Opposition — Atchison, Topeka & Santa Fe Railway Co. v. National Ass'n of Recycling Industries, Inc.

No. 78-872 $$$

IN THE

Supreme Court of the United States

OcToOBER TERM, 1978

ATCHISON, TOPEKA & Santa FE Ratiway Co., Ef AL.,

Petitioners,

va

NATIONAL ASSOCIATION OF RecycLinG INDUSTRIES, INC.,

ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF FORT HOWARD PAPER COMPANY

IN OPPOSITION

WiiuiAM L. SLOVER

C. MicHAEL Lortus

1224 Seventeenth Street, N.W.

Washington, D.C. 20036

Of Counsel:

Stover & Lorrus

1224 Seventeenth Street, N.W.

Washington, D.C. 20036

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

SE

TABLE OF CONTENTS

Page

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INDEX OF AUTHORITIES

CasEs:

Atchison, Topeka & Santa Fe Railway Co. v. Wichita

Board of Trade, 412 U.S. 800 (1973) ............ 11

Burlington Northern, Ine. v. United States, 555 F.2d

Ge, A SI ROOD: ner beces eens ksesstsrenesbas 10

FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S.

Se SE hn. ieee cdanndhaswus kev cne Sheed 14, 15

National Association of Recycling Industries v. ICC,

585 F.2d 522 (D.C. Cir. 1978) ......ccccceees Passim

NLRB v. Brown, 380 U.S. 278 (1965) .............. 9,12

Secretary of Agriculture v. United States, 347 U.S.

GED TOE piwabansehhcec ue tetak ode ieee saa won 10

Volkswagenwerk Aktiengesellschaft v. Federal Mari-

time Commission, 390 U.S. 261 (1968) .......... 8

Westinghouse Electric Corp. v. United States, 338 F.

Supp. 1200 CWE. Pa. TPIS)... cscseccessccosses 10, 11

ADMINISTRATIVE PROCEEDINGS:

Ex Parte No. 319, Investigation of Freight Rates for

the Transportation of Recyclable or Recycled

Commodities, 356 ICC 114 (1977) ........... Passim

STATUTES:

Railroad Revitalization and Regulatory Reform Act of

1976, Pub. La No. O6-210 2... cceccsccsccncessces

I BOE ocnwawordevicnecvncsncgenes Passim

Administrative Procedure Act:

DS Gide SU bk vccvccedcicsencsscsceusacars 8, 10, 12

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

ATcHISON, TopeKA & Santa Fe Rartway Co., Ef AL.,

Petitioners,

V.

NATIONAL ASSOCIATION OF RECYCLING INDustRIES, INC.,

ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF FORT HOWARD PAPER COMPANY

IN OPPOSITION

Fort Howard Paper Company of Green Bay, Wis-

consin (‘‘Fort Howard’’) opposes the issuance of the

writ of certiorari sought by the Petitioners to review

the decision of the United States Court of Appeals for

the District of Columbia Circuit in National Associa-

tion of Recycling Industries v. Interstate Commerce

Commission, et al, No. 77-1187 and consolidated cases.

OPINION BELOW

The August 2, 1978 opinion of the Court of Appeals,

as modified by its October 16, 1978 per curiam opinion,

has been officially reported since the filing of the Pe-

tition For Writ Of Certiorari (the ‘‘Petition’’). Na-

tional Association of Recycling Industries v. ICC, 585

F2d 522 (D. C. Cir. 1978). (Hereinafter cited as

“NARI’’.)

QUESTIONS PRESENTED

1. Whether the Court of Appeals properly applied

the established standard of judicial review?

2. Whether the Court of Appeals exceeded its au-

thority in ordering the Interstate Commerce Commis-

sion to complete its action on the remand within six

months ?

3. Whether as Petitioners claim, the Court of Ap-

peals has preordained the results of the reopened pro-

ceedings before the Commission?

STATEMENT OF THE CASE

Introduction

In Section 204 of the Railroad Revitalization and

Regulatory Reform Act’ (the ‘‘4-R Act’’) enacted in

February, 1976, Congress directed the Interstate Com-

merce Commission (the ‘‘Commission’’) to conduct an

investigation into the rail freight rate structure on re-

eyclable commodities and competing virgin resource

materials. The statute required the Commission to

make a determination as to whether the rate structure,

1 Pub. L. No. 94-210, 90 Stat. 40 (1976).

3

as affected by successive general rate increases, is in

whole or in part unjustly discriminatory or otherwise

unreasonable. The statute also specifically imposed the

burden of proof in this investigation upon the railroads

to affirmatively show that the rate structure is just,

reasonable and nondiscriminatory.

