NRPC v. BOSTON & MAINE CORP.

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Argument of Irwin Goldbloom

Chief Justice Rehnquist: We'll hear argument next in 90-1419, National Railroad Passenger Corporation, et al. v. Boston and Maine Corporation, Inc., and 90-1769, Interstate Commerce Commission and United States v. Boston and Maine Corporation, et al.--

Mr. Roberts, you may proceed.

Justice Roberts: Thank you, Mr. Chief Justice and may it please the Court:

This case is here from the United States Court of Appeals for the District of Columbia Circuit.

That court overturned the Interstate Commerce Commission's construction of a statute entrusted to the Commission to administer.

Congress acted promptly to overturn the court of appeals' decision, amending the statute while the case was still pending on rehearing.

The court of appeals nonetheless stuck to its guns and denied rehearing.

This Court should reverse.

Twenty years ago--

Unknown Speaker: Does everybody agree that the congressional amendment applies to this case?

Justice Roberts: --Yes, Your Honor, it was made explicitly applicable to any case pending before, during, or after enactment of the act.

Twenty years ago Amtrak inaugurated its Montrealer service between Washington's Union Station and Montreal.

The train traveled through Vermont and New Hampshire over the Connecticut River Line, a line owned over some portions by the Boston and Maine and over other portions by the Central Vermont.

Things ran smoothly until the mid-1980's, when Guilford Transportation acquired both Boston and Maine and the Delaware and Hudson Railway.

Now, the Delaware and Hudson owned a north-south line of track parallel to the Conn River Line west of Lake Champlain in New York State.

As a result, the Conn River Line diminished in importance to Boston and Maine and to its parent Guilford, to the point that in 1987 Boston and Maine listed its portion of the Conn River Line as track it anticipated abandoning.

Conditions on the line deteriorated, the Montrealer slowed to a crawl over the Boston and Maine segment, and in 1987 Amtrak cancelled Montrealer service.

To restore that service, Amtrak determined that it needed to rehabilitate the Conn River Line, and Congress appropriated money for the purpose.

Amtrak was unable to agree with Boston and Maine on terms under which it felt it could responsibly invest the necessary funds, and it turned to the Interstate Commerce Commission for relief.

It sought two things from the Commission: first, an order authorizing it to condemn the Boston and Maine segment for just compensation, and second an order authorizing it to then reconvey the line to the Central Vermont, which had agreed to pay for the line, to rehabilitate it in part with funds provided by Amtrak, to maintain it in a condition suitable for Amtrak's passenger service for 20 years, to grant Amtrak trackage rights for that period, and also to grant the Boston and Maine trackage rights so that it could serve its existing customers on the line.

Both steps in this transaction... the condemnation and the reconveyance... required ICC approval.

Amtrak sought approval for the condemnation under section 402(d) of the Rail Passenger Service Act.

That statute specifies that if Amtrak and the railroad are unable to agree on the sale of property owned by the railroad and required for inter-city rail passenger service, that Amtrak may seek an order establishing its need for the property and requiring its conveyance on reasonable terms and conditions, including just compensation.

Unknown Speaker: Mr. Roberts, does the ICC have to make a determination as to whether the property is required for inner-city rail passenger service?

They have to look at that question and decide it?

Justice Roberts: We believe that it does, Your Honor.

Of course, there's quite a dispute over what that passage means.

The court of appeals determined that required for inter-city rail passenger service meant basically that Amtrak could not get by with anything else, and what it reasoned was that since Amtrak didn't retain the fee interest in the Boston and Maine Line, that it didn't require it.

Since it didn't require it, it couldn't condemn it in the first place.

Unknown Speaker: Does the ICC have to decide whether a less than a fee interest would meet the so-called requirement, or that what is required is less than a fee interest?

Justice Roberts: No, Your Honor.

Unknown Speaker: It's a fee or nothing?

Justice Roberts: The ICC reads that language... required for inter-city rail passenger service... to mean simply that the property that's involved must be put to use by Amtrak in providing that service, as opposed to being used for something else.

The language doesn't necessarily have to mean indispensable, as the court of appeals read it, as the Boston and Maine reads it.

This is a familiar usage of the word required.

Unknown Speaker: But who decides whether an easement will suffice as opposed to taking the fee interest in the property?

Justice Roberts: Amtrak decides in the first instance whether it will put this property to use in providing inter-city rail passenger service, and if that is in fact what the property is to be used for, that statutory mandate is satisfied.

The Commission looks to make sure that it's being used for inter-city rail passenger service, and then that is sufficient.

Nothing in the statute suggests that the ICC is to engage in a process of tearing down the property interest to the least restrictive alternative, and in fact the amendment, of course, makes clear that that is not the case.

Unknown Speaker: Is there any contention that the review that is required of the FCC was not undertaken in this case, as you define it?

Justice Roberts: As I define it, I don't believe so.

It is true that there is not a precise finding that this requirement was met, but there's certainly a precise finding in the opinion of the Commission that the Boston and Maine interpretation of the provision is not the correct one.

There is also certainly findings that the reason Amtrak is proceeding is to restore the Montrealer service to put this line of track to use in providing inter-city rail passenger service, and that is a sufficient finding on the record.

What the amendment said in 1990 was that Amtrak may reconvey property it has condemned to a third party if the Commission finds that the reconveyance furthers the purposes of the act.

Now, the amendment simply makes no sense unless it is read to authorize precisely what Amtrak did here.

The reasoning of the court of appeals was that Amtrak... if Amtrak intended to reconvey property, it couldn't condemn it.

The amendment says Amtrak can reconvey property it has condemned, so it simply cannot be the case that the reconveyance dooms the condemnation in the first place.

In our opening brief we challenge the respondent to come up with an explanation of what the amendment means, if not that this type of a transaction is authorized.

It came up with no explanation in its brief, and it will not be able to come up with an explanation here this afternoon.

Unknown Speaker: Challenge you to come up with an explanation as to how this amendment goes to the word required, which is the basis for the decision below.

I think it's a dead stand-off on that one.

Neither one of you can explain the amendment.

Justice Roberts: Well, if it's a dead stand-off then the Commission under Chevron is entitled to deference in its construction.

Unknown Speaker: Not on the basis of the amendment.

