966 F.2d 335 (8th Cir. 1992), 91-2650, Minnesota Transp. Regulation Bd. v. United States

Docket Nº:91-2650.
Citation:966 F.2d 335
Party Name:MINNESOTA TRANSPORTATION REGULATION BOARD, Petitioner, v. UNITED STATES of America and the Interstate Commerce Commission, Respondents.
Case Date:May 22, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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966 F.2d 335 (8th Cir. 1992)



UNITED STATES of America and the Interstate Commerce

Commission, Respondents.

No. 91-2650.

United States Court of Appeals, Eighth Circuit

May 22, 1992

Submitted March 9, 1992.

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Margaret Eileen Hendriksen, St. Paul, Minn., argued (Hubert H. Humphrey III and Margaret Eileen Hendriksen, on the brief), for petitioner.

Michael Martin, Washington, D.C., argued (James F. Rill, Robert B. Nicholson, James W. Lowe, Robert S. Burke, Craig M. Keats and Michael Martin, on the brief), for respondents.

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Before McMILLIAN and HANSEN, Circuit Judges, and VAN SICKLE, [*] Senior District Judge.

McMILLIAN, Circuit Judge.

The Minnesota Transportation Regulation Board (MTRB) appeals from a decision of the Interstate Commerce Commission (ICC) exempting from regulation a transaction between Herman Brothers, Inc. (Herman) and Thompson Truck Line, Inc. (Thompson). Herman Bros., Inc.--Purchase Exemption--Thompson Truck Line, Inc., 7 I.C.C.2d 382 (1991). For reversal, the MTRB argues that the ICC abused its discretion in (1) interpreting 49 U.S.C. § 11343(a)(2) to cover certain transactions not amounting to a consolidation of motor carriers and (2) limiting the issues which may be argued in opposition to a petition for an exemption under 49 C.F.R. Part 1186 (1991). For the reasons discussed below, we affirm the decision of the ICC.


On August 21, 1990, the ICC granted an exemption from regulation to a proposed transaction between Herman and Thompson, two motor carriers. Because no comments in opposition to the transaction were filed within sixty days, the exemption became effective and the transaction was consummated on October 23, 1990. Under the transaction, Thompson transferred its interstate and Minnesota intrastate operating rights to Herman. Although Thompson intended to completely discontinue trucking activity upon completion of the transfer, the parties agree that this transaction was neither a merger nor a consolidation of the two corporations. Some of the Minnesota intrastate rights sought to be transferred are "grandfather" irregular route common carrier authority, which may not be transferred under Minnesota law. 1

The ICC exempted this transaction from regulation pursuant to 49 U.S.C. § 11343(e)(1), which gives the ICC the power to:

exempt a person, class of persons, transaction, or class of transactions from the merger, consolidation, and acquisition of control provisions of this subchapter if the [ICC] finds that--

(A) the application of such provisions is not necessary to carry out the transportation policy of section 10101 of this title; and

(B) either (i) the transaction is of limited scope, or (ii) the application of such provisions is not needed to protect shippers from the abuse of market power.


Any transaction for which an exemption is granted pursuant to § 11343(e) also "is exempt from the antitrust laws and from all other law, including State and municipal law, as necessary to let that person carry out the transaction." Id. § 11341(a). Thus, the ICC's exemption of this transaction allowed the firms to transfer the "grandfather" authority without regard to its nontransferability under Minnesota law.

The MTRB opposed the exemption and, in January, 1991, filed a petition with the ICC to reopen the proceeding and to revoke the exemption. The MTRB's primary argument was that the ICC cannot exempt this transaction pursuant to § 11343(e) because the transaction does not qualify as a consolidation, merger, or acquisition of control. Those transactions which may be exempted under § 11343(e) are listed in § 11343(a), which provides in part:

The following transactions involving carriers providing transportation subject to the jurisdiction of the [ICC] ... may be carried out only with the approval and authorization of the [ICC]:


(2) a purchase, lease, or contract to operate property of another carrier by any number of carriers.

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The MTRB argued that, for § 11343(a)(2) to apply, two carriers must consolidate or merge. In other words, the MTRB argued that § 11343(a)(2) grants the ICC exclusive jurisdiction only over "a purchase of another carrier, a lease of another carrier, or a contract to operate property of another carrier," and not "a purchase of property of another carrier, a lease of property of another carrier, or a contract to operate property of another carrier." The MTRB argued that because this transaction was not a consolidation of the two firms, § 11343 is inapplicable and this transaction is instead covered by 49 U.S.C. § 10926, which specifically governs transfers of certificates and permits. 2

The MTRB also argued that if § 11343 applies to this transaction, the ICC was required to consider the possible dormancy of the Thompson "grandfather" irregular route authority. 3 The ICC had granted this exemption pursuant to the procedures provided by Exemption of Certain Transactions under 49 U.S.C. 11343, 133 M.C.C. 449 (1984) (Exemption ). In Exemption, the ICC utilized its statutory authority to exempt the entire class of § 11343 transactions between nonbus motor carriers. At that time, the ICC considered the National Transportation Policy (NTP), as required by § 11343(e), and found that only two issues need to be considered on a case-by-case basis: (1) whether the transaction in question raises issues of competition (antitrust issues) and (2) whether the transaction raises issues of employee protection. The procedures set out in Exemption are detailed in 49 C.F.R. Part 1186 (1991). The MTRB argued that the ICC must allow a challenge to a proposed exemption to raise other issues, such as dormancy.

On May 22, 1991, the ICC denied the MTRB's petition to reopen the proceeding. Herman Bros., Inc.--Purchase Exemption--Thompson Truck Line, Inc., 7 I.C.C.2d 382 (1991). The ICC held that § 11343(a)(2) does not require a consolidation and that the issues raised by the MTRB in opposition to the transaction are irrelevant under Exemption. The MTRB has appealed to this court.

INTERPRETATION OF 49 U.S.C. § 11343(a)(2)

In evaluating the ICC's construction of 49 U.S.C. § 11343(a)(2), we must first determine whether Congress has directly addressed the meaning of the statute. If it has, our inquiry ends, because "the court as well as the agency must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A. v. National Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984) (Chevron ). This court is entitled to use traditional tools of statutory interpretation in answering this first question, and is not limited to the text itself. Id. at 843 n. 9, 104 S.Ct. at 2781 n. 9. If we find the statute silent or ambiguous, we must defer to the ICC's interpretation so long as it is reasonable, regardless of whether we might have taken a different view. Id. at 843-45, 104 S.Ct. at 2782-83. See also Beef Nebraska, Inc. v. United States, 807 F.2d 712, 716 (8th Cir.1986) ("When our review is of an agency's interpretation of a statute that it administers, however, the agency's determination often is entitled to some deference."). However, we must take into account that "where the sustaining of federal jurisdiction leads, by statute, to the complete ouster of state authority," the agency's interpretation must be carefully reviewed. County of Marin v. United States, 356 U.S. 412, 420, 78 S.Ct. 880, 884, 2 L.Ed.2d 879 (1958) (County of Marin ).

The MTRB's first argument is that the scope of 49 U.S.C. § 11343(a)(2) is limited

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to consolidations or mergers of two or more carriers, and cannot cover a mere transfer of operating authority. Section 11343(a)(2) grants the ICC exclusive jurisdiction over "a purchase, lease, or contract to operate property of another carrier by any number of carriers." The MTRB argues that the statute's use of commas and its failure to use the preposition "of" after "purchase" and "lease" show a...

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