*1 Mar. S007919. [No. 1990.] INC., Petitioner, TRAIN,

NAPA VALLEY WINE COMMISSION, PUBLIC UTILITIES Respondent; al., CITY OF ST. HELENA et Real Parties in Interest.

Counsel Goldsmith, McAuliffe, H. Heller, Ehrman, Ley, P. Peter Douglas &White Ryerson D. for Petitioner. M. Patti and Victor Christopher Kerr, Respondent. T. Dumas for Day E. Michael B. and Gretchen Janice *4 West, F. Nave, and Michael Michael S. Riback Meyers, Riback & for Real Parties Interest. Rodriguez

Opinion

PANELLI, J.—

I. Introduction Quality In case the California Environmental this we consider whether Code, 21177) CEQA)1 Act Resources 21000 to (Pub. (hereafter applies §§ Train, carry the Inc. to Valley (Wine Train), to plan Napa on an 21-mile railroad line California’s passengers existing through Napa Commission Valley. Believing CEQA does the Public Utilities apply, until after sub- (PUC) ordered Wine Train not to service begin passenger hold, however, an in accor- mitting to environmental review We process. statutory dance an does not to express apply with exemption, already the institution of service on rail use.2 passenger rights-of-way the (§21080, (b)(ll) exemption].) passenger-service [hereafter citations, noted, statutory All further unless otherwise are to the Public Resources Code. jurisdictional 2This case also touches on a conflict between the PUC and the federal Inter (ICC). jurisdiction the have state Commerce Commission Both ICC and the PUC asserted filed, passenger opinion over Wine Train’s service. At the time the ICC reconsider ing its decision. case, however, jurisdictional Even if the To resolve this we need not resolve the conflict. service, power regulate passenger-service exemp- PUC had the to Wine Train’s the any CEQA inapplicable. other reason for us to re- tion would nevertheless make Nor is there jurisdictional Although suggest PUC parties’ at this time. briefs solve conflict activities, may someday regulate franchis- attempt aspects to other of Wine Train’s such as Background

II. Valley, an increas- Napa line in California’s This case involves a railroad many wineries come to visit the destination for tourists who ingly popular Rocktram, valley’s end in 29. at the southern Starting State along Highway highway. roughly miles to Krug, paralleling line travels 21 north to driving, operating to tourists an alternative Wine Train offer plans way. at wineries daily along as six many stopping trains century carry tourists who ago built over a The railroad was first Calistoga. baths For to the mineral arrived ferries from San Francisco Transportation to the Southern Pacific history, belonged of its line most passen SP parties, transporting According stopped Company (SP). ago. freight, primarily gers years Transportation line about *3 vintners, time.* but declined over wine from the area’s continued be- ICC to abandon line SP to the applied permission However, purchase Wine Train offered to tween Rocktram and Krug. offer, the ICC year. SP that same Because Wine Train’s line from later law, “a Under federal when never SP’s abandon. granted application agreement enter an and a line into offering purchase carrier person *5 the the ICC must dismiss appli- which will continued rail service” provide U.S.C. (49 transaction. to abandon and the approve proposed cation application SP’s 10905(e).)4 under this statute ICC dismissed Acting § Wine offer. The transferred owner- parties to abandon and Train’s approved in April of the line 1987. ship SP carrying pending, stopped

While its to abandon was application of beginning SP’s took around the delivery place on the line. last freight line, however, in Wine became successor Train purchasing 1985. such, and, statutory federal to license to as assumed operate interest SP’s Wine Train reinstituted Accordingly, not to discontinue service.5 obligations date, currently PUC scheduling, To has used ing, pricing, no such order is before us. only compliance power Wine Train to order with asserted over CEQA. 3 ICC, and 269 cars According Rocktram-Krug line handled 285 cars 1982 Inc., Train, Valley (Napa the first 6 of 1984. 1983. Traffic declined to cars in months Decision].) Although Declaratory ICC Order I.C.C.2d [hereafter Petition carry freight beginning the record does not approximately SP of continued until precise of after first six of 1984. volume traffic months disclose others, the “continua expresses strong policy law a favor of In this statute and federal (49 10101a(4).) system . .” transportation a . . U.S.C. tion of sound rail portion line or of 10905(f)(4), purchaser of a States Under 49 United Code section “[n]o may prior such line to the end service on line sold under this section transfer discontinue year ownership . . .” took . Since transfer of of the second after consummation the sale from 10, 1988, furniture two carloads of bringing January service freight Later, February, early Valley. in the Napa a vintner Utah and Illinois to vintner. another of wine vats to carried six carloads the train have Real relatively parties little interest. evoked freight These shipments to institute passenger Wine Train’s plan the PUC to halt them. not asked service, however, Napa residents of the protest storm brought their tourists to bring the train would additional Valley, who feared that the train Opponents the debate. community. reported Local newspapers Propo- Valley park.” “an amusement feared that it would make the Napa by tourists on traffic caused congestion that it would alleviate argued nents Highway State 29. towns, 7, 1988, Valley Valley cities and the Napa March several Napa

On Association, (collectively real parties) and other interested persons Vintners real claimed that the PUC. In their complaint, parties filed a with complaint and that its subject CEQA proposed Wine Train was to the provisions jurisdiction. Real subject regulatory service was to the PUC’s passenger “an asserting an order instituting investigation, order parties requested train service jurisdiction passenger opera over [PUC’s] [Wine Train’s] ****6 tions,”* and desist from its and “an order to cease requiring [Wine Train] analysis until all review and environmental operations Train’s] [Wine has PUC’s proposed ‘project’ required [the rules] occurred.” 13, 1988, Wine Train “to directing

On the PUC issued an order April jurisdiction submit to the why show cause it should not be required train operation with respect proposed [the PUC] time, however, . already considering . . .” At that the ICC was service *6 were not by declaring Wine Train for an order that its petition operations to the subject jurisdiction. PUC’s in the ICC but also continued to claim

The PUC appeared proceeding issued Ultimately, agencies for itself. the federal state jurisdiction request at place April obliged provide Train service on until this statute Wine to 11101(a), provid- April section common carrier least 1989. Under 49 United States Code “[a] subject jurisdiction provide . . . ing transportation to the of the shall or service [ICC] juris- request.” The PUC concedes that the ICC has transportation or service on reasonable freight transportation. Wine diction over Train’s 6 statutory jurisdiction asking was to fulfill a parties’ Real reason for the PUC to assert CEQA. Although ordering comply section 21065 sets out predicate for Wine Train to with provisions statutory provision CEQA’s “project,” no makes substantive broad definition of by public agenc[y].” “approved applicable private project to a unless the is to be [a] (§ (a).) subd. 376 day, 1988. The ICC held that Wine July same orders

conflicting franchising, jurisdiction over the Train was from “immun[e] [the PUC’s] Decision, (ICC freight operations.” of scheduling pricing passenger law, CEQA California ICC also held that 5.) Interpreting p. Wine Train’s regulate not “since has no to power did apply, PUC] [the 5- (Id., . . . .” at pp. thus decision role here making has no operations contradiction, passenger the PUC ordered that rail 6.) direct “[t]he jurisdiction of subject to the service proposed [the Train] [Wine until any Wine Train not to “institute service and ordered PUC]” . . . St. (City of .” requirements [CEQA] it with all complies applicable of 352 No. Valley (Dec. Helena v. Train Cal.P.U.C.2d Napa 88-07-019, PUC Decision].) PUC After the denied Wine 12) p. [hereafter (Pub. Train’s for issued a of review.7 Util. rehearing, we writ application Code, 1756.) §

III. Discussion Passenger the Initiation Service CEQA’s Exemption of is to maintenance of CEQA promote fundamental purpose “[t]he and in the future environment for state now quality people . . . .” Since in 1970 we have acknowl- (a).) subd. its enactment an Friends that the act’s one. In Mammoth edged important purpose Board Cal.3d P.2d Supervisors (1972) Cal.Rptr. time, for the we 1049], construing Legis- first CEQA “conclude[d] lature intended be in such manner as afford fullest interpreted [it] environment within the reasonable scope possible protection statutory (Id., language.” has,