Justice Roberts: What the amendment said... what the court of appeals... the amendment needs to be understood in light of the court of appeals' decision.

The court of appeals said you can't condemn property that you're going to reconvey because the reconveyance proves you didn't require it.

What the amendment says is, you may condemn... you may reconvey property that you have condemned.

Unknown Speaker: The amendment has to be understood primarily on the basis of its language, and nothing in its language whatever goes to the word required, which was the basis for the court of appeals' decision.

Justice Roberts: Well, with respect, I disagree.

The language of the amendment makes clear that it is not an answer to the Commission's order to say that you reconveyed that, therefore the condemnation was no good in the beginning, because the amendment makes clear that Amtrak may reconvey property it has condemned.

If it may reconvey property it has condemned, it simply cannot be the case that the reconveyance dooms the condemnation in the first place.

Unknown Speaker: Reconveyance is only one manner of proving that you don't need the property.

The principle at issue, the principle that underlay the court of appeals' decision, was that Amtrak did not need the property.

Nothing in the amendment goes to whether you have to show a requirement for the property.

Justice Roberts: Well, what the court of appeals said is we can tell that Amtrak did not need the property because it reconveyed it, and the amendment at least undermines that holding of the court of appeals.

Now, the... going back--

Unknown Speaker: So then we'd have to remand to the court of appeals to say, you should not consider the reconveyance automatically to show that they didn't need the property, but you can still consider whether they needed the property or not.

Justice Roberts: --Well, then let me turn to the--

Unknown Speaker: You don't want to waste all that time, do you?

Justice Roberts: --No, I--

Unknown Speaker: It will only come out the same way.

Justice Roberts: --I don't think a remand's necessary for that purpose, because under Chevron the decision was wrong even before the amendment.

The statutory phrase required for inter-city rail passenger service was read by the court of appeals and is read by Boston and Maine to mean that nothing less will do, but that is not the only--

Unknown Speaker: Same way Thomas Jefferson read the necessary and proper clause.

Justice Roberts: --Well, and quite different from the way Chief Justice Marshall read it in McCullough against Maryland.

It's a familiar usage of the word in the law.

Necessary is a synonym for required.

Chief Justice Marshall told us it means convenient or useful.

We've cited in our opening brief the dictionary definition that require means to call for as suitable or appropriate in a particular case, as in it's cold outside.

If you go out you'll require an overcoat.

It doesn't mean that you can't go outside if you don't have an overcoat.

It means that you'll find one suitable and appropriate if you do go outside.

The error in the court of appeals' reading of required for inter-city rail passenger service I think is clearest if you look at section 402(d) as a whole.

Boston and Maine and the court of appeals say that the purpose of this provision, required for inter-city rail passenger service, is to make sure that Amtrak really needs what it's taking, but that's exactly what the next sentence of the statute is addressed to in very specific terms.

The next sentence says--

Unknown Speaker: What section are you reading now, Mr. Roberts?

Justice Roberts: --I'm referring to section 402(d), which is set forth in the appendix to our brief, page 1a.

The first sentence contains this required for inter-city rail passenger service language, but the next sentence in the statute goes on to say that Amtrak's need for the property shall be deemed to be established unless the Commission makes two contrary findings.

In other words, the question of whether Amtrak really needs this property as opposed to some other property is addressed in the second sentence, the one that begins, unless the Commission finds.

It would be a very strange statute that had the same question addressed in the immediately previous sentence under the vaguer required for inter-city rail passenger service provision.

The Boston and Maine reading of the phrase, required for inter-city rail passenger service, would probably never be satisfied.

Nothing is ever really indispensable.

Amtrak can get from Washington to Montreal via Detroit if it had to, and in any even the phrase required for inter-city rail passenger service is at least susceptible to more than one meaning.

That being the case, the court of appeals should have deferred to the Commission's reasonable interpretation, an interpretation manifested in the upholding of this transaction.

The court of appeals also cited the structure of section 402 in reaching its conclusion.

It noted that section 402(a) of the act provides the right of Amtrak to seek trackage rights, it surmised that that was all that Amtrak needed in this case, and therefore it concluded that Amtrak had to proceed under that provision and not under section 402(d).

Again, the ICC, the agency entrusted with administration of this statute, read the statute differently.

It determined that Amtrak had an election of remedies.

Certainly nothing in the statue imposes an exhaustion requirement whereby Amtrak must proceed under 402(a) before looking at 402(d), in fact, quite the opposite.

Section 402(d) sets forth very precise prerequisites--

Unknown Speaker: You're talking about 402(a) and 402(b).

Justice Roberts: --(d), I'm sorry if I--

Unknown Speaker: (d)?

And the basic statute is 45 U.S.C. section 545 that's set out at page 136a of the petition for the writ?

Justice Roberts: --No.

The basic statute, 402(d), is codified at 45 U.S.C. 562(d).

It is... the appendix to our brief, page 1a, sets forth 402(d).

Unknown Speaker: The appendix to the Government's brief?

Justice Roberts: Right.

402(d) sets forth the very precise prerequisites that Amtrak must meet before invoking condemnation authority.

An exhaustion of 402(a) or any of the other provisions in section 402 is not listed among the prerequisites.

Unknown Speaker: Mr. Roberts, I... of course required can be read the way the Commission wanted to, in isolation, but isn't it unreasonable to read it that way when, if you do not read it to impose a requirement of necessity in the narrow sense, the only thing Amtrak has to do in order to condemn property is to show either... either... that taking it away will not impair the ability of the railroad it's taking it from to function, or that it can't do without the property itself.

Justice Roberts: Congress determined that Amtrak was entitled to those powers on that basis.

It set forth a very explicit presumption in the statute.

It addressed that question when it determined to give Amtrak eminent domain power, and it said that Amtrak's need for the property shall be deemed to be established unless both of the contrary findings that you mentioned are made.

Unknown Speaker: You really think they gave Amtrak the power to take any property from any railroad in the country, so long as taking that property didn't impair the ability of that railroad to operate.

That's how you're reading it... so long as they using it... use it for the railroad.

Justice Roberts: So long as they use it, so long as they're unable to agree, and so long, of course, as the railroad receives just compensation for its property.

That... Amtrak is put in a very disadvantageous bargaining position in dealing with railroads.

