Petition — Spannaus v. Goldschmidt

IN THE

Supreme Court of the Gnited States

October Term, 1979

No. —&9=11 98

WARREN SPANNAUS, AS

ATTORNEY GENERAL,

STATE OF MINNESOTA,

Petitioner,

vs. Goldschmid t

PHE-ONEED-SEAPES-SREREPAROF-

PRANSPORPALFION, ADMINISTRATOR OF

THE FEDERAL RAILROAD ADMINISTRATION;

NATIONAL RAILROAD PASSENGER CORPORATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WARREN SPANNAUS

Attorney General

State of Minnesota

FREDERICK 8S. SUHLER, JR.

Special Assistant

Attorney General

515 Transportation Building

St. Paul, Minnesota 55155

Telephone: (612) 296-3257

224-7631 — Review Publishing Co., 287 E. 6th St., St. Paul, Minn. 55101 — 224-7631

erste ane

TABLE OF CONTENTS

Page

EES IE ii

ee ee 2

SE LSE SE 2

Statutory Provisions Involved ......................... 3

ES 9

Reasons for Allowance of the Writ ............... 14

FE a 18

APPENDIX

Temporary Restraining Order dated September 28,1979 A-l

Order Dissolving Temporary Restraining Order and

Denying Preliminary Injunction, dated "

SY ee A-4

Opinion of the Tenth Circuit Court of Appeals ._... A-9

Amtrak Route System, July 1,1979 ............... A-20

Secretary’s Recommended Amtrak Route System .... A-21

i

TABLE OF AUTHORITIES

United States Supreme Court:

Morton v. Mancari, 417 U.S. 535

a ee esd otacy Ofek Sait

Posada v. National City Bank,

eee Me eR le

United States v. Borden Co.,

ee Cee A oe, ee ee oes

Federal Statutes:

cat RRR a ee ice won ere ora

_ tt NI ERNE te ears a une EE AIRE Seagiian

ce SPER TI tot a SRR ROR CE I

MEI ick eg Aken ne nae

UN MN sa Ed a EP a er nk

US 52 fa Sore maint Loco ene one

by. RRS ONS Ses SE emer ed et eta

We aes ie kG hee gy wea

Pu ta Meeee Ce ONO) i oe

5 U.S.C. §§ 701, et seg. (1976 ed.) ...............

16 U.S.C. §§ 1531, et seg. (1976 ed.) .............

ae U.oC. = 1806), 41076 of)...

ae U.S.G. § 160i, (1976 o8) %......

oe UG. § BORt,.C0ee G8 ce

ae USS. § seats AON Me ss ee

28 U.S.C. §§ 2201-2202, et seq. (1976 ed.) .........

42 U.S.C. §§ 4321, et seg. (1976 ed.) .............

a8 ee EO Ceeee Oe ee. ea

45 U.S.C. §$ 501, et seg. (1976 ed.) ..............

ii

Page

In THE

Supreme Court of the Gnited States

October Term, 1979

No.

WARREN SPANNAUS, AS

ATTORNEY GENERAL,

STATE OF MINNESOTA,

Petitioner,

vs.

THE UNITED STATES SECRETARY OF

TRANSPORTATION, ADMINISTRATOR OF

THE FEDERAL RAILROAD ADMINISTRATION;

NATIONAL RAILROAD PASSENGER CORPORATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The petitioner Warren Spannaus, Attorney General, State

of Minnesota, respectfully requests that a writ of certiorari

issue to review the decision and order of the United States

Court of Appeals for the Tenth Circuit entered in this proceed-

ing on November 9, 1979.

2

OPINIONS BELOW

An order of the United States District Court for the District

of Kansas granting a temporary restraining order on Septem-

ber 28, 1979, is unreported and appears in the Appendix here-

to. A subsequent order of the District Court dissolving the

temporary restraining order and denying a motion for a

preliminary injunction, dated October 4, 1979, is unreported

and appears in the Appendix hereto. The opinion of the Court

of Appeals is reported at 608 F.2d 861 (10th Cir. 1979) and

is reproduced in the Appendix hereto.

JURISDICTION

The decision of the Tenth Circuit Court of Appeals affirm-

ing the denial by the District Court of a motion by petitioner

for a preliminary injunction was rendered within ninety days

of the date of filing of this petition. Jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1) (1976 ed.).

QUESTION PRESENTED

Did the enactment by Congress of the Amtrak Reorganiza-

tion Act of 1979 [93 Stat. 537] absolve the United States

Secretary of Transportation from his responsibility to comply

with 42 U.S.C. § 4832 (1976 ed.) in developing a recommenda-

tion for a restructuring of the nationwide basic route system

of Amtrak pursuant to the Amtrak Improvement Act of 1978

[92 Stat. 923]?

3

STATUTORY PROVISIONS INVOLVED

There are three statutes primarily involved in the present

case:

I.

42 U.S.C. § 4332, (1976 ed.) which provides in relevant

part:

The Congress authorizes and directs that, to the fullest

extent possible: (1) the policies, regulations, and public

laws of the United States shall be interpreted and ad-

ministered in accordance with the policies set forth in

this chapter, and (2) all agencies of the Federal Gov-

ernment shal] —

ea * ok 7 *

(C) include in every recommendation or report on pro-

posals for legislation and other major Federal actions

significantly affecting the quality of the human environ-

ment, a detailed statement by the responsible official

on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which can-

not be avoided should the proposal be implemented,

(ili) alternatives to the proposed action,

(iv) the relationship between local short-term uses

of man’s environment and the maintenance and en-

hancement of long-term prod: ‘ivity, and

(v) any irreversible and ir <trievable commitments

of resources which would be involved in the proposed

action should it be implemented.

Prior to making any detailed statement, the responsible

Federal official shall consult with and obtain the com-

ments of any Federal agency which has jurisdiction by

law or special expertise with respect to any environ-

4

mental impact involved. Copies of such statement and the

comments and views of the appropriate Federal, State,

and local agencies, which are authorized to develop and

enforce environmental standards, shall be made available

to the President, the Council on Environmental] Quality

and to the public as provided by section 552 of Title 5,

and shall accompany the proposal through the existing

agency review processes;

The Amtrak Improvement Act of 1978 [92 Stat. 923]

which provides in relevant part:

ROUTE REEXAMINATION

Sec. 4(a) The Secretary of Transportation (hereinafter

in this section referred to as the “Secretary”), in coopera-

tion with the National Railroad Passenger Corporation

(hereinafter in this section referred to as the “Corpora-

tion”), shall immediately develop preliminary recommen-

dations for a route system for the Corporation which

will provide an optimal intercity railroad passenger sys-

tem, based upon current and future market and popula-

tion requirements, including where appropriate portions

of the Corporation’s existing route system. In develop-

ing such recommendations, the Secretary shall con-

sider —

(1) any unique characteristics and advantages of rail

service as compared to other modes of transportation ;

(2) the role that rail passenger service can play in

helping meet the Nation’s transportation needs while

furthering national energy conservation efforts ;

(3) the relationship of benefits of given intercity rail

passenger services to the costs of providing such ser-

vices, computing the benefits in passenger per train

5

mile and revenues earned and computing the costs in

loss or profit per passenger mile rather than total loss

or profit per route;

(4) the transportation needs of areas lacking ade-

quate alternative forms of transportation;

(5) frequency and fare structure alternatives and the

impact of such alternatives on ridership, revenues,

and expenses of rail passenger service; and

(6) the adequacy of other transportation modes serv-

ing the same points to be served by the recommended

route system.

