[00:00:02] Speaker 00:
number 17-1112, American fuel and petrochemical manufacturers petitioner versus surface transportation board at L. Mr. Morata for the petitioner, Ms.

[00:00:12] Speaker 00:
Chaykin for the respondents.

[00:00:17] Speaker 03:
Thank you, Your Honor, and may it please the Court.

[00:00:20] Speaker 03:
Sean Murata for the American Fuel and Petrochemical Manufacturers.

[00:00:24] Speaker 03:
This case is about whether BNSF can, through a monetary penalty, phase out tank cars that Congress, in its considered judgment, said that shippers could continue to use on BNSF's lines.

[00:00:38] Speaker 03:
The answer is no.

[00:00:39] Speaker 03:
After all, BNSF lobbied hard both during the rulemaking process and during the Fast Act's passage for just the phase out that they intended to oppose here.

[00:00:49] Speaker 03:
They should not be allowed to do through a penalty on shippers what they couldn't do in the rulemaking process and in the legislative process.

[00:00:57] Speaker 04:
Before you get too far into the merits, could you address moodness?

[00:01:01] Speaker 04:
I don't see why this case is still alive because we have an intervening statute that seems to prohibit all of the shipping that's relevant to the case on the very kind of

[00:01:13] Speaker 04:
train car that's relevant to the case.

[00:01:17] Speaker 03:
Sure, Judge Katz.

[00:01:18] Speaker 03:
I think there's three reasons that we lay out in our reply brief why this case is still live, at least to some extent.

[00:01:24] Speaker 03:
Of course, we agree that there will not be DOT 111s continuing to carry crude oil.

[00:01:28] Speaker 03:
The FAST Act prohibited that on January 1st.

[00:01:30] Speaker 04:
And you agree that there's no category of petroleum or other product that you would want to ship on this kind of car that isn't covered by the statute?

[00:01:43] Speaker 03:
Well, I think I should be clear, Judge Katz, is the FAST Act on January 1st, 2018 barred crude oil in D&T 111.

[00:01:49] Speaker 03:
But there are still things like ethanol, which will phase out in, I think it's May 2023, which I think relates to our point that this is capable of repetition yet evading review.

[00:01:59] Speaker 03:
Right.

[00:01:59] Speaker 04:
But ethanol isn't in this case.

[00:02:02] Speaker 03:
It's not in this case.

[00:02:03] Speaker 04:
So we're talking about an argument against mootness based on the precedential impact.

[00:02:09] Speaker 03:
I don't think it's just precedential impact on repeating yet evading review, because as this court said in the United Brotherhood case that we cite in the reply brief, it's not whether the same historical facts will occur.

[00:02:20] Speaker 03:
Of course, there's not going to be petroleum products in DOT 111s, but the question is whether the legal question will recur, and that is that BNSF can impose a tariff

[00:02:30] Speaker 03:
to accelerate the various FAST Act phase-out periods and then arrange the tariff in such a way such that we can't get to, under this court's case, it's the Supreme Court, in time by the time the tariff ends because of the FAST Act.

[00:02:44] Speaker 03:
And in fact, on page 19 of BNS Brief, they say this is going to happen again.

[00:02:48] Speaker 04:
So this case, which is about petroleum, is moot to that extent, and your theory is there may be some future case about ethanol

[00:03:00] Speaker 04:
and that keeps this case alive because this decision might have precedential or persuasive impact on the next case.

[00:03:08] Speaker 03:
Well, not just presidential impact, but also the fact the legal question is going to recur and it could consistently evade review, but that's just one of our theories.

[00:03:14] Speaker 02:
Why would it evade review?

[00:03:15] Speaker 03:
It would evade review because the NSF can structure its tariffs in such a way that, for instance, this Court has said that as a rule of thumb, about a two-year period evades review.

[00:03:24] Speaker 03:
So that, you know, if you try to accelerate the future phase-out by up to two years, you can always arrange your tariff in such a way that it will be moot before we can obtain judicial review.

