The opinion of the court was delivered by: SIRICA
This litigation involves a complex factual background and numerous legal issues; however, one issue stands out as paramount. That issue is whether the Secretary of the Interior through his delegate, the Director of the National Park Service, has discretionary power to limit suburban commuter bus traffic on part of the George Washington Memorial Parkway while not limiting such traffic on other parts of the Parkway. This litigation involves only those parts of the Parkway which are on the Virginia side of the Potomac River. Included in this issue is whether the Secretary has exercised his discretion in a reasonable and non-discriminatory manner under the circumstances and whether the Secretary has the authority to exact a fee from suburban commuter bus companies for such use of the Parkway as is permitted.
Annexed hereto as Appendix A is a map showing most of the Parkway. Included are the sections of the Parkway which are involved in this litigation, the site of the Central Intelligence Agency (C.I.A.), and all bridges, access roads and intersecting roads which shall be referred to in this opinion.
Also annexed hereto as Appendix B are detailed Findings of Fact and Conclusions of Law.
In answer to this complaint, W.V. & M. denied the validity of the regulations upon which the United States requested this injunctive relief, claiming that the regulations are discriminatory in that they permit all buses except suburban commuter buses to use this portion of the Parkway in connection with services rendered off the Parkway, and by permitting all kinds of buses, including suburban commuter buses, to use the portion of the Parkway below the Arlington Memorial Bridge in connection with services rendered off the Parkway. The government's contention that suburban commuter buses detract from the Parkway's scenic values was answered by a denial that such buses have any noticeable effect upon prevailing aesthetic standards on the Parkway, and that even if there is such an effect it would still be unreasonable and discriminatory to insist on the preservation of scenic standards on the Parkway above the Key Bridge but not below the Arlington Memorial Bridge. W.V. & M. also counterclaimed for a return of fees paid under protest to the National Park Service of one cent per vehicle mile. These fees, for prior use of the Parkway, amounted to $ 2,284.16 at the time of trial.
The D.C. Transit System, Inc., the parent corporation of W.V. & M., intervened as a defendant. Also intervening as defendants were the Washington Metropolitan Area Transit Commission (hereinafter referred to as the WMATC) and the State Corporation Commission of the Commonwealth of Virginia (hereinafter referred to as the Virginia State Commission). Although limited, the interventions of the two commissions was for the purpose of joining with the bus companies in emphasizing the legislative aspects of this litigation. The legislative element in this case concerns the issue of whether the act of September 15, 1960, (74 Stat. 1031) authorizing The Washington Metropolitan Area Transit Regulation Compact has any effect upon the powers and authority of the Secretary of the Interior or the National Park Service to regulate the kind and amount of suburban commuter bus traffic on the Parkway. The interests and contentions of the commissions and D.C. Transit are substantially identical with those of W.V. & M.
The second suit, brought by W.V. & M., raised substantially the same issues with three minor additions: first, W.V. & M. sought review of Park Service Regulations to the extent that they do not permit suburban commuter buses to travel on the Spout Run 'neck' of the Parkway (a short deviation from the main Parkway route northwest of Key Bridge into Arlington proper), and between Key Bridge and Memorial Bridge (Route 50); second, W.V. & M. requested that the Secretary and the Park Service be enjoined from collecting fees for any use of the Parkway by commuter buses; and, third, D.C. Transit intervening as plaintiff sought review of Park Service Regulations to the extent that such regulations do not permit suburban commuter buses to use the northernmost part of the Parkway from the Beltway southward to the C.I.A., a stretch of about two miles. D.C. Transit presently carries suburban commuters from Maryland, who work at the C.I.A., across the Potomac River via the Cabin John Bridge on the Beltway (Interstate Route 495). Because present regulations preclude D.C. Transit from using the two-mile 'shortcut' on the Parkway from the Beltway to the C.I.A., a longer and more indirect route must be taken by continuing west on the Beltway past the entrance to the Parkway, on to Route 193, then doubling back on Route 193 to the other C.I.A. entrance.
The parties are slightly different in the second suit. Rather than the United States, the Secretary of the Interior and the Director of the National Park Service were named as defendants. The WMATC and the Virginia State Commission were named defendants in the second action although the positions taken by them are almost identical with those taken by the plaintiff bus companies. Whatever procedural advantages may have been obtained by naming the two commissions as defendants in the second suit, the Court will now treat both bus companies and both commissions as being aligned on the same side against the United States, the Secretary of the Interior, and the Director of the National Park Service.
