Discussion

Recently, in D.99-08-018, which dismissed a 1999 complaint by St. Helena, we recounted the history of the Wine Train over the last decade, including developments in the courts and the Legislature and at other regulatory agencies.⁴ We do not repeat that historical recitation in this decision but move directly to the matters raised by St. Helena's petition and addressed in the subsequent pleadings of record.

At the heart of the instant dispute is whether Wine Train may build a station, over St. Helena's objection, near the site of the railroad turn-around Wine Train uses at present at the southern end of St. Helena's downtown district. Specifically, Wine Train wants to construct a passenger loading platform, bathroom facilities, and a parking lot for ten cars and four buses so that it can begin disembarking and boarding passengers in St. Helena. Wine Train has asked the local planning commission for a General Plan Amendment, Zoning Ordinance Text Amendment, Use Permit and Design Review (local permits) so that it can begin construction. It appears from the pleadings that the parties' continuing jurisdictional dispute has stalled the local planning commission's consideration of Wine Train's request. However, Wine Train's Vice President of Railroad Operations states that plans for two other stations are advancing. Permits for the Yountville Station have been obtained and "[o]nce construction is completed in the near future, Wine Train will disembark passengers at Yountville. Plans for the Rutherford Station are in the local permitting process..." (Wine Train Opening Brief, Declaration of Gary Rouse.)

Rule 47 governs the Commission's consideration of petitions for modification of its decisions. Rule 47(b) requires the petitioner to support, by declaration or affidavit, allegations of new or changed facts that warrant the relief requested. Rule 47(d) provides that a petition generally must be filed within one year of the effective date of the decision proposed to be modified; if more than a year has transpired, the petition must explain the reason for the delay.

St. Helena's petition asserts that Wine Train's efforts to secure the local permits subsequent to the issuance of D.96-11-024 have "shown that the true character of its intended operations is to provide excursion service, not public utility service." (Petition, p. 3-4.) St. Helena points to a letter, dated September 25, 1998, submitted to city planning commissioners by Wine Train's counsel which states: "We have obtained data on other excursion train operations in northern California." (Petition, p.4 and Attachment to Declaration.) The letter reviews the station arrangements at several railroads which the Commission does not regulate as public utilities: the Santa Cruz, Big Trees and Pacific Railroad Company; the Roaring Camp and Big Trees Narrow Gauge Railroad; and the Sacramento Railroad Museum.

Wine Train counters that neither its scope of operations nor its plans for a St. Helena station are new, but are the same ones described in Wine Train's initial submission to the local planning commission in November 1996, following issuance of D.96-06-060. (Response, p. 5 and Attachment A.)

We note that an even earlier document, the 1993 final environmental impact report (FEIR), stresses the "recreational" nature of Wine Train's proposed service and plainly states that "commuter service" is not intended.

NVWT is a recreational transportation system that also provides food and beverage service to passengers visiting the Napa Valley. The NVWT could serve as an alternative to private automobiles for persons touring the Napa Valley and visiting local wineries and other visitor attraction in the areas. Bus shuttle service between station locations and participating wineries is proposed for NVWT passengers. Local commuter service is not proposed. (Executive Summary, p. S-3, emphasis added.)

The project approved in 1996 clearly contemplates - but does not require - the eventual construction of one or more up valley stations at Yountville, Rutherford and/or St. Helena and it specifically restricts passenger operations as long as the train remains limited to round trip service from the Napa station. The approved project also authorizes Wine Train to schedule freight service, which it operates along the same right of way (ROW) and track as the passenger service, during periods when passenger service is not operating.

Both D.96-06-060 and the earlier FEIR certification decision, D.93-07-046, discuss the phased nature of the project.⁵

The environmentally preferred project is a "phased project," beginning with implementation of winery stops along the ROW and a minimum of one up-valley station stop, with shuttle service to wineries. This alternative is responsive to the 61% of Wine Train riders surveyed who stated that they would use the train and shuttles as their means of travel in and around Napa Valley if the train were allowed to stop up-valley, whence shuttles would take them to wineries and other visitor attractions. . . . This alternative would provide for continued operation of the brunch, lunch, and dinner trains, with a fourth train as a "pick-up" train for passengers who disembarked up-valley to be transported back to the McKinstry Street Station in Napa.

The phased project is responsive to the primary comments on the DEIR questioning the use of the train as a mode of transportation - which can best be tested after up-valley stops are implemented. The phased project would allow train operations to increase as monitoring information substantiates that impacts do not exceed the thresholds of significance established in the EIR, and/or mitigation measures are in place. (D.96-06-060, 66 CPUC2d at 608-609.)

Factually, nothing has changed since issuance of D.96-11-024, Wine Train argues, and therefore we must dismiss St. Helena's petition summarily, in accordance with Rule 47, with § 1709 (which provides that final Commission decisions are conclusive in all collateral actions or proceedings) and with the common law doctrines of res judicata and judicial estoppel.

