether that was a correct determination and there is --
Justice Potter Stewart: Well that arises only if as and when we've granted certiorari, isn't it true?
Mr. Reynolds: That question will arise --
Justice Potter Stewart: Only if certiorari is granted?
Mr. Reynolds: That's correct.
That question may be considered by this Court though --
Justice Potter Stewart: The question now is the likelihood of granting certiorari, isn't it?
Mr. Reynolds: That's correct.
Yes Your Honor.
Interstate I-40 will cut over in part in half we're told.
I would like to add a few pertinent facts with regard to that contention.
This map shows and there is mark on map, only the portion of the highway that we are now considering, it does extend on out at the present time to the ends of this map.
The route will run along what is an existing non-access bus road, which including the clear right-of-way on either side is presently 40 to 50 feet wide.
Along the North edge of the road from West to East for about two-thirds of distance of the bus route is a 6 to 8 foot chain-link fence, presently separating the zoo from the rest of the park.
The zoo is up in the North area and at the present time the city is expanding zoo facilities East.
In the North-East corner are the parking lots for the zoo, which the city anticipates to expand and improve.
Thus essentially Overton Park is south of the bus route.
That's where the lake is, that's where the golf course is, that's where the picnic areas are, the outdoor theater, the art galleries and most of the woodland, and that remains untouched.
The highway itself will take 26 acres of the 342 acre park, and it will involve cutting down 12 acres of trees as opposed to leaving approximately 175 acres untouched.
Turning to the determination, Secretary Boyd's approval in 1968 of the route --
Chief Justice Warren E. Burger: May I interrupt you Mr. Reynolds, could you have your colleague to find out to just to clarify it for me the outer boundaries of the park has the park now exists, I think I understand it, but I am not sure --
Unknown Speaker: That would be the west of boundary, that would be the east of park --
Chief Justice Warren E. Burger: I have – thank you.
Mr. Reynolds: Now secretary Boyd approved the route of this Park in 1968.
This was the first approval after enactment of Section 4 (f) Department of Transportation Act which has this specific language that is at issue here.
At the time that he approved the route, he wrote a letter to the Chairman of Citizens to Preserve Overton park.
He explained the considerations and study that went into the alternative routes at length.
And then he concluded that letter with this statement, “Now, that the decision has been made on a specific alignment for the route, I have asked Mr. Bridwell, who is a Federal Highway Administrator to develop a number of specific design alternatives, in order to minimize damage to the Court and its facilities”.
There was no objection at that time by petitioners.
No suit was commenced, and there was no request for injunctive relief.
Justice John M. Harlan: What year was that?
Mr. Reynolds: That was in 1968, April of 1968.
Now between April of 1968 and November of 1969, the State purchased the right-of-way from a point where the alternates diverge in the main route on the map up to the edge of the park on both sides, and they clear that right-of-way.
In addition, the State purchased from the city, the 26 acres strip for $2 million.
And in addition, the State Highway officials held design hearings, as to what the proper design should be of the highway through the park.
On November 5 1969, after enactment of Section 138 in the Federal-Aid Highway Act, Secretary Volpe announced, “ The hold on the project has been lifted, after the State agreed to adjust the grade line of the depressed freeway to a point as low as possible.”
And that press release further stated, “ The State has also agreed to take all steps possible to minimize the harm to the park resulting from the highway.”
Justice John M. Harlan: (Inaudible)
Mr. Reynolds: Your Honor, the press announcements are attachments to the Speight affidavit, the letter to th chairman for citizens to preserve Overton Park is an attachment to the Chairman's affidavit which was put in, in this case.
Justice Potter Stewart: Nowhere can I find and may be just I didn't look right,but nowhere have I found so far any statement in the language of the statute, whether in a press release or otherwise, that there is no feasible and prudent alternative to routing the highways through the park.
Have I just not looked (Inaudible)
Mr. Reynolds: Your Honor there is not in a press release that specific language --
Justice Potter Stewart: In the press release on which you relied on as I understand it for the finding, isn't it?
Mr. Reynolds: Well, if I may.
Secretary Boyd in his 1968 press release, announced that they -- he had approved the route following the resolution of the Memphis City Council.
That resolution reads and I quite in pertinent part “Whereas representatives of the Federal Government have furnished the Council with considerable information and data to the effect that no other feasible and prudent route is available.
Now therefore be it resolved by the Council, that the Council finds the route presently designated by the Federal Government through Overton Park as the feasible and prudent location for said route and Secretary Boyd in his press announcement said, that he was approving the route on -- following that announcement.
Justice Potter Stewart: But it doesn't quite add up to the statutory language, does it?
They approved it as the feasible and prudent.
Mr. Reynolds: The Memphis Council approved it as --
Justice Potter Stewart: And that's not a finding, that there is no alternative feasible and prudent route, isn't it?
Mr. Reynolds: But Your Honor, they approved it as the feasible and prudent alternative, but they stated whereas they had been shown by the Federal Government that there were no other feasible and prudent alternatives available.
The Federal Government went down to the Memphis City Council, they explained to him for over three-and-a-half hours, indeed Mr. Bridwell did, the different alternatives routes that were considered has possibly prudent and feasible and discussed with the Memphis City Council, the determination as to prudent and feasible routes, and I add that there was --
Justice Hugo L. Black: What was their stand that they viewed to determine whether a route was feasible and prudent?
Mr. Reynolds: The determination itself, Your Honor?
Justice Hugo L. Black: What I am interested in is what they base that if they had – what was the standard that would have been followed?
Mr. Reynolds: The determination itself was based on these factors.
