Seaboard Coast Line Railroad Company, Petitioner, v. William Thaddeus Coleman, Jr., Secretary of Transportation,and the United States Coast Guard, Department Oftransportation, Respondents, 562 F.2d 1008 (5th Cir. 1977)

This bridge-over-troubled-waters, or more accurately, this troubled-bridge (owner)-over-navigable waters case arises under the Truman-Hobbs Act, 33 U.S.C.A. §§ 511-524, for review of an order of the United States Coast Guard disallowing Government participation in the cost of permanently relocating a railroad communication wireline. We reverse.

The Past Is Prologue

This case involving much principle with little principal¹  turns on a good deal of history. The then Senator (later President) Truman and Congressman Hobbs of Alabama, with a tenacity seldom equalled, were determined to eliminate what they regarded as an overbearing burden on the even then troubled railroads. This burden resulted from the Supreme Court's Union Bridge²  holding that under the traditional Corps of Engineers' permit for the building of a bridge over navigable waters, a subsequent order to relocate or alter the bridge³  did not amount to a Fifth Amendment taking and therefore the entire cost of the project was to be borne by the railroad.

The legislation, which quite understandably came to be known as the Truman-Hobbs Act, would impose on the Government the total cost incurred in the interest of navigation, with suitable apportionment of cost to the railroad covering special improvements to the benefit of the railroad, the remaining useful life of the facility, and the like.

Passed by the Congress on August 4, 1939, 84 Cong.Rec. 11016 (1939), it was returned by the President without his approval on August 11, 1939. 84 Cong.Rec. 11174-11175. In the next session, apparently after a mistaken belief on the part of its managers that the revised bill would pass the earlier objections of the President, a similar bill was passed by the Congress, 86 Cong.Rec. 4229, 7252, 7259, only to meet again the President's veto on June 10, 1940.⁴  The Congress, overrode the veto and the bill was enacted on June 21, 1940.

Under the provisions of the 1940 Act, as amended, 33 U.S.C.A. § 511 et seq. (1970), whenever the Secretary of Transportation issues an order requiring alteration of a bridge over navigable waters to remove an obstruction to navigation, the bridge owner bears only that portion of the cost which represents direct and special benefits accruing to the bridge owner as a result of the alteration, and the Federal Government bears the remaining cost.

On order of the Secretary SCL⁵  was required to alter its bridge over the Chattahoochee River to remove an obstruction to navigation. A new bridge was built to conform with orders of the Secretary and the old bridge was removed. The costs of the project were apportioned in accordance with the Act. The only disagreement between the Coast Guard and SCL and the issue before us now concerns who should pay the major cost of relocating a wireline that was disturbed in completing the project.

Sailing Without Chart Or Compass

At the outset, we must point out the difficulties encountered with this case. Proceedings relating to the administration of the Truman-Hobbs Act are exempt from the provisions of the Administrative Procedure Act.⁶  The Secretary of Transportation issues findings of fact and our review is limited to questions of law, the findings of the Secretary⁷  being conclusive if supported by substantial evidence.

This case comes to us on a record that consists of correspondence between the parties, charts and graphs, and attorneys' memoranda. Reconstructing the chain of events from these sources was admittedly no easy task. Aside from the frailties⁸  of the record, this is a case of first impression. We enter this decision without the guidance of time-honored precedent.

The parties attempted to approach this case wholly on the basis of whether these subsequent letters between the engineers and the railroad and the findings of the law officer are the record. In spite of the fact that there was no formal adjudicatory hearing, the scope of our review is governed by the substantial evidence standard. See Florida Peach Growers Association v. United States Department of Labor, 5 Cir., 1974, 489 F.2d 120; but see Citizens to Preserve Overton Park, Inc. v. Volpe, 1971, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (refusing to apply the substantial evidence test in review of informal decision making). Section 520 of the Act (see note 7, supra) mandates the substantial evidence test. Thus, although this case presents one of those curious type records where no testimony was taken, we need not stumble through to determine what is substantial evidence, see Florida Peach Growers Association v. United States Department of Labor, supra, since the critical element is wholly undisputed.

