
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2095                  NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, ET AL.,                               Plaintiffs, Appellants,                                          v.                                  TOWN OF PLAISTOW,                                 Defendant, Appellee.                                 ____________________                                        Before                                 Cyr, Circuit Judge,                                      _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                           ORDER ON PETITION FOR REHEARING                               Entered October 25, 1995               On  petition  for rehearing,  New Hampshire  Motor Transport          Association  has expanded  its reliance  on an  agency regulation          touched upon  lightly at one point  in the original  brief.  This          regulation of the Department of Transportation states that access          review processes adopted  by the state  shall provide inter  alia                                                                _____  ____          for "denial  of access to  terminals . . .  only on the  basis of          safety  and engineering analysis of the access route."  23 C.F.R.            658.19 (i)(2)(A).  It is  apparently the Association's position          that   this    provision   represents   a    controlling   agency          interpretation  of  the  "reasonable  access"  provision  of  the          Surface Transportation Systems  Act of 1982 to which deference is          required  under the  Chevron doctrine.   We  reject this  belated                               _______          suggestion.               First,  the   ordinance  and  order  in  this  case  do  not          "deny . . .  access to  the  terminal";  they  impose  reasonable          restrictions  upon it,  as  the statute  itself clearly  permits.          This is no more an outright denial of access than a detour around                                      ______          a school zone  or a  bridge raised for  maritime commerce  during          rush hour.  Nor does the regulation itself even purport to define          "reasonable  access" as  that term  is used  in the  statute; the          quoted provision is one  element in a check list of  elements for          state review processes to be established under the regulations.               Indeed,  if  the regulation  were  read  as the  Association          intends,  there  would  be  a  very serious  question  about  its          validity.  As explained  in the panel opinion, the  original 1982          statute did  not even  arguably impose the  requirement that  all          reasonable restrictions on  access be based solely on safety; and          whatever  the   precise  purpose  of  the   1984  amendment  that          emphasized that  safety regulations  could be imposed  on certain          tractor-trailers, a drastic recasting of the original "reasonable          access"  provision is  nowhere  suggested.   Even under  Chevron,                                                                   _______          deference to an administrative interpretation is not unlimited.               Second,  the implications  of the  suggested reading  of the          regulation,  like the  suggested  reading of  the statute,  weigh          heavily against it.  There is no federal regime of  zoning or use          restrictions  that applies  to terminals,  like the  one in  this          case,  located miles from  the interstate highway  system.  Thus,          the Association's reading of the statute and the regulation would          mean that  no one--neither the federal government, nor the states          and localities--would have the power to carry on this traditional          function of government.               It would be  remarkable enough for Congress to  determine to          transfer such authority  sub silentio from  the states and  local                                   ____________          governments  to federal  authorities  or for  it  to empower  the          Department of Transportation to make such a  shift by regulation.          What is  to us almost inconceivable is  that Congress effectively          abolished  anyone's  authority  to impose  reasonable  non-safety                     ______          based  restrictions on access to such terminals.  The notion that          trucking terminals have been  completely exempted from regulation          that affects every other kind of business in the United States is          difficult to take seriously.               The petition for rehearing is denied.                                             ______                                                                     
