Citizens to Preserve Overton Park, Inc. v. Volpe

Civil C-70-17 (W.D. Tenn. September 7, 1971)

On remand from the United States Supreme Court for trial on the issue of whether the Secretary acted arbitrarily in approving a segment of interstate highway to be located in Overton Park, see Citizens to Preserve Overton Park v. Volpe, 1 ELR 20110 (U.S. March 2, 1971), the district court issues a Pre-Trial Order permitting plaintiffs to introduce expert proof on all aspects of the Secretary's decision and forbidding the introduction by defendants of evidence regarding the cost of routing the highway around the park.

Counsel for Plaintiff:
John W. Vardaman, Jr.
Williams, Connolly and Califano
1000 Hill Building
Washington, D.C. 20006
(202) 638-6565

Charles Forest Newman
Burch, Porter & Johnson
Court Square Building
128 North Court Avenue
Memphis, Tenn. 38103
(901) 527-6285

Counsel for John A. Volpe:
Thomas F. Turley U.S. Attorney
1058 Federal Office Building
Memphis, Tennessee 38103
(901) 534-3311

Counsel for Charles W. Speight:
J. Alan Hanover
Hanover, Walsh, Barnes & Jalenak
219 Adams Avenue
Memphis, Tennessee 38101
(901) 526-0621

[1 ELR 20448]

Brown, C.J.:

PRE-TRIAL ORDER

This cause was before the Court for pre-trial conference for the purpose of determining the burden of proof, burden of going forward with evidence, scope of review and admissibility of particular kinds of evidence and making stipulations. Upon due consideration, it is ORDERED:

1. The Secretary will offer into evidence the "Administrative Record" that has been filed by the Clerk.

2. Plaintiffs shall then have the burden of going forward and showing that this Record is insufficient to support the Secretary's determination and that his determination is unsupportable.

3. The issues are whether or not the corridor and design determinations of the Secretary were within his authority and were not arbitrary, capricious or an abuse of discretion, within the meaning of the Supreme Court's remand decision.

4. In support of their contentions, plaintiffs may in general offer:

(a) Expert proof to show that the Secretary's investigation of alternatives did not satisfy the requirements of the law.

(b) Expert proof to show that there were in fact feasible and prudent alternative corridors.

(c) Expert proof of damage to Park by present corridor and design to show that all reasonably possible design safeguards have not been taken and to show lack of understanding of Secretary of values inherent in the Park for purpose of making determination.

The foregoing indicated rulings are not intended to limit plaintiffs to such proof but simply to rule now that such proof will be admitted.

5. Plaintiffs will not be allowed to offer proof that there were available experts not used by the Secretary.

6. Defendants will not be allowed to introduce evidence of the cost of rerouting this highway around the Park.

7. Plaintiffs are allowed an additional ten days to take oral deposition of former Undersecretary Braman or, if taken by interrogatories, defendants will supply cross-interrogatories in five days.

8. Counsel for the Secretary will file within ten days a statement as to whether or not the affidavit with exhibits of the Secretary filed July 22, 1971, shall be treated as his formal findings within the meaning of the Supreme Court's remand decision.

ENTER this 7th day of September, 1971.