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

MOTION FILED F

WAN 2 1990 No. 89-701

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

TUOLUMNE PARK AND RECREATION DISTRICT,

and FRIENDS OF SIERRA RAILROAD, INC.,

Petitioners,

v%

INTERSTATE COMMERCE COMMISSION, ef a/.,

Re spondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF THE NATIONAL TRUST FOR HISTORIC

PRESERVATION IN THE UNITED STATES, RAILS-TO-

TRAILS CONSERVANCY, CALIFORNIA PRESERVATION

FOUNDATION, SOCIETY FOR HISTORICAL

ARCHAEOLOGY, SOCIETY FOR CALIFORNIA

ARCHAEOLOGY, AND TUOLUMNE COUNT: HISTORICAL

SOCIETY, AS AMICI CURIAE IN SUPPORT OF THE

PETITION FOR A WRIT OF CERTIORARI

DAVID G. BURWELL Davip A. DOHENY

Rails-to-Trails Conservancy Genera! Counsel

1400 16th St. N.W., Suite 290 ANDREA C. FERSTER

Washington, D.C. 20036 (Counsel of Record)

(202) 797-5400 ELIZABETH S. MERRIT1

Assistant General Counse!

National Trust for Historic

Preservation in the

United States

1785 Massachusetts Avenue N.W.

Washington, D.C. 20036

(202) 673-4035

WILLIAM F. DELVAC

1728 North Whitley Avenue

Hollywood, California 90028

(213) 469-2349

Counsel for Amici Curiae

January 2, 1990

PRESS OF BYRON S. ADAMS. WASHINGTON. D.C. (202) 347-8203

QUESTION PRESENTED

Whether the Ninth Circuit’s refusal to exercise juris-

diction over a timely petition to review the Interstate Com-

merce Commission’s conceded failure to comply with its

non-discretionary duties under the National Environmental

Policy Act (NEPA), and Section 106 of the National His-

toric Preservation Act (NHPA), wrongfully forecloses ju-

dicial review of agency compliance with these mandatory

environmental statutes, in contravention of Congress’ grant

of private enforcement authority under the NHPA and

NEPA, and the judicial policy favoring a “searching”

standard of review for agency decisions to avoid compli-

ance with environmental review statutes?

TABLE OF CONTENTS

Page

QUESTION PRESENTED cececocsssscsconssaccsssansseneeastennes i

TABLE OF CONTENTS .ccccecsstessésccnssuenevetnspeubiansesnans ii

TABLE OF AUTHORITIES. ........:scssssesseeessensseeeseenees iv

INTERESTS OF AMICI CURIAE ....ccsccessescsscsesesceses 1

STATEMENT OF THE CASE. ....ccoccocccscosccsccsescccseces 3

A. Tntrodectiony crccisessssscsncessntceseneensanenannehennes 3

B. Statutory Background ..............csssscscssscsscees 4

C. History of the ICC’s ‘Exempt’ Abandon-

MENt PLOCOGUPES ..<...scscsersssnvenentnnnetessesenenseses 7

REASONS FOR GRANTING THE WRIT .................. 12

I. The Ninth Circuit Erred in Denying Judicial Re-

view of the ICC’s Conceded Failure to Comply

with Its Non-Discretionary Duties Under NEPA

and Section 106 ...::.sc.sssssumessueneleeeaienines 12

II. This Court’s Review Is Needed to Clarify the

Unsettled Law Regarding Judicial Review

Where ‘‘Hobbs Act’’ Agencies Violate Clear,

Non-Discretionary Duties Under NEPA and Sec-

Oe |) [i aaa ee 15

CONCLUSION .............cccccccscccessssscoccsssssnnennnesssssonseess 18

ne aes

ar nt ental

iil

APPENDIX

Interests of Amici Curiae ............. SND Re

Letter from Dinah S. Bear, General Counsel, CEQ,

to Robert S. Burk, ICC (Dec. 18, 1987) ...............

Findings of a Panel of Advisory Council Members

Convened on December 4th, 1987 to Consider

Whether the Interstate Commerce Commission

(ICC) Has Foreclosed the Council’s Opportunity to

Comment, in Violation of Section 106 of the Na-

tional Historic Preservation Act, in Permitting the

Exempt Abandonment of the Canal Branch of the

Boston and Maine Railroad to Become Final in Ac-

cordance with 49 CFR § 1152.50 00... eee

la

3a

iv

TABLE OF AUTHORITIES

Cases Page

Baltimore Gas and Electric Co. v. Natural Re-

sources Defense Council, Inc., 462 U.S. 87

CRIED ‘asesichicsanenstinciadiniednenienubiiadeaienietamaiemintiiaa ase tecis 4,5,6-7

Bywater Neighborhood Ass’n v. Tricarico, 879 F.2d

165 (5th Cir. 1989), petition for cert. filed, 58

U.S.L.W. 3397 (U.S. "ies. 6, 1989) (No. 89-

TE cxresciscssndesaseisiiinsialeribaiailidienlentnaitattin antinieidDbtedsans 4,15,16

City of Rochester v. Bond, 603 F.2d 927 (D.C. Cir

SUE scccsncctsssnetieshidaiinalcitiednedianiailaaitadataliat tel betca erate 16

Foundation for North American Wild Sheep v.

United States Dep’t of Agriculture, 681 F.2d

ty f Ys Peete 7,14-15

Gee v. Hudson, 746 F.2d 1471 (4th Cir. 1984), cert.

denied, 471 U.S. 1058 (1985) ..........ccccccccscceeees 15

General Public Utilities Corp. v. Susquehanna Val-

ley Alliance, 449 U.S. 1096 (1981) (Rehnquist,

Du, GI ncninriscnenissisninenciiaildiasibinannnnnnninn 16

Harlem Valley Transportation Association v. Staf-

ford, 500 F.2d 328 (2d Cir. 1974) ................ 14

Heckler v. Chaney, 470 U.S. 821 (1985) ................ 17

ICC v. Brotherhood of Locomotive Engineers, 482

A EO GED acccnncsinenitsetiaiiaadibtiateninttian 13

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

1246 (D.C. Cir. 1988), cert. denied, 109 S.

+ FR on 5,9-10,11,12

Izaak Walton League v. Schlesinger, 337 F. Supp.

