# Petition for Writ of Certiorari — Tuolumne Park & Recreation District v. Interstate Commerce Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0536%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1093 ## Text 3 9 = 7 Ol Supreme Court, U.S, FILED ——EE_>E====____ MANS NO. JR, : CLERK IN THE | Ai Supreme Court of the Buiter 8 aes OCTOBER TERM, 1989 TUOLUMNE PARK and RECREATION DISTRICT, and FRIENDS OF SIERRA RAILROAD, INC., - Petitioners, INTERSTATE COMMERCE COMMISSION, UNITED STATES OF AMERICA, and FIBREBOARD CORPORATION, Respondents. PETITION FOR A WRIT OF CERTIORARI TC THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CHARLES H. MONTANGE (Counsel of Record) 1400 - 16th Street, N.W., #301 Washington, D.C. 20036 (202) 797-5427 Attorney for Petitioners Tuolumne Park and Recreation District and Friends of Sierra Railroad, Inc. THOMAS MAROVICH 24 S. Washington Street Sonora, California 95370 (209) 532-6937 Attorney for Petitioner Tuolumne Park and Recreation October 1989 District Pa EE WILSON - EPpzs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 \ ee ee eee QUESTIONS PRESENTED 1. May federal agencies, under the guise of “fast track” licensing procedures, abandon compliance with fundamental environmental and historic preservation laws, and insulate their unlawful conduct both from pub- lic knowledge and input and from judicial review by means of inadequate and fictional notification provisions? 2. Did the court of appeals err in holding that the 60- day time period provided under 28 U.S.C. § 2344 for seeking judicial review of an order of the Interstate Com- merce Commission is applicable and runs from the date of a Federal Register notice when (a) mere Federal Reg- ister notice is inadequate and unlawful under binding regulations of the Council on Environmental Quality in- terpreting the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., and is inconsistent with equally applicable regulations of the Advisory Coun- cil on Historic Preservation (ACHP) interpreting section 106 of the National Historic Preservation Act, 16 U.S.C. $ 470f; (b) the parties seeking judicial review com- plained of violations of NEPA and NHPA, which viola- tions are clear and admitted, and which constituted a total failure by ICC to do anything to comply with either statute; and (c) the parties seeking judicial review did not have actua! notice of the agency action, nor reason- able access to the Federal Register, nor any reasonable opportunity to raise issues before the agency, nor any non-fictional opportunity even simply to seek enforcement of NEPA and NHPA? 3. Are petitioners Tuolumne Park and Recreation Dis- trict and Friends of Sierra Railroad denied due process of law, in violation of the Fifth Amendment of the United States Constitution, through a “constructive” no- tice procedure virtually guaranteed not to reach parties affected by agency action in time to allow them either to (i) ii exercise rights in front of the agency or to obtain judi- cial review of clearly unlawful agency actions? 4, Did the court of appeals err in holding that this Court’s decision in ICC v. Brotherhood of Steam Locomo- tive Engineers, 482 U.S. 270 (1987), applies to cut off any meaningful judicial review of agency action even when, because of manifest lack of notice to interested persons, the only realistic means to present an issue to the agency is on a petition for reconsideration or to re- open, and the agency refuses to do anything? iii PARTIES TO THE PROCEEDING The parties are: Petitioners: Tuolumne Park and Recreation District and Friends cf Sierra Railroad, Inc. Respondents: Interstate Commerce Commission, United States and Fi- breboard Corporation. TABLE OF CONTENTS | eT PARTIES TO THE PROCEEDING .............................. Ce Ge ED vicercscninenneeeincennmesecemnemnnwens SN MIT cepctcrnsesnianiinigiecesasnsssinnnaitnnacencinsiimeamints JURISDICTION OF THIS COURT .................... CONSTITUTIONAL PROVISIONS, STATUTES AND REGULATIONS INVOLVED .......... Kiciliiceeieiccacteeiatiies STATEMENT OF THE CASE ...........................0............ A B. Sierra Railroad Abandonment ............................. REASONS FOR GRANTING THE WRIT ................. I. Constructive Notice as Provided Here Violated Petitioners’ Due Process Rights ...........0.... II. ICC May Not Use Accelerated Abandonment Procedures to Avoid Compliance with Manda- tory Environmental Review Statutes Such as RE ere. RN mee ck ae III. The Nint!. Circuit Misapplied This Court’s De- cision in ICC v. Brotherhood of Steam Locomo- RU I incr iccteticcnicsisetniensiennthiahiduetbiteceintbiaainas IV. ICC Cannot Avoid Compliance with NEPA and NHPA on Harmless Error Grounds ................... TE wsickixeciiennnsinesvnninapcnsisniaedeainieidataanabaiaiae 17 26 vi TABLE OF CONTENTS—Continued APPENDICES Page Appendix A—Ninth Circuit Opinion and Notice of Judgment Entry .............. ; - la Appendix B—ICC Decision served Jan. 26, 1988...... 18a Appendix C—ICC Decision served July 20,1987... 3la Appendix D—California State Historic Resources Commission staff evaluations ; Letter, T. King (ACHP) to C. Bausch (ICC), Jan. 30, 1986; Letter, C. Bausch to T. King, Feb. 18, 1986; Memo, W. Southard to Donald Shaw, / 4 ) eee eee 5la Appendix E—Constitutional Provisions, Statutes RE TIED cccncvetemsnntntisnns 6la vii TABLE OF AUTHORITIES Cases Page Aberdeen & Rockfish R. Co. v. SCRAP, 412 US. Si, MIE catenin tisnenntersbinenicmpensitennsianidbeeninemmmeandeamin 18 Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. Ge atriedllnn ac nsenitshinsnnntvenacnemnnnibiaainanitiethinniane 5, 26 Allison v. Block, 723 F.2d 631 (8th Cir. 1983) fie 16 Amoco Production Company v. United States, 619 fb 8 16 Andrus v. Sierra Club, 442 U.S. 347 (1979) .......... 5 Chicago & North Western Transp. Co. v. United States, 678 F.2d 665 (7th Cir. 1982) .................. 24, 25 Cleveland Board of Education v. Loudermill, 470 es Ce SIE etenesssecneeenemnamnnnsmneuinebennnbinten 14 Harlem Valley Transp. Ass’ n v. Stafford, 500 F.2d lenin 5 Illinois Commerce Commission v. ICC, 787 F.2d I es Ne I eccnisrtcinnnncninitennthinicibidedibeinanaas 18 Illinois Commerce Commission v. ICC, 848 F.2d 1246 (D.C. Cir. 1988), cert. denied, 109 S.Ct. SF EEO oe 5, 9, 18, 19, 20, 21, 22 International House v. NLRB, 676 F.2d 906 (2d ESTEE ERE oer seer en ne SE 14 Interstate Commerce Commission v. Brotherhood of Steam Locomotive Engineers, 482 U.S. 270 I iti stinnaiedielteeth ahd ctetesaine caida haan tata 12, 21, 22 LaFlamme v. FERC, 852 F.2d 389 (9th Cir. REE Sie Pree ee ate ea ee eT ee oe OD en 21 Matzke v. Block, 732 F.2d 799 (10th Cir. 1984)... 16 Mullane v. Central Hanover Bank, 339 U.S. 306 FEE aa ee ie Ramee 14, 15, 16 National Center for Preservation Law v. Landrieu, 496 F. Supp. 716 (D.S.C.), aff'd, 635 F.2d 324 GD ne nia alcllioaadeeiendnetiiadinbhs 5 Northwest Coalition for Alternatives to Pesticides v. Lyng, 844 F.2d 588 (9th Cir. 1988) .............. 20 Oil, Chemtcat-and Atomic Workers v. Zegler, 768 of bo § ) §. § an ll Panama — Company v. — 293 U.S. 388 viii TABLE OF AUTHORITIES—Continued Page Reed v. Meserve, 487 F.2d 646 (ist Cir. 1973)...... 25 Robertson v. Methow Valley Citizens Council, 109 SX ee eee 24 Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) —.................... ll The Steamboaters v. FERC, 759 F.2d 1382 (9th GE SED srneeiscesecnsccastnssessnntioanibniiciendaticnnhenaibadidahiiniatenn 5 Trustees for Alaska v. Hodel, 806 F.2d 1378 (9th Cir. 1986) ......... sliaieinianeiniasisnainaseiiiatantidadtmcaiddgtadiniaiaadinn 19 United States v. Markgraf, 736 F.2d 1179 (7th Cir. 1984), cert. dismissed per Rule 58, 469 U.S. Ey SUITED ccnncinesnseesnbbnniintnieibiahndumentineiabiaiadbeeeimnetiion 16 WATCH v. Harris, 603 F.2d 310 (2d Cir. 1979) .... 21 U.S. Constitution AEA Statutes Administrative Orders Review Act, 49 U.S.C. § 2344........... ioe adelaeiaaasnabepiahaaniainiiacanieans 12 Federal Register Act, 49 Stat. 500 (1935)... Aaibeinashesainaia cienaeibiedis me 16 Nationa! Environmental Policy Act, Section 102, 42 U.S.C. § 4332 .............................. 2, 4,5 National Historic Preservation Act, Section 106, 16 U.S.C. § 470f —...0.......... 2,5, 10,17 Section 211, 16 U.S.C. § 470s ........................... 5 Revised Interstate Commerce Act, SR sacudctmnelional 4,5, 17,19 49 U.S.C. § 10908 .................... POLAR tee Otto Ss 8 3 TT A aE 3, 4,17 SE a sees 13, 24, 25 | eee 18 Other, : EER eee ae TN 1 SE OEE nn eR 12 EERE, Ero — 2 a ee ix TABLE OF AUTHORITIES—Continued Regulations Page Advisory Council on Historic Preservation ee z 6 EE 6, 20 Interstate Commerce Commission 49 C.F.R. § 1152.50 (1985) .............. 2, 8, 5, 18, 19, 28 Council on Environmental Quality RI ES 2, 5, 19, 20 Legislative History Conf. Rep. No. 1430, 96th Cong., 2d Sess. (1980) .. 22 Books 3 Blackstone, Commentaries on the Laws of Eng- land (1768)... ESET EA Ec DNV SEEDPEER EOD = 16 D. Deane, Sterra Railroad (1960)... 6 L. Jaffe & N. Nathanson, Administrative Law (3d SEI SAREE Serer SRN ie ee 16 L. Jensen, The Movie Railroads a 6 Interstate Commerce Commission, 1988 Annual I I ic 3 T. Wurm, Hetch-Hetchy and Its Dam Railroad IES Se a 6 Other 43 Fed. Reg. 55978 (1978) 2.00. Seishiecabiadieceadaee 19 46 Fed. Reg. 18087 (1981)..................................000..... 5, 20 46 Fed. Reg. 22060 (1981) ae 7 50 Fed. Reg. 180 (1985) IN THE Supreme Court of the United States OCTOBER TERM, 1989 No. 89- TUOLUMNE PARK and RECREATION DISTRICT, and FRIENDS OF SIERRA RAILROAD, INC., m Petitioners, INTERSTATE COMMERCE COMMISSION, UNITED STATES OF AMERICA, and FIBREBOARD CORPORATION, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT The petitioners, Tuolumne Park and Recreation Dis- trict and Friends of Sierra Railroad, Inc., respectfully pray that a Writ of Certiorari issue to review a judg- ment of the United States Court of Appeals for the Ninth Circuit. OPINIONS BELOW The decision of the court of appeals below is reported at 881 F.2d 663 (July 31, 1989). The decisions of the Interstate Commerce Commission (ICC) are unreported. All decisions are set forth in the appendix. JURISDICTION OF THIS COURT The decision and judgment of the court of appeals from which this petition is taken was entered on July 31, 1989. Pursuant to 28 U.S.C. § 2101(c), petitions for a writ of certiorari may be filed within ninety days after 2 entry of judgment. The jurisdiction of this Court is in- voked under 28 U.S.C. § 1254(1). CONSTITUTIONAL PROVISIONS, STATUTES AND REGULATIONS INVOLVED The following constitutional provisions, statutes and regulations, all set forth in the appendix, are involved in this case: (1) the Due Process Clause of the Fifth Amendment of the United States Constitution; (2) sec- tion 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4832; (3) section 106 of the Na- tional Historic Preservation Act, 16 U.S.C. § 470f; (4) various provisions of the Revised Interstate Commerce Act, including 49 U.S.C. §§ 10905-06; (5) various regu- lations of ICC, including especially 49 C.F.R. § 1152.50 (1985); and (6) various regulations of the Council on Environmental Quality (CEQ), including especially 40 C.F.R. § 1506.6. STATEMENT OF THE CASE This proceeding, arising out of a railroad abandon- ment case before the ICC, presents questions of nation- wide, and government-wide, importance relating to how far federal agencies may go in avoiding any compliance whatsoever with the Nation’s environmental and _his- toric preservation laws through so-called “fast track” licensing procedures. In this case, the fast-track proce- dure involved manifestly deficient provisions for public notice combined with non-existent review of environ- mental and historic resource impacts. Local agencies and preservational groups, including petitioners, interested in avoiding adverse environmental and historic resource im- pacts were totally deprived of rights guaranteed by fed- eral law. A. Statutory background. ICC regulates railroad abandonments. Rail lines mov- ing freight in interstate commerce in general may not be abandoned nor may service be discontinued without 3 ICC approval.’ Congress has adopted an elaborate regime providing for public notice of proposed abandonments, and an opportunity to be heard, before the ICC acts. 49 U.S.C. § 10904. This notice includes publication of lines for which abandonment is imminent in a “system dia- gram map,” ? wide dissemination of a “notice of intent’ to file an abandonment application,’ newspaper notifica- tion for at least three weeks in advance of filing of an abandonment application,* posting of the “notice of in- tent” at stations,® and provision of 30 days in which to comment before the agency acts.® Most rail abandonments, however, are no longer gov- erned by these “statutory” notice procedures. To the contrary, two-thirds to three quarters of all abandon- ments are now governed by “exemption” procedures.’ 149 U.S.C. § 10903(a) (1). 249 U.S.C. § 10904 (e) (3). 3 Jd. (a) (3). * id. (a) (3) (C). 5 Id. (a) (3) (B). 6 Id. (b). 7Data from ICC’s 1988 Annual Report (p. 129) indicates as follows: FY 1986 FY 1987 FY 1988 abandonment applications—filed 141 60 50 granted 117 60 47 notices of exemption—filed 93 73 46 granted 56 88 43 petitions for exemption—filed 30 50 84 granted 43 27 71 percentage “exemptions” —filed 47% 67% 72% granted 46% 66% 71% 4 2 The fact that most abandonments are now “fast-tracked” underscores the importance of assuring that environ- mental and historic resource requirements are not ignored in the process. More specifically, Congress has afforded ICC authority to exempt certain transactions or classes of transactions from full regulation. 49 U.S.C. § 10505. ICC has exer- cised this “exemption” authority in the context of rail abandonments in several ways. For example, the agency frequently grants “petitions for exemption” on a case- by-case basis, and has also issued “class exemptions.” The “exemptions” do not exclude the action from ICC re- view; rather, they “fast-track” that review by cutting down on the economic data-which must be supplied. One of the most heavily-used class exemptions in the rail abandonment area is the class exemption for lines not used for local traffic for two years. That regulation is codified at 49 C.F.R. § 1152.50. Under that regulation, a qualifying carrier files a “notice of exemption” with the ICC. In contrast to the notice required by 49 U.S.C. § 10904, there is no notice to the public, including local communities. Within 20 days, ICC publishes in the Federal Register a brief “notice of exemption”—in effect approving the abandonment without any prior right to be heard on the part of affected members of the public. The notice contains no environmental information. Any interested member of the public has only ten days from Federal Register publication in which to discover the Commission’s action and to seek a stay; and twenty days from Federal Register publication in which to petition for reconsideration. No other notice to the public and no other remedies to the public are afforded. It is established beyond doubt that the requirements of section 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, apply to ICC abandonment a 5 proceedings,* as do the requirements of section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f.2. ICC expressly admits that, under 49 U.S.C. § 10505, it lacks power to exempt rail abandon- ments governed by 49 U.S.C. § 1152.50 from these “en- vironmental” review obligations.’