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such remedy, either expressly or implicitly.

Ivy Broadcasting

2

Company v. American Tel. & Tel., 391 F.2d 486 (2d Cir. 1968).

See

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
grave and direct injury to their personal and economic interests, as
well as the public interest. Defendants have moved to dismiss this

Complaint pursuant to Rule 12. In support of their motion,
Defendants repeat the denials, already made in their Answer, that
their actions are wrongful, and likewise their denials that the
Plaintiffs will be injured. These denials, of course, raise issues
of material fact, which will eventually be decided by the court after
the parties have had the opportunity to pursue the discovery provided
by the Federal Rules and the opportunity to present evidence in
support of their allegations. For the purposes of this Motion,
however, the allegations of the Complaint must be taken as true,
together with all reasonable inferences which may be drawn in
Plaintiffs' favor.1 We will now turn to the particular

arguments that the Defendants make in support of their assertion

that Plaintiffs have failed to state a claim upon which relief can be

granted.

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1 "[A] complaint should not be dismissed for insufficiency
unless it appears to a certainty that plaintiff is entitled to no
relief under any state of facts which could be proved in support of
the claim." 2A Moore's Fed. Prac. $12.08.

2

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).

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has been resolved.

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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

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otherwise abated.

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

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asserted by Plaintiffs.

Thus, the doctrine of mootness is

interesting but certainly does not dispose of Plaintiffs' challenge

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to the legality of Defendants' reorganization scheme.

III.

PLAINTIFFS' COMPLAINT STATES A VALID CAUSE OF ACTION UNDER
THE 1864 NORTHERN PACIFIC LAND GRANT ACT.

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:

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(1)

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The historical context and legislative intent of the
Northern Pacific Land Grant Act of July 2, 1864;

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(2)

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B.

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(3)

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
to that holding company; and

The jurisdictional bases of Plaintiffs' causes of action.
It Was The Clear Intent Of Congress In Creating The
Northern Pacific Railroad Company And In Granting It Over
Forty Million Acres of Public Lands To Insure That The Land
Grant And Its Resource Base Would Always Be Available To
Insure The Financial Stability And Continued Operation of
That Railroad.

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

Section 20:

[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,

enormous:

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
(10.7 million acres out of 44.8 million acres). See Table 1 and Map
1, attached as exhibits hereto.

Although the legislation was part of the 1860's wave of federal
land grants to build railroads to the west coast (including grants to
the Union Pacific and Southern Pacific Railways), the policy of
federal land grants in aid of railroad construction and operations
had begun in the 1850's. In the Congressional debates on the first
land grants involving the Illinois Central Railway, Senator Seward
framed the Congressional intention and purpose of the railroad land
grants. He stated that the construction of railways and other
internal improvements

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have never been made by mere individual, unassisted

See Applegate, "An Unintended Empire: A Case Study of Rail
Land Holdings," Rick Applegate, Congressional Aide to Montana Senator
Max Baucus, see fn. 3, below.

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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

851.

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

(1)

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(2)

to provide for the safe transport of troops and
munitions of war;

to encourage the colonization and the economic and
social development of the western part of the United
States; and

to promote trade with the Orient, especially the
cotton trade with China and Japan.

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
Public Lands to Railroads. March, 1980.

Hedges, "The Colonization Work of the Northern Pacific
Railroad, Vol. XIII, No. 3, The Mississippi Valley Historical
Review (Dec. 1926).

Gates, History of Public Land Law Development, Ch. XIV (Wash.,
D.C. 1968).

Swenson, "Railroad Land Grants: A Chapter in Public Land
Law," Utah Law Review, 456 (19).