However, in since years CEQA Legislature was enacted several categories for reasons of policy, expressly exempted projects This (b)(l-16).) review. court does sit (See environmental against in review the wisdom in these Legislature’s balancing policies because, no matter how goal important environmental protection act, subject legislative remains a original legislative purpose, legislative limitation and amendment. Train, PUC, review, real a limited set *7 granted parties After Wine entered into we the agreement. agreement, passenger tlement Wine Train has instituted limited Pursuant service, prepare impact report institution of such service and will an environmental on its agreement in not make this case moot whatever the outcome this court. settlement does PUC, in process, full applies,

because the if must conduct a environmental review CEQA mitigate any cluding, environ among things, other consideration of available measures to 21080.5, (See (d)(2)(i).) mental effects. subd. § 1978, of predecessor amended to include In the Legislature enacted, originally exemption provided at issue here. As the exemption or commuter or increase of passenger for the institution project “[a] use, of already existing in the modernization including service on rail lines 1978, facilities, [CEQA].” (Stats. shall be from parking exempt stations 791, 1, 2541-2542, formerly 21085.5.)8 codified as pp. ch. § § 1982, by the term Legislature exemption deleting In amended the ” 21080, subd. substituting highway rights-of-way. (§ “rail lines” and “rail or 6077, 1982, 1553, 3, 1), by added.) as amended Stats. ch. italics (b)(l p. § ways The amendment of a bill that in various to further the part sought was mecha- by rail. Most of the bill concerned a transportation passengers time, nism for rail transit Since that financing rapid systems.9 Legisla- ture has those that were intended to repealed CEQA exemptions specifically However, facilitate rail rapid projects.10 passenger-service exemption 21080, (§ (b)(l 1)), subd. whose broader a wider language exempts variety has not been projects, repealed today. and still is force case,

In order to apply passenger-service we exemption must first determine what it means for a to be right-of-way “already use.” use, If the Rocktram-Krug right-of-way already then CEQA does not 11 21080, to Wine apply Train’s “initiation of . . . passenger services.”* 1979, part reorganization CEQA, Legislature of a repealed former section it, 21080, insignificant 21085.5 changes, (b)(ll). and reenacted after as section 1979, 697, 1, (Stats. 2171.) p. ch. § Code, 92000-92353, 1553, 2, 9(See by Gov. p. added Stats. ch. §§ § 10CEQA previously exempted projects granting “for of an easement or franchise for highway rights-of-way intercity the use of high-speed passenger or street purposes” rail granting necessity and “for the public of a certificate of corpo convenience and for a railroad primary ration whose transportation passengers (Former business is the . . .” . § 1553, 3, (b)(17) (18), by subd. & added Stats. ch. and deleted Stats. § 392, 2, p. 1567.) ch. § that, dissenting opinion argues In his passenger Justice Kaufman even if the institution of exempt CEQA, service is from project Train still must submit that to the environmen process power safety tal review regulate aspects because the PUC has oper of railroad Kaufman, (Dis. opn. .¡post, pp. 394-397.) ation. J places particular Justice Kaufman em phasis power regulate duty grade crossings on the PUC’s and its to disburse federal funds warning Arguing for the construction warning devices. that the construction of devices is service, part of the initiation of Justice Kaufman concludes that a court should not “chop[ up” purposes “into discrete activities for of environmental assessment.” ] Kaufman, (Dis. opn. J.,post, p. 395.) warning enjoys regu construction of devices latory 17.1, exemption CEQA. (Cal. Regs., (h)(l)(A)(7).) Code tit. Justice Kaufman, however, regulatory exemption regulation, dismisses the with a citation to another regulatory exemptions which states that applied should not be when there is a reasonable *8 PUC, per had not been noting “freight The that service

subd. (b)(ll).) 1988,” that Train was February to held Wine years three prior formed for “the rail right-of-way the of the because exemption not to benefit entitled of the already prior acquisition not in use to its used was by Train] [Wine Decision, This which 10.) holding, . . .” at (PUC line SP . p. from fact,” the conclu reality a of in contains “finding implicit the labeled PUC only when there exemption applies sion of law the passenger-service view, PUC In our the rail uninterrupted has been traffic. “rights-of-way” refers the which to exemption, misinterpreted a line on the Rocktram- traffic The existence of railroad statistics.12 “already to that the is Krug right-of-way suffices demonstrate right-of-way (§21080, in subd. (b)(ll).) use.” to the decision in 1982 Legislature’s

We this conclusion based upon reach to from “rail lines” the change language passenger-service exemption ” 21080, added.) rail subd. italics “highway rights-of-way. (§ (b)(ll), or rail the substantially new is A line is arrangement broader. language (Cal. activity significant possibility exempted a effect on the environment. that the will have 14, 15300.2, (c).) Regs., Code tit. subd. § arguments they statutory passenger-ser- ignore the the The flaw in these is that existence of 21080, obviously (b)(ll)), Legislature exemption vice and the fact that the was safety exemption. PUC’s the time it enacted the aware of the older railroad statutes at 1201, Code, example, (See power grade crossings, back to 1911. Pub. Util. for dates § over id., 20, 15, 18, 386, 1, 1911, 702.) p. p. ch. predecessor and its statutes at Stats. ch. § § safety (See Util. general require back to 1915. Pub. power The PUC’s more to devices dates Code, 768, safety p. general ch. predecessor and its statute Stats. If at § these, CEQA, CEQA applicable despite the part even a statutes like which are not made statutory nullity. passenger-service exemption, exemption the would be Unlike specific then a dissenters, however, willing Legislature enacted a nulli- the we are not to assume that the has (Cf. ty policy Legislature’s. rail for the or substitute our own view of and environmental Mosk, J., statutory exemption] and opn. post, passim [ignoring passenger-service dis. the Kaufman, exemption’s legislative history].) opn. J.,post, passim [ignoring the dis. case, point erred Although the is not determinative in this we note that PUC also Train assuming exemption operated time the date on which Wine that the at which was Instead, logically acquired SP—April exemption line from 1987. the time at which the re- operates responsible agency not to the time at which the must determine whether or impact Whether first oc- quire person report. file an environmental the PUC’s the affected complaint parties real casion make such determination was March when filed carry passengers, fall of claiming permission Train needed PUC’s J., Kaufman, (dis. post, at argues dissenting opinion opn. in his Justice Kaufman already time. pp. 397-399), right-of-way clear issue was in use at the relevant it is Kaufman, J., 398), this Contrary suggestion (dis. opn. post, to the in the dissent seeking early present agency case of an environmental review while does not the situation fact, delay. PUC’s staff Wine Train letter proponent seeks to informed Rocktram-Krug line negotiating purchase November while Wine Train was SP, ser- apply permission to conduct that Wine Train would not need to that, necessary, Valley. Napa application also vice The letter noted “since no automatically en- Quality triggered” Act. . be and no California Environmental . would not required. vironmental assessment would be *9 A facilities and that makes rail equipment transportation possible. right-of- way is a real easement on which a line is built. property right—the (Civ. Code, 801, The effect of the 802.)13 passenger-service exemption, §§ amended, is to the institution or permit increase of service on already land a by highway burdened or rail easement for right-of-way—an transportation already as the is in use. purposes—so long right-of-way

It is certain that Legislature, amending passenger-service technical, exemption, using was the term in its real “right-of-way” property bill, sense. In the same Legislature added to the Civil Code’s chapter “Servitudes” a section intended to describe the legal rights-of- attributes of way Moreover, that have been granted railroad if corporations.14 had Legislature wanted the of application to turn on traffic exemption statistics rather than on the status of rail “rights-of-way,” there would have been no need to amend the language to refer to such exemption easements or to define them in the same bill.

Railroad relatively tracks are durable Once a things. railroad com has pany line, made use of its right-of-way by constructing a it ordinarily makes sense to assume that the land is permanently dedicated to transporta reason, tion. For this have courts refused to hold that rail rights-of-way have been lost because rail simply traffic has “A temporarily lapsed. right ‘ “ way or granted easement to a railroad ‘is not that of in spoken the old books, law but is peculiar to the use of a railroad which usually a perma nent improvement, commerce, perpetual highway of travel and and will rarely be abandoned by non-user. ... ^[11] The right acquired the rail easement, road company, though technically an yet requires enjoy for its ment a use of the land permanent in its nature and practically exclusive.’ v. (Cash Southern R.R. Co. (1981) [Citation.]”’” Cal.App.3d Pacific 974, 978 Cal.Rptr. 474], quoting from San v. Gabriel Elec. Ry. [177 Pacific 460, Co. (1933) 129 464-465 Cal.App. P.2d 996].) More specifically, it [18 has been held as a matter of law that a railroad right-of-way is not de stroyed by the discontinuance of passenger service and the continuation of desultory freight service on an “on call” basis. etc. Co. v. W. (Tamalpais N. Pac. R.R. Co. (1946) Cal.App.2d 924-927 825]; P.2d Faus burdens, 13Under Civil Code following land, section land or upon “[t]he servitudes may be attached to other appurtenances, land as incidents or and are then called easements: right way ... 4. The Similarly, . . . .” under Civil Code following section “[t]he burdens, servitudes, may held, land granted be though not attached to land: ...[][] right way.[ Five. The ]” 801.7, 14UnderCivil (a), Code section right-of-way granted pursu “[w]hen ant to Section 801 or 802 corporation to a primary railroad transporta whose business is the include, passengers, tion of grant to, shall right-of-way but not be limited for the loca tion, construction, and maintenance corporation’s necessary railroad works and for ev ery necessary adjunct (Added by 1553, 1, thereto.” Stats. p. 6061.) ch. 431 P.2d Angeles Cal.Rptr. Los 67 Cal.2d City may its tracks raise a tearing question a railroad’s 849].) Although up *10 a decrease in traffic or a right-of-way, fact about the destruction of its at (73 Cal.App.2d p. service does not. change freight from passenger 927.)