[00:03:35] Speaker 03:
But that's just one of our theories, I should be clear.

[00:03:37] Speaker 03:
Our other theory and our lead theory is that we requested a declaratory order, that's JA73,

[00:03:43] Speaker 03:
And individual members could, based on that declaratory order, bring damages action.

[00:03:48] Speaker 03:
So here we have a trade group that brought the broad complaint that this was an unreasonable practice.

[00:03:54] Speaker 04:
Could the individual members bring the damages action without this, without going through this proceeding, the DEC action here?

[00:04:04] Speaker 04:
I believe they could, Judge Cassis, but there's a reason that... So then, you know, any time you have a case with prospective relief, prospective relief only, and the complaint hasn't pleaded damages, and there's a mooting event, someone could say, well, the DEC action is not moot because it could then, doesn't have to be, but it could be the predicate for

[00:04:31] Speaker 04:
later damages claim and that's just not the way the jurisprudence seems to work.

[00:04:38] Speaker 03:
Well, I'll give you a case, Judge Cassis.

[00:04:40] Speaker 03:
I apologize it's not in the brief, but it's Nelson versus Miller.

[00:04:42] Speaker 03:
It's a Seventh Circuit case, 570 F3rd, 868, where it does say that a declaratory judgment isn't necessarily moot, where it is a predicate or a lead to damages.

[00:04:54] Speaker 03:
Now, in that case, it wasn't the sort of bifurcated case we have here, where there's a trade group and then the later action by the individual members.

[00:05:01] Speaker 03:
But I think there's a reason that trade group litigation exists.

[00:05:05] Speaker 04:
I'll raise you one and give you two Supreme Court cases, which aren't in the brief, but Price versus Newkirk, Alvarez versus Smith are cases where you have someone seeking declaratory and injunctive relief.

[00:05:20] Speaker 04:
There's no damages action involved.

[00:05:22] Speaker 04:
There could have been a damages action and the court is a mooting event and the court dismisses the declaratory count as well as the injunctive count, notwithstanding the possibility of damages actions.

[00:05:35] Speaker 03:
I can't say that I'm conversant with those two cases, Judge Katz.

[00:05:38] Speaker 03:
Fair enough.

[00:05:39] Speaker 03:
I think also it relates also to the board's practice here, which is that the board has a regulation, 49 CFR, 1130.2C, where it says that if you're bringing a damages claim, one of the things you should do is point out whether there is a previous case before the board that addressed the same issues.

[00:05:56] Speaker 02:
And so our deck action here, and again, the question I want to- All it says is that you have to advise the board.

[00:06:02] Speaker 02:
It doesn't say anything about what the consequences of that would be.

[00:06:05] Speaker 03:
I think that's right, Judge Tatel, and I think perhaps board counsel could talk about this as well.

[00:06:10] Speaker 03:
But the question on mootness, is there any effectual relief that this court can still grant?

[00:06:15] Speaker 03:
Not a lot of effectual relief, but any effectual relief.

[00:06:18] Speaker 03:
And that's still effectual relief for our members, that they could still obtain this declaratory order.

[00:06:24] Speaker 03:
And this is the reason people have trade groups that bring these broad claims, and then they can follow on just on the individual damages claims as cleanup.

[00:06:33] Speaker 03:
But I will say that if the court thinks that this is moot, then what it at least needs to do is vacate the board's decision below.

[00:06:39] Speaker 03:
So that we can be restored to the status quo.

[00:06:42] Speaker 03:
Because I think as the board and as BNSF, I'll point out that this is an important issue.

[00:06:47] Speaker 03:
And this case should not stand as a precedent if we have not been able to obtain judicial review from this court.

[00:06:54] Speaker 03:
But turning back to the merits, I think it comes down to the board saying that we went through the wrong door, that we went through the unreasonable practice door when we should have gone through the rate reasonableness door.