SE CE. TCAs sitessncintiicetscictineeinbiinininiaitinies 17

River Road Alliance, Inc. v. Corps of Engineers,

764 F.2d 445 (7th Cir. 1985), ce cert. denied, 475

CE. REI PIII cccenscstctntnnntanintnisniietitabattietaiin 15

Robertson v. Methow Valley Citizens Council, 109

S. Ce. BEB CODD cececccsnisertssnstenttetinenietiien 4,5

Table of Authorities Continued

Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th

PIII Sac ciahheshidetetishdeieinshintanniabiiaheinieamahandilinigtapiadegn 7,14

Susquehanna Valley Alliance v. Three Mile Island

Nuclear Reactor, 619 F.2d 231 (3d Cir. 1980),

cert. denied, 449 U.S. 1096 (1981) .................. 4,16

Vieux Carré Property Owners, Residents & Asso-

ciates, Inc. v. Brown, 875 F.2d 453 (5th Cir.

os. ‘gas for cert. filed, 58 U.S.L.W. 3291

6, 1989) (No. 89-568) ...................0.. 6

Statutes

Administrative Orders Review Act, (‘““Hobbs Act’’),

8 TRONS eae Tere 4,15

National Environmental Policy Act (NEPA),

een ounce passim

National Historic Preservation Act (NHPA),

og SF ee 2

a IE sainiiineacttinspnclicensbasctnmnaesiatintnn passim

as nici ctechnnsanbioneniuneans 6,18

Revised Interstate Commerce Act,

I IE oii oen svacccaccadienensenanantoneneneunens 3

Be Ses eI caihecinninienctivinsininicasesonantncint sees 13

Table of Authorities Continued

Regulations

Advisory Council on Historic Preservation

36 C.F.R. Part 800

BE C.F. § SOO. 2GE) ..cccrccrceccercesecccccecsccccccnsesesee

BE CLR. 8 GROG ..ccorcccccsscccssscccscescsscnseccnscescees

BE CPR. § BBD.G ..cccccrecccccsccsscccercsesccccccsnccccees

BE CPR. § ODOB cccccccccccccccssssccccccecccssscsssesecens

Interstate Commerce Commission

QD CUP UR. § LROGTE n.cccccccccrssecccscecccecssssescseceee

4D CPR. § TUGB.BO ....ccccccrerccrrrreresreerecsseccesceee 3,7,8.

Miscellaneous

S.R. Investors, Ltd.—Abandonment—in Tuolumne

County, CA, Dkt. No. AB-239X (ICC, July 14,

Interstate Commerce Commission, 1988 Annual Re-

SONG CEIETD sccersssnscionconcicteiiaitenticudaleianitie

r

. f .

» ite peli eae

ooo

vii

MOTION OF THE NATIONAL TRUST FOR HISTORIC

PRESERVATION, ET AL. FOR LEAVE TO FILE AN

AMICUS CURIAE BRIEF IN SUPPORT OF THE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

The National Trust for Historic Preservation in the

United States, Rails-to-Trails Conservancy, California

Preservation Foundation, Society for Historical Ar-

chaeology, Society for California Archaeology, and

Tuolumne County Historical Society, respectively

petition this Court pursuant to Rule 36.3 for leave to

file an amicus curiae brief, filed simultaneousiy here-

with, in support of Petitioners in the above-captioned

Petition for Writ of Certiorari to the Ninth Circuit.’

The Solicitor General of the United States has con-

sented on behalf of Respondent Interstate Commerce

Commission (‘“ICC’’) to the filing of this brief, as have

the Petitioners Friends of Sierra Railroad and Tuol-

umne Park and Recreation District, as evidenced by

letters filed with the Clerk of this Court. However,

Respondent Fibreboard Corporation has declined to

grant consent to the filing of this amicus brief, ne-

cessitating this motion.

The National Trust’s expertise on federal historic

preservation law is nationally recognized, particularly

with respect to Section 106 of the National Historic

Preservation Act, 16 U.S.C. §470f. The National

Trust has frequently filed amicus briefs (and has par-

ticipated as a plaintiff) in cases involving the enforce-

' The interests of the amici organizations are described more

in the Appendix to this Amicus Brief in Support of the

for a Writ of Certiorari. (Amicus App. 1a)

E

Petition

viii

ment and interpretation of Section 106.2 Thus, the

filing of an amicus brief will assist this Court in eval.

uating the significant issues involved in this case, par.

ticularly the issues concerning compliance with the

National Historic Preservation Act, which has never

heretofore been reviewed by this Court.

Respectfully submitted,

/s/ Andrea C. Ferster

Davip A. DOHENY

General Counsel

ANDREA C. FERSTER

(Counsel of Record)

ELIZABETH S. MERRITT

Assistant General Counsel

National Trust for

Historic Preservation

in the United States

1785 Massachusetts Ave. N.W.

Washington, D.C. 20036

(202) 673-4035

* For example, the National Trust has participated as a plaintifi

or amicus in the following cases involving Section 106 of the

NHPA: Vieux Carre Property Owners, Residents & Associates,

Inc. v. Brown, 875 F.2d 453 (5th Cir. 1989), petition for cert.

filed, 58 U.S.L.W. 3291 (U.S. Oct. 6, 1989) (No. 89-563) (amicus

in support of cert. petition); Lee v. Thornburgh, 877 F.2d 1053

(D.C. Cir. 1989) (amicus); Connecticut Trust for Historic Pres.

ervation v. Interstate Commerce Commission, 841 F.2d 479 (2d

Cir. 1988) (amicus); National Trust for Historic Preservation v.

U.S. Army Corps of Engineers, 552 F. Supp. 784 ahs Ohic

1982) (plaintiff).

Go ~- tet wes es WOM!

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-701

TUOLUMNE PARK AND RECREATION DISTRICT,

and FRIENDS OF SIERRA RAILROAD, INC.,

Petitioners,

if

INTERSTATE COMMERCE COMMISSION, et al.,

Respondents.

AMICUS BRIEF OF THE NATIONAL TRUST FOR

HISTORIC PRESERVATION, RAILS-TO-TRAILS

CONSERVANCY, CALIFORNIA PRESERVATION

FOUNDATION, SOCIETY FOR HISTORICAL

ARCHAEOLOGY, SOCIETY FOR CALIFORNIA

ARCHAEOLOGY, AND TUOLUMNE COUNTY

HISTORICAL SOCIETY IN SUPPORT OF THE PETITION

FOR A WRIT OF CERTIORARI

INTERESTS OF AMICI CURIAE

This brief is submitted by the National Trust for

Historic Preservation in the United States, Rails-to-

Trails Conservancy, California Preservation Founda-

tion, Society for Historical Archaeology, Society for

California Archaeology, and Tuolumne County His-

torical Society, as amici curiae pursuant to Rule 36.1

of the Rules of this Court, in support of the petition

for a writ of certiorari to the United States Court of

9

“

Appeals for the Ninth Circuit. Consent to appear as

amici has been obtained from the United States and

from the petitioners, Friends of Sierra Railroad and

Tuolumne Park and Recreation District, as evidenced

by letters filed with the Clerk of this Court.