° Under these circum- stances, the agency in order to comply with NEPA § 102 and NHPA § 106 must consider the impact of each aban- donment governed by 49 C.F.R. § 1152.50 upon the en- vironment, including historic resources. Under regulations of the Council on Environmental Quality (CEQ), binding upon all federal agencies," reg- ulatory bodies such as ICC must “[ml]ake diligent efforts to involve the public” in NEPA related matters (i.e., rail abandonments). 40 C.F.R. § 1506.6(a). Notice in the Federal Register, standing alone, is insufficient under the CEQ regulation even for actions of nationwide applica- tion,’? much less for matters of local application, such as most rail abandonments.'* Likewise, under binding’ reg- ulations of the Advisory Council on Historic Preserva- tion (ACHP), the ICC has an affirmative obligation to 8 Harlem Valley Transp. Ass’n v. Stafford, 500 F.2d 328, 336 (2d Cir. 1974). See also Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289 (1975) (SCRAP I) (NEPA applies to rail regulatory proceedings). ® Illinois Commerce Commission v. ICC, 848 F.2d 1246, 1261 (D.C. Cir. 1988) (ICC II). 10366 ICC at 890 & n. 10 (ICC lacks authority to exempt rail abandonments from “relevant energy and environmental acts’’). llAndrus v. Sierra Club, 442 U.S. 347, 357 (1979); The Steam- boaters v. FERC, 759 F.2d 1382, 1392-93 (9th Cir. 1985). 12 40 C.F.R. § 1506.6(b) (1)-(2). 13 40 C.F.R. § 1506.6(b) (3); 46 Fed. Reg. 18037 (1981). 1416 U.S.C.§ 470s; National Center for Preservation Law v. Landrieu, 496 F. Supp. 716, 742 (D.S.C.), aff'd, 635 F.2d 324 (4th Cir. 1980). 6 notify persons and parties known to be interested in an “undertaking” (including licensing actions) at each stage in the process of assessing the effect of the proposed undertaking on historic properties. See 36 C.F.R. §§ 800.4(d) and 800.5(b), (e) (1) & (e) (3). B. Sierra Railroad Abandonment. The Sierra Railroad has been determined historic and eligible for the National Register of Historic Places by the California State Historic Resources Commission (CSHRC)." Originally constructed to serve the gold mining and timber industries in the southern portion of California’s “Mother Lode” during California’s “second gold rush,” '* the railroad also served in the construc- tion of the dam in the Hetch Hetchy Canyon of Yosemite National Park.'’ Scenic and traversing areas of natural beauty, the line has been employed in many movies and television productions.'* A state historic park, Railtown 1897, is located adjacent to it."* In 1981, in a finding reiterated again in 1987, CSHRC unanimously deter- mined that the Sierra Railroad was “the most intact his- toric short line railroad in California.” ” In 1981, the ICC, authorized the abandonment of the line from milepost 50.0 to milepost 56.2 (termed milepost 57.2 in ICC’s decision) in Tuolumne City in Tuolumne 15 Staff Evaluation of August 7, 1981, reiterated February 6, 1987. See Petitioners’ Opening Brief, below, Exhibit E; reprinted as an appendix to this Petition. 16 See D. Deane, Sierra Railway (1960) (L/C 60-15648). 17 Jd. 131; T. Wurm, Hetch-Hetchy and Its Dam Railroad 58, 59, 67 & 86 (1973) (L/C 73-87231). 18D. Deane, supra, at 152-54; L. Jensen, The Movie Railroads 5, 14-69, 213-20 (1981) (ISBN 0-933506-05-8). 19 Pro se Petition to Implement Section 106 Review, dated June 18, 1986, before the ICC, below, at 4. 20 See note 15 supra. 7 County, California.” In its order permitting termination of common carrier freight service, the Commission noted expressions of interest in preserving the line because of its nature as an important historic resource. In par- ticular, the Commission explained that Friends of the Sierra Railroad . . . and several Tuolumne County residents, a merchants association and the historical society have filed petitions request- ing that we consider the historic significance of the route between Stanislaus and Tuolumne, CA. The petitions chronicle the rich history of Sierra, and argue that the historic integrity of the line will be jeopardized by this [abandonment] proposal. The line has been proposed for iisting in the National Register of Historic Places, and for that purpose, they point out, the entire line must be maintained intact... .™ Because the abandoning freight carrier had agreed to hold the line available for a period of time for preserva- tional purposes,” the Commission nevertheless authorized the abandonment subject to revocation if the segment involved was not in fact made available for historic pres- ervation. The remainder of the line (mileposts 0.0 to 50.0) was transferred to a new owner for continued freight rail operations, with the seller reserving rights to operate passenger and movie train services. Negotia- tions for acquisition of the line from milepost 50.0 to 56.2 for historic and excursion purposes proceeded, first with Friends of Sierra Railroad (one of the petitioners herein) and then with petitioner Tuolumne Park and Recreation District. The District ultimately purchased this portion of the line, including all track, ties, and structures, for continued railroad use. The District intends to preserve the historic railroad, to develop an excursion service to 21 46 Fed. Reg. 22060 (April 15, 1981). 22 46 Fed. Reg. 22060-61 (April 15, 1981). 23 Jd. 22061. eel 8 complement the area’s tourist economy, and to stimulate further movie and television use of the area. ICC staff advised preservation advocates that they would receive notice in the event of further proceedings in the matter. Unbeknownst to the District, Friends of Sierra Rail- road, or, so far as the record shows, any person or agency in Tuolumne County, Sierra Railroad filed a “notice of exemption” with the ICC in late 1984 for mileposts 49 to 50, invoking that agency’s “fast track” rail abandon- ment procedure in 49 C.F.R. § 1152.50. Pursuant to § 1152.50, the Commission, approximately a month later, without any public notice or opportunity for comment, granted the exemption, publishing a brief notice to this effect in the January 2, 1985, Federal Register. It is undisputed that this is the only “notice” which ICC af- forded to the citizens of Tuolumne County, including those manifestly interested in the corridor, and it is equally undisputed that the nearest Federal Register was (and evidently still is) at least one hour’s drive from the County." In the situation here, the “notice’’ could as well have been published in the London Times, or in Pravda or Izvestia. Any would have been as likely to inform the interested public. Neither the Park District, nor Friends, nor any related entity, nor—so far as petitioners can tell —any representative of any organization or agency in Tuolumne County, received any actual notice of the aban- donment authorization.” 2450 Fed. Reg. 180 (Jan. 2, 1985). Pacific Gas & Electric, a utility, evidently also was unaware of the notice, but filed a belated petition for reconsideration on February 21, 1985, approximately one month out-of-time. This petition was dismissed by ICC on October 4, 1985, in an unreported and unpublished decision after the parties amicably settled their differences. Judge Wallace, in his rendition of the facts, thus incorrectly states that there were “no objections” filed. 881 F.2d at 665. 25 881 F.2d at 667. 261CC does claim to have served copies of its decision upon cer- tain state offices. If so, this is highly unusual for decisions under on 9 The lack of any adequate notice exacerbated a key fail- ing below: the lack of any compliance with NEPA or NHPA whatsoever. In contrast to its handling of the line from milepost 50 to 56.2 in 1981, and in the face of its public acknowledgement of the historic significance of the entire line at that time, ICC at no point before or after granting the abandonment authorization for mile- posts 49 to 50 did anything to comply with either section 106 of the NHPA (which requires ICC to consider the impact of its action on historic resources and to consult with the Advisory Council on Historic Preservation), or section 102 of NEPA (which requires ICC to consider the environmental and historic preservation impacts of its actions).*7 As it happens, an historic building, namely the Standard Railroad Depot, is virtually in the center of the line from mileposts 49.0 to 50.0 and access to the area of the Depot is necessary for a logical terminus and staging area on a county road for excursion use of the line.* When, roughly a year later, local residents and officials discovered, as a result of some destruction of tracks, that 49 C.F.R. § 1152.50, and ICC appears to have abandoned the prac- tice. In any event, notice to state agencies is manifestly inadequate here. As noted by the D.C. Circuit in Jilinots Commerce Commission v. ICC, 848 F.2d 1246, 1260 (1988), “[t]he Commission . . . does not advance any evidence that state public service agencies wil] [notify interested local and environmental groups], and, in fact, the Com- mission’s own staff in comments concerning another exempt.on pro- ceeding suggest that state agencies do not carry out this function very well. ‘The designated agency . . . cannot circulate the environ- mental notice quickly enough to afford any meaningful opportuni- ties for involvement in the ICC’s decisionmaking process.’ Com- ments of the Section of Energy and Environment on Class Exemp- tion for the Construction of Connecting Tracks under 49 U.S.C. § 10901.” 27 Letter, Thomas King (Advisory Council on Historic Preserva- tion) te Carl Bausch (ICC), Jan. 30, 1986; Letter, Carl Bausch (ICC) to Thomas King (ACHP), Feb. 13, 1986 (Appendix D). 28 See Friends of Sierra Railroad and Tuolumne Park and Rec- reation District opening brief, below, at pp. 16-17 (map). Aientesnsinemaie 10 an abandonment authorization for mileposts 49.0 to 50.0 had been granted, the period for petitioning ICC for a stay (ten days) or reconsideration (20 days) under 49 C.F.R. § 1152.50 had long since passed.*” They neverthe- less promptly communicated with ICC.” Similarly, the Advisory Council on Historic Preservation wrote ICC requesting compliance with section 106 of the NHPA,™ as did the California State Historic Preservation Officer.” The Chief of ICC’s Section on Energy and Environment admitted that the agency had acted oblivious to the ap- plicability of section 106 of the NHPA,* and indicated that ICC was seeking the cooperation of the railroad in “voluntarily” complying. “Voluntarism” unfortunately did not work. The rail- road sold the line from mileposts 49.0 to 50.0 to Lou- isiana Pacific Corporation (now Fibreboard Corporation ) 2° In actuality, even if the petitioners had known of the abandon- ment authorization, ICC procedures then applicable would have been meaningless to vindicate “environmental” interests. ICC re- quired extensive showings to obtain a stay, such showings would be impossible in ten days even with notice, and as a practical mat- ter the agency never granted a stay in “environmental” cases, not- withstanding unresolved “environmental” issues. Absent a stay, the abandonment would become effective (i.e., ICC would have taken action) rendering environmental review subsequent and thus mean- ingless. Further, the agency would then take the position that it had lost jurisdiction to afford substantive relief. *° E.g., Letter, Mr. Cassasa (FSR) to Mr. Maestro (ICC), April 21, 1986. 5! Letter, Thomas King (ACHP) to Carl Bausch (ICC), Jan. 30, 1986 (Appendix D). 32 Letter, Ms. Gualtieri (Cal. SHPO) to Mr. Car! Bausch (ICC), Feb. 14, 1986. 33 Letter, Carl Bausch (ICC) to Thomas King (ACHP), Feb. 13, 1986 (Appendix D). ICC’s Director of Governmental Affairs made a similar admission in response to congressional inquiry. Letter, B. Gordon (ICC) to Rep. Lehman, Aug. 14, 1986. 1k: by quitclaim deed recorded on June 18, 1986.% On the same day Friends of Sierra Railroad petitioned ICC for compliance with section 106 of the NHPA. This petition was later joined in by the Tuolumne Park und Recreation District, as well as supplemented. ICC initially did nothing. On February 26, 1987, Friends of Sierra Railroad filed a complaint in the U.S. District Court for the District of Columbia to compel compliance with the applicable statute.** On the basis of Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) and Oil, Chemical and Atomic Workers v. Zegler, 768 F.2d 1480, 1483 (D.C. Cir. 1985) (holding that for all cases reviewable in the court of appeals, all ancillary remedies lie in the appel- late court as well), this action was voluntarily dismissed on March 26, 1987, and a petition for review of the agency’s inaction was filed on the same date in the D.C. Circuit. Friends filed a motion for summary disposi- tion on May 8, 1987. Before the D.C. Circuit acted, ICC, in an unpublished decision served July 20, 1987,°' denied Friends of Sierra Railroad and the Park District any relief. The D.C. Cir- cuit case was dismissed on the basis of ICC’s argument of July 21, contending that review would now lie from the agency decision of July 20. Friends of Sierra Railroad and the Park District filed, with ICC, a motion to correct what they regarded as mis- % Fibreboard owns a lumber mill in the sector encompassing roughly mileposts 49 to 49.5 and is evidently adamantly opposed to any form of public use of any portion of mileposts 49 to 50, even for rail transport purposes. Such use has historically occurred, of course, for well over three quarters of a century. 85 D.D.C. No. 87-0520. %* D.C. Cir. No. 87-1134. 57 A copy of this decision is reproduced in the appendix. ———— 12 statements in the agency’s July 20 decision.“ In addi- tion, Friends and the Park District filed a timely petition for judicial review in the Ninth Circuit under 28 U.S.C. § 2344 on September 2, 1987." The petition for review was held in abeyance, pending resolution by ICC of the motion to correct. ICC treated the latter motion as one for reconsideration, and denied it in another unpublished decision served on January 26, 1988.