KRISTEN RINAKER, Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; THE PEOPLE et al., Real Parties in Interest.
Kristen Rinaker, in pro. per., and Robert E. Oakes for Petitioner.
John S. Phillips, District Attorney, William F. Moss, Deputy District Attorney, Gerald Gleeson, Ruth Maurice, Hardwich & Goss and Douglas A. Goss for Real Parties in Interest.
This case poses several questions regarding the effect of section 1119 on the juvenile delinquency proceeding being prosecuted against real parties in interest (the minors) pursuant to Welfare and Institutions Code section 602: Is the juvenile delinquency proceeding a civil action or other noncriminal proceeding within the meaning of section 1119? If so, does the minors' constitutional right to confront and cross-examine a witness against them trump the confidentiality provision of section 1119 and make admissible for the purpose of impeachment any inconsistent statements the witness made during mediation of a civil harassment action which was based upon the same allegations at issue in the juvenile delinquency proceeding? Do the witness and the mediator have a right of privacy that is threatened by the disclosure of statements the witness made during confidential mediation? In any event, by voluntarily agreeing to submit to confidential mediation, did the minors waive their right to elicit in the juvenile delinquency proceeding any testimony concerning statements the witness made during mediation? If not, is it necessary for the juvenile court to conduct an in camera hearing to determine whether the minors' right to effective impeachment may be ensured without breaching the confidentiality of the mediation process?
We conclude a juvenile delinquency proceeding pursuant to Welfare and Institutions Code section 602 is a "civil action" within the meaning of section 1119 and, thus, the confidentiality provisions of section 1119 apply to this proceeding.
However, for reasons which follow, the public policy served by the confidentiality provisions of section 1119 must yield when necessary to [62 Cal. App. 4th 161] ensure the minors' constitutional right to effective cross-examination and impeachment of an adverse witness in a juvenile delinquency proceeding.
Contrary to petitioner's claim, neither the witness nor the mediator had a reasonable expectation of privacy in inconsistent statements made by the witness during confidential mediation because it has long been established that, when balanced against the competing goals of preventing perjury and preserving the integrity of the truth-seeking process of a juvenile delinquency proceeding, the interest in promoting settlements (in this case through confidential mediation of a civil harassment action against the minors) must yield to the minors' constitutional right to effective impeachment.
As we shall explain, by voluntarily agreeing to participate in confidential mediation in an effort to settle the civil harassment action against them, the minors did not knowingly and intelligently waive their right to use any inconsistent statements made by their accuser during mediation to impeach his testimony in a subsequent juvenile delinquency proceeding because that right was not "known" to them under the facts at the time they agreed to mediation.
In answering the final question, we conclude that, before allowing the minors to question the mediator under oath in this juvenile dependency proceeding concerning statements made during confidential mediation, the juvenile court should have conducted an in camera hearing to weigh the public's interest in maintaining the confidentiality of mediation against the minors' constitutionally based claim of need for the testimony, and to determine whether the minors have established that the mediator's testimony is necessary to vindicate their right of confrontation. As we shall explain, requiring an in camera hearing maintains the confidentiality of the mediation process while the juvenile court considers factors bearing upon whether the minors' constitutional right of effective impeachment compels breach of the confidential mediation process.
Accordingly, we shall issue a peremptory writ of mandate directing the juvenile court to vacate its order allowing the minors to question the mediator under oath concerning statements made during confidential mediation, and to conduct further proceedings consistent with this opinion.
In this juvenile delinquency proceeding (Welf. & Inst. Code, § 602), the minors, Christopher G. and Huy D., are charged by the People of California [62 Cal. App. 4th 162] with committing vandalism in violation of Penal Code section 594, during an incident in which the minors allegedly threw rocks at Arsenio Torres's car.
The incident also was the basis of a civil harassment action brought by Torres against the minors. After Torres obtained a temporary restraining order against them, the minors participated with Torres in mediation conducted by petitioner Kristen Rinaker in an effort to resolve the civil harassment action.
Rinaker is a volunteer mediator affiliated with the Mediation Center of San Joaquin County (the Center), a community-based, nonprofit corporation. Among other things, the Center provides mediation support services to respondent Superior Court of San Joaquin County, which encourages parties to civil harassment actions to resolve their differences through mediation.
According to Rinaker, the participation by such parties in mediation is voluntary. Those who elect to participate must agree that statements made in mediation are confidential and that mediators will not testify regarding mediation proceedings. Mediation proceedings are not conducted under oath, do not follow traditional rules of evidence, and are not limited to developing the facts. Rather, mediators are instructed to "draw out the parties' subjective perceptions of, and feelings about, the events that have brought them into conflict" and to encourage parties "to verbally acknowledge the other's point of view, whether they come to share that point of view or not."
Following mediation, the court entered an order in the civil harassment action, directing the minors to stay away from Torres's properties and stating: "All parties to be respectful of each other. No parties will make accusations against each other without evidence."
Thereafter, the minors served Rinaker with a subpoena to appear and testify in the juvenile delinquency proceeding being prosecuted against them. Rinaker balked, and the minors filed a "motion to compel witness to testify."
Rinaker opposed the motion, arguing that statements made during the mediation are privileged under section 1119 and protected from disclosure by the right of privacy embodied in article I, section 1 of the California Constitution. Rinaker further suggested that, even if statements during mediation are admissible in a subsequent juvenile delinquency proceeding, by voluntarily agreeing to participate in confidential mediation, the minors waived any right to compel her testimony.
The court ruled in the minors' favor, holding section 1119 does not apply because a juvenile delinquency proceeding is not a "civil action" within the meaning of the section. Stating that the proceeding "has a very criminal nature because there are criminal sanctions for juvenile[s]," the court concluded the confidentiality provision of section 1119 was not "designed to overcome the right to a fair trial" by excluding a statement "which would exculpate a [juvenile] in a [delinquency] case and not allow it to come in for impeachment purposes."
Rinaker petitioned this court for a writ of mandate directing the juvenile court to set aside its order. (Code Civ. Proc., § 1085.) We issued an alternative writ because this case involves a claim of "privilege" and a matter of importance to the public. (Rudnick v. Superior Court (1974) 11 Cal. 3d 924, 928 [114 Cal. Rptr. 603, 523 P.2d 643]; Slagle v. Superior Court (1989) 211 Cal. App. 3d 1309, 1312 [260 Cal. Rptr. 122].) We granted Rinaker's application for a stay of the juvenile proceedings pending resolution of her petition.
For reasons which follow, we agree the confidentiality provision of section 1119 must yield if it conflicts with the minors' constitutional right to effective impeachment of an adverse witness in this juvenile delinquency proceeding.
Likewise, due process of law entitles juveniles to certain fundamental protections of the Bill of Rights in proceedings that may result in confinement or other sanctions, whether the state labels these proceedings "criminal" or "civil." (Alfredo A. v. Superior Court (1994) 6 Cal. 4th 1212, 1225 [26 Cal. Rptr. 2d 623, 865 P.2d 56]; Richard M. v. Superior Court (1971) 4 Cal. 3d 370, 375 [93 Cal. Rptr. 752, 482 P.2d 664]; In re William G. (1985) 40 Cal. 3d 550, 557, fn. 3 [221 Cal. Rptr. 118, 709 P.2d 1287]; In re Scott K. (1979) 24 Cal. 3d 395, 401-402 [155 Cal. Rptr. 671, 595 P.2d 105].) A juvenile delinquency action is such a proceeding.
[1c] According to Rinaker, voluntary mediation of civil harassment disputes "was specifically designed to relieve crowded [court] calendars and to divert potentially explosive harassment cases to a forum where peaceful resolutions are likely. This program and others like it throughout the [S]tate of California cannot function unless the confidentiality of these mediations is assured. [Citation.] [¶] Without confidentiality, mediations would be subject to all kinds of manipulation and abuse. The heart of the mediation exchange typically involves concessions, waivers, confusions, misstatements, confessions, implications, angry words, insults . . . the list could go on. The very atmosphere that serves to promote resolution in mediation would quickly become a trap for the unwary if proceedings were not kept confidential. Warnings would need to be given; protections would need to be devised. Parties would need the advice of counsel to participate in mediations. The costs and complexity of the process might soon rival those of a litigation, thus nullifying a large advantage of community mediation, its accessibility to ranks of the public who are sometimes excluded from more expensive dispute resolution opportunities. [Citation.]"
The minors concede mediation serves an important function. Therefore, they "do not seek a blanket policy allowing statements made in mediation to be automatically admissible in [juvenile delinquency] proceedings." Rather, they assert the confidentiality provision of section 1119 must yield when it conflicts with the constitutional right to impeach a witness in a juvenile delinquency proceeding.
Accordingly, section 1119 does not bar the minors from calling Rinaker to appear at their juvenile delinquency proceeding and testify concerning statements made by Torres during confidential mediation if those statements are inconsistent with Torres's testimony in the juvenile delinquency proceeding.
 We find no merit in Rinaker's claim that an order compelling her to give such testimony treads impermissibly upon the right of privacy guaranteed by article I, section I of the California Constitution.
