Nuclear Info. and Res. v. U.S. Dept., Transp. Res.

• Decision Date: 24 July 2006
• Docket Number: No. 05-16327.,05-16327.
• Citation: 457 F.3d 956
• Parties: NUCLEAR INFORMATION AND RESOURCE SERVICE; Committee to Bridge the Gap; Public Citizen, Inc.; Redwood Alliance; Sierra Club, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF TRANSPORTATION RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION; Norman Y. Mineta, in his official capacity as Secretary of the United States Department of Transportation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

457 F.3d 956

NUCLEAR INFORMATION AND RESOURCE SERVICE; Committee to Bridge the Gap; Public Citizen, Inc.; Redwood Alliance; Sierra Club, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF TRANSPORTATION RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION; Norman Y. Mineta, in his official capacity as Secretary of the United States Department of Transportation, Defendants-Appellees.

No. 05-16327.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 2006.

Filed July 24, 2006.

Paul Lamboley, San Francisco, CA, for the appellants.

John L. Smeltzer, United States Department of Justice, Washington, D.C., for the appellee.

Appeal from the United States District Court for the Northern District of California; Marilyn H. Patel, District Judge, Presiding. D.C. No. CV-04-04740-MHP.

Before PAMELA ANN RYMER and KIM McLANE WARDLAW, Circuit Judges, and JAMES V. SELNA,^* District Judge.

RYMER, Circuit Judge.

The Nuclear Information and Resource Service, Committee to Bridge the Gap, Public Citizen, Inc., Redwood Alliance, and Sierra Club (collectively NIRS) appeal the district court's dismissal of NIRS's challenge to the Department of Transportation's (DOT) rulemaking for lack of subject matter jurisdiction. The district court held that the court of appeals has exclusive jurisdiction under 49 U.S.C. § 20114(c), which provides that any proceeding to review a final action of the Secretary of Transportation under the Hazardous Materials Transportation Act (HMTA), "as applicable to railroad safety," shall be brought in the courts of appeals pursuant to the Hobbs Act, 28 U.S.C. §§ 2341-2351. We agree with the district court that because the challenged DOT rule regulates transportation of hazardous materials by rail, as well as by other modes of transportation, exclusive jurisdiction lies in the courts of appeals. We affirm.

I

DOT is authorized to designate material as hazardous and to prescribe regulations for the safe transportation of such material. 49 U.S.C. § 5103(a), (b)(1). Under this authority, DOT has issued its Hazardous Materials Regulations (HMR), which regulate the shipment of radioactive materials, including packaging, labeling, and notification. 49 C.F.R. §§ 171-180. The requirements in the HMR apply to the "transportation of hazardous material in commerce," 49 C.F.R. § 171.1(c), including "[m]ovement of a hazardous material by rail car, aircraft, motor vehicle, or vessel," 49 C.F.R. § 171.1(c)(1).

After an extensive period of public comment and coordination with the Nuclear Regulatory Commission (NRC), on January 26, 2004, DOT issued a Final Rule adopting Compatibility Amendments to the HMR to harmonize its exemptions for low-level radioactive materials with the exemption standards of the International Atomic Energy Agency (IAEA). Hazardous Materials Regulations; Compatibility With the Regulations of the International Atomic Energy Agency; Final Rule, 69 Fed.Reg. 3,632 (Jan. 26, 2004) (to be codified at 49 C.F.R. pts. 171-78) ("DOT Final Rule"). As a result of the amendments, the HMR now defines "radioactive material" to mean "any material containing radionuclides where both the activity concentration and the total activity in the consignment exceed the values specified" in the new dose-based tables. 49 C.F.R. § 173.403. In preparing its final amendment to the HMR, DOT relied on the Environmental Assessment and Finding of No Significant Impact issued by NRC. DOT Final Rule, 69 Fed.Reg. at 3,664; see 40 C.F.R. § 1501.5(a)(2) (permitting a lead agency to supervise preparation of an Environmental Impact Statement if multiple agencies are involved in "a group of actions directly related to each other because of their functional interdependence").

On November 9, 2004, NIRS filed an action in the United States District Court for the Northern District of California seeking review of DOT's rulemaking. NIRS alleged that DOT violated the National Environmental Protection Act (NEPA) by failing to prepare an Environmental Impact Statement (EIS) before promulgating its Final Rule. More than eight months earlier, on March 26, 2004, NIRS had timely filed a petition for review of the NRC rulemaking in this court under the Hobbs Act, arguing that NRC breached its NEPA obligations. On November 10, 2004, NIRS sought transfer of the NRC review proceedings to the district court for consolidation with the DOT case. We denied that motion without prejudice on April 13, 2005. On January 10, 2005, DOT filed a motion to dismiss the district court action under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction pursuant to 49 U.S.C. § 20114(c).

