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06/21/88 New Mexico Navajo Ranchers v. Interstate Commerce

June 21, 1988

NEW MEXICO NAVAJO RANCHERS ASSOCIATION, ET AL., PETITIONERS

v.

INTERSTATE COMMERCE COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS, STAR LAKE RAILROAD COMPANY, ET

AL., INTERVENORS. NAVAJO TRIBE OF INDIANS, PETITIONER

v.

INTERSTATE COMMERCE COMMISSION AND UNITED STATES OF



Edwards, Silberman and Williams, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

America, Respondents, Star

Lake Railroad Company,

et al.,

Intervenors

Nos. 85-1071, 85-1072 1988.CDC.252

Petitions for Review of an Order of the Interstate Commerce Commission.

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILLIAMS

For over a decade, members of the Navajo Tribe have attempted to block the construction of a railroad in the coal-rich San Juan Basin of northwestern New Mexico. The fight stems from concern that the railroad -- and the coal extraction that it would make possible -- would adversely affect the religious practices, cultural values and economy of the Navajo Indians living in the area. In 1982, after prolonged skirmishing, the Navajos lost a key round when the Interstate Commerce Commission granted two railroad companies -- the Star Lake and the Atchison, Topeka and Santa Fe -- authority to construct and operate the railroad. This court reviewed that grant of authority in New Mexico Navajo Ranchers Ass'n v. ICC, 226 U.S. App. D.C. 248, 702 F.2d 227 (D.C. Cir. 1983) (Navajo I), and remanded to the ICC for further consideration. Concluding that the Commission adequately responded to the original concerns, we affirm its renewed decision to authorize construction of the Star Lake line. I. BACKGROUND

In 1976 Star Lake and Santa Fe filed an application with the ICC pursuant to 49 U.S.C. § 10901 (1982), seeking authority to construct and operate an 82-mile rail line near the Navajo reservation in the San Juan Basin. The former proposed to construct the line, the latter to operate it. The Commission granted the requested authority in 1981, then reopened it to consider supplemental evidence, and in 1982 affirmed the original outcome.

The New Mexico Navajo Ranchers Association, certain individuals, and local Navajo communities petitioned for review of the ICC decision. In Navajo I, we reversed the grant of authority. We held that in carrying out its task of determining whether "the present or future public convenience and necessity" requires or permits the construction of an additional rail line, 49 U.S.C. § 10901 (a), the ICC "must consider whether the construction 'would subject the communities directly affected to serious injury . . . .'" 702 F.2d at 232 (quoting Colorado v. United States, 271 U.S. 153, 169, 70 L. Ed. 878, 46 S. Ct. 452 (1926)). We specifically required the ICC to consider, in its analysis of the public convenience and necessity, whether construction of the Star Lake line would comply with the federal policies seeking to (1) protect sacred and historic Indian sites and (2) avoid unnecessary disturbance of the Indians' quiet possession of their land and of the Navajo Tribe's status as a "quasi-sovereign" nation. We also found that the Commission acted arbitrarily when it failed to require Santa Fe to submit evidence of its expected operating revenues and expenses.

On remand, the ICC permitted intervention by the Navajo Tribe. On December 7, 1984, the ICC affirmed its earlier grant of authority, subject to certain conditions designed to minimize damage to sites of religious significance to the Indians. The same month the Association petitioned the ICC to reopen its decision to consider new financial evidence. In December 1985 the Commission granted the request and on April 20, 1987 reaffirmed its grant of construction and operation authority to the railroads.

We note here a technical difficulty in our jurisdiction. While the Association's petition to reopen was pending, it filed this petition for review. This court placed the action in abeyance pending the agency's decision on reopening. Our decision to place it in abeyance seems necessarily to have rested on an assumption that this court secured jurisdiction despite the premature filing, an assumption of questionable validity. See Western Union Telegraph Co. v. FCC, 249 U.S. App. D.C. 112, 773 F.2d 375, 377 (D.C. Cir. 1985) (dismissing appeal filed prematurely); Public Citizen v. NRC, 845 F.2d 1105 (D.C. Cir. 1988) (same). As the legal premise of the abeyance order is the law of the case, and that order is surely the basis for petitioners' not refiling when the Commission action ultimately became final, we treat the Commission's final decision as reviving the original petition.

We now review to determine whether the ICC's final decision on remand satisfactorily conformed to our directions in Navajo I. ...


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