NH Motor Transport v. Town of Plaistow ( 1995 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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          No. 94-2095



                  NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                                  TOWN OF PLAISTOW,



                                 Defendant, Appellee.



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                                        Before



                                 Cyr, Circuit Judge,
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                            Aldrich, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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                           ORDER ON PETITION FOR REHEARING



                               Entered October 25, 1995





               On  petition  for rehearing,  New Hampshire  Motor Transport

          Association  has expanded  its reliance  on an  agency regulation

          touched upon  lightly at one point  in the original  brief.  This

          regulation of the Department of Transportation states that access

          review processes adopted  by the state  shall provide inter  alia
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          for "denial  of access to  terminals . . .  only on the  basis of

          safety  and engineering analysis of the access route."  23 C.F.R.

            658.19 (i)(2)(A).  It is  apparently the Association's position

          that   this    provision   represents   a    controlling   agency

          interpretation  of  the  "reasonable  access"  provision  of  the

          Surface Transportation Systems  Act of 1982 to which deference is

          required  under the  Chevron doctrine.   We  reject this  belated
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          suggestion.



               First,  the   ordinance  and  order  in  this  case  do  not

          "deny . . .  access to  the  terminal";  they  impose  reasonable

          restrictions  upon it,  as  the statute  itself clearly  permits.

          This is no more an outright denial of access than a detour around
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          a school zone  or a  bridge raised for  maritime commerce  during

          rush hour.  Nor does the regulation itself even purport to define

          "reasonable  access" as  that term  is used  in the  statute; the

          quoted provision is one  element in a check list of  elements for

























          state review processes to be established under the regulations.



               Indeed,  if  the regulation  were  read  as the  Association

          intends,  there  would  be  a  very serious  question  about  its

          validity.  As explained  in the panel opinion, the  original 1982

          statute did  not even  arguably impose the  requirement that  all

          reasonable restrictions on  access be based solely on safety; and

          whatever  the   precise  purpose  of  the   1984  amendment  that

          emphasized that  safety regulations  could be imposed  on certain

          tractor-trailers, a drastic recasting of the original "reasonable

          access"  provision is  nowhere  suggested.   Even under  Chevron,
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          deference to an administrative interpretation is not unlimited.



               Second,  the implications  of the  suggested reading  of the

          regulation,  like the  suggested  reading of  the statute,  weigh

          heavily against it.  There is no federal regime of  zoning or use

          restrictions  that applies  to terminals,  like the  one in  this

          case,  located miles from  the interstate highway  system.  Thus,

          the Association's reading of the statute and the regulation would

          mean that  no one--neither the federal government, nor the states

          and localities--would have the power to carry on this traditional

          function of government.



               It would be  remarkable enough for Congress to  determine to

          transfer such authority  sub silentio from  the states and  local
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          governments  to federal  authorities  or for  it  to empower  the

          Department of Transportation to make such a  shift by regulation.

          What is  to us almost inconceivable is  that Congress effectively

          abolished  anyone's  authority  to impose  reasonable  non-safety
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          based  restrictions on access to such terminals.  The notion that

          trucking terminals have been  completely exempted from regulation

          that affects every other kind of business in the United States is

          difficult to take seriously.



               The petition for rehearing is denied.
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