This case demonstrates that.

The Boston and Maine owned the only line over which Amtrak wanted to run its Montrealer service to serve the States of Vermont and New Hampshire.

Boston and Maine held all the cards.

Congress gave it this broad eminent domain power precisely to address that inequity in bargaining position.

Unknown Speaker: Would you take the position that any instance in which the exercise of the eminent domain power, followed by a reconveyance, would in effect give Amtrak a cheaper way of using a particular line, that Amtrak therefore has met the significantly impair requirement?

Justice Roberts: The significantly--

Unknown Speaker: So that whenever... well, let's say whenever one of B&M's competitors comes along and says well, if you condemn it and give it to us, we will maintain the track for you cheaper than you would have to chip in for the B&M to maintain it for you.

Is that always going to be sufficient to satisfy the significantly impair requirement?

Justice Roberts: --Well, I think it may well always be sufficient under the statute.

The significant impairment question goes to what's happening to the railroad from whom... from which the property is being taken, so that wouldn't be the pertinent inquiry, but certainly Amtrak is required by statute to take steps to minimize Federal subsidies.

It is required by statute to take steps to encourage private parties to subsidize inter-city passenger rail service.

I don't think--

Unknown Speaker: Does that mean, then, that whenever a competitor of the condemnee would make a favorable agreement with Amtrak to maintain the line at a cheaper maintenance or operating cost that it will always be lawful under the statute for Amtrak to... or for the Commission to allow Amtrak to condemn?

Justice Roberts: --Well, no, and the reason is that the reconveyance from Amtrak to the competitor also must be approved by the ICC under section 11343, and in that... on that question the Commission looks at normal competitive concerns: what is reconveyance from one rail carrier, Amtrak, to another going to do to competition in the rail market, and if the Commission refuses to approve the reconveyance the transaction cannot go forward.

Here, the Commission expressly examined the reconveyance and found that competition would not be diminished in the market, that in fact Boston and Maine would benefit from the improved tracks.

But looked at solely from--

Unknown Speaker: How is Boston and Maine going to benefit having its competitor on this line have an upgraded track in part with the subsidy of the Federal Government?

Justice Roberts: --Because Boston and Maine retains trackage rights to serve its customers on the line.

Unknown Speaker: It doesn't need it.

Justice Roberts: Pardon me?

Unknown Speaker: It doesn't need it.

Justice Roberts: It does need... it doesn't own the track any more so it needs trackage rights to serve customers it already has on the line, and it was granted those trackage rights in this transaction.

It gets to run over vastly improved track, track that the Commission prior to this transaction found was desperately in need of maintenance.

It gets to use that track now in serving its customers, and it has received just compensation for its lines.

Unknown Speaker: It's such a good deal for them, you'd think they would have entered into that deal with Amtrak.

And that leads me to a question, doesn't the statute require that the condemnation can only occur if negotiations have failed?

What is the language?

Justice Roberts: No.

The language is the railroad and Amtrak are unable to agree--

Unknown Speaker: Are unable to agree.

Justice Roberts: --upon terms for the sale.

The Commission--

Unknown Speaker: Now, you think that means nothing more... what was the actual condemnation price here, $2.5 million?

Justice Roberts: --It's still subject to challenge.

That's an issue.

Unknown Speaker: Give or take a little--

Justice Roberts: The Commission found $2.3 million.

Unknown Speaker: --$2.3 million, and Amtrak came in, and how much did Amtrak offer?

Justice Roberts: A million.

A million.

Unknown Speaker: Amtrak offered a million and said gee, we can't agree, you won't take a million.

Is that all the statute means?

You come in and pick a ridiculously low number, offer it to the other side and say, well, we can't agree, and then I can condemn it.

Justice Roberts: No, and what the Commission expressly found in this case was that the parties were unable to agree.

Unknown Speaker: Of course.

I don't deny that.

They weren't able to agree in that sense, but is that really what the... don't you there's a good-faith negotiation requirement there?

Justice Roberts: If there is, it was satisfied in this case.

I... what the--

Unknown Speaker: Was that a finding below?

Justice Roberts: --What the Commission found... I'm reading from page 130a of the appendix to the petition.

The Commission found that Amtrak has set forth a detailed history of its dealings and negotiations with the Boston and Maine.

Amtrak made a valid offer to purchase, and in response Boston and Maine said it found no need to pursue the very complex offer to purchase.

Unknown Speaker: I'm waiting for your good-faith effort.

Justice Roberts: It was when I quoted the part about a valid purchase... a valid offer to purchase the line.

Unknown Speaker: Oh, I'm sure it was a valid offer to purchase.

It was a valid offer to purchase.

If they'd accepted it at $1 million, it would have been accepted and that would have been a contract.

That's a valid offer to purchase.

Justice Roberts: In the context... as the Commission stated, in the context of the long and laborious dealings between Amtrak and Boston and Maine, the Commission found that the parties were unable to agree.

Unknown Speaker: There were long and laborious dealings about other matters, but this was the only dealing about a purchase.

Amtrak came in and said, give me... I'll give you $1 million, and they said don't be silly, that's ridiculous, which of course it was.

Well, any condemning authority is always going to offer a good deal less than they think the property is worth as a first step of the negotiation.

Justice Roberts: Well, this wasn't a... and this... that's true, and this wasn't a first step.

It was, as the Commission found the result, the culmination of long... a long and laborious history.

Unknown Speaker: Every negotiating authority doesn't have a provision like this that says, if the parties are unable to agree.

I mean, other people can just walk in and say, we're condemning it.

Justice Roberts: The requirement can't be that the party offer a fair market price for the property objectively determined, because then there'd be no need for the condemnation authority in the first place.

It doesn't say, for that matter... as the point we've been discussing, it doesn't say good faith efforts.

I'm not going to be able to agree with a Rolls Royce dealer on a price for his car.

If Amtrak only has $500,000 in the bank and offers $500,000 and it's inadequate, the parties are unable to agree and Amtrak can proceed through some other route, and that's all the statute requires.

The Commission made that finding and affirmed it repeatedly.

Unknown Speaker: It's a rather silly requirement if that's all it means.

Absolutely pointless.

