some other purpose, it would be improper to charge the wages as an expense to this line for the purpose of proving unprofitability. The wages account of the crew on this line and certain ancillary accounts such as payroll taxes and health and welfare benefits are thus overstated in an undeterminable amount insofar as two or three men are reasonably excess to its operation. A number of reasons exist for continuation of this line. It has substantially increased its traffic, shows promise of additional traffic, and has shown a profit in recent years despite maintenance neglect, poor management, and concerted efforts by applicant to abandon it. It is clear that the Conover-Phelps line does not impose a burden on interstate service or on applicant's continued survival so much that it has become a nuisance in its scheduling efforts and thus to be cut loose because applicant can make more money elsewhere. Its observation that, as a business, it has a right to attempt to maximize its profits by abandoning unprofitable or marginally profitable lines fails to note that it is a business imbued with a public interest and responsibility, protected and supported by law, with built-in machinery for correcting its unprofitable position where a need exists. Its position is made even clearer by its cynical observation that if abandonment were permitted here it would still retain nearly all of the traffic here involved since it controls all of the more distant alternate sites to which the shippers must still come for service. What more arrogant example of monopolistic power can be found to illustrate the reasons why regulation of railroads was found to be necessary in the first place and apparently still continues to be necessary? It should be added that the solution proposed by applicant would involve getting to those alternate sites by truck over secondary roads with a resultant waste of scarce energy, increased pollution emission, and a deleterious effect on the economy of the town of Phelps and the Nicolet National Forest. There seems to be no reason why the Conover-Phelps line cannot continue to be profitable and even increase in value to the C&NW with the exercise of some ingenuity and effort as opposed to the repressive measures imposed against the line in the past. This involves first the improvement of the roadbed to support reliable service. Even if roadbed improvement were done at the cost estimated by applicant (which the Wisconsin PUC argues is twice as much as the maximum needed for the task) this would add, by applicant's own figures, a total of only $3,403 annually to its depreciation costs and should decrease some of the emergency maintenance performed in the past. It also involves some innovative thinking, particularly the understanding that all desirable traffic does not necessarily reside on the main line, and that people and places not fortunate enough to be on the main line have need for and deserve the advantage of lower cost and higher efficiency rail service. This is particularly so where the means are at hand and they have effectively demonstrated a need for it and a willingness to support it. In reaching these conclusions, consideration has been given to certain of applicant's arguments, and they are rejected as contradictory to, or not supported by, the evidence. The record plainly does not support applicant's claims that traffic is declining, shippers on the line are liquidating, or that pulpwood cutters show an inclination toward hauling in trucks directly to the mill. Applicant's insertion in the evidence of investment costs, more accurately stated as the interest on the cost of upgrading the line, is not a valid inclusion in the cost assessable against future operations. Southern Pac. Co. Abandonment, 312 I.C.C 685, 693, and cases therein cited. Applicant's reaction as to the car shortage may be an accurate contemporary statement. But as to the two opposing parties on this issue it is valid to ask which of the two is in the better position to solve it. Also having allowed the car shortage to deteriorate to crisis proportions," it is unreasonable for the carrier to use the car shortage as a means of proving that shippers are not providing sufficient traffic and to penalize them by depriving them of future rail service. Applicant is also not in precarious financial condition. Its financial data shows a strong rebound in recent years and steadily increasing prospects for the future. And finally, the most colossal contradiction in applicant's evidence is its eager attempt to use the poor condition of the roadbed as a basis for terminating service and destroying this line forever, when that poor condition is the direct result of its own shortsighted policy of deferred maintenance on the line over a period of years. It does not follow that applicant's losses would have increased arithmetically during the lean years by the amount required for proper maintenance. Growth and development require investment. In the case of railroads, no better investment exists than in the maintenance of its roadbed, which does not seem to have occurred here. The Conover-Phelps line has been badly treated both on this score and on the continued use of 19th century railroading techniques. For these reasons a finding is warranted that applicant has not met its burden of showing that service on the Conover-Phelps line is unprofitable or unfeasible or that it is such a burden on interstate commerce that its discontinuance would be justified. ENVIRONMENTAL IMPACT This application was filed, and public hearing on the matter was