Petition for Writ of Certiorari — V-1 Oil Co. v. United States

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FILED

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No.

In The

Supreme Court of the United States

October Term, 1995

V-1 OIL COMPANY, INC. d/b/a V-1 PROPANE,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the Un.ted States

Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

PETER STIRBA

Counsel of Record

LINETTE B. HUTTON

STIRBA & HATHAWAY

Attorneys for Petitioner

215 South State, Suite 1150

Salt Lake City, Utah 84111

(801) 364-8300

8095

LC (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

ervices, inc.

QUESTIONS PRESENTED

1. Whether the decision of the Ninth Circuit Court of

Appeals, affirming the state court’s decision that V-1 Oil

Company is subject to unannounced, warrantless inspections

pursuant to the Hazardous Materials Transportation Act

(“HMTA”), 49 U.S.C. § 1801 et seq., conflicts with the Fourth

Amendment to the United States Constitution and this Court’s

decision in New York v. Burger, 482 U.S. 691 (1987).

2. Whether the government was appropriately granted

permanent injunctive relief when it was based on a

constitutionally infirm statute.

LIST OF PARTIES

The sole parties to this case are reflected in the caption.

Petitioner, V-1 Oil Company, Inc., d/b/a/ V-1 Propane (“V-1”),

has no parent companies, subsidiaries or affiliates.

iil

TABLE OF CONTENTS

Page

BS ES er ee ee i

EEE TES IC yn ii

hs ode wey bop én eeev¥ es ili

REE SOE ne ee iv

EE Ye {

Statement of Jurisdiction ...............ccceceeees l

Constitutional Provision and Statute Involved ....... 2

ne ec ea cd wb ec esbeene 3

Reasons for Granting the Writ ..................... 6

I. The Decisions Below Erode V-1’s Fourth

Amendment Right To Be Secure Against

Unreasonable Search And Seizure And Directly

Conflict With This Court’s Constitutional

Analysis Set Forth In New York v. Burger. ..... 10

A. The HMTA Statute Does Not Provide A

Constitutionally Adequate Substitute For A

CN be SL Aad a cainhuS sitere ul oo Rv ews 10

B. The HMTA Statute Provides No Certainty

Or Regularity As Required By The Fourth

Amendment And New York v. Burger. ..... 11

Contents

Page

C. Warrantless Inspections Are Not Necessary

To The Regulatory Scheme. ............ 15

D. The Statute Fails To Limit The Discretion

Of the Inspecting Agents. .............. 16

II. Because The Ninth Circuit Granted The

Government’s Motion For Injuuctive Relief

Based On A Constitutionally Flawed Statute,

The Injunction Must Be Lifted. .............. 18

CIN «Se weis ce iueini Silewawenee re eens tas rers 20

TABLE OF CITATIONS

Cases Cited:

Burris v. Turnbo, 743 F.2d 497 (9th Cir. 1992) ........ 9,18

Colonnade Catering Corp. v. United States, 397 U.S. 72

CRF Av bee ee cous cdves tb dieceusses teria 15, 16

Donovan v. Dewey, 452 U.S.594(1981) ........ B; 31, 33, 87

Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) .......

adhe eee eribeedy ores tae tee 8,9, 10, 14, 17, 18, 19

McLaughlin v. Kings Island, 849 F.2d 990 (6th Cir.

| PEE Teor errr er Tre eee yr ree 18,19

New York v. Burger, 482 U.S. 691 (1987) ............

Fouees pawaueuya i, 5,6, 7, 8,9, 10, 11, 13, 15, 16, 17, 19, 20

Contents

Page

Rondeau v. Mosinee Paper Corp., 422 U.S.49(1975) . 9,18

S&S Pawn Shop, Inc. v. City of Dei City, 947 F.2d 432

(UR SUED .0Ss-34 Peek cenit asia cst ceieeis 8,9

See v. City of Seattle, 387 U.S. 541 (1967) ........... 19, 20

Serpas v. Schmidt, 827 F.2d 23 (7th Cir. 1987) ........ 16

United States v. Biswell, 406 U.S. 311(1972) ........ 6,8, 16

United States v. Kaiyo Maru No. 53, 699 F.2d 989 (9th

| a es epee eR eR Oe Roo ME TCE tae 9 5,3, 11,83

United States v. V-1 Oil Company, 63 F.3d913 .......

MENS bas ceeneoenvaeeewen 1,5,6,7, 11, 13, 14, 17, 18, 19

V-1 Oil Company v. State of Wyoming Department of

Environmental Quality, 902 F.2d 1482 (10th Cir

1990), cert. denied, 498 U.S.920(1990) .......... 14

Statutes Cited:

SUN OO: Fde 5s iwaeweteven ouerdes 8

pg ee oe) ee ey ae ee wean’ l

Fee I Doo 6 ak eS cee hen 14

og RB er ee rare ee > eee oS

Contents

Page

PIU BA.. BG THORGISD occ cacisdiscedesseuveves 12

UBL. | TGR bles Boddy eoekdiasaeReeneee 3

49'U.S.C. app. § IGGB(C) ...csccess 2,3, 4, 6, 8, 12, 14, 15, 17

BUBBA. GG. S Tees i bn kk ba ckcicacxs meen 15

UBS. GS Tere oh ks cn kaaees vs evusensiee 4

United States Constitution Cited:

FORTE AMINE, 6c ciedaocsecedeetewdas i, 2,9, 10, 20

Other Authorities Cited:

Charles Wright & Arthur Miller, Federal Practice and

POC. COVES BORE hi i's bc Bees a Fea e i 18

SCER. § U7TS.1GT vic cvevesveeavecevecetes ewes 3,12

APPENDIX

Appendix A — Order of the United States Court of

Appeals for the Ninth Circuit Fited November 1,

IGDS ow cccncessccecdueéaeests abe steeeeeaee au la

Appendix B — Opinion of the United States Court of

Appeals for the Ninth Circuit Filed August 24, 1995

“ee eveeeeveeveeeevneeeeeeeeneeeeeneeereeeeeeeeeeeeeeeeee

vii

Contents

Appendix C — Order of the United States Court of

Appeals for the Ninth Circuit Filed August 24, 1995

peeceoseoonoeeBasesspaeeseeaaseseeoeooeaeesceeee eo seee eee ee ese S

Appendix D — Order of the United States District Court

for the District of Idaho Dated October 11,

Pee re Pe reer rr PEEL erie TERT CTE OC CULOL

Appendix E — Judgment of the United States District

Court for the District of Idaho Dated October 11,

RE SOR 2 eee ee re Co ce eee aparece s

Appendix F — Order of the United States District Court

for the District of Idaho Filed January 13,1994 ....

Appendix G — Relevant Statutes .............0545:

Appendix H — Exhibit 1 — Portions of the Hazardous

Materials Enforcement Manual .................

Appendix I — Inspection Report (Omitted here but

submitted separately as Lodging Appendix.) ......

Appendix J — Inspection Report (Omitted here but

submitted separately as Lodging Appendix.) ......

Page

15a

l6a

33a

35a

48a

54a

59a

60a

Petitioner, V-1 Oil Company, d/b/a/ V-1 Propane (“V-1”"),

respectfully prays that a writ of certiorari issue to review the

decision of the United States Court of Appeals for the Ninth

Circuit in this matter.

OPINIONS BELOW

The opinion of the Ninth Circuit is reported at 63 F .3d 909

(9th Cir. 1995) and is reprinted in the Appendix hereto at

Appendix B, 2a. The Order Granting Preliminary Injunction,

dated January 13, 1994 is unreported. It is reprinted in the

Appendix hereto at Appendix F, 35a. The Order on Cross

Motions for Summary Judgment, dated October 1 1, 1994 is

unreported. Itis reprinted inthe Appendix hereto at Appendix D,

16a. The judgment of the District Court of Idaho, dated October

11, 1994 is unreported. It is reprinted in the Appendix hereto at

Appendix E, 33a.

STATEMENT OF JURISDICTION

An appeal to the decision of the District Court of Idaho was

filed on August 24, 1995. Itis unreported. It is reprinted in the

Appendix hereto at Appendix C, 15a. The Ninth Circuit issued its

decision affirming the Distric Court of Idaho’s judgment on

August 24, 1995. Itis reported at 63 F.3d 909 (9th Cir. 1995), and

is reprinted in the Appendix hereto at Appendix B, 2a. A timely

petition for rehearing and suggestion for rehearing in banc was

denied by Order on November 1, 1995. The Order appears in the

Appendix at Appendix A, la. This petition for Writ of Certiorari

is timely filed January 30, 1996. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION

AND STATUTEINVOLVED

U.S. Const. amend. IV, provides:

The right of the people to be secure in their

persons, houses, papers, and ef fects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

49 U.S.C. app. § 1808(c), provides:

The Secretary may authorize any officer,

employee, or agent toenter upon, inspect, and

examine, at reasonable times and in a

reasonable manner, the records and

properties of persons to the extent such

records and properties relate to —

(1) the manufacture, fabrication,

marking, maintenance, recondition,

repair, testing, or distribution of

packages or containers for use by any

person in the transportation or

shipment by any person of hazardous

materials in commerce; or

(2) the transportation or shipment by

any person of hazardous materials in

commerce.

STATEMENT OF THE CASE

This is a case of first impression challenging the

constitutional validity of the Hazardous Materials

Transportation Act! (“HMTA”), 49 U.S.C. app. § 1801 (1975) et

seq. which gives the Secretary of Transportation authority to

authorize any officer or agent to “enter upon, inspect and

examine [without a warrant and unannounced]. . . the records

and properties of persons” related to the “transportation or

shipment by any person of hazardous materials in commerce.”

49 U.S.C. § 1808(c)(emphasis added). Hazardous materials

include any of the nearly 16,000 items listed in the Code of

Federal Regulations, 49 C.F.R. § 172.101.

Though the language of the HMTA statute does not specify

which “officer, employee, or agent” may conduct inspections,

the Secretary of Transportation has identified the Federal

Railroad Administration (“FRA”) as one agency capable of

conducting inspections under 49 U.S.C. § 1808(C). They,

therefore, are able to inspect the “records and properties of

persons” relating to “the transportation or shipment” of

“hazardous materials incommerce.” 49 U.S.C. § 1808(C).

V-1 Oil Company, Inc. (“V-1”), is a liquified propane gas

retailer servicing six western states. V-1 receives shipments of

propane via rail which it then stores for later resale. Because

propane is a hazardous material, itrequires extreme caution in its

handling and storage. As such, V-1 employees are specially

trained and educated in the task of handling propane during the

unloading process. These precautions have resulted in a high

level of employee expertise.

1. Pub. L. No. 93-633, 88 Stat. 2156 (1975), Pub. L. No. 93-633,

§ 113(g), 88 Stat. 2163, repealed the Railroad Safety and Hazardous Materials

Transportation ControlAct of 1970, No. 91-458, 84 Stat. 971 (1970).

All V-1 locations are inspected and licensed by local fire

officials. These inspections are usually conducted in a

cooperative manner with appointments made in advance of the

inspections. Due to the hazardous nature of propane, V-1 has a

strict policy of not allowing any untrained or unauthorized

person(s) access to V-1 property. This standard is applied equally

to everyone, including state and federal inspectors. This policy

assures V-1 that persons visiting the premises are qualified and

familiar with the operations, equipment and hazards associated

with handling propane.

V-1 maintains propane storage facilities at 39 different sites.

Since the enactment of 49 U.S.C. App. § 1808(c) in January 1975,

The FRA has attempted to inspect V-1 approximately five or six

times.” For safety reasons, V-1 asks each person who desires to

enter the premises, to fill out a one-page information sheet. This

information is used to ascertain the !cvel of training and/or

expertise the requesting individual has had in connection with the

safe handling of propane and the type of equipment that V-1 uses

in the handling and storage of propane. On each occasion, the

FRA inspectors objected to V-1’s safety requirement. In

response, the government brought an action for injunctive relief

in the United States District Court for the District of Idaho

pursuant to 49 U.S.C. app. § 1810(a), seeking to enforce the

HMTA and the alleged right the statute confers on agents to enter

onto and inspect the premises of V-1 unannounced and without a

warrant. The court granted the government’s motion. Thereafter,

Cross Motions for Summary Judgment were filed by the parties

and the District Court granted the government’s Motion for

2. The number of inspections is in dispute. The government claims that

V-1 has been inspected more times than petitioner asserts. See Petitioner's

Lodgings, App. J, 60a. If the government has conducted additional

inspections, V-1 was not aware of them. Even taking into consideration the

validity of the government's claims, V-1 has not been inspected on a regular or

certain basis.

Permanent Injunction while denying V-1’s motion. V-1 appealed

the District Court’s ruling to the Ninth Circuit.

In a split vote, Justices Farris and Hawkins af firmed the

District Court’s ruling. The court found:

The first two prongs of the Burger° test are

easily satisfied. The government has a

substantial interest in regulating the

transportation and temporary storage of

hazardous material to protect life and

property. Also, unannounced inspections

reasonably ensure that the statute is

satisfactorily enforced.

United States v. V-1 Oil Company, 63 F.3d 909, 912 (9th Cir.

1995).

In finding that the third prong of the Burger test had been

met, the court declared that “[V-1’s own] activities provides

adequate notice to V-1 that its property and records ‘will from

time to time be inspected by government of ficials.’” Jd. at 912.