Proceedings Before the Commission

Shortly after the 4-R Act was enacted, the Commis-

sion instituted the proceeding mandated by Section

204 denominating it Ex Parte No. 319, Investigation

of Freight Rates for the Transportation of Recycla-

ble or Recycled Commodities. The railroads were di-

rected to present probative evidence involving some

3,000 movements of recyclable and virgin commodities.

Numerous interested shippers, including Fort How-

ard—a major consumer of wastepaper—participated

in the proceedings submitting evidence concerning the

various issues including the nature of the competitive

relationships between the various recyclable or re-

cycled products and counterpart virgin natural resource

commodities; the cost of providing transportation ser-

vices for such commodities and the numerous defects

in the cost evidence submitted by the railroads; and

the varying transportation characteristics of such

commodities.

The Commission’s Decision

In compliance with a statutory requirement that

it complete its investigation within one year of the

enactment of the 4-R Act, the Commission issued its

Decision in Ex Parte No. 319 on February 4, 1977.’

* The Commission’s Decision is set out in Petitioner’s Appendix

D. References to the appendix are to Pet. App. ——.

4

After analyzing the movements for which the railroads

had submitted cost evidence, the Commission found that

nearly one third of them should be eliminated, leaving

only 2,125 movements of the more than 3,000 which

had been studied. Pet. App. 17d. The Commission also

found other major shortcomings in the nature of the

cost evidence which was presented by the railroads. Pet.

App. 23d-24d. However, despite the numerous defi-

ciencies in the railroads’ cost presentation, the Com-

mission accepted it as meeting ‘‘the minimum require-

ments of this proceeding.’’ Pet. App. 25d. Working

with the cost data provided by the railroads, the Com-

mission conducted a number of analyses but explained

that ‘‘time does not permit the detailed analysis that

we anticipated.’’ Pet. App. 27d.

In its analysis of the rate structures for the various

recyclable commodities and their counterpart natural

resource commodities, the Commission focused first on

the question of whether competition as contemplated

by Section 204 existed between the recyclable and vir-

gin commodities. The concept of competition employed

by the Commission in this inquiry required that the

recyclable and virgin commodities be competing tm fact.

Pet. App. 49d. In the case of wastepaper, as with most

of the other recyclable commodities, the Commission

found that the requisite competitive relationship with

the counterpart natural resource commodities did not

exist. Notwithstanding this finding, the Commission

proceeded to make further findings that the rate struc-

ture on these commodities was not unjustly discrimi-

natory based largely on demand elesticity and com-

petition-related considerations. Pet. App. 241d-242d.

On the issue of rate reasonableness, the Commis-

sion’s basic approach, as spelled out in its decision,

5

was to examine the extent to which recyclable traffic

volumes were decreased as a result of continually in-

creasing rates. Pet. App. 47d. For wastepaper, as for

virtually all of the recyclable commodities, the Com-

mission’s conclusion, based on this perspective, was

that the rate structure is reasonable.

Three of the Commissioners dissented from the Com-

mission’s Decision—one did not participate. Commis-

sioner Christian, with whom Commissioner (now

Chairman) O’Neal joined, explained that in her view

the Commission had failed to come to grips with the

essence of the discrimination issue, namely whether

the obvious rate disparities in favor of virgin com-

modities were justified on the basis of differences in

transportation conditions, and had shifted the statu-

tory burden of proof from the railroads to the ship-

pers. Pet. App. 322d-323d. Vice Chairman Clapp also

faulted the majority for failing to face up to the ‘‘hard

task’’ of determining whether the acknowledged dis-

parities are warranted by differing transportation con-

ditions. Pet. App. 324d. In addition, he stated that the

concept of competition applied by the Commission was

unrealistically narrow given the purpose and intent of

Section 204 of the 4-R Act.

The Court of Appeals Opinion

Several petitions for review of the Commission’s

Decision in Ex Parte No. 319 were filed in the District

of Columbia Circuit and were consolidated along with

several related cases. NARI, 585 F2d, at 524-25. The

United States, on behalf of the Environmental Pro-

tection Agency, as well as Fort Howard and other

parties joined in challenging the Commission’s order.

