City of New York v. United States, Civ. No. 71-C-1639.
| Court | U.S. District Court — Eastern District of New York |
| Writing for the Court | FRIENDLY, Circuit , MISHLER, , and WEINSTEIN |
| Citation | 337 F. Supp. 150 |
| Parties | CITY OF NEW YORK, Plaintiff, and Bush Terminal Railroad Users Association, Inc., et al., Intervening Plaintiffs, v. The UNITED STATES of America et al., Defendants. |
| Decision Date | 20 January 1972 |
| Docket Number | Civ. No. 71-C-1639. |
337 F. Supp. 150
CITY OF NEW YORK, Plaintiff, and Bush Terminal Railroad Users Association, Inc., et al., Intervening Plaintiffs,
v.
The UNITED STATES of America et al., Defendants.
Civ. No. 71-C-1639.
United States District Court, E. D. New York.
January 20, 1972.
Stacey L. Wallach, New York City (Tenzer, Greenblatt, Fallon & Kaplan, New York City, of counsel), for intervening plaintiff, Bush Terminal Users Ass'n.
William C. Mahoney, Washington, D. C., for intervening plaintiffs, United Transportation Union and Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express & Station Employes.
John C. McTiernan, Asst. Counsel, N. Y. State Dept. of Transportation, Albany, N. Y., for intervening plaintiff, State of New York.
Lloyd H. Baker, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. Eastern District of New York, of counsel), for defendant, the United States.
Theodore C. Knappen, Washington, D. C., Asst. Gen. Counsel, for defendant, Interstate Commerce Commission.
G. Clark Cummings, New York City, for defendant, Bush Terminal R.R.
Before FRIENDLY, Chief Circuit Judge, MISHLER, Chief District Judge, and WEINSTEIN, District Judge.
FRIENDLY, Chief Circuit Judge:
In this action against the United States, the Interstate Commerce Commission, Bush Terminal Railroad and certain of the latter's officers and directors, the City of New York, joined by several intervenors, asks us to annul an order of the Interstate Commerce Commission dated December 13, 1971, in F.D. No. 25896, which authorized abandonment of the entire line of Bush Terminal Railroad Company (the Railroad) in Kings County, New York, and Hudson County, New Jersey. The order, which was effective immediately, was entered after the Railroad on December 1, 1971, had unilaterally imposed an embargo on all outgoing freight and announced that on December 15, 1971, it would impose a similar embargo on all incoming freight, because of the allegedly unseaworthy condition of its marine equipment, and after users of the Railroad had begun an action to enjoin the embargo which they considered to be an unauthorized abandonment. The Railroad terminated operation on December 13 immediately on learning of the Commission's order.1
On December 17, the City began this action and sought a temporary restraining order, see 28 U.S.C. § 2284(3). Judge Weinstein denied this but set the City's motion for a temporary injunction for argument on December 22 before a three-judge court which he asked to have convened, 28 U.S.C. §§ 2321, 2325. At the argument, the Bush Terminal Users Association, Inc., United Transportation Union, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, and the Department of Transportation of the State of New York were allowed to intervene as plaintiffs. Issuance of
The Railroad, organized in 1903, is a wholly-owned subsidiary of Bush Universal, Inc., which had been known as Bush Terminal Company until July, 1968. The purpose of establishing the Railroad was to acquire franchise rights in city streets and extend to new buildings railroad services then being provided in Brooklyn, New York, by Bush Terminal. The line owned by the Railroad is only 1.8 miles long. This connects with some 13.56 miles of track in Brooklyn and car-float and towage facilities that are operated by the Railroad but are owned and had previously been operated by Bush Terminal, allegedly as agent for the Railroad and for trunk line carriers serving New York Harbor. In Bush Terminal R.R. Co. Operation, 257 I.C.C. 375 (1944), the Commission authorized the Railroad, pursuant to § 1(18) of the Interstate Commerce Act, to extend its railroad by acquiring through lease the trackage and other facilities owned by Bush Terminal. The lease took effect on January 1, 1945. Since then the Railroad, as a common carrier, has moved cars between industries in and near the Bush Terminal in Brooklyn across New York Harbor to and from various trunk line terminals in New Jersey. In December, 1968, Bush Terminal, having changed its name and become a conglomerate, controlled by Universal Consolidated Industries, Inc., a still more conglomerated conglomerate, conveyed all its real estate, including some of the land over which the Railroad operates, to a newly organized, wholly owned subsidiary, Bush Terminal Company, Inc. This new subsidiary assumed its parent's obligations under the lease to the Railroad. We will generally refer to Bush Universal, Inc. and Bush Terminal Company, Inc., simply as "the Terminal Company."