concluded prior to the issuance of a preliminary injunction by the United States District Court for the Southern District of New York' finding that the Commission must determine at the outset of all abandonment proceedings whether an environmental impact statement is required under the National Environmental Policy Act and, where required, have its staff prepare a draft impact statement prior to any hearing. Pursuant to this order the Commission shortly thereafter stayed further action on all abandonment proceedings, including the issuance of initial decisions. Following the affirmation of this decision by the Court of Appeals, the Commission established procedures for the processing of abandonment cases in compliance with the injunction. This application has been considered under those procedures. On October 31, 1974, the Commission, Commissioner Tuggle, issued its order stating that a staff-prepared environmental threshold assessment survey had been prepared, which was available for public inspection, and found that no environmental impact statement need be issued herein because this proceeding does not represent a major Federal action significantly affecting the quality of the human environment In this connection, it is interesting to note that this Commission, shortly before the date of this initial decision, issued its report in Ex Parte No. 241, Investigation of Adequacy of Freight Car Ownership, 346 I.C.C. 497, decided June 10, 1974, in which it rebuked nearly all of the class I railroads in the Nation, including applicant, for failure to meet their responsibilities in acquiring sufficient rolling stock with which to provide adequate service. All of them were ordered to show cause why they should not be required to purchase additional equipment in amounts set forth in attached tables showing the level of deficiencies that were found to exist. The order is still appealable and is thus currently pending. It is significant, however, that applicant was cited therein as having an average monthly deficiency of 1,493 gondola cars (under 61 feet), the type primarily used in the transportation of pulpwood, during the 4 selected months embraced in the study. 'Harlem Valley Transportation Assn. v. Stafford, 360 F. Supp. 1057 (1973); affirmed by the U.S. Circuit Court of Appeals. Second Circuit, 500 F. 2d 328 (1974). within the meaning of the National Environmental Policy Act of 1969. It directed the applicant herein to publish a notice, appended thereto, in a newspaper of general circulation in Vilas County, Wis., within 15 days of the date of service of the order and certify to the Commission that this has been accomplished. That notice cited many of the various factors considered by the staff in arriving at its assessment and invited comments by interested parties on or before 15 days from publication thereof. A copy of that notice is attached as appendix C hereto. Both the notice and its covering order were made public by depositing a copy in the Office of the Secretary, Interstate Commerce Commission, and by publication in the Federal Register. On January 6, 1975, the Commission received a certification by applicant that the notice had been published in the Vilas County News Review, a newspaper of general circulation in Vilas County, Wis., on December 12, 1974. On December 9, 1974, comments on the Environmental Threshold Statement were filed by the Public Service Commission of Wisconsin expressing general agreement with the facts as presented in the statement. It also submitted additional information for clarification or supplementation of the factors relied on as stated in the notice. On January 27, 1975, by order served February 4, 1975, the Commission, Commissioner Tuggle, noted the facts above set forth, including the fact that comments had been submitted by the Wisconsin Public Service Commission, and found further that nothing had been presented therein that would give cause to modify the Commission's previous determination that this proceeding does not represent a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. The said determination was therefore affirmed. The determination by the Commission's staff pertaining to the environmental impact of this application is here likewise affirmed. While there is little or no merit to the claims of applicant that abandonment would enhance the environment by elimination of grade crossings and right-of-way fires or the salvage of scarce materials, there is credence to its claim that abandonment would not significantly affect the human environment, one way or the other. On balance it must be conceded that, for environmental purposes, a slight tilt exists in favor of retention of the rail line in view of its importance to the efficient management of Nicolet National Forest and the increased truck emissions that would occur following abandonment, and the use of scarce energy required to truck wood pulp to more distant rail loading facilities. FINDINGS AND ORDER I find, that the present and future public convenience and necessity have not been shown to require abandonment by the Chicago and North Western Transportation Company of a line of railroad between Conover and Phelps, Vilas County, Wis.; that this decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969; and that It is my ORDER, That the application be, and it is hereby, denied; It is further ordered, That this order shall be effective on the date of service of a notice or order stating that this decision has become that of the Commission. Dated at Washington, D.C., this 20th day of February 1975. 348 I.C.C. |