United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2011 Decided March 29, 2011
No. 10-1138
BROTHERHOOD OF RAILROAD SIGNALMEN ET AL.,
PETITIONERS
v.
SURFACE TRANSPORTATION BOARD AND
UNITED STATES OF AMERICA,
RESPONDENTS
MASSACHUSETTS DEPARTMENT OF TRANSPORTATION AND
CSX TRANSPORTATION, INC.,
INTERVENORS
On Petition for Review of an Order
of the Surface Transportation Board
Richard S. Edelman argued the cause for the petitioners.
Michael S. Wolly was on brief.
Jeffrey D. Komarow, Attorney, Surface Transportation
Board, argued the cause for the respondents. Robert B.
Nicholson and John P. Fonte, Attorneys, United States
Department of Justice, and Raymond A. Atkins, General Counsel
and Craig M. Keats, Deputy General Counsel, Surface
Transportation Board, were on brief.
2
Keith G. O'Brien, Peter J. Shudtz and Louis E. Gitomer
were on brief for the intervenors.
Before: HENDERSON, GRIFFITH and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The
petitioners—the Brotherhood of Railroad Signalmen, the
Brotherhood of Maintenance of Way Employees Division/IBT
and the American Train Dispatchers Association (collectively,
Unions)—challenge a decision of the Surface Transportation
Board (STB, Board) holding that the purchase by the
Massachusetts Department of Transportation (MassDOT) of
railroad track and other rail assets from CSX Transportation
(CSXT), which reserved a permanent, exclusive freight
easement over the track, is not the acquisition of a “railroad
line” requiring STB authorization or exemption under the
Interstate Commerce Commission Termination Act of 1995
(ICCTA),1 49 U.S.C. § 10901(a)(4). Mass. Dep’t of
Transp.—Acquisition Exemption—Certain Assets of CSX
Transp., Inc., Fin. Docket No. 35312 (STB May 3, 2010)
(MassDOT Dec.). Because the STB’s decision reflects a
reasonable interpretation of the statute—and in particular of the
term “railroad line” as used therein—we uphold the Board’s
decision.2
1
The ICCTA, Pub. L. No. 104-88, 109 Stat. 803 (1995), abolished
the Interstate Commerce Commission (ICC, Commission), created the
STB, transferred to it the ICC’s remaining regulatory authority and
provided that ICC precedent applies to the STB. N. Am. Freight Car
Ass’n v. Surface Transp. Bd., 529 F.3d 1166, 1169 n.2 (D.C. Cir.
2008).
2
We are satisfied that the Unions have standing under Article III
of the United States Constitution notwithstanding their own failure to
3
clearly articulate the requisite injury. Commuter Rail Div. of Reg’l
Transp. Auth. v. Surface Transp. Bd., 608 F.3d 24, 30 (D.C. Cir. 2010)
(“The ‘irreducible constitutional minimum of standing contains three
elements’: (1) injury-in-fact, (2) causation, and (3) redressability.”
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992))
(internal quotation omitted). The Unions claim in their opening brief
that they and their members are or will be injured because their
collective bargaining agreements with CSXT “were rendered . . .
ineffective as a result of the acquisition,” the Union’s members no
longer have seniority rights under the agreements and, if MassDOT is
not a “carrier” subject to the Railway Labor Act (RLA), it “will not be
obligated to collectively bargain with the Unions” and it “can contract
to have rail work performed by non-carrier entities whose employees
could not be organized under the RLA.” Pet’rs’ Br. 13-14. The
Unions acknowledge, however, that MassDOT’s current system
operator is the Massachusetts Bay Commuter Railroad, which is a
“carrier” subject to the RLA and has collective bargaining agreements
with the Unions thereunder. Pet’rs’ Br. 5 n.2; Intervenor’s Br. 17-18
& n.11. Nor have the Unions alleged their bargaining agreements with
the Massachusetts Bay Commuter Railroad are in any way inferior to
the now “ineffective” bargaining agreements they had with CSXT
covering the same employees. That MassDOT might change to a non-
carrier, non-union operator some time in the future is simply
speculative. See Lujan, 504 U.S. at 583 (1992) (“[W]e have denied
standing to plaintiffs whose likelihood of suffering any concrete
adverse effect from the challenged action was speculative.”).