According to Rinaker, two privacy rights are threatened by the proposed disclosure of Torres's statements in mediation: Torres's "expectation that one's revelations will not be repeated," and Rinaker's "expectation that one will not be compelled to breach an entrusted confidence."
As explained in part II, ante, it has long been established that, when balanced against the competing goals of preventing perjury and preserving [62 Cal. App. 4th 168] the integrity of the truth-seeking process of trial in a juvenile delinquency proceeding, the interest in promoting settlements (in this case through confidential mediation of Torres's civil harassment action against the minors) must yield to the constitutional right to effective impeachment.
[6a] We also reject Rinaker's contention that, by agreeing to maintain the confidentiality of the mediation proceedings, the minors waived the right to compel Rinaker's testimony concerning any statements Torres made during mediation.
[6b] Here, the record indicates that, based upon an incident in which the minors allegedly threw rocks at his car, Torres filed a petition to obtain a [62 Cal. App. 4th 169] temporary restraining order and enjoin the minors from harassing him. (Code Civ. Proc., § 527.6.) The record does not include the petition; however, because Torres obtained a temporary restraining order and the matter went to mediation, we presume he filed an affidavit identifying the minors as the culprits in the rock-throwing incident. (Code Civ. Proc., § 527.6, subd. (c).) Thus, we presume that, in agreeing to confidential mediation as defendants in the civil harassment action, the minors believed Torres would inform the mediator that they were responsible for the rock-throwing.
Requiring an in camera hearing maintains the confidentiality of the mediation process while the juvenile court considers factors bearing upon whether the minors' constitutional right of effective impeachment compels breach of the confidential mediation process.
Second, assuming that during the in camera hearing Rinaker acknowledges she heard Torres make the inconsistent statement, the juvenile court can assess the statement's probative value for the purpose of impeachment. According to Rinaker, "statements made in the course of mediations are not reliable evidence": "Community based mediations are not conducted under oath. An informal atmosphere is maintained. Mediators typically do not consider documentary or physical evidence, pictures or witness testimony. The thrust of the mediation effort is to get the parties to understand each other's feelings and needs relative to the dispute, and to develop a plan for future behaviors that will avoid conflict between them. Mediators may ask parties to consider hypothetical situations in order to help them see beyond an impasse. Parties are encouraged to conciliate, rather than to establish the facts of past disputes. . . . [¶] Under those circumstances parties may deviate from the truth, and may lose track of the various statements they have made in the course of exploring different options. Thus, even if the content of a mediation could be reconstructed with perfect accuracy, its relationship to truth would be uncertain."
If the circumstances under which Torres made inconsistent statements during mediation convince the juvenile court that such statements were untrustworthy in the sense they were made for the purpose of compromise rather than as true allegations of the minors' conduct, it follows that the minors' constitutionally based claim of need for the evidence would not outweigh the countervailing public interest in maintaining the confidentially of the mediation process.
Third, during the in camera hearing, the juvenile court may be able to determine whether the evidence sought by the minors can be introduced without breaching the confidentiality of mediation. Assuming, for example, [62 Cal. App. 4th 171] Rinaker acknowledges she heard Torres make the inconsistent statement but discloses that, during mediation, the minors stated Torres had told other identified persons that he did not see the minors throw the rocks, the court could conclude Rinaker's testimony would be cumulative to other evidence reasonably available to the minors. Consequently, in balancing the competing public interests at issue, the court could find the interest in preserving confidentiality of the mediation process prevails because Rinaker's testimony is not necessary to vindicate the minor's constitutional right to confront and effectively cross-examine their accuser.
We reject, however, Rinaker's suggestion that the minors should be required to demonstrate "there is no other evidence, unrelated to the mediation, which could be used to undermine [Torres's] identification of the [minors as the rock-throwers]." As the minors point out, the "testimony of a 'disinterested' [witness], i.e., the mediator," may "carry more weight of credibility." Hence, even if other witnesses could testify to Torres's inconsistent statements or impeach his veracity in other ways, Rinaker's testimony could be necessary to vindicate the minors' right of confrontation if the credibility of the other witnesses is suspect.
As noted previously, the in camera hearing outlined above will permit the juvenile court to maintain the confidentiality of the mediation process while the court considers factors bearing upon whether the minors' constitutional right to effective impeachment compels breach of the confidential mediation process.
Let a peremptory writ of mandate issue directing respondent court to vacate its order allowing the minors to question Rinaker under oath concerning statements made during confidential mediation, and to conduct further proceedings consistent with this opinion. Having served its purpose, the alternative writ is discharged. Upon this decision becoming final, the stay previously issued by this court shall be vacated.
Puglia, P. J., and Morrison, J., concurred.
FN 1. The order on appeal in this case was issued in December 1996, when the confidentiality provision of section 1119 was contained in former section 1152.5. Thereafter, former section 1152.5 was repealed, reenacted in part, and renumbered in various sections, including section 1119. (Stats. 1997, ch. 772, §§ 3, 5.) To avoid confusion, we shall refer to the applicable sections as reenacted and renumbered.
FN 4. Although both of the minors sought to introduce Rinaker's testimony concerning inconsistent statements allegedly made by Torres during confidential mediation, only Christopher G. filed a return to the alternative writ of mandate. The arguments in the return mirror those made in the juvenile court by both the minors. Hence, to avoid confusion, we shall refer to arguments asserted by Christopher G. in this writ proceeding as being those of "the minors."
FN 5. We are not unsympathetic to Rinaker's concern that unpaid mediators, like her, "would hesitate to volunteer their time so freely if, solely as a result of conducting a mediation, they might be required to become witnesses in later litigation involving disputants." This legitimate concern, however, does not override the greater public interest of preventing perjury and preserving the integrity of the truth-seeking process of trial in a juvenile delinquency proceeding.
FN 6. The record indicates the Center's mediators are volunteers who "keep no records of the matters they mediate." Moreover, they "are not involved in implementing agreements [by the parties in mediation] nor do they have any other continuing relationship with the disputants." Consequently, depending on the number of mediations held by the mediator and the time which has elapsed between the one at issue and the proceeding in which the mediator is summoned to testify, it can be expected that a mediator will be unable to recall specific statements made by the parties in a particular mediation.


§ 240-1 Purpose and authority.
A.	The purpose of this bylaw is to maintain the quality of the surface water, the quality and level of the groundwater table and water recharge areas for existing or potential water supplies; to protect the public health and safety; to protect persons and property against the hazards of floodwater inundation; and, to provide for the reasonable protection and conservation of certain irreplaceable natural features, resources and amenities for the benefit and welfare of the present and future inhabitants of the Town of South Hadley.
(1)	Protection of public or private water supply.
(4)	Erosion and sedimentation control.
(6)	Prevention of water pollution.
(7)	Protection of fisheries and wildlife habitat and rare species habitat, including rare plant species.
(8)	Recreation and agriculture values.
C.	This bylaw is intended to utilize the Home Rule authority of this municipality to protect additional resource areas, with additional standards and procedures to augment those of the Wetlands Protection Act (MGL c. 131, § 40) and regulations thereunder (310 CMR 10.00).
A.	In accordance with the above purpose, no person shall commence to remove, fill, dredge, build upon, degrade, pollute, discharge into, or otherwise alter the following resource areas: any freshwater wetlands (including marshes, wet meadows, bogs and swamps); vernal pools; banks; the water column of and the land under lakes, ponds, reservoirs, creeks, rivers, and streams; lands within 100 feet of any of the aforesaid resource areas (the "buffer zone"); isolated and bordering lands subject to flooding or inundation by groundwater or surface water; and the two-hundred-foot riverfront areas, without a permit from the Commission, or as provided in this bylaw. Said resource areas shall be protected whether or not they border surface water.
(8)	Providing a visual separation between wetlands and developed environments.
C.	Lands within 100 feet of specific resource areas are presumed to be important to the protection of these resources because activities undertaken in close proximity to wetlands and other resources have a high likelihood of adverse impact upon the wetland or other resource, either immediately, as a consequence of construction, or over time, as a consequence of daily operation or existence of the activities. These adverse impacts from construction and use can include, without limitation, erosion, siltation, loss of groundwater, degraded, poor water quality, and loss of wildlife habitat.
D.	Intermittent streams are important for storm damage prevention, flood control, groundwater protection, wildlife habitat, and recreation values. During the spring, summer and fall these streams disperse snow melt and storm runoff across the landscape, thereby preventing dangerous volumes and flows from spilling over roadways and property. This broad dispersal also allows for larger volumes of water to infiltrate into the ground, recharging groundwater supplies. Intermittent streams are an essential source of food and water for wildlife and are often the only source of water in higher elevations in Town. During all seasons, but especially in winter and spring, intermittent streams act as essential corridors for animal movement, especially when food is scarce. Accordingly, this bylaw protects intermittent streams and their associated bordering vegetated wetlands.