*° In a decision issued July 31, 1989, the Court of Ap- peals for the Ninth Circuit, per Circuit Judge Wallace, denied the petition for review filed by Friends of Sierra Railroad and the Park District on the procedural ground that the court was without jurisdiction to hear the merits of petitioners’ legal claims. Although the petition for review was filed within 60 days of ICC’s refusal to com- ply with NHPA and NEPA, Judge Wallace held that the court lacked jurisdiction because the proceeding was not commenced within 60 days of the January 2, 1985 Fed- eral Register notice, even though the inadequacy of Fed- eral Register notice was part and parcel of the complaint of petitioners in the first place. Judge Wallace held in essence that the legal fiction of constructive notice in the Federal Register is in all cases binding on parties af- fected by federal agency actions, and serves to cut off their rights before the agencies and in the courts. Judge Wallace reasoned that judicial review of ICC’s subse- quent refusal to comply with environmental statutes was barred this Court’s decision in JCC v. Brotherhood of 38 Friends complained in particular that the Commission mis- takenly intimated it was not interested in invoking § 10905; er- roneously asserted, without any substantiation whatsoever, that Friends had “actual” notice; and made the Orwellian claim that Friends and the Park District had “slept on their rights” when the true sleepers were at the Commission. %® Pursuant to 28 U.S.C. § 2321, review of ICC orders such as those involved here is covered by 28 U.S.C. §§ 2341, et seq. *° A copy of this decision is also set forth in the appendix. 13 Steam Locomotive Engineers, 482 U.S. 270 (1987), a decision which limits judicial review of agency refusals of petitions to reopen fully litigated administrative pro- ceedings made by parties to those proceedings. The deci- sion in effect insulates illegal and deficient “fast track” licensing procedures from judicial review, so long as they are coupled with illegal, deficient and fictional notice. It authorizes government to play “catch me if you can” rather than to comply with the public disclosure and par- ticipation requirements that are the heart of NEPA and NHPA. The Tuolumne Park and Recreation District and Friends of Sierra Railroad timely petitioned for certiorari. REASONS FOR GRANTING THE WRIT I. Constructive Notice as Provided Here Violated Peti- tioners’ Due Process Rights. There can be no doubt that petitioners Tuolumne Park and Recreation District and Friends of Sierra Railroad have an interest in preserving an historic resource suf- ficient to warrant protection by at least the rudiments of procedural due process in an ICC railroad regulatory proceeding. That much was established in Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (S.C.R.A.P.), 412 U.S. 669, 685-88 (1973) (SCRAP 1), which held that an organization alleging various “environmental” injuries had standing to litigate against the ICC. But in addition to their general environmental interest, the Park District and Friends enjoy rights to acquire the segment in question under 49 U.S.C. § 10905 and, for that matter, certain rights under 49 U.S.C. § 10906 as well, for continued rail use and for public purposes, respectively. In short, the Park District and Friends were deprived of substantive as well as procedural rights, and if procedural rights had hemes 14 . been accorded, substantive “events on the ground” would have been different: an historic resource and public amenity would have been preserved. One of the rudimentary precepts—indeed, the most basie precept—of procedural due process is adequate and timely notice of an opportunity for a meaningful hearing. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an oppor- tunity to present their objections. . . . The notice must be of such nature as to convey the required information ..., and it must afford a reasonable time for those interested to make their appearance. Mullane v. Central Hanover Bank, 339 U.S. 306, 314 (1950). See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985); International House v. NLRB, 676 F.2d 906, 911 (2d Cir. 1982). The only notice afforded below to the public, including Tuolumne Park and Recreation District and Friends of Sierra Railroad, was a brief notice, published in the Federal Register. As noted in the statement of the case, the Federal Register is not even received in Tuolumne County, and the Ninth Circuit (based on representations by intervenor Fibreboard) found that the nearest Regis- ter was an hour’s drive away. Federal Register notice is generally adequate notice of matters which have a national, regional, or even state- wide impact, because the Register is monitored by at least some state agencies, by industry trade associations and major corporations, and by national environmental groups. However, the notice published in this case re- lated to an action which was very local in impact—the ~ abandonment of approximately one-mile of railroad right-of-way in a rural county in California. Rural coun- 15 ties, their agencies, and their populace lack the resources to monitor the Register, let alone on a daily basis. The inadequacy of the notice is further compounded by the incredibly brief period afforded for seeking critical relief (namely, a stay)—-a mere ten days from the date of publication under § 1152.50. As Justice Jackson said in Mullane v. Central Hanover Bank, supra, 339 U.S. at 315, “[i]t would be idle to pre- tend that publication alone as prescribed here, is a reli- able means of acquainting interested varties of the fact that their rights are [at issue].” In Mullane, this Court struck down as affording inadequate notice a state stat- ute providing for “constructive notice” by way of four weeks’ publication in a local newspaper. The Federal Register notice, upon which ICC and the Ninth Circuit relied for purposes of foreclosing all rights putatively enjoyed by Tuolumne County’s agencies and citizens un- der NEPA, NHPA, and the Revised Interstate Commerce Act itself, is for purposes here far less effective notice than the notice by publication disapproved by this Court in Mullane. Indeed, the Director of ICC’s Office of Transportation Analysis explained, with specific refer- ence to this case, that It is axiomatic in the law that notice must be of such nature as reasonably to convey the required informa- tion. See Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314 (1951). This principle applies equally to the administrative process. The notice procedures adopted by the ICC for abandon- ment exemption proceedings are not of such nature, especially as those procedures apply to the environ- mental process, including National Historic Preser- vation Act compliance..... = 41 Memorandum, W.R. Southard (ICC OTA) to D. Shaw (ICC OP), July 31, 1986 (emphasis added) (reprinted in Appendix D to this Petition). 16 There is a certain irony here. The Federal Register Act, 49 Stat. 500 (1935), was adopted to require filing and publication of agency orders and regulations in order to prevent government by secret fiat after this Court’s critique of such disorder in Panama Refining Company v. Ryan, 293 U.S. 388 (1935). See L. Jaffe & N. Nathanson, Administrative Law 63 n.* (3d ed. 1968). The Act was not intended to permit federal agencies to deprive local government agencies or citizens of their federal rights and remedies by converting notice into an inevitable legal fiction. In any event, “when notice is a person’s due, process which is a mere gesture is not due process.” Mullane v. Central Hanover Bank, supra, 339 U.S. at 315. The doctrine of foreclosing rights on the basis of con- structive notice is harsh, and resort to it is reluctant. See Amoco Production Company v. United States, 619 F.2d 1383 (10th Cir. 1980). While ‘constructive notice” in the Federal Register is frequently held valid against a regulated industry ‘on the very plausible assumption that it is the industry’s business to monitor applicable regulation), such notice is not talismanice as applied to the general public. For example, in Allison v. Block, 723 F.2d 631, 634-36 (8th Cir. 1983), and Matzke v. Block, 732 F.2d 799; 802 (10th Cir. 1984), the courts of appeal found similar such “constructive notice” of the avail- ability of federal remedies inadequate. Constructive no- tice in the Federal Register is, as applied here, a legal fiction. As Judge Posner has pointed out, “for more than 200 years we have been told that the proper office of legal! fictions is to prevent, rather than to create, injus- tices.” United States v. Markgraf, 736 F.2d 1179, 1187 (7th Cir. 1984) (dissenting opinion), cert. dismissed per Rule 53, 469 U.S. 1199 (1985), citing 3 Blackstone, Commentaries on the Laws of England 43 (1768). It is not much consolation to tell some part-time park com- missioners, or an interested gas station owner or cafe- 17 teria operator in Tuolumne County, that he or she ought to drive an hour to study the Federal Register every day; again to quote Judge Posner, “it is the kind of response that breeds popular disrespect for law.” 736 F.2d at 1187. II. ICC May Not Use Accelerated Abandonment Proce- dures to Avoid Compliance with Mandatory Environ- mental Review Statutes Such as NEPA and NHPA. Congress has made extensive provision for notice in rail abandonment proceedings. These notice provisions, if fol- lowed, are adequate to alert interested local individuals, groups and agencies, including environmental and preser- vation interests. In particular, 49 U.S.C. § 10904 (e) (3) operates to require at least four months’ pre-notification that an abandonment may be sought. And 49 U.S.C. § 10904(a) (3) requires a rail carrier seeking authoriza- tion to abandon a line to provide personal notice of a proposed abandonment to state officials and to shippers as well as comprehensive local notice to the affected local public. Focussing on the notice due the public, the statute specifically requires the carrier, among other things, to post a copy of a notice of intent in each terminal and station on the portion of line to be abandoned, and to “publish a copy of the notice for 3 consecutive weeks in a newspaper of general circulation in each county in which each ... portion [of line to be abandoned] is located. . . .” 49 U.S.C. § 10904(a) (3)(C) & (D). In sum, Congress provided that ICC rail abandonment proceedings should be heralded by more than an after- the-fact announcement in the Federal Register. Yet that was all that the public, including local agencies, received here. In 1983, ICC, purportedly acting under the authority of 49 U.S.C. § 10505, adopted a regulation, codified at 49 C.F.R. § 1152.50, which eliminated all notice by the carrier other than by mail to the chief executive officer of the state involved. In its place, ICC substituted after- 13 -.. the-fact notification of the abandonment authorization, by publication in the Federal Register. Under legal chal- lerigé by ‘a group of state transportation officials and labor groups, the agency’s so-called “two-year out-of- service” exemption regulation was remanded in Illinois Commerce Commission v. ICC, 787 F.2d 616 (D:-C. Cir. 1986)’ (ICC I). On‘remand, ICC without further notice and ‘comment re-adopted its regulation. The re-adopted regulation was again challenged by two state transporta- tion regulatory agencies and by labor. In addition, three “environmental” groups petitioned for review, noting - that ICC has adopted 49 C.F.R. § 1152. 50 without com- pliance with the National ‘Environmental Policy Act’ (NEPA). In particular, the agency had never prepared an “environmental assessment,” much less an “environ- mental impact statement” as required by NEPA and binding regulations of the Council on Environmental Quality for the regulation. Further, the environmental groups complained that, under § 1152.50, ICC did not independently evaluate the impact of its actions on en- vironmental concerns and historic resources; ** the agency unlawfully “relied” on “intervenors” to raise such con- cerns; ** and the agency allowed its abandonment au- thorizations to become fully effective without any environ- mental or historic resource assessments. ** In orde¥ to sustain its regtilation, the agency agreed, in ‘its Brief and at oral argument, independently to assess the environmental impacts of ‘its actions and automati- eally to stay the effectiveness of abandonments until com-> plianeé was had with NEPA and NHPA. The court of appeals for the District of Columbia held that but’ for these concessions the regulation would have again faced remand, JCC II, 848 F.2d at 1260. The court indicated 42 ICC II, 848 F.2d at 1258 & n.23. 43 Td. at 1258. 44 Td. 848 F.2d at ‘1259-60. ‘19 that even with these concessions, the regulation, may not be sufficient to withstand review in particular. instances absent more from ICC. 848 F.2d at 1260 . (special, cir- cumstances may render regulatory provisions wnreason- able). The court admonished ICC that it could not dele- gate to parties and intervenors its. own responsibility . to investigate and assess the. environmental impacts of pro- posals before it. 7d. at 1258. The proceedings before ICC in the instant case un- equivocally exhibit all the above infirmities .with ICC’s procedures under § 1152.50: there was no evaluation of environmental impacts or impacts on historic .resqurces below, independently by the agency or otherwise,,.and, not even an attempt by. the agency to prepare any sort of environmental or historic resource assessment. The agency relied wholly on “intervenors” to, raise the, issues, but with a twist: The agency failed even to. give a d notice adequate to alert. ‘“fntervenors” , that they had. to raise the issues or risk foreclosure, and, the time. for raising the issues would have been inadequate anyway: ICC admits it cannot exempt itself and rail abandon- ments from NEPA or-NHPA under 49. U.S.C..-§ 30505.°° -Yet NEPA and NHPA require effective notice. . More. spe- cifically, ICC’s proceeding below under -49 G.F;R. $1152.50 violates binding ** regulations - issued , by . the Council on, Environmental, Quality. . 40. C.F.R. -§ 1506,6 calls for facilitation of public involvement (see also Trustees for Alaska, supra,.806 F.2d at 1383) and specifies the minimum notice required. Federal Register notice, standing alone, is. inadequate even for actions, of national significance when they may affect environmental 45 The “environmental” petitioners in JCC JI,did not. seek cer- tiorari. This Court denied certiorari from JCC, JI when sought by the state and labor groups. See 109 S.Ct, 783 (1989). 48 366 ICC at 890 & n.10. 47 F.9., Trustees for Alaska v. Hodel, 806 F.2d 1878, 1382 .(9th Cir. 1986) ; 43 Fed. Reg. 55978 (1978). 20 concerns. 