(b) The Secretary shall, no later than May 1, 1978, de-

velop and publish the preliminary recommendations de-

scribed in subsection (a) of this section and submit a

copy of such recommendations to the Rail Services Plan-

ning Office and to both Houses of the Congress.

* ok * BS ok

Such recommendations shall include —

(1) a recommended route system by end points and

principal intermediate points to be served;

(2) quality and type of service recommended for each

route, including frequency, speed, and classes of ser-

vices offered ;

(3) ranges of protected operating expenses, rider-

ship, and revenues, by route, including a measure cal-

culated by loss or profit per passenger mile and sep-

arated for non-State supported routes and State

supported routes;

(4) an estimate of the equipment and facilities neces-

sary to support the recommended system;

(5) a recommendation for coordinating passenger

rail service at points on the system with other modes

of transportation serving such points; and

6

(6) based upon the route level projections, an esti-

mate of operating and capital appropriations required

to operate the system for fiscal years 1980 through

1984.

* ox “* * *

(e)(1) The Secretary shall, no later than December 31,

1978, submit the final recommendations designating the

basic route system, together with supporting and explan-

atory material, both Houses of the Congress and to the

Committee on Appropriations and the Committee on In-

terstate and Foreign Commerce of the House of Repre-

sentatives and the Committee on Appropriations and the

Committee on Commerce, Science, and Transportation of

the Senate. The final recommendations shall be deemed

approved, and shall take effect, at the end of the first

period of 90 calendar days of continuous session of the

Congress after such date of submission, unless either the

House of Representatives or the Senate adopts a resolu-

tion during such period stating that it does not favor such

final recommendations.

(2) If either the House of Representatives or the Sen-

ate adopts a resolution of disapproval under paragraph

(1), the Secretary shall, within 45 days after the date of

adoption, determine and resubmit a revised recommen-

dation. Each such revised plan shall be submitted to the

Congress for review pursuant to paragraph (1) of this

subsection.

(3) For the purpose of this subsection —

(A) continuity of a session of the Congress is broken

only by an adjournment sine die; and

(B) the days on which either House is not in session

because of an adjournment for more than 8 days to a

7

day certain are excluded in computing the 90-day per-

iod.

(f) Notwithstanding any other provision of law, the

route system of the Corporation in effect on J anuary 1,

1978, shall not be modified or restructured prior to Oc-

tober 1, 1979, except with except to those routes initiated

by the Corporation subsequent to January 1, 1978, pur-

suant to section 404(a) of the Rail Passenger Service

Act (45 U.S.C. 564(a)). Nothing in this subsection

Shall be construed by the Corporation as precluding

the rerouting of existing rail passenger service, or con-

strued as requiring the Corporation to maintain service

provided under an agreement with a State pursuant to

section 403(b) of the Rail Passenger Service Act (45

U.S.C. 563(b)) if such State fails to meet its share of the

costs of such service or requests discontinuance of such

service.

(g) Subject to subsection (f) of this section, immedi-

ately upon approval of the final recommendations of the

Secretary, the Corporation shall implement the basic

route system designated in such recommendations and

shall complete such implementation as soon thereafter as

possible, but in no event later than 12 months after the

date of such approval.

: * * « * *

(i) Subject to subsection (f) of this section, the basic

system designated in the final recommendations of the

Secretary shall, after the date upon which such recom-

mendations are approved, supersede any other system or

route previously in effect.

8

Ill. The Amtrak Reorganization Act of 1979 [93 Stat.

537], which provides in relevant part:

Ok * om ae ~

DEFINITIONS

Sec. 104. Section 103 of the Rail Passenger Service Act,

as redesignated by this Act, is amended to read as fol-

lows:

“Sec. 103 Definitions.

“For the purposes of this Act —

* : K * &

“(4) ‘Basic system’ means (A) prior to October 1, 1979,

the system of intercity rail passenger service designated

by the Secretary under title II and section 403(a) of

this Act, and (B) on and after October 1, 1979, the sys-

tem of intercity rail passenger service designated by the

Secretary under section 4 of the Amtrak Improvement

Act of 1978 (Public Law 95-421) and approved by the

Congress, and service required to be operated under sec-

tions 404(d) and 404(e) of this Act and under section

4(g) of the Amtrak Improvement Act of 1978, including

changes to such system or service made by the Corpora-

tion using the Route and Service Criteria.

9

STATEMENT OF THE CASE

In 1970, in response to an increasing number of passenger

train discontinuances by American railroads, the National

Railroad Passenger Corporation (Amtrak) was created by

Congress.’ Amtrak, a private, for-profit, federally chartered

corporation was specifically empowered to:

- Own, manage, operate, or contract for the operation

of intercity trains operated for the purpose of providing

modern, efficient, intercity transportation of passengers

and to carry mail and express... .

84 Stat. 1832.

Since its inception, Amtrak has operated a network of pas-

Senger trains over a nationwide basic route system thousands

of miles in length.2

The genesis of this particular dispute is found in the enact-

ment by Congress of 92 Stat. 923, on October 5, 1978. This

act, the so-called “Amtrak Improvement Act of 1978” (1978

Act), mandated the United States Secretary of Transporta-

tion (Secretary) to undertake a comprehensive review of the

entire Amtrak nationwide basic route system.® Following this

process of review the Secretary was to make a recommenda-

tion as to what basic national system should be operated by

Amtrak in the future.‘ This recommendation for restructur-

ing of Amtrak’s nationwide route system would be binding

upon Amtrak unless affirmatively disapproved by a resolu-

1 See 84 Stat. 1328. The Rail Passenger Service Act of 1970. 45 U.S.C.

§ 501, et seq. (1976 ed.).

2A map of Amtrack’s basic system as of July, 1979, is reproduced

in the Appendix hereto.

8 92 Stat. 923.

¢92 Stat. 924.

10

tion of either house of Congress within a limited time period.®

If the Secretary’s final recommendation was not affirma-

tively vetoed by Congress, Amtrak was required to restructure

its nationwide basic route system to conform to the Secre-

tary’s recommendation within one year from the date of Oc-

tober 1, 1979.

The 1978 Act, although effective in October, 1978, mandated

that certain tasks be undertaken and completed by the Sec-

retary and other Federal officials on dates prior to its pas-

sage. Thus, it would appear that Congress was aware of stud-

ies of Amtrak’s basic route system which had already been

undertaken by the Secretary and which were on going at

the time of congressional deliberation of the 1978 Act.