On The Chattahoochee

Seaboard Coast Line Railroad (SCL) owns and maintains a bridge over the Chattahoochee River near Alga, Alabama. On April 26, 1962, a public hearing was held, pursuant to 33 U.S.C.A. § 513⁹ , to determine if the railroad bridge was an unreasonable obstruction to navigation. After consideration of the evidence, the Secretary of the Army determined that the bridge was an obstruction and therefore ordered the railroad to alter the bridge providing a horizontal clearance of 150 feet normal to the channel and a vertical clearance of not less than 35.6 feet above ordinary high water. The order was subsequently amended to allow a 200 foot horizontal clearance. App. at 5. The total cost of the alteration would be apportioned between the railroad and the United States¹⁰ .

Plans for altering the bridge, which consisted of building a replacement span bridge, were tentatively approved by the Coast Guard¹¹  in November 1971, at an estimated cost in excess of 3 million dollars. App. at 7. Analysis of cost apportionment was also made at this time. According to plans, the replacement bridge would be built parallel to the old bridge approximately 200 feet to the south. The plans also included the relocation of 1.5 miles of communication wireline. The wirelines were parallel with and located on the south side of the existing tracks and bridge. They were not physically attached to the bridge structure and they crossed the river on self-supportive poles.

The plans, specifications, and apportionment of cost were subsequently revised to reflect bid prices of the low bidder. In May 1972, SCL submitted the revised plans to the Coast Guard estimating the total cost of the project to be in excess of 2 million dollars. The plans reflected the proportionate share of the cost to be borne by each party and included a line item for removal and relocation of the wirelines. On June 26, 1972, the Commandant of the Coast Guard approved and signed the Order Of Apportionment Of Cost providing for performance of the work.

The railroad began construction and discovered that if the wirelines were placed in the proposed (and approved) permanent relocation, the contractor would be hampered in completing the work on the approach embankment of the new bridge. Therefore, the plans were changed to allow temporary relocation of the wirelines. App. at 20, 21. SCL informed the Coast Guard on March 14, 1973, that the contract amount for the temporary relocation was $12,422.75. On April 3, 1973, the Coast Guard approved the contract as being reasonable. App. at 30. After approval of the temporary relocation of the wireline, there were several informal discussions and an on-the-site investigation of the necessity of relocating the wirelines permanently to the south side of the new bridge.

The Coast Guard took the position that the permanent relocation was not necessary since the existing wirelines were accessible to the railroad for maintenance purposes. In response to the Coast Guard's request to submit a new justification for the relocation, SCL claimed that the existence of a wireline crossing over each approach to the new bridge would hamper movement of cranes, derricks and pile drivers in the event repairs to the new bridge or removal of wrecks became necessary. The railroad further asserted that the wirelines were outside of the normally maintained right of way for a distance of more than a mile. Although the Coast Guard approved as necessary and paid the cost of temporarily locating the wireline, it refused to approve the permanent relocation maintaining that it was not a necessary part of the bridge relocation and was not necessary to eliminate an unreasonable obstruction to navigation.

In an effort to compromise, the Coast Guard agreed to approve the relocation of the entire wireline if SCL assumed the total cost of materials. App. at 35. The Coast Guard would pay labor costs of relocating that portion of the wireline which was moved to facilitate embankment construction. This compromise was unacceptable to SCL and no part of the permanent wireline relocation cost was paid by the Government.

In an order issued May 7, 1975, the Coast Guard¹²  formally disallowed the permanent relocation expense holding that the relocation of the wireline was not an alteration made to meet the necessities of navigation and that the cost should not be borne by the United States.

The Government argues that it should not have to bear the cost of the permanent relocation since the alteration does not fall within the "necessities of navigation" requirement (§ 516(5), note 10, supra) . SCL's position is that taking into account the reasonable needs of the railroad, the wirelines should be permanently relocated to the south side of the new bridge.