Well, isn't it also relevant... maybe I don't have the facts well in mind, but didn't B&M respond by saying in effect we're not willing to sell but what we'd like to do is negotiate a different trackage arrangement--

Justice Roberts: Well, they wanted--

Unknown Speaker: --and they thought that would be--

Justice Roberts: --They wanted a different trackage arrangement.

They wanted Amtrak to pick up the tab for maintenance of the line, which Amtrak thought had been agreed to under a 1977 agreement, and at the same time, of course, they were listing a line for abandonment, so a trackage rights agreement from Amtrak's point of view wouldn't have been of much use.

Amtrak made what the... what the ICC found to be a valid offer.

The court of appeals didn't disturb that finding.

It was rejected.

B&M didn't just say, come back with a higher price, it said we see no reason to pursue this purchase offer because, as you've mentioned, they thought Amtrak should go about this through an entirely different route.

Amtrak met the plain statutory requirements.

The parties were unable to agree.

The property is going to be put to use... is being put to use today in Amtrak's provision of inter-city rail passenger service, and the Commission rejected the two findings that had to be made to rebut the presumption of need.

That is an alternative holding of the court of appeals that was also in error.

The court of appeals turned the statute on its head when it said the Commission failed to make adequate findings to support Amtrak's need.

The statute presumes need.

Unknown Speaker: --Now, the dissent in the court of appeals would have remanded for a determination of the extent to which the full fee was needed.

Justice Roberts: Yes, but the... I guess it was a concurring opinion by... yes.

We don't think that the statute calls for any such findings.

Section 402(d) is quite precise in what's required.

Findings of that sort are not at all called for by the statute.

Unknown Speaker: Well, I note that it does say the Commission has to find the obligations can adequately be met by the acquisition of alternative property, including the interest in property.

Maybe it has to determine what interest in this property was required.

Justice Roberts: First of all, we only reach that question if the common carrier... the ability to discharge the common carrier obligations of the railroad are going to be impaired.

You need to make both the (a) finding and the (b) finding before rebutting a presumption of need.

The Commission here said that Boston and Maine's abilities were not going to be significantly impaired, primarily because they received trackage rights in return and just compensation.

Turning to that, though, the Commission reads that phrase as meaning property in some other place.

Can Amtrak serve its need by alternative property, or interest in property... in other words interest in that alternative property, not the property that's subject to the condemnation.

If there are no further questions, I'd like to reserve the balance of my time.

Unknown Speaker: Very well, Mr. Roberts.

Mr. Goldbloom, we'll hear from you.

Mr. Goldbloom: Thank you, Mr. Chief Justice, and may it please the Court:

This is a case about a condemnation statute which allows the taking of private property.

Simply stated, our position is that section 402(d), the statute that's implicated directly in this case, cannot be used by Amtrak to condemn more property than is required for inter-city rail passenger service.

In this case, the Commission failed to make a relevant inquiry into what property was required for inter-city rail passenger service.

It erroneously assumed that whatever Amtrak wanted it was entitled to take and proceeded with a case in which it ultimately approved the conveyance.

In our view, that's an erroneous construction of the statute.

Unknown Speaker: Well, Mr. Goldbloom, is it not correct that the statute says that unless the Commission finds (a) and (b) under section 1, then the need of the corporation for the property shall be deemed to be established?

Mr. Goldbloom: Yes, Chief Justice, it does say that, but that is a second level of inquiry that the Commission must make.

The predicate for the invocation of the statute appears right out in the first sentence of the statute, and in this particular statute we have a series of limitations written into the statute which provide in the first instance that the parties are unable to agree.

There is a definition in the statute that the property that is... that is being sought is required for inter-city rail passenger service.

And there's a third limitation because there's a description of the term property with a parenthetical including interests in property.

Unknown Speaker: So you say the term need of the corporation as used after subsections (a) and (b) does not include the requirement for inter-state... inter-city rail service and it doesn't suffice to dispense with the negotiation requirement?

Mr. Goldbloom: Yes, Chief Justice, that is our answer, and let me amplify, if I may, on that.

When Congress enacted this particular section in 1973 they also enacted a similar provision, section 305(d) of the Rail Passenger Service Act, which provides Amtrak with the authority to condemn nonrailroad-owned property... that is, property that might be owned by any other private party.

And that statutory provision has a similar language in it, which says that the property, again, must be required for inter-city rail passenger service.

Now, the reason why the requirement for inter-city rail passenger service has to be met in the first instance is that the second level of determination of need applies only if it will substantially impair the obligations of the... of the railroad to function as a common carrier.

Now, let us assume as a hypothetical that Conrail owes... owns a building over here on Pennsylvania Avenue.

That building could conceivably be taken by Amtrak for whatever purposes if it can be shown that the taking of the building doesn't impair Conrail's ability to act as a common carrier.

If you don't go through the first level of limitation that is required for inter-city rail passenger service, you never get to the consideration of why they're taking the property in the first instance, and this is consistent with the nature of this very type of statute.

Unknown Speaker: I don't think you're disagreeing with the Government on that point.

I think the Government concedes that you have to go through two inquiries as well.

The only difference is that the Government thinks that required... the first inquiry, the required inquiry, is just, you know, are you going to use it for your rail service, whereas you say it means it's essential for your rail service.

Mr. Goldbloom: I don't believe it goes as far as the word essential.

I think the word required has a meaning which has context in the statute.

Let me deal with the Government's argument first.

They say required means useful, appropriate; Amtrak, the petitioner, says in connection with, but the statute has a language... Congress used a very stringent verb in connection with this particular statute, and that verb required informs a court, or the Commission, how Amtrak intends to be using the property that it intends to take.

Now, it is not a question that it is absolutely essential or indispensable.

The question is required, and in the context of this statute, where Congress speaks in terms of property, including interests in property, there is a whole history of statutory construction of the concept of eminent domain in private hands, that the least interest that is intrusive should be taken in the circumstances of an eminent domain statute.

Unknown Speaker: Let me just interrupt, because I think I'm following but I want to be sure I'm right.

Is the gist of your argument that the fee interest wasn't required since a leasehold or an easement was sufficient, or are you also arguing that they did not require the use of this particular trackage?

Mr. Goldbloom: No, we're not arguing... Justice Stevens, we're not arguing that they did not require the use of this trackage.

