J. PAUL PRESEAULT AND PATRICIA PRESEAULT, PETITIONERS V. INTERSTATE COMMERCE COMMISSION, ET AL. No. 88-1076 In The Supreme Court Of The United States October Term, 1989 On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The Federal Respondents TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Summary of Argument Argument: I. The order of the Interstate Commerce Commission is not an unconstitutional taking of petitioners' claimed property A. A taking of property is constitutional if just compensation is available B. Congress has not repealed petitioners' Tucker Act remedy C. Section 8(d) of the Trails Act is not unconstitutional on its face even if Congress withdrew the Tucker Act remedy II. Section 8(d) is a valid exercise of Congress's power under the Commerce Clause Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-13) is reported at 853 F.2d 145. The final decision of the Interstate Commerce Commission denying reconsideration (Pet. App. 47-54) is reported at 3 I.C.C.2d 903. JURISDICTION The judgment of the court of appeals (Pet. App. 56) was entered on August 4, 1988. A petition for rehearing was denied on September 28, 1988. Pet. App. 57. The petition for a writ of certiorari was filed on December 27, 1988, and certiorari was granted on April 24, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED Petitioners claim to own a reversionary interest in a portion of a right-of-way used by the Vermont Railway, Inc. The questions are: 1. Whether an order of the Interstate Commerce Commission that allows the City of Burlington to use that right-of-way as a nature trail is invalid as an unconstitutional taking of petitioners' property. 2. Whether the statute authorizing the use of the right-of-way as a nature trail is unconstitutional because it exceeds Congress's authority under the Commerce Clause of the Constitution. STATEMENT 1. This case involves the interplay between the Interstate Commerce Act, 49 U.S.C. 10101 et seq., and the National Trails System Act, 16 U.S.C. 1241 et seq. Under the Interstate Commerce Act, a rail carrier generally must continue to offer service over its lines to shippers unless it first obtains authority from the Interstate Commerce Commission (ICC or Commission) to abandon the lines. See 49 U.S.C. 10903 et seq. (1982 & Supp. V 1987). In deciding whether to authorize an abandonment, the Commission must determine whether "the present or future public convenience and necessity require or permit the abandonment." 49 U.S.C. 10903(a). The ICC's authority over rail line abandonment is exclusive and plenary. Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 319 (1981). The National Trails System Act (Trails Act) was enacted in 1968 to establish a nationwide system of nature trails. /1/ In 1983, Congress amended the Trails Act (the 1983 Amendments) to advance its declared policies of promoting nature trails and preserving unused railroad rights-of-way for possible future use by railroads. See National Trails Systems Act Amendments of 1983, Pub. L. No. 98-11, 97 Stat. 48. In the 1983 Amendments, Congress added Section 8(d) to the Trails Act (16 U.S.C. 1247(d) (Supp. V 1987)), which provides that rights-of-way that might otherwise be abandoned may be preserved and used on an interim basis as nature trails. /2/ Section 8(d) states that "such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes." Under Section 8(d), a local government or private organization must agree to maintain the right-of-way for possible future railroad use. Section 8(d) thereby relieves the railroad of financial responsibility for the right-of-way until the railroad reactivates rail service over the line. /3/ The passage of Section 8(d) followed a history of congressional concern about the loss of rail corridors. The Regional Rail Reorganization Act of 1973, 45 U.S.C. 701 et seq., was enacted in response to the decline of railroads in the United States after World War II. One goal of that legislation was "the preservation * * * of existing patterns of service by railroads (including short-line and terminal railroads), and of existing railroad trackage in areas in which fossil fuel natural resources are located * * *." 45 U.S.C. 716(a). Later, Congress enacted the Railroad Revitalization and Regulatory Reform Act of 1976 (4R Act), Pub. L. No. 94-210, 90 Stat. 31, to further address the continuing decline of the railroad industry. The 4R Act directed the Secretary of Transportation to study the possibility of "establishing a rail bank consisting of selected * * * rights-of-way, as a means of assuring their availability for potential railroad use in the future * * *" (Section 809(a), 90 Stat. 144, 145). After those attempts to preserve rail corridors met with only minor success, Congress enacted Section 8(d) of the Trails Act. See H.R. Rep. No. 28, 98th Cong., 1st Sess. 8-9 (1983). 2. Petitioners are Vermont landowners who claim to hold a reversionary interest in a railroad right-of-way adjacent to their land. Until 1975, Vermont Railway, Inc., operated rail service over that line under a lease from the State of Vermont. Pet. App. 3-4. The State claims that it owns the right-of-way in fee simple (id. at 4). Petitioners, however, contend that they own title to the land, subject only to an easement for railroad purposes. Accordingly, after active rail operations had ceased, petitioners brought a quite-title actuib ub state court. The Supreme Court of Vermont dismissed that action on the ground that the ICC had exclusive jurisdiction over the right-of-way because it had not authorized the abandonment of the line. Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d 151 (1985). Petitioners then filed with the ICC a petition seeking a certificate of abandonment for the rail line. While that petition was pending, Vermont Railway and the State of Vermont (Vermont) filed with the Commission a request to be relieved of their common carrier obligation (J.A. 43-53). Vermont informed the Commission of its intent to enter into an interim trail use agreement with the City of Burlington under Section 8(d) of the Trails Act. The ICC granted Vermont's request to be relieved of its obligation to provide rail service (J.A. 55-59). /4/ The Commission also dismissed petitioners' request for a ruling that Vermont and Vermont Railway had abandoned the line, de facto, in 1975 (Pet. App. 49). Petitioners then filed a petition for reconsideration that raised a number of issues under the Trails Act. The Commission denied that petition (Pet. App. 47-54). The ICC ruled that the agreement between Vermont (the railroad carrier) and the City of Burlington (the proposed trail user) satisfied the requirements of the Trails Act (id. at 50). In particular, the Commission noted that the "right-of-way is available for restoration for railroad purposes, as required by the Trails Act" (ibid.). 