Black v. Interstate Commerce Commission

837 F.2d 1175, 267 U.S. App. D.C. 172
CourtCourt of Appeals for the D.C. Circuit
DecidedFebruary 2, 1988
DocketNos. 86-1136, 87-1184
StatusPublished
Cited by1 cases

This text of 837 F.2d 1175 (Black v. Interstate Commerce Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Black v. Interstate Commerce Commission, 837 F.2d 1175, 267 U.S. App. D.C. 172 (D.C. Cir. 1988).

Opinion

FRIEDMAN, Circuit Judge:

These are petitions to review a determination of the Interstate Commerce Commission (Commission) that a railroad’s operation of its trains over 13.3 miles of another railroad’s line to reach the place at which it interchanged its cars with the other railroad was not an acquisition of track-age rights that required Commission approval. We affirm.

I

A. Under 49 U.S.C. § 10901 (1982),

(a) A rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title may—
....
(3) acquire or operate an extended or additional railroad line; or
(4) provide transportation over, or by means of, an extended or additional railroad line;
only if the Commission finds that the present or future public convenience and necessity require or permit the construction or acquisition (or both) and operation of the railroad line.

Section 10505 of Title 49 authorizes the Commission to exempt “a transaction” that meets the conditions there specified. Pursuant to that authority, in 1985 the Commission exempted “all acquisitions and operations under section 10901.” Class Exemption for the Acquisition and Operation of Rail Lines Under 49 U.S.C. § 10901, 1 I.C.C.2d 810 (1986), rev. denied sub nom. Illinois Commerce Comm’n v. I.C.C., 817 F.2d 145 (D.C.Cir.1987) (Class Exemption); 49 C.F.R. § 1150.32(c) (1986).

The Class Exemption requires that, to qualify for an exemption, the “applicant must file a verified notice providing details about the transaction, and a brief caption summary.” 49 C.F.R. § 1150.32(a) (1986). The exemption is effective seven days after the notice is filed. Id. § 1150.32(b). Under 49 U.S.C. § 10505(d), the Commission may revoke any exemption upon finding that application of a statutory provision is necessary to carry out the transportation policy set forth in 49 U.S.C. § 10101. Section [174]*1741150.32(c) of the Class Exemption provides that “[i]f the notice contains false or misleading information, the exemption is void ab initio.” 49 C.F.R. § 1150.32(c).

B. In 1987, Indiana Rail Road Company (Indiana R.R.) filed with the Commission, pursuant to the Class Exemption, a notice of its intention to acquire from Illinois Central Gulf Railroad (Illinois Central) the 113-mile line of Illinois Central that ran from Indianapolis to Sullivan, Indiana, where the two lines met.

The petitioners (two state legislative directors of a transportation workers union and a different transportation workers union) filed with the Commission a petition to revoke the Class Exemption to the extent it covered the proposed acquisition, “because regulation is necessary to carry out the rail transportation policy for ICG’s disposal of its Indianapolis-Sulllivan [sic] line” and because “[r]ailroad employees will be harmed by the proposed transaction.” In a supplemental pleading, the petitioners charged that the Class Exemption notice “contains false or misleading information” and therefore was void ab initio. They asserted that, in addition to the purchase by Indiana R.R. of the 113-mile line of Illinois Central, Illinois Central had granted Indiana R.R. trackage rights over 13.3 miles of Illinois Central’s line between Sullivan, Indiana, and Palestine, Illinois, where the carriers interchange cars. Their theory apparently was that Indiana R.R.’s failure to disclose the latter arrangement invalidated the notice.

Division 1 of the Commission denied the petition to revoke, and the full Commission denied reconsideration. Indiana R.R., No. 30789 (I.C.C. Sept. 23, 1986) (Exemption, Acquisition and Operation) (Division 1); Indiana R.R., No. 30789 (I.C.C. Apr. 7, 1987) (Exemption, Acquisition and Operation) (full Commission).

Division 1 held that because Indiana R.R. used Illinois Central’s tracks “only for interchange of traffic, its use of the track is not subject to Commission regulation under either Section 10901 or Section 11343,” and it therefore rejected the “petitioners’ contention that the notice is void.” The Division noted that all revenues resulting from the movement of cars over the 13.3 miles of Illinois Central’s lines between Sullivan and Palestine was for the account of Illinois Central, and that Palestine was “the first suitable interchange siding.” It concluded that this “operation clearly [was] one of interchange between carriers” (emphasis in original). Division 1 further held that regulation of the arrangement was not necessary to carry out the rail transportation policy and that there was no occasion to impose protective labor conditions.

In its opinion denying reconsideration, the full Commission affirmed Division l’s ruling that

the transaction does not encompass trackage rights. IRRC enters onto ICG track solely for interchange and not for its own account. There is no overhead or bridge traffic to be gained by IRRC on the 13-mile segment, and there are no shippers to be solicited for IRRC’s account. IRRC can gain no revenue for the mileage between Sullivan and Palestine, because the tariffs reflect a change of account to ICG at Sullivan. We affirm Division l’s finding that the movement over ICG track is to effect the interchange. [Emphasis in original.]

The Commission found that there are no facilities for interchange at Sullivan; and that interchange there would require Illinois Central to back its train from Palestine “crossing 15 public highways and blocking a high speed mainline at Sullivan,” that Indiana R.R. would have to back its train across nine public highways, and that the interchange at Sullivan “would have to be performed on a steep incline.” The Commission concluded that “[u]nder these circumstances, interchange at Palestine instead of Sullivan is reasonable and meets the statutory obligation for a rail carrier to ‘provide proper, reasonable, and equal facilities for the interchange of traffic.' 49 U.S.C. 10742.”

The Commission stated:

The principle that allows a carrier to operate over the tracks of another carrier under an interchange agreement, and without Commission approval, is applica[175]*175ble to the 13-mile operation here. Thus, this is a reasonable interchange arrangement requiring no Section 10901 (or 11343) approval. Accordingly, the arrangement does not require any exercise of our exemptive authority.

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837 F.2d 1175, 267 U.S. App. D.C. 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-interstate-commerce-commission-cadc-1988.