Unknown Speaker: I see.

You're arguing they didn't need a fee.

Mr. Goldbloom: They didn't need the fee.

And to take that a step further, when the Commission is confronted with an application under section 402(d) it should look to see what is it that Amtrak requires, and if they can determine that Amtrak requires something less than a fee, then that is what Amtrak should be entitled to get.

Unknown Speaker: Won't it always require less than a fee when it's trackage rights?

I mean, the only thing it needs is the right to go over track, so when we're talking about trackage won't the result of your analysis always be that something less than a fee will suffice?

Mr. Goldbloom: No, Justice Souter.

There may be circumstances where what they require is property, and property--

Unknown Speaker: Well, I'm assuming that they're taking it from another railroad.

Mr. Goldbloom: --It may be property.

It may be just real estate, taking it from another railroad.

Unknown Speaker: When, for the... can you give me an example of a case in which they would need to take the fee in trackage rights?

Mr. Goldbloom: I cannot... there is a suggestion in the concurring opinion by Judge Ginsburg in the court below that in a circumstance where Amtrak was dealing with another railroad and where, under the facts in that particular hypothetical, Amtrak was unable to get the type of trackage rights interest or the cooperation of the other railroad in running its trains over those tracks, in those circumstances, Judge Ginsburg suggests that perhaps 402(a) could be used to obtain trackage rights.

But then she goes on to say, this case doesn't establish that, and on the facts in this case it is clear that something less than the fee would be what Amtrak should be entitled to get.

And if I may amplify further, section 402(a) has a provision for granting trackage rights to Amtrak when they are unable to agree with a railroad over the use of the tracks, and in those circumstances the Commission has the authority to impose a trackage rights agreement on a railroad and to impose conditions for not only trackage rights, the furnishing of services and facilities.

Unknown Speaker: Well, Mr. Goldbloom, I thought the problem here was that the Amtrak could get a trackage right but it needed a trackage right over a rail line that was maintained adequately to enable it to run its passenger trains at the appropriate speed, and that what it would get here with a trackage right was simply a right to run its railroads over very poorly maintained rails at speeds that wouldn't meet its need.

So it needed something that was going to be maintained at a higher level than B&M would maintain it, and Boston and Maine had made a determination that for its purposes it didn't need to maintain the tracks at this higher level degree of maintenance.

Now, isn't that right?

Mr. Goldbloom: Well, Justice O'Connor, under 402(a) the Commission can impose conditions upon the railroad in providing the trackage rights.

It can... it could require Boston and Maine to upgrade the tracks and to maintain them, and in so doing it would look to the provisions that Congress imposed in 402(a), which requires that there be no cross-subsidization by the freight railroad of the rail passenger service, and the incremental costs for the quality and nature of the service being provided to Amtrak are to be provided... are to be paid for by Amtrak, and that's what was at the core problem of the controversy between Amtrak--

Unknown Speaker: Well, in an order under (a) it would be... the Commission would have to order Amtrak to pay the costs.

Mr. Goldbloom: --That's because the statute requires that.

Unknown Speaker: Amtrak doesn't have the money and has found a mechanism whereby it can get a third party to provide that cost, apparently.

Mr. Goldbloom: By brokering its condemnation authority to a third railroad, and in so doing it has gotten around the provisions of 402(a) which expresses the congressional policy to prevent cross-subsidization, to require that Amtrak bear the incremental costs of the rail passenger services.

Unknown Speaker: Mr. Goldbloom, it occurs to me... I'm not sure you're making Thomas Jefferson's argument.

I think you may be using required in the same sense that Marshall used necessary.

I wonder why you don't place more stress on the parenthetical in subsection (d) of 562.

It reads: Upon terms for the sale to the corporation of property, parenthesis, including interests in property required for inter-city rail passenger service.

It goes out of its way to put in the parenthetical including interests in property.

And the general condemnation section... section, what is it, 545... doesn't... never includes any such parenthetical.

It says the corporation is authorized to acquire any property, and it doesn't say, parenthesis, including interests in property, which the Secretary acting in further blah, blah, blah, blah, blah.

Why don't you place more stress on that?

Mr. Goldbloom: Well, I do place stress on it, because I believe the reference to including interests in property is a congressional recognition that something less than the fee might be called for when Amtrak seeks to condemn--

Unknown Speaker: So the required modifies the interest in property, and the interest in property has to be used by the corporation... not necessary to the corporation, but used, and you're saying it's not being used here, the fee.

Mr. Goldbloom: --It's not being used because, as the court of appeals found and as there is no dispute in this case, Amtrak did not want to own the property, did not need to own the property, and had no interest in owning it, ever, and so if it was capable of being satisfied by an interest in property less than the fee, then the fee by definition could not be required.

Unknown Speaker: Yes, but that... you're making two different arguments, one, you're arguing they should have proceeded under 402(a) to require trackage rights.

Now you're saying they should have proceeded under 402(d)(1) to condemn trackage rights?

Mr. Goldbloom: What I'm saying, Justice Stevens, is that when the Commission is confronted with an application under 402(d) it should examine to see what it is that Amtrak is required... Amtrak requires.

If it looks at what Amtrak requires and sees that what it really needs is a trackage rights agreement with imposition of conditions and maintenance requirements, then it should say to Amtrak your proper relief and remedy is a petition under 402(a).

That's what you should do.

If, on the other hand, it determines that a trackage rights agreement will not suffice, but something more, let's say... and it's been suggested in this record by one of the vice chairmen of the Commission... that perhaps an easement to go onto the tracks and to perform maintenance services of that character, then perhaps trackage rights agreements and an easement might be sufficient to fulfill Amtrak's requirements.

Unknown Speaker: Do you think you could logically make the same argument in the face of the statute as now amended?

Mr. Goldbloom: Yes, Justice Stevens--

Unknown Speaker: You do.

Mr. Goldbloom: --because we don't believe the statute as amended affects the result in this case.

Unknown Speaker: Well, the statute as amended assumes that there would be situations in which the condemnation would require a greater property interest than the Commission absolutely needs because it can reconvey the property and obviously take back something less than the fee.

