Chicago-Kent College of Law | Illinois Institute of Technology · Web viewFrom 1965 to 1966, he clerked for Supreme Court Justice Hugo Black, who listened to Vardaman’s oral argument

Citizens to Preserve Overton Park v. Volpe

A Case Study

Nicole Mayer ○ Sarah Kaplan ○ Michelle Green

Chicago-Kent College of LawPublic Interest Law and Policy, Fall 2009

Professor Ronald Staudt

“In Overton Park you have saved the other chief characteristics of this region by preserving in the forest conditions the virgin forest upon that property.Nowhere in the United States, except in the pacificNorthwest, will you find tree growth as luxuriantas in the Western Tennessee and Eastern Arkansasforests, and in the two hundred acres of virgin forestin Overton park you have a property which, as aheritage to the public for the enjoyment of nature,equals in value the cost of the entire park system tothe present time.”

-George E. Kessler, 19111.

1 Overton Park: The Evolution of a Park Space, Memphis Park Commission, City of Memphis, Public Construction Office (Prepared for Ritchie Smith Associates, Overton Park Master Plan); John Linn Hopkins (September 1, 1987). p37.

2

Politics and Law

Citizens to Preserve Overton Park v. Volpe is the landmark Supreme Court case that

established the framework for judicial review of administrative action. In Overton Park,

preservationist groups including Citizens to Preserve Overton Park (CPOP), the Sierra Club, and

the National Audubon Society successfully challenged federal approval of an Interstate 40 (I-40)

extension through Memphis’s Overton Park.2 Today, Overton Park is “easily” one of the most

cited cases in administrative law.3 However, when it was decided, it seemed debatable whether

the issues in Overton Park should have reached the Court in the first place.

Administrative law scholar Peter L. Strauss has described Overton Park as “[a] contest

between complex and competing community values, not claims of individual rights,” one that

“might equally have been resolved in the conventional political arena.”4 Indeed, the design and

placement of the Memphis leg of Interstate 40 affected the interests of all Memphians, not just

the individual parties. In fact, a survey of local newspapers indicated that many residents wanted

the I-40 extension, even though it would have traversed the park.5 Through a litany of public and

private meetings, alternatives to the park route were evaluated and re-evaluated. There can be no

dispute that Memphis’s politicians had been fairly responsive to the opposition.6 Why, then, did

the Court decide to engage in representation reinforcement in Overton Park?

Some theorists have argued that politicians, not judges, should set social policy in

“polycentric” issues requiring trades among various interest groups; judges, by contrast, are best 2 Citizens to Preserve Overton Park, 401 U.S. 402.3 Administrative Law Stories: Citizen’s to Preserve Overton Park v. Volpe by Peter L. Strauss. Columbia Law School Public Law and Legal Theory Working Paper Number 5-85 (Fall 2004). P.1.4 Revisiting Overton Park: Political and Judicial Controls Over Administrative Actions Affecting the Community by Peter L. Strauss. UCLA Law Review 39 UCLALR 1251, 1252 (1992).5 Id.6 In my interview with Peter Strauss, he remarked, “As a general matter, I was surprised to find how long and variably this had been an issue in Memphis, with progress made and the general populace tiring of the issues.” 

3

equipped to decide discrete, “Bi-polar” controversies between individuals that identify a winner

and a loser.7 Perhaps the limitations of the judicial process discouraged CPOP from resorting to

the courts, at least initially. Over ten years of political activism would pass before CPOP sought

a judicial remedy.8 Glenn Cox, the president of CPOP’s sister organization, Park Friends Inc.,

still recalls “the price of the bitter lawsuit that followed,” which he laments “offered no glory to

anyone.”9 As Cox points out, “[h]undreds of homeowners in neighborhoods near Overton Park

were displaced for a road never built, and the city was left with no interstate through town.”

Before we can evaluate the wisdom of the parties who came to champion the Supreme

Court’s role in what Strauss calls “political surrogacy,”10 it is first necessary to explore the social

context in which the controversy developed, and the political context in which it was decided.

Overton Park and Interstate 40

Overton Park is a 342 acre rectangular park set amid an affluent, and predominantly

white residential area.11 It was named to honor the Overton family12 for their contributions to

Memphis.13 Designed by George Kessler in 1901, the park gained notoriety for its 170 acres of 7 Id. at 1257; see also The Forms and Limits of Adjudication by Lon Fuller, 92 HARV. L. REV. 353, 394-404 (1978)8When I asked Peter L. Strauss if mediation would have been a viable alternative to litigation in resolving CPOP’s dispute with the Memphis City Counsel over the I-40 route, Strauss stated,

For mediation to work, both sides must be ready to move. That's what politics accomplishes.  The proponents had moved in many respects, and some of the popular support for the opposition had fallen away in consequence, I believe.  But compromise does not seem to have been in the bones of those who hung on.

9 “Overton Park, Symbol for our Future,” Guest Editorial by Glenn Cox. April 18, 2008.http://www.overtonparkforever.org/2008/04/overton-park-symbol-for-our-future.html10 Revisiting Overton Park: Political and Judicial Controls Over Administrative Actions Affecting the Community by Peter L. Strauss. UCLA Law Review 39 UCLALR 1251, 1253 (1992).11 Id. at 1261.12 Descendent John Overton would eventually become Mayor of Memphis, and a member of CPOP. Administrative Law Stories: Citizen’s to Preserve Overton Park v. Volpe by Peter L. Strauss. Columbia Law School Public Law and Legal Theory Working Paper Number 5-85 (Fall 2004). P.19.13 Overton Park: The Evolution of a Park Space, Memphis Park Commission, City of Memphis, Public Construction Office (Prepared for Ritchie Smith Associates, Overton Park Master Plan); John Linn Hopkins (September 1, 1987). P 35.

4

virgin forests and rolling green spaces, bisected by Lick Creek.14 From its inception, Overton

Park was distinguished from other municipal parks by its “large undeveloped areas of dense tree

growth” and its definition as “a multi-purpose natural space containing both active recreational,

passive recreational and civic uses.”15 Owing to its versatile design, Overton Park soon became

the cultural center of Memphis. Among its many attractions, the park contained the Memphis

Zoo and Aquarium, the Memphis-Brooks Museum of Art, a theater, a golf course, a pavilion, and

two small lakes.16 In 1936, a storm destroyed Kessler’s crown jewel, the park pavilion, and it

was replaced by the Overton Park Shell.17 The 1950s saw renewed interest in developing the

park, with the addition of a replica Statute of Liberty and the Memphis Academy (now college)

of Art.18

Though the destruction of the pavilion was a setback, “perhaps the greatest challenge the

park will ever face” came from the proposed construction of Interstate 40.19 In the mid-1950s,

engineers began planning a transcontinental route through Nashville to the East and Little Rock

to the West, which would cross the Mississippi River at Memphis.20 Proponents argued that the

inter-city expressway would enhance local commuter access.21 This would be achieved by

constructing “a high speed east-west corridor through the heart of the city” and, consequently, a

portion of Overton Park.22 The Memphis leg of Interstate 40 would be a six lane highway,23 with

14 Id. at 3715 Id.16 Id.17 Id. at 3818 Id.19 Id.20 Administrative Law Stories: Citizen’s to Preserve Overton Park v. Volpe by Peter L. Strauss. Columbia Law School Public Law and Legal Theory Working Paper Number 5-85 (Fall 2004). 3.21 Id.22Id.23 According to the Sixth Circuit, “[t]he interstate right-of-way will vary from approximately 250 feet in width to approximately 450 feet in width, and will required the use of approximately 26 acres of the Park. Citizens to Preserve Overton Park v. Volpe, 432 F.2d 1307, 1309-10 (1970).

5

concomitant burdens on the ecosystem and aesthetics of the surrounding area. For protectors of

Overton Park, the I-40 extension posed an unacceptable threat to the park’s environment.

