Welcome to Overton Park

In the two hundred acres of virgin forest in Overton Park you have a property which, as a heritage to the public for the enjoyment of nature, equals in value the cost of the entire park system to the present time. 

-George E. Kessler, 1911

A 342 acre park, with 170 acres of virgin forests

The Cultural Center of Memphis

Among its many attractions, the park contained:

Japanese Gardens the Memphis Zoo and Aquarium, the Memphis-Brooks Museum of Art, a theater, a golf course, a pavilion, and two small lakes

Japanese Gardens

Overton Park ShellCirca 1950

In 1936, a storm destroyed Kessler’s crown jewel, the park pavilion, and it was replaced by the Overton Park Shell.

A Park Fit for The King.

August 5, 1955

Elvis plays Overton Park Shell

(not the actual hippos) (not the actual hippos)

Memphis Zoo: “The Hippo Capital”

The Interstate 40 Extension

Mid-1950s, engineers begin planning an intercity expressway through Nashville and Little Rock, crossing the Mississippi River at Memphis A Six-lane high speed east-west corridor through the center of the city and Overton Park.

Overton Park is the green arrow.

Competing Concerns

Memphis Chamber of Commerce wanted the extension, to bring more business to Memphis.

Some residents wanted a marginally shorter commute.

Others didn’t want the highway built near homes.State Highway Officials wanted the cheapest,

most efficient route.DOT wanted City Council to play a role.City Council went back and forth.Eventually, environmental activists and friends of

Overton Park organized to oppose it.

A Brief History of the Federal Highway System

Meanwhile,

The rise of the environmental movement

National Politics and Section 4(f)Race in MemphisNashville I-40 Steering Committee v. Ellington

The rise of the Environmental Movement

Conservation ideas crystallize in 1962 when Rachel Carson publishes Silent Spring

Providing a perspective against materialism and technologically engineered control of nature

Between 1967-1970 scientists and attorneys found: The Environmental Defense Fund Center for Law and Social Policy Natural Resources Defense Counsel Sierra Club’s Legal Defense Fund

Environmental Law has a birthday.

New Year’s Day 1970-In response to concerns about ecological

well-being, (and also to distract from an unpopular war)

Nixon signed the National Environmental Policy Act into Law Among other things, NEPA imposes a duty on the

federal government to prepare an Environmental Impact Statement

For any major federal action that would “significantly affect the environment” 40 C.F.R. section 1507.2

Nixon: Our Environmental President

People Begin Protecting Parks

As a result of increasing eco-consciousness, many people began to see the Interstate Highway System as a threat to public parks. Including Overton Park, the French Quarter in

New Orleans, and San Antonio’s Breckenridge Park

Senator Ralph Yarborough’s concern over Breckenridge Park prompted the enactment of “park-protective” provisions in Federal Highway Act (FHA) and Department of Transportation Act (DOTA).

National Politics and Section 4(f)

Prior, federal officials only considered engineering.

1960s – comprehensive planning emerges. 1966 Congress passes Federal Highway Act

(FHA) and Department of Transportation Act (DOTA), which creates the Department of Transportation.

Engineers would now have to work with an office in DOT specifically responsible for promoting environmental responsiveness.

Do you hear an echo?

FHA requires “all possible planning, including consideration of alternative . . . to minimize any harm to . . . [any affected] park.” 23 U.S.C. § 138

Section 4(f) of DOTA- Secretary of Transportation cannot approve use of park land “unless (1) there is no feasible or prudent alternative” and (2) such program uses “all possible planning to minimize harm to such park . . . resulting from such use. 49 U.S.C. § 1653(f)

Secretary BoydSecretary Boyd Administrator BridwellAdministrator Bridwell

After Boyd and Bridwell testify, Congress remedied the inconsistency by choosing a formulation of 4(f)

Relocation Concerns Linger . . .

The Committee remarked in its reports,

The committee is extremely concerned that the highway program be carried out in such a manner as to reduce in all instances the harsh impact on people which results from the dislocation and displacement by reason of highway construction. Therefore, the use of park lands . . . with damage minimized by the most sophisticated construction techniques is preferred to the movement of large numbers of people.

S. REP. NO. 1340, 90th Cong., 2d Sess. 18-19, reprinted in 1968 U.S. CODE CONG. & ADMIN. NEWS 3482, 3500.

But Congress never discusses the possibility of Judicial Enforcement.

Alternative Routes

The city contracted Harlan and Batholomew Engineers

Many alternative routes, both in and around the park, were studied

Four design alternatives for the park included: (1) building the road on the surface (2) building it below grade to extent that water table

permitted (3) building it below surface throughout, by overcoming

water table and drainage problems (4) hiding the road completely throughout its traverse of

park

Alternative Routes

Of the various alternatives around the park, two emerged as competitors: One, which followed park’s northern edge,

would have disrupted a university, school, church and other facilities

The other , which followed an old railroad right of way, would have severely impacted one of the few racially impacted areas in town.

Race in Memphis

Memphis was a segregated city.Full integration of Overton Park was not

achieved until 1960sBefore then, African-Americans were only

allowed in on “Black Thursdays.” (to visit certain facilities)

In 1960, an interracial group of professionals asked the City Council and Mayor Loeb to end segregation at the park.

