The opinion of the court was delivered by: SIRICA
In this action several citizens associations and individual citizens and property owners of the District of Columbia challenge the procedures employed by the District of Columbia and the Department of Transportation in the planning and the commencement of construction of the Three Sisters Bridge project.
The Bridge from the Spout Run area of Virginia to the District of Columbia upstream from Key Bridge is presently in the preliminary stages of construction as part of the Interstate Highway System and is designated as part of route I-266. The Interstate Highway System was created by the Congress to provide a plan of federal-state cooperation in the construction of highways so as to insure "the prompt and early completion of the National System of Interstate and Defense Highways."
The statute provides that the federal government shall bear 90% of the total cost of any interstate project with the state involved paying the remaining 10%.
The routes of the system are first selected by the state involved (for the purposes of the Act the District of Columbia is designated a state), subject to the approval of the Secretary of Transportation.
But the statute is very clear that no federal payment will be made unless the project is designated as part of the Interstate System with the approval of the Secretary.
Title 23 of the United States Code establishes a series of requirements which govern the planning and construction of all Interstate Highway projects. The plaintiffs allege in their complaint that the actions of the District of Columbia and the federal government in going forward with this project violate certain provisions of Title 23 of the United States Code, Title 7 of the District of Columbia Code and various other statutory provisions.
The advisability of this project has been a matter of long standing controversy in this community, and a brief summary of the background of this controversy is helpful in setting the present stage of this litigation in its proper context. During the 1950's and early 1960's several studies of the need for another Central Potomac crossing and the possible alternative types and locations of such a crossing were made. The crossing was first designated a part of the Interstate System in 1960. After holding public hearings on the proposed crossing in 1964, the District of Columbia, with the approval of the federal government, proceeded with the planning for the bridge project in 1966 and 1967. At that time suit was brought by several of the same plaintiffs who appear in this action to enjoin the construction of the bridge and several other freeway projects in the District of Columbia. The Court of Appeals, in a decision dated February 15, 1968, reversed the decision of Judge Holtzoff of this Court, and held that the construction of the projects should be enjoined on the ground that the District of Columbia was proceeding without complying with the procedural requirements of Title 7 of the D.C. Code.
Soon thereafter in August, 1968, Congress enacted Section 23 of the Federal-Aid Highway Act of 1968,
the pertinent part of which provides as follows:
(a) Notwithstanding any other provision of law or any court decision or administrative action to the contrary, the Secretary of Transportation and the Government of the District of Columbia shall, * * * construct all routes on the Interstate System * *. Such construction shall be undertaken as soon as possible after the enactment of this Act, except as otherwise provided in this section and shall be carried out in accordance with all applicable provisions of Title 23 of the United States Code.
(b) Not later than 30 days after the date of enactment * * * the government of the District of Columbia shall commence work on the following projects:
(1) Three Sisters Bridge * * *.
(2) Potomac River Freeway * *.
(3) Center Leg of the Inner Loop * * *.
(4) East Leg of the Inner Loop * * *.
This expression of the will of Congress, rather than settling the dispute, served only to exacerbate the controversy. President Johnson, at the time he signed the legislation indicated that he opposed Section 23, but was signing the bill upon the advice of his advisors that prior to construction, compliance with all of the procedural prerequisites would be required.
President Johnson also directed at that time that a comprehensive transportation plan be developed for the District of Columbia. In December, 1968, the National Capital Planning Commission (NCPC), the official planning body for the District of Columbia, adopted a comprehensive transportation plan which did not include the Three Sisters Bridge. The District of Columbia City Council approved this NCPC plan, and on January 17, 1969, three days before the new administration was to take office, the bridge was deleted from the Interstate Highway System by the Federal Highway Administrator at the request of the District of Columbia government.