The Rise of the Environmental Movement

By the first Earth Day in 1970, the environmental movement had been developing in the

United States for nearly a decade. In fact, “[m]any environmental ideas first crystallized in 1962”

with the publication of Rachel Carson’s Silent Spring.24 Carson’s book, which documented

chemical insecticide’s detrimental effect on birds,25 provided “a perspective that cut against the

grain of materialism, scientism, and the technologically engineered control of nature26.” The call

to action in Silent Spring did not go unanswered; between 1967 and 1970, scientists and recent

law graduates founded the Environmental Defense Fund,27 Washington’s Center for Law and

Social Policy, and the Natural Resource Defense Counsel.28 A year later, the Sierra club

established its Legal Defense Fund.29

After Silent Spring “catalyzed environmentalism as a public movement,” people “began

to see the Interstate Highway System as a threat to beloved parks and historic areas”- like

24 Jack Lewis, “The Birth of the EPA.”EPA Journal - November 1985. http://www.epa.gov/history/topics/epa/15c.htm.25 Rachel Carson, Silent Spring (New York: Houghton Mifflin Company, 1962). The often-quoted final paragraph of Silent Spring encapsulates the urgency in Carson’s conservationist message:

The "control of nature" is a phrase conceived in arrogance, born of the Neanderthal age of biology and philosophy, when it was supposed that nature exists for the convenience of man. . . . It is our alarming misfortune that so primitive a science has armed itself with the most modern and terrible weapons, and that in turning them against the insects it has also turned them against the earth. Id. at 297

26 Gary Kroll, "Rachel Carson- Silent Spring : A Brief History of Ecology as a Subversive Subject". Onlineethics.org: National Academy of Engineering. http://www.onlineethics.org/cms/9174.aspx#t2 27 The Environmental Defense Fund was created specifically to stop chemical insecticide. Administrative Law Stories: Citizen’s to Preserve Overton Park v. Volpe by Peter L. Strauss. Columbia Law School Public Law and Legal Theory Working Paper Number 5-85 (Fall 2004) p.11.28 Id. at 10.29 Id.

6

Overton Park, the French Quarter in New Orleans, and San Antonio’s Breckinridge Park30 In

fact, it was Texas Senator Ralph Yarborough’s concern over Breckinridge Park which prompted

the enactment of “park-protective” provisions in both the Federal-Aid Highway Act and the

Department of Transportation Act31

On New Year’s Day 1970, in response to growing concerns about ecological well-being,

President Nixon signed the National Environmental Policy Act of 1969 (NEPA). Although

criticized as a ceremonial gesture intended to distract from the increasingly unpopular Vietnam

War,32 NEPA’s creation placed significant procedural requirements on administrative agencies.

Chief among these requirements was the duty to prepare an Environmental Impact Statement for

any major federal action33 that would “significantly affect the quality of the human

Environment.”34

National Politics and Section 4(f)

In the 1960s, comprehensive planning emerged as the principle method for federal

highway placement and construction. In 1962, while responding to increasing tension between

highway engineers and urban planners, Congress conditioned approval of Federal Aid Highway

Act projects in areas of more than 50,000 residents on “continuing, comprehensive transportation

30 Id.31 Id. at 11.32 Jack Lewis, “The Birth of the EPA.”EPA Journal - November 1985. http://www.epa.gov/history/topics/epa/15c.htm33 A “major federal action” is one that involves a federal project, federal funding, or federal approval. Council on Environmental Quality, “Regulations for Implementing the Procedural Provisions of theNational Environmental Policy Act” 40 C.F.R. section 1507.2, available at www.nepa.gov34 The National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321-4347.

7

planning process carried out cooperatively by states and local communities.”35 This meant that

federal officials, who had previously focused on engineering, would need to engage cities to

discuss all of the impact concerns associated highway planning.36 Then, in 1966, congress

passed both the Federal Aid Highway Act of 1966 and the Department of Transportation Act.37

With respect to public parks, the Federal Aid Highway Act required federal highway

planning officials to engage in “all possible planning, including consideration of alternatives . . .

to minimize any harm to . . . [any affected] park.”38 In a similar vein, Section 4(f) of the

Department of Transportation Act instructed the newly created Secretary of Transportation not to

approve the use of land from publicly owned parks “unless (1) there is no feasible or prudent

alternative to the use of the land, and (2) such program includes all possible planning to

minimize harm to such park . . . resulting from such use.”39 In addition to these restrictions on the

Secretary, the creation of the national Department of Transportation also meant that “engineers

would now have to deal with an office within the Department specifically responsible for

promoting environmental awareness and responsiveness.”40

In 1968, congress proposed an amendment to Section 4(f)’s wording, in an effort to

reconcile the language of Section 4(f) with the similar park provision found in Section 138 of the

Federal Aid Highway Act.41 During May 1968, Secretary of Transportation, Alan Boyd, and

Federal Highway Administrator Bridwell testified before the Subcommittee on Roads of the

35 Administrative Law Stories: Citizen’s to Preserve Overton Park v. Volpe by Peter L. Strauss. Columbia Law School Public Law and Legal Theory Working Paper Number 5-85 (Fall 2004) p.10.36 Id.37 Id.38 Federal-Aid Highway Act, 23 U.S.C. § 138.39 Department of Transportation Act of 1966, Section 4(f), 49 U.S.C. § 1653(f).40 Administrative Law Stories: Citizen’s to Preserve Overton Park v. Volpe by Peter L. Strauss. Columbia Law School Public Law and Legal Theory Working Paper Number 5-85 (Fall 2004) p.10.41 “Section 4(f) Overview” U.S. Department of Transportation. (2009). http://www.environment.fhwa.dot.gov/4f/index.asp

8

Senate’s Public Works Committee.42 Their testimony “supported wide consultation and

involvement of local politics to determine community interests.” Notably, Secretary Boyd

stated, “‘We have no choice . . . but to follow planning procedures which are sensitive to the

needs of individual communities and elicit community involvement in the development of

plans.’”43 After the testimony concluded, Congress remedied the inconsistency between Section

138 and Section 4(f) by choosing a formulation of Section 4(f).44 However, the Committee

remarked in its reports,

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. Therefore, the use of park lands . . . with damage minimizes by the most sophisticated construction techniques is preferred to the movement of large numbers of people.45

The Committee did not discuss “the possibility or effects of judicial enforcement” of Section

4(f), the meaning of which would be central to the Overton Park decision46.

Under the 1968 formulation of Section 4(f), the Secretary of Transportation could only

approve the use of Overton Park’s land for the I-40 extension if there was no “feasible and

prudent alternative” to the use, and his actions took all possible planning to “minimize harm” to

the park.47

Alternative Routes

42

43 Administrative Law Stories: Citizen’s to Preserve Overton Park v. Volpe by Peter L. Strauss. Columbia Law School Public Law and Legal Theory Working Paper Number 5-85 (Fall 2004) p.1344 Id.45Id., quoting S. REP. NO. 1340, 90th Cong., 2d Sess. 18-19, reprinted in 1968 U.S. CODE CONG. & ADMIN. NEWS 3482, 3500.46 Id. at 13.47Id.

9

Of the many alternative routes around that were studied, two “emerged as the [park

route’s] chief competitors.”48 One route, which followed the park’s northern edge, would have

disrupted a university, a school, and church, among other facilities.49 The other route, which

followed northern creek beds and an old railroad right-of-way would have “severely impacted

one of the few racially mixed areas in the city.”50

Four design alternatives to the proposed route through the park were also developed,

including:

[1] Building the road on the surface; [2] building it below grade to the extent the water table and natural drainage constraints permitted; [3] building it below surface throughout its length, overcoming water table and drainage problems; [4] hiding the road completely throughout its traverse of the park.51

City officials were relatively open to building below grade, but feared that building the road

below the water table “would risk flooding if power outages in storms stopped the electric pumps

that would then be required.”52 As a result of the city’s high water table, I-40 could not be

depressed more than ten feet lower than the surrounding park, and would have to be raised to

cross Lick Creek. 53 Given these constraints, only the first and second design alternatives were

feasible. From the beginning, Tennessee highway officials preferred the first alternative, as it

was “the cheapest, least complicated, and most familiar form of construction.”54

Race in Memphis

48 Id. at 4.49 Id.50 Id.51 Id.52 Id.53 Id.54 Id.

10

As with many other public facilities in the mid-century South, one’s experience of

Overton Park depended largely upon race. For most of the 20th century, Memphis was a

segregated city.55 Full integration of the park was not achieved until well into the 1960s.56

Before then, the entire park and all of its amenities remained off-limits to African-Americans,

except on Thursday afternoons.57 During so-called “Black Thursdays,” African-Americans

would be allowed to visit the Memphis Zoo and Aquarium, the Memphis-Brooks Art Museum,

and the Main Branch of the Public Library.58 Such discrimination was characteristic of the park

system.59

In 1960, “an interracial group of attorneys, clergymen, and doctors” met with the

Memphis City Council, headed by Mayor Henry Loeb, Jr., to “end segregation” in Overton

Park’s Memphis Zoo, Memphis-Brooks Art Museum, and the public library.60 The City Council

refused, and non-violent student protests ensued.61

By the time the I-40 extension became an issue, “black Memphians would have learned

about the problems associated with the routing of I-40 through Nashville.”62 In Nashville I-40

Steering Committee v. Ellington, an interracial group of citizens challenged the rerouting of the

Nashville I-40 extension so that it would bisect an African American community (rather than

disrupt white interests); they alleged, among other things, that State highway officials had failed

55 Race Power and Political Emergence in Memphis (Race and Politics Series, Vol.1). by Sharon D. Wright; Routledge, 1 Edition (December 1, 1999) p. 56.56 Id.57 Id.58 Id.59 Id. at 57.60 Id.61 Id.62 Administrative Law Stories: Citizen’s to Preserve Overton Park v. Volpe by Peter L. Strauss. Columbia Law School Public Law and Legal Theory Working Paper Number 5-85 (Fall 2004) p. 16.