Thus, a rail from destruction so right-of-way real law property preserves line, so by long into use the construction of a rail as it has been long put intentionally abandoned it.15 Because such a as the has not operator environment, a of the natural disruption also amounts to right-of-way any that additional reasonably disruption could have decided Legislature further service was without passenger acceptable due to the institution as this are for the Policy Legislature, environmental review. choices such because the was Accordingly, Rocktram-Krug right-of-way not the courts. by the of a rail line that still century ago into use over a construction put “in use” for the today, sufficiently purpose exists we hold the is right-of-way 21080, (b)(ll).16 of section rule realistic: The ICC’s decision to The circumstances of this case show that such a line, Rocktram-Krug buyer’s statutory obligation approve and the federal the sale of the eventually (see ante), likely continue service fn. made it that rail traffic would resume. findings, parties argue, on one the PUC’s that the Rocktram- The PUC and real based effecting Krug right-of-way not in use because the tracks “could not be used without first was Decision, (PUC 10.) repairs p. Justice Kaufman em- substantial and construction.” at Kaufman, J., (Dis. dissenting opinion. opn. post, fn. argument in his at braces most, however, finding, right-of-way The PUC’s does not show that the was not use. At during running. finding period that there was a of time which trains were not shows lapse might passenger-service have version in service been relevant under former discussed, which, interpreted require exemption, as we have could have been actual traffic ” exemption pointedly “rights-of-way on “rail lines.” But the current version of the refers to discussed, (b)(ll).) right-of-way put rather than lines. As we have also line, by it until it is abandoned. of the cases into use the construction of a and endures None dissenting contrary. (See opn. opinion holds to the dis. of Kauf- cited man, J., Justice Kaufman’s pp. 389-391.) finding right- Nor does the PUC’s about the condition of the tracks demonstrate that the of-way had been abandoned. There was no abandonment in this case as a matter of law be- plenary” cause the ICC never issued a certificate of abandonment. The ICC’s “exclusive and

jurisdiction preempts subject. (Chicago regulate completely abandonments state law on the (1981) 450 U.S. 317-323 264- &N.W. Tr. Co. v. Kalo Brick & Tile Co. L.Ed.2d 1124]; v. Interstate Commerce Commission 494 U.S. 101 S.Ct. see also Preseault _,_ 1, 11, 914].) Accordingly, 110 S.Ct. if Wine Train’s efforts to refurbish L.Ed.2d us, only equipment purchased SP are relevant at all to the case before it is because it emphasize Train never to abandon. those efforts that Wine intended correctly recognizes dissenting opinion property real cases 16JusticeKaufman in his Kaufman, J., (Dis. post, pp. distinguish opn. between “nonuse” and “abandonment.” However, 389-391.) suggestion agree cannot with Justice Kaufman’s further that these we applicable passenger-service exemption. provide a definition of “use” that is to the cases discussed, already property a limited to this As we have the real cases do have relevance law, right-of-way put permanence property case. unusual of a rail under real once into line, right-of-way lasting disruption use the construction of a makes such conclusion, to this and real opposition PUC parties argue Legislature’s substitution of the term had no “right-of-way” significance. not, however, They do any to find for their in the purport support argument Rather, language or the legislative history of the statute. the PUC and real us, in effect parties They wisdom. in order challenge Legislature’s urge effects, to avoid the possibility significant environmental to read the statute to “continuous” or rail require “substantial” traffic before However, service can be added.17 construing statutory pro “[i]n visions a court is not authorized to insert qualifying provisions included and may not rewrite the statute to conform to an assumed intention which *11 does not appear v. One 1940 language.” (People Ford V-8 Coupe Cal.2d 677]; P.2d see also Burnsed v. State Bd. Control (1987) Moreover, 189 Cal.App.3d Cal.Rptr. 316].) it defeats the very of the purpose it exemption apply only to projects will have no significant environmental effects. The determination that “a may that, have a significant effect on the environment” is the finding absent an exemption, ordinarily triggers the environmental review process. 21082.2, subd. It is (a).) precisely to avoid that burden for an entire class of projects that the Legislature has enacted the exemption.

The PUC and real parties artificially defend their narrow interpretation of the passenger-service as exemption necessary to harmony achieve with CEQA’s However, broad environmental goals. we do violence to the Legis- lature’s intent if the harmony so-called can be achieved only by rewriting the correct, statute. Nor is necessarily event, it in any to assume that a harmony must exist between CEQA’s general and the purpose purposes of each of its statutory exemptions. The exemptions variety reflect of policy some, goals. like Perhaps the exemption for thermal power plants (§ Thus, Legislature environment. the reasonably any could have decided that additional dis- ruption due to the passenger institution of acceptable service was without further environ- However, mental review. dissenting opinion the property makes too much of the real cases when it authoring assumes that the using courts were the word “use” in the same sense that Legislature many years would use it later. ’’right-of-way,” Unlike the term which has al- art, ways been a term and which expressly the Civil Code has defined since “use” is art, statute, term of it is not defined meaning and its thus varies with the context. We import should not an undefined term from one area of the law to inquiring another without how the context changed. has record, discussed, already as freight shows that SP many carried on the line for years, ending approximately beginning at the and that freight Wine Train resumed shipments January parties 1988. The PUC and real “sporadic.” dismiss this traffic as Jus- Kaufman, tice argument who makes the similar that “use” passenger-service under the exemption Kaufman, (dis. J., means actual opn. rail traffic post, pp. 389-391), dismisses this constituting evidence as not Although determinative, point “use” all. is not we find impossible it century to characterize over a operations, barely three-year railroad with interruption, anything other than actual and substantial rail traffic. Others, however, long-term strategy. reflect environmental (b)(6)), are de- (subd. (b)(7)), like the for Games hosting Olympic exemption and other nonenvironmental financial interests signed further state’s reflect may ele- (subd. (b)(ll)) service goals. exemption passenger reflect may simply but it also a desire strategy,18 ments of environmental matter, statutory system. rail As a transportation practical preserve that each only Legislature have in common this: determined exemptions the benefits of important enough justify forgoing an interest promoted review. environmental Bill No. analyses committee of Senate

Legislative Legislature show that the passenger-service which became the exemption, deliberately against service weighed passenger benefit of increased Bill No. CEQA.19(Sen. risk of environmental review under forgoing Utilities, The Senate Committee on Public (1977-1978 Reg. Sess.).) bill, debate analysis in its summarized Transportation Energy, way: argue proposed passenger-service exemption “Proponents railways service the State to the reluctance of to improve requires cost, in any effort at all. The time extraordinary make to realize progress *12 fees, . if . . in legal can be reduced and improvements passenger statutorily lines existing exempted commuter rail service on are from .... feel the State report] Opponents impact requirements [environmental objections overcome the to powers should be allowed additional to result delays increased rail service because service passenger improving the costs more careful consideration of broader effects and of Utilities, & (Sen. Com. on Public improvement.” Transportation Energy, Similarly, Analysis (1977-1978 Sess.) p. 3.) of Sen. Bill No. the Reg. 1894 Ways Senate and Means Committee identified the issue as presented “whether is certain classes of activities from good policy exempt it Com., . Ways Analysis . . .” Means (Sen. & Staff provisions Bill (1977-1978 Sess.) Sen. No. 1894 These stark Reg. p. 1.) presentations choice faced leave doubt that Legislature Legislature no understood a class of consequences projects exempting environmental review and intended to do so. exemption

We need not dwell on three additional of the interpretations real have Each an of the parties important that proposed. disregards part 18 may example, exemption For reflect a automobiles desire to divert travelers from trains, thereby passenger reducing exhaust emissions. respect 19Wehave with that is to infer that said to committee materials reasonable “[i]t present actually proposed those who voted on the measure read and considered the materials it, explanation how provide ed in and that materials some indication of therefore (Hutnick v. at the enact it.” United measure was understood time those who voted to 456, 465, Fidelity Guaranty (1988) Cal.Rptr. Co. fn. 7 P.2d States & Cal.3d [253 1326].) First, only statutory real that the language. parties argue exemption applies service, already if the in use for as right-of-way passenger opposed But out of the statute the freight. Legislature’s express reads argument service. (§ reference to the “institution” of limits re (b)(ll).) judicial power Both for the logic respect word, ... sentence and give every us to ‘to quire “[significance phrase, ” of an act.’ v. Perez 68 Cal.2d part (Mercer (1968) Cal.Rptr. Lines, 315, 436 Air Inc. 315], (1954) P.2d Western quoting People Moreover, discussed, already Cal.2d P.2d 723].) of the level application any does not exemption require particular type rail traffic so long right-of-way already as the use.