The Interstate Commerce Commission (“‘ICC’’) au-

thorizes the abandonment of approximately 3000 miles

of railroad lines each year. Many of these corridors

either include or are adjacent to historic sites, such

as archaeological sites, stone bridges, railroad depots,

and other historic structures, or, as is the case here,

are historically significant in their own right. Amici

are national, state, and local organizations concerned

with protecting these historic resources and enforcing

federal agency compliance with the National Historic

Preservation Act (“NHPA”’), 16 U.S.C. §§ 470 et seq.,

and the National Environmental Policy Act

(“NEPA’’), 42 U.S.C. § 4332. The interests of amici

in the strong enforcement of federal environmental

and historic preservation laws have been hampered

by the conflicting and uncertain legal standards gov-

erning judicial review of the ICC and other licensing

agencies subject to special review statutes, when those

agencies fail to comply with environmental and his-

toric preservation laws.’

The purpose of this amicus brief is to urge this

Court to resolve this ongoing enforcement problem,

an issue that is well-illustrated in this case, in which

judicial review of the ICC’s conceded failure to comply

with the mandatory environmental] review obligations

of the NHPA and NEPA was wrongfully foreclosed,

1 The interests of each amicus curiae are described in more

detail in the Appendix to this brief. (Amicus App. 1a).

a result that subverts the legislative mandate of these

important statutes.

STATEMENT OF THE CASE

A. Introduction

This case presents the question of whether

Petitioners were deprived of adequate judicial review

of the Interstate Commerce Commission’s (ICC’s) con-

ceded failure? to engage in the environmental con-

sultation and review processes mandated by NEPA,

42 U.S.C. § 4832, and Section 106 of the National

Historic Preservation Act (‘‘Section 106’’), 16 U.S.C.

§ 470f, prior to authorizing the abandonment of the

scenic and historic Sierra Railroad under the ICC’s

“exempt” railroad abandonment procedures.’ In re-

fusing to take jurisdiction over this case, the Ninth

Circuit improperly deferred to the ICC’s erroneous

conclusion that the cursory notice required under the

ICC’s exempt abandonment regulations was sufficient

to satisfy the notice requirements of NEPA and Sec-

tion 106. The Ninth Circuit’s refusal to review the

ICC’s unlawful action in this case underscores the

need for this Court to review the unsettled questions

2 See S.R. Investors, Ltd.—Abandonment—in Tuolumne County,

CA, Dkt. No. AB-239X (ICC, July 14, 1987), at 10 (Pet. App.

3la, 48a).

8 These procedures allow certain railroads that have been out

of service for more than two years to abandon their rights-of-

way by using an accelerated procedure, under which the only

notice provided to the public is through a general-purpose form

sent to state public service agencies and published in the Federal

Register. 49 U.S.C. § 10505; 49 C.F.R. § 1152.50.

over which the circuits are divided‘ regarding the ad-

equacy of appellate judicial review where agencies

subject to special review statutes such as the Hobbs

Act, 28 U.S.C. § 2342, violate their clear, non-discre-

tionary duties to comply with Section 106 and NEPA.

B. Statutory Background

~- NEPA and Section 106 impose important, manda-

tory obligations on federal agencies to evaluate the

impact of federally-licensed activities on the environ-

ment and on historic properties before allowing ac-

tions that are potentially harmful to those resources

to go forward. While “‘the agency is not constrained

... from deciding that other values outweigh the en-

vironmental costs,’’ compliance with NEPA’s proce-

dural requirements is not discretionary. Robertson v.

Methow Valley Citizens Council, 109 S. Ct. 1835, 1846

(1989); Baltimore Gas and Electric Co. v. Natural

Resources Defense Council, Inc., 462 U.S. 87, 97-98

(1983).

In addition to its function of providing relevant

environmental information to government decision-

makers, NEPA also “guarantees that the relevant

information will be made available to the larger au-

dience that may also play a role in both the deci-

sionmaking process and the implementation of that

decision.”’ Robertson v. Methow Valley Citizens Coun-

cil, 109 S. Ct. at 1845. Under NEPA, the public is

provided with the required notice through the prep-

‘Compare Bywater Neighborhood Ass’n v. Tricarico, 879 F.2d

165 (5th Cir. 1989), petition for cert. filed, 58 U.S.L.W. 3397

(U.S. Dec. 6, 1989) (No. 89-898) with Susquehanna Valley Al-

liance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (8d

Cir. 1980), cert. denied, 449 U.S. 1096 (1981).

eS

ea ee

aration and broad dissemination of an environmental

assessment (EA) or an environmental impact state-

ment (EIS), “‘which gives the public the assurance

that the agency ‘has indeed considered environmental]

concerns in its decisionmaking process,’ ... and, per-

haps more significantly, provides a springboard for

public comment.” Jd. (quoting Baltimore Gas and

Electric Co. v. Natural Resources Defense Council,

Inc., 462 U.S. at 97); see also Illinois Commerce Com-

mission v. ICC, 848 F.2d 1246, 1260 (D.C. Cir. 1988),

cert. denied, 109 S. Ct. 783 (1989) (‘The EA or EIS

should provide_a springboard for public comment,

bringing to the agency viewpoints and options it might

otherwise lack.’’). Dissemination of an EA or an EIS

also serves the function of offering state and local

governmental bodies ‘‘adequate notice of the expected

consequences and the opportunity to plan and imple-

ment corrective measures in a timely manner.”’ Rob-

ertson v. Methow Valley Citizens Council, 109 S. Ct.

at 1846.

Like NEPA, Section 106 contemplates public no-

tification and involvement in order to assist the

agency in assessing the effects of its actions on his-

toric properties and in considering mitigation meas-

ures. Under Section 106, where a federally licensed

project or activity could affect historic properties, the

agency must issue a formal assessment of the impact

on historic properties, which assessment must be made

in consultation with the State Historic Preservation

Officer (“‘SHPO’’ and the Advisory Council on His-

5 The SHPO is the official] in each state responsible for as-

sisting federal agencies in carrying out their historic preserva-

tion responsibilities in the Section 106 consultation process, 36

C.F.R. § 800.1(c).

toric Preservation. 36 C.F.R. §§ 800.5, 800.6, 800.8.

When the effect of the undertaking on historic prop-

erties will be adverse, the agency must consider ways

in which this effect can be avoided or mitigated, and

must “‘provide an adequate opportunity for members

of the public to receive information and express their

views, id. § 800.5(e)(3), and to participate as inter-

ested or consulting parties in this process. Id.