3. Petitioners sought review of the Commission's final order in the Second Circuit. Petitioners argued that Section 8(d) of the Trails Act is unconstitutional on its face because it is not a valid exercise of Congress's Commerce Clause power and because it takes private property without just compensation. The court of appeals upheld the Commission's order. In rejecting the Commerce Clause challenge, the court stated: "The challenged section of the Trails Act serves two purposes: (1) preserving rail corridors for future railroad use and (2) permitting public recreational use of trails. Both purposes are legitimate congressional goals under the commerce clause." Pet. App. 9. The court then observed that Section 8(d) is a "remarkably efficient and sensible way to achieve both goals." Pet. App. 10. The court of appeals also rejected (Pet. App. 10-13) petitioners' assertion that Section 8(d) is unconstitutional on its face because it effects a taking of private property without just compensation. The court noted that petitioners purport to hold a reversionary interest in the right-of-way at issue (Pet. App. 12). The court ruled, however, that "(t)he ICC has plenary and exclusive authority to determine whether it is appropriate under all the circumstances to allow a railroad carrier to abandon a route, and if the ICC determines that abandonment is not appropriate, no reversionary interest can or would vest" (ibid.). Here, the court observed, the ICC has determined that the right-of-way may not be abandoned because it should be retained for possible "future railroad use" (ibid.). Accordingly, the court of appeals concluded that the ICC's decision implementing Section 8(d) of the Trails Act did not effect a taking any more than would a Commission order requiring a railroad to continue to provide railroad service over a particular line (Pet. App. 12). SUMMARY OF ARGUMENT 1. a. Petitioners contend that the Commission's order results in an unconstitutional taking of their property. The Fifth Amendment, however, does not prohibit the government from taking property; it proscribes only takings without just compensation. Accordingly, the Commission's order is not unconstitutional if petitioners have an available process whereby they can seek compensation. See Williamson County Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194-195 (1985). The Tucker Act gives petitioners a remedy for seeking just compensation. It allows a person to recover just compensation in the United States Claims Court for a taking of private property by the government. Accordingly, the Commission's order is constitutional whether or not it results in a taking of petitioners' property. b. Contrary to petitioners' contention, Congress did not withdraw the Tucker Act remedy when it adopted Section 8(d) of the Trails Act. This Court has held that the Tucker Act is available unless Congress states its "unambiguous intention to withdraw the Tucker Act remedy." Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1019 (1984). See Regional Rail Reorganization Cases, 419 U.S. 102 (1974). Here, the 1983 Amendments and their legislative history show that Congress was completely silent on the Tucker Act remedy when it adopted Section 8(d). To be sure, Congress expressed its concern that the 1983 Amendments operate at low cost. But that expression is not inconsistent with the availability of compensation for the limited takings that might result from Section 8(d) and is therefore insufficient to show an unambiguous intention to withdraw the Tucker Act remedy. In addition, Congress stated that payments under the 1983 Amendments must be authorized by appropriations Acts. That requirement, however, is fully consistent with the Tucker Act remedy. Payments for a taking are made under the Fifth Amendment and the Tucker Act, not under the 1983 Amendments -- and, in any event, would be made from the Judgment Fund, which is an appropriated fund, 31 U.S.C. 1304(a). c. Even if Congress did intend to withdraw the Tucker Act remedy, Section 8(d) would not be unconstitutional on its face. Rather, Section 8(d) would be unconstitutional only in those cases where its application would result in an uncompensated taking. It is disputed whether the Commission's order under Section 8(d) would effect a taking of any property interest of petitioners in this case. Accordingly, if the Court were to hold that Congress repealed the Tucker Act remedy, this case should be remanded to the ICC to determine, in the first instance, whether the application of Section 8(d) would effect a taking of petitioners' property. 2. Section 8(d) is a valid exercise of Congress's power under the Commerce Clause. Section 8(d) was designed to advance two legitimate goals: (a) the creation of new recreational trails, and (b) the preservation of rail corridors for the possible future reactivation of rail service. This Court's inquiry under the Commerce Clause is limited to whether Congress could rationally believe that Section 8(d) would advance those goals. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276 (1981). There is no doubt that Section 8(d) reasonably advances both goals. Indeed, petitioners do not even dispute that Section 8(d) is a sensible way to create new recreational trails. And contrary to petitioners' contention, Section 8(d) also serves to protect the nation's rail corridors. Congress adopted Section 8(d) after its previous attempts to preserve railroad rights-of-way had met with limited success. Section 8(d) furthers the policy of preserving rail corridors by providing that a trail user must assume the responsibility for managing the property and paying taxes on the corridor. In that way, Section 8(d) allows the route to remain intact and available for future rail use if economic conditions change and railroad service again becomes economically viable. ARGUMENT I. THE ORDER OF THE INTERSTATE COMMERCE COMMISSION IS NOT AN UNCONSTITUTIONAL TAKING OF PETITIONERS' CLAIMED PROPERTY A. A Taking Of Property Is Constitutional If Just Compensation Is Available This is an action brought under 28 U.S.C. 2342 (1982 & Supp. V 1987) for judicial review of a final order of the ICC. Petitioners do not contend that the Commission violated any statutory duty. Rather they contend that the Commission's order results in an unconstitutional taking of petitioners' property. But the Commission's order is constitutionally valid whether or not Section 8(d) results in a taking in this case. As this Court has repeatedly held, "(t)he Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation." Williamson County Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194 (1985). See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). In Williamson County Planning Comm'n, 473 U.S. at 194-195, the Court stated: "If the government has provided an adequate process for obtaining compensation, and if resort to that process 'yield(s) just compensation,' then the property owner 'has no claim against the Government' for a taking" (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 n.21 (1984)). See also United States v. Riverside Bayview Homes, 474 U.S. 121, 128 (1985); Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 94 n.39 (1978). The Tucker Act (28 U.S.C. 1491) provides such a process for seeking