Second, tourists, to a influx of real opposed possible argue parties exemption only to “commuter” services. To the applies contrary, exemption or commuter expressly applies “passenger services.” subd. (b)(ll), Clearly, italics can added.) passengers include tourists.

Finally, that Bill noting Senate No. 1894 also reappropriated funds to corridor, improve Los Angeles-San Diego rail real parties argue that Legislature only had one mind. The uncodified reappropria- however, tion provision, is completely from the separate passenger-service contrast, exemption clearly refers to a particular project.20 the lan- guage exemption provision any does not refer to particular project. The provision declares generally CEQA “shall not apply to the follow- . . . ing: project for the institution or increase of passenger or [a] commuter . . services . .” (§21080, subd. (b)(ll).) *13 21080,

Accordingly, we hold that section subdivision (b)(ll), exempts Wine Train’s institution passenger service on the line Rocktram-Krug order, from the requirements of CEQA. PUC’s which is on predicated statute, an erroneous interpretation of the contrary is Accordingly, law. the PUC Code, has not “regularly its pursued authority.”21 (Pub. Util. § reappropriation 20Thetext of the provision, nothing CEQA, which has at all ap to do with 1978, 791, 3,

pears chapter at Statutes page provides section 2542. appro It . . funds “[a]ll [by priated previous hereby . . reappropriated (a) are improvement .for act]. of the railroad tracks and . . . Angeles (b) facilities between Diego, Los and San purchase rights-of-way realignment and the portion of that of the line between San Juan Clemente, Capistrano miles may and San operate safely so that speed trains on the line at a of 110 per hour.” any Lest there be passenger-service doubt that the exemption apply only does not to the corridor, Angeles-San Diego Los reenacting we note that the exemption later bill did not project. (Assem. 1979, 697, even refer (1979-1980 to that Bill Reg. Sess.); No. 1534 Stats. ch. 2172-2173, pp. Code, 21080.) codified at Pub. § Resources § 21 every We might do not hold that entity necessarily action Wine Train undertake as an exempt CEQA. (b)(ll), rely, Subdivision expressly exempts only on which we Disposition

IV. Public Utilities Commission is annulled. decision of the J., Lucas, J., J., Kennard, C. concurred. Eagleson, dissent, well-reasoned, MOSK, J. and in so indeed irrefut- doing join I able, of Justice Kaufman. opinion

I would merely incredulity judiciary write separately express duty undertake to interfere the manifest of the administra- appropriate with duty tive as that is mandated It is agency Legislature. paradoxical court, strict with environ- insisting compliance that this which should be abjectly mental on a total evasion of requirements, stamps approval societal protection. Envi-

We should in mind the of the California keep animating purpose Code, (Pub. ronmental Act Resources 21000 et Quality (CEQA) seq.). § a broad declaration of found that maintenance policy, Legislature “[t]he of a for the in the future environment of this state now and quality people (Id., 21000, declared, a matter of concern.” “It is (a).) statewide subd. It § the intent of the that all of the state which Legislature agencies government individuals, regulate public agencies activities of private corporations, environment, which are found to affect the of the shall such quality regulate major activities so that consideration is environmental given preventing . . . (Id., .” Consistent these broad damage (g).) objec- with tives, we have held that must “be in such manner as to interpreted afford the fullest to the environment within the reason- possible protection statutory able Mammoth v. Board scope language.” (Friends of (1972) 1049].) Cal.3d 502 P.2d Supervisors Cal.Rptr. (hereafter PUC) The Public Utilities Commission has to faith- appeared fulfill an fully agency govern- it as of state responsibility imposed upon ment which has functions. There is a favor- regulatory strong presumption validity Utility of a PUC order. Rate Normalization v. ing (Toward Public Utilities Com. Cal.3d Cal.Rptr. *14 [149 Indeed, command, 491].) by statutory P.2d of our review of a scope limited; PUC decision is it “shall not be extended further than to determine authority, including whether the commission has its regularly pursued existing “institution or increase of services” and the “modernization of stations parking (b)(l 1).) facilities.” parties expressed CEQA’s projects, including application Real have concern over to local construction, Valley. Napa question in the No such is before us. 385 any determination of whether the order or decision under review violates under the Constitution of the United States or right petitioner Code, (Pub. 1757; City County State.” Util. San Francisco v. Public § Utilities Com. 39 Cal.3d 530 703 381].) P.2d Cal.Rptr. therefore, evidence, if general, findings by any commission are supported they may not be set 1 v. aside. Water Co. No. Public Utilities Com. (Yucaipa (1960) 54 Cal.2d P.2d Cal.Rptr. 295]; see also Witkin, Law, 913, Summary of Cal. ed. (9th 1988) Law Constitutional pp. § There is evidence in 463-464.) ample this case. Mammoth,

Nearly two ago decades this court made it clear in Friends of that we “will not countenance abuse” of the requirements CEQA, “in particularly clearly view of the expressed intent to legislative preserve and enhance the quality of environment.” (Friends Mammoth Board Supervisors, supra, Cal.3d at We also p. 271.) that an emphasized environmental impact report only mandated not when a proposed project effect, will have a significant environmental may but also when it or could have such an effect.

The majority have in effect turned the clock back to pre-CEQA anything- days. goes Only the future will reveal the impact on and damage to sensitive environment of the Napa Valley that their unfortunate opinion may cause.

Broussard, J., concurred. KAUFMAN, J.,* Dissenting.—In proceedings by initiated a broad-based coalition of local businesses and public agencies, the California Public Utili ties Commission (PUC) Train, ordered petitioner Valley Napa Inc. (Wine Train) to refrain from instituting passenger service on its Val Napa ley railroad line until the requirements the California Environmental Quality Code, Act (CEQA) (Pub. Resources 21000 et had been seq.) § satisfied.*We are asked to determine whether the PUC “regularly pursued Code, authority” (Pub. Util. below, 1757) so As ordering. explained I believe the facts and the law affirmance compel of the PUC decision.

Introduction outset, At the may it be useful to what explain this case is not about. not, justified Whether CEQA complaints have come to be viewed *Retired Associate Supreme Justice of the sitting assignment by Court Acting under Chairperson of the Judicial Council. statutory All further references are to the Public Resources Code unless otherwise indi cated. *15 by individuals concerned delay wielded

some as a tool for obstruction That is not good. interests than with the public more with their own narrow Helena, the Cities of and St. Napa case. Real in interest—the parties Yountville, Valley Vintners County and the Napa, Napa Town of Association, of over 100 wineries consisting trade association nonprofit interests private a broad coalition of Valley—represent public the Napa throughout region. sake. The record shows this a case of obstruction for obstruction’s

Nor is effort the PUC has ever Wine Train’s opposed that neither real nor parties Valley.2They line in the have Napa a tourist-oriented passenger establish failed informally through complaint and when that merely sought, first PUC, the effect learn review through appropriate process with the trains, 500,000 several new daily pas- annual passengers, round-trip stations, buses, sirens, rail- public private and over senger shuttle not, my That is have on the local environment. crossings might road view, request. an unreasonable course, “rea-

Ultimately, of our decision must rest not on what appears case, below, relatively on the explained sonable” but on the law—in this Code, the CEQA, interaction of the Public Utilities provisions complex In construing Rail Act and the Rail Act of 1980. Safety Staggers Federal think, enactments, however, I recall these various it is not inappropriate, that,” said, he “the Mr. Bumble’s famous retort: “If the law law supposes Mr. way . . . .”3 If in this matter to avoid a ass there is principled is, clearly by I there then all means Bumble’s colorful as believe description, let us seize it. Background

I. Valley The railroad line in traverses the from its southern Napa question State Roughly paralleling High- end Rocktram to miles north. Krug, way the line or near the Cities of and St. Helena passes through Napa Yountville. and the Town of line was owned history, century-old Rocktram-Krug

For most of its Southern (Southern Pacific). Southern Pacific Transportation Company years Freight Pacific ended service on the line over 50 service ago. contains, City example, conciliatory party real The record letters to Wine Train from city’s mutually relationship underscoring that to have a beneficial with of St. Helena “desire Train,” indicating communique de the Wine and a similar from the Town of Yountville mutually relationship with Wine Train.” sire for a “cordial and beneficial Dickens, Charles Oliver Twist. *16 time, hundred cars in 1982 dwindling continued but declined over to several that agree and and 58 cars in the first 6 months of 1984. The parties early rail traffic on the line ceased sometime toward the end of 1984 or 1985.

