Mobil Oil Corp. v. I. C. C., Nos. 81-2037

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore TAMM, MacKINNON and ROBB; MacKINNON
Citation685 F.2d 624
Parties, 13 Envtl. L. Rep. 20,223 MOBIL OIL CORPORATION, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Chicago and North Western Transportation Company, et al., State of Texas, Western Fuels Association, Inc., Burlington Northern Railroad Company, Union Pacific Railroad Company, Sunoco Energy Development Company, Intervenors. WYOBRASKA LANDOWNERS ASSOCIATION, et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Union Pacific Railroad Company, Chicago and North Western Transportation Co., State of Texas, Sunoco Energy Development Company, Intervenors.
Decision Date22 July 1982
Docket Number81-2038,Nos. 81-2037

Page 624

685 F.2d 624
222 U.S.App.D.C. 174, 13 Envtl. L. Rep. 20,223
MOBIL OIL CORPORATION, Petitioner,
v.
INTERSTATE COMMERCE COMMISSION and United States of America,
Respondents,
Chicago and North Western Transportation Company, et al.,
State of Texas, Western Fuels Association, Inc., Burlington
Northern Railroad Company, Union Pacific Railroad Company,
Sunoco Energy Development Company, Intervenors.
WYOBRASKA LANDOWNERS ASSOCIATION, et al., Petitioners,
v.
INTERSTATE COMMERCE COMMISSION and United States of America,
Respondents,
Union Pacific Railroad Company, Chicago and North Western
Transportation Co., State of Texas, Sunoco Energy
Development Company, Intervenors.
Nos. 81-2037, 81-2038.
United States Court of Appeals,
District of Columbia Circuit.
Argued Feb. 24, 1982.
Decided July 22, 1982.

Page 625

Petition for Review of an Order of the Interstate Commerce commission.

Bruce J. Terris, Washington, D. C., with whom Nathalie V. Black, Washington, D. C., was on the brief, for Wyobraska Landowners Ass'n, et al., petitioners in No. 81-2038.

David Sutherland, Washington, D. C., with whom Everett Hutchinson and Richard G. Lepley, Washington, D. C., were on the brief, for Mobil Oil Corp., petitioner in No. 81-2037.

John J. McCarthy, Jr., Atty., I. C. C., Washington, D. C., with whom Robert S. Burk, Acting General Counsel, Kenneth P. Kolson, John J. Powers, III and Barry Grossman, Attys., Dept. of Justice, Washington, D. C., were on the brief, for respondents. Ellen K. Schall, Atty., I. C. C., Washington, D. C., also entered an appearance for respondent I. C. C.

Fritz R. Kahn, Washington, D. C., with whom Thomas E. Acey, Jr., John Osborn, Washington, D. C., and Christopher A. Mills, Chicago, Ill., were on the brief, for Chicago and North Western Transp. Co., et al., intervenors in Nos. 81-2037 and 81-2038.

Mark White, Atty. Gen., State of Texas, Austin, Tex., for State of Texas, intervenor in Nos. 81-2037 and 81-2038.

Dennis G. Lyons and Richard S. Ewing, Washington, D. C., were on the briefs, for Sunoco Energy Development Co., intervenor in Nos. 81-2037 and 81-2038.

Robert B. Batchelder, Omaha, Neb., was on the brief for Union Pacific R. R. Co., intervenor in Nos. 81-2037 and 81-2038.

Curtis H. Berg, St. Paul, Minn., Charles H. White, Jr. and Steven A. Lauer, Washington, D. C., were on the brief, for Burlington Northern R. R. Co., intervenor in No. 81-2037.

Edward Weinberg and Charles F. Holum, Washington, D. C., were on the brief, for Western Fuels Ass'n, Inc., intervenor in No. 81-2037.

Before TAMM, MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge MacKINNON.

Page 626

MacKINNON, Circuit Judge:

Two railroads, the Burlington Northern, Inc. (Burlington) and the Chicago and North Western Transportation Company (North Western), were authorized jointly in a 1976 decision (1976 Decision) of the Interstate Commerce Commission (the Commission) to construct and operate a "joint line" of track from the southern terminus of Burlington's track at Coal Creek Junction, Wyoming, south of Gillette, to a point about 100 miles further south to connect with the North Western's existing east-west line at Shawnee, Wyoming and the Burlington line in the same vicinity. 1 The purpose was to enable both railroads to transport coal from recently developed mines in the fabulous coal-producing regions of the Powder River Basin (the Basin) in Wyoming.