(quoting United States v. Kaiyo Maru No. 53, 699 F.2d 989, 995

(9th Cir. 1983). Circuit Judge Noonan filed a dissenting opinion.

United States v. V-1 Oil, 63 F.3d at 913.

On petition for rehearing, petitioner asserted that the

majority had overlooked and misapprehended a material point of

law when it decided the case. Petitioner maintained that the

Fourth Amendment required that, for a statute which purported to

authorize warrantless administrative searches, in order to

withstand constitutional muster, the language of the statute must

contain sufficient specificity that it is an adequate substitute for

3. New York v. Burger, 482 U.S. 691, 702-03 (1987).

a warrant. The request was denied despite Justice Noonan’s vote

to accept the petition for rehearing and to grant the suggestion for

rehearing in banc. (App.A, la).

REASONS FOR GRANTING THE WRIT

This is a case of first impression challenging the

constitutional validity of the Hazardous Materials

Transportation Act, 49 U.S.C. § 1801 et seg. The district court

and Ninth Circuit Court of Appeals erroneously found that based

on substantive law, V-1 Oil Company is subject to unannounced,

warrantless inspections under 49 U.S.C. § 1808(c). However, the

decisions of the lower courts to allow such searches directly

conflicts with this Court’s decision in New York v. Burger, 482

U.S. 691 (1987), and ignores the framework this Court provided

to determine a statutes constitutional adequacy in providing fora

warrantless search.

This Court’s test for constitutional adequacy, under the

Fourth Amendment and New York v. Burger, focuses strictly on

the specific statute which purports to authorize warrantless

searches and the relationship of the FRA, as a regulatory

authority, to V-1 as a propane business. United States v. Biswell,

406 U.S.311,315 (1972) (“the legality of the search depends. . .

on the authority of a valid statute”).

“It is [] axiomatic that a business is included among ‘the

people’ whose right the [Fourth] Amendment safeguards. United

States v. V-1 Oil Company, 63 F.3d at913. “Tothe rule requiring

a warrant as the guarantee of reasonableness”™ this Court has

established specific exceptions:

4. United States v. V-1 Oil Company, 63 F.3d at 913 (dissent of Circuit

Judge Noonan).

First, there must be a ‘substantial’

government interest that informs the

regulatory scheme pursuant to which the

inspection is made. Second, the warrantless

inspections must be ‘necessary’ to further the

regulatory scheme. Finally, the statute’s

inspection program, in terms of the certainty

and regularity of its application, [must]

provid{e] a constitutionally adequate

substitute for a warrant. In other words, the

regulatory statute must perform the two basic

functions of a warrant: it must advise the

owner of the commercial premises that the

search is being made pursuant to the law and

has a properly defined scope, and it must limit

the discretion of the inspecting officers. To

perform this first function, the statute must be

‘sufficiently’ comprehensive and defined

that the owner of commercial property cannot

help but be aware that his property will be

subject to periodic inspections undertaken

for specific purposes.

New York v. Burger, 482 U.S. at 702-03 (citations

omitted)(emphasis added).

Both lower courts, after only a cursory discussion of the

facts in light of the statute, found that the three elements of the

Burger test had been met. In affirming the district court’ s

findings, the Ninth Circuit found that because V-1 handles

propane, it is aclosely regulated business with “no reasonable

expectation of privacy.” United States v. V-1 Oil, 63 F.3d at 912.

Therefore, “the government has a substantial interest” in V-1's

business. Jd. The second prong met with an equally brief and

cursory analysis. The Ninth Circuit declared that unannounced

inspections reasonably ensured that the statute was being

“satisfactorily enforced.” Jd. Finally, the court found that

section 1808(c) of 49 U.S.C., met the third prong of the analysis

because V-1’s own “activities provide adequate notice that its

property and records ‘will from time to time be inspected by

government officials.”” Jd. (quoting United States v. Kaiyo

Maru, 699 F.2d at 995.

The lower courts have concluded that merely because V- 1

deals in propane or because they deal in a pervasively regulated

business, that V-1 is automatically subject to unannounced and

warrantless inspections. United States v. V-1 Oil,63 F.3dat911,

912. Just because a business may be regulated and conduct

business that affects commerce does not warrant an automatic

conclusion that the Burger test has been met. Marshall v.

Barlow’s, Inc., 436 U.S. 307, 313-314 (1978), see also New York

v. Burger, 482 U.S. at 702-703. This is not the standard. Jd. Yet

this is precisely the conclusion that the Ninth Circuit and the

lower district courts have made.

Their decisions conflict with the analysis provided by this

Court and provide no explanation regarding how the HMTA

“statute [is] sufficiently comprehensive that the owner of

commercial property cannot help but be aware that his property

will be subject to periodic inspections.” New York v. Burger, 482

U.S. at 703 (quoting Donovan v. Dewey, 452 U.S. 594, 603

(1981)). By contrast, other constitutional statutes have defined

precisely who will be searched. The statute in Burger declared

that operators of vehicle dismantling businesses would be

subject to regular inspections. New York v. Burger, 482 U.S. at

694-95, 711. In Biswell, the statute being challenged was the Gun

Control Act of 1968, 82 Stat. 1213, 18 U.S.C. § 921 et seg. The

statute specifically provides that firearms or ammunition dealers

will be inspected. Biswell, 406 U.S. at311-12. Finally,inS&S

Pawn Shop, Inc. v. City of Del City, 947 F.2d 432, 435 (10th Cir.

hI BREN VCP Sohne P9)

)

1991) the statute in question declared that pawn brokers would be

inspected. These statutes set forth a clear and reasonable

standard as to who will be subject to warrantless inspections. The

standard of reasonableness which the Fourth Amendment

provides must remain a shield between the people and-

government intrusion, “to hold otherwise would belie the origin

of that Amendment and the American colonial experience.”

Marshall v. Barlow’s, 436 U.S. at 307, 311.

Despite the fact that this standarc. of reasonableness is

lacking in the HMTA statute, hence making it a constitutionally

inadequate statute, the Ninth Circuit and the district court both

upheld the granting of the permanent injunction. This decision,

based on the merits of the case, was due to their erroneous

conclusion that the test set forth in Burger had been met.

However, when the required finding of success on the merits is

lacking, granting of the permanent injunction is in error. See

Rondeau v. Mosinee Paper Corp. ,422 U.S.49,57 (1975); Burris

v. Turnbo, 743 F.2d 497, 400 (9th Cir. 1992). Therefore, since the

Ninth Circuit incorrectly found the HMTA statute to be

constitutional and in compliance with the standards set forth in

New York v. Burger, the Ninth Circuit’ s ruling warrants review by

this Court.

THE DECISIONS BELOW ERODE V-1’S FOURTH

AMENDMENT RIGHT TO BE SECURE AGAINST

UNREASONABLE SEARCH AND SEIZURE AND

DIRECTLY CONFLICT WITH THIS COURT’S

CONSTITUTIONAL ANALYSIS SET FORTH IN NEW

YORK v. BURGER.

A. The HMTA Statute Does Not Provide A Constitutionally

Adequate Substitute For A Warrant.

Although this Court has carved out an exception to the

warrant requirement of the Fourth Amendment “for industries

that are closely regulated,” it stated “even in the context of a

pervasively regulated business, a warrantless inspection will be

deemed reasonable only where the “statute’s inspection program,

in terms of the certainty and regularity of its application,

[provides] aconstitutionally adequate substitute for a warrant.”

New York v. Burger, 482 U.S. at 703.

In Our words, the regulatory statute must

perform the two basic functions of a warrant:

(1) it must advise the owner of the

commercial premises that the search is

being made pursuant to the law and has

a properly defined scope, and

(2) it must limit the discretion of

the inspecting officers.

Id. (quoting Marshall v. Barlow’s Inc.,436 U.S. 307,323 (1978).

It is the specific statute, which purports to provide warrantless

searches, which must be “sufficiently comprehensive and

;

defined that the owner of commercial property cannot help but be

aware that his property will be subject to periodic inspections

undertaken for specific purposes.” New York v. Burger, 482 US.

at 703 (quoting Donovan v. Dewey, 452 U.S. at 600).

The lower courts finding that “V-1’s extensive activities

relating to the transportation of propane,” “provide[s] adequate

notice that its records will from time to time be inspected by

government officials,” is in direct conflict with this Court’ s

holding that it is the regulatory statute which must be

“sufficiently comprehensive and defined that the owner of

commercial property cannot help but be aware that his property

will be subject to periodic inspections.” United States v. Kaiyo

Maru, 699 F.2d at 995 (quoting Donovan v. Dewey, 452 U.S. at

600). When the HMTA statute is analyzed pursuant to the

framework provided by the Courtin Burger, itis apparent that it

does not pass the standard of reasonableness which the Fourth

Amendment requires. As Circuit Judge Noonan stated in his

dissent, “there has to be ‘aconstitutionally adequate substitute

for a warrant,’ and that substitute must be the statute being

enforced.” United States v. V-1 Oil, 63 F.3d at 914 (Noonan, J.,

dissenting)

B. The HMTA Statute Provides No Certainty Or Regularity

As Required By The Fourth Amendment And New York v.

Burger.

The HMTA statute provides:

The Secretary may authorize any officer,

employee, or agent toenter upon, inspect, and

examine, at reasonable times and in a

reasonable manner, the records and

properties of persons to the extent such

records and properties relate to —

(1) the manufacture, fabrication,

marking, maintenance, reconditioning,

repair, testing, or distribution or

packages or containers for use by any

person in the transportation of

hazardous materials in commecce; or

(2) the transportation or shipment by

any person of hazardous materials in

commerce.

49 U.S.C. app. § 1808(c). The Act defines transportation as “any

movement of property by any mode.” 49 U.S.C. app. § 1802(15).

In addition, hazardous materials are defined in the Code of

Federal Regulations, 49 C.F.R. § 172.101, to include 16,000

different substances, substances used inevery home and of fice in

this country. Justice Noonan accurately noted that anyone could

be subject to unannounced and warrantless inspections based on

the definition of hazardous materials. In his dissenting opinion

he declared:

The list [of hazardous materials] begins with

“Accellerene,” proceeds to “Aerosols”

(corrosive, flammable, non-flammable, and

poison), goes on to “Air bag inflators”,

continues through “Batteries” (dry and wet),

through “Carbon dioxide or Dry ice”, through

“Dyes” (liquid or solid), through “Extracts,

flavoring, liquid,” and so on. The list even

included “Matches, safety” and “Wheelchairs,

electric”. No doubt every one of the listed

materials can be hazardous in some use. The

businesses involved. . . must be legion. The

list of materials is so long and so many

businesses must be involved in_ the

transportation of the materials in commerce

that no business within the enumerated

Categories could be sure if it would ever be

visited by inspectors. If certainty and

regularity are the constitutional substitutes

for a warrant, they are, by the very nature of

the broad swatches of business regulated,

absent.

United States v. V-1 Oil, 63 F.3d at 913, 914. According to the

language of the HMTA statute, the corner grocery store that

receives “Dyes” (liquid or solid), . .. “Extracts, flavoring,

liquid” etc., could be subject to warrantless and unannounced

inspections by FRA inspectors. Jd. There is nothing in this broad

and all encompassing language that advises the owners or

operators of these products that they will or should be subject to

an unannounced inspection; nor does it “inform the operator ofa

[] business that inspections will be madeona regular basis.” New

York v. Burger, 482 U.S. at711.

In cases where warrantless inspection statutes have been

upheld, inspections were conducted ona regularbasis. New York

v. Burger, 402 U.S. at711; Donovan v. Dewey, 452 U.S. at 599;

United States v. Kaiyo Maro, 699 F.2d at 996. In Donovan, that

Statute provided that mines were inspected four times per year .

Donovan v. Dewey, 452 U.S. at 603. In Kaiyo Maro, this Court

found that Coast Guard inspections of foreign fishing vessels,

once every three months, met this important criterion statin g,

“[t]he inspections are not so random or infrequent that the vessel

owner has noreal expectation that his property will from time to

time be inspected by government officials.” United States y.

Kaiyo Maro, 699 F.2d at 996.

In contrast, the Federal Railroad Administration inspections

have beenrandom and infrequent. V-1 owns propane facilities in

six western states. It maintains propane storage facilities at 39

sites. Six of these facilities border on railroad tracks. The

Hazardous Materials Transportation Act, 49 U.S.C. app.

§ 1808(c) became effective on January 3, 1975, and yet, over the

next fifteen (15) years no request or other attempt was made

pursuant to this statute to inspect any V-1 facility, warrantless or

otherwise, until November, 1990. Subsequent to the

government’s grant of preliminary injunction, only five V-1

facilities have ever been inspected by the FRA. This random,

infrequent and unpredictable inspection “routine” provides V-1

with absolutely no expectation that its private commercial

property is subject to unannounced, warrantless inspection by

government officials with unchecked discretion. United States

v. V-1 Oil, 63 F.3d at 914.