11

to consider the economic impacts of the proposed route and engaged in racial discrimination.63

The Sixth Circuit held that the district court had not abused its discretion in concluding that “the

consideration given to the total impact of the link of I-40 on Nashville was adequate” and

concluded that racial discrimination had not been proven.64 In contrast to the Nashville route,

Memphis’s proposed I-40 route would have mainly impacted white interests, though alternative

routes could have disrupted racially mixed areas.65

Ellington’s racial backdrop to the Overton Park controversy was soon overshadowed by

the Memphis Sanitation Strike of 1968, which lasted sixty-five days.66 African American

workers in Memphis’s sanitation department had instituted the strike in response to major racial

inequalities; they “faced no real prospects of promotion, lacked adequate health benefits, lacked

bathroom facilities, were not allowed to take vacations” and were paid substantially less than

their white counterparts. 67 Racial tensions in Memphis would explode with the assassination

Martin Luther King, Jr., who had come to assist in the strike.68

CPOP’s Influence

CPOP was a citizen’s action organization created to oppose the route of the I-40

extension through Overton Park. It was formed in 1957 in response to Memphis newspaper

articles that featured maps of the proposed route through the park.69 CPOP “was never very

63 Nashville I-40 Steering Committee v. Ellington, 387 F.2d 179 (6th Cir. 1967), cert denied, 390 U.S. 921 (1968).64 Id. at 183.65 Administrative Law Stories: Citizen’s to Preserve Overton Park v. Volpe by Peter L. Strauss. Columbia Law School Public Law and Legal Theory Working Paper Number 5-85 (Fall 2004) p. 1666 Race Power and Political Emergence in Memphis (Race and Politics Series, Vol.1). by Sharon D. Wright; Routledge, 1 Edition (December 1, 1999) p. 68.

67 Id.68 Id.69 Administrative Law Stories: Citizen’s to Preserve Overton Park v. Volpe by Peter L. Strauss. Columbia Law School Public Law and Legal Theory Working Paper Number 5-85 (Fall 2004) p.19.

12

large,” but its leaders were “resourceful and imaginative in their efforts to marshal political

support against I-40.”70 When the chief engineer of Harlan and Bartholomew, who had been

contracted to design the route, appeared before the first hearing of the City Commission in

September 1957, he was met by more than 300 protesting citizens, who had gathered over 10,000

petition signatures opposing the route.71 As a result, the City Commission instructed Harlan and

Bartholomew to restudy alternative routes.72

In 1961, the controversy reignited during a federally prescribed hearing on the segment of

I-40 that would traverse Overton Park.73 Members of the Down Town Association were

supportive of the route, but others opposed it.74 Due to a “mishap,” many of the audience

comments opposing the route had not been recorded.75 Mayor Loeb later endorsed the route,

with the City Engineer explaining that 32 studies had all concluded that avoiding the park was

impossible.76 In 1964, construction of other parts of the highway began, following the design of

Harlan and Bartholomew.77 The Tennessee Highway Department specially hired engineering

firm Buchart-Horn to design the park segment.78 CPOP began making its appeals to the State

Highway Commissioner.79

When Memphis decided to replace the City Commission with a Mayor and City Council

in 1967, CPOP again became engaged in local politics.80 By sending each candidate a

questionnaire about their stance, CPOP tried to make the I-40 route a central issue in the 70 Id.71 Id.72 Id.73 Id.74 Id. at 20.75 Id. at 24.76 Id. at 20.77 Id.78 Id.79 Id.80 Id. at 22

13

elections.81 When this failed, CPOP turned to Washington.82 Anona Stone, CPOP’s secretary,

repeatedly wrote to Secretary of Transportation Boyd and Administrator Bridwell, eventually

prompting Bridwell’s first visit to Memphis.83 On February 13, 1968, the first day of the

Sanitation Strike, CPOP spoke before the new city council.84 The next day, CPOP, among others,

was involved in a lengthy meeting with Administrator Bridwell.85

On March 5, the City Council adopted a resolution opposing the park route.86 However,

CPOP’s success was fleeting. During an April 3 meeting between the Council, Administrator

Bridwell, and Harlan and Bartholomew, the City Council changed its mind.87 Like the 1961

public meeting, an equipment malfunction had caused this meeting to go unrecorded.88 On April

4, just minutes before Martin Luther King, Jr. would be assassinated in Memphis, the City

Council approved the I-40 route through the Overton Park.89

Late in 1969, Secretary Volpe approved the proposed design of the I-40 route through

Overton Park.90 After more than 10 years of politically opposing the route, CPOP decided it was

time to find a lawyer and take its case to the courts.91

The Parties

The Plaintiffs in this case were the Citizens to Preserve Overton Park, Inc.; William W. Deupree,

Sr.; Sunshine K. Snyder; the Sierra Club; and the National Audobon Society. The organizational 81 Id.82 Id.83 Id.84 Id.85 Id. at 2386 Id.87 Id.88 Id.89 Id. In my interview with Peter L. Strauss, he remarked that “In particular, the coincidence of the final local political act with Martin Luther King Jr.'s assassination” was the most surprising fact about the case that his research uncovered.90 Id. at 35.91 Id.

14

plaintiffs were involved because of their missions to protect the park and the environment. The individual

plaintiffs, Deupree and Snyder, lived in Memphis and owned property there.92 The attorneys for Citizens

to Preserve Overton Park, John Vardaman and Charles Newman, added these individual plaintiffs because

“we thought they would help with standing.”93 These individuals were part of CPOP, and Mr. Vardaman

does not recall their having any separate interest.94

These Plaintiffs sued the Secretary of Transportation, John Volpe.95 On the government’s

motion, the Commissioner of the Tennessee Department of Highways, Charles Speight, was joined as a

defendant.96

The Plaintiffs’ Attorneys

The lead counsel for the Plaintiffs from start to finish was John W. Vardaman, Jr. (“Jack”).97

Vardaman graduated from Harvard Law School in 1965.98 From 1965 to 1966, he clerked for Supreme

Court Justice Hugo Black,99 who listened to Vardaman’s oral argument on behalf of Citizens to Preserve

Overton Park six years later.100 (If Vardaman finished his undergraduate degree when he was 22 years

old, then he was arguing in front of the Supreme Court at age 31.)

After his clerkship, Vardaman took a job with Wilmer, Cutler & Pickering, a Washington, D.C.

law firm.101 Meanwhile, a proposed highway bridge over the Potomac River threatened the Three Sisters

92 Citizens to Preserve Overton Park, Inc. v. Volpe, 309 F. Supp. 1189, 1191 (W.D. Tenn. 1970).93 Telephone Interview with John W. Vardaman, Jr., Partner, Williams & Connolly LLP (Sept. 18, 2009). The Defendants did challenge the plaintiffs’ standing to bring the case at the beginning of the litigation. Citizens to Preserve Overton Park, 309 F. Supp. at 1191. The District Court quickly disposed of that argument, holding that Plaintiffs, at least Citizens to Preserve Overton Park, did have standing because it had actively participated in administrative proceedings over a period of years. Id. This issue was not mentioned by the Sixth Circuit or the Supreme Court on appeal.94 Id.95 Citizens to Preserve Overton Park, 309 F. Supp. at 1191.96 Id.; Peter L. Strauss, Citizens to Preserve Overton Park v. Volpe—Of Politics and Law, Young Lawyers and the Highway Goliath, in ADMINISTRATIVE LAW STORIES 259, 312-13 (Peter L. Strauss, ed., 2006).97 Strauss, supra note 96.98 Williams & Connolly LLP, John W. Vardaman, http://www.wc.com/attorney-JohnVardaman.html (last visited September 14, 2009).99 Id.100 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 402 (1971).101 Strauss, supra note 96, at 312.