[00:07:08] Speaker 03:
But a rate reasonableness case would not address AFPM's complaint in this case.

[00:07:13] Speaker 03:
AFPM's complaint was not that you are charging us too much relative to your costs for this for this particular movement of tank cars.

[00:07:25] Speaker 03:
Our complaint is that you have an improper purpose that you should not charge this a surcharge at all.

[00:07:32] Speaker 03:
So it's not that it's a thousand dollar surcharge or a hundred dollar surcharge.

[00:07:35] Speaker 03:
Even a one dollar surcharge would still be improper because it has the improper purpose of countermanding

[00:07:42] Speaker 03:
an authorization granted by Congress that we could use these DOT-111s on BNSF's line until they're phased out.

[00:07:49] Speaker 03:
And so a rate reasonableness case, which is structured such that you look at the cost of providing service and the revenue that is derived from it, and then you compare those numbers and you say, is there market dominance?

[00:08:02] Speaker 03:
And then if there is, you think about what the maximum rate should be.

[00:08:06] Speaker 03:
None of that would have addressed our claim, because our point is, it's not about whether you're making too much money.

[00:08:11] Speaker 03:
It's about that you have this improper purpose in trying to coerce shippers

[00:08:15] Speaker 04:
But the only manifestation of the improper purpose in this case is with regard to the price term of service as opposed to something else.

[00:08:28] Speaker 04:
And that to me sounds like a rape.

[00:08:31] Speaker 03:
I don't think it is, Judge Katz, because you could have said the exact same thing about rail fuel surcharges, right?

[00:08:37] Speaker 03:
In fact, rail fuel surcharges was even more stark, if you want to line it up against you and Union Pacific, because the claim there was that the amount you are charging us, this surcharge for fuel, is too much relative to the cost of fuel.

[00:08:51] Speaker 03:
That sounds a whole lot like a comparison between cost and revenue being derived.

[00:08:56] Speaker 03:
And so if that was the rule, Judge Katz, I think rail fuel surcharges should have come out differently.

[00:09:00] Speaker 04:
But the board said no.

[00:09:02] Speaker 04:
What about Union Pacific?

[00:09:04] Speaker 03:
Well, Union Pacific itself, I think, is classic, exact that kind of case.

[00:09:09] Speaker 03:
The claim by the shippers in that case was, you claim that you are charging us this extra money because you have additional risk and you have additional costs in transporting spent nuclear fuel.

[00:09:19] Speaker 03:
But actually, you're charging us too much.

[00:09:21] Speaker 03:
You're deriving too much money from it.

[00:09:23] Speaker 03:
That, again, is a classic rate reasonableness case, but our case isn't like that.

[00:09:27] Speaker 04:
But what this court said was there's admittedly a gray area between rates and practices, but when the challenged conduct manifests itself exclusively in key phrases, level of rates, you said that's price.

[00:09:48] Speaker 04:
That's level.

[00:09:50] Speaker 03:
I think that is one line out of an opinion that also talked about a great deal of other things.

[00:09:57] Speaker 03:
That the case was brought as a reasonable case at the commission.

[00:10:00] Speaker 03:
It was litigated as a reasonable case at the commission.

[00:10:03] Speaker 03:
That the remedy provided was a maximum rate that could be charged by the shippers.

[00:10:08] Speaker 03:
All of those things also went into this court's determination.

[00:10:11] Speaker 03:
And not only that, but that's how the board has consistently distinguished Union Pacific in rail fuel surcharges.

[00:10:18] Speaker 04:
But even if you think Judge Cassidy... It's one line of an opinion, but it sure sounds like it's the holding, right?

[00:10:24] Speaker 04:
It's the last paragraph in the relevant section where the court is summing up and stating the outcome.

[00:10:31] Speaker 03:
But I think right before that, it said, in this case, I think it was talking about the facts before the court.

[00:10:36] Speaker 03:
But even if you think, Judge Katz, that Union Pacific is that bright line, the board had to engage with our brand X argument.

