Nicholson v. I.C.C.
| Decision Date | 30 June 1983 |
| Docket Number | No. 82-1428,82-1428 |
| Citation | 711 F.2d 364 |
| Parties | Jerry K. NICHOLSON, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Louisiana Soybean Association, Missouri Pacific Railroad Company, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Interstate Commerce commission.
Fritz R. Kahn, Washington, D.C., for petitioner and intervenor, Louisiana Soybean Ass'n.
Sidney L. Strickland, Jr., Atty., I.C.C., Washington, D.C., with whom John Broadley, Gen. Counsel, Ellen D. Hanson, Associate Gen. Counsel, I.C.C., John P. Powers, III and Kenneth P. Kolson, Attys., U.S. Dept. of Justice, Washington, D.C., were on the brief, for respondents.
John P. Legendre, Dallas, Tex., for intervenor, Missouri Pacific R. Co.
John J. Rademacher, Washington, D.C., was on the brief for American Farm Bureau Federation, amicus curiae, urging that the order under review herein be vacated.
Henry H. Bernard, Jr., Baton Rouge, La., was on the brief for Louisiana Farm Bureau Federation, Inc., amicus curiae, urging that the order under review herein be vacated.
James I. Collier, Jr., Washington, D.C., was on the brief for Ass'n of American Railroads, amicus curiae, urging affirmance.
Before ROBINSON, Chief Judge, WALD, Circuit Judge, and MacKINNON, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge MacKINNON.
Petitioner, Jerry K. Nicholson, challenges an order of the Interstate Commerce Commission (Commission) which dismissed his complaint alleging that the Missouri Pacific Railroad Co. (Missouri Pacific) had violated the Interstate Commerce Act, 49 U.S.C. § 10901(a) (Supp. V 1981), 1 by attempting to build a railroad line--to wit, a classification yard adjacent to its main-line track in Pointe Coupee Parish, Louisiana--on his land without a finding by the Commission of public convenience and necessity. The Commission ruled that the classification yard was not a "railroad line" requiring the approval called for by section 10901(a), but rather was a switching track excepted from Commission jurisdiction by 49 U.S.C. § 10907(b)(1) (Supp. V 1981). 2 Nicholson v. Missouri Pacific R.R., 366 I.C.C. 69, 72-74 (1982). Because well-established judicial and Commission precedent compel the conclusion that the proposed Missouri Pacific classification yard is not a "railroad line" requiring Commission approval, we affirm the Commission's order.
Petitioner owns farmland in Pointe Coupee Parish, Louisiana, on which he grows soybeans and other crops. Missouri Pacific presently owns a right-of-way over petitioner's land for the operation of a single-line track of railroad, but wishes to construct a classification yard adjacent to its track on petitioner's land. The numerous tracks in the yard will be used to switch cars in the making up and breaking up of freight trains, to arrange cars of trains in delivery order, and to sort cars in trains by types of cars or contents preparatory to train movement. 3 As a public utility, Missouri Pacific has filed an action under state law in Louisiana state court to acquire by condemnation the necessary portion of petitioner's land. Missouri Pacific R.R. v. Nicholson, Civil Action No. 17299 (La.Dist.Ct.1981).
Petitioner 4 filed a complaint with the Commission seeking a cease and desist order to prevent Missouri Pacific from taking any steps to construct the classification yard without Commission approval pursuant to section 10901(a). 5 Petitioner contended that the classification yard would be "an additional railroad line" requiring the Commission's prior approval and that the Commission had not made the findings required by the statute. 49 U.S.C. § 10901(a) (Supp. V 1981). A Commission Review Board dismissed the complaint because it was not ripe for review. The Review Board reasoned that a "civil decision against [Missouri Pacific] may totally moot the issue of whether Commission approval of [Missouri Pacific's] construction is required." Nicholson v. Missouri Pacific R.R., Finance Docket No. 29657, slip op. at 2 (Sept. 15, 1981). On appeal, the Commission affirmed the dismissal of petitioner's complaint, although on different grounds. Nicholson v. Missouri Pacific R.R., supra, 366 I.C.C. at 69.
