Opposition Brief — Tuolumne Park & Recreation District v. Interstate Commerce Commission

Supreme Court brief1990

Ask Donna

What actually matters in this document.

Text

4 we

as eee ¥

+ psu

ee,

TUOLUMNE PARK AND RECREATION

DISTRICT, ET AL., PETITIONERS

Vv.

INTERSTATE COMMERCE COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ROBERT S. BURK

General Counsel

ELLEN D. HANSON

Associate General Counsel

EVELYN G. KITAY

Attorney

Interstate Commerce Commission

Washington, D.C. 20423

._'

“

i oars

ee 5 ile a

Ey,

OF ake

FS ORE Nae FE se

; id Bee ahh “123

co ca Ran t

, me

: hate, ti ef id

s *

CX IN

QUESTIONS PRESENTED

1. Whether the court of appeals had jurisdiction to

review a decision of the Interstate Commerce Commission

(ICC or Commission) that became final in February 1985,

when the petition for review was not filed within the 60-day

time limit set forth in 28 U.S.C. 2344 for review of ICC

decisions.

2. Whether the court below properly applied JCC v.

Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987),

in concluding that it lacked jurisdiction to review the ICC’s

later decisions, in July 1987, not to reopen its February 1985

proceeding.

(I)

TABLE OF CONTENTS

Page

rd tte kk eee wae bhbewh eneeee l

ae Cah eh ae edt seca sue ee ex l

ee ea kee ek Kae chee ee an l

tl GR ERE a em 7

ee ee eet L a geen weesauw wed 11

TABLE OF AUTHORITIES

Cases:

Advance Transp. Co. v. United States, 884 F.2d 303

Ne Ne An eee case es 9

Allison v. Block, 723 F.2d 631 (8th Cir. 1983)... 10

Bank of Commerce v. Board of Governors, 513 F.2d

8 er ll

Bennett v. Director, Office of Workers’ Compensa-

tion Programs, 717 F.2d 1167 (7th Cir.

ee aA i ei a hada k ba ete 10

Callaway v. Block, 763 F.2d 1283 (8th Cir.

ee eee a ccaneuaneas o)

Chicago & N.W. Transp. Co. v. Kalo Brick & Tile

i a Oe SUED 5650 ccccs sens ceests 1-2

Colorado v. United States, 271 U.S. 153

eT he ee a aw we tin 2

Connecticut Trust for Historic Preservation v. ICC,

ee eae Mee Ge Gn BOD oo cka ss cacsncass 3

Exemption of Out-of-Service Rail Lines, 2 1.C.C.2d

146 (1986), aff'd sub nom. Illinois Commerce

Commission v. ICC, 848 F.2d 1246 (D.C. Cir.),

cert. denied, 109 S. Ct. 783 (1988) .......... 3

Federal Crop Insurance Corp. v. Merrill, 332 U.S.

ee ae ee oe a kn ta 0d alk 608 A 10

Hayfield Northern R.R. v. Chicago & N.W. Transp.

ee a I cn av aca canannes 6

(III)

Cases — Continued: Page

ICC v. Brotherhood of Locomotive Engineers, 482

i MN os Sea eee ale 6, 7,8

Lyng v. Payne, 476 U.S. 926 (1986) ........... 9-10

Matzke v. Block, 732 F.2d 799 (10th Cir.

Ee Pe ee Per eee ee 10

North Alabama Express, Inc. v. United States, 585

> & gg Ye Se Fee Peer re 10-11

Pearson v. Walling, 138 F.2d 655 (8th Cir.

1943), cert. denied, 321 U.S. 775 (1943) ..... 11

Constitution, statutes and regulations:

U.S. Const. Amend. V (Due Process Clause) ... 9, 10

Hobbs Act:

ee es Ge Oe OO, ik onc ce keds ccnaecl 7

Ps Me chi cca ae kcncscibeenenees 7

National Environmental Policy Act of 1969, 42

U.S.C. 4321-4343 (1982 & Supp. V 1987) .... 3

National Historic Preservation Act, 16 U.S.C.

take aaa, REG Sa a eae: ber yne erat toe eae 3

Oe es LOU Rsk cedoncauecceticsaccseceves 10

06's 5044044550500 ee00R05

EE hc cn use tna vensneebeunenes

8 ee ee ee rr re

Se as ED ba winee ceca ccusackeaceuseas 4,

SP es EE Gk bGa sea sce On ch bd eee eens

CP Se, PD ncccu ean ceabacuaeeesusena'e

ee es SEED 60 ck ose sscscnvavensiaese

49 C.F.R.:

ee cuaeek aba ee ke

NI wee A NY NN CO NI

Regulations — Continued:

Sy On oun chacenoneee

en. ceive wie eeene

Pt. 1152:

Section 1152

gk) PR RA rs

Miscellaneous:

oe OR. Cl. Be GUN 60h 0a kk kkk eee

H.R. Conf. Rep. No. 1430, 96th Cong., 2d Sess.