The regulatory scheme of the HMTA statute is so

unrestrictive that V-1, and other property owners in similar

circumstances, are exposed to “the unbridled discretion [of]

executive and administrative officers, particularly those in the

field.” Marshall v. Barlow’s, 436 U.S. at 323. In those cases

where the statutes were held unconstitutional, the statute left

“inspectors free to inspect any business as often or seldom as he

or she please[d].” V-] Oil Company v. State of Wyoming

Department of Environmental Quality, 902 F.2d 1482 (10th Cir.

1990), cert. denied, 498 U.S.920(1990). As Ninth Circuit Judge

Noonan noted, “[i}f certainty and regularity are the constitutional

substitutes for a warrant, they are, by the very nature of the broad

swatches of business regulated, absent.” United States v. V-1 Oil.

63 F.3d at914.

Although the district court found the HMTA statute was

constitutional, in order to comply with the requirements of this

Court’s analysis, it was compelled to add specific and clarifying

language to the injunction. (App. F, 46a, 47a). The statute states

that inspections will be made at “reasonable times.” 49 U.S.C.

incieeiiiieaiiiitaiiiniidaiaicaaassiiill

app. § 1808(c). The injunction issued by the district court

clarifies this language to read “during regular business hours.”

(App. F, 46a). Where the statute reads that inspections shall

relate to “the transportation or shipment by any person of

hazardous materials incommerce” 49 U.S.C. app. § 1808(c)(2),

the injunction clarifies this language to read that inspections

shall relate to “entities engaged in the shipment, transportation,

and receipt of hazardous materials by rail.” (App. F, 47a)

(emphasis added). The lowercourt’s need to clarify and narrowly

tailor the language of the injunction serves to highlight the

inherent inadequacies of the HMTA statute.

C. Warrantless Inspections Are Not Necessary To The

Regulatory Scheme.

The constitutional analysis also requires that the

government show that unannounced, warrantless inspections are

essential to the success of their regulatory scheme. The

government's failure to attempt any inspection for fifteen (15)

years after enactment of the statute, does not supportits ar gument

that “surprise,” warrantless inspections are “necessary” to the

success of the regulatory scheme. In other cases before this

Court, inspections were necessary and ef fective to “serve asa

credible deterrent” to illegal practices and behaviors. New York

v. Burger, 482 U.S. at 710 (stolen property passing through

junkyards); Colonnade Catering Corp. v. United States ,397 U.S.

72, 76 (1970) (illegal, illicit liquors being sold without being

taxed or regulated).

In the present case, there is no illegal behavior to deter , nor

have any “surprise” inspections “caught” V-1 in any violations

which might be temporarily corrected in order to frustrate the

FRA’s enforcement efforts. The purpose of the regulation has

been characterized by the governmentas the need to enforce safe

transportation of hazardous materials. The FRA “surprise”

inspections have revealed that: (1) the shipping papers contained

wording different from the required wording (Petitioner’s

Lodging, App. I, 59a); (2) V-1’s sign had 3 inch letters instead of

3.9 inch letters, (Petitioner’s Lodging, App. I, 59a); and (3) one of

V-1’s signs had rust on it. (Petitioner’s Lodging, App. I, 59a).

These violations do not constitute evanescent evidence that can

disappear from the premises quickly like stolen property from a

junkyard (New York v. Burger, 482 U.S. at 710); nor is the

behavior illegal like selling untaxed alcohol or deadly weapons.

Colonnade Catering Corp. v. United States, 397 U.S. at 71;

United States v. Biswell, 406 U.S. at311. Itis alsocurious that the

government, who insists that “surprise” inspections will further

the regulatory scheme, objects to V-1’s requirement that all

individuals who desire entry to the premises, including

government officials, document their qualifications to handle

propane or other hazardous materials.

While the government argues that surprise inspections are

necessary for enforcement purposes, “surprise inspections are,

by definition, irregular and uncertain, just the opposite of what is

constitutionally the equivalent of a warrant. The asserted need of

such inspections suggests that government is seeking to obtain by

the equivalent of the detested general warrant what is only

available to it constitutionally on a showing of probable cause.”

United States v. V-1 Oil, 63 F.3d at 914.

D. The Statute Fails To Limit The Discretion Of The

Inspecting Agents.

“To satisfy the ‘certainty and regularity’ requirement, an

‘jnspection program must define clearly what is to be searched,

who can be searched, and the frequency of such searches.’”

Serpas v. Schmidt, 827 F.2d 23, 29 (7th Cir. 1987). This Court has

noted that “[a] warrant, or a statute authorizing warrantless

inspections, “must advise the owner [of commercial property] of

the scope and objects of the search,” ( Marshall v. Barlow’s Inc.,

436 U.S. at 323) and “should place appropriate restraints upon

the discretion of the inspecting officers.” New York v. Burger,

482 U.S. at711. In Donovan v. Dewey, the Court stated:

the Act does not provide any standards to

guide inspectors either in their selection of

establishments to be searched or in the

exercise of their authority to search. The

Statute instead simply provides that such

searches must be performed “at ...

reasonable times, and within reasonable

limits and in areasonable manner.”

Donovan v. Dewey, 452 U.S. at 601. Similarly , the HMTA statute

provides that “any. . . employee” of the FRA, authorized by the

Secretary, may enter the V-1 premises “at reasonable times and in

a reasonable manner.” 49 U.S.C. app. § 1808(c). This language

is clearly insufficient in light of this Court’ s holding in Donevan.

Yet, the Ninth Circuit held that “(t]he statute also limits the

discretion of inspecting of ficers;” and the “permissible scope of

these searches is narrowly defined to business premises and

records that relate to the transportation of hazardous materials.”

United States v. V-1 Oil, 63 F.3d at 912. However, the only

attempt at limiting the discretion of the FRA field agents is the

FRA Manual which ostensibly limits the inspector to his own

normally assigned hours. If, however, an inspection occurs

outside these normally assigned hours, the inspector need only

“notify his/her Regional Specialist.” (App. H, 58a).

The government contends that warrantless inspections are

necessary to prevent irreparable injury to public health and there

is no adequate remedy at law. However, the unrestrained

discretion and access of FRA inspectors is not necessary to

protect the public health. The government’s primary concern is

inconvenience, and loss of the power of intimidation it will suf fer

should it be required to seek an administrative warrant for its

“surprise” inspections. “That compliance with the fourth

amendment is burdensome on government officials is

immaterial.” McLaughlin v. Kings Island, 849 F.2d 990, 997 (6th

Cir. 1988). “We doubt that the consumption of enforcement

energies in the obtaining of [administrative] warrants will exceed

manageable proportions.” Marshall v. Barlow's, 436 U.S. at317.

Il.

BECAUSE THE NINTH CIRCUIT GRANTED

THE GOVERNMENT’S MOTION FOR INJUNCTIVE

RELIEF BASED ON A CONSTITUTIONALLY FLAWED

STATUTE, THE INJUNCTION MUST BE LIFTED.

The Ninth Circuit and the district court’ s merely stated, in

conclusory fashion, that because the statute was constitutional,

grant of injunction was proper and not an abuse of discretion.

United States v. V-] Oil, 63 F.3d at 913. However, both court’s

erred in applying the relevant substantive law to the evidentiary

findings necessary to warrant injunction. As noted supra, the

injunction was based on a constitutionally infirm statute. °

Therefore, the required finding of success on the merits for

permanent injunction was erroneous. ° Grant of injunction must

also include specific findings of irreparable harm; inadequate

remedy at law; and furtherance of public interest. ’

5. A permanent injunction may only be issued after a right thereto has

been established on the merits. Charles Wright & Arthur Miller, Federal

Practice and Procedure: Civil § 2941 at 361.

6. See Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 57 (1975); Burris

v. Turnbo, 743 F.2d 497, 400 (9th Cir. 1992).

The only irreparable harm to be found in this case, is the

harmed caused by the progressive and insidious erosion, by the

government, specifically the Federal Railroad Administration,

of constitutional guarantees. While irreparable harm may result

from an explosion, irreparable harm will not result if the FRA is

required to obtain an administrative warrant (if the element of

surprise is indeed required) or seek permission to inspect. The

district court also concluded that seeking a warrant was an

inadequate remedy at law “because of the burden... placed on the

government.” United States v. V-] Oil,63 F.3d at913. However,

this is clearly an erroneous interpretation of the relevant

substantive law. “[T]hat compliance with the fourth amendment

[may be] burdensome on government of ficials is immaterial.”

McLaughlin v. King’s Island, 849 F.2d at 996-97. Quoting this

Court’s Burger decision, the Sixth Circuit noted that the burden

of enforcement is not the test for warrantless search and seizure.

Id. Such intrusions must squarely pass the Burger analysis.

In Marshall, this Court recognized the administrative

warrant as an adequate remedy at law and noted that it was

doubtful “that the consumption of enforcement ener gies in the

obtaining of such warrants will exceed manageable

proportions.” Marshall v. Barlow’s, 436 U.S. at 320-21. The

district court noted that “advance notice. . .[would]. . . frustrate

the inspection effort,” and be burdensome to the government.

(App. D, 25a, 29a). The Ninth Circuit stated that “the injunction

cannot seasonably be construed as permitting searches that

would otherwise be prohibited.” United States v. V-1 Oil,63 F.3d

at 913. However, this argument denies that V-1, whom this Court

has determined is included among “the people” whose rights the

Amendment safeguards, * is “no longer secure in the possession

of the premises and papers that are guaranteed against

unreasonable search.” Jd. at913,914.

8. See v. City of Seattle, 387 U.S. 541, 543 (1967).

CONCLUSION

The Fourth Amendment is peremptory. It protects the rights

of people and businesses, See v. City of Seattle, 387 U.S. 541,543,

(1967), “to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” This right shall not

be violated. Under New York v. Burger and its progeny, this Court

has drafted specific and limiting exceptions to the Fourth

Amendment. Specifically, a statute authorizing unannounced

and warrantless inspections must satisfy the test articulated in

Burger. Should such a statute fail to do so, it must be declared

unconstitutional.

In this case, the HMTA statute clearly fails to meet

constitutional muster. The HMTA statute does not provide any

“certainty” or “regularity” in its application. It fails to provide an

adequate substitute for a warrant. The mere fact that V-1 is a

regulated business does not strip it of its right to be free from

unreasonable searches and seizures.

The overriding concern by the FRA and the lower courts is

that it would be too inconvenient to obtain a warrant allowing a

search of V-1’s property. While this may be true, inconvenience

is not a valid justification for compromising V-1’s Fourth

Amendmentrights.

The United States Supreme Court has not reviewed a state or

circuit court decision in this area since its decision in Burger.

V-1 Oil Company respectfully requests that this Court accept its

Petition for Writ of Certiorari and again provide the lowercourts

with direction in interpreting the Fourth Amendmentas it applies

to administrative searches and prevent the further erosion the

rights of “the people” to be free of unreasonable searches and

seizures.

Respectfully submitted,

PETER STIRBA

Counsel of Record

BENSON L. HATHAWAY, JR.

LINETTE B. HUTTON

ROBERT J. CHURCH

STIRBA & HATHAWAY

Attorneys for Petitioner

215 South State Street, Suite 1150

Salt Lake City, Utah 84111

(801) 364-8300

APPENDIX A — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED NOVEMBER 1, 1995

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CA No. 94-36178

D.C. No. CV-93-00333-HLR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V-1 OIL COMPANY, d/b/a V-1 PROPANE,

Defendant-Appellant.

\ ORDER

Before: FARRIS, NOONAN, and HAWKINS, Circuit Judges.

Judges Farris and Hawkins have voted to deny appellant’s

petition for rehearing. Judge Hawkins has voted to reject the

suggestion for rehearing en banc and Judge Farris so

recommends. Judge Noonan has voted to accept the petition

for rehearing and to grant the suggestion for rehearing en

banc.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is denied and the suggestion for

rehearing en banc is rejected.

APPENDIX B — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED AUGUST 24, 1995

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Untrep STATES OF AMERICA,

Plaintiff-Appellee, No. 94-36178

Vv. . D.C. No.

V-1 On Company, d/b/a V-1 CV-93-00333-HLR

PROPANE, OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the District of Idaho

Harold L. Ryan, District Judge, Presiding

Argued and Submitted

July 18, 1995—Seattle, Washington

Filed August 24, 1995

Before: Jerome Farris, John T. Noonan, Jr.,

and Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Farris; Dissent by Judge Noonan

SUMMARY

Government Law/Transportation/Business Law

Appendix B

The court of appeals affirmed a district court judgment. The

court held that warrantless, unannounced inspections under

the Hazardous Materials Transportation Act (HMTA) do not

violate the Fourth Amendment rights of a propane gas retailer

whose employees unload and transfer propane shipments and

return empty rail cars.

Appellant V-1 Oil Co., a liquefied propane gas retailer,

receives propane gas by rail. Although V-1 does not own the

rail cars, its employees unload and transfer the propane ship-

ments tO company storage tanks. V-1 employees retum the

empty rail cars to distributors.

The HMTA gives the Secretary of Transportation authority

to regulate the transportation and handling of hazardous mate-

rials. The Secretary may conduct warrantless, unannounced

inspections of property or records that involve transportation

of hazardous materials. The statute and regulations provide

that the inspections must be conducted at reasonable times

and in a reasonable manner. The Secretary delegated over-

sight responsibility for transportation by rail to the Federal

Raiiroad Administration (FRA).