In Southern Pacific to the Interstate Commerce Commis- applied sion line. In mid- (ICC) Rocktram-Krug to abandon the permission Thereafter, year, October of that the ICC authorized the abandonment.4 however, Wine Train agreed offered to the line and rail purchase provide law,5 service. Accordingly, federal the ICC dismissed the required to abandon and application Wine Train’s offer. The trans- approved parties ferred ownership 1987. April

Wine Train proceeded to effect substantial and repairs refurbishing of line that necessary were to make it It also operable.6 began formulate and noted, publicize plans. As these included five daily trains round-trip train,” route, including “dinner passenger stations at six points along shuttle plus buses to transport passengers nearby wineries. The proposal called for private and public crossings, including crossings over State Highway winery 29 and a number of driveways, many of which required alteration grading, When refurbishing. fully it was estimated operable, 4,000 the trains would emit over day. whistle blasts a In September and October of during the PUC period repair, Wine informed Train that it subject was regulation PUC and general orders concerning various safety features of its that the PUC operation, would be acting as the “lead agency” for CEQA purposes 21067), that Wine Train would be to submit an initial required assessment of the possible environmental effects of its operations. During this same time peri- od, Wine Train was attempting to obtain financial reimbursement through the PUC in connection with its alteration and maintenance of crossing letters, warning devices. In to the PUC’s response Wine Train asserted majority 4The granted states that application (Maj. the ICC “never SP’s to abandon.” ante, fact, opn., formally the ICC authorized abandonment of the line in Octo ber but as a result intervening of Wine Train’s purchase offer to no certificate of aban donment was ever issued. 5(49 10905(e).) U.S.C. § 6The finding PUC made a Rocktram-Krug [by of fact that the line “could not be used effecting without repairs first substantial argument, Train] construction.” At oral counsel acknowledged for Wine Train that it had made considerable efforts “to refurbish it,” line to enable Wine operate passenger Train to be able to upon service and further stated February track, “upon completion refurbishment of the Wine . . freight operations Train . commenced acknowledged, that line.” further Counsel period early “There was a February of time 1984 or during freight 1985 to which [late 1988] going was not over the line because of the fact it had to be ....’’ refurbished *17 96-448, Rail Act of No. 94 Stat. Staggers (Staggers Act) (Pub.L. in (codified U.S.C.)) authority,7 various sections of 49 state preempted and further claimed that its initiation of service was from passenger exempt CEQA (b)(ll).8 review under section subdivision In late October 1987, Wine Train declaratory filed with the ICC order petition seeking to that effect. time,

Also real were during becoming concerned about the parties traffic, air potential safety, and noise and other effects on pollution potential the local environment the Wine Train On March posed proposal. 1988, real filed a parties with the PUC an order restrain- complaint seeking ing Wine Train from service until it had submitted to the instituting CEQA process. review 8, 1988,

On July both administrative bodies handed down their decisions. ICC, with two commissioners Wine dissenting, agreed with Train that the PUC “has no power to Wine Train’s and thus no regulate operations” Inc., authority Train, CEQA Valley review. Wine compel (Napa Petition Declaratory (1988) Order I.C.C.2d The PUC ruled that Wine subject Train was to PUC jurisdiction, that it was a within the “project” CEQA (§ 21065), and that it scope was not from exempt CEQA compli- ance under section subdivision (b)(ll) inasmuch as the line was not “already in use.”

We granted Train’s for review of the petition PUC decision.

II. Discussion Wine Train contends the PUC erred that the PUC determining (1) had jurisdiction over its operations; (2) Wine Train constituted a “project” under CEQA; and that Wine Train was not from review exempt CEQA pursuant section As (b)(ll). will appear Staggers provides authority may only jurisdiction Act that a “state exercise over in transportation provided by trastate providing transportation subject juris a rail carrier to the diction of the subchapter chapter commission under I of 105 of this title if such state authori ty jurisdiction exclusively exercises such provisions in accordance with the of this subtitle.” (49 11501(b)(1).) U.S.C. § provides regulate only The statute transportation that a state can continue to intrastate rail if it receives a federal regulatory certification that it will administer the the ICC. standards of (49 11501(b)(2).) U.S.C. California is not certified under Code 49 United States section 11501. review, exempts That section “A for the institution increase of use, highway already or commuter rights-of-way including services on rail or existing modernization parking (b)(ll).) stations and facilities.” ques- interrelated closely follows, present contentions these discussion following in the view, addressed that, logically are most my of law tions under “already in use” First, a right-of-way meaning what is the order: second, a “project” Wine Train constitute does statutory exemption; time for the third, the appropriate what was jurisdiction; to PUC subject and, Train; finally, was of Wine review an environmental PUC to compel jurisdiction the PUC exerted in use” when “already the right-of-way CEQA compliance? compel *18 “In Use” Meaning

A. The in question right-of-way the railroad concludes that majority opinion The to assess PUC first authorized was “already use” when was exempt Wine Train was therefore that impact, Train’s environmental 21080, Noting (b)(ll).9 subdivision under section review “rail to substitute amended 1982 statutory was language the original lines,” majority opinion “rail phrase for the former rights-of-way” (b)(ll)], amending Legislature, it “certain that the deems [subdivision technical, sense.” real property in its ‘right-of-way’ the term using was ante, mind, majority proceeds With that in 379.) at (Maj. opn., p. cases for the propo- several venerable analyze statutory language, citing Co. v. etc. “destroyed” (Tamalpais is not right-of-way sition that a railroad 917, 825]) P.2d 73 924-927 (1946) Cal.App.2d Pac. R.R. Co. N.W. [167 (San 464- Ry. (1933) Cal.App. v. Elec. Co. 129 “lost” Gabriel Pacific (Maj. rail traffic merely temporarily lapsed. P.2d when has 996]) [18 ante, majority opinion The 379-380.) legal at pp. proposition opn., “Thus, law real property these cases is stated as follows: derives from been into long put from destruction so as it has right-of-way a rail preserves line, has not rail and so as the by long operator the construction of a use ante, this rule 380.) intentionally (Maj. opn., p. Applying abandoned it.” hand, “The concludes: majority opinion in the matter at to the facts suffices to line the Rocktram-Krug right-of-way existence of a railroad ” ante, at ‘already (Maj. opn., is in use.’ right-of-way that the demonstrate else- majority proposition restates the same omitted.) italics p. was into Rocktram-Krug right-of-way put where as follows: “[B]ecause exists of a rail line that still by the construction century ago use over ‘in for the sufficiently purpose use’ today, right-of-way we hold the ante, (b)(ll).” (Maj. opn., section incorrect. It is demonstrably conclusion are analysis foregoing to the abandon- relating has confused majority principles apparent remarks, avoids, Thus, any essentially extensive majority except in opinion footnote jurisdiction. subject PUC “project” Wine Train was a question discussion of the whether

merit or of a railroad with those to its extinguishment right-of-way relating abandon, authority use. that nonuse an intent to Long-settled provides plus abandon, evidenced such factors as an application permission tracks, lack of tearing may extinguish maintenance or the railroad up v. Southern Co. 172 Cal. 700-701 right-of-way. (People (1916) Pacific P. Lake & R.R. 177]; Country Merced Club Ocean Shore Co. [158 Golf (1962) 881]; 436-438 Ocean Shore R.R. Cal.App.2d Cal.Rptr. [23 v. Doelger Co. 231-232 (1960) Cal.App.2d 706].) Cal.Rptr. if Obviously, may nonuse the removal of tracks constitute an abandon- plus ment of a railroad then right-of-way, equivalent nonuse cannot be tracks, well; removal of and the must be true as the existence opposite not, tracks on a railroad right-of-way facto, does mean that it is in use. A ipso sampling case law illustrates the point. Angeles

Home R.E. Co. v. Los Co. P. Pac. Cal. 710 972] nonuser, often cited for the fundamental rule noted above “that mere abandon, *19 an accompanied by intent to will not divest the right railroad to the easement.” company (Id. 714.) The p. question case was whether defendant’s predecessor interest had abandoned a rail road right-of-way. The evidence showed that active the rail operation road as a line had ceased after only and that intermittent Thereafter, freight runs had occurred until though 1899. the tracks re mained in place, they became covered in with dirt places and debris. The affirmed, trial court held the had been right-of-way abandoned. This court holding satisfy evidence was “sufficient to a trial court that [defend did not intend to again use the road for traffic.” (Id. p. 716.) ant] [rail] Co., Lake Country Merced & Club Ocean Shore R.R. Golf 421, also Cal.App.2d involved an from a trial court appeal finding that the defendant railroad had abandoned a former company right-of-way. The evidence showed that the railroad until operated when it applied the ICC for permission to abandon operations. granted was and request thereafter the company removed its tracks and ties. The Court of Appeal affirmed, holding that there was ample evidence to the support judgment: tracks, “Appellant only using it stopped right way, took up allowed others to right way use the and sold portions thereof other . areas . . .” (Id. at italics added.) The distinction between nonuse of railroad line and other indicia of an abandon, tracks, intent to such as the tearing is veritable hornbook up law across the nation. (See, e.g., Mammoth Cave P. Ass’n. v. State National Highway Ky. Com’n. S.W.2d record 935] [“The clearly discloses that the railroad use company, by abandoning the of its tracks, convey railroad, and attempting its removing tearing up C.J.S., Rail- . way .”]; . . right . . . land abandoned to others roads, 541-543.) pp. clear, the make numerous to adumbrate too these and other decisions

