Nuclear Information & Resource Service v. United States Department of Transportation Research & Special Programs Administration

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NUCLEAR INFORMATION AND 
RESOURCE SERVICE; COMMITTEE TO
BRIDGE THE GAP; PUBLIC CITIZEN,
INC.; REDWOOD ALLIANCE; SIERRA
CLUB,
Plaintiffs-Appellants,
No. 05-16327
v.
UNITED STATES DEPARTMENT OF  D.C. No.
CV-04-04740-MHP
TRANSPORTATION RESEARCH AND
OPINION
SPECIAL PROGRAMS ADMINISTRATION;
NORMAN Y. MINETA, in his official
capacity as Secretary of the United
States Department of
Transportation,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding
Argued and Submitted
May 16, 2006—San Francisco, California
Filed July 24, 2006
Before: Pamela Ann Rymer and Kim McLane Wardlaw,
Circuit Judges, and James V. Selna,* District Judge.
Opinion by Judge Rymer
*The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
8139
8142 NUCLEAR INFORMATION v. U.S. DOT RESEARCH
COUNSEL
Paul Lamboley, San Francisco, California, for the appellants.
John L. Smeltzer, United States Department of Justice, Wash-
ington, D.C., for the appellee.
OPINION
RYMER, Circuit Judge:
The Nuclear Information and Resource Service, Committee
to Bridge the Gap, Public Citizen, Inc., Redwood Alliance,
NUCLEAR INFORMATION v. U.S. DOT RESEARCH 8143
and Sierra Club (collectively NIRS) appeal the district court’s
dismissal of NIRS’s challenge to the Department of Transpor-
tation’s (DOT) rulemaking for lack of subject matter jurisdic-
tion. The district court held that the court of appeals has
exclusive jurisdiction under 49 U.S.C. § 20114(c), which pro-
vides that any proceeding to review a final action of the Sec-
retary of Transportation under the Hazardous Materials
Transportation Act (HMTA), “as applicable to railroad safe-
ty,” shall be brought in the courts of appeals pursuant to the
Hobbs Act, 28 U.S.C. §§ 2341-2351. We agree with the dis-
trict court that because the challenged DOT rule regulates
transportation of hazardous materials by rail, as well as by
other modes of transportation, exclusive jurisdiction lies in
the courts of appeals. We affirm.
I
DOT is authorized to designate material as hazardous and
to prescribe regulations for the safe transportation of such
material. 49 U.S.C. § 5103(a), (b)(1). Under this authority,
DOT has issued its Hazardous Materials Regulations (HMR),
which regulate the shipment of radioactive materials, includ-
ing packaging, labeling, and notification. 49 C.F.R. §§ 171-
180. The requirements in the HMR apply to the “transporta-
tion of hazardous material in commerce,” 49 C.F.R.
§ 171.1(c), including “[m]ovement of a hazardous material by
rail car, aircraft, motor vehicle, or vessel,” 49 C.F.R.
§ 171.1(c)(1).
After an extensive period of public comment and coordina-
tion with the Nuclear Regulatory Commission (NRC), on Jan-
uary 26, 2004, DOT issued a Final Rule adopting
Compatibility Amendments to the HMR to harmonize its
exemptions for low-level radioactive materials with the
exemption standards of the International Atomic Energy
Agency (IAEA). Hazardous Materials Regulations; Compati-
bility With the Regulations of the International Atomic
Energy Agency; Final Rule, 69 Fed. Reg. 3,632 (Jan. 26,
8144 NUCLEAR INFORMATION v. U.S. DOT RESEARCH
2004) (to be codified at 49 C.F.R. pts. 171-78) (“DOT Final
Rule”). As a result of the amendments, the HMR now defines
“radioactive material” to mean “any material containing
radionuclides where both the activity concentration and the
total activity in the consignment exceed the values specified”
in the new dose-based tables. 49 C.F.R. § 173.403. In prepar-
ing its final amendment to the HMR, DOT relied on the Envi-
ronmental Assessment and Finding of No Significant Impact
issued by NRC. DOT Final Rule, 69 Fed. Reg. at 3,664; see
40 C.F.R. § 1501.5(a)(2) (permitting a lead agency to super-
vise preparation of an Environmental Impact Statement if
multiple agencies are involved in “a group of actions directly
related to each other because of their functional interdepen-
dence”).