The Commission found that the complaint was ripe for review because petitioner had demonstrated "a substantial probability that if the Commission waits, [petitioner] would be harmed by the challenged conduct before the Commission could determine its legality." Id. at 72. However, the Commission also found that the operations which would be performed at the classification yard would be incidental to main-line transportation and that such transportation would continue over Missouri Pacific's existing track. Noting that it had consistently held yards exempt from its jurisdiction under section 10907(b), 6 and had never authorized the construction of a classification yard, the Commission ruled that the proposed classification yard was not a railroad line requiring approval pursuant to section 10901(a). Id. at 72-74. This petition for review followed.
Petitioner contends that the Commission erred in concluding that construction of the proposed classification yard did not require its approval. 7 Petitioner argues that because section 10102(19) of the Interstate Commerce Act defines "railroad " to include "yard," 8 the Act's requirement that Commission authorization be received prior to construction of "railroad lines" necessarily encompasses construction of "yards." Petitioner also argues that because the proposed classification yard will cost $75 million, the substantiality of the cost requires the Commission to rule upon the project prior to its construction. We find these arguments to be without merit.
It is well established that the determination of whether a particular track segment is a "railroad line," requiring Commission authorization pursuant to section 10901(a), or a "spur, industrial, team, switching, or side" track, exempt from Commission jurisdiction pursuant to section 10907(b), 9 turns on the intended use of the track segment, not on the label or cost of the segment. It was held early on that
it is sufficiently plain, from a consideration of not only the obvious purpose prompting the [Interstate Commerce Act 10 but also of the general nature of the tracks mentioned, that Congress intended to subject to the requirements of [section 1(18) ] so-called main or branch lines of railroad, that is, lines designed and used for continuous transportation service by through, full trains between different points of shipment or travel, and to exclude from the operation of the statute all that mass of "tracks" (as distinguished from "lines") naturally and necessarily designed and used for loading, unloading, switching, and other purposes connected with, and incidental to, but not actually and directly used for, such transportation service.
Detroit & M. Ry. v. Boyne City, G. & A.R.R., 286 F. 540, 546 (E.D.Mich.1923) (emphasis added). 11 Shortly thereafter, the Supreme Court held that
[i]f the purpose and effect of the new trackage is to extend substantially the line of a carrier into new territory, the proposed trackage constitutes an extension of the railroad within the meaning of [section 1(18) of the Act], although the line be short and although the character of the service contemplated be that commonly rendered ... by means of spurs or industrial tracks.
Texas & P. Ry. v. Gulf, Colo. & S.F. Ry., 270 U.S. 266, 278, 46 S.Ct. 263, 266, 70 L.Ed. 578 (1926) (emphasis added). Thus it can be seen that track segments which are intended to be used to carry through trains between points of shipment and delivery, particularly those segments which extend a railroad's service into new territory, must be approved by the Commission pursuant to section 10901(a). On the other hand, track segments which are merely incidental to, and not required for, a railroad's service between points of shipment and delivery are exempted from the requirements of section 10901(a) by section 10907(b). 12
Application of these principles to Missouri Pacific's proposed classification yard compels the conclusion that construction of the Pointe Coupee Classification Yard is not the construction of a "railroad line" requiring Commission approval pursuant to section 10901(a). The yard will be located adjacent to Missouri Pacific's existing main-line track in Pointe Coupee Parish and will be used solely for storage, switching, and classification of railroad cars. Although the classification yard is expected to increase Missouri Pacific's efficiency in handling freight traffic, the yard will not extend Missouri Pacific's service into any new territory. Through trains will continue to move over Missouri Pacific's existing main-line track to their prior destinations; the classification yard will be incidental to the operation of trains over that track. Accordingly, construction of the classification yard is exempted from Commission jurisdiction by section 10907(b).
Support for this conclusion is found in a decision of the Fifth Circuit which held, without explanation, that Commission approval pursuant to section 1(18) of the Interstate Commerce Act 13 was not required prior to the construction of a classification yard. Georgia S. & Fla. Ry. v. Duval Connecting R.R., 324 F.2d 801, 802 (5th Cir.1963) (per curiam). Furthermore, the Commission has consistently interpreted the Act as not requiring its approval prior to the construction of yards:
The applicant correctly states that the construction of a new yard and the consolidation of terminal facilities are not within themselves subject to the jurisdiction of this Commission and may be accomplished without its authority.
Oregon-Washington R.R. & Navigation Co. Construction, 275 I.C.C. 591,...
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