15

Islands, a natural area near his home.102 Vardaman’s friend, Gerald Norton, was working on litigation

opposing the Three Sisters Bridge construction. Vardaman wanted to be part of this case, so he helped

out. He and the other attorneys working on that case all became “buddies.” Then when Citizens to

Preserve Overton Park needed a lawyer, they contacted Norton. Norton’s firm was overwhelmed, so he

recommended Vardaman. Vardaman saw this as an exciting opportunity for himself, as a young assiciate,

to be in charge of his own case. Also, he saw how the highway construction near his home would affect

him, and he could imagine how such construction could affect others.

Vardaman worked to oppose highway construction for approximately ten years. He began by

helping to persuade the Federal Highway Administration not to build a highway through the French

Quarter of New Orleans. With the help of a well-known urban planner and a consulting firm, Vardaman

and his associates convinced the Highway Administration that the proposed highway would be a bad idea,

and that even if they did try to build it, they would lose in court. During Citizens to Preserve Overton

Park, he took on another case to stop highway construction in San Antonio, Texas.103 Vardaman said it

was thrilling to know that he and a handful of other young lawyers knew more about something – the

Department of Transportation Act and the Federal-Aid Highways Act – than anyone else.

While Citizens to Preserve Overton Park was pending in the Sixth Circuit on its first appeal,

Vardaman moved to the law firm Williams, Connolly & Califano (now Williams & Connolly LLP), also

in Washington, D.C.104 Vardaman is now a senior partner at that firm.105 The firm’s website highlights

his accomplishments defending large corporations against mass tort and mass disaster claims.106 He has

102 Telephone Interview with Vardaman, supra note 93; Three Sisters (District of Columbia), Wikipedia, http://en.wikipedia.org/wiki/Three_Sisters_(District_of_Columbia) (last visited September 20, 2009). According to this Wikipedia article, the highway and bridge project was canceled because of community opposition and because a group of students rented canoes, invaded the islands, and destroyed the construction materials there.

Most of the information in this paragraph and the next come from the September 18, 2009 telephone conversation with Mr. Vardaman, supra note 93.103 See Named Individual Members of the San Antonio Conservation Soc. v. Texas Highway Dept., 466 F.3d 1013 (5th Cir. 1971). Plaintiffs were not awarded attorney fees in that case, suggesting that Vardaman did not get reimbursed for expenses. See Named Individual Members of the San Antonio Conservation Soc. v. Texas Highway Dept., 519 F.2d 1372 (5th Cir. 1975).104 Strauss, supra note 96, at 312 n. 164.105Williams & Connolly LLP, John W. Vardaman, http://www.wc.com/attorney-JohnVardaman.html (last visited September 14, 2009).106 Id.

16

also represented plaintiffs in litigation arising from plane and train crashes.107 One news article on the

Williams & Connolly website touts the fact that Vardaman helped Wyeth Pharmaceuticals win summary

judgment in product liability litigation over the Norplant (a contraceptive), disposing of the claims of

nearly 3,000 plaintiffs.108

After ten years of demanding pro bono work, Vardaman felt that he had “put in his time” for

public interest and turned to making sure his law firm was a financial success.109 But Citizens to Preserve

Overton Park continues to be part of Vardaman’s life. This case marked a turning point in

Administrative Law and continues to be taught in law schools.110 Vardaman lectures on it every year at

Washington and Lee University.111 However, Williams & Connolly’s website does not currently list the

case on its “Pro Bono Practice” page112 or among its appellate successes.113

Charles F. Newman also represented the Plaintiffs in this litigation. Presumably, his input was

valuable because he was (and still is) a partner at a Memphis firm, Burch, Porter, & Johnson, PLLC.114

Newman appears to have been another young lawyer at the time this litigation was filed.115 He graduated

from Yale Law School in 1963 and then he served as a judicial clerk for Hon. Bailey Brown, former

judge of the United States District Court for the Western District of Tennessee, later on the United States

Court of Appeals for the Sixth Circuit.116 Newman joined Burch, Porter, & Johnson in 1965, and he

became a member in 1966.117

Relevant Statutes

107 Id.108 Williams & Connolly LLP, Jack Vardaman and Lane Heard Featured in “Ruling Finishes off Norplant Suits” in the NATIONAL LAW JOURNAL, http://www.wc.com/news-archive-2134.html (September 2002).109 Telephone Interview with Vardaman, supra note 93.110 For example, it was the first case assigned in Environmental Law and Policy I at Chicago-Kent College of Law in Fall, 2009.111 Telephone Interview with Vardaman, supra note 93.112 Williams & Connolly LLP, Pro Bono Practice, http://www.wc.com/careers-associates-probono.html (last visited September 19, 2009).113 Williams & Connolly LLP, Appellate, http://www.wc.com/practice-profile-514.html (last visited September 19, 2009).114 Burch, Porter, & Johnson, PLLC, Charles F. Newman, http://www.bpjlaw.com/cms.aspx?TabID=88(last visited September 20, 2009).115 Id.116 Id.117 Id.

17

Citizens to Preserve Overton Park is a significant precedent because of the Supreme Court’s

interpretation of the following statutes.

The Department of Transportation Act, then codified at 49 U.S.C. § 1653(f), and the Federal-Aid

Highways Act, 23 U.S.C. § 138, were identical at the time of the Overton Park litigation. They provided

in relevant part:

“The Secretary [of the Department of Transportation] shall not approve any program or project which requires the use of any publicly owned land from a public park … of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof … 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….”118

Secretary Volpe released the funds to Tennessee for the construction of Interstate I-40 through

Overton Park without commenting on whether there was no feasible and prudent alternative to the use of

Overton Park, or whether all possible planning had been included to minimize harm to the park.119

The Administrative Procedure Act, 5 U.S.C. § 706 gives federal courts the jurisdiction to review

the actions of the Secretary of Transportation. This section provides:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--

(1) compel agency action unlawfully withheld or unreasonably delayed; and(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;(B) contrary to constitutional right, power, privilege, or immunity;(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;(D) without observance of procedure required by law;(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

118 49 U.S.C. § 1653(f) (current version at 49 U.S.C. 303); 23 U.S.C. § 138.119 See 309 F. Supp. at 1194.

18

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

The Western District of Tennessee

In December of 1969,120 Plaintiffs began this litigation by asking for a temporary injunction to

stop the Secretary of Transportation from releasing federal funds to Tennessee’s Highway Department for

the construction of a segment of I-40 through Overton Park.121 (See Appendix A for a timeline of the

litigation.) Mr. Vardaman, Plaintiffs’ attorney, filed the complaint in the District Court of the District of

Columbia.122 Secretary Volpe’s office and Mr. Vardaman’s home and practice were in Washington,

D.C.123 Volpe moved to dismiss, but before the court ruled on that motion, it granted the government’s

motion to join as a defendant Charles Speight, the Commissioner of the Tennessee Department of

Highways.124 For this reason, the case was transferred to the Western District of Tennessee.125 This

meant that Mr. Vardaman had to travel to Tennessee from his home in Washington, D.C. in order to

represent his clients.126 In the Western District of Tennessee, Secretary Volpe filed a motion for summary

judgment accompanied by affidavits.127 The Plaintiffs moved for a temporary injuction, and the court

considered both motions simultaneously.128

Thus the Plaintiffs’ task was to show that there was a genuine issue of material fact as to whether

Secretary Volpe’s decision to release funding was valid. The Plaintiffs first argued that Volpe had not

followed the Department of Transportation’s own regulations.129 The Federal-Aid Highway Act provided

that any state highway department which submitted plans for a Federal-aid highway project going through

any city must hold public hearings where members of the public could express their views about the 120 Strauss, supra note 96, at 267.121 Citizens to Preserve Overton Park, 309 F. Supp. at 1191.122 Id.123 Strauss, supra note 96, at 312.124 Strauss, supra note 96, at 312-313.125 Id.126 Telephone Interview with Vardaman, supra note 93.127 Citizens to Preserve Overton Park, 309 F. Supp. at 1191.128 Id.129 See id.