On November 9, 2004, NIRS filed an action in the United
States District Court for the Northern District of California
seeking review of DOT’s rulemaking. NIRS alleged that DOT
violated the National Environmental Protection Act (NEPA)
by failing to prepare an Environmental Impact Statement
(EIS) before promulgating its Final Rule. More than eight
months earlier, on March 26, 2004, NIRS had timely filed a
petition for review of the NRC rulemaking in this court under
the Hobbs Act, arguing that NRC breached its NEPA obliga-
tions. On November 10, 2004, NIRS sought transfer of the
NRC review proceedings to the district court for consolidation
with the DOT case. We denied that motion without prejudice
on April 13, 2005. On January 10, 2005, DOT filed a motion
to dismiss the district court action under Fed. R. Civ. P.
12(b)(1) for lack of subject matter jurisdiction pursuant to 49
U.S.C. § 20114(c).
The district court granted DOT’s motion to dismiss. The
court held that it was apparent from the Hobbs Act and
§ 20114(c) that an action challenging the validity of DOT’s
regulations, as applicable to railroad safety, must be brought
in the courts of appeals. Even though the district court recog-
nized the possibility that it would retain jurisdiction to review
NUCLEAR INFORMATION v. U.S. DOT RESEARCH 8145
the portions of the rule that were unrelated to rail transport,
while the courts of appeals had exclusive jurisdiction over any
part applicable to railroad safety, it concluded that consider-
ations of judicial economy favored resolution of all claims
arising from a single agency decision in one forum.
NIRS timely appealed. We review de novo the district
court’s dismissal for lack of subject matter jurisdiction. Luong
v. Circuit City Stores, Inc., 368 F.3d 1109, 1111 n.2 (9th Cir.
2004).
II
District courts generally have jurisdiction over NEPA
claims pursuant to 28 U.S.C. § 1331 and the Administrative
Procedure Act, 5 U.S.C. § 702. Cetacean Cmty. v. Bush, 386
F.3d 1169, 1179 (9th Cir. 2004) (noting that “judicial enforce-
ment of NEPA rights is available through the APA”). How-
ever, where a federal statute provides for direct review of an
agency action in the court of appeals, such “[s]pecific grants
of exclusive jurisdiction to the courts of appeals override gen-
eral grants of jurisdiction to the district courts.” Carpenter v.
Dept. of Transp., 13 F.3d 313, 316 (9th Cir. 1994) (quoting
Owner-Operators Indep. Drivers Ass’n of Am., Inc. v. Skin-
ner, 931 F.2d 582, 589 (9th Cir. 1991)).
[1] The specific grant of jurisdiction relevant to NIRS’s
claims against DOT is set forth in the Hobbs Act, which pro-
vides that courts of appeals shall have exclusive jurisdiction
over actions seeking judicial review of “all final agency
actions described in section 20114(c) of title 49,” a provision
of the Federal Railroad Safety Act of 1970 (FRSA). 28 U.S.C.
§ 2342(7). Section 20114(c), in turn, provides that “a proceed-
ing to review a final action of the Secretary of Transportation
under [Title 49, Subtitle V, Part A] or, as applicable to rail-
road safety, chapter 51 or 57 of [Title 49] shall be brought in
the appropriate court of appeals as provided in chapter 158 of
title 28 [the Hobbs Act].” 49 U.S.C. § 20114(c) (emphasis
8146 NUCLEAR INFORMATION v. U.S. DOT RESEARCH
added). The DOT regulations at issue in this case were pro-
mulgated pursuant to chapter 51 of Title 49, 49 U.S.C.
§§ 5101-5128, which codifies the HMTA. DOT’s Final Rule
applies to all modes of transport, including rail.
NIRS argues that the court of appeals has exclusive juris-
diction to review DOT action under the HMTA only when
DOT takes action unique to rail carriers. NIRS grounds this
argument in the legislative history of the FRSA, which it
claims demonstrates that Congress intended § 20114(c) to
apply only to actions by the Federal Railroad Administration
(FRA), not by DOT, and only to actions solely applicable to
railroad regulation, not to multi-modal regulation. To support
its position, NIRS relies on a draft version of § 20114(c) that
limited judicial review of HMTA actions in the court of
appeals to those “applicable solely to railroads.” DOT count-
ers that applying § 20114(c) to multi-modal actions that
impact railroad safety is consistent with the plain language of
the statute and with the section’s purpose and legislative his-
tory. DOT argues that § 20114(c) is not ambiguous on its face
and that there is no reason to look beyond the provision’s
plain meaning to its legislative history.