6

Based upon a comprehensive review of the legisla-

tive history and backgrounds of Section 204 of the

4-R Act, the Court of Appeals concluded that the

Commission had erred in its interpretation of its stat-

utory mandate under Section 204 in a number of major

respects. Initially, the court’s opinion explains that the

Commission seriously misapprehended ‘‘the signifi-

eance of the statutory reversal of the burden of proof

in Section 204.’’ NARI, 585 F2d, at 533. Overall, the

court agreed with the Commissioners that had dis-

sented that:

[t]he challenged order does not meaningfully ad-

dress the focal question presented by its investiga-

tion, namely whether the substantial rate dispari-

ties between recyclable and virgin products are

justified, in whole or in part, by the transportation

characteristics of the products involved

NARI, 585 F2d, at 534 and that, as a result, the rail-

roads had been relieved of their statutory burden of

proof.

Concerning the issue of the reasonableness of the

rate structures, the court identified a number of fatal

defects in the Commission’s Decision. Among these

were: the Commission’s exclusive reliance, without ex-

planation and in departure from prior precedent,

upon an extremely limited standard of rate reason-

ableness, which standard had the effect of thwarting

the purpose of the entire investigation (NARI, 585

F2d, at 535-36); the acceptance in justification of the

rate structure of railroad evidence which was com-

pletely devoid of any evidence concerning the effect of

intermodal competition (NARI, 585 F2d, at 536) ; and

according, in many instances, dispositive weight to

7

elasticity studies despite the inherent limitations in

such studies—limitations acknowledged by the Com-

mission itself.

The Commission’s treatment of the discrimination

inquiry was set aside by the court on the grounds inter

alia that the standard of competition which had been

applied was ‘*so narrow in scope as to obviate the statu-

tory purpose of its investigation’? (NARI, 585 F2d, at

540). In light of the Commission’s failure to fulfill its

mandate under Section 204, the court vacated the Com-

mission’s order and remanded the matter for further

proceedings.

On August 15, 1978, several weeks after the Court of

Appeals’ opinion was released, the National Associa-

tion of Recycling Industries petitioned for rehearing

and modification of the court’s order to require the

Commission to complete its proceedings upon remand

within six months, This petition was opposed by the

Commission and the railroads which argued that no

time limitation should be placed upon the proceedings.

On October 16, 1978, the court issued a per curiam de-

cision (Judge Leventhal dissenting) granting the re-

quested modification of its order in light of the clear

congressional mandate for expedited consideration of

this matter.

A petition for writ of certiorari was filed in this

Court by the railroads on November 30, 1978. The In-

terstate Commerce Commission has not filed a petition

for writ of certiorari. By decision served December

18, 1978 the Commission has reopened Lz Parte 319

for further proceedings consistent with the decision of

the Court of Appeals.

ARGUMENT

The Court Of Appeals Properly Applied The Established Stand-

ards Of Judicial Review In Its Decision To Remand This Matter

To The Agency

In their Petition, the railroads’ principal argument

in support of their request that a writ of certiorari be

issued is that the Court of Appeals transgressed the

permissible bounds of judicial review by merely sub-

stituting its judgment upon the evidence for that of

the Commission.’ A reading of the Courts opinion is

sufficient in itself to demonstrate that this contention

is completely without merit.

In its opinion, the Court of Appeals properly recog-

nized a number of different errors any one of which

would be sufficient in itself to require a remand to the

Commission. As related earlier herein, one of the prin-

cipal errors which the court focused upon was the Com-

mission’s incorrect interpretation of its mandate under

Section 204 of the 4-R Act NARI, 585 F2d, at 530-34.

It is axiomatic that it is within an appellate court’s

function and duty to inquire into the validity of a

statutory construction adopted by an administrative

agency. The Administrative Procedure Act, in defin-

ing the proper scope of review of a decision of an

administrative ageney, specifically provides that the

reviewing court ‘‘shall interpret statutory provisions”’

and shall hold unlawful and set aside agency action

‘‘not in accordance with law.’ 5 U.S.C. § 706; Volks-

* Petition, at pp. 12-17, At page 14, Petitioners state their argu-

ment as follows:

What the lower court did in this case was nothing other than

to reweigh the evidence and choose to give more or less em-

phasis to one piece of evidence or factor in the ratemaking

equation,

9

wagenwerk Aktiengesellschaft v. Federal Maritime

Commission, 390 U.S. 261, 272 (1968). As this Court

stated in NLRB vy, Brown, 380 U.S. 278, at 291-92

(1965) :

Reviewing courts are not obliged to stand aside

and rubber-stamp their affirmance of administra-

tive decisions that they deem inconsistent with a

statutory mandate or that frustrate the congres-

sional policy underlying a statute. Such review is

always et within the judicial province, and

courts would abdicate their responsibility if they

did not fully review such administrative decisions.