The routes we show here, the alternate routes, are the ones that have been most predominantly mentioned in throughout the deliberations of this project.
Chief Justice Warren E. Burger: Now, would you indicate when you say the alternatives, would you have your colleague them on the map?
Mr. Reynolds: Yes, Your Honor.
The one to the South is marked number 2, immediately North is number 3 and the third alternative is the one that runs in a triangular shape.
As to the route directly North, it was determined that, that would involve taking three schools involving South Western University and the largest high school in Memphis.
It would involve taking several churches, attended by some 4,000 persons.
It would involve taking a number of residential units of more than 1,500 persons.
The route to the South of the park --
Justice Hugo L. Black: Now, the only reason, I have presume this suit involved taking a fresh Bill is because it was in a park and you didn't have them?
Mr. Reynolds: The reason that, that was not --
Justice Hugo L. Black: Yeah, that's the reason it didn't involve a lot of buildings?
Mr. Reynolds: That's correct Your Honor.
Justice Hugo L. Black: Are you taking a position that the cost of these (Inaudible) considered they are not to take it -- let them put it into park?
Mr. Reynolds: No, Your Honor, I am suggesting that you have to weigh the social values that are inherent in the disruption and dislocation of individuals and industries when you consider whether to put a road through a park or to put a road in an alternate route.
On page 15 of our brief, we've set fourth, the Senate committee report which is part of the legislative history and it states specifically, “ 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.”
Justice Hugo L. Black: What did they say about the displacement of the park?
Mr. Reynolds: They said this – they then go on to say, therefore the use of parkland is properly protected with damage minimized by the most sophisticated construction techniques is to be preferred to the movement of large numbers of people.
That was the intent of Congress in the legislative history of the Act.
Justice Hugo L. Black: Is there anything in the Act, that indicates that?
Mr. Reynolds: In the Act itself?
Justice Hugo L. Black: Indicates that standard --
Mr. Reynolds: Well, the Congress indicated it in the legislative history Your Honor.
The specific language says that they shall approve – not approve a park route unless, there are no other prudent and feasible alternatives and the question before this Court is whether that was considered?
Whether the determination was made?
And we submit that it's undisputed on this record that the determination was made?
Justice Hugo L. Black: Made and supported or just made?
Mr. Reynolds: Well, Your Honor that goes to the arbitrary in capricious standard, where the standard of review that is to be exercised in determining the Secretary's determination.
Our position is that, it is the Secretary's function to perform to make the determination, and this Court is to then decide whether that was arbitrary and capricious.
Justice Thurgood Marshall: Can we do that without the record, his record -- ?
Mr. Reynolds: Without the, excuse me.
Justice Thurgood Marshall: -- the records from the Transportation Act?
Mr. Reynolds: Without the administrative record?
Justice Thurgood Marshall: Yes.
Mr. Reynolds: Your Honor, I believe that on a summary judgment motion, if there are no facts submitted to dispute or to indicate a dispute -- an abuse discretion that it is proper to determine that the secretary did not violate that reviewing standard.
That is all that is required in a summary judgment motion.
Justice Thurgood Marshall: I suppose we found and we need it to get it.
Mr. Reynolds: The administrative record is not part of the record in this case.
No, Your Honor.
Justice Thurgood Marshall: Is it available?
Mr. Reynolds: Well, it is available.
It was in the Department of Transportation, it was shown to petitioner's counsel and he examined the administrative record and sold the entire record on which the Secretary based his opinion.
Now, there is a allegation made that their additional documents in Tennessee.
And that is very well true, but they did not, they were not considered by the Secretary and did not form a part of the administrative record on which the Secretary based his decision.
Justice Thurgood Marshall: All we on that is the statement of the Secretary.
Mr. Reynolds: You have the statement of the Secretary that the determinations were indeed made and you have the affidavits showing the different reasons why alternate routes were rejected.
Justice Thurgood Marshall: Again is there any reason why, the record is not in the record?
Mr. Reynolds: The reason, Your Honor is that, that it was decided below on a summary judgment motion on the basis of the affidavits, and no disputed facts were introduced.
Justice John M. Harlan: It was never before the District Court (Inaudible)
Mr. Reynolds: I beg your pardon.
Justice John M. Harlan: The record -- the administrative record was never presented to the court?
Mr. Reynolds: No sir, not, it was not, but there was full access to it for petitioner's counsel had he wished to present it in order to show, in any way that the determination was not made properly.
Justice Thurgood Marshall: Mr. Reynolds how can I find out the exact time, the red stripe, and the two yellow stripes on both sides, when was that decided upon?
Mr. Reynolds: That was decided upon in 1968, April of 1968 and that is in the record Your Honor.
And the petitioners received a letter from the Secretary himself which I quoted in part, telling them at that time that the determination had made that the route would run through Overton Park.
Justice Thurgood Marshall: And by the time that the land was clear, the only feasible route was through the park?
Mr. Reynolds: In November of 1969 when the design was approved, that is correct, the land had been cleared to the edge of the park on both sides.
Justice Thurgood Marshall: And so that's the end?
Mr. Reynolds: I beg your pardon?
Justice Thurgood Marshall: That's the end?
Mr. Reynolds: Of what?
The route was established in 1968 --
Justice Thurgood Marshall: What a feasible route on that map as it now stands other than to go through the park?
Mr. Reynolds: There is no -- there is no feasible and prudent route other than to go through the park.
Justice Thurgood Marshall: Well, then in that case the moving party here has no possible (Inaudible)
Mr. Reynolds: Then moving party here Your Honor has not suggested any issue which would warrant a grant of certiorari by this Court.
