ON DENIAL OF REHEARING BY THE DIVISION OF THE DECISION OF OCTOBER 12, 1971
FAHY, Senior Circuit Judge, with whom BAZELON, Chief Judge, concurs:
On December 2, 1971, an order was entered denying appellees’ suggestion for a rehearing en bane of the decision of October 12, 1971, which had been rendered by a three-judge division of the court. On the same date the division, consisting of Chief Judge Bazelon, Circuit Judge MacKinnon and myself, also denied a rehearing. Judge MacKinnon who had dissented from the decision of October 12, 1971, would have granted a rehearing. Each of us reserved the right to file later a statement of reasons for our position as to the denial of rehearing. This I now do in brief form.
I
By §§ 23(a) and (b) of the Federal-Aid Highway Act of 1968, to which reference has been made in the foregoing Supplemental Opinion, Congress provided among other things that the Secretary of Transportation and the District of Columbia should resume construction of the abandoned bridge project as soon as possible after enactment, the construction to be
carried out in accordance with all applicable provisions of title 23 of the United States Code.
Work was to commence not later than 30 days after enactment. Work did commence but was brought to a halt by the litigation which questioned whether the construction was being carried out “in accordance with all applicable provisions of title 23 of the United States Code.” This court had held in D.C. Federation of Civic Ass’ns v. Volpe, 140 U.S.App. D.C. 162, 434 F.2d 436 (1970), that the applicable provisions of Title 23 included those governing “both the planning and building” of the bridge. This interpretation of the intention of Congress created a conflict with the implications of the intention expressed in the 30-day clause. The difficulty was resolved of necessity by suspension of the work while the questions thus raised were settled. Obviously the substantive provisions of Title 23, involving, inter alia, vital decisions of the Secretary of Transportation, took precedence over the apparently inconsistent time provision. The project could not proceed in disregard of Title 23. Accordingly, our 1970 decision, next above cited, required a remand of the case to the District Court for an expedited hearing with respect to compliance with Title 23. The Government did not seek Supreme Court review of that decision, and it became the law of the case. The soundness of this court’s remand was soon manifested by the further pro*1268ceedings in the District Court which we reviewed in our decision of October 12, 1971. As the opinion of the District Court on the remand revealed, approval of the Bridge project had been given wh.en the planning was incomplete and fell short of statutory requirements in important respects. Extant were questions even of structural feasibility, involving safety, as well as of final design and location of ramps and interchanges. Moreover, a finding that only the minimum acreage of parkland would be taken fell altogether short of the content necessary to meet the statutory requirement of minimum harm to parkland. Furthermore, the approved location of the bridge on the District of Columbia side of the river was 1500 feet off from the nearest location considered in the 1964 public location hearing. The District Court’s opinion did not reveal a factual basis to support its conclusion that the approved location was so similar to that subject to the public hearing as to eliminate the need for a fresh location hearing.
The situation thus briefly outlined with respect to compliance with the applicable provisions of Title 23 called upon this court to hold that the approval given by the Secretary was, as a legal matter, not in conformity with the applicable statutes, and that the findings and conclusions of the District Court that they were, could not be accepted under the standards of judicial review applied in such a case by the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-415, 91 S.Ct. 814, 28 L.Ed.2d 77 (1971).
It is well to keep in mind that Title 23 of the United States Code is a comprehensive congressional enactment governing the deep involvement of the federal government in the Interstate Highway System, of which the Three Sisters Bridge was to be a part. The provisions of the Title could hardly find a more appropriate place for careful application than in and about the Capital of the nation, especially if a proposed project encroaches upon parklands and historic sites, both subjects of express congressional solicitude. It therefore was quite natural, notwithstanding the desire that the bridge project proceed promptly, for Congress also to require compliance with the applicable provisions of Title 23. It is equally well to note, as the Government points out, that in such a project the Secretary must be permitted to make decisions in what might be called a progessive manner— not everything can be pulled together all at once. But when decisions necessary to final approval are made, such as those required with respect to parklands by Section 138 of Title 23, they must be made conditionally and tentatively, subject to readjustment and reconsideration as the process toward final determination goes forward. And final approval must await and be dependent upon completion of this process.
In thus briefly supplementing our October 12, 1971, opinion, we refer to it in the respects there more fully stated as reasons for our denial of the motion for rehearing.