19

proposed project.130 According to a memorandum from the Bureau of Public Roads, which became part

of the Department of Transportation in 1967,131 the procedure for holding public hearings included

allowing members of the public to submit written statements, and the procedure for submitting written

statements “shall be described in the notice of public hearing and at the public hearing . . . .”132 However,

the notice of the May, 1969 public hearing about I-40 did not announce that written statements could be

submitted.133

The memorandum also provided that the State highway department “shall provide for the making

of a verbatim written transcript of the oral proceedings at each public hearing.”134 However, the recording

equipment malfunctioned during the May, 1969 meeting, so that the transcript was incomplete.135

The District Court concluded that the regulations had been substantially followed, and that any

error was harmless.136 The court granted summary judgment to the Defendants on these issues.137 It

weighed heavily the facts that all whose oral statements at the hearing were not recorded were advised by

certified mail that she or he could file a written statement, and that several did file such a statement,

including members of Citizens to Preserve Overton Park; forty written statements were filed; and

Plaintiffs did not show that anyone would have filed a statement but did not because of lack of notice, or

that any argument was omitted because of lack of notice.138 Although discussion of these arguments

about procedural defects takes up more than half of the District Court’s written opinion, this argument is

only a minor part of the Sixth Circuit’s discussion on appeal,139 and it was dropped completely on appeal

to the Supreme Court.140

130 23 U.S.C. § 128(a); Citizens to Preserve Overton Park, 309 F. Supp. at 1192.131 Citizens to Preserve Overton Park, 401 U.S. at 408 n. 13 (citing the Department of Transportation Act, 49 U.S.C. § 1655).132 Citizens to Preserve Overton Park, 309 F. Supp. at 1192.133 Id.134 Citizens to Preserve Overton Park, 309 F. Supp. at 1192.135 Id.136 Id. at 1193-94.137 Id.138 Id.139 See Citizens to Preserve Overton Park, 432 F.2d 1307, 1314-15 (6th Cir. 1970).140 See Citizens to Preserve Overton Park, 401 U.S. 402 (1971).

20

Plaintiffs next argued that the Secretary’s decision to release funds was void under the

Department of Transportation Act and the Federal-Aid Highways Act.141 First, they argued that if the

Secretary is to approve the use of federal funds to build a highway on park land, he must first articulate a

finding that there is no feasible and prudent alternative to the use of the park land for the highway

project.142 Plaintiffs argued that because Volpe issued no formal finding, his decision was void.143 In the

alternative, Plaintiffs argued that even if the statute did not require a formal finding, Volpe’s decision to

release funding was arbitrary and capricious.144

The District Court disposed of the first of these arguments in less than one sentence. It stated that

there is no such requirement in the statute, and that the court would not imply one.145

A “large number” of affidavits, including exhibits, had been filed by both parties.146 The

government’s affidavits told the court that Memphis’ Mayor, City Council and even the Memphis Park

Commission had approved the route.147 The affidavits showed that Memphis had sold the land needed for

the proposed highway to the State of Tennessee for two million dollars, and that by ordinance, Memphis

was obligated to spend that money acquiring replacement more park land.148 The government also

informed the court of the impact that two of the alternate routes would have had. Each would have

involved knocking down schools, businesses, churches attended by thousands of people, and thousands of

peoples’ homes.149 Additionally, the preparation for construction up to either side of the park had already

demolished many homes and businesses.150 One of the government’s affidavits also summarily stated that

a “determination that the only feasible and prudent location for the highway was on the present bus route

through the park” was made in 1956 and reaffirmed by several officials, including Secretary Volpe.151

141 Citizens to Preserve Overton Park, 309 F. Supp. at 1194.142 Id.143 Id.144 Id.145 Id.146 Id. at 1191.147 Id. at 1195.148 Citizens to Preserve Overton Park, Inc. v. Volpe, 432 F.2d 1307, 1312 (6th Cir. 1970).149 Id.150 Id.151 Id.

21

To counter this evidence, Plaintiffs offered the affidavit of Arlo Smith, an officer of Citizens to

Preserve Overton Park, swearing that the Secretary had made no finding that the route through the park

was the only feasible and prudent one.152 Plaintiffs also offered the prior testimony of Lowell Bridwell,

the former Federal Highway Administrator who approved the route in 1968.153 Bridwell swore that the

choice of route was left “completely in the hands of the city council,” and thus was not made by the

Secretary.154 Plaintiffs provided much other documentation that there were other feasible and prudent

routes, and that the proposal did not include all possible planning to minimize harm to the park.155 But

because the District Court had denied Plaintiffs’ motion to depose government officials, neither Plaintiffs

nor the courts knew precisely what information was available to Volpe when he approved the release of

funds.156

The District Court characterized Plaintiffs’ argument that the Secretary’s decision was arbitrary

and capricious as “more seriou[s],” (although Plaintiffs may have been completely serious about their

written findings argument).157 However, the court’s interpretation of the Department of Transportation

Act was not favorable to the Plaintiffs. The court interpreted the statute to mean that the Secretary should

avoid using park land for highways if, after considering all relevant factors, it is preferable to do so.158

The court concluded that the intent of Congress was to “point up the wisdom” of conserving parkland

although building there is cheaper and easier.159 The court noted part of the legislative history, which said

that “[t]he Congress does not believe, for example, that substantial numbers of people should be required

to move in order to preserve these lands. . . .”160

152 Id. at 1316-17 (Celebrezze, J., dissenting).153 Id.154 Id. at 1317 (Celebrezze, J., dissenting) (quoting affidavit of Lowell K. Bridwell).155 Id. at 1317 (Celebrezze, J., dissenting).156 Id. at 1316 n. 2 (Celebrezze, J., dissenting).157 Citizens to Preserve Overton Park, 309 F. Supp. at 1194.158 Id. at 1194 (emphasis added).159 Id.160 Id. at 1194-95 (quoting House Managers, 90th Cong., 2d Sess., REPORT (1968), reprinted in 1968 U.S.C.C.A.N. 3538).

22

Based on the affidavits and exhibits, the court concluded that there was no genuine issue of

material fact as to whether “determinations as made” were not arbitrary and capricious – they were not.161

The court stepped over the question whether the Secretary himself was required to make a determination

himself, and whether he had made this determination.162 The court granted summary judgment for

Defendants, denied the Plaintiffs’ motion for a temporary injunction, and dismissed the case.163

In the District Court’s discussion, one aspect of the Department of Transportation Act was barely

noted. After interpreting the statutory provision (“prudent” means “preferable”), the court noted that

these statutes apply only to park land that is of local significance as determined by the Federal, State or

local officials with jurisdiction.164 Since the Mayor of Memphis and the City Council approved the route

of I-40, the court stated that “it may well be that § 138 simply has no application here.”165 But the court

did not decide that question. This issue did not appear in the opinions of the Sixth Circuit or the Supreme

Court,166 probably because the parties did not argue about it.167

The Sixth Circuit Affirms

Plaintiffs appealed to the Sixth Circuit Court of Appeals. That court granted a temporary

injunction stopping the Secretary from releasing the funds pending disposition of the appeal.168

Plaintiffs again argued that there was a genuine issue of material fact as to whether the

Secretary’s release of funds was legal. They again claimed that required procedures had not been

followed because the notice for the public meeting did not tell members of the public that they could

161 Id. at 1195.162 See id.163 Id.164 Id.165 Id.166 See Citizens to Preserve Overton Park, 401 U.S. at 405 (“These statutes prohibit the Secretary of Transportation from authorizing the use of federal funds to finance the construction of highways through public parks if a ‘feasible and prudent’ alternative route exists.”).167 See Citizens to Preserve Overton Park, 432 F.2d at 1316 (Celebrezze, J., dissenting) (“the only facts over which there are no dispute are that the Secretary approved an appropriation for a highway through Overton Park, which is a ‘park’ within the meaning of section 138”).168 Citizens to Preserve Overton Park, 432 F.2d at 1310 n. 3.