E.	The Commission shall presume that all areas meeting the definition of "vernal pools" under § 240-12 of this bylaw, and the adjacent upland area, perform essential habitat functions. This presumption may be overcome only by the presentation of credible evidence which, in the judgment of the Commission, demonstrates that the basin or depression does not provide essential vernal pool habitat functions. Any formal evaluation should be performed by an individual meeting the qualifications under the wildlife habitat section of the Wetlands Protection Act regulations.
A.	The Commission shall require that a fifty-foot-wide strip of undisturbed vegetation, called the "conservation zone," be maintained adjacent to any freshwater wetland, bank, or water body, but not including lands subject to flooding or inundation by groundwater or surface water, and the two-hundred-foot riverfront area. No work, structures or alterations will be allowed within the conservation zone, except for minor activities, such as mowing, gardening, and pruning within existing lawn, garden or landscaped areas, as described in the regulations adopted by the Commission. The conservation zone shall not apply to artificially created stormwater management structures such as detention and retention basins, artificially lined ponds, and constructed wastewater treatment lagoons.
B.	The conservation zone for vernal pools will be based on the size of the basin; with a twenty-five-foot setback of undisturbed vegetation for vernal pools less than 10,000 square feet, and a fifty-foot setback of undisturbed vegetation for vernal pools 10,000 square feet or greater in size.
C.	Where the conservation zone is already altered in such a manner that the presumed protection offered by the buffer zone is not being met, the Commission may issue an order of conditions for a project, provided that it finds that the proposed alterations will not increase adverse impacts on that specific portion of the conservation zone or associated wetland resource areas, and that there is no technically feasible construction alternative. In such cases, the Commission may modify the scope and detail of the proposed project to minimize impact on or improve protection of the values protected by this bylaw.
§ 240-4 Exemptions and exceptions.
A.	The application and permit required by this bylaw shall not be required for maintaining, repairing, remodeling, but not substantially changing or enlarging an existing and lawfully located single-family residential structure or customary appurtenance thereto, as long as the footprint of any proposed addition is not any closer to the wetland or other resource areas than the existing structure, and there is no reasonable alternate location on the owner's property for the new structure that is further from the resource areas, as determined by the Commission.
B.	The Commission may issue a generic or ongoing permit for maintaining, repairing, or replacing an existing and lawfully located structure or facility used in the service of the public to provide electric, gas, steam, water, telephone, telegraph or other telecommunication services, storm drainage, and sewer, provided that the structure or facility is not substantially changed or enlarged, as determined by the Commission, and provided that written application has been given to the Commission prior to commencement of work, and provided that the work conforms to performance standards and design specifications in regulations adopted by the Commission. These standards and specifications shall conform to the best management practices in the Commonwealth of Massachusetts. This ongoing permit may apply to other institutions in Town with facilities and structures, for normal maintenance activities within the buffer zone, as determined by the Commission. Examples include but are not limited to educational institutions, fire districts, golf courses, and residential retirement communities.
C.	The application and permit required by this bylaw shall not apply to emergency projects necessary for the protection of the health or safety of the public, provided that the work is to be performed by or has been ordered to be performed by an agency of the commonwealth, or a political subdivision thereof, provided that advance notice, oral or written, has been given to the Commission prior to commencement of work or within 24 hours after commencement of the emergency project, and provided that the work is performed only for the time and place certified by the Commission for the limited purposes necessary to abate the emergency. Upon failure to meet these and other requirements of the Commission, the Commission may, after notice and public hearing, revoke or modify an emergency project approval and order restoration and mitigation measures.
D.	The application and permit required by this bylaw shall not be required for work performed for normal maintenance or improvement of land which is lawfully in agricultural use, as defined in the Wetlands Protection Act regulations, 310 CMR 10.04, at the time the work takes place.
E.	The Commission, at its sole and reasonable discretion, may issue a permit for the limited projects identified in 310 CMR 10.53(3), with the same or additional performance standards, such as limits on road width or location or multiple driveway crossings. Proposed activities that qualify as limited projects per 310 CMR 10.53 (e.g., maintenance of public roadways, water-dependent uses, public water supply exploration and access driveways) must be reviewed by the Conservation Commission, which has the discretion to permit with conditions to ensure that the interests of the Wetlands Protection Bylaw are protected.
F.	The application and permit required by this bylaw shall not be required for minor activities within the one-hundred-foot buffer zone and two-hundred-foot riverfront area, as defined in the Wetlands Protection Act regulations, 310 CMR 10.02(2)(b), including the "simplified review" process. Such minor activities include, but are not limited to, unpaved pedestrian walkways, fencing (provided it does not constitute a barrier to wildlife), vista pruning, and planting of native plant species of trees, shrubs or groundcover. Under this bylaw they will also include maintaining and repairing existing roads and driveways (excluding bridges and culverts), provided there is no additional alteration of resource areas, maintaining and repairing existing buildings and structures, provided the footprint remains the same and there is no additional alteration of resource areas, mowing of existing lawns, and normal maintenance of trees and shrubs.
§ 240-5 Application for permits and requests for determination.
A.	Where this bylaw and the Wetlands Protection Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00, have concurrent jurisdiction, the Commission may accept the notice of intent, abbreviated notice of intent, request for determination of applicability, abbreviated notice of resource area delineation and other forms and plans filed under the Wetlands Protection Act as the permit application and plans under this bylaw. The Commission may amend what forms it accepts and issues in its Bylaw regulations.
B.	The Commission shall develop a set of presubmission requirements for the assistance of persons making application to the Commission, a current copy of which shall be on file with the Commission. Any person filing a RFD or other permit application with the Commission shall complete the filing in accordance with such of those requirements which are reasonable and necessary as determined by the Commission or its staff. The Commission reserves the right to ask for any additional information it deems reasonable and necessary to evaluate the project.
C.	Written application in the form of a notice of intent or abbreviated notice of intent shall be filed with the Commission to perform activities affecting resource areas and the inner 50 feet of the buffer zone protected by this bylaw. The permit application shall include such information and plans as are deemed reasonable and necessary by the Commission and as specified in bylaw and its regulations to describe proposed activities and their effects on the resource areas protected by this bylaw. No activity shall commence without receiving and complying with a permit issued pursuant to this bylaw.
D.	Any person desiring to know whether proposed work or an area is subject to this bylaw, or proposing work in the outer 50 feet of the buffer zone, may in writing request a determination of applicability from the Commission. Such a request for determination of applicability (RFD) shall include information and plans as are deemed reasonable and necessary by the Commission.
E.	Any person desiring to certify, for purposes of this bylaw, the limits of resource areas on a site may submit as application an abbreviated notice of resource area delineation (ANRAD) for Commission confirmation. Such an ANRAD shall include such information and plans as deemed reasonable and necessary by the Commission to describe and define the wetland resources areas. The Commission will also accept the ANRAD as an application for a simplified review as defined in the Wetlands Protection Act regulations, 310 CMR 10.02(2)(b)2.
F.	At the time of the permit application or RFD, the applicant shall pay a filing fee according to the schedule in the associated regulations adopted by the Commission. This fee is not refundable and is only for applications where a filing fee is not already required by the Wetlands Protection Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00. The Commission may waive the filing fee for an application or request filed by a government agency, or if the applicant can prove financial hardship, or other extenuating circumstances.
§ 240-6 Notice and hearings.
A RFD shall be submitted by certified mail or hand delivery to the Commission. The Commission shall conduct a public meeting on the RFD after written legal notice, given at the expense of the applicant, has been published at least five business days (not including Saturdays or Sundays) prior to the meeting, in a newspaper of general circulation in South Hadley. The Commission shall commence the public meeting on any RFD within 21 days from receipt of the properly completed application, unless an extension is authorized in writing by the applicant.
A permit application shall be submitted by certified mail or hand delivery to the Commission. Any person submitting a permit application to perform work in an area regulated by this bylaw or certify resource boundaries shall at the same time give written notice thereof, by mailing by certified mail, return receipt requested, or by hand delivery, to all abutters according to the most recent records of the Board of Assessors, including those across a traveled way or across a body of water (excluding the Connecticut River) from the parcel which is the subject of this application. The notice shall include a copy of the application or request, with plans, or shall state where copies may be examined. If the person filing the permit application is not the owner of the area subject to the request or application, the applicant shall also give written notice of the permit application and hearing to the owner of the parcel. The person providing such notices to abutters or other property owners shall file an affidavit affirming that notification was done, with a copy of the notice, with the Commission.
C.	The Commission shall conduct a public hearing on any permit application after written legal notice, given at the expense of the applicant, has been published at least five working days (not including Saturdays or Sundays) prior to the hearing, in a newspaper of general circulation in South Hadley. The Commission shall commence the public hearing on any permit application within 21 days from receipt of the properly completed application, unless an extension is authorized in writing by the applicant.
D.	Whenever possible, the Commission shall combine its meeting or hearing under this bylaw with the meeting or hearing conducted under the Wetlands Protection Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00, and may combine the public notices thereof.
