Delaware River Port Authority v. Tiemann, Civ. A. No. 75-1219.

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Citation403 F. Supp. 1117
Docket NumberCiv. A. No. 75-1219.
PartiesDELAWARE RIVER PORT AUTHORITY, Plaintiff, v. Norbert T. TIEMANN, as Administrator, Federal Highway Administration and William T. Coleman, Jr., as Secretary, United States Department of Transportation, Defendants, and City of Philadelphia, Defendant-Intervenor.
Decision Date12 November 1975

403 F. Supp. 1117

DELAWARE RIVER PORT AUTHORITY, Plaintiff,
v.
Norbert T. TIEMANN, as Administrator, Federal Highway Administration and William T. Coleman, Jr., as Secretary, United States Department of Transportation, Defendants,
and
City of Philadelphia, Defendant-Intervenor.

Civ. A. No. 75-1219.

United States District Court, D. New Jersey.

November 12, 1975.


403 F. Supp. 1118
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403 F. Supp. 1119
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403 F. Supp. 1120
Alexander Feinberg, Evoy & Feinberg, Cherry Hill, N. J., Duane, Morris & Heckscher, Philadelphia, Pa., of counsel, by Roland Morris, Philadelphia, Pa., for plaintiff Delaware River Port Authority

Jonathan L. Goldstein, U. S. Atty., by Frederick W. Klepp, Asst. U. S. Atty., for defendants Norbert T. Tiemann and William T. Coleman, Jr.; Dowell H. Anders, Deputy Chief Counsel, Federal Highway Administration, U. S. Dept. of Transp., of counsel.

Sheldon L. Albert, Sol., City of Philadelphia, by Herbert Smolen, Deputy City Sol., for Intervenor, City of Philadelphia.

OPINION

BROTMAN, District Judge.

This case involves the review of an order setting tolls on bridges owned and operated by the Delaware River Port Authority (hereinafter "Authority" or "DRPA")1 by the Federal Highway Administrator (hereinafter "Administrator").

The Administrator's authority to prescribe tolls derives from Section 503 of the General Bridge Act of 1946, 33 U.S. C. § 526. As originally enacted by Congress the power to set "reasonable and just" tolls was delegated to the Secretary of the Army. Act of August 2, 1946, ch. 753, 60 Stat. 847-48. This power was transferred to the Secretary of Transportation pursuant to the Department of Transportation Act. 49 U. S.C. § 1655(g)(4)(B). The Secretary of Transportation delegated this power to the Federal Highway Administrator. 49 C.F.R. § 1.48(i)(2).

Pursuant to his statutory authority, the Administrator, on May 19, 1975, prescribed a new toll schedule, the essential elements of which are: a reduction in the basic passenger car and truck (up to 7,000 pounds gross weight) cash toll per crossing from the presently existing rate of 60 cents to 55 cents; the retention of the commuter rate 30-day decal at $12.00,

403 F. Supp. 1121
but a reduction in the cash toll per crossing from 10 cents to 5 cents; a reduction in the carpool commuter rate from $10.00 for 40 tickets (25 cents per crossing) to $4.00 for the book of 40 tickets (10 cents per crossing); and a reduction on the bus rate of $1.00 to 80 cents for two-axle buses and $1.50 to $1.20 for three-axle buses. Opinion and Order of the Federal Highway Administrator, May 19, 1975 (hereinafter "Administrator's Opinion"), at 17, Appendix A. This schedule was to have taken effect on August 1, 1975, but the court ordered a stay of the imposition of the schedule, pending litigation on the merits.2

The proceedings below were conducted by the Administrator pursuant to §§ 5-9 of the Administrative Procedure Act, 5 U.S.C. §§ 554-558 (originally enacted as Act of June 11, 1946, ch. 324, 60 Stat. 237, 239-43), and the Bridge Toll Procedural Rules, 49 C.F.R. §§ 310.1-310.14.3 Jurisdiction of the court is founded upon 28 U.S.C. § 13314 and § 1337.5

This court must, within the proper scope of its review, consider the statutory requirement of "reasonable and just" tolls, 33 U.S.C. § 526, the relationship of this requirement to the bond covenant between the Authority and its bondholders, due process claims asserted by the DRPA and the possible application of the National Environmental Policy Act (NEPA). Ultimately, the court must decide whether the Administrator's Order and Opinion is in accord with the relevant statutory criteria, the product of a reasoned decision-making process, and supported by "substantial evidence." Implicated in the court's review are, perforce, issues of profound public importance, including the continued ability of the DRPA to operate its public facilities as well as to meet existing obligations to its bondholders, the conservation of fuel, and the reasonableness and justness of the tolls as they affect the bridge-using public.

