City of Sheridan v. United States
| Decision Date | 13 August 1969 |
| Docket Number | Civ. No. 5316. |
| Citation | 303 F. Supp. 990 |
| Parties | CITY OF SHERIDAN, City of Clearmont, United Transportation Union, Sheridan Chamber of Commerce, Citizen's Voting League for Retention of Passenger Train Service of Alliance, Nebraska, and Railway Labor Executives' Association, Plaintiffs, Nebraska State Railway Commission, Edison Real Bird, Edmund Little Light, Joseph Ten Bear, Leo Plainfeather, Harvey Driftwood and Eloise Pease, Intervenor-Plaintiffs, v. UNITED STATES of America and Chicago, Burlington and Quincy Railroad Company, Defendants, Interstate Commerce Commission, Intervenor-Defendant. |
| Court | U.S. District Court — District of Wyoming |
Henry A. Burgess, Sheridan, Wyo., Robert R. Wellington, Crawford, Neb., C. C. Sheldon, Asst. Atty. Gen., Lincoln, Neb., William G. Mahoney, and Gordon P. MacDougall, Washington, D. C., for plaintiffs.
Clarence A. H. Meyer, Atty. Gen. for the State of Nebraska, and C. C. Sheldon, Asst. Atty. Gen. for Nebraska State Railway Commission, for intervenor-plaintiff.
Harold G. Stanton, Hardin, Mont., for the Crow Indians, intervenor-plaintiffs.
Richard W. McLaren, Asst. Atty. Gen., John H. D. Wigger, Dept. of Justice, and Robert N. Chaffin, U. S. Atty., for the United States.
R. T. Cubbage, R. M. Gleason, and Eldon Martin, Chicago, Ill., Paul B. Godfrey, Cheyenne, Wyo., W. L. Peck, J. C. Street, Denver, Colo., for Chicago, Burlington and Quincy R. Co.
Robert W. Ginnane and Barry Roberts, Washington, D. C., for the I. C. C.
Before HICKEY, Circuit Judge, and KERR and CHILSON, District Judges.
This is an action commenced by the plaintiffs pursuant to 28 U.S.C. §§ 2321-2325 seeking to enjoin, suspend, set aside and annul the decision and order of the Interstate Commerce Commission dated January 3, 1969, permitting the Chicago, Burlington and Quincy Railroad Company, hereinafter referred to as CB&Q, to discontinue trains Nos. 42 and 43 operating between Omaha, Nebraska, and Billings, Montana. On April 2, 1969, the Commission denied a petition for reconsideration, and on May 1, 1969, the petition for a finding of general transportation importance was denied.1 The Commission found that the operation of the two trains was not required by public convenience and necessity and that the continued operation thereof would unduly burden interstate commerce.
Subsequent to prior proceedings,2 this case was commenced with a notice and supporting statement of a CB&Q proposal filed with the Commission on August 6, 1968, pursuant to Section 13 a(1)3 of the Interstate Commerce Act.
By order of August 23, 1968, the Commission instituted an investigation of the proposed discontinuance and ordered the continued operation of the trains pending hearing and decision on its investigation. A Commission trial examiner held twelve days of extensive public hearings in Omaha, Lincoln, Grand Island, Brokin Bow and Alliance, Nebraska; Edgemont, South Dakota; Newcastle and Sheridan, Wyoming; and Billings, Montana. The hearings consumed almost 1000 pages of testimony and comprised 66 exhibits. After the close of the hearings, briefs were filed by certain protesting parties, and by the railroad. The Commission considered the record and the briefs, and on January 13, 1969,4 the Commission, Division 3, issued its report, finding that operation of the trains is not required by the public convenience and necessity and their continued operation would unduly burden interstate commerce. The order entered by the Commission was that the investigation be discontinued.
Later, on the same day, the plaintiffs commenced this action praying for, among other things, a temporary restraining order against the discontinuance of the trains until hearing was had and a determination made by a three-judge court. The temporary restraining order was issued by this court enjoining the railroad from discontinuing the trains until further order of the court. The CB&Q moved to dismiss the action for lack of jurisdiction and to dissolve the restraining order. The plaintiffs filed a motion for summary judgment. While these motions were pending, the plaintiffs herein filed with the Commission on February 12, 1969, a petition for reconsideration. On February 27, 1969, a hearing was held before this court on the pending motions. The United States and the Commission took the position that the Court does have jurisdiction to review the Commission's order, but that the matter should be held in abeyance until the Commission could rule on the petitions for reconsideration.5
On April 4, 1969, the Commission served its order denying the petition for reconsideration. The Commission found that the challenge to its jurisdiction based upon a claim of premature notice by the CB&Q of the proposed discontinuance, was without merit; that all of the matters set forth in the petition for rehearing had been considered by Division 3 of the Commission in the January 13, 1969, report; that the decision was based on adequate findings supported by the record; that there were no errors of procedure, fact, or law in the proceeding before the Commission; and that no showing had been made warranting reconsideration.