Nonetheless, the STB acknowledged at oral argument that some of the
Unions’ members have already been displaced as a result of the
acquisition and this constitutes a concrete injury sufficient to confer
representational standing on the Unions. Oral Argument Recording
at 15:50, Bhd. of Signalmen v. Surface Transp. Bd., No. 10-1138 (D.C.
Cir. Feb. 10, 2011); see Ass’n of Flight Attendants-CWA, AFL-CIO v.
U.S. Dept. of Transp., 564 F.3d 462, 464 (D.C. Cir. 2009) (union has
representational standing to litigate on behalf of members if “(a) its
members would otherwise have standing to sue in their own right; (b)
the interests it seeks to protect are germane to the organization's
purpose; and (c) neither the claim asserted nor the relief requested
4
I.
In 2009, MassDOT agreed to purchase from CSXT property
interests in 70-plus miles of track and real estate (Railroad
Assets), including rights-of-way and related assets, in order to
expand the commuter rail system MassDOT operates through its
Massachusetts Bay Transportation Authority (MBTA). Under
the purchase agreement, CSXT retains a permanent and
exclusive freight easement over the track and MassDOT
assumes all of the dispatch and maintenance responsibilities.3
On November 24, 2009, MassDOT filed a notice seeking an
exemption under 49 U.S.C. § 105024 from the statutory
requires the participation of individual members in the lawsuit”)
(internal quotation omitted).
3
The purchase of the Railroad Assets is to take place in two
stages. The first occurred on June 11, 2010 and the second is expected
to occur in 2012.
4
Section 10502(a) provides:
In a matter related to a rail carrier providing
transportation subject to the jurisdiction of the Board under
this part, the Board, to the maximum extent consistent with
this part, shall exempt a person, class of persons, or a
transaction or service whenever the Board finds that the
application in whole or in part of a provision of this part—
(1) is not necessary to carry out the transportation
policy of section 10101 of this title; and
(2) either–
(A) the transaction or service is of limited
scope; or
(B) the application in whole or in part of the
5
requirement that a “person other than a rail carrier” obtain a
certificate of authorization in order to “acquire a railroad line.”
49 U.S.C.§ 10901(a)(4).5 At the same time, MassDOT also filed
a motion to dismiss the notice on the ground that neither
authorization nor exemption therefrom was required because the
Railroad Assets do not constitute a “railroad line” within the
meaning of section 10901(a)(4).
In a May 3, 2010 decision, the STB granted MassDOT’s
motion to dismiss based on a line of precedent extending back
almost 20 years to its decision in Maine Department of
Transportation—Acquisition & Operation Exemption—Maine
Central Railroad Co., 8 I.C.C. 2d 835 (ICC 1991) (State of
Maine). In State of Maine, the STB’s predecessor—the
provision is not needed to protect shippers from
the abuse of market power.
49 U.S.C. § 10502(a).
5
Subsection 10901(a)(4) provides in its entirety:
A person may—
...
(4) in the case of a person other than a rail carrier,
acquire a railroad line or acquire or operate an
extended or additional railroad line,
only if the Board issues a certificate authorizing such
activity under [section 10901(c)].
49 U.S.C. § 10901(a)(4). Under Section 10901(b), the acquiring
entity must file an application and the Board must provide public
notice of the certification proceeding. Id. § 10901(b). “The Board
shall issue a certificate authorizing activities for which such authority
is requested . . . unless the Board finds that such activities are
inconsistent with the public convenience and necessity.” Id.
§ 10901(c).
6
ICC—concluded it lacked jurisdiction under section 10901 over
the State of Maine’s acquisition of 15.66 miles of railroad track
from the Maine Central Railroad Company (Maine Central)
because the State of Maine purchased only physical assets, while
Maine Central retained a permanent easement to conduct its
common carrier freight operations. The ICC explained it did not
consider the transaction to constitute the acquisition of “a
railroad line” triggering mandatory review under section
10901(a)(4) because “no common carrier rights or obligations
[we]re being transferred” as “both parties agree[d] that [Maine
Central] retain[ed] the common carrier obligation and that it
could not cease to offer service on the line without ICC
permission.” 8 I.C.C. 2d at 837.
Granting MassDOT’s motion to dismiss, the Board
concluded the Unions did not meet their burden of showing that
a departure from State of Maine—which the ICC and STB have
followed in more than 60 cases—was “warranted . . . as a matter
of law or policy.” MassDOT Dec. 6-7 (citing Nat’l Cable &
Telecomms. Ass’n v. FCC, 567 F.3d 659, 667 (D.C. Cir. 2009)).