These actions led to what may best be described as the District of Columbia rapid transit-freeway impasse. The Congress, and principally Congressman Natcher, the Chairman of the Subcommittee on the District of Columbia of the House Appropriations Committee, was intent on seeing that the construction mandate in the 1968 Act was carried out. To that end, Congressman Natcher threatened to delete the appropriations for the planned metropolitan area rapid transit system from the District of Columbia budget unless construction and/or planning was commenced in compliance with § 23 of the 1968 Act. The District of Columbia government, on the other hand, was determined that no freeway be constructed in the city other than in accordance with the NCPC comprehensive plan. Soon after entering office, the new Secretary of Transportation, Mr. Volpe, undertook to try to resolve the impasse.
On August 9, 1969, the District of Columbia City Council yielded to mounting pressure from Congress and voted to comply with the 1968 Act, which included going forward with the construction of the Three Sisters Bridge. Secretary Volpe, on August 12, 1969, issued a press release to the effect that he was directing the Federal Highway Administrator to rescind the prior deletion of the bridge from the Interstate System. On August 13, 1969, the project was redesignated as part of the Interstate System by the Federal Highway Administrator. In September, 1969, the District of Columbia advertised for bids for the construction of the piers for the bridge, awarded a contract, and work on the project was commenced. Also in September, 1969, Congressman Natcher agreed to the release of the rapid transit appropriations.
This suit was filed on October 3, 1969. The plaintiffs sought a preliminary injunction against any further work on the project until the District of Columbia government and the Department of Transportation had complied with the provisions of Title 23 of the United States Code, Title 7 of the District of Columbia Code, and various other statutes. After a hearing, this Court denied the request for a preliminary injunction. An appeal was taken, but by an order dated October 31, 1969, the Court of Appeals denied the requested relief without prejudice, and remanded the case to this Court for an expedited hearing on the merits. Cross-motions for summary judgment were filed, and this Court on January 12, 1970, after a hearing, granted the motions of the federal and District of Columbia defendants.
This Court interpreted § 23 of the 1968 Act as a directive from Congress that the enumerated projects should go forward as soon as possible without the need to comply with the normal planning and procedural prerequisites for Interstate Highway projects.
The Court of Appeals, in an opinion dated April 6, 1970, reversed this ruling.
The panel majority disagreed with this Court's statutory interpretation. They held that it was not the intent of Congress to exempt the bridge and the other projects enumerated in the 1968 Act from the hearing and planning requirements of Title 23 of the United States Code. Their decision was based on the language of the 1968 Act that "construction * * * be carried out in accordance with all applicable provisions of Title 23 of the United States Code" and their interpretation of the legislative history as indicating that "construction" includes the planning phases of the projects. The holding of the Court is stated succinctly:
We hold that Section 23 requires that both the planning and the building of the Three Sisters Bridge comply with all applicable provisions of Title 23. Since the District Court ruled otherwise, we remand the case to the District Court for an expedited evidentiary hearing to determine whether appellees have in fact complied with the provisions of Title 23.
A preliminary question is the scope of this Court's power of review of the actions of the District of Columbia and federal officials which are challenged in this action. As a general rule, a presumption of regularity attaches to the actions of public officials taken within the scope of their authority. United States v. Chemical Foundation, Inc., 272 U.S. 1, 47 S. Ct. 1, 71 L. Ed. 131 (1926). When a statute authorizes an administrative official to make certain discretionary determinations, the scope of judicial review is unquestionably limited. It is not the function of the Court to substitute its judgment for that of the administrative official. Rather the Court must review the administrative determinations merely to insure that the public official has neither exceeded his authority nor has acted in a clearly erroneous manner. United States v. Shimer, 367 U.S. 374, 381-382, 81 S. Ct. 1554, 6 L. Ed. 2d 908 (1961).
The Court feels, however, that actions taken to comply with Title 23 of the U.S. Code are not immunized from judicial review.
