II. DISCUSSION

A. Whether the Commission's 1996 Decision Approving the Wine Train and Ordering Mitigation Was Dependent on the Wine Train's Public Utility Status

At the outset, we will address an issue that, although referenced only briefly by the parties, is significant to our regulation of the Wine Train. In D.01-06-034, we stated that, according to St. Helena, the issue of the Commission's jurisdiction over the Wine Train as a public utility "was immaterial to D.96-06-060, which was predicated on the Commission environmental review authority pursuant to Public Resources Code Section 21080.4." (D.01-06-034, mimeo, at p. 9, quoting St. Helena's Reply Brief, filed Aug. 31, 2000, at p. 2, fn.1.) While we did not expressly adopt that argument, the decision appears to assume that, even if our assertion of jurisdiction over the Wine Train as a public utility was erroneous, we still had authority to approve the project pursuant to CEQA. Upon further analysis, we now conclude that approval of the project and the mitigation measures adopted D.96-06-060 were and are dependent on the Wine Train's public utility status. This is based on the language of the Hansen Bill, its legislative history, the statutory framework of CEQA, and the history of this case.

The Hansen Bill amended the CEQA statute as follows:

(a) Notwithstanding paragraph (10) of subdivision (b) of Section 21080, this division applies to a project for the institution of passenger rail service on a line paralleling Sate Highway 29 and running from Rocktram to Krug in the Napa Valley. With respect to that project, and for the purposes of this division, the Public Utilities Commission is the lead agency.

(b) It is the intent of the Legislature in enacting this section to abrogate the decision of the California Supreme Court "that Section 21080, subdivision (b) (11), exempts Wine Train's institution of passenger service on the Rocktram-Krug line from the requirements of CEQA" in Napa Valley Wine Train, Inc. v. Public Utilities Com., 50 Cal. 3d 370.

(c) Nothing in this section is intended to affect or apply to, or to confer jurisdiction upon the Public Utilities Commission with respect to, any other project involving rail service.

(Pub. Resources Code § 21080.4.)

The Hansen Bill expressly states that the intent of the legislature in enacting the bill was to abrogate the decision of the California Supreme Court in Napa Valley Wine Train v. Public Utilities Commission, supra.⁹ The Supreme Court determined that the Wine Train project was exempt from CEQA pursuant to Public Resources section 21080(b)(10), a statutory exemption for passenger rail service, and did not reach the jurisdictional issue. Thus, the purpose of the bill was to make CEQA applicable to the Wine Train. However, the language of the bill does not indicate any clear intent to confer jurisdiction on the Commission.

Moreover, it is well established that CEQA does not grant an agency new powers independent of the powers granted by other laws. "CEQA is intended to be used in conjunction with discretionary powers granted to public agencies by other laws. . . . CEQA does not grant an agency new powers independent of the powers granted to the agency by other laws." (CEQA Guidelines § 15040(a) and (b).) As stated in Friends of Davis v. City of Davis (2000) 83 Cal.App.4^th 1004, 1014-1015:

The Guidelines recognize that the application of CEQA to a local ordinance is dependent upon the scope and interpretation of the ordinance rather than vice versa. . . . The Guidelines note that CEQA does not grant an agency new powers independent of the powers granted by other laws. [Citation.] Rather, the exercise of an agency's authority under a particular law must be within the scope of the agency's authority provided by that law and must be consistent with express or implied limitations provided by other laws.

CEQA only applies to "discretionary projects proposed to be carried out or approved by public agencies." (Pub. Resources Code § 21080(a).) Thus, unless a government agency has independent discretionary powers over a project, CEQA is not applicable. Although the agency with primary responsibility for carrying out or approving the project is usually designated as the lead agency, such designation does not bestow any approval authority on the agency. Rather, the lead agency designation is a result of the agency's approval authority. "A lead agency is the California government agency that has the principal responsibility for carrying out or approving a project and therefore the principal responsibility for preparing CEQA documents." (CEQA Deskbook, 1999 Edition, at p. 13. Emphasis added.)

