US SUPREME COURT DECISIONS

Under § 4(f) of the Department of Transportation Act of 1966 and § 138 of the Federal-Aid Highway Act of 1968, the Secretary of Transportation may not authorize use of federal funds to finance construction of highways through public parks if a "feasible and prudent" alternative route exists. If no such route is available, he may approve construction only if there has been "all possible planning to minimize harm" to the park. Petitioners contend that the Secretary has violated these statutes by authorizing a six-lane interstate highway through a Memphis public park. In April, 1968, the Secretary announced that he agreed with the local officials that the highway go through the park; in September, 1969, the State acquired the right-of-way inside the park; and in November, 1969, the Secretary announced final approval, including the design, of the road. Neither announcement of the Secretary was accompanied by factual findings. Respondents introduced affidavits in the District Court, indicating that the Secretary had made the decision and that it was supportable. Petitioners filed counter affidavits and sought to take the deposition of a former federal highway administrator. The District Court and the Court of Appeals found that formal findings were not required, and refused to order the deposition of the former administrator. Both courts held that the affidavits afforded no basis for determining that the Secretary exceeded his authority.

Held:

1. The Secretary's action is subject to judicial review pursuant to § 701 of the Administrative Procedure Act. Pp. 401 U. S. 413.

(a) There is no indication here that Congress sought to limit or prohibit judicial review. P. 401 U. S. 410.

(b) The exemption for action "committed to agency discretion" does not apply, as the Secretary does have "law to apply," rather than wide-ranging discretion. Pp. 401 U. S. 410-413.

2. Although, under § 706 of the Act, de novo review is not required here, and the Secretary's approval of the route need not chanrobles.com-red

Page 401 U. S. 403

meet the substantial evidence test, the reviewing court must conduct a substantial inquiry and determine whether the Secretary acted within the scope of his authority, whether his decision was within the small range of available choices, and whether he could have reasonably believed that there were no feasible alternatives. The court must find that the actual choice was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and that the Secretary followed the necessary procedural requirements. Pp. 401 U. S. 413-416.

3. Formal findings by the Secretary are not required in this case. Pp. 401 U. S. 417-419.

(a) The relevant statutes do not require formal findings, and there is no ambiguity in the Secretary's action. P. 401 U. S. 417.

(b) Although a regulation requiring formal findings was issued after the Secretary had approved the route, a remand to him is not necessary, as there is an administrative record facilitating full and prompt review of the Secretary's action. Pp. 401 U. S. 417-419.

4. The case is remanded to the District Court for plenary review of the Secretary's decision. Pp. 401 U. S. 419-420.

(a) The lower courts' review was based on litigation affidavits, which are not the whole record, and are an inadequate basis for review. P. 401 U. S. 419.

(b) In view of the lack of formal findings, the court may require the administrative officials who participated in the decision to give testimony explaining their action or require the Secretary to make formal findings. P. 401 U. S. 420.

432 F.2d 1307, reversed and remanded.

MARSHALL, J., wrote the opinion of the Court, in which BURGER, C.J.,and HARLAN, STEWART, WHITE, and BLACKMUN, JJ., joined. BLACK, J., filed a separate opinion, in which BRENNAN, J., joined, post, p. 401 U. S. 421. BLACKMUN, J., filed a separate statement, post, p. 401 U. S. 422. DOUGLAS, J., took no part in the consideration or decision of this case. chanrobles.com-red

Page 401 U. S. 404