Kings County v. Surface Transportation Board

MEMORANDUM * Kings County and others 1 petition for review of a declaratory order of the United States Surface Transportation Board (hereafter the Board), 2 and the California High-Speed Rail Authority (hereafter the Authority) intervened. We dismiss for lack of jurisdiction. We do have jurisdiction to determine our jurisdiction, 3 and, more specifically, we have jurisdiction “to determine the validity of ... all rules, regulations, or final orders of [the Board].” 4 For an order to be final, its action must “[f]irst ... mark the ‘consummation’ of the agency’s decisionmaking process,” 5 and “second ... be one by which ‘rights or obligations have been determined,’ or from which ‘legal conse *473 quences will flow.’ ” 6 While it could be said that, in some sense, the agency has completed its decisionmaking process because it does not propose to do anything further, at this time, it cannot be said that any rights or obligations have been determined or that legal consequences will flow from the Declaratory Order. On the contrary, the Declaratory Order is purely advisory and, therefore, is not final. See Bennett, 520 U.S. at 178, 117 S.Ct. at 1169 (actions that are “in no way binding on the [recipient], who had absolute discretion to accept or reject them [are advisory]”); see also Dalton v. Specter, 511 U.S. 462, 469, 114 5.Ct. 1719, 1724, 128 L.Ed. 2d 497 (1994); Franklin v. Massachusetts, 505 U.S. 788, 798-99, 112 S.Ct. 2767, 2774, 120 L.Ed. 2d 636 (1992). That is shown by the terms of the Declaratory Order itself, where the Board stated that its purpose was merely to: “provide [its] views on the preemption issue” 7 ; “inform interested parties and the California Supreme Court of [its] views” 8 ; and “assist in the resolution of [a] conflict.” 9 It went on to explain that it was not speaking to issues of funding, or whether the Authority had “to comply with [the California Environmental Quality Act] as a condition of its funding.” 10 The Declaratory Order itself bound no one, not even the Board, 11 and was merely an expression of views which the California Supreme Court and others “had absolute discretion to accept or reject.” Bennett, 520 U.S. at 178, 117 S.Ct. at 1169. We have neither Constitutional jurisdiction 12 nor statutory jurisdiction 13 because ' the Declaratory Order was not final. Expressing our views regarding that order would amount to an advisory opinion, which would not resolve “concrete legal issues, presented in actual cases, not abstractions.” 14 Therefore, we must dismiss the petition. Petition DISMISSED for lack of jurisdiction. Footnotes [*] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. [1] The other petitioners are: Kings County Farm Bureau, California Citizens for High-Speed Rail Accountability, Community Coalition on High-Speed Rail, California Rail Foundation, and Transportation Solutions Defense and Education Fund. [2] Cal. High-Speed Rail Auth—Petition for Declaratory Order, No. 35861, 2014 WL 7149612 (S.T.B. Dec. 12, 2014) (hereafter Declaratory Order); see also Cal. High-Speed Rail Auth.— Petition for Declaratory Order, No. .35861, 2015 WL 2070594 (S.T.B. May 5, 2015). [3] See Sonoda v. Cabrera, 189 F.3d 1047, 1050 (9th Cir. 1999); see also United States v. Neil, 312 F.3d 419, 421 (9th Cir. 2002). [4] 28 U.S.C. § 2342(5). [5] Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 1168, 137 L.Ed. 2d 281 (1997). [6] Id. at 178, 117 S. Ct. at 1168. [7] Declaratory Order, 2014 WL 7149612, at *3. [8] Id. at *4. [9] Id. As the Board indicated in its briefing and at oral argument, the Board simply meant to “provide guidance,” and intended the Declaratory Order-to be advisory only. [10] Id. at *11; see also Cal. High-Speed Rail Auth.— Constr. Exemption—In Fresno, Kings, Tulare, and Kern Ctys., Cal., No. 35724 (Sub-No. 1), 2014 WL 3973120, at *8 (S.T.B. August 12, 2014) (moving forward "with an approved project ultimately is in the hands of the applicant and its potential investors”). [11] We recognize that Board orders can be binding on others, but that does not mean that the one at hand is binding. See F.T.C. v. Standard Oil Co. of Cal., 449 U.S. 232, 243, 101 S.Ct. 488, 495, 66 L.Ed. 2d 416 (1980). We cannot speculate on whether it might lend support to a binding decision some time in the future. [12] U.S. Const. art. III, § 2; Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed. 2d 113 (1969). [13] 28 U.S.C. § 2342(5). [14] Golden, 394 U.S. at 108, 89 S.Ct. at 959; see also Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc) (internal quotation marks omitted).