Justice John M. Harlan: When were the contacts or have the contracts been (Inaudible)
Mr. Reynolds: Well, Your Honor they bids have been entered on this job.
Justice Potter Stewart: And accepted, their low bid has been accepted.
Mr. Reynolds: Yes, and their low bid has been accepted, that is in the --
Justice Potter Stewart: Contact has been let, hasn't it?
Mr. Reynolds: That is correct Your Honor.
Justice John M. Harlan: When -- when was that?
Mr. Reynolds: That was in November of 1969 I believe, of 1967.
Justice Potter Stewart: This last month, it went ahead very, very rapidly as I read the records.
Mr. Reynolds: I beg your pardon, what?
Justice Potter Stewart: It's was last month that the contact was let, wasn't it?
Mr. Reynolds: Yes there was -- the contact was let.
Justice Potter Stewart: Now they --
Mr. Reynolds: But the clearing had taken place between 1968 and 1969.
Justice John M. Harlan: I though the contact would (Inaudible) the support (Inaudible) Is that right?
Mr. Reynolds: I believe that's right.
That what -- that's all I say.
Justice Thurgood Marshall: All we could do now is to unring the bell.
Mr. Reynolds: Beg your pardon?
Justice Thurgood Marshall: All we could now is to unring the bell, is that right?
Mr. Reynolds: Well, Your Honor I don't believe the question before this Court is to decide what might be a possible prudent reasonable alternative route or a possible better design, but rather just to determine whether or not there are any issues in this case that should be determined by this Court to warrant a grant of certiorari.
Justice Hugo L. Black: How many other parks are there --
Mr. Reynolds: In Memphis, for time being?
There are in number, I don't know the exact number.
The city has purchased a 160-acre park which has a golf course on it, with the money that they received from the State.
They have -- in addition they expect to purchase another 140 acres in and around Memphis, for -- with this money.
Thank you Your Honor.
Chief Justice Warren E. Burger: Thank you Mr. Reynolds.
Argument of J. Alan Hanover
Mr. J. Alan Hanover: Mr. Chief Justice and may it please the Court.
On behalf of the State of Tennessee I think that I might for a moment digress and help possibly answer some factual questions that members of the Court have asked which of course are very difficult for Reynolds to ask.
He having not had an opportunity to see the park I live there.
An answer to the question a moment ago, how many parks are in Memphis State?
The record shows that the city of Memphis at the present time has some 47,000 acres of parks within it's borders.
We are talking of course about 26 acres out of a 340 or 50 acre park.
Of course, it should it be pointed out to the Court that the zoo has always been a separate entity from the park itself.
Chief Justice Warren E. Burger: Mr. Hanover, don't get too far from the microphone.
Mr. J. Alan Hanover: Yes.
I might have that point out then possibly I could do both at the same time.
The zoo has always been a separate entity from the park, has always been served historically for over a 50 or 60 years by this bus route which many years ago was a street car route and formally a little narrow gauge railroad.
The only entrance to the zoo, from the south has always been at this point and will be continued by means of a pedestrian walkway over the depressed area of the expressway.
Basically, the position of the state of Tennessee is that we should not be stayed, not by reason of any Eleventh Amendment issue which we have raised and did not intend to claim sovereign immunity.
I fielded in Mr. Vardaman's brief, he possibly misunderstood something.
I said it in my brief, the state felt that it had a vital interest in this case not only from a cost standpoint, but from a duty to its citizens delay, safety, future maintenance of this road.
The state doesn't feel that it should be stayed for the reason that there are no constitutional issues in this case, that is the state of Tennessee has not been accused of, in this case whatsoever of violating anyone's constitutional rights and the statute itself does not run to the state of Tennessee.
It only places a burden upon the secretary of transportation.
The reason that we feel that way is because the state has expended and paid for the land in question, and all of the land to each side of the park.
In that connection, I should point out to the Court that this East West express way is approximately 12 miles long and extends from the eastern edge of the city, to the Mississippi river which has been correctly stated as being the Western boundary of the town.
Justice Thurgood Marshall: You mean 12 miles through the city?
Mr. J. Alan Hanover: Yes sir.
It is the only present planned method of bringing traffic from our downtown area which is on the western edge rather than centrally located as in most cities to the eastern heavy residential areas.
Now the state has purchased this and it's our belief that the state should be the master of it's own destiny in a federal aid situation that if the route should later be changed, if changes should be made which either cause delay or a cost which the state may not wish to participate in, it's going to be left with this $2 million expenditure which we may or may not get back from the department of transportation.
Justice Byron R. White: Well Mr. Hanover, at the time of this Act was passed, when was it, in 1969?
Mr. J. Alan Hanover: 1968.
Justice Byron R. White: 1968.
Prior to that time, the route had already been selected through the park --
Mr. J. Alan Hanover: Yes sir, they --
Justice Byron R. White: -- under prior laws --
Mr. J. Alan Hanover: Yes sir.
Justice Byron R. White: -- and had the state prior to passage of the new Act required right-of-way?
Mr. J. Alan Hanover: Had acquired right-of-way Your Honor, all the way on the eastern and western edges leading up to these last two segments, or the last two, bringing it to the --
Justice Byron R. White: And had they acquired the route through the park, the right-of-way through the park prior to the passage the new Act?
Mr. J. Alan Hanover: No sir.
That was acquired after Mr. Boyd's letter which Mr. Reynolds read, I acquired that myself for the negotiations with the city of Memphis --
Justice Byron R. White: But the all, all the right-of-way outside the park had been --
Mr. J. Alan Hanover: Practically, the time this lawsuit was filed one year ago, all but two parcels in this 12-mile stretch had been acquired.