The Board underscored the policy reasons behind the State of
Maine decision, noting that the “main reason is ‘to remove
obstacles which might inhibit States from acquiring lines so that
service can be continued,’ ” while “ensur[ing] long term freight
service to shippers”—with the “added benefit” of “facilitat[ing]
intrastate commuter operations.” MassDOT Dec. at 7 (quoting
State of Maine, 8 I.C.C. 2d at 837 n.7) (internal quotation
omitted). The same policies, the Board explained, are served
here because MassDOT’s acquisition of the Railroad Assets will
assure that adequate freight service as well as intercity passenger
service continues and will allow MassDOT to expand commuter
rail passenger service as well. Id. By contrast, abruptly
abandoning State of Maine’s policy “could have widespread
impacts on transportation planning throughout the country.” Id.
at 8. The Unions timely petitioned for review.
7
II.
Notwithstanding the long line of agency precedent applying
State of Maine, the Unions argue it was wrongly decided
because its holding is inconsistent with the statutory language
and with other precedent. We address each of their arguments
in turn.
A. The Statutory Language
First, the Unions assert that the language of section 10901
unambiguously mandates that MassDOT obtain STB
authorization or exemption therefrom before it may acquire the
Railroad Assets. “We review the [Board’s] interpretation of
section 10901, a statute it is charged with enforcing, under the
principles set forth in Chevron USA[] Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984).” Detroit/Wayne
County Port Auth. v. ICC, 59 F.3d 1314, 1315 (D.C. Cir. 1995).
At Chevron step 1, if the “Congress has directly spoken to the
precise question at issue,” we “must give effect to the
unambiguously expressed intent of Congress.” Chevron, 467
U.S. at 842-43. “If, however, the court determines Congress has
not directly addressed the precise question at issue” but is “silent
or ambiguous with respect to the specific issue, the question for
the court”—at Chevron step 2—“is whether the agency’s answer
is based on a permissible construction of the statute.” Id. at 843.
At issue here is the proper interpretation of the term “railroad
line” and whether it may encompass more than “simply a
portion of a railroad” consisting of “physical assets.” Pet’rs’
Br. 21.
The ICCTA does not define “railroad line” but it does
define “railroad” as
8
includ[ing]—
(A) a bridge, car float, lighter, ferry, and
intermodal equipment used by or in
connection with a railroad;
(B) the road used by a rail carrier and
owned by it or operated under an agreement;
and
(C) a switch, spur, track, terminal,
terminal facility, and a freight depot, yard,
and ground, used or necessary for
transportation; . . . .
49 U.S.C. § 10102(6). Relying on this definition, the Unions
assert that a “railroad line is simply a portion of a railroad,”
reasoning:
[I]f “railroad” is defined as including track, switches,
spurs, and roadbed, a “railroad line” is necessarily
comprised of track, switches, spurs, and roadbed.
Accordingly, the Section 10901 requirement for Board
approval of a non-carrier’s acquisition of a railroad line
means the physical assets of the line; the road, track,
roadbed, bridges, switches, and spurs, used for railroad
transportation.
Pet’rs’ Br. 21. Thus, the Unions maintain, section 10901(a)(4)
requires that the Board must either authorize or exempt
MassDOT’s acquisition of the physical assets which constitute
a portion of CSXT’s railroad. But the Union’s focus on the
statutory definition of “railroad” ignores that the operative term
here is “railroad line.” See Nicholson v. ICC, 711 F.2d 364, 369
(D.C. Cir. 1983) (“There is a distinction in the statute between
‘railroad’ and ‘railroad line.’ Petitioner’s reasoning simply
ignores the significance of the term ‘line’ in the phrase ‘railroad
line’ . . . .”) (citation omitted). Nor is “railroad line” necessarily
9
limited to a “portion” of a railroad’s assets; it may refer to a
railroad’s entire railroad operation. See VIII Oxford English
Dictionary 978 (2d ed. 1989) (“line”: “In railway lang[uage] . . .
applied . . . sometimes to an entire system of railways under one
management”); Princeton Univ., “railroad line,” WordNet 3.0,
http://wordnetweb.princeton.edu (last visited Mar. 24, 2011)
(“railroad line” is “line that is the commercial organization
responsible for operating a system of transportation for trains
that pull passengers or freight”). Because “railroad line” is an
ambiguous term and the ICCTA is silent on its meaning, it is left
to the STB to reasonably interpret the term at Chevron step 2.
