D.C. Federation of Civic Associations, Inc. v. John A. Volpe

D. C. CIVIC ASSO FEDERATION OF al., CIATIONS, INC., Appellants, et

John A. VOLPE et al.

No. 23870. Appeals,

United States Court of Columbia Circuit.

Argued Feb. April 6,

Decided Washington, Owen, D.

Mr. Roberts B. C., Norton, Mr. whom Gerald P. govern- brief, Transportation for and the District C., Washington, on the D. building Bridge in viola- ment were appellants. provisions of 23 of Title tion of several Attorney, McKevitt, L. Thomas Mr. the Únited States Code. Justice, whom Department of hearing expedited Dis an Flannery, After U. S. Thomas A. Messrs. grant injunc Hannon, trict Court refused Joseph Asst. U. S. M. Atty., Atty., granted summary judgment Clark, Attorney, for tion and B. and Edmund ap appellees. Justice, The court concluded that Department were on of allegations pellants’ of Title of violations brief, appellees. for federal 23 would not gress considered because “Con Hess, Corporation Asst. Mr. R. John enacting [by Section intended 23] Columbia, of for District Counsel that the District of commence Columbia Dun- T. with whom Messrs. Charles Bridge project construction on the can, Counsel, Corporation Hubert B. possible, and further soon that no Pair, Principal Corporation Asst. Coun- hearing requirements or of Barton, Corpo- sel, Asst. and Richard W. complied Title 23 need Be with.” brief, Counsel, on the ration cause do not find in we appellees. District of Columbia deny tended to the residents of the Dis Montgomery and L. Messrs. Bruce protections trict of Columbia the accord Wertheimer, Washington, D. Richard J. ed all United States citizens C., on behalf of Sierra filed a statement we reverse the of decision the District Club, al., et as amici curiae. Court remand the cause for BAZELON, Judge, Before Chief whether there determine MacKINNON, WRIGHT Circuit compliance with Title 23 this case. Judges. I Judge: WRIGHT, Circuit J. SKELLY High- Section the Federal-Aid provides This concerns the suit way ofAct as follows: High of Section 23 of the Federal-Aid way Act of In that 1968.1 section Con DISTRICT OF COLUMBIA gress directed the District of Columbia Notwithstanding any (a) Sec. government Secretary of Trans provision law, court portation re to construct certain decision or administrative action to maining portions of Interstate contrary, Secretary of Trans- Highway System Among in the District. government portation and the of the in the Act was mentioned shall, in addition of Columbia proposed the Three Sisters already those routes under span upstream across the Potomac River struction, construct routes Key Bridge crossing Spout from System the District Interstate Virginia Georgetown Run in sec Columbia as set forth docu- Washington. tion ment entitled “1968 Estimate signa- Completion The Act law with the became Cost of System National August 23, ture of the President on Interstate and Defense September Highways of 1969 the District in the District Columbia” building Congress by let the first contracts for submitted to the Secre- Bridge. tary Taxpayers with, Transportation Three Sisters and as a brought of, System civic associations in the District “The Interstate printed this suit in Doc- October 1969 for a declar- Cost Estimate” as House atory judgment injunctive and for ument Numbered gress. Ninetieth Con- relief. Appellants alleged be un- that the Such construction shall 90-495, Pub.L. No. 82 Stat. 827-828 D. Federation of Associations C. Civic (1970). D.D.C., F.Supp. Volpe, strenuously argue Appellees possible that Sec- after dertaken as soon Act, except the ne- tion intended to eliminate of this 23 was enactment date of section, cessity “pre-con- compliance provided in this as otherwise provisions of Title in accordance struction” out be carried shall building Three applicable title United States Code with all Bridge. Specifically, appellees States Code. Sisters of the 23 United that, urge despite explicit statement the days (b) after Not later than 30 applicable provi- Section 23 “all of this section date of enactment the govern proj- of sions” Title 23 are to the government of of the District Co- the following ect, of sections commence work on shall lumbia applicable projects while similar following projects: throughout country, inapplicable Bridge, (1) 1-266 Three Sisters Bridge project4: to the Three Sisters (Section B2). B1 to (1) 128(a) (Supp. 23 1965- U.S.C. IV § Freeway, 1968), (2) any I- requires River Potomac state5 build- B4). ing (Section federally B2 to 266 financed hold road to public hearings toas and location Leg (3) of Inner Center any (Section C4), proposed highway bridge, ter- of Loop, A6 to or 1-95 and minating York Avenue. at New to consider the “economic and social ef- location, impact of Leg fects such its (4) Loop, of the Inner East (Section environment, C4), consistency terminat- 1-295 Cl and its Bladensburg ing at Road.3 goals objectives and of such urban by as follows: quire purchase, donation, The rest of section reads condemna- government (c) otherwise, of the District of property tion or real for Secretary Secretary and the of Trans- Columbia transfer to the of the Interior study portation projects replacement those exchange park, shall or in parkway, for System playground Interstate set forth lands trans- System Es- “The 1968 Interstate timate”, Cost of ferred to the District Columbia for a public pursuant purpose House Document Numbered 1 to section Congress, May 20, (47 Dis- Ninetieth within the of the Act of 161; Stat. speci- 8-115) D.C.Code, trict of Columbia which are not sec. and the (b) report fied subsection and shall is further authorized to Commissioner than months later to the United title to transfer States property acquired. after of this date enactment of so (f) Payments section their recommendations with are authorized to spect including by Commissioner1, to such received made by Secretary Interior, recommended alternative routes of in lieu plans, pursuant property and if no such recommendations of transferred (e) are submitted such 18-month this section. The subsection of period Secretary Transpor- represent payment then the of shall amount of government Secretary tation and the of the Dis- the cost to the of the Interior property acquiring trict routes, Columbia shall construct such suitable for real possible thereafter, replacement property as soon as so transfer- required by (a) agreed upon subsection of this red as between the Com- agency section. missioner and the head of said (d) purpose enabling acquiring For for the and shall be available replacement property. District of Columbia to have Fed- its highway projects approved eral-aid un- argued Appellants have also other der section 106 or of title Unit- example, 23, for § sections of Title Code, ed States the Commissioner of apply. we three text discuss may, the District of Columbia con- clarity. But our sections the sake acquisition nection real applies holding to all of Title 23. property in the District of Columbia purposes project, 5. For of Title the District of Federal-aid provide payments “state.” is considered to Columbia services de- 505, 506, 507, scribed in § sections U.S.C. 508 of title United States Code. (e) The Commissioner of the Dis- trict of Columbia is authorized to ac- by promulgated The net effect Section planning has been be, (2) community”;6 appellees it must insist 23 U.S.C. strued as § States of the United requires the to divide citizens (1964), which projects into two class- approval of affected road Transportation to withhold group citizens, the res- until One small highway projects es. unless new finding who explicit Columbia idents made an he has continuing the Three on a will be affected projects are based “such important deprived planning of these transportation comprehensive rights participate in the fu- cooperatively process carried class, community. ture of communities conform- and local States consisting objectives all residents stated with the ance guar- states, federally (3) (Supp. these section”; still retains 23 U.S.C. § federally rights 1965-1968), all requires anteed influence the Sec- which IV face, building. On its retary Transportation ap- assisted road to withhold interpretation therefore, appellees’ involving proval the use result discrimina- Section would park there is no feasible land “unless af- the District residents prudent tion between use of and alternative to the * * * land, program and all other resi- fected and such such United affected dents of the States possible planning to mini- includes * ** highway projects in their localities. park mize harm to such sulting from such use.” discrimination, finding of The starting only point however, must be appellees’ inter-, accept If we were to inquiry. In the constitutional of our pretation we would Section difficulties, many simply possibly sense, of con- are fronted with discriminations magnitude. provisions benign. stitutional The question whether The remains safeguards listed above are the essential on an invidi- this discrimination is based established, has on a na- groups of citi- ous classification between tionwide to ensure basis, that massive viola- rises to the level of a zens which freeway projects are not un- constructed equal protection clause of tion of good less there has been faith effort appellees’ find that Constitution.7 We plan- of the state and local en- 23 would of Section community ners to take and re- needs constitutionality. reject danger its We sources into consideration. interpretation to save the statute.' planners design proj- has directed the growth develop- ects consistent with analysis by ex our We start patterns, ment refrain from un- recognizing, Supreme plicitly necessary of valuable state destruction occasions, many Court has announced and, park land, importantly, or local most legislative every it is not discrim to accord full and fair area residents a similarly ination between situated hearing. Transporta- groups equal pro which is violative of charged overseeing plan- tion is guarantees.8 tection ning may approve projects, road government, fed branches state and allowing thus them fed- be built with given eral, great funds, must be freedom in eral until he finds that all these choosing designated how to overcome a properly considerations have been taken given legislature The latitude evil. into account. Shapiro Thompson, requires 7. See v. U.S The statute the states to hold 641-642, hearings”; regulations “public spec- 89 S.Ct. 22 L.Ed.2d 600 (1969); Bolling Sharpe, ify separate design hearings. v. 347 U.S. location and (1954). 