Industrial Siting Council of State of Wyo. v. Chicago and North Western Transp. Co.

• Decision Date: 08 March 1983
• Docket Number: No. 5740,5740
• Citation: 660 P.2d 776
• Parties: INDUSTRIAL SITING COUNCIL OF the STATE OF WYOMING, Appellant (Respondent), v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY and Western Railroad Properties, Inc., Appellees (Petitioners).
• Court: Wyoming Supreme Court

Page 776

660 P.2d 776

INDUSTRIAL SITING COUNCIL OF the STATE OF WYOMING, Appellant (Respondent), v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY and Western Railroad Properties, Inc., Appellees (Petitioners).

No. 5740.

Supreme Court of Wyoming.

March 8, 1983.

Peter J. Mulvaney, Deputy Atty. Gen., Walter Perry, III, Senior Asst. Atty. Gen., and John D. Erdmann, Asst. Atty. Gen., signed the briefs, and Erdmann appeared in oral argument for appellant.

Craig Newman and Morris R. Massey of Brown, Drew, Apostolos, Massey & Sullivan, Casper, and Christopher A. Mills, Chicago, Ill., an atty. in good standing, Bar of Ill., signed the brief and Mills appeared in oral argument for appellees.

Before ROONEY, C.J., ^* RAPER, THOMAS and BROWN, JJ., and FORRISTER, District Judge.

ROONEY, Chief Justice.

Appellees-petitioners, Chicago and North Western Transportation Company and its wholly owned subsidiary, Western Railroad Properties, Inc. (hereinafter C & NW), filed an application for a certificate of insufficient jurisdiction with appellant-respondent, the Industrial Siting Council of the State of Wyoming (hereinafter ISC), to exempt C & NW's planned railroad construction project from the permit requirements of the Industrial Development Information and Siting Act, § 35-12-101 et seq., W.S.1977, Cum.Supp.1982. After a public hearing, the ISC denied C & NW's application and C & NW appealed to the district court. The district court reversed, holding that the Interstate Commerce Act, specifically 49 U.S.C. § 10901, pre-empted the jurisdiction of the ISC with regard to C & NW's planned railroad construction project.

On appeal from the decision of the district court, the ISC raises the following issues:

"I. DOES THE WYOMING INDUSTRIAL SITING ACT EMPOWER THE SITING COUNCIL TO REGULATE IN AREAS OUTSIDE THE FIELD OF CONCERN OF THE I.C.C. [Interstate Commerce Commission]?

"II. DOES THE INTERSTATE COMMERCE ACT, IN PARTICULAR 49 U.S.C. § 10901, PREEMPT THE INDUSTRIAL SITING ACT?

"III. DOES THE EXERCISE OF CONCURRENT JURISDICTION OVER MATTERS OF STATE OR LOCAL CONCERN BY THE SITING COUNCIL CONFLICT WITH THE ORDERS OF THE I.C.C.?"

In addition, we must address the question of whether or not the district court had jurisdiction to entertain the appeal.

We find that the district court had jurisdiction and we affirm the holding of the district court.

FACTS

Pursuant to § 3(a) through (f) of the Industrial Development Information and Siting Rules and Regulations (1981), C & NW filed an application for a certificate of insufficient jurisdiction with the ISC for its planned construction and operation of a railroad line to transport low-sulfur coal from the eastern Powder River Basin to a connecting point with the Union Pacific railroad line at Joyce, Nebraska. The estimated cost of the Wyoming construction is $112,804,874, in mid-1981 dollars. The plan includes:

(1) The construction of a wye at Shawnee Junction, near Orin Junction, to connect the C & NW and Burlington Northern railroad line running north to the Powder River Basin with C & NW's present east-west line;

(2) The reconstruction of C & NW's east-west line which parallels U.S. Highway 20 from Shawnee Junction east to Crandall, near Van Tassell;

(3) The construction of a new connector line from Crandall south in Wyoming crossing into Nebraska east of Torrington and then to Joyce, Nebraska; and

(4) The construction of a microwave communication system and support facilities for the project.

In 1976 the Interstate Commerce Commission (hereinafter I.C.C.) issued a certificate of public convenience and necessity to Burlington Northern, Inc. and C & NW authorizing the construction of the joint line between Shawnee Junction and the Powder River Basin coal fields. In connection with its issuance of a certificate of public convenience and necessity, the I.C.C. caused an environmental impact statement to be prepared. As a result of the statement, the I.C.C. imposed mitigating conditions on the issuance of the certificate. See Burlington Northern, Inc. and Chicago and North Western Transportation Company--Construction and Operation--Between Gillette and Douglas, in Campbell and Converse Counties, Wyoming, 348 I.C.C. 388 (1976). The construction of the wye at Shawnee Junction would complete the construction authorized by the I.C.C. in 1976.