Since that time, all has been acquired.
Justice Byron R. White: Had there been clearing of the right-of-way prior to the passage of the new Act?
Mr. J. Alan Hanover: Yes sir and construction in various segments on each side.
Justice Byron R. White: What about, how close to the part that clearing or construction taken place?
Mr. J. Alan Hanover: Clearing or construction, Your Honor, prior to the passage of, or prior to this case, and occurred in this general area within, I would estimate within half-mile or less or the park on each side.
Justice Byron R. White: But all the right-of-way have been acquired?
Mr. J. Alan Hanover: Yes sir, at the time this case was filed, there were one or only two minor easements out of some 1700 parcels, the park being one that has not been acquired.
Justice Byron R. White: They were speaking as of the time of the passage of the new Act?
Mr. J. Alan Hanover: I would estimate that at time Your Honor, that is not in the record from either side.
I would estimate based on personal experience that I would say two-thirds to three-fourths had been acquired by 1968.
Justice Hugo L. Black: Do you think the Act applies?
Mr. J. Alan Hanover: I think the Act applies, Your Honor, in this situation only to the question of whether all possible half of the things have been done to minimize harm of the park.
I think the route question was settled prior to the passage of the Act.
Justice Hugo L. Black: You raise any question as to the constitutionality of the Act?
Mr. J. Alan Hanover: No sir.
Justice Hugo L. Black: You agree that Congress has the power in passing on these things, pass along to say the city park shall not be taken, except under certain circumstances?
Mr. J. Alan Hanover: Yes sir I agree with that.
I just don't think this particular Act applies to the state of Tennessee.
I think it only applies to the Secretary of Transportation.
Justice Hugo L. Black: But you think it applies to this highway?
Mr. J. Alan Hanover: I do.
Justice Hugo L. Black: What difference does it makes whether it applies to the state of Tennessee, if it applies to the highway?
Mr. J. Alan Hanover: Well, I think the difference is Your Honor, that it affects whether or not the Secretary can grant Federal Aid.
I don't think it affects the state's right to build a highway which it feels it needs through a park without Federal Aid.
Chief Justice Warren E. Burger: Going back to your question that was out earlier to someone, would you say that if the state of Tennessee were building this entire highway, that there would be any federal jurisdiction at all?
Mr. J. Alan Hanover: You mean the entire I-40?
Chief Justice Warren E. Burger: All of it?
Mr. J. Alan Hanover: I would agree with -- I would say that there would not be -- the point is Your Honor that it's done and approved in sections.
The state never knows until it's completed whether or not the Federal Aid will be forthcoming.
It's more in a nature of a unilateral contract which the federal government says, if you build this road in a certain way, we will pay our portion.
There is no requirement that state build it, the federal government cannot make them build it and when I get through, they may say you haven't complied with our standards, we won't pay.
Justice Potter Stewart: The 90% federal?
Mr. J. Alan Hanover: Yes, sir.
Justice Potter Stewart: Well, what if you lose this case?
Would you say that the federal government would only be prevented from contributing to the construction of the highways through the park?
Mr. J. Alan Hanover: That's correct.
That's our position, Your Honor, that the statement should then have the right to, excuse me --
Justice Potter Stewart: Just through the park?
Mr. J. Alan Hanover: To re-evaluate its position it may wish to decide to do that, anyway, it's always been the state's position even before the road has reached the end and that was the only feasible and prudent alternative for the city of Memphis, it's patterns and it's for various other things that should be considered in the building of this road.
Justice Hugo L. Black: Is the map, is the top part of it North, the bottom part South?
Mr. J. Alan Hanover: Yes, sir.
Justice Hugo L. Black: Right west, the left east.
Mr. J. Alan Hanover: This is east.
Justice Hugo L. Black: What is the width of the city there?
From the place where the road enters to the place where it --
Mr. J. Alan Hanover: The width of the city at this point.
Justice Hugo L. Black: Yes.
Mr. J. Alan Hanover: I would estimate, Your Honor, that that's about four to five miles of the center of the city.
Justice Hugo L. Black: And of course, if there is -- I am not talking about feasible, I don't know what's a feasible alternative?
Mr. J. Alan Hanover: Yes, sir.
Justice Hugo L. Black: But I presumed that that place like many others, could be entered either from the northern part or the southern part, to go around the edges and would not interfere either with the park or all these churches?
Mr. J. Alan Hanover: Well, the only problem with that, Your Honor, is that on three sides of the park, where I am pointing our three of the largest through fares in the city, which of course handle great body of traffic.
Justice Hugo L. Black: They are already there?
Mr. J. Alan Hanover: They are already there.
Justice Hugo L. Black: You have no problem with them?
Mr. J. Alan Hanover: No, sir and of course, the point is that it would affect I am sure engineering wise, the use of the express way if you did away with some other major thorough fare and building of which just being canceling out what you are doing.
Justice Hugo L. Black: I would assume that a highway built across the northern part or built across the southern part, as far as time is concerned, would be no advantage to putting it through the park, would they?
Mr. J. Alan Hanover: Well, I don't think you would take any longer to construct.
The problem is that all of these people are already moved and the houses are already torn down and the state owns all of these right-of-way.
The only other point that we wished to call to the Court's attention is that in the event that this Court does feel that a stay is proper, we do feel, the state feels that it is a proper case for some security.
We realize of course, that security is a matter of discretion with this Court, but the state has been stayed off and on in this matter for over a year.
They originally had a letting plan last November 1969, and because of a stay order issued by the District Court, the state has not been able to do anything until the Sixth Circuit Court of Appeals released the injunction.