74 S.Ct. 98 L.Ed. 884 1, Appendix (1970). A 23 C.F.R. Part applicability For a discussion of the See, g., Optical Co., e. Williamson Lee regulations project, pp. these see 348 U.S. S.Ct. L.Ed. 447-448 infra. regula- enacting tional of economic think that schemes muster.16 We in- terpretation especially appel- tion broad.9 of Section 23 which has been urge unnecessarily deny lees Dis- eschewing a close re But while important personal rights trict residents regulation, view of economic Court granted by Title 23 citizens elsewhere explicitly apply has stated will in the United States. scrutiny,” a much “strict more search ing provisions review, standard of when “individual All of Title 23 dis personal”11 primarily cussed “fundamental”12 above were enacted rights As the re benefit of the local involved. Court residents whose cently explained, regulation may homes and economic lives be affected a na merely project. cases “the Court asked tional designed keep whether These there is rational foundation discrimination, highways federally for and has deferred assisted from en croaching legislat being parks, the wisdom state local lo per except ures.”13 cated fundamental in accordance with When an inter- rights stake, however, community comprehensive sonal are at scheme by meeting planning, statute can sustained sure to make that state very heavy justifica apprised “the burden officials are na depth tion.” ture least some of of local feel these cases residents’ ings particular the about discrimination “must be shown the wisdom a to be necessary project. history accomplishment of the of some 15 permissible objective” hearing provision originally (emphasis state it was as en added) years ago pass if acted the statute is to 20 constitu- shows that legislation, 184, 283, 9. With reference to economic U.S. 13 L.Ed.2d 222 85 S.Ct. . (1964) Supreme the has “[a] Court said that statutory discrimination will not be set Loving Virginia, supra 13, 9, 14. v. Note at may reasonably if aside facts state 87 S.Ct. at Cox 1822. Professor has writ- justify be conceived to it.” McGowan equal protection ten that these modern Maryland, 420, 426, v. U.S. 366 81 S.Ct. “appear upon largely cases two rest 1101, 1105, (1961). 6 L.Ed.2d 393 * * * subjective judgments, the rela- overseeing legislation, economic where the particular tive invidiousness of differ- ways reaching particular goal a * * * entiation, [and] the relative legislature countless, are almost subject importance of the judicial where close examination of the required.” equality Cox, which Fore- by legislature only means chosen can Adjudication :word Constitutional resurgency guess- result in a of the second Rights, the Promotion of Human 80 Harv. ing legislature inherent in the con- 91, (1966). L.Rev. 95 cept process,” of “substantive due supra Loving Virginia, 13, judiciary 15. necessity v. Note at must of avoid close ' 11, 1823; Carrington scrutiny 87 S.Ct. at see v. of these schemes lest it become Rash, 89, 775, only super-legislature. Develop- 380 U.S. 85 S.Ct. 13 L.Ed. See (1965). 2d Equal 675 Protection, ments in the 82 Law-— 1065, Harv.L.Rev. 1131-1132 commentary (1969). 16. A has summarized the re- “Thus, cent cases as follows: the cases Williamson, Skinner v. Oklahoma ex rel. indicate that when a fundamental interest 535, 541, 316 U.S. 62 S.Ct. 86 L.Ed. impaired suspect or a distinction (1942). 1655 drawn, the demand Court will a convinc- Reynolds ing Sims, 533, 561, v. demonstration that 377 U.S. classification statutory (1964). S.Ct. is well L.Ed.2d 506 tailored to achieve objective. How well tailored the classifi- Harper Virginia Elections, v. Board of cation somewhat must be remains obscure. 663, 667, 383 U.S. 86 S.Ct. 16 L.Ed. The state must show least this (1966), quoting Hop- 2d 169 Yick Wo v. just classification is more than one of sev- kins, 356, 370, 118 U.S. 6 S.Ct. ways achieving eral reasonable its (1886). L.Ed 220 goal.” Developments Equal in the Law— Loving Virginia, 1, 9, Protection, v. 388 U.S. 82 Harv.L.Rev. 1817, 1822, S.Ct. L.Ed.2d (1967) ; McLaughlin Florida, see ly highway projects federal and federal affected state lest concerned only thinking opportunity accorded an of the needs have been planners, high- planned fast nationwide both commend criticize efficient and an spe- way network, construction projects, to consider fail inherently disruptive particularized local are which needs cific any community. projects.17 quo in status affected Accord- communities ing Congress required appellees, however, Congress, state each a result As hearings broadening (in public Highway af- at which the while hold Act demonstrate, 1968) federally right in an fected residents could enforced hearing, orderly, regularized com- procedure, deprived has at the same time munity’s requirements particular group, which one small the citizens of the Dis- planners Columbia, ought right into take account. trict of of this to be heard. hearing requirement applied to This These of Title 23 are the highways. federally re Just aided participation High form direct citizen cently, of the Federal-Aid in decisions about the construction of way Congress again Act of ex freeways, may massive decisions which plicitly scope of re broadened the impact well have statute,19 more direct on the hearing.18 present lives quired gov than regulat residents almost interpreted by Secretary’s ernmental ions,20 action. Public requires hold now the states to the forum ordained design hearings. both location Fur citizens, particularly the citizens of the thermore, requires states statute Columbia, participate so economic and “considered highway planning location, impact decisions. The Su cial effects of such its preme Court environment, consistency has it clear in a made and its right goals series of cases objectives of ef with the ur participation political fective promulgated ban process by community.”21 history “is of the essence of a demo This society, long-standing cratic and shows a and increas restrictions on ever right ing congressional that highway representative strike at concern the heart of govern rights, directly planners publicly con These be ment.”22 according Court, opposing views, to fronted with to are ensure “individual 23 personal,” they planners take close account touch a “sensitive 24 objections important rights,” area and desires of individual of human by proj proposed po citizens affected involve the civil and “basic 25 rights” during planning process. Any litical ects of citizens. classi “might fications which invade or re legislative expression Given this rights strain” these “fundamental intent, say right we cannot this * * * closely scru-’ liberties must participation highway citizen carefully tinized and confined.”26 process unimportant is an right, easily Supreme We think deci to who these Court be discarded. Those guide analysis of lan- sions must our are concerned with most immediate- 17. See 1362, S.Rep.No.2044, 561, Cong., 23. Id. 84 S.Ct. 1381. 81st at 2d Sess. (1950). 8 561, 1381, quoting 24. at at Id. 84 S.Ct. Highway 18. See Act Federal-Aid of 1968 Williamson, ex rel. Skinner v. Oklahoma supra 24, No.90-495, § Pub.Li. 828 82 Stat. 536, 10, Note at S.Ct. U.S. (1968). 1110. (Supp. 1965-1968). 19. 23 U.S.C. IV § Reynolds 562, Sims, supra Note at 25. v. 1, Appendix (1970). 20. 23 C.F.R. A Part 1362. S.Ct. Elections, Virginia Harper 21. 23 v. Board U.S.C. 128. 26. § supra at 86 S.Ct. Note 383 U.S. Reynolds Sims, supra v. Note at 1083. U.S. at S.Ct. preservation or re- abandonment guage times resulted of Section government projects. re- ill conceived form democratic of a right protect to quires concerned Congress Presumably could the decisions to influence each citizen given federal have citizens affected government. Since his made right highway projects vote there to par- right to of citizens involves the case sought to Instead political process ticipate as it in the and criticisms channel comments highway projects, federal w« lates to concerning proj road individual citizens scrutiny subject the same this statute to formal, hearing. public This into ects apply effort to we would regularized procedure, notice with due all, some, preclude citizens’ but not subjects officials to concerned, to all making.27

