National Railroad Passenger Corporation v. Boston & Maine Corporation – Oral Argument – January 13, 1992

Media for National Railroad Passenger Corporation v. Boston & Maine Corporation

Audio Transcription for Opinion Announcement – March 25, 1992 in National Railroad Passenger Corporation v. Boston & Maine Corporation

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William H. 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.

John G. Roberts, Jr.:

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–

William H. Rehnquist:

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

John G. Roberts, Jr.:

–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.

Sandra Day O’Connor:

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?

John G. Roberts, Jr.:

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.

Sandra Day O’Connor:

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?

John G. Roberts, Jr.:

No, Your Honor.

Sandra Day O’Connor:

It’s a fee or nothing?

John G. Roberts, Jr.:

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.

Sandra Day O’Connor:

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

John G. Roberts, Jr.:

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.

Anthony M. Kennedy:

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

John G. Roberts, Jr.:

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.

Antonin Scalia:

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.

John G. Roberts, Jr.:

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

Antonin Scalia:

Not on the basis of the amendment.

John G. Roberts, Jr.:

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.

Antonin Scalia:

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.

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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

Antonin Scalia:

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.

John G. Roberts, Jr.:

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–

Antonin Scalia:

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.

John G. Roberts, Jr.:

–Well, then let me turn to the–

Antonin Scalia:

You don’t want to waste all that time, do you?

John G. Roberts, Jr.:

–No, I–

Antonin Scalia:

It will only come out the same way.

John G. Roberts, Jr.:

–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–

William H. Rehnquist:

Same way Thomas Jefferson read the necessary and proper clause.

John G. Roberts, Jr.:

–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–

William H. Rehnquist:

What section are you reading now, Mr. Roberts?

John G. Roberts, Jr.:

–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.

John G. Roberts, Jr.:

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–

William H. Rehnquist:

You’re talking about 402(a) and 402(b).

John G. Roberts, Jr.:

–(d), I’m sorry if I–

William H. Rehnquist:

(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?

John G. Roberts, Jr.:

–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).

William H. Rehnquist:

The appendix to the Government’s brief?

John G. Roberts, Jr.:

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.

Antonin Scalia:

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.

John G. Roberts, Jr.:

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.

Antonin Scalia:

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.

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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.

David H. Souter:

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?

John G. Roberts, Jr.:

The significantly–

David H. Souter:

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?

John G. Roberts, Jr.:

–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–

David H. Souter:

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?

John G. Roberts, Jr.:

–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–

David H. Souter:

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?

John G. Roberts, Jr.:

–Because Boston and Maine retains trackage rights to serve its customers on the line.

David H. Souter:

It doesn’t need it.

John G. Roberts, Jr.:

Pardon me?

David H. Souter:

It doesn’t need it.

John G. Roberts, Jr.:

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.

Antonin Scalia:

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?

John G. Roberts, Jr.:

No.

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

Antonin Scalia:

Are unable to agree.

John G. Roberts, Jr.:

–upon terms for the sale.

John G. Roberts, Jr.:

The Commission–

Antonin Scalia:

Now, you think that means nothing more… what was the actual condemnation price here, $2.5 million?

John G. Roberts, Jr.:

–It’s still subject to challenge.

That’s an issue.

Antonin Scalia:

Give or take a little–

John G. Roberts, Jr.:

The Commission found $2.3 million.

Antonin Scalia:

–$2.3 million, and Amtrak came in, and how much did Amtrak offer?

John G. Roberts, Jr.:

A million.

Antonin Scalia:

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.

John G. Roberts, Jr.:

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

Antonin Scalia:

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?

John G. Roberts, Jr.:

If there is, it was satisfied in this case.

I… what the–

Antonin Scalia:

Was that a finding below?

John G. Roberts, Jr.:

–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.

Antonin Scalia:

I’m waiting for your good-faith effort.

John G. Roberts, Jr.:

It was when I quoted the part about a valid purchase… a valid offer to purchase the line.

Antonin Scalia:

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.

John G. Roberts, Jr.:

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.

Antonin Scalia:

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.

Antonin Scalia:

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.

John G. Roberts, Jr.:

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.

Antonin Scalia:

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.

John G. Roberts, Jr.:

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.

Antonin Scalia:

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–

John G. Roberts, Jr.:

Well, they wanted–

Antonin Scalia:

–and they thought that would be–

John G. Roberts, Jr.:

–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.

Sandra Day O’Connor:

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

John G. Roberts, Jr.:

Yes, but the… I guess it was a concurring opinion by… yes.

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

John G. Roberts, Jr.:

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

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

Sandra Day O’Connor:

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.

John G. Roberts, Jr.:

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.

William H. Rehnquist:

Very well, Mr. Roberts.

Mr. Goldbloom, we’ll hear from you.

Irwin 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.

William H. Rehnquist:

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?

Irwin 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.

William H. Rehnquist:

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?

Irwin 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.

Irwin Goldbloom:

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.

Antonin Scalia:

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.

Irwin 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.

John Paul Stevens:

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?

Irwin Goldbloom:

No, we’re not arguing… Justice Stevens, we’re not arguing that they did not require the use of this trackage.

John Paul Stevens:

I see.

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

Irwin 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.

David H. Souter:

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?

Irwin Goldbloom:

No, Justice Souter.

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

David H. Souter:

Well, I’m assuming that they’re taking it from another railroad.