The Council refused, and non-violent student protests ensued.

The Ellis Case

When the I-40 extension became an issue in Memphis, African-American residents would have known of the Ellis case. In Nashville I-40 Steering Committee v. Ellington, an

interracial group of citizens challenged a decision to reroute Nashville’s I-40 extension, so that it would bisect an African American Community.

(rather than disrupt white interests) The Sixth Circuit held that discrimination had not

been proven. In Overton park, alternative routes could have

disrupted racially mixed areas

Sanitation Worker’s Strike

Racial Tensions Run High

Dr. Martin Luther King comes to assist.

Enter Citizens to Preserve Overton Park

In 1957, concerned citizens created CPOP to opposed I-40 extension through Overton Park

CPOP was not very large, but its leaders were resourceful and imaginative

That year, when engineers Harlan and Bartholomew appeared at the first public meeting about the park, there were with 300 protesting citizens.

CPOP brought a petition of 10,000 signatures.The Meeting resulted in extensive restudy

The Meetings

1961, the federally prescribed hearing reignite the controversy.

Mayor Loeb endorses park route, when city engineer explains that 32 studies concluded that avoiding the park is impossible.

1964, construction of other parts of the highway began; political pressure mounts, reaching governor and head of Federal Bureau of Public Roads (BPR).

1965, The City Council votes to approve the route, assuring State Highway Commissioner of its support.

More Elvis

CPOP continues to pressure City Council

December 1965, federal BPR visits Memphis to consult.

1966, Congress enacts park-protective provisions, including 4(f), and creates Department of Trans.

1968, A number of public meeting in Memphis- several with CPOP February- After a hearing, Administrator Bridwell says I-40

will traverse Overton Park unless City Council changes mind.

Garbage man’s strike begins March, City Council unanimously adopted resolution that I-

40 be routed outside the park CPOP is pleased with the result of its political tactics.

The City Council Decides

However, on April 3, Administrator Bridwell meets privately with the City Council at Memphis Airport

CPOP is excluded and recording instruments were inoperative, so no account of the meeting exists.

On April 4, the Memphis City Council voted 8-2 to approve the I-40 route through Overton Park.

Moments later, Dr. Martin Luther King is

Assassinated

After 10 years of political activism, CPOP takes its case to the courts.

Peter L. Strauss has described Overton Park as: “[a] contest between complex and competing community

values, not claims of individual rights,” one that “might equally have been resolved in the conventional political arena.”

Theorists have argued that: Politicians, not judges, should set social policy in

“polycentric” issues requiring trades among various interest groups;

Judges, by contrast, are best equipped to decide discrete, “Bi-polar” controversies between individuals that identify a winner and a loser

Should a court decide the placement of I-40?

Who Should Decide?

Painting by Carl Rakemon done before 1945 of the Lincoln Highway in 1913.

U.S. Military convoy in 1919 on Lincoln Highway in Nebraska.

May 6, 1954: President Eisenhower signs the Federal-Aid Highway Act of 1954, a predecessor bill that provided two years of funding for highways.

“View of Northwest Expressway showing heavy traffic during peak period. Looking East between Augusta Blvd. and Division Street, C&NW RR on left. Chicago, Illinois.” 1961.

2009 reenactment of the 1919 military convoy from Washington, D.C. to San Francisco

John W. Vardaman, Jr. aka Jack

* Washington and Lee University 1962* Harvard University Law School 1965* Clerked for Justice Hugo Black 1965-1966* Wilmer, Cutler & Pickering (D.C. firm) 1966 - 1970* Williams & Connolly LLP 1970 to present* Argued Citizens to Preserve Overton Park v. Volpe

before U.S. Supreme Court 1971

Photo: Williams & Connolly website, http://www.wc.com/jvardaman

Three Sisters Islands, the site of the proposed bridge over the Potomac River.

Artist’s rendition of the planned Three Sisters Bridge over the Potomac River

Source: D.C. Board of Commissioners, Three Sisters Bridge, 1963, reproduced in Zachary M. Schrag, The Freeway Fight in Washington, D.C.: The Three Sisters Bridge in Three Administrations, 30 JOURNAL OF URBAN HISTORY 648 (2004).

Students occupying a bridge construction site, 1969.

Source: Washington Star photograph by Joseph Silverman, reprinted in Zachary M. Schrag, The Freeway Fight in Washington, D.C.: The Three Sisters Bridge in Three Administrations, 30 JOURNAL OF URBAN HISTORY 648 (2004).

Vardaman was lead counsel for:

1969 – 1975 Citizens to Preserve Overton Park v. Volpe

1970 - 1975 Named Individual Members of the San Antonio Conservation Society v. The Texas Highway Department

1975 – 1979 Atlanta Coalition on the Transportation Crisis v. Atlanta Regional Commission

Jack Vardaman – what now?

•Defending large corporations against mass tort and mass disaster claims.

• Chemicals• Medical devices• pharmaceuticals

•August, 2002 – won summary judgment for Norplant against 3,000 women.

•Has also represented plaintiffs in airplane and train crash cases.

•1999-2002 – General Counsel to United States Golf Association.