23

submit written statements.169 The Sixth Circuit found that this error was harmless for the same reasons

that persuaded the District Court.170

The bulk of the Sixth Circuit’s opinion discusses Plaintiffs’ contentions that the Secretary did not

make the determinations that the Department of Transportation Act required him to make, or that if he

did, they were arbitrary and capricious.171 The Sixth Circuit began by stating that Plaintiffs would have to

overcome a presumption of regularity afforded the acts of an administrator.172 The court explained that

Plaintiffs must show that there is at least a possibility that they could overcome this presumption at

trial.173 This is what the court determined that Plaintiffs could not do.174

The Sixth Circuit, like the District Court, found that the statute did not require the Secretary to

make a formal finding, and the court declined to create this requirement.175 Plaintiffs argued that their

evidence disputed whether the Secretary had made even an informal determination that the approved

route was the only feasible and prudent one, or that the plan included all possible planning to minimize

harm to the park.176 However, after describing some of the competing evidence, the court stated that in its

opinion, the Secretary had made the determinations required by law, and that Plaintiffs’ evidence did not

dispute this.177 The court also determined that the District Court was correct that the Secretary’s

169 Id. at 1310.170 Id. at 1314-15.171 Plaintiffs actually argued that the question should be whether the Secretary’s decision was supported by substantial evidence. See Oyez, Citizens to Preserve Overton Park v. Volpe – Oral Argument, Part 2, at 13:12, http://www.oyez.org/cases/1970-1979/1970/1970_1066/argument-2 (question by an unidentified Justice noting that the standard of review was in controversy). The Sixth Circuit arrived at the “arbitrary and capricious” standard, citing the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), but providing no discussion. 432 F.2d at 1310. Judge Celebrezze, dissenting, took issue with this “apparent holding.” According to his interpretation of the Administrative Procedures Act, 5 U.S.C. § 706(2)(E), this statute provides that where an agency hearing is required by statute, an administrative decision made upon the basis of that hearing must be supported by substantial evidence. Id. at 1315, n. 1 (Celebrezze, J., dissenting). Also, the Department of Transportation Act says that the Secretary “shall not approve” a project unless “there is no” feasible and prudent alternative, and unless “such program includes” all possible protections. The statute does not say “unless the Secretary determines” these things to be the case. Id. Judge Celebrezze argued that this language requires a more “scrupulous” review. Id.172 Citizens to Preserve Overton Park, 432 F.2d at 1310.173 Id.174 See id. at 1314 (“A trial on the issues would be an exercise in futility.”).175 Id. at 1311.176 Id.177 Id. at 1312, 1313.

24

determinations were not arbitrary or capricious, but the court did not specifically say why the Plaintiffs’

evidence failed to create a question about this.178

In assessing the Secretary’s approval of the route, the court took into account the facts as of the

time of its deliberation. The homes and businesses in the highway’s path on either side of the park had

already been levelled.179 The court “could not ignore the social and economic impact of changing the

route at this late date.”180 It stated that alternative routes that were reasonable when offered were now

unreasonable.181

On September 29, 1970, the Sixth Circuit affirmed the District Court’s grant of summary

judgment for Defendants and dissolved the injunction.182 Although Plaintiffs’ lost, they had succeeded in

delaying construction from the time they filed until September 29.

In his dissent, Circuit Judge Celebrezze pointed out that Plaintiffs had presented evidence that the

Secretary had made no determination.183 Plaintiffs had also presented evidence showing that the route

through the park was not the only feasible and prudent route, and that the proposal did not include all

possible planning to minimize harm to the park.184 This tended to show that the Secretary’s

determination, if he made one, was arbitrary and capricious. Celebrezze believed that the District Court

and the majority of the Circuit Court panel credited the government’s affidavits but not Plaintiffs’.185

Because courts are required to construe the evidence in favor of the party opposing summary judgment,

Celebrezze believed this was error.186

Celebrezze also wrote that the court’s duty is to determine whether the Secretary’s findings were

supported by sufficient evidence.187 “How a reviewing court can determine whether the Secretary’s

findings were supported by sufficient evidence, when the Secretary has published no findings, is a source 178 See id.179 Id. at 1312.180 Id.181 Id. at 1312 n. 9.182 Id. at 1315.183 Id. at 1316-17 (Celebrezze, J., dissenting).184 Id. at 1317 (Celebrezze, J., dissenting).185 Id.186 Id.187 Id. at 1316 (Celebrezze, J., dissenting).

25

of great puzzlement for me,” wrote Celebrezze.188 Celebrezze also expressed confusion about how the

District Court and the majority of the Sixth Circuit panel could determine that the Secretary’s

determinations were not arbitrary or capricious on the record as a whole if they did not have the record on

which the Secretary based his decision because the District Court denied Plaintiffs’ access to it.189

The Plaintiffs’ motion for a rehearing was denied on October 30, 1970. The majority of the Sixth

Circuit panel explained that the affidavit of Arlo Smith, in which he swore that Secretary Volpe had made

no finding, was “on information and belief.”190 The court found these “conclusory statements”

unacceptable.191 Remember that the District Court had denied Plaintiffs the opportunity to confirm

Smith’s belief by denying their request to depose Mr. Swick; however, the Sixth Circuit again affirmed

that decision.192

Swift Moves by the United States Supreme Court Save Overton Park

On October 30, 1970, the same day the Sixth Circuit found for the Defendants, the Tennessee

Highway Department opened bids for the contract to build through Overton Park. 193 On November 2, the

next business day, the Department awarded that contract. Three days later, Plaintiffs sought a stay from

Justice Stewart, Circuit Justice for the Sixth Circuit. Vardaman asked Justice Stewart to stop the

bulldozers while the Supreme Court considered his clients’ application for certiorari. The next day,

November 6, Justice Stewart granted an order staying construction until the full Court could decide on

Petitioners’ application for stay.

On December 7, 1970, the Court heard oral argument on the application for stay, which the

parties agreed to treat as arguments for and against grant of certiorari.194 In his argument, Vardaman

emphasized that without the stay, “grave and irreparable damage” would be inflicted on the park before

188 Id. at 1317-18 (Celebrezze, J., dissenting).189 Id. at 1315, n. 1 (Celebrezze, J., dissenting).190 Id. at 1318-19 (on petition for reh’g) (per curiam).191 Id. at 1319 (on petition for reh’g) (per curiam); Strauss, supra note 96, at 316.192 Citizens to Preserve Overton Park, 432 F.2d at 1319 (on petition for reh’g) (per curiam).193 Citizens to Preserve Overton Park v. Volpe: Petition for Certiorari Granted by the Supreme Court, 1 Env. L. Rep. 10001, 10001 (January, 1971). All of the information in this paragraph comes from this source.194 Oyez, Citizens to Preserve Overton Park v. Volpe – Oral Argument, Part 1, http://www.oyez.org/cases/1970-1979/1970/1970_1066/argument-1.

26

the Court had an opportunity to act on the petition for certiorari, and this would moot the case.195

Vardaman argued that the Tennessee Highway Department should not be allowed spend the money first,

acquire a right of way and begin construction, and then present the Court with a fait accompli.196 Later

the same day, the Court granted certiorari, granted the stay, and scheduled oral argument on the merits for

January 11, 1979.197

About ten minutes before that oral argument was to begin, the Solicitor General filed affidavits

from Secretary Volpe and former Secretary Boyd, swearing that they had made the determinations that

Plaintiffs argued were required.198 Thirty-nine years later, this last-minute attempt to file additional

evidence with the Supreme Court is what sticks in Mr. Vardaman’s mind as the most surprising thing

about this litigation.199

The affidavit from former Secretary Boyd stated, “I determined and found as a fact that there was

no feasible and prudent alternative to routing this highway generally along the bus roadway through

Overton Park.”200 The affidavit from Secretary Volpe said, “… I determined and found as a fact that the

‘depressed’ highway design is the one which would include all possible planning to minimize harm to the

park . . . .”201 It is interesting to note that the District Court had stated, “It is undisputed that the Secretary

did not make such a finding….”202 And then on appeal, the Sixth Circuit stated that “it is clear” that the

Secretary did make the determinations required by law.203

The Court issued its opinion on March 2, 1971.204 In an opinion by Justice Marshall, the Court

explained that building a highway through a park would always be cheaper and cause less disruption to

homes and businesses than building the highway elsewhere. But Congress’ purpose in enacting the 195 Id.196 Id.197 Citizens to Preserve Overton Park v. Volpe: Petition for Certiorari Granted by the Supreme Court, 1 Env. L. Rep. 10001, 10001 (January, 1971).198 Oyez, Citizens to Preserve Overton Park v. Volpe – Oral Argument, Part 1, http://www.oyez.org/cases/1970-1979/1970/1970_1066/argument-1.199 Telephone Interview with Vardaman, supra note 93.200 Strauss, supra note 96, at 322.201 Strauss, supra note 96, at 323.202 Citizens to Preserve Overton Park, 309 F. Supp. at 1194 (emphasis added).203 Citizens to Preserve Overton Park, 432 F.2d at 1312.204 Citizens to Preserve Overton Park, 401 U.S. 402.