(GOURD ok dccavecescaasahetalee eee

In the Supreme Court of the Tnited States

OCTOBER TERM, 1989

No. 89-701

TUOLUMNE PARK AND RECREATION

DISTRICT, ET AL., PETITIONERS

Vv.

INTERSTATE COMMERCE COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-12a)

is reported at 881 F.2d 663. The decisions of the Interstate

Commerce Commission (Pet. App. 13a-50a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on July

31, 1989. The petition for a writ of certiorari was filed on

October 30, 1989 (a Monday). The jurisdiction of this Court

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

STATEMENT

1. The ICC has exclusive and plenary authority over rail

line abandonments. Chicago & N.W. Transp. Co. v. Kalo

(1)

Brick & Tile Co., 450 U.S. 311, 319 (1981). Ordinarily, to

be relieved of its common carrier obligation to provide serv-

ice on a line, a rail carrier must apply to the ICC for a cer-

tificate of abandonment under 49 U.S.C. 10903. The ICC

then must determine whether “the present or future public

convenience and necessity require or permit the abandon-

ment.” 49 U.S.C. 10903(a). In making that determination,

the Commission balances the needs of shippers and com-

munities for the line against the burden that the line im-

poses on the carrier and interstate commerce. See Colorado

v. United States, 271 U.S. 153, 168 (1926). The Commis-

sion’s governing statutes contain instructions for the filing

and processing of abandonment applications. See, é.g., 49

U.S.C. 10904(e)(3).

Since 1980, the ICC has had the authority to exempt a

service from regulation when it finds that: (1) regulation

is not necessary to carry out Congress’s rail-transportation

policy set out in 49 U.S.C. 10101a, and (2) either the trans-

action is of limited scope, or regulation is not needed to

protect shippers from the abuse of market power. See 49

U.S.C. 10505(a).! The Commission has used this exemp-

tion power to allow certain carriers to abandon their lines

without following the regular abandonment procedures

' Section 10505 was enacted because Congress believed that, although

it had been able to “indentify broad areas of Commerce where reduced

regulation is clearly warranted, the Commission is more capable through

the administrative process of examining specific regulatory provisions

and practices not yet addressed by Congress to determine where they

can be deregulated consistent with the policies of Congress.” H.R. Conf.

Rep. No. 1430, 96th Cong., 2d Sess. 105 (1980). Congress expected

that “as many as possible of the Commission's restrictions on changes

in prices and services by rail carriers will be removed through the use

of Section 10505, and that the Commission will adopt a policy of review-

ing carrier actions after the fact to correct abuses of market power.”

Ibid.

under 49 U.S.C. 10903. See Exemption of Out-of-Service

Rail Lines, 2 1.C.C.2d 146 (1986) (Out-of-Service), aff'd sub

nom. Illinois Commerce Commission v. ICC, 848 F.2d 1246

(D.C. Cir.), cert. denied, 109 S. Ct. 783 (1988).

In authorizing a rail abandonment, the ICC must con-

sider the environmental consequences of its action under

the National Environmental Policy Act of 1969 (NEPA),

42 U.S.C. 4321-4343 (1982 & Supp. V 1987). Under the Na-

tional Historic Preservation Act (NHPA), 16 U.S.C. 470f,

the Commission also must “take into account” the effect

of its decision on historic properties.? As the Commission

recognized in the instant case, NEPA and NHPA apply to

an abandonment action whether it is taken under Section

10903 (full abandonment proceedings) or under Section

10505 (exemption proceedings). See Jilinois Commerce

Commission v. ICC, 848 F.2d at 1257-1260;! Connecticut

Trust for Historic Preservation v. ICC, 841 F.2d 479,

483-484 (2d Cir. 1988).

2. The abandonment in this case was authorized under

the ICC’s Out-of-Service class exemption, which allows the

abandonment of lines that have not generated any traffic

for at least two years and are not a necessary link to other

* The ICC's rules implementing NEPA and NHPA are codified at

49 C.F.R. Pt. 1105. Rule 1105.7(a) requires persons initiating aban-

donment proceedings to furnish a detailed environmental report discuss-

ing such issues as alternatives to the proposed action and effects on

land use, wetlands, air, energy, wildlife, historic sites and structures,

and the coastal zone. Under Rule 1105.11, they must serve a special

environmental notice on a designated state agency that invites interested

persons to address environmental issues. Under Rule 1105.6, the Com-

mission prepares an environmental assessment in each abandonment

case.