40 C.F.R. § 1506.6(b) (1) requires notice also to potentially interested representative groups, a list of whom each agency is supposed to maintain. Further, each agency is required to notify personally any person who requests to be notified. Finally, for proposed actions of local impact, the agency is given a choice of possible means of affording notice, including newspaper publica- tion and personal notice, but not notice limited to the Federal Register. The notice afforded by ICC in thé proceeding below fell far short of ICC’s obligations under NEPA, violating the binding CEQ regulation in at least two ways. First, although the proposed action was of local impact, the agency violated 40 C.F.R. § 1506.6(b) (1) by failing to afford any notice adequate to reach the county and in- stead by relying upon a notice procedure which was argu- ably inadequate even for a regulation of national scope. 46 Fed. Reg. 18037 (1981) (CEQ expressly declares such notice “a violation of the regulations”). Second, ICC, in the earlier abandonment proceeding involving mileposts 50 to 56.2 in 1981-82, had pledged to notify locally inter- ested parties of any actions affecting the line. The agency of course did not, and this violated 40 C.F.R. § 1506.6 (b) (1). See Northwest Coalition for Alternatives to Pesticides v. Lyng, 844 F.2d 588, 595 (9th Cir. 1988) (agency violates § 1506.6(b) (1) in similar situation). Likewise, the regulations of the ACHP implementing the NHPA require public notice and involvement far beyond what was afforded here. ICC flatly violated re- quirements like 36 C.F.R. § 800.5(b) in its non-notifica- tion below. In short, the Federal Register notice violated the re- quirements of NEPA and NHPA in this particular pro- ceeding and was beyond ICC’s authority. It is the epitome of circularity, and a true “Catch-22,” to hold, as the Ninth Circuit in. effect did below, that an agency can foreclose challenges to its compliance by adopting ac- tetten Ps tA 21 celerated “fast track” procedures which, themselves, vio- late NEPA and NHPA guarantees of public notice. If the Ninth Circuit is correct, then review of inadequate notices is effectively foreclosed, and little is left of due process guarantees and concepts of fundamental fair- ness, at least where federal agencies are concerned. This raises a related point on the Federal Register notice afforded below. The court of appeals for the Dis- trict of Columbia indicated in Jllinois Commerce Commiis- sion v. ICC, 848 F.2d at 1258, that failure independently to evaluate the impact of its actions on environmental concerns, reliance on “intervenors,” and allowance of abandonment authorizations to become effective without a meaningful resolution of environmental and _ historic preservation concerns violated the law, and would be subject to remand. That of course is the customary re- sult when an agency clearly violates NEPA and NHPA as occurred below. E.g., LaFlamme v. FERC, 852 F.2d 389 (9th Cir. 1988) (license suspended pending NEPA compliance); WATCH v. Harris, 603 F.2d 310, 325-26 (2d Cir. 1979) (pending compliance with NHPA). Yet exactly these deficiencies applied to the proceeding at the ICC below. When Tuolumne Park and Recreation Dis- trict and Friends and Sierra Railroad sought corrective action, which they did with all reasonable speed once they ascertained what was happening, the ICC simply refused to do anything and the court of appeals held that it was without jurisdiction. The Ninth Circuit’s failure to re- mand the instant case to the agency in the face of all these deficiencies amounts to a conflict with the D.C. Cir- cuit’s holdings in its second Jilinois Commerce Commis- sion v. ICC decision. Ill. The Ninth Circuit Misapplied This Court’s Decision in ICC v. Brotherhood of Steam Locomotive Engineers. The Ninth Circuit in its decision below also found that its jurisdiction to entertain the petition for review filed by Tuolumne Park and Recreation District and Friends 22 of Sierra Railroad was foreclosed by this Court’s decision in ICC v. Brotherhood of Steam Locomotive Engineers, 482 U.S. 270 (1987). In the latter case, this Court held that parties who did not timely petition for review from final orders in litigated ICC proceedings could not obtain belated judicial review on the basis of agency denial of administrative petitions to reopen, wher those petitions in turn were based solely on “material error” that could have been presented to the agency in the first instance. The Ninth Circuit’s construction of Brotherhood of Steam Locomotive Engineers is clearly in error. First, the holding in Brotherhood applies where the “error” could have been presented to the agency in the first in- stance. Here due to inadequate notice and inadequate ICC procedures (no independent review of environmental impacts, no stay of a decision pending resolution, and so on), there was no meaningful opportunity to approach the agency in the first instance. In extending Brother- hood to this kind of situation, the Ninth Circuit is essen- tially holding that it cannot review agency decisions to refuse any relief even in the face of clear violations of law. Surely this Court never intended to deprive inter- ested parties of at least one reasonably fair shot at assert- ing and defending their rights in federal agency regula- tory proceedings. Surely this Court never intended to open a loophole permitting federal agencies power to evade NEPA and NHPA wholesale without fear of any effective judicial review. Second, ICC’s own regulations do not simply authorize but require reopening here. ICC stated in its Brief in the Ninth Circuit below (ICC Brief at P. 30 n.30), “Con- gress expected for the exemption power [under 49 U.S.C. $ 10505] to be used with after-the-fact review to correct abuses,” citing Conf. Rep. No. 1430, 96th Cong., 2d Sess. at 105 (1980). The D.C. Circuit made the same observa- tion in Illinois Commerce Commission v. ICC, supra, 848 F.2d at 1248-49 n. 2. It is accordingly not surprising that a Se ee eye ——- 23 49 C.F.R. § 1152.50 declares on its fave that a notice of exemption is void ab initio if it is based on false or mis- leading information. The idea behind an abandonment authorization via 49 C.F.R. § 1152.50, is that it will be granted ex parte and expeditiously, but that mistakes will be corrected after the fact by voiding the § 1152.50 authorization. In its filing with the ICC, the abandoning rail carrier stated that the mile of right-of-way in question was not suitable for public use. That is manifestly incorrect. The entire line, including the mile at issue, had previously been determined historic. The railroad knew that; indeed, it had contested that determination by the California His- toric Resources Commission. The Park District was ac- tively negotiating to acquire the line from mileposts 50 to 56.2, and the logical western terminus for excursion use of the line by the Park District was at the historic Standard station at approximately milepost 49.5, right in the middle of the segment in question. The railroad’s declaration was thus misleading in the extreme. The no- tice of exemption under ICC’s own regulation, and under ICC’s representation of the intent of Congress, should be declared by the agency to be null and void, ab initio. IV. ICC Cannot Avoid Compliance with NEPA and NHPA on Harmless Error Grounds. ICC contended below that its failure to comply with NEPA and NHPA was irrelevant, because compliance would not have altered the course of the proceeding. In other words, ICC claimed that it would eventually have allowed the abandonment to become effective, the corridor would inevitably have been lost, and historic re- sources and environmental concerns unquestionably would have been adversely affected. The Ninth Circuit never reached ICC’s “harmless error” argument, because it er- roneously found itself without jurisdiction to reach any substantive issue. While the Park District and Friends view the due process, notice, NEPA and NHPA questions 24 tendered above as of grave national importance in their own right, we also note that ICC’s claim of “harmless error” in this particular case is flatly wrong. First and foremost, ICC’s argument ignores a funda- mental purpose of the procedures and deliberative proc- esses required by NHPA and NEPA. In Robertson v. Methow Valley Citizens Council, 109 S.Ct. 1885, 1845 (1989), this Court stated that compliance with NEPA serves the important informational function, independent of the ultimate cutcome of the process, of giving “the pub- lic the assurance that the agency ‘has indeed considered environmental concerns in its decisionmaking process’. . . . Further, agency compliance “provides a springboard for public comment. .. .” Jd. In any event, Tuolumne Park and Recreation District and Friends of Sierra Railroad desire the line between mileposts 49 and 50 for continued rail use. Congress has provided a mechanism, codified at 49 U.S.C. § 10905, for parties interested in purchasing a line for continued rail use to obtain a stay of an abandonment authorization as well as a period to negotiate a purchase. If negotiations are not fruitful, either party may ask ICC to set the terms and conditions (including amount of compensation) for mandatory transfer for continued rail use. ICC sets that amount at the constitutional minimum value, which in general is the salvage value of track and ties, and the adjusted across-the-fence value of property owned by the railroad in the segment in question in fee. See Chicago and North Western Transp. Co. v. United States, 678 F.2d 665 (7th Cir. 1982) (upholding ICC valuation pro- cedure under § 10905). Had ICC afforded adequate notice, much less otherwise complied with NEPA and the NHPA, the Park District and Friends would have invoked 49 U.S.C. § 10905 to secure this line between mileposts 49 and 50. The Park District, which has independent taxing authority under California law, has the economic wherewithal to pay any reasonable compensation set by ICC under the standards applicable under 49 U.S.C. § 10905. In short, if ICC had complied with the law, and if petitioners here had re- ceived a real opportunity for a hearing, they would have invoked § 10905 and obtained the line under it. This would have served not only the purposes of the Revised Interstate Commerce Act as manifest in § 10905, but also the purposes of the National Historic Preservation Act (because an historically significant line would have been retained), and the purposes of NEPA (because the loss of a line valuable to a public purpose would have been mitigated). The real tragedy of ICC’s viclation of the law in this case is that the errors the agency made were anything but harmless. In the administrative proceedings below, ICC claimed that 49 U.S.C. § 10905 was not available for passenger/ excursion type rail uses, but only for freight rail pur- poses. However, there is no such limitation on § 10905 either in the statute or in its legislative history. To the contrary, Judge Posner explained, after a careful review of the legislative history in Chicago & North Western Transportation Company v. United States, supra, 678 F.2d at 667, that § 10905 was adopted as part of a pack- age to foster preservation of lines for passenger pur- poses. See also Reed v. Meserve, 487 F.2d 646 (1st Cir. 1973) (ICC does not overstep its authority where it con- ditions abandonment to preserve historic rail line for ex- cursion purposes and future use). Since we noted Judge Posner’s decision to the agency, we do not understand ICC to be continuing to assert that § 10905 is unavail- able.** If ICC does another result-driven regression to its earlier and erroneous claim that there is some myth- ical freight-only limitation in § 10905, then it will again be in direct conflict with the leading case interpreting the provision. ‘8In any event, Tuolumne Park District will happily provide freight service to offset some of the costs of maintenance. 26 CONCLUSION ICC’s “footdragging and “papering over” of “defects” in its approach to environmental and public interest issues, and its failure to “deal{] with the substance of the deficiencies” was criticized by Justice Douglas some 14 years ago in Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 328 (1975) (‘SCRAP II). Time and tol- erance have not generated an improvement. Insulating violations of the law from judicial review through elab- oration of legal fictions, as per the Ninth Circuit’s ruling below, will only make the situation worse, in the ICC generally and by extension of the dis-enforcement of NEPA, NHPA, and notice rights, in ICC’s sister agencies as well. Further, in this particular case, absent certio- rari, an historic and publicly useful line apparently will be irretrievably lost. This petition for certiorari to the court of appeals for the Ninth Circuit should accordingly be granted. Respectfully submitted, CHARLES H. MONTANGE (Counsel of Record) 1400 - 16th Street, N.W., #301 Washington, D.C. 20036 (202) 797-5427 Attorney for Petitioners Tuolumne Park and Recreation District and Friends of Sierra Railroad, Inc. THOMAS MAROVICH 24 S. Washington Street Sonora, California 95370 (209) 532-6937 Attorney for Petitioner Tuolumne Park and Recreation October 1989 District APPENDICES la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 87-7407 ICC No. AB-239X FRIENDS OF SIERRA RAILROAD, INC. and TUOLUMNE PARK AND RECREATION DISTRICT, Petitioners, Vv. INTERSTATE COMMERCE COMMISSION ; UNITED STATES OF AMERICA, Respondents. Appeal from a Decision of the Interstate Commerce Commission Argued and Submitted April 11, 1989—San Francisco, California Filed July 31, 1989 Before Herbert Y. C. Choy, J. Clifford Wallace and Charles Wiggins, Circuit Judges. Opinion by Judge Wallace 2a OPINION WALLACE, Circuit Judge: Friends of Sierra Railroad, Inc. (Friends) petitions for review of the refusal of the Interstate Commerce Commission (ICC) to reopen a class exemption granted to the Sierra Railroad (Sierra) which permitted Sierra to abandon a one-mile segment of its rail line.’ Friends argued that the ICC granted the exemption through an invalid procedure, and that even under that procedure Sierra’s exemption was void. Friends sought through reopening first to require the ECC to conduct an environ- mental and historic preservation review of the abandon- ment, and second to secure an option to purchase the right-of-way of the abandoned segment. A petition was timely filed. Because we lack jurisdiction to entertain this petition, we dismiss. I Under the Staggers Act, a rail carrier may not aban- don a rail line without first obtaining permission from the ICC. 49 U.S.C. § 10903 et seg. The Staggers Act contains a comprehensive and involved scheme of stand- ards and procedures for abandoning rail lines. See id As an exception to the otherwise burdensome procedures required by that Act to abandon a line, 49 U.S.C. § 10505 directs the ICC to exempt a transaction or class of trans- actions from regulation if it finds (1) its regulation is not necessary to carry out the rail transportation policy enunciated in 49 U.S.C. §1010la and (2) either the transaction is of limited scope or regulation is unneces- sary to protect shippers from abuse of market power. 