participation in decision differing competing interest views of right recognize of course We groups account and forces them to take hearing highway participate prevailing views while right equivalent not the exact being plans are formulated.29 still However, project. the sim- vote on the Clearly not have insist public voting and the ilarities between procedure ed on such a unless it intended hearing strong. purpose and are closely expose quite road builders hearing may the same the effect of a participation the direct of citizens in designed to those of a Both vote. decisions, the formulation of in ac the wishes of the “electorate.” elicit theory cord with the of our democratic judicial, Furthermore, may process. we take notice Since these road rights hearings irreparably destroy public often- affect basic the fact that Congress, having analysis statute be- here is that is not unavailable 27. This close partici- right rights all citizens the are derived accorded cause the in this case Virginia pate Harper determination of from statutes. In may deny projects, Elections, supra District citizens Board of Note right adequate justifi- proceeded explicit Supreme alone without Court assumption Note for this discrimination. See that the state had no constitu- cation 27, duty vote, supra. tional allow its citizens to but had to vote as a matter allowed some Compare Office of Communication legislative grace. holding such ac- C., Church of Christ v. F. United C. equal protection, tion violative of U.S.App.D.C. 359 F.2d 994 enough to Court say stated: “For There we allowed listeners to intervene as granted once the franchise is parties in order to en- F.C.C. electorate, may the not be drawn lines duty to sure the F.C.C. fulfilled its that Equal are which inconsistent with the public the into account. take interest * * Protection Clause 383 U.S. at Rights participation full of and active at It is settled law 86 S.Ct. hearings the deemed essential State, pro- having “the [a that made court: right] generally cedural issue, available on this Congres- “We cannot believe that may not, Equal consistent with the public participation sional mandate of Protection Fourteenth Clause of says which the to Commission seeks Amendment, arbitrarily withhold it from fulfill was meant ing to writ- to limited Herold, some.” Baxstrom v. 383 U.S. inspec- Commission, letters to the to 107, 111, 760, 762-763, 86 S.Ct. 15 L.Ed. records, tion of grace to the Commission’s (1966). Kelly, Goldberg 2d 620 See v. claims, considering or listener 397 U.S. 90 25 L.Ed.2d S.Ct. non-participating appearance to mere at (1970). 287 hearings. We cannot fail to note that is, history complaints against course, long 28. There of no constitutional of right beginning of citizens left the of the United States to WLBT in 1955 had * * federally virtually supported highway proj- vote on *. Commission unmoved Nor do ects. a beneficial as these District citizens have Such contribution right them, generally. Appellants, constitutional make to vote See or some can grace Carliner v. Board must not be left to the Commissioners of F.Supp. Columbia, D.D.C., 265 Commission.” (1967), affirmed, U.S.App.D.C. U.S.App.D.C. at 736 43, 123 359 F.2d point (Footnotes (1969). omitted.) 412 F.2d right higher example, justification a citi- the basic burden of —for some care- home —we must forms classification zen to live in his which are “con stitutionally fully meticulously suspect” “traditionally scrutinize deny proposal to some accept would disfavored.” If ap which we were to right pellees’ reading federally interpretation influence created neighbor- Congress highway of a their Section course would have ex statutory protection cluded hood to determine whether this discrim- from the on ly “necessary accomplish- group, unrepresented totally ination one a congressional objective minority leg Any ment” of the voiceless of citizens. —a federally singles financed interstate islative classification which out system. group for invidious small treatment a totally po citizens excluded from the Congress argue Appellees intend- process litical does not meet the usual by enacting bypass ed 23 to Section deference from this court. usual hearing process because would deference which courts accord community expose ad- sentiment judgments administrative stems Bridge, verse to the construction of the from the confidence courts and that intended just judgments these resolu irrespective be built of the wishes competing tions of interests.32 In the of the the District of Colum- citizens of ease, Carolene Products Supreme Appellees argue bia. further to al- pointedly question Court raised hearing public low a the lo- would cause prejudice against “whether discrete and delay cal authorities may special a con insular minorities preclude meant hear- seriously dition, which tends curtail ings for this reason as well. processes operation political of those reading Such a would statute ordinarily upon protect be relied legis- condemn it as unconstitutional. A may minorities, a and which call for may constitutionally lature disen- searching judicial correspondingly more group franchise a of citizens because inquiry.” “ expected ‘Fencing views: out’ resulting classification Because from popu- franchise sector of the already deprive only voiceless an way they may lation because vote right personal minority important of its constitutionally impermissible. ‘[T]he highway projects disruptive to contest rights exercise of so vital mainte- generally, enjoyed by we con- citizens ** nance of institutions,’ democratic pressed to hard clude that we would be constitutionally cannot be- be obliterated adequate to find this record reasons political cause fear views of justifica- “heavy burden sustain particular group of fide resi- bona necessary support the discrimi- tion” Carrington Rash, dents.” U.S. appel- result nation which would 89, 94, S.Ct. 13 L.Ed. Ap- of Section 23. lees’ argue “justification” pellees giving Congress’ addition closer review desire case stems to have involving Bridge practicable. classifications individual built as soon as rights, imposed However, Court has also if this were found to be the 13, McLaughlin Florida, supra D.D.C., Hansen, F.Supp. 30. Note v. 32. v. 269 Hobson 192, quoting 283, 401, (1967), 379 U.S. at 85 S.Ct. nom. affirmed sub Smuck 507 Bolling Sharpe, supra 7, Hobson, U.S.App.D.C. 372, Note U.S. v. 347 132 408 v. 499, 693, (1969). See at Thompson 98 L.Ed. 884. F.2d 175 S.Ct. D.Conn., Shapiro, F. v. 270 618, Co., 33. United States v. Products Carolene Supp. 337, affirmed, 331, 394 U.S. 144, n.4, 778, 784, 304 U.S. 58 S.Ct. (1969). 1322, S.Ct. L.Ed.2d (1938). 82 L.Ed. 1234 Elections, Harper Virginia 31. Board of v. supra 86 S.Ct. Note 383 U.S. 1079, 16 L.Ed.2d 169. including Congress, 23(b), would have the Three Sisters we intent of al- “work” was to commence burdensome a less consider whether might days. attempt Appellees to draw path to the same end ternative Congress’ negative as- example, inference from Con- possible.34 For have been to be that “construction” was might speedy con- surance gress have obtained ap- rights with “all preserved of out in accordance carried struction, and Since, provisions” comment, plicable Title 23. of sim- participation citizen Congress only argue, hearings appellees said that by requiring ply that all was to accordance “construction” be in be concluded Title 23 determinations pos- it have meant promptness. with Title must Other with reasonable dredged up “pre-construction” provisions Title may “justifications” be sible history repealed . as to these legislative 23 were the stat- somehow from the projects in the District of Columbia. attempt in- off the to balance ute in an mind, agree. our cannot To for We discrimination vidiousness stop appellees peal contend. We do not which Title 23 would them out we are because to search supported have to more substan- be appellees’ position that Con- vinced that Moreover, interpre- tial our evidence. gress un- such discrimination is intended language tation with the conforms language history supported light of Title 23 statute read in of the statute. in- that “construction” which shows planning.35 cludes We hold Title II applies phases to all of the Three Sisters Considering project. it was statute as written, do read as we not Section 23 his authoritative foreclosing orderly procedures pre tory supports interpretation.36 our Appellees’ primary scribed 23. reports contrary and House not argument Senate do indicate is that any provisions directs “construction” of all the not statute of Title are projects (The apply.37 Report in the On District. Interstate Conference con analysis passed.38) the four mentioned Section no tains as bill Rash, supra Carrington advertising bids, 15. 34. Note See be as sealed A statute would followed. Expenses “all 35. of “construction” include specific it is to eliminate much more if expenses incidental to the construction or “time-consuming” pro- certain, all, not but highway, including lo reconstruction cedures. * * cating, surveying, mapping *, way.” rights H.R.Rep.No.1584, Cong., costs 23 U.S.C. [and] See 90th 2d Engineering costs, Report, Sess., (1968). ex and the § penses The Senate 17-19 activities, public (1968), Cong., of other 90th 2d Sess. No. clearly place long hearings, p. Cong. take be & U.S.Code Admin.News light what defines “actual fore statute no 23 because there § sheds (23 building” 101), qualify provision U.S.C. § no similar Senate as “construction” costs. See 23 U.S.C. version the bill. 121(d) (1964) ; 1, Ap § 23 C.F.R. Part Cong., H.R.Rep.No.1799, 90th 2d Sess. pendix A, (1970). 12§ Manag- The “Statement support history only 36. We find no in that ers on the Part of the House” was appellees’ argument appended Report, Conference U.S. precluded p. Cong. because too take & Code Admin.News represent time. much There was some talk Con- It did will of the Senate gress repre- of the need to move ahead said to conferees and can project. ap- follow, opinions But personal does not sent those who pellees does, congressional signed insist it that a it. The chairman of Senate completing agreed managers, Randolph, concern with soon that Senator requires time-consuming pro- specifics Managers’ that certain in the House cedures, hearings, waived, such as be not “in- Statement were “dictum” and equally time-consuming Cong.Rec. while tent of 114 the Senate.” See practices required by 23, (Part 18) (remarks (1968) also Title 24035 of Sen-

