determining unlawful abandonments share concurrent powers with this Commission to determine the status of the track. Under the decision in Texas & Pacific Ry., supra, the court is not required to dismiss or postpone the proceeding until we make a prior determination of the status of the track. However, the case does not hold that we lack jurisdiction to determine the track status.

The question of whether 5 U.S.C. 554(e) is a proper jurisdictional basis for us to consider this petition has also been raised. Section 554(e) provides that "the agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty." This grant of authority is limited by 5 U.S.C. 554(a) to matters which are required by statute to be determined "on the record after opportunity for an agency hearing, except to the extent that there is involved (1) a matter subject to a subsequent trial of the law and the facts de novo in a court

99 ***

The city of Miami contends that the determination of a line abandonment does not require the Commission to hold a hearing, and thus section 554 is not applicable. In addition, it argues that any determination by us as to the character of the tracks at the P&O Dock would be subject to subsequent trial of the law and the facts de novo and thus is specifically exempted from the provisions of section 554. We disagree. 49 U.S.C. 10904(c)(1) requires a hearing by the Commission on a contested rail abandonment, and a Federal court reviews our decisions on issues related to an abandonment proceeding on the record made before the Commission. Moreover, our general authority to entertain petitions seeking interpretation and application of provisions of the Interstate Commerce Act is not limited to proceedings covered by the Administrative Procedure Act. Where warranted, the Commission has granted requests for interpretation and application of provisions under the Interstate Commerce Act. See, for example, Jet Fuel by Pipeline Within the State of Idaho, 311 I.C.C. 439 (1960); Mississippi Valley Barge Co. Exemption, Section 303(b), 311 I.C.C. 103 (1960); Movers' & Warehousemen's Assn. of America, Inc., Petition, 304 I.C.C. 517, 518 (1958); and Atlantic Frt. Lines, Inc.-Petition for Declaratory Order, 51 M.C.C. 175, 185 (1949).

The matters presented by petitioner constitute a controversy that we are empowered to determine by the exercise of the discretionary power vested in us to clarify questions arising under our administration of the Interstate Commerce Act. Accordingly, we find that a declaratory order is necessary and proper to address the

question posed, and that the interests of all concerned parties will best be served by the issuance of a decision setting forth our views on the subject.

The city of Miami seeks to invoke the doctrine of res judicata to bar us from considering the question of whether the P&O Dock or any portion thereof is a line of railroad, alleging that both the Federal district court and the State court have determined that the track within the P&O Dock is spur track. As mentioned previously, the Federal district court denied F.E.C.'s motion for a preliminary injunction for lack of standing to bring the complaint; the court made no specific finding as to the status of any portion of the P&O Dock.

As the body charged with the administration of the Interstate Commerce Act, we do not find the State court's decision a final and binding adjudication of the character of either the track or P&O Dock. It is clear that a statute may change the common law rules of res judicata. Former section la requires this Commission to conduct hearings on contested abandonments; judicial interpretation has held that this Commission must make a specific finding that the tracks involved constitute a line a line of railroad subject to its jurisdiction. Yonkers v. United States, 320 U.S. 685 (1944). Since the statute as interpreted by the courts requires us to make findings as to the character of tracks even after a State decision, it seems clear that Congress did not intend for a State hearing to have res judicata effect. This interpretation is reinforced by rulings that there is no legal capacity in any State to alter the status of a common carrier insofar as its interstate obligations are concerned, and that such capacity lies wholly within the Federal jurisdiction. Boston & Maine Corp. Discontinuance of Service, 324 I.C.C. 418, 451 (1965). The conclusion follows that Congress did not intend the Commission to give State determinations res judicata or collateral estoppel effect.

Motion to strike.-The city of Miami filed a motion to strike from F.E.C.'s reply argument statements the verified statement of Lloyd F. Bell, the reply argument, page 16, lines 4-6, and the attached map and photographs of the P&O Dock facility. The city of Miami alleges that these are not rebuttal to any presentation by it or Conrail. The pleadings filed by the city of Miami contend that the track within the facility is "spur." The material in question tends to rebut the "spur track" allegation. In addition, this material verifies the physical characteristics and track layout of the P&O Dock and

additional traffic movements through the P&O Dock which are part of the actual transportation haul from shipper to consignee. This motion, therefore, is denied.

CHARACTER OF P&O DOCK

We proceed to the central issue in this proceeding. The basic question is whether all or any portion of the P&O Dock terminal facility is a portion of a "line of railroad," physically or operationally. Because Congress did not define the term, Commission and judicial precedent must be relied upon to provide a definition. The decisions of this Commission and of the courts indicate that the term "line of railroad," as used in former section la, denotes a permanent road or way having rails providing a track for freight and passenger cars and other rolling stock, or the equivalent of such a road.