49 U.S.C. § 10505. Pursuant to this statute, the ICC estab- lished exempt abandonment procedures for rail lines out of service for two years or longer. See 49 C.F.R. § 1152.50 (1984); Exemption of Out of Service Rail Lines, 366 1.C.C. 885 (1983). 3a On November 20, 1984, Sierra filed a notice of ex- emption pursuant to section 10505 and 49 C.F.R. § 1152.50 (1984) to abandon its one-mile rail line and underlying right-of-way between mileposts 49 and 50 in Tuolumne County, California. Sierra provided the California De- partment of Transportation with both advance notice of its intention to file a notice of exemption and an environ- mental notice pursuant to 49 C.F.R. § 1105.11 (1984). On January 2, 1985, the ICC published a notice of ex- emption in the Federal Register. 50 Fed. Reg. 188 (1985). This notice stated that the exemption would become effective February 1, 1985, unless stayed pending reconsideration. The notice advised that petitions to stay had to be filed by February 11, 1985, and that petitions for reconsideration had to be filed by February 21, 1985. At the same time, the ICC sent copies of the notice to the Governor of California and numerous California state agencies: the State Resources Agency (notices went to the Assistant Secretary, the State Historical Preservation Office, the Department of Parks & Recreation, and the Department of Parks & Recreation Planning Division) ; the California Coastal Commission; the Publie Utilities Commission (notices went to the Commission and to the Chief of the Railroad Operations & Safety Branch); the Department of Fish & Game; the Office of Planning & Research; and the Rail Planning Branch of the Depart- ment of Transportation. On January 21, 1985, the California Public Utilities Commission mailed copies of the notice to several potentially interested persons. No objections were filed, and the exemption became effective as scheduled on February 1, 1985. On January 28, 1986, over a year after the notice of exemption was published, Sierra began to salvage track and material on the line. As a result of the salvage op- eration, Friends became aware of the abandonment and promptly contacted the Advisory Council on Historic Preservation, which in turn informed the ICC’s Section 4a Energy & Environment (ICC Environmental Section) that the California State Historical Resources Commis- sion had previously determined that the line was eligible for inclusion in the National Register of Historic Places (National Register), and that the abandonment exemp- tion had apparently been granted without review under section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. § 470(b). The ICC Environmental Section responded that it was unaware of the line’s eligibility for the National Register and contacted Sierra “to encourage voluntary compliance with the historic preservation process.” On May 6, 1986, Sierra offered to sell the line to the California Depart- ment of Parks & Recreation. When this department de- clined this offer, Sierra then offered and sold the line to Louisiana-Pacific Corporation. The deed of sale was recorded on June 18, 1986. Also on June 18, i986, Friends filed a petition asking the ICC to reopen the proceeding. The ICC denied Friends’s motion to reopen on July 20, 1987. Friends’s “Motion to Correct Decision,” which the ICC treated as a petition for reconsideration, was denied on January 26, 1988. Friends filed its petition for review in this court pur- suant to 28 U.S.C. § 2344 on September 2, 1987, within the 60-day period after the ICC’s July 20, 1987, denial of the petition to reopen. The petition in our court was held in abeyance pending resolution of Friends’s petition to the ICC for reconsideration. II As a threshold matter, we must determine whether we have jurisdiction over this case. The Supreme Court re- cently spoke to this question in ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987) (Locomotive Engineers). Under 28 U.S.C. § 2844, a party seeking 5a to challenge a final order of the ICC must file a petition for review within 60 days after its entry. Clearly, Friend’s petition is not timely for purposes of reviewing the original exemption authority, which was administra- tively final on February 1, 1985. See id. The time limit in 28 U.S.C. § 2344 is jurisdictional, and we have held that a subsequent unsuccessful petition to an agency to reopen cannot create a new final order giving our court jurisdiction over an untimely petition for review. Cali- fornia Association of the Physically Handicapped, Inc. v. FCC, 833 F.2d 1333, 1334 (9th Cir. 1987) ; Provisioners Frozen Express, Inc. v. ICC, 5386 F.2d 1303, 1305 (9th Cir. 1976). Thus, we have no jurisdiction to review the original order. Friends contends that, although we lack jurisdiction to review the original order, we nonetheless may review the ICC’s denial of Friends’s petition to reopen. The ICC’s authority to reopen its prior actions arises from 49 U.S.C. § 10327(g). Locomotive Engineers, 482 U.S. at 277-78. 49 U.S.C. § 10327(g) provides in part: (g) (i) The Commission may, at any time on its own initiative because of material error, new evi- dence, or substantially changed circumstances— (A) reopen a proceeding; (B) grant rehearing, reargument, or recon- sideration of an action of the Commission; and (C) change an action of the Commission. An interested party may petition to reopen and re- consider an action of the Commission under this paragraph under regulations of the Commission. When the Commission refuses to reopen a proceeding, we review only the lawfulness of the refusal. Locomotive Engineers, 482 U.S. at 278. Our oversight is very lim- ited. We may review the refusal to reopen only “[iJf 6a the petition that was denied sought reopening on the basis of new evidence or changed circumstances . . . otherwise, the agency’s refusal to go back over ploughed ground is nonreviewable.” Jd. at 284. We cannot review such a re- fusal to reopen where the petition alleges only “material error.” In such cases, an appeal from the denial of the petition “places before the courts precisely the same sub- stance that could have been brought there by appeal from the original order.” Jd. at 279. The Court expressly pro- hibited such review even though it would serve the pur- pose of extending indefinitely the time for judicial re- view of “seriously mistaken agency orders.” Jd. at 280 (emphasis in original). Prohibiting review of denial of petitions to reopen alleging only material error is juris- dictional, not merely prudential, and is implicit in the Hobbs Act 60-day jurisdictional time limit on judicial re- view of ICC decisions. See id. at 281-82. In evaluating reviewability of such petitions, we need not and may not examine the reasoning expressed in an ICC decision. Although here, as in Locomotive Engineers, the ICC decision refusing to reopen discussed the merits of the petition at length, we determine reviewability solely by examining the bases advanced in the petition to reopen. See id. at 280-81. The order denving Friends’s petition is subject to review only if the petition sought reopening on the basis of “new evidence” or “substan- tially changed circumstances,” regardless of the analysis contained in the ICC decision. We now determine whether Friends’s petition to reopen qualifies to provide us juris- diction. A. We first consider an argument in Friends’s petition to reopen which involves the new evidence exception. It con- tends that the notice of exemption contained false or mis- leading information, and was thus void ab initio under 49 C.F.R. § 1152.50/d) (8) (1984). For purposes of ob- taining our review, this argument is inherently self- 7a defeating. Friends asserts tha: Sierra’s exemption notice failed to disclose that the line was eligible for the Na- tional Register under NHPA section 106 and that the State of California had an option to purchase the line. In other words, Friends is arguing that Sierra’s exemp- tion notice omitted evidence available at the time. Friends does not suggest that this is newly discovered evidence; the essence of its argument is that the evidence was al- ready available. Although Friends’s petition to reopen may have raised this evidence for the first time in these proceedings, newly raised evidence is not the same as new evidence. See Union Mechling Corp. v. United States, 566 F.2d 722, 726-27 (D.C. Cir. 1977) ; Platnick Brothers, Inc. v. Norfolk & Western Railway Co., 367 1.C.C. 782, 785 (1983) (Platnick Brothers); see generally United States v. Northern Pacific Railway Co., 288 U.S. 490, 493-94 (1933). While section 10327(g) does not define new evidence, “in an administratively final case it is only fair that ‘new evidence’ be in fact new. Thus, evidence that was reasonably available to the parties before the proceeding is not new evidence for purposes of the stat- ute.” Platnick Brothers, 367 I.C.C. at 785 (emphasis in original). Friends’s petition in this argument raises “pre- cisely the same substance that could have been brought by appeal from the original order,” Locomotive Engineers, 482 U.S. at 279, and thus is not reviewable. Friends argues, however, that the rule of Locomotive Engineers is premised on the assumption that the party bringing the petition to reopen has been involved in the proceeding since the beginning. Friends contends that while Locomotive Engineers may make sense as applied to such a party, its rationale would not apply to a party unable to participate until the time of its petition to re- open. Friends argues that the notice provisions in the TCC exempt abandonment procedure were inadequate, and thus deprived Friends of the opportunity to present its evidence on direct appeal of the original order, and in- 8a directly threatens to prevent us from reviewing this as- pect of Friends’s appeal of the denial of the petition to reopen. To support this argument, Friends points to the explanation in Locomotive Engineers that review of denial to reopen for new evidence or substantially changed circumstances is available because otherwise the petitioner might be “deprived of all opportunity for judicial con- sideration . . . of facts which, through no fault of his own, the original proceeding did not contain.” Jd. at 279. This argument is unavailing because as a matter of law Friends had adequate notice of the original proceed- ing before the ICC. Complying with regulatory require- ments, Sierra provided the required notice to the Califor- nia Department of Transportation pursuant.to 49 C.F.R. § 1105.11 (1984). The ICC published a timely notice of exemption in the Federal Register, see 50 Fed. Reg. 188 (1985), and sent copies of the notice to the Governor of California and numerous state agencies, including the State Historic Preservation office. Friends complains that the Federal Register is unavail- able in Jamestown, California, where Friends is located. Friends does not dispute that it is available within an hour’s drive. But our decision that notice was adequate does not hinge on the driving distance between copies of the Federal Register and the headquarters of potentially interested parties to agency proceedings. Publication in the Federal Register is legally sufficient notice to all interested or affected persons regardless of actual knowledge or hardship resulting from ignorance. See 44 U.S.C. § 1507; Federal Crop Insurance Corp. -v. Merrill, 332 U.S. 380, 384-85 (1947); Government of Guam v. United States, 744 F.2d 699, 701 (9th Cir. 1984) ; Bennett v. Director, Office of Workers’ Compen- sation Programs, 717 F.2d 1167, 1169 (7th Cir. 1988) ; North Alabama Express, Inc. ». United States, 585 F.2d 783, 787 n.2 (5th Cir. 1978) (North Alabama Express). ee 9a The contents of the Federal Register notice plainly suf- ficed to inform any reader that Sierra wished to abandon the right-of-way. 50 Fed. Reg. 188 (1985). As the Fifth Circuit explained, “an interested member of the public should be able to read the published notice of [an] appli- cation and understand the essential attributes of that application. Others who see the notice should not have to guess the applicant’s true intent.” North Alabama Ex- press, 585 F.2d at 789 (substance of trucking company’s published notice in Federal Register held inadequate to alert interested parties to true nature of application). The notice as published should apprise a reasonable per- son of the issues involved in the proceeding. /d. at 786- 87. The notice hcre met this standard. This notice issue is distinct from the question whether, for purposes of 49 C.F.R. § 1152.50(d) (3), the notice contained false or misleading information and was thus void ab initio. Whether or not the exemption notice con- tained such information, it was plainly sufficient to pro- vide notice to all interested persons of the abandonment proceeding. Therefore, we hold that this basis of Friends’s petition to reopen, the argument that the notice of ex- emption contained false or misleading information and was thus void ab initio under 49 C.F.R. § 1152.50(d) (3), does not present a reviewable issue. B. Friends’s petition next argued that the ICC’s exempt abandonment procedure had subsequently been invali- dated by the Court of Appeals for the District of Colum- bia in Illinois Commerce Commission v. ICC, 787 F.2d 616, 637 (D.C. Cir. 1986) (Jilinois Commerce 7), re- manding and vacating, Exemption of Out of Service Rail Lines, 366 I1.C.C. 885 (1983). This argument is based not on changed circumstances or new evidence, but rather, on material error, and therefore does not present a re- viewable issue under Locomotive Engineers. See Platnick 10a Brothers, 367 1.C.C. at 787. In Platnick Brothers, the ICC considered a petition to reopen based in part on the argument that the ICC’s market dominance guidelines had been invalidated by the Fifth Circuit. Jd. at 783, 787. Although the petitioner characterized the circuit court’s invalidation of ICC rules as a changed circum- stance, the ICC explained that this ground fer reopening was material error, not changed circumstances, because the argument was that its decision had been based on an invalid rule. 7d. at 787. Here, similarly. Friends argues that the ICC’s original grant of an abandonment exemp- tion for Sierra was based on an invalid rule, the exempt abandonment procedure invalidated by the District of Columbia Circuit in Jllinois Commerce I. Friends’s ground for reopening is material error and thus unre- viewable. See id.; see also Western Pacific Stockholders’ Protective Committee v. ICC, 848 F.2d 1301, 1303 (D.C. Cir. 1988) (Western Pacific) (challenge to ICC valua- tion methodology alleged only