445 recognize signs, fully it is not without that the broad es- “corridors” We 41 by Congress rely individual tablished remarks of to Senator Ran- risk gave dolph his- his word to members of the Senate that Nevertheless, it note- we think tory.39 Section of 317 Title 23 would be worthy to find been able we have specific project effect for a mentioned during the floor debate no statement 23(b) in Section of the Act.42 We also indicating 23 proponent40 Section a the bill take note fact when 23 any Title Secretary Transporta- passed planning applied in not to be interpreted do 23 as tion Section we also only Indeed, Bridge. building today.43 contemporaneous construc- clearly the issue .indicate discussions charged with its of a one tion statute from those support of our weight great is entitled enforcement example, For supporting Section from court.44 leading Cramer, propo- Representative a 23, explicitly stated nent Section Appellees urged would be City hear- hold further could Council require futile hold or to de- ings locations to determine route Secretary to make the determinations Randolph). See also ators Mansfield hearings, let them decide which loca- Cooper) (remarks : of Senator id. at 24028 tion within the traffic corridor should be report of “I when I read the was amazed finally approved pursuant sec- they managers had to discover what tion of the bill. report.” managers’ written out Managers’ But even the House Statement 23] “The term ‘routes’ as used [§ pro- * * * contains no indication that refers to the traffic corridors inapplicable. * * * visions of 23 were to be prescribe and is not intended to n specific a location for of the inter- Matthews, 39. United 136 States v. U.S. highways state constructed.” 196, n.9, App.D.C. 1177, 201 419 F.2d “ * * * (1969) 1182 n.9 : iso [T]he Cong.Rec. (Part 18) 42. See 114 Congressman lated remark of one does not (1968) (remarks Randolph). of Senator any authority proposi constitute for the Transcript See of News Conference of tion that as a intended whole Secretary Transportation, August particular result],” [the See Statement Presi- proponents 40. The statements of are Johnson, much August 23, 1968, Cong. dent likely portray repre more an accurate (Part 24) (1968) Rec. 30958-30959 Congress’ sentation of intent are the (Secretary Transportation than approve opponents. views of ‘(cid:127)[W]e have they named in when § against danger, often cautioned when appropriate are “shown to links in a interpreting statute, upon comprehensive reliance transportation jdan for the legislative opponents. the views of its District”). bill, they their zeal defeat under Secretary recently The incumbent standably tend to overstate its reach. recommended further on at least * * * sponsors ‘It is the that we look 23(b). one mentioned § See meaning statutory to when the Transportation Letter Schwegmann words is in doubt.’ Bros. v. Spiro Agnew T. and John W. Mc- Corp., Calvert Distillers 341 U.S. Cormack, February 22, 1970, Enclosure 4. 394-395, S.Ct. 95 L.Ed. 1035 Tallman, 1, 16-18, 44. Udall v. 380 U.S. * * Vege *.” N. L. R. B. v. Fruit & “ S.Ct. 13 L.Ed.2d 616 ‘Par- Warehousemen, table Packers & 377 U.S. ticularly is this due when the ad- 58, 66, 1063, 1068, 84 S.Ct. 12 L.Ed.2d practice ministrative at stake “involves . (1964) contemporaneous of a Cong.Rec. (Part 15) See 114 charged setting statute the men (1968) (remarks Representative machinery motion, making its of smoothly Cramer) : parts efficiently work while ’ changes “There still can be yet untried and new.” Power route within the traffic corridor. [Development] At Reactor [Interna- Co. v. hearings. same time there can be Electricians, tional Union of] 367 U.S. * * * language [T]he bill does [81 S.Ct. L.Ed.2d 924].” preclude hearings. As far as I am Id. at 85 S.Ct. at 801. concerned, City let Council hold light historically important by tion in the in called for finality the statute manner, Georgetown design In like plans area.48 of the location Secretary, required pre- to make the de- when is said to have District, may by Congress, Title terminations called for how- for the scribed ever, routes, or other feasible well find that only construction directed destroy tunnel, of valu- fewer acres a in certain cost “as set forth” routes by park land. able estimates estimates. These cost final route did not terms constitute own construing Appellees contend that only They a “cor- placements.45 located flexibility to statute as we do to allow pro- ridor” within which roads were and District officials in formu- federal preface posed.46 to the cost esti- The lating plans the final does violence “ * * *” carefully explained that mates document [notwithstanding language pur- for the laid out the routes were disagree. of the statute. We Several costs, pose approximating years ago brought by suit some figures presented cost there plaintiffs in this action to block costly” of on the “least “several based of the Three Sisters which will serve feasible alternatives highway projects and other because the designated route.”47 function of complied District had not with District Therefore, find no indication we highway governing and federal laws that, appellees record before us planning proj- and construction of the tend, public hearing or 23-re- court, ects. in This D. C. Federation of Secretary quired action Associations, Airis,49 Civil held Inc. purpose. serve no useful any that the District could not construct freeways bridge complying future without with- directed that provisions following relevant the District of Potomac over the be built general configurations Columbia Our decision did not laid out in the Code. prevent many participating the District from there are cost estimates. But still projects. bridge interstate construction and location variations of government place- (particularly relation to the was free to build freeways simply by holding ramps) the quired which could the re- ment of the access complying adopted with the and still be consistent congressional However, the law. mandate. Given may moving hearing, public forum of a citizens instead forward gov- Three alter- the District well be offer constructive able to apparently produced ernment proposals decided final to abandon natives to the by altogether. City officials, alternatives Coun- the District effectively cil took no minimize disloca- further action relation to which more by joint any action of the State de- case we would hesitate to con- partments adjoining precluding any plan- further of each State and the strue 23 as § subject States, approval by Congress’ ning local officials view ** practice long-standing make such H.R.Rep.No.1584, precise See decisions. Congressman Cramer, 46. See remarks of (1968) (additional Cong., 2d 90th Sess. supra Note 41. views) : rule of the House Committee A “ ** * Completing 47. 1968 Estimate of the Cost of provides on Public Works System the National of Interstate provid- bill order for shall not Highways Defense in the District legislation ing general in relation to Columbia, (1967). Preface any provision roads to contain specific S.Rep.No.1965, See road.” Secretary’s supra letter, Note Cf. (interstate Cong., (1955) 84th system 2d Sess. 4 recomending thought further locally planned; to be routes not 23(b) about a route mentioned §in ; government) to be dictated federal detailed cost estimates. 103(d) (1) (Supp. 23 Ü.S.C. IV § 1965- 1968) system, U.S.App.D.C. : “The routes of this 391 F.2d 478 greatest possible, extent shall be selected Bridge; Capital Plan- complied provisions the National the fact with the n disapproved of the ning Commission Title 23. Secretary finally project; the ap In aid of the remand we feel it Bridge from Transportation deleted the meaning propriate to comment on the maps Inter- comprehensive of the his hearing requirement of the of 23 U.S.C. System District. for the state course, 128. it will for Dis Of § gov- District reacted to the determine, hearing trict Court after highway construc- inaction on ernment’s evidence, six-year-old all the whether the by ordering bridge be built tion “ hearings papers alluded to in the before otwithstanding any provision [n] satisfy requirements us of Title 23. law, or admin- or court decision However, should be made clear that to the contrary.”50 action istrative regulations Secretary’s implement it was Con- can little There doubt ing Bridge apply Section gress’ Dis- intent countermand project. requirement The basic is that government’s ac- “administrative trict hearing (held both location “before the stopped inter- had further tion” which highway department State is committed nothing in the But construction. state specific proposal”) design to a and a Congress intended indicates statute hearing (held “after the route location contrary Bridge to its built to be approved, has been but before the State then, essence, In Section own laws. highway department is committed to Congress to direction from amounts to a design specific proposal”) must be offi- and federal District the relevant regulations scheduled.52 spe make bridge and continue with cials to highway provision projects cific for like this one they plans formulat- had been hearings on which some have been held ing prior to Airis decision. regulat before the effective date of the regulations requires apply Since hold that Section 23 We ions.53 building promulgating planning terms since in and the both the regulations Bridge comply with the Three Sisters made rea applicable provisions projects sonable of Title 23. those subject which had been the the District ruled other- Since Court regula wise, before the effective we remand the date of the case tions, evidentiary no expedited apply we see hear- reason not these for an Court regulations ing appellees have this case.54 to determine whether approval requested Presumably design If lan- “court decision” years hearing, guage Airis, the date of the refers to our but after decision in compliance design hearing with the reference that de- is mistaken since quirements required contrary.” is nevertheless un- cision not “to the engineer finds less the division 1, Appendix C.F.R. Part A adequately hearing design is- dealt 4(a), 4(b). major relating design Id. at §§ sues features. may design approval It be that was not 6(d). Id. at § requested three-year before the end of the regulations apply 54. These (see to all period Appendix 23 C.F.B.. Part which had not received A, 6(d) (a)), both location (2) that, ai>pellees § approval Department concede, from the engineer the division has not Transportation finding required by before date regula- the effective made the regulations. Appellees above, quoted assert tion or that even if the approval enginer required the final location division has made the Bridge support finding, obtained before that date. will the record accuracy finding. of that will be for assertion such case of non-com- pliance, proceed the District Court How- determine. cannot until ever, appellees design hearings reg- concede in their briefs that which conform to the design hearing there has been no have been held. ulations bridge approval requirements and that final de- We discussed sign regula- regulations specificity was not hearing obtained before the regulations clearly tions became effective. The issue raised because that provide 6(d) (2) (b) parties. not, however, § : We do proceed- procedures, could have ex- and remanded Reversed particular provisions pressly suspended ings opinion. this with consistent into the cannot read of 23. We Title “applicable” of to reference (concur- Judge BAZELON, Chief pro- particular suspension of Title a23 ring). explicit inapplicable, without visions Judge Wright’s join of I in II Part in lan- for the distinction the criteria pro- agree opinion. I that the guage the The State- of statute itself. apply to the Three Title 23 visions of Managers course ment of the House case Bridge Project, that the Sisters determining respect to in the entitled whether to determine must remanded cannot, however, legislative intent.4 It compliance. Because that has there necessary specificity make supply to the my by compelled an in view conclusion is no for those fine basis distinctions since language analysis statutory language found in the distinctions can be legislative history, I find it unneces- the sary legislative by conferees. chosen the ques- reach the constitutional opinion tions, express I no and therefore Our of Section 23 the in Part I. matters discussed on the Highway adopted the one the Act is Transportation at the time history legislative of the Federal- The the The Secre- statute was enacted. Highway a fun- Act 1968 reveals Aid tary’s may have been well procedures to damental conflict over Congress based in on the failure of commencing on the work be followed distinguish applicable and in- between Bridge Project. Undoubt- Three Sisters edly applicable provisions specificity with the legislators thought stat- some necessary for effective administration. ordering immediate construction ute necessity Bridge would eliminate Finally, interpretation is our further proce- preliminary for at least some fortified the fact that it avoids treat- contemplated that dures.1 Others ing favorably District residents less than simply the District reverse statute respect all other with fed- citizens government’s compel the inaction and highway system. eral The court has no government work to recommence occasion to consider at time im- this Bridge proce- compliance with Bridge pact particular location or pro- dures of Title 23.2 This conflict pre- public on the interest. It is ambiguous statute, compelling duced an cisely appellants these seek issues disagreement.3 court resolve the Apart ventilate. constitutional language plain of the statute di- lightly considerations, pre- not we should rects the District to con- of Columbia deprived sume that Dis- Bridge struct the accordance with opportunity trict of an residents afford- applicable provisions of Title citizens, toed all other at least days. it work on within 30 commence legislators agreement absence the clearest man- If the had reached suspension date, lacking on the which is here. scope hearing See, 18) g., Cong.Rec. (Part fine the remand e. question compliance reg- Randolph). (1968) (remarks with those of Senator ulations. If the District Court finds Compare, g., Wyman, e. Rosado appellees complied any pro- not have 25 L.Ed.2d U.S. S.Ct. regula- (including vision of (April 6, 1970) (Harlan, J.). Ap- tions contained in 23 C.E.R. Part pendix A), the District en- Court should weight not, however, It entitled to join Bridge project action further report, it not of a since conference appellees complied until with all signed by majority of the Senate con- provisions. Cong.Rec. ferees. See 12237-39 See, g., Managers Speaker (1935) (ruling e. Statement of the House, H.R.Rep.No.1799, House). the Part of the Cong., 90th 2d Sess. Judge (dissent-

