Petition for Review of an Order of the Interstate Commerce Commission.
Before Sprecher and Wood, Circuit Judges, and Campbell, Senior District Judge.*fn**
This is a petition to review an order of the Interstate Commerce Commission (ICC) authorizing the Illinois Central Gulf Railroad Company (ICG) to abandon a 26.5 mile segment of railroad between Mason City and Ashland, Illinois. The Attorney General of Illinois, on behalf of the People of the State of Illinois and the Illinois Commerce Commission; three shippers served by this railroad segment;*fn1 and the Illinois Legislative Director for United Transportation (petitioners) claim that the ICC improperly granted a certificate of public convenience and necessity permitting ICG to abandon this segment of railroad. We affirm the order of the ICC denying the petition for review.
ICG, on October 27, 1976, filed an abandonment application for a 42 mile segment of railroad between Mason City and Jacksonville, Illinois pursuant to section 1a of the Interstate Commerce Act. 49 U.S.C. § 1a (now codified as 49 U.S.C. § 10903).*fn2 In November 1976, notice of ICG's application to abandon this 42 mile segment was published in five local newspapers and was posted in twelve railroad depots along the affected line. Further, on May 5, 1977, the ICC published a map of ICG's railroad system in the Federal Register, specifically identifying the line between Mason City and Jacksonville as the trackage for which an abandonment application had been filed. 42 Fed.Reg. 22981, 22997. The 42 mile proposed abandonment was scheduled for hearing beginning on January 4, 1978. On December 2, 1977 ICG requested permission to amend its application, proposing only to abandon the northernmost 26.5 miles (Mason City to Ashland) (the northern segment), of the 42 mile segment. At a hearing held in January 1978 the Administrative Law Judge (ALJ) assigned to the hearing granted the proposed amendment over the protest of one of the petitioners.
On April 11, 1978 the ICC published ICG's amended system diagram map which identified only the 26.5 mile segment between Mason City and Ashland as the subject of the pending abandonment application. 43 Fed.Reg. 15212, 15216. Three days later the ALJ issued his initial decision finding that the public convenience and necessity permitted the abandonment of the 26.5 mile segment of railroad.
Petitioners appealed the ALJ's decision. Division 1 of the ICC adopted the ALJ's findings and conclusions with minor modifications and denied petitioners' objections. In a decision dated January 31, 1979 the entire ICC denied the petitions for review.
Petitioners contend that the ALJ did not have authority to permit the amendment by ICG of its abandonment application. Petitioners point to an ICC regulation effective at the time of this application*fn3 governing Subpart C applications, 49 C.F.R. § 1121.35 (1976 ed.), which provided in pertinent part:
Partial withdrawal. Where there is significant and material public objection as to only a part of the line being proposed for abandonment, the applicant, with the consent of the protestants, may request that, that part of the application be withdrawn, and that a certificate be issued permitting abandonment of the remainder of the line sought to be abandoned.
While petitioners concede that ICG's application was filed under Subpart B, not Subpart C, they contend that the absence of an explicit amendment provision under Subpart B, and the Subpart C provision precluding amendment without consent of protestants mean that no amendment is permitted consistent with ICC regulations for Subpart B applications. We disagree.
The ICC Rules of Practice permit amendments to any "pleading" in the discretion of an "officer." 49 C.F.R. §§ 1100.18, 1100.66(a). The term "pleading" is defined to include an application, id. § 1100.5(e), and the term "officer" is defined to include an administrative law judge, id. § 1100.5(g). Thus, as a general matter, amendments to applications are permitted in the discretion of an ALJ.
Amendments to Subpart C abandonment applications, however, are only permitted with the consent of protestants. Subpart C is a short form application to be utilized when the applicant does not anticipate significant and material objection. If there is no significant objection to the application, the ICC does not require that the voluminous material normally required be submitted with an abandonment application. If it later turns out that there is objection to the Subpart C short form application, the applicant has three options. It might (1) dismiss the application, 49 C.F.R. § 1121.35(c)(1) (1976 ed.), (2) withdraw the application and file a long form application under a different Subpart, id. § 1121.35(b)(1); or (3) where there was objection to only a part of the line proposed for abandonment, the applicant could, with the consent of the objectors, request withdrawal of that part and request that a certificate ...