On the basis of its own independent review of the

legislative history of Section 204 of the 4-R Act and

the background developments leading to its enactment,

the Court of Appeals correctly determined that the

Commission’s perception of its mandate in the Ez

Parte No. 319 investigation was fatally flawed. As the

court explained:

Unlike general revenue proceedings, this investi-

gation was to proceed from the premise that dis-

parate rate structures were not justified by the

revenue needs of the railroads, and were there-

fore only to be upheld where actually warranted

after consideration of all of the transportation

characteristics, including the competitive relation-

ships and costs of the materials involved.

NARI, 585 F2d, at 533. The Commission clearly did

not, however, proceed on such a basis. To the contrary,

it consistently emphasized the revenue needs of the

railroads and, rather than requiring them to fulfill

their statutory burden of proof by submitting proba-

tive evidence which would support the wide rate dis-

parities which even the railroads infirm cost data re-

10

vealed, the Commission imposed the burden on the

shippers to shows that the disparities were unlawful.

NARI, 585 F2d, 529n33, 533.

Aside from the fatal error which it found in the

Commission's overall perception of its mandate under

Section 204 of the 4-R Act, the Court of Appeals also

found that several of its ‘‘underlying findings and

conclusions’? were ‘inadequately supported and arbi-

trary.’’ Again, the court was clearly operating within

the permissible scope of review in analyzing the Com-

mission’s findings. 5 U.S.C. § 706. It was also correct

in its conclusions that the various Commission findings

were improper. For example, in reviewing the Com-

mission’s analysis of the reasonableness of the rate

structures, the court found that the Commission had

improperly relied exclusively on two criteria of rea-

sonableness: the extent to which volumes of recyclable

commodities had been affected by increasing freight

rates in the past and the extent to which the commodi-

ties could absorb the current rates. NARI, 585 F2d, at

539.

Traditionally, the Commission has looked to a wide

variety of considerations in making determinations as

to rate reasonableness. See e.g. Burlington Northern,

Ine. v. United States, 555 F2d 637, 640 (8th Cir. 1977) ;

Westinghouse Electric Corp. v. United States 338

F Supp 13809 (W.D. Pa. 1975). It is well established

that an administrative agency may not simply disre-

gard its prior norms and practices. Where it chooses

to depart from prior norms it must provide some

explanation as to its reasons for doing so. In Secretary

of Agriculture v. United States, 347 U.S. 645, at 652-53

(1954) this Court ruled, in holding unlawful a Com-

11

mission decision, that ‘‘the commission has not ade-

quately explained its departure from prior norms and

has not sufficiently spelled out the legal basis of its

decision.’’ More recently, in Atchison, Topeka & Santa

Fe Railway Co. v. Wichita Board of Trade, 412 U.S.

800, 808 (1973), this Court stated that ‘‘whatever the

ground for the [Commission’s] departure from prior

norms, ... it must be clearly set forth so that the

reviewing court may understand the basis of the

agency’s action and so may judge the consistency of

that action with the agency’s mandate.”’

As the Court of Appeals noted in this case, after

defining the two criteria of reasonableness mentioned

above the Commission ‘‘. .. applied no other standard

of reasonableness and offered no explanation for its

decision to focus exclusively on these criteria.’’ NARI,

585 F2d, at 535 (footnote omitted). In Westinghouse

Electric Corp, v. United States, supra, the court set

aside a maximum reasonable rate determination be-

cause the Commission had failed to consider the sev-

eral accepted standards of reasonableness.

In addition to its failure to consider other standards

of reasonableness, or, failing that, to explain why the

Commission also erred in that the standard in which it

did fix upon was ill-suited to the purpose of the Hz

Parte 319 investigation. NARI, 585 F2d, at 536-36.

Manifestly, the glaring defects in the Commission’s

inquiry into the reasonableness of the rate structures

were more than sufficient, standing alone, to warrant

the Court of Appeals’ remand.‘

* As previously discussed in the statement of the case, the court

also noted a number of subsidiary errors in the Commision’s

handling of the reasonableness issue.