§ 800.5(e).®

The role of citizens acting as private attorneys gen-

eral to enforce agency compliance with NEPA and

Section 106 is well-established. Indeed, Congress has

created an express, private right of action for ‘“‘any

citizen’’ to enforce the provisions of the National His-

toric Preservation Act. 16 U.S.C. § 470w-4; see Vieux

Carré Property Owners, Residents & Associates, Inc.

v. Brown, 875 F.2d 458, 457-58 (5th Cir. 1989),

petition for cert. filed, 58 U.S.L.W. 3291 (U.S. Oct.

6, 1989) (No. 89-563).

NEPA enforcement actions are generally brought

in two contexts: challenges to the sufficiency of an

agency’s consideration of impacts and alternatives,

and challenges to an agency’s refusal or failure to

comply with NEPA at all. In reviewing the former,

® If the agency determines that the action will have no effect

on historic properties, that finding must be documented and

transmitted to the SHPO, who has 15 days to object to the

finding. Id. § 800.5(b). The agency must also notify “interested

persons who have made their concerns known”’ to the agency.

Id. If the agency determines that an action would have no ad-

verse affect on historic properties, this finding must be docu-

mented and submitted to both the SHPO and the Advisory

Council on Historic Preservation, which has 30 days to object

to the finding. Jd. § 800.5(d).

courts have applied a more deferential, ‘‘arbitrary and

capricious’ standard. See Baltimore Gas and Electric

Co. v. Natural Resources Defense Council, Inc., 462

U.S. at 97-98. However, judicial review of an agency’s

failure to assess environmental impacts in the first

instance, as occurred here, is generally ‘“‘subject to

inspection under a more searching standard,’’ recog-

nizing that “[t]he spirit of [NEPA] would die aborning

if a facile, ex parte decision that the project was

minor or did not significantly affect the environment

were too well shielded from impartial review.’’ Save

Our Ten Acres v. Kreger, 472 F.2d 4638, 466 (5th Cir.

1973). Accord, Foundation for North American Wild

Sheep v. United States Dep’t of Agriculture, 681 F.2d

1172, 1177-78 (9th Cir. 1982).

C. History of the ICC’s “‘Exempt’’ Abandonment Proce-

dures :

The ICC’s ‘‘exempt’”’ abandonment procedures in-

volved in this case are applicable to railroads on which

no local traffic has moved for at least two years,

based on the ICC’s determination that these rail lines

do not require prior ICC review and approval to carry

out national rail transportation policies. 49 C.F.R.

§ 1152.50. Carriers falling within this exemption may

abandon their lines simply by providing ‘‘notice of

exemption” to the ICC. Within 20 days after receiv-

ing the carrier’s notice of exemption, the ICC must

publish a notice of the abandonment in the Federal

Register. Jd. § 1152.50(d\3). Today, the vast majority

of railroad abandonments are processed through the

ICC’s “exempt’”’ abandonment procedures.’

7 Interstate Commerce Commission, 1988 Annual Report, at

129 (1989) (more than 70 percent of all abandonments are pur-

suant to “exempt” procedures).

Since their adoption, the ICC’s ‘‘exempt’”’ abandon-

ment regulations have been a source of controversy

over the question of whether they allow abandon-

ments to go forward without providing adequate pub-

lic notice and opportunity to raise environmental and

historic preservation concerns under Section 106 and

NEPA. These concerns are rooted in the fact that

the ‘‘exempt’’ abandonment procedures, on their face,

allow railroad lines to be abandoned without prepa-

ration of an EA or an EIS, and instead only require

that the railroad serve on certain state agencies an

invitation to raise ‘“‘relevant environmental and en-

ergy” concerns. Jd. § 1105.11 (Appendix). Environ-

mental objections may be raised by the public only

after the fact, in the form of a petition to stay the

abandonment, which must be filed within 10 days after

publication of the notice of abandonment in the Fed-

eral Register, or in the form of a petition for recon-

sideration, which must be filed within 20 days of the

Federal Register notice. Jd. § 1152.50(d).

The Council on Environmental Quality (CEQ) has

expressly found that the ICC’s exempt abandonment

procedures conflict with the requirements of NEPA

by failing to provide adequate public notice of the

abandonment and by ‘“‘shift[ing] to intervenors a large

part of the burden of evaluating environmental issues

which Congress placed on agencies of the government

such as the ICC when it passed NEPA.’’® Likewise,

the Advisory Council on Historic Preservation has de-

termined that these procedures violate Section 106 by

allowing abandonments to go forward without con-

® Letter from Dinah S. Bear, General Counsel, CEQ, to Robert

S. Burk, ICC (Dec. 18, 1987) (Amicus App. 3a, 5a).

sulting with the State Historic Preservation Officer

or providing the Advisory Council an opportunity to

comment on the undertaking.’ Even within the ICC,

the exempt abandonment procedures have been crit-

icized for failing to provide advance notice to the

public sufficient to satisfy the statutory requirements

of Section 106 and NEPA."

These concerns regarding the incompatibility of the

ICC’s exempt abandonment procedures with NEPA

and NHPA were raised before the D.C. Circuit in a

direct challenge to the regulations, in Illinois Com-

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

1988), cert. denied, 109 S. Ct. 783 (1989). In its de-

cision, the D.C. Circuit expressed grave concerns

about whether the procedures for abandoning rail-

roads under these regulations conflicted with the pub-

lic notice and participation requirements of NEPA

and the NHPA, stating

A railroad seeking an abandonment exemption

must notify the state public service commission

* Findings of a Panel of Advisory Council Members Convened

on December 4th, 1987 to Consider Whether the Interstate Com-

merce Commission (ICC) Has Foreclosed the Council's Oppor-

tunity to Comment, in Violation of Section 106 of the National

Historic Preservation Act, in Permitting the Exempt Abandon-

ment of the Canal Branch of the Boston and Maine Railroad to

Become Final in Accordance with 49 CFR § 1152.50. (Amicus

App. 7a, 9a).

1° See Memorandum from William R. Southard, Office of

Transportation Analysis, ICC, to Donald Shaw, Office of Pro-

ceedings, ICC (July 31, 1986) (Pet. App. 59a) (‘‘Given the very

accelerated processing schedule involved in exempt proceedings,

state historic preservation offices seldom become aware of rail-

road abandonment exemption proposals’’).

10

ten days prior to filing the exemption provision.

...No EA would be available at that time, though,

and so the usefulness of such notice to environ-

mental groups is limited. The Commission, more-

over, does not advance any evidence that state

public service agencies will perform this service,

and, in fact, the Commission’s own staff in com-

ments concerning another exempt proceeding

suggest that the state agencies do not carry out

this function very well.

Id. at 1260 (emphasis added). The D.C. Circuit also

recognized that ‘the Commission’s reliance on private

parties to raise environmental concerns was unlawful.