Rather the Court believes that the proper standard for review is set out in § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706 (1964), which provides that a reviewing court has the authority to:
(2) hold unlawful and set aside agency action, findings, and conclusions found to be --
(A) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
It should be emphasized that the question before this Court is a limited one, i.e., have the District of Columbia and the Department of Transportation complied with the applicable provisions of Title 23? It is not for this Court, or for any Court to decide whether a bridge across the Potomac in the vicinity of the Three Sisters Islands is needed, or if the bridge as presently planned is a worthwhile project which will be for the benefit or to the detriment of the local community. The policy considerations of whether to build this bridge or any of the disputed segments of the Interstate System in the District of Columbia have been aired over and over again through the years. They are not before this Court at this time. Congress in the 1968 Act has settled the question with its command that the bridge should be built. The issues before this Court are (1) whether the responsible officials of the District of Columbia and the Department of Transportation have made the determinations required of them by Title 23, and (2) whether those determinations were made rationally on the basis of the merits of the project and are supported by factual basis.
THE ALLEGATIONS OF POLITICAL PRESSURE
Before proceeding with a section by section analysis of the question of whether there has been compliance with Title 23, the Court feels that it is appropriate at this time to comment on the issue of the alleged effect of political pressure on the federal and District officials which has been raised in this case. There is no question that the proposed freeway system for the District of Columbia has spawned a fierce and emotional political controversy, with strong feeling on the part of both the anti-freeway and pro-freeway factions. The action of the Congress in the 1968 Act in decreeing that certain projects be built was an extraordinary one in view of the declaration of policy in 23 U.S.C. § 103 (d) that projects for inclusion in the Interstate System should originate with the state involved. The impasse which resulted in the spring and summer of 1969 when the District of Columbia City Council refused to seek reinstatement of the projects to the Interstate System was viewed by many as a test of the will of the local government to stand up to those members of Congress who control the destiny of the city on the one hand, and the will of Congress to impose its mandates on the city irrespective of the wishes of the local governing body on the other.
There is no question that the evidence indicates that strong political pressure was applied by certain members of Congress in order to secure approval of the bridge project. Congressman Natcher stated publicly and made no secret of the fact that he would do everything that he could to withhold Congressional appropriations for the District of Columbia rapid transit system, the need for which is universally recognized in the Washington metropolitan area, until the District complied with the 1968 Act. On July 9, 1969, the House of Representatives passed the conference version of the supplemental appropriations bill for the District of Columbia which did not include the rapid transit funds.
Congressman Natcher at that time made his position perfectly clear, stating that "as soon as the freeway program gets under way beyond recall then we will come back to the House and recommend that construction funds for rapid transit be approved. "
Congressman Broyhill also threatened at that time to withhold other appropriations for the District unless the freeway program went forward.
Subsequently, on August 8, 1969, the District of Columbia revenue bill was reported to the House with an amendment which would "'freeze' the apropriation of any part of the authorized Federal payment to the District of Columbia, until the President has reported to the Congress that the city had commited itself irrevocably" to the construction of the freeway system.
On August 11, 1969,
Congressman Natcher stated that the rapid transit funds would be released "when the President of the United States has reported to the Congress that the District of Columbia has begun work on each of the projects" included in § 23 of the 1968 Act.
The House of Representatives was not alone in its concern for a prompt resolution of the freeway-rapid transit impasse. On July 22, 1969, the members of the Senate Committee on the District of Columbia sent a joint letter to the members of the City Council urging that they act to resolve the impasse and thereby insure that the rapid transit system would be built.
On April 28, 1969, the President sent a message to Congress in which he stated in part as follows:
The impasse which has arisen between the proponents of road and rail transportation in the Washington Metropolitan area has contributed little to the progress of either. There are, however, signs that a fair and effective settlement of these issues will be reached in the near future.