On January 31, 1979, the Secretary issued his final report

which recommended an Amtrak nationwide basic route sys-

tem which would have resulted in a large reduction in nation-

wide service provided by Amtrak.’ The restructured system

would have only fifty-seven percent of the mileage of the then

current system. Fourteen trains would be discontinued out-

right. In addition to trains recommended for discontinuance,

the Secretary’s recommendation would change intermediate

points served by seven others; and, discontinue other trains

which were subsidized by state and local governments.

Contemporaneous with the release of the Secretary’s final

recommendations, his subordinate, the Administrator of the

Federal Railroad Administration (FRA), released a prelimin-

ary environmental assessment of the Secretary’s proposal. It

was a so-called “negative declaration,” which concluded that

592 Stat. 925.

6 92 Stat. 926.

7A map of the recommended basic system is reproduced in the

Appendix hereto.

11

the proposed reduction in Amtrak service would not have a

significant effect on the quality of the human environment.

Congress did not affirmatively veto the Secretary’s final

recomemndation. Therefore, on August 29, 1979, Amtrak’s

board of directors voted to discontinue six passenger trains

on October 1, 1979, which were not included in the Secre-

tary’s recommended restructured nationwide basic system.®

These trains and their routes were:

(1) Floridian; operated between Chicago, Illinois, and

Miami/St. Petersburg, Florida.

(2) Hilltopper; operated between Washington, D.C.,

and Tri-State Station, Kentucky.

(3) Lone Star; operated between Chicago, Illinois, and

Dallas/Houston, Texas.

(4) National Limited; operated between Kansas City,

Missouri, and Washington, D.C.

(5) North Coast Hiawatha; operated between Chicago,

Illinois, and Seattle, Washington.

(6) San Joaquin; operated between Oakland, California,

and Bakersfield, California.

Shortly after this decision was made public, the State of

Kansas, through its Attorney General® filed this action in the

United States District Court for The District of Kansas. The

complaint, which sought declaratory and injunction relief,

named as parties defendant the Secretary,'® Administrator

of the FRA,'' and Amtrak. Although the action was prem-

8 Although more than six trains were subject to discontinuance on

October 1, 1979, if the Secretary’s recommendations were imple-

mented, these six were the only ones scheduled for immediate dis-

continuance by Amtrak.

® Robert Stephan.

10 Then Brock Adams.

11 John Sullivan,

12

ised on a number of alternative legal theories, the primary

focus of the action related to claims that in the process of de-

velopment of his final recommendated restructured nation-

wide basic system for Amtrak, the Secretary had failed to

comply with requirements of 42 U.S.C. § 4821, et seq., (1976

ed.), the National Environmental Policy Act (NEPA). The

jurisdiction of the District Court was invoked by the plaintiff

under 28 U.S.C. § 1831(a) (1976 ed.) ; 28 U.S.C. § 1837 (1976

ed.) ; 28 U.S.C. § 1361 (1976 ed.); 28 U.S.C. §§ 2201-2202

(1976 ed.) ; 5 U.S.C. § 701, et seg. (1976 ed.).

The complaint sought injunctive relief against Amtrak’s

proposal to terminate service on the six trains scheduled for

discontinuance, until the Secretary and his subordinates had

complied with NEPA in the process of developing their final

recommendation.

On September 27, 1979, a hearing was held in the United

States District Court for the District of Kansas‘? on plain-

tiff’s request for a temporary restraining order. At that time,

the District Court granted motions by the petitioner, the

Minnesota Attorney General!*® and the Metropolitan Govern-

ment of the City of Nashville/County of Davidson, Tennessee,

to intervene as parties’ plaintiff.

Following the hearing on September 28, 1979, the District

Court entered a memorandum order temporarily restraining

Amtrak from discontinuing the Floridian, Lone Star, and

North Coast Hiawatha, as planned on October 1, 1979.14

12 Before the Honorable Frank G. Theis, Chief Judge.

13 Petitioner Warren Spannaus.

14 Although plaintiffs request for a restraining order included all

six trains scheduled for discontinance, the District Court granted

extraordinary relief only for the three of those which would cause

direct harm to actual parties to the proceeding, i.e.: Floridian, to

Nashville; Lone Star, to Kansas; North Coast Hiawatha, to Minne-

sota.

13

The next day, September 29, 1979, the President approved

Pub. L. 96-73 [H.R. 3996], the “Amtrak Reorganization Act

of 1979 (1979 Act).”

The respondents thereafter filed a motion with the District

Court asking that the temporary restraining order be dis-

solved, on the ground that the 1979 Act had obviated any

responsibility 01 une Secretary to comply with NEPA in carry-

ing out his mandate under the 1979 Act. A hearing was held

on this motion October 4, 1979. Following this hearing, the

District Court found that the enactment of the 1979 Act had

significantly changed the factual setting of the legal dispute

and rendered petitioner’s probability of success on the merits

of his claim doubtful. The District Court thus dissolved the

temporary restraining order and denied petitioner’s motion

for a preliminary injunction. The District Court did, however,

stay its order dissolving the restraining order to allow peti-

tioner to seek an emergency stay of that order from the United

States Court of Appeals, Tenth Circuit. |

On October 5, 1979, following an oral hearing before a panel

of the Court of Appeals,'® the Tenth Circuit issued a stay

which reinstated the restraining order, and ordered expedited

consideration of the petitioner’s appeal from the denial of the

preliminary injunction.

This stay of the Court of Appeals was vacated upon an ex

parte application by Amtrak to Mr. Justice White in chambers,

acting as Circuit Justice, on October 8, 1979.1®

This matter was submitted on briefs and oral argument to

a panel of the Court of Appeals on October 26, 1979.'7 The

15The panel was comprised of Doyle and McWilliams, Circuit

Judges, and Breitenstein, Senior Circuit Judge.

16 See A-291, October Term, 1979. A motion by plaintiffs to recen-

sider Justice White’s stay, directed to the full Court, was denied

in an order dated November 5, 1979.

417 Before Circuit Judges Holloway, Bennett, and Logan.

14

Tenth Circuit issued its memorandum opinion on November

9, 1979, which affirmed the denial of the preliminary injunc-

tion by the District Court, and agreed that enactment of the

1979 Act disposed of petitioner’s claim that the Secretary’s

actions had violated NEPA. ‘8

REASONS FOR ALLOWANCE

OF THE WRIT

1. The decision of the Court of Appeals that the Secretary

had no obligation to comply with NEPA because of the

enactment of the 1979 Act following the claimed violations

of NEPA presents an important question of federal law

which should be settled by this Court.

A resolution of this dispute by the Court would have nation-

wide implications, not only in terms of the geographic location

of those affected ; but because it involves a question of the ap-

plicability of a law of nationwide importance.

Because of the discontinuance of the six passenger trains

in question, a large number of significant communities nation-

wide are being deprived outright of rail passenger service.

In many other significant communities, remaining rail

passenger service will be curtailed.2° The best illustration of

18 Opinion reported at 608 F.2d 861 (10th Cir., 1979).

1@A nonexclusive list of these communities includes: Bakersfield,

Ca.; Billings, Mt.; Bismarck, N.D.; Bozeman, Mt.; Breckenridge,

Mn.; Indianapolis, In.; Jamestown, N.D.; Louisville, Ky.; Mont-

gomery, Al.; Morris, Mn.; Nashville, Te.; Oklahoma City, Ok.;

Topeka, Ka.; Wichita, Ka.; Willmar, Mn.