A FRA inspector attempted to inspect a V-1 facility, but

V-1 denied permission. The federal govemment sued to

enjoin V-1 from preventing inspections. The district court

granted the government’s motion for a preliminary injunction,

and concluded that warrantless searches under the HMTA

come within an exception to the warrant requirement for

administrative searches of commercial premises used in a

“closely regulated” industry. V-1 appealed, contending that

the FRA’s warrantless, unannounced searches violate the

Fourth Amendment.

Appendix B

[1] The district court was correct in concluding that V-1 is

a closely regulated industry because it transports and sells

hazardous materials. Because it transports, stores and sells

propane gas, V-1 has a reduced expectation of privacy. [2]

The government has a substantial interest in regulating the

transportation and temporary storage of hazardous materials.

And, unannounced inspections reasonably ensure that the

HMTA is satisfactorily enforced. [3] The HMTA, as applied

to V-1, provides an adequate substitute for a warrant. The

HMTA satisfactorily gives notice to the types of businesses

subject to inspection. V-1 is subject to FRA inspections only

because of its extensive activities related to transporting pro-

pane gas. V-I’s activities provide adequate notice that its

property and records will be inspected. [4] The HMTA also

limits the discretion given to inspecting officers. The permis-

sible scope of the searches is narrowly defined, and inspec-

tions may be conducted only at reasonable times and in a

reasonable manner.

[5] A permanent injunction that permits the enforcement of

a statute that meets constitutional muster does not constitute

an abuse of discretion.

Circuit Judge Noonan dissented, writing that nothing in the

HMTA assures a program that will have “certainty and

regularity” in application.

COUNSEL

Peter Stirba, Stirba & Hathaway, Salt Lake City, Utah, for the

defendant-appellant.

John F. Daly, United States Department of Justice, Washing-

ton, D.C., for the plaintiff-appellee.

——S see ~~ os =S tl

Appendix B

OPINION

FARRIS, Circuit Judge:

The principal question is whether warrantless, unan-

nounced inspections under the Hazardous Materials Transpor-

tation Act violate V-1’s Fourth Amendment rights. We hold

that they do not and affirm.

I. FACTS

V-1 Oil Company is a liquefied propane gas retailer in six

westem states. It receives propane gas by rai! from Canadian

distributors. Although V-1 does not own the rail cars, V-1’s

employees unload and transfer the propane shipments to the

company’s storage tanks. V-1’s employees then retum the

empty rail cars to the distributors.

Congress enacted the Hazardous Materials Transportation

Act (“HMTA”) in 1975. The Act gives the Secretary of

Transportation extensive authority to regulate the transporta-

tion and handling of hazardous materials. As part of the Sec-

retary’s authority, he may conduct warrantless, unannounced

inspections of property or records that involve the transporta-

tion of hazardous materials. The statute and regulations pro-

vide that inspections must be conducted at reasonable times

and in a reasonable manner. The Secretary has delegated

oversight responsibility for all transportation by rail to the

Federal Railroad Administration (“FRA”).

In 1990 an FRA inspector attempted to inspect V-1’s facil-

ity in Idaho Falls. V-1 denied permission for the inspection

unless the inspector complied with V-1’s safety policies. V-1

required all government inspectors to fill out its “Form 130.”

The form asks for the inspector’s name, title, and agency; the

Appendix B

reason or purpose for the visit; the statutory or other authority

for the inspection or visit; and the inspecior’s qualifications

and experience. If V-1 approves, it then schedules an inspec-

tion for a time when its business operations will not be inter-

rupted or impeded. FRA sought to inspect V-1’s property and

records three more times from 1992-93. Each time V-1

refused unannounced inspections.

In August 1993, the United States filed this action under 49

U.S.C. App. § 1810 to enjoin V-1 from preventing inspec-

tions. The district court granted the government’s motion for

a preliminary injunction in January 1994. The parties then

submitted cross-motions for summary judgment. The district

court again ruled in favor of the government. It concluded that

warrantless searches under the HMTA fall within “a well-

recognized exception to the warrant requirement for adminis-

trative searches of commercial premises employed in a

‘closely regulated’ industry.” V-1 appeals.

fl. DISCUSSION

A. WARRANTLESS SEARCHES OF V-1 UNDER THE

HMTA DO NOT VIOLATE THE FOURTH

AMENDMENT

V-1 argues that FRA’s warrantless, unannounced searches

violate the Fourth Amendment. In New York v. Burger, 482

U.S. 691, 702-03 (1987), the Supreme Court held that war-

rantless searches of closely regulated industries do not violate

the Fourth Amendment if 1) the underlying regulatory scheme

advances a substantial government interest, 2) the warrantless

inspection program is necessary to further the regulatory

scheme, and 3) the program provides a “constitutionally ade-

quate substitute for a warrant.”

| |

Appendix B

[1] The district court properly concluded that V-1 is a

Closely regulated industry because it transports and sells haz-

ardous materials. V-1 admits that it is regulated by 331 state

and federal agencies. Nevertheless, it argues that it is not part

of the railroad industry and is not pervasively regulated by

FRA. We reject the argument. V-1’s privacy expectations are

not necessarily triggered by the particular agency conducting

the search. V-1 has a reduced expectation of privacy because

it transports, stores, and sells propane gas. The Fourth

Amendment exception applies to “certain industries” regard-

less of the agency that has oversight jurisdiction. See Mar-

shall v. Barlow's, Inc., 436 U.S. 307, 313 (1978) (emphasis

added) (stating that “[cJertain industries have such a history

of government oversight that no reasonable expectation of pri-

vacy . . . could exist for a proprietor over the stock of such

an enterprise”).

[2] The first two prongs of the Burger test are easily satis-

fied. The government has a substantial interest in regulating

the transportation and temporary storage of hazardous materi-

als to protect life and property. Also, unannounced inspec-

tions reasonably ensure that the statute is satisfactorily

enforced. See United States v. Biswell, 406 U.S. 311, 316

(1972) (stating that “if inspection is to be effective and serve

as a credible deterrent, unannounced, even frequent, inspec-

tions are essential”). Advanced notice of inspections could

permit V-1 to temporarily correct violations and frustrate

enforcement efforts. See id. ;

Under the third prong of the Burger test, a statute’s inspec-

tion program constitutes an adequate substitute for a warrant

if the owner of commercial property knows that his property

will be subject to periodic inspections undertaken for specific

Purposes, and if the inspection program is limited in time,

place, and scope. Burger, 482 U.S. at 703. V-1 alleges that the

Appendix B

Statute does not satisfy the third prong because it “applies to

everyone in interstate commerce who uses any [hazardous

materials].” V-1 also asserts that the scope of searches by

FRA is “unlimited.”

[3] We have carefully considered V-1’s arguments. The

Statute, as applied to V-1, provides an adequate substitute for

a warrant. The HMTA satisfactorily notifies the types of busi-

nesses subject to inspection. 49 U.S.C. App. § 1808(c)’ pro-

vides:

The Secretary may authorize any officer, employee,

or agent to enter upon, inspect, and examine, at rea-

sonable times and in a reasonable manner, the

records and properties of persons to the extent such

records and properties relate to —

(1) the manufacture, fabrication, mark-

ing, maintenance, reconditioning, repair,

testing, or distribution of packages or con-

tainers for use by any person in the trans-

portation of hazardous materials in

commerce; or

(2) the transportation or shipment by

any person of hazardous materials in com-

merce.

"After the parties submitted their cross-motions for summary judgment,

Congress repealed and replaced the relevant statutory provisions as part of

a broad recodification of federal wansporation laws. 49 U.S.C.

§§ 5101-5127. We note that the recodified provisions “may not be con-

strued as making a substantive change in the laws replaced.” Pub. L. No.

103-272, § 6{a), 108 Stat. 1378. The recodified provisions, however, do

not apply to “proceedings that were begun before the date of enactment

of this Act.” Pub. L. No. 103-272, § 7(b), 108 Stat. 1379.

Appendix B

V-1 is subject to inspections by the FRA only because of its

extensive activities relating to the transportation of propane

gas. V-1 itself unloads the propane from the rail cars into its

storage facilities. The Act applies to the process of unloading

rail cars filled with hazardous materials. 49 C.F.R. § 174.67.

V-1 then returns the rail cars to the original shipper. Because

they contain residual amounts of a hazardous material, V-1

must seal and mark the rail cars, and document their return.

49 C.F.R. § 173.29. These activities provide adequate notice

to V-1 that its property and records “will from time to time

be inspected by government officials.” United States v. Kaiyo

Maru No. 53, 699 F.2d 989, 995 (9th Cir. 1983).

[4] The statute also limits the discretion of inspecting offi-

cers. The permissible scope of these searches is narrowly

defined to business premises and records that relate to the

transportation of hazardous materials. See Burger, 482 U.S. at

711 (noting that the New York statute limits the scope of

inspections to records and vehicles on the business premises).

HMTA’s regulations “set[ ] forth the scope of the inspection

and . . . places the operator on notice as to how to comply

with the statute.” See id. Finally, FRA inspections may be

conducted only at reasonable times and in a reasonable man-

ner. FRA’s enforcement manual requires inspections to be

conducted during normally assigned office hours unless the

inspector has previously notified his Regional Specialist. See

id. (noting that “officers are allowed to conduct an inspection

only “during [the] regular and usual business hours’ ”). We

may examine established agency policy when considering the

discretion of inspecting officers. Kaiyo Maru No. 53, 699

F.2d at 996 n.17.

B. PERMANENT INJUNCTIVE RELIEF

V-1 argues that permanent injunctive relief is inappropriate

10a

Appendix B

for two reasons. First, it asserts that the injunction is not suffi-

ciently specific to satisfy Federal Rule of Civil Procedure

65(d). Rule 65 (d) provides that injunctions “shall be specific

in terms [and] shall describe in reasonable detail . . . the act

or acts sought to be restrained.” We will not set aside injunc-

tions under Rule 65(d) “unless they are so vague that they

have no reasonably specific meaning.” E. & J. Gallo Winery

v. Gallo Cattle Co., 967 F.2d 1280, 1297 (9th Cir. 1992).

The district court’s injunction requires V-1 to allow war-

rantless administrative searches “for the purpose of enforcing

the [HMTA\] and its implementing regulations.” This lan-

guage is not ambiguous. The injunction cannot reasonably be

construed as permitting searches that would otherwise be pro-

hibited. V-1 has legal remedies available if FRA engages in

improper searches.

[5] V-1 also argues that the requirements for a permanent

injunction have not been satisfied. We review the grant of a

permanent injunction for abuse of discretion. Multnomah

Legal Services Workers Union v. Legal Services, 936 F.2d

1547, 1552 (9th Cir. 1991). The district court’s injunction

merely provides that V-1 must permit FRA to administer the

HMTA. The statute is constitutional. A permanent injunction

permitting the enforcement of a statute that meets constitu-

tional muster is not an abuse of discretion.

AFFIRMED.

NOONAN, Circuit Judge, dissenting:

The Fourth Amendment is peremptory: “The right of the

people to be secure in their persons, houses, papers, and

lla

Appendix B

effects, against unreasonable searches and seizures, shall not

be violated . . . .” The Amendment then prescribes the condi-

tions under which search warrants shall issue. It is axiomatic

that a properly-issued search warrant is the way a government

normally complies with the Amendment’s prohibition of an

unreasonable search. Katz v. United States, 389 U.S. 347, 357

(1967). It is equally axiomatic that a business is included

among “the people” whose right the Amendment safeguards.

See v. City of Seattle, 387 U.S. 541, 543 (1967).

To the rule requiring a warrant as the guarantee of reason-

ableness, courts have fashioned exceptions, among them the

exception invoked here where “ ‘the statute’s inspection pro-

gram, in terms of the certainty and regularity of its application

[provides] a constitutionally adequate substimte for a

warrant.”” New York v. Burger, 482 U.S. 691, 703 (1987),

quoting Donovan v. Dewey, 452 U.S. 594, 600 (1981).

Nothing in the statute at issue assures a program that will

have “certainty and regularity” in its application. By regula-

tion, there are over 2,000 hazardous materials. 49 C.F.R.

§ 172.101, “Hazardous Materials Table.” The table listing the

materials runs for 240 pages in the regulation. The list begins

with “Accellerene,” proceeds to “Aerosols” (corrosive, flam-

mable, non-flammable, and poison), goes on to “Air bag

inflators”, continues through “Batteries” (dry and wet),

through “Carbon dioxide or Dry ice”, through “Dyes” (liquid

or solid), through “Extracts, flavoring, liquid,” and so on. The

list even includes “Matches, safety” and “Wheelchairs,

electric”. No doubt every one of the listed materials can be

hazardous in some use. The businesses involved in manufac-

turing, fabricating, marking, maintaining, reconditioning,

repairing, and testing of packages or containers for use in the

transportation of such materials must be legion. The list of the

materials is so long and so many businesses must be involved

12a

Appendix B

in the transportation of the materials in commerce that no

business within the enumerated categories could be sure if it

would ever be visited by inspectors. If certainty and regularity

are the constitutional substitutes for a warrant, they are, by the

very nature of the broad swatches of business regulated,

absent.

