Jost v. Surface Transp. Bd. of Am.
| Decision Date | 22 October 1999 |
| Docket Number | No. 99-1054,99-1054 |
| Citation | 194 F.3d 79,338 U.S.App.D.C. 289 |
| Parties | (D.C. Cir. 1999) Kevin Jost, et al.,Petitioners v. Surface Transportation Board and United States of America, Respondents, Central Kansas Railway, Limited Liability Company, Intervenor |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review of an Order of theSurface Transportation Board
Nels J. Ackerson argued the cause and filed the briefs for petitioners.
Troy W. Garris, Attorney, Surface Transportation Board, argued the cause for respondents. With him on the brief were Henri F. Rush, General Counsel, and Ellen D. Hanson, Deputy General Counsel, and M. Alice Thurston, Attorney, United States Department of Justice.
Thomas F. McFarland, Jr. was on the brief for intervenor.
Before: Edwards, Chief Judge, Wald and Williams, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Kevin Jost petitions for review of an order of the Surface Transportation Board ("the Board") declining to reopen a proceeding wherein the Board issued a notice of interim trail use ("NITU") for a railroad line formerly operated by the Central Kansas Railway ("CKR").1 Jost sought to reopen the proceeding on the grounds that, as a result of right-of-way sales by CKR, CKR's notice of exemption was void for misleading statements, rail banking and interim trail use were not possible, and CKR had abandoned the line. Jost also challenged the Board's refusal to review the financial fitness of the Central Kansas Conservancy ("CKC" or "the Conservancy"), the trail sponsor that acquired the line from CKR.
We uphold the Board's decision not to review the fitness of the Conservancy to be a trail sponsor. However, we find that the Board has not adequately explained why Jost's evidence concerning the right-of-way sales did not require reopening the proceeding. Accordingly, we grant the petition for review and remand to the Board for further proceedings.
As part of its jurisdiction over the common carrier responsibilities of railroads, the Surface Transportation Board must approve the abandonment of a railroad line.2 Pursuant to a statutory mandate, the Board has established an abbreviated process for abandonment of "out-of-service" lines.3 See 49 U.S.C. § 10502 (Supp III 1998); 49 C.F.R. § 1152.50 (1998).When a railroad files a verified "notice of exemption" stating it wishes to abandon an out-of-service line, the Board publishes a notice in the Federal Register which states that the railroad will be authorized to abandon the line in thirty days, unless the Board stays the exemption pursuant to a petition.4The notice also states that the exemption is void ab initio if the railroad's notice contains false or misleading information.See 49 C.F.R. § 1152.50(d)(3).
At this point, the "rails-to-trails" program established under the Trails Act, 16 U.S.C. § 1247(d), may come into play.The Trails Act authorizes the Board "to preserve for possible future railroad use rights-of-way not currently in service and to allow interim use of the land as recreation trails." Preseault v. ICC, 494 U.S. 1, 6 (1990). Thus, the Trails Act has two goals, to preserve railroad rights-of-way and to encourage the creation of new recreation trails. See Preseault, 494 U.S. at 17-18.
The Trails Act comes into play if, while the exemption is pending, a private organization files a "statement of willingness" with the Board. The statement of willingness is an indication that the private organization (the "trail sponsor") is willing to take over management of and financial responsibility for the right-of-way, for the purposes of "rail banking" the line and establishing a trail on the right-of-way.5 If the railroad indicates its willingness to negotiate transfer of the line to the trail sponsor, then the Board will issue a notice of interim trail use ("NITU"). Under the NITU, the authorization to abandon the line is stayed for a set period of time and the railroad is instead authorized to transfer the line for rail banking and interim trail use. If the parties' negotiations are successful, then the line is conveyed for interim trail use and possible future rail service. If the negotiations are unsuccessful, then the railroad's exemption takes effect, and the line may be abandoned. Whether the negotiations over interim trail use are successful or not, the Board need not reopen the proceeding once the NITU is issued.6
In February 1996, the Central Kansas Railway sought to abandon a 33.4 mile rail line that it owned largely as easements over land belonging to others. CKR filed a notice of exemption with the Board, indicating that the line qualified as "out-of-service." The Board published a notice in the Federal Register stating that the exemption would be effective April 12, 1996, unless the Board took further action. Central Kansas Ry., LLC--Abandonment Exemption--in Marion & McPherson Counties, KS, 61 Fed. Reg. 10,428, 10,429 (1996).The notice also states that the exemption would be void ab initio if CKR's notice contained false or misleading information. Id.
