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Show 401 U.S. 416 CITIZENS TO PRESERVE Cite as 01 S action is based on a public adjudicatory hearing. See 5 U.S.C. §§ 556, 557 (1964 ed., Supp. V). The Secretary's decision to allow the expenditure of federal funds to build 1-40 through Overton Park was plainly not an exercise of a rulemaking function. See 1 K. Davis, Administrative Law Treatise § 5.01 (1958). And the only hearing that is required by either the Administrative Procedure Act or the . 5 statutes regulating the distribution of -*" federal funds for highway construction is a public hearing conducted by local officials for the purpose of informing the community about the proposed project and eliciting community views on the design and route. 23 U.S.C. § 128 (1964 ed., Supp. V). The hearing is nonadjudi-catory, quasi-legislative in nature. It is not designed to produce a record that is to be the basis of agency action-the basic requirement for substantial-evidence review. See H.R.Rep.No.1980, 79th Cong., 2d Sess. [8] Petitioners' alternative argument also fails. De novo review of whether the Secretary's decision was "unwarranted by the facts" is authorized by § 706(2) (F) in only two circumstances. First, such de novo review is authorized when the action is adjudicatory in nature and the agency factfinding procedures are inadequate. And, there may ,be independent judicial factfinding when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action. H.R.Rep.No.1980, 79th Cong., 2d Sess. Neither situation exists here. [9,10] Even though there is no de novo review in this case and the Secretary's approval of the route of 1-40 does not have ultimately to meet the substantial- evidence test, the generally applicable standards of § 706 require the reviewing court to engage in a substantial inquiry. Certainly, the Secretary's OVERTON PARK, INC. v. VOLPE 823 .Ct. 814 (1071) decision is entitled to a presumption of regularity. See, e. g., Pacific States Box & Basket Co. v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 163, 80 L.Ed. 138 (1935); United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926). But that presumption is not to shield his action from a thorough, probing, in-depth review. The court is first required to decide whether the Secretary acted within the scope of his authority. Schilling v. Rogers, 363 U.S. 666, 676-677, 80 S.Ct. 1288, 1295-1296, 4 L.Ed.2d 1478 (1960). This determination naturally begins with a delineation of the scope ofjthe Sec- )416 retary's authority and discretion. L. Jaffe, Judicial Control of Administrative Action 359 (19650. As has been shown, Congress has specified only a small range of choices that the Secretary can make. Also involved in this initial inquiry is a determination of whether on the facts the Secretary's decision can reasonably be said to be within that range. The reviewing court must consider whether the Secretary properly construed his authority to approve the use of parkland as limited to situations where there are no feasible alternative routes or where feasible alternative routes involve uniquely difficult problems. And the reviewing court must be able to find that the Secretary could have reasonably believed that in this case there are no feasible alternatives or that alternatives do involve unique problems. Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706(2) (A) requires a finding that the actual choice made was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2) (A) (1964 ed., Supp. V). To make this finding the court must con- |
