3-27-66 to present-Transportation Cost Analyst, GS-13, Bureau of Accounts, Section of Cost Finding.

3-15-64 to 3-26-66-Tsptn. Cost Analyst, GS-12, Bureau of Accts-Cost Finding.

1-25-59 to 3-14-64-Tsptn. Cost Analyst, GS-11, Bureau of Accts-Cost Finding.

3-25-56 to 1-24-59-Auditor (Costs), GS-11, Bureau of Accounts, Sec. of Cost Finding.

1-1-54 to 3-24-56-Auditor (Costs), GS-9, Bureau of Accounts, Sec. of Cost Finding.

44-12-53 to 12-31-53-Cost Accountant, GS-9, Bureau of Accounts, Sec. of Cost Finding.

6-8-52 to 4-11-53-Trans. Cost Analyst, GS-9, Bureau of Accts, Sec. of Cost Finding.

10-29-50 to 6-7-52-Accountant & Auditor, Bureau of Accounts, Field Service, GS-8.

5-28-50 to 10-28-50-Business Accountant, GS-6, Bureau of Accounts, New York, N.Y.

2-10-46 to 5-27-50-Accounting & Auditing Asst., GS-6, Bureau of Accts, New York, N.Y.

4-1-43 to 2-9-56-Clerk, GS-3, Bureau of Accounts, New York, N.Y. 8-16-39 to 3-31-43-Jr. Clerk, GS-2, Bureau of Accounts, New York, N.Y.

4-19-35 to 8-15-39-Jr. Clerk, CAF-1, Bureau of Accts, Field, New York, N.Y.

Miscellaneous: Served in the Army during World War 2.

Date of birth: 11-9-33.

RÉSUMÉ OF WILLIAM W. ENGLAND

Title and Grade: Transportation Cost Analyst, GS-12.
Organization: Bureau of Accounts, Section of Cost Finding.
Education:

Benjamin Franklin University, Washington, D.C. BCS degree.
American University, Washington, D.C.

University of Va. (Northern Va. Branch) (Courses in Accounting, Business
Law, Economics & English).

VSAFI Military Test Report on GED College level test satisfactorily completed.

Class "A" Yeoman School, Bainbridge, Md.

Experience:

ICC:

5-5-68 to present-Transportation Cost Analyst, GS-12, Bureau of Accounts, Sec. of Cost Finding.

2-13-66 to 5-4-68-Transportation Cost Analyst, GS-11, Bureau of Accounts, Sec. of Cost Finding.

9-13-64 to 2-12-66-Supvy., Statistical Assistant, GS-9, Bureau of Accounts, Section of Cost Finding.

5-12-63 to 9-12-64-Transportation Cost Analyst, GS-7, Bureau of Accounts, Sec. of Cost Finding.

4-29-62 to 5-11-63-Transportation Cost Analyst, GS-5, Bureau of Accounts, Sec. of Cost Finding.

2-21-60 to 4-28-62-Statistical Clerk, GS-4, Bureau of Accounts, Cost Finding & Valuation, Sec. Cost Finding.

11-9-59 to 2-20-60-Clerk-Typist, GS-3, Bureau of Accounts, Cost Finding & Valuation, Sec. of Valuation.

Other:

Life guard and first aid duties and instruction at Chevy Chase Lake,
summer of 1959.

Clerk at Central Intelligence Agency, 12-58 to 5-59.
Communications Technician, 2nd class, Naval Security Station, 4 years.
File Clerk, Southern Railway Co., 5 months in 1953.

RÉSUMÉ OF LESTER R. CONLEY, FORMER EMPLOYEE

Date of Birth: 10-9-9.

Title and Grade: Attorney-Adviser (Transportation), GS-15.
Organization: Office of Proceedings, Section of Finance.
Education:

Sterling College, Sterling, Kansas (Teacher's Cert.)
National University, Washington, D.C., LL.B.
Chillicothe Business College, Chillicothe, Mo.