In 1978 C & NW filed an application with the Federal Railroad Administration to finance its interest in the joint line and to upgrade 519 miles of its existing line east from Shawnee Junction. ¹ This proposal did not satisfy the Federal Railroad Administration and C & NW was requested to explore alternatives. C & NW's planned railroad line construction project resulted. In connection with C & NW's application for financial assistance from the Federal Railroad Administration, another environmental impact statement covering the planned railroad line construction was prepared. Chicago and North Western Transportation Company Construction and Operation of a Line of Railroad in Niobrara and Goshen Counties, Wyoming and in Sioux and Scotts Bluff Counties, Nebraska, 363 I.C.C. 906 (1981), aff'd sub nom. Mobil Oil Corporation v. Interstate Commerce Commission, 685 F.2d 624 (1982).

Over a period of time, C & NW filed a complex series of applications with the I.C.C. concerning the joint line authorized in 1976, the construction of the connector line, and the transactions necessary to obtain financing for the project. The environmental impact statement prepared by the Federal Railroad Administration covering the planned railroad line construction was used by the I.C.C. in considering C & NW's applications. The I.C.C. approved, with conditions, the joint line agreement between C & NW and Burlington Northern, Inc. and approved the construction of the connector line subject to certain mitigating measures covering the construction of both the connector line and C & NW's existing line between Shawnee Junction and Crandall, which measures resulted from consideration of the environmental impact statement. Chicago and North Western Transportation Company Construction and Operation, supra.

The ISC recognizes that the I.C.C. has authorized the construction of the planned project but contends that it is not precluded from imposing additional requirements on C & NW's planned construction. C & NW contends that the ISC authority with regard to the planned construction has been pre-empted by the Interstate Commerce Act and/or the I.C.C. approval of the planned construction project. However, preliminary to reaching these contentions, we must determine whether the district court had jurisdiction to entertain C & NW's appeal from the denial of the certificate of insufficient jurisdiction by the ISC.

JURISDICTION

" * * * The first and fundamental question on every appeal is that of jurisdiction; this question cannot be waived; it is open for consideration by the reviewing court whenever it is raised by any party, or it may be raised by the court of its own motion. [Citation.]" Gardner v. Walker, Wyo., 373 P.2d 598, 599 (1962).

And see Matter of Various Water Rights in Lake DeSmet, Wyo., 623 P.2d 764, 767 (1981); Mountain West Farm Bureau Mutual Insurance Company v. Hallmark Insurance Company, Wyo., 561 P.2d 706, 708-709 (1977).

Because of the separate procedure established by the ISC to determine whether or not it has jurisdiction over a given construction project, we must determine whether or not there is statutory authority to review the ISC decision and, if there is statutory authority, whether or not the ISC decision is ripe for judicial review.

By rule the ISC has created a procedure apart from the permit process by which its jurisdiction over the construction of an industrial facility ² may be challenged. Under it, the ISC jurisdiction may be challenged by filing an application for a certificate of insufficient jurisdiction pursuant to § 3(a), Ch. 1 of the Industrial Development Information and Siting Rules and Regulations (1981). ³ Rather than contest the ISC jurisdiction during the permit process established by the Industrial Development Information and Siting Act, supra, C & NW availed itself of this separate procedure in addition to filing an application for a permit, and it appealed the ISC denial of its application for a certificate of insufficient jurisdiction to the district court.

The right to judicial review of an administrative decision is entirely statutory. Said another way, judicial review is not available unless made so by statute. Where judicial review is available, the legislature must clearly express its intent in order to preclude judicial review. United States Steel Corporation v. Wyoming Environmental Quality Council, Wyo., 575 P.2d 749, 750 (1978).

The Industrial Development Information and Siting Act, supra, provides for the review of the ISC final decision on a permit application and of a decision issued after a hearing on an application for a permit, but is silent concerning the review of a decision on an application for a certificate of insufficient jurisdiction. Section 35-12-115, W.S.1977. Therefore, the only other statute possibly providing for judicial review of such decision is § 9-4-114(a), W.S.1977, ⁴ which provides in pertinent part:

"(a) Subject to the requirement that administrative remedies be exhausted and in the absence of any statutory or common-law provision precluding or limiting judicial review, any person aggrieved or adversely affected in fact by a final decision of an agency in a contested case, or by other agency action or inaction, or any person affected in fact by a rule adopted by an agency, is entitled to judicial review in the district court * * *." (Emphasis added.)

And see Rule 12.01, W.R.A.P.

This appeal is not from an agency decision rendered in a contested case, nor is it from the application of an agency rule. Therefore, in order to be appealable, pursuant to § 9-4-114(a), supra, it must...