27

relevant sections of the Department of Transportation Act and the Federal-Aid Highways Act was to give

“paramount importance” to protecting parks.205 Therefore, the Secretary did not have discretion to

approve a highway route through a park whenever factors such as cost and community impacts weigh in

favor of that route.206 If the word “prudent” did give the Secretary such discretion, then “there would

have been no need for the statutes.”207 The Secretary could approve a highway routed through a park only

in in “the most unusual situations.”208

The Court held that the appropriate standard under which a court should review the Secretary’s

determinations is “arbitrary and capricious.”209 The Court laid out rules on how courts should apply this

statute, which, as Professor Strauss points out, was not discussed by the parties or the courts below.210

The Court held that a reviewing court must first decide whether the Secretary acted within the scope of

his power.211 This involves asking whether the Secretary correctly construed the scope of his authority,

and whether the Secretary reasonably could have believed that there were no feasible alternatives or that

alternatives involved unique problems.212 The reviewing court must then decide whether the Secretary’s

determination was based on a consideration of the relevant factors and whether there has been a clear

error of judgment.213

The Court made little of the presumption of regularity. It stated that the Secretary’s decision is

“certainly” entitled to this presumption, but then stated that the presumption “is not to shield his action

from a thorough, probing, in-depth review.”214

The Court held that the Secretary was not required to make formal findings in this case (but a

subsequently-issued Department of Transportation regulation does require such findings in similar

205 Id. at 412-413.206 Id. at 412.207 Id.208 Id. at 411.209 Id. at 415.210 Strauss, supra note 96, at 325.211 Citizens to Preserve Overton Park, 401 U.S. at 415.212 Id. at 416.213 Id.214 Id. at 415.

28

decisions).215 But the Court remanded the case to the District Court “for plenary review” of the

Secretary’s action, based on the full administrative record that was before the Secretary when he made his

decision.216 On remand, the District Court’s task would be to apply for the first time the rules enunciated

above. The Court pointed out that that record was not before the Court (because of the District Court’s

denial of Plaintiffs’ request to depose), and that the affidavits prepared specially for litigation were

“merely post hoc rationalizations” and were an inadequate basis for review.217 Justice Black, who would

have remanded to the Secretary of Transportation, called the affidavits “too-late formulations, apparently

coming from the Solicitor General’s office….”218

The Case on Remand

After the Supreme Court remanded the case, the District Court held a 25 day trial to determine

whether the Secretary could have reasonably believed that there was no “feasible and prudent” alternative

route to the route through the park.219 In order to be at the trial, Mr. Vardaman had to travel to Memphis,

away from his newborn son, during the week and back to Washington D.C. on the weekends.220 Luckily,

his bosses at his firm understood that, “you got a trial, you just go and do the trial.”221

After the trial, Judge Brown held that the Secretary did not consider whether there was a feasible

and prudent alternative, and remanded it to the Secretary to decide the matter in accordance with § 4(f) of

the Department of Transportation Act of 1966 as the Supreme Court had interpreted it.222 The opinion

suggested that Judge Brown believed the record was sufficient for the Secretary to determine that there

was no other “feasible and prudent” alternative route because all other considered routes had significant

215 Id. at 417.216 Id. at 420. Professor Strauss points out that an administrative record was thought to exist because all parties argued as if it did. Strauss, supra note 96, at 320-21. For example, the Solicitor General urged the Court that to avoid additional delay, the Court should remand the case to the District Court rather than the Secretary because the District Court could review the full administrative record. Citizens to Preserve Overton Park, 401 U.S. at 420 n. 34.217 Id. at 419 (internal quotations omitted).218 Id. at 422 (Black, J., dissenting).219 Citizens to Preserve Overton Park, Inc. v. Volpe, 335 F.2d at 878.220 Telephone Interview with Vardaman, supra note 93.221 Id.222 Citizens to Preserve Overton Park, 335 F.2d at 885.

29

defects.223 But in January 1993, after further hearings, Secretary Volpe found that there was at least one

feasible and prudent alternative to the route through the park:

"On the basis of the record before me and in light of guidance provided by the Supreme Court, I find that an Interstate highway as proposed by the State through Overton Park cannot be approved. On that record I cannot find, as the Statute requires, and as interpreted by the courts, that there are no prudent and feasible alternatives to the use of parkland nor that the broader environmental protection objectives of the NEPA and the Federal-Aid Highway Act have been met, nor that the existing proposal would comply with FHWA standards on noise."224

However, Secretary Volpe did not specify a particular route.225 And surprisingly, Secretary Volpe made

these findings despite a finding from the FHWA that no feasible and prudent alternative to the park route

existed.226

On May 1, 1973, the District Court held that this finding by Secretary Volpe was not sufficient

and that the new Secretary, Secretary Brinegar, must either find that there were no prudent and feasible

alternative routes or specify a prudent and feasible route so the court could review the correctness of the

decision.227 The CPOP and the Secretary of Transportation both appealed Judge Brown’s decision.228 The

Sixth Circuit reversed and upheld the Secretary’s findings holding that the statute did not require him to

specify what a prudent and feasible alternative route would be once he found that one existed.229

223 Id. at 881-882.224 Citizens to Preserve Overton Park, Inc. v. Brinegar, 494 F.2d 1212, 1213-1214 (6th Cir. 1974) rev’g, 357 F. Supp. 846 (W.D. Tenn. 1973), cert. denied sub nom., Citizens to Preserve Overton Park v. Smith, 421 U.S. 991 (1975); Strauss suggests this may have been a political decision due to the fact that Secretary Volpe had been nominated to be Ambassador to the Vatican. Peter L. Strauss, Citizens to Preserve Overton Park v. Volpe in Columbia Law School Public Law & Legal Theory Working Paper Group, Paper Number 05-85 version of fall, 2004.225 Id. at 52226 Id. at 52 n. 220.227 Citizens to Preserve Overton Park, Inc. v. Brinegar, 494 F.2d at 1214.228 Id. at 1214.229 Id. at 1216.

30

Citizens to Preserve Overton Park v. Volpe as a Legal Landmark

Mr. Vardaman said that he and his colleagues did not have a sense of the importance of this case

at the time they worked on it.230 But others did. In January, 1971, the Environmental Law Institute

published its first issue of the Environmental Law Reporter.231 The first thing printed in that issue was a

report on the progress of Citizens to Preserve Overton Park, which called the case perhaps the most

important case of the term.232 This was a prescient observation. According to a search done in September

2009, there are 5,441 opinions listed by Shepard’s that cite Citizens to Preserve Overton Park. Strauss

calls the case the beginning of public interest litigation on issues like highway construction and other

environmental matters.233 And it marked a transition from political control to judicial control on a wide

range of environmental and public interest decisions. 234

Citizens to Preserve Overton Park is so important because it changed how courts apply the

“arbitrary and capricious” standard from the APA. Prior to Citizens to Preserve Overton Park, courts

presumed that an agency’s decisions were supported by the facts.235 Because of this, courts rarely

overturned agency decisions.236 Citizens to Preserve Overton Park eliminated that presumption.237 The

standard it set forth requires a “substantial inquiry” that does not protect the agency from a “thorough,

probing, in-depth review.” 238 This standard is known as “hard look” review and has two principal

elements.239 First, rather than a presumption that the agency’s decision is grounded in the facts, agency

findings of fact must be grounded in a record.240 Second, the agency’s decision must be reasonable rather

230 Telephone Interview with Vardaman, supra note 93.231 See Citizens to Preserve Overton Park v. Volpe: Petition for Certiorari Granted by the Supreme Court, 1 Env. L. Rep. 10001 (January, 1971).232 Id.233 Strauss, supra n. 133, at 2.234 Id.235 Pac. States Box & Basket Co. v. White , 296 U.S. 176, 186 (1935). 236 Patrick M. Garry, Judicial Review and the "Hard Look" Doctrine, 7 Nev. L.J. 151, 156 (2006).

237 Citizens to Preserve Overton Park, 335 F.2d at 415. 238 Id.239 Garry, supra n. 168, at 156.240 Id.

31

than just minimally rational.241 Because of hard look review, an agency “had to demonstrate that it had

responded to significant points made during the public comment period, had examined all relevant

factors, and had considered significant alternatives to the course of action ultimately chosen.”242 This led

to informal agency proceedings becoming much more formal with more in-depth records.243 It also led to

many more cases reviewing agency decisions.

In the ten-year period after the Court’s decision in Citizens to Preserve Overton Park, the number

of administrative law cases filed in the D.C. Circuit increased four-fold.244 This corresponded to an

increase in cases filed by public interest groups. According to Strauss,

“Lexis reveals that during the decade of the 60’s, the two long-established national environmental organizations who were among the several named plaintiffs in Overton Park, the Sierra Club and the National Audubon Society, were plaintiffs in only one reported decision; that decision was reported in 1969, the year in which the Overton Park complaint was filed and, as it happens, also concerned an element of the interstate highway system. For the 1970’s, a search for these two names returns 149 hits; for the 1980’s, 337; for the 1990’s, 499. . .”245

In a Lexis search using the same terms used by Strauss, but for the period from January 1, 2000 to mid-

2009, there were 796 hits.246 All signs indicate that this flood of cases resulted from the heightened level

of judicial scrutiny over agency decisions first enunciated in Citizens to Preserve Overton Park.