The district court granted DOT's motion to dismiss. The court held that it was apparent from the Hobbs Act and § 20114(c) that an action challenging the validity of DOT's regulations, as applicable to railroad safety, must be brought in the courts of appeals. Even though the district court recognized the possibility that it would retain jurisdiction to review the portions of the rule that were unrelated to rail transport, while the courts of appeals had exclusive jurisdiction over any part applicable to railroad safety, it concluded that considerations of judicial economy favored resolution of all claims arising from a single agency decision in one forum.

NIRS timely appealed. We review de novo the district court's dismissal for lack of subject matter jurisdiction. Luong v. Circuit City Stores, Inc., 368 F.3d 1109, 1111 n. 2 (9th Cir.2004).

II

District courts generally have jurisdiction over NEPA claims pursuant to 28 U.S.C. § 1331 and the Administrative Procedure Act, 5 U.S.C. § 702. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir.2004) (noting that "judicial enforcement of NEPA rights is available through the APA"). However, where a federal statute provides for direct review of an agency action in the court of appeals, such "[s]pecific grants of exclusive jurisdiction to the courts of appeals override general grants of jurisdiction to the district courts." Carpenter v. Dept. of Transp., 13 F.3d 313, 316 (9th Cir.1994) (quoting Owner-Operators Indep. Drivers Ass'n of Am., Inc. v. Skinner, 931 F.2d 582, 589 (9th Cir.1991)).

The specific grant of jurisdiction relevant to NIRS's claims against DOT is set forth in the Hobbs Act, which provides that courts of appeals shall have exclusive jurisdiction over actions seeking judicial review of "all final agency actions described in section 20114(c) of title 49," a provision of the Federal Railroad Safety Act of 1970 (FRSA). 28 U.S.C. § 2342(7). Section 20114(c), in turn, provides that "a proceeding to review a final action of the Secretary of Transportation under [Title 49, Subtitle V, Part A] or, as applicable to railroad safety, chapter 51 or 57 of [Title 49] shall be brought in the appropriate court of appeals as provided in chapter 158 of title 28 [the Hobbs Act]." 49 U.S.C. § 20114(c) (emphasis added). The DOT regulations at issue in this case were promulgated pursuant to chapter 51 of Title 49, 49 U.S.C. §§ 5101-5128, which codifies the HMTA. DOT's Final Rule applies to all modes of transport, including rail.

NIRS argues that the court of appeals has exclusive jurisdiction to review DOT action under the HMTA only when DOT takes action unique to rail carriers. NIRS grounds this argument in the legislative history of the FRSA, which it claims demonstrates that Congress intended § 20114(c) to apply only to actions by the Federal Railroad Administration (FRA), not by DOT, and only to actions solely applicable to railroad regulation, not to multi-modal regulation. To support its position, NIRS relies on a draft version of § 20114(c) that limited judicial review of HMTA actions in the court of appeals to those "applicable solely to railroads." DOT counters that applying § 20114(c) to multi-modal actions that impact railroad safety is consistent with the plain language of the statute and with the section's purpose and legislative history. DOT argues that § 20114(c) is not ambiguous on its face and that there is no reason to look beyond the provision's plain meaning to its legislative history.

We agree with DOT that § 20114(c) is unambiguous; however, we refine DOT's reading of the statute. The statute provides that "a proceeding to review a final action of the Secretary of Transportation under this part or, as applicable to railroad safety, chapter 51 or 57 of this title shall be brought in the appropriate court of appeals." The prepositional phrase "as applicable to railroad safety" modifies the noun "chapter 51." Thus, a challenge to a final action under Chapter 51, as that chapter is applicable to railroad safety, must be brought in the courts of appeals. The alternate reading of the statute urged by DOT interprets the phrase "as applicable to railroad safety" as modifying "a final action." This reading is grammatically unsound because it requires dropping the preposition "as" and moving "under" so that the relevant part of the sentence reads "a final action applicable to railroad safety under Chapter 51." The latter reading would be defensible if the language were "applicable to railroad safety" and not "as applicable to railroad safety." However, as it is written, we think it clear that this jurisdictional provision applies to actions under the HMTA (Chapter 51), as that statute applies to railroad safety.

If the statute were read to provide exclusive appellate jurisdiction for final agency actions applicable to railroad safety under the HMTA, then there might be a question whether an action would be reviewable in the court of appeals only in so far as it applied to railroad safety, and reviewable in the district court in so far as it applied to other modes of transportation. However, the technically sound reading of the statute forecloses the possibility that "a proceeding" to review "a final action" would need to be split into component parts. Any action under the HMTA that affects railroad safety is...