« ForrigeFortsett »
such remedy, either expressly or implicitly.
Company v. American Tel. & Tel., 391 F.2d 486 (2d Cir. 1968).
also Kohr v. Alleghany Airlines Inc., 504 F.2d 400 (7th Cir. 1974), cert. denied 421 U.S. 978 (1975). And see the further discussion of bases for jurisdiction below.
Under these principles, Plaintiffs complain that Defendants are
in the middle of a planned course of action which illegally threatens
Complaint pursuant to Rule 12. In support of their motion,
arguments that the Defendants make in support of their assertion
that Plaintiffs have failed to state a claim upon which relief can be
1 "[A] complaint should not be dismissed for insufficiency
It is easy to understand why moot cases are held to be beyond
the judicial power. There is no case or controversy once the matter California v. San Pablo, 149 U.S. 308 (1893).
has been resolved.
If anything is clear about this case, it is that the matter has not been resolved. The Complaint asks for, among other things, an injunction 7 "until the Interstate Commerce Commission has had the opportunity to fully investigate and rule on the legality and. propriety and effect 9 on the interests of the public, the employees, and on the national transportation system, of the proposed actions of Burlington Northern." No such ruling on the merits of Plaintiffs' claims has yet been made by the Interstate Commerce Commission. Rather, the Commission declined to exercise its jurisdiction, provided by statute, to review the propriety and the legality of the reorganization, on the basis of the administratively developed "single carrier doctrine." This abdication of responsibility by the ICC is now on review before the Circuit Court of Appeals. The case and controversy remains at issue. It has not been resolved or
Furthermore, should Plaintiffs prevail on the request for relief stated in paragraph 1 of the prayer, at page 12, declaring the proposed reorganization plan to be illegal, injunctive relief would surely be proper under the request in paragraph 3 of the prayer for 24 whatever relief is necessary for protection of the legal interests
2 2 2 2
asserted by Plaintiffs.
Thus, the doctrine of mootness is
interesting but certainly does not dispose of Plaintiffs' challenge
to the legality of Defendants' reorganization scheme.
PLAINTIFFS' COMPLAINT STATES A VALID CAUSE OF ACTION UNDER
Defendants' Motion to Dismiss raises numerous questions of fact and law and as a whole constitutes a broad-side attack on Plaintiffs' "Land Grant Theory" and also the numerous jurisdictional bases for federal court review of our claims. In this response
Plaintiffs will establish:
The historical context and legislative intent of the
The economic injury to Plaintiffs which we claim results directly from the creation of a holding company and
Burlington Northern's plans to transfer non-railroad assets
The jurisdictional bases of Plaintiffs' causes of action.
By the Act of July 2, 1864, C. 217, 13 Stat. 365, Congress 20 created the Northern Pacific Railroad Company as a "body corporate 21 and politic." It commanded the corporation to "lay out, locate, construct, furnish, maintain and enjoy a continuous railroad" from Lake Superior to Puget Sound. The statute granted a 400 foot right-of-way and necessary land for related buidlings and sidetracks. The government committed itself to "extinguish, as rapidly as may be consistent with public policy and the welfare of the ... Indians, the Indian titles to all lands falling under the operation of this
The purpose of the Land Grant is succinctly summed up in
[N] amely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order,
and to secure to the government at all times (but
particularly in time of war) the uses and benefits of the
The land grant was, by any conceivable earthly measure,
Every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line
through the territories of the United States and the alternate sections of land per mile on each side of said railroad whenever it passes through any State .
This is the equivalent of the right to select, in the
territories, 25,600 acres of land for each mile of line, within a 120
mile swath across the country. However, the statute imposed a number of conditions on the grant, conditions which Northern Pacific failed on numerous occasions to comply with, making a mockery of
By this legislation over 40 million acres of public land was eventually granted to the Northern Pacific Railroad, including 22.4% of the total area of the State of Washington (9.6 million acres out
of 42.9 total land area acres) and 23.9% of the State of North Dakota
Although the legislation was part of the 1860's wave of federal
have never been made by mere individual, unassisted
See Applegate, "An Unintended Empire: A Case Study of Rail
enterprise, unless they have been attended by very great delay and embarrassment. A great and extensive country like this has needs of roads and canals earlier than there is an accumulation of private capital . . . to construct them." Seward noted that those railroads that had been constructed without federal governmental assistance "have all found themselves embarrassed and crippled, and many of them rendered bankrupt." Congressional Globe, Comments of Senator Seward, April 29, 1850, at
Historians have generally concurred that the principal purpose of the land grant acts was to raise and maintain sufficient capital and financial backing to construct and operate the railroads in the public interest. Tied to this overriding purpose were subsidiary interests
to provide for the safe transport of troops and
to encourage the colonization and the economic and
to promote trade with the Orient, especially the
Thus the Act of July 2, 1864, in one legislative enactment, created the Northern Pacific Railroad and empowered it to construct
and maintain a railroad. It was for this purpose that it granted enormous land and non-mineral natural resources to the newly created
3 Applegate, "An Unintended Empire, A Case Study of Rail Land Holdings," 1979. Reprinted in Hearings Before Subcommittee on Public Lands, Sept. 17, 1979, 96th Cong. H.R. 3928, 110-241.
Friedman, Federal Aid of the Railroads, Part III, Grants to
Hedges, "The Colonization Work of the Northern Pacific
Gates, History of Public Land Law Development, Ch. XIV (Wash.,
Swenson, "Railroad Land Grants: A Chapter in Public Land