STARKE COUNTY FARM BUREAU CO-OP. v. ICC, Civ. No. 1:93cv233.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtWILLIAM C. LEE
Citation839 F. Supp. 1329
PartiesSTARKE COUNTY FARM BUREAU CO-OPERATIVE ASSOCIATION, INC., and Allen County Cooperative, Inc., Plaintiffs, v. INTERSTATE COMMERCE COMMISSION, and Council on Environmental Quality, Defendants.
Docket NumberCiv. No. 1:93cv233.
Decision Date09 December 1993

839 F. Supp. 1329

STARKE COUNTY FARM BUREAU CO-OPERATIVE ASSOCIATION, INC., and Allen County Cooperative, Inc., Plaintiffs,
v.
INTERSTATE COMMERCE COMMISSION, and Council on Environmental Quality, Defendants.

Civ. No. 1:93cv233.

United States District Court, N.D. Indiana, Fort Wayne Division.

December 9, 1993.


839 F. Supp. 1330

Frank J. Gray, Douglas E. Miller, Beckman Lawson Sandler Snyder and Federoff, Fort Wayne, IN, Fritz R. Kahn, Kevin B. McCarthy, Indianapolis, IN, for plaintiffs.

David H. Miller, U.S. Attys. Office, Fort Wayne, IN, Anthony P. Hoang, U.S. Dept. of Justice, Environment and Natural Resources

839 F. Supp. 1331
Div., General Litigation Section, Washington, DC, Evelyn G. Kitay, Interstate Commerce Com'n, Office of the General Counsel, Washington, DC, for defendants

J. Michael O'Hara, Anthony M. Stites, Barrett and McNagny, Fort Wayne, IN, John J. Paylor, Jonathan M. Broder, Philadelphia, PA, for intervenor defendant.

Douglas E. Miller, Beckman Lawson Sandler Snyder and Federoff, Fort Wayne, IN, J. Timothy McCaulay, Fort Wayne, IN, Kevin B. McCarthy, Indianapolis, IN, for intervenor.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendants' motion to dismiss plaintiffs' first amended complaint and on defendants' motion to strike affidavits. The defendants also oppose the plaintiffs' motion for leave to file a second amended complaint. Further, the City of Fort Wayne, a class action plaintiff in a subsequent case filed in this court1 against the Interstate Commerce Commission and the Council on Environmental Quality has filed a motion to intervene or, in the alternative, to consolidate. Briefing was completed on all issues on November 16, 1993.

Discussion

On September 10, 1993, the Starke County Farm Bureau Cooperative Association, Inc.2 ("Starke County Co-op") and the Allen County Cooperative, Inc.3 ("Allen County Co-op") filed their first amended complaint for injunctive relief in the nature of mandamus against the Interstate Commerce Commission ("ICC") and the Council on Environmental Quality ("CEQ")4.

The plaintiffs' complaint alleges that the ICC has administered and applied 49 U.S.C. §§ 10903-109075 to the abandonment of various sub-segments of the Fort Wayne Line6 between Crestline, Ohio on the east, and Gary, Indiana on the west. The plaintiffs claim that the CEQ has approved illegal procedures or regulations of the ICC under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.

The plaintiffs further allege that the improper piecemealing and sub-segmentation of the Fort Wayne Line will destroy the ability of the plaintiffs to ship rail freight to and

839 F. Supp. 1332
through Fort Wayne, Indiana. Plaintiffs also assert that they have presented "environmental claims" to the ICC, which responded with a decision, and thus the plaintiffs believe they have exhausted their administrative remedies. The plaintiffs "environmental claims" essentially consist of an assertion that the ICC has processed the abandonment application without a legally sufficient environmental staff

In their prayer for relief, the plaintiffs request this court to issue an order enjoining the ICC and the CEQ from any further action on the abandonment of the Fort Wayne Line unless and until: (1) The ICC has employed proper environmental personnel sufficient to meet the mandate of NEPA and CEQ regulations for a proper interdisciplinary environmental assessment; and (2) the ICC has undertaken a genuine environmental assessment of proper scope over the entire Fort Wayne Line rail corridor from Alliance, Ohio to Chicago, Illinois, including segments from Crestline, Ohio to Lima, Ohio to Fort Wayne, Indiana to Gary, Indiana.