The issue in this case is whether there has been compliance with Title 23 of the United States Code for the Three Sisters Bridge project. Therefore, the pressure exerted by members of Congress is relevant only to the extent that it may have caused public officials, who had responsibilities under Title 23 to consider the project on its merits, to disregard those responsibilities. The Court expresses no opinion on the tactics employed by Congressman Natcher and others in support of their position that the bridge should be built. There has been no allegation nor proof that the actions of Mr. Natcher or any other individuals were in any way dishonest, illegal, or unusual under the circumstances or motivated by any factor other than their desire to see the implementation of the provisions of § 23 of the 1968 Act. But if these actions had the effect of causing other officials to disregard obligations imposed on them by statute, then this Court must halt construction of the bridge until those officials have satisfied their statutory obligations.
The principal focus of the Congressional pressure was the District of Columbia City Council, whose vote in December, 1968, had led to the deletion of the bridge from the Interstate System. The action of the Council on August 9, 1969, approving the Three Sisters Bridge was the direct result of this pressure. At the time that the Council voted by a margin of six to two to approve the bridge, three of the members who voted in favor of the project issued statements that they were doing so, not because of their conviction that the bridge was necessary or that it would be beneficial to the local community, but as a direct result of the Congressional pressure and threats to delete or withhold appropriations for the rapid transit system.
If the City Council had not yielded to this pressure and approved the bridge project, it would not have been redesignated as part of the Interstate System, since it was in response to the request of the District of Columbia that the redesignation was made. The Council, however, was acting as a legislative body in this instance, and the application of pressure by one legislative body, in this case Congress, on such a body is not unusual. Therefore, the fact that the Council action in approving the bridge was a direct result of the Congressional pressure and threats regarding the rapid transit appropriations does not, in and of itself, mean that there has been noncompliance with Title 23.
A more serious allegation by the plaintiffs is that Secretary of Transportation Volpe, in directing the Federal Highway Administrator to redesignate the bridge as part of the Interstate System, did not base his decision solely on the basis of the merits of the project, but was acting in response to the Congressional pressure regarding the rapid transit appropriations. There is no question that the Secretary was aware of the nature of the impasse between the Congress and the City Council. He testified that soon after taking office, he undertook to try to resolve the problem. (Tr. 668). In June, 1969, when the supplemental appropriations bill for the District was pending, the Secretary was hopeful that the Senate version would be approved and that the funds for the rapid transit system would be included. (Tr. 675). On June 25, 1969, after the City had agreed to go forward with several freeway projects other than the Three Sisters Bridge, the Secretary issued a statement that he was hopeful that this action would help bring about the release of the rapid transit appropriations. (Plaintiffs' exhibit 78). Mr. Volpe also recalled that he was aware of the threat to withhold the entire federal payment for the District unless affirmative action was taken on the freeway program. (Tr. 692-93). The statement issued by the Secretary at the time he directed the Federal Highway Administrator to restore the bridge to the Interstate System indicates that the pressure on the rapid transit funds was a consideration at that time.
Also in connection with the decision to go ahead with the bridge project, President Nixon in a letter to Congressman Natcher, dated August 12, 1969, reviewed the actions of the City Council and the Department of Transportation and stated: "I trust that these actions will fulfill the criteria which you set forth in your statement of August 11, 1969."
The mere fact that the Secretary was aware of the Congressional pressure to build the Three Sisters Bridge is not sufficient to invalidate his action in directing that the bridge be restored to the Interstate System. Since the issue in this suit is whether there has been compliance with Title 23 of the United States Code, the political pressure exerted by members of Congress is relevant only as to whether it may have caused Secretary Volpe to act without considering the merits of the project as required by Title 23. As will be discussed in connection with § 138, Mr. Volpe commenced an exhaustive study of the merits of the Three Sisters Bridge project soon after taking office, and did not come to a decision that the bridge was essential until the Summer of 1969. The Court believes the Secretary's testimony that his decision was based on the merits of the project and not solely on extraneous political pressures.
It is true that Mr. Volpe was also interested in securing the release of the rapid transit appropriations, and that the approval of the bridge led to the release of those funds. But the Court finds that the mere fact that the Secretary was aware of this pressure does not invalidate his decision that the Three Sisters Bridge is an important and necessary part of the Interstate Highway System.