20 Communities in this category include: Birmingham, Al.; Chicago,

Ill.; Dallas, Tx.; Fargo, N.D.; Fort Worth, Tx.; Jacksonville, Fla.;

Kansas City, Mo.; Miami, F1.; Milwaukee, Wi.; Minneapolis-St.

Paul, Mn.; New York, N.Y.; Oakland, Ca.; Philadelphia, Pa.; Pitts-

— ne St. Louis, Mo.; Seattle, Wa.; Spokane, Wa.; Washing-

ton, D.C.

15

the importance of the question presented in terms of its wide

geographic impact may well be to note that the instant case

is but one of several which were filed in widely scattered dis-

trict courts on about the time that this was brought.?! The

decision of the Court of Appeals in question essentially dis-

poses of all these cases, albeit that not all of the parties in them

participated in this proceeding.??

In addition, this dispute involves a question of the Secre-

tary’s responsibilities in relation to a law of limited applic-

ability, the 1979 Act; and one of general application, NEPA.

The importance of the public policy expressed in NEPA is

established by prior decisions of this and lower federal courts.

A decision which essentially limits the application of NEPA

because of congressional action which was not specifically

addressed to environmental concerns,?* should be given close

scrutiny by this Court.

21 Other similar cases include an action commenced in the United

States District Court, District of Oklahoma captioned Wilkinson,

et al. v. Adams, et al.; and in the United States District Court,

District of Montana, captioned: Railway Labor Executives Asso-

ciation, et al. v. Goldschmidt, et al. These matters were consoli-

dated with this action in the District of Kansas by an order of

the District Court filed on December 14, 1979. Other actions, how-

ever, are still pending in the Northern District of California;

Middle District of Alabama; Southern District of Texas; and the

District of Columbia District. “

22 The State of Florida which is not a party to any of these pending

actions filed a brief amicus curiae in the Court of Appeals seeking

reversal. The Railway Labor Executives Association and Senator

Melcher and Congressman Williams, parties in the Montana ac-

tion filed briefs amicus curiae in the Court of Appeals seeking

reversal of the District Court.

28 See argument at pages 16-17, infra.

16

2. The decision of the Court of Appeals that the obligation

of the Secretary to comply with NEPA in the preparation

of a recommended restructured nationwide route system

for Amtrack was obviated by passage of the 1979 Act, is

contrary to prior decisions of this Court.

At the bottom, this dispute presented a question to the Court

of Appeals of the application of the doctrine of “implied re-

peal.” That is, whether the 1979 Act by implication repealed

NEPA insofar as the Secretary was required to follow

NEPA’s dictates in the preparation of the recommended re-

structured basic route system for Amtrak in 1978.

In this instance, it is a question of implied repeal because

the 1979 Act makes no specific reference to NEPA, or the

Secretary’s responsibilities thereunder. The 1979 Act in fact

makes no reference at all to the recommended route system

developed by the Secretary acting pursuant to the 1978 Act,

except in a section which defines what Amtrak’s basic system

is to include at a minimum in future years.?+

A cardinal rule that has often been articulated by this

Court is that a finding of implied repeal of one statute by an-

other is not judicially favored. Posada v. National City Bank,

296 U.S. 497 (1935). To raise the question of whether a repeal

by implication has even occurred, it is necessary to find two

statutes to be in irreconcilable conflict, or that the later act

covers the subject matter of the earlier and is intended as a

substitute. In any case, the intention of the Congress to do so

must be clear and manifest. Posada, supra.

As this Court has suggested, in determining whether acts

are irreconcilable, it is not enough to merely show that they

relate to the same subject matter. Rather, there must be posi-

- 2493 Stat. 538.

— —— a

17

tive repugnancy between the provisions of both acts. United

States v. Borden Co., 308 U.S. 188 (1939).

In any case, this Court has recognized that it has an obliga-

tion where questions of statutory interpretation are presented,

to attempt to construe statutes to give effect to all of their

provisions. Morton v. Mancari, 417 U.S. 535 (1974).

Recently, this Court once again reaffirmed its commitment

to the principle enunciated heretofore in T.V.A. v. Hill, 437

U.S. 153 (1978). In that case, there were a series of congres-

sional actions over a period of years from which one could

raise a rational argument that completion of the Tellico Dam

project were intended by Congress, notwithstanding the viola-

tion of the Endangered Species Act of 1973 which would

occur.2* Despite these factors, and the practical effect of the

Court’s decision that between fifty and one hundred million

dollars would potentially be wasted if the Endangered Species

Act were deemed applicable, this Court refused to find a repeal

of the Endangered Species Act by implication.

In the instant case, we have a situation where the Congress

enacted but a single act which did not by its terms address the

question of the Secretary’s compliance with NEPA. Yet, the

Court of Appeals found that by doing so the important policy

considerations of NEPA were intended by the Congress to be

circumvented. Strangely, this conclusion was reached at a time

when recent events establish a need for more, rather than less

public transportation.

25 87 Stat. 884, [16 U.S.C. §§ 1531, et seq. (1976 ed.).]

18

CONCLUSION

The question presented in this matter is important and

worthy of this Court’s consideration. The decision of the Court

of Appeals conflicts with numerous prior decisions of this

Court which address a question of statutory repeal by implica-

tion. A writ of certiorari should issue to review the decision

of the Court of Appeals.

Respectfully submitted,

WARREN SPANNAUS

Attorney General

State of Minnesota

FREDERICK S. SUHLER, JR.

Special Assistant

Attorney General

515 Transportation Building

St. Paul, Minnesota 55155

Telephone: (612) 296-3257

A-1

APPENDIX

APPENDIX 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

THE STATE OF KANSAS, ex rel., ROBERT T. STEPHAN,

Attorney General,

Plaintiff,

vs.

BROCK ADAMS, as Secretary of the Department of

Transportation, JOHN M. SULLIVAN, as Administrator of

the Federal Railroad Administration, and THE NATIONAL

RAILROAD PASSENGER CORPORATION,

Defendants.

Case No. 79-1458

ORDER

NOW on this 28th day of September, 1979, comes the above

captioned matter for hearing. The plaintiff, State of Kansas,

appears by Bruce E. Miller, Deputy Attorney General and

Tom L. Green, Assistant Attorney General. Intervenor-plain-

tiff, the State of Minnesota, appears by Special Assistant

Attorney General, Frederick S. Suhler, Jr. Intervenor-plain-

tiff, Metropolitan Government of Nashville and Davidson

County, Tennessee, appears by John L. Kennedy, its attorney.

Intervenor-plaintiff, Bound for Glory, the Committee to Save

the Lone Star, appears by John W. Norman, its attorney. The

State of Texas appears amicus curiae by Assistant Attorney

General, Carl Glaze. The defendants appear by Jim Buchele,

U. S. Attorney for the District of Kansas; John Broadly,

A-2

Assistant U. S. Attorney; and Bridget Heinz-Charin, Assis-

tant U. S. Attorney.