It is undisputed that the ICC has exclusive and plenary authority over rail line abandonments. Chicago & Northwest Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981). Generally, in order to obtain relief from its obligation to provide service on a rail line and permission to physically abandon the property, a rail carrier must apply to the ICC, under 49 U.S.C. § 10903, for a certificate of abandonment (or discontinuance). The ICC must then determine whether "the present and future public convenience and necessity require or permit the abandonment." 49 U.S.C. § 10903(a). In making this determination, the ICC balances the needs of shippers and communities for the line against the burden that the line imposes on the carrier and interstate commerce. Colorado v. United States, 271 U.S. 153, 46 S.Ct. 452, 70 L.Ed. 878 (1926).

On July 16, 1993, Consolidated Rail Corporation ("Conrail") filed an application with the ICC "to abandon a line of railroad known as the Fort Wayne Line, from milepost 363.0 near Warsaw to milepost 424.0 near Valparaiso, a distance of 61 miles in Kosciusko, Marshall, Starke, LaPorte and Porter Counties, Indiana." Two joint protests against the application were filed, one by the Starke County Co-op7 and The Essex Group, Inc. and the other by Farm Fertilizers, Inc., Crop Fertility Specialist, Inc., United Technologies Automotive, Starke County, City of Plymouth, Town of Bourbon, and Town of Hamlet, Indiana. Additionally, protests were filed by Congressman Steve Buyer and the City of Fort Wayne, Indiana. The issues raised in the protests included projected revenues, normalized maintenance expenses, depreciation, fiber optics revenue, bridge removal costs, community impact, alternative transportation, segmentation, and the environment.

On August 30, 1993, the ICC issued a Decision. This Decision ordered, inter alia, an investigation into the proposed abandonment. The Decision also noted that "The Commission's Section of Energy and Environment (SEE) is currently examining the environmental and energy impacts of this proposal and will issue an Environmental Assessment (EA) of the proposed abandonment. This action will not significantly affect either the quality of the human environment or the conservation of energy resources."

Under the schedule established by the ICC's August 30, 1993 Decision, the record will close on October 25, 1993. After the closure of the record and the preparation of

839 F. Supp. 1333
the environmental documentation, the ICC will then vote on the case. Under 49 U.S.C. § 10904(c)(3)8, the deadline for the issuance of an initial decision on the merits of the abandonment is December 28, 1993. If an administrative appeal of that decision is filed and considered, the deadline for the ICC's final decision or order would be in March of 1994. Upon entry of a final order by the ICC, an allegedly aggrieved party would have the option of filing a petition, within 60 days of the entry of the final order, for judicial review of the order in the proper court of appeals. 28 U.S.C. § 23449

In support of their motion to dismiss the plaintiffs' complaint, the defendants strongly assert that this court does not have subject matter jurisdiction over this case. The defendants argue that except for very narrow and limited circumstances, the only remedy available to a party allegedly aggrieved by an ICC decision lies in the courts of appeals. Specifically, 28 U.S.C. § 2321(a) provides that:

Except as otherwise provided by an Act of Congress, a proceeding to enjoin or suspend, in whole or part, a rule, regulation, or order of the Interstate Commerce Commission, shall be brought in the court of appeals as provided by and in the manner prescribed in chapter 158 of this title.

Furthermore, the Hobbs Act, 28 U.S.C. § 2342 provides that:

The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of—
* * * * * *
(5) all rules, regulations, or final orders of the Interstate Commerce commission made reviewable by section 2321 of this title....

As the defendants have noted, courts construing the Hobbs Act have uniformly held that, absent a specific statutory exception, the statute provides the exclusive means of judicial review of the orders of the agencies covered. See e.g., FCC v. ITT World Communications, Inc., 466 U.S. 463, 466, 104 S.Ct. 1936, 1939, 80 L.Ed.2d 480 (1984); Humko Products v. ICC, 715 F.2d 360, 362 (7th Cir.1983); Assure Competitive Transportation, Inc. v. United States, 629 F.2d 467, 471 (7th Cir.1980). See also Simmons v. ICC, 716 F.2d 40, 44 (D.C.Cir.1983).