In Acquisition and Operation, Norfolk & W. Ry. Co., 154 I.C.C. 371, 375 (1929), the Commission found that terminal property and facilities for the storage and transfer of freight between vessels and railroad cars were a portion of a "line of railroad." The terminal property in that case consisted of about 300 acres of land, a modern grain elevator with service tracks and concrete bulkheads for the loading of grain into vessels, and two merchandise piers with service tracks and bulkheads, for the storage and transfer of freight. In Brown v. Consolidated Rail Corp., 422 F. Supp. 1251, 1256-1257 (N.D. Ohio E.D. 1976). The United States district court held that the Erie Dock facility located in Cleveland, OH, constituted a "line of railroad" within the meaning of former section la because the removal of ore from ships at the facility was part of the actual transportation haul from shipper to consignee. See also New Orleans Terminal Co., supra at 165-166.

Applying these principles to the P&O Dock terminal facility, it is clear the P&O Dock facility is a line of railroad within the meaning of former section la. The 32.64-acre facility' includes concrete ramps to allow barge dockage, dockside rail, wharfage and dockside tracks, docks, wharfs, piers, and bulkheads. Daily rail service, except Saturday and Sunday, is provided by F.E.C. In addition, F.E.C. has published dock and wharfage tariffs for the facility. Most importantly, the P&O Dock is used for the storage and transfer of goods between water vessels and railroad cars in connection with 18.75 acres of the involved property is submerged bay bottom.

through continuous movements in interstate and foreign commerce as part of the longer transportation haul from shipper to consignee. Traffic moving through the P&O Dock facility consists primarily of soybean oil which comes in tank cars and is transloaded onto tanker vessels for export. F.E.C. also transports concrete pipe and heavy machinery to the dock for transshipment to ocean carriers. Approximately 430 railcars were unloaded at the P&O Dock facility for transshipment in 1976, and 300 cars in 1977. The cargo was destined for such places as Venezuela, Nicaragua, Haiti, the Dominican Republic, and other points outside the United States.

For the same reasons, the "track" in question, in relation to its use within the facility, is a portion of a line of railroad and not a spur track. See United Transp. Union v. Bessemer & L. E. R. Co., & P&C, 342 1.C.C. 849, 858 (1974). By contrast, trackage exempted under former section 1a(1) is characterized by its use "in the loading, reloading, storage, and switching of cars incidental to the receipt of shipments by the carrier [from the shipper] or their delivery to the consignee, "New Orleans Terminal Co., supra at 166.

We find that the entire P&O Dock terminal facility is a line of railroad within the meaning of former section la (recodified at 49 U.S.C. 10903). Similarly, we find the track within the facility to be a portion of a line of railroad and not spur track. The proceeding will be discontinued.

360 I.C.C.

FINANCE DOCKET NO. 28876'

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, DEBTOR, ACQUISITION AND OPERATION OF TRACKAGE AT WINNEBAGO, MN

Decided August 22, 1979

Petition seeking reopening and modification of decision and certificate of abandonment in No. AB-1 (Sub-No. 57) requiring successful prosecution of application for extension of a line of railroad under section 1(18)(a) of the Interstate Commerce Act, granted. Found that acquisition for operation of a portion of an existing line concurrently sought to be abandoned by selling railroad is not an extension and is exempt under section 1(18)(d) from required certification under section 1(18)(a). Motion to dismiss Finance Docket No. 28876, granted.

Christopher A. Mills, William L. Phillips, and Anne E. Valle for applicants.

John F. Hacking, Jim Harrington, Robert C. Hughes, and Frederick S. Suhler, Jr., for intervenors in support.

DECISION

BY THE COMMISSION:

Certain petitions were filed by the parties in these proceedings. A brief summary of the developments in these and related proceedings will facilitate an understanding of the petitions.

The abandonment application in No. AB-1 (Sub-No. 57) was approved by initial decision served September 1, 1978, which became effective by operation of law in the absence of any appeals. The Commission's decision authorized the abandonment by Chicago and North Western Transportation Company (C&NW) of its line of railroad extending from milepost 0.0 near Lake Crystal, MN, to milepost 24.6 near Winnebago, MN, subject to the condition that Chicago, Milwaukee, St. Paul and Pacific Railroad Company (MILW) would acquire approximately 1.14 miles of trackage in

'This decision also embraces No. AB-I (Sub-No. 57), Chicago and North Western Transportation Company Abandonment Between Lake Crystal and Winnebago in Blue Earth and Faribault Counties, MN.