The court first considered the motions of defendants to stay

the proceedings or in the alternative to consolidate and trans-

fer this case to a district with a more convenient venue. Af-

ter consideration of the record and arguments of counsel,

the court finds, at this time, that defendants’ motion to stay

should be overruled. The court finds that defendants’ motion

for consolidation and transfer is not ripe for decision at this

time.

The court next considers the motions of the intervenors to

be allowed to join these proceedings as party plaintiffs. After

consideration of the record and argument of counsel, the

court finds that the State of Minnesota and The Metropolitan

Government of Nashville and Davidson County, Tennessee,

should be allowed to intervene in this matter as party plain-

tiffs. The court finds that the intervenor Bound for Glory,

The Committee to Save the Lone Star should not be allowed

intervention at this time.

The Court next considers the motion of the plaintiffs for a

preliminary injunction, enjoining defendants from implemen-

tation of proposed passenger service cutbacks. After consider-

ation of the evidence presented by both sides in the form of af-

fidavits; the offer of evidence by plaintiffs, stipulated to by

defendants; the.records of the court; and the arguments of

counsel the court finds:

1. The plaintiffs raise serious issues concerning compli-

ance by defendants with the provisions of the National En-

vironmental Protection Act and the Amtrak Improvement Act

of 1978, based upon the complaint and the affidavits of plain-

tiffs’ expert witnesses.

A-3

2. If defendants are allowed to implement tneir planned

passenger service cutbacks on October 1, 1979, the plaintiffs

will suffer immediate and irreparable harm.

3. On the evidence presented to the court, it appears at

this time that plaintiffs have a likelihood of success upon the

merits of their complaint.

4. On the evidence presented to the court, the plaintiffs

have established a public interest in being allowed to main-

tain the status quo while litigating the merits of their com-

plaint.

5. On the evidence presented to the court, it appears the

plaintiffs will suffer greater harm without an injunction

against defendants than the harm defendants would suffer

were they enjoined from implementation of their planned pas-

senger service cutbacks.

6. Plaintiffs’ motion for preliminary injunction should }:

continued to October 11, 1979, at 10:00 a.m.

7. The defendants should be restrained from implemen-

tation of their planned passenger service cutbacks and that

said Temporary Restraining Order should become ‘effective

at 12:01 a.m. on Monday, October 1, 1979; as those cutbacks

relate to the current operation of the Lone Star route from

Chicago to Houston; the North Coast Hiawatha from Chicago

to Seattle; and the Floridian from Chicago to Miami.

8. The plaintiffs to this action are all financially respon-

sible government entities. As a practical matter, it does not

appear that plaintiffs could post any form of adequate bond,

due to statutory fiscal constraints. Therefore, in reliance upon

the tenth circuit case of Continental Oil Co. v. Frontier Re-

finery Co., 338 F.2d 780 (10th Cir. 1964), the plaintiffs are

not required, at this time, to post a bond.

A-4

IT IS THEREFORE ORDERED, ADJUDGED AND DE-

CREED that defendants maintain the status quo in terms of

passenger service over the routes of the Lone Star from Chi-

cago to Houston, the North Coast Hiawatha from Chicago to

Seattle and the Floridian from Chicago to Miami for a period

of ten days beginning at 12:01 a.m. Monday, October 1, 1979.

IT IS FURTHER ORDERED, ADJUDGED AND DE-

CREED that defendants’ motion for stay is denied; and that

defendants’ motion to transfer and consolidate, plaintiffs’

motion for preliminary injunction, and intervenors, Bound for

Glory, the Committee to Save the Lone Star, motion be contin-

ued for further hearing on October 11, 1979, at 10:00 a.m.

HONORABLE FRANK THEIS

Chief Judge

U. S. District Court

; APPENDIX 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

THE STATE OF KANSAS, ex rel., ROBERT T. STEPHAN,

Attorney General,

Plaintiff,

vs.

BROCK ADAMS, as Secretary of the Department of

Transportation, JOHN M. SULLIVAN, as Administrator of

the Federal Railroad Administration, and THE NATIONAL

RAILROAD PASSENGER CORPORATION,

Defendants.

Case No. 79-1458

sic iniaStcnsic

A-5

MEMORANDUM ORDER

Last Friday’s order was not a judicial determination that

the national interest required the continuation of the three

affected trains. Instead, the Court based its order on a finding

that the plaintiffs had shown a substantial likelihood that the

Department of Transportation had not complied with the

statutory mandate of the Amtrak Improvement Act of 1978

and with the requirements of the National Environmental Pro-

tection Act. Subsequently, the Government filed a motion to

dissolve based on enactment of a new Congressional act.

As this Court stated in his order of hearing on defendants’

motion to dissolve the temporary restraining order prior to

expiration of its ten-day period, the issue involved is “one of

overwhelming public and governmental importance,” requir-

ing the most expeditious disposition.

First, it should be emphasized that there has been a signifi-

cant change in the factual background of the legal dispute

since the Court’s TRO was entered on September 28th, as a

result of the hearing on the previous day. The significant fact

is that Congress has passed and the President signed on Satur-

day last (September 29th) the Amtrak Reorganization Act

of 1979 (hereinafter referred to as the “1979 Act’), which

purports to specifically adopt and approve by legislative-action

the administrative report and action reorganizing the Amtrak

System and discontinuing the train routes of the Lone Star,

Floridian, and North Coast Hiawatha trains. In other words,

what had been urged as flawed administrative action by the

Department of Transportation now has been adopted or rati-

fied by enacted Congressional legislation. Since the Court’s

initial TRO order the Court has had time to study and analyze

both the content of the “Final Report to Congress on the

Amtrak System,” as made by Secretary Brock Adams, and

A-6

the legislative history of the new Act to determine what Con-

gress knew and considered in voting on and passing the 1979

Act.

The Court finds without question or doubt that the legisla-

tion has been enacted, is presently effective, that Congress

has debated and weighed what railroad transportation routes

would remain, and has deliberately affirmed that part of the

Final Report, i.e., the decision of the Secretary of Transporta-

tion that the particular Amtrak routes and trains which are

the subject matter of this litigation should be discontinued.

Therefore, as indicated by the Court in his remarks from the

bench at the time of entering the TRO, once Congress has spe-

cifically spoken as to national railroad transportation policy,

the courts are bound thereby. The TRO order cannot stand

and must be dissolved.

Because of the widespread public interest, the close con-

gressional vote on the issue, and what appears to be confusion

in the public mind and the news media on the functions of

government—and particularly the power of the courts or

judicial branch of the government—this Court deems a short

review course on civics necessary to a better understanding

of the workings of the government in a Democracy such as

ours, and which has functioned so reasonably and so well dur-

ing our national history. To implement the noble and desirable

political objectives of the Declaration of Independence, our

founding fathers secured citizen approval of our Constitution

which established a form of government divided into three

divisions and with separate powers for each—the Congress,

or legislative branch; the President, or executive branch ; and

the Courts, or judicial branch. Each branch of national gov-

ernment has certain constitutional functions and each has cer-

tain restrictions on the exercise of power by the others, com-

monly referred to as a government of checks and balances.

abana

A-7

Congress functions through a membership of congressmen

and senators selected by the people, and its primary function

is to make laws determining national policy within its consti-

tutional powers. The President, while assisting in advising

on national policy and approving or disapproving congression-

al laws, executes or carries out the administration of congres-

sional laws. The judicial branch, operating through the courts,

has as its principal function the establishment of a system of

justice to decide disputes between citizens or between citizens

and their government. Hence, the courts require the other two

branches to abide by the Constitution, interpret the laws

passed by Congress, and try cases involving disputes between

parties under federal law.