As applied to V-1 the statute is equally lacking in certainty

and regularity. From January 1, 1975 to November 1, 1990

the Federal Railroad Administration had never inspected or

attempted to inspect V-1’s premises. This large fact alone

destroys any claim of certainty and regularity in the program

commanded by the statute. After November 1, 1990 there was

one attempted inspection and three inspections made possible

by the Preliminary Injunction while this case was being

appealed. These four instances fail to establish certainty and

regularity of inspection over the past twenty years. To the

contrary, the evidence shows great uncertainty, great irregu-

larity, and a long period in which no inspection was even

attempted.

The court meets this evidence by accepting an allegation in

V-1’s brief, that V-1 is subject to regulation by 331 state and

federal agencies. To be sure, it is a regulated business. But

there is no evidence that the kinds of regulations to which it

is subject are a substitute for a search warrant. The exception

to the Fourth Amendment created by the Supreme Court holds

where the statute being applied, not some other statute, is a

constitutional substitute for a search warrant. The dicta from

Marshall v. Barlows, Inc., 436 U.S. 307, 313 (1978) are

Clearly qualified by the standard laid down in Donovan and

Burger. there has to be “a constitutionally adequate substitute

for a warrant,” and that substitute must be the statute being

enforced. The court proceeds as if applying the rule set out in

Scripture: “To him who has it shall be given, and as to him

l3a

Appendix B

who does not have, even that he thinks he has shall be taken

from him.” Luke 8:18. However true as a rule of spiritual life,

this maxim seems an inadequate principle for interpreting a

constitutional right. Heavily regulated a business may be; it is

entitled to be secure in the privacy which remains to it.

The curious argument is made by the government, and

accepted by the court, that the warrantless inspections are nec-

essary because surprise is important for enforcement. Surprise

inspections are, by definition, irregular and uncertain, just the

opposite of what is constitutionally the equivalent of a war-

rant. The asserted need of such inspections suggests that gov-

emment is seeking to obtain by the equivalent of the detested

general warrant what is only available to it constitutionally on

a showing of probable cause.

In See v. Seattle the routine, periodic, city-wide check of

commercial establishments to assure compliance with the

City’s fire code was held not to justify the fire chief’s warrant-

less attempt to enter a warehouse. See, 387 U.S. 541, 546. The

requirements of the Fourth Amendment were upheld even

though it was a matter of record that warrantless administra-

tive inspections discovered thousands of hazardous violations

in major American cities. /d. at 551 (dissent). I fail to see how

the Federal Railroad Administration’s mission is more serious

than a city fire chief's, or how its sporadic visitations are a

better substitute for a warrant than the fire chief’s routine

checks.

Courts have been careful to preserve the Fourth Amend-

ment on behalf of criminals and criminal enterprises by

enforcing an extra-constitutional rule of suppressing evidence

obtained in violation of its guarantee. Weeks v. United States,

232 U.S. 383, 394 (1914); Mapp v. Ohio, 367 U.S. 643

(1961). The judgment has been made that the loss in effi-

l4a

Appendix B

ciency of the criminal justice system is more than compen-

sated by the efficacy given the Amendment. At least an equal

zeal to uphold the constitutional command is appropriate

when an administrative agency of government seeks ran-

domly to rummage through the records of a lawful business.

The consequences of unwarranted intrusion by the govern-

ment are heavier for the criminal; the affront to privacy is

equal, whether the government’s purpose is criminal law

enforcement or civil regulation. In either case “the people” —

that is, all of us — are no longer secure in the possession of

the premises and papers that are guaranteed against unreason-

able search.

I respectfully dissent.

15a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED AUGUST 24, 1995

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 94-36178

CT/AG#: CV-93-00333-HLR

UNITED STATES OF AMERICA

Plaintiff-Appellee

V-1 OIL COMPANY, d/b/a V-1 Propane

Defendant-Appellant

APPEAL FROM the United States District Court for the

District of Idaho (Boise).

THIS CAUSE came on to be heard on the Transcript of the

Record from the United States District Court for the District of

Idaho (Boise) and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment of the

said District Court in this cause be, and hereby is AFFIRMED.

Filed and entered August 24, 1995.

l6a

APPENDIX D — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF IDAHO

DATED OCTOBER 11, 1994

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

CIVIL NO. 93-0333-E-HLR

UNITED STATES OF AMERICA,

Plaintiff,

V-1 OIL COMPANY, INC., d/b/a V-1 PROPANE,

Defendant.

ORDER ON CROSS MOTIONS

FOR SUMMARY JUDGMENT

I. FACTS AND PROCEDURE

The plaintiff in the above-entitled matter is the United

States, specifically the Federal Railroad Administration

(FRA). The defendant is V-1 Oil Company, Inc. (hereinafter

“V-1 Oil”), which is engaged in the transportation, shipment,

and receipt of petroleum products by rail, including propane

(liquified petroleum gas). V-1 Oil later offers these products

for sale. V-1 Oil has many branches in the western United

States, including two in the State of Idaho — one in Idaho

Falls and one in Caldwell.

Ne ea CIT AM Wr CERRINA TE

Cl ET ER wa al) a ly,

17a

Appendix D

This case centers around the Hazardous Materials

Transportation Act, 49 U.S.C. app. §§ 1801, et seg. This

Statute was enacted to improve the regulatory and enforcement

authority of the Secretary of Transportation to protect the

nation adequately from the risks to life and property inherent

in the transportation of hazardous materials in commerce. See

49 U.S.C. app. § 1801. The Secretary of Transportation has

delegated to the FRA the authority to administer the statute

and its implementing regulations as they relate to the shipment

and transportation of hazardous materials by rail. See 49

C.F.R. § 1.49(s)(1).

The statute provides that the Secretary of Transportation

Shall designate particular materials as hazardous, and

promulgate necessary regulations regarding the safe

shipment, transportation, and handling of hazardous materials

in shipment. See 49 U.S.C. app. §§ 1803 and 1804. Those who

transport and/or cause to be transported hazardous materials

may be required by the Secretary to file a registration

statement once every two years. See 49 U.S.C. app. § 1805(b).

The registration statement must include the person or entity’s

name, principal place of business, the location of each activity

involving the handling of hazardous materiais, a complete list

of all such materials being handled, and an averment that the

party is in compliance with all applicable criteria established

pursuant to the Act. Jd. Under certain circumstances, the

Secretary may grant a two-year exemption from the Act. See

49 U.S.C. app. § 1806.

The Act authorizes government officers to enter upon and

inspect the records and property of businesses engaged in the

shipment and transportation of hazardous substances. The

inspection provision reads as follows:

18a

Appendix D

authorize any officer, employee, or agent to

enter upon, inspect, and examine, at

reasonable times and in a _ reasonabie

manner, the records and properties of

persons to the extent such records and

properties relate to —

(1) the manufacture, fabrication,

marking, maintenance, reconditioning,

repair, testing, or distribution of

packages or containers for use by any

person in the transportation of hazardous

materials in commerce; or

(2) the transportation or shipment by

any person of hazardous materials in

commerce.

‘Any such officer, employee, or agent shall,

upon request, display proper credentials.

49 U.S.C.S. app. § 1808(c) (Law. Co-op. 1990). The Act

provides for both civil and criminal penalties. See 49 U.S.C.

app. § 1809. In addition, the Attorney General may bring an

action in district court for equitable relief to redress a

violation by any person of any provision of the Act. The court

may grant the requested relief and/or any form of mandatory

or prohibitive injunctive relief and punitive damages. See 49

U.S.C. app. § 1810(a).

The government filed the present action against V-1 Oil,

seeking first a preliminary injunction (which the court granted

19a

Appendix D

in an order entered January 13, 1994) and ultimately a

permanent injunction and declaration that V-1 Oil may not

prevent safety inspectors from entering upon, inspecting, and

examining, during V-1 Oil’s business hours, the records and

properties of the company that relate to the shipment

and/or transportation of hazardous materials by rail.

The government contends that it is authorized by the

Hazardous Materials Transportation Act to conduct

inspections mandated under the Act without a search warrant.'

V-1 Oil has on several occasions refused to allow the

inspectors on its property. V-1 Oil will not let government

inspectors from any state or federal agency enter upon any of

its properties unless the inspector makes a request in advance,

fills out a detailed authorization form which must be signed by

the government agent and witnessed (by signature) by two V-1

Oil representatives.? Thereafter, the request is taken under

advisement, and if later approved by V-1 Oil, a specific date

and time is set for when the government agent may come upon

the property and conduct an inspection.

This matter is presently before the court on cross motions

1. It should be noted that the Act does not expressly provide for

warrantless searches. However, the Act appears to contemplate such searches,

and it has been held that “[cJourts do not infer a warrant requirement from

statutes which authorize inspections but do not discuss the necessity of

warrants. Instead, a bare authorization for inspections is construed to authorize

warrantless inspections.” V-/] Oil Co. v. State of Wyo., Dep't of Envtl Quality,

902 F.2d 1482, 1485 (10th Cir. 1990) (citations omitted).

2. The court notes that the form used by V-i Oil is couched in noticeably

combative terms. However, the form and the language contained in it are

irrelevant to the specific question before the court.

20a

Appendix D

for summary judgment. These motions have been fully briefed

and are ripe for decision. Having carefully reviewed the entire

record in this case, the court finds that the facts, the respective

argument of the parties, and the substantive law applicable to

the case are adequately set forth in the memoranda and related

pleadings now on file. Accordingly, oral argument would not

benefit the court in resolving the motions. The court further

finds that there are no material facts in dispute which would

preclude the court from entering judgment as a matter of law.

This finding is in keeping with the parties’ representation that

this matter should be resolved on cross motions for summary

judgment.

II. ANALYSIS

A. The Summary Judgment Standard

Motions for summary judgment are governed by Rule 56

of the Federal Rules of Civil Procedure. Rule 56 provides, in

pertinent part, that judgment “shall be rendered forthwith if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c).

The Supreme Court has made it clear that under Rule 56

summary judgment is mandated if the non-moving party fails

to make a showing sufficient to establish the existence of an

element which is essential to his case and upon which he will

bear the burden of proof at trial. See Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). If the nonmoving party fails to make

such a showing on any essential element of his case, “there can

2la

Appendix D

be no ‘genuine issue as to any material fact,’ since a complete

failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts

immaterial.” Jd. at 323.°

Moreover, under Rule 56, it is clear that an issue, in order

to preclude entry of summary judgment, must be both

“material” and “genuine.” An issue is “material” if it affects

the outcome of the litigation. An issue, before it may be

considered “genuine,” must be established by “sufficient

evidence supporting the claimed factual dispute. . . to require

a jury or judge to resolve the parties’ differing versions of the

truth at trial.” Hahn v. Sargent, 523 F.2d 461, 464 (ist Cir.

1975) (quoting First Nat’l Bank v. Cities Serv. Co., Inc., 391

U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord.

See e.g., British Motor Car Distrib. v. San Francisco

Automotive Indus. Welfare Fund, 882 F.2d 371 (9th Cir. 1989).

3. See also Rule 56(e), which provides in part:

When a motion for summary judgment is made and

supported as provided in this rule, an adverse party

may not rest upon the mere allegations or denials of

the adverse party’s pleading, but the adverse party's

response, by affidavits or as otherwise provided in

this rule, must set forth specific facts showing that

there is a genuine issue for trial. If the adverse party

does not so respond, summary judgment, if

appropriate, shall be entered against the adverse

party.

Fed R. Civ. P. 56(e).

22a

Appendix D

According to the Ninth Circuit, in order to withstand a

motion for summary judgment, a party

(1) must make a showing sufficient to

establish a genuine issue of fact with

respect to any element for which it bears the

burden of proof; (2) must show that there is

an issue that may reasonably be resolved in

favor of either party; and (3) must come

forward with more persuasive evidence

than would otherwise be necessary when

the factual context makes the non-moving

party’s claim implausible.

Id. at 374 (citation omitted).

B. Application of the Summary Judgment Standard

The court has carefully reviewed the entire record in this

matter, including the affidavits, exhibits, and memoranda filed

by the parties, as well as the cases cited therein. Based upon

this review, the court concludes that the government’s Motion

for Summary Judgment shall be granted for the reasons and

cases cited by the government, which need not be repeated at

great length in this order. Rather, the court will briefly explain

its reasoning and conclusions in the discussion to follow.‘

The United States Supreme Court has established what is

now a well-recognized exception to the warrant requirement

for administrative searches of commercial premises employed

4. Much of the following analysis was originally set forth in the Order

Granting Preliminary Injunction entered January 13, 1994.

Frere rove rm

23a

Appendix D

in a “closely regulated” industry. The primary cases include

Colonnade Catering Corp. v. United States, 397 U.S. 72

(1970) (liquor industry); United States v. Biswell, 406 U.S.

311 (1972) (warrantless inspections of the premises of

firearms dealers); Donovan v. Dewey, 452 U.S. 594 (1981)

(warrantless inspections of mines); and New York v. Burger,

482 U.S. 691 (1987) (warrantless searches of automobile

junkyards). The Court in Burger carefully described the

exception and the criteria which must be met in order for a

regulatory scheme involving warrantless searches to be

upheld.