MacKINNON, Circuit to the District Co- force ing): program lumbia this bill. posture With the bill panel opinion, I with which can- ferred a Conference Committee to in effect that agree, holds disagreements consider the between direct that the Three did not intend to including two houses difference on until be built there highway pro- the District of Columbia hearings. It further arrives this con- gram. Conference, Managers by refusing to clusion consider some of agreed language upon both houses legislative the most reliable indicia contained section 23 which we are in upon intent and it reliance while asserts interpreting in It this case. reduced legislative history,” the “authoritative somewhat the that were directed only to a limited it does extent. Con- so proceed immediately. legislative history of aU the sideration including important Statement most panel opinion support seeks some Managers my opinion in of the House for its section 23 from Congress clearly indicates that directed attempts the Senate debates and to make Three built that immediately point of the fact that the state- I do find that and not Managers part ment of the on the of the improper was or direction invalid. appended House was Report. to the Conference way attempts In this it to work I Managers around the Statement of the interpreting lan- statute the part on the sary of the House. It is neces- guage of im- act itself is the most panel opinion for the to evade a portant element. Next come the written document, confrontation with this vital reports of the Committees and Confer- because the decision it cannot announces Managers. ence Here we are concerned squared be Managers with the Statement of the High- with section 23 of Federal Aid for the House where the bill way previously Act of which is originated. seeking legis- In thus some quoted panel opinion. in the This sec- backing lative for its construction of sec- congressional tion was drafted tion it refers remarks of Sena- orig- Conference significant Committee. bill Cooper,3 tor it is but inated in the Senate contained no substantially but Cooper Senator was in the provision highways District minority matter; on this and on the of Columbia. When the bill reached the passage final of the in the bill Senate his Representatives House of it was amend- rejected by views were the entire Senate construction, require ed to “the as soon passed and the bill 66 to 6. Senator possible, of all routes the interstate Cooper was one of the six who voted system against within the District of Columbia elementary the bill. It is as set forth in” the 1968 Estimate of the intent is not reflected floor Sys- Completion speeches of the having Cost of National of Senators that rela- Highways and Defense tionship tem Interstate to a bill and to the Senate’s vote in the District of The House Columbia.1 thereon. It is also obvious that in such moving Representatives was thus the circumstances, when one tries work frequently legislates varying stages in this readiness, be studied by referring reports reported manner official and 18 months. cognizance documents within the of the Cooper 3. Senator awas member of the Congress. committee or Works, Committee on Public was a mem- Section 23 the final bill Committee, was altered ber of the Conference but re- originally adopted by over section sign Report. 23 as fused the Conference His Representatives. Generally obviously the House of views are not the views of the the final draft reduced Senate, the number of Senate Committee or the which projects upon recommended, adopted passed immediate work was provided additionally directed and Report that a Conference and bill. highway projects, number of other D. C. Managers approached conferees The Senate the Statement around res- reluctance replace this matter with section and drafted the

