On Petition for Review of Orders of the Surface Transportation Board
Before: Ginsburg, Chief Judge, Henderson, Circuit Judge,
and Williams, Senior Circuit Judge.
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge
The petitioners, subsidiaries of Guilford Transportation Industries, Inc., seek review of the decision by the Surface Transportation Board (STB or Board) to authorize the National Railroad Passenger Corporation (Amtrak) to operate trains at speeds of up to 79 mph over a 78–mile rail line owned by Guilford. Guilford claims the STB orders usurp the jurisdiction of the Federal Railroad Administration (FRA) because they limit the safety measures Guilford may implement on the line. Because Guilford has demonstrated no injury-in-fact, we conclude that it lacks standing and that the court therefore lacks subject-matter jurisdiction over this action.
The track at issue runs between Plaistow, New Hampshire and Portland, Maine and constitutes a portion of Amtrak's proposed passenger route between Boston and Portland. In the mid–1990s Guilford, Amtrak and the Northern New England Passenger Rail Authority*fn1 negotiated the terms for Amtrak's use of the line. On March 19, 1997 Amtrak filed an application with the STB, pursuant to 49 U.S.C. § 24308(a)(2),*fn2 to set certain contractual terms on which the parties had been unable to agree. The STB resolved the disputed issues and set the terms and compensation for Amtrak's access to Guilford's rail system. Application of the National Railroad Passenger Corp. Under 49 U.S.C. § 24309(A), STB Finance Docket No. 33381, Dec. No. 28270 (May 28, 1998). Under the Board's decision Amtrak was to operate trains over Guilford's track at a maximum speed of 60 mph as the parties had agreed.
On December 11, 1998 Amtrak filed a petition to amend the agreement to allow trains to operate at speeds up to 79 mph. The Board, after consulting the FRA and reviewing the latter's analysis, determined that installation of 115–pound continuous welded rail on the line was adequate for safe operation of trains at speeds up to 79 mph ''provided that the line is rehabilitated to and maintained at the levels indicated in the FRA's analysis.'' Nat'l R.R. Passenger Corp. -- Petition for Declaratory Order -- Weight of Rail, STB Finance Docket No. 33697, Dec. No. 30426, at 1 (Oct. 21, 1999) ( Weight of Rail I ).
After the parties reached an impasse over how, when and how often to test the track for compliance with FRA safety standards, Amtrak filed a motion for clarification, proposing specific testing equipment and a specified testing schedule. The Board, after once again soliciting comment from the FRA, decided it ''agree[d] with FRA that Amtrak's proposed approach is both reasonable and practical.'' Nat'l R.R. Passenger Corp. -- Petition for Declaratory Order -- Weight of Rail, STB Finance Docket No. 33697, Dec. No. 31731, at 5 (June 28, 2001) ( Weight of Rail II ). Accordingly, the Board ordered that ''testing in the manner described by Amtrak TTT should be conducted soon after rehabilitation of the line is completed'' and that, if the testing demonstrated the track complied with the requirements set out in Weight of Rail I, ''then no further track modulus testing will be required, provided that the line is maintained to FRA Class 4 standards, the line is subject to routine FRA-mandated track safety inspections, and the line is periodically inspected by a track geometry car, as described by Amtrak.'' Id. at 7.
Although subsequent testing showed the rail met the requirements of Weight of Rail II, Guilford refused to accept the test results or to permit Amtrak to operate at the authorized speed. Consequently, Amtrak filed a petition for further clarification requesting that the Board order Guilford to permit Amtrak to operate its trains at speeds up to 79 mph. The STB, after reviewing two sets of comments submitted by the FRA, ordered:
Subject to FRA's track safety requirements, Guilford must allow Amtrak to operate over the line at issue at speeds of up to 79 mph.
Nat'l R.R. Passenger Corp. -- Petition For Declaratory Order -- Weight of Rail, STB Finance Docket No. 33697, Dec. No. 33697, at 5 (Jan. 31, 2003) (emphasis added) ( Weight of Rail III ). The STB further ordered that the proceeding be discontinued.
On February 20, 2003 Guilford filed a petition for reconsideration asking the STB for ''clarification that nothing in Weight of Rail III is intended to render the [FRA's] regulatory framework for railroad safety inapplicable to Amtrak's operation over Guilford's line TTT and that FRA, rather than this Board, has jurisdiction over any safety-related issues that might arise in respect of such operation.'' The STB denied the petition, concluding that its ''decision in Weight of Rail III was clear.'' Nat'l R.R. Passenger Corp. -- Petition For Declaratory Order -- Weight of Rail, STB Finance Docket No. 33697, Dec. No. 33412, at 1 (Mar. 19, 2003).
Guilford then filed a petition for review of Weight of Rail III and the denial of its ...