Irwin Goldbloom:

–It may be property.

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

David H. Souter:

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

Irwin 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.

Sandra Day O’Connor:

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.

Sandra Day O’Connor:

Now, isn’t that right?

Irwin 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–

Sandra Day O’Connor:

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

Irwin Goldbloom:

–That’s because the statute requires that.

Sandra Day O’Connor:

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

Irwin 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.

Antonin Scalia:

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?

Irwin 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–

Antonin Scalia:

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.

Irwin 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.

John Paul Stevens:

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?

Irwin 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.

John Paul Stevens:

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

Irwin Goldbloom:

Yes, Justice Stevens–

You do.

Irwin Goldbloom:

–because we don’t believe the statute as amended affects the result in this case.

John Paul Stevens:

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.

Irwin 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.

Irwin Goldbloom:

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–

David H. Souter:

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?

Irwin 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.

Irwin Goldbloom:

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–

William H. Rehnquist:

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

Irwin 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.

William H. Rehnquist:

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

Irwin Goldbloom:

Unable to agree–

William H. Rehnquist:

Yes.

Irwin Goldbloom:

–is one.

William H. Rehnquist:

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

Irwin 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.

John Paul Stevens:

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?

Irwin Goldbloom:

Well, of property… I read property as being the fee.

Anthony M. Kennedy:

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.

Irwin Goldbloom:

Yes.

This is what they’re seeking to condemn.

The… this is the subject of the condemnation.

Anthony M. Kennedy:

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

Irwin 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.

Anthony M. Kennedy:

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.

Irwin Goldbloom:

There were negotiations with… between Amtrak and Boston and Maine–

Anthony M. Kennedy:

And they were unsuccessful.

Irwin 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.

William H. Rehnquist:

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

Irwin Goldbloom:

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

They–

Byron R. White:

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

Irwin Goldbloom:

–Yes.

Byron R. White:

Don’t you just have to… it’s going to go back to the Commission, isn’t it?

Irwin 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–

Byron R. White:

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

Irwin 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.

Sandra Day O’Connor:

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.

Irwin 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.

Anthony M. Kennedy:

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?

Irwin 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.

Anthony M. Kennedy:

But there’s been payment of fair compensation, of course, by definition.

Irwin 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.

Antonin Scalia:

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?

Irwin Goldbloom:

No, Your–

Antonin Scalia:

What more should have been done?

Irwin 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–

Antonin Scalia:

Is your client willing to sell at any price?

Irwin 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.

John Paul Stevens:

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

Irwin Goldbloom:

It was long before that.

John Paul Stevens:

But after that, in their responsive letter, they didn’t discuss sale.

Irwin Goldbloom:

In their responsive letter they did not.

John Paul Stevens:

They suggested negotiating a trackage–

Irwin Goldbloom:

They suggested negotiating.

William H. Rehnquist:

–Thank you, Mr. Goldbloom.

Mr. Roberts, you have 5 minutes remaining.

John G. Roberts, Jr.:

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.

Byron R. White:

Is that part of your case that Amtrak needed the fee?

John G. Roberts, Jr.:

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

Byron R. White:

That hardly answers my question.

John G. Roberts, Jr.:

Yes, Amtrak did need the fee.

One reason it needed the fee–

Byron R. White:

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?

John G. Roberts, Jr.:

–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–

Byron R. White:

Well, now, who… the Commission never made that finding–

John G. Roberts, Jr.:

–Well, there–

Byron R. White:

–Did it?

John G. Roberts, Jr.:

–It did make a need finding, yes.

Byron R. White:

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

John G. Roberts, Jr.:

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

Byron R. White:

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

John G. Roberts, Jr.:

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

Byron R. White:

Well, I guess I’ll just have to read the… look at the–

John G. Roberts, Jr.:

The Commission–

Byron R. White:

–They didn’t say that, did they?

John G. Roberts, Jr.:

–The Commission did not make the findings about Boston and–

Byron R. White:

Well, that’s what… the court of appeals didn’t think it made that finding.

John G. Roberts, Jr.:

–It did not, and our position is that it doesn’t have to.

Nothing–

Byron R. White:

And Judge Ginsburg didn’t make that finding.

John G. Roberts, Jr.:

–She would have sent back for further–

Byron R. White:

You don’t disagree with that, do you?

John G. Roberts, Jr.:

–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–

Byron R. White:

Well, need… you could say, well, maybe they found need but they didn’t give an adequate explanation of it.

John G. Roberts, Jr.:

–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.

David H. Souter:

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.

John G. Roberts, Jr.:

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.

David H. Souter:

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.

John G. Roberts, Jr.:

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.

David H. Souter:

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).

David H. Souter:

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.

John G. Roberts, Jr.:

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.

Byron R. White:

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

John G. Roberts, Jr.:

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

I know.

I know–

John G. Roberts, Jr.:

Boston and Maine–

Byron R. White:

–But they didn’t need to own the fee for any more than a day, I guess.

John G. Roberts, Jr.:

–Well, if they didn’t have the fee they wouldn’t have been able to engage in the transaction.

Byron R. White:

Why wouldn’t they… why did they have to take the fee away from the Boston and Maine?

John G. Roberts, Jr.:

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.

Byron R. White:

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.

John G. Roberts, Jr.:

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.

Byron R. White:

You say, need is presumed.

John G. Roberts, Jr.:

Need is presumed.

That’s exactly what the statute says.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Roberts.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.