MidAmerican Energy Co. v. Surface Transp. Bd., s. 97-1081
| Decision Date | 10 February 1999 |
| Docket Number | 97-2204,97-1583,Nos. 97-1081,97-2206,97-2303,97-1332,97-1331,97-2462 and 97-2464,97-1333,97-1335,97-1284,97-2328,97-2260,s. 97-1081 |
| Citation | 169 F.3d 1099 |
| Parties | MIDAMERICAN ENERGY COMPANY, Petitioner, Western Coal Traffic League, Intervenor on Appeal, v. SURFACE TRANSPORTATION BOARD; United States of America, Respondents, Norfolk Southern Railway Company; Union Pacific Corporation; Southern Pacific Transportation Company; Consolidated Rail Corporation; Association of American Railroads, Intervenors on Appeal. Central Power & Light Company, Petitioner, Western Coal Traffic League, Intervenor on Appeal, v. Surface Transportation Board; United States of America, Respondents, Norfolk Southern Railway Company; Union Pacific Corporation; Southern Pacific Transportation Company; Consolidated Rail Corporation; Association of American Railroads, Intervenors on Appeal. National Industrial Transportation League, Petitioner, Western Coal Traffic League, Intervenor on Appeal, v. Surface Transportation Board; United States of America, Respondents, Pennsylvania Power & Light Company; Norfolk Southern Railway Company; Union Pacific Corporation; Southern Pacific Transportation Company; Consolidated Rail Corporation; Association of American Railroads, Intervenors on Appeal. Union Pacific Railroad Company; Southern Pacific Transportation Company, Petitioners, v. Surface Transportation Board; United States of America, Respondents, Pennsylvania Power & Light Company; Norfolk Southern Railway Company; MidAmerican Energy Company; National Industrial Transportation League; Union Pacific Corporation; Consolidated Rail Corporation; Association of American Railroads; Western Coal Traffic League, Intervenors on Appeal. Consolidated Rail Corporation, Petitioner, v. Surface Transportation Board; United States of America, Respondents, Pennsylvania Power & Light Company; Norfolk Southern Railway Company; National Industrial Transportation League; Union Pacific Corporation; Southern Pacific Transportation Company; Association of American Railroads; Western Coal Traffic League, Intervenors on Appeal. Association of American Railroads, Petitioner, v. Surface |
| Court | U.S. Court of Appeals — Eighth Circuit |
John H. LeSeur, Washington, D.C., argued, for Western Coal and intervenor shippers.
Nicholas DiMichael, Washington, D.C., argued, for National Ind. Transportation League and MidAmerican Energy.
William L. Slover, Washington, D.C., argued, for Central Power and Light.
Arvid E. Roach II, Washington D.C., argued, for the Railroads
Theodore K. Kalick of the STB, Washington, D.C., argued, for appellee.
Before WOLLMAN and HANSEN, Circuit Judges, and STEVENS, 1 District Judge.
This is a consolidated action involving MidAmerican Energy Company (MidAmerican), Central Power & Light Company (CP & L), and Pennsylvania Power & Light Company (PP & L) (collectively the utilities). They petition for review of two orders of the Surface Transportation Board (the Board) dismissing their complaints against rail carriers. The carriers cross-appeal from the portion of the Board's decisions regarding reasonableness review of contractual shipping rates, arguing that the issue was not ripe for adjudication. We affirm the dismissal of the utilities' complaints. We dismiss the cross-appeal for lack of jurisdiction.
MidAmerican ships coal approximately 750 miles from the Powder River Basin in Wyoming to its generating facility near Sergeant Bluff, Iowa. At the time it filed its complaint, MidAmerican was shipping the coal from origin to destination under contract with the Union Pacific Railroad (UP). This contract was scheduled to expire at the end of 1997. Anticipating the contract's expiration, MidAmerican began to compare UP's rates with those of other carriers to obtain the most favorable shipping rates. The only other carrier offering rail service originating in the Powder River Basin is the Burlington Northern Railroad (BN).
BN does not service the final 90 miles of the route, a stretch from Council Bluffs, Iowa, to the generating station. Such a rail segment is commonly termed a "bottleneck," because it is serviced by only one carrier. Thus, MidAmerican could not directly compare the rates of BN and UP, as UP is the only carrier capable of shipping all the way to the generating station. To obtain a competitive rate for the 660-mile stretch from Wyoming to Council Bluffs, MidAmerican requested that UP provide a rate for its service over the bottleneck.
UP refused to provide the rate. Instead, it provided a rate for the entire route from the Powder River Basin to the generating station. This precluded MidAmerican from using BN as a carrier from Wyoming to Council Bluffs, essentially extending the bottleneck over the entire 750-mile route. Consequently, MidAmerican brought an action before the Board requesting a rate prescription over the 90-mile bottleneck segment. Although MidAmerican could not challenge a local "unit-train" rate for the bottleneck service, it asked the Board to prescribe a reasonable rate for the bottleneck if it found the published "class" rate for the 90-mile stretch unreasonable. 2
CP & L transports coal from the Powder River Basin in Wyoming to its Coleto Creek generating station in Texas. Although both BN and UP offer rail service originating at the coal mines, the Southern Pacific Railroad (SP) is the only carrier from an interchange point in Victoria, Texas, to Coleto Creek. 3 UP's lines run from Wyoming to Victoria; BN's lines run from Wyoming to Fort Worth, Texas, where SP's service to Victoria and Coleto Creek begins. Therefore, UP and BN directly compete on the portion of the route from Wyoming to Forth Worth. SP and UP directly compete on the portion from Fort Worth to Victoria. After both BN and UP indicated a willingness to offer competitive rates for their service, CP & L requested that SP provide it a local unit-train rate for the segment from Fort Worth to Coleto Creek, which represented SP's longest haul, or for the bottleneck from Victoria to Coleto Creek.
SP refused to provide either rate, offering instead to provide a joint rate with UP. CP & L chose to obtain a unit-train rate from UP for service from Wyoming to Victoria, and to ship from Victoria to Coleto Creek under SP's class rate. 4 It could thus take advantage of neither the competition between UP and BN from Wyoming to Fort Worth, nor the competition between SP and UP from Fort Worth to Victoria. Subsequently, CP & L brought a complaint before the Board challenging the class rate as unreasonable and requesting a rate prescription for the bottleneck segment. 5
PP & L can transport its coal from either of two mines in central Appalachia to its four generating facilities on the eastern seaboard. One of the mines is serviced by the Norfolk Southern Railroad (NS), the other is serviced by...
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