The North Western originally intended to transport such coal over its east-west line from Shawnee. It subsequently determined, however, that its track, roadbed and bridges were incapable of handling the anticipated coal traffic which would be much heavier and greater in volume than existing traffic. North Western thus proposed an additional plan to rehabilitate its line from Shawnee to a point about 50 miles east at Van Tassell, Wyoming, and from there to construct a new "connector line" 56 miles south to connect with the line of the Union Pacific Railroad Company (Union Pacific) at Joyce Station, Nebraska. This would permit the North Western to carry coal for over 100 miles via the joint line and an additional 100 miles eastward and south via Van Tassell to the junction with the Union Pacific at Joyce Station.

In a decision in 1981 (1981 Decision) the Commission (1) approved North Western's application to construct the "connector line," (2) refused to reopen the 1976 Decision, and (3) approved a "Joint Line Agreement" between the Burlington and North Western to govern operations of the joint line. 2

These two decisions by the Commission have led to two petitions which are here consolidated. First, Mobil Oil Corporation, the petitioner in No. 81-2037, and intervenor Western Fuels Association, Inc. (jointly referred to hereinafter as "Mobil"), primarily challenge the Commission's refusal to reopen the 1976 Decision. Mobil owns and is developing a coal mine located beyond the northern terminus of the joint line which means that its mine is presently served by a single railway, Burlington. Mobil urges that North Western be given trackage rights over Burlington's existing line north of Coal Creek Junction to provide competitive rail service above the northern terminus of the joint line.

The petitioners in No. 81-2038 are the Wyobraska Landowners Association and Finley Company (jointly referred to hereinafter as "Wyobraska"), landowners whose land and ranching operations will be affected by the construction of the connector line that the Commission has approved. The landowners have raised a number of procedural and environmental arguments in an effort to thwart the construction of the proposed connector line.

We disagree with the arguments advanced by the petitioners in both proceedings. We hold that the Commission's refusal to reopen its earlier proceedings on the joint line did not constitute an abuse of discretion. We further hold that there is substantial evidence in the record to support the Commission's approval of the construction of the connector line and of the Joint Line Agreement.

Page 627

I. Background

Burlington in October 1972 filed an application with the Commission, seeking authority to construct a 126-mile line to connect its two existing east-west lines in Wyoming, one of which is located in the northern part of the Powder River Basin and the other to the south thereof. 1981 Decision, supra at 910. In May 1973, North Western sought Commission authority to build a 76-mile line that would extend north from its existing east-west line which runs south of the Basin. Id. The Commission was reluctant to authorize two new lines that would roughly parallel each other and strongly encouraged the two railroad companies to submit a proposal for a joint line. The two railroads subsequently submitted a joint proposal and in January 1976, the Commission authorized the joint construction and ownership of a single line. 3 The Commission's decision expressly provided that Burlington would solely own and operate a nine mile stretch of track located between the northern terminus of the joint line at Coal Creek Junction and the southern tip of the pre-existing Burlington Gillette Branch at Amax Junction. 1976 Decision, supra at 389. See accompanying map. Mobil's coal mine is located adjacent to this nine mile line.

Page 628

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

While the Commission was still considering the construction application, the two carriers in May of 1975 executed a "Joint Line Agreement" to implement the joint project. The Agreement provided that each would pay half the cost of the construction. Id. at 393. North Western did not seek Commission approval of the Joint Line Agreement until June 1979. At the time of the 1976 Decision, which approved only construction of the joint line, the source of financing for North Western's portion of the cost was unknown. Id. at 395, 402, 406. Nevertheless, the Commission did not withhold its approval of the joint application because it believed that the anticipated heavy use of the railway to carry Basin coal would result in a highly profitable operation, id. at 401-02, and could be easily financed. Furthermore, the Commission assumed that it would have opportunity later to pass upon North Western's financing arrangements if securities were to be issued. Id.