The Commission may not delegate to parties and in-

tervenors its own responsibility to independently in-

vestigate and assess the environmental impact of the

proposal before it.”” Jd. at 1258.

Notwithstanding these concerns, the D.C. Circuit

declined to invalidate the regulations on their face,

based on the ICC’s simultaneous issuance of a state-

ment promising to make environmental assessments

available to the public before exempt abandonments

were authorized, id. at 1258 n.28, and based on the

ICC’s verbal assurances at oral argument that it

would allow 15 days from completion of the EA for

intervenors to seek a stay, and that it would auto-

matically grant a stay, if requested, until environ-

mental concerns are resolved. The D.C. Circuit found

that these procedures, if followed, would “‘obviate[ ]

the possibility that abandonments would be authorized

even though environmental questions were still out-

standing.”’ Jd. at 1260. However, the court expressly

stated that “[nJothing we decide here ... affects the

rights of these Petitioners or any others to challenge

1]

the adequacy of the Commission’s procedures as ap-

plied to a particular abandonment.”’ Jd. at 1258.

It is clear from the D.C. Circuit’s decision that the

exempt abandonment regulations would have been in-

validated on their face but for the ICC’s verbal as-

surances and unpublished policy statements that

“exempt”’ abandonments will be carried out consistent

with the NHPA and NEPA. Given this tenuous basis

for the D.C. Circuit’s decision, it is imperative that

the ICC’s case-by-case application of these regulations

be subject to careful and exacting judicial review.

Yet here, the Ninth Circuit refused even to exercise

jurisdiction over the ICC’s conceded failure to apply

its regulations consistent with its NEPA and Section

106 obligations. Not only did the ICC fail to provide

an environmental assessment within five days of pub-

lishing the notice of abandonment in the Federal Reg-

ister, but it also refused to automatically stay the

abandonment until all environmental concerns were

resolved—thus ignoring the very procedural assur-

ances that saved the regulations from facial invalidity

before the D.C. Circuit in Illinois Commerce Com-

mission v. ICC.

Thus, the Ninth Circuit’s decision has effectively

insulated the ICC from any review at all precisely

where judicial review is needed most. Review by this

Court is necessary to resolve this tension between the

mandatory commands of the NHPA and NEPA, and

the limitations on judicial review afforded to the de-

cisions of licensing agencies such as the ICC.

12

REASONS FOR GRANTING THE WRIT

I. The Ninth Circuit Erred in Denying Judicial Review

of the ICC’s Conceded Failure to Comply with Its

Non-Discretionary Duties Under NEPA and Section

106.

This case clearly shows that the ICC, despite its

assurances to the D.C. Circuit in Jllinots Commerce

Commission v. ICC, has failed to carry out its “ex-

empt’”’ abandonment proceedings consistent with the

commands of NEPA and Section 106. The ICC has

conceded in this case that it failed to comply with

the requirements of NEPA and Section 106 that an

environmental review and assessment document be

prepared and circulated to the public and the appro-

priate agencies with sufficient time for meaningful

comment prior to authorizing the abandonment of the

Sierra Railroad." And yet, incredibly, the ICC refused

the requests made by the California State Historic

Preservation Officer and the Advisory Council on His-

toric Preservation as well as by Petitioners to reopen

the abandonment proceeding in order to comply with

these statutes, on the ground that ‘‘Friends [of Sierra

Railroad], the SHPO, and other California agencies

all slept on their rights’ by failing to raise their ob-

jections before the abandonment was approved.”

The most troublesome aspect of this case is not the

ICC’s legal error itself, but rather, the Ninth Circuit’s

failure to exercise jurisdiction in order to review it.

Notwithstanding the ICC’s admission that it failed to

1 See S.R. Investors, Ltd.—Abandonment—in Tuolumne County,

CA, Dkt. No. AB-239X (ICC, July 14, 1987), at 10 (Pet. App.

3la, 48a).

2 Jd. (Pet. App. 48a).

13

comply with NEPA and Section 106, the Ninth Circuit

held that Petitioners had received ‘‘adequate’’ notice

of the abandonment, as defined by the ICC’s flawed

exempt abzndonment regulations, and therefore that

the preclusive doctrine of JCC v. Brotherhood of Lo-

comotive Engineers, 482 U.S. 270 (1987), rendered the

ICC’s noncompliance unreviewable."

The Ninth Circuit erred in relying on the ICC's

finding that the cursory, general purpose notice pro-

vided by the ICC to state public service agencies was

legally sufficient to place Petitioners on notice of their

opportunity to raise objections under NEPA and Sec-

tion 106. It clearly was not. Even if this ‘‘notice’’

was adequate to trigger the public’s opportunity to

intervene on a timely basis to request a public use

condition under the Revised Interstate Commerce Act,

49 U.S.C. § 10906, such ‘‘notice” is an impermissible

substitute for the notice required by NEPA and Sec-

tion 106—the preparation of an EA or an EIS, and

transmittal of the required assessment of effects on

historic properties to the California State Historic

Preservation Officer and the Advisory Council on His-

toric Preservation. Until these documents are pre-

pared and transmitted to the appropriate officials and

8 As the Ninth Circuit implicitly recognized below, J.C.C. v.

Brotherhood of Locomotive Engineers, alone, does not purport

to foreclose judicia] review of the ICC’s clearly erroneous refusal

to reopen a proceeding, where the party seeking to reopen the

proceeding did not have an adequate opportunity to raise these

allegations in the original proceeding. Rather, this Court's de-

cision in Locomotive Engineers reflects a concern that a rule not

be fashioned to deprive a party “of all opportunity for judicial

consideration—even on a ‘clearest abuse of discretion’ basis—of

facts which, through no fault of his, the original proceeding did

not contain.”’ 482 U.S. at 280.

14

interested persons, the Petitioners by law did not re-

ceive legally sufficient notice of the abandonment. Any

other result would permit the ICC to “‘shift[ ] to in-

tervenors a large part of the burden of evaluating

environmental issues which Congress placed on agen-

cies of the government such as the ICC when it passed

NEPA,” by placing the burden on Petitioners to raise

environmental objections before the ICC has prepared

the necessary environmental review documents. Har-

lem Valley Transportation Association v. Stafford, 50%

F.2d 328, 336 (2d Cir. 1974).* Thus, the ICC’s de-

termination, deferred to by the Ninth Circuit, that

Petitioners ‘‘slept on their rights’ to raise environ-

mental objections, cannot be squared with the ICC’s

concession that Petitioners received no legally suffi-

cient notice of those rights under NEPA and Section

106. (See Pet. App. 48a).