material error and was therefore unreviewable); Central States Enterprises v. ICC, 780 F.2d 664, 672-73 (7th Cir. 1983) (Central States) (petition to reopen alleges material error where ICC misapplied and misinterpreted statutory provision). As previously explained, Friends had adequate notice of the original proceeding. Friends could have challenged the legal validity of the abandonment procedure at that time. Cf. Pittston Coal Group v. Sebben, 109 S. Ct. 414, 424-25 (1988) ‘where administrative procedure judi- cially invalidated, parties who sought direct judicial re- view of adverse agency decisions under invalid procedure could obtain readjudication of their cases; those who failed to seek direct judicial review were barred). The argument that this procedure is invalid “places before [us] precisely the same substance that could have been brought [here] by appeal from the original order.” Loco- motive Engineers, 482 U.S. at 279. We hold, therefore, that this ground of Friends’s petition to reopen does not present a reviewable issue on appeal. lla C. The same principles which we applied in determining the reviewabilitv of the denial of Friends’s petition to reopen apply to the reviewability of the denial of Friends’s petition for reconsideration. See Locomotive Engineers, 482 U.S. at 280-81, 285-86. If the petition is treated as a genuine “Motion to Correct Decision” as it was titled, that is, as seeking no more than correction of errors in the ICC’s decision, “then the denial is unappealable be- | cause [Friends] was not ‘aggrieved’ by it within the ) meaning of the Hobbs Act [28 U.S.C. § 2844].” Id. at 285. = To the extent that this motion was a petition for recon- : sideration, as the ICC treated it, it alleged only ma- terial error, as the title “Motion to Correct Decision” suggests. Friends’s first ground for reconsideration was ; to challenge the ICC’s statement that the California State Historic Preservation Office had received notice of the ICC’s January 2, 1985, Federal Register notice. This assertion fails to present new evidence or substantially changed circumstances. Friends’s second ground was that Friends sought relief under 49 U.S.C. § 10905, and there- fore the ICC erred in treating Friends’s petition solely under 49 U.S.C. § 10906. This ground, like the first, rests on no more than material error. See Western Pa- cific, 848 F.2d at 1303 (petition to reopen rests on ma- terial error claim and is thus unreviewable, where basis is challenge to ICC’s choice of stock valuation methodol- ogy) ; Central States, 780 F.2d at 672-73 (petition to re- open alleges materia! error where ICC misapplied and misinterpreted statutory provision); see also John D. Copanos & Sons, Inc. v. FDA, 854 F.2d 510, 527 (D.C. Cir. 1988) (petition unreviewable to extent that it elab- orated on arguments already in record), quoting Locomo- tive Engineers, 482 U.S. at 279-80. Finally, Friends sought reconsideration on the ground that the ICC, erred in asserting that Friends and the State Historic Preser- SS. es 12a vation Office had actual notice and slept on their rights. This argument placed no new evidence before the ICC, but rather suggested material error in the ICC’s inter- pretation of evidence it had already considered. There- fore, there is nothing for us to review in the ICC’s denial of the petition for reconsideration. Friends’s petition for review presents no issue review- able by this court. We therefore dismiss the petition for want of appellate jurisdiction. DISMISSED. OFFICE OF THE CLERK UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NOTICE OF ENTRY OF JUDGMENT Judgment was entered in this case as of the file date on the attached decision of the Court. 13a APPENDIX B [Service Date Jan. 26, 1988] INTERSTATE COMMERCE COMMISSION DECISION Docket No. AB-239X S. R. INVESTORS, LTD., DOING BUSINESS AS SIERRA RAILROAD COMPANY—ABANDON MENT—IN TUOLUMNE COUNTY, CA Decided: January 20, 1988 On August 13, 1987, Friends of the Sierra Railroad Company, Inc. (Friends or petitioner) filed a “Motion to Correct”’ the Commission’s prior decision, served July 20, 1987, in this proceeding (the July 20th decision).' Peti- tioner seeks substantive changes to an administratively final action of the Commission; therefore, its pleading should have been filed as a petition to reopen and recon- 10On September 2, 1987, Friends appealed the Commission’s July 20th Decision to the United States Court of Appeals for the Ninth Circuit. Friends of Sierra Railroad, Inc., and Tuolumne Park and Recreation District v. Interstate Commerce Commission and United States of America, No. 87-7407 (Ninth Cir., filed September 2, 1987). l4a sider the July 20th decision.? As discussed below, we have decided to accept Friends’ pleading and we will con- sider it as a petition to reopen. Louisiana-Pacific Cor- poration (LPC) replied to Friends’ petition. BACKGROUND On November 20, 1984, S.R. Investors, Ltd., d/b/a/ Sierra Railroad Company (Sierra) filed a notice of ex- emption to abandon its 1-mile line of railroad between milepost 49.0 and milepost 50.0 in Tuolumne County, CA.* The California Department of Transportation (Caltrans) received both an advance notice of Sierra’s intent to file the notice of exemption and an environmental notice. On January 2, 1985, the Commission published a notice of exemption in the Federal Register (50 Fed. Reg. 188), and invited interested persons to address environmental, energy, and public use concerns. Twelve California agen- cies received copies of the Commission’s notice of exemp- tion,t and the California Public Utilities Commission 2 Under 49 CFR 1115.3(a), a discretionary appeal is permitted when it is related to an action of the entire Commission in the first instance, and must be designated as a “petition to reopen.” 3Sierra used the class exemption procedures at 49 CFR 1152, Subpart F, Exempt Abandonments and Discontinuances of Track- age Rights (49 CFR 1152.50). Those rules, which exempt carriers from formal requirements under 49 U.S.C. 10903 for abandonment or discontinuance of lines that have moved no local traffic for at least two years, were adopted in Exemption of Out of Service Rail Lines, 366 I.C.C. 885 (1983). (The proceeding was remanded for further consideration in Illinois Commerce Commission v. ICC, 787 F.2d 616-(D.C. Gir. 1986), and the rules were reinstated in Exemp- tion of Out of Service Rail Lines, 2 1.C.C.2d 146 (1986).) 4 Governor; State Resources Agency (three notices: Ass’t. to the Secretary, Planning Div., and Dept. of Parks and Rec.) ; California Publ. Util. Comm. (two notices); California Coastal Comm.; Dept. of Fish & Game, Non-game Wildlife Coord.; State Historical Pres- ervation Office (SHPO); Office of Planning Research; and Rail Planning Branch. See July 20th decision, at 8, fn. 19. Si Ae EN DNS ben 15a (PUC) mailed copies to potentially interested persons. There was no opposition to the exemption notice, and the exemption became effective on February 1, 1985. On February 21, 1985, Pacific Gas and Electric Com- pany filed a petition for reconsideration seeking a public use condition to secure an easement to transmit electricity along the right-of-way. However, Pacific Gas later with- drew its petition and on October 4, 1985, a decision dis- missing its petition was served. One year after the exemption notice was published, Sierra began to saivage track and material on the right- of-way. Friends then contacted the Advisory Council on Historic Preservation (ACHP) and the ACHP, in turn, notified the Commission’s Section of Energy and Environ- ment (SEE) that the California State Historical Re- sources Commission had previously determined that the involved line was eligible for inclusion in the National Register of Historic Places (NRHP). ACHP also in- formed SEE that the abandonment exemption apparently was granted without undertaking review under 16 U.S.C. 470(f) (“section 106 review’) of the National Historic Preservation Act (NHPA). SEE notified ACHP that it was unaware of the line’s eligibility status, but contacted Sierra “to encourage voluntary compliance with the his- toric preservation process.” On May 6, 1986, Sierra extended to the California De- partment of Parks and Recreation (CAP&R) the oppor- tunity to purchase the abandoned right-of-way. After CAP&R declined to exercise its right to purchase, Sierra then offered to sell the property to LPC, the principal shipper of the line. A deed of sale to LPC was recorded on June 18, 1986. The notice of exemption was in effect for over a year, when, on June 18, 1986, Friends filed a petition to reopen this proceeding. It asked the Commission to: (1) revoke the exemption; (2) reassert its jurisdiction; (3) find that 16a Sierra’s use of the class exemption procedures at 49 CFR 1152.50 was improper in this case; and (4) conduct an abandonment proceeding in order to: (a) give Friends an opportunity to request a public use condition under 49 U.S.C. 10906, or an interim trail use condition under 16 U.S.C. 1247(d); and (b) comply with NHPA by afford- ing a section 106 review. By decision served July 20, 1987, the Commission de- nied reopening because it determined that it lacked juris- diction to grant the relief requested.° The Commission concluded that it was impossible to return to the status quo ante, since the line has been abandoned and the right-of- way sold. We do not alter that finding here and, based on the evidence presented, once more deny reopening. PRELIMINARY MATTERS We will first address LPC’s contention that we reject Friends’ “Motion to Correct Decision” because the Com- mission’s rules of practice do not provide for such re- lief. According to LPC, a petition to reopen is the more appropriate remedy available to Friends, since it seeks to correct “apparent mistakes” in the July 20th decision. LPC argues, however, that under 49 CFR 1115.4, a peti- tion to reopen an administratively final action of the Commission may be filed only in certain circumstances. It argues that Friends has not met any of the criteria for reopening, as set forth under 49 CFR 1115.3(b) (1)-(3) and 49 CFR 1115.3(c), and requests that reopening be denied. It maintains that the requested corrections to the July 20th decision do not substantially affect the correct- ness of the Commission’s decision and are merely an at- tempt to relitigate issues already decided. We agree with LPC that our rules of practice do not permit interested parties to file “motions to correct de- —s 5 Nevertheless, we reviewed on the merits all of Friends’ conten- tions and found them unpersuasive. 17a cisions.” The relief Friends’ seeks can only be obtained by filing a petition to reopen under section 1115.4, pur- suant to the requirements of section 1115.3(c) and (d). Although Friends has not styled its pleading as a peti- tion for reconsideration that is, in fact, what the motion is, and we will accept it as such. LPC’s motion to strike petitioners’ motion will be denied. We will consider Friends’ motion under the criteria governing petitions for reconsideration. As discussed below, LPC will not be prejudiced in this regard. LPC also moves that we strike the documents appended to petitioners’ motion or, in the alternative, allow it an opportunity for rejoinder. These materials (a letter with 14 attachments *) seek to buttress petitioners’ earlier ar- gument that it did not receive notice of the exemption and that the Commission knew of the line’s historical signifi- cance. The Commission’s appellate procedures address specifically the introduction of new evidence at the appel- late stage of a proceeding. 49 CFR 1115.3(c). Our regu- lations require that when a party seeks to introduce new evidence it must explain why that evidence was not pre- viously adduced. Friends did not respond to LPC’s motion to strike and has not shown any materially changed circumstances that would justify admission of the evidence attached to its motion. The evidence it now seeks to introduce was clearly available at the time Friends submitted its initial statement. Petitioner has not explained why it did not submit this evidence with that statement. The rationale underlying our rule governing the intro- duction of new evidence on appeal is one of fairness. A party should not be able to withhold available evidence until after it has obtained a result not to its liking, and then introduce that evidence on appeal, to the surprise of the other parties in the proceeding. Because Friends 6 A brief description of the enclosures appears in Appendix A. 18a has offered no adequate explanation of why it did not earlier introduce the evidence appended to its motion, we will grant LPC’s motion’ and strike the challenged ma- terial.® DISCUSSION AND CONCLUSIONS Friends’ initial petition to reopen was not filed until June 1986, even though Sierra’s notice of exemption was published in January 1985 and became effective on Feb- ruary 1, 1985 because no objections to the exemption notice were filed within the time limits provided by 49 CFR 1152.50(d) (3). Indeed, by the time Friends filed its first pleading at the Commission, abandonment al- 7 We have reviewed the material in any event and find that it does not support Friends’ contentions. Friends argues that the corre- spondence it has supplied shows that the Commission knew or should have known that the railroad was judged to be historically significant. Friends submits this evidence to dispute the Commis- sion’s contention that Friends slept on its rights by failing to notify the Commission in the exemption proceeding of its interest or its position. Friends also maintains that Commission staff had promised to advise it of any change in the status of the Sierra Railroad in a letter dated September 16, 1981. The correspondence to which Friends refers was filed in connec- tion with our earlier proceedings involving Sierra, Finance Docket No. 29505 and Finance Docket No. 29506. The Commission main- tains its files by docket number and is dependent on that system for organizing the voluminous material submitted to it. The mate- rial was not filed in Docket No. AB-239X, and the Commission de- cided this case on the record made in this proceeding. To charge the Commission with knowledge in each case involving a particular carrier with matters outside that case because they were before the agency at one time would be an unrealistic and impossible burden. Moreover, the Commission’s commitment in the September 16, 1981 letter was an assurance that Friends had been placed on the service list in Finance Docket No. 29506, and did not entitle Friends to rely on the Commission to provide it notice of “any change in status of the SRR line.” 8 Since we are striking these materials, LPC’s motion for an opportunity to file a rejoinder is moot and will not further be considered. 