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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 13, 2004 Decided April 20, 2004
No. 03-1086
BOSTON AND MAINE CORPORATION ET AL.,
PETITIONERS
v.
SURFACE TRANSPORTATION BOARD AND
UNITED STATES OF AMERICA,
RESPONDENTS
NATIONAL RAILROAD PASSENGER CORPORATION AND
NORTHERN NEW ENGLAND PASSENGER RAIL AUTHORITY,
INTERVENORS
On Petition for Review of Orders of the
Surface Transportation Board
Eric L. Hirschhorn argued the cause for the petitioners.
Robert B. Culliford was on brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Jamie P. Rennert, Attorney, Surface Transportation
Board, argued the cause for the respondent. Robert H. Pate
III, Assistant Attorney General, United States Department of
Justice, Ellen D. Hanson, Deputy General Counsel, Craig M.
Keats, Associate General Counsel, Surface Transportation
Board, and Robert B. Nicholson and John P. Fonte, Attor-
neys, United States Department of Justice, were on brief.
Christopher T. Handman argued the cause for the interve-
nors. Nathaniel M. Rosenblatt, George W. Mayo, Jr. and
Eric Von Salzen were on brief.
Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The petition-
ers, subsidiaries of Guilford Transportation Industries, Inc.,
seek review of the decision by the Surface Transportation
Board (STB or Board) to authorize the National Railroad
Passenger Corporation (Amtrak) to operate trains at speeds
of up to 79 mph over a 78–mile rail line owned by Guilford.
Guilford claims the STB orders usurp the jurisdiction of the
Federal Railroad Administration (FRA) because they limit
the safety measures Guilford may implement on the line.
Because Guilford has demonstrated no injury-in-fact, we con-
clude that it lacks standing and that the court therefore lacks
subject-matter jurisdiction over this action.
I.
The track at issue runs between Plaistow, New Hampshire
and Portland, Maine and constitutes a portion of Amtrak’s
proposed passenger route between Boston and Portland. In
the mid–1990s Guilford, Amtrak and the Northern New Eng-
land Passenger Rail Authority1 negotiated the terms for
1 The Northern New England Passenger Rail Authority is ‘‘a
political body and corporation established by the State of Maine to
promote rail passenger service between points in Maine and points
within and outside of Maine.’’ Nat’l R.R. Passenger Corp.—Peti-
3
Amtrak’s use of the line. On March 19, 1997 Amtrak filed an
application with the STB, pursuant to 49 U.S.C.
§ 24308(a)(2),2 to set certain contractual terms on which the
parties had been unable to agree. The STB resolved the
disputed issues and set the terms and compensation for
Amtrak’s access to Guilford’s rail system. Application of the
National Railroad Passenger Corp. Under 49 U.S.C.
§ 24309(A), STB Finance Docket No. 33381, Dec. No. 28270
(May 28, 1998). Under the Board’s decision Amtrak was to
operate trains over Guilford’s track at a maximum speed of 60
mph as the parties had agreed.
On December 11, 1998 Amtrak filed a petition to amend the
agreement to allow trains to operate at speeds up to 79 mph.
The Board, after consulting the FRA and reviewing the
latter’s analysis, determined that installation of 115–pound
continuous welded rail on the line was adequate for safe
operation of trains at speeds up to 79 mph ‘‘provided that the
line is rehabilitated to and maintained at the levels indicated
in the FRA’s analysis.’’ Nat’l R.R. Passenger Corp.—Peti-
tion for Declaratory Order—Weight of Rail, STB Finance
Docket No. 33697, Dec. No. 30426, at 1 (Oct. 21, 1999) (Weight
of Rail I).
tion For Declaratory Order—Weight of Rail, STB Finance Docket
No. 33697, Dec. No. 32705, at 1 n.2 (Jan. 31, 2003).
2 Section 24308 provides:
(a) General authority.—(1) Amtrak may make an agreement
with a rail carrier or regional transportation authority to use
facilities of, and have services provided by, the carrier or
authority under terms on which the parties agree. The terms
shall include a penalty for untimely performance. (2)(A) If the
parties cannot agree and if the Interstate Commerce Commis-
sion finds it necessary to carry out this part, the Commission
shall—
(i) order that the facilities be made available and the
services provided to Amtrak; and
(ii) prescribe reasonable terms and compensation for using
the facilities and providing the services.
4
After the parties reached an impasse over how, when and
how often to test the track for compliance with FRA safety
standards, Amtrak filed a motion for clarification, proposing
specific testing equipment and a specified testing schedule.
The Board, after once again soliciting comment from the
FRA, decided it ‘‘agree[d] with FRA that Amtrak’s proposed
approach is both reasonable and practical.’’ Nat’l R.R. Pas-
senger Corp.—Petition for Declaratory Order—Weight of
Rail, STB Finance Docket No. 33697, Dec. No. 31731, at 5
(June 28, 2001) (Weight of Rail II). Accordingly, the Board
ordered that ‘‘testing in the manner described by Amtrak TTT
should be conducted soon after rehabilitation of the line is
completed’’ and that, if the testing demonstrated the track
complied with the requirements set out in Weight of Rail I,
‘‘then no further track modulus testing will be required,
provided that the line is maintained to FRA Class 4 stan-
dards, the line is subject to routine FRA-mandated track
safety inspections, and the line is periodically inspected by a
track geometry car, as described by Amtrak.’’ Id. at 7.