I. PROCEDURAL HISTORY

The current proceeding began when the DRPA instituted a toll increase, effective April 1, 1972.6 This increase was effected "for the stated purpose of attaining additional revenue to complete the financing of a capital construction program and to operate and maintain those facilities." Administrator's Opinion, at 3.

Complaints were heard from various parties. On August 10, 1972 the Federal Highway Administrator issued a Notice of Public Hearing.7 The Administrator directed that a formal hearing be held in Philadelphia to permit interested parties to submit evidence on the reasonableness and justness of the Authority's tolls.

A prehearing conference was held on September 9, 1972, pursuant to 49 C.F. R. § 310.8(b). Hearings were held from

403 F. Supp. 1122
September 28 through October 7, 1972. On December 29, 1972, the Administrative Law Judge, Honorable Louis G. LaVecchia, issued a Recommended Decision, pursuant to 49 C.F.R. § 310.12(a), finding that the present toll schedule was not reasonable and just, and recommending that the pre-April 1972 toll schedule be reinstated. The Administrator issued a Tentative Opinion and Order on June 1, 1973 which accepted the Recommended Decision.8 On November 5, 1973 the Administrator issued an Opinion, finding that the Authority's toll schedule was not reasonable and just, and ordering a new schedule effective January 1, 1974, providing for a fifty (50) cent cash toll and a thirty-five (35) cent commuter toll. On November 21, 1973 the DRPA filed a Petition for Reconsideration which was denied by the Administrator on December 3, 1973

At this point the focus of the proceedings shifted to the federal courts. The Authority filed a complaint for declaratory judgment and a permanent injunction against the enforcement of the Administrator's Order of November 5, 1973 in the United States District Court for the Eastern District of Pennsylvania on December 5, 1973. A temporary stay pending litigation and final relief was also sought. (This action was dismissed by order "without prejudice to the rights of either party to bring further action of the nature comprehended under the above caption or of any other nature." Civil Action No. 73-2749, Order of September 27, 1974.)

On December 11, 1973 representatives of the Authority met in Washington, D. C. with the Federal Highway Administrator to discuss the effect of the impending energy crisis on the DRPA. In light of the gasoline shortage and the energy crisis, the adoption of a new schedule of tolls for the Authority was considered.

As a result thereof, the Administrator issued a Decision and Order on December 21, 1973 permitting the DRPA to put its new proposed schedule into effect "at least on an interim basis." This interim toll schedule is the one presently in operation. In his decision, the Administrator stated quite explicitly that "the question whether the revenues produced by the new schedule will be excessive remains open." The hearings were ordered reopened so that evidence bearing on the reasonableness and justness of the toll schedule, in light of the then-current situation, could be adduced.

Hearings were held in Philadelphia on April 23, 24, and 25, 1974 before the Administrative Law Judge, Honorable Edward V. Alfieri. The Authority presented evidence in support of the interim toll schedule. The City of Philadelphia, Automobile Club of Southern New Jersey, Pennsylvania Motor Truck Association, Keystone Automobile Club, Motorists for Lower Tolls (a group of New Jersey commuters), Transport of New Jersey, and the United States Environmental Protection Agency all appeared in opposition to the toll schedule. The Federal Highway Administration's Office of Chief Counsel appeared as public counsel representing the public interest.

The Administrative Law Judge issued a Recommended Decision on October 16, 1974. He found that the present tolls were not reasonable and just and recommended that the toll schedule set forth in the Administrator's Order of November 5, 1973 be instituted.

Subsequent thereto, on February 10, 1975, the Administrator ordered the Authority to submit additional documents relating to the Authority's refunding program undertaken in June 1974, after the April 1974 hearing had concluded. (Exhibits 136-139). Following the submission of these documents to all record parties for comment, the Administrator

403 F. Supp. 1123
reopened the record to include Exhibits 136-139 in evidence.9

On May 19, 1975 the Administrator issued his Opinion and Order which is now before this court on review. The Administrator found that the interim toll schedule set forth in the Order of December 21, 1973 was not reasonable and just, and, as noted, set forth in Appendix A a new schedule, to take effect August 1, 1975.

The Authority filed a petition for reconsideration on June 4, 1975 and request for a stay, which was denied by the Administrator on July 10, 1975. The Administrator on July 10, 1975 also supplemented his Opinion of May 19, 1975. Administrator's Order, July 10, 1975 (hereinafter "Administrator's Supplemental Opinion").