12

Upon reviewing the Commission’s treatment of the

question of discrimination in the rate structure, the

court found that the standard of competition applied

by the Commission was ‘‘so narrow in scope as to obvi-

ate the statutory purpose of its investigation.’? NARI,

585 F2d, at 540, Once again, it is clear that the court

was acting within the proper scope of judicial review

in examining the standard of competition adopted by

the agency. 5 USC § 706; NLRB v. Brown, supra, The

court did not, as the Petitioners claim, ‘‘reweigh the

evidence’ on the question of discrimination, In fact,

as Fort Howard argued before the Court of Appeals,

the Commission’s findings of no competition, even

under the extremely narrow standard employed by the

Commission, were, at least in the case of wastepaper,

unsupported by substantial evidence in the record and

indeed contrary to the weight of the evidence. How-

ever, the Court of Appeals’ conclusion that the Com-

mission’s findings of no competitive injury could not

be sustained was clearly based, not on the Commis-

sion’s weighing of the evidence, but on the overly re-

strictive standard of competition utilized in its analy-

sis. NARI, 585 F2d, at 540. Thus, if any challenge be

made to the court’s ruling on the Commission’s dis-

crimination findings, it must be that the court’s inter-

pretation of the competition standard contemplated

by Section 204 was overly broad. Such an argument

must fail.

As the background and legislative history of Section

204, which are discussed by the court in some detail,

demonstrate, the essential purpose of the Ex Parte No.

319 investigation was to ensure that disparities in the

rail freight rate structures on recyclables and their

natural resource counterparts did not unjustly inhibit

13,

maximum consumption of recyclable commodities. The

Congressional intent to foster the maximum possible

use of recyclable materials in order to achieve all of

the associated environmental benefits has been force-

fully evidenced through a number of legislative enact-

ments. See text and footnotes NARI, 585 F2d, at

531-32. By inquiring solely into the extent to which

recyclables and natural resource materials were di-

rectly competitive in the sense of being directly sub-

stitutable one for another in the manufacturing proce-

ess as evidenced by current consumption patterns and

manufacuring practices, the Commission completely

failed to consider the degree of competition which

could exist if the existing freight rate disparities were

eliminated, Thus the Court of Appeals was clearly cor-

rect in finding that:

[t]he lawfulness of the rate structures was not to

be governed by the fact that recyclable products

had been unable to attain acual competitive status

with virgin products under existing rates, Instead,

we believe that to warrant dispositive findings of

no competition the Commission was required to

find that the various products were neither ac-

tually nor potentially competitive for transpor-

tation purposes.

NARI, 585 F2d, at 540,

It would unduly lengthen this brief to discuss all of

the other errors which the Court of Appeals properly

discerned in the Commission’s Decision. As the above

discussion establishes, the Court of Appeals acted well

within the established scope of judicial review and had

ample cause for its remand of this matter to the

Commission.

14

The Court Of Appeals Direction To The Commission To Com-

plete Its Proceedings Upon Remand Within Six Months Was

Required In Order To Give Effect To The Congressional Mandate

In Section 204 Of The 4-R Act And Is Entirely Consistent With

Established Precedent

In enacting Section 204 of the 4-R Act, Congress

was directly responding to the Commission’s repeated

refusals over a course of years to engage in any mean-

ingful analysis of the possible adverse impacts of

freight rate structures upon utilization of recyclable

materials. See NARI, 585 F2d, at 527-28. Due to the

magnitude of the public interest involved in this mat-

ter and the Commission’s oft-demonstrated reluctance

to come to grips with it, Congress found it necessary

to impose a twelve-month time limit upon the investi-

gation which it mandated, The statutory period or-

dained by the Congress expired on February 5, 1977.

At the time of the court’s remand, the determinations

which the Congress sought were already more than a

year and a half behind schedule. Thus, the six month

limitation imposed by the court, if complied with by

the Commission, will result in a decision a full two

years later than contemplated by the statute.