E.	The Commission shall have the authority to continue the meeting or hearing to a certain date announced at the meeting or hearing, for reasons stated at the hearing, which may include the receipt of additional information from the applicant or others deemed reasonable and necessary by the Commission in its discretion, or comments and recommendations of the Department of Public Works, Planning Board, Board of Health, and Building Inspector. In the event that the Commission determines that snow cover, ice, or other weather conditions prevent the verification of the wetland boundary line, the Commission shall continue the meeting or hearing to a date certain when the determination can be made.
§ 240-7 Coordination with other boards.
The Conservation Commission shall include in their Regulations the number and form of applications to be required by all applicants. Further, the Commission shall also provide in its regulations, that all applications are distributed to and coordinated with departments, boards, and officials which the Commission determines may have an interest in or be impacted by the proposed activity. The Commission shall consider any comments or recommendations such departments, boards, and officials may submit to the Commission. Any such comments or recommendations are deemed a public record and the applicant shall have the right to receive and respond to any such comments or recommendations.
§ 240-8 Burden of proof.
The applicant for a permit shall have the burden of proving, by a preponderance of credible evidence, that the work proposed in the permit application will not have unacceptable significant or cumulative effects upon the resource area values protected by this bylaw. Failure to provide adequate evidence to the Commission supporting this burden shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions.
§ 240-9 Permit determinations and conditions.
A.	If the Commission, after a public meeting or hearing, determines that the activities which are the subject of the RFD or permit application are likely to have a significant individual or cumulative effect upon the resource area values protected by this bylaw, the Commission, within 21 days of the close of the hearing, shall issue or deny a permit for the activities requested. If it issues a permit, the Commission shall impose conditions which the Commission deems reasonable and necessary or desirable to protect those values, and all activities shall be done in accordance with those conditions.
B.	Where no conditions are adequate to protect those resource area values, the Commission is empowered to deny a permit for failure to meet the requirements of this bylaw. It may also deny a permit for failure to: 1) submit necessary information and plans requested by the Commission; 2) meet the design specifications, performance standards and other requirements in the regulations of the Commission; or 3) avoid or prevent unacceptable significant or cumulative adverse effects upon the resource area values protected by this bylaw. Due consideration shall be given to any demonstrated hardship on the applicant by reason of denial, as presented at the public hearing.
C.	The Commission shall have the right to deny or delay a permit if a previous permit on the same property or on contiguous properties under the same or affiliated ownership has not been complied with or has not received a certificate of compliance.
D.	When the applicant requesting a determination, permit, certification, amendment or extension is not the owner of the area subject to the request or application, the Commission shall send the determination, orders or other action to the owner as well as to the person making the request.
E.	Permits and determinations shall expire three years from the date of issuance. At the discretion of the Commission, any permit may be renewed for up to three additional years, provided that the Commission receives a request for an extension in writing prior to expiration of the permit, with sufficient time for the Commission to issue an extension prior to the permit expiration. Applicants are advised to submit requests for extensions at least 30 days prior to the permit expiration date. Said request shall include the expected completion date and the reasons for the requested extension.
F.	Violations to this bylaw, submission of false or erroneous information, new information that substantially alters the likely impact of the project on wetland resources or values, or clear evidence that an error has been made may cause the Commission to revoke or modify any permit, determination or resource area boundary confirmation issued under this bylaw, after notice to the permittee and holding a public meeting.
G.	The Commission, in an appropriate case, may combine the permit orders or determination issued under this bylaw with the determination of applicability, order of conditions, order of resource area delineation, certificate of compliance, or other forms issued under the Wetlands Protection Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00.
H.	No work in any permit application shall be undertaken until the permit issued by the Commission with respect to such work has been recorded in the Registry of Deeds, or, if the land affected is registered land, in the Registry Section of the Land Court for the district wherein the land lies, and until the holder of the permit certifies in writing to the Commission that the permit has been recorded. Such certification shall include the book and page or instrument number and date. Recording is not necessary for RFDs.
I.	To prevent wetland loss, the Commission shall require applicants to avoid all wetlands alteration wherever feasible; shall minimize wetlands alteration; and where alteration is unavoidable, shall require full mitigation. The Commission may authorize or require replication of wetlands as a form of mitigation, but only with adequate security, or professional design, a 2:1 replacement ratio, and monitoring to ensure success, because of the high likelihood of failure of replication.
A.	Strict compliance with this bylaw may be waived when, in the judgment of the Commission, such action is in the public interest and is consistent with the intent and purpose of this bylaw. Any request for a waiver must be submitted to the Commission in writing and presented at the time of filing, along with a written justification stating why a waiver is desired or needed, is in the public benefit, and is consistent with the intent and purpose of this bylaw. The waiver is intended to be employed only in rare and unusual cases.
(4)	Avoid a decision that so restricts the use of property that it constitutes an unconstitutional taking without compensation.
C.	In such cases, the Commission may modify the scope and detail of the proposed project to minimize impact on the values protected by this bylaw. Nothing herein shall preclude the maintenance of an existing structure located within the conservation zone.
After public notice and public hearing, the Commission shall promulgate rules and regulations to effectuate the purposes of this bylaw. Failure by the Commission to promulgate such rules and regulations or a legal declaration of their invalidity by a court of law shall not act to suspend or invalidate the effect of this bylaw. Public notice shall be given at least three weeks prior to such hearing by publication in a newspaper of general circulation in South Hadley and by posting with the Town Clerk. At a minimum, these regulations shall define key terms in this bylaw not inconsistent with this bylaw.
K.	Incremental activities that have or may have a cumulative adverse impact on the resource areas protected by this bylaw.
Any structural adjunct or incidental construct to a single-family residential structure or on any parcel of land, such as a septic system, garage, shed, deck, dock, porch, patio, or swimming pool.
Lands within 100 feet of any wetland resource area or water body, except bordering land subject to flooding, isolated land subject to flooding that is not vernal pool habitat, and riverfront area.
An effect that is significant when considered in combination with other activities that have occurred, are going on simultaneously, or that are likely to occur, whether such other activities have occurred or are contemplated as a separate phase of the same project, such as the build-out of a subdivision or an industrial park, or unrelated but reasonably foreseeable actions, including other development projects that are currently under construction, under review, or that may be expected to come forward.
An isolated depression or closed basin at least 500 square feet in size, which serves as a ponding area for run-off or high groundwater which has risen above the ground surface. These may include vernal pools. Not included are swimming pools, artificially lined ponds or pools, or wastewater lagoons, the construction of which may be regulated, but do not themselves constitute resource areas protected under this bylaw.
Routine and/or periodic activity undertaken to prevent, stop, or to correct deterioration of an existing condition, facility or structure so that, after completion, the condition, facility, or structure is as near as possible to that which originally existed.
Any application for a permit of action under the Massachusetts Wetlands Protection Act, MGL c. 131, § 40, or the South Hadley Non-Zoning Wetlands Bylaw. Examples include, but are not limited to, a notice of intent, abbreviated notice of intent, abbreviated notice of resource area delineation, or request for an amendment to a notice of intent or extension to an order of conditions.
Any individual, group of individuals, association, partnership, corporation, company, business organization, trust, estate, the commonwealth or political subdivision thereof to the extent subject to Town bylaws, administrative agencies, public or quasi-public corporations or bodies, the Town of South Hadley, and any other legal entity, its legal representatives, agents, or assigns.
Any open body of fresh water, either naturally occurring or man-made, which is never without standing water due to natural causes except during periods of extended drought. Notwithstanding the above, the following are not protected as ponds under this bylaw: swimming pools or other basins lined with impervious material, wastewater treatment lagoons, and water bodies excavated from upland within active gravel pits or quarries.
All vertebrate and invertebrate animal and all plant species listed as endangered, threatened, or of special concern by the Massachusetts Division of Fisheries and Wildlife, regardless of whether the site in which they occur has been previously identified by the Division.
Any passive leisure activity that does not conflict with or diminish other wetland functions and values. Examples include, but are not limited to, the following: legally licensed fishing or hunting, boating, swimming, walking and hiking, canoeing, and bird watching.
A naturally flowing body of water that empties into any ocean, lake, pond, or other river and which normally flows throughout the year. The Commission may by regulations set criteria for determining whether a particular stream or section of stream flows throughout the year.
The area of land between a river's mean annual high water line and a parallel line measured horizontally 200 feet away. The riverfront area may include or overlap other resource areas or their buffer zones. Further definition of "riverfront" is in 310 CMR 10.58.
Any body of running water, including brooks and creeks, which moves in a definite channel in the ground, due to hydraulic gradient, and which flows within, into or out of an area subject to protection under MGL c. 131, § 40. A portion of a stream may flow through a culvert or beneath a bridge. Such a body of water which does not flow throughout the year is intermittent. Streams may be perennial (see "river") or intermittent. For the purposes of this bylaw, only those streams shown on a map created for the regulations associated with this bylaw shall be protected under this bylaw.
As pertaining to § 240-4 of this bylaw, limited to no more than a one-thousand-square-foot footprint addition in the conservation zone.