Congress, in enacting laws, may be questioned or restricted

by the courts in only two types or categories. First, the courts

may require both the Congress and the President to function

within their respective constitutional power; and second, the

courts may interpret the meaning of laws passed by Congress

which are ambiguous or unclear in their meaning or inter- |

pretation.

The executive departments and agencies who execute or en-

force congressional laws must do so in a constitutional man-

ner, and often are delegated powers by Congress to-make

policy and interpret laws. The latter is commonly referred to

as administrative action.

The Amtrak report eliminating the particular trains in this

case was such administrative action. Administrative actions

under our system of law are entitled to judicial deference as

expressions of expertise in their given field, but nevertheless

are subject to judicial review to determine whether they

comply with congressional mandate. It was apparent to the

Court at the initial hearing that the policy adopted to discon-

A-8

tinue the trains in issue was probably erroneous in several re-

spects, and as such reviewable by court action. However, when

Congress ratified the Amtrak administrative decision to elimi-

nate the three trains, it was acting within its power and its

policy decision is not reviewable by the courts. While the citi-

zenry may widely question its wisdom—and the Court may

feel personally likewise—it is not judicial prerogative for the

Court to substitute his judgment for the policy judgment of

Congress based on its constitutional power over fiscal, inter-

state commerce, and energy policies. To use an extreme ex-

ample, if Congress determined the national] interest required

a return to the covered wagon, under its proper powers such

legislation conceivably would be a valid enactment.

If the determination of railroad transportation policy

proves to be unwise or inadequate, such information should

be communicated to elected officials in the legislative and

executive branches. Or, at last resort, for the removal of un-

wise or objectionable laws (even though perhaps wise) from

the statute books, appeals lie, not to the courts, but to the

ballot and the elective process of government.

IT IS THEREFORE BY THE COURT ORDERED that

the temporary restraining order heretofore entered herein

is hereby dissolved and set aside as of 6:00 p.m. Central Day-

light Time, Friday, October 5, 1979.

It is further stipulated by counsel that the Court consider

the evidence and arguments presented this day as that which

would be presented on the hearing for preliminary injunction.

On such basis,

IT IS FURTHER ORDERED BY THE COURT that a

preliminary injunction is likewise denied for the reasons

previously stated in this memorandum order.

Ls Aine” 4 lll

ene >

A-9

At Wichita, Kansas, this 4th day of October, 1979.

FRANK G. THEIS

United States District Judge

APPENDIX 3

The STATE OF KANSAS, ex rel., ROBERT T. STEPHAN,

Attorney General

and

The METROPOLITAN GOVERNMENT OF NASHVILLE

and DAVIDSON COUNTY, TENNESSEE

and

The STATE OF MINNESOTA, by its Attorney General

WARREN SPANNAUS,

Plaintiffs-Appellants,

vs.

BROCK ADAMS, as Secretary of the Department of Trans-

portation; JOHN M. SULLIVAN, as Administrator of the

FEDERAL RAILROAD ADMINISTRATION; and the

INATIONAL RAILROAD PASSENGER CORPROATION,

: Defendants-Appellees.

No. 79-2070.

UNITED STATES COURT OF APPEALS,

TENTH CIRCUIT.

Argued Oct. 26, 1979.

Decided Nov. 9, 1979.

Before HOLLOWAY, BARRETT and LOGAN, Circuit J udges.

HOLLOWAY, Circuit Judge.

This suit for injunctive and declaratory relief seeks to pre-

vent the termination of passenger rail service by the National

Railroad Passenger Corporation on the Lone Star, Floridian

A-10

and North Coast Hiawatha trains. The principal claims of

the plaintiffs-appellants are that the actions of the defendants-

appellees, and in particular of the Secretary of Transporta-

tion, in preparing a report and plan for curtailment of rail

passenger service were in violation of the National Envi-

ronmental Policy Act of 1969, 42 U.S.C. §§ 4821-47 (1976)

(NEPA), of the Amtrak Improvement Act of 1978, Pub.L.

No.95-421, 92 Stat. 923 (1978) (the ’78 Act), of the guide-

lines of the Council on Environmental Quality, 40 C.F.R. §§

1500.1-.14 (1978), of the National Historic Preservation Act

of 1966, 16 U.S.C. §§ 470-470t (1976), and of the Clean Air

Act, 42 U.S.C. §§ 7401-642 (1976).

The district court granted a temporary restraining order on

September 28, 1979, restraining the termination of service

as contemplated on October 1, 1979, on the three routes

mentioned. Among other things, the court found that the

plaintiffs had raised serious issues concerning the statutes in-

volved, that the plaintiffs would suffer immediate and irrep-

arable harm from such termination of service, that it ap-

peared that the plaintiffs had a likelihood of success on the

merits of their complaint, and that they had established a

public interest in being allowed to maintain the status quo

while litigating the merits of their complaint.

Following the approval by the President on September 29,

1979, of the Amtrak Reorganization Act of 1979, H.R. 3996

(the ’79 Act), the district court considered a motion by the

defendants-appellees to dissolve the restraining order. On Oc-

tober 4, 1979, that order was dissolved by a Memorandum

Order stating that there had been a significant change in the

factual background since entry of the restraining order, and

that Congress had passed and the President had signed the

"79 Act which purports to specifically adopt and approve by

ee en ns OL eee Tee ae a eee ~

tL See ee

Ae DO POO! Sad lS lint A ete Sow . ‘ a

arerarelate a>

A-11

legislative action the administrative report and action reor-

ganizing the Amtrak System and discontinuing passenger ser-

vice on the Lone Star, Floridian, and North Coast Hiawatha

trains. Concluding that Congress had debated and weighed

which railroad transportation routes would remain, and had

deliberately affirmed the Final Report of the Secretary that

the particular Amtrak routes and trains in question should be

discontinued, the court found that the restraining order must

be dissolved. The court added that when Congress ratified the

Amtrak administrative decision to eliminate the three trains,

it was acting within its power and that its policy decision was

not reviewable by the courts.

The Memorandum Order of the district court stated further

that the parties had stipulated that the court should consider

the evidence and arguments presented as that which would be

presented on the hearing for a preliminary injunction. The

order then denied the preliminary injunction, and the plain-

tiff-appellant State of Kansas immediately filed a notice of

appeal on October 4, 1979.1

The following day, October 5, the State of Kansas sought a

stay from this court. A panel of the court, with one judge dis-

senting, granted a temporary order restraining the termina-

tion of service on the three passenger trains, expediting the

appeal by a shortened briefing schedule, and setting oral

argument of the appeal on October 26.

