Farmland Industries, Inc. v. United States

642 F.2d 208
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 3, 1981
DocketNos. 80-1308, 80-1435
StatusPublished
Cited by13 cases

This text of 642 F.2d 208 (Farmland Industries, Inc. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmland Industries, Inc. v. United States, 642 F.2d 208 (7th Cir. 1981).

Opinion

BAUER, Circuit Judge.

Petitioners Farmland Industries, Inc. (“Farmland”) and the State of Illinois seek judicial review of an Interstate Commerce Commission (“ICC”) statement of policy change entered December 26, 1979. We deny the petitions for review.

I

In February 1979, the ICC published notice of its intention to adopt a policy statement modifying the criteria used to decide railroad abandonment applications. Specifically, the Commission proposed to include opportunity costs1 as “one of the factors considered in balancing the public need for continuing service versus the burden on the carrier.” 44 Fed.Reg. 10807 (1979).

The Commission received comments on its proposal from the American Association of Railroads, various railroad companies, shippers, shipper organizations, and state and federal government agencies. In December 1979, the Commission adopted the policy statement.

The State of Illinois, the Illinois Commerce Commission, and Patrick W. Simmons petitioned the ICC to reopen the opportunity costs proceeding and reconsider [210]*210the December 26, 1979, decision. The Commission denied the petition on March 12, 1980.

The petitions for judicial review filed by Farmland and the State of Illinois have been consolidated. The American Association of Railroads is an intervening respondent.

II

Petitioners claim that the challenged ICC pronouncement is a new rule, not a “genuine” policy statement as announced by the Commission.2 Petitioners contend that we should review the ICC pronouncement to determine if there is substantial evidence to support the Commission’s finding and to determine whether consideration of opportunity costs is “reasonably related to the purpose of the [Interstate Commerce Act].” Mourning v. Family Publications Service Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1660, 36 L.Ed.2d 318 (1973) (citation omitted). See also 5 U.S.C. § 706(2)(E).

We agree with the ICC that the challenged pronouncement is a policy statement rather than a new rule. A policy statement announces new factors the agen-, cy will consider in resolving future substantive questions. Brown Exp., Inc. v. United States, 607 F.2d 695, 701 (5th Cir. 1979); Guardian Federal Savings and Loan v. Federal Savings and Loan Ins. Corp., 589 F.2d 658, 666 (D.C.Cir.1978). A policy statement operates prospectively, and it leaves the agency with freedom to exercise discretion in resolving substantive questions. Assure Competitive Transportation, Inc. v. United States, 635 F.2d 1301 (7th Cir. 1980). The ICC pronouncement here on review satisfies these criteria. The statement announced that the ICC would consider evidence of opportunity costs “in all future abandonment cases” and that the opportunity cost evidence would be only one factor of many considered in the agency’s traditional balancing test. 45 Fed.Reg. 4491, 4493 (1980).

We will review an agency policy statement to determine whether the pronouncement was “arbitrary, capricious, [or] an abuse of discretion ...” or “in excess of statutory jurisdiction.” 5 U.S.C. § 706(2)(A) & (C). Assure Competitive Transportation, Inc. v. United States, 635 F.2d 1301 (7th Cir. 1980). This standard of review is highly deferential; we are required to affirm the agency pronouncement if there is a rational basis for the Commission’s decision. Id.

Ill

Petitioner Farmland asserts that the adopted policy statement violates the statutory provision governing ICC abandonment decisions, 49 U.S.C. § 10903(a), and case law interpreting that statute. We disagree.

Section 10903(a)3 authorizes the ICC to permit a railroad to abandon part of its rail lines if the Commission finds that abandonment is consistent with “public convenience and necessity.” The Act does not define “public convenience and necessity” nor does it specify any criteria that the ICC must or should consider in deciding what is consistent with public convenience and necessity. Rather, the Act authorizes the ICC to use its discretion and expertise to determine, in [211]*211each instance, whether abandonment should be permitted. Heretofore, the ICC has engaged in balancing the needs of interstate commerce against the needs of intrastate commerce to determine whether abandonment is consistent with public convenience and necessity. This balancing approach has long been approved by the cases interpreting section 10903. As the Supreme Court observed in the landmark case of Colorado v. United States, 271 U.S. 153, 168-69, 46 S.Ct. 452, 455-56, 70 L.Ed. 878 (1926):

The sole test prescribed is that abandonment be consistent with public necessity and convenience .... The benefit to one of the abandonment must be weighed against the inconvenience and loss to which the other will be subjected. Conversely, the benefits to particular communities and commerce of continued operation must be weighed against the burden thereby imposed upon other commerce
Whatever the precise nature of these conflicting needs, the determination is made upon a balancing of the respective interests — the effort being to decide what fairness to all concerned demands. In that balancing, the fact of demonstrated prejudice to interstate commerce and the absence of earnings adequate to afford reasonable compensation are, of course, relevant and may often be controlling. But the Act does not make issuance of the certificate dependent upon a specific finding to that effect.

The policy statement announcing that the ICC will consider opportunity costs as a factor in abandonment cases does not alter the statutorily authorized and judicially approved balancing approach. The statement indicates only that the Commission will weigh opportunity costs as part of the burden to interstate commerce against which the needs of intrastate commerce will be balanced.4 45 Fed.Reg. at 4493-4494. We find that this change in policy does not violate the statutory mandate to authorize abandonment only when consistent with public convenience and necessity.5

IV

The State of Illinois asserts that the policy statement exceeds the ICC’s statutory authority. Illinois claims that congressional legislation was needed to effect this policy change.

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642 F.2d 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmland-industries-inc-v-united-states-ca7-1981.