just compensation. It allows a person to recover just compensation in the United States Claims Court for a taking of private property by the federal government. /5/ See United States v. Causby, 328 U.S. 256, 267 (1946). Accordingly, this Court has "held that taking claims against the Federal Government are premature until the property owner has availed himself of the process provided by the Tucker Act." Williamson County Planning Comm'n, 473 U.S. at 195. Because petitioners have not pursued any claim for compensation under the Tucker Act, their Fifth Amendment challenge to the Commission's order is "premature." Williamson County Planning Comm'n, 473 U.S. at 195. The Commission's application of Section 8(d) of the Trails Act in this case did not effect an unconstitutional taking even if petitioners' claimed reversionary interest was "taken" within the meaning of the Fifth Amendment. B. Congress Has Not Repealed Petitioners' Tucker Act Remedy Petitioners contend (Br. 24-28) that Congress, in adopting the 1983 Amendments, repealed the Tucker Act's grant of jurisdiction to adjudicate takings claims involving Section 8(d) of the Trails Act. That contention cannot withstand examination of the 1983 Amendments in light of the governing principles announced by this Court in the Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974) (Rail Act Cases), and Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). 1. a. The Rail Act Cases involved challenges to the Regional Rail Reorganization Act of 1973, 45 U.S.C. 701 et seq., which Congress enacted to address a rail transporation crisis brought on by the reorganization of railroads under the Bankruptcy Act. Congress attempted to resolve the crisis through "reorganization of the railroads, stripped of excess facilities, into a single, viable system operated by a private, for-profit corporation (Conrail)." 419 U.S. at 109. The Act required that a new government corporation, the United States Railway Association, prepare a "Final System Plan" for restructuring the railroads into a "financially self-sustaining rail service system." 419 U.S. at 111. Under the terms of the Rail Act, however, the subject railroads were required to continue service until the Final System Plan became effective. Creditors of Penn Central challenged the constitutionality of the Rail Act. They claimed that continued interim service would cause erosion of Penn Central's estate, and would result in an unconstitutional taking despite the fact that the Rail Act provided some compensation to Penn Central's creditors. The district court agreed and enjoined operation of the statute. Connecticut General Ins. Corp. v. United States Railway Ass'n, 383 F. Supp. 510 (E.D. Pa. 1974). That court based its holding on its conclusion that Congress had withdrawn the Tucker Act remedy by providing limited compensation under the Rail Act and by expressing concern that the federal treasury should not be overburdened by payments made under the Rail Act. The court cited legislative history showing Congress's fiscal concerns. /6/ And the district court noted that the appropriations provisions in the Act "place an express ceiling on expenditures." Id. at 529. Accordingly, the court was "persuaded that the legislative history supports the conclusion that Congress intended that financial obligations be limited to the express terms of the Act." Id. at 528-529. This Court reversed. It noted that "(t)he question * * * is whether Congress has in the Rail Act withdrawn the Tucker Act grant of jurisdiction" (419 U.S. at 126 (emphasis in original)) and found that "Congress gave no thought to consideration of withdrawal of the Tucker Act remedy." Id. at 129. The Court reviewed the legislative history cited by the district court and found that Congress was silent on the matter of the Tucker Act. Ibid. /7/ The Court ruled, therefore, that the legislative history was insufficient to signify Congress's intent to withdraw the Tucker Act remedy. The Court recognized that the Rail Act set forth "(m)aximum" funding authorizations (419 U.S. at 127-128), but the Court held that those limits were not an ambiguous repeal of the Tucker Act remedy. The Court reasoned that the maximum limits on funding might imply a limitation on the Tucker Act remedy or might "equally support the inference that Congress was so convinced that the huge sums provided would surely equal or exceed the required constitutional minimum that it never focused upon the possible need for a suit in the Court of Claims" (id. at 128). The Court concluded: In sum, we cannot find that the legislative history supports the argument that the Rail Act should be construed to withdraw the Tucker Act remedy. The most that can be said is that the Rail Act is ambiguous on the question. In that circumstance, applicable canons of statutory construction require us to conclude that the Rail Act is not to be read to withdraw the remedy under the Tucker Act. Id. at 133. /8/ b. The Court reiterated and applied the principles of the Rail Act Cases in Ruckelshaus v. Monsanto Co., supra. In Monsanto, an applicant for a pesticide registration sought a declaration that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq., effected a taking of its property (trade secrets) without providing just compensation. The provisions at issue allowed public disclosure and public use of an applicant's trade secret data concerning the safety and environmental effects of the product to be registered. FIFRA, however, provided compensation only in limited circumstances. The district court found that the statute's compensation scheme was insufficient to compensate fully the applicant and that Congress had not intended to provide a Tucker Act remedy. The district court, therefore, held that the challenged provisions resulted in an unconstitutional taking without just compensation. This Court reversed because Congress had not expressed an unambiguous intent to withdraw the Tucker Act remedy. 467 U.S. 986 (1984). The Court closely adhered to its analysis in the Rail Act Cases by noting that "(n)owhere in FIFRA or in its legislative history is there a discussion of the interaction between FIFRA and the Tucker Act." Id. at 1017. The Court concluded: Congress' failure specifically to mention or provide for recourse against the Government may reflect a congressional belief that use of data by EPA in the ways authorized by FIFRA effects no Fifth Amendment taking or it may reflect Congress' assumption that the general grant of jurisdiction under the Tucker Act would provide the necessary remedy for any taking that may occur. In any event, the failure cannot be construed to reflect an unambiguous intention to withdraw the Tucker Act remedy. 