who op- did believe ervation. We who those of one Senator views against that should be handled was matter posed the bill section, voted However, por- a national act. and other on this views whose comity and with the the interest of 66 to voted down of the bill were tions bring conference, hardly out you up desire to a bill a reliable come changes proposed in the we certain The views of the section. give-and- language minority do not indi- House of a house language ensued, majority of sec- take which the intent of the cate report the conference opinion do tion 23 of panel so. cannot make them developed. provide The Senate rules do not section, terms of this Under the Managers part of the Senate government Columbia as a file of their views statements Transportation Reports. of Conference Committee proceed projects: to directed with four provide do The House Rules leg completion to of center the Managers filing Reports.4 of It is thus Avenue; New York the significance Con- no that the Senate leg; of the east the Potomac River highway did not file a ferees on this bill Freeway, Bridge. Three and the Sisters statement. It our belief that of these four is three relatively the case 23 of this since section noncontroversial largely originated accomplished bill in the House the and can with a mini- Managers disruption Statement of the House is all- of mum and dislocation important. They proponents the of the citizens of the District of Columbia. agreed along section it 23 and was with project, The fourth the Three Sis- overwhelming rest of the bill the the Bridge, is a ters matter of contro- majority point the At it of Senate. this versy, but it is also vital to the devel- understanding is to an the conducive of opment proper In- of access to Dulles significant Senate action to refer to the Airport question ternational of the Randolph bridge remarks of Senator of West the had to be answered if Virginia pro- Virginia, State of is to be able the Chairman of the Senate development ceed with its and construc- Committee Public Works that handled tion of Interstate Route Those who 66. appear His bill. remarks in the Con- part agreed took in the conference that gressional July Record 1968 at the Three is to Sisters be built page 24030 as follows: way in such a it will not or in that now One of most difficult issues be- the future result encroachment involving fore the was that conference on Glover-Archibold This is a Park. the District agree Columbia interstate matter on which we and we highway program. language everything pro- insist be done to required the House bill immediate con- tect area the District of Colum- highways struction highway those bia from kind of District understanding of Columbia as contained With this struction. majority the 1968 cost estimate. The bill Senate the Senate conferees language. comparable agreed had no part Representatives upon 4. Rules of tlie House of sitions will have the measures to U.S., Cong. (1967), 90tli Lewis relate. Descliler, Parliamentarian. XXV- Rule III, Reports Subsequent Conference 911: § references to Senate debates (c) accompany Congressional And there shall refer to Record for this every report Cong.Rec., 18, p. a detailed statement date. Vol. Part sufficiently explicit 24030, July 29, to inform the House propo- what effect such amendments or stultifying Randolph (Empha- section program. Senator Columbia obviously enacted, 23 of bill as added.) sis Representatives by their in- Senators speak for themselves remarks These on the floor au- dividual remarks cannot agreement with section and indicate thoritatively speak for “intent” of majority of the Sen- His that a statement body contrary to the either agreed "construc- ate conferees Congress important enacts. What is tion” Three Sisters Senators, is not the intent of individual highway program Columbia District of Senate, or intent of the House or even significant. is most Congress but the intent of as evidenced an To obtain accurate bill the entire his- finally drafted the law it was tory where that be referred to. needs necessary inac- correct several prevails. It is the intent of panel opinion appear curacies Statements individual members de- and House Senate Congress en- cannot alter what bates. acts. Randolph, as to Further Senator No disclaimers individual Senators gardless panel opinion to how the Representatives can effect what the attitude of seeks characterize collectively by adopting two houses did Randolph upon the Senate and Senator highway provi- bill the D. C. Managers statement of the House sions. Three fact Tydings Senator also noted immediate- Randolph para- adopted last Senator ly following approval final of the bill that Senate) (by reading graph it to the of it requires it the District to Government right relinquishing of which the refers to “ * ** proceed with construction the through way in Glover Archibold Park ** * Bridge.” of Three the Sisters support his that are of “we statement (Emphasis 24038). added.) (Cong.Rec. allowing freeway [building not it of a Further, Senator Jackson he stated through Cong.Rec. park].” p. 24035. the freeway go understood “the under doing In so he the sentence also read existing (114 Cong. the &C. 0. Canal.” which reads: Rec., 24033) p. Part Such understand- design bridge not “The the does of ing interpreting consistent the * require park intrusion on the legislation recognizing there was (Emphasis added.) question no the as to location of that though “design Does this sound project. He was also assured Senator bridge” open question was ? still an Randolph that bill would not take Obviously, it was not Ran- and Senator away from the of Interior dolph recognized. so go opportunity “an to over the final de- panel opinion The in also footnote 38 sign” Freeway of the Potomac River seeks to make of a some use comment (which freeway going involved the under specifics the Senate floor in Canal). panel opinion the C. & O. Managers statement of the House were attempts to support turn to addition- “dictum” not “the intent of and the Sen- design hearings approval al and with re- (Cong.Rec. 24035). ate.” However spect Three it Sisters but (Cong.Rec. 24035) these remarks cannot be so twisted. Potomac Riv- “Notwithstanding” directed at direc- Freeway project er and the Three Sisters allegedly tion the bilí which was car- Bridge project are different and provi- ried out Glover Archibold stages planning. in different As the sion in the statement of House Man- Managers statement of the House states agers.6 I do not read the remarks to the Potomac Free- River Appellants here place. are fact, war with the Park Archibold take In upon direction being statement of the House carried insist out. Managers that “no intrusion of” Glover Transportation “the way refer- connection with Jackson which Senator roads, 24033): (Cong.Rec. construction” of the D. C. red laying like a down “directions almost Department of Columbia “The District proceed company, how to immediately upon Highways shall Cong.Rec. construction.” Vol. with the proceed legislation of this enactment * * pp. part He never facility this entire said inferred that statement added.) (Emphasis Managers House was incorrect Project Freeway the Potomac River With spect specific that it but was too stage perfect- development it is in that place highway out of in a act. national design provi- ly subsequent obvious objection specific His also went (ac- might applicable of Title 23 sions high- in the bill as to directions C.D. cording tenor) is no but way program.7 None of this furnishes thing saying the same basis challenge basis the correctness Bridge which Three true Managers. the statement of the House approved design was an and which had Cooper Senator was error also some separate project, not as a considered about the entire D.C. Project, Freeway the Potomac River he corrected Senator Ran- stage inwas advanced more (Cong.Rec. dolph 24034-24035). To sum- approvals state- —as marize, Cooper opposed Senator Managers House stated at ment opposed the bill. He was Senate’s page Report. 34 of the Neither Senator position on the His bill. views Randolph nor in this Jackson Senator col- accordingly persuasive bill no talking loquy were Three about Sis- weight interpreting the bill. Bridge and their remarks cannot be ters Moreover, to that end. Senator twisted Congressman Floor remarks of Cramer Randolph give did not his word that Title misinterpreted by panel opin- proj- specific be in (Cong.Rec., 23 “would effect for 19923). ion p. Part. 23(b) ects mentioned Section bill, Congress- the House debates on the pp. opinion. panel Act.” See 19-20 of man Cramer said in effect the D.C. solely remarks His were directed to Sena- City Council could still hold inquiry tor the Potomac Jackson’s as to to location within the corridors of the in- Freeway power River of the and the Sec- highways terstate to be constructed. His retary of Interior To the thereto. extent generally remarks were directed panel convey opinion that the seeks House bill that time which directed impression Randolph the that Senator High- “all routes” of the Interstate represented of way System in the District constructed be applicable projects 23 would to all the just —not the four now con- opinion in 23(b), mentioned section the tained section 23.8 His remarks were incorrect. It also flies the into face of primarily highways. directed at the The specific provision the of section question answering general he was was a only “applicable provisions the of Title question highways on specific and not a apply. 23” would Bridge. question on the Three To panel opinion quotes illustrate, The Coop- certainly indicating he was not Senator being er as “amazed” at the House state- there could be the un- on significance Leg ment. This portion remark is of of no Center finished the objection legislating His here. under His remarks construction. passed on the highways District of Columbia not to section 23 as it directed highway act, a directing national the nor of the House Mana- to the statement Department District of gers the Columbia and which he Neither of was one. Cooper sign 7. Senator also refused to directed immediate construction It also Report placed highway projects Conference as one of the Man- now of all agers part study by Senate. 18-month section report. Managers specific design nor bridge The House of statement approved by then presently had exists the Fine 23 as Arts section Com- September thus mission remarks are on drafted. His writing ex- Department it now High- 23 as applicable to section of ways though granting construed ists, approv- could Traffic its al, application general to it. Mr. Walton, William have a Chairman Commission, the Fine Arts stated significant than these more But even part: your designer “We felt had Congressmen of a Senators few views performed brilliantly creating a de- Managers on statement is the sign for important one of the most respect House part scenic Capital. sites around the Its Bridge. This is the docu- Three Sisters simplicity daring and its both are ig- opinion panel seeks to ment very commendable characteristics.” provisions. to its never It nore. refers The decision of the Arts Com- Fine legislative deter- intent cannot be True safeguards respect mission in this only part 'by consideration mined many aesthetic values of concern to so any history more than it preserves beauty and recrea- considering could tional characteristics the Potomac of the House Mana- statement bill. The gers design approved River. The statement) (hereafter is con- Fine Arts Commission shall be carried Report to accom- the Conference tained precisely out approved Representatives, pany House S. to materials and architecture. Sess., Cong., Report 1799, p. No. 2d 90th Capital The Planning National Com- dealing portion first thereof 34. The approved general mission align- Three Sisters reads as with the bridge ment of the September 15, follows: geometries May amendment The contained House 1967, subject to certain reviews requiring provision that all routes on Department Transportation. The System in the the Interstate Department Transportation by let- forth in Columbia set “The 1968 ter to Capital Planning the National System Estimate,” Cost Interstate February Commission in of 1968 re- Congress, House 90th Document turned preroga- the decision local possible. soon be constructed as bridge geo- tives. The location and proceed pre- metries Senate bill contained no com- shall therefore parable provision. Capital sented to the National Plan- ning September Commission of 1966 proposed conference substitute May with no further ac- notwithstanding requires that, any oth- required by that or tions provision law, court er deci- body. sion or administrative action to the contrary, respect scheduling of With Transporta- the construction, Congress that the directs government tion and the of the Dis- the first substructure contracts be ad- shall, trict of Columbia addition to vertised construction within already those under routes construc- legisla- days this the enactment tion, days en- later than 30 after tion. actment, on work the follow- commence Immediately upon completion of con- ing projects: bridge, struction the the District of 1. Three Sisters 1-266 relinquish to the Na- Columbia shall right-of-way early agreement tional Park Service the through In 1966 an was that it among parties Archbold Park Glover reached all affected design presently of the The holds. to the location the Three Sisters bridge require Bridge. on engineers does not intrusion have Consultant Congress park re- and the directs that completed type-size-and-location place. park bridge. of the take port no intrusion on Cong. & Admin.News U.S.Code Statement, (and from the such shall all p. 3540. * * * be) action with no further opinion considered panel had also If the any body. required other that or they language noted the would have this * * * Congress that directs [T]he Three that construction direction the first substructure be ad- contracts begin Bridge ac- with no further Sisters construction vertised within 90 Capital required National tion legisla- days of of this the enactment body. any Planning or other Commission added), (Emphasis tion. is provision The next of the statement that breath directed same very significant. It states: also hearings begun new design, on location and “ * * * suggest is' to' di- directs absurdity. rected an ad- contracts be substructure the first for construction vertised days perfectly obvious when the So legisla- this read, enactment Managers statement of House truly tion.” as it must be read determine Congress, intention of clear- bill reading makes it A this directive mere ly directs construction of Three they not in the same were obvious that with no further action ordering extensive breath quired by Planning Capital the National design. Hearings on location and be held any body. or Commission design pre-construc- were location and panel Some of confusion preliminaries requirement had tion opinion my opinion results from already as the statement been satisfied inability its to fathom section 23 which statement also states observed. The provides part: agreement early In 1966 an Such construction shall be undertaken among parties as reached all affected possible as soon as of en- after the date location of the to the Bridge. Three Sisters except this actment of act as otherwise engineers Consultant provided in this section and shall be completed type-size-and-Zocaiiow,re- carried out all accordance with bridge. port (Emphasis add- applicable provisions Title 23 of ed.) (Emphasis the United States Code. added.) It next states: bridge trying specific interpret provision for the panel opinion approved Arts Com- the Fine obtains some false comfort (Em- negative September 20, mission fact that were added.) during phasis unable to find statement congressional indicating floor debates though they