Mr. Goldbloom: That may very well be, and we've suggested that there might be circumstances where it might be necessary under... under the facts of a particular case to take a larger interest than Amtrak actually needs, such as a... take a large building and to raze it and put up a small structure.

But in this particular case, the court of appeals had more than one finding.

There is a finding... there is a conclusion or a holding in the court of appeals that says that Amtrak may not take property that it does not itself intend to own, and as to that holding, the court of appeals... the court of appeals' decision has been overruled by the 1990 amendment.

The court of appeals went on and had other holdings.

It said that when the Commission is faced with a 402(d) application it must make a determination as to what is required for inter-city rail passenger service.

It found... and this is a unanimous ruling by the court of appeals because Judge Ginsburg also agreed with this... that the Commission had not made that determination... what is required.

And as I read the Government's brief, they admit, or concede that the Commission did not make a determination as to what is required.

They say that some kind of an abstract, perhaps, decision was made.

The fact of the matter is that it came up this way.

At the very outset of the proceedings, early on, right after Amtrak filed its petition, Boston and Maine came in with a petition to convert the 402(d) proceeding to a 402(a) proceeding, and it said to the Commission this is really a dispute between us over the upgrading and the maintenance of these tracks, and we're having a fight over who is supposed to pay for this, and we think that Amtrak should pay for it because after all it's one train that goes back and forth once a day and it's going to cost $400,000 a year or so, and it should be Amtrak's responsibility.

Nevertheless, we're willing to put this before the Commission and have the Commission decide who is to pay for the upgrading and maintenance of this tracks.

The Commission... and they did this before holding any kind of an evidentiary proceeding, before looking at any evidence, simply on the basis of the filings that the... that Amtrak had made and that Boston and Maine had made, said we reject this petition to convert.

Amtrak has an election of remedies.

It has asked for relief under 402(d).

That's all we need to look into.

They're entitled to a conveyance if they have... if they made that application, and then we're going to go on with our proceeding.

Now, they did so without an evidentiary proceeding, and they were applying, in a sense, the same statutory phrase that any Federal district judge would have to apply faced with an attempted taking by Amtrak of nonrailroad property, and they did it almost... to draw an analogy, if there was a complaint and an answer and a district judge looked at the complaint and answer and made a determination without doing anything further.

And in this case the Commission did not make a finding under the required phrase of the statute.

Now, the court of appeals said that.

They also said that the Commission's ruling did violence to the provisions of 402(a), because they overlooked the requirements of 402(a) that require Amtrak to pay the incremental costs of rail passenger service, and by allowing Amtrak to evade those requirements the Commission failed to adhere to the statutory requirements.

Now--

Unknown Speaker: May I just ask you a question that goes to that point?

You mentioned earlier that under subsection (d) there might be a need to condemn together with an easement allowing Amtrak to come in and do its own maintenance.

Given the fact that under (a) the Commission can always require Amtrak to pay the incremental cost of maintenance to get it up to Amtrak's standard, there never would be a possible showing of need under (d), would there?

Mr. Goldbloom: --Well, I think it would be a very hard case to make.

I'm not saying that it couldn't be made under any circumstance, but it would be a hard case to make, particularly since the Commission has the authority to impose these requirements on freight railroads, to allow Amtrak to use their tracks and to provide services and facilities.

And so armed with the authority of the Commission Amtrak can clearly go to a railroad and say this is what we want and this is what we need when it comes to providing services for us.

And since Congress has set out a very particularized scheme under which Amtrak is entitled to get those services, facilities, and use of tracks, we don't think that the use of a condemnation power, which traditionally has been construed by the courts, particularly in the hands of a private party, as being limited, restricted, narrowly construed, to give Amtrak the right to use it to the extent that they've seen fit to use it here.

The statutory scheme is such that Congress very clearly imposed limitations on the authority of Amtrak to obtain property.

Now, the Government makes a further argument.

They say that Chevron controls the determination of the Commission, but for a number of reasons Chevron is not applicable.

To begin with, the statute is not really ambiguous.

Chevron applies where you have to grope and figure out what the statute really means.

The statute has plain language.

It's to be construed by the Commission under some circumstances by a whole host of Federal district judges, under other... where the property is being sought to be taken from private parties that are not railroads.

Certainly the Chevron decision wouldn't apply to the rulings of 600 or so Federal district judges.

But there are limitations in this statute, and we don't believe that the Chevron case applies where there are limitations.

In this particular setting, the Commission has construed away the limitations that are in the statute.

It never really applied them, and therefore we can't see how Chevron would be applicable.

And thirdly we don't believe it's a permissible construction of the statute because, as I've indicated, there are circumstances where, using the Commission's construction, Amtrak could take an office building, a property of... that is owned by another railroad, without ever showing that that property is required for intercity rail passenger service, and the only mean... the only restriction would be whether the taking of that property impaired the functions of the condemnee's ability to perform as a common carrier.

And finally, we don't think that Chevron applies because there just simply is a nonfinding here.

The Commission did not make a finding, as we read the Government's brief at page 16.

They concede that the Commission did not and does not need to make a determination of what the lesser interests that are required in the circumstances of Amtrak's petition for the taking in this case.

So where the Commission does not make a finding we don't see how Chevron can have any application.

This case--

Unknown Speaker: What precisely is the statutory language which you rely upon to require the finding you just referred to?

Mr. Goldbloom: --The precise statutory language appears as... in the opening sentence of section 402(d).

It says: If the corporation and a railroad are unable to agree upon terms for the sale to the corporation of property, paren, including interests in property owned by the railroad and required for inter-city rail passenger service, the corporation may apply to the Commission.

We view those phrases at the beginning of this statutory provision as being statutory predicates to the invocation of the taking power.

Unknown Speaker: Inability to agree is one of them, you would say?

Mr. Goldbloom: Unable to agree--

Unknown Speaker: Yes.

Mr. Goldbloom: --is one.

Unknown Speaker: And required for inter-city rail passenger service is another.

Mr. Goldbloom: Yes, Your... yes, Chief Justice.

And a third limitation, although it's not written in as a finding but it's certainly clearly implicated in the statute is, that it be property, including interests in the property, which is a clear recognition by Congress that perhaps in these circumstances something less than the fee would suffice.

Unknown Speaker: You read the word property in the third line there as property interest, for sale to the corporation of the particular property interest owned by the railroad and required for interstate... that's the way you read it.