Cf. Detroit/Wayne County Port Auth., 59 F.3d at 1316 (D.C.
Cir. 1995) (“Because the Transportation Act nowhere defines
the terms ‘extension’ or ‘addition,’ we proceed to step two of
Chevron to determine whether the Commission’s interpretation
of section 10901(a) is permissible.”).
Since State of Maine, the STB has defined “railroad line” to
include not only physical railroad property but also the interstate
freight transportation authority attached to the physical property.
As the Board observed, “ordinarily, the Board exercises its
regulatory authority under section 10901(a)(4) where a
noncarrier becomes a carrier by acquiring a railroad line” and
“typically the noncarrier is acquiring the rail line in order to
become a carrier and provide the transportation in place of the
selling carrier, which typically relinquishes some or all of its
right to use the line.” MassDOT Dec. 7. But “in the State of
Maine situation, the parties’ intent and the purpose of the sale is
the opposite of the typical section 10901(a)(4) sale”: “The seller
does not relinquish its rights and obligations with respect to
providing rail freight transportation” and “the noncarrier that
purchases the physical assets of a rail line does not thereby
assume any common carrier obligation.” Id. Here, as in State
of Maine, the right to provide the common carrier service
remains with CSXT, the selling carrier, because it reserved for
itself a permanent and exclusive freight carrier easement.
10
Accordingly, the Board determined the noncarrier did not
become “a rail carrier providing transportation” and the
acquisition is not subject to section 10901(a)(4)’s authorization
requirement. Id.; see also State of Maine, 8 I.C.C. 2d at 836-37
(“Under § 10901, we have exclusive jurisdiction over the
acquisition of a railroad line by a non-carrier (including a State)
where the common carrier rights and obligations are also to be
transferred, in whole or in part. Here, however, no common
carrier rights or obligations are being transferred.”) (citation
omitted). As we have previously observed, the STB’s treatment
of the transaction is a sensible one. See United Transp.
Union-Illinois Legislative Bd. v. ICC, 52 F.3d 1074, 1078 (D.C.
Cir. 1995) (“[W]e can appreciate the logic of State of Maine
with respect to section 10901 acquisitions by noncarriers: if the
noncarrier does not thereby also acquire common carrier
obligations, it is not, nor will it become, a ‘rail carrier providing
transportation subject to the jurisdiction’ of the Commission,
and hence section 10901(a) does not give the Commission
jurisdiction over the transaction.” (quoting 49 U.S.C. § 10901(a)
(1995))).6 By contrast, as the Board points out, the Unions’
approach ignores the intended use of the Railroad Assets, which
is key to determining whether a person is a “rail carrier” subject
6
This interpretation is not, as the Unions contend, “inconsistent
with [the Board’s] treatment of the related . . . transaction” in
Massachusetts Coastal Railroad LLC—Acquisition—CSX
Transportation Inc., Fin. Docket No. 35314, 2010 WL 4974575 (STB
Mar. 29, 2010). Pet’rs’ Br. 23-24 n.9. There the Board addressed the
meaning of “property” in 49 U.S.C. § 11323, which separately
subjects to Board jurisdiction and requires Board approval or
authorization of the “purchase, lease, or contract” by one carrier “to
operate property of another rail carrier.” 49 U.S.C. § 11323(a)(2). In
any event, it was because Massachusetts Coastal (unlike MassDOT)
acquired a “permanent rail freight easement” that the STB exercised
jurisdiction over the transaction. See Mass. Coastal, 2010 WL
4974575, at *4.
11
to the Board’s jurisdiction. See 49 U.S.C. § 10102(5) (“ ‘rail
carrier’ means a person providing common carrier railroad
transportation for compensation”); cf. Nicholson, 711 F.2d at
367 (“[W]hether a particular track segment is a ‘railroad line,’
requiring Commission authorization pursuant to section
10901(a), or a ‘spur, industrial, team, switching, or side’ track,
exempt from Commission jurisdiction pursuant to section
10907(b), turns on the intended use of the track segment . . . .”)
(footnote omitted).
In sum, because the Board’s interpretation of “railroad line”
as including the right to operate as a common carrier is
consistent with common usage and leads to a logical application
of section 10901’s authorization requirement, limited to actual
carriers only, we conclude it passes muster at Chevron step 2.
B. Other Decisions
The Unions contend the decisions in State of Maine and
here are inconsistent with other agency and judicial decisions.
