ELR Citation: ELR 20110
No(s). 1066 (U.S. Mar 2, 1971)

The Secretary of Transportation's approval of federal expenditures for the consturction of a segment of Interstate Highway I-40 through Overton Park is subject to judicial review under §701 of the Administrative Procedure Act, because the federal highway statute which authorized the Secretary's decision does not limit or prohibit such review. Further, the narrow exemption for action committed to agency discretion is not applicable, i.e., there is "law to apply." The Department of Transportation Act, 49 U.S.C. §1653(f) (Supp. V), and Federal Aid Highway Act, 23 U.S.C. §138 (Supp. V), explicitly bar the use of federal funds for the construction of highways through parks. Only the most unusual situations are exempted. The Administrative Procedure Act in this case does not require de novo review. In addition, the Secretary's approval of the location and design need not meet the substantial evidence test. However, the reviewing court must conduct a "substantial inquiry" and determine whether the Secretary acted within the limited scope of his authority. If he did so, the reviewing court must further determine (1) whether that action was nevertheless arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and (2) whether the Secretary followed the necessary procedural requirements. The Secretary did not have to prepare findings of fact in this case, because the relevant statutes did not so require, and because the Secretary's action was not ambiguous. The Department of Transportation's regulation requiring formal findings was issued after the Secretary had approved location and design. Further, an administrative record exists facilitating full and prompt review. Remand to the Secretary is unnecessary. The lower court's review was based on litigation affidavits, which did not comprise the entire record and thus were an inadequate basis for review. The case is remanded to the district court with instructions that because formal findings were lacking the court may require the administrative officials who participated in the decision to give testimony explaining their action.

Counsel for Petitioners
John W. Vardaman, Jr.
Edward Bennett Williams
Williams and Connolly
1000 Hill Building
Washington, DC 20006
(202) 638-6565

Charles Forest Newman
Burch, Porter & Johnson
Court Square Building
128 North Court Avenue
Memphis, TN 38103
(901) 527-6385

Counsel for John A. Volpe
Erwin N. Griswod Solicitor General
L. Patrick Gray, III Assistant Attorney General
Wm. Bradford Reynolds Assistant to the Solicitor General
Alan S Rosenthal
Daniel Joseph Attorneys
Department of Justice
Washington, DC 20530
(202) RE7-8200

Counsel for Charles W. Speight
David M. Park Attorney General
Lurton C. Goodpasture Assistant Attorney General
157 Poplar Avenue
Memphis, TN
(901) 534-9251

J. Alan Hanover
James B. Jalenak Special Counsel
Hanover, Walsh, Barnes & Jalenak
219 Adams Avenue
Memphis, TN
(901) 526-0621

MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.