New Mexico Navajo Ranchers Ass'n v. Interstate Commerce Commission

850 F.2d 729, 271 U.S. App. D.C. 36
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 21, 1988
DocketNos. 85-1071, 85-1072
StatusPublished
Cited by3 cases

This text of 850 F.2d 729 (New Mexico Navajo Ranchers Ass'n 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
New Mexico Navajo Ranchers Ass'n v. Interstate Commerce Commission, 850 F.2d 729, 271 U.S. App. D.C. 36 (D.C. Cir. 1988).

Opinions

Opinion for the Court filed by Circuit Judge WILLIAMS.

Concurring opinion filed by Circuit Judge EDWARDS.

WILLIAMS, Circuit Judge:

For over a decade, members of the Navajo Tribe have attempted to block the construction of a railroad in the coal-rich San Juan Basin of northwestern New Mexico. The fight stems from concern that the railroad — and the coal extraction that it would make possible — would adversely affect the religious practices, cultural values and economy of the Navajo Indians living in the area. In 1982, after prolonged skirmishing, the Navajos lost a key round when the Interstate Commerce Commission granted two railroad companies — the Star Lake and the Atchison, Topeka and Santa Fe — authority to construct and operate the railroad. This court reviewed that grant of authority in New Mexico Navajo Ranchers Ass’n v. ICC, 702 F.2d 227 (D.C.Cir.1983) (Navajo I), and remanded to the ICC for further consideration. Concluding that the Commission adequately responded to the original concerns, we affirm its renewed decision to authorize construction of the Star Lake line.

I. Background

In 1976 Star Lake and Santa Fe filed an application with the ICC pursuant to 49 U.S.C. § 10901 (1982), seeking authority to construct and operate an 82-mile rail line near the Navajo reservation in the San Juan Basin. The former proposed to construct the line, the latter to operate it. The Commission granted the requested authority in 1981, then reopened it to consider supplemental evidence, and in 1982 affirmed the original outcome.

The New Mexico Navajo Ranchers Association, certain individuals, and local Navajo communities petitioned for review of the ICC decision. In Navajo I, we reversed the grant of authority. We held that in carrying out its task of determining whether “the present or future public convenience and necessity” requires or permits the construction of an additional rail line, 49 U.S.C. § 10901(a), the ICC “must consider whether the construction ‘would subject the communities directly affected to serious injury____' ” 702 F.2d at 232 (quoting Colorado v. United States, 271 U.S. 153, 169, 46 S.Ct. 452, 456, 70 L.Ed. 878 (1926)). We specifically required the ICC to consider, in its analysis of the public convenience and necessity, whether construction of the Star Lake line would comply with the federal policies seeking to (1) protect sacred and historic Indian sites and (2) avoid unnecessary disturbance of the Indians’ quiet possession of their land and of the Navajo Tribe’s status as a “quasi-sovereign” nation. We also found that the Commission acted arbitrarily when it failed to require Santa Fe to submit evidence of its expected operating revenues and expenses.

,On remand, the ICC permitted intervention by the Navajo Tribe. On December 7, 1984, the ICC affirmed its earlier grant of authority, subject to certain conditions designed to minimize damage to sites of religious significance to the Indians. The same month the Association petitioned the ICC to reopen its decision to consider new financial evidence. In December 1985 the Commission granted the request and on April 20, 1987 reaffirmed its grant of construction and operation authority to the railroads.

We note here a technical difficulty in our jurisdiction. While the Association’s petition to reopen was pending, it filed this petition for review. This court placed the action in abeyance pending the agency’s decision on reopening. Our decision to [39]*39place it in abeyance seems necessarily to have rested on an assumption that this court secured jurisdiction despite the premature filing, an assumption of questionable validity. See Western Union Telegraph Co. v. FCC, 773 F.2d 375, 377 (D.C.Cir.1985) (dismissing appeal filed prematurely); Public Citizen v. NRC, 845 F.2d 1105 (D.C.Cir.1988) (same). As the legal premise of the abeyance order is the law of the case, and that order is surely the basis for petitioners’ not refiling when the Commission action ultimately became final, we treat the Commission’s final decision as reviving the original petition.

We now review to determine whether the ICC’s final decision on remand satisfactorily conformed to our directions in Navajo I.

II. Star Lake’s Alleged Misconduct

The first issue we address concerns Star Lake’s conduct in getting consents from Indian allottees owning land along the proposed route. The allottees are just one of the many groups of land owners in the area, whose diverse character has “earned it the sobriquet ‘the checkerboard.’ ” I Joint Appendix (“J.A.”) at 30. They own the land in question in severalty —i.e., independent of the Tribe — but without the full power of alienation. The authority to grant a right-of-way over the land is vested in the Department of the Interior, which had made the allottees’ consents a condition of such a grant. Petitioners charge that in soliciting these consents Star Lake used coercive tactics, made misleading statements concerning the value of the land and the legal effect of the forms it sought to have signed, and otherwise took advantage of legally and commercially unsophisticated owners, many of whom speak or read little English.

So far as any use of the consents by the railroads is concerned, the propriety of Star Lake’s means of securing them is altogether moot. After 32 allottees withdrew their consents, complaining that they misunderstood the consent forms, the Department of the Interior declined to grant Star Lake the requested right-of-way over Indian allotment land. Star Lake and Santa Fe then filed suit to condemn the right-of-way. After our remand in Navajo I, the parties voluntarily dismissed the condemnation suit. Star Lake and Santa Fe remind us, however, that the suit could be renewed after our decision in this appeal.

In Navajo I we recognized that the validity of the consents had become academic, but found continuing significance in Star Lake’s conduct in acquiring them. We held this conduct relevant to the ICC’s duty under the American Indian Religious Freedom Act, 42 U.S.C. § 1996 (1982), and the National Historic Preservation Act, 16 U.S.C. § 470f (1982), to consider the effect of the line on religious and historic Indian sites that the rail line may jeopardize. The first of those statutes declares it federal policy to protect and preserve the right of American Indians to exercise their traditional religions, including their access to sites. The second requires federal agencies, before issuing a license for any undertaking, to consider its effect on sites included in or eligible for inclusion in the National Register of Historic Places. In Navajo I

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850 F.2d 729, 271 U.S. App. D.C. 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-mexico-navajo-ranchers-assn-v-interstate-commerce-commission-cadc-1988.