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Citizens to Preserve Overton Park v. Volpe

Citation: 2 ELR 20061
No. No. C-70-17, 335 F. Supp. 873/3 ERC 1510/(W.D. Tenn., 01/05/1972) Remanded to Secretary

On remand from the Supreme Court, see Citizens to Preserve Overton Park, Inc. v. Volpe, 1 ELR 20110 (U.S. March 2, 1971), the district court finds that Secretary Volpe, contrary to his testimony, did not consider alternative routes prior to his approval of the use of parkland for the highway. Moreover, even if the Secretary did study alternatives and determined that no feasible and prudent alternative to parkland use existed, his interpretation of the legal standard governing this determination was incorrect and his decision invalid. The Secretary's misinterpretation of the law was not harmless error, because the record in this case would reasonably support either the determination that there is a feasible and prudent alternative to parklands use or that there is not. Remand is necessary to allow the Secretary to exercise his discretionary authority on the basis of this record. The Secretary's decision that all reasonably possible design features to minimize harm to the park have been incorporated into the plans for the highway is supported by the record. The record demonstrates also that the highway undertaking was based on a continuing comprehensive transportation planning process, as required by statute, and that the highway's air pollution impact was evaluated to the extent necessary to satisfy requirements for the long-range safety of the project. Plaintiff's motions to amend the complaint to allege a failure to comply with National Environmental Policy Act (NEPA) were denied.

Counsel for Plaintiff
John W. Vardaman, Jr.
Williams, Connolly and Califano
1000 Hill Building
Washington, D.C. 20006

Charles Forest Newman
Burch, Porter & Johnson
Court Square Building
128 North Court Avenue
Memphis, Tenn. 38103

Counsel for John A. Volpe
Thomas F. Turley U.S. Attorney
1058 Federal Office Building
Memphis, Tennessee 38103

Counsel for Charles W. Speight
J. Alan Hanover
Hanover, Walsh, Barnes & Jalenak
219 Adams Avenue
Memphis, Tennessee 38101