467 U.S. at 1018-1019. c. The point of the Rail Act Cases and Monsanto is that the Tucker Act applies to all takings claims against the United States unless Congress states its "unambiguous intention to withdraw the Tucker Act remedy" (Monsanto, 467 U.S. at 1019). The absence of a specific statutory provision authorizing compensation for a particular taking does not deprive the Claims Court of jurisdiction. See also Armstrong v. United States, 364 U.S. 40, 48-49 (1960); Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 328-330 (1922). Nor is the Tucker Act unavailable simply because Congress did not intend to effect a taking. See Monsanto, 467 U.S. at 1019; Yearsley v. W.A. Ross Construction Co., 309 U.S. 18, 21-23 (1940). A congressional limit on the amount that can be spent under a particular Act does not withdraw the Tucker Act remedy in the event that application of the Act results in a taking. See Rail Act Cases, 419 U.S. at 127-128; cf. Hurley v. Kincaid, 285 U.S. 95, 102 n.2 (1932) (Tucker Act available for diversion of flood waters onto farmland even though statute at issue explicitly exempted United States from liability "for any damage from or by flood waters at any place"). And the Tucker Act remains available where Congress never thought about whether a compensable taking would occur (Monsanto, 467 U.S. at 1019), or where Congress thought that its statutory scheme would provide all the compensation that would be due (Rail Act Cases, 419 U.S. at 128). The court in Armijo v. United States, 663 F.2d 90, 95 (Ct. Cl. 1981), accurately summarized these rules: In authorizing activities that may or may not infringe on property rights yet in making no provision for payment if they do, Congress must be deemed to hope that it will not infringe, but to intend that if it does, the Tucker Act and the standing appropriation to pay Court of Claims judgments, will be the safety net that will save any violation of the fifth amendment from occurring and by the same token will save the project from being stymied by court injunctions. 2. Petitioners cite no unambiguous evidence that Congress intended to withdraw the Tucker Act remedy when it enacted the 1983 Amendments to the Trails Act. On the contrary, the 1983 Amendments and their legislative history show that Congress was completely silent on the issue of the Tucker Act, just as it was when it enacted the Rail Act and FIFRA. And it is settled that congressional silence is not an expression of an "unambiguous intention to withdraw the Tucker Act remedy" (Monsanto, 467 U.S. 1019). a. Petitioners recite (Br. 27) statements in the legislative history of the 1983 Amendments that show congressional concern that the statute operate "at low cost." H.R. Rep. No. 28, supra, at 3. See also S. Rep. No. 1, 98th Cong., 1st Sess. 3 (1983). This Court made it clear in the Rail Act Cases, however, that evidence of congressional concern about the public fisc is insufficient to signal an unambiguous intent to withdraw the Tucker Act. See 419 U.S. at 126-132. Indeed, the Act at issue in the Rail Act Cases placed an express ceiling on expenditures (419 U.S. at 128), and the bill's manager in the House of Representatives expressed his view that "there is a definite limitation on the total amount that can be authorized under this bill. Any amounts that go beyond that * * * (are) to be approved by an Act of Congress." 383 F. Supp. at 528. The Court nevertheless found those expressions insufficient to withdraw the Tucker Act remedy. 419 U.S. at 126-132. Accordingly, Congress's wish that the 1983 Amendments operate at "low cost" is not unambiguous and convincing evidence that Congress impliedly repealed the Tucker Act. See also Whitney Benefits, Inc. v. United States, 752 F.2d 1554, 1556 (Fed. Cir. 1985) (Congress's creation of a coal exchange program to provide compensation for interests taken under the Surface Mining Control and Reclamation Act did not reflect an intent to preclude a Tucker Act remedy even though the exchange mechanism was calculated to "reduc(e) the cash outflow from the Treasury"). /9/ Indeed, congressional statements that the 1983 Amendments were intended to operate "at low cost" are entirely consistent with the availability of the Tucker Act remedy. To establish more nature trails in 1983, Congress could have adopted a program whereby the federal government would have purchased all the property, constructed the trails, and then maintained them. Instead, Congress adopted the "low cost" alternative of Section 8(d). Under Section 8(d), it is unclear how much money (if any) the United States will have to pay under the Fifth Amendment. Many railroad rights-of-way are held in fee simple. See National Wildlife Fed'n v. ICC, 850 F.2d 694, 703 (D.C. Cir. 1988). Others are held by easements that do not revert upon interim use as nature trails. See, e.g., State by Washington Wildlife Preservation, Inc. v. State, 329 N.W.2d 543 (Minn. 1983); Rieger v. Penn Central Corp., No. 85-CA-111 (Ct. App. Greene County, Ohio, May 21, 1985). There will be many instances, therefore, when there will be no plausible takings claims. Finally, the maintenance of trails established under Section 8(d) is the responsibility of a local government or a qualified private organization; the United States does not bear those costs. In the end, therefore, the Section 8(d) approach is a "low cost" method for the establishment of new nature trails when compared to possible alternatives. There is accordingly no basis for assuming that Congress would have refrained from enacting Section 8(d) if it had focused on the fact that compensation would be available under the Tucker Act for any takings of property that might result. Compare note 11, infra. b. Petitioners next rely (Br. 26-27) on a sentence in the 1983 Amendments entitled "Limitations on Appropriations." The sentence states: Notwithstanding any other provision of this Act, authority to enter into contracts, and to make payments, under this Act shall be effective only to such extent or in such amounts as are provided in advance in appropriation Acts. Section 101, 97 Stat. 42. That provision, however, is far from an unambiguous withdrawal of the Tucker Act remedy. The sentence on its face does not even refer to or purport to amend the Tucker Act. On the contrary, the sentence begins with the clause -- "Notwithstanding any other provision of this Act" -- which refers to the 1983 Amendments. Thus, the sentence simply means that payments under the 1983 Amendments are effective only "in such amounts as are provided in advance in appropriation Acts." That provision, which is common in statutes authorizing expenditures, /10/ does no more than restate the command found in Article I, Section 9, of the Constitution -- "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." The plain intent of the sentence -- to ensure that payments under the 1983 Amendments are authorized -- is fully consistent with a Tucker Act remedy in this case. In the first place, it would not be natural to say that a payment for a takings claim would be made "under" the 1983 Amendments. Such a payment would be made under the Fifth Amendment and the Tucker Act. See generally United States v. Causby, 328 U.S. at 267 ("(i)f there is a taking, the claim is 'founded upon the Constitution' and within the jurisdiction of the Court of Claims to hear and determine"). And even if such payments were made "under" the 