The Fourth Amendment prohibits unreasonable searches

and seizures. This prohibition applies both to private homes

and commercial premises. See v. City of Seattle, 387 U.S. 541,

543 (1967). An owner of a business has a reasonable ©

expectation of privacy which is to be honored not only in the

context of traditional police searches, but also as to

administrative inspections to enforce regulatory statutes. See

Marshall v. Bariow’s, Inc., 436 U.S. 307 (1978) (warrantless

inspections of all businesses engaged in interstate commerce

pursuant to OSHA held invalid). Nevertheless, the Supreme

Court has declared that “[a]n expectation of privacy in

commercial premises, however, is different from, and indeed

less than, a similar expectation in an individual’s home... .

This expectation is particularly attenuated in commercial

property employed in ‘closely regulated’ industries.” New

York v. Burger, 482 U.S. at 700.

The administrative search exception to the warrant

requirement is referred to as the “Colonnade-Biswell”

doctrine. The Supreme Court has made it clear that when a

person chooses to engage in a pervasively regulated industry

24a

Appendix D

and accepts a federal license and/or registration, that person

does so with the knowledge that his or her business records

and premises will be subject to inspection. United States v.

Biswell, 406 U.S. at 316.

The first question for the court to consider is whether V-1

Oil is engaged in a closely regulated industry. From its

inception, the railroad industry has been a heavily regulated

industry. In addition, the transportation and use of hazardous

materials is also heavily regulated, and rightfully so. Thus, the

court finds that to the extent that V-1 Oil engages in the receipt

and shipment of hazardous materials by rail, it is engaged in a

closely regulated industry.

The court must next look to see if the regulatory scheme

under the Hazardous Materials Transportation Act meets the

three requirements under New York v. Burger. In Burger, the

Supreme Court held that a warrantless inspection, even within

a heavily regulated industry, will be deemed reasonable only if

three criteria are met: (1) there must be a “substantial”

government interest that informs the regulatory scheme

pursuant to which inspection is made; (2) the warrantless

inspection must be necessary to further the regulatory scheme;

and (3) the statute’s inspection program, in terms of the

certainty and regularity of its application, must provide a

constitutionally adequate substitute for a warrant. New York v.

Burger, 482 U.S. at 702-03. The third criteria mandates that

the statute advise the owner of commercial premises that the

search is being conducted pursuant to the law, and that the

inspection has a defined scope and limits the discretion of the

inspecting officer.

The first two criteria are easily met in the case at hand.

EDA? ATP A FUROR Mea i PET| DREMEL NUE win te Ee ee wh tH

25a

Appendix D

First, the government has a substantial interest in regulating

the transportation of hazardous materials to protect life and

property. Second, the rationale enunciated by the Supreme

Court in United States v. Biswell (inspection of the premises of

firearms dealers) applies equally here: “[I]f inspection is to be

effective and serve as a credible deterrent, unannounced, even

frequent, inspections are essential. In this context, the

prerequisite of a warrant could easily frustrate

inspection. .. .” United States v. Biswell, 406 U.S. at 316. If

inspections were to occur pursuant to a warrant, or with the

sort of advance notice desired by V-1 Oil, a myriad of

violations could be temporarily corrected by the time of

inspections, thereby frustrating the inspection effort. The

court is persuaded that inspections of entities engaged in the

shipment, transportation, and receipt of hazardous materials

by rail are more effective when conducted pursuant to

unannounced warrantless searches.

The remaining issue is whether the statute’s inspection

program provides a constitutionally adequate substitute for a

search warrant. The inspection program must be “sufficiently

comprehensive and defined that the owner of commercial

property cannot help but be aware that his property will be

subject to periodic inspections undertaken for specific

purposes.” Donovan v. Dewey, 452 U.S. at 600. In addition, the

statute must somehow limit the discretion of the inspectors,

and inspections must be carefully limited in time, place, and

scope. United States v. Biswell, 406 U.S. at 315.

The Hazardous Materials Transportation Act clearly

states that the Secretary may direct inspectors to enter upon

property and inspect the records and properties of persons

engaged in the shipment, transportation, and/or receipt of

26a

Appendix D

hazardous materials, to the extent such records and properties

relate to packages or containers for use in the transportation of

hazardous materials in commerce. The Act is directed to a

narrowly defined group of business operators, and inspections

are further limited to specific transportation activities and

records of hazardous materials shippers. The Act directs that

inspections take place at reasonable times and in a reasonable

manner. The government seeks to inspect only during V-1

Oil’s regular business hours. In addition, Federal Railroad

Administration guidelines direct that inspectors minimize any

possible disturbances to the business.

The government represents that although inspection of

V-1 Oil has been somewhat sporadic, it makes every effort to

inspect all rail shippers of hazardous materials on an annual

basis. V-1 Oil objects to the apparent randomness and/or

irregularity of inspections. It relies on the Donovan decision

and a Tenth Circuit case, V-] Oil Company v. State of

Wyoming, Department of Environmental Quality, 902 F.2d

1482, 1485 (10th Cir. 1990). The Tenth Circuit case is

distinguishable from the case at hand because the statute

involved in that case applied to every business in the state

(similar to OSHA in its comprehensiveness)’ and, therefore,

did not provide a constitutionally adequate substitute for a

warrant.

The Supreme Court in Donovan held that a warrant is

required if searches are “so random, infrequent, or

unpredictable that the owner, for all practical purposes, has no

5. Administrative searches conducted pursuant to statutes of general

application require search warrants. See Marshall v. Barlow's, Inc.,436U.S. at

313-14.

}

27a

Appendix D

real expectation that his property will from time to time be

inspected by government officials.” Donovan v. Dewey, 452

U.S. at 599. In its decision in the Burger case, however, the

Supreme Court refined its position somewhat on the question

of regularity, holding that inspections must simply be limited

as to time, place, and scope. The Court held that limitations on

the number of inspections within a given period, or the

absence of such a directive, are a factor to be considered in

analyzing the adequacy of a particular statute, but that factor is

not determinative so long as the statute, as a whole, places

adequate limits on the discretion of the inspectors. New York v.

Burger, 482 U.S. at711 n. 21.

In its briefing, the government explains its system for

setting inspection priorities for businesses within each

designated region. The court finds this system to be

reasonable. In addition, the court assumes that the frequency

of inspections is tied to the amount of funding and personnel

available to meet the statutory directive. The court is not

6. FRA’s qualitative analysis findings determine how

often hazardous materials facilities are inspected.

FRA coordinates its inspection program through the

National Inspection Plan (“NIP”). NIP refers to a

number of factors in allocating inspection priorities,

including accident statistics, regulatory deficiencies

reported, risks of transporting designated articles,

and number of car movements. FRA’s hazardous

Materials Specialist ... allocates inspection

resources according to results derived from the

established criteria.

Reply Br. for Pitf. on Mtn. for Pre. Inj., filed Nov. 4, 1993, at 15-16 (footnotes

omitted).

28a

Appendix D

persuaded that, because one business has been inspected at

somewhat irregular intervals, the court should find that

warrants are required under the Act, especially since

warrantless searches have been conducted pursuant to this Act

all across the country, apparently without challenge, since

1975.

C. Injunctive Relief

Having concluded that the government is entitled to

judgment as a matter of law, the court must next consider

whether the government is entitled to permanent injunctive

relief. As noted by the United States Supreme Court, “the

bases for injunctive relief are irreparable injury and

inadequacy of legal remedies.” Amoco Production Co. v.

Gambell, 480 U.S. 531, 542 (1987).

The government argues that irreparable injury should be

presumed because of V-1 Oil’s failure to comply with the

statute by refusing warrantless inspections. The court concurs

with the cases cited by the government in support of this

contention. However, this court is ordinarily reluctant to

presume irreparable injury, preferring the approach

enunciated in a different context by the Supreme Court in

Amoco Production Co. v. Gambell.

In that case, the Supreme Court declared that irreparable

injury is not to be presumed; rather, “[i]n each case, a court

must balance the competing claims of injury and must

consider the effect on each party of the granting or

withholding of the requested relief.” Jd. at 542. Furthermore,

while the Supreme Court declared that particular regard

should be paid to the public interest when considering the

29a

Appendix D

question of injunctive relief, the public interest does not

require the court to grant an injunction automatically every

time a statute is violated. /d.

With these considerations in mind, the court finds that the

government and the public at large face a definite risk of

irreparable injury because of the actions of V-1 Oil in

interfering with the ability of the government to enforce a

statute intended to protect the public. The court further finds

that there is no adequate remedy at law to eliminate this risk.

V-1 Oil argues that the government has an adequate remedy at

law. It suggests that the government need only obtain search

warrants to inspect V-1 Oil operations.

The court is not persuaded that this an adequate remedy at

law because of the burden that would be placed on the

government and the difficult questions of the standard to be

met in seeking approval for requested warrants. More

importantly, however, is that the statute is intended to operate

without search warrants, and the effectiveness of the

inspection effort would be substantially diminished if search

warrants were required.

In weighing the relative hardships of the parties, it is clear

on the one hand that accidents and injury to life and property

could occur in the absence of inspections. On the other hand, if

an injunction is entered, V-1 Oil will have to accept

warrantless inspections. The court is of the opinion that the

government’s interest in effectively fulfilling its statutory

duties and in ensuring the safe handling of hazardous

materials through the conduct of surprise inspections prevails

between these competing claims of injury. The public also has

a substantial interest in the safe handling of hazardous

30a

Appendix D

materials. Thus, the court is of the opinion that the public

interest favors issuance of a permanent injunction.

In conclusion, the statute expressly provides for

injunctive relief for violation of any of its provisions.

49 U.S.C. app. § 1810.’ V-1 Oil has violated the statute by

refusing to allow warrantless inspections which are clearly

provided for in 49 U.S.C. app. § 1808(c). The government and

the public face irreparable injury; the government has no

adequate remedy at law; and the balance of harms favors the

government. For these reasons, the court will enter a

permanent injunction along with the requested declaratory

relief.

III. ORDER

Based on the foregoing, and the court being fully advised

in the premises,

7. (a) General. The Attorney General, at the request

of the Secretary, may bring an action in an

appropriate district court of the United States for

equitable relief to redress a violation by any person

of a provision of this title, or an order or regulation

issued under this title. Such district courts shall have

jurisdiction to determine such actions and may grant

such relief as is necessary or appropriate, including

mandatory or prohibitive injunctive relief, interim

equitable relief, and punitive damages.

49 U.S.C.S. app. § 1810(a) (Law. Co-op. 1990)) (emphasis added).

3la

Appendix D

IT IS HEREBY ORDERED that the United States’ motion

for summary judgment filed on March 4, 1994, should be, and

is hereby, GRANTED.

IT IS FURTHER ORDERED that V-1 Oil Company’s

motion for summary judgment filed on March 4, 1994, should

be, and is hereby, DENIED.

IT IS HEREBY DECLARED that the United States,

specifically the Federal Railroad Administration, has the

authority under the Hazardous Materials Transportation Act,

49 U.S.C. app. §§ 1801, et seq., specifically 49 U.S.C. app.

§ 1808(c), to conduct immediate, unannounced, and

warrantless inspections of persons or entities engaged in the

shipment, transportation, and receipt of hazardous materials

by rail, during regular business hours, for purposes of

enforcing the Hazardous Materials Transportation Act and its

implementing regulations.

IT IS FURTHER ORDERED that V-1 Oil Company, its

officers, employees, and agents, and all persons in active

concert or participation with them, should be, and are hereby,

PERMANENTLY ENJOINED and RESTRAINED from

denying or preventing officers and employees of the Federal

Railroad Administration from obtaining immediate,

unannounced, and warrantless access to the property and

facilities of V-1 Oil Company, wherever located in the United

States, during V-1 Oil Company’s business hours, to conduct

inspections of V-1 Oil Company’s records and operations

pertaining to the movement of hazardous materials by rail

transportation in commerce, for the purpose of enforcing the

Hazardous Materials Transportation Act and its implementing

regulations.

32a

Appendix D

DATED this 11 day of October, 1994.

s/ Harold L. Ryan

HAROLD L. RYAN

SENIOR UNITED STATES DISTRICT JUDGE

33a

APPENDIX E — JUDGMENT OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF IDAHO

DATED OCTOBER 11, 1994

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

CIVIL NO. 93-0333-E-HLR

UNITED STATES OF AMERICA,

Plaintiff,

V-1 OIL COMPANY, INC., d/b/a V-1 PROPANE,

Defendant.

JUDGMENT

Based on the Order on Cross Motions for Summary

Judgment entered October 11 , 1994,

IT IS HEREBY DECLARED that the United States,

specifically the Federal Railroad Administration, has the

authority under the Hazardous Materials Transportation Act,

49 U.S.C. app. §§ 1801, et seq., specifically 49 U.S.C. app.

§ 1808(c), to conduct immediate, unannounced, and

warrantless inspections of persons or entities engaged in the

shipment, transportation, and receipt of hazardous materials

by rail, during regular business hours, for purposes of

enforcing the Hazardous Materials Transportation Act and its

implementing regulations.

34a

Appendix E

IT IS FURTHER ORDERED that V-1 Oil Company, its

officers, employees, and agents, and all persons in active

concert or participation with them, should be, and are hereby,

PERMANENTLY ENJOINED and RESTRAINED from

denying or preventing officers and employees of the Federal

Railroad Administration from obtaining immediate,

unannounced, and warrantless access to the property and

facilities of V-1 Oil Company, wherever located in the United

States, during V-1 Oil Company’s business hours, to conduct

inspections of V-1 Oil Company’s records and operations

pertaining to the movement of hazardous materials by rail

transportation in commerce, for the purpose of enforcing the

Hazardous Materials Transportation Act and its implementing

regulations.

