Southern Pac. Transp. v. California Coastal Com'n, C-80-3916-MHP.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Citation520 F. Supp. 800
Docket NumberNo. C-80-3916-MHP.,C-80-3916-MHP.
PartiesSOUTHERN PACIFIC TRANSPORTATION CO., Plaintiff and Counterdefendant, v. CALIFORNIA COASTAL COMMISSION, Defendant and Counterclaimant.
Decision Date11 August 1981

Thormund A. Miller, Louis P. Warchot, Gary A. Laakso, San Francisco, Cal., for plaintiff and counterdefendant.

Linus Masouredis, Deputy Atty. Gen., San Francisco, Cal., for defendant and counterclaimant.


PATEL, District Judge.

The Southern Pacific Transportation Company (hereinafter Southern Pacific) brought this action for declaratory relief against the California Coastal Commission (Coastal Commission), which has filed a counterclaim for declaratory and injunctive relief. As there are no disputed issues of material fact, the parties have filed cross motions for summary judgment.

This controversy concerns a stretch of railroad line (hereinafter the Monterey Line) which extends for a distance of 6.72 miles from milepost 123.30 (near Seaside) to milepost 130.02 in the Monterey Peninsula area. The Monterey Line passes through choice realty including the town of Pacific Grove and Cannery Row in Monterey. Southern Pacific, which owns the Monterey Line and operated train service along it, filed an abandonment application with the Interstate Commerce Commission (I.C.C.) on December 29, 1978. By a decision on February 26, 1979, the I.C.C. approved the application and issued a permit which provided, inter alia, for both the cessation of service and dismantling of the right of way. Removal of the trackage would effectively foreclose the future use of the Monterey Line for rail transportation. The I.C.C.'s decision was published in the Federal Register on March 27, 1979 and became effective on May 11, 1979. 44 Fed.Reg. 18,316 (1979).

The Coastal Commission did not receive actual notice of Southern Pacific's abandonment application prior to the I.C.C.'s final determination. On June 21, 1979 the Coastal Commission's Legal Counsel wrote to the Chairman of the I.C.C. informing him that the Coastal Commission wanted to exercise its authority under § 307(c)(3) of the Coastal Zone Management Act of 1972 (CZMA) (current version at 16 U.S.C. § 1456(c)(3)(A) (1976)), to review the proposed dismantling of the right of way for consistency with the California Coastal Zone Management Program. In response to this claim, Southern Pacific filed the instant action for declaratory relief in order to avoid liability for violating the CZMA if it complies with the I.C.C. order.

The cross motions for summary judgment raise four legal issues: (1) is tearing up the tracks and dismantling the right of way (as distinguished from ceasing rail service) within the jurisdiction of the Coastal Commission pursuant to the CZMA; (2) if the Coastal Commission does have jurisdiction pursuant to the CZMA, has this authority been preempted or repealed by the abandonment provisions of the Interstate Commerce Act; (3) has the Coastal Commission waived its rights by failing to exercise them in a timely manner, and (4) does this court have jurisdiction over the Coastal Commission's counterclaim seeking injunctive relief?


The Coastal Commission, as an authorized state agency for purposes of the CZMA, has expansive jurisdiction to review federal licenses or permits for consistency with its coastal zone management plan. At the outset the court notes that the Coastal Commission is not asserting jurisdiction over I.C.C. permits allowing a railroad to cease rail service, but only over permits to the extent that they provide for physical alteration in the right of way. Southern Pacific's challenge to the Coastal Commission's jurisdiction under the CZMA raises two issues: (1) whether Congress intended CZMA review procedures to extend to I.C.C. permits or licenses; and (2) whether track removal is a future land use under CZMA consistency provisions.