Does this sound of Title directing hearings be held that additional applied 23 were not to be design? Obviously not. on location and building bridge. panel’s suggest Report in To that the Conference difficulty in this stems from one breath directed: give attempts in- fact that it a wooden shall be undertaken Such terpretation to section 23. possible after date as soon * * * of this Act. the enactment to to its failure come This results from days after the date Not later than 30 they grips Had done with the statement. gov- section of enactment of this the the Con- noted that so would have District of Columbia ernment of the provision gress of the intended following on the work shall commence given applica- to be section 23 flexible projects: (and projects the the four tion to upon depending ex- (Sec- projects) the (1) months 1-266 Three projects had of to each the B2). tent tions B1 to passed. Barney SE., including progressed the act was Street to and when connecting Having statement is the the It to consider failed Circle. essential opinion Managers panel leg loop, link to east the House the the of inner of the apparently proceed of the was not aware and its construction shall un- thus provision import comple- Title 23 der the current schedule until full the necessarily apply different- it would tion. how

ly project. each to leg loop, The east the inner ex- tending Barney provision in law was The Title 23 from Circle to Bladens- burg part applicable as to the Three Sisters Road Interstate 1-295, applicable proceed but it was also three Route shall immediate- (and proj- ly month to the 18 as described herein. ects). panel opinion ifAnd had con- respect statement with to all sidered the design of The the terminus at Bladens- projects it would that each have noted burg will Road take into account stage project was with ref- in a different possibility project of extension of this being ready for construction erence as a under Mount Olivet Road. tunnel directing was not design already pro- A consultant has project: respect action with same to each design with much of ceeded be- respect Three Sisters 1. With to the Barney Benning tween Circle Bridge they directing within work The District shall him to Road. direct days and “that the first substructure work, resume with the first construc- contracts advertised for construction tion contract be advertised within days of the of this enactment days legisla- of enactment of this legislation.” tion. respect portion With to the respect from Potomac 2. With River Road, Benning Bladensburg Freeway Road the direction the District of Columbia shall immedi- Depart- “The District of Columbia ately legisla- upon enactment of Highways this immediately up- ment of shall negotiations tion commence legislation proceed a de- on enactment of this contract, sign said facility by contract start this entire use of days begin otherwise, within 60 enactment of this consultants no legislation. part Construction on this days than later enactment legislation. shall as commence soon of this Construction shall plans prepared. have been logical sequence in a commence soon alignment portion designs route prepared.” presented public shall be as at a hear- respect Leg With to the Center ing January of 1967 and subse- Interloop the Con- direction in quently approved Capi- the National Report emanating ference from the Man- Planning February tal Commission on agers of the House stated: 9, 1967, District of Columbia leg already The center under con- Board of Commissioners March struction, stages. in various It shall completed Avenue, to New York already plans plan where it here described will terminate until completed agencies approval for its all the con- continuation cerned, including Service, parts system nection with other the Park approved Planning Capital to be a later National Com- date. mission, required, and to the extent respect Leg With East * * * Fine Commission. Arts Interloop, report the direction in Following more varied. are some excerpts: parts In- With to those Interchange stages C is in System various included in the 1968 terstate design and specifically from Sixth cost not estimate and dealt projects Dis- have said the were to “be carried government of the above, the * * * Secretary of 23” out accordance with title of Columbia trict study applicable pro- to and thus have deleted “all directed Transportation are by including report visions But the “all to the Con- projects and those of.” provisions” phrase they applicable from the date gress months within provisions that not indicated some are recommendations of enactment “applicable.” perfectly to projects, includ- be This is a to such provisions ing alternative reasonable standard and the recommended applicable pro- plans, the remainder are not to so that that be routes or apply System of Title 23 that do not visions Interstate may appropri- “logical sequence” proj- to the individual of Columbia progress projects ately authorized. ects because designing, already in planning, had made foregoing apparent is From the locating contracting (con- approving, dif- projects were in four each of these structing). words, I not would stages: ferent directing Congress’ interpret action as already Bridge had The Three Sisters project up and that be backed de- approved as to location been steps already sat- be taken that had been sign. had isfied and which Statement found Freeway to had River The Potomac already been taken.11 If such flexible a stage design proceed the final into provision Title way right acquisition. The rigid interpre- supplanted is to design proceed to to direction was applies provisions of tation that all the facility with construction entire (as projects all the C. Title D. logical sequence soon commence as hearings panel opinion seeks), additional designs prepared. have been required on could also be the unfinished Leg already Center is “under con- The portions Leg. Center This one struction.” projects of the four referred to section Leg design The East still had some it is “under construction.” Such problems. projects And the 18 months absurdity would be an and hence entirely were an different matter. rigid application provi- all Title 23 rejected sions to all the must be perfectly Now it is obvious from this obviously in- as unreasonable not Congress nobody factual situation that tended. going designate provision what apply any particular 23 did not It absurd construe the likewise provisions applied because provision indicating Title 23 that Con- projects. some gress directing design location and on the Three Congress problem by So met the stat- agreed ing since the “location” had been in the Title 23 section approved. and the “applicable had provisions 23” title would panel disregards opinion apply.9 the rule of rea- Congress pro- If had intended all legislation son in this and overlooks the apply visions to Title 23 to provisions Legislative frequently provide title 23 intended bodies “applicable.” However, to provision designed purpose be not ap- a statute for one directing ply of the law pur- “work” to mutatis mutandis to another begin days within 30 pose. furnishes all “specificity” any person needs to see provision panel opin- 10. This is the clearly did not intend all says ion not exist. does applied of section 23 to be post by conclusory 30-day provision concurring opinion, e* 11. The faoto. congressional analy- unsupported by is sufficient indication statements sis, factual regulations promulgated intent fails find in the statement of the five passage “specificity” Managers months of the law House it con- after being necessary “ap- to be considered within the sidered to establish the stand- plicable” provisions determining applied title ard to be

457 provi- person particular “applicable” in the con- A who drafts a of the word use gressional usually in the direction contained sion is a reliable source as to what by language provision. used. Title 23 was intended Congress that that indicated The fact II ap- comply with construction should is The action directed section 23 there plicable provisions that indicated powers in within the well might provisions that were not some be dealing with the District of Columbia. applicable I that the obvious submit Thompson District of Columbia v. John legisla- R. facts, conclusion from all 1007, Co., 108, 100, 346 73 S.Ct. background, U.S. history is that and the tive 1011-1012, (1953): 1480 L.Ed. direction to construct Sis- Three Bridge “with no further action ters power over body” any quired that or only, District of Columbia relates not direction the first substructure power” to “national but to “all legislation tracts be advertised construction powers may days enactment dealing in exercised a state with legislation that Con- is a clear indication its affairs”. gress directing was not be To the same effect is Atlantic Cleaners design held on of the Three location and Dyers States, 427, & United 286 U.S. Bridge. 434, 52 S.Ct. L.Ed. Congress actually power legislate design provisions of The location and respect with District of Columbia application Title 23 could well have some practically city manner that same they to some of the other but legislates respect council with to the obviously any not were intended alleys city. streets and of a And it fre- already project effect on the under is quently example, Chap- does so. For (that Leg see is Center August relating ter Act loop). recog- the Inter And once to the Union Railroad Station the Dis- yield nized that the section has to trict of Columbia. 49 Stat. 568. See such an with to the Chapter 354, May (46 Act of is “under construction” be- 482) acquisition, Stat. for the establish- “applicable” provisions cause can George development ment and apply and that it would not be a reasona- Washington Parkway along Memorial duplication require ble construction Potomac Vernon work, Mt. and Fort fortiori, then a the location and Washington design provisions Great Falls for an of Title 23 not example congressional legislation deal- applicable to the Three Sisters ing public highways. local because its location and had al- ready approved procedures under effect at the time these features came III up logical sequence. being pass For the time I over concluded, questions So it must be under those sections of Title state- Managers ment of the Airis House 23 that were in effect when the does not brought Only provision conflict with action one in 1966. of section alleged and in fact fills action blanks of misun- existed time derstanding misinterpretation comply applicable failure statutes. panel opinion. separate exist This Each statute is the does create separate here, usual function of such a statement which cause of action. Plaintiffs is one legis- of the most reliable who must indices be considered same as Airis, split lative intent that exists in cannot our national their cause of action Congress. bring grounds The House and now a second statement here action on particularly important because failed to Bienville section 23 include in Airis. originated in Supply City Mobile, the House and it was the Water Co. v. pressing 212, 216, House Conferees that it. U.S. 22 S.Ct. L.Ed. 458 ords, Highway Administration, (1902); and California States v. Federal United Edgar 358, Department Co., 355, Transportation, 192 24 S.Ct. H. Ore. Land U.S. Swick, by 16, 266, (1904); Baltimore S. affidavit of October 1969 48 476 L.Ed. 319-320, Phillips, 316, substantially which is 274 U.S. uneontroverted S. Co. v. (1927); 600, 71 L.Ed. 1069 swears: 47 S.Ct States, 754, 158 F.2d Hatchitt v. United complied 128 23, U.S.C. was § (9th 1946). is not abso- 756 Cir. The bar public with, hearings on the sub- held strong policy public but exists lute, ject 22, project on 1961 and November against multiple vexatious and actions 24, District of November 1964 and the ignore and the court would do well requested approval of the Columbia plaintiff’s alleged grounds for relief 1966, project 21, September on they extent existed November years hearings. three 1966 when Airis was filed. prior sub- affidavit also states that strong There are reasons to in- here Highway Admin- missions to Federal panel opinion voke this because the rule by gov- istration District of Columbia decision, time, in its for the second Metropolitan Washing- ernment and the frustrating congressional directive. ton Council of certi- had Governments Following this court’s first decision social, fied and demonstrated that “the Airis, Congress sup- enacted section 23 to economic environmental effects of