DATED this 11 day of October, 1994.

s/ Harold L. Ryan

HAROLD L. RYAN

SENIOR UNITED STATES DISTRICT JUDGE

35a

APPENDIX F — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF IDAHO

FILED JANUARY 13, 1994

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

CIVIL NO. 93-0333-E-HLR

UNITED STATES OF AMERICA,

Plaintiff,

V-1 OIL COMPANY, INC., d/b/a V-1 PROPANE,

Defendant.

ORDER GRANTING PRELIMINARY INJUNCTION

I. FACTS AND PROCEDURE

The plaintiff in this matter is the United States,

specifically the Federal Railroad Administration (FRA). The

defendant is V-1 Oil Company, Inc., (hereinafter “V-1 Oil”)

which is engaged in the transportation, shipment, and receipt

of petroleum products by rail, including propane (liquified

petroleum gas). V-1 Oil later offers these products for sale.

V-1 Oil has many branches in the western United States,

including two in the State of Idaho — one in Idaho Falls and

one in Caldwell.

This case centers around the Hazardous Materials

Transportation Act, 49 U.S.C. app. §§ 1801, et seq. This

36a

Appendix F

Statute was enacted to improve the regulatory and enforcement

authority of the Secretary of Transportation to protect the

nation adequately from the risks to life and property which are

inherent in the transportation of hazardous materials in

commerce. See 49 U.S.C. app. § 1801. The Secretary of

Transportation has delegated to the FRA the authority to

administer the statute and its implementing regulations as they

relate to the shipment and transportation of hazardous

materials by rail. See 49 C.F_.R. § 1.49(s\(1).

The statute provides that the Secretary of Transportation

shall designate particular materials as hazardous, and

promulgate necessary regulations regarding the safe

shipment, transportation, and handling of hazardous materials

in shipment. See 49 U.S.C. app. §§ 1803 and 1804. Those who

transport and/or cause to be transported hazardous materials

may be required by the Secretary to file a registration

statement once every two years. See 49 U.S.C. app. § 1805(b).

The registration statement must include the person or entity’s

name, principal place of business, the location of each activity

involving the handling of hazardous materials, a complete list

of all such materials being handled, and an averment that the

party is in compliance with all applicable criteria established

pursuant to the Act. Jd. Under certain circumstances, the

Secretary may grant a two-year exemption from the Act. See

49 U.S.C. app. § 1806.

The Act authorizes government officers to enter upon and

inspect the records and property of businesses engaged in the

shipment and transportation of hazardous substances. The

inspection provision provides as follows:

> PP Sgr. yt pO 48 -

‘

;

37a

Appendix F

authorize any officer, employee, or agent to

enter upon, inspect, and examine, at

reasonable times and in a reasonable

manner, the records and properties of

persons to the extent such records and

properties relate to

(1) the manufacture, fabrication,

marking, maintenance, reconditioning,

repair, testing, or distribution of

packages or containers for use by any

person in the transportation of

hazardous materials in commerce; or

(2) the transportation or shipment by

any person of hazardous materials in

commerce.

Any such officer, employee, or agent shall,

upon request, display proper credentials.

49 U.S.C.S. app. § 1808(c) (Law. Co-op. 1990). The Act

provides for both civil and criminal penalties. See 49 U.S.C.

app. § 1809. In addition, the Attorney General may bring an

action in district court for equitable relief to redress a

violation by any person of any provision of the Act. The court

may grant the requested relief and/or any form of mandatory

or prohibitive injunctive relief and punitive damages. See 49

U.S.C. app. § 1810(a).

The government filed the present action against V-1 Oil,

seeking first a preliminary injunction and ultimately a

38a

Appendix F

declaration that V-1 Oil may not prevent safety inspectors

from entering upon, inspecting, and examining, during V-1

Oil’s business hours, the records and properties of the

company that relate to the shipment and/or transportation of

hazardous materials by rail. The government contends that it is

authorized by the Hazardous Materials Transportation Act to

conduct inspections mandated under the Act without a search

warrant.' V-1 Oil has on several occasions refused to allow the

inspectors on its property. V-1 Oil will not let government

inspectors from any state or federal agency enter upon any of

its properties unless the inspector makes a request in advance,

fills out a detailed authorization form which must be signed by

the government agent and witnessed (by signature) by two V-1

Oil representatives.? Thereafter, the request is taken under

advisement, and if later approved by V-1 Oil, a specific date

and time is set for when the government agent may come upon

the property and conduct an inspection.

This matter is now before the court pursuant to the

government’s Motion for Preliminary Injunction under Rule

65(a) of the Federal Rules of Civil Procedure. The motion has

been fully briefed and a hearing was held on January 1!, 1994.

1. It should be noted that the Act does not expressly provide for

warrantless searches. However, the Act appears to contemplate such searches,

and it has been held that “[cJourts do not infer a warrant requirement from

statutes which authorize inspections but do not discuss the necessity of

warrants. Instead, a bare authorization for inspections is construed to authorize

warrantless inspections.” V-/ Oil Co. v. State of Wyo., Dep't of Envtl Quality,

902 F.2d 1482, 1485 (10th Cir. 1990) (citations omitted).

2. The court notes that the form used by V-1 Oil is couched in noticeably

combative terms. However, the form and the language contained in it are

irrelevant to the specific question berore the court.

oe, ee SY

26 EL PEP Ey yf eer wghs ER raceme

39a

Appendix F

Il. ANALYSIS

The traditional requirements for a preliminary injunction

include the following: “(1) a likelihood of success on the

merits and the possibility of irreparable injury or (2)

sufficiently serious questions going to the merits to make them

a fair ground for litigation and a balance of hardships tipping

decidedly in favor of the party seeking relief.” Sierra Club v.

Marsh, 816 F.2d 1376, 1382 (9th Cir. 1987) .°

It is well established that the district court generally has

broad discretion in deciding whether or not to issue a

preliminary injunction. Appellate review is limited to

ensuring that the district court did not abuse its discretion and/

or base its decision on an erroneous legal standard or clearly

erroneous finding of fact. See Oakland Tribune Inc. v.

Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.

1985); Sierra Club v. Marsh, 816 F.2d at 1381-82.

Upon review and consideration of the memoranda filed by

the parties and the arguments of counsel at the hearing, the

court finds that the government has made a strong showing of

probable success on the merits. The United States Supreme

Court has established what is now a well-recognized

exception to the warrant requirement for administrative

searches of commercial premises employed in a “closely

regulated” industry. The primary cases include Colonnade

Catering Corp. v. United States, 397 U.S. 72 (1970) (liquor

3. See also, Northern Alaska Envtl. Ctr. v. Hodel, 803 F.2d 466, 471 (9th

Cir. 1986) (party moving for a preliminary injunction must establish (1) a strong

likelihood of success on the merits; (2) the balance of irreparable harm favors

the moving party; and (3) the public interest favors the issuance of an

injunction).

40a

Appendix F

industry); United States v. Biswell, 406 U.S. 311 (1972)

(warrantless inspections of the premises of firearms dealers);

Donovan v. Dewey, 452 U.S. 594 (1981) (warrantless

inspections of mines); and New York v. Burger, 482 U.S. 691

(1987) (warrantless searches of automobile junkyards). The

Court in Burger carefully described the exception and the

criteria which must be met in order for a regulatory scheme

involving warrantless searches to be upheld.

The Fourth Amendment prohibits unreasonable searches

and seizures. This prohibition applies both to private homes

and commercial premises. See v. City of Seattle, 387 U.S. 541,

543 (1967). An owner of a business has a reasonable

expectation of privacy which is to be honored not only in the

context of traditional police searches, but also as to

administrative inspections to enforce regulatory statutes. See

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) (warrantless

inspections of all businesses engaged in interstate commerce

pursuant to OSHA held invalid). Nevertheless, the Supreme

Court has declared that “[a]n expectation of privacy in

commercial premises, however, is different from, and indeed

less than, a similar expectation in an individual’s home. .. .

This expectation is particularly attenuated in commercial

property employed in ‘closely regulated’ industries.” New

York v. Burger, 482 U.S. at 700.

The administrative search exception to the warrant

requirement is referred to as the “Colonnade-Biswell”

doctrine. The Supreme Court has made it clear that when a

person chooses to engage in a pervasively regulated industry

and accepts a federal license and/or registration, that person

does so with the knowledge that his or her business records

and premises will be subject to inspection. United States v.

Biswell, 406 U.S. at 316.

4la

Appendix F

The first question for the court to consider is whether V-1

Oil is engaged in a closely regulated industry. From its

inception, the railroad industry has been a heavily regulated

industry. In addition, the transportation and use of hazardous

materials is also heavily regulated, and rightfully so. Thus, the

court finds that to the extent that V-1 Oil engages in the receipt

and shipment of hazardous materials by rail, it is engaged ina

closely regulated industry.

The court must next look to see if the regulatory scheme

under the Hazardous Materials Transportation Act meets the

three requirements under New York v. Burger. In Burger, the

Supreme Court held that a warrantless inspection, even within

a heavily regulated industry, will be deemed reasonable only if

three criteria are met: (1) there must be a “substantial”

government interest that informs the regulatory scheme

pursuant to which inspection is made; (2) the warrantless

inspection must be necessary to further the regulatory scheme,

and (3) the statute’s inspection program, in terms of the

certainty and regularity of its application, must provide a

constitutionally adequate substitute for a warrant. New York v.

Burger, 482 U.S. at 702-03. The third criteria mandates that

the statute advise the owner of commercial premises that the

search is being conducted pursuant to the law, and that the

inspection has a defined scope and limits the discretion of the

inspecting officer.

The first two criteria are easily met in the case at hand.

First, the government has a substantial interest in regulating

the transportation of hazardous materials to protect life and

property. Second, the rationale enunciated by the Supreme

Court in United States v. Biswell (inspection of the premises of

firearms dealers) applies equally here: “[I]f inspection is to be

42a

Appendix F

effective and serve as a credible deterrent, unannounced, even

frequent, inspections are essential. In this context, the

prerequisite of a warrant could easily frustrate

inspection. .. .” United States v. Biswell, 406 U.S. at 316. If

inspections were to occur pursuant to a warrant, or with the

sort of advance notice desired by V-1 Oil, a myriad of

violations could be temporarily corrected by the time of

inspections, thereby frustrating the inspection effort. The

court is persuaded that inspections of entities engaged in the

shipment, transportation, and receipt of hazardous materials

by rail are more effective when conducted pursuant to

unannounced warrantless searches.

The remaining issue is whether the statute’s inspection

program provides a constitutionally adequate substitute for a

search warrant. The inspection program must be “sufficiently

comprehensive and defined that the owner of commercial

property cannot help but be aware that his property will be

subject to periodic inspections undertaken for specific

purposes.” Donovan v. Dewey, 452 U.S. at 600. In addition, the

statute must somehow limit the discretion of the inspectors,

and inspections must be carefully limited in time, place, and

scope. United States v. Biswell, 406 U.S. at 315.

The Hazardous Materials Transportation Act clearly

states that the Secretary may direct inspectors to enter upon

property and inspect the records and properties of persons

engaged in the shipment, transportation, and/or receipt of

hazardous materials, to the extent such records and properties

relate to packages or containers for use in the transportation of

hazardous materials in commerce. The Act is directed to a

narrowly defined group of business operators, and inspections

are further limited to specific transportation activities and

43a

Appendix F

records of hazardous materials shippers. The Act directs that

inspections take place at reasonable times and in a reasonable

manner. The government seeks to inspect only during V-1

Oil’s regular business hours. In addition, FRA guidelines

direct shat inspectors minimize any possible disturbances to

the business.

The government represents that although inspection of

V-1 Oil has been somewhat sporadic, it makes every effort to

inspect all rail shippers of hazardous materials on an annual

basis. V-1 Oil objects to the apparent randomness and/or

irregularity of inspections. It relies on the Donovan decision

and a Tenth Circuit case, V-] Oil Company v. State of

Wyoming, Department of Environmental Quality, 902 F.2d

1482, 1485 (10th Cir. 1990). The Tenth Circuit case is

distinguishable from the case at hand because the statute

involved in that case applied to every business in the state

(similar to OSHA in its comprehensiveness)‘ and, therefore,

did not provide a constitutionally adequate substitute for a

warrant.

The Supreme Court in Donovan held that a warrant is

required if searches are “so random, infrequent, or

unpredictable that the owner, for all practical purposes, has no

real expectation that his property will from time to time be

inspected by government officials.” Donovan v. Dewey, 452

U.S. at 599. In its decision in the Burger case, however, the

Supreme Court refined its position somewhat on the question

of regularity, holding that inspections must simply be limited

as to time, place, and scope. The Court held that limitations on

4. Administrative searches conducted pursvant to statutes of general

application require search warrants. See Marshall v. Barlow's Inc., 436 U.S. at

313-14.

44a

Appendix F

the number of inspections within a given period, or the

absence of such a directive, are a factor to be considered in

analyzing the adequacy of a particular statute, but that factor is

not determinative so long as the statute, as a whole, places

adequate limits on the discretion of the inspectors. New York v.