1983 Amendments, they would be made out of the Judgment Fund, which is an appropriated fund. See 31 U.S.C. 1304(a). Accordingly, if petitioners make a valid claim in the Claims Court that Section 8(d) has worked a taking of their property, the United States will pay the judgment out of the appropriated Judgment Fund. That result would be wholly consistent with congressional intent that payments under the 1983 Amendments be made with the authorization of an appropriations Act. Furthermore, the type of limit on expenditures that petitioners cite has never been held to prohibit payments under the Tucker Act for takings (intended or unintended) that occur as a result of authorized activities. For example, in the comprehensive National Parks and Recreation Act of 1978, Pub. L. No. 95-625, 92 Stat. 3467, Congress included an appropriations provision almost identical to the provision relied upon by petitioners. A private landowner then brought suit against the government in which he claimed that Section 708 of the Act (92 Stat. 3529-3530), which prohibited mining within the banks or beds of designated rivers, caused a taking of his property. The Federal Circuit held that Congress had not withdrawn the Tucker Act remedy. The court found "nothing in the language of section 708 (or its legislative history) indicating that Congress intended to withdraw the Tucker Act remedy." Skaw v. United States, 740 F.2d 932, 939 (1984). In sum, neither ground cited by petitioners as evidence of Congress's unambiguous intent to withdraw the Tucker Act remedy withstands scrutiny. /11/ In fact, it is evident that Congress gave "no thought to consideration of withdrawal of the Tucker Act remedy" (Rail Act Cases, 419 U.S. at 129) when it amended the Trails Act in 1983. As the Eighth Circuit recently noted in holding that the Tucker Act remedy is available for takings that allegedly result from Section 8(d), "(t)he statute and its legislative history are simply silent" on the question of the Tucker Act. Glosemeyer v. Conservation Fed'n, No. 88-1863 (July 5, 1989), slip op. 19. /12/ In contrast to the 1983 Amendments, Congress has passed legislation that expressly modifies the Tucker Act. For instance, in 1988 Congress enacted the Hoopa-Yurok Settlement Act, Pub. L. No. 100-580, 102 Stat. 2924, which divided an Indian reservation between Hoopa and Yurok interests. Responding to concerns regarding possible takings, Congress adopted Section 14(c) of the Settlement Act (102 Stat. 2936-2937) to delay payments under the Tucker Act and to require the Secretary of the Interior to report to Congress about final judgments made for Fifth Amendment takings. That statute is stark evidence that Congress knows how to modify the Tucker Act if it so chooses. In this case, however, Congress was absolutely silent on the subject. Accordingly, the 1983 Amendments do not unambiguously repeal any remedy that petitioners might have under the Tucker Act. /13/ c. Petitioners lastly contend that no Tucker Act remedy exists for unauthorized acts of government officials. That proposition is true, see Rail Act Cases, 419 U.S. at 127 n.16, but not applicable to this case. Petitioners do not contend that the ICC violated some statutory duty in this case. On the contrary, Section 8(d) plainly authorized the Commission to approve the interim use agreement at issue in this case and to deny petitioners' request for abandonment. Petitioners' claim is that the grant of authority under Section 8(d) is unconstitutional, not that the ICC exceeded its authority. Thus, the cases cited by petitioners (Br. 29-31) "are inapposite since the Government actions at issue here are authorized by" Section 8(d). Rail Act Cases, 419 U.S. at 127 n.16. C. Section 8(d) of the Trails Act Is Not Unconstitutional On Its Face Even If Congress Withdrew the Tucker Act Remedy 1. Even if the Court were to decide that the 1983 Amendments repealed the Tucker Act, it would not follow that Section 8(d) is unconstitutional on its face. Rather, Section 8(d) would be unconstitutional only if applied in cases where it would result in an uncompensated taking. See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 797-798 (1984) ("a holding of facial invalidity expresses the conclusion that the statute could never be applied in a valid manner"). And it is disputed whether a taking of any property interest of petitioners occurred in this case. Accordingly, it would then be proper to remand this case to the ICC to develop a record and to decide in the first instance whether interim trail use would result in a taking of petitioners' property. This Court has repeatedly stated that "the constitutionality of statutes ought not to be decided except in an actual factual setting that makes such a decision necessary." Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 294-295 (1981). "Adherence to this general rule is particularly important in cases raising allegations of an unconstitutional taking of private property." Id. at 295. Because the Court has been "unable to develop any set formula" by which to measure government action against the Fifth Amendment, it has held that taking questions often must be examined by engaging in specific "factual inquiries" on a case-by-case basis. Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979) (citation omitted). See also Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124-129 (1978). 2. In this case, the nature of petitioners' property interest, if any, has not yet been determined. Petitioners and the State of Vermont dispute whether the interest acquired in 1899 by the State's predecessor in interest, the Rutland-Canadian Railway, was an easement or an estate in fee simple. If the interest was acquired in fee simple, then petitioners have no right in the property whatsoever and, consequently, no basis for a takings claim. See National Wildlife Fed'n v. ICC, 850 F.2d at 703. Moreover, even if the railroad acquired only an easement, the question whether petitioners have a colorable claim of a taking would depend upon the terms of that easement. The document creating an easement may specify the events on which a reversionary interest will vest in possession, may speak in ambiguous terms, or may be completely silent on the issue. And in all cases, state law will guide the inquiry into the intent of the parties and whether that intent will be respected. Thus in some cases, interim trail use may cause an easement to revert; in other cases, it may not. Compare State by Washington Wildlife Preservation, Inc. v. State, supra (no reversion) with McKinley v. Waterloo R.R., 368 N.W.2d 131, 133-134 (Iowa 1985) (reversion). Finally, any takings analysis must take into account other factors, such as the character of the governmental action and the property owner's investment-backed expectations. See Keystone Bituminous Coal Ass'n v. De Benedictis, 480 U.S. 470, 488-497 (1987). All of these factors are relevant, and none may be evaluated except in the context of a fully developed record. See generally FCC v. Florida Power Corp., 480 U.S. 245 (1987) (FCC determined on basis of full record that charges set for usage of telephone poles did not result in a taking). A remand to the ICC would enable the Commission to create such a complete record in this case. /14/ II. SECTION 8(d) IS A VALID EXERCISE OF CONGRESS'S POWER UNDER THE COMMERCE CLAUSE 1. In Hodel v. Virginia Surface Mining & Reclamation Ass'n, supra, the Court reiterated the proper test for determining whether a statute constitutes a valid exercise of Congress's power under the Commerce Clause of the Constitution (Art. I, Section 8). The Court stated (452 U.S. at 276): The task of a court that is asked to determine whether a particular exercise of congressional power is valid under the Commerce Clause is relatively narrow. The court must defer to a congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding. * * * This established, the only remaining question for judicial inquiry is whether "the means chosen by (Congress) must be reasonably adapted to the end permitted by the Constitution." * * * The judicial task is at an end once the court determines that Congress acted rationally in adopting a particular regulatory scheme. Petitioners argue (Br. 36-39) that Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) -- a case that did not address the government's power to act but, rather, the government's power to act without paying for it -- implicitly overruled the test set out in Hodel v. Virginia Surface Mining & Reclamation Ass'n. We disagree. In Nollan, the plaintiffs challenged a California building permit whose issuance had been conditioned by the California Coastal Commission on plaintiffs' granting the public an easement across their beach. The plaintiffs contended that the Coastal Commission had taken an easement without paying just compensation. The Court agreed because the "lack of nexus between the condition and the original purpose of the building restriction converts that purpose into something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation." 483 U.S. at 837. It is apparent that Nollan does not address -- and had no occasion to address -- the power of Congress to enact laws under the Commerce Clause. Nollan is relevant to the question whether a taking has occurred, but it has nothing to do with whether Congress may pass a law under the Commerce Clause. The two questions are distinct. In Kaiser Aetna v. United States, supra, the Court observed: "In light of its expansive authority under the Commerce Clause, there is no question but that Congress could assure the public a free right of access to the Hawaii Kai Marina if it so chose. Whether a statute or regulation that went so far amounted to a 'taking,' however, is an entirely separate question." 444 U.S. at 174. See also United States v. Security Indus. Bank, 459 U.S. 70, 75 (1982) (rationality inquiry is "quite separate" from question of whether statute effects a taking); National Wildlife Fed'n v. ICC, 850 F.2d at 705. Accordingly, petitioners err in contending that Nollan imposed a new restraint on Congress's power under the Commerce Clause. Nollan is relevant to whether Congress must pay for a taking, not whether Congress may take property for which it provides compensation. 2. The court of appeals below, in accordance with decisions of the Eighth and the District of Columbia Circuits, correctly held that Section 8(d) is a legitimate exercise of Congress's Commerce Clause power. See Glosemeyer, slip op. 12-14; National Wildlife Fed'n, 850 F.2d at 705 ("No one doubts that Congress has the authority to provide that rights-of-way no longer needed for rail use be converted to trail use."). Congress announced two purposes in adopting Section 8(d). First, it intended "to promote the preservation of, public access to, travel within, and enjoyment and appreciation of the open-air, outdoor areas and historic resources of the Nation." 16 U.S.C. 1241(a). See also H.R. Rep. No. 28, supra, at 8 (Section 8(d) designed "to encourage the development of additional trails"). Second, Section 8(d) was designed to further a "national policy to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use * * *." 16 U.S.C. 1247(d) (Supp. V 1987). See also S. Rep. No. 1, supra, at 9; H.R. Rep. No. 28, supra, at 8-9. There can be no doubt that both those purposes are valid congressional objectives. See generally Kaiser Aetna v. United States, 444 U.S. at 174 ("(U)nder the Commerce Clause, there is no question but that Congress could assure the public a free right of access to the Hawaii Kai Marina."). Congress has a long tradition of providing nature trails for the public's use. See National Trails System Act, Pub. L. No. 90-943, 82 Stat. 919. And it has an even longer tradition of regulating railroad abandonments. See Colorado v. United States, 271 U.S. 153 (1926). Indeed, we do not understand petitioners to argue that Congress's announced objectives for Section 8(d) are illegitimate concerns of Congress. Instead, petitioners seem to argue (Br. 39-43) that Section 8(d) is not a reasonable (or rational) way to preserve railroad rights-of-way. Even if that were true, however, the statute would still be a reasonable way to promote nature trails. And there is no requirement under the Commerce Clause that a statute rationally advance more than one legitimate purpose. Hence, petitioners' objection is wholly immaterial to the question whether Section 8(d) is a valid exercise of Congress's power under the Commerce Clause. In any event, Congress had a rational basis for believing that Section 8(d) would also serve to protect and preserve the nation's rail corridors. By 1983, when Congress adopted Section 8(d), Congress had for some time been concerned about the loss of rail corridors as an important public resource. In 1973, Congress enacted the Regional Rail Reorganization Act of 1973, 45 U.S.C. 701 et seq., in response to the decline of railroads in the United States after World War II. One goal of that legislation was "the preservation * * * of existing patterns of service by railroads (including short-line and terminal railroads), and of existing railroad trackage in areas in which fossil fuel natural resources are located * * *." 45 U.S.C. 716(a). Congress announced an explicit policy of preserving rail corridors when it enacted the 4R Act in 1976. 