We conclude, after review of the parties' factual stipulations and their briefs, that St. Helena has failed to make a case that the underlying facts have changed in any material way. Nor have we any evidence that Wine Train is pursuing a project different from the one already approved.

We turn next to St. Helena's claims that the Commission has asserted authority in excess of its subject matter jurisdiction in portions of D.96-06-060 and D.96-11-024. As Witkin explains, California courts have allowed collateral attack on the basis of several exceptions to the doctrine of res judicata, elucidated in The Second Restatements of Judgments and Conflict of Laws. (See Witkin, 2 Calif. Procedure, Jurisdiction §§338-339, pp. 926-928.) In a case concerning an apartment developer's noncompliance with the municipal building code, the Court of Appeals determined:

All of the exceptions to the res judicata effect of a determination of subject matter jurisdiction, set forth in the Restatements, were applicable here. (1) lack of jurisdiction clear; (2) question one of law; (3) tribunal one of limited jurisdiction (an administrative agency); (4) jurisdictional issue not actually litigated (although record was silent, no party suggested that the matter was raised); (5) strong policy against acting against jurisdiction (policy that administrative agencies keep within their limited jurisdiction). (San Francisco v. Padilla (1972) 23 Cal. App.3d 388, 400.)

St. Helena contends that these same factors are substantially present in this case, though it admits whether the jurisdictional issue was actually litigated is a debatable point. According to St. Helena, though the jurisdictional issue was raised in the complaint and answer (both filed in 1988), "it was immaterial to D.96-06-060, which was predicated on the Commission's environmental review authority pursuant to Public Resources Code Section 21080.4".⁶ (St. Helena opening brief, p. 2, fn. 1.) St. Helena further argues: "Only after the Commission was asked to address the issue of concurrent jurisdiction did the Commission deem the Wine Train a `public utility' in D.96-11-024. However, the holding is not supported by any findings of fact or conclusions of law." (Ibid.)

The Commission "was asked to address the issue of concurrent jurisdiction" at the appeal stage, after D.96-06-060 issued. D.96-06-060 declared the Wine Train's "interurban operation" and the proposed up-valley stops "to be one of statewide, rather than merely municipal concern" and concluded that local agencies may impose "reasonable local ordinances, such as relate to building code restrictions" but "may not deny Wine Train the right to perform such operation or stops". (66 CPUC2d at 610.) As St. Helena contends, the Commission substantially amplified the jurisdictional discussion in D.96-11-024, which denied rehearing, and clearly relied on its general regulatory authority over public utilities and well as the environmental review authority expressly conferred upon it by Public Resources Code Section 21080.4.

We are persuaded that this case indeed comports with the last four of the Restatement's five res judicata exceptions, since St. Helena has made a convincing argument that the ultimate jurisdictional argument had not been litigated directly at the time we issued D.96-06-060. But does this case meet the first exception, i.e., is "lack of jurisdiction clear"?

D.96-06-060 and D.96-11-024 appear to assume this Commission's public utility jurisdiction over the Wine Train without examining the nature of the services offered. Though Wine Train is part of the interstate rail network by virtue of its connection with California Northern Railroad at Rocktram, California (Napa), in 1992 the Interstate Commerce Commission (ICC), which was the predecessor to the Surface Transportation Board, held that that the Wine Train's passenger operations are not subject to its jurisdiction.⁷ ((1991) 7 ICC 2d 954.) Thus, by default, the passenger operations are either unregulated or they are public utility common carriage and therefore, subject to the regulatory jurisdiction of this Commission.⁸

Wine Train's passenger service consists primarily of its excursion sightseeing and dining service. The vast majority of passengers purchase reservations to dine aboard the train during the approximately 2 1/2 hour round trip through the lower Napa Valley from Napa to St. Helena and back. By special advance arrangement, passengers may disembark to visit several wineries with trackside frontage but there are no other authorized stops. As noted in footnote 6, though Wine Train's tariff includes "through ticketing" of Amtrak passengers (who must be transported to Napa by bus from Amtrak's station in Martinez), this service remains prospective until one or more up-valley stops can be made and even then, it will be secondary to the round-trip dining options.

St. Helena argues that the round trip excursion service which constitutes most of Wine Train's business simply is not public utility transportation. As St. Helena points out, under current law, when travelling from the point of departure in a continuous loop back to that same point to provide passengers with a sightseeing tour, neither ferries nor buses are subject to this Commission's regulatory jurisdiction. (See Golden Gate Scenic Steamship Lines, Inc. v. PUC [Golden Gate Scenic Steamship Lines], (1962) 57 C.2d 373, held: CPUC exceeded its jurisdiction in finding that sight-seeing vessels required a CPCN under § 1007; Western Travel Plaza, Inc. et al. [Western Travel Plaza], D.93726, (1981) 7 CPUC2d 128, held: sightseeing is not a public utility passenger stage operation, rehearing denied D.82-09-087, (1982) 9 CPUC2d 681.)