We disagree because we find each of the cited decisions
distinguishable.
First, the Unions cite earlier ICC decisions involving the
acquisitions of railroad lines by governmental entities for
intrastate rail transportation. They assert, for example, that State
of Maine is inconsistent with the ICC’s decision in Common
Carrier Status of States, State Agencies & Instrumentalities, &
Political Subdivisions, 363 I.C.C. 132, aff’d, Simmons v. ICC,
697 F.2d 326 (D.C. Cir. 1982), in which the ICC determined that
a state’s acquisition of a fully abandoned line or a line
“approved for abandonment and not yet fully abandoned” was
subject to section 10901’s authorization requirement but should
be exempted from it under 49 U.S.C. § 10505 (now § 10502,
supra note 4). 363 I.C.C. at 141. Unlike Maine or MassDOT,
however, a state acquiring an abandoned (or soon to be
abandoned) line acquires not only the physical assets but also
12
the rights (and concomitant obligations) of freight carriage
formerly possessed by the abandoning carrier, which retains no
rights in the abandoned line. By contrast, in dismissing
MassDOT’s notice of exemption, the Board determined that
because CSXT (like Maine Central) reserved the freight rights
to the acquired property permanently and exclusively, MassDOT
(like the State of Maine) did not acquire the rail line so that its
acquisition of the Railroad Assets by themselves was not subject
to section 10901’s authorization requirement in the first instance
and therefore did not need to be exempted from it.
Similarly, in City of Austin, Texas—Acquisition—Southern
Pacific Transportation Co., Fin. Docket No. 30861(A), 1986
WL 1166762 (ICC Nov. 4, 1986), the ICC required the City of
Austin to obtain its authorization because, as the Commission
explained in State of Maine, Austin in fact “assumed a common
carrier obligation (even though it did not intend to operate the
line itself), because by acquiring full ownership of the line it
necessarily assumed responsibility for contracting with, and
ensuring continued service by, a rail operator.” 8 I.C.C. 2d at
838 n.6 (emphasis added). Unlike CSXT, the seller there
retained no easement.
The Unions rely particularly on Staten Island Rapid Transit
Operating Authority v. ICC, 718 F.2d 533 (2d Cir. 1983), aff’g
Bhd. of Locomotive Eng’rs v. Staten Island Rapid Transit
Operating Auth., 360 I.C.C. 464 (1979), in which the Second
Circuit upheld the ICC’s determination that the municipality’s
transit authority became a common carrier when it purchased a
rail line to operate local passenger service because it also had
“concurrent responsibilities for maintenance of the line for
interstate freight service” so as to “bring[] it within the
[Interstate Commerce Act].” 718 F.2d at 539. It is true that the
seller there, like CSXT, retained the right to operate freight
service. Unlike CSXT, however, it did so not through a
permanent and exclusive easement but through a trackage rights
13
agreement separate from (albeit incorporated into) the purchase
and sale agreement. The ICC determined that the seller’s
contractual reservation of freight service “reliev[ed]” the
municipality from the obligation to provide such service “but
only so long as the authorized trackage rights arrangement
remain[ed] in effect.” 360 I.C.C. at 472. Because the
municipality had received from the ICC “an unqualified
certificate of public convenience and necessity” to acquire the
line, it had an “implicit duty under the certificate of furnishing
adequate freight service in interstate commerce (which duty
l[ay] latent so long as substitute freight service [wa]s being
fulfilled by [the seller] under a trackage rights arrangement).”
Id. at 472-74; see also Staten Island, 718 F.2d at 539-40. In
contrast, MassDOT received no “unqualified” right to the
Railroad Assets—its right is qualified by CSXT’s permanent
and exclusive freight service easement—and therefore acquired
no obligation (latent or otherwise) to provide freight service.
Finally, the Unions assert that since State of Maine was
decided, the enactment of the ICCTA has broadened the Board’s
jurisdiction through unidentified “provisions” and cases have so
“held,” extending the Board’s jurisdiction beyond interstate to
include intrastate railroad transportation. Pet’rs’ Br. 37-38.
None of the cited cases, however, addresses section 10901 or
when authorization or exemption is required. Instead, each
considers the different issue of when state law regulation of rail
carrier transportation is preempted under 49 U.S.C. § 10501(b).
See Franks Inv. Co. v. Union Pac. R.R., 534 F.3d 443 (5th Cir.