The plaintiffs contend that the present situation falls within the rule set forth in Jarrott v. Scrivener, 225 F. Supp. 827 (D.D.C. 1964). In that case a group of citizens challenged the action of the District of Columbia Board of Zoning Adjustment in approving an exception to the zoning regulations for the construction of a new Soviet embassy in a residential area of Northwest Washington on the grounds that certain members of the Board had been subject to secret contacts from high government officials who favored the grant of the exception. Judge Pine ruled that these off the record contacts amounted to a denial of the plaintiffs' rights to a fair and impartial hearing before the Board. The Court did not find that there was any intentional wrongdoing on the part of either the Board members or the officials who contacted them. All that was necessary to invalidate the actions of the Board was that the significant ex parte contacts were made with the intent of influencing the Board's decision and that the contacts "were of such a character that it may reasonably be inferred that they did impair, consciously or unconsciously, [the Board's] independence of judgment." 225 F. Supp. at 834.
The plaintiffs contend that the Congressional pressure for the construction of the Three Sisters Bridge was of such a character that it can reasonably be inferred that it had some influence, conscious or unconscious, on the decision of the Secretary to redesignate the bridge as part of the Interstate System. From the evidence of the contemporaneous statements of Secretary Volpe and his testimony in this case, there is no question that the pressure regarding the rapid transit appropriations was given some consideration at the time of the approval of the project in August, 1969. But the Court concludes that this does not invalidate the decision of the Secretary in this case. The situation here is distinguishable from that in the Jarrott case. The Court there emphasized that the Board of Zoning Adjustment was a quasi-judicial body with an obligation to give all interested parties a fair hearing before reaching its decision. The basis of the decision invalidating the Board's action was that the secret ex parte contacts deprived the plaintiffs of their fundamental right to a fair and impartial hearing. In contrast, the Secretary, in approving the redesignation of the Three Sisters Bridge to the Interstate System, was not performing a judicial or quasi-judicial function. The statute commits the decision to the Secretary's discretion. There is no requirement that he base his decision only on matters presented at a public hearing, but rather, there is only the implied requirement that he base his decision on the merits of the project. In view of the Secretary's testimony that he made an exhaustive review of the merits of the project and based his decision on that study, this Court will not invalidate his decision. The present case is further distinguishable from Jarrott in that there the contacts with the Board were secret, while here the actions of Congressman Natcher and others are a matter of public record contained in official Congressional documents and speeches made on the floor of the House of Representatives.
Nor does the fact that the Secretary acted in response to the action of the District of Columbia City Council affect the validity of his decision. The plaintiffs argue that since the Congressional pressure on the rapid transit funds was the direct cause of the approval of the bridge by the City Council, and since the Secretary would not have directed the redesignation of the bridge as part of the Interstate System had the City Council not approved the bridge, then it must follow that the Congressional pressure on the rapid transit funds was the direct cause of the redesignation. The Court rejects this argument. Merely because the City Council acted as a result of Congressional pressure and the Secretary would not have acted if the City Council had not acted, this does not mean that the Secretary acted because of Congressional pressure. The Secretary's obligations under Title 23 are entirely separate from any obligations which the City Council might have. The Court's finding that the Secretary acted on the basis of his judgment as to the merits of the bridge project is therefore unaffected by whatever may have been the motivation of the City Council in approving the bridge.
