Comments on Draft Decision

The draft decision of the ALJ was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 7.7 of the Rules of Practice and Procedure. Comments were filed on ___________________________, and reply comments were filed on _____________________________.

Findings of Fact

1. Wine Train's round trip excursion service cannot be distinguished from CWRR's Skunk Train excursion service in any meaningful way.

2. Wine Train's proposal to disembark tourists up-valley for more sightseeing and/or to connect with day trip shuttle tours is not a type of regular route, point-to-point transportation between cities, commuter service, or home-to-work service.

3. Wine Train's passenger excursion services does not constitute regulated transportation and in providing such service, Wine Train is not functioning as a public utility.

4. The incidental public utility purpose, if any, of the proposed St. Helena station is de minimis.

5. Wine Train's freight service - however limited its nature - is common carrier transportation of property over the interstate rail network.

6. Should Wine Train disembark Amtrak passengers at Yountville, Rutherford, or St. Helena in future, such service will constitute intrastate common carriage of persons.

Conclusions of Law

1. St. Helena has not established the factual predicate for the granting of a petition for modification under Rule 47(b).

2. Consistent with San Francisco v. Padilla, supra, res judicata does not bar our review of subject matter jurisdiction determinations made in D.96-06-060 and D.96-11-024.

3. Golden Gate Scenic Steamship Lines and the Western Travel Plaza decisions, supra, discuss ferries and buses, respectively, which provide only unregulated services.

4. Skunk Train, supra, concerns an entity which provides "transportation" of freight and passengers as well as an excursion passenger service.

5. Consistent with Skunk Train and our statutory rail safety obligations, we should require continued safety oversight of all Wine Train's operations.

6. We should grant St. Helena's petition, in part, and modify D.96-06-060 and D.96-11-024 consistent with the discussion in this opinion.

7. No hearing is necessary.

ORDER

IT IS ORDERED that:

1. Decision (D.) 96-11-026 is modified as follows:

a. Delete Ordering Paragraph 1 in its entirety, found at page 7 of D.96-11-024 and at 69 CPUC2d 243, 246:

1. The first sentence of the third paragraph of page 13 of D.96-06-060 is deleted and replaced with the following:

Considering the Harbor Carriers decisions, we view our authority as paramount to that of any local agency affected by operation of the Wine Train. However, local agencies may exercise concurrent jurisdiction over the Wine Train's operations to the extent that that regulation is not inconsistent with the holding of the Commission.

b. Replace Ordering Paragraph 1 with the following:

1. The original text of the third paragraph of page 13 of D.96-06-060 is modified as follows:

Considering the Harbor Carriers and Orange County decisions together, we view our authority in this proceeding as concurrent with that of any local agency affected by operation of the Wine Train. That is, we may approve this project pursuant to CEQA, involving operations by Wine Train between points in Napa Valley, including up-valley stops, with the expectation that a local agency may impose reasonable local ordinances, such as relate to building code restrictions; but such local agency (municipality or other) may not deny,on Wine Train's the right to perform such operations or stops.

c. Under the subsection entitled "II. ALERT APPLICATION" and subtitled "A. Paramount Jurisdiction", delete the last sentence of the first paragraph on page 3 of D.96-11-024 which states "ALERT's arguments are unconvincing", and delete the remainder of the text up to but not including the next subtitle, "B. Overriding Considerations", at page 6. This text is also found at 69 CPUC2d 243, 244-246.

d. Under the subsection entitled "II. ALERT APPLICATION" and subtitled "A. Paramount Jurisdiction", add a final sentence to the first (and only) paragraph on page 3 of D.96-11-026, as follows: "ALERT's arguments convince us to modify Ordering Paragraph 1 of D.96-06-060."

2. The schedules and fares for the excursion passenger service provided by Napa Valley Wine Train, Inc.) shall not be subject to regulation by the Commission.

3. The safety of the operation of all services, including excursion passenger service, shall remain subject to regulation by the Commission.

4. This proceeding is closed.

This order is effective today.

Dated _______________________, at San Francisco, California.