At that time, the state did move ahead properly, in view of fact that this road has been in progress for all most 15 years and did let a contract.
We gave that information to the court, so the court could see how rising costs have affected the state.
I do not agree with the arguments presented that it would hurt the petitioners or deny them any rights.
Justice Hugo L. Black: Do you agree with that petition or do you consent to that petition?
That if the Court takes the case, it should decide it on this argument and there is enough evidence to decide it?
Mr. J. Alan Hanover: We do not object to job, Your Honor.
I would feel on behalf of the state that we should have been given the opportunity to file some possible additional briefs within a very short period of time, if the Court chose to do that since we did not cover all of those issues at --
Justice Hugo L. Black: Is that (Voice Overlap) you think and to allow to take its natural course?
Mr. J. Alan Hanover: Well, Your Honor naturally the delay is something that we have been fighting, or that I have been fighting for some time and we do want to expedite it, although we do feel that the state is entitled and the commissioner too, I mean, it could be damaged heavily without security.
Justice John M. Harlan: What kind of security are you thinking?
Mr. J. Alan Hanover: I think they should post a bond, Your Honor.
Justice John M. Harlan: How much?
Mr. J. Alan Hanover: I would estimate, again Your Honor this is based on knowledge that I am not fully aware of it on times, how long it would take but I would estimate a bond for – in the neighborhood of $250,000 to $500,000 would be sufficient rather than a multi-million dollar bond that counsel for the petitioners seems to think, we are required.
Justice Hugo L. Black: What kind of loss would you suffer?
Mr. J. Alan Hanover: We will suffer, as we already have in the past year, the bid, proposed bid by the same low bidder a year ago was $613,000 less than it is today.
So, in the last year, cost for building this identical engineering design have risen $613,000.
Justice Hugo L. Black: It's not based on the fact, you bought this land and I would assume in the middle of Memphis, if that isn't in middle of Memphis.
The land will be wasted as much more --
Mr. J. Alan Hanover: Well --
Justice Hugo L. Black: -- when they get through than it is (Voice Overlap)
Mr. J. Alan Hanover: I don't know what the state can do with it, Your Honor.
The city has already spend most of the money.
Justice Hugo L. Black: (Voice Overlap) land wouldn't even consider --
Mr. J. Alan Hanover: Well, we might -- hate to be factious, but I don't know what the city could do with this 26 acre strip in the park.
I am sure we couldn't get the money back in the city.
Justice Hugo L. Black: That's right in the park, isn't it?
Mr. J. Alan Hanover: Yes sir.
Justice Hugo L. Black: I am talking about -- I was talking about the approaches, to the park?
Mr. J. Alan Hanover: Well, the approaches --
Justice Hugo L. Black: The houses and so forth --
Mr. J. Alan Hanover: The houses are gone.
They have all been, they have dead land that has been leveled and is ready for construction.
Justice Potter Stewart: You're relying of Mr. J B Michael junior?
Mr. J. Alan Hanover: Yes sir.
He is the low bidder, who --
Justice Potter Stewart: He is the low bidder --
Mr. J. Alan Hanover: -- was awarded the contract.
Justice John M. Harlan: Well, assuming that (Inaudible) does the (Inaudible) construction part, does the Federal Government has to foot the bill?
Mr. J. Alan Hanover: No government --
Justice John M. Harlan: Added incentive?
Mr. J. Alan Hanover: Yes sir, I think the bond should run to both and I think both parties need be protected, not just the state.
Justice John M. Harlan: The Federal Government has (Inaudible)
Mr. J. Alan Hanover: Of course, we have no guarantee Your Honor that when it's over with that for some other reason they may deny federal aid.
Justice John M. Harlan: They what?
Mr. J. Alan Hanover: We have no reason to know at this time when the road is completed even though this way that for some other reasons, the department may say, we are not going to pay federal aid and they may feel that we have not handled something else in a proper manner, which often happens.
They have that right to withhold the aid until the state has completed the project and expended their funds and shown the department that they have done everything according to the requirements.
Justice Hugo L. Black: You would agree I suppose as far as the Congress is concerned that there is no doubt, they have attempted to put a considerable burden on somebody before they destroy a city's public park, the whole or part?
Mr. J. Alan Hanover: I think that Congress rightly so has required the Department of Transportation and the Secretary to be very careful before a road is put through parks and that should not be done except frankly the situation of this nature where the damage to the park is rather (Inaudible) and no facility whatsoever of this park will be hampered.
Justice Hugo L. Black: Is it – parks as I have thought not only together the government and the value but facilities?
Mr. J. Alan Hanover: I agree.
Justice Hugo L. Black: I thought that mere fact it was a park, is what gave its value to the people?
Mr. J. Alan Hanover: And I agree Your Honor that this will still be a park just as it is when this road is completed.
Justice Hugo L. Black: A smaller park?
Mr. J. Alan Hanover: Slightly smaller park.
Justice Hugo L. Black: For the roads --
Mr. J. Alan Hanover: Slightly smaller --
Chief Justice Warren E. Burger: Is the road now running through the park?
Mr. J. Alan Hanover: The city of Memphis maintains a non-access concrete diesel bus route which around roughly Your Honor in the center of where this right-of-way is now going.
It's the pavement itself is 25 to 30 feet wide and has a clear right-of-way of say 40 to 50 feet wide.
And the route purposes to stay on that, that's the reason that this job was made instead of coming straight across in the first place, was to stay on the natural separation that the park has always had, and to avoid any damage to the park property.
That's the very reason it's designed to follow this slightly raised route as it came toward the park, to stay with that historical division.
