III. CONCLUSION

For all of the foregoing reasons, the Commission should deny rehearing, but modify the decision to include findings of fact and conclusions of law on the denial of St. Helena's petition to modify the 1996 Wine Train decisions.

1. D.03-01-042 is modified by adding the following text at the end of the section entitled "Conclusion" on page 20:

1.) The Wine Train's proposed project that we authorized in D.96-06-060 and D.96-11-024 included at least one up valley stop.

2.) The Final Environmental Impact Report for the project 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.

3.) According to D.96-06-060 and D.96-11-024, the Wine Train's passenger service is regulated transportation and the Wine Train is functioning as a public utility.

4.) St. Helena has failed to demonstrate that the underlying facts have changed in any material way, nor that the Wine Train is pursuing a project different from the one we approved in 1996.

5.) St. Helena has not presented facts showing that the Wine Train's passenger service is indistinguishable from the Skunk Train.

6.) The Commission's authority to reverse prior decisions is governed by Public Utilities Code section 1708.

Conclusions of Law

1.) The adoption of D.96-06-060 and D.96-11-024, and the imposition of mitigation measures, was dependent on the public utility status of the Wine Train's passenger service.

2.) Section 1708 is an exception to the doctrine of res judicata and allows us to modify our prior decisions.

3.) Our authority to modify decisions under section 1708 is discretionary.

4.) In the case of adjudicatory or quasi-adjudicatory decisions, upon which parties have relied to their detriment, our prior cases indicate that we will not modify such decisions absent a showing extraordinary circumstances, changed facts or circumstances, or where we have proceeded under a misconception of law.

5.) St. Helena has failed to establish the factual predicate for a petition for modification under Rule 47(b) of the Commission's Rules of Practice and Procedure.

6.) St. Helena has failed to establish grounds for modifying D.96-06-060 and D.96-11-024, which were based on the status of the Wine Train as a regulated public utility under Public Utilities Code sections 211 and 216.

7.) St. Helen's petition for modification should be denied.

2. St. Helena's application for rehearing of Decision 03-01-042, as modified, is denied.

This order is effective today.

Dated October 2, 2003 at San Francisco, California.

CARL W. WOOD

LORETTA M. LYNCH

GEOFFREY F. BROWN

Commissioners

President Peevey reserves the right to file a dissent.

Commissioner Kennedy reserves the right to file a dissent.

C.88-03-016

D.03-10-024

Commissioners Susan P. Kennedy and Michael R. Peevey, dissenting:

We are voting no on these items because we believe the Commission has no business regulating the Napa Valley Wine Train. And that's because we're in the business of regulating transportation, not amusement park rides.

The Napa Valley Wine Train is entertainment; it is recreation; it is a tourist attraction -- it is not real point-to-point transportation. Customers of the Napa Valley Wine Train travel from Point A to Point A, not from Point A to Point B. Customers never get off the train, from the moment they board until the moment they disembark. And when they disembark, they've enjoyed a meal and some beautiful California scenery, and are at exactly the same spot where they began their ride a few hours earlier.

Much like our jurisdiction over hot air balloons, our jurisdiction over the Napa Valley Wine Train defies common sense. In 1990, legislation was enacted (AB 4370-Hansen)amending the Public Resources Code to designate this Commission as lead agency for the preparation of an environmental impact report on the proposed Wine Train project. This measure clearly refrained from designating the Wine Train as a public utility. We completed the EIR and thereby facilitated the construction of this tourist attraction. Our work is done. To the extent rail safety concerns arise, or the possibility of this project providing bona fide passenger service comes to fruition, we have ample jurisdiction to handle those eventualities without insisting that the Wine Train is now a public utility. In our view, for issues of local impact, such as construction of stations along the line that allow tourists to embark or disembark, local jurisdictions should have the strongest voice in determining what further operations the Wine Train may engage in.

Just because the precursor of this Commission is the Railroad Commission doesn't mean that we should regulate what is essentially a restaurant on wheels.

/s/ SUSAN P. KENNEDY /s/ MICHAEL R. PEEVEY

Susan P. Kennedy Michael R. Peevey

Commissioner Commissioner

San Francisco, California

October 2, 2003

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