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Cross-Sound Ferry Services Inc. v. United States and Interstate Commerce Commission

decided: March 13, 1978.

CROSS-SOUND FERRY SERVICES, INC., PETITIONER,
v.
THE UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, RESPONDENTS, NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK), MASCONY TRANSPORT AND FERRY SERVICE, INC., ET AL., INTERVENORS



Petition for review of orders of the Interstate Commerce Commission granting Mascony Transport and Ferry Service, Inc. a conditional certificate of public convenience and necessity.

Friendly, Smith and Timbers, Circuit Judges.

Author: Smith

SMITH, Circuit Judge

This is a petition for review of orders issued by the Interstate Commerce Commission ("ICC") granting Mascony Transport and Ferry Service, Inc. ("Mascony") a conditional certificate of public convenience and necessity, pursuant to 49 U.S.C. § 909(c).*fn1

Petitioners Cross-Sound Ferry Services, inc. ("Cross-Sound"), successor-in-interest to New London Freight Service, Inc. ("NLFL"), the Bridgeport and Port Jefferson Steamboat Co. ("B&PJ"), the Incorporated Village of Greenport ("VG"), and the Shelter Island and Greenport Ferry Co. ("SI&G") oppose the ICC's grant of the certificate to Mascony.*fn2

This court has jurisdiction over the petition pursuant to 28 U.S.C. §§ 2321(a) and 2342.

Petitioners argue here that the grant of operating rights was invalid for three principal reasons:

(1) The ICC acted arbitrarily and capriciously in permitting Mascony to offer additional evidence after the close of the record, while forbidding the admission of additional evidence offered by the petitioners.

(2) The ICC did not act in conformity with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq.

(3) The ICC erred in finding that Mascony was "fit, willing, and able properly to perform" the requested service.

We have examined the extensive record in this case, and find that the ICC acted properly and within the scope of its discretion in granting Mascony a certificate of public convenience and necessity which was limited to a three-year term. Accordingly, we deny the petition.

History and Facts of the Case

Because the petitioners' argument turns, in large measure, on claimed procedural irregularities in the ICC proceedings, it is necessary to recount the procedural history of this case in some detail.

The Mascony Transport and Ferry Service, Inc. filed an application with the ICC on May 29, 1973, seeking authority:

to engage in operation, in interstate or foreign commerce, as a common carrier by water in the transportation of general commodities and passengers by self-propelled vessels, between the ports of New London, Conn., and Greenport, Long Island, N.Y. . . .

This application was opposed by NLFL (and later by its successor in interest, Cross-Sound, which was substituted as a party in these proceedings on November 19, 1976) and B&PJ, and by intervenors below, SI&G and the East End Supply Co. Also intervening were the Connecticut Department of Transportation, the New York Department of Transportation, and the Planning Board of the Village of Greenport.

Oral hearings were held before Administrative Law Judge David H. Allard during the period from October, 1973 to February, 1974.By order issued March 26, 1974, the record in these proceedings was closed as of March 19, 1974, with briefs to be submitted some two months later.*fn3

On June 19, 1974, the ALJ denied Mascony's application because of "operational considerations: safety at New London and environmental at Greenport."

Mascony filed exceptions to the decision, and petitioned the ICC to reopen the record for receipt of additional evidence. On October 22, 1975, the ICC's Appellate Division 1 ordered the reopening of the record to accept a limited amount of evidence from Mascony, and directed that an environmental impact study be conducted pursuant to the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq.

Cross-Sound, successor in interest to NLFL, and B&PJ then petitioned for reconsideration of the October 22 order, and sought to reopen the record for receipt of evidence bearing on "changed circumstances" in their provision of transport services.

The ICC issued a draft environmental impact statement ("EIS") on February 3, 1976, and solicited comments from all interested parties. Comments were subsequently filed by many of the principals in this case. A final EIS, which reflected the ...


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