AB-18 (SUB-NO. 21) CHESAPEAKE AND OHIO RAILWAY COMPANY-ABANDONMENT OF CAR FERRY SERVICE ACROSS LAKE MICHIGAN BETWEEN LUDINGTON, MI, AND KEWAUNEE, MILWAUKEE AND MANITOWOC, WI Decided June 21, 1979 Public convenience and necessity found to permit abandonment of car ferry operations across Lake Michigan between Ludington, MI and Milwaukee, WI, subject to specified conditions. Application denied in all other respects. Harry N. Babcock and Albert W. Laisy for the applicant. Warren Boggs, James F. Bromley, John W. Claire, John Clarke, Jr., Glen L. Derge, Daniel S. Farwell, Edward D. Friedman, Mark Harmon, Steven J. Kalish, Carl Levin, Donald Macleay, William G. Mahoney, Michael E. Perino, Harold A. Ross, James F. Schouman, James L. Smith, Daniel J. Sweeney, Max Sykalski, Robert J. Taube, and John Duncan Varda for protestants. Charles W. Chapman and Daniel M. O'Donoughe for intervenors. Richard I. Chais for intervenor Interstate Commerce Commission, Section of Energy and Environment. DECISION BY THE COMMISSION: Exceptions to the initial decision of the Administrative Law Judge were filed by applicant Chesapeake and Ohio Railway Company (C&O) and by the following protestants: National Maritime Union (NMU), city of Ludington, State of Michigan, Michigan Department of State Highways and Transportation, jointly, city of Milwaukee, Board of Harbor Commissioners, jointly, United Transportation Union (UTU), National Maritime Union, Great Lakes Licensed Officers Organization, jointly, Interstate Commerce Commission, Bureau of Investigations and Enforcement, and E. Michael McCann. Replies to exceptions have been filed by applicant, Railway Labor Executives' Association, Local 47, Masters, Mates, and Pilots, jointly, city of Ludington, Fort Howard Paper Company, Green Bay and Western Railroad Company and jointly by Wisconsin Association of Manufacturers and Commerce, North Central Paper Traffic Conference, and Wisconsin Paper and Pulp Manufactuers Traffic Association. Motions to stay the effective date of abandonment have been filed by the city of Milwaukee and the National Maritime Union. A motion to reject applicant's reply to exceptions has been made by UTU and the city of Ludington. Applicant filed a reply to this motion. By application filed March 18, 1975, C&O seeks authority under 49 U.S.C. 10901, formerly section 1(18) of the Interstate Commerce Act, to abandon its Lake Michigan car ferry service between Ludington, MI, on the one hand, and, on the other, Kewaunee, Manitowoc, and Milwaukee, WI. The C&O presently operates three vessels which perform railroad car ferry service between Michigan and three Wisconsin ports. The car ferry vessels also carry motor vehicles and passengers in addition to railroad freight cars. The water distances between the described port cities are as follows: Ludington to Kewaunee, 61 miles; Ludington to Manitowoc, 60 miles; and Ludington to Milwaukee 97 miles. Related authority is also sought to abandon approximately 11.04 miles of rail yard and terminal track including associated structures applicable to the car ferry operation in the Ludington, Mason County, Michigan area. INITIAL DECISION The initial decision, dated October 27, 1978, as pertinent, authorized abandonment of car ferry service between Ludington, MI, and Milwaukee, WI, and denied applicant the right to terminate car ferry service between Ludington, MI, and the ports of Manitowoc and Kewaunee, WI. The facts relating to the terms and background of this proceeding are set forth in the initial decision. We find those facts generally to be correct, and except as modified, they are adopted as our own. The facts will not be repeated except to clarify our discussion. The initial decision imposed those conditions for the protection of labor as set forth in AB-31 (Sub-No. 5), Grand Trunk Western-Abandonment of Lake Michigan Car Ferry Operations, served June 12, 1978 (GTW conditions). PRELIMINARY MATTERS Motions to reject applicant's reply to exceptions, have been filed separately by UTU and the city of Ludington on the grounds that applicant's 57-page reply to exceptions exceeds the 30-page limitation imposed by rule 98 of the Commission's General Rules of Practice. A reply to protestants' motions has been filed by applicant. Although, rule 98 imposes a 30-page limitation on replies, the record developed in this proceeding is unusually lengthy. The transcript exceeds 13,000 pages and is among the largest ever handled by the Commission. The interests and exceptions of the many protestants in this proceeding, and the complexity of the application, which covers three separate cross ferry lines, justifies applicant's reply. Protestants' motion to reject is accordingly denied. We have been liberal in this proceeding and have not imposed a strict interpretation of the rules concerning extensions of time, latefiled pleadings, styles, and format. Applicant reminds us that NMU, which has filed a motion to strike which has filed a motion to strike applicant's reply, has submitted two sets of exceptions. One was submitted under its own name and one by its counsel. As applicant has not filed a motion to strike the second set of exceptions, it shall also be received into evidence. By decision dated April 25, 1979, the Director of the Office of Proceedings denied the petition for leave to intervene of Congressman Clement J. Zablocki. The petition was in the form of a letter to Chairman O'Neal. The petition sought intervention for the limited purpose of introducing into the record a two-volume report, entitled "Economic Benefits of Lake Michigan Car Ferry Service." Introduction of this material was sought because the initial decision noted at page 148, that "no local or regional analysis of injury to Milwaukee or any central territorial region in Wisconsin has been presented on this record." Congressman Zablocki in his letter-petition for reconsideration of the April 25, 1979, decision states that the Commission erred in the fifth paragraph of the April 25, 1979, decision that read: The report submitted by Congressman Zablocki was not omitted from the record of this proceeding or from the Administrative Law Judge's initial decision. At page 32 of the initial decision, the Administrative Law Judge considered the testimony of State Senator Derezinski who discussed the conclusions drawn by the Bi-State Car Ferry Task Force. The Economic Benefits of Lake Michigan Car Ferry Service report. Volumes I and II, is already a part of the record in this proceeding, specifically exhibit numbers 174-175. No purpose would be served at this time by placing an additional copy of the report in the record. If this paragraph conveyed the impression that the report was part of the record in this proceeding, the impression is only partially correct. The report was marked in this proceeding as exhibits 174 and 175. When a report is marked as an exhibit, its author, or the person most familiar with its preparation is asked to explain the factual bases used for its preparation and conclusions. In the instant proceeding, the witness introduced by the attorneys for the State of Wisconsin apparently was so discredited as a witness, with regard to his testimony, that the attorneys for Wisconsin chose not to make a motion that the exhibits be accepted formally into the record. The Administrative Law Judge ruled at transcript page 9401, that "without sponsoring witness, 174 and 175 will be excluded, the numbers withdrawn." Under these circumstances, it would be improper for the Administrative Law Judge to rely on a report that was not accepted into the record. It would be administratively improper for this report to be accepted now. State Senator Derezinski submitted testimony and a prepared statement in this proceeding. The statement and testimony discussed certain conclusions drawn specifically from the abovecited report. This testimony was not discredited and was accepted into the record as exhibit 81. Accordingly, the Administrative Law Judge, or the Commission, could take official notice of the report. The weight that would attach to the report would reflect the credibility established by subsequent witnesses familiar with its preparation. While the report has not formally been made a part of the record in this proceeding, reference to its existence is on record, and it physically appears with the other testimonies marked as exhibits in this proceeding. The entire record in this proceeding, including the controversial report, is before us. We, therefore, affirm the decision dated April 25, 1979. No purpose would be served by reintroducing that which we already have before us. We have considered the petition for leave to intervene and the unverified statement filed on March 26, 1979, by Michigan's U.S. Senator Carl Levin. No protest to Senator Levin's petition has been received; his petition is accordingly granted. Motions to stay the effective date of the abandonment have been filed by the NMU and the city of Milwaukee. These motions were incorporated in protestants' exceptions and have been improperly filed. A motion is a pleading (rule 5) and must be answered in a separately prepared document, see rule 13. However, we will accept protestants' motions, and our decision shall discuss the motions on their merits. DISCUSSION AND CONCLUSIONS Exceptions to the decision in this proceeding fall under two major categories: (1) Whether the findings by the Administrative Law Judge which coincide with a stipulation agreement reached with some, but not all the parties, is consistent with the public convenience and necessity and (2) whether the Administrative Law Judge erred in applying the GTW conditions for the protection of labor instead of those conditions contained in Oregon Short Line R. Co.-Abandonment-Goshen, 354 I.C.C. 584 (1978) as modified (Oregon Short Line II. Addressing the first exception, protestants argue that (a) the private agreement is not in the public interest; (b) too many parties did not participate; (c) the stipulation agreement covers only northern shippers, not southern; (d) the agreement cannot bypass the fact that C&O had intentionally downgraded its cross ferry. service; (e) the remaining Kewaunee service cannot handle the cross ferry traffic and passenger service; (f) the application was filed for rail abandonment rather than for passenger abandonment; (g) with abandonment of GTW car ferry service, Ludington to Milwaukee service will greatly expand and the Administrative Law Judge should have so found; (h) dropping of service to Milwaukee defies all logic; and (i) the Chicago gateway is already overused and congested. 1. THE STIPULATION AGREEMENT The record before us shows that the Administrative Law Judge recognized that a stipulation agreement between all parties to an abandonment application is not binding upon the Commission. The sole test to be applied in an abandonment proceeding is whether the public convenience and necessity permit the abandonment. Colorado v. United States, 271 U.S. 153 (1926). In applying this test the Commission weighs the burden on interstate commerce from the |