The final alleged effect of the Congressional pressure on the Three Sisters Bridge project is the acceleration of the commencement of construction. The reaction on the part of officials of the Bureau of Public Roads and the District of Columbia Department of Highways and Traffic to the approval of the bridge project was swift. On August 15, 1969, the Bureau of Public Roads Division Engineer for the District of Columbia, Mr. Hall, in a letter to Mr. Airis, the Director of the District highway department, stated that, although he could not approve the Type, Size and Location Report for the bridge which had been submitted by the District because no final determination had yet been made as to the type of superstructure which would be built, he was authorizing the preparation of contract plans for the piers of the bridge "[in] an effort to initiate early construction of the bridge." (Plaintiffs' exhibit 85). In a letter accompanying the submission of the plans, specifications and estimates for the piers to Mr. Hall on September 2, 1969, an official of the District highway department, Mr. Sawyer, stated that this action was being taken "due to the urgency in getting this project under way." (Plaintiffs' exhibit 89). Mr. Hall noted on the letter that the bidding period was being shortened from three to two weeks "because of the urgency of starting construction at the behest of Congress and the need of DC for WMATA [rapid transit] money." On September 3, 1969, the District invited bids for the pier construction contract. The bids were opened on September 17, 1969, the contract was awarded the following day, and construction was begun later that month. Congressman Natcher was kept apprized of these developments by Mr. Airis. (Plaintiffs' exhibits 94, 95).
The above evidence establishes that the construction work on the project was undertaken in great haste in an effort to satisfy Congress that § 23 of the 1968 Act was being complied with by the District of Columbia. The fact that construction was begun on this project faster than normal, however, does not bring this project into noncompliance with any provision of Title 23. The acceleration of the normal schedule is only relevant if, in their haste to appease certain members of Congress, the officials involved failed to carry out the responsibilities imposed on them by Title 23. The Court finds that the actions of the Bureau of Public Roads and District of Columbia officials in accelerating the commencement of construction on the bridge project were reasonable under all of the facts and circumstances of this case. Congress had directed in § 23 of the 1968 Act that the Three Sisters Bridge should be built, and that work on the project should begin within 30 days of the enactment of the statute. Because of the refusal of the City Council to approve the bridge until August, 1969, a year had elapsed since the enactment of the 1968 Act with no progress in carrying out the mandate of Congress. Therefore it was reasonable for the highway officials involved to proceed as fast as possible with the commencement of construction of the project, provided that there was compliance with all applicable provisions of Title 23.
This section provides as follows:
It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park land and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After the effective date of the Federal-Aid Highway Act of 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.
This section embodies the intent of Congress that whenever possible parklands should not be used for highway projects.
It is not, however, an absolute prohibition against the use of such public lands. Rather, the statute makes the use of parklands contingent on the discretionary determination of the Secretary of Transportation that (1) there is no feasible and prudent alternative to the use of such land, and (2) the program includes all possible planning to minimize harm resulting to the parkland from such use.
In contrast with the duties imposed upon the Secretary by other provisions of Title 23, the obligations under § 138 have not been delegated to subordinates within the Department of Transportation. The Secretary has reserved for himself the crucial decision required by § 138 for projects involving the use of public parklands. (Tr. 641). It was for this reason that it was necessary that Secretary Volpe be a witness in this case.
The plaintiffs base their position that there has been no compliance with this section on three principal contentions. The first is that the Secretary, prior to approving the redesignation of the Three Sisters Bridge to the Interstate System in August, 1969, made no determination either that there were no feasible and prudent alternatives to the use of the parkland involved or that the program for the bridge included all possible planning to minimize the harmful effects to the parkland.
Plaintiffs' second contention is that, assuming the Secretary did make the determination that there is no feasible and prudent alternative to the use of parkland, then this determination was arbitrary and capricious in that there are, in fact, such feasible and prudent alternatives, and that the Secretary did not consider and rationally reject each of these alternatives. The third argument is that even if the Secretary did make the determination regarding all possible planning, then that determination is also arbitrary and capricious in that there is no factual basis for such a finding.
The major problem confronting this Court in making its determination of whether there has been adequate compliance with § 138 is the lack of any meaningful administrative record within the Department of Transportation evidencing the fact that proper consideration has been given to the requirements of this section. The only contemporaneous written record of Secretary Volpe's determination was a press release issued by the Department of Transportation on August 12, 1969. (Plaintiffs' exhibit 81; Tr. 729-30). This press release, however, makes no mention of any determination under § 138, but merely announces the Secretary's approval of the Three Sisters Bridge project.