* In Illinois Commerce Commission v. ICC, the court upheld the

Commission's out of service abandonment regulations as facially con-

sistent with the requirements of NEPA and NHPA. See 848 F.2d at

1258-1261.

lines. 49 C.F.R. 1152.50. The procedures for abandoning

such lines are designed to eliminate unnecessary regulatory

requirements, while alerting the Commission to any special

circumstances that would warrant disallowing or condition-

ing the abandonment. The carrier must provide at least 60

days’ advance notice of the abandonment to affected states.

The ICC also publishes a notice in the Federal Register at

least 30 days in advance; that notice tells interested parties

that they can request that the exemption authority for that

line be revoked or conditioned. See 49 C.F.R. 1152.50(d);

49 U.S.C. 10505(d).*

In November 1984, the Sierra Railroad (Sierra) invoked

the Out-of-Service class exemption for a one-mile segment

of its rail line in Tuolumne County, California. ° Sierra had

notified the California Department of Transportation, in

October 1984, of this request. Pet. App. 3a, 32a. The ICC

issued a notice of the proposed abandonment (id. at

29a-30a), which it served on twelve California agencies, in-

cluding the Governor’s Office, the State Resources Agen-

cy, and the State Historic Preservation Office. /d. at 3a,

14a-15a & n.4; 22a-23a, 32a. The ICC also published the

notice in the Federal Register, 50 Fed. Reg. 188 (1985). The

notice advised that: (1) the exemption (/.e., the line aban-

donment) was scheduled to become effective on February

1, 1985, (2) petitions for reconsideration or stay could be

4 Under 49 U.S.C. 10505(d), the Commission may revoke an exemp-

tion, to the extent it chooses, when it finds that application of the

regulatory provision invoived to that person, class, or transaction “is

necessary to carry Out the transportation policy of section 10101a.”

’ From the late 1800s until 1980, Sierra had operated a 56.2 mile line.

It received authority to abandon a 6.2 mile segment at the end of the

line (between milepost 50.0 and 56.2) in 1981. The instant proceeding

pertains to the segment between milepost 49 and 50. No freight had

moved over this one-mile segment in the past 20 years, and passenger

service had ceased in 1979.

filed, and (3) interested parties could raise not only transpor-

tation issues, but environmental, energy, and public-use con-

cerns as well. Pet. App. 30a.

No party raised any environmental concerns and the ex-

emption took effect in February 1985 without any further

action by the ICC.® Sierra Iater contracted to sell the prop-

erty to a third party, Louisiana Pacific Corporation (now

Fibreboard Corporation).’ The deed of sale was recorded

on June 18, 1986. See Pet. App. 4a; 15a; 34a.

3. On June 18, 1986—the date the right-of way was

sold —- petitioners first formally petitioned the ICC for relief.

See Pet. App. 1S5a-16a; 34a.® Petitioners argued, inter alia,

that Sierra’s abandonment authority was defective because

the ICC had failed to conduct a NEPA and NHPA analysis

for Sierra’s line. Petitioners contended that the ICC must

therefore reprocess the exemption.

In July 1987, the ICC issued a decision (Sierra I) deny-

ing the request to reopen. Pet. App. 3la-50a. The ICC

acknowledged (id. at 45a-48a) that it should have considered

the environmental consequences before allowing the aban-

donment exemption to be used for this line. It corrected

its procedures for the future to assure a full and timely en-

vironmental analysis in abandonment cases brought under

the exemption regulations. Because this abandonment had

already been consummated and the right-of-way sold,

however, the ICC concluded that it could not reopen this

dition to secure an easement to transmit electricity — was voluntarily

withdrawn.

’ Fibreboard, a non-carrier, operates a milling operation abutting

the line. It already owned the property on either side of all but about

200 feet of the one-mile right-of-way.

® Petitioner Friends of Sierra Railroad, Inc. first sought relief from

the ICC; petitioner Tuolumne Park and Recreation District later joined

the proceeding asking the ICC to reconsider its February 1985 action.

case. Id. at 37a-49a (citing Hayfield Northern R.R. v.

Chicago & N.W. Transp. Co., 467 U.S. 622, 623 (1984)).