The Railroad, on October 23, 1969, filed an application under § 1(18) of the Interstate Commerce Act for permission to abandon the operation both of its owned and of its leased properties. Hearings were held in late June, 1970. The application was opposed by users of the service, governmental and quasi-governmental bodies and labor organizations representing the Railroad's employees. In their post-hearing briefs the City, the State, and the Users Association for the first time raised the issue that authorization of abandonment by the lessee, the Railroad, would not relieve the lessor, the Terminal Company, of its independent obligation to operate the leased properties, an obligation that would revive upon discontinuance of operations by the lessee. See Lehigh Valley R.R. Co. Proposed Abandonment of Operation, 202 I.C.C. 659, 663 (1935); Norfolk S.R.R. Co. Receivers Abandonment, 221 I.C.C. 258, 260 (1937); Livestock Terminal Service Co. Abandonment of Operation, 257 I.C.C. 1, 7 (1944); Hoboken R.R., Whse. & S.S. Connecting Co. Operation, 257 I.C.C. 739, 743-44 (1944). The Railroad responded, correctly enough as a matter of law, see Meyers v. Famous Realty, Inc., 271 F.2d 811, 814-815 (2 Cir. 1959), cert. denied, 362 U.S. 910, 80 S.Ct. 681, 4 L.Ed.2d 619 (1960), that this doctrine applies only when the lessor was a "carrier by railroad," see 49 U.S.C. § 1(18), when the lease was made; it claimed that the Terminal Company was not.
On June 3, 1971, the examiner rendered a report recommending authorization of the abandonment. He found that, despite various promotional efforts, the Railroad's traffic had seriously declined, due to motor vehicle competition, and the moving of industries away from the Brooklyn area served by it; that the Railroad "has sustained substantial losses for many years, and prospects for reversing the decline in traffic and for profitable operations are very slim;" and that the property owned and leased by the Railroad was in such poor condition that an expenditure by it of approximately $930,000 would be required for
Exceptions and a reply thereto by the Railroad were filed with the Commission in early August. The City's, the Unions' and the Users Association's exceptions requested oral argument. On November 3, the Users Association filed a petition for leave to file a petition to reopen the hearing to include further testimony concerning the willingness of users to pay a surcharge of $25 per car.
I.
If we were to view the matter...
To continue reading
Request your trial
-
Sierra Club v. Morton, No. 74-1389
...Public Service Co. v. FPC, 157 U.S.App.D.C. 272, 280 n.24, 483 F.2d 1275, 1282 n.24 (1973); City of New York v. United States, E.D.N.Y., 337 F.Supp. 150, 160 (1972) (three-judge court) (Friendly, 38 While we will allow the federal appellees, in the first instance, to make the decision wheth......
-
Cady v. Morton, No. 74--1984
...the agency." Environmental Defense Fund v. TVA, 468 F.2d 1164, 1183 (6th Cir. 1972), quoting with approval, City of New York v. U.S., 337 F.Supp. 150, 160 (E.D.N.Y.1972); Jones v. Lynn, 477 F.2d 885, 892 (1st Cir. 1973); cf. Calvert Cliffs' Coordinating Comm., Inc. v. Atomic Energy Comm'n, ......
-
City of Rochester v. Bond, No. 78-1352
...over all actions brought by or against the Postal Service. 39 U.S.C. § 409(a) (1976). Similarly, City of New York v. United States, 337 F.Supp. 150 (E.D.N.Y.1972), is wide of the mark. In that case the court reviewing allegations that an ICC order violated NEPA was a three-judge district co......
-
Romero-Barcelo v. Brown, ROMERO-BARCEL
...clearly err in its finding, the permit process "might reveal substantial environmental consequences," City of New York v. United States, 337 F.Supp. 150, 160 (E.D.N.Y.1972), quoted in Realty Income Trust v. Eckerd, 564 F.2d at 456, that would lead the Administrator to deny the application o......
-
City of New York v. United States Dept. of Transp., No. 81 Civ. 1778 (ADS).
...however, while the statutory language remains "opaque" as Judge Friendly found it some years ago, City of New York v. United States, 337 F.Supp. 150, 159 (E.D.N.Y.1972) (three-judge court), taken together with its limited but somewhat informative legislative history, the NEPA regulations ad......
-
I-291 Why? Association v. Burns, Civ. No. H-229.
...cannot excuse compliance with NEPA; primary responsibility under the Act rests with the agency." City of New York v. United States, 337 F.Supp. 150, 160 (E.D.N.Y. 1972) (three-judge III. SUBSTANTIVE AND PROCEDURAL REVIEW UNDER NEPA Before commenting and ruling on plaintiff's broad-ranging a......
-
Fund for Animals v. Mainella, No. CIV.A. 02-11855-PBS.
...excuse compliance with NEPA; primary responsibility under the Act rests with the agency.'") (quoting City of New York v. United States, 337 F.Supp. 150, 160 D. Federal Involvement Defendant-intervenors (but not the NPS) also argue that the state is primarily responsible for the hunting prog......
-
McDowell v. Schlesinger, No. 75 CV 234 W-4.
...less would be to subvert the very purpose of § 102 and encourage administrative laxity in the future. City of New York v. United States, 337 F.Supp. 150 (E.D. N. Y.1972); Hanly v. Mitchell, 460 F.2d 640 (2nd Cir. 1972); Jones v. Lynn, 477 F.2d 885 (1st Cir. 1973); Arizona P. S. C. v. Fed. P......
-
Administering the National Environmental Policy Act
...1974); MorningsideLenox Park Ass’n v. Volpe, 334 F. Supp. 132, 138-40, 1 ELR 20629 (N.D. Ga. 1971); City of New York v. United States, 337 F. Supp. 150, 160, 2 ELR 20275 (E.D.N.Y. 1972); Natural Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 833-34, 2 ELR 20029 (D.C. Cir. 1972); Environme......