Friends of Sierra R.R., Inc. v. I.C.C.

• Decision Date: 31 July 1989
• Docket Number: No. 87-7407,87-7407
• Citation: 881 F.2d 663
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: FRIENDS OF SIERRA RAILROAD, INC. and Tuolumne Park and Recreation District, Petitioners, v. INTERSTATE COMMERCE COMMISSION; United States of America, Respondents.

Page 663

881 F.2d 663

FRIENDS OF SIERRA RAILROAD, INC. and Tuolumne Park and Recreation District, Petitioners, v. INTERSTATE COMMERCE COMMISSION; United States of America Respondents.

No. 87-7407.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 11, 1989.

Decided July 31, 1989.

Charles H. Montange, Washington, D.C., for petitioners.

Evelyn G. Kitay, I.C.C., Washington, D.C., for respondents.

Charles I. Appler, Hopkins, Sutter, Hamel & Park, Washington, D.C., for intervenor-respondent.

Appeal from a Decision of the Interstate Commerce Commission.

Before CHOY, WALLACE and WIGGINS, Circuit Judges.

WALLACE, Circuit Judge:

Friends of Sierra Railroad, Inc. (Friends) petitions for review of the refusal of the Interstate Commerce Commission (ICC) to reopen a class exemption granted to the Sierra Railroad (Sierra) which permitted Sierra to abandon a one-mile segment of its rail line. Friends argued that the ICC granted the exemption through an invalid procedure, and that even under that procedure Sierra's exemption was void. Friends sought through reopening first to require the ICC to conduct an environmental and historic preservation review of the abandonment, and second to secure an option to purchase the right-of-way of the abandoned segment. A petition was timely filed. Because we lack jurisdiction to entertain this petition, we dismiss.

I

Under the Staggers Act, a rail carrier may not abandon a rail line without first obtaining permission from the ICC. 49 U.S.C. Sec. 10903 et seq. The Staggers Act contains a comprehensive and involved scheme of standards and procedures for abandoning rail lines. See id. As an exception to the otherwise burdensome procedures required by that Act to abandon a line, 49 U.S.C. Sec. 10505 directs the ICC to exempt a transaction or class of transactions from regulation if it finds (1) its regulation is not necessary to carry out the rail transportation policy enunciated in 49 U.S.C. Sec. 10101a and (2) either the transaction is of limited scope or regulation is unnecessary to protect shippers from abuse of market power. 49 U.S.C. Sec. 10505. Pursuant to this statute, the ICC established exempt abandonment procedures for rail lines out of service for two years or longer. See 49 C.F.R. Sec. 1152.50 (1984); Exemption of Out of Service Rail Lines, 366 I.C.C. 885 (1983).

On November 20, 1984, Sierra filed a notice of exemption pursuant to section 10505 and 49 C.F.R. Sec. 1152.50 (1984) to abandon its one-mile rail line and underlying right-of-way between mileposts 49 and 50 in Tuolumne County, California. Sierra provided the California Department of Transportation with both advance notice of its intention to file a notice of exemption and an environmental notice pursuant to 49 C.F.R. Sec. 1105.11 (1984). On January 2, 1985, the ICC published a notice of exemption in the Federal Register. 50 Fed.Reg. 188 (1985). This notice stated that the exemption would become effective February 1, 1985, unless stayed pending reconsideration. The notice advised that petitions to stay had to be filed by February 11, 1985, and that petitions for reconsideration had to be filed by February 21, 1985. At the same time, the ICC sent copies of the notice to the Governor of California and numerous California state agencies: the State Resources Agency (notices went to the Assistant Secretary, the State Historical Preservation Office, the Department of Parks & Recreation, and the Department of Parks & Recreation Planning Division); the California Coastal Commission; the Public Utilities Commission (notices went to the Commission and to the Chief of the Railroad Operations & Safety Branch); the Department of Fish & Game; the Office of Planning & Research; and the Rail Planning Branch of the Department of Transportation. On January 21, 1985, the California Public Utilities Commission mailed copies of the notice to several potentially interested persons. No objections were filed, and the exemption became effective as scheduled on February 1, 1985.

On January 28, 1986, over a year after the notice of exemption was published, Sierra began to salvage track and material on the line. As a result of the salvage operation, Friends became aware of the abandonment and promptly contacted the Advisory Council on Historic Preservation, which in turn informed the ICC's Section of Energy & Environment (ICC Environmental Section) that the California State Historical Resources Commission had previously determined that the line was eligible for inclusion in the National Register of Historic Places (National Register), and that the abandonment exemption had apparently been granted without review under section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. Sec. 470(b).