This interpretation of CEQA is supported by the Supreme Court's decision in Napa Valley Wine Train v. Public Utilities Commission, which states that the reason complainants asked the Commission to assert jurisdiction was "to fulfill a statutory predicate for ordering the Wine Train to comply with CEQA." (Napa Valley Wine Train v. Public Utilities Commission, supra, 50 Cal.3d at p. 375, fn. 6.) Although Public Resources Code section 21065 sets out a broad definition of the term "project," "no statutory provision makes CEQA's substantive provisions applicable to a private project unless the project is to be `approved by [a] public agenc[y].' " (Napa Valley Wine Train v. Public Utilities Commission, supra, 50 Cal.3d at p. 375, fn. 6, quoting Pub. Resources Code § 21080(a).) As applied here, CEQA would not be applicable to the Wine Train project at all if the Commission did not have some discretionary authority to approve the Wine Train's proposed passenger service.

Because the Hansen Bill was enacted as an amendment to the CEQA statute, it is not reasonable to interpret it as implicitly granting the Commission jurisdiction over the Wine Train, the authority to approve the Wine Train, or the authority to order mitigation. If the Legislature had intended to grant the Commission jurisdiction over the Wine Train, it could have done explicitly in an amendment to the Public Utilities Code.

B. Whether the Decision Violates Public Utilities Code Section 1705 By Making Findings For Which There Is No Substantial Evidentiary Support

Wine Train contends that the decision violates Public Utilities Code section 1705 by making findings for which there is no substantial evidentiary support. In particular, Wine Train objects to the decision's findings that the Wine Train's passenger service does not constitute point-to-point transportation between cities, the Wine Train's passenger service cannot be distinguished from the Skunk Train, and the public utility purpose of the proposed St. Helena station is de minimus.

We find some merit to the Wine Train's argument. The decision concludes, "St. Helena has failed to make a case that the underlying facts have changed in any material way." (D.01-06-034, mimeo, at p. 8.) The proposed project approved by the Commission in D.96-06-060 contemplated operations between Napa and St. Helena, with stops in North Napa, Yountville, Rutherford and St. Helena. (D.96-06-060, 66 Cal. P.U.C.2d at p. 607.) The Commission also declared "the interurban operation of Wine Train between Napa and St. Helena, including the stops described in the Proposed Project, to be one of statewide, rather than merely municipal concern." (D.96-06-060, 66 Cal. P.U.C.2d at pp. 610, 631, Finding of Fact No. 8.)

The environmentally preferred alternative was a phased project, beginning with four trains per day¹⁰ and implementation of winery stops along the right-of-way and a minimum of one up-valley stop, with shuttle service to wineries." (D.96-06-060, 66 Cal. P.U.C.2d at p. 608.) That alternative was responsive to surveys indicating that winery visitors and train riders 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. According to the FEIR, the phased project would allow testing of the Wine Train as a mode of transportation, "which can best be tested after up-valley stops are implemented." (FEIR, Vol. I, March 1993, at p. S-7.) The phased project "would allow train operations to increase as monitoring information substantiates that impacts do not exceed thresholds of significance established in the EIR . . . ." (FEIR, Vol. I, March 1993, at p. S-7.) In contrast, the FEIR concludes that the limited service under the settlement agreement (three trains a day with no stops) would not have the potential advantage of displacing automobile traffic. (D.96-06-060, 66 Cal. P.U.C.2d at p. 608.)

There is little in the record to support the finding that the proposed project, which contemplated up-valley stops and use of the train as an alternative to automobile travel, is not point-to-point transportation. The decision describes the Wine Train's passenger service as a "round trip excursion service," traveling "from point of departure in a continuous loop back to the same point" (D.01-06-034, mimeo, at pp. 11, 14.) However, as stated above, the proposed project contemplates stops. Moreover, the fact that the Wine Train is described as a recreational, excursion service does not mean that it does not function as a public utility. The Wine Train has always been described as recreational. Indeed, in asserting that the Wine Train was not interstate transportation, both the Commission and St. Helena (as well as other local entities and citizen groups) argued before the ICC that the Wine Train was an excursion service for tourists. (Napa Valley Wine Train, Inc. - Pet. for Declaratory Order (1991) 7 I.C.C.2d 954, 1991 ICC LEXIS 195, *16-*19.) Similarly, the FEIR describes the Wine Train as a "recreational transportation system" that "could serve as an alternative to private automobiles for persons touring the Napa Valley." (FEIR, Vol. I, March 1993, at p. S-3.) The designation of the Wine Train as a recreational excursion service did not preclude the Commission from asserting jurisdiction over it as a public utility in 1988, nor in 1996.