Does Heightened Judicial Scrutiny of Agency Decisions Protect the Public’s Interest?

There are multiple views of whether this significantly less deferential standard is more likely to

result in policy that is best for the public’s interest. Some see the heightened standard in Citizens to

Preserve Overton Park as better able to reflect the public’s interest. Judges and scholars who think this

worry that agencies have been “captured” and influenced by the groups they were supposed to be

241 Id.242 Id. at 156-157243 Gordon G. Young, Judicial Review of Informal Agency Action on the Fiftieth Anniversary of the APA: the Alleged Demise and Actual Status of Overton Park’s Requirement of Judicial Review “On the Record,” 10 Admin. L.J. Am. U. 179 (1996).

244 Garry, supra n. 168, at 168.245 Strauss, supra n. 133, at 2.246 Lexis search of combined federal and state cases for “Name(Sierra Club) or Name(National Audubon Society)” with appropriate date ranges, conducted September 20, 2009.

32

regulating.247 Therefore, judicial review of agency action is needed so there is a guardian of the public

interest.248 Since the “hard look” standard requires agencies to consider all relevant factors and

alternatives, they have to open up the deliberations to include a broad range of public interests and

consider those interests to make a decision.249 Thus, these proponents would argue, heightened judicial

scrutiny of agency decisions forces agencies to be more representational.250

On the other hand, some argue that matters in administrative law are best resolved using the

political process, not by the courts. The opponents argue that the benefits of “hard look” review are not

worth the losses to gridlock and inertia in the political process.251 They worry that it is too easy for the

courts to come up with arbitrary decisions based on the judges’ own views.252

After the Citizens to Preserve Overton Park Litigation: the Fate of I-40

After the Secretary’s determination that there was a “feasible and prudent” alternative to the route

through the park, DOT officials continued to look for a way to complete I-40.253 The search primarily

focused on routes through the park, probably because the other alternatives would have caused too much

disruption, but a suitable direct route was never found.254 There were various reasons for this.255

Tennessee submitted a proposal for an open cut design through the park in September 1974, but the

following January, Secretary Brinegar found that §4(f) barred approval of an open cut design.256 He then

asked for an evaluation of tunneling alternatives.257 During this time, President Ford replaced Nixon after

his resignation. In April 1975, President Ford’s Secretary of Transportation, William Coleman,

recommended that I-40 should be completed with a two-tier tunnel under the park.258 The state turned

247 Garry, supra n. 168, at 162248 Id.249 Id.250 Id.251 Strauss, supra n. 133, at 2.252 Id.253 Strauss, supra n. 133, at 53.254 Id.255 Id.256 Id.257 Id.258 Id.

33

down that recommendation because of the expense.259 Then, the Deputy Secretary of Transportation

scheduled a hearing for a single level tunnel for November 1976 in Memphis, but state officials requested

that it be cancelled because they thought the Carter administration would be more cooperative.260

Subsequently, Tennessee twice submitted designs for partial tunneling; the Department rejected both.261

Three days before President Reagan took office, the state asked that the segment of I-40 through

Memphis be dropped from the Interstate system.262 Three hundred million dollars in federal funds

committed to the project was then released to Memphis for other transportation purposes.263

Around the mid-eighties, I-240, a loop to I-40, was built that avoided Overton Park and other

alternative routes that would have gone straight through Memphis.264 This loop (labeled I-40) is evident in

the map below, to the north of Overton Park (the green arrow).

In 1987, Tennessee deeded the 26 acres of Overton Park back to Memphis,265 which signaled to at least

some Memphis citizens that the project to route I-40 straight through Memphis was “dead.”266 While

some Memphis citizens still think I-40 should be extended through the city, no one seems to think it will

259 Id.260 Id.261 Id.262 Id.263 Id.264 Email from Naomi Van Tol, President of Citizens to Preserve Overton Park, (September 17, 2009).265 Strauss, supra n. 133, at 52.266 Van Tol Email, supra n. 150.

34

happen.267 An editorial by the local Memphis newspaper conveys how obvious this sentiment is to

Memphis citizens, “A lot of people in Midtown, frankly, are leery of . . . [a] big-box supermarket, which

would be about as welcome as an interstate highway through Overton Park (which has been tried).”268

According to Naomi Van Tol, president of the reincarnation of Citizens to Preserve Overton Park,

one of the primary reasons a direct route will never be built is because Midtown, where Overton Park is

located, “is one of the strongest and most vibrant sections of Memphis.”269 Undoubtedly, it also does not

hurt that CPOP is back and stronger than ever.

Citizens to Preserve Overton Park Today

Van Tol and two other women reincarnated CPOP in March 2008 because the Memphis Zoo cut

four acres of the park’s old growth forest to build a new exhibit.270 According to Van Tol, “Chainsaws and

backhoes toppled 200-year-old oak trees that were alive before the city of Memphis was founded.

Bulldozers removed the giant stumps and scraped away the soil that had nourished generations of plants

and animals. In less than two weeks, a thriving ecosystem was transformed into a lifeless dust bowl.”271

After investigating the zoo’s actions, they found that the zoo controls seventeen additional acres of

publicly-owned forest, part of the park’s Old Forest. The CPOP’s current mission is to persuade the zoo

to take down the fence surrounding the 17 acres and restore that part of the forest to Overton Park.

In the map below, the area surrounded by red is the 4 acres the zoo clear-cut for an exhibit. The

area surrounded in green is the 17 acres the zoo plans to build an exhibit on in the future. CPOP wants the

fence around the green area removed and the 17 acres returned to Overton Park for public use.

267 Id.268 Editorial, “Careful on the Square,” Commercial Appeal (June 1, 2009).269 Id.270 Van Tol Email, supra n. 150.271 Naomi Van Tol, “My Thoughts: Who will protect the Old Forest, Memphis' oldest living ancestor?” Commercial Appeal (June 1, 2008) http://www.commercialappeal.com/news/2008/jun/01/my-thoughts-who-will-protect-the-old-forest/.

35

The current CPOP is inspired by the original group. According to Donna Manley, a Facebook fan

of Citizens to Preserve Overton Park, “The Old Forest is what we went to the Supreme Court to protect.

We need to preserve it.”272 Van Tol also expressed her admiration of the original “little old ladies in tennis

shoes,”273 stating, “We are definitely inspired by the original CPOP leaders -- they fought a battle that

nobody thought could be won, they were vilified in the media and by elected officials, but they never

gave up. We hope that we can honor their legacy by achieving legal protection for the Old Forest, which

is something it has never had.”274

The current group also encourages public use of Overton Park and gives free public nature hikes

in the Old Forest.275 The group appears immensely successful. As of September 2009, Citizens to Preserve

Overton Park has 700 people on its mailing list and over 1,200 fans on its Facebook page.276 There are

some who criticize the decision in Citizens to Preserve Overton Park and the process of using the courts

to decide environmental and transportation issues in general by arguing that it is only the interests of a 272 http://www.facebook.com/overtonparkforever?v=wall&viewas=2316029#/note.php?note_id=132285069885&ref=mf (last visited, September 16, 2009).273 Van Tol, supra n. 157.274 Van Tol Email, supra n. 150.275 Id.276 http://www.facebook.com/overtonparkforever#/overtonparkforever?v=wall&viewas=2316029 (last visited, September 17, 2009).

36

small part of the “public” that is represented in these cases, and usually it is the section of the public that

is wealthy and well equipped to access the courts.277 There is a concern that the interests of those who are

poor or otherwise not able to have access to this type of remedy are not represented using this process.

We think the current members of the reincarnation of CPOP would disagree. They would tell you to help

spread the word – there is a free nature hike on Saturday in the park available to everyone. And then they

would encourage all who show up to sign the petition to ensure the whole forest is open to anyone who

wants to use it. They truly appreciate that the decision in this case saved their beloved park, and they want

to encourage all to enjoy it.

277 See Wikipedia page for “Citizens to Preserve Overton Park v. Volpe.” http://en.wikipedia.org/wiki/Citizens_to_Preserve_Overton_Park_v._Volpe (Last visited September 20, 2009) (Suggesting the case is an example of a “not-in-my-backyard” movement, or NIMBYism.)

37