With the dismissal of the petition for reconsideration, the Commission's decision of January 13, 1969, became administratively final and ripe for review by the Court. On April 21, 1969, the plaintiffs filed a petition with the Commission for a finding that an issue of general transportation importance is involved in this case. This petition was denied on May 8, 1969. Upon dismissal of these petitions a hearing before a three-judge court was set for June 9, 1969. The Commission was allowed to intervene. Likewise, the Nebraska State Railway Commission and certain officers of the Crow Tribal Council of the Crow Tribe of Indians of the State of Montana were allowed to intervene as plaintiffs. The CB&Q raised a jurisdictional question in its brief and moved for dismissal of the action on the ground that the federal district court lacked jurisdiction to review the Commission's decision in this matter under Section 13a(1). The court holds that it has jurisdiction over the parties and the subject matter, denies the motion to dismiss, and sustains the decision of the Interstate Commerce Commission.
The jurisdictional question of the CB&Q is based on the argument that an Interstate Commerce Commission order to terminate an investigation under Section 13a(1) after the Commission has entered into a full investigation and completed the investigation, is not a reviewable order within the meaning of 28 U.S.C. § 1336. This argument has been advanced to other three-judge district courts where review had been sought after the termination of an investigation under Section 13a(1), and it has been rejected in three well reasoned and learned opinions. Vermont v. Boston and Maine Corp., 269 F.Supp. 80 (D.Vt.1967); City of Williamsport v. United States, 273 F.Supp. 899 (M.D. Pa.1967), affirmed, 392 U.S. 642, 88 S.Ct. 2286, 20 L.Ed.2d 1348 (1968) (per curiam); and most recently in State of New York v. United States, Erie, Lackawanna, et al. (N.D.N.Y.1969), 299 F. Supp. 989. We are in agreement with the reasoning of the Vermont, City of Williamsport, and the State of New York cases. We reject the contrary conclusions reached by the three-judge courts in New Hampshire v. Boston and Maine Corp., 251 F.Supp. 421 (D.N.H. 1965); Minnesota v. United States, 238 F.Supp. 107 (D.Minn.1966); and in City of Chicago v. United States, 294 F.Supp. 1103 (N.D.Ill.1969).6
Having decided that we have jurisdiction of this matter, we proceed to discuss the merits. Our function in this type of case is limited to determining whether there is substantial evidence on the record as a whole to support the Commission's findings and whether the proper legal standards were applied by the Commission to the facts as the Commission found them to be. See Illinois Central R. Co. v. Norfolk & Western Ry. Co., 385 U.S. 57, 87 S.Ct. 255, 17 L.Ed.2d 162 (1966); cf. Consolo v. Federal Maritime Commission, 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).
The plaintiffs' first argument is that the Commission's jurisdiction was not properly invoked because the railroad posted and served its notice prior to the expiration of the 1967 order.7 On August 24, 1967, the Commission ordered the CB&Q to continue operating the two trains between Alliance, Nebraska, and Billings, Montana, for the maximum one year period provided by Section 13a(1). On August 6, 1968, the railroad posted and served notice in accordance with the statute proposing to discontinue the trains between Omaha and Billings. The discontinuance was to take effect September 7, 1968. The plaintiffs argue that before the Commission's jurisdiction may be invoked under Section 13a(1), the trains must be subject to the jurisdiction of the various states through which they pass. They contend that the Commission's jurisdiction was not properly invoked on August 6, 1968, since on that date, the trains were not subject to state jurisdiction, but were subject to the Commission's jurisdiction by the terms of the order entered August 24, 1967. They argue that since the necessary pre-requisite state jurisdiction did not exist on August 6, 1968, for the filing of a new Section 13a(1) notice, the Commission did not possess jurisdiction to enter into its investigation of that notice on August 23, 1968, or to enter its orders of January 3 and April 2, 1969. Prior to the passage of Section 13a(1) a railroad seeking to discontinue a train crossing state lines was required to comply with the law of each individual state through which the trains passed and obtain approval from each state's regulatory agency. Section 13a(1) was enacted because Congress was dissatisfied with the performance of state agencies with regard to railroad discontinuance cases. A primary purpose of Congress in enacting Section 13a(1) was to permit railroads seeking to...
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Pennsylvania Public Utility Commission v. United States, 69-280 Civil.
...by the Supreme Court of the United States on January 12, 1970, 396 U.S. 925, 90 S.Ct. 265, 24 L.Ed.2d 224 of City of Sheridan v. United States, 303 F.Supp. 990, 994-95 (D.Wyo. 1969), supports that part of the July 11, 1969, decision (334 I.C.C. 642-43) holding that the filing of the notice ......
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JOHNSTON'S FUEL LINERS, INC. v. United States
...evidence on the record as a whole to support the findings of Review Board Number 3 and of Division 1. City of Sheridan v. United States, 303 F.Supp. 990 (D.Wyo.1969), affmd. 396 U.S. 281, 90 S.Ct. 545, 24 L.Ed.2d 462 (1969). In evaluating the substantiality of the evidence, we must also con......