I. DISUSSION

A. Whether Maintaining the Public Utility Status of the Wine Train Is Contrary to Law

St. Helena contends that the decision errs in concluding that the Wine Train is a public utility. In support of this contention, St. Helena argues that the Wine Train's operations are indistinguishable from other excursion trains, sightseeing vessels, and sightseeing buses. On the contrary, as we pointed out in D.03-01-042, the record in this case does not support the determination made in D.01-06-042 that the Wine Train's operations are indistinguishable from other non-public utility excursion services. That is precisely the reason we reversed D.01-06-042. (D.03-01-042 at pp. 13-15.)

St. Helena did not present any new facts regarding the Wine Train's passenger operations. The proposed project that Commission approved in 1996, as reflected in the FEIR (certified in D.93-07-046), and as authorized by D.96-06-060 and D.96-11-024, is not the same as California Western Railroad's excursion service known as the "Skunk Train." The Wine Train project envisioned up-valley stops and connections with buses that would transport passengers to wineries and other points of interest. Moreover, the environmental documents indicated that the environmentally preferred alternative was a phased project, beginning with four trains per day, with winery stops along the way and at least one up-valley stop, with the potential advantage of displacing automobile traffic.

The main similarity between the Wine Train and other excursion services is that they all may fairly be designated as a "recreational" services. That fact alone, however, is not dispositive of public utility status. Prior cases on this issue also include an analysis of whether the transportation in question involves a continuous loop or a round trip, as compared to point to point transportation. (See, e.g., Re California Western Railroad, Inc. (1998) 78 Cal.P.U.C.2d 292; Western Travel Plaza, Inc. (1981) 7 Cal.P.U.C.2d 128; and Golden Gate Scenic Steamship Lines, Inc. v. Public Utilities Commission (1962) 57 Cal.2d 373.)⁴ Here, the 1996 decisions indicate that the project as approved would involve point to point transportation.

St. Helena further alleges that in D.03-01-042 (at page 16), the Commission simply deems the Wine Train to constitute transportation, and does not distinguish between the Wine Train's service and any other excursion service. St. Helena ignores the fact that D.03-01-042 maintains the status quo that existed prior to St. Helena's petition for modification, which was based on the record in this case from its inception through the 1996 decisions. The issue here is whether St. Helena has presented any facts demonstrating that the proposed Wine Train project is so similar to other excursion services that, as a matter of law, the Commission does not have jurisdiction over the Wine Train's passenger services. St. Helena has not done so.

St. Helena criticizes the reasoning of the decision in a number of other respects. In particular, St. Helena disputes that relevance of footnote 12 in D.03-01-042, which states that the ICC determined in 1991 that the Wine Train's future operations would constitute "transportation" under federal law. St. Helena argues that the ICC could not have contemplated the Wine Train's operations as constrained by D.96-06-060. St. Helena further contends that the Commission repeats this "legal error" on page 19 of D.03-01-042 when it notes that St. Helena originally asserted in 1988 that the Wine Train was a public utility. (See St. Helena's Application for Rehearing at p. 4.) St. Helena contends that it is irrelevant whether the Wine Train's operations in 1988, or 1991, would have constituted public utility activities. St. Helena continues: "What matters is whether the Wine Train's operations as authorized by D.96-06-060 constitute public utility activities." (St. Helena's Application for Rehearing at p. 4.)

While St. Helena is technically correct that the most pertinent decisions are those made in 1996, there is nothing to show that the nature of the Wine Train's passenger service changed over the years. It was always considered to be "recreational." Nevertheless, no party or agency suggested that the Wine Train was not a regulated entity until St. Helena filed its complaint in 1999 (C.99-01-020).

After noting that D.03-01-042 concludes that St. Helena failed to establish grounds for a petition for modification, St. Helena states: "In effect the Commission is saying that there is no remedy for its legal error in deeming the Wine Train a public utility." (St. Helena's Application for Rehearing at p. 4.) St. Helena points to its complaint, filed in 1999, which alleged that the Wine Train was not operating as a public utility. (See C.99-01-020.) That complaint was dismissed on the ground that St. Helena was seeking an advisory opinion. (D.99-08-018 at p. 6.) Thus, St. Helena complains that the Commission apparently believes that the jurisdictional issue cannot be raised by complaint or by petition for modification.

The issue of the dismissal of St. Helena's complaint is addressed in our order disposing of St. Helena's application for rehearing of D.99-08-018, that we are also issuing today. Regarding the petition for modification, even when St. Helena was granted the relief it was requested, in D.01-06-034, the Commission found that St. Helena had failed to make a case that the underlying facts had changed in any material way (D.01-06-034 at p. 8) and had failed to establish the factual predicate for granting a petition for modification (D.01-06-034 at p. 16, Conclusion of Law No. 1). In D.03-01-042, the Commission simply reiterates that finding. In any event, St. Helena was permitted to raise the jurisdictional issue and the Commission addressed the merits of that issue in both D.01-06-034 and D.03-01-042.

B. Whether the Decision Errs in Failing to Include Findings of Fact and Conclusions of Law

St. Helena alleges that the decision errs in failing to include findings of facts and conclusions of law as required by Public Utilities Code section 1705. Section 1705 provides that a decision issued after a hearing "shall contain, separately stated, findings of fact and conclusions of law by the commission on all issues material to the order or decision."

Decisions on applications for rehearing do not generally require findings of fact and conclusions of law. However, in this case, as St. Helena argues, the decision granting rehearing also denied St. Helena's petition for modification. Thus, in reversing the original decision granting the petition for modification, the decision disposes of the petition. While we do not necessarily conclude that findings of fact and conclusions of law are required under these circumstances, we have decided that we should modify D.03-01-042 to include such findings and conclusions.