The appellees then applied to the Circuit Justice for a stay

and on October 8 Justice White vacated this court’s order

“pending the timely filing and disposition of a petition for

certiorari to be submitted by Petitioner, or until further or-

1 An amended notice of appeal was filed on October 17, 1979, adding

as appellants the State of Minnesota and the City of Nashville and

County of Davidson, Tennessee.

EE a ee

A-12

der of the court or of the [Circuit J ustice].”? Concerned that

we not act contrary to the Justice’s order by proceeding with

hearing the appeal on the merits, yet being presented in this

court with the merits of the appeal by both sides, it was ascer-

tained that no party contemplated filing a petition for certior-

ari prior to our hearing. This position was confirmed in writ-

ing to the clerk by all counsel prior to oral argument before

us on October 26. Oral argument was heard then and we turn

now to the appellate arguments presented.

As grounds for reversal, the plaintiffs-appellants vigorously

argue that the actions of the Secretary in preparing the Final

Report to the Congress on the Amtrak route system (2 R.

510 et seq.), and recommending inter alia the discontinuance

of the three trains involved, violated NEPA in particular, as

well as the other statutes cited; that there were no proper

hearings and that numerous mandatory procedures for the

preparation of an Environmental Impact Statement were not

followed ; that there was no repeal in the ’78 Act or the ’79 Act

of the procedural requirements of NEPA or the other statutes

relied on; that in any event no such repeal by implication

should be found; and-that the statutes can be harmonized so

that the Secretary could comply with the mandatory pro-

cedures laid down by these earlier statutes and still accom-

plish the rail reorganization and curtailment of passenger

service contemplated.

We are unable to agree with the plaintiffs-appellants. In

the ’79 Act there is an express definition by the Congress of

the “Basic system” of rail service in Section 104, which

amends Section 103 of the Rail Passenger Service Act, 45

U.S.C. § 502, to provide as follows:

2On November 5, 1979, the Supreme Court denied a petition for re-

consideration of this order of Justice White.

— Ss

A-13

(4) “Basic system” means (A) prior to October 1,

1979, the system of intercity rail passenger service des-

ignated by the Secretary under title II and section 403 (a)

of this Act, and (B) on and after October 1, 1979, the sys-

tem of intercity rail passenger service designated by the

Secretary under section 4 of the Amtrak Improvement

Act of 1978 (Public Law 95-421) and approved by the

Congress, and service required to be operated under sec-

tions 404(d) and 404(e) of this Act and under section

4(g) of the Amtrak Improvement Act of 1978, including

changes to such system or service made by the Corpora-

tion using the Route and Service Criteria. (Emphasis

added).

Section 119 of the ’79 Act amends section 404 of the Rail

Passenger Service Act, 45 U.S.C. § 564, making specific ref-

erences to the Secretary’s Final Report and making specific

changes in the Report:

Sec. 119. Section 404 of the Rail Passenger Service

Act (45 U.S.C. 564) is amended by adding at the end

thereof the following new subsections:

“(d)(1) Where reductions in operating expenses can

be obtained, the Corporation shall operate rail passenger

service over any long distance route which is recommend-

ed for discontinuance by the Secretary pursuant to sec-

tion 4 of the Amtrak Improvement Act of 1978 ...

* *” * * *

“‘(e)(1) In order to preserve regional balance in the

national intercity rail passenger system and to ensure

that long-distance routes recommended for discontin-

uance by the Secretary pursuant to section 4 of the Am-

trak Improvement Act of 1978 which provide service to

regions with few population centers on a large geographic

area have equal opportunity to qualify for continued

A-14

operation, the Corporation shall operate a long distance

route in each section of the United States... .

a ok , * *

“(f) For the purpose of this section and section 4 of

the Amtrak Improvement Act of 1978, the reference to

Tampa in table 4-1 at page 4-7 of the Secretary’s Final

Report to Congress on the Amtrak Route System, dated

January 1979, shall be deemed to mean Saint Peters-

burg.”

It is thus apparent that the Basic system of iutercity rail

passenger service designated by the Secretary under the ’78

Act was given careful consideration by the Congress and that

substantive decisions on routes to continue, as well as on au-

thorizations of appropriations, were made. Moreover, it is

clear that the references in the ’79 Act to systems and to rec-

ommendations of the Secretary “pursuant to section 4 of the

Amtrak Improvement Act of 1978” are keyed to the Final

Report of the Secretary (2 R. 510 et seq.), since section 4 of

the ’78 Act is the section authorizing the Final Report, a point

which the plaintiffs-appellants acknowledge in their com-

plaint. (1 R. 2, 9).

[1,2] Appellants argue that “ [t]o assume a congressional

intent to create an independent statutory route structure re-

quires a substantial step beyond the Act’s language and results

in a negation of plaintiffs’ rights under NEPA and the ’78

Act.” (Brief of State of Kansas, 6). We disagree. It is clear

from the language of the Act and the legislative history that

this is precisely what Congress intended to do.* For example

8 While the intent of the Act seems clear from its terms we have

nevertheless examined the legislative history as well. For “[w]hen

aid to construction of the meaning of words, as used in the statute,

is available, there certainly can be no ‘rule of law’ which forbids

its use, however clear the words may appear on ‘superficial exami-

nation.’” Train v. Colorado Public Interest Research Group, 426

ee ee

A-15

Congressman Florio, the chairman of the Subcommittee which

drafted the bill, made the following remarks in discussing the

"79 Act (125 Cong. Rec. H 6487):

Mr. Chairman, in January of this year, the Department

of Transportation recommended a 43-percent cutback

in the Amtrak system. The DOT proposal was in response

to the requirement of the 1978 Amtrak Act which man-

dated a reexamination of the Amtrak route structure be-

cause Congress was dissatisfied, correctly I think, with

performance of the existing system.

In the course of examining the DOT proposal, the Com-

merce Committee under leadership of my chairman, Mr.

Staggers, reached the conclusion that the DOT plan had

gone too far. DOT eliminated routes which carried sig-

nificant numbers of passengers, and routes which had

- gained tremendously in ridership over the past year. Un-

fortunately, the DOT study used ridership and cost data

from 1977 to determine how trains performed.

The Commerce Committee chose to use this authoriza-

tion bill to redesign the Amtrak route system. The Com-

mittee could have vetoed the DOT proposal, but that

would have sent it back to DOT for a new plan. It is the

Congress which should be charged with the responsibility

of determining how to change and improve existing sys-

tem, what kind of route system Amtrak should run, and

this bill is the measure of what that system will be.

(emphasis added).

Congressman Madigan, also a member of the House subcom-

mittee responsible for drafting the bill and one of the floor

managers of the debate on the bill, added these remarks. (125

Cong.Rec. H 8626) :

U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (quoting United States

v. American Trucking Associations, 310 U.S. 534, 543-44, 60 S.Ct.

1059, 84 L.Ed. 1345).

A-16

Mr. Speaker, several States have filed court actions

against Amtrak to perpetuate train service in their area.