D.01-06-034 is largely based on the finding that the Wine Train's excursion service cannot be distinguished from the Skunk Train in any meaningful way. (D.01-06-034, mimeo, at pp. 11-14, 16, Finding of Fact 1.) We conclude that the record does not support this finding. First, because the application to deregulate the Skunk Train was unopposed, no factual record was developed in that case. (See Re California Western Railroad, Inc. [D.98-01-050] (1998) 78 Cal.P.U.C.2d 292.) Second, as stated above, D.96-06-060 explicitly found that "the interurban operation of Wine Train between Napa and St. Helena, including the stops described in the Proposed Project, to be one of statewide, rather than merely municipal concern." (D.96-06-060, 66 Cal. P.U.C.2d at pp. 610, 631, Finding of Fact No. 8.) There are no such findings in the Skunk Train decision.

Similarly, we find that the record does not support that finding that the public utility purpose of the proposed St. Helena station is de minimus. (See D.01-06-034, mimeo, at pp. 14-15, 16, Finding of Fact 4.) Among other things, this finding ignores the significance of an up-valley stop in the FEIR's designation of the environmentally preferred alternative.

C. Whether Wine Train's Proposed Passenger Service Constitutes Regulated Transportation

The Wine Train contends that the decision violates Public Utilities Code sections 211 and 216 by finding that the Wine Train's passenger service does not constitute regulated transportation. Public Utilities Code section 211 defines a "common carrier" as "every person and corporation providing transportation for compensation to or for the public or any portion thereof," and includes "every railroad corporation . . . operating for compensation with this state." (Pub. Util. Code § 211(a).)¹¹ Public Utilities Code section 216(a) defines a "public utility" to include "every common carrier, . . . where the service is performed for . . . the public or any portion thereof."

Based on the record before us, we find that there are no grounds for modifying our prior decisions. The proposed Wine Train passenger service, as set forth in the FEIR and approved in D.96-06-060, constitutes point-to-point transportation under Golden Gate Scenic Steamship Lines, Inc. v. Public Utilities

Commission (1962) 57 Cal.2d 373.¹² Our approval of the project and order concerning mitigation was based on the operation of the Wine Train as a common carrier railroad corporation pursuant to Public Utilities Code section 211 and a public utility pursuant to Public Utilities Code section 216.

D. Whether the Decision Unlawfully Reverses Prior, Final Adjudicatory Determinations in Violation of Public Utilities Code sections 1708 and 1709

The Wine Train argues that D.01-06-034 unlawfully reverses prior, final adjudicatory determinations and unlawfully gives retroactive effect to such revised findings in violation of Public Utilities Code sections 1708 and 1709.

Public Utilities Code section 1708 provides:

The Commission may at any time, upon notice to the parties, and with opportunity to be heard as provided in the case of complaints, rescind, alter, or amend any order or decision made by it. Any order rescinding, altering, or amending a prior order or decision shall, when served upon the parties, have the same effect as an original order or decision.

Public Utilities Code section 1709 provides: "In all collateral actions or proceedings, the orders and decisions of the commission which have become final shall be conclusive."

The decision analyzes the Commission's authority to modify its prior decisions on the basis of City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388 ("Padilla"). According to Padilla:

Where a court has jurisdiction over the parties and determines that it has jurisdiction over the subject matter, the parties cannot collaterally attack the judgment on the ground that the court did not have jurisdiction over the subject matter, unless the policy underlying the doctrine of res judicata is outweighed by the policy against permitting the court to act beyond its jurisdiction.

(Padilla, supra, 23 Cal.App.3d at p. 399, quoting Restatement of Judgments,§ 10.) However, because the Commission has continuing jurisdiction to modify its decisions pursuant to Public Utilities Code section 1708, Padilla is not applicable. As stated by the California Supreme Court:

It is true that the commission's decisions and orders ordinarily become final and conclusive if not attacked in the manner and within the time provided by law. [Citations.] This is not to say, however, that such a decision is res judicata in the sense in which that doctrine is applied in courts. [Citations.] The commission has continuing jurisdiction to rescind, alter or amend its prior orders at any time.