Ironically, the Ninth Circuit’s refusal to review

these NEPA and Section 106 violations has effectively

foreclosed judicial review of the ICC’s failure to com-

ply with NEPA and Section 106 precisely where it

is needed most—where the agency evades its envi-

ronmental review obligations altogether. Insulating

these clearly unlawful agency actions from judicial

review subverts the basic policy that agency decisions

not to comply with NEPA in the first instance should

be subject to a “more searching standard’’ of judicial

review than that applied to the adequacy of an agen-

In Harlem Valley Transp. Ass’n v. Stafford, the Second

Circuit invalidated the ICC’s procedures for complying with

NEPA in its traditional (i.e., not ‘“‘exempt”’) railroad abandon-

ment proceedings because the ICC prepared environmental as-

sessments only in response to public objections rather than using

the environmental assessment process to elicit public comment.

|

|

|

15

cy’s NEPA compliance, since decisions to avoid the

assessment of impacts altogether ‘‘pretermit[ ] all con-

sideration of that which Congress has directed be con-

sidered ‘to the fullest extent possible.’ ’’ Save Our

Ten Acres v. Kreger, 472 F.2d at 466. Accord, Foun-

dation for North American Wild Sheep v. United

States Dep’t of Agriculture, 681 F.2d 1172, 1177-78

(9th Cir. 1982).}*

II. This Court’s Review Is Needed to Clarify the Un-

settled Law Regarding Judicial Review Where

‘“‘Hobbs Act’’ Agencies Violate Clear, Non-Discre-

tionary Duties Under NEPA and Section 106.

The Ninth Circuit’s ruling underscores a pervasive

problem regarding the adequacy of judicial review of

violations of NEPA and Section 106 by agencies such

as the ICC that are subject:to special review statutes,

vesting exclusive review of agency actions in the

courts of appeals.’ The unsettled nature of the law

in this context is well-illustrated by Bywater Neigh-

borhood Ass’n v. Tricarico, 879 F.2d 165 (5th Cir.

1989), petition for cert. filed, 58 U.S.L.W. 3397 (U.S.

Dec. 6, 1989) (No. 89-898). In that case, the Fifth

Circuit held that the federal district court did not

have jurisdiction to review a claim that the Federal

18 But see Gee v. Hudson, 746 F.2d 1471 (4th Cir. 1984), cert.

denied, 471 U.S. 1058 (1985) (White, J., dissenting); River Road

Alliance, Inc. v. Corps of Engineers, 764 F.2d 445 (7th Cir.

1985), cert. denied, 475 U.S. 1055 (1986) (White, J., dissenting).

©The ICC is subject to the Administrative Orders Review

Act, 28 U.S.C. § 2342 (the ‘‘Hobbs Act’’), which vests in the

courts of appeals exclusive jurisdiction to review final ‘‘orders”’

of the ICC, the Federal Communications Commission, the Nu-

clear Regulatory Commission, and certain orders of the Secre-

tary of Agriculture and the Federal Maritime Commission.

16

Communications Commission (FCC) failed to comply

with Section 106 and NEPA in permitting the con-

struction of several communications facilities in the

center of the Bywater Historic District in New Or-

leans, since exclusive review of FCC licensing deci-

sions was vested in the court of appeals. Instead, the

court directed the plaintiff to file discretionary, after-

the-fact petitions raising environmental objections

with the agency, even though the environmental im-

pacts had already occurred.”

As the Ninth Circuit’s decision shows, the route

prescribed by the Fifth Circuit in Bywater, by which

“Hobbs Act’’ agencies must obtain judicial review of

the agency’s failure to comply with NEPA and Sec-

tion 106, does not lead to meaningful judicial review

but instead, has the result of foreclosing judicial re-

view altogether. This problem is particularly acute

where the agency’s noncompliance with NEPA and

Section 106 itself prevents public interest intervenors

from raising environmental objections within the lim-

ited time-frames established by the agency.

17 But see Susquehanna Valley Alliance v. Three Mile Island

Nuclear Reactor, 619 F.2d 231 (3d Cir. 1980), cert. denied, 449

U.S. 1096 (1981), in which the Third Circuit held that the federal

district court did have jurisdiction to review plaintiff's claim that

the Nuclear Regulatory Commission (NRC) had failed to comply

with NEPA prior to authorizing a nuclear power plant to dis-

charge radioactive water into the Susquehanna River. However,

in dissenting from the denial of the petition for certiorari, Justice

Rehnquist argued that enforcement should have been sought

initially with the agency, and then reviewed directly by the court

of appeals. General Public Utilities Corp. v. Susquehanna Valley

Alliance, 449 U.S. at 1099 (Rehnquist, J., dissenting) (citing City

of Rochester v. Bond, 603 F.2d 927, 936-37 (D.C. Cir. 1979).

17

Moreover, in such licensing proceedings, the sole

opportunity to- raise environmental objections is in the

context of discretionary petitions to reopen the pro-

ceeding or requests for enforcement action. If judicial

review of such discretionary actions is not barred al-

together,’* the scope of appellate review will often be

prejudicially narrowed by the fact that the agency’s

regulations place the court in the position of review-

ing a discretionary decision—i.e., the agency’s dis-

position of a petition to stay, reconsider, or reopen

the proceeding—rather than reviewing the agency’s

non-discretionary duties to comply with NEPA and

Section 106. As the court noted in Izaak Walton Lea-

gue v. Schlesinger, 337 F. Supp. 287 (D.D.C. 1971):

Review of discretionary acts is more limited than.

agency actions that are compelled by statute. If

plaintiffs’ request to become parties before the

AEC was denied their cry of failure to comply

with NEPA would be unadjudicated. Therefore,

the Court may never be afforded opportunity to

pass on the issue of whether the AEC failed to

comply with the statutory mandate of NEPA.

Id. at 293 (footnote omitted) (emphasis added).

When viewed together, the Fifth and Ninth Circuits

have effectively foreclosed any judicial review of Sec-

tion 106 and NEPA compliance by licensing agencies

subject to special review statutes, thereby undermining

Congress’ express grant of private enforcement au-

1* Cf. Heckler v. Chaney, 470 U.S. 821 (1985).

1° Schlesinger held that the district court had jurisdiction to

review claims that the Atomic Energy Commission failed to

comply with NEPA when it allowed interim operation of a nu-

clear power plant.

18

thority under the NHPA, 16 U.S.C. § 470w-4, and the

strong judicial policy favoring private enforcement of

NEPA. Accordingly, this Court’s review is needed to

clarify the important questions of the adequacy of ju-

dicial review when Hobbs Act agencies fail to comply

with their mandatory obligations under NEPA and Sec-

tion 106, and to halt the growing trend of now two

circuits, the Fifth and the Ninth, to foreclose judicial

review where a licensing agency completely avoids com-

pliance with these important environmental review

statutes.