19a ready had been consummated, the tangible property had been salvaged, and the right-of-way had been sold. We indicated in our prior decision, (at pp. 4-5, 10-11) that in these circumstances we lack authority to grant the relief Friends has requested, and found strong equitable reasons for not reopening this proceeding. Nothing Friends has offered following our July decision mandates a different result. The discussion of this point in our prior decision re- quires some clarification here. As we said there, the Commission generally loses jurisdiction over an abandon- ment when it is consummated absent a showing of fraud or ministerial error. We want to make clear, however, that if a timely administrative petition is outstanding (or a timely petition for judicial review is pending in court), consummation does not divest us (or the reviewing court) of jurisdiction to consider the pending ~-issues and grant any relief that might be necessary. See Busboom Grain Co. v. ICC, 830 F.2d 74 (7th Cir. 1987); 49 U.S.C. 10327 (g). Moreover, section 10505 gives the agency the explicit power to revoke the authority the Commission confers under that provision. Section 10505(d) states that: (d) the Commission may revoke an exemption, to the extent it specifies, when it finds that application of a provision of this subtitle to the person, class or transaction is necessary to carry out the transporta- tion policy of section 10101la of this title. However, in deciding whether to exercise this authority we must balance concerns of administrative finality, re- pose and detrimental reliance with whatever factors favor reopening. Here insufficient grounds to justify reopening have been shown. In the notice of exemption issued in ® No evidence exists in this proceeding that the exemption was obtained based on fraudulent or misleading representations by the petitioner or that the exemption was unlawfully granted. 20a this proceeding on January 2, 1986, the Commission in- vited petitions to stay the exemption contained in the no- tice (due 10 days after publication of the notice) and invited petitions to revoke that exemption to be filed within 20 days of the publication of the notice of exemp- tion. Had a petition to revoke been timely filed, and had petitioners nevertheless consummated abandonment, the abandonment would have been subject to revocation de- spite consummation. Defendant would have had notice of the filing of the petitions to revoke and would have consummated at the risk that the exemption would be revoked. In this case, Friends and the State agencies slept on their rights. In these circumstances the parties’ expecta- tions in acting on the Commission’s order should be ac- knowledged and upheld. If rail carriers and shippers are unable to rely upon a Commission decision over a year after it has become final and effective (with no pending petitions for judicial review or stays of effectiveness), there would be no end to the administrative process and no certainty in administrative decisionmaking. At issue in this proceeding is whether our prior de- cision contains material error warranting reopening.’® As discussed infra, petitioner seeks a determination that our prior decision contains several mistakes which should be corrected. Its arguments are based primarily on whether it or the State Historic Preservation Officer (SHPO) received adequate notice, and whether its pro- posal to use the right-of-way for recreation and rail ex- 10 Under 49 CFR 1115.3(b), a petition to reopen will be granted only upon a showing of one or more of the following points: (1) the prior action (all categories) will be affected materially because of new evidence or changed circumstances; (2) the prior action was taken by a division in the first instance or by a division in an appellant capacity, and involves a matter of general transportation importance; or (3) the prior action was taken by the entire Com- mission in the first instance, and involves material error. 2la cursion purposes properly fell within the confines of sec- tion 10905 or section 10906. Although these issues were properly resolved in the prior decision, we will give fur- ther consideration to them here. Upon consideration of the evidence presented, we conclude that Friends has not demonstrated that the desired corrections are war- ranted. 1. Friends’ notice argument is without merit. Peti- tioner requests that we delete from page one, second para- graph, lines 12-13 of our July decision the statement that “the State Historical Preservation Office (SHPO)” received a copy of the Commission’s January 2, 1985, novice of exemption. It strongly believes that SHPO did not receive notice of the abandonment. LPC replies that notice of the exemption was published in the Federal Reg- ister and that California state agencies were served on several occasions. As we noted in our prior decision, rail line abandon- ments are subject to the National Environmental Policy Act (NEPA) and NHPA. Sierra served on the Cali- fornia Department of Transportation a notice inviting interested parties to address environmental issues." Al- though the railroad did not file an environmental report (49 CFR 1105.7),’ the Commission served Sierra’s en- vironmental notice on a number of state environmental agencies, including SHPO. See July 20th decision at 1, fn. 4. The Commission also published the notice of ex- 11 Under rule 1105.11, a carrier is required to serve an environ- mental notice on a single designated state agency inviting inter- ested persons to comment on environmental! issues. 12 We determined that Sierra’s failure to file an environmental report under rule 1105.7 may have been “because the rule, on its face, applies to applicants—a technical term that need not be read to include exemptions.” See July 20th decision, at 10, fn. 22. Our decision made clear that an environmental report will be required in abandonment exemption proceedings in the future. July 20th de- cision, at 10. 22a emption in the Federal Register on January 2, 1985."* It is difficult to conceive, therefore, how Friends could argue that SHPO never received notice of the abandonment ex- emption. Such statements are totally inconsistent with the evidence. Petitioner, therefore, has not shown just cause to support its requested correction on page one. Nor would it be appropriate for us to delete our state- ment that “We also emphasize that both the California SHPO and Friends had actual notice of Sierra’s exemp- tion but that Friends, the SHPO, and other California agencies all slept on their rights” at page 10 paragraph five, last sentence, as petitioner requests. Friends argues that there is no evidence in the record to support the con- clusion that Friends or SHPO had actual notice, or that they slept on their rights. LPC responds that Friends cannot impose on Sierra the responsibility to give all potential litigants direct no- tice of its intent to abandon. It maintains that Sierra complied with all notice requirements and that any argu- ments to the contrary were properly considered in the prior decision. As LPC states, Sierra was under no obligation specifi- cally to inform Friends or other potential litigants of its intention to file an exemption application. That is the very reason our regulations require that we publish a notice of exemption in the Federal Register. Publication in the Federal Register ensures that all interested par- ties are informed of a railroad’s intentions. In this case an accurate notice of exemption was published. Moreover, as described above, a considerable number of California agencies were served with actual copies of the Commis- sion’s January 2, 1985 notice of exemption. Thus, state agencies that received copies of the notice of exemption 183 A copy of the service list attached to the served decision indi- cates that SHPO was served. See Appendix B. The California SHPO has not appeared in this proceeding. : 3 : 28a clearly had—but failed to use—an opportunity to par- ticipate in this proceeding in a timely manner. In sum, SHPO received actual notice of the abandon- ment exemption. Friends did not. Petitioner was, how- ever, afforded constructive notice by publication of the notice of exemption in the Federal Register." The Com- mission’s January 2, 1985, notice of exemption was, therefore, binding on all who had an interest in the abandonment, regardless of actual notice or of the hard- ship resulting from innocent ignorance. Friends’ argu- ments to the contrary are without merit. Although we determine that Friends received construc- tive and not actual notice of the abandonment exemption, the distinction is immaterial, especially when there was no statutory obligation to give Friends actual notice. Nor is this a substantive change to warrant reopening. Thus, our finding that Friends and SHPO received adequate no- tice of the abandonment exemption was correct. 2. Friends’ proposal properly fell within the provisions of section 10906. Petitioner contends that, if this pro- ceeding were reopened, it would definitely invoke section 10905 and not section 10906, since it seeks to use the right-of-way for rail purposes. It requests, therefore, that we delete the expression “Friends’ proposal is not a section 10905 one but, instead, falls under section 10906.” at page 5, second paragraph, lines 10-11. LPC argues that, since this issue was never reached, it need not be corrected. It submits that any arguments regarding what Friends might have done had the pro- ceeding been reopened is irrelevant to this proceeding. LPC further argues that the Commission correctly found that the relief petitioner sought was an impossibility. It 14 Publication in the Federal Register means constructive notice to all who may be affected. See K. Davis, Administrative Law Treatise, Vol. 1, Sec. 610, page 398 (1958); and Federal Crop Ins. Corp. Vv. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). 24a contends that the determination cf whether Friends’ pro- posal falls within section 10905 or section 10906 is within the Commission’s discretion, and how an agency evaluates a party’s position is determined by its expertise, juris- diction and its interpretation of its statutes. Friends sought reopening in order to use the right-of- way for recreation and rail excursion purposes. This proposal clearly falis outside of section 10905. Section 10905 requires that the offeror demonstrate that the offer is one for continued freight service. Friends, on the other hand, seeks to use the right-of-way, not the line itself, for recreational trail use and rail ex- cursion purposes. Such use clearly falls within section 10906 or the Trails Act, not section 10905. See Rail Abandonments—Use of Rights-Of-Way As Trails, 2 I.C.C.2d 591, 593-98 (1987). Petitioner also appears to suggest that, because Sierra held the right-of-way pursuant to a railroad easement, the right-of-way would have been valued at zero for pur-_ poses of compulsory sale under section 10905." This ar- gument is irrelevant since this is not a section 10905 case and Friends long ago lost the opportunity to invoke the provisions of section 10905.’* After the notice of ex- 15 We have generally assigned a zero value for land in calculating a carrier’s opportunity costs when the carrier does not hold mar- ketable title. See Docket No. AB-43 (Sub-No. 136), Jllinois Central Gulf Railroad Company-—Abandonment—In Christian, Macon, and Shelby Counties, IL (not printed), served August 4, 1986; and Chicago and North Western Transp. Co.—Abandonment, 363 I.C.C. 956, 959 (1981), aff'd Chicago and North Western Transp. Co. V. U.S., 678 F.2d 655 (7th Cir. 1982). 16 Although section 10905 applies to abandonment applications rather than abandonment exemptions, the Commission has adopted a policy the offer of financial assistance provisions of section 10905. See AB-269, Iowa Terminal Railroad Co.—Abandonment—In Cerro Grando and Floyd Counties, IA (not printed), served March 31, 1987. * 25a emption was published in the Federal Register, Friends had 10 days to submit its offer of financial! assistance on Sierra.’” This it failed to do. Thus, it is irrelevant what value we would have assigned to the right-of-way. More- over, Friends’ argument regarding compulsory sale also lacks merit. As we previously stated, Congress has pro- hibited forced sales for public use. See July 20th decision, at 6. We must conclude that Friends has failed to prove that the July 20th decision contains “apparent mistakes” warranting reopening. More importantly, Friends has failed to show material error in our prior decision. Nor has it shown that our prior decision would be affected materially because of new evidence or changed circum- stances. Friends’ allegations of error in our prior deci- sion are unsupported by the evidence. Its evidence throughout this proceeding has been unpersuasive at best, even though we have allowed it further opportunity to present its case. Friends should not further delay this proceeding because all parties of interest had notice, either actual or constructive, of Sierra’s intent to aban- don the 1-mile line and Friends, the SHPO and other California agencies all slept on their rights. Thus, we will not reopen this proceeding and will deny Friends’ petition. This action will not significantly affect either the qual- ity of the human environment or energy conservation. It is ordered: 1. LPC’s motion to strike Friends’ “Motion to Correct Decision” is denied. 17 The Commission has applied its proposed rules in Ex Parte No. 274 (Sub-No. 16), Exemption of Rail Line Abandonments or Dis- continuances—Offers of Financial Assistance, on an interim basis to offers of financial assistance in exemption proceedings. Our final rules were served December 21, 1987. 26a 2. LPC’s motion to strike the material attached to Friends’ “Motion to Correct Decision” is granted. 3. Friends’ petition to reopen is denied. 4. This action is effective on the date of service. By the Commission, Chairman Gradison, Vice Chair- man Andre, Commissioners Sterrett, Lamboley and Sim- mons. NORETA R. MCGEE [SEAL] ‘Secretary 27a APPENDIX A Enclosure A—A letter, dated September 16, 1981, from the Commission’s Section of Energy and Environment (SEE) to Bruce Cassasa indicates that Friends is placed on the service list in Finance Docket No. 29506. Enclosure B—A letter, dated January 24, 1981, from Friends to the Commission refers to the historic status of the line. Enclosure C—A letter, dated September 1, 1981, from Friends to the Commission indicates that Sierra’s 56- mile line warranted historical status. Enclosure D—A letter, dated November 5, 1981, from LPC to Cassasa in opposition to any listing of the Sierra in the NRHP. Enclosure E—A letter, dated November 7, 1980, from Cassasa to LPC regarding LPC’s opposition to the line’s historic nomination. Enclosure F—A letter, dated November 10, 1980, from Cassasa to the Commission requests review of the Silver Foot acquisition under the provisions of NHPA. Enclosure G—A letter, dated November 26, 1980, from Silver Foot’s attorneys to the Commission, in reply to the November 10, 1980 letter mentioned above. The coun- sel for Silver Foot objects to any protest of the sale agreement between Silver Foot and Sierra. Enclosure H—A newspaper article indicates that the Commission approves the sale to Silver Foot of Sierra’s freight operations. The article states that Friends seeks to block abandonment of the last 7 miles of track because of their historical significance. Although the Commission authorized abandonment of those last 7 miles of track, it specified that they remain in place until January 2, 1985. The article also states that the historic portion is being reviewed for possible purchase by the State. 