On Petition for Review of Orders of the Interstate Commerce Commission.
Cummings, Chief Judge, Posner, Circuit Judge, and Fairchild, Senior Circuit Judge.
This petition to review orders of the Interstate Commerce Commission allowing the abandonment of two railroad lines presents the following question: does the Staggers Rail Act of 1980 allow the Commission to authorize a protested abandonment without an investigation, even though the protestants allege facts material to determining whether the abandonment is consistent with the statutory criterion of public convenience and necessity, 49 U.S.C. § 10903(a)?
On April 8, 1982, the Burlington Northern Railroad filed with the ICC a notice of intent to abandon a six and one-half mile long branch line in rural Illinois, and on May 1 it filed its formal application to abandon. The application showed minimal traffic on the line -- 58 carloads of freight in all of 1977, 65 in 1978, 49 in 1979, 133 in 1980, and only 47 in 1981, with the blip in 1980 being due to a fluke shipment of 85 carloads of corn cobs. Part of the line had been closed recently because an old wooden bridge was considered unsafe. The bridge would cost $136,900 to replace. But the Burlington's net earnings from operations on the line had been only $312 in 1981, while if it scrapped the line and invested the proceeds it would, it estimated, earn annual interest of $93,771. Thus, quite apart from the cost of replacing the bridge, it would cost the railroad more than $90,000 a year, in lost earnings from alternative uses of the assets at present committed to the line, to keep it open.
On June 1 a protest was filed by a representative of a railroad union, two shippers, and the Illinois Commerce Commission (which, we are told, automatically joins any shipper protest against abandonment of a railroad line in Illinois). The protest asked the Commission to order an investigation. Three grounds were advanced. The first was that the Burlington's own figures showed that the line was profitable. The second was that $136,900 was a minimal sum for bridge work, and any way the protestants "consider the bridge acceptable for operating purposes without such an expenditure, and the veracity of the $136,900 sum is challenged," along with the timing: the bridge had been closed less than two weeks before the filing of the notice of intent to abandon. Third, the protestants disagreed that the substantial shipment of corn cobs in 1980 had been a fluke: "Our information is . . . that if the line is returned to service the [corn cob] traffic is likely to return to rail."
The Commission refused to conduct an investigation, and on July 8 issued an opinion authorizing the abandonment of the line. The opinion revised the Burlington's 1981 net earnings from operations on the line upward to $7,188 and its opportunity costs (the earnings foregone by keeping the line in service) downward to $83,190, but these adjustments still left a big annual loss. The Commission rejected the protestants' contentions with regard to the bridge because "they did not present any supportive data for their allegations. In the absence of supporting rebuttal by protestants, we accept BN's evidence that the bridge needs to be replaced, and that the cost of replacing it would be $136,900." It rejected their contention about the corn cob traffic on the same ground: "Protestants . . . do not document or give any supporting evidence for their position. . . ." The Commission also noted that the shipper of the corn cobs was not opposing abandonment of the line.
The other order before us involves the abandonment of a line 19 miles long owned by the Illinois Central Gulf Railroad. The application to abandon was filed a day before the Burlington's application. The profit and opportunity cost figures are almost identical to those of the Burlington's line; and corresponding to the $136,900 that the Burlington would have to spend to replace the wooden bridge is the $372,000 that the Illinois Central would have to spend to rehabilitate its line after years of deferred maintenance. The Illinois Commerce Commission filed a protest. No shippers joined, and labor filed its own protest. The protestants requested an investigation and again advanced three grounds. First, in exchange for the shippers' not opposing the abandonment the Illinois Central had agreed to retract a $625 per car surcharge that it claimed the Staggers Act entitled it to impose on the shippers because there was so little traffic on the line; the protestants questioned whether the railroad had really been entitled to impose such a stiff surcharge. Second, the posted speed limit on the line (20 m.p.h.) was already higher than the standard speed limit for first-class railroads (10 m.p.h.), so rehabilitation of the track was unnecessary. Third, the ICC had denied the Illinois Central's application to abandon a portion of this very line in 1979.
The Commission refused to order an investigation, and on July 9 issued an opinion authorizing abandonment.It commended "the private agreement alleged to have been made between the shippers" and the Illinois Central to eliminate shipper opposition: "Both the railroads and shippers profit from a voluntary negotiated settlement of their differences, and the public interest is thereby served." It agreed with the protestants "that the posted speed limit on the line exceeds the FRA Class I standard for the most part, but protestants do not challenge applicant's evidence showing that the line is in only fair to poor condition. Although maintenance could presumably be deferred for another year or more, eventually the railroad will be required to make substantial outlays for rehabilitation and maintenance." Finally the Commission noted that the railroad's previous attempt to abandon a portion of the line had "generated substantial shipper opposition and, in general, a much different record from this one."
