UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2095
NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, ET AL.,
Plaintiffs, Appellants,
v.
TOWN OF PLAISTOW,
Defendant, Appellee.
Before
Cyr, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Boudin, Circuit Judge.
ORDER ON PETITION FOR REHEARING
Entered October 25, 1995
On petition for rehearing, New Hampshire Motor Transport
Association has expanded its reliance on an agency regulation
touched upon lightly at one point in the original brief. This
regulation of the Department of Transportation states that access
review processes adopted by the state shall provide inter alia
for "denial of access to terminals . . . only on the basis of
safety and engineering analysis of the access route." 23 C.F.R.
658.19 (i)(2)(A). It is apparently the Association's position
that this provision represents a controlling agency
interpretation of the "reasonable access" provision of the
Surface Transportation Systems Act of 1982 to which deference is
required under the Chevron doctrine. We reject this belated
suggestion.
First, the ordinance and order in this case do not
"deny . . . access to the terminal"; they impose reasonable
restrictions upon it, as the statute itself clearly permits.
This is no more an outright denial of access than a detour around
a school zone or a bridge raised for maritime commerce during
rush hour. Nor does the regulation itself even purport to define
"reasonable access" as that term is used in the statute; the
quoted provision is one element in a check list of elements for
state review processes to be established under the regulations.
Indeed, if the regulation were read as the Association
intends, there would be a very serious question about its
validity. As explained in the panel opinion, the original 1982
statute did not even arguably impose the requirement that all
reasonable restrictions on access be based solely on safety; and
whatever the precise purpose of the 1984 amendment that
emphasized that safety regulations could be imposed on certain
tractor-trailers, a drastic recasting of the original "reasonable
access" provision is nowhere suggested. Even under Chevron,
deference to an administrative interpretation is not unlimited.
Second, the implications of the suggested reading of the
regulation, like the suggested reading of the statute, weigh
heavily against it. There is no federal regime of zoning or use
restrictions that applies to terminals, like the one in this
case, located miles from the interstate highway system. Thus,
the Association's reading of the statute and the regulation would
mean that no one--neither the federal government, nor the states
and localities--would have the power to carry on this traditional
function of government.
It would be remarkable enough for Congress to determine to
transfer such authority sub silentio from the states and local
governments to federal authorities or for it to empower the
Department of Transportation to make such a shift by regulation.
What is to us almost inconceivable is that Congress effectively
abolished anyone's authority to impose reasonable non-safety
based restrictions on access to such terminals. The notion that
trucking terminals have been completely exempted from regulation
that affects every other kind of business in the United States is
difficult to take seriously.
The petition for rehearing is denied.