[2] We agree with DOT that § 20114(c) is unambiguous;
however, we refine DOT’s reading of the statute. The statute
provides that “a proceeding to review a final action of the
Secretary of Transportation under this part or, as applicable to
railroad safety, chapter 51 or 57 of this title shall be brought
in the appropriate court of appeals.” The prepositional phrase
“as applicable to railroad safety” modifies the noun “chapter
51.” Thus, a challenge to a final action under Chapter 51, as
that chapter is applicable to railroad safety, must be brought
in the courts of appeals. The alternate reading of the statute
urged by DOT interprets the phrase “as applicable to railroad
safety” as modifying “a final action.” This reading is gram-
matically unsound because it requires dropping the preposi-
tion “as” and moving “under” so that the relevant part of the
sentence reads “a final action applicable to railroad safety
NUCLEAR INFORMATION v. U.S. DOT RESEARCH 8147
under Chapter 51.” The latter reading would be defensible if
the language were “applicable to railroad safety” and not “as
applicable to railroad safety.” However, as it is written, we
think it clear that this jurisdictional provision applies to
actions under the HMTA (Chapter 51), as that statute applies
to railroad safety.
[3] If the statute were read to provide exclusive appellate
jurisdiction for final agency actions applicable to railroad
safety under the HMTA, then there might be a question
whether an action would be reviewable in the court of appeals
only in so far as it applied to railroad safety, and reviewable
in the district court in so far as it applied to other modes of
transportation. However, the technically sound reading of the
statute forecloses the possibility that “a proceeding” to review
“a final action” would need to be split into component parts.
Any action under the HMTA that affects railroad safety is an
action under that statute as the statute is applicable to railroad
safety, even if the action also deals with other modes of trans-
portation. In contrast, actions under the HMTA that do not
deal with railroad safety at all are not actions under the statute
as applicable to railroad safety, and the jurisdictional provi-
sion does not apply. It is undisputed that DOT’s IAEA Com-
patibility Amendments were issued under the authority of the
HMTA. And because the new exemption standards apply to
shipments by rail, they were an action under HMTA as appli-
cable to railroad safety. Therefore, we hold that the chal-
lenged regulations are reviewable only in the courts of
appeals and that the district court properly dismissed the
action for lack of subject matter jurisdiction.1
1
We note that the relevance of our decision going forward is limited by
the enactment of the Safe, Accountable, Flexible and Efficient Transporta-
tion Equity Act of 2005: A Legacy for Users, (SAFETEA-LU), Pub. L. No.
109-59, 119 Stat. 1144 (2005), which amended the HMTA to provide for
direct review of final actions of the Secretary in the courts of appeals
regardless of the transportation mode affected. 49 U.S.C. § 5127(a).
8148 NUCLEAR INFORMATION v. U.S. DOT RESEARCH
III
[4] Because the statute is unambiguous, we need not exam-
ine the statute’s legislative history. It is well established that
“[t]he plain meaning of the statute controls, and courts will
look no further, unless its application leads to unreasonable or
impracticable results.” United States v. Daas, 198 F.3d 1167,
1174 (9th Cir. 1999); see also, e.g., SEC v. McCarthy, 322
F.3d 650, 655 (9th Cir. 2003) (holding that plain meaning
always controls “unless that meaning would lead to absurd
results” (internal quotation marks omitted)). Courts can only
look to legislative history to determine congressional intent if
a statute is ambiguous. See, e.g., Cleveland v. City of Los
Angeles, 420 F.3d 981, 990 n.11 (9th Cir. 2005) (citing HUD
v. Rucker, 535 U.S. 125, 132 (2002)); see also BedRoc Ltd.
v. United States, 541 U.S. 176, 187 n.8 (2004) (explaining
that “longstanding precedents” “permit resort to legislative
history only when necessary to interpret ambiguous statutory
text”).
[5] Supreme Court and our precedent also make clear that
“[j]udicial review provisions . . . are jurisdictional in nature
and must be construed with strict fidelity to their terms.”