With the enactment of this bill, Congress has ratified the

process used by the Secretary in restructuring Amtrak

and has modified his restructuring where it was clearly

in the public interest do so so. The enactment of this bill

into law should lay to rest any questions of congressional

intent. (emphasis added).

[3] The remarks of Congressman Florio and Congressman

Madigan make clear the Congressional intent that the Secre-

tary not redraft the Final Report, since Congress through the

"79 Act itself determined what the new basic system would

be.* As statements of one of the legislation’s sponsors, Con-

gressmen’s Florio’s remarks deserve to be accorded substantial

weight in interpreting the statute. Federal Energy Adminis-

tration v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct.

2295, 49 L.Ed.2d 49; Woodwork Manufacturers v. N.L.R.B.,

386 U.S. 612, 640, 87 S.Ct. 1250, 18 L.Ed.2d 357. And state-

ments by others responsible for preparation of the bill are like-

wise accorded deference. Cf. United States v. Wrightwood

Dairy Co., 315 U.S. 110, 124-25, 62 S.Ct. 523, 86 L.Ed. 726;

United States v. Richards, 583 F.2d 491 (10th Cir.).

It is thus our view that the Congress had its attention spe-

cifically focused on the Secretary’s Final Report and the com-

* There is also evidence indicating that non-compliance with NEPA

was raised before both the House and Senate Subcommittees which

drafted the '79 Act. (See 1 R. 220, 222, 239). Furthermore, the legis-

lative history is replete with comments by various members of

Congress indicating their displeasure with the Final Report. £. g.,

remarks of Congressman Lee, 125 Cong.Rec. H 6487; Congressman

Conte, 125 Cong.Rec. H 6490; Congressman Fowler, 125 Cong.Rec.

- H 6514; Senator Packwood, 125 Cong.Rec. S 11119; Senator Weicker,

125 Cong.Rec. S 11123; and Senator Heinz, S 11125. We feel that the

tenor of the comments demonstrates the process of weighing the

merit or lack of merit in the Secretary’s Final Report and of the

system which should emerge.

A-17

plaints directed to it. With these concerns in mind the Con-

gress nevertheless gave its imprimatur to portions of the Final

Report, including the curtailment of the trains in question,

and designated the pattern of the passenger rail system for

the future.

Appellants argue that such a conclusion is at odds with the

way the ’78 Act was designed, that it “contemplated a passive

role for Congress,” leaving the “ultimate selection of routes

to the Secretary [with Congress acting] . .. only if to dis-

approve the final product in its entirety.” Thus, because the

Secretary is subject to the requirements of NEPA and because

neither the ’78 Act nor the ’79 Act repeal the provisions of

NEPA, it is argued that Congress in its passive role did not

“approve” the Final Report nor exempt it from the require-

ments of NEPA. (Brief of the State of Minnesota, 2-7).

We are convinced that the legislative record indicates other-

wise. Section 4 of the ’78 Act did contemplate an arguably

“passive” role for Congress in that the Secretary’s Final Re-

port would be approved without action of Congress unless

specific action were taken to disapprove it. A disapproval

would require the Secretary to resubmit a revised recom-

mendation. However it is clear from the ’79 Act and the

history outlined that Congress did not play a mere passive role

with respect to the Final Report. It neither approved it in toto

nor rejected it in toto, choosing instead to review the report

closely and to use the report as a basis for redesigning a statu-

tory basic system.

[4] The whole of this legislative process persuades us that

Congress did not leave designing of the passenger system to

the Secretary and the appellees’ subsequent actions, with

further deliberations and administrative procedures under

the environmental and other statutes. We feel we have no

A-18

problem of mere implied repeal of the procedural provisions

of NEPA and the other statutes, but a direct Congressional

decision designing the basic rail system, without the necessity

of following those procedures. See Friends of the Earth v.

Armstrong, 485 F.2d 1, 9 (10th Cir.), cert. denied, 414 U.S.

1171, 94 S.Ct. 933, 39 L.Ed.2d 120.

This legislative background is thus unlike that involved in

T.V.A. v. Hill, 437 U.S. 158, 98 S.Ct. 2279, 57 L.Ed.2d R37,

which is relied on by appellants. There the Court held that an

appropriations act authorizing funds for the Tellico dam

project did not impliedly repeal provisions of the Endangered

Species Act of 1973 as it related to the dam project. The Court

explained its reasoning as follows (id. at 190, 98 S.Ct. at

2300) :

When voting on appropriations measures, legislators

are entitled to operate under the assumption that the

funds will be devoted to purposes which are lawful and

not for any purpose forbidden. Without such an assur-

ance, every appropriations measure would be repugnant

with prospects of altering substantive legislation, repeal-

ing by implication any prior statute which might prohibit

the expenditure. .. . [T]his [would] lead to the absurd

result of requiring members to review exhaustively the

background of every authorization before voting on an

appropriation. .. .

We are persuaded that in enacting the ’79 Act, Congres-

sional expressions of intent were stronger than those in a mere

appropriations measure. The statute and its history plainly

indicate that Congress did “review exhaustively” the Final

Report and the curtailments it made. The resulting Act ap-

proved certain curtailments and made desired alterations as

well. These positive legislative directions likewise distinguish

A-19

our case from both T.V.A. v. Hill, 437 U.S. 158, 98 S.Ct. 2279,

57 L.Ed.2d 117, and National Audubon Society v. Andrus, 442

F.Supp. 42 (D.C.D.C.), on which appellants rely.

[5, 6] In sum, we are in agreement with the conclusion

of the district court that the ’79 Act decides the questions be-

fore us.° In such a case

Our individual appraisal of the wisdom or unwisdom

of a particular course consciously selected by the Congress

is to be put aside in the process of interpreting a statute.

Once the meaning of an enactment is discerned and its

constitutionality determined, the judicial process comes

to an end. We do not sit as a committee of review nor are

we vested with the power of veto.

T.V.A. v. Hill, supra, 487 U.S. at 194-95, 98 S.Ct. at 2302 3; see

also Vermont Yankee Nuclear Corp. v. Natural Resources De-

fense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460.

Accordingly we conclude that the order denying the prelimi-

nary injunction should be affirmed and the cause remanded

for further proceedings in accord with this opinion.

IT IS SO ORDERED.

5In reviewing the trial court’s denial of a preliminary injunction

under 28 U.S.C. § 1292(a), it is true that generally the appellate

court should determine only whether the trial court abused its dis-

cretion; and the merits of the case may be considered only insofar

as they bear on the question of proper judicial discretion. See

Penn v. San Juan Hospital, Inc., 528 F.2d 1181 (10th Cir.); United

States v. Brown, 331 F.2d 362 (10th Cir.). However, the district

court’s ruling in this case was based not on an exercise of its dis-

cretion but on its firm conclusion that the merits of the issues had

been settled by the enactment of the ’79 Act. This case is therefore

different in this respect from the ordinary review of a denial of a

preliminary injunction. Since we agree that the central legal ques-

tion decided by the trial court is controlling, and there is a strong

public interest in a prompt decision on the merits, we also con-

sider the merits of that question. Cf. Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 584-85, 72 S.Ct. 863, 96 L.Ed. 1153.

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APPENDIX 4