(Sale v. Railroad Commission (1940) 15 Cal.2d 612, 616 [interpreting the predecessor to Public Utilities Code section 1708].) Under the same reasoning, section 1709 does not apply when the Commission modifies its own decisions. Rather, section 1709 gives conclusive effect to final Commission decisions in subsequent court proceedings.¹³

The Commission's authority to modify its decisions is discretionary. We have previously stated that nothing in the language of section 1708 prohibits the Commission from revisiting either a legislative or adjudicatory decision, if justified by the circumstances. (See, e.g., Re United Parcel Service, Inc. [D.97-04-049] 71 Cal.P.U.C.2d 714, 720, petition for writ of review denied in Todd-AO Corporation v. Public Utilities Commission, August 20,1997, S061412 [Commission reversed original decision after Supreme Court had denied writ where issue was pending in federal court].) However, the Commission has viewed its authority restrictively, particularly in the case of adjudicatory decisions.

Prior decisions have concluded that, absent extraordinary circumstances, Public Utilities Code section 1708 does not permit the Commission to modify quasi-judicial decisions. (See, e.g., Golconda Utilities Company (968) 68 Cal.P.U.C. 296; Laguna Hills Water Company (1980) 3 Cal.P.U.C.2d 373; Application of PG&E Co. (1980) 4 Cal.P.U.C. 139.) Even in cases involving the Commission's quasi-legislative power, the Commission has stated that it may only modify or rescind a decision if (1) new facts are brought to the attention of the Commission, (2) conditions have undergone a material change, or (3) the Commission proceeded on a misconception of law or fact. (See, e.g., Application of So. Pac. Co. 70 Cal.P.U.C.150, 1969 Cal. PUC LEXIS 436; Cal. Manufacturers Assn. v. Cal. Trucking Assn. (1971) 72 Cal.P.U.C. 442; Winton Manor Mutual Water Co. v. Winton Water Co. (1978) 84 Cal.P.U.C. 645.)

D.01-06-034 concludes that St. Helena has failed to make a case that the underlying facts have changed in any material way. (D.01-06-034, mimeo, at p. 8.) Nevertheless, that decision modified our 1996 decisions, largely based on our decision in Re California Western Railroad, Inc. (1998) 78 Cal.P.U.C.2d 292, in which we found that the "Skunk Train" is not public utility. We now believe that that decision was in error and not based on the record in this case. Moreover, we recognize that the Wine Train has relied on the Commission's 1996 decisions, which approved the Wine Train's passenger service, on the condition that the Wine Train complied with numerous measures to mitigate potential environmental impacts. (See D.96-06-060, 66 Cal.P.U.C.2d 633, Ordering Paragraph 1.)

Finally, we note that St. Helena was one of the parties that initiated the complaint against the Wine Train. In 1988, St. Helena claimed that the Wine Train's proposed passenger service was subject to the Commission's regulatory jurisdiction. (Napa Valley Wine Train v. Public Utilities Commission, supra, 50 Cal.3d at p. 375.) St. Helena specifically alleged that the Wine Train was a common carrier and a public utility pursuant to Public Utilities Code section 216. St. Helena asserted that the Wine Train was subject to CEQA pursuant to Rule 17.1 of the Commission Rules of Practice and Procedure, which applies to CEQA projects "for which Commission approval is required by law." St. Helena also contended that the Wine Train was violating various provisions of the Public Utilities Code, the Commission Rules of Practice and Procedure, CEQA, and the Federal Railroad Safety Act ("FRSA"). (See Complaint for Violations of Public Utilities Codes, etc., filed by City of St. Helena, et al., March 7, 1988, at pp. 7-10; see also City of St. Helena, et al. v. Napa Valley Wine Train, Inc. [D.88-07-019] (1988) 28 Cal. P.U.C.2d 352, 1988 Cal. PUC LEXIS 364, *5.)

⁹ This is also supported by the bill's legislative history. (See, e.g., Assembly Committee on Natural Resources, June 18, 1990 hearing, at p. 1 ["According to the author's office, this bill has been introduced to overturn a state Supreme Court decision . . . wherein the court found that a project called the Napa Valley Wine Train was exempt from CEQA."].)