Citizens to Preserve Overton Park v. Volpe/Separate Black

by Hugo Black

Separate opinion of Mr. Justice BLACK, with whom Mr. Justice BRENNAN joins.

I agree with the Court that the judgment of the Court of Appeals is wrong and that its action should be reversed. I do not agree that the whole matter should be remanded to the District Court. I think the case should be sent back to the Secretary of Transportation. It is apparent from the Court's opinion today that the Secretary of Transportation completely failed to comply with the duty imposed upon him by Congress not to permit a federally financed public highway to run through a public park 'unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park * * *.' 23 U.S.C. § 138 (1964 ed., Supp. V); 49 U.S.C. § 1653(f) (1964 ed., Supp. V). That congressional command should not be taken lightly by the Secretary or by this Court. It represents a solemn determination of the highest law-making body of this Nation that the beauty and health-giving facilities of our parks are not to be taken away for public roads without hearings, factfindings, and policy determinations under the supervision of a Cabinet officer-the Secretary of Transportation. The Act of Congress in connection with other federal highway aid legislation, ^[1] it seems to me, calls for hearings-hearings that a court can review, hearings that demonstrate more than mere arbitrary defiance by the Secretary. Whether the findings growing out of such hearings are labeled 'formal' or 'informal' appears to me to be no more than an exercise in semantics. Whatever the hearing requirements might be, the Department of Transportation failed to meet them in this case. I regret that I am compelled to conclude for myself that, except for some too-late formulations, apparently coming from the Solicitor General's office, this record contains not one word to indicate that the Secretary raised even a finger to comply with the command of Congress. It is our duty, I believe, to remand this whole matter back to the Secretary of Transportation for him to give this matter the hearing it deserves in full good-faith obedience to the Act of Congress. That Act was obviously passed to protect our public parks from forays by road builders except in the most extraordinary and imperative circumstances. ^[2] This record does not demonstrate the existence of such circumstances. I dissent from the Court's failure to send the case back to the Secretary, whose duty has not yet been performed.

Notes

1  See 23 U.S.C. § 128 (1964 ed., Supp. V) and regulations promulgated thereunder, 34 Fed.Reg. 727-730 (1969).

2  See also San Antonio Conservation Society v. Texas Highway Department, 400 U.S. 968, 972, 91 S.Ct. 368, 370, 27 L.Ed.2d 388, 390 (1970) (dissents from the denial of certiorari).