Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78-C-3768 - Hubert L. Will, Judge.
Before Fairchild, Chief Judge, and Pell and Bauer, Circuit Judges.
The question presented by this appeal is, in large part, procedural. The defendant, Consolidated Rail Corporation (ConRail) is attempting to discontinue its rail passenger service between Chicago, Illinois, and Valparaiso, Indiana. The plaintiffs are attempting to prevent its doing so. The specific issue involved is whether ConRail is entitled to discontinue this particular passenger service simply by posting notice of the discontinuance for 60 days, and by notifying certain parties of the discontinuance, under the provisions of 45 U.S.C. § 744(a)(1), or whether ConRail is required to apply to the Interstate Commerce Commission (ICC) under 49 U.S.C. § 13a(1) (or to the appropriate state regulatory agencies).
The facts involved in this lawsuit are not complex and, for the most part, undisputed. ConRail operates four daily passenger trains between Valparaiso and Chicago. Approximately 500 commuters use this service in each direction daily. "Analysis of ConRail's Commuter Service Between Valparaiso, Indiana and Chicago" (Rail Services Planning Office, Interstate Commerce Commission, August 24, 1978). These trains were formerly operated by the Penn Central Railroad. ConRail has operated these trains in accordance with various subsidy agreements since September 27, 1976. The most recent subsidy agreement was made with the Northwestern Indiana Regional Transportation Authority (NIRTA). NIRTA's subsidy agreement expired on September 30, 1978, and since that time neither NIRTA nor any other body has offered subsidy assistance to ConRail.
On August 1, 1978, in anticipation of the lapsing of the subsidy arrangement, ConRail gave notice that it intended to discontinue the service effective October 1, 1978. This discontinuance notice was purportedly given pursuant to the requirements of 45 U.S.C. §§ 744(a)(1) and 744(e). This form of discontinuance notice will be referred to as "summary discontinuance." The plaintiffs do not dispute that the notice given was adequate under the provisions of these sections. Rather, their contention is that the Summary discontinuance provisions have no application to the discontinuance of these particular trains. Their position is that ConRail was required to obtain approval to discontinue from the Interstate Commerce Commission, under the provisions of 49 U.S.C. § 13a(1), or from the appropriate state regulatory agencies.
The plaintiffs brought this suit in the district court pursuant to 28 U.S.C. §§ 1331 and 1337 for preliminary and permanent injunctive relief against the proposed summary discontinuance. The district court held a hearing on September 29, 1978, and entered a temporary restraining order prohibiting the discontinuance of the trains. A second hearing was held on October 6, 1978. At that time, the district court vacated the temporary restraining order and dismissed the plaintiffs' complaint. The order was stayed until 7:00 p. m., Tuesday, October 10, 1978, to give the plaintiffs a chance to seek a further stay from this court.
On October 10, 1978, the plaintiffs applied for, and received, a stay of the district court order pending further order of this court. The stay of the district court order is still in effect, and ConRail is still operating the trains in question.
Prior to the enactment of the Regional Rail Reorganization Act of 1973, Pub.L.No. 93-236, 87 Stat. 986 (January 2, 1974) (the "3-R Act"), railroads seeking to discontinue service over an interstate line would have been required to seek the approval of one of the two regulatory agencies.
The 3-R Act was enacted in response to a major rail crisis which was precipitated when a number of railroads in the northeast and midwest entered reorganization proceedings. Regional Rail Reorganization Act Cases, 419 U.S. 102, 108, 95 S. Ct. 335, 42 L. Ed. 2d 320 (1974). Section 301 of the 3-R Act, 45 U.S.C. § 741, authorized the establishment of ConRail as a private for-profit corporation to which various railroad properties would be conveyed.
In addition, § 304(a) of the 3-R Act authorized a summary discontinuance procedure, to be available in limited cases, which would permit ConRail to discontinue service by posting a notice of discontinuance for 60 days, and by notifying certain designated parties. 45 U.S.C. § 744(a). Under this procedure, approval of the ICC or state agencies was not required. Section 304(a) of the 3-R Act, 45 U.S.C. § 744(a) provided:
TERMINATION OF RAIL SERVICE
Sec. 304. (a) Discontinuance. Except as provided in subsections (c) and (f) of this section, (1) rail service on rail properties of a railroad in reorganization in the region which transfers to the Corporation or to profitable railroads operating in the region all or substantially all of its rail properties designated for such conveyance in the final system plan, and (2) rail service on rail properties of a profitable railroad operating in the region which transfers substantially all of its rail properties to the Corporation or to other railroads pursuant to the final system plan may be discontinued to the extent such discontinuance is not precluded by the terms of the leases and agreements referred to in section 303(b)(2) of this title if
(A) the final system plan does not designate rail service to be operated over such rail properties; and
(B) not sooner than 30 days following the effective date of the final system plan, the trustee or trustees of the applicable railroad in reorganization or a profitable railroad give notice in writing of intent to discontinue such rail service on a date certain which is not less than 60 days after the date of such notice; and
(C) the notice required by paragraph (B) of this subsection is sent by certified mail to the Governor and State transportation agencies of each State and to the government of each political subdivision of each State in which such rail properties are located and to each shipper who has used such rail service during the previous 12 months.
It is undisputed that § 304(a) is not directly applicable to the Valparaiso-Chicago line involved in this case. The reason is that § 304(a) expressly excludes from its scope rail properties which the final system plan designates to be operated. The Final System Plan (FSP) is a document which the United States Railway Association prepared, under the provisions of §§ 201 and 202 of the 3-R Act, 45 U.S.C. §§ 711 and 712. The Valparaiso-Chicago line is included in the FSP at 1 FSP 46. As a result, summary discontinuance under § 304(a) does not directly apply. Indeed, counsel for ConRail conceded at oral argument that prior to the later enactment of § 304(e) ...