Sierra Club v. Gilbert Stamm and other legal cases involving environmental impact statements

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814 91 SUPREME COURT REPORTER for giving Hazeltine's counsel five days J354 lin which to file his affirmative defenses, the judge made no other relevant com­ments in ruling on the motions. I find it impossible to believe that the judge ruled thus summarily on the merits of the complicated issues of antitrust law to which this Court devotes 15 printed pages. I also find it highly unlikely that, without a word of explanation for depart­ing from the sentiments he expressed during argument, the judge intended to forgive Hazeltine's failure to raise the defenses earlier. To be sure, he must have considered the merits sufficiently to satisfy himself that refusal to allow Hazeltine to raise these defenses worked no gross inequity. See Fed.Rule Civ. Proc. 15(a). I remain convinced, how­ever, that he rejected the defenses only as untimely raised. Believing that the Court of Appeals clearly erred in reaching the opposite conclusion,5 I concur in the judgment of the Court on that ground. 401 tr.s. 402 CITIZENS TO PRESERVE OVERTON PARK, INC., et at, v. John A. VOLPE, Secretary, Department of Transportation, et al. No. 1066. Argued Jan. 11, 1971. Decided March 2, 1971. Action by citizens' organization, in­dividuals and conservation group to en­join Secretary of Transportation from 5. The opinion of the Court of Appeals gives no indication that its attention was drawn to the remarks of the District Judge during Hazeltine's argument in chief, which cast light on iiis ruling on the mo­tion for leave to file. Its entire discussion of the basis for the District Court's action roads as follows: "Zenith's counsel objected to the filing of the defenses on the ground that they came too late and were waived. The dis- 401 »* t»I releasing federal funds to state hi • -"^ department for construction of se^ *y"^- of expressway through city park**--^ United States District Court f0r 1J' ::: Western District of Tennessee, 30s j j l li Supp. 1189, granted Secretary's iQatjSfl for summary judgment. The UDJ« * States Court of Appeals for the ^i«v-^ Circuit, 432 F.2d 1307, affirmed and c^! ~ tiorari was granted. The Supreme Cour* -'"'•- Mr. Justice Marshall, held that litigatTc* affidavits containing "post hoc" ration­alizations were not an adequate basis t&rM review of action of Secretary of Trait**-^ portation in authorizing expenditure e|.-'-; federal funds for construction of exprtaajl way through public park, and case woi«»§ - be remanded to District Court for p'-ca^ ary review based on the full administr*.il tive record that was before the Secretary % at the time he made his decision. Reversed and remanded. r~-y Mr. Justice Douglas took no part in h the consideration or decision of the case, i Mr. Justice Black, joined by Mr. ^ Justice Brennan, filed dissenting opinion. Mr. Justice Blackmun filed concur- r ring opinion. 1. United States C=>82 Pleadings of petitioners challenging action of Secretary of Transportation ia releasing federal funds to state highway' department for construction of express­way through public park were sufficient to challenge merits of Secretary's deci­sion and did not raise only the issue of failure of Secretary to make formal find­ings. 5 U.S.C.A. § 706. tri<-t court, however, permitted the defenc­es to be filed and thereafter denied IIUI's motion for judgment based on the defense*. * * • * [The Supreme Court left op«>n the question whether this ruling was on the merits.] It is our view that the court's ruling was not on the basis of waiver, but because the defenses on their merits did not bar Zenith's recovery. 418 F.2d, at 23-24.