BACKGROUND AND FACTUAL SUMMARY
The Parkway is owned and controlled by the Federal Government. In Virginia it consists of an elongated national park running parallel to the bank of the Potomac River with a multi-lane highway as its most distinctive feature. From Mount Vernon, at its southern end, it stretches northwestward through Fairfax County, the City of Alexandria, Arlington County, and again, Fairfax County, Virginia. On its northwestern end it terminates at Interstate Route 495, the circumferential highway which forms a beltway around the major portions of the Washington metropolitan area.
For purposes of this litigation the Parkway has been referred to by various sections according to the sequence in which it was constructed. First, there is the southeastern part running from Mount Vernon through the City of Alexandria, past the National Airport, and terminating at the Arlington Memorial Bridge (Route 50). This part of the Parkway was once known as the 'Mount Vernon Memorial Highway' and was completed in 1932. The Parkway above the Arlington Memorial Bridge was added section by section. In 1937, a short stretch was completed between Memorial Bridge and Key Bridge. In December 1950, the 'Spout Run' section of the Parkway was completed. This section runs northwestward from Key Bridge but after less than one mile it deviates southwestward, away from the Potomac River and goes into Arlington proper.
The final stretch of the Parkway was completed in early 1960. It begins where the Spout Run portion deviates away from the Potomac, and continues northwestward along the Potomac Gorge, terminating at the Beltway.
The building which houses the Central Intelligence Agency was completed and opened in the fall of 1961. The C.I.A. site is adjacent to the Parkway, about two miles southeast of where the Parkway terminates at the circumferential highway. The C.I.A. site is served with an access road to and from the Parkway. The C.I.A. site is also served on its opposite side by State Routes 123 and 193, which join when they reach the C.I.A. site and continue toward Washington as Route 123. Going toward the District of Columbia and after passing the C.I.A. site, Route 123 goes over the Parkway at a clover-leaf intersection below the C.I.A. site and continues southeastward between the Parkway and the Potomac, connecting with Chain Bridge into the District of Columbia.
The National Park Service views the various sections of the Parkway differently with reference to what kind of commercial traffic will be permitted. Taxicabs are permitted to travel on any portion of the Parkway without payment of any fee. Commercial trucks are not permitted on any part of the Parkway except in special cases and consequently there is no general provision for fees as to them.
With respect to commercial buses, however, use of the Parkway depends on two factors: what kind of service the buses render, and what portion of the Parkway is involved. First, as to the kind of service rendered, sightseeing buses, and airport buses serving Dulles and National Airports, are permitted on any portion of the Parkway which is desired and needed for those particular services subject to obtaining a permit and paying a fee There are also buses owned by the Federal Government which are used as a shuttle service between the C.I.A. and points in downtown Washington. These government-owned buses are permitted on the Parkway south of the C.I.A. without payment of a fee and in this respect are given more favored treatment than buses of W.V. & M. which are permitted the same use of the Parkway from Key Bridge to the C.I.A., but contingent upon payment of a fee of one cent per vehicle mile. Park Service Regulations prohibit W.V. & M. (or any suburban commuter bus company) from going beyond the C.I.A. to serve suburban residents in outlying northern Virginia, and, thus, these 'C.I.A. commuter buses' operated by W.V. & M. are to be distinguished from 'suburban commuter buses.' In reality, therefore, any bus company (such as W.V. & M.) which operates on the Parkway to and from the C.I.A. under this special regulation, is merely operating a shuttle service for the benefit of the C.I.A. and its employees in competition with, and identical to, the government-owned shuttle service.
The second distinction made by Park Service Regulations deals only with 'suburban commuter buses.' Rather than depending on the kind of service which a bus renders, this distinction is based on different parts of the Parkway. For example, commuter buses which actually carry passengers between downtown Washington and points in residential areas of suburban Virginia ('suburban commuter buses') are allowed unlimited use of the Parkway only on the southern part between Memorial Bridge and Mount Vernon. Such buses, regardless of what company owns them, cannot operate above Memorial Bridge except for the limited 'C.I.A. commuter service,' without violating Park Service Regulations.
Simply stated, the regulations appear to discriminate against suburban commuter bus companies desiring to use the Parkway to serve the northern section of suburban Virginia. This is the basic complaint of the bus companies in this litigation. They want the restrictive regulations declared invalid, including the provisions which require the payment of a fee for such use of the Parkway as is now permitted or will in the future be permitted.
