AB-43 (SUB-NO. 31)

ILLINOIS CENTRAL GULF RAILROAD COMPANY—ABANDONMENT-BETWEEN MASON CITY AND ASHLAND, IL

Decided January 31, 1979

Petitions by protestants, the State of Illinois, Illinois Commerce Commission, and John W. McGinness and by Menard Service Company and FS Services, Inc., for administrative review of the decision of the Commission, Division 1, served October 31, 1978, and for a determination that the proceeding involves a matter of general transportation importance. Petitions denied.

Robert D. Kelly for applicant.

Hercules F. Bolos, James F. Eberwine, Robert L. Graves, Gordon P. MacDougall, William J. Scott, and James E. Weging for protestants.

DECISION

This decision is based upon consideration of the evidence of record, including (a) the initial decision of an Administrative Law Judge served April 14, 1978, which grant the abandonment, (b) the decision of the Commission, Divison 1, which adopted the findings of the Administrative Law Judge, with minor modifications and denied the exceptions of the petitioners, (c) the petitions by FS Services, Inc., and Menard Service Company and by the State of Illinois, Illinois Commerce Commission and John W. McGinness seeking administrative review of the decision of division 1 and for a determination that this proceeding involves a matter of general transportation importance, and (d) the reply to the petitions filed by the Illinois Central Gulf Railroad Company (ICG). By decision of the Commission, Chairman O'Neal, entered November 21, 1978, the effective date of the decision of division 1 was stayed pending the disposition of the petitions.

The significant issues are whether (1) the alleged desire of the Southern Railway System to acquire the ICG should cause this Commission to delay the issuance of a final order, (2) the

Administrative Law Judge permitted the proper line of questions at the hearing, (3) division 1 considered the request that the initial decision be modified to condition the abandoment upon the ICG and the Chicago & Illinois Midland Railroad reaching an agreement to continue service to Petersburg, IL, (4) the division erred in its consideration of the applicant's financial data supporting the abandonment, (5) the division adequately considered the relationship between the line to be abandoned and the applicant's other lines in the area, especially the "southern segment" of the line in question which was deleted prior to the hearing, and (6) the division properly imposed the employee protective conditions in Oregon Short Line R. Co.-Abandonment-Goshen, 354 I.C.C. 584 (1978).

The petitions for administrative review are denied and the involved proceeding does not contain any issues of general transportation importance. The unsupported allegation that Southern desires to acquire ICG, without any statement from Southern itself, will be given little weight and will not be discussed further. The line of questioning permitted by an Administrative Law Judge at a hearing is normally within the discretion of the Administrative Law Judge. The line of questioning pertaining to potential traffic over the line is conjecture at best and the refusal to allow the line of questions is a matter within the discretion of the Administrative Law Judge. No evidence has been submitted that would indicate that the Administrative Law Judge abused that discretion.

In its decision, the division attempted to resolve the major issues under discussion. The petitioners had requested that the initial decision be modified modified so that the abandonment would be conditioned to require ICG and the Chicago & Illinois Midland Railroad to agree to continue service to Petersburg, IL. If the division failed to discuss the request, then the division may have deemed this issue not a significant matter. The Chicago & Illinois Midland Railroad is not a party to this proceeding and the Commission could not order it to enter into an agreement with ICG. We will not impose the type of condition in question without the agreement of the railroad involved. Moreover, the petitioners have not submitted adequate justification for the imposition of such a condition.

The petitioners argue that the abandonment should be denied because the Administrative Law Judge and division 1 did not accurately indicate the exact condition of the line in terms of operating costs, avoidable losses, and rehabilitation costs. Such factors are not exact figures that can be pinpointed. The

Administrative Law Judge has the duty and discretion to consider the financial data submitted by the applicant as well as the comments of the protestants and then exercise his judgment to arrive at a determination of the weight to be given to the applicant's financial data. Nothing in the record indicates that the Administrative Law Judge abused his discretionary function in any manner. The petitioners have not submitted cogent arguments or comments concerning the applicant's financial data that would move us to reverse the findings of the Administrative Law Judge in terms of the disposition of the abandonment in question.

Contrary to the petitioners' argument, we see no adverse impact upon the petitioners due to the amendment of the abandoment application to seek abandoment of less trackage than was originally sought. Whatever arguments the petitioners may have against the abandonment of the remainder of the line, as originally filed, will be carefully and conscientiously evaluated if abandonment of that portion is sought. This line of reasoning also applies to the proposed abandonments of other lines of trackage in the same area.

The division imposed the employee protective conditions in Oregon, supra, which were customarily imposed at the time the division's decision was rendered.' The petitioners have not put forth any reason for the imposition of different conditions. However, since the Oregon proceeding is still actively being considered, the imposition of the Oregon conditions in this proceeding should be worded to indicate the conditions as finally determined by the Commission.

