Montana Consumer Counsel v. U.S., No. 76-3693

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore BROWNING and KENNEDY; KENNEDY
Citation607 F.2d 1226
PartiesMONTANA CONSUMER COUNSEL and Montana Department of Agriculture, Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Burlington Northern, Inc., Chicago Milwaukee, St. Paul and Pacific Railroad Company and Union Pacific Railroad Company, Intervenors-Respondents.
Decision Date17 August 1979
Docket NumberNo. 76-3693

Page 1226

607 F.2d 1226
MONTANA CONSUMER COUNSEL and Montana Department of
Agriculture, Petitioners,
v.
UNITED STATES of America and Interstate Commerce Commission,
Respondents,
Burlington Northern, Inc., Chicago Milwaukee, St. Paul and
Pacific Railroad Company and Union Pacific
Railroad Company, Intervenors-Respondents.
No. 76-3693.
United States Court of Appeals,
Ninth Circuit.
Aug. 17, 1979.

Page 1227

Thomas M. Auchincloss, Jr., Washington, D. C. (on brief), and Geoffrey L. Brazier, Helena, Mont., argued, for petitioners.

Robert B. Nicholson and Edward Lawson, Dept. of Justice, Washington, D. C., on brief, for respondents; Christine N. Kohl, Washington, D. C., William R. Power, St. Paul, Minn., argued.

On Petition for Review of Orders of the Interstate Commerce Commission.

Before BROWNING and KENNEDY, Circuit Judges, and CHRISTENSEN, * District Judge.

KENNEDY, Circuit Judge:

The petitioners in this case challenge an order of the Interstate Commerce Commission (ICC) issued after the Commission determined that intrastate freight rates established pursuant to Montana rate-making procedures were so low as to be an unreasonable burden on interstate commerce. The ICC issued the order pursuant to 49 U.S.C. §§ 13(3) & (4) and we have jurisdiction pursuant to 28 U.S.C. §§ 2321 & 2342(5). The petitioners are Montana Consumer Counsel and Montana Department of Agriculture. The Burlington Northern, Inc., Chicago, Milwaukee, St. Paul & Pacific Railroad Company, and Union Pacific Railroad Company are intervenors here. These railroads were ordered by the ICC to eliminate the disparity between the intrastate and interstate rates and to submit a rate schedule for Montana transportation with rates not exceeding those authorized by the ICC for interstate transportation. We affirm the order of the ICC.

At the outset we hold that, contrary to the suggestion of the ICC, this order is reviewable. The ICC argues that general revenue proceedings such as this one, See King v. United States, 344 U.S. 254, 275-76, 73 S.Ct. 259, 97 L.Ed. 301 (1952), are reviewable only by way of a challenge to a specific rate, such as for one commodity. If petitioners can obtain review only by challenging specific rates, they have not exhausted their remedies as provided by 49 U.S.C. § 13. There is no indication that they are primarily concerned about the rates charged with respect to any particular commodities. See Atlantic City Electric Co. v. United States, 400 U.S. 73, 91 S.Ct. 259, 27 L.Ed.2d 212 (1970); Electronic Indus. Ass'n v. United States, 310 F.Supp. 1286, 1289 (D.D.C.1970) (three-judge court), Aff'd mem., 401 U.S. 967, 91 S.Ct. 1188, 28 L.Ed.2d 318 (1971); Atlantic City Electric Co. v. United States, 306 F.Supp. 338 (S.D.N.Y.1969) (three-judge court), Aff'd by an equally divided court, 400 U.S. 73, 91 S.Ct. 259, 27 L.Ed.2d 212 (1970). Accordingly, we do not think it necessary to impose the requirement of objections to specific rates as a precondition to review of the Commission's order. The instant case presents an order similar to the order held reviewable in Utah Citizens Rate Assoc. v. United States, 192 F.Supp. 12, 16 (D.Utah 1960) (three-judge court), Aff'd, 365 U.S. 649, 81 S.Ct. 834, 5 L.Ed.2d 857 (1961) (per curiam). There, appellants challenged a general intrastate

Page 1228

increase ordered by the ICC; as in this case, there was no indication that they were primarily concerned about particular rates. The court specifically considered whether it had jurisdiction to review a general intrastate rate increase and concluded that it did have jurisdiction. The Supreme Court affirmed. Given the similarity between this case and Utah Citizens Rate, that case appears dispositive, and we hold that there is jurisdiction to review the order.

The ICC also contends that if the Commission's action is reviewable, the proper standard of review is the arbitrary and capricious test rather than the substantial...

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