# Petition — Spannaus v. Goldschmidt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 963

## Text

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

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1642%3A1. Public record. Not legal advice.