[00:10:43] Speaker 03:
Because obviously, Union Pacific is a pre-Chevron case.

[00:10:47] Speaker 03:
And Union Pacific did not suggest that was the only reasonable reading of the statute.

[00:10:51] Speaker 04:
Well, but it does, right?

[00:10:53] Speaker 04:
Because it says there's a lot of potential ambiguity between

[00:11:01] Speaker 04:
rates and practices, but in the circumstance of this case where the only manifestation is level of rate, that's a rate.

[00:11:12] Speaker 03:
Well, but in the pre-Chevron world, in the face of ambiguity, what the court did was it resolved the ambiguity itself.

[00:11:19] Speaker 03:
But in the post-Chevron world, as we all know, the board has the power to set that line.

[00:11:23] Speaker 03:
And we gave the board an extensive argument, JA 274, 275, that said, you know, even if that was the line back then, it just doesn't have policy justifications today.

[00:11:33] Speaker 03:
And the board did not respond to that argument, except to cite a different case where all they said was, hey, by the way, we decline to extend Union Pacific.

[00:11:41] Speaker 03:
So if they have a policy reason why that should still be the line, they should have given it to us.

[00:11:46] Speaker 04:
So here's the relevant sentence.

[00:11:48] Speaker 04:
Wherever the final line is drawn between practices and rates, which sounds like there's a range of ambiguity, I agree with that, we conclude the ICC's regulation here, we conclude, falls squarely on the side of rates.

[00:12:06] Speaker 04:
It seems to me like what the Court is saying is that that instance is beyond the bounds of reasonable interpretive debate.

[00:12:16] Speaker 03:
I don't think so, Judge Cassis, just because of the way things worked in pre-Chevron.

[00:12:20] Speaker 03:
Because what courts did back then is they said, look, there's ambiguity.

[00:12:23] Speaker 03:
Our best reading of the statute is this.

[00:12:25] Speaker 03:
The post-Chevron and under Brand X, and all we're saying is they've got to give us a response to the argument.

[00:12:30] Speaker 03:
And they never did.

[00:12:31] Speaker 03:
I'll reserve my time for rebuttal.

[00:12:51] Speaker 01:
Good morning and may it please the court.

[00:12:52] Speaker 01:
I am Carolyn Jacobs-Chakin on behalf of the Surface Transportation Board in the United States.

[00:12:57] Speaker 01:
With me at counsel's table is Anthony LaRocca, Steptoe and Johnson representing Intervenor BNSF.

[00:13:04] Speaker 01:
Mr. LaRocca has asked that I mention that although he has not been allotted any argument time, he is available to answer any questions specific to BNSF if the court has any.

[00:13:14] Speaker 01:
If this court does not dismiss the case as moved.

[00:13:17] Speaker 01:
Well, do you think it's moved?

[00:13:18] Speaker 01:
Well, yes, we believe there is a strong argument the case is moot for all of the reasons that the court has already made.

[00:13:27] Speaker 01:
We think at this point there is no effectual relief that AFPM can obtain here.

[00:13:34] Speaker 01:
It is an association.

[00:13:36] Speaker 01:
It seems to be its lead argument, as opposing council notes, is that its members might someday be able to bring future damages suit.

[00:13:45] Speaker 01:
When I last checked, which was yesterday, none of AFPM's members have come before the board and sought damages or reparations for paying this $1,000 differential for the unjacketed DOT 111s.

[00:13:57] Speaker 01:
And the fact that there could be a declaration at some point, if this were to be remanded and if the board were to determine it was an unreasonable practice, that would somehow essentially create precedent.

[00:14:11] Speaker 01:
That does not create a live controversy here.

[00:14:14] Speaker 01:
If so, no case would be moot.

[00:14:16] Speaker 02:
What do you think about Council's suggestion that if we do think it's moot, we vacate?

[00:14:22] Speaker 01:
Well, we certainly would like to see the decision kept in place.