In addition to that already defined under the Wetlands Protection Act, MGL c. 131, § 40, and regulations thereunder, 310 CMR 10.00, any confined basin or depression not occurring in existing lawns, gardens, landscaped areas, or driveways which, in at least most years, holds water for a minimum of two continuous months during the spring and/or summer, is at least 500 square feet in size at some time during most years, is free of adult predatory fish populations, and provides essential breeding and rearing habitat functions for amphibian, reptile, or other vernal pool community species, regardless of whether the site has been certified by the Massachusetts Natural Heritage and Endangered Species Program. The buffer zone for vernal pools shall extend 100 feet from the mean annual high water line defining the depression, but shall not extend over existing lawns, gardens, landscaped or developed areas. For the purposes of this bylaw, only certified vernal pools, and potentially certifiable vernal pools as shown on a map created for the regulations associated with this bylaw shall be protected, if they meet the certification standards.
(1)	By a proper bond or deposit of money or negotiable securities or other undertaking of financial responsibility sufficient, in the opinion of the Commission, to be released in whole or in part upon issuance of a certificate of compliance for work performed pursuant to the permit.
(2)	By a conservation restriction, easement, or other covenant enforceable in a court of law, executed and duly recorded by the owner of record, running with the land to the benefit of the Town of South Hadley and members of the public, whereby the permit conditions shall be performed and observed before any lot may be conveyed, other than by mortgage deed. This method shall be used only with the consent of the applicant.
B.	The bond or covenant shall, in the case of the bond, be given to the Town, and in the case of a covenant, shall be recorded in the Registry of Deeds at least 10 business days before the start of any work under the permit.
A.	No person shall remove, fill, dredge, build upon, degrade, or otherwise alter resource areas protected by this bylaw, or cause, suffer, or allow such activity, or leave in place unauthorized fill, or otherwise fail to restore illegally altered land to its original condition, or fail to comply with a permit or an enforcement order issued pursuant to this bylaw.
B.	The filing of a permit application or RFD shall constitute the consent of the owner and grant the authority for the Commission and its agents, officers and employees, with proper identification, to enter upon privately owned land for the purpose of performing their duties under this bylaw. The Commission may make or cause to be made such examinations, surveys or sampling as the Commission deems reasonable and necessary, subject to the laws of the United States and the commonwealth.
C.	The Commission shall have the authority to enforce this bylaw, its regulations, and permits issued thereunder by violation notices, noncriminal citations under MGL c. 40, § 21D, administrative orders, and civil and criminal court actions. Any person who violates provisions of this bylaw may be ordered to restore the property to its original condition and/or take other action deemed reasonable and necessary to remedy such violations, or may be fined, or both.
D.	Upon request of the Commission, the Board of Selectmen shall direct the Town Counsel to take legal action for enforcement under civil law. Upon request of the Commission, the Chief of Police shall take legal action for enforcement under criminal law.
E.	Town boards and officers, including any police officer or other officer having police powers, shall have authority to assist the Commission in enforcement.
F.	Any person who violates any provision of this bylaw, regulations, permits or administrative orders issued thereunder, shall be served with a notice of violation enumerating the alleged violations. If after 10 business days the Commission has not received what it deems to be either 1) sufficient evidence demonstrating that no violations have occurred, or 2) a filing that will remove the violations along with evidence that sufficient progress is being made to correct the violation, then the violator shall be punished by a fine of $100 per offense. Beginning 10 business days after the date of the notice of violation, each day or portion thereof during which a violation continues, or unauthorized fill or other alteration remains in place, shall constitute a separate offense, and each provision of this bylaw, regulations, permits, or administrative orders violated shall constitute a separate offense.
G.	In addition to any fine, the Town shall be entitled to reimbursement for all expenses, including legal fees, incurred in prosecuting said violation, either civilly or criminally.
(1)	Any Commission decision shall become final 10 days after the Commission mails notice thereof to the applicant unless the applicant, or other persons listed above, after mailing and before the expiration of 10 days, requests in writing an appeal through a local administrative review. The appeal shall be heard by a committee appointed by the Selectboard, and consisting of: two members of the Planning Board, a Selectboard member, a representative from the Board of Health, and a representative from the Department of Public Works. This committee shall be appointed annually in advance of any appeal request. The request for a local administrative appeal shall state with reasonable specificity the issues the applicant requests the committee to consider.
(2)	Within 10 days of receipt of the request for a local administrative appeal, the Chair of the Selectboard shall call a meeting of the committee, and written notice shall be made to the applicant, the Conservation Commission, and to all committee members. The scope of review shall be to determine if there was an error of law or abuse of discretion as measured by the "arbitrary and capricious" standard. After hearing all the evidence provided by the appellant and the Conservation Commission, said committee shall, by majority vote, render a written opinion within 14 days of the close of the presentations by both sides.
(3)	The Commission shall hold a public meeting to review the opinion of the local administrative appeal committee. Within 21 days of delivery of the opinion of the committee to the appellant and the Commission, the Commission shall issue a further decision, which decision shall be final upon issuance and mailing to the appellant.
(4)	No request for local administrative appeal under this bylaw shall affect the finality of or appeal deadlines applicable to any decision-making of the Commission under the Wetlands Protection Act, MGL c. 131, § 40, and regulations, 310 CMR 10.00.
B.	Legal appeal. A decision of the Commission shall be reviewable in the Superior Court in an action filed within 60 days thereof, in accordance with MGL c. 249, § 4.
§ 240-16 Relation to Wetlands Protection Act.
This bylaw is adopted under the Home Rule Amendment of the Massachusetts Constitution and the Home Rule statutes, independent of the Wetlands Protection Act, MGL c. 131, § 40, and the regulations thereunder, 310 CMR 10.00.
The invalidity of any section or provision of this bylaw shall not invalidate any other section or provision or phrase thereof, nor shall it invalidate any permit which previously has been issued.
E.	Any lot or other areas included within a definitive subdivision plan, special permit plan, site plan, or Form H subdivision plan which has been submitted to the South Hadley Planning Board and/or has been approved by the South Hadley Planning Board prior to the effective date pursuant to Article V of the Subdivision Regulations in regard to a definitive subdivision plan, Article VI of the Subdivision Regulations in regard to a Form H subdivision plan, Article IX of the Zoning Bylaw in regard to a special permit plan, and Article XII of the Zoning Bylaw in regard to a site plan. In the event the Planning Board fails to endorse the definitive subdivision plan or Form H subdivision plan before November 8, 2006, the provisions of this bylaw shall be deemed to apply to the subject property. If the Planning Board approval of any such definitive subdivision plan, special permit plan, site plan, or Form H subdivision plan expires or lapses and is not renewed or extended by the Planning Board, the provisions of this bylaw shall be deemed to apply to the subject property. Any new work beyond that shown on the above-referenced plans that is within a resource area regulated by the Wetlands Bylaw shall be subject to this bylaw.


text:
Order of the Board of Immigration Appeals.
opinion, in which Judge Niemeyer and Judge Duncan joined.
Washington, D.C., for Respondent. ON BRIEF: David J.
but the Board of Immigration Appeals (BIA) reversed.
men in a white van approached them to intimidate Jason.
head, and died moments later. Luis then shot SuarezValenzuela in the foot.
told the authorities that Luis killed Jason.
although he served only three months of that sentence.
Luis remained employed as a police officer following his conviction.
went to live with his grandmother in order to avoid Luis.
national identity database to locate him anywhere in Peru.
illegally entered the United States in January 1999.
unaware whether the other individual was a police officer.
same threats to Suarez-Valenzuelas father in 1999.
who conducted the interview concluded that SuarezValenzuela had demonstrated a reasonable fear of torture.
and the perpetrators of those abuses are rarely punished.
Peru. The judge therefore granted Suarez-Valenzuelas application for withholding of removal to Peru under the CAT.
has since removed Suarez-Valenzuela to Peru.
pursuant to 8 U.S.C. 1252 and 28 U.S.C. 2349(a).
would be compelled to conclude to the contrary." 8 U.S.C.
also Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002).
agency for additional investigation or explanation." INS v.
prime example of cases for which remand is appropriate).
should remand the case to allow the BIA to correct its error.
v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006); Lopez-Soto v.
have rejected it for that reason. See Hakim, 628 F.3d at 15557; McIntosh v. Clement, 247 F. Appx 226, 227-28 (2d Cir.
control persons or groups engaging in torturous activity").
actually applied the willful acceptance standard.
information regarding conditions in the country of removal"
Human Rights Practices for Peru. Id. 1208.16(c)(3)(iii)-(iv).
database to locate and torture Peruvian citizens.
was not consistent with the willful acceptance standard.
reasons outlined below, we hold that substantial evidence supports the BIAs conclusions.
leadership had changed and that the government had "attempt[ed] to cull corrupt individuals in positions of authority."
their official capacity, will acquiesce or consent to his torture."
unlikely to acquiesce to Suarez-Valenzuelas torture.
past torture and whether that torture was likely to reoccur.
that the other officers who assisted Luis "may have acquiesced to the harm the applicant received by not intervening,"
of the applicants claim," Tassi v. Holder, 660 F.3d 710, 719 (4th Cir.
determining that Luis and his accomplices were "rogue officers."
relocation in his reply brief.
overcome the rule regarding abandonment for this reason).
Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th Cir. 2004).
not that the government would acquiesce to SuarezValenzuelas torture upon his return to Peru.
therefore decline to address this argument.
Georgia Court of Appeals Order Lowe v Lowe.

matches: v. v. v. v. v. v. v.


The Interstate Commerce Commission, under §§ 13a(2) of the Interstate Commerce Act, authorized appellant railway company to discontinue two intrastate passenger trains, which provided the last remaining railway passenger service between two cities, having found that the service constituted an undue burden on interstate commerce and that the present or future public convenience and necessity permitted discontinuance of the service. A three-judge District Court set aside the Commission's order on the ground that the Commission had applied erroneous legal standards by not taking proper account of the freight profits on the line and the overall prosperity of the carrier.
1. Under § 13a(2), the Commission need not give effect to the prosperity of the intrastate operations of the carrier as a whole or any particular segment thereof in determining whether the operation of a specific intrastate train or service imposes an unjust or undue burden on interstate commerce. P. 376 U. S. 104.
2. The Commission may properly give varying weights to the overall prosperity of the carrier in different situations, balancing public convenience and necessity against undue burdens on interstate commerce. Colorado v. United States, 271 U. S. 153. Where the demands of public convenience and necessity are slight, as in this case, it is proper under § 13a(2) for the Commission, in determining the existence of a burden on interstate commerce, to give little weight to the carrier's overall prosperity. Pp. 376 U. S. 104-105.
In 1959, the appellant Southern Railway Company filed a petition with the North Carolina Utilities Commission for an order permitting it to discontinue operation of two intrastate passenger trains between Greensboro and Goldsboro, North Carolina, a distance of about 130 miles. The trains in question are No. 16, which operates eastbound in the morning from Greensboro to Goldsboro, and No. 13, consisting of the same equipment, which operates westbound in the late afternoon. Since 1958, these two trains have provided the last remaining railway passenger service between the two communities. The State Commission denied the petition, and its decision was upheld by the North Carolina Supreme Court. State of North Carolina ex rel. Utilities Commission v. Southern Railway Co., 254 N.C. 73, 118 S.E.2d 21 (1961).
"that the public will not be materially inconvenienced by the discontinuance of the service here involved; that the savings to be realized by the carrier outweigh the inconvenience to which the public may be subjected by such discontinuance; that such savings will enable the carrier more efficiently to provide transportation service to the public which remains in substantial demand; and that the continued operation of trains Nos. 13 and 16 would constitute a wasteful service, and would impose an undue burden on interstate commerce."
210 F.Supp. at 689. The court itself then concluded that discontinuance was not warranted. It therefore set aside the Commission's order and perpetually enjoined the carrier from discontinuing the Greensboro-Goldsboro passenger trains. The United States, the Interstate Commerce Commission, and the carrier all appealed. We noted probable jurisdiction and consolidated the cases for argument. 373 U.S. 907.
The District Court's action in setting aside the Commission's conclusions as to public convenience and necessity and undue burden on interstate commerce was explicitly based upon the court's view that the Commission had applied erroneous legal standards in reaching those conclusions. The court did not question that the Commission's subsidiary findings of fact were supported by a substantial evidentiary foundation. It simply disagreed with the Commission as to the kind of evidence required to support an order permitting discontinuance of an intrastate passenger train under § 13a(2).
"without a separation of interstate and intrastate property, revenues, and expenses, and without considering in totality the operations or results thereof of any carrier . . . wholly within any State. [Footnote 3]"
The District Court's holding that the same kind of data should be considered in § 13a(2) proceedings was premised upon the fact that no language similar to that of the 13(4) amendment was included in § 13a(2), and that proceedings under the latter provision, which permits discontinuance of given operations, have a far more serious impact upon intrastate passengers than proceedings under the former, which provides only for an increase in the rates to be charged.
assume that Congress regarded the new language as embodying a standard which had to be specifically incorporated into every statutory provision to which it was intended to apply.
"The burden [upon the carrier's interstate operations or upon interstate commerce, as expressed in section 13a(2)] . . . is to be measured by the injurious effect that the continued operation of the train proposed for discontinuance would have upon interstate commerce. As is indicated by its legislative history, the purpose of section 13a(2) is to permit the discontinuance of the operation of services that 'no longer pay their way and for which there is no longer sufficient public need to justify the heavy financial losses involved.' (S.Rep. 1647, 85th Cong.). Nowhere in section 13a(2) or elsewhere in the law is there any requirement that the prosperity of the intrastate operations of the carrier as a whole, or any particular segment thereof, must be given effect in determining whether the operation of an individual intrastate train imposes an unjust and undue burden on interstate commerce. To hold otherwise would be contrary to the apparent intent of the Congress."
Southern Pac. Co., Partial Discontinuance, 312 I.C.C. 631, 633-634 (1961).
"In many cases, it is clear that the extent of the whole traffic, the degree of dependence of the communities directly affected upon the particular means of transportation, and other attendant conditions are such that the carrier may not justly be required to continue to bear the financial loss necessarily entailed by operation. In some cases . . . the question is whether abandonment may justly be permitted in view of the fact that it would subject the communities directly affected to serious injury, while continued operation would impose a relatively light burden upon a prosperous carrier."
271 U.S. at 271 U. S. 168-169. In cases falling within the latter category, such as those involving vital commuter services in large metropolitan areas where the demands of public convenience and necessity are large, it is, of course, obvious that the Commission would err if it did not give great weight to the ability of the carrier to absorb even large deficits resulting from such services. But where, as here, the Commission's findings make clear that the demands of public convenience and necessity are slight, and that the situation is, therefore, one falling within the first category delineated in Colorado, it is equally proper for the Commission, in determining the existence of the burden on interstate commerce, to give little weight to the factor of the carrier's overall prosperity.
here. We therefore reverse the judgment of the District Court, and remand with instructions to reinstate the report and order of the Commission.
* Together with No. 93, United States et al. v. North Carolina, et al., also on appeal to the same court.
"Where the discontinuance or change, in whole or in part, by a carrier or carriers subject to this chapter, of the operation or service of any train or ferry operated wholly within the boundaries of a single State is prohibited by the constitution or statutes of any State or where the State authority having jurisdiction thereof shall have denied an application or petition duly filed with it by said carrier or carriers for authority to discontinue or change, in whole or in part, the operation or service of any such train or ferry or shall not have acted finally on such an application or petition within one hundred and twenty days from the presentation thereof, such carrier or carriers may petition the Commission for authority to effect such discontinuance or change. The Commission may grant such authority only after full hearing and upon findings by it that (a) the present or future public convenience and necessity permit of such discontinuance or change, in whole or in part, of the operation or service of such train or ferry, and (b) the continued operation or service of such train or ferry without discontinuance or change, in whole or in part, will constitute an unjust and undue burden upon the interstate operations of such carrier or carriers or upon interstate commerce. When any petition shall be filed with the Commission under the provisions of this paragraph, the Commission shall notify the Governor of the State in which such train or ferry is operated at least thirty days in advance of the hearing provided for in this paragraph, and such hearing shall be held by the Commission in the State in which such train or ferry is operated; and the Commission is authorized to avail itself of the cooperation, services, records and facilities of the authorities in such State in the performance of its functions under this paragraph."
It should be noted, in connection with the findings made by the District Court, that the Commission had noted that the increase in passenger traffic during 1961 was largely due to group movements of school children; that, as to Southern's failure to seek passengers, "prospective patrons who must be coaxed to use a service have no urgent need for it"; and that, after a broad study and investigation in 1959, the Commission had concluded that "public convenience and necessity" does not require the maintenance of deficit passenger services as a standby service for travelers who customarily travel by highway or by air. Railroad Passenger Train Deficit, 306 I.C.C. 417, 482.
"Whenever in any such investigation the Commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce, on the one hand, and interstate or foreign commerce, on the other hand, or any undue, unreasonable, or unjust discrimination against, or undue burden on, interstate or foreign commerce (which the Commission may find without a separation of interstate and intrastate property, revenues, and expenses, and without considering in totality the operations or results thereof of any carrier, or group or groups of carriers wholly within any State), which is hereby forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, discrimination, or burden. . . ."
"[I]t is the possible interpretation of these recent court decisions that would create a change in the present regulatory scheme." H.R.Rep. No. 2274, 85th Cong., 2d Sess., 12.
"No carrier by railroad subject to this chapter shall undertake the extension of its line of railroad, or the construction of a new line of railroad, or shall acquire or operate any line of railroad, or extension thereof, or shall engage in transportation under this chapter over or by means of such additional or extended line of railroad, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity require or will require the construction, or operation, or construction and operation, of such additional or extended line of railroad, and no carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment."
"The application for and issuance of any such certificate shall be under such rules and regulations as to hearings and other matters as the Commission may from time to time prescribe, and the provisions of this chapter shall apply to all such proceedings."