The ICC Environmental Section responded that it was unaware of the line's eligibility for the National Register and contacted Sierra "to encourage voluntary compliance with the historic preservation process." On May 6, 1986, Sierra offered to sell the line to the California Department of Parks & Recreation. When this department declined this offer, Sierra then offered and sold the line to Louisiana-Pacific Corporation. The deed of sale was recorded on June 18, 1986.

Also on June 18, 1986, Friends filed a petition asking the ICC to reopen the proceeding. The ICC denied Friends's motion to reopen on July 20, 1987. Friends's "Motion to Correct Decision," which the ICC treated as a petition for reconsideration, was denied on January 26, 1988.

Friends filed its petition for review in this court pursuant to 28 U.S.C. Sec. 2344 on September 2, 1987, within the 60-day period after the ICC's July 20, 1987, denial of the petition to reopen. The petition in our court was held in abeyance pending resolution of Friends's petition to the ICC for reconsideration.

II

As a threshold matter, we must determine whether we have jurisdiction over this case. The Supreme Court recently spoke to this question in ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987) (Locomotive Engineers ). Under 28 U.S.C. Sec. 2344, a party seeking to challenge a final order of the ICC must file a petition for review within 60 days after its entry. Clearly, Friends's petition is not timely for purposes of reviewing the original exemption authority, which was administratively final on February 1, 1985. See id. The time limit in 28 U.S.C. Sec. 2344 is jurisdictional, and we have held that a subsequent unsuccessful petition to an agency to reopen cannot create a new final order giving our court jurisdiction over an untimely petition for review. California Association of the Physically Handicapped, Inc. v. FCC, 833 F.2d 1333, 1334 (9th Cir.1987); Provisioners Frozen Express, Inc. v. ICC, 536 F.2d 1303, 1305 (9th Cir.1976). Thus, we have no jurisdiction to review the original order.

Friends contends that, although we lack jurisdiction to review the original order, we nonetheless may review the ICC's denial of Friends's petition to reopen. The ICC's authority to reopen its prior actions arises from 49 U.S.C. Sec. 10327(g). Locomotive Engineers, 482 U.S. at 277-78, 107 S.Ct. at 2365-66. 49 U.S.C. Sec. 10327(g) provides in part:

(g)(1) The Commission may, at any time on its own initiative because of material error, new evidence, or substantially changed circumstances--

(A) reopen a proceeding;

(B) grant rehearing, reargument, or reconsideration of an action of the Commission; and

(C) change an action of the Commission.

An interested party may petition to reopen and reconsider an action of the Commission under this paragraph under regulations of the Commission.

When the Commission refuses to reopen a proceeding, we review only the lawfulness of the refusal. Locomotive Engineers, 482 U.S. at 278, 107 S.Ct. at 2365-66. Our oversight is very limited. We may review the refusal to reopen only "[i]f the petition that was denied sought reopening on the basis of new evidence or changed circumstances ... otherwise, the agency's refusal to go back over ploughed ground is nonreviewable." Id. at 284, 107 S.Ct. at 2368. We cannot review such a refusal to reopen where the petition alleges only "material error." In such cases, an appeal from the denial of the petition "places before the courts precisely the same substance that could have been brought there by appeal from the original order." Id. at 279, 107 S.Ct. at 2366. The Court expressly prohibited such review even though it would serve the purpose of extending indefinitely the time for judicial review of "seriously mistaken agency orders." Id. at 280, 107 S.Ct. at 2366 (emphasis in original). Prohibiting review of denial of petitions to reopen alleging only material error is jurisdictional, not merely prudential, and is implicit in the Hobbs Act 60-day jurisdictional time limit on judicial review of ICC decisions. See id. at 281-82, 107 S.Ct. at 2367-68.

In evaluating reviewability of such petitions, we need not and may not examine the reasoning expressed in an ICC decision. Although here, as in Locomotive Engineers, the ICC decision refusing to reopen discussed the merits of the petition at length, we determine reviewability solely by examining the bases advanced in the petition to reopen. See id. at 280-81, 107 S.Ct. at 2366-67. The order denying Friends's petition is subject to review only if the petition sought reopening on the basis of "new evidence" or "substantially changed circumstances," regardless of the analysis contained in the ICC decision. We now determine whether Friends's petition to reopen qualifies to provide us jurisdiction.

A.

We first consider an argument in Friends's petition to reopen which involves the new evidence exception. It contends that the notice of exemption contained false or misleading information, and was thus void ab initio under 49 C.F.R. Sec. 1152.50(d)(3) (1984). For purposes of obtaining our review, this argument is inherently...