Although the testimony at the trial was somewhat contradictory, it appears that the Department of Transportation did not establish definitive procedures for the orderly consideration of § 138 problems until January, 1970. In addition, the evidence indicated that the procedures that had been established at the time of the approval of this project in August, 1969, were not utilized in the consideration of this project. In early 1969, Secretary Volpe created the Office of Environment and Urban Systems, and appointed James Braman as Assistant Secretary to head that office. Mr. Braman testified that, although he was involved in several projects with § 138 problems immediately upon taking office, no formal procedures for the submission of information to his office and for the preparation of recommendations by his office had been established by August, 1969. (Tr. 1008). Mr. Braman was not involved in any way with the Three Sisters Bridge project, as was usually the case in a project involving parklands. (Tr. 1004, 1012). Similarly Rex Wells, the Chief of the Bureau of Public Roads' Office of Systems and Locations, testified that, while it was normally the responsibility of his office to prepare a recommendation for the Secretary regarding all projects covered by § 138, and that this responsibility had been delegated to his office in June, 1969, no such recommendations had been made prior to August, 1969. (Tr. 277). A third official of the Department of Transportation, Charles Hall, the Division Engineer, with supervisory authority over Interstate Highway projects in the District of Columbia, testified that he departed from the normal procedure in that he did not prepare a § 138 recommendation for this project. He testified that he was superseded by his superiors, and was not asked to prepare a recommendation in the interest of "speed * * * to get the project started." (Tr. 499-501).
In view of the decision not to follow the normal procedures in the consideration of the § 138 requirements for the Three Sisters Bridge project, and the failure of the Department of Transportation to make a record of the determinations made by the Secretary at the time of his approval of the project in August, 1969,
this Court must base its determination of whether there has been compliance with § 138 on the testimony of Secretary Volpe at this trial, taken together with any corroborating circumstances or testimony of other witnesses.
The first question before the Court is whether the Secretary, prior to approving the redesignation of the Three Sisters Bridge to the Interstate Highway System made the determinations required by § 138, i.e., that there was no feasible and prudent alternative to the use of the parklands involved in the project and that the program included all possible planning to minimize the harmful effects of the project on parkland. Mr. Volpe testified that he did in fact make the required determinations in connection with his decision to approve the bridge project.
Although as explained above, no credible written record of this determination was made,
this Court believes Mr. Volpe's testimony on this matter. The Secretary impressed the Court with his forthright testimony. The Court is convinced from his testimony and the facts developed at trial that he is an honest, experienced, and dedicated public servant who did make the determinations required of him by § 138 prior to signifying his approval of the Three Sisters Bridge project.
The Court does not consider the lack of a contemporaneous written record of the § 138 determinations and the failure of the Secretary to utilize the normal decision making channels within the Department of Transportation, such as they were at the time of the decision on this project, fatal to the Secretary's assertion that he made the required determinations. As discussed above, there is no requirement that the Secretary publicly articulate his § 138 determination.
Secretary Volpe noted in his testimony that at the time that this project was under consideration the Office of Environment and Urban Systems had not established the procedures for handling § 138 problems which are now in effect. (Tr. 725). The Secretary also pointed out that Assistant Secretary Braman, who headed that office, would not have been as involved in the Three Sisters Bridge project as he would in other projects given § 138 consideration at the same time because of the close personal involvement of the Secretary in this project. (Tr. 808). This appears to the Court to be a reasonable explanation of the procedures followed in this case.
Given this finding -- that the determinations required by § 138 were made by the Secretary, the next question before the Court is whether the Secretary acted reasonably in reaching his decision that there were no feasible and prudent alternatives to the use of the parklands, i.e., whether the Secretary adequately considered the feasible alternatives to the presently planned ...