45 U.S.C. 801-855. Section 809(b) of the 4R Act (90 Stat. 145) directed the Secretary of the Interior to provide financial assistance at all governmental levels "for programs involving the conversion of abandoned railroad rights of way to recreational and conservational uses * * *." And Section 809(c) of the 4R Act (90 Stat. 146) amended the Interstate Commerce Act to require the ICC to consider whether railroad lines found appropriate for abandonment could serve other public purposes. The 4R Act also directed the Secretary of Transportation to study the advantages of "establishing a rail bank consisting of selected rights-of-way, as a means of assuring their availability for potential railroad use in the future * * *." Section 809(a), 90 Stat. 144, 145. The Secretary of Transportation's Report, which was issued in 1977, confirmed Congress's concern about the loss of rail corridors. The report noted that "(i)n the previous seven years, rail carriers had either abandoned or had pending applications to abandon 21,000 miles of railroad track in the continental United States." Glosemeyer, 685 F. Supp. at 1115. In 1983, Congress adopted Section 8(d) after its previous efforts to preserve rail corridors met with limited success. The House Report accompanying the bill stated: Section 208 amends section 8 of the (Trails) Act to encourage the development of additional trails * * *. This reflects the concern that previous congressional efforts have not been successful in establishing a process through which railroad rights-of-way which are not immediately necessary for active service can be utilized for trail purposes. This appears to be true despite the fact that these efforts have also been to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use. H.R. Rep. No. 28, supra, at 8. Section 8(d) was clearly a rational way to further the "national policy" of preserving "established railroad rights-of-way for future reactivation of rail service." 16 U.S.C. 1247(d) (Supp. V 1987). Congress provided that the trail user is to assume responsibility for liability in connection with the trail use, including managing the property and paying taxes on the corridor. Thus, Section 8(d) allows for the route to remain intact and available for future rail use while relieving the railroad of financial responsibility during the period of interim use. See H.R. Rep. No. 28, supra, at 8-9. Congress's finding that Section 8(d) is a rational method of preserving rail corridors -- one described by the Second Circuit as "remarkably efficient" (Pet. App. 10) -- is not to be second-guessed by the courts. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. at 283 ("effectiveness of existing laws in dealing with problem identified by Congress is ordinarily a matter committed to legislative judgment"). 3. At bottom, petitioners' claim seems to be (Br. 39-46) that Congress was more concerned with nature trails than it was with preserving rail corridors. /15/ That contention -- even if true -- is no constitutional objection to Section 8(d). Section 8(d) is valid under the Commerce Clause if it only is a rational way to create and maintain nature trails. In any event, there is no reason to accept petitioners' contention that Congress was not telling the truth when it expressed a purpose to preserve rail corridors. Section 8(d) can obviously play a significant role in maintaining rail corridors for future use. A railroad seeks to abandon a line when it is unprofitable and the continuation of rail service would be burdensome. But economic conditions may change and a particular line that is now unprofitable may become viable with the introduction of new industry in the area. If the availability of the railroad's line and right-of-way can be preserved in the meantime, then it is possible that service could be restored in the future. Congress passed Section 8(d) to allow for that possibility. /16/ Petitioners argue (Br. 42) that the "railbanking" purpose of Section 8(d) is not advanced by the law because the Commission does not make an individualized finding that a particular right-of-way might be needed in the future. Congress, however, may constitutionally legislate with a broad brush. See generally United States v. Carolene Products Co., 304 U.S. 144 (1938) (Congress rationally prohibited interstate shipment of all skimmed milk mixed with non-milk products). See also Perez v. United States, 402 U.S. 146, 154 (1971). And as the Commission noted in its recent policy statement, "the fact that the railroad agrees to trail use is indication in and of itself that the corridor may be valuable in the future for transportation" (Ex Parte No. 274, Rail Abandonments/Use of Rights-of-Way as Trails/Supplemental Trails Act Procedures (Sub. No. 13), served Feb. 23, 1989). Accordingly, although petitioners may think that Section 8(d) is bad policy or even that Congress could have drafted a more effective law, there is no doubt that Congress could rationally believe that Section 8(d) would advance the dual goals of creating nature trails and preserving rail corridors for possible future use. The Commerce Clause permits no further judicial inquiry. CONCLUSION The judgment of the court of appeals upholding the Commission's order should be affirmed. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General /*/ DONALD A. CARR Acting Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General BRIAN J. MARTIN Assistant to the Solicitor General ANNE S. ALMY JAMES E. BROOKSHIRE LOUISE F. MILKMAN Attorneys ROBERT S. BURK General Counsel ELLEN D. HANSON Associate General Counsel LOUIS MACKALL Attorney Interstate Commerce Commission JULY 1989 /1/ The purpose of the Trails Act is "to provide for the ever-increasing outdoor recreation needs of an expanding population and * * * to promote the preservation of, public access to, travel within, and enjoyment and appreciation of the open-air, outdoor areas and historic resources of the Nation." 16 U.S.C. 1241(a). The "National System of Trails" includes national recreation trails, national scenic trails, national historic trails, and connecting or side trails. 16 U.S.C. 1242(a) (1982 & Supp. V 1987). /2/ 16 U.S.C. 1247(e) (Supp. V 1987) provides that these interim trails "may be designated and suitably marked as parts of the nationwide system of trails by the States, their political subdivisions, or other appropriate administering agencies with the approval of the Secretary of the Interior." /3/ In April 1986, the Interstate Commerce Commission issued final regulations implementing Section 8(d). Rail Abandonments -- Use of Rights-of-Way as Trails, 2 I.C.C.2d 591, 628 (1986); 49 C.F.R. 1152.29. Under those regulations, the Commission issues to the petitioning railroad a "Certificate of Interim Trail Use or Abandonment" (CITU) or, in some cases, a "Notice of Interim Trail Use" (NITU). The CITU or NITU provides a 180-day period during which the railroad may negotiate with parties that are interested in interim trail use. In the meantime, the railroad may discontinue service, cancel tariffs, and salvage its track and other equipment. If an agreement with a trail user is negotiated, interim trail use is thereby authorized. Upon termination of the trail use arrangement, the parties must file a petition to reopen the abandonment proceeding in order for the Commission to issue a full certificate, or notice, of abandonment to the railroad. If no trail use agreement is reached, the CITU or NITU automatically converts into an effective certificate (or notice) of abandonment, which permits the railroad to abandon the line immediately. /4/ Because the Commission's Trails Act Rules (see note 3, supra) had not yet been promulgated, the Commission did not issue a Certificate or Notice of Interim Trail Use. /5/ The Tucker Act provides in relevant part that: The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States * * *. Compensation may also be sought in the district court for claims not exceeding $10,000. 