Law Bound Not Fact Bound

We do not have to decide which of these arguments should prevail. That decision obviously involves matters requiring expertise. The statute gives the decision-making duty to the Secretary, and he performed it, as shown in the formal order. The statute further provides a fairly elaborate process of allocation. When the allocation is finally translated in terms of dollars, on the estimated probable cost, and becomes a part of the Order of Apportionment, it is binding on both parties.

We reverse and hold that the permanent relocation of the wireline was a proper Truman-Hobbs expense and should be borne by the Government. The removal and relocation of the wireline was in the Order of Apportionment (see § 516(2), note 10, supra) approved by the Commandant on behalf of the United States Government. From the time it is in the Order, that is a final determination that the element is a part of the project and can no longer be questioned unless the Order itself is revised, and it can only be revised to meet changed conditions (§ 516(7), note 10, supra) . There is not a shred of evidence in this record that shows any change of conditions or that the initial order was revised.

After the Secretary issued the order to alter the bridge, the railroad submitted its plans and specifications for the alteration. The plans, with the bids, were approved in a specific sum to a specific contractor and the force labor cost was approved.¹³  These were not only approved but in the structure of the Order of Apportionment were directly and precisely tied into the Order of Apportionment. The cost apportioned to SCL was $260,338 with the total of $30,000 for wireline removal apportioned to the Coast Guard.¹⁴ 

More significant, by letter dated 17 July 1972 (A-50), the Coast Guard approved the estimates and transmitted the original and copy of the Order of Apportionment signed by the Commandant, U.S.C.G. (A-52 to A-54) "specifying the proportionate shares of the total cost to be borne by the United States and the (SCL)". SCL was requested to sign and return a copy which was done on July 24, 1972.

Of decisive significance, this formal order fixed the precise amounts to be borne by each, SCL's portion being fixed at $260,338 (see A-37, note 14, supra) :

NOW THEREFORE, in accordance with the provisions of Section 6 of the Act of June 21, 1940, as amended (54 Stat. 497; 33 U.S.C. 511-523) it is hereby ordered that the proportionate share of the total cost of the United States shall not exceed $2,298,349 and the proportionate share to be borne by the Seaboard Coast Line Railroad Company shall not exceed $260,338 and the attached guaranty of cost is hereby approved. The apportionment of cost will not be revised as construction progresses; however, if, by reason of emergency, conditions beyond the control of the Railroad Company, or unforeseen or undetermined conditions, the total cost of the work exceeds the amount of the attached guaranty of cost, additional payments may be made pursuant to the provisions of Section 7 of the Truman-Hobbs Act, as amended.

The plans approved and the Order of Apportionment defined for all time (except for changed conditions which are nonexistent) that relocation of wireline was related to navigational needs and the amount was fixed at $30,000.

We hold that the issuance of the Order of Apportionment which included the wireline relocation locked that element into the project as a part thereof and it cannot now be refuted. The Order could not be changed except by formal revision under the only statutory standard of meeting changed conditions.¹⁵  The record is absolutely barren of any showing of changed conditions. The only change is one in legal views by the Commandant's subordinates. From what we are able to discern, based on the documents before us, the Commandant has never amended his Order. It still stands. The record reveals a picture of engineers trying to sustain their presumably technical judgment that the element was not a part of the project, obviously based upon their untutored assumption of what the law requires. After the case was turned over to the lawyers, the lawyers support the engineers with an argument that this alteration cost was not attributable to the necessities of navigation. The argument may be a good one but it is certainly not evidence. And it is unpersuasive to us since it ignores altogether the fact and significance of the Order of Apportionment.

Upon review of the record before us and application of the statute, the permanent relocation of the wireline is an expense to be borne by the Government. The dollar amount is to be fixed by the Coast Guard on remand consistent with this opinion.

REVERSED and REMANDED.