Petitioners rely heavily upon this Court’s decision

in FPC vy. Transcontinental Gas Pipe Line Corp., 423

U.S. 326 (1976) as being in direct conflict with the

action taken by the Court of Appeals in establishing a

time frame for the Commission’s proceedings upon

remand, Petition, p. 21. However, as the very passage

from this decision which Petitioners set out in their

Petition makes clear, ° this Court did not foreclose the

°** At least in the absence of substantial justification for doing

otherwise, a reviewing court may not, after determining that

additional evidence is requisite for adequate review, proceed

15

type of action here taken by the Court of Appeals

where ‘‘substantial justification’? for such action is

present. Moreover, this Court’s comments in F'PC vy.

Transcontinental Gas Pipeline Corp., supra were di-

rected to a situation where a reviewing court directs

an administrative agency to conduct a _ proceeding

upon remand for the receipt of additional evidence

and, at the same time, ‘‘order[s] the results to be re-

ported to the court without opportunity for further

consideration on the basis of new evidence by the

agency”’ 423 U.S., at 333 (Emphasis added). Obvi-

ously, that is not the situation in this case. Here the

Court of Appeals took elaborate pains to spell out

that its findings were in no way to reflect upon the

ultimate question of ‘‘the lawfulness of any of the

rate structures involved’? NARI, 585 F2d, at 522. In

the proceedings which have been reopened, the Com-

mission will have full opportunity for further consid-

eration of all the evidence, old and new.

As far as “substantial justification” for the six month

time limit may be concerned, it would be difficult to

posit a situation in which the justification would be

more compelling. Given the Commission’s past history

with recyclable commodities matters and the congres-

sional deadline now exceeded by over a year and a half,

by dictating to the agency the methods, procedures and time

dimensions of the needed inquiry and ordering the results to

be reported to the court without opportunity for further con-

sideration on the basis of new evidence by the agency, Such

a procedure clearly runs the risk of ‘propel[ling] the court

into the domain which Congress has set aside exclusively for

the administrative agency.’ SEC v. Chenery Corp., 332 U.S.

194, 196 (1947).’’

FPC v. Transcontinental Gas Pipeline Corp., supra, 423 U.S., at

333. See Petition, P. 21.

16

the time limitation is not only fully justified, but, at six

months, very reasonable. Moreover, as Judge Leven-

thal noted in his dissent from the court’s decision on

rehearing, ‘‘. .. under the present order, the ICC can

return and ask for an extension of time’’ NARI, 585

F2d, at 543.

The Court Of Appeals In Its Opinion Does Not In Any Fashion

Preordain The Results Of The Reopened Proceeding Before The

Commission

As mentioned above, the Court of Appeals was care-

ful in its opinion to emphasize that its discussions were

not intended to set forth its views upon the lawfulness

of the various rate structures. It went on to state:

They may be lawful, or they may not. In either

event, it was for the Commission to decide ini-

tially based on an adequately supported consid-

eration of the transportation characteristics of the

products consistent with its mandate. We have

concluded only that the Commission has not done

so in this case.

Nor, by our disposition, do we mean to intimate

any view on the several contentions advanced re-

lating to the measures the Commission should

adopt in proscribing either maximum rates on re-

eyclables or maximum rate disparities between re-

eyclable and virgin products. All of these questions

we leave to the informed judgment of the Com-

mission, after full consideration of the railroads’

justifications for disparities in the rate structures

and the effect of the rate structures in terms of

their actual and potential impact on the use of

recycled products.

NARI, 585 F2d, at 541.

The only requirement which the Court of Appeals

has imposed upon the Commission on the remand is to

17

apply in its analysis standards which are consistent

with its mandate from Congress in Section 204 of the

4-R Act. Petitioners’ conteations that ‘‘the Commis-

sion will be under continuing pressure ... to reach a

different result’ (Petition, page 25) are totally un-

founded. Their suggestion that ‘‘the railroads will be

seriously handicapped in a subsequent appeal to the

lower court which has clearly indicated its own policy

preferences’’ (Petition, p. 25) cannot be seriously en-

tertained as grounds for granting the writ of certiorari

which they have requested.

CONCLUSION

For all of the reasons discussed herein, Fort How-

ard respectfully urges that this Court deny the peti-

tion for writ of certiorari. The Commission has re-

opened the proceedings in Ex Parte 319. The long

overdue results of this important investigation should

not be further delayed.

Respectfully submitted,

WituiaM L. SLOVER

C. MicHAEL LOFTus

1224 Seventeenth Street, N.W.

Washington, D.C. 20036

Of Counsel:

Stover & Lorrus

1224 Seventeenth Street, N.W.

Washington, D.C. 20036