Although subsequent testing showed the rail met the re-
quirements of Weight of Rail II, Guilford refused to accept
the test results or to permit Amtrak to operate at the
authorized speed. Consequently, Amtrak filed a petition for
further clarification requesting that the Board order Guilford
to permit Amtrak to operate its trains at speeds up to 79
mph. The STB, after reviewing two sets of comments sub-
mitted by the FRA, ordered:
Subject to FRA’s track safety requirements, Guilford
must allow Amtrak to operate over the line at issue at
speeds of up to 79 mph.
Nat’l R.R. Passenger Corp.—Petition For Declaratory Or-
der—Weight of Rail, STB Finance Docket No. 33697, Dec.
No. 33697, at 5 (Jan. 31, 2003) (emphasis added) (Weight of
Rail III). The STB further ordered that the proceeding be
discontinued.
On February 20, 2003 Guilford filed a petition for reconsid-
eration asking the STB for ‘‘clarification that nothing in
Weight of Rail III is intended to render the [FRA’s] regulato-
5
ry framework for railroad safety inapplicable to Amtrak’s
operation over Guilford’s line TTT and that FRA, rather than
this Board, has jurisdiction over any safety-related issues that
might arise in respect of such operation.’’ The STB denied
the petition, concluding that its ‘‘decision in Weight of Rail III
was clear.’’ Nat’l R.R. Passenger Corp.—Petition For De-
claratory Order—Weight of Rail, STB Finance Docket No.
33697, Dec. No. 33412, at 1 (Mar. 19, 2003).
Guilford then filed a petition for review of Weight of Rail
III and the denial of its reconsideration petition.
II.
The Congress has conferred on this court jurisdiction to
‘‘enjoin, set aside, suspend (in whole or in part), or to deter-
mine the validity’’ of a final order of the STB upon timely
filing of a petition of review by ‘‘[a]ny party aggrieved by the
final order.’’ 28 U.S.C.A. §§ 2321, 2342, 2344. Because
Guilford has not demonstrated any harm it suffered as a
result of the challenged orders, we conclude Guilford is not an
‘‘aggrieved’’ party and therefore lacks statutory standing to
bring this action.
Guilford claims it was injured because the Board’s decision
in Weight of Rail III ‘‘limited the applicability of FRA’s track
safety regulatory framework to Amtrak’s use of the [Plaistow
to Portland line].’’ Pet’r’s Br. at 20. By subjecting the line
only to ‘‘FRA’s track safety requirements,’’ Weight of Rail
III at 5 (emphasis added), Guilford contends, the decision
prevents Guilford from taking additional safety measures—
beyond the minimum requirements—as the FRA encourages
track operators to do. See FRA Track Safety Standards
Compliance Manual § 213 (Jan. 1, 2002) (‘‘[T]he rules pre-
scribed herein are minimum requirements for safety and the
railroads are both encouraged and expected to maintain high-
er standards.’’). It is true, as Guilford claims, that primary
jurisdiction over railroad safety belongs to the FRA, not the
STB. See 49 U.S.C. § 103(c) (‘‘The [FRA] Administrator
shall carry out—(1) duties and powers related to railroad
safety vested in the Secretary [of Transportation]TTTT’’);
6
Tyrrell v. Norfolk S. Ry. Co., 248 F.3d 517, 523 (6th Cir. 2001)
(concluding FRA’s primary jurisdiction over safety matters
survives STB’s creation by Interstate Commerce Commission
Termination Act3). Guildford’s claimed injury, however, is a
will-o-the-wisp. As the Board pointed out in its denial of
reconsideration, Weight of Rail III expressly subjected Am-
trak’s use of the line to ‘‘FRA’s safety jurisdiction,’’ anticipat-
ing that ‘‘FRA will maintain oversight to the extent safety
issues are concerned.’’ Weight of Rail III at 1, 4. The
Board’s express recognition of FRA’s primary and continuing
jurisdiction over safety belies Guilford’s reading of Weight of
Rail III. In that decision, as throughout the proceeding
below, the Board properly deferred to the expertise and
jurisdiction of the FRA over matters relating to safety.
Because Guilford has not demonstrated that it suffered
injury as a consequence of the Board’s decision, we conclude
that it is not a ‘‘party aggrieved by the final order’’ of the
Board under 28 U.S.C. § 2344 and that we therefore lack
jurisdiction to review the Board’s order. Cf. Pub. Utility
Dist. No. 1 of Snohomish County, Wash. v. FERC, 272 F.3d
607, 617 (D.C. Cir. 2001) (construing challenged order as
inflicting no injury on petitioners so they were not ‘‘ag-
grieved’’ parties entitled under 16 U.S.C. § 825l to seek
review of order). Accordingly, the petition for review is
Dismissed.
3The Interstate Commerce Commission Termination Act of 1995,
Pub. L. No. 104–88, 109 Stat. 803, abolished the Interstate Com-
merce Commission and established the STB in its stead.