On Petition for Review of an Order of the Interstate Commerce Commission.
Cummings, Chief Judge, Pell, Circuit Judge and Grant*fn* Senior District Judge.
GRANT, Senior District Judge.
This is an appeal from the decision of the Interstate Commerce Commission (hereinafter ICC) abandoning a rail line which extends for 76 miles between Assumption and Branch Junction, Illinois. Petitioners, the State of Illinois, the Illinois Commerce Commission, New Green Soil Service, Inc., Harbach, Nixon and Willson, Inc., Patrick Simmons and Bi-Petro Refining Company, Inc., raise three issues on appeal:
1. Whether the ICC properly handled administrative appeals from the Review Board decision granting the abandonment application of the Illinois Central Gulf Railroad (hereinafter I.C.G.);
2. Whether the ICC's refusal to allow discovery of certain bridge traffic information constitutes reversible error;
3. Whether the material findings of the ICC are arbitrary and capricious?
I.C.G. railroad operates a line which extends through south central Illinois. On June 11, 1980, the I.C.G. filed an application to abandon this rail line. The ICC rejected the initial abandonment application because I.C.G. failed to include data concerning bridge or overhead traffic pursuant to rail line abandonment regulations 49 C.F.R. §§ 1121.32(c) (5) and (d) (1981). I.C.G. subsequently successfully petitioned the ICC to waive the requirement of bridge traffic information.
The ICC referred the abandonment application without the bridge traffic information to a Review Board under the Agency's modified procedure. After examination of the exhibits, verified statements and arguments, the Review Board granted I.C.G.'s abandonment application. In its decision, the Review Board determined that the rail line had experienced avoidable losses of $329,928 in 1978 and $239,676 in 1979. Losses for the base year (October 1, 1979 through September 30, 1980) were lower, $47,635 and for the first nine months of 1980, the line showed a marginal profit of $1,340. The Review Board determined, however, that this decrease in operating losses in 1979 and 1980 was partly due to the deferral of maintenance on the line by I.C.G. Additionally, the Review Board determined that the line needed extensive rehabilitation because of the deferred maintenance and that I.C.G. would have to earn $455,597 to avoid incurring an opportunity cost by having valuable assets tied up in nonproductive use.
The Review Board balanced the burden the rail line imposed upon interstate commerce against the harm to and need of the affected communities and shippers. While abandonment would cause some financial loss and inconvenience to the shippers, such loss did not justify continued operation of an unprofitable line. Alternate transportation was available and being used. The abandonment would have little or no impact upon rural and community development and would have no significant environmental or energy effects. The Review Board determined that the need for the line did not outweigh the burden continued operation of the line would impose upon I.C.G. and interstate commerce.
On August 17th and 18th, 1981, petitioners Growmark, Inc., the People of the State of Illinois, the Illinois Commerce Commission and Patrick Simmons filed appeals to the ICC from the Review Board decision granting the abandonment. On August 28, 1981, the ICC determined that it would not hear the appeals and summarily affirmed the Review Board's determinations. Petitioners bring this action to review the ICC's determinations.
"The scope of review of ICC orders is very narrow." Bloomer Shippers Association v. I.C.C., 679 F.2d 668, 672 (7th Cir. 1982). The determinations of the ICC will be upheld if they are supported by substantial evidence and are not arbitrary or capricious. 5 U.S.C. §§ 706(2) (A), (E) (1976); Farmland Industries, Inc. v. United States, 642 F.2d 208, 210 (7th Cir. 1981). Where there is substantial support in the record for the Commission's findings, it is not the court's function "to substitute its own conclusions for those which the Commission had fairly drawn from such findings." Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 42 L. Ed. 2d 447, 95 S. Ct. 438 (1974) citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971); Illinois Central Railroad Co. v. Norfolk and Western Railway Co., 385 U.S. 57, 69, 17 L. Ed. 2d 162, 87 S. Ct. 255 (1966).
In a railway abandonment proceeding, the ICC determines whether abandonment is consistent with "public convenience and necessity." 49 U.S.C.A. § 10903(a) (Supp. 1982), Farmland Industries, Inc., 642 F.2d at 210. The ICC traditionally applies a balancing test to weigh "the interests of those now served by the present line on the one hand and the interests of the carrier and the transportation system on the other." Chicago and Northwestern Transportation Co. v. Kalo Brick and Tile Co., 450 U.S. 311, 321, 101 S. Ct. 1124, 67 L. Ed. 2d 258 (1981), citing Purcell v. United States, 315 U.S. 381, 384, 86 L. Ed. 910, 62 S. Ct. 709 (1942). Once the Commission has struck that balance, its conclusion is entitled to considerable deference. 315 U.S. at 385. An ICC decision will not be reversed on review if there is a "rational connection between the facts found and the choice made." Bowman Transportation, Inc., 419 U.S. at 285, citing Burlington Truck Lines v. United States, 371 U.S. 156, 168, 9 L. Ed. 2d 207, 83 S. Ct. 239 (1962).
II. Administrative Appeals
On August 17 and 18, 1981, petitioners filed appeals to the ICC seeking review of the Review Board's determination granting I.C.G.'s abandonment application. At the time I.C.G. filed its abandonment application, a federal statute (49 U.S.C.A. § 10327(f) (1) (Supp. 1982)) mandated that the ICC review the determination of the Review Board. Shortly thereafter and while the abandonment application was pending, the Staggers Act (Public L. No. 96-448, 94 Stat. 1895 (1980)) became effective making review before the ICC discretionary, not mandatory. Petitioners allege that the ICC utilized "pre-Staggers Act" law during the majority of the case but have used the new "discretionary review provisions" of the Staggers Act to deny them administrative review of the Review Board decision.
We note that an appellate court must apply the law in effect at the time it renders its decision unless such application would work a manifest injustice or there is statutory direction or legislative history on the contrary. Bradley v. Richmond School Board, 416 U.S. 696, 711, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974). The Conference Report indicates that Congress intended that the rule of Bradley apply, see generally H.R. Con. Rep. No. 96-1430, 96th Cong., 2d Sess. 142 (1980) reprinted in 1980 U.S. Code Cong. & Ad. News 4174, and petitioners have failed to demonstrate they would suffer manifest injustice even if the Staggers Act did apply. However, we need not discuss the applicability of the Staggers Act since we determine that petitioners received an adequate review under 49 U.S.C.A. 10327(f) (1) (Supp. 1982). (pre-Staggers Act).
Petitioners' argument is, in fact, that the ICC review of the Review Board determination was too cursory for their satisfaction. However, the pertinent federal statute provides:
An initial decision may be reviewed on the record on which it is based or by a further hearing. . . .
49 U.S.C.A. § 10327(f) (2) (Supp. 1982). (Emphasis added).
Here, the ICC determined that a review on the record was sufficient; there was no need for a further hearing. The ICC decision recites the issues raised in the appeals and its determination that the Review Board correctly rejected the claims.
In Trailways of New England, Inc. v. United States, 235 F. Supp. 509 (D.D.C. 1964), the District Court held that when the ICC sits in an appellate capacity, it is not required to paraphrase or restate a Review Board report. In Trailways, as in this case, the ICC sufficiently informed the plaintiffs as to the basis for their determinations. ...