In enacting the CZMA Congress explicitly recognized the need to motivate and assist the coastal states in developing resource management programs in order to preserve and develop the nation's coastal resources. 16 U.S.C. §§ 1451-1452. Under the CZMA, once the Secretary of Commerce has determined that a state's proposed plan comports with the CZMA, the Secretary is authorized to make grants to the state absorbing up to 80% of the administrative costs of the program. 16 U.S.C. § 1455a. Of primary significance here is that approval also brings into play the federal consistency provision, which provides in relevant part:

After final approval by the Secretary of a state's management program, any applicant for a required Federal license or permit to conduct an activity affecting land or water uses in the coastal zone of that state shall provide in the application to the licensing or permitting agency a certification that the proposed activity complies with the state's approved program and that such activity will be conducted in a manner consistent with the program. At the same time, the applicant shall furnish to the state or its designated agency a copy of the certification, with all necessary information and data. Each coastal state shall establish procedures for public notice in the case of all such certifications and, to the extent it deems appropriate, procedures for public hearings in connection therewith. At the earliest practicable time, the state or its designated agency shall notify the Federal agency concerned that the state concurs with or objects to the applicant's certification. If the state or its designated agency fails to furnish the required notification within six months after receipt of its copy of the applicant's certification, the state's concurrence with the certification shall be conclusively presumed. No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicant's certification or until, by the state's failure to act, the concurrence is conclusively presumed, unless the Secretary, on his own initiative or upon appeal by the applicant, finds after providing a reasonable opportunity for detailed comments from the Federal agency involved and from the state, that the activity is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security.

16 U.S.C. § 1456(c)(3)(A) (emphasis added). This section indicates that it was Congress' intention to make compliance with the consistency review procedure mandatory as to any applicant for a required federal license or permit.

An examination of the legislative history of the CZMA supports this interpretation. Congress intended the consistency provision to play a crucial role in motivating the states to cooperate with the federal government under the CZMA. This enhancement of the power of the coastal states was to be limited only by "matters of overriding national interest." S.Rep.No. 277, 94th Cong., 2d Sess. 9, reprinted in 1976 U.S.Code Cong. & Ad.News 1768, 1776. Congress provided no automatic exemption for CZMA-mandated consistency review even in the sensitive area of defense projects. S.Rep.No. 753, 92nd Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News 4776, 4793.

There is nothing intrinsic in the nature of I.C.C. abandonment proceedings which could reasonably be characterized as of overriding national interest. Given Congressional intention to craft a broad statute, it is not the function of this court to narrow it. Consumers Union v. Heimann, 589 F.2d 531, 533 (D.C.Cir.1978). Furthermore, the Office of Coastal Zone Management in the National Oceanic and Atmospheric Administration (N.O.A.A.), which administers the CZMA, has determined that the Coastal Commission does have authority over abandonments. N.O.A.A. should be afforded considerable deference by the courts with respect to its interpretation of its own regulations. American Petroleum Institute v. Knecht, 609 F.2d 1306, 1310 (9th Cir. 1979). For the foregoing reasons this court holds that Congress did not intend to leave I.C.C. abandonment proceedings outside the scope of the CZMA.

Southern Pacific argues that removing the tracks is merely a precursor to future land use and is therefore not within the scope of Coastal Commission authority under § 1456(c)(3)(A). This argument lacks merit. California was one of the earliest states to have its proposed coastal zone management program approved as being in compliance with the CZMA. American Petroleum Institute, 609 F.2d at 1309. One aspect of the program is the California Coastal Act of 1976, Cal.Pub.Res.Code §§ 30000-31405. Pursuant to this enactment the Coastal Commission has primary authority over enforcement of the consistency provisions of the CZMA. Id. § 30330. Under California's federally-approved statutory scheme, "development" is defined as encompassing the alteration or demolition of any structure, including the facilities of any public, municipal, or private utility. Id. § 30106. "Structure" is defined broadly, and includes such things as roads and electric power lines. Ibid. Under this definition, demolition of the right of way is included within the scope of development along it.

There is nothing in the CZMA or its legislative history to suggest that Congress intended to narrow the authority of the states by virtue of the artificial dichotomy urged by Southern Pacific. Congress sought to enhance the state's control over land use in the coastal zone by development of comprehensive management plans. S.Rep.No. 753, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad. News 4776, 4779-80. As it is undisputed that once the tracks are gone several future land use options will be eliminated, an interpretation of § 1456(c)(3)(A) along the lines suggested by Southern Pacific would severely disable the Coastal Commission in the...

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