CONCLUSION

For the foregoing reasons, the petition should be

granted.

Respectfully submitted,

Davip A. DOHENY

General Counsel

ANDREA C. FERSTER

(Counsel of Record)

ELIZABETH S. MERRITT

Assistant General Counsel

National Trust for

Historic Preservation

in the United States

1785 Massachusetts Ave. N.W.

Washington, D.C. 20036

(202) 673-4035

Davip G. BURWELL

Rails-to-Trails Conservancy

1400 16th Street N.W.

Washington, D.C. 20036

(202) 797-5400

WILLIAM F. DELVAC

1728 North Whitley Ave.

Hollywood, Calif. 90028

(213) 469-2349

January 2, 1990

APPENDIX

la

APPENDIX

Interests of Amici Curiae Organizations

National Trust for Historic Preservation

The National Trust for Historic Preservation in the

United States was chartered by Congress in 1949 as a

private, nonprofit organization, to promote public involve-

ment in the protection of America’s historic resources and

to further the historic preservation policy of the United

States. See 16 U.S.C. § 468, 461-467. The National Trust

currently has more than 225,000 individual and 3000 or-

ganizational members nationwide. The National Trust’s

Chairman is by statute a member of the Advisory Council

on Historic Preservation, id. § 470i(aXiX8), an independent

federal agency, which is responsible for implementing the

National Historic Preservation Act (‘“‘“NHPA’’), 16 U.S.C.

§§ 470 et seg., and for commenting on federal undertakings

affecting historic resources. See id. §§ 470s, 470f. The Ad-

visory Council’s duties also include reviewing the policies

and programs of other federal agencies to ensure consist-

ency with the historic preservation policies adopted by

Congress. See id. §§ 470, 470).

Rails-to-Trails Conservancy

The Rails-to-Trails Conservancy is a nonprofit public in-

terest corporation with approximately 60,000 members

dedicated to fostering the preservation of abandoned and

about-to-be-abandoned railroad rights-of-way for continued .

present and future public use, including for recreational

trails and other compatible uses, and railbanking.

California Preservation Foundation

The California Preservation Foundation is a California

nonprofit corporation dedicated to promoting historic pres-

ervation through awareness and education. The foundation,

a statewide group with over 1,000 individual and organi-

zational members, assists local and regional groups

2a

throughout California. The California Preservation Foun-

dation has been active for many years in assisting the

efforts to save the Sierra Railroad.

Society for Historical Archaeology

The Society for Historical Archaeology is a nonprofit

scientific and educational organization with more than 2000

members, which aims to promote scholarly research and

dissemination of knowledge concerning historical archae-

ology. The Society is specifically concerned with the iden-

tification, interpretation, and conservation of sites and

materials on land and under water.

Society for California Archaeology

The Society for California Archaeology is a nonprofit

scientific and educational corporation with a membership

of over 600 professional archaeologists, students, and

avocationals in California, dedicated to the study and pres-

ervation of heritage resources, both historic and prehis-

toric.

Tuolumne County Historical Society

The Tuolumne County Historical Society was established

in 1956 as a nonprofit corporation chartered to “record,

preserve, protect, and disseminate’’ the history of Tuol-

umne County, California. The Society promotes and urges

protection of the Sierra Railroad, which is historically sig-

nificant in the economic, social, and political development

of the county and the larger central Sierra Region.

3a

EXECUTIVE OFFICE OF THE PRESIDENT

COUNCIL ON ENVIRONMENTAL QUALITY

722 Jackson Place, N.W.

Washington, D.C. 20503

December 18, 1987

Mr. Robert S. Burk

General Counsel

Interstate Commerce Commission

12th Street and Constitution Ave., N.W.

Washington, D.C. 20423

RE: Proposed Amendments to ICC Procedures Imple-

menting the National Environmental] Policy Act;

Ex Parte No. 55 (Sub-No. 22A)

Dear Mr. Burk:

Last week, I met with Louis Mackall and Ellen Hansen

of your office, as well as Carl Bausch, Chief of the ICC’s

Section of Energy and Environment, to discuss the above-

captioned proposed amendments. As you may know, CEQ

generally reviews an agency’s proposed NEPA procedures

or amendments to NEPA procedures in the initial draft

stages, and works with the agency throughout the process.

Prior to publication of procedures in final form in the

Federal Register, CEQ issues, if appropriate, a letter in-

dicating that the agency’s procedures are consistent with

the CEQ regulations.

During our meeting, I mentioned a number of concerns

about the draft ICC procedures. Some of these are minor;

others are more significant. Mr. Mackall suggested that |

summarize these concerns in writing. I am hopeful that

all of them can be resolved to the mutual satisfaction of

CEQ and the ICC.

I understand that the ICC wishes to publishes [sic] the

draft regulations in the Federal Register as soon as pos-

sible. While that it [sic] is certainly a matter of discretion

4a

on the part of the ICC, I wanted to summarize for you

my concerns about the current draft proposed amend-

ments.

Timing of NEPA Compliance for Classes for Exempted

Actions: The ICC maintains that it is not required to com-

plete the NEPA process prior to publication of a notice

of exemption for an action because the notice itself is not

a decision; rather, it is a public information notice. The

ICC argues that the “real’’ decision took place at the time

the Commission determined to exempt certain classes of

actions from normal regulation. If, the ICC says, someone

raises an environmental issue in a timely manner, the pro-

ceeding will then be stayed and appropriate NEPA com-

pliance will occur.

It appears to me that this line of argument is flawed

and disingenuous. First, if the only decision point in the

exemption process is the ICC’s decision to designate a

certain class of actions as exempt (which, whether it is

the only decision point or not, I would certainly view as

a decision), then one would expect the ICC to have fully

and comprehensively complied with NEPA at that time.

Instead, the ICC is apparently relying on an “environ-

mental memorandum”’ prepared by the Section on Energy

and Environment, which, the agency is [sic] argues, is the

“functional equivalent”’ of a NEPA document. The “‘func-

tional equivalent”’ doctrine applies only to certain activities

of the Environmental Protection Agency (EPA) in admin-

istering certain environmental statutes. The doctrine has

developed because of concern on the part of Congress and

the courts that compliance with the procedural require-

ments of NEPA would delay EPA’s implementation of

statutes which were written for the purpose of environ-

mental protection. It has been applied only to EPA, be-

cause of EPA’s unique situation in the federal government

in having an environmentally protective mission as its pri-

mary goal, and it is applied only to those statutes which

provide for the “‘:unctional equivalent” of the NEPA proc-

5a

ess (for example, analysis of alternatives and public par-

ticipation). The courts have rejected attempts by other

agencies to use the functiona! equivalence doctrine, even

when part of an agency’s mission is an environmental func-

tion. Texas Committee on Natural Resources v. Bergland,

573 F.2d 201 (5th Cir. 1978). The ICC’s claim to the func-

tional equivalent doctrine is, frankly, untenable.