28a Enclosure I—A newspaper article indicates that the State receives Friends’ request for historic nomination of the entire 56-mile Sierra main-line, including a number of historic buildings, a water tower and several wooden trestles, in addition to tracks. Enclosure J—A newspaper article, dated April 9, 1981, describes Cassasa as a former bandit responsible for the preservation of the Sierra Railroad from Oakdale to Tuolumne, CA. Enclosure K—A newspaper article, dated July 13, 1982, indicates that Cassasa won his battle for the State to run “Railtown 1897” as an historic park. Enclosure L-—A newspaper article, dated May 3, 1981, describes Cassasa’s desire to preserve the history of the Sierra Railroad. Enclosure M—A newspaper article, dated May 29, 1984, indicates Friends’ desire to buy and repair 6.2-miles of abandoned track in order to restore rail service to Tuo- lumne. The article refers to the purchase price of $200,000 as too excessive for Friends. Enclosure N—A newspaper article, dated February 7, 1986, indicates that the removal] of Sierra track is halted by the State due to opposition by Friends. jo NO OA 29a APPENDIX B [Service Date Jan. 2, 1985] INTERSTATE COMMERCE COMMISSION Docket No. AB-239 S. R. INVESTORS, LTD., DOING BUSINESS AS SIERRA RAILROAD COMPAN Y—-ABANDON MENT— IN TUOLUMNE COUNTY, CA NOTICE OF EXEMPTION Applicant has filed a notice of exemption under 49 C.F.R. 1152 Subpart F—Exempt Abandonments to aban- don its 1-mile line of railroad between milepost 49.0 and milepost 50.0 in Tuolumne County, CA. Applicant has certified (1) that no local traffic has moved over the line for at least 2 years and that over- head traffic is not moved over the line or may be rerouted, and (2) that no formal complaint filed by a user of rail service on the line (or by a State or local governmental entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Com- mission or has been decided in favor of the complainant within the 2-year period. The appropriate State agency has been notified in writing at least 10 days prior to the filing of this notice. As a condition to use of this exemption, any employee affected by the abandonment shall be protected pursuant to Oregon Short Line R. Co.-Abandonment-Goshen, 360 I.C.C. 91 (1979). 80a The exemption will be effective February 1, 1985 (un- less stayed pending reconsideration). Petitions to stay must be filed by February 11, 1985, and petitions for reconsideration, including environmental, energy, and public use concerns, must be filed by February 21, 1985, with: Office of the Secretary Case Control Branch Interstate Commerce Commission Washington, DC 20423 A copy of any petition filed with the Commission should be sent to applicant’s representative: Scott L. Glickson 36th Floor 444 North Michigan Avenue Chicago, IL 60611 If the notice of exemption contains false or misleading information, use of the exemption is void ab initio. A notice to the parties will be issued if use of the ex- emption is conditioned upon environmental or public use conditions. Decided: December 26, 1984. By the Commission, Heber P. Hardy, Director, Office of Proceedings. /s/ James H. Bayne JAMES H. BAYNE [SEAL] Secretary 3la APPENDIX C [Service Date July 20, 1987] INTERSTATE COMMERCE COMMISSION DECISION Docket No. AB-239X S. R. INVESTORS, LTD., DOING BUSINESS AS SIERRA RAILROAD COMPANY—ABANDONMENT— IN TUOLUMNE COUNTY, CA Decided: July 14, 1987 By petition filed June 18, 1986, and supplemented July 1, 1986, Friends of the Sierra Railroad, Inc. (Friends) requests that we: (1) reopen this proceeding; (2) find that use of the class exemption for abandonment of out- of-service rail lines! at 49 CFR 1152.50 was improper in this case; (3) reassert jurisdiction; and (4) conduct an abandonment proceeding in order to (a) give Friends the opportunity to request a public use condition under 49 U.S.C. 10906, or an interim trail use under 16 U.S.C. 1247(d), and (b) implement the National Historic Pres- ervation Act (NHPA), by affording a review under 16 1 Exemption of Out-of-Service Rail Lines, 366 I.C.C. 885 1983), vacated and remanded in Illinois Commerce Comm. v. ICC, 787 F.2d 616 (D.C. Cir. 1986), readopted in Exemption of Out-of-Service RailLines, 2 1.C.C.2d 146 (1986). 82a U.S.C. 470(f) (“section 106 review”). The petition will be denied. BACKGROUND By Notice of Exemption (Notice) filed November 20, 1984, S. R. Investors, Ltd., d/b/a Sierra Railroad Com- pany (Sierra) used the class exemption procedures at 49 CFR 1152, Subpart F, Exempt Abandonments and Dis- continuances of Trackage Rights (49 CFR 1152.50), to abandon its 1-mile line of railroad between milepost 49.0 and milepost 50.0 in Tuolumne County, CA.* Sierra served both an advance notice of its intent to file a Notice of Exemption, and an environmental notice® on the Cali- fornia Department of Transportation (Caltrans). On January 2, 1985, the Commission served and published a notice of exemption in the Federal Register (50 Fed. Reg. 188). Twelve California agencies—including the State Historical Preservation Office (SHPO) and the Chief, Railroad Operations and Safety Branch, California Pub- lie Utilities Commission (PUC)—received copies of the Commission’s January 2, 1985, exemption notice. More- over, on January 21, 1985, PUC mailed copies of the Com- mission’s January 2nd notice to potentially interested persons. No objections to the exemption notice were filed, and the exemption became effective on February 1, 1985. On February 21, 1985, Pacific Gas and Electric Com- pany (PG&E) filed a petition for reconsideration® seek- 2 Sierra had previously abandoned the 6.2-mile end portion of its line between milepost 50.0 and milepost 56.2. 3 Environmental notices, required by 49 CFR 1105.11, invite interested persons to comment on environmental matters. 4The Commission’s notice of exemption described the line and the nature of the exempted action, and indicated the effective date of the exemption. It also invited interested persons to address, in petitions for reconsideration due February 21, 1985, environmental, energy, and public use concerns. 5 Under rule 1152.50(d) (3), petitions for reconsiderations are due 20 days after a notice is served and published in the Federal 33a ing a public use condition under section 10906 to secure an easement to transmit electricity along the right-of- way. However, by letter dated September 3, 1985, PG&E voluntarily withdrew its petition, and on October 4, 1985, a decision dismissing its petition was served. On January 28, 1986, over one year after the exemp- tion notice was published, Sierra began to salvage track and material on the 1-mile right-of-way. As a result of the salvage operations, Friends became aware of the abandonment and contacted the Advisory Council on His- toric Preservation (ACHP). ACHP, in a letter to the Commission’s Section of Energy and Environment (SEE) dated January 30, 1986, stated that the California State Historical Resources Commission had previously deter- mined that the involved line was eligible for inclusion in the National Register of Historic Places (NRHP), and that the abandonment exemption apparently was granted without section 106 review ACHP asked SEE to investi- gate the matter. In a letter to ACHP dated February 13, 1986, SEE stated that the Commission was unaware of the line’s eligibility status, and that it had contacted Sierra “to encourage voluntary compliance with the his- toric preservation process.” On May 6, 1986, Sierra extended to the California De- partment of Parks and Recreation (CAP&R) the oppor- tunity to purchase the abandoned right-of-way, at fair market value, in accordance with a previously existing agreement between Sierra and CAP&R.® In a letter dated Register, in order to permit the imposition of appropriate condi- tions prior to the date that the exemption becomes effective. In this case, petitions for reconsideration should have been due on January 22, 1985, instead of on February 21, 1985, as the notice stated. It appears that this error occurred because the due date was improperly calculated from the effective date of the class ex- emption, rather than the notice’s publication date. 6 The agreement, known as the “Amendment and Restatement of Easement and Trackage Rights,” dated August 9, 1982, provides, 34a June 9, 1986, CAP&R declined to exercise its right to pur- chase. Sierra then offered the property to Louisiana- Pacific Corporation (LPC), the principal shipper on the line and the owner of the property on either side of all but about 200 feet of the 1-mile right-of-way. The sale to LPC was consummated and a deed of sale was recorded on June 18, 1986: OVERVIEW On June 18, 1986, Friends filed a “Petition to Imple- ment Section 106 Review, NHPA (16 U.S.C. 407f).” On July 1, 1986, it filed a “Supplemental Petition to Re- open,” asking the Commission to reopen and reconsider the exemption proceeding. Friends contends: (1) that Sierra’s Notice is void because the rules at 49 CFR 1152.50 were vacated;* (2) that Sierra’s Notice contained false or misleading information regarding the line’s his- toric significance and suitability for public use, and, there- fore, Sierra’s use of the exemption is void ab initio; (3) that, despite Federal Register publication, adequate no- tice was not afforded to Friends or other historic preser- vation offices; and (4) that the Commission did not con- duct a section 106 review as required under NHPA. Ac- cordingly, Friends argues that we should reopen this pro- ceeding, void the exemption, reassert jurisdiction, and order Sierra to refile for authority to abandon the line. Friends states that, in the context of such new proceed- ings, section 106 review must be conducted. Moreover, in section 17.2, that in the event Sierra elects to abandon railroad operations over all or any portion of its line, except that portion between milepost 35 and milepost 41, Sierra is to offer that portion of the property to the State at a cash price — to the fair market value on the date of the offer. 7 The exemption rules were in effect from 1983 until April 1986, when the D.C. Circuit vacated and remanded them in JUinois Com- merce Comm’n. V. ICC, 787 F.2d 616 (D.C. Cir. 1986). The rules were reinstated in December 1986, when the Commission issued its decision on remand. See discussion infra. aA tA a: Ae Uh Ac al 35a Friends seeks the opportunity to request implementation of interim trail use under section 1247(d), or imposition of a public use condition under section 10906, requiring Sierra to transfer to Friends the involved right-of-way for recreation and rail excursion purposes. Friends ar- gues that the Commission has the power to order a trans- fer of right-of-way for excursion railroad purposes, citing Reed v. Meserve, 487 F.2d 646 (1st Cir. 1973) (Reed). Sierra and LPC oppose Friends’ request. They assert that: (1) Sierra’s use of the abandonment class exemp- tion rules was proper because the rules were valid when Sierra invoked them in its exemption Notice and are valid now; (2) Sierra’s notice contained no false or misleading information; (3) Sierra fully complied with all applicable rules; (4) NHPA is inapplicable; (5) Friends slept on its rights by waiting 16 months after the exemption was final to contest the abandonment; (6) reopening would be futile because the right-of-way has been sold to LPC, a good-faith purchaser for value, over whom the Commis- sion has no jurisdiction; and (7) their expectations in acting on a final Commission exemption decision should be acknowledged and upheld. Under these circumstances, they argue, the Commission cannot require Sierra and LPC to return to the status quo ante. After considering the issues presented in this case, we conclude that we lack authority to reconsider this exemp- tion proceeding. The line has been abandoned and the right-of-way sold. Accordingly, we agree with Sierra and LPC that reopening would be futile. Because we have no remaining jurisdiction over the line, there is no way to return to the status quo ante. Thus, it is not possible to grant the ultimate relief Friends seeks. PRELIMINARY MATTERS On July 24, 1986, LPC filed a petition for leave to in- tervene under 49 CFR 1112.4(b). LPC states that its participation will not unduly disrupt this case or unduly 36a broaden the issues. LPC opposes reopening, supports Sierra’s arguments, and requests that reopening be de- nied. LPC states that because it owns the right-of-way and makes substantial use of Sierra (LPC provides 85 percent of Sierra’s outbound traffic), it has a vital in- terest in the proceeding.’ We agree, but find it unneces- sary to rule on the petition. The class exemption pro- cedures do not require interested persons to petition to in- tervene. Rather, appropriate petitions for reconsideration (and replies) may be filed by any person who, like LPC, demonstrates a legitimate interest in the proceeding. LPC clearly has a genuine interest in the use of the right-of- way. Similarly, Sierra’s and LPC’s arguments concern- ing the allegedly improper intervention of Friends are rejected. Friends also has a legitimate interest in the right-of-way and its petition to reopen is properly before us. On August 18, 1986, Friends filed a ‘Reply to Petition to Intervene.” In a motion to strike filed September 8, 1986, however, LPC argues that Friends’ reply is untimely under 49 CFR 1104.13(a) and does not address LPC’s intervention petition, but instead Sierra’s and LPC’s July 24, 1986, “Reply in Opposition to the ‘Supplemental Petition to Reopen’ Filed by Sierra Railroad Company and Louisiana Pacific Corporation.” Thus, LPC contends that Friends’ pleading is a reply to a reply, which is not per- mitted under 49 CFR 1104.13(c). On September 15, 1986, Friends responded to the LPC motion and requested that its August 18th “reply” be deemed a supplement [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0536%3A1. Public record. Not legal advice.