I mean, it's certainly a permissible reading, right?

Mr. Goldbloom: Well, of property... I read property as being the fee.

Unknown Speaker: Well, but I thought... well, I thought you read it as that they had to demonstrate that the particular property interest which they needed and which is owned by the railroad is the one that they need to condemn... they want to condemn.

I guess it comes down to the same thing.

Mr. Goldbloom: Yes.

This is what they're seeking to condemn.

The... this is the subject of the condemnation.

Unknown Speaker: I take it that there's no contest in this record that the trackage was needed and needed in an upgraded condition.

Mr. Goldbloom: That is no... we do not dispute that.

The question is, who's going to pay for it, and this is at the bottom of this test.

Unknown Speaker: And I take it there's no disagreement that negotiations broke down.

We can argue about whether or not there was a good-faith offer, and so forth.

Mr. Goldbloom: There were negotiations with... between Amtrak and Boston and Maine--

Unknown Speaker: And they were unsuccessful.

Mr. Goldbloom: --They were unsuccessful, and they were always about who was going to pay for the maintenance and the upgrading of the tracks, and when Amtrak made its $1 million take-it-or-leave-it offer, it did so on the assumption that Amtrak... that Boston and Maine was not going to accept it, and as soon as it received whatever response it got, and the response was, we're ready to negotiate, we're talking about good-faith negotiations about the problem that we have with the upgrading and maintenance of these tracks, they treated it as a rejection and they filed with the Commission.

Unknown Speaker: Did the court of appeals go into this particular aspect of the case at all?

Mr. Goldbloom: The court of appeals did not reach that, Chief Justice Rehnquist.

They--

Unknown Speaker: Are you really going to win very much if you win here on your argument?

Mr. Goldbloom: --Yes.

Unknown Speaker: Don't you just have to... it's going to go back to the Commission, isn't it?

Mr. Goldbloom: It's going to go back to the Commission, but if the Commission properly construes the statute it will see on the record in this case that Amtrak does not require the fee--

Unknown Speaker: Well, unless they find that Boston and Maine is so intransigent nobody should deal with them.

Mr. Goldbloom: --Well, if they're properly applying the statute, as the court of appeals held and as we would urge this court to affirm, the Commission should look to see what it is that Amtrak requires, and if Amtrak requires really nothing more than a trackage rights agreement, which incidentally is all that it ultimately got after the conveyance to Central Vermont, then that's what the Commission should impose upon Boston and Maine.

Unknown Speaker: Well, in determining what is required can the ICC look at the cost to Amtrak as part of that determination?

I mean, Amtrak would assert, I require the use of the tracks at a reasonable cost, or at a cost that we can afford to pay.

Mr. Goldbloom: The underlying basis of the Rail Passenger Service Act was to make Amtrak pay its fair share of the cost of rail passenger service and not have the freight railroads subsidize this operation.

Unknown Speaker: But if it can do that through condemnation and conveyance to a third person, why isn't that a fulfillment of its statutory duties under the policy of the act?

Mr. Goldbloom: Because it ends up by taking property... and this comes to our third argument.

It ends up by taking property from A and giving it to B with no real change in the public use.

Unknown Speaker: But there's been payment of fair compensation, of course, by definition.

Mr. Goldbloom: But that has just simply... the simple payment of just compensation without a corresponding change in public use has never been considered to meet the public use test of the Fifth Amendment.

Unknown Speaker: Mr. Goldbloom, you make briefly in your brief the unable to agree argument, but you don't go into much detail on it.

Do you think these negotiations were... as the Government said, went as far as they could go?

Mr. Goldbloom: No, Your--

Unknown Speaker: What more should have been done?

Mr. Goldbloom: --What happened with the negotiations were that they weren't going in the same direction, because a take-it-or-leave-it offer of a ridiculously low price is not a fair proposal.

Boston and Maine--

Unknown Speaker: Is your client willing to sell at any price?

Mr. Goldbloom: --Our client offered... our client discussed the possibility... and this is disclosed in the record... of selling the Connecticut River line to Amtrak.

If it did so for a fair price and under the proper circumstances it would continue to have the same kind of rights that it has to deal with its shippers and its customers.

Unknown Speaker: But did it make that discussion about sale before or after the $1 million offer?

Mr. Goldbloom: It was long before that.

Unknown Speaker: But after that, in their responsive letter, they didn't discuss sale.

Mr. Goldbloom: In their responsive letter they did not.

Unknown Speaker: They suggested negotiating a trackage--

Mr. Goldbloom: They suggested negotiating.

Unknown Speaker: --Thank you, Mr. Goldbloom.

Mr. Roberts, you have 5 minutes remaining.

Justice Roberts: On the unable-to-agree point, petition appendix 131a, the Commission went further and said nothing in this record provides any indication that Amtrak and B&M will ever reach agreement on terms of a sale, and I think that's because they were proceeding in different directions.

Boston and Maine wanted to talk about trackage rights.

Amtrak wanted to talk about the fee.

Unknown Speaker: Is that part of your case that Amtrak needed the fee?

Justice Roberts: Amtrak met the statutory requirement of need because its need was presumed.

Unknown Speaker: That hardly answers my question.

Justice Roberts: Yes, Amtrak did need the fee.

One reason it needed the fee--

Unknown Speaker: Because Boston... they could not get out of just a trackage rights arrangement with Boston and Maine, what they had to have; is that right?

Justice Roberts: --Even under a very strict reading of the required phrase they needed the fee because they needed to have it to reconvey it to a railroad that had an incentive to maintain the track at their speed conditions.

Boston and Maine itself argues--

Unknown Speaker: Well, now, who... the Commission never made that finding--

Justice Roberts: --Well, there--

Unknown Speaker: --Did it?

Justice Roberts: --It did make a need finding, yes.

Unknown Speaker: Well, did it make the kind of a finding I just described?

Justice Roberts: It said that Amtrak had carried its burden of establishing its need.

Unknown Speaker: Well, did it... did they say they needed it in order to convey to somebody that was more reliable than Boston and Maine?

Justice Roberts: That was the transaction that was before the Commission, and that was the context in which the Commission made that finding.