Chief Justice Warren E. Burger: Thank you Mr. Hanover.
Mr. Vardaman you have about five minutes left.
Rebuttal of John W. Vardaman, Jr
Mr. John W. Vardaman, Jr: Yes Your Honor, just a few words in rebuttal.
Chief Justice Warren E. Burger: Excuse me Mr. Vardaman, Justice --
Justice John M. Harlan: I was going to ask the government a question.
Chief Justice Warren E. Burger: Oh!
Justice Harlan has a question.
Justice John M. Harlan: I want to supplement the question that was asked and discussed.
Do you have any objection to having this case decided on the merits of the (Inaudible) put in the way of discovery?
Rebuttal of Reynolds
Mr. Reynolds: By the merits you mean decide the petition question?
Justice John M. Harlan: Yeah.
Mr. Reynolds: Let me just say I do not have problem on that Your Honor.
However the application for a stay do not raise this, as one of the issues to be presented to this Court.
The question is to whether the arbitrary and capricious standard should be applied or the substantial evidence standard should be applied and that issue was briefed in their brief which we do not have the benefit of seeing before we submitted our brief.
I believe that we would like if the Court feels that might be one of the issues that they would want to grant the certiorari on, however I believe we would like to have an opportunity to brief that point unless I could speak to it now.
Justice Potter Stewart: Well, at the moment we are two steps prior to the -- be decided on the merits.
We have before us now an application for a stay pending.
Mr. Reynolds: Yes Your Honor.
Justice Potter Stewart: The filing of an action upon the petition for certiorari and the granting for a petition for certiorari is not yet a decision on the merits of the case.
That comes only if as a when such petition would be granted now and your answer to my brother Harlan's question you concede that you would be willing to telescope the whole business and assume that certiorari has granted in this case, and have – the merits of the case be decided on what's been filed so far?
Mr. Reynolds: Sorry I did not understand the question.
I thought he meant would I be willing to have --
Justice John M. Harlan: That was what my question was intended to be --
Mr. Reynolds: I am sorry.
I thought you meant would we be willing to have our brief treated as an opposition to what is purposed as I believe a petition for certiorari, and that is their brief, and my answer to that question is the one I gave.
I don't believe we would be willing to do the other.
Justice Hugo L. Black: You are not willing.
You answer his question, no.
Mr. Reynolds: His question as to the brief on the merits yes Your Honor, that is – that answer is no.
We would be willing to have it treated as an opposition to our petition for certiorari, except with the one reservation that I mentioned if that is decided.
Justice Byron R. White: You would – if the court was -- you say we could it as the petition for certiorari.
If we granted it, I take it from your answer that you would prefer the briefing and arguments and the delay to immediate decision on the merits now.
If we granted it that probably would be stay.
Mr. Reynolds: If that were granted Your Honor --
Justice Byron R. White: You rather have this grant in the stay and the opportunity to argue then --
Mr. Reynolds: If it were granted and there were a stay I would prefer to have an opportunity to brief the merits.
I would agree to expedited schedule in accordance with the suggestion of this Court, but I do believe if we get to that stage that at that point we would want an opportunity to brief the merits.
Justice Byron R. White: Yes but you don't think you briefed the merits sufficiently for your purposes at this point?
Mr. Reynolds: We have introduced ourselves only to the question of whether this Court should grant certiorari.
Justice Byron R. White: So your answer though -- you have submit you want to get in before the Court decides the matter?
Mr. Reynolds: I may well Your Honor, I would like to have time to consider the question as to what additional information on the merits and I would agree to an expedited briefing schedule if we get to that stage.
I believe at the present time that we would be willing to have our brief treated as an opposition to the petition for certiorari.
Chief Justice Warren E. Burger: Thank you Mr. Reynolds.
Rebuttal of John W. Vardaman, Jr
Mr. John W. Vardaman, Jr: Mr. Chief justice, may it please the Court.
Mr. Hanover's discussion of the time frame of the acquisition of right-of-way, seems to be based upon the premise that this act was passed in 1968 and it was done before it was passed, but that's incorrect.
The statute was first passed in 1966, and the right-of-way acquisition began in 1967.
So the acquisition of right-of-way began after the statute was passed.
Further in the press release that was put out in 1968, it contains of following statement, “much of the right away leading up the park already has been purchased.”
Justice Byron R. White: What's the date of the enactment of the provision that required the secretary to think this is the (Inaudible)
Mr. John W. Vardaman, Jr: The provision was enacted in 1966, Section of 4 (f) of Department of Transportation --
Justice Byron R. White: And -- since 1966 he has had to make this finding?
Mr. John W. Vardaman, Jr: Yes.
Your Honor the statute doesn't says specificity he shall make the finding.
It says he shall not approve the project unless there is no prudent and feasible --
Justice Byron R. White: That has been on the books since 1966?
Mr. John W. Vardaman, Jr: Yes Your Honor and they say now that the route was approved in the 1968, but the right-of-way acquisition began in 1967 and by 1968 much of it had been acquired.
So they acquired the right-of-way before they approved the project and we shouldn't be made to bear the burden of that rather precipitous action.
Instead we suggest that what they have done by purchasing that right away before making the decision is to present themselves in the court with the (Inaudible) which shouldn't be permitted and the Court should review this decision.
Justice Thurgood Marshall: What you argue is about un-ringing the bell?
Mr. John W. Vardaman, Jr: Your Honor, we are concerned about un-ringing bell and in our concern --
Justice Thurgood Marshall: But can you?
Mr. John W. Vardaman, Jr: Yes we can.
Justice Thurgood Marshall: How?