2008), rev’d, 593 F.3d 404 (5th Cir. 2010) (en banc); Norfolk S.
Ry. v. City of Austell, Ga., 1997 WL 1113647, at *6 (N.D. Ga.
Aug. 18, 1997); CSX Transp. v. Ga. Pub. Serv. Comm’n, 944 F.
Supp. 1573, 1583 (N.D. Ga 1996); Burlington N. Santa Fe Corp.
v. Anderson, 959 F. Supp. 1288 (D. MT 1997).
14
C. Reliance on State of Maine
The Unions also attempt to undermine the STB’s reliance
on State of Maine. To begin, they distinguish State of Maine on
the ground that, unlike MassDOT, Maine did not take over
dispatching and maintenance responsibilities for the freight
service. This is true but the STB adequately accounted for this
distinction. The Board noted its policy that, even where freight
rights are retained by the seller, the Board will find there has
been a jurisdictional acquisition if the rights acquired by the
purchaser are “so extensive that the noncarrier has acquired
control of the rail line,” a determination it makes on a case by
case basis. MassDOT Dec. at 8. “Early on, the ICC applied a
relatively strict standard” but over time “determined that
reasonable restrictions on freight operations are acceptable if
necessary to permit commuter operations and the freight carrier
has sufficient access to conduct its existing and reasonably
foreseeable freight operations so that it can satisfy its common
carrier obligation.” Id. at 9. With regard to maintenance and
dispatching in particular, the Board explained that “the public
agency may assume responsibility for maintaining the line and
dispatching freight operations if the operating procedures are
reasonable and do not discriminate against freight service, and
if the freight carrier has the right to inspect and to request
prompt repair of any track defects.” Id. at 9-10 (citing Metro
Reg’l Transit Auth.—Acquisition Exemption—CSX Transp., Inc.,
Fin. Docket No. 33838, slip op. at 2-3 (STB served Oct. 10,
2003); Utah Transit Auth.—Acquisition Exemption—Union Pac.
R.R., Fin. Docket No. 35008, slip op. at 4 (STB served July 23,
2007); Sacramento-Placerville Transp. Corridor Joint Powers
Auth.—Acquisition Exemption—Certain Assets of S. Pac.
Transp. Co., Fin. Docket No. 33046, slip op. at 2 (STB served
Oct. 28, 1996); Los Angeles County Transp. Comm’n—Pet. for
Exemption—Acquisition from Union Pac. R.R. Co., Fin. Docket
Nos. 32374 et al., slip op. at 2 (STB served July 23, 1996)). We
find the Board’s policy a reasonable one as it provides that the
15
responsible jurisdictional carrier—here CSXT—has the
opportunity to ensure the tracks are being adequately maintained
and available for interstate freight transportation.
The Unions further fault the STB’s emphasis on its
longstanding and extensive application of State of Maine, noting
that in the decision’s progeny, there were “no oppositions to the
motions to dismiss, no participation by any other party, no
additional analysis by the ICC/STB, and the ICC/STB merely
repeated the State of Maine holding in discussions of the issue
limited to ½ page to 1 page.” Pet’rs’ Br. 40. Thus, the Unions
maintain: “What the Board has characterized as a
well-established, well-vetted line of precedent is merely the
continuous echo of a ruling that was without foundation.” Id. at
42. The combination of some 60 decisions and no challenge
thereto in 20 years, however, suggests that potential opponents
deemed such a challenge fruitless, perhaps in recognition that
the Board’s interpretation of section 10901(a)(4) is reasonable.
In any event, that the Board has repeatedly interpreted the
statute the same way for 20 years does indeed warrant
deference. See Barnhart v. Walton, 535 U.S. 212, 220 (2002)
(“[T]his Court will normally accord particular deference to an
agency interpretation of longstanding duration.”) (citation
omitted).7
7
The Unions also argue that the STB either has jurisdiction over
the transaction or it does not and that the Board tried to have it both
ways by disclaiming jurisdiction to authorize the purchase vel non,
while at the same time purporting to “continue to have jurisdiction
over the rail property.” MassDOT Dec. at 3 n.4. We see nothing
inconsistent or illogical in the Board’s policy, which distinguishes
between the transfer of physical assets and the transfer of the right to
use the assets as an interstate freight carrier. It is the latter that
subjects a carrier to the Board’s jurisdiction.
16
For the foregoing reasons, the petition for review is denied.
So ordered.