28 U.S.C. 1346(a)(2). Judgments are paid from the general appropriation in the Judgment Fund, 31 U.S.C. 1304. /6/ The court noted (383 F. Supp. at 528) that "Senator Vance Hartke * * * observed that if Congress did not act by providing the creditors with stock in Conrail, 'there is a distinct possibility . . . that a number of these people could make a claim against the Government which could be sustained in the Court of Claims.'" The court also cited the following colloquy (ibid. (emphasis added)): Mr. (Dan) Kuykendall: "* * * There was a lot of colloquy in the original debate which expressed fears that the Federal Court had the key to the Treasury. "Will the gentleman give us his interpretation of the guarantees we have to keep that from happening in the court proceedings?" Mr. (Brock) Adams: "Mr. Speaker, there is a definite limitation on the total amount that can be authorized under this bill. Any amounts that go beyond that, or the shifting of the way in which it is spent, is to be approved by an Act of Congress * * *." /7/ The Court noted, for example, that the House colloquy relied upon by the District Court "does not even concern the withdrawal of Court of Claims jurisdiction." 419 U.S. at 131-132. /8/ The rule that Congress's withdrawal of the Tucker Act remedy must be express and unambiguous follows from two accepted canons of statutory construction. First, because "repeals by implication are not favored * * * (t)he intention of the legislature to repeal 'must be clear and manifest.'" United States v. Borden Co., 308 U.S. 188, 198 (1939) (quoting Red Rock v. Henry, 106 U.S. 596, 601, 602 (1883)). See also Monsanto Co., 467 U.S. at 1017; Rail Act Cases, 419 U.S. at 133-134; cf. Dames & Moore v. Regan, 453 U.S. 654, 689 (1981) ("treaty exception" to Claims Court jurisdiction (28 U.S.C. 1502) does not affect Claims Court jurisdiction over takings claims under Tucker Act). Second, "when a statute is ambiguous, 'construction should go in the direction of constitutional policy.'" Rail Act Cases, 419 U.S. at 134 (quoting United States v. Johnson, 323 U.S. 273, 276 (1944)). /9/ Petitioners also cite (Br. 28) a comment made by Senator Domenici that "the Federal Government has acquired too much land from landowners using condemnation procedures that in essence short changed the property rights of landowners." The Senator made that statement in the context of praising the statute for "encourag(ing) cooperation" rather than condemnation. See 129 Cong. Rec. 1607 (1983). Thus, his comments were likely directed at the provisions of the Act involving the use of voluntary agreements between trail managers and landowners, as well as voluntary citizen participation, see 16 U.S.C. 1246(h) (1982 & Supp. V 1987). In any event, Section 8(d) does not contemplate that government agents will use "condemnation procedures." A taking will occur, if at all, by the ICC's authorization of interim trail use in a case where an easement otherwise would have reverted to adjacent property owners. And Senator Domenici did not even hint that a Tucker Act remedy would be unavailable in such a case. See Florida Rock Industries v. United States, 791 F.2d 893 (Fed. Cir. 1986) (Tucker Act remedy available for taking under regulatory statute that did not authorize condemnations); Skaw v. United States, 740 F.2d 932 (Fed. Cir. 1984) (same). /10/ See, e.g., Public Rangelands Improvement Act of 1978, 43 U.S.C. 1906; Biscayne National Park Act, 16 U.S.C. 410gg-5; Manassas National Battlefield Park Amendments of 1980, Pub. L. No. 96-442, Section 3(b), 94 Stat. 1887; Conservation Programs on Government Lands Act, 16 U.S.C. 670o(d); Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1308; Nuclear Waste Policy Act of 1982, 42 U.S.C. 10105; Job Training Partnership Act, 29 U.S.C. 1581. /11/ Petitioners' reliance (Br. 25-26) on Hodel v. Irving, 481 U.S. 704 (1987), is misplaced. In that case, the Court invalidated one section of the Indian Land Consolidation Act of 1983, 25 U.S.C. 2206, because it resulted in an uncompensated taking. The United States had interpreted the statute as withdrawing the Tucker Act remedy -- i.e., as a regulatory measure that Congress would not have enacted if compensation were required. Accordingly, both the parties and the Court treated the case as one in which Congress "did not authorize either purchase or condemnation and the payment of just compensation * * *." 481 U.S. at 719 (Stevens, J., concurring in the judgment). /12/ The district court in Glosemeyer had noted that "Congress either did not believe that the postponement of a railroad's abandonment of a right-of-way constituted a taking or assumed that the general grant of jurisdiction under the Tucker Act would provide a necessary remedy for any taking that might be found to have occurred." Glosemeyer v. Missouri-Kansas-Texas, R.R., 685 F. Supp. 1108, 1121 (E.D. Mo. 1988). /13/ The court of appeals in this case did not discuss the availability of a Tucker Act remedy for any taking claim involving Section 8(d); it held that Section 8(d) never could effect a taking. We do not defend the judgment on that rationale, which conflicts with the District of Columbia Circuit's opinion in National Wildlife Fed'n v. ICC, 850 F.2d 694 (1988). For reasons we shall explain (pp. 22-24, infra), there is no need for the Court to address that question in this case, which presents only a facial attack on the constitutionality of Section 8(d). /14/ In National Wildlife Fed'n v. ICC, supra, the D.C. Circuit reviewed the Commission's regulation implementing Section 8(d). Ruling that Section 8(d) could, in a given case, effect a taking, the court remanded the regulation to the Commission for reconsideration in light of the court's Fifth Amendment analysis. On remand, the Commission readopted its rules. Ex Parte No. 274, Rail Abandonments/Use of Rights-of-Way as Trails/Supplemental Trails Act Procedures (Sub. No. 13), served Feb. 23, 1989. The Commission stated that a Tucker Act remedy is available for any taking that may have occurred, and thus reasoned that the Claims Court is the proper forum to decide any question of just compensation under the Fifth Amendment. If this Court decides that the Claims Court has no Tucker Act jurisdiction over claims resulting from Commission orders applying Section 8(d) of the Trails Act, it will be necessary for the ICC to reevaluate its rules. /15/ Petitioners note (Br. 42), for example, that Section 8(d) originated in congressional committees concerned with nature, not transportation. /16/ This purpose of Section 8(d) was served in Chicago & North Western Transp. Co. -- Abandonment Exemption -- Guthrie and Dallas Counties, IA, ICC No. AB-1 (Sub. No. 192X), not printed, served May 20, 1987, when the Commission approved interim trail use in a case where the railroad line might be needed in the future to serve a proposed power plant. /*/ The Solicitor General is disqualified in this case.