Mr. John W. Vardaman, Jr: And this record supports it.
Justice Thurgood Marshall: How?
Mr. John W. Vardaman, Jr: We have own file in this case an affidavit of an expert transport plan who is gone out and examined present state of right-of-way acquisition and examined alternatives, has examine studies of this and he makes --
Justice Thurgood Marshall: (Voice Overlap) you agree that those lines a bit bulldozed out all the way up to the park?
Mr. John W. Vardaman, Jr: No Your Honor they haven't been bulldozed out to the park.
The houses have been torn down but there is no clearing up to the park.
The clearing --
Justice Thurgood Marshall: Houses are torn down?
Mr. John W. Vardaman, Jr: Yes that land would be redeveloped, it could be resold and redeveloped and what we would suggest would be to go back to point in the route where construction or where clearing of right-of-way is we could use all of the park which has been --
Justice Thurgood Marshall: How long would this redevelopment take?
Mr. John W. Vardaman, Jr: In the affidavit which was filed by our expert he suggested that that these alternatives could be explored and explored in a proper manner on the basis of the information already assembled within 60 to 90 days and this affidavit which is on --
Justice Thurgood Marshall: Houses would be rebuilt in how many days?
Mr. John W. Vardaman, Jr: Well, Your Honor I assume that the houses, when the lots would be sold and they would be rebuilt according to the purchaser desires.
Justice Thurgood Marshall: All the way back to where that line is?
Mr. John W. Vardaman, Jr: I am not clear, Your Honor.
This map of course is not part of the record in this case and I am not sure what these various lines are, but it would go back to approximately, I think the houses have been torn down all the way up to the park, but we could, I suppose that park which would be redeveloped would be in the area of that 1.7 miles, something in that order.
Justice Hugo L. Black: What mile?
Mr. John W. Vardaman, Jr: 1.7 miles I believe, but the reason those houses are torn down is because all of this activity took place before they made the final decision on this project and before the route, and before the statutes on which we rely were actually brought into play, because you had to have a final decision on the segment involving the park before these statutes came into play before we had a cause of action.
We filed this lawsuit within a month after that final decision.
Justice Hugo L. Black: What kind of houses are these that have been torn down, what kind of community, residents?
Mr. John W. Vardaman, Jr: Yes Your Honor.
This is area right here I think primarily was a load of middle class residencies --
Justice Hugo L. Black: Now what kind of residency?
Mr. John W. Vardaman, Jr: I would say low to middle class residential area.
On the other side of the park there are very expensive homes that were torn down.
Chief Justice Warren E. Burger: Do you know the total cost of the city in acquiring that right-of-way?
Mr. John W. Vardaman, Jr: No I don't believe that's in the record.
Cost of acquiring of the right-of-way and park is in the record and I think that's 2.2 million dollars, but I don't think it's in the record what it cost to acquire the right-of-way outside of the park.
Justice Potter Stewart: And to me is what's the state paid to city?
Mr. John W. Vardaman, Jr: That's correct, state, and I don't --
Justice Potter Stewart: That would be reimbursement of 90% from the Federal Government?
Mr. John W. Vardaman, Jr: Yes, I assume that's correct.
Justice John M. Harlan: Were you given access to the administrative record, administrative files of the departments --
Mr. John W. Vardaman, Jr: Not to my understanding Your Honor.
I was led to believe that based on a representation of the document of a Motion for Change of Venue filed in the United States District Court for District of Columbia, that the bulk of relevant documents in the case were in Tennessee, that's why the government sought to change venue.
I was on afternoon, two days before preliminary injunction motion allowed to examine a file in preparation for that preliminary injunction motion which I understood did not constitute anywhere near the number of relevant documents in this case.
And at no time to my recollection was I told that this was the administrative record on which the Secretary acted.
I think further more the question of what the administrative record is, is a legal question, but I was in no time told that this was the record on which he acted.
Justice Potter Stewart: This is the controversy surrounding it on page 13 of the government's brief?
Mr. John W. Vardaman, Jr: That's correct.
And I might add that the document -- the document which we did take from that file and put in the record in this case, is a document which had not been submitted by Mr. Speight.
That's the document which shows that the alternative to the north actually takes more residencies, displaces or adversely effects more people in the route which goes through the park.
They characterize that route is taking South-Western university.
As you can see from here it goes past what looks to be a grand front lawn of South-Western.
Justice John M. Harlan: Suppose you prevail on getting your stay and also having the writ wrapped what ultimate relief (Inaudible) in this Court that you would be entitled to?
Mr. John W. Vardaman, Jr: Your Honor, I think the appropriate relief would be that suggested by Judge Celebrezze that this should be remanded to the District Court to be remand treated as a mandamus action and remanded to the Secretary to have him a formal statement on the record as to what decisions he made and why which the court, District Court could then review.
That that's one alternative otherwise the Court could simply reverse enter an injunction and I assume if the Secretary wanted to he could come back and --
Justice John M. Harlan: (Inaudible) reopening of the proceedings and the introduction of evidence?
Mr. John W. Vardaman, Jr: Oh, I certainly would Your Honor.
I would suggest that when we were back that the summary judgment would be reversed and when we were back in the District Court we would be entitled to whatever type of trial that we were entitled in issue.
Justice Hugo L. Black: Would it be a trial in which alternatives other than those marked on that could be considered in your judgment?
Mr. John W. Vardaman, Jr: Yes, I think it should be Your Honor.
Chief Justice Warren E. Burger: Do you think this process, this hypothetical process, is complicated for the fact what the Secretary who made these decision is no longer the Secretary?