The Commission noted (Pet. App. 44a-45a, 49a) that peti-

tioners (as well as the State agencies that had received notice)

had slept on their rights, by waiting 16 months after the ex-

emption had become final to contest it.

Petitioners sought administrative reconsideration. In

response, the ICC issued a second decision in January 1988,

in which it clarified and reaffirmed Sierra J. It explained

that, in deciding whether to revoke an exemption under 49

U.S.C. 10505(d), it would balance concerns of finality,

repose, and detrimental reliance against whatever factors

favor reopening. Pet. App. 19a-20a. The ICC explained that

reopening was unjustified here, because all parties had ac-

tual or constructive notice of the abandonment and had slept

on their rights. Jd. at 2la-23a.

4. The court of appeals dismissed petitioners’ petition

for judicial review for lack of jurisdiction. Pet. App. la-12a.

The court concluded that it could not review Sierra’s original

exemption authority (issued by the ICC in February 1985)

because petitioners had not met the 60-day time limit in 28

U.S.C. 2344 for seeking review of ICC decisions. Pet. App.

4a-Sa. With respect to the ICC’s 1987 and 1988 decisions

denying petitioners’ reopening request, the court ruled that

the petition to reopen was based on a claim of material er-

ror, not new evidence or changed circumstances. /d. at

Sa-12a.9 Applying the principles of JCC v. Brotherhood of

Locomotive Engineers, 482 U.S. 270 (1987), therefore, the

court of appeals concluded that the “petition for review

presents no issue reviewable by th[e] court.” Pet. App. 12a. —

The court of appeals also rejected petitioners’ argument

that “the notice provisions in the ICC exempt abandonment

9 The court explained that petitioners’ historic-preservation claims

were simply “newly raised.” Pet. App. 6a-7a.

procedure were inadequate, and thus [had] deprived Friends

of the opportunity to present its evidence on direct appeal

of the original order.” Pet. App. 7a. The court upheld the

Federal Register notice in this case as “legally sufficient

notice to all interested or affected persons regardless of ac-

tual knowledge or hardship resulting from ignorance.” /d.

at 8a-9a. Noting petitioners’ complaint that the Federal

nia, where petitioners are located, the court stated that the

adequacy of notice “does not hinge on the driving distance

between copies of the Federal Register and the headquarters

of potentially interested parties to agency proceedings.” Pet.

App. 8a.

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or any other

court of appeals. Thus no further review is warranted.

1. Petitioners contend (Pet. 13-23) that the court of ap-

peals erred in holding that it lacked jurisdiction to review

the ICC’s decisions in this case. That contention, however,

is foreclosed by the plain terms of the Hobbs Act, 28 U.S.C.

2341 et seq., and this Court’s decision in JCC v. Brotherhood

of Locomotive Engineers, 482 U.S. 270 (1987).

The Hobbs Act provides for judicial review of ICC deci-

sions. It states that any “party aggrieved by the final order

fof the Commission} may, within 60 days after its entry,

file a petition to review the order in the court of appeals

wherein venue lies.” 28 U.S.C. 2344. The Commission’s

Original action allowing Sierra to abandon its line was final

on February 1, 1985. See Pet. App. 3a. But petitioners did

not file a petition for review in the Ninth Circuit until

September 2, 1987, well outside the 60-day period. Thus

there can be no doubt that the court of appeals had no

jurisdiction to review the Commission’s original exemption

action.

Petitioners, however, did meet the Hobbs Act’s 60-day

limit for seeking review of the ICC’s order of July 20, 1987,

in which the Commission denied the request to reopen and

reconsider its 1985 action. But this Court’s opinion in JCC

v. Brotherhood of Locomotive Engineers, supra, makes it

clear that the appellate court did not have jurisdiction to

review the ICC’s decision not to reopen the question of

Sierra’s abandonment of its line. In Locomotive Engineers,

the Court reviewed the relevant statutes, e.g., 49 U.S.C.

10327(g), and held that a court of appeals has jurisdiction

to review the denial of a petition to reopen an ICC pro-

ceeding only if “the petition that was denied sought reopen-

ing on the basis of new evidence or changed circumstances.”

482 U.S. at 284. A petition to reopen on the ground that

the ICC made a “material error” in its decision is not

reviewable. Jd. at 280. _

Here, the court of appeals correctly ruled that petitioners

did not seek to reopen the 1985 proceeding on the basis of

new evidence or changed circumstances. Rather, petitioners

simply maintained (and still do) that the Commission com-

mitted errors in 1985 when it authorized Sierra to abandon-

ment its line.'® In essence, petitioners contended that the

Commissjon’s exemption action was wrong at the time it

was taken because the Commission failed to comply with

the environmental-review requirements of NEPA and

NHPA.'! Accordingly, because the petition to reopen was

not based on new evidence or changed circumstances —a

to reiterate such claimed errors.