This decision does not significantly affect the quality of the human environment.

It is ordered:

(1) The petitions are denied.

(2) The employee protective conditions imposed in this proceedings shall be those in Oregon Short Line R. Co.-Abandonment-Goshen, 354 I.C.C. 584 (1978), as finally determined by this Commission.

(3) The decision served October 31, 1978, shall become effective 30 days from the date this decision is served.

The conditions imposed were those in accordance with the Oregon Short Line decision at 354 L.C.C. 584 (1978).

360 I.C.C.

Provisions in joint use contract concerning certain payments for maintenance and operating expenses, as well as dispatching expenses, found not to be unjust, unreasonable, or discriminatory. Complaint dismissed.

Stuart F. Glassner for complainant railroad.

Daniel L. Johns and David A. Nicoll for defendant railroad.

DECISION

BY THE COMMISSION:

Chicago and North Western Transportation Company (C&NW) filed a complaint and petition to reopen the proceeding docketed in Finance Docket No. 15354. In its petition C&NW alleges that as a result of the terms of the joint use contract approved by the Commission in that proceeding, the Peoria and Pekin Union Railway Company (P&PU) is engaging in unreasonable and discriminatory practices in violation of 49 U.S.C. 10701, 10702, and 10703 [formerly section 1(4) of the Interstate Commerce Act (act)], 49 U.S.C. 10102 and 11121 [formerly sections 1(10) and 1(11) of the act], and 49 U.S.C. 10701 and 10742 [formerly section 3(4) of the act.'] By order served October 18, 1978, the Commission, Alan M. Fitzwater, Acting Director, Office of Proceedings, reopened the proceeding based on the averments in the complaint and petition and set the matter for handling under modified procedure. Subsequently, verified statements were timely filed by C&NW in support of its position, by P&PU in opposition, and by C&NW in reply. We will now consider the matter.

'For purposes of clarity and ease of reference to the involved proceedings, the former sections of the act as well as the current statutory cites will be utilized throughout this decision.

PRELIMINARY MATTERS

By a separately filed motion the P&PU seeks to strike certain material in C&NW's opening statement because of an alleged lack of foundation evidence to support the attacked conclusions. In its reply, C&NW states that it has no objection to the deletion of the material as the P&PU includes similar information in its own statements. In these premises we will grant the motion to strike.

BACKGROUND

The following brief summary of the facts and circumstances giving rise to this proceeding is necessary for an adequate understanding of the issue involved. More detailed discussions of the status of the P&PU and its relationships with various carriers including the C&NW can be found in several previous cases. See Minneapolis & St. Louis R. Co. v. Peoria & P. Union Ry. Co., 68 I.C.C. 412 (1922); Switching Charges at Peoria, 77 I.C.C. 43 (1922); Peoria & P. U. Ry. Co. Rates, Regulations, and Practices, 93 I.C.C. 3 (1924); Peoria & P. U. Ry. Co. Rates, Regulations, and Practices, 115 I.C.C. 469 (1926); and Peoria & P. U. Ry. Co. Rates, Regulations, and Practices, 118 I.C.C. 127 (1926).

The P&PU is a terminal switching railroad engaged in providing (1) switching operations in connection with industries located on its tracks, (2) interterminal switch moves with line-haul carriers in the Peoria-Pekin switching districts, and (3) the performance of the above as well as all terminal services for its five "tenant" lines which include the C&NW. The services described in (1) and (2), but not the full range described in (3), are provided to several nontenant railroads. The stock of the P&PU is owned by four railroads all of which are also "tenant" lines. Therefore, the C&NW is both an owner and a tenant of the defendant.2

In this regard, the C&NW has a contract with the P&PU for the use of its tracks and facilities. This contract was originally

The four owner lines are as follows:

The Illinois Central Gulf Railroad Company (IC), which holds 46.86 percent of the stock; Conrail, which holds 25.64 percent of the stock; the Norfolk & Western Transportation Company (N&W), which owns 12.50 percent of the stock; and complainant, which owns 12.50 percent of the stock. These four carriers plus the Chicago & Illinois Midland Railway Company (C&IM) are "tenant" lines all of which maintain agreements withe P&PU for joint use of the Peoria facilities. In addition, the P&PU provides certain limited services including those named in (1) and (2) above for the following "nontenant" lines: Chicago, Rock Island and Pacific Railroad (Rock Island), Burlington Northern (BN), Toledo, Peoria, and Western (TP&W), Santa Fe, Peoria Terminal Company (PT), and Illinois Terminal Railroad Company (ITC).