In 1998 the Commission had occasion to reconsider its regulatory policy with respect to passenger excursion services by rail when it examined the Skunk Train tours offered by California Western Railroad (CWRR), a wholly intrastate system which is not part of the interstate rail network. The Commission made several observations about Wine Train:

There are 15 railroad companies in California that provide excursion passenger service of which all but two are not regulated by the Commission. The two railroads regulated by the Commission are CWRR and the Napa Valley Wine Train (Wine Train).

In the case of Wine Train, the Commission regulation involves the monitoring and enforcement of a program to mitigate any adverse impact of the operation of Wine Train on the environment. The Mitigation Implementation Program adopted by the Commission, under Section 21081.6 of the California Environmental Quality Act (CEQA), was part of the assessment of environmental impact of the operation of trains. Under the Mitigation Implementation Program, the Commission specifies, among other things, the hours of the day during which Wine Train can operate. The Commisson does not regulate Wine Train's schedule or rates. (Application of California Western Railroad, Inc. [Skunk Train], D.98-01-050, 1998 Cal. PUC LEXIS 189 *2.)

Skunk Train describes excursion passenger services through the scenic Noyo River Valley which accounts for over 90% of CWRR's operations. The decision relates that these rail sightseeing tours carry passengers from Fort Bragg either all the way to Willits or to Northspur, a midpoint location, and then back to Fort Bragg. After concluding that differences between the Skunk Train's services and those of excursion buses and ferries "is of degree, not kind", the Commission held that Skunk Train's passenger excursion services do not constitute regulated transportation and that in providing such service, CWRR is not functioning as a public utility.⁹ (Id. 1998 Cal. PUC LEXIS 189 *7.) More specifically, the first two ordering paragraphs in Skunk Train provide:

1. The schedules and fares for the excursion passenger service provided by California Western Railroad (CWRR) shall not be subject to regulation by the Commission.

2. The safety of the operation of all services, including excursion passenger service, shall remain subject to regulation by the Commission. (Id. 1998 Cal. PUC LEXIS 189 *9 - *11.)

Thus, Skunk Train tacitly recognizes a distinction between entities which provide only unregulated services (e.g. the ferries in Golden Gate Scenic Steamship Lines and the buses in the Western Travel Plaza decisions) and those which also, even if incidentally, provide "transportation" of freight or passengers in the legally recognized sense.

As we look squarely at the question today, we cannot readily distinguish Wine Train's round trip excursion service from Skunk Train's. All of the passenger services Wine Train offers at present provide round trip sightseeing while dining by rail; such service is "essentially a luxury service, as contrasted with regular route, point-to-point transportation between cities, commuter service, or home-to-work service." (Western Travel Plaza, 7 CPUC2d at 135.) Nor is Wine Train's proposal to disembark tourists up-valley for more sightseeing and/or to connect with day trip shuttle tours a type of regular route, point-to-point transportation between cities, commuter service, or home-to-work service. We return to the observation the Commission made went it denied rehearing of Western Travel Plaza, and repeated again in Skunk Train: "The basic question is whether sightseeing is a public utility function. In the absence of a clear declaration by the Legislature, we conclude that it is not." (9 CPUC2d at 687.) We see no reason to reach a different conclusion with respect to Wine Train and believe it was erroneous for the Commission to do so in D.96-06-060 and D.96-11-024. We must repeat the words of Western Travel Plaza: "[H]aving discovered the error it may not be ignored." (7 CPUC2d at 135.) In the ordering paragraphs, we modify D.96-06-060 and D.96-11-024 consistent with the foregoing discussion.

Our conclusion does not mean that none of Wine Train's operations are public utility functions or that we have no safety oversight of Wine Train's excursion service. However, a direct implication of this conclusion is that the incidental public utility purpose, if any, of the proposed St. Helena station is de minimis.¹⁰

Wine Train's freight service - however limited its nature - remains common carrier transportation of property. Under the ICC Termination Act of 1995 (ICCTA), the Surface Transportation Board has exclusive jurisdiction over the rates, terms and conditions of that freight service. Serving as a participating agency with the Federal Railroad Administration (FRA), the Commission is charged with safety oversight of freight operations (including inspection of rail cars, track, etc.). The Commission also may enforce state safety laws needed to eliminate or reduce local safety hazards as long as they place no undue burden on interstate commerce.¹¹ Should Wine Train disembark Amtrak passengers at Yountville, Rutherford, or St. Helena in future, such service will constitute common carriage of persons and in light of the 1992 ICC holding, will be subject to this Commission's direct regulatory jurisdiction (including existing safety oversight) under the Public Utilities Code and corresponding General Orders.¹²

Skunk Train comments that though the Commission ceased to regulate the schedules and fares of bus sightseeing tours, the buses and their operators remained subject to safety regulations enforced by various state agencies. Accordingly, consistent with § 765.5 Skunk Train requires continued safety regulation of all CWRR's services, including its excursion rail tours, as well as continued regulation of the upkeep and reliability of grade crossings and crossing protection devices under §§ 1201 et seq. We see no reason to treat Wine Train differently in this respect, either, and so will require continued safety oversight of all its operations, consistent with Skunk Train.