As “existence” line is in as the rail long “in use” so right-of-way notion that is with a in connection When of “use” speak incorrect. the cases simply the mere they clearly mean distinct something right-of-way, railroad actual, ties; they regular mean existence or nonexistence of tracks a railroad line.10 operation of here as whether when it frames majority opinion question errs sure, the PUC “destroyed.”* been To be has “lost” or right-of-way when Train to the condition of tracks

finding relating inoperable line, by Wine and the to abandon acquired application operations Pacific, make of abandon might Train’s Southern predecessor, question one. But that the issue here. The real more question ment a close is not “in As demonstrated Rocktram-Krug right-of-way narrow: Was use”? above, line had the answer to that turns not on whether the been question abandoned, trains in actually serving torn but on whether it was up operation. use,

Before to the record to determine whether the line was turning however, First, three must be in use when? predicate questions answered. *20 in use.” 1)) rights-of-way “already statute (b)(l exempts (Italics added.) To what in time does refer? On this point “already” point, majority we with the should agree logically the be opinion exemption from “the time must determine responsible agency measured at which majority rights-of-way conspicuously property, 10The fails to confront the numerous real Rather, majori operation cases that construe the term “use” mean actual ty of a line. rail ante, (Maj. precise opn., p. that “use” is a term law at asserts with no common content. cannot, however, ways. 16.) majority Legisla fn. have it both assume the It cannot ante, employ rights-of-way (maj. opn., ture intended to the term in its common law sense p. conveniently deny 379) 11 Legislature meaning “in use.” but that the intended the same here, “lost,” majority frequently As the does as the cases substitute such terms “de- stroyed,” (See, “extinguished” “terminated” and for the more technical 175, “abandoned.” term Scally e.g., City Vallejo plain- finding Cal. 177 P. 192 63] [“The of right way destroy tiff . had abandoned the . . was erroneous. nonuser does an [M]ere by grant upon grant easement created deed of .... easement cannot founded be ‘[A]n accord, (Italics added.)]; Valley lost mere ....’” nonuser Gardner v. San Gabriel Bank (1907) Cal.App. [“destroy easement”]; People P. v. Southern 900] Pacific Co., by abandonment”].) p. Cal. at [“lost majority, argu- argument, Wine Train At oral embraced the same mistaken notion as the above, ing equivalent that “in use” was the “not abandoned.” As neither the noted statuto- ry language supports interpretation. nor case law such an whether or not to the affected to file an environmental person require ante, 378, fn. (Maj. impact report.” opn., This raises a second When should the PUC’s environmental question: turn, raises still review of Wine Train have occurred? And this question, a third issue: Did the Wine Train constitute a within the proposal “project” I CEQA any so as to environmental assessment at all? meaning require order, address the latter two in reverse below. At conclusion questions, discussion, of that I and the critical shall return to the issue of “use” “already whether the line was in use” when the question Rocktram-Krug PUC an effects of the requested potential assessment environmental Wine Train proposal. CEQA

B. Does Wine Train Constitute a to PUC “Project Subject Jurisdiction ”? undeniably yes. say

The answer to this It is no question exaggeration that the Wine Train proposal every basic environmental concern implicates fully to address. The conceived contem- designed plan inter alia: plates, the construction of facilities and 6 different depots, repair passenger stations a 21-mile route that State along parallels Highway 29 through country; daily the heart of the wine of 5 running diesel-burning trains, train, “dinner” one of the round-trip including evening through California; most sensitive agricultural regions carrying upwards 500,000 railroad year Valley; into the the institution of passengers Napa wineries; bus and shuttle service between train stations and the grading, many construction alteration and of the 110 refurbishing railroad cross- over both ings public numer- private property rights-of-way, including winery driveways; ous the installation guardrails, lights safety and other 4,000 devices; and the intermittent of train whistles an estimated blaring day. times per

While I do not purport any the result of initial environmental prejudge *21 assessment, it is safe to say may very likely that Train will have a environment, significant effect on the in areas from air and noise ranging to traffic pollution, delays, volume and at street and particularly highway to crossings, pedestrian safety, and vehicular at train near particularly stops wineries.

It literally may is thus that Wine Train have a indisputable significant effect on one of the most sensitive and in cherished environmental resources state, the Valley. It is that was enacted Napa equally undisputed CEQA “[ejnsure to . . . long-term of the environment shall be protection added), italics (d), in (§21001, criterion decisions'” guiding public in to be [CEQA] interpreted intended Legislature that “the and therefore the environment possible protection manner as afford such fullest Mam statutory (Friends language.” of the the reasonable scope within of 761, 247, 259 Cal.Rptr. 3d (1972) Cal. Supervisors moth v. Board [104 of Oil, accord, Angeles City Los added; Inc. No 1049], 502 P.2d italics 66].) The conclusion is 529 P.2d Cal.Rptr. 13 Cal.3d (1974) subject to the must be held Wine Train’s operations thus inescapable qualify “projects” if the CEQA question activities requirements Council, Resources (Natural meaning section within Defense Cal.Rptr. Arcata Corp. Cal.App.3d Inc. v. Nat. from review. exempt and are not otherwise 172]) it clear that the term “project” courts have made Legislature scope a broadly. interpreting In seminal decision is to be defined “ . . . that before an environ this defined mean CEQA, ‘project’ court must have some government required mental becomes impact report activity, by interest or by minimal link with the either direct proprietary Mammoth activity.” (Friends or regulating, funding private permitting, itself 262-263.) 8 Cal. The statute pp. v. Board 3d at Supervisors, supra, . . inter alia: Activities . meaning, “(b) supported defines the term as contracts, subsidies, loans, or other forms part grants, whole or through involv “(c) from one or more or public agencies,” of assistance [activities lease, license, certificate, other a of a or ing person the issuance to permit, (b), subds. for use one or more public agencies.” entitlement definition, Guidelines for the elaborating statutory Imple on the (c).) Act Quality (Cal. Regs., mentation of the Environmental Code California means (CEQA Guidelines) ‘“[p]roject’ tit. 15000 et stress seq.) § action, a potential resulting physical the whole an which has environment, . . directly ultimately (CEQA in the . .” Guide change lines, added.) italics authority over Staggers

Wine Train contends the Act state preempts Therefore, it PUC lacks the argues, intrastate railroad lines. necessary to minimal authoritative “link” with Wine Train’s operations subject argument make the review. proposal Though ques- the ICC ruled in favor of Wine Train unpersuasive. tion, by subsequent been into doubt that decision has cast considerable limiting among Chief these is federal court decision appeals events. “exclusively Act to related scope Staggers ratemaking [economic] *22 . . noneconomic . rather than abandonment and other trackage activities 1989) Cir. 879 F.2d (Illinois Commerce Com’n I.C.C. (D.C. matters.” decision,12 on an earlier ICC severely The court also criticized 926.) matter, held the Act Staggers applies ICC relied in this that which the freight as well as service. passenger ’n, the ICC has in Illinois Commerce Com of the decision light may it recon- the record so that federal court to remand appeals

asked the the ICC will strongly suggest in matter. These events sider its decisions this authority the PUC’s Act modify Staggers preempts its earlier view that as Wine Train. over instrastate lines such not, however, even fray. For jurisdictional enter this particular We need and franchising federal law the PUC’s arguendo preempts assuming Train, retains the state nevertheless authority related economic over in matter sufficient to authority compel sources of two independent As funding. The first of these lies the area of CEQA public compliance. earlier, for (b) defines project purposes noted section “ through . . . whole or CEQA supported part review as [activities contracts, subsidies, loans, from one or or other forms of assistance grants, earlier, Wine Train has requested more As also noted public agencies.” cross- altering maintaining for funds expended PUC reimbursement ing warning devices. deny such assistance. It requested public

Wine Train does not that it has rather, contends, under cannot constitute a “project” that such assistance rules, from the envi- categorical own which define a exemption PUC’s (EIR) requirements CEQA ronmental impact report . . . .” Code signs (Cal. of new railroad-highway signals “[installation Guidelines, 17.1, rule see also subd.(h)(l)(A)7; tit. Regs., well. notes this 15300.4.) majority categorical exemption, opinion § ante, 377, fn. What neither Wine Train nor the 11.) (Maj. opn., p. however, is the fact that all state-agency majority opinion acknowledges, are to the subject overriding proviso defined categorical exemptions activity possibility shall not “where there is a reasonable they apply circum- on the environment due to unusual significant will have a effect Guidelines, 15300.2, Surely the (c).) transporta- (CEQA stances.” 500,000 nearly annually public private tion of across passengers crossings effect of such crossings, pedestrian railroad with the attendant noise, effect on the significant vehicular traffic and constitutes “a safety, environment due to unusual circumstances.”13 Inc., County, Railway, Service in Mendocino Mendocino Coast Discontinuance of Train California, (Nov. 1986). ICC Docket No. here, majority sub exception, applied if could render section asserts that this ante, exception applies (b)(l 1), “nullity.” (Maj. opn., fn. Not so. The division