ply congx’essional directive bridge project consistency its the court had found to be goals objectives plan- with of urban absent permit the first case. So to ning promulgated by community were plaintiffs, the same court’s con- fully considered.” This indicates currence, congres- to obstruct the second presently section 128 as it exists has grounds sional directive on failed substantially complied with. Ob- allege action, in their first viously it does mean that new hear- guise do so carrying under the out the ings reading have been held. A mere Congress,12 intent of not a result hearings indicates that new not re- judicial commends itself to sound admin- quired by the amended section. istration. only required amendments 1968 certi- brings This however us to § fication that certain local and environ- provide amended 1968 so toas that mental factors had been “considered.” So Any department question State proper compli- no exists plans which submits for signifi- a Federal-aid ance with section It is 128. also * ** highway project certify appellants’ cant shall on affidavit hearing to the Transportation] question deny [of does not that on public 24, it hearings, has had or has November 1964 certain opportunity by afforded held for Commissioners of the Dis- hearings, and has respect considered the trict eco- Columbia with nomic and social effects of lo- Three project.13 such a In D. C. cation, impact environment, its Associations, Federation of Civic Inc. v. Airis, consistency goals its U.S.App.D.C. 125, objectives F.2d (1968), such urban note the court hearing promulgated has been the commu- indicates that a in which * ** specific nity. 90-495, evidence was introduced was also § Pub.L. (Mat- August High- Department conducted S.tat. ways ter italics was added amend- and Traffic of the District of Co- ment.) citing lumbia, Washington story appearing February 4, 1965, compliance Star With with section A, Deputy page 128 the section Director Public Rec- 1. With the record in by refusing Iveiman, Affidavit of Arrived at to consider a M. Robert Jr. of October substantial record. effect sending mit seek to lessen the this but basis no there is state However, the Council of this action. compliance hear- section back case compli- put action does compliance shows ings. Full ance with section 103. record. Under Title 23 U.S.C. § IV the Three Sisters determined preserva- Bridge project dealing on a continu- was based with Provisions transportation plan- 23 comprehensive to Title were added ous parklands tion of congressional ning process cooperatively amend- by carried on (Highways) provided Columbia, Virginia, by These the District and ments in 1966 Fed- Maryland date com- and the various local after effective 1968, develop- the Sec- Highway objective ofAct munities with the eral-Aid ap- not Transportation ing long range highway shall retary plans and co- project re- any improvement which program programs prove ordinated for publicly owned transportation. certain quires use of other forms sites, land, park Washington historic Metropolitan lands, such Council compliance by certain with except etc., approved after Governments respect 29, With prescribed standards. dated December letter the Swick 138 of section these 317, De- Under Title 23 U.S.C. § compliance with indicates affidavit fully partment in- of the Interior was Transporta^ Secretary statute park for the formed of the land use approved the Three Sisters he tion when bridge project in its use and concurred 14 August Bridge project 1969 in the District of land Columbia. The no there was that time determined at Virginia August side on use prudent alternative or feasible agreement subject to a final land, park and historic areas recreation on certain matters. possible and that all areas of Title to these of these sections performed minimize harm In all three present compliance subsequent- occurred doing prescribed stand- so areas. though City to November Coun- complied the memo- with ards were previously approved and then cil had Transporta- Secretary randum of scinded. respect thereto. tion recites the facts appel- disposes portion of This of this complaint.

lants’ VI

V design What then of the location hearings panel opinion thus indicates The Swick affidavit directs? complied respect 138 have been sections 128 and The decision in this flies into the govern- the other with. If we to consider face of the act directs the which principal appellants are claims of of the District of to com- ment Columbia rejected Bridge could because as barred work on the mence Three Sisters alleged 1966, they days have been “not than 30 after the date of later fol- affidavit as answered the Swick of” the direc- enactment section 23 and lows: tion the statement that “the directs that the first substructure con- complied 23 U.S.C. 103 was § Bridge] tracts the Three Sisters [for (for ap- prior the second time after construction within 90 advertised rescinded) proval for had when days of the enactment of” section 23. City District of Columbia Council voted August 9, comply holding panel opinion 1969 to with sec- Appellants tion hearings in an affidavit ad- on location directs ap- reciting August 14. Swick affidavit of October basis of proval, And see Memorandum of October F Exhibit to Swick affidavit. Transportation 1969 of the Policy Bridge Procedure not under a case should Sisters and the promul- hearing not even Memorandum that was thereon. remanded (34 gated January F.R. until panel opinion To extent seq.) months et Con- some after five a mon- directs such creates directing gress passed the law that work completely result and frustrates strous begin on the Three Congress. expressed will of It ar- days days “sub- and that within incomplete con- rives at that result an contracts be advertised structure legislative history sideration of struction.” How could construction state- an incorrect floor bridge pre- bids for a be advertised if the completely with- ments. The net result is liminary requirements of location and de- unjusti- out basis the record and sign had not been determined? Is it fied. plain Congress would not direct public hearings to be held that could VII change design the location and of a con- meaning respect What then is directing project they struction were Bridge pro- to the Three of that Sisters building advertised for bids ? vision in section that directs Such construction shall be undertaken regulation It is true that the does make possible as soon as the date after provision respect for “with to situations Act, except of this enactment project hearing a on a which was held section, provided otherwise in this (cid:127)x- x- * before date of this effective shall be carried out accordance with reading PPM” but the PPM16 applicable provisions Title only indicates it relates to situa- the United States Code. hearing prior tions where a was held (b) days Not later than 30 after date of the PPM effective the date of enactment of section approval design no or re- location was government of the District of Co- apply ceived It thereafter. does not lumbia shall commence work projects upon hearing which a was held17 following projects: approvals received in accordance with (1) Three Sisters 1-266 prior practices before date effective (Section B2). B1 to January 17, of the PPM which was ap- The PPM its terms thus does not everything When it considered seems ply to involving approv- the situation Congress directing clear that was com- design als of location and the Three pliance for provisions with those title 15. From the hearing requirement statement of the House Man- 17. The could not be agers. referring prior separate construed as hearings design, they on because were not respect project 16. d. required, only With to a on which a but to such hearing held, opportunity provided these, or design might an for for. hearing afforded, general before the effective be one matter in a discussed hear- PPM, following require- date ing. provision requests of this PPM But apply: ments design approval years, within three (1) respect projects quoted panel opinion With which in the in footnote approval: have not application received location has no because regulation forepart it relates (2) projects With to those to “those which have not design ap- design approval.” received ceived The Three Sis- proval : category ters is not in this because approved by its had the Fine Policy Memorandum, September 20, Procedure Arts Commission on Roads, Department Bureau (Swick affidavit) of Public and there is no indica- Transportation, F.R.No.12, approvals prior tion in PPM p. January 17, 1969. to be reconsidered reheard. Government, imity in- to the seat of “construction”18 “applicable” press Bridge. would This fluence of local that ar- favorable the Three position frequency title and the bring play ticulates those into long appro- Congress, relating apportionment of with which members of environs, letting 104)( resident in the District its (section of con- priations wages acquire (section prevailing tend to similar local interests 112), tracts residents, many (section supervision those of local is- 113), of construction sues, gives availability apportioned 114), more (section them influence actual 116), payable (section than citizens share of states. federal sums (section 120), payments states And, importantly, despite most incor- (section 121), relocation struction opinion, panel rect statements 123), (section advances to states utilities showing there is no have been crossings (section 124), railway-highway against in- discriminated here. Each oppor- (section 130), equal employment highway project pro- terstate D. C. 140), par- (section tunity small business gressed to construction (section ticipation 304JW'éfc. subjected procedures un- the same of the sentence Such der as interstate state and would not attrib- be reasonable projects. applied The same law to all require intention to an ute to projects, being the law that ex- prior planning had al- duplication isted the D. orC. state time ready respect completed with been passed through stage. each successive Bridge en- when Sisters Three showing There is no that amendments proj- With acted section 23. the Federal laws made to were not as far advanced ects which were post apply highway projects ex facto they Three Sisters previously through passed par- that had they comply requirements have to stages provisions ticular new before had not fulfilled the amended before legis- added. The reason for this is that quirements I would became effective. given ap- generally prospective lation Congress the reasona- thus attribute to plication. duplica- requiring intention of not ble passing it should that already according noted completed of work tion numerous Fourteenth Amendment cases existing This is to then standards. protection recognized equal on are well real intention that meant applying as not to the situation here. convey “applica- when it used the words Also, “unjustifiable that discrimination” ble of Title 23” other than di- under those rare Fifth Amendment cases recting “compliance full 23.” Title (a) does not exist here because there has not been refusal to resi- accord D. C. VIII any right dents afforded state residents plaintiffs time, (b) As claim that at are the same if there even minority” “voiceless District of had been it is not the loss that grievous being subject unjustifiable Columbia who are made the is “so as to be violative discrimination, process.” Rusk, invidious it should of due Schneider 377 v. recognized plaintiffs 163, 168, 1187, 1190, that here and their U.S. 84 12 S.Ct. lawyers actually Bolling (1964); Sharpe, are some of the most L.Ed.2d 218 v. politically powerful 693, articulate in- 347 U.S. 74 L.Ed. 884 S.Ct. 98 (1954); Refugee dividuals America. Their success Joint Anti-Fascist obstructing project McGrath, this now for onto Committee v. 341 U.S. years testimony they (1951) four (Frank- is mute that 71 S.Ct. 95 L.Ed. 817 Actually, furter, J., are not concurring); Shapiro “voiceless.” it is com- and see monly recognized prox- Thompson, 618, 641-642, v. close U.S. statutory 18. The definition “construc- because section 23 is not a strictly applicable tion” title 23 is not 132, 22 L.Ed.2d 600 Gold- S.Ct. berg Kelly, S.Ct. U.S. (1970) applied similar L.Ed.2d rights under

standard claimed (See at Fourteenth Amendment. id. 1018) S.Ct. accordingly require

I would not loca- design hearings

tion or un- now Leg portions finished of the Center construction,

is under the Three nor to where location and previously approved.

had It seems Freeway the Potomac River Leg design prob-

the East have some

lems. Where stand location presented

not been studied appears case. It months similarly in different cate- gories requirements. toas title 23 Each separately, should be considered

but I do consider the 1968 title

amendments to 23 or the 1969 PPM

require any project up to be backed 'planning or consideration of'

different phases previous- had through. passed

ly would affirm. I SUTTON, Jr., Appellant,

Glenn

v. America,

UNITED STATES of Appellee.

UNITED of America STATES BIGSBY, Appellant.

Robert F.

Nos. Appeals,

United States Court of

District of Columbia Circuit.

Argued Jan. Aug. 19,

Decided Rehearing

Petition for No. Sept. Denied

Case Details

Case Name: D.C. Federation of Civic Associations, Inc. v. John A. Volpe

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 6, 1970

Citation: 434 F.2d 436

Docket Number: 23870_1

Court Abbreviation: D.C. Cir.