Mr. John W. Vardaman, Jr: Your Honor it's -- it is undoubtedly complicated somewhat by that, but that's one of the reasons that it's necessary to impose upon this – the people and make these decisions if the requirement that they be incorporated in some type of written orders so that as the administration change whatever was decided will be recorded there.
Chief Justice Warren E. Burger: Congress did easily have provided that could they not, as they do in many other situations, administrative situations?
Mr. John W. Vardaman, Jr: They certainly could have, however --
Chief Justice Warren E. Burger: But they did --
Mr. John W. Vardaman, Jr: However, the fact that they didn't, I think should not be regarded, that the silence in Congress should not be regarded as provision not to do it, particularly where Congress has made these actions specifically reviewable by the courts under the administrative procedure.
I would note that the people who did make the original decisions or decisions in 1968 are available to testify and they are willing to testify and under the decision below, we are not permitted to ask them what decisions they make.
That's another reason we suggest a decision below --
Justice Byron R. White: But the secretary has been arguing about the Federal-Aid Highway Act that after the effective date of the Federal-Aid Highway Act 1968, the Secretary shall not approve any programs?
Mr. John W. Vardaman, Jr: That's that's a correct statement of the Section 138 of the Federal-Aid Highway Act.
Now, if Your Honor would examine what the Section 4 (f) of the Department of Transportation Act, not as it presently appears, as it appeared when enacted in 1966, the operative provisions are verbatim with the provision.
Justice Byron R. White: You have to say after the effective date of the Federal-Aid Highway Act?
Mr. John W. Vardaman, Jr: No.
I mean that the provisions which we were discussing, shall not approve unless there are no --
Justice Byron R. White: What highways?
Mr. John W. Vardaman, Jr: Shall not approve a project or program, I believe is the statutory language.
Justice Byron R. White: Well, do you think that if the Federal-Aid Highway Act had never been passed, you would still be here on the same case?
Mr. John W. Vardaman, Jr: Under the Department of Transportation Act.
Justice Byron R. White: And you don't think the Federal-Aid Highway Act has superseded that and gave a new date for it --
Mr. John W. Vardaman, Jr: No, Your Honor, the Department of -- let me explain just briefly the way these acts were passed.
There was at one time when Department of Transportation Act was passed, Section 4 (f) was included and it said, “the Secretary shall not approve any project unless there are no feasible and prudent alternatives or unless the design includes all possible planning to minimize harm.”
There was at that time a Section 138 in the Federal-Aid Highway Act that was slightly different.
In 1968, it was decided to make those identical and there was an amendment in 1968, but the requirements concerning feasible and prudent alternatives, and the requirements concerning all possible planning were in the 1966 Act, were applicable to this case and indeed the Department of Transportation considered them applicable to this case.
Now Mr. Bridwell testified before Congress on one occasion concerning certain aspects of this case and he said, Section 4(f) came into play.
So it was the Department's interpretation of the Act as well as ours.
Justice Hugo L. Black: Does this highway connect or going through the city, connect on the east end with the through highway and of course, (Inaudible) to highway?
Mr. John W. Vardaman, Jr: Yes, Your Honor.
Justice Hugo L. Black: Which, what number is it?
Mr. John W. Vardaman, Jr: This is I-40.
It's a transcontinental highway and as I understand it goes --
Justice Hugo L. Black: As far as that highway is concerned it's (Inaudible) not only to take to get through the city and not have to get there (Inaudible)
Mr. John W. Vardaman, Jr: Well, I am not even sure if that's a question in this particular case Your Honor, because the -- for people traveling on an interstate through a traveling interstate, they don't have to go on this highway.
There is under construction now a circumferential which will go --
Justice Hugo L. Black: Which is we have here --
Mr. John W. Vardaman, Jr: I think it's located closer, but basically the idea is the same so that those that are traveling through can – would be able to go on a circumferential and avoid going downtown.
I think that's that's the way those --
Justice Hugo L. Black: Who is started, who offered this bill amendment that provides for this?
Mr. John W. Vardaman, Jr: Senator Yarborough of Texas did.
Justice Hugo L. Black: This improvement, widespread improvement behind it or do you know?
Mr. John W. Vardaman, Jr: At that time, this was one of the first bills which was passed to articulate a purpose and to begin a program in environmental protection.
That movement has been building up over the year since 1966 and now there is wide support for this bill and every other type of bill, practically every other type of --
Justice Hugo L. Black: To protect the parks?
Mr. John W. Vardaman, Jr: To protect parks, to protect recreation areas, to protect our natural resources.
Justice Potter Stewart: As I understand you would say in answer to a question by Mr. Justice Black that if you prevail in this case and the summary judgment is set aside, the case is remanded to the District Court, that then it will be up to the District Court to consider and weigh the merits of the various alternative routes?
Mr. John W. Vardaman, Jr: No, I didn't mean to say that.
What I meant to say is that in passing on the Secretary's judgment, the District Court may determine whether he applied the statute incorrectly in not choosing other alternatives.
Justice Potter Stewart: The question would be whether or not the Secretary complied with the statute?
Mr. John W. Vardaman, Jr: Well, that's correct.
Justice Potter Stewart: It's not up to the District Court surely --
Mr. John W. Vardaman, Jr: Oh!
No, that's -- I really Your Honor -- no it's not up to the District Court.
Justice Potter Stewart: I want to make sure I understood you --
Mr. John W. Vardaman, Jr: That's correct.
The question will be whether he complied with the statute?
Chief Justice Warren E. Burger: Thank you Mr. Vardaman, Mr. Reynolds, Mr. Hanover.
The case is submitted.