Page 629

It subsequently developed that the North Western was unable to obtain financing to pay its share of the construction costs but Burlington went ahead anyway and built the joint line, except the North Western's spur from Shawnee Junction to Shawnee, at its own expense. See Verified Statement of Louis T. Duerinck, p. 23, in North Western's Petition for Order to Show Cause Why Terms of Joint Line Agreement, Except as Previously Modified by the Commission, Should Not Now be Prescribed. On June 1, 1976 Burlington agreed to extend the payment deadline for North Western until November 30, 1977. North Western failed to meet that deadline and on January 1, 1978 the carriers negotiated a "Second Supplemental Agreement," granting North Western an additional two years in which to pay its share of costs, estimated at about $60 million. This supplemental agreement also provided that North Western would be deemed to have withdrawn from the joint project in the event it failed to pay by November 30, 1979. 1981 Decision, supra at 911.

In August 1978, North Western and one of its subsidiaries filed for financial assistance from the Federal Railroad Administration. Id. North Western sought the funds to pay its share of the joint line costs and to finance the rehabilitation and upgrading to coal handling capacity of its already existing east-west line (the Fremont Line). The railway administration was not satisfied with North Western's proposal and suggested that the carrier explore other alternatives.

North Western's financial difficulties prevented it from properly maintaining its Fremont Line which extends...

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  • Citizens for Environmental Quality v. US, Civ. A. No. 87-F-1714.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • August 24, 1989
    ...of its ESA claims. In the absence of such evidence, Plaintiff has failed to state a claim under the ESA. See Mobil Oil Corp. v. ICC, 685 F.2d 624, 640-41 XII. Injunctive Relief Plaintiff-Intervenors seek an injunctive order enjoining Defendants from offering for sale more than 25 MMBF (mill......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 11, 2016
    ...to reopen the record by Nuclear Regulatory Commission for “clear showing of abuse of discretion” (quoting Mobil Oil Corp. v. I.C.C. , 685 F.2d 624 (D.C. Cir. 1982) )). There is no reason to think courts are ill-equipped to evaluate the same type of decision in the EEOICPA context. V. Given ......
  • Deukmejian v. Nuclear Regulatory Com'n, Nos. 81-2034
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 13, 1984
    ...the Appeal Board has found petitioners' evidence to be lacking in both materiality and safety-significance. 171 See supra note 167. 172 685 F.2d 624 173 Id. at 632. 174 See Kansas Gas & Elec. Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 N.R.C. 320, 338 (1978). 175 Vermon......
  • County of Bergen v. Dole, Civ. A. No. 82-4065.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 10, 1985
    ...assessment is not required when there is no evidence indicating that a listed or proposed species is present. Mobil Oil Corp. v. ICC, 685 F.2d 624, 640-641 (D.C.Cir. 1982). As plaintiffs' correctly note, however, the DOI twice notified defendants that the small whorled pogonia had been prop......
  • Request a trial to view additional results
14 cases
  • Citizens for Environmental Quality v. US, Civ. A. No. 87-F-1714.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • August 24, 1989
    ...of its ESA claims. In the absence of such evidence, Plaintiff has failed to state a claim under the ESA. See Mobil Oil Corp. v. ICC, 685 F.2d 624, 640-41 XII. Injunctive Relief Plaintiff-Intervenors seek an injunctive order enjoining Defendants from offering for sale more than 25 MMBF (mill......
  • Berry v. U.S. Dep't of Labor, No. 15-6316
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 11, 2016
    ...to reopen the record by Nuclear Regulatory Commission for “clear showing of abuse of discretion” (quoting Mobil Oil Corp. v. I.C.C. , 685 F.2d 624 (D.C. Cir. 1982) )). There is no reason to think courts are ill-equipped to evaluate the same type of decision in the EEOICPA context. V. Given ......
  • Deukmejian v. Nuclear Regulatory Com'n, Nos. 81-2034
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 13, 1984
    ...the Appeal Board has found petitioners' evidence to be lacking in both materiality and safety-significance. 171 See supra note 167. 172 685 F.2d 624 173 Id. at 632. 174 See Kansas Gas & Elec. Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 N.R.C. 320, 338 (1978). 175 Vermon......
  • County of Bergen v. Dole, Civ. A. No. 82-4065.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 10, 1985
    ...assessment is not required when there is no evidence indicating that a listed or proposed species is present. Mobil Oil Corp. v. ICC, 685 F.2d 624, 640-641 (D.C.Cir. 1982). As plaintiffs' correctly note, however, the DOI twice notified defendants that the small whorled pogonia had been prop......
  • Request a trial to view additional results

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