[00:14:26] Speaker 01:
We believe strongly it was decided correctly.

[00:14:28] Speaker 01:
You know, there are findings you could make that AFPN's own actions contributed to the demise of its relief.

[00:14:37] Speaker 01:
There's an argument that this, you know... It's an intervening statute.

[00:14:41] Speaker 01:
It is an intervening statute that's the most proximate cause, but AFPM chose the forum that it chose initially knowing about a deadline and knowing that it should have known that this was a clear rate case under Union Pacific.

[00:14:55] Speaker 01:
It's a straight-up application.

[00:14:56] Speaker 01:
The district court recognized that as well as the board.

[00:14:59] Speaker 04:
They have a pending appeal.

[00:15:01] Speaker 04:
their opportunity to seek review is frustrated by the intervening act of a non-party, namely Congress.

[00:15:08] Speaker 01:
Yes, and we would understand if the Court decides to vacate the Board's decision here.

[00:15:13] Speaker 01:
We do think, though, that this is well-plowed ground, so it wouldn't really spawn any new legal consequences for AFPM to say that under Union Pacific, a case in which the only manifestation of the alleged practice is a rate level

[00:15:28] Speaker 01:
then, you know, it has to be decided as a rates case.

[00:15:32] Speaker 01:
But if the court were to, you know, not decide that this is moot, we think that this was properly decided and the court should affirm because this was a very straightforward application of on-point precedent from this court in Union Pacific.

[00:15:46] Speaker 01:
It's, you know, as the board properly found,

[00:15:49] Speaker 01:
The only thing that, the only conduct, the only manifestation of what AFPM was challenging was a rate, a increased base rate for line haul transportation.

[00:16:02] Speaker 04:
It's a little bit different though to the extent the challenge in Union Pacific was to the amount of the charge, right?

[00:16:11] Speaker 01:
Yes, it was, but the Commission in the case that this court set aside in Union Pacific, the Commission made essentially the exact same arguments that AFPM is arguing here.

[00:16:22] Speaker 01:
It said,

[00:16:23] Speaker 01:
We believe that even though the only practice here is the charging of higher base rates, this was an attempt with an underlying purpose to avoid the transportation of hazardous materials in compliance with the regulatory regime.

[00:16:39] Speaker 04:
But the statement that I was pressing your friend on

[00:16:43] Speaker 04:
which seems to support your theory, but nonetheless, it comes in the context of a very different case.

[00:16:53] Speaker 04:
And couldn't there be at least a litigable, arguable issue about whether level of rates, which the key phrase from Union Pacific means anything about rates or means level of rates.

[00:17:10] Speaker 04:
It's a challenge to the quantum.

[00:17:12] Speaker 04:
And you didn't get into that.

[00:17:16] Speaker 04:
It may ultimately be that the logic, the holding or the logic of Union Pacific covers both kinds of cases, but you didn't address that before the agency.

[00:17:26] Speaker 04:
Your theory was just Union Pacific were bound, end of case.

[00:17:30] Speaker 01:
Well, we addressed it in the sense that in trying to distinguish rail field surcharges and what happened there, I mean, that was a situation involving a component of a rate.

[00:17:44] Speaker 01:
But what was deemed the unreasonable practice there, as the board found here, was a misrepresentation.

[00:17:51] Speaker 01:
There was conduct other than the mere charging of a rate.

[00:17:56] Speaker 01:
If the only conduct, if the only manifestation is the charging of a particular rate or a rate component that affects the rate level under Union Pacific, that would be barred.

[00:18:07] Speaker 01:
But in real field surcharges, we said no, no.

[00:18:09] Speaker 01:
What happened here, the punishment or the conduct that we're punishing or redeeming in unreasonable practice was the application of a misleading label.

[00:18:19] Speaker 01:
If the carriers had not separately set aside, separately calculated it, and called it a fuel surcharge, which suggests that the calculation was to recoup movement-specific fuel costs when actually it had nothing to do with that, there was no reasonable relationship to recouping fuel costs, then this would have been a straight-up application of Union Pacific.