Stone v. INS, 514 U.S. 386, 405 (1995); Owner-Operators
Indep. Drivers Ass’n of Am., 931 F.2d at 590 (holding that
“[c]ourts should strictly construe jurisdictional statutes”). “If
there is any ambiguity as to whether jurisdiction lies with a
district court or with a court of appeals, we must resolve that
ambiguity in favor of review by a court of appeals.” Suburban
O’Hare Commission v. Dole, 787 F.2d 186, 192 (7th Cir.
1986); Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 193
(2d Cir. 2004) (citing cases from the Second, Seventh, Tenth,
and D.C. Circuits for the proposition that “when there is a
specific statutory grant of jurisdiction to the court of appeals,
it should be construed in favor of review by the court of
appeals”).
NUCLEAR INFORMATION v. U.S. DOT RESEARCH 8149
However, even if the legislative history were relevant, it
would not change the result we reach. NIRS relies on the leg-
islative history of § 20114(c) to argue that “applicable to rail-
road safety” should be read as “solely applicable to railroad
safety,” which excludes multi-modal rulemaking from the
statute’s purview.2 NIRS notes that when Congress enacted
the Rail Safety Enforcement and Review Act (RSERA) in
1992, it included a judicial review provision calling for
review under the Hobbs Act of “final agency action taken by
the Secretary under this subchapter or under any of the other
Federal railroad safety laws, as defined in section 441(e) of
this title.” 45 U.S.C. § 431(f) (1993). NIRS points out that
“railroad safety laws” had been interpreted to include all
actions under the HMTA, so that § 431(f) (the precursor to
§ 20114(c)), could have been read to provide Hobbs Act
review of any actions under the HMTA, even those unrelated
to railroad safety. See Federal Railroad Safety Authorization
Act of 1980, Pub. L. No. 96-423, § 10, 94 Stat. 1811, 1816
(1980), (adding 45 U.S.C. § 441 (1982) (repealed 1984)). In
1994, Congress amended § 20114(c) to its current form by
adding the qualifier “as applicable to railroad safety.” Both
parties agree that when Congress enacted § 20114(c) to re-
codify the former section 431(f), Congress did not intend to
make a substantive change in the law. See H.R. Rep. No. 103-
180 (1993), reprinted in 1994 U.S.C.C.A.N. 818. And the
parties agree that despite the “non-substantive” nature of the
re-codification, Congress did make a significant change to the
text when it added “as applicable to railroad safety.”
In light of the nature of the 1994 revision, NIRS argues that
we should look to the initial draft of the legislation to deter-
mine Congressional intent. Specifically, NIRS relies on the
2
The interpretation of the statute NIRS urges does not make sense gram-
matically because it requires reading the “as” out of “as applicable to rail-
road safety” and then reading the clause “applicable to railroad safety” as
modifying “a final action.” As we have explained, this reading of the stat-
ute is untenable.
8150 NUCLEAR INFORMATION v. U.S. DOT RESEARCH
1991 draft, which provided for direct appellate review of
actions under railroad-specific safety statutes, or “to the
extent applicable solely to railroads, [of] a rule, regulation, or
order of the Secretary of Transportation under any other Act.”
H.R. 2607 IH, 102nd Cong. § 5 (1991). NIRS argues that
Congress’s intent should be determined from the original draft
because the adopted revision was suggested in order to further
“the Committee’s apparent objective.” H.R. Rep. No. 102-
205, at 26 (1991), reprinted in 1992 U.S.C.C.A.N. 866, 887.
However, Congress did not enact this version of the statute.
Instead, Congress adopted an amendment proposed by the
Secretary to simplify the statute and enacted a version that
omitted the “applicable solely to railroads” language.
The Supreme Court has recognized that in “rare cases the
literal application of a statute will produce a result demonstra-
bly at odds with the intention of its drafters, and those inten-
tions must be controlling.” Griffin v. Oceanic Contractors,
Inc., 458 U.S. 564, 571 (1982). The court explained that in the
“exceptional case,” there was “some scope for adopting a
restricted rather than a literal or usual meaning of [the stat-
ute’s] words where acceptance of that meaning . . . would
thwart the obvious purpose of the statute.” Id. (internal cita-
tions and quotation marks omitted). This is not the excep-
tional case. A plain language interpretation of the statute does
not prevent judicial review of DOT actions relating to railroad
safety. The apparent purpose of the statute was to require
direct review of railroad safety laws in the courts of appeals,
and the language of the 1992 Act accomplished this purpose,
albeit allowing for direct review of multi-modal actions as
well. The 1994 provision is similarly consistent with the legis-
lative purpose.