395 crossing warning of financing that the Train nevertheless asserts Wine used, effect, entire into project “bootstrap” to cannot be devices financial partial based on environmental assessment CEQA. Comprehensive and the courts kind. nothing Legislature assistance constitutes an action” (CEQA the ’’whole of insisted a constitutes project have that Council, Guidelines, v. Nat. Inc. Arcata 15378; Resources Natural Defense uniformly rejected and have 969), Cal.App.3d p. 59 Corp., supra, activities for be into discrete may up” that a “chopped notion project Agency Formation (Bozung v. Local of environmental assessment. purposes 249, 263, 1017]; 529 283-284 P.2d (1975) Cal.Rptr. Com. 13 Cal.3d Arcadia, Arcadia 42 City (1974) Cal.App.3d Inc. v. Council Plan of Indeed, definitively rejected this court has 96].) 726 Cal.Rptr. “[t]he ... an effect” directly itself have on notion must 13 as it a 279); long Cal.3d at so constitutes (Bozung, supra, p. environment impact in a chain of events which would culminate in step physical environment, see Union (Ibid.; an EIR will be also Fullerton Joint required. v. Bd. 3d High (1982) School Dist. State Education Cal. 795 [187 of 168]; 654 P.2d Friends Mammoth Board Cal.Rptr. Supervisors, of of 265.) Cal.3d at supra, p. Train, cannot that it does not constitute a consequently, argue CEQA project merely only because the PUC’s financial assistance applies And, earlier, of idle argue a its overall as noted it is portion operations. particular activity construction and maintenance question—the crossing devices—may of not in Com., in the warning physical change culminate environment. v. Local (Bozung Agency Formation Cal.3d it is clear that under Accordingly, (b) section Bozung, of Friends Mammoth and Wine Train consti- reasoning of tutes a “project” CEQA.14 within scope only grade crossings pose significant where a environmental effect due to “unusual cir- apply grade crossings. It upgrading cumstances.” does not to the usual Ob- modification case, viously grade involving crossings throughout agri- this particularly dozens of sensitive region, cultural constitutes an “unusual circumstance.” argument 14Atoral Wine Train apply asserted for the first time that does not be function, funding simply cause the PUC’s ministerial and therefore does constitute “discretionary project” (a). meaning within the Train section subdivision Wine PUC, argument hearing failed to raise in the no this before and cited authorities at oral court, argument notwithstanding throughout before pro the PUC’s contention these Nevertheless, ceedings authority discretionary. approval that its was I am satisfied costs, any, PUC retains broad discretion under the law to percentage determine the if to be crossings grade reimbursed Wine Train for the construction and warn maintenance of (See ing Dept, (1970) devices. Matter Works Public 71 Cal.P.U.C. 369 [PUC California apportion pro discretion retains reimbursement of costs under federal aid maintenance 375, 378, gram]; (1967) Company rehg. Matter Southern Cal.P.U.C. affd. on Pacific may (S.F. den.) petn. Cal.P.U.C. 198 No. for writ of review [“Commission *24 safety of Wine jurisdiction PUC’s over various features undisputed

Train’s a second basis for operations provides independent holding CEQA.15 Wine Train constitutes a within the Pursuant to project scope Code, section 1202 of the Public Utilities the PUC has “exclusive” and manner, To determine and plenary power: “(a) prescribe including installation, and the terms of mainte- particular point crossing, operation, nance, use, . . . a or used crossing publicly and of each protection public railroad, a a railroad highway by by road or railroad or street and of street versa, alter, relocate, any or vice To or abolish (b) by closing physical [fl] . . . . (c) such To where its it would be crossing require, judgment [ft] any such . . . practicable, separation grades crossing and to prescribe the terms which such shall be made and the upon separation proportions Code, . . . . . . .” (Pub. which the shall be divided Util. expense § added; subds. & italics see Breidert v. Southern Co. (a), (b) (c), (1969) Pac. 398, 406-407 262]; City City Union Cal.App.2d Cal.Rptr. Southern Pac. Co. As to Cal.App.2d Cal.Rptr. 816].) crossings, authority the PUC “shall have the to determine the neces- private manner, sity for any crossing and the and conditions under which the place, Code, be . . . .” crossing (Pub. shall constructed and maintained Util. 7537, italics added.) §

Further, orders, the PUC “may, by general after a or hearing, special rules, otherwise, construct, maintain, every or require utility and public line, tracks, system, operate plant, and equipment, apparatus, premises in such manner as to and promote safeguard safety health and of its customers, and the employees, passengers, public, may prescribe, installation, use, maintenance, among things, other operation Code, 768, . . .” safety (Pub. or other devices. Util. italics appropriate § added.) The PUC also and location for the prescribes frequency ringing Code, bells (Pub. 7604), of railroad and whistles at railroad Util. crossings § Code, and the nature and (Pub. of locomotive Util. placement headlights 7607). any power apportion appropri- exercise its inherent maintenance costs manner it deems ate.”].) 15 majority’s page inexplicable footnote 11 at 377 discloses an failure refusal to face squarely presented Contrary majority, the issue this case. to the assertion of the I do not argue exempt CEQA, that “even if the institution of service Wine Train is from process must still pow- submit that to the environmental review because the PUC has safety regulate aspects operation.” er point exemp- of railroad The dissent’s is that the Obviously, (b)(ll) apply. set forth in tion section subdivision does not if the Wine proposal exempt (b)(ll), Train is under section subdivision then authority safety PUC’s operations over various features of Wine Train’s irrelevant. The is authority safety only PUC’s over question discussed here insofar as it relates to the of fed- because, preemption. question contrary eral That must be addressed to the conclusion of the majority, exemption (b)(l 1) set forth in section applicable is not case. measure of state expressly preserves law that federal undisputed It nature. Both feder foregoing safety features of over railroad jurisdiction Act Safety (FRSA) Federal Rail have interpreted and state decisions al 91-458, at U.S.C. amended (1970) (codified 84 Stat. 971 No. (Pub.L. commissions to utility state the PUC other 421-444)) to permit §§ *25 Southern (See railroad lines.16 for intrastate safety standards prescribe Com,n 647 1986) F.Supp. (N.D.Cal. v. Public Utilities Transp. Pacific Texas (5th R. v. Com ’n 1111;Missouri Co. Railroad 820 F.2d affd. of Pacific R. v. Tenn. Pub. Serv. 575; Ill. Cent. 1987) 833 F.2d Cir. Gulf The court in Southern 1987) 112.) 736 S.W.2d (Tenn.Ct.App. Pacific the that the FRSA rejected preempted the contention example, Transp., orders, 768 the to section of authority pursuant to enact general PUC’s Code, cars between freight minimum clearances prescribing Public Utilities tracks, and and that South requiring and structures beside above railroad (647 on each side of its tracks. walkway ern Pacific maintain continuous Co., 1224-1227; R. 833 F.2d at Missouri atpp. supra, accord F.Supp. Pacific R., 574-576; 115-116.) Cent. S.W.2d at supra, pp. Ill. 736 pp. Gulf does, Wine the decisions. validity Train does not of these It dispute however, they jurisdiction do on the PUC to contend that not confer appear the to To extent that relies on compel CEQA compliance. argument earlier, theory clearly it same advanced without merit for “bootstrap” already safety may reasons stated. The measures over which the PUC exer- construction, discretionary authority—the cise alteration and maintenance devices, safety and at Wine Train crossings warning stations crossings, stations—may and bells and and ringing crossings sirens have direct on the environmental of the as a bearing impact project Westwood, As cogently City whole.17 the court in Friends Inc. v. explained Angeles Los “the Cal.App.3d Cal.Rptr. 788], process government touchstone whether involved allows the approval any way any to which of the shape respond could to concerns project might which be identified in an environmental The PUC’s impact report.” discretionary authority safety and Wine over these other Train’s aspects FRSA, part pertinent provides: 16Section United States section Code law, rule, order, may any relating adopt regulation, “A State continue or in force or standard rule, order, safety Secretary adopted regulation, railroad such to until time as has or covering subject may requirement. adopt matter of such A con standard State State or law, rule, order, stringent regulation, tinue force an additional or more or relat standard hazard, safety necessary ing essentially safety to railroad when to eliminate reduce an local or rule, order, standard, law, any incompatible regulation, not Federal and when with or creating undue interstate when an burden on commerce.” course, may, safety preempt requirements govern The FRSA local where federal occupy (45 ment has an intent U.S.C. There been no manifested to field. has devices, here, however, sirens, authority showing crossings, warning PUC’s over safety operations preempted. other features of Train’s has been may influence the Wine Train affects clearly project how operations local environment. authority