Experience:
ICC:

10-8-67 to 52-70-Attorney-Adviser (Trans.), GS-15, Office of Proceedings, Section of Opinions.

7-18-65 to 10-7-67-Attorney-Adviser (Trans.), GS-14, Office of Proceedings, Secs. of Finance and Opinions.

7-5-64 to 7-17-65-Hearing Examiner (Fin.-Rail-Mtr.), GS--16, Bureau of Finance, Section of Hearings.

1-8-61 to 7-4-64-Hearing Examiner (Fin.-RR), Bureau of Finance, Section of Hearings, GS-15.

2-2-59 to 1-7-61-Hearing Examiner (Fin.-RR), GS-14, Bureau of Finance, Sec. Convenience & Necessity.

10-12-36 to 1-15-38-Jr. Examiner, P-1, Bureau of Motor Carriers, Section of Complaints.

Other:

1959-1961-Manager of retail candy, gift, souvenir and novelty shop, Belleview, Fla.

1956-1959 Trial Attorney, GS-13, Dept. of Agriculture.

1956-1956-Trial Attorney, GS-12, Office of General Counsel, Dept. of Agriculture.

1952-1953-General practice of law.

1951-1952-Attorney-Adviser, GS-15, Office of Price Stabilization. 1931-1933-Employed as Clerk-Typist for various short lengths of time at Veterans Administration, War Department, Department of Justice. Internal Revenue and White House.

Retired voluntarily from the ICC 5/2/70.

APPENDIX I

OFFICE OF THE GENERAL COUNSEL

(No. 195-69 August 26, 1969)

Memorandum to the Commission:

Re City of Sheridan, et al. v. United States et al., Civil Action No. 5316, U.S.D.C. Wyo., decided August 13, 1969.

Finance Docket No. 25230, Chicago, Burlington and Quincy Railroad Company, Discontinuance of Trains Nos. 42 and 43 Between Omaha, Nebr., and Billings, Mont. 344 I.C.C. 210. (G. C. File No. 2437)

Attached is the two-to-one decision of the United States District Court for the District of Wyoming sustaining the Commission's decision permitting discontinuance in the above-captioned case. The railroad had previously sought to discontinue the trains, but the Commission required continuance for the maximum one-year period permitted by the statute.' Plaintiffs' main contention in this case is that it was error for the Commission to assume jurisdiction over the trains when the notice was filed prior to the expiration of the one year, even though the discontinuance was to become effective after the expiration of the year. The court held that the statute contemplates continuing jurisdiction in the Commission and that successive filings by a railroad may prevent jurisdiction from returning to the individual states. All three judges agreed that the Commission had jurisdiction over the trains.

In addition to their jurisdictional argument, plaintiffs argued that the Commission did not adequately consider the rights of the Crow Indians. The trains passed through a large reservation in southern Montana.

Plaintiffs strongly urged the court to remand the case to the Commission for new hearings because of alleged misconduct by the hearing examiner assigned to the case. The Court completely exonerated the examiner and held that "the hearings held by the examiner were fair and impartial."

In his dissent, Circuit Judge Hickey was of the opinion that the Commission did not give proper consideration to the benefit of the trains to the community "above and beyond the mere number of passengers." Judge Hickey was of the opinion that there are certain intangible benefits to the community flowing from the presence of the trains. He did not specifically identify any of these benefits but referred to the testimony of the Governor of the State of Wyoming and 230 protesting witnesses who thought that the service was necessary or beneficial.

An appeal has been taken to the Supreme Court.

ROBERT W. GINNANE,

General Counsel.

1 Chicago, Burlington & Quincy R. Co.-Discontinuance of Trains Nos. 42 and 43 between Billings, Mont., and Alliance, Nebr., 330 I.C.C. 742 (1967).