Unknown Speaker: Well, I guess I'll just have to read the... look at the--

Justice Roberts: The Commission--

Unknown Speaker: --They didn't say that, did they?

Justice Roberts: --The Commission did not make the findings about Boston and--

Unknown Speaker: Well, that's what... the court of appeals didn't think it made that finding.

Justice Roberts: --It did not, and our position is that it doesn't have to.

Nothing--

Unknown Speaker: And Judge Ginsburg didn't make that finding.

Justice Roberts: --She would have sent back for further--

Unknown Speaker: You don't disagree with that, do you?

Justice Roberts: --I don't disagree that they made no findings adopting Amtrak's version of events.

I do think that Amtrak's version of events is supported in the record, and that supports the agency action, and I also think that nothing in section 402(d) requires the Commission to make those sorts of findings.

That would be judicially imposing an additional requirement in the statute that's not found there.

What the statute--

Unknown Speaker: Well, need... you could say, well, maybe they found need but they didn't give an adequate explanation of it.

Justice Roberts: --The statute says that need is presumed unless the Commission makes contrary findings, and the Commission rejected each of the two contrary findings in the statute.

Unknown Speaker: So you are identifying what is required with presumed need.

You're saying there is not a two-tier analysis, there's a one-tier analysis.

Justice Roberts: No, I think it's a two-tier analysis, but required simply means it's going to be useful and appropriate and put to use in providing intercity rail passenger service.

Unknown Speaker: And you would satisfy that level of analysis at this point simply because the ultimate expense to Amtrak of maintaining the track would be less under this arrangement.

That's the way you satisfy that.

Justice Roberts: Well, we don't have to go that far.

It's satisfied because this property is used in providing inter-city rail passenger service.

The Montrealer runs over what used to be the Boston and Maine line.

Unknown Speaker: All right.

Well, again, I guess your argument again assumes that you have an absolute election as to whether to proceed under subsection (a) or subsection (d).

If you don't make that assumption, then your first-tier analysis of what is required depends upon assuming that a lower maintenance cost is sufficient to satisfy the standard requirement.

Justice Roberts: That may well be, but I'll reiterate what I said earlier, that there's nothing in section 402(d) or (a) that imposes such an exhaustion requirement.

Unknown Speaker: Well, but if the question is need, why did Amtrak need the fee when in the long run it gave it back to somebody?

Justice Roberts: It needed the fee in part to be able to convey it to a railroad that would maintain the line.

Unknown Speaker: I know.

I know--

Justice Roberts: Boston and Maine--

Unknown Speaker: --But they didn't need to own the fee for any more than a day, I guess.

Justice Roberts: --Well, if they didn't have the fee they wouldn't have been able to engage in the transaction.

Unknown Speaker: Why wouldn't they... why did they have to take the fee away from the Boston and Maine?

Justice Roberts: Because the Boston and Maine, as it itself emphasized, had no incentive to maintain these tracks in a condition suitable for Amtrak service.

That's their basic point.

We don't... 17 miles an hour is fine for our trains.

Unknown Speaker: Well, the court of appeals said we don't make these determinations on this record.

The court... ICC should have done it's work, and we think counsel is very persuasive.

The only thing is, counsel hasn't got the authority to present this kind of an issue to us.

Justice Roberts: Well, the court of appeals could only have reasoned that if it were imposing a requirement that you will not find in section 402(d).

The Commission made each of the findings in section 402(d).

They do not require findings that particular railroad's not living up to its obligations.

That's not something set forth in the statute.

Unknown Speaker: You say, need is presumed.

Justice Roberts: Need is presumed.

That's exactly what the statute says.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Roberts.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Print this transcript Transcript: 

Argument of Speaker

Mr. Roberts: The opinion of the Court in No. 90-1419, National Railroad Passenger Corporation versus Boston and Maine Corporation and a companion case will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: These cases involve the Railroad Passenger Service Act of 1970 and that Act created a corporation called the National Railroad Passenger Corporation but it is better known as Amtrak.

Amtrak's purpose is to provide inner city rail passenger service and it, along with the Interstate Commerce Commission are the petitioners in these consolidated cases.

The case has raised questions regarding the proper interpretation of an imminent domain provision in the Act.

Amtrak's Montrealer train service operates between Washington D.C. and Montreal.

For part of the way, the train at one time operated on railroad tracks owned by the Boston and Maine Corporation, and Boston and Maine as a respondent in these cases.

In the early 1980s, Amtrak ran into difficulties with the Montrealer service which eventually forced it to cancel the service and Amtrak claims that poor maintenance of its tracks by Boston and Maine was the cause of the problem.

Amtrak then reached an agreement with Central Vermont Railroad, another petitioner here and a competitor of Boston and Maine.

Under that agreement, Amtrak was to acquire Boston and Maine's tracks and transfer them to Central Vermont in exchange for the use of the track and a promise from Central Vermont to properly maintain them.

Amtrak requested and received a condemnation order from the ICC pursuant to an imminent domain provision in the Act.

We granted certiorari to the Court of Appeals for the District of Columbia Circuit after that court held that the relevant section of the Act does not permit condemnation of the property which Amtrak intends to convey to a third party following condemnation.

And the court held that rejecting a contra-interpretation of the ICC.

After the Court of Appeals' decision, Congress amended the statute to add a sentence stating that Amtrak was authorized to re-convey condemned property.

The Court of Appeals, nonetheless, denied rehearing holding that the amendment did not affect its reasoning.

The ICC's condemnation order was based on the agency's interpretation of the controlling statute.

The agency relied on the statutory presumption of need to conclude that Amtrak had established its entitlement to the order.

In so doing the ICC implicitly adapted an interpretation of the statute and that which Amtrak was permitted to make a judgment regarding its need for the property sought so long as the property would be used in Amtrak's rail operations.

We hold today that the ICC's was a reasonable interpretation of the condemnation provision in the statute and therefore, the Court of Appeals erred in setting aside the ICC order.

The ICC is the agency charged with the administration of the statute and under our well-settled doctrine, the ICC's interpretation of that provision is entitled to great deference from the reviewing court's.

The judgment of he Court of Appeals is reversed and the case is remanded for further proceedings.

Justice White has filed a dissenting opinion in which Justices Blackmun and Thomas join.