Wine Train that the PUC’s does appears argue approval also because the PUC (c), not make it a under section project authority opera lacks the ultimate or franchising approve disapprove Train, however, of whether point. Regardless tion. Wine misses the basic Wine Train inherited Southern Pacific’s license to the PUC retains operate, review, safety if features authority necessary modify various approve, ultimately may features affect directly of Wine Train’s which operations, authority, that is sufficient to make it a the environment. Under settled v. (Fullerton High Joint Union School Dist. subject CEQA review. Education, 795; Bozung Agency State Bd. 32 Cal. 3d at Local *26 Com., Thus, 283-284.) Formation 13 Cal.3d at supra, pp. proposal 21065, under subdivi satisfies the definition of section plainly “project” CEQA sion for of (b) purposes requiring compliance. PUC CEQA

C. When Was Authorized to Review? Compel CEQA, concluded that Wine Train constitutes a under Having concluded that the PUC has to having jurisdiction require and further the PUC CEQA it remains to be determined when was compliance, proper- ly authority. authorized to exercise its environmental review As will be ante, II.A., recalled from the discussion in the answer bears on the part already to this case of the for in applicability exemption “rights-of-way earlier, 21080, (b)(ll), added.) proper use.” subd. italics As noted “already” referent of would to be the time at which the appear responsible decide, therefore, is authorized to an EIR. We must agency require in time when the PUC authorized to point compel CEQA compliance was “already” in order to determine whether the line was in use under section 21080, (b)(ll).

The fundamental of is to ensure “that environmental purpose CEQA significant governmental decision-making.” considerations role play Mammoth v. Board 8 Cal.3d at (Friends p. 263.) Supervisors, supra, of of authorize, consistently have to indeed Consequently, CEQA we interpreted environmental review of ”at the earliest require, private projects possible Com., (Bozung Agency v. Local Formation 13 Cal.3d at stage.” supra, p. accord, 282; High Fullerton Joint Union School Dist. v. State Bd. Educa of tion, embody 32 797.) princi Cal.3d at The Guidelines supra, p. Thus, well. and should be as Negative prepared “EIRs Declarations ple environmental consider early as feasible enable planning process yet late design enough ations to influence project program

399 (CEQA assessment.” for environmental information meaningful provide Assn. 15004, Heights Improvement Guidelines, also Laurel (b); see 376, 47 Cal.3d University (1988) v. Regents California of Oil, Angeles, 426, supra, Los City Inc. v. 278]; P.2d No Cal.Rptr. 77, at fn. Cal.3d p. environ- described as an Often early for review self-evident. The reason County Inyo Yorty (1973) Cal.App.3d v. (see bell” mental “alarm Supervisors v. Board Carmel-by-the-Sea 377]; City Cal.Rptr. 810 [108 899]), designed the EIR is Cal.Rptr. Cal.App.3d changes to environmental responsible and its officials to alert the public (ibid.), and of no return” they “ecological points have reached before ana- agency has citizenry to an apprehensive “demonstrate fact Oil Inc. (No action.” lyzed ecological implications and considered the added.) italics Angeles, Los 13 Cal.3d City p. PUC to occasion” for the The the “first majority opinion suggests of Wine March when an environmental assessment Train was compel ante, 12.)18 filed fn. (Maj. opn., real their parties complaint. Wine Train initiated early record indicates otherwise. autumn altering for the costs of receiving from the PUC reimbursement process PUC, response, wrote maintaining warning devices. crossing *27 that, with agency Wine Train as the indicating “public series letters to the as for greatest responsibility supervising approving Guidelines, 15051), and with the concurrence of other (CEQA whole” the Town Cities of and St. Helena and public agencies (the Napa involved Yountville), the “lead for acting agency” purposes it was as and (§ 21067); in of Wine Train’s for financial assistance light request safety of Wine Train’s operation, the PUC’s control over various aspects for an initial envi- CEQA project Wine Train constituted which proposal 21065); be and that Train’s required (§ ronmental assessment would abeyance was held in clarification of funding being for request pending Train, had jurisdictional issue. Wine in denied that the PUC response, submit to jurisdiction rejected request over its and PUC’s operations CEQA. initial environmental assessment pursuant an elsewhere, environ- timing court has noted of an Although, High loint Union study can a “delicate problem” (Fullerton mental present ante, 378, 12, problems: (1) majority’s page presents two the transfer 18The footnote 1987, 1986; (2) quoted letter completed April Train and November 1984 Wine by was not, by majority engineer.” This did and signed transportation was an “associate letter not, only appearance in position in I can assume that its does reflect the PUC’s this matter. it, calculated, argument aptly put majority opinion as Wine Train’s counsel at oral so only. purposes” “rhetorical for Education, I 797), Dist. v. 32 Cal. 3d at have no p. School State Bd. supra, absolutely correct. The timing doubt that the PUC’s this matter was until April transfer from Southern Pacific to Wine Train was not complete Any before that date would compel CEQA compliance 1987. attempt 1987, By and October of how obviously September have been premature. ever, the full thrust Wine Train’s had proposal the record shows that disclosed, finan been and Wine Train had taken affirmative to obtain steps fall of 1987 to cial assistance the PUC. PUC’s effort through therefore, to have truck the CEQA compliance, appears proper compel balance; early it to influence future but late enough development, was Assn. (Laurel Heights to ensure a review. enough meaningful Improvement Moreover, v. Regents University California, 47 Cal. 3d at authority it was coordinated with the PUC’s properly legitimate oversight under section 21065. Rocktram-Krug Already

D. Was the Line in Use? The PUC determined the line was not “al expressly Rocktram-Krug 21080, ready (b)(ll). in use” within the of section meaning substantial, overwhelming, PUC’s determination is indeed supported (City County evidence and should be San Francisco v. Public upheld. 381]; Utilities Com. Cal.3d 703 P.2d (1985) 39 Cal.Rptr. Water Co. 1 v. Public Utilities Com. 54 Cal.2d Yucaipa No. early 295].) By P.2d autumn of the Rocktram- Cal.Rptr. line had in a over two one- Krug been state of and disuse disrepair years. early No trains had traversed the line since late 1984 or 1985. No half 50 years. service had existed for over traffic had declined Freight and 58 in the year to several hundred cars a cars first circulars, months of 1984. In one of its detailed relations Wine Train public noted that had taken to the tracks for and children people using running, *28 Thus, were near the tracks. the record reveals that the Rocktram- playing not, been, line in Krug years was and for over two and one-half had not actual use when the PUC ordered The conclu properly CEQA compliance. “already sion is thus that the line was not in use” under section inescapable (b), subdivision and that the therefore does not exemption apply. majority way The “de- opinion argues right that is not “lost” or stroyed” so it in use and the “not intentional- long operator as was once has ante, ly abandoned it.” The is correct but (Maj. 379.) opn., point earlier, abandonment, irrelevant. but As noted here is not question Nowhere, however, actual real majority question. use. does the confront the demonstrate, As I have it conclude that erroneous to attempted plainly a line is “in in and the line has not use” so as tracks are “existence” long only meaning, sensible meaning, only plausible been abandoned. opera- is actual to “in use” attributable only meaning possibly legal and the two for over disrepair and in a state lies fallow Clearly, a line that tion. view, cannot, rea- my in review environmental years and one-half prior in use.”19 “already sonably be said to be Co., 917, on Cal.App.2d R.R. etc. v. N.W. Pac. Co.

Tamalpais relies, hold otherwise. issue does not majority which the opinion thereof turned, or some right-of-way part a railroad part, case on whether evi- that the argument rejected The court plaintiff’s had been abandoned. nonuse, line had although the noting satisfied requirement dence carry freight it continued to after had carry passengers ceased (Id. trial. at p. the date of every year “on basis thereafter to an call” therefore, bar, of nonuse period there no sustained case was Unlike the and disrepair. Rock- short, here the conclusion amply supports record “already line not use” under section

tram-Krug was to an Wine Train submit (b)(ll) the PUC directed that properly when assessment, from exempt Wine Train was environmental and therefore CEQA. requirements

Conclusion authority restraining The PUC properly regularly pursued until it to an environmental Train had submitted operating I would CEQA. Accordingly, assessment pursuant requirements affirm its order. J.,

Broussard, concurred. *29 erroneously finding majority opinion that the Rocktram- 19The characterizes the PUC’s already exception “ap Krug implicit assumption as on an line was not use based (Maj. opn., plies only uninterrupted there rail traffic” or “continuous” use. when has been noted, based, ante, kind; finding implies nothing it was fn. The PUC finding years. The PUC does on the fact that the line was out of use for over two and one-half imply uninterrupted use. requirement or continuous