The opinion
J. SKELLY WRIGHT, Circuit Judge,
concurring in No. 80-2508 and dissenting in No. 80-1376:
In American Train Dispatchers Ass’n v. Chicago & N. W. Transportation Co., 360 ICC 457 (1979) (reproduced in Joint Appendix (JA) (S) at 145) (the “Soo” case), the Interstate Commerce Commission held that transfer of train dispatching responsibility over joint trackage from one carrier to another did not require Commission approval under the terms of a 1963 ICC order. In No. 80-1376, the majority affirms this finding. I dissent. *
Control of the dispatching of equipment over the joint trackage was specified in great detail in joint trackage agreements approved by ICC order in 1963. See JA (S) at 165. The 1963 order states:
It is further ordered, That no changes or modifications in the terms and conditions of said agreements * * * shall be effected without prior approval of the Commission * * *.
JA (S) at 167 (italics in original).
In the Soo case the defendant railroads implemented changes and modifications in the 1963 agreements without prior Commission approval. These actions clearly violated the terms of the 1963 ICC order, as the Commission’s own Review Board concluded. JA (S) at 115. The Commission itself admits that it did not approve the changes in the joint trackage agreement. However, in reversing the Review Board the Commission held that it was sufficient for the defendants in the Soo case merely to record the changes in the prior agreements with the ICC. 360 ICC at 462 (JA (S) at 150). There is no basis in the 1963 order for this recordation requirement; that order mandated “prior approval.”
I agree with the decision of the ICC’s Review Board. Confusion abounds when the Commission refuses to follow the plain language of its own orders.
I therefore respectfully dissent in No. 80-1376.
I agree with the majority that the transactions involved in these appeals do not require the Commission’s approval under 49 U.S.C. § 11343 (1976). I therefore concur in the majority’s affirmance in No. 80-2508 of American
Train Dispatchers Ass'n v. Union Pacific R. Co. (decision served Nov. 10, 1980) (the “Milwaukee” case), which involved only the statutory ' issue.