As stated by the Seventh Circuit Court of Appeals in Suburban O'Hare Comm'n v. Dole, 787 F.2d 186, 192 (7th Cir.1986), "the purpose of having agency decisions reviewed by courts of appeals is to avoid duplicative factfinding." The Seventh Circuit further held that "if there is any ambiguity as to whether jurisdiction lies with a district court or with a court of appeals we must resolve that ambiguity in favor of review by a court of appeals." Id. See also Preseault v. ICC, 853 F.2d 145, 149 (2d Cir.1988), aff'd, 494 U.S. 1, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990); Bywater Neighborhood Ass'n v. Tricarico, 879 F.2d 165, 168 (5th Cir.1989).

Additionally, the United States Supreme Court has construed the Hobbs Act as providing unitary review of agency action in the

839 F. Supp. 1334
courts of appeals. Specifically, in FCC v. ITT World Communications, Inc., 466 U.S. 463, 466-68, 104 S.Ct. 1936, 1939-40, 80 L.Ed.2d 480 (1984), the Supreme Court stated
In substance, the complaint filed in the District Court raised the same issues and sought to enforce the same restrictions upon agency conduct as did the petition for rulemaking that was denied by the FCC. See supra at 466 U.S. at 465, 104 S.Ct. at 1938. The appropriate procedure for obtaining judicial review of the agency's disposition of these issues was appeal to the Court of Appeals as provided by statute. (Footnote omitted).

See also Simmons v. ICC, 716 F.2d 40, 44 (D.C.Cir.1983), wherein the Court reviewed the...

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3 practice notes
  • In re Hawaiian & Guamanian Cabotage Antitrust Litig..This Document Relates To: All Cases., No. 08–md–1972 TSZ.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • November 30, 2010
    ...duty” of an agency for which such remedy is available. See, e.g., Starke County Farm Bureau Coop. Ass'n v. Interstate Commerce Comm'n, 839 F.Supp. 1329, 1334 (N.D.Ind.1993). Instead, plaintiffs' only avenue of recourse is to initiate a proceeding before the STB, any appeal from which would ......
  • Lederman v. Pacific Industries, Inc., No. 95 C 390.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • October 2, 1996
    ...affidavit that include impermissible legal conclusion, Starke County Farm Bureau Coop. Ass'n, Inc. v. Interstate Commerce Comm'n, 839 F.Supp. 1329, 1337 n. 14 (N.D.Ind.1993), but will rely upon the remaining portions of the affidavit. See Pfeil v. Rogers, 757 F.2d 850, 861 (7th Cir.1985) ("......
  • Starke County Farm Bureau Co-op. Ass'n, Inc. v. I.C.C., CO-OPERATIVE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 25, 1995
    ...in the absence of standing, subject matter jurisdiction or a complaint ripe for adjudication. Starke County Farm Bureau Co-Op v. I.C.C., 839 F.Supp. 1329 The Hobbs Act, 28 U.S.C. Sec. 2342, vests exclusive jurisdiction over ICC final decisions in the Courts of Appeals. 2 The plaintiffs atte......
3 cases
  • In re Hawaiian & Guamanian Cabotage Antitrust Litig..This Document Relates To: All Cases., No. 08–md–1972 TSZ.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • November 30, 2010
    ...duty” of an agency for which such remedy is available. See, e.g., Starke County Farm Bureau Coop. Ass'n v. Interstate Commerce Comm'n, 839 F.Supp. 1329, 1334 (N.D.Ind.1993). Instead, plaintiffs' only avenue of recourse is to initiate a proceeding before the STB, any appeal from which would ......
  • Lederman v. Pacific Industries, Inc., No. 95 C 390.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • October 2, 1996
    ...affidavit that include impermissible legal conclusion, Starke County Farm Bureau Coop. Ass'n, Inc. v. Interstate Commerce Comm'n, 839 F.Supp. 1329, 1337 n. 14 (N.D.Ind.1993), but will rely upon the remaining portions of the affidavit. See Pfeil v. Rogers, 757 F.2d 850, 861 (7th Cir.1985) ("......
  • Starke County Farm Bureau Co-op. Ass'n, Inc. v. I.C.C., CO-OPERATIVE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 25, 1995
    ...in the absence of standing, subject matter jurisdiction or a complaint ripe for adjudication. Starke County Farm Bureau Co-Op v. I.C.C., 839 F.Supp. 1329 The Hobbs Act, 28 U.S.C. Sec. 2342, vests exclusive jurisdiction over ICC final decisions in the Courts of Appeals. 2 The plaintiffs atte......

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