(530)

In The United States District Court

For the District of Wyoming

In The United States District Court for the District of Wyoming

CITY OF SHERIDAN, CITY OF CLEARMONT, UNITED TRANSPORTATION UNION, SHERIDAN CHAMBER OF COMMERCE, CITIZEN'S VOTING LEAGUE FOR RETENTION OF PASSENGER TRAIN SERVICE OF ALLLANCE, NEBRASKA, AND RAILWAY LABOR EXECUTIVES' ASSOCIATION, PLAINTIFFS

NEBRASKA STATE RAILWAY COMMISSION, EDISON REAL BIRD, EDMUND LITTLE LIGHT, JOSEPH TEN BEAR, LEO PLAIN FEATHER, HARVEY DRIFTWOOD AND ELOISE PEASE, INTERVENOR-PLAINTIFFS

UNITED STATES OF AMERICA AND CHICAGO BURLINGTON AND QUINCY RAILROAD COMPANY, DEFENDANTS

INTERSTATE COMMERCE COMMISSION, INTERVENOR-DEFENDANT

(No. 5316 Civil Filed August 15, 1969, A. Marvin Helart, Clerk) Henry A. Burgess, Sheridan, Wyoming, Robert R. Wellington, Crawford, Nebraska, C. C. Sheldon, Asst. Attorney General, Lincoln, Nebraska, William G. Mahoney, Washington, D. C., and Gordon P. MacDougall, Washington, D. C., for Plaintiffs.

Clarence A. H. Meyer, Attorney General for the State of Nebraska, and C. C. Sheldon, Asst. Attorney General for Nebraska State Railway Commission, for Intervenor-Plaintiff.

Harold G. Stanton, Hardin, Montana, for the Crow Indians, Intervenor-Plaintiffs. Richard W. McLaren, Asst. Attorney General, John H. D. Wigger, Department of Justice, and Robert N. Chaffin, U. S. Attorney for the United States of America.

R. T. Cubbage and R. M. Gleason of Chicago, Illinois, Paul B. Godfrey of Cheyenne, Wyoming, W. L. Peck, J. C. Street and Eldon Martin of Denver, Colorado, for Chicago, Burlington and Quincy Railroad Company.

Robert W. Ginnane and Barry Roberts of Washington, D. C., for the Interstate Commerce Commission.

Before Hickey, Circuit Judge, Kerr, and Chilson, District Judges.

Per Curiam.

MEMORANDUM OPINION

This is an action commenced by the plaintiffs pursuant to 28 U.S.C. 2321–2325 seeking to enjoin, suspend, set aside and annul the decision and order of the Interstate Commerce Commission dated January 3, 1969, permitting the Chicago, Burlington and Quincy Railroad Company, hereinafter referred to as CB&Q, to discontinue trains Nos. 42 and 43 operating between Omaha, Nebraska, and Billings, Montana. On April 2, 1969, the Commission denied a petition for reconsideration, and on May 1, 1969, the petition for a finding of general transportation importance was denied.' The Commission found that the operation of the two trains was not required by public convenience and necessity and that the continued operation thereof would unduly burden interstate commerce.

1 The trains involved were described by the Commission as follows: Train No. 43 leaves Omaha daily at 10:10 p.m., central time, and arrives in Billings the next day at 7:55 p.m.. mountain time. Train No. 42 leaves Billings each day at 10:00 a.m., mountain time, and arrives in Omaha the following day at 7:30 a.m., central time. 334 I.C.C. at 211.

Subsequent to prior proceedings,' this case was commenced with a notice and supporting statement of a CB&Q proposal filed with the Commission on August 6, 1968, pursuant to Section 13a (1) 3 of the Interstate Commerce Act.

By order of August 23, 1968, the Commission instituted an investigation of the proposed discontinuance and ordered the continued operation of the trains pending hearing and decision on its investigation. A Commission trial examiner held twelve days of extensive public hearings in Omaha, Lincoln, Grand Island, Broken Bow and Alliance, Nebraska; Edgemont, South Dakota; Newcastle and Sheridan, Wyoming; and Billings, Montana. The hearings consumed almost 1000 pages of testimony and comprised 66 exhibits. After the close of the hearings, briefs were filed by certain protesting parties, and by the railroad. The Commission considered the record and the briefs, and on January 13, 1969, the Commission, Division 3, issued its report, finding that operation of the trains is not required by the public convenience and necessity and their continued operation would unduly burden interstate commerce. The order entered by the Commission was that the investigation be discontinued.

