Kings County v. Surface Transportation Board , 694 F. App'x 472 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 02 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KINGS COUNTY, a political ) No. 15-71780
subdivision of the State of California; )
KINGS COUNTY FARM BUREAU; ) STB No. STB-FD-35861
CALIFORNIA CITIZENS FOR )
HIGH-SPEED RAIL ) MEMORANDUM*
ACCOUNTABILITY; )
COMMUNITY COALITION ON )
HIGH-SPEED RAIL; CALIFORNIA )
RAIL FOUNDATION, a California )
Nonprofit Corporation; )
TRANSPORTATION SOLUTIONS )
DEFENSE AND EDUCATION )
FUND, a California Nonprofit )
Corporation, )
)
Petitioners, )
)
SURFACE TRANSPORTATION )
BOARD; UNITED STATES OF )
AMERICA, )
)
Respondents. )
)
CALIFORNIA HIGH SPEED RAIL )
AUTHORITY, )
)
Respondent-Intervenor. )
)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
On Petition for Review of an Order of the
Surface Transportation Board
Argued and Submitted July 12, 2017
Pasadena, California
Before: REINHARDT, FERNANDEZ, and WARDLAW, Circuit Judges.
Kings County and others1 petition for review of a declaratory order of the
United States Surface Transportation Board (hereafter the Board),2 and the
California High-Speed Rail Authority (hereafter the Authority) intervened. We
dismiss for lack of jurisdiction.
We do have jurisdiction to determine our jurisdiction,3 and, more
specifically, we have jurisdiction “to determine the validity of . . . all rules,
regulations, or final orders of [the Board].”4 For an order to be final, its action
must “[f]irst . . . mark the ‘consummation’ of the agency’s decisionmaking
1
The other petitioners are: Kings County Farm Bureau, California Citizens
for High-Speed Rail Accountability, Community Coalition on High-Speed Rail,
California Rail Foundation, and Transportation Solutions Defense and Education
Fund.
2
Cal. High-Speed Rail Auth. — Petition for Declaratory Order, No. 35861,
2014 WL 7149612 (S.T.B. Dec. 12, 2014) (hereafter Declaratory Order); see also
Cal. High-Speed Rail Auth. — Petition for Declaratory Order, No. 35861, 2015
WL 2070594 (S.T.B. May 5, 2015).
3
See Sonoda v. Cabrera, 189 F.3d 1047, 1050 (9th Cir. 1999); see also
United States v. Neil, 312 F.3d 419, 421 (9th Cir. 2002).
4
28 U.S.C. § 2342(5).
2
process,”5 and “second . . . be one by which ‘rights or obligations have been
determined,’ or from which ‘legal consequences will flow.’”6 While it could be
said that, in some sense, the agency has completed its decisionmaking process
because it does not propose to do anything further at this time, it cannot be said
that any rights or obligations have been determined or that legal consequences will
flow from the Declaratory Order. On the contrary, the Declaratory Order is purely
advisory and, therefore, is not final. See Bennett, 520 U.S. at 178, 117 S. Ct. at
1169 (actions that are “in no way binding on the [recipient], who had absolute
discretion to accept or reject them [are advisory]”); see also Dalton v. Specter, 511
U.S. 462, 469, 114 S. Ct. 1719, 1724, 128 L. Ed. 2d 497 (1994); Franklin v.
Massachusetts, 505 U.S. 788, 798–99, 112 S. Ct. 2767, 2774, 120 L. Ed. 2d 636(1992).
That is shown by the terms of the Declaratory Order itself, where the Board
stated that its purpose was merely to: “provide [its] views on the preemption
issue”7; “inform interested parties and the California Supreme Court of [its]
5
Bennett v. Spear, 520 U.S. 154, 177–78, 117 S. Ct. 1154, 1168, 137 L. Ed.
2d 281 (1997).
6
Id. at 178, 117 S. Ct. at 1168.
7
Declaratory Order, 2014 WL 7149612, at *3.
3
views”8; and “assist in the resolution of [a] conflict.”9 It went on to explain that it
was not speaking to issues of funding, or whether the Authority had “to comply
with [the California Environmental Quality Act] as a condition of its funding.”10
The Declaratory Order itself bound no one, not even the Board,11 and was
merely an expression of views which the California Supreme Court and others
“had absolute discretion to accept or reject.” Bennett, 520 U.S. at 178, 117 S. Ct.
at 1169. We have neither Constitutional jurisdiction12 nor statutory jurisdiction13
because the Declaratory Order was not final. Expressing our views regarding that
order would amount to an advisory opinion, which would not resolve “concrete
8
Id. at *4.
9
Id. As the Board indicated in its briefing and at oral argument, the Board
simply meant to “provide guidance,” and intended the Declaratory Order to be
advisory only.
10
Id. at *11; see also Cal. High-Speed Rail Auth.— Constr. Exemption—In
Fresno, Kings, Tulare, and Kern Ctys., Cal., No. 35724 (Sub-No. 1), 2014 WL
3973120, at *8 (S.T.B. August 12, 2014) (moving forward “with an approved
project ultimately is in the hands of the applicant and its potential investors”).
11
We recognize that Board orders can be binding on others, but that does not
mean that the one at hand is binding. See F.T.C. v. Standard Oil Co. of Cal., 449
U.S. 232, 243, 101 S. Ct. 488, 495, 66 L. Ed. 2d 416 (1980). We cannot speculate
on whether it might lend support to a binding decision some time in the future.
12
U.S. Const. art. III, § 2; Golden v. Zwickler, 394 U.S. 103, 108, 89 S. Ct.
956, 959, 22 L. Ed. 2d 113 (1969).
13
28 U.S.C. § 2342(5).
4
legal issues, presented in actual cases, not abstractions.”14 Therefore, we must
dismiss the petition.
Petition DISMISSED for lack of jurisdiction.
14
Golden, 394 U.S. at 108, 89 S. Ct. at 959; see also Thomas v. Anchorage
Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc) (internal
quotation marks omitted).
5