'! Petitioners’ contention (Pet. 23) that the Commission’s action was

“void ab initio” is just another way to say the Commission committed

a material error when it took its action.

point that we do not understand petitioners to contest at

this time —the court of appeals properly dismissed the peti-

tion for judicial review. Accord Advance Transp. Co. v.

United States, 884 F.2d 303 (7th Cir. 1989).

2. Petitioners maintain (Pet. 13-17, 21-23) that they are

not bound by the terms of the Hobbs Act and the

Locomotive Engineers decision because the ICC’s notice of

its action in 1985 violated petitioners’ constitutional right

not to be deprived of property without due process. In other

words, petitioners argue that the Due Process Clause re-

quires the Hobbs Act to be construed to allow jurisdiction

in this case. That argument is contrary to the decisions of

this Court and many courts of appeals.'?

In this case, the ICC gave notice of its intent to permit

abandonment by publishing a notice of exemption in the

Federal Register, 50 Fed. Reg. 188 (1985).'3 See Pet. App.

3a. At the same time, the ICC sent copies of the notice to

the Governor of California and many California state

agencies.'* This Court’s decision in Lyng v. Payne, 476

'2 Petitioners do not identify their “property rights” that are protected

by the Due Process Clause. In fact, they may not have lost any such

property right as a result of the ICC’s action. See Callaway v. Block,

763 F.2d 1283, 1290 (8th Cir. 1985) (farmers did not have property in-

terests in the government’s peanut quotas). But as we explain in the

text, even if petitioners were deprived of protected property rights, the

Due Process Clause was satisfied by the ICC’s notice in this case.

'3 The notice described the proposed action and invited interested

parties to address environmental, energy, and public use concerns. Pei.

App. 29a-30a.

'4 Petitioners claim (Pet. 6-8) that, in an earlier proceeding involv-

ing Sierra, an ICC staff member promised to advise locally interested

parties of any actions affecting Sierra’s lines. As the Commission ex-

plained, however, “[t]o 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.” Pet. App. 18a n.7.

U.S. 926 (1986), makes it clear that such notice was suf-

ficient under the Due Process Clause. In that case, the Court

considered a claim that the Farmers Home Administration

failed to publicize adequately the availability of certain low-

interest loans. The Court, after assuming that the plaintiffs

had been deprived of a property interest, held that the

“notice published in the Federal Register * * * was more

than ample to satisfy any due process concerns.” /d. at 942.

Accord 44 U.S.C. 1507 (publication in Federal Register “is

sufficient to give notice of the contents of the document

to a person subject to or affected by it”); Federal Crop In-

surance Corp. v. Merrill, 332 U.S. 380, 384-385 (1947)

(Wheat crop insurance regulations were binding after they

were published in the Federal Register regardless of actual

knowledge of the regulations).

Contrary to petitioners’ suggestion (Pet. 16), no court of

appeals has held that notice of administrative action in the

Federal Register is inadequate to protect the rights of the

general public.'5 In the two cases that petitioners cite, the

courts held that a particular statute (not the Constitution)

required more notice than publication in the Federal

(relying on 7 U.S.C. 1981a); Allison v. Block, 723 F.2d 631

(8th Cir. 1983) (same). Indeed, every circuit that has con-

sidered the question of notice in administrative proceedings

of the type at issue here has held that publication in the

Federai Register satisfies the Due Process Clause. See, e.g.,

Bennett v. Director, Office of Workers’ Compensation Pro-

grams, 717 F.2d 1167, 1169-1170 (7th Cir. 1983); North

Alabama Express, Inc. v. United States, 585 F.2d 783,

'S In any event, the ICC in this case did more than publish its notice

in the Federal Register. It sent copies to the entities most likely

interested —the Governor of California and various state agencies, in-

cluding the State Historic Preservation Office.

789-790 (Sth Cir. 1978) (requiring Federal Register notice

to be clear); Bank of Commerce v. Board of Governors,

513 F.2d 164, 166-167 (10th Cir. 1975); Pearson v. Wall-

ing, 138 F.2d 655, 660 (8th Cir.), cert. denied, 321 U.S. 775

(1943). Accordingly, the court of appeals correctly applied

the terms of the Hobbs Act, as interpreted by this Court

in Locomotive Engineers, and dismissed petitioners’ case

for lack of jurisdiction.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.