Later, on the same day, the plaintiffs commenced this action praying for, among other things, a temporary restraining order against the discontinuance of the trains until hearing was had and a determination made by a three-judge court. The temporary restraining order was issued by this court enjoining the railroad from discontinuing the trains until further order of the court. The CB&Q moved to dismiss the action for lack of jurisdiction and to dissolve the restraining order. The plaintiffs filed a motion for summary judgment. While these motions were pending, the plaintiffs herein filed with the Commission on

2 The prior proceedings referred to were stated by the Commission as follows: The trains involved here were also the subject of a proceeding decided August 24, 1967, in which the carrier proposed to discontinue the train's service between Billings and Alliance, approximately 475 miles, effective May 1, 1967. This division found that operation of the trains was required by the public convenience and necessity and would not unduly burden interstate and foreign commerce. The service was ordered continued for a period of 1 year from the above-decided date. See Chicago, B. & Q. R. Co.-Discontinuance of Trains, 330 I.C.C. 742 (Billings-Alliance case). 334 I.C.C. at 211.

3 § 13a (1) reads:

§ 13a. Discontinuance or change of the operation or service of trains or ferries; notice; investigation; hearing; determination.

(1) A carrier or carriers subject to this chapter, if their rights with respect to the discontinuance or change, in whole or in part, of the operation or service of any train or ferry operating from a point in one State to a point in any other State or in the District of Columbia, or from a point in the District of Columbia to a point in any State, are subject to any provision of the constitution or statutes of any State or any regulation or order of (or are the subject of any proceeding pending before) any court or an administrative or regulatory agency of any State, may, but shall not be required to, file with the Commission, and upon such filing shall mail to the Governor of each State in which such train or ferry is operated, and post in every station, depot or other facility served thereby, notice at least thirty days in advance of any such proposed discontinuance or change. The carrier or carriers filing such notice may discontinue or change any such operation or service pursuant to such notice except as otherwise ordered by the Commission pursuant to this paragraph, the laws or constitution of any State, or the decision or order of, or the pendency of any proceeding before, any court or State authority to the contrary notwithstanding. Upon the filing of such notice the Commission shall have authority during said thirty days notice period, either upon complaint or upon its own initiative without complaint, to enter upon an investigation of the proposed discontinuance or change. Upon the Institution of such investigation, the Commission, by order served upon the carrier or carriers affected thereby at least ten days prior to the day on which such discontinuance or change would otherwise become effective, may require such train or ferry to be continued in operation or service, in whole or in part, pending hearing and decision in such investigation, but not for a longer period than four months beyond the date when such discontinuance or change would otherwise have become effective. If, after hearing in such Investigation, whether concluded before or after such discontinuance or change has become effective, the Commission finds that the operation or service of such train or ferry is required by public convenience and necessity and will not unduly burden interstate or foreign commerce, the Commission may by order require the continuance or restoration of operation or service of such train or ferry, in whole or in part, for a period not to exceed one year from the date of such order. The provisions of this paragraph shall not supersede the laws of any State or the orders or regulations of any administrative or regulatory body of any State applicable to such discontinuance or change unless notice as in this paragraph provided is filed with the Commission. On the expiration of an order by the Commission after such investigation requiring the continuance or restoration of operation or service, the jurisdiction of any State as to such discontinuance or change shall not longer be superseded unless the procedure provided by this paragraph shall again be invoked by the carrier or carriers.

4 The statutory four-month period had expired on January 6, 1969. The Burlington, however, voluntarily agreed to continue running the trains through January 13, 1969, to allow the Commission an additional week in which to issue a report.