[00:18:42] Speaker 01:
There was other conduct, other manifestation besides just

[00:18:47] Speaker 01:
a charge or a overall base rate.

[00:18:50] Speaker 01:
Whether it was the overall base rate, whether it is simply a separately identifiable surcharge or identified surcharge, it all affects the level of the rate.

[00:19:00] Speaker 01:
And under the statute, carriers may set any rate unless there's a market dominance determination.

[00:19:07] Speaker 04:
What do you do with the other argument, which is let's assume you're right about rate is rate and it doesn't matter if it's a legal argument or a quantum argument.

[00:19:18] Speaker 04:
You still have this further point that Union Pacific is pre-chevron.

[00:19:23] Speaker 04:
We do have some pretty strong language saying that the interpretation that this court adopted is the best reading of the statute, but we don't quite have in explicit Chevron terms that that is the only one that could be permissible.

[00:19:43] Speaker 01:
Well, yeah.

[00:19:44] Speaker 01:
I mean, it was pre... Union Pacific was pre-brand X, so the court obviously didn't know it needed to specify this as the only reading.

[00:19:51] Speaker 04:
Which may mean you have some wiggle room under brand X. You know, it may.

[00:19:55] Speaker 01:
However, we think... I personally would not want to be the one standing in front of you telling you that the agency should have completely disregarded your precedent.

[00:20:06] Speaker 01:
I mean, that's not something the agency takes very lightly.

[00:20:09] Speaker 01:
We do believe that the board adequately, more than adequately addressed the Brandex argument, which AFPM itself relegated to a footnote in its reply, a lengthy convoluted footnote, but it was a footnote.

[00:20:23] Speaker 01:
And we did address it.

[00:20:25] Speaker 01:
The board said it cited to a recent decision very similar to AFPM's case called the CF Industries case where we said that Union Pacific precluded an unreasonable practices finding where

[00:20:38] Speaker 01:
As here, there was no other manifestation of the alleged practice except a higher undivided base rate.

[00:20:45] Speaker 01:
So we cited that case.

[00:20:48] Speaker 01:
We said AFPM has not persuaded us that we should depart from that.

[00:20:52] Speaker 01:
We have been following Union Pacific.

[00:20:55] Speaker 01:
For the last 30 years, it's been on the books.

[00:20:58] Speaker 01:
And we didn't feel the need to elaborate any further when there's directly on point precedent.

[00:21:04] Speaker 04:
And is the agency practice, if we look at agency practice since Union Pacific, would we find a lot of cases like this one where the challenger says,

[00:21:17] Speaker 04:
I am not challenging the amount.

[00:21:19] Speaker 04:
I am challenging the legal permissibility of this kind of consideration.

[00:21:24] Speaker 04:
Or is this one new?

[00:21:26] Speaker 01:
It's a fairly new issue.

[00:21:28] Speaker 01:
But with that said, what opposing counsel seems to be stressing is the improper purpose underlying the charge here.

[00:21:38] Speaker 01:
They're challenging the mere existence of the charge.

[00:21:41] Speaker 01:
the surcharge they call it, but really it's an undivided base rate that's higher.

[00:21:46] Speaker 01:
But they're saying that the problem is the purpose.

[00:21:48] Speaker 01:
Well, that didn't matter in Union Pacific.

[00:21:51] Speaker 01:
The Commission actually based its decision to find it as an unreasonable practice on the fact that the purpose of the railroads was to try to avoid their common carrier obligation.

[00:22:02] Speaker 01:
The mutation of nuclear waste

[00:22:03] Speaker 01:
in accordance with a federal regular safety regime.

[00:22:07] Speaker 01:
That argument obviously didn't fly and this court rejected that argument and said, you know, the purpose, the intent here is irrelevant when all that you're actually doing is, all that the carrier is actually doing is charging a particular rate.