We begin with two arguments pressed by the government with great, but misdirected, energy -- that an order refusing to conduct an investigation is not appealable and that in any event it is not judicially reviewable. Whether or not it is appealable has no significance. The petitioners are appealing not the orders declining to conduct investigations but the order -- conceded to be appealable -- allowing abandonment, orders they contend are fatally flawed because the Commission refused to investigate the factual allegation in the protests. If the refusal to investigate deprived the Commission of an adequate evidentiary basis for authorizing abandonment, as the petitioners contend, the orders authorizing abandonment cannot stand whether or not the petitioners could have taken the Commission to court when it decided not to investigate, without waiting for the Commission to issue final orders in the abandonment proceedings.
On whether orders to investigate are judicially reviewable we have no quarrel with the general proposition advanced by the government that judicial review of an administrative agency's decision not to allocate resources to a particular investigation is exceedingly limited. Rockford League of Women Voters v. United States Nuclear Regulatory Comm'n, 679 F.2d 1218, 1222 (7th Cir. 1982). An agency normally violates no specific legislative mandate when it decides to put its investigative resources into one area rather than another. And even if the general mandate that every agency has, explicitly or implicitly, to advance the public interest provides a basis in principle for invalidating an agency's choice of where to put its money, the theoretical and practical objections to a court's second-guessing a managerial rather than legal judgment are formidable. But these cautionary notes are out of place here. "Investigation" is a misnomer in the abandonment context. The Commission does no investigating. All that the petitioners want is for the Commission to let them conduct their own investigations into the circumstances of the proposed abandonments and lay the results of those investigations before the Commission, and for the Commission then to weigh the evidence thus submitted against the railroads' evidence in deciding whether the proposed abandonments are consistent with the public convenience and necessity. Agency-inaction cases such as Rockford League of Women Voters are therefore inapplicable, the question here being whether the Commission improperly denied the petitioners the full evidentiary hearing they sought.
Between 1920, when Congress first gave the ICC authority over abandonments (see Transportation Act of 1920, § 402, 41 Stat. 477-78), and 1972, the Commission's practice was to order an investigation in every case where abandonment was protested, although the statute said nothing about when an investigation was required. Interstate Commerce Act, 49 U.S.C. §§ 1(18)-(20) (1952). In 1972 the Commission adopted a presumption which was upheld in Commonwealth of Pennsylvania v. United States, 361 F. Supp. 208 (M.D. Pa.), aff'd per curiam, 414 U.S. 1017, 38 L. Ed. 2d 310, 94 S. Ct. 440 (1973), that abandonment should be permitted without investigation if the line to be abandoned had carried fewer than 34 carloads in the previous year. But in 1976 Congress amended the Interstate Commerce Act to require the Commission to conduct an investigation in every abandonment case where it was petitioned to do so. Railroad Revitalization and Regulatory Reform Act of 1976 ("4-R Act"), § 802, 90 Stat. 128, amending 49 U.S.C. § 1a(3). Four years later, as part of the comprehensive "deregulatory" program of the Staggers Act, Congress eliminated this provision and instead provided that "the Commission shall . . . determine whether an investigation is needed to assist in determining what disposition to make of the application [to abandon]." 49 U.S.C. § 10904(c)(1).
Congress made this change in conjunction with placing tight time limits on abandonment proceedings. The Staggers Act creates three categories of abandonment: unprotested applications, which the Commission must grant within 45 days; protested applications that the Commission decides not to investigate, in which the Commission has 75 days from the filing of the application to decide whether to authorize abandonment; and protested applications that are investigated, in which an initial decision (i.e., one subject to appeal within the Commission) is due within 165 days. 49 U.S.C. §§ 10904(b), (c)(2), (3). The Act allows 30 days from the date of the application for protests to be filed, and the Commission has 15 days after that to decide whether to investigate. If it decides not to investigate, it has another 30 days in which to act on the application (30 15 30 = 75). 49 U.S.C. §§ 10904(c)(1), (2).
The Commission's regulations require that a railroad give 15 days' notice to shippers and others before filing its application to abandon, 49 C.F.R. § 1152.20(b); that the application be verified and contain the railroad's entire case for abandonment, § 1152.22; and that any protest state reasons for the protestant's opposition, present rebuttal of the applicant's case, and support any factual allegations by affidavit, § 1152.25. But neither the statute nor the regulations contain criteria for when the Commission shall order an investigation. All that the regulations state on this score, parroting the statute, is that "protests will be considered by the Commission in all proceedings in determining whether an investigation is needed to assist in determining what disposition to make of the application." § 1152.25(a)(3). See also § 1152.26(b). When it adopted the regulations, the Commission stated, none too informatively, "The decision to investigate a protested abandonment application is now wholly within our discretion. In making the decision whether to investigate, we will consider all relevant factors on a case-by-case basis. . . . We see no ...