Burger, 482 U.S. at 711.21.

In its briefing, the government explains its system for

setting inspection priorities for businesses within each

reasonable. In addition, the court assumes that the frequency

of inspections is tied to the amount of funding and personnel

available to meet the statutory directive. The court is not

persuaded that, because one business has been inspected at

somewhat irregular intervals, the court should find that

warrants are required under the Act, especially since

warrantless searches have been conducted pursuant to this Act

all across the country without challenge, since 1975.

The government argues that irreparable injury should be

presumed because of V-1 Oil’s failure to comply with the

5. | FRA’s qualitative analysis findings determine how

often hazardous materials facilities are inspected. FRA

coordinates its inspection program through the National

Inspection Plan (“NIP”). NIP refers to a number of

factors in allocating inspection priorities, including

accident statistics, regulatory deficiencies reported,

risks of transporting designated articles, and number of

car movements. FRA’s Hazardous Materials Specialist

.. allocates inspection resources according to results

derived from the established criteria.

Reply Br. for P1., filed Nov. 4, 1993, at 15-16 (footnotes omitted).

45a

Appendix F

statute by refusing warrantless inspections. The court concurs

with the eases cited by the government in support of this

contention.® In addition, the court finds that there is a genuine

risk of irreparable injury to the government and the public

because of the actions of V-1 Oil in interfering with the ability

of the government to enforce a statute intended to protect the

public.

In weighing the relative hardships of the parties, it is clear

on the one hand that accidents and injury to life and property

could occur in the absence of inspections. On the other hand, if

a preliminary injunction is entered, V-1 Oil will have to accept

warrantless inspections for the next few months.’ The court is

of the opinion that the government’s interest in effectively

fulfilling its statutory duties and in ensuring the safe handling

of hazardous materials through the conduct of surprise

inspections prevails between these competing claims of

injury. The public also has a substantial interest in the safe

handling of hazardous materials. Thus, the court is of the

opinion that the public interest favors issuance of an

injunction.

In conclusion, the statute expressly provides for

6. It should be noted, however, that this court is ordinarily reluctant to

presume irreparable injury, preferring the approach enunciated in a different

context by the Supreme Court in Amoco Production Co. v. Village of Gambell,

480 U.S. 531 (1987). In that case, the Supreme Court declared that irreparable

injury is not to be presumed; rather, “{ijJn each case, a court must balance the

competing claims of injury and must consider the effect on each party of the

granting or withholding of the requested relief.” Id. at 542.

7. The impact of a preliminary injunction would be short-lived as the

parties have agreed to expedite this matter and present it to the court on

cross-motions for summary judgment within the next few months.

46a

Appendix F

injunctive relief for violation of any of its provisions. 49

U.S.C. app. § 1810. V-1 Oil has violated the statute by

refusing to allow warrantless inspections which are clearly

provided for in 49 U.S.C. app. § 1808(c). The government has

made a strong showing of likely success on the merits. In

addition, the government and the public face the possibility of

irreparable injury and the balance of harms favors the

government. For these reasons, the court will grant the

government’s Motion for Preliminary Injunction. *

Ill. ORDER

Based on the foregoing, and the court being fully advised

in the premises,

IT IS HEREBY ORDERED that the government’s Motion

for Preliminary Injunction, filed August 25, 1993, should be,

and is hereby, GRANTED. V-1 Oil Company is hereby

PRELIMINARILY ENJOINED from preventing inspectors of

the Federal Railroad Administration from obtaining

unannounced and warrantless access to its facilities at 1800

North Holmes Avenue, Idaho Falls, Idaho, and 824 Simplot

Boulevard, Caldwell, Idaho, during V-1 Oil’s business hours,

to conduct inspections of V-1 Oil’s records and operations

8. V-1 Oil argues that an injunction should not be issued because the

government has an adequate remedy at law. It suggests that the government need

only obtain search warrants to inspect V-1 Oil operations during the pendency

of this action. The court is not persuaded that this is an adequate remedy at law

because of the burden that would be placed on the government and the difficult

questions of the standard to be met in seeking approval for requested warranis.

More importantly, however, is that the statute is intended to operate without

search warrants, and the effectiveness of the inspection effort would be

substantially diminished if search warrants were required.

47a

Appendix F

pertaining to the movement of hazardous materials by rail

transportation in commerce. The preliminary injunction shall

remain in effect until this dispute is finally resolved on the

merits.

IT IS FURTHER ORDERED that all dispositive motions

in this matter shall be filed on or before March 4, 1994. All

response memoranda shall be filed on or before March 18,

1994. In light of the fact that the parties have indicated that

cross-motions for summary judgment will be filed, no reply

memoranda shall be filed. In addition, all motions shall

comply with the page limit set by Local Rule 7.1.

DATED this 13 day of January, 1994.

s/ Harold L. Ryan

HAROLD L. RYAN

SENIOR UNITED STATES DISTRICT J UDGE

48a

APPENDIX G — RELEVANT STATUTES

CHAPTER 27. HAZARDOUS MATERIALS

TRANSPORTATION

49 U.S.C.S. Appx § 1801

§ 1801. Congressional declaration of policy

It is declared to be the policy of Congress in

this title to improve the regulatory and

enforcement authority of the Secretary of

Transportation to protect the Nation

adequately against the risk to life and

property which are inherent in the

transportation of hazardous materials in

commerce.

(Jan. 3, 1975, P.L. 93-633, Title I, § 102, 88 Stat. 2156.)

§ 1802. Definitions

(2) Commerce

The term “commerce” means trade,

traffic, commerce, or transportation within

the jurisdiction of the United States (A)

between a place in a State and any place

outside of such State, or (B) which affects

trade, traffic, commerce, or transportation

described in subparagraph (A).

* * *

49a

Appendix G

(4) Hazardous material

The term “hazardous material” means a

substance or material designated by the

Secretary under section 18 of this

Appendix.

* * *

(11) Person

The term “person” means an individual,

firm, copartnership, corporation, company,

association, joint-stock association,

including any trustee, receiver, assignee, Or

similar representative thereof, or

government, Indian tribe, or agency OF

instrumentality of any government or

Indian tribe when it offers hazardous

materials for transportation in commerce or

transports hazardous materials in

furtherance of acommercial enterprise, but

such term does not include (A) the United

States Postal Service, or (B) for the

purposes of sections 1809 and 1810 of this

title, any agency or instrumentality of the

Federal Government.

eo, +.*®

(15) Transports or transportation

The term “transports” or

“transportation” means any movement of

property by any mode, and any loading,

unloading, or storage incidental thereto.

* * *

50a

Appendix G

§ 1804. Regulations governing transportation of

hazardous materials

(a) General. The Secretary may issue, in

accordance with the provisions of section

553 of title 5, United States Code, including

an opportunity for informal oral

presentation, regulations for the safe

transportation in commerce of hazardous

materials. Such regulations shall be

applicable to any person who transports, or

causes to be transported or shipped, a

hazardous material, or who manufactures,

fabricates, marks, maintains, reconditions,

repairs, or tests a package or container

which is represented, marked, certified, or

sold by such person for use in the

transportation in commerce of certain

hazardous materials. Such regulations may

govern any safety aspect of the

transportation of hazardous materials

which the Secretary deems necessary or

appropriate, including, but not limited to,

the packing, repacking, handling, labeling,

marking, placarding, and routing (other

than with respect to pipelines) of hazardous

materials, and the manufacture,

fabrication, marking, maintenance,

reconditioning, repairing, or testing of a

package or container which is represented,

marked, certified, or sold by such person

for use in the transportation of certain

hazardous materials.

Sla

Appendix G

§ 1808. Powers and duties of the Secretary

(a) General. The Secretary is authorized,

to the extent necessary to carry out his

responsibilities under this title, to conduct

investigations, make reports, issue

subpoenas, conduct hearings, require the

production of relevant documents, records,

and property, take depositions, and

conduct, directly or indirectly, research,

development, demonstration, and training

activities. The Secretary is further

authorized, after notice and an opportunity

for a hearing, to issue orders directing

compliance with this title or regulations

issued under this title; the district courts of

the United States shall have jurisdiction,

upon petition by the Attorney General, to

enforce such orders by appropriate means.

(b) Records. Each person subject to

requirements under this title shall-establish

and maintain such records, make such

reports, and provide such information as

the Secretary shall by order or regulation

prescribe, and shall submit such reports and

shall make such records and information

available as the Secretary may request.

52a

Appendix G

manner, the records and properties of

persons to the extent such records and

properties relate to —

(1) the manufacture, fabrication,

marking, maintenance, reconditioning,

repair, testing, or distribution of

packages or containers for use by any

person in the transportation of

hazardous materials in commerce; or

(2) the transportation or shipment by

any person of hazardous materials in

commerce.

Any such officer, employee, or agent shall,

upon request, display proper credentials.

§ 1810. Specific relief

(a) General. The Attorney General, at the

request of the Secretary, may bring an

action in an appropriate district court of the

United States for equitable relief to redress

a violation by any person of a provision of

this title, or an order or regulation issued

under this title. Such district courts shal!

have jurisdiction to determine such actions

and may grant such relief as is necessary or

53a

Appendix G

(b) Imminent hazard. If the Secretary has

reason to believe that an imminent hazard

exists, he may petition an appropriate

district court of the United States, or upon

his request the Attorney General shall so

petition, for an order suspending or

restricting the transportation of the

hazardous material responsible for such

imminent hazard, or for such other order as

is necessary to eliminate or ameliorate such

imminent hazard. As used in _ this

subsection, an ‘imminent hazard” exists if

there is substaatial likelihood that serious

harm will occw prior to the completion of

an administratve hearing or other formal

proceeding initiated to abate the risk of

such harm.

(Jan. 3, 1975, P. L. 93-623, Title I, § 111, 88 Stat. 2161.)

54a

APPENDIX H — EXHIBIT 1 - PORTIONS OF THE

HAZARDOUS MATERIALS ENFORCEMENT MANUAL

US Department

of Transportation

Federal Railroad

Administration

Hazardous Materials

Enforcement Manual

Office of Safety January 1991

[Page 1-7]

other prior approval is not necessary. Inspectors and other

enforcement personnel need only conduct their affairs

courteously, including displaying credentials when asked, and

in such a manner as to disrupt the facility’s business as little as

possible.

Simply stated, any person affecting the transportation of a

hazardous material in commerce is subject to inspection and

may be cited for a noncomplying condition under the Act or a

regulation issued under the Act.' Moreover, any activity

affecting the transportation of a hazardous material in

commerce is subject to investigation and inspection to

determine compliance with the underlying statutes and

regulations.”

Hazardous Materials Regulations

The Hazardous Materials Regulations are developed by the

Research and Special Programs Administration’s Office of

Hazardous Materials Transportation (RSPA/OHMT) in

cooperation with representatives of DOT operating

administrations (U.S. Coast Guard, Federal Aviation

Administration, Federal Railroad Administration, Federal

1. Examples include, but are not limited to, shippers, shipper's agents,

consignees, brokers, freight forwarders, and unloaders.

2. Examples include, but are not limited to, loading activities,

certification, documentation, handling of hazardous materials shipments,

unloading, and placarding.

56a

Appendix H

Highway Administration) and are promulgated by the

Director, under authority provided by 49 U.S.C. 1804. RSPA

also rules on all petitions for exemptions from the Hazardous

Materials Regulations.

The FRA’s Associate Administrator for Safety and the Office

of Chief Counsel work together in coordinating FRA’s input

affecting railroad transportation. The Hazardous Materials

Division in the Washington Office provides, technical,

chemical, engineering, and operating expertise.

57a

Appendix H

[Page 2-2]

Federal Railroad Administration

Time Allocation and the National Inspection Plan for guidance

in the allocation of inspection resources. '

Inspector Priorities. The allocation of resources will often

deviate from the desired goal because of unforseen events.

When these events occur, Regional Directors, Specialist and

inspectors will base their decisions on the following priorities:

@ Accident/incident investigations

®@ Hazardous material incident investigations (only when the

requirements of 171.15 have been satisfied)

@ Congressional complaint investigations

@ Complaint investigations

®@ Violation investigations

@ Regular inspections and hazardous material incident

investigations (when the requirements of 171.16 have been

satisfied)

1. See the Appendix for FRA's Annual National Inspection Policy on

Hazardous Materials Inspectors Time Allocation.

58a

Appendix H

Beginning, Ending and Times of Inspections and

Investigations

Hazardous material inspections and investigaiion will be

conducted during the inspector’s normally assigned office

hours. Although on certain occasions, inspectors will conduct

inspections, investigations, or surveillance activities outside

of the established office hours. When an inspection occurs

outside of the inspector’s normally assigned office hours, the

inspector should notify his/her Regional Specialist.

An inspector should give no advance notice of a hazardous

material inspection. Although, advance notice of an inspection

may be given when it is considered necessary to ensure the

availability of records, equipment, officials, or persons to be

interviewed.

59a

APPENDIX I — INSPECTION REPORT

[Omitted here but submitted separately as Lodging Appendix.]

60a

APPENDIX J — INSPECTION REPORT

[Omitted here but submitted separately as Lodging Appendix.]

PS oe PRI ky ere coi Sie TEN ga Me WE see vine Boel

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.