[00:22:26] Speaker 01:
In addition, we also think that Conrail is obviously inapplicable.

[00:22:29] Speaker 01:
I know counsel didn't address that, but that's the primary difference here between Conrail and the Union Pacific case.

[00:22:35] Speaker 01:
In Conrail, the unreasonable practice was the imposition of mandatory safety restrictions in addition to a rate increase.

[00:22:43] Speaker 01:
But it wasn't that rate increase that was examined, it was the safety requirements.

[00:22:47] Speaker 01:
And in Union Pacific, where the railroads decided not to impose specific safety requirements per se,

[00:22:54] Speaker 01:
Lumped it into a higher base rate Union Pacific said that that we can't review the statute as to the divide between rates and practices the statute is clear at least to the effect that if it all is happening is a rate level is changing that has to be decided under the board's

[00:23:13] Speaker 01:
rate reasonableness practices, and it has to meet that threshold requirement of market dominance.

[00:23:18] Speaker 01:
Congress was very clear that its intent was to allow carriers to set any rate free from interference by the board or the commission at the time.

[00:23:29] Speaker 01:
They wanted the railroads to return to financial health.

[00:23:32] Speaker 01:
They wanted them to be able to set rates in response to market conditions and not have too many limitations on that except the market dominance requirement.

[00:23:44] Speaker 01:
And if this court has no further questions, I would request that you affirm.

[00:23:48] Speaker 02:
Thank you very much.

[00:24:00] Speaker 03:
I think my friend on the other side has given a very strong explanation of what a board could reason, perhaps on remand, but none of what was said from the podium today is in the board's decision.

[00:24:12] Speaker 03:
And it's of course a bedrock part of this court's practice that you can't affirm an order on the basis of things that aren't in the board's order.

[00:24:19] Speaker 03:
As I think the board admitted, our argument is a fairly new one.

[00:24:23] Speaker 03:
And in the face of that argument, as you pointed out in your questioning, Judge Katz's, you could have an argument that Union Pacific and the level of the rate discussed there could apply to everything relating to the rate.

[00:24:34] Speaker 03:
Or you could say it just means when you're challenging

[00:24:36] Speaker 03:
you know, $1,000 or $900 or $500.

[00:24:39] Speaker 03:
And in the face of that ambiguity, where we made a strong argument that the rate reasonableness procedures that the board has would essentially be an exercise in futility because they don't actually address the legal argument we're making, the board had to give a reasoned explanation for why it was going to go one way as opposed to the other.

[00:24:57] Speaker 03:
But all it said in its order was, Union Pacific controls, there's nothing we can do for you.

[00:25:02] Speaker 03:
And the only case they cited was a case where they said the same thing.

[00:25:04] Speaker 03:
They've never addressed our policy.

[00:25:06] Speaker 04:
If the question before us involves the scope of the holding in Union Pacific though, as opposed to the proper line under the statute, isn't that something we would just decide

[00:25:23] Speaker 04:
on our own.

[00:25:24] Speaker 04:
I mean, they're either right or they're wrong that Union Pacific extends to this kind of claim.

[00:25:31] Speaker 04:
But it's a question about the meaning of our decision.

[00:25:33] Speaker 04:
Would that be something we remand for them to do a state farm analysis of?

[00:25:41] Speaker 03:
I don't think it's, you know, I don't think they, it's not the interpretation of the holding, but it's a separate argument, which we also made, which is, even if you think that's the holding, you have a discretion to deviate it, and you should, and that they have to give a state fund explanation for.

[00:25:55] Speaker 03:
Let me address the remedy real quick.

[00:25:57] Speaker 03:
I think if the court, very quickly, if the court concludes this case is moot, there is nothing that AFPM has done that created the mootness in this case.

[00:26:05] Speaker 03:
It's litigated this case on a normal timeline in all the forums.

[00:26:08] Speaker 03:
Thank you.

[00:26:10] Speaker 02:
Thank you both, cases submitted.