"The Commission shall have power to issue such certificate as prayed for, or to refuse to issue it, or to issue it for a portion or portions of a line of railroad, or extension thereof, described in the application, or for the partial exercise only of such right or privilege, and may attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience and necessity may require."
"A major cause of the worsening railroad situation is the unsatisfactory passenger situation. Not only is the passenger end of the business not making money -- it is losing a substantial portion of that produced by freight operations."
"It is obvious that, in very great measure, these passenger losses are attributable to commuter service. . . . It is unreasonable to expect that such service should continue to be subsidized by the freight shippers throughout the country."
"There are substantial losses, however, occurring in passenger service beyond those attributable solely to commuter service. Where this passenger service . . . cannot be made to pay its own way because of lack of patronage at reasonable rates, abandonment seems called for."
H.R.Rep. No. 1922, 85th Cong., 2d Sess., 11-12.
"A most serious problem for the railroads is the difficulty and delay they often encounter when they seek to discontinue or change the operation of services or facilities that no longer pay their way, and for which there is no longer sufficient public need to justify the heavy financial losses entailed. The subcommittee believes that the maintenance and operation of such outmoded services and facilities constitutes a heavy burden on interstate commerce."
S.Rep. No. 1647, 85th Cong., 2d Sess., 21.
S. 3778, 85th Cong., 2d Sess., 6. See also the remarks of Senator Smathers, Chairman of the Surface Transportation Subcommittee, who made it clear that the net loss standard did not refer to all operations on a line or all operations within a State, but rather to "the loss from the particular operation the railroad is rendering." 104 Cong.Rec. 10849.
See 104 Cong.Rec. 10846-10849. See also pp. 10838-10839.
S.Rep. No. 1647, 85th Cong., 2d Sess., 22.
H.R. 12832, 85th Cong., 2d Sess., 10.
Under § 13a(2), which applies solely to intrastate trains, the Commission may not authorize discontinuance until after the appropriate state regulatory agency has been given an opportunity to act and has failed or refused to authorize discontinuance. See New Jersey v. New York, S. & W. R. Co., 372 U. S. 1, 372 U. S. 4.
See 49 U.S.C. § 13a(1), (2).
The fact that Congress intended the same substantive standards to be applied both to intrastate and interstate discontinuances wholly vitiates appellees' argument that the Commission is required to take into account, wherever presented, the profitability of intrastate operations as a whole or any segment thereof whenever an intrastate service is sought to be discontinued. Thus, consideration of the overall prosperity of the carrier is necessarily relevant to a determination of the degree to which a deficit resulting from a given service constitutes an undue burden on interstate commerce. But neither the profitability of such freight operations as are fortuitously conducted on the same line as a given passenger service nor the profitability of all operations within any given State bears any practical relationship either to the public's need for the service in question or to the burden which the deficit imposes on interstate commerce.
MR. JUSTICE GOLDBERG, with whom THE CHIEF JUSTICE joins, dissenting.
"that (a) the present or future public convenience and necessity permit of such discontinuance . . . and (b) the continued operation . . . will constitute an unjust and undue burden upon the interstate operations of such carrier . . . or upon interstate commerce."
case to the Commission for further consideration and appropriate findings. See, e.g., Interstate Commerce Comm. v. J-T Transport Co., Inc., 368 U. S. 81, 368 U. S. 93.
"[w]hatever room there may be for differing views as to the wisdom of the policy . . . , it is the duty of the Commission [and the Court] to effectuate the statutory scheme."
Ante at 376 U. S. 105. I do not believe, however, that it can be fairly concluded from the statute or from its legislative history that Congress intended, despite the ruling of a state authority, that intrastate passenger trains could be discontinued on the basis of the slender showing required by the ICC and approved by this Court.
"protected the right of the States, . . . by leaving to the State regulatory agencies the right to regulate and have a final decision with respect to the discontinuance of train service which originated and ended within one particular State, except when it could be established that intrastate service was a burden on interstate commerce."
service to Washington, New York and other east coast cities, and conserve working time for the traveler having business at the north or south terminal cities. Trains 13 and 16 run on tracks leased by Southern from the state-owned North Carolina Railroad Company. The lease clearly contemplates both passenger and freight service. Furthermore, as the Court recites in its opinion, while, during the relevant year, Southern sustained a loss on its passenger service on the line of approximately $90,000, it made a profit of over $600,000 on freight on the same leased line, and an overall profit on its entire system in excess of $36,000,000. While passenger traffic on this line has declined in recent years, the traffic is still substantial -- 14,776 passengers used the two trains in 1960, an increase of more than 500 over the previous year -- and the area served has been growing in population and industrial importance. On these facts, the state agency denied Southern's request to discontinue the two trains. In overruling the decision of the State, the ICC, as already stated, gave "little or no weight" to Southern's overall prosperity, and no consideration whatsoever to its freight profits on the line. In my view, the Commission wrongfully ignored these factors, and the Court errs in approving this action of the Commission.
"not susceptible of scientific measurement or exact formulae, but the questions of degree and involve the balancing of conflicting interests."
passenger service and whether continued operation will unduly burden interstate commerce -- are interrelated. Under any common sense view of the statute, the amount of the railroad's financial loss on the two intrastate passenger trains cannot be considered in isolation from its freight profits on that line, its intrastate profits, or its overall prosperity. The words "unjust" and "undue" clearly indicate that Congress intended that the mere fact that a particular passenger train is operating at a loss -- i.e., is a burden -- would not, in itself, justify discontinuance of that train. The burden must be "unjust" and "undue," and whether this is so cannot be determined except in light of the total circumstances. The final determination must be made by balancing all the relevant factors -- "the effort being to decide what fairness to all concerned demands." Colorado v. United States, 271 U. S. 153, 271 U. S. 169. As the decisions of this Court plainly indicate, this does not mean that discontinuance is prohibited unless intrastate passenger and freight service, considered together, show a net loss, or overall profits are substantially impaired. Colorado v. United States, supra; Transit Comm'n v. United States, 284 U. S. 360. Rather, freight profits and overall profits are merely factors to be considered by the Commission in determining whether the particular passenger loss constitutes an unjust and undue burden on interstate commerce when balanced against the public need. [Footnote 2/2] Such profits may not be the controlling factors, but, when presented, they are to be considered.
"[W]e do not think that the deficit from this single commuter operation can fairly be adjudged to work an undue discrimination against the Milwaukee Road's interstate operations without findings which take the deficit into account in the light of the carrier's other intrastate revenues from Illinois traffic, freight and passenger. The basic objective of § 13(4), applied in the light of § 15a(2) to this case, is to prevent a discrimination against the carrier's interstate traffic which would result from saddling that traffic with an undue burden of providing intrastate services. A fair picture of the intrastate operation, and whether the intrastate traffic unduly discriminates against interstate traffic, is not shown in this case by limiting consideration to the particular commuter service in disregard of the revenue contributed by the other intrastate services."
"without a separation of interstate and intrastate property, revenues, and expenses, and without considering in totality the operations or results thereof of any carrier . . . wholly within any State."
72 Stat. 570, 49 U.S.C. § 13(4). I cannot agree, however, with the Court's view that Congress, by so amending § 13(4), which deals solely with rate cases, intended that there be read into § 13a(2), which deals solely with discontinuances, language which was not similarly incorporated. Section 13a(2) was initially enacted at the same time that § 13(4) was amended. If Congress had intended that the ICC need not consider all relevant factors in discontinuance cases, the proposed § 13a(2) could easily have been altered to include the language that was added to § 13(4) by amendment.
a decision of the Commission will not be upset simply because it fails to find specifically these facts where they have not been put in issue by the evidence before the Commission, but this does not mean that such facts where relevant and pertinent are not to be considered."
opinion to this effect referred to the then-pending bill couched in the same language as that later adopted in the Transportation Act of 1958, and the Committee, considering the pending legislation, cited the dissenting opinion with apparent approval. [Footnote 2/3]"
"Of course, those who contend that intrastate traffic as a whole is not discriminating against interstate traffic may come forward and show, as they may in respect to any claimed dissimilarity of conditions surrounding interstate and intrastate traffic, some favorable aspect of intrastate operations that the Commission should take into account. In the absence of such a showing, however, the Commission should be able to assume that discrimination shown to exist as to the particular segments of intrastate and interstate traffic with which the § 13(4) proceeding is concerned is not offset by other conditions that this Court speculates may affect wholly different segments of intrastate commerce."
Public Service Comm'n of Utah v. United States, supra, at 356 U. S. 462-463. It necessarily follows that, if § 13(4), with its amendatory language, does not permit the Commission to ignore evidence of all relevant facts actually offered by the parties in a rate case, such evidence cannot be disregarded in a discontinuance proceeding under § 13a(2) which lacks even the amending language.
"the operation or service of such train . . . is required by public convenience and necessity, and that such operation or service will not result in a net loss therefrom to the carrier or carriers, and will not otherwise unduly burden interstate or foreign commerce. . . ."
"It is my view, as the bill is now written, that question of law [as to the meaning of 'net loss therefrom'] will be decided in terms of a net loss on the particular section of a railroad which is sought to be discontinued, rather than the net loss on the total operations of the carrier of which that section of the road is a part."