On April 9, 1996, CKR indicated to the Board that it had not abandoned the line and was willing to negotiate rail banking-interim trail use with an entity (Jennings & Co.) that had filed a statement of willingness to assume responsibility for the line. On April 12, 1996, the Board issued a notice of interim trail use and stayed the exemption for six months. The Board subsequently granted two additional extensions of time for the parties to negotiate rail banking-interim trail use. In June 1997, the Central Kansas Conservancy also filed a statement of willingness and requested a NITU. On June 12, 1997, in its final action in this proceeding (other than the denial of the petition to reopen), the Board decided to issue a NITU and to postpone the effective date of the exemption until December 13, 1997. On September 19, 1997, pursuant to this NITU, the railroad conveyed the 33.4 mile line to the Conservancy for rail banking-interim trail use.
On September 25, 1997, Jost, who owns land over which the line passes, filed a petition to reopen the abandonment proceeding on the grounds of material error and changed circumstances. Jost stated that both before and after filing its notice of exemption, CKR had conveyed portions of the right of-way, which rendered the line unsuitable for rail banking, and therefore for interim trail use. Jost argued that CKR's failure to disclose these sales caused the Board to erroneously issue a NITU. Jost also stated that CKR's conveyance of portions of the right-of-way, together with the lack of service on the line and the removal of rails, ties, and ballast, showed that CKR had consummated abandonment of the line. Finally, Jost argued that changed circumstances, i.e., recent expressions of opposition to interim trail use by local governments, indicated that the Conservancy would be unable to meet its financial obligations for trail management.
CKR responded to Jost's filings by stating that, although it had conveyed back some right-of-way along the line, it had retained sufficient right-of-way in all sales to allow for rail banking-interim trail use.7 Since the right-of-way sales did not impact rail banking or interim trail use, CKR argued it was not misleading to omit them.
Jost responded by arguing that CKR had not simply conveyed "excess" right-of-way. Jost presented affidavits stating that, in three places, CKR had sold the entire, or "full width," right-of-way, breaking up the continuity of the line. CKR replied that the deeds in question were facially ambiguous, and that it believed it had only conveyed excess right-of way.8
The Board denied Jost's petition to reopen the abandonment proceeding. The Board concluded that CKR's discontinuance of service and removal of rails, ties and ballast did not consummate abandonment, particularly in light of CKR's ongoing negotiations over rail banking-interim trail use. Central Kansas Ry., LLC--Abandonment Exemption--in Marion & McPherson Counties, KS, (Docket No. AB-406) (Sub.-No. 6X) (Dec. 19, 1998) ("CKR--Abandonment Exemption"), slip op. at 3 (citing Birt v. STB, 90 F.3d 580 (D.C. Cir. 1996)). The Board also found that Jost had not made a specific showing that the Conservancy would be unable to meet its financial obligations, and therefore the Board would not reopen the proceeding to examine the Conservancy's financial capacity.
Finally, the Board stated CKR has refuted these allegations [that the right-of-way sales made interim trail use and rail banking impossible] by submitting a verified statement specifically stating that a sufficient width of right-of-way was conveyed toCKC in all instances to permit trail use and to permit rail service to be reinstituted for the entire length of the right-of-way should there be an occasion for reestablishment of such rail service in the future. Moreover, while all of the parties' filings will be accepted into the record, we will not attempt to resolve all of the property issues that these filings raise. State courts appear to be the proper place for parties to resolve property disputes about the parties' expectations and how much property has been transferred and how much has been retained.
Id. at 5. The Board did not directly address Jost's contention that the right-of-way sales rendered the notice of exemption misleading and false, or that the right-of-way sales were evidence of abandonment.
Jost petitioned for review of the Board's decision not to reopen the proceeding, arguing that it was arbitrary and capricious for the Board not to examine whether the Conservancy was financially capable of being a trail sponsor, not to find that the notice of exemption was void ab initio, not to reconsider whether interim trail use was appropriate in light of the sale of portions of the right-of-way, and not to find that the line had been...
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