Shortly thereafter, on July 14, 1975 the DRPA filed a complaint seeking declaratory judgment, a temporary stay pending litigation and final relief against Norbert T. Tiemann, Federal Highway Administrator, and William T. Coleman, Jr., Secretary, United States Department of Transportation. Leave to intervene was granted to the City of Philadelphia, which had participated in the proceedings below. After considering the briefs and testimony in support of the stay, this court on July 23, 1975 stayed the effective date of the Administrator's Order.

The matter is now before the court for final determination. Cross motions for summary judgment have been filed pursuant to Fed.R.Civ.P. 56.

II. THE STATUTORY...

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6 practice notes
  • Hiatt Grain & Feed, Inc. v. Bergland, No. 77-4161.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • January 18, 1978
    ...F.2d at 1038 See also Gifford-Hill Company, Inc. v. F. T. C., 523 F.2d 730, 732 (8th Cir. 1975); Delaware River Port Auth. v. Tiemann, 403 F.Supp. 1117, 1144 (D.N.J.1975), vacated on other grounds, 531 F.2d 699 (3d Cir. 1976); Zlotnick v. Redevelopment Land Agency, 26 L.R. 20235 (D.D.C.1972......
  • Gerosa Inc. v. Dole, No. 83 Civ. 1077 (MP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 5, 1983
    ...would be allowed to thwart governmental activity under the guise of environmental interest"); Delaware River Port Authority v. Tiemann, 403 F.Supp. 1117, 1144 (D.N.J. 1975), vacated on other grounds, 531 F.2d 699 (3d Cir.1976), (economic injury "does not fall within the zone of interests wh......
  • Automobile Club of New York, Inc. v. Cox, No. 29
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 12, 1979
    ...review, we deem it desirable to begin by doing so. In disagreement with the district court in Delaware River Port Authority v. Tiemann, 403 F.Supp. 1117, 1126-27 (D.N.J.1975), vacated and remanded,531 F.2d 699 (3 Cir. 1976), on remand 421 F.Supp. 142 (D.N.J.1976), we think the proper standa......
  • Automobile Club of New York, Inc. v. Cox, No. 77 Civ. 5493(MP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 2, 1978
    ...criterion of a reasonable and just toll and permitted pooling of the revenues for the support of the overall system. DRPA v. Tiemann, 403 F.Supp. 1117 (D.N.J.1975) vacated and remanded, 531 F.2d 699 (3d Cir. 1976), on remand, 421 F.Supp. 142 Accordingly, the plaintiffs have failed to raise ......
  • Request a trial to view additional results
6 cases
  • Hiatt Grain & Feed, Inc. v. Bergland, No. 77-4161.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • January 18, 1978
    ...F.2d at 1038 See also Gifford-Hill Company, Inc. v. F. T. C., 523 F.2d 730, 732 (8th Cir. 1975); Delaware River Port Auth. v. Tiemann, 403 F.Supp. 1117, 1144 (D.N.J.1975), vacated on other grounds, 531 F.2d 699 (3d Cir. 1976); Zlotnick v. Redevelopment Land Agency, 26 L.R. 20235 (D.D.C.1972......
  • Gerosa Inc. v. Dole, No. 83 Civ. 1077 (MP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 5, 1983
    ...would be allowed to thwart governmental activity under the guise of environmental interest"); Delaware River Port Authority v. Tiemann, 403 F.Supp. 1117, 1144 (D.N.J. 1975), vacated on other grounds, 531 F.2d 699 (3d Cir.1976), (economic injury "does not fall within the zone of interests wh......
  • Automobile Club of New York, Inc. v. Cox, No. 29
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 12, 1979
    ...review, we deem it desirable to begin by doing so. In disagreement with the district court in Delaware River Port Authority v. Tiemann, 403 F.Supp. 1117, 1126-27 (D.N.J.1975), vacated and remanded,531 F.2d 699 (3 Cir. 1976), on remand 421 F.Supp. 142 (D.N.J.1976), we think the proper standa......
  • Automobile Club of New York, Inc. v. Cox, No. 77 Civ. 5493(MP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 2, 1978
    ...criterion of a reasonable and just toll and permitted pooling of the revenues for the support of the overall system. DRPA v. Tiemann, 403 F.Supp. 1117 (D.N.J.1975) vacated and remanded, 531 F.2d 699 (3d Cir. 1976), on remand, 421 F.Supp. 142 Accordingly, the plaintiffs have failed to raise ......
  • Request a trial to view additional results

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