Further, the legislative history could be interpreted to sup-
port exactly the opposite of the position NIRS urges. As DOT
argues, when Congress does not adopt limiting language con-
tained in a draft bill, such an action is ordinarily deemed evi-
dence of Congressional intent to reject the limitation. See Doe
NUCLEAR INFORMATION v. U.S. DOT RESEARCH 8151
v. Chao, 540 U.S. 614, 623 (2004). In this case, Congress
rejected an explicit limitation that would have provided direct
review for actions solely applicable to railroad safety in favor
of language that provided for review of federal railroad safety
laws, defined as including all laws enacted pursuant to the
HMTA. Moreover, nothing in the Congressional report
accompanying the final version of the statute indicates that
Congress intended the provision to apply only to actions of
the FRA or to actions relating solely to railroads. See H.R.
Rep. No. 102-205, at 17 (1991), reprinted in 1992
U.S.C.C.A.N. 866, 878 (“The Committee intends that this
action conform the judicial review procedures for the rail
mode to those in both the highway and aviation modes, . . .
[and] believes that this system of immediate review in the
courts of appeals, with discretionary review in the Supreme
Court, will expedite the legal review of the Secretary’s rail
safety actions and will bring legal finality to cases more
promptly.”). With respect to the 1994 re-codification, instead
of retaining language that could be read to apply to all HMTA
actions, even those unrelated to railroad safety, Congress lim-
ited the judicial-review provision to actions under, “as appli-
cable to railroad safety,” the HMTA. In so doing, Congress
did not use the language from the rejected 1991 draft legisla-
tion that would have applied the provision only to actions
“solely applicable to railroads.” NIRS’s position entails a sig-
nificant stretch which we are unwilling to take, for it would
require us to conclude that Congress intended to include limit-
ing language that it expressly rejected when it enacted the
statute. Cf. Connecticut Nat’l Bank v. Germain, 503 U.S. 249,
253-54 (1992) (“[C]ourts must presume that a legislature says
in a statute what it means and means in a statute what it says
there.”).
[6] Given the unambiguous plain language of the regulation
and the less than clear legislative history, we decline to read
into § 20114(c) a limitation that Congress rejected when it
enacted and re-codified the statute.
8152 NUCLEAR INFORMATION v. U.S. DOT RESEARCH
IV
[7] NIRS additionally maintains that the district court
should have relied on Ruud v. United States Department of
Labor, 347 F.3d 1086 (9th Cir. 2003), and a pragmatic appli-
cation of jurisdictional principles, to take concurrent jurisdic-
tion and to transfer this case to the court of appeals to be
decided with NIRS’s petition for review of the NRC rulemak-
ing. We need not decide this, however, because 28 U.S.C.
§ 1631 only permits district courts to transfer actions to the
courts of appeals to “cure [a] want of jurisdiction” if the court
of appeals would have been able to assert jurisdiction at the
time the action was filed.3 The Hobbs Act requires that a chal-
lenge to an agency action be filed within sixty days. 28 U.S.C.
§ 2344. NIRS filed its district court action more than 60 days
after DOT denied NIRS’s administrative appeal. Accordingly,
transfer to the court of appeals would not have been permitted
under § 1631.
[8] The district court therefore properly dismissed NIRS’s
action for lack of subject matter jurisdiction.
AFFIRMED.
3
28 U.S.C. § 1631 provides:
Whenever a civil action is filed in a court as defined in section
610 of this title or an appeal, including a petition for review of
administrative action, is noticed for or filed with such a court and
that court finds that there is a want of jurisdiction, the court shall,
if it is in the interest of justice, transfer such action or appeal to
any other such court in which the action or appeal could have
been brought at the time it was filed or noticed, and the action or
appeal shall proceed as if it had been filed in or noticed for the
court to which it is transferred on the date upon which it was
actually filed in or noticed for the court from which it is trans-
ferred.