"balanced authority to deal with the situation both in respect to losses and in respect to the public in the way of convenience and necessity."
Senator Smathers responded: "We construe the words net loss' to mean the loss from the particular operation the railroad is rendering." Id. at 10849. Although Senator Javits was initially unsuccessful in his efforts to defeat the passage of the net loss provision, his arguments prevailed, as the Court notes, both in the House and in the final bill.
"without this amendment, put the public entirely at the mercy of the railroad by establishing a new standard for the discontinuance of train service by a mere showing of a loss in the operation of any train. . . . We cannot go so far afield as to say that, unless every single item of service shows a profit, the railroad can discontinue any service regardless of public convenience and necessity."
"a balanced authority to deal with the situation both in respect to losses and in respect to the public in the way of convenience and necessity."
authorizing the abandonment of an uneconomic passenger train because the remainder of the railroad's intrastate or overall operations are profitable. [Footnote 2/8] It means only that, in making its determination, the Commission shall give appropriate consideration to all relevant factors. One factor or a combination may prove controlling, but all must be considered in making the statutory determination. This the Commission refused to do, and therefore its isolated finding that public convenience and necessity would permit a discontinuance was insufficient, absent an appropriate consideration of the burden on commerce, to sustain its conclusion.
Although I agree, for the reasons stated, with the three-judge District Court in its interpretation of § 13a(2), I am nevertheless of the view that that court misconstrued its reviewing role in finding that the operation of the two trains between Greensboro and Goldsboro served the public need and constituted no burden on interstate commerce. The court should not have determined this issue on the record before it, but should have remanded the case for further proceedings by the Commission under the correct legal standard. See, e.g., Interstate Commerce Comm'n v. J-T Transport Co., Inc., 368 U. S. 81, 368 U. S. 93.
See the statement of the hearing examiner set forth in note 4, infra.
"In many cases, it is clear that the extent of the whole traffic, the degree of dependence of the communities directly affected upon the particular means of transportation, and other attendant conditions are such that the carrier may not justly be required to continue to bear the financial loss necessarily entailed by operation. In some cases, although the volume of the whole traffic is small, the question is whether abandonment may justly be permitted in view of the fact that it would subject the communities directly affected to serious injury, while continued operation would impose a relatively light burden upon a prosperous carrier. The problem and the process are substantially the same in these cases as where the conflict is between the needs of intrastate and of interstate commerce. Whatever the precise nature of these conflicting needs, the determination is made upon a balancing of the respective interests -- the effort being to decide what fairness to all concerned demands. In that balancing, the fact of demonstrated prejudice to interstate commerce and the absence of earnings adequate to afford reasonable compensation are, of course, relevant, and may often be controlling. But the Act does not make issuance of the certificate dependent upon a specific finding to that effect."
See the Conference Report, H.R.Rep. No. 2274, 85th Cong., 2d Sess.
"At the hearing, protestants emphasized the fact that petitioner's net railway operating income in 1960 was $36,107,599, and that its net income alone from freight operations on the line between Greensboro and Goldsboro averages $630,000, thus contending that the overall prosperity of the petitioner, as well as its intrastate freight operations, must be given effect in the disposition of the issues involved herein. With these contentions the examiner disagrees. The legislative history of section 13a(2) indicates that the purpose thereof is to permit the discontinuance of the operation of services that 'no longer pay their way and for which there is no longer any public need to justify the heavy financial losses involved' (S.Rep. 1647, 85th Cong.). (Emphasis supplied). In considering a somewhat similar contention in Southern Pacific Co. -- Partial Discontinuance of Passenger Trains, Los Angeles, etc. [312 I.C.C. 631], the Commission made the following pertinent statement:"
"Nowhere in section 13a(2) or elsewhere in the law is there any requirement that the prosperity of the intrastate operations of the carrier as a whole, or any particular segment thereof, must be given effect in determining whether the operation of an individual intrastate train imposes an unjust and undue burden on interstate commerce. To hold otherwise would be contrary to the apparent intent of the Congress."
"In this same connection, the argument that losing passenger operations must be supported by constantly increasing freight rates is also untenable. In rejecting this argument, the Commission stated that such 'theory of regulation would not be consonant with the national transportation policy, and would be fraught with disastrous possibilities.' Great Northern Ry. Co. Discontinuance of Service, 307 I.C.C. 59, 61. Similarly, the fact that petitioner's system operations are profitable is entitled to little or no weight. . . ."
This does not imply that either the Commission or the Court has failed to acknowledge that a carrier must show that public convenience and necessity will permit the requested discontinuance. However, as I have indicated, supra at 376 U. S. 107, unless the Commission relates this finding as to public convenience to an appropriate consideration of the burden issue, the availability of alternative means of transportation coupled with the fact of losses on diminished passenger traffic will suffice to sanction discontinuances in virtually all cases.
"The benefit . . . of the abandonment must be weighed against the inconvenience. . . . Conversely, the benefits to particular communities and commerce of continued operation must be weighed against the burden thereby imposed upon other commerce."
The conclusion that § 13a(2) contemplates the weighing of such factors is reinforced by the use of the same balancing approach under §§ 1(18), 1(20), of the Interstate Commerce Act, 41 Stat. 477, 478, as amended, 49 U.S.C. §§ 1(18), 1(20). These provisions, enacted in 1920, empower the ICC to permit abandonment of lines (as distinguished from particular trains), where continued operation of the entire intrastate line would burden interstate commerce. See Colorado v. United States, supra; Transit Comm'n v. United States, 284 U. S. 360.
The ICC has never been precluded from authorizing abandonment of an uneconomic branch line (as distinguished from the particular trains) merely because the remainder of the railroad's intrastate operations were profitable. See note 7, supra.


§ 409-1 Removal, relocation and installation.
§ 409-3 Capital improvement projects to include amount for public art.
§ 409-4 Waiver of requirements.
§ 409-6 Art in Public Places Committee.
§ 409-7 Rules and regulations.
§ 409-8 Placement of works of art.
No statue or monument owned, possessed or controlled by the City may be removed, relocated or installed without first obtaining the permission of the Commissioner of Public Works and the Common Council. Upon passage of a resolution of the Common Council, the Commissioner of Public Works shall remove, relocate or install such statues or monuments as the Council may direct.
The City of Buffalo accepts a responsibility for expanding its citizens' experience with visual art. Such art has enabled people in all societies to better understand their communities and individual lives. Artists capable of creating art for public places must be encouraged and Buffalo's standing as a regional leader in public art enhanced. Other cities around the country, including Miami, Philadelphia, Denver and Seattle, have created programs which greatly enhance their urban environments by requiring that a portion of public money used for capital projects be devoted to public art. The artwork in Buffalo's Metrorail Stations is an example of how well-planned art components of public projects can improve the way residents and visitors to Buffalo experience the City. A policy is therefore established to direct the inclusion of works of art in public projects in the City.
The Art in Public Places Program shall apply to all capital improvement projects as defined below, including multiphase projects on a single project site, whose budgeted cost of construction and design for a single project or for the total of such multiphase projects is equal to or greater than $1,000,000. An amount equal to 1% of the total budgeted construction and design cost of the capital improvement project shall be included in the budget for the planning, design, construction, repair and maintenance of works of art created pursuant to this article, and allocated to the Art in Public Places Program.
Upon learning that the cost of a capital improvement project is equal to or great than $1,000,000, the Department of Public Works shall provide notice to the Executive Director of the Arts Commission that the Art in Public Places Program applies to said program.
The requirements of § 409-3 may be waived by resolution of the Common Council when and if it appears that a project covered thereunder is not appropriate for application of the above requirements.
Any capital project paid for wholly or in part by the City of Buffalo to construct or remodel any building, decorative or commemorative structure, park, plaza, bridge, sidewalk, pedestrian mall, parking facility or any portion thereof within the limits of the City.
For each capital improvement project there shall be created an ad hoc Art in Public Places Committee, which shall have the responsibility for the selection and placement of works of art under this program for that project. The Committee shall consist of an odd number of members, not less than five and not more than 11, appointed by the Buffalo Arts Commission, one of which shall be appointed as the Chairperson of the Committee. Each member shall be a professional in the fields of art, architecture, art history or art conservation and be knowledgeable about public art, but may not be a seller of, or work for a seller of, public art.
To carry out its responsibilities hereunder for the selection of works of art, the Committee shall follow rules and regulations promulgated by the Buffalo Arts Commission and approved by the Common Council within six months of the effective date hereof.
Works of art selected pursuant to the provisions of this article may be placed on or about any Capital Improvement Project or other City-owned, -leased or -rented property. They may be attached or detached within or about such property and may be either temporary or permanent. The Committee shall authorize placement of works of art, and the City officers responsible for the design and construction of such projects shall make appropriate space available for the placement of works of art. Notwithstanding the foregoing, final placement of all works of art shall be subject to any necessary conditions as set by the Commissioner of Public Works.
This article shall become effective on September 1, 1999.