A few statistics will demonstrate the difference in treatment accorded suburban commuter bus companies desiring use of the Parkway above the Memorial Bridge when contrasted with the treatment accorded other bus companies rendering other kinds of passenger service over the same portion of the Parkway. Using the nine month period from January 1 to September 30, 1966, as an example, the evidence established that W.V. & M. operates an average of 52 one-way trips per day between Key Bridge and the C.I.A. This use of the Parkway includes service to outlying suburban Virginia in excess of the authority granted by Park Service permits and Regulations. Using the same periods as an example, the evidence shows that Airport Transport, Inc. operates an average of about 98 one-way trips per day between Dulles Airport and a terminal in downtown Washington. These airport buses use the Parkway between Key Bridge and its intersection with Route 123 near the C.I.A. Occasionally, Airport Transport also carries passengers between Dulles and National Airports, in which event the Parkway is also used between Key Bridge and National Airport. On such occasions a limousine, rather than a bus, is generally used. The government-owned shuttle service between the C.I.A. and Key Bridge on the Parkway also involves about 99 one-way trips per day, about 52 of which are by bus and the rest by limousine.
The most glaring example, however, of the discriminatory effect of the regulations can be illustrated by comparing the use of the Parkway above Key Bridge by W.V. & M. with the use of the Parkway below Arlington Memorial Bridge by A.B. & W. (Alexandria, Barcroft & Washington Transit Company), also a suburban commuter bus company. A.B. & W. is permitted to operate about 820 one-way trips per day on the Parkway below Arlington Memorial Bridge. It should be noted that not all of these trips cover the entire stretch between the Memorial Bridge and Mount Vernon. Many, if not most, of these trips enter or leave the Parkway between these two points; however, the fact remains that about 820 suburban commuter buses per day are permitted to travel at least some distance on the Parkway below the Memorial Bridge while carrying passengers to and from outlying suburban areas off the Parkway.
For a complete comparison between Parkway use by suburban commuter buses above Key Bridge with all other use of the Parkway by all other buses, something should be said about sightseeing buses. Between January 1 and October 31, 1966, the National Park Service issued 1224 one day permits (an average of about 4 per day) to the Gray Line in connection with its sightseeing tours A and D conducted over the Memorial Bridge -- Mt. Vernon portion of the Parkway. In almost the same period (January 1st to October 19th) A.B. & W. was issued 610 sightseeing permits (an average of about 2 per day) for operations over the same portion of the Parkway. The White House Sightseeing Corporation also operates one or two daily sightseeing trips, and perhaps as many as 5 per day during the peak tourist periods, most of which are conducted over this southern portion. Finally, out-of-state carriers operating over the southern portion of the Parkway are granted an indeterminate number of sightseeing permits at Mt. Vernon by the National Park Service for operations over the southern portions of the Parkway. The evidence adduced at trial indicates that very few, if any, sightseeing buses travel on the Parkway above Key Bridge.
Because an issue has been brought into this case of whether certain legislation enacted in 1960 may have modified or diminished the power of the Secretary of the Interior to regulate suburban commuter bus traffic on the Parkway, some facts as to this legislation should be stated. On September 15, 1960, the Congress of the United States gave its consent and approval (74 Stat. 1031) to a proposed interstate agreement ('Compact') between Virginia, Maryland and the District of Columbia. This Compact, finally ratified by the three signatories on December 22, 1960, established a commission, the WMATC, for the regulation of carriers of passengers between points in the metropolitan area of the District of Columbia. Under Article I of the Compact, the District of Columbia and suburban counties in Virginia and Maryland were included in a 'Washington Metropolitan Area Transit District' over which the WMATC would have regulatory authority. In Virginia this District includes the City of Alexandria, the Counties of Arlington and Fairfax and that portion of Loudoun County occupied by Dulles Airport. In Maryland this District includes Montgomery and Prince Georges Counties. The District therefore includes all parts of the Parkway involved in this litigation.
The purpose of the enabling Act and Compact was the unification in one agency of all authority over commuter transit within this District which was previously vested in the several signatories and the Interstate Commerce Commission. The newly created Commission, the WMATC, was granted the power to issue certificates of public convenience and necessity, prescribe routes, set fares, and otherwise to govern commuter bus traffic in the metropolitan area.
This practice of the WMATC in adding a proviso to its certificates requiring the carrier to satisfy Park Service Regulations is no doubt based upon the specific language of Section 3 of the Act of Congress which authorized the Compact and the creation of the WMATC. Section 3 contains the following proviso:
* * * Provided further, That nothing in this Act or in the compact shall affect the normal and ordinary police powers of the signatories and of the political subdivisions thereof and of the Director of the National Park Service with respect to the regulation of vehicles, control of traffic and use of streets, highways, and other vehicular facilities.
With respect to the fee requirement of one cent per vehicle mile for use of the Parkway by suburban commuter buses, I find that such fees are well within the limits set by other governmental authorities as to fees ('road taxes') required for use of city and state roads by commuter bases. Arlington County and the District of Columbia require fees of one cent per vehicle mile. These so-called 'franchise fess' are also ...