Even assuming, however, that the ICC had properly

analyzed the environmental impacts of its class exemption

regulations in an environmental assessment or an envi-

ronmental impact statement, the argument that the notice

of exemption is not a decision is suspect. It appears to

me that the rights of the parties involved in the action

are determined by the notice unless someone intervenes.

The fact that a proceeding may be stayed by a party

raising environmental concerns demonstrates that there is

an opportunity for the Commission to make an [sic] rea-

soned decision among alternative courses of actions. The

ICC apparently believes that the very existence of this

opportunity proves that there is adequate compliance with

the environmental laws. However, this scheme also proves

that there is a further decision point, at which point com-

pliance with environmental statutes, including NEPA, is

[sic] occurs only upon petition of an outside party. Thus,

the agency appears to be reflecting much the same attitude

as it did in 1974, when the Second Circuit Court of Appeals

observed that:

“The ICC is apparently content to place the bur-

den on interveners whose resources might be lim-

ited to challenge any environmental statements

that the railroads might make in their applica-

tions for abandonment. If interveners do not chal-

lenge these statements, they may be accepted as

true. This passive approach by the Commission

shifts to interveners a large part of the burden

of evaluating environmental issues which Con-

gress placed on agencies of the government such

6a

as the ICC when it passed NEPA.” Harlem Val-

ley v. Stafford, 500 F.2d 328, 336 (2d Cir. 1974).

In our discussions on December 11, 1987, Mr. Mackall

cited Illinois Commerce Commission v. ICC, 787 F.2d 616

(D.C. Cir. 1986), and Crounse Corp. v. ICC, 781 F.2d 1176

(6th Cir. 1986), as providing authority which approved the

manner in which the ICC conducts its NEPA compliance

for exempted classes of actions. Neither of these cases

stand for the proposition cited. The first case does not

even reference NEPA, but rather deals with challenges

against the deregulation of abandonment actions for out-

of-service lines based on other causes of action. Crounse

Corp. v. ICC does include a NEPA cause of action, but

the underlying action (an acquisition) was not in the ex-

' empted class, and the court, rather than dealing with the

timing issue, merely held that the ICC’s decision not to

prepare an environmental impact statement, based upon

the analysis in an environmental assessment, was ade-

quate. In short, neither case supports the ICC’s treatment

of exempted actions under NEPA.

* * * &

I am aware that the ICC is currently in litigation which

involves some of the issues raised in this letter; principally,

those issues relating to overall NEPA compliance for ex-

empted classes of action. This. situation makes discussion

of these matters rather more sensitive; however, the ICC’s

proposed amendment also makes the discussion imperative.

I would be happy to meet with you to discuss these issues

in further detail, or to continue working with your staff

and the staff of the SEE.

Yours truly,

Dinah Bear

General Counsel

7a

Advisory Council On

Historic Preservation

The Old Post Office Building

1100 Pennsylvania Avenue, NW, # 809

Washington, DC 20004

FINDINGS OF A PANEL OF ADVISORY COUNCIL

MEMBERS CONVENED ON DECEMBER 4TH, 1987 TO

CONSIDER WHETHER THE INTERSTATE COMMERCE

COMMISSION (ICC) HAS FORECLOSED THE COUNCIL’S

OPPORTUNITY TO COMMENT, IN VIOLATION OF

SECTION 106 OF THE NATIONAL HISTORIC

PRESERVATION ACT, IN PERMITTING THE EXEMPT

ABANDONMENT OF THE CANAL BRANCH OF THE

BOSTON AND MAINE RAILROAD TO BECOME FINAL

IN ACCORDANCE WITH 49 CFR § 1152.50

1. By allowing the exempt abandonment of the Canal

Branch to become final on April 16, 1987 before it sought

the comments of the Council pursuant to Section 106 and

36 CFR Part 800, ICC foreclosed the Council’s opportunity

to comment on abandonment of the Canal Branch as a

whole.

2. The Council conditionally retains a reasonable oppor-

tunity to comment on the undertaking as it directly affects

those properties along the Canal Branch right-of-way that

are presently known to be eligible for the National Reg-

ister, provided that ICC will: (a) impose a reasonable length

of time (approximately up to 120 days) public use condition

on the abandonment of the remaining unsold portion of

the Branch; (b) extend the effective date of its November

25 decision concerning the abandonment for the period of

the public use condition; and (c) consult with the Council’s

staff, the Connecticut State Historic Preservation Officer,

and other interested parties to consider ways to preserve

such properties through public use or other means.

8a

3. In the event that ICC will take the actions identified

in paragraph 2, this panel would suggest that the Council

recommend mitigation actions to be taken by ICC, includ-

ing but not limited to:

(a) marketing those portions of the Canal Branch not al-

ready disposed of, or if necessary, smaller portions of the

Cana] Branch containing historic properties, to public ent-

ities or others who will preserve them in appropriate con-

temporary use;

(b) marketing such sections subject to preservation re-

strictions;

(c) documenting historic properties prior to their demoli-

tion or disposition, in a manner consistent with the Sec-

retary of the Interior’s Standards and Guidelines for

Architectural and Engineering Documentation (48 FR

44730-34); and

(d) ensuring consultation with the Connecticut State His-

toric Preservation Officer and other interested parties prior

to the demolition of any historic property, and making

possible the recovery of materials and data from any such

property by or on behalf of such parties.

4. If ICC does not take the actions outlined in paragraph

2 within_a reasonable length of time, the panel will re-

convene to reconsider whether the Council’s opportunity

to comment has been foreclosed with respect to the un-

dertaking’s direct effects on those properties along the

Canal Branch right-of-way that are presently known to be

eligible for the National Register.

5. Because ICC’s procedures for exempt abandonments (49

CFR § 1152.50) are presently not compatible with the time-

ly consideration of effects on historic properties and ap-

pear likely to lead to ‘‘ministerial errors” like the one that

occurred in this case, which may lead to foreclosure of the

Council’s opportunity to comment, ICC should immediately

examine its procedures, in consultation with the Council’s

9a

staff and other interested parties, to improve coordination

between those procedures and Section 106.

6. Because of the particular issues and complexities pe-

culiar to this case the findings of this panel in paragraphs

1 through 4 are not to be taken as precedent for the

findings of the Council with respect to other potential

foreclosure situations.