Montezuma Grain Co. v. Surface Transp. Bd.
| Decision Date | 05 August 2003 |
| Docket Number | No. 02-3960.,02-3960. |
| Citation | 339 F.3d 535 |
| Parties | Montezuma Grain Co., Llp, and Redevelopment Commission of Parke County, Indiana, Petitioners, v. Surface Transportation Board and UNITED STATES of America, Respondents, and Csx Transportation, Inc., Intervening Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Thomas F. McFarland, (argued), Chicago, IL, for Petitioners.
Alice C. Saylor (argued), Surface Transp. Bd. Office of General Counsel, Washington, DC, John P. Fonte, Dept. of Justice, Antitrust Div., Appellate Section, Washington, DC, for Respondents.
David H. Coburn, Steptoe & Johnson, Washington, DC, for Intervenor.
Before FLAUM, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.
CSX Transportation, Inc., ("CSXT") used to own and operate a 1.88-mile stretch of track near Montezuma, Indiana. After the Surface Transportation Board1 authorized CSXT to abandon the track, the Montezuma Grain Company ("Montezuma Grain") and the Redevelopment Commission of Parke County, Indiana, ("County") moved to reopen the abandonment proceedings. The Board denied their motion, and Montezuma Grain and the County now petition us for review. The petition is denied.
This case concerns two segments of a contiguous 1.88-mile stretch of track running west from U.S. Highway 36 in Montezuma to the junction with CSXT's north-south main line in Hillsdale, Indiana. The eastern .71-mile segment ("East Segment") was part of a longer line that was authorized for abandonment in ICC Docket No. AB-55 (Sub-No. 486) ("Montezuma Abandonment"). The western 1.17-mile segment ("West Segment") was authorized to be abandoned in STB Docket No. AB-55 (Sub-No. 579X) ("Hillsdale Abandonment"). Montezuma Grain and the County have withdrawn that part of their petition seeking review of the Board's decision in STB Finance Docket No. 34019.
In July 1994 CSXT filed an application under 49 U.S.C. § 10903, which authorizes abandonment or discontinuance of a railroad line if public convenience and necessity so require, seeking to abandon a 7.34-mile line that it owned and operated near Montezuma. The application accurately identified the line to be abandoned as that running west from milepost 184.07 in Bloomingdale to milepost 191.41 in Montezuma, which corresponds to the line's intersection point with County Road 228. In addition to the milepost designations, CSXT's application included a schematic drawing that showed the track proposed for abandonment by means of a series of "X" marks. The last "X" extended to a point just slightly west of where the line intersects U.S. Highway 36, located at milepost 190.70. County Road 228 was not identified on the drawing, nor was it identified any-where in the application as corresponding to milepost 191.41. CSXT noted in its application that further abandonment from milepost 191.41 to milepost 192.65 in Hillsdale was anticipated within the next three years.
The County filed a comment within the 30-day protest period, taking no position with regard to the proposed Montezuma Abandonment but stating that it would be concerned if CSXT later sought to abandon the track west of milepost 191.41. Evident from the letters and petitions attached to the comment, however, is that the County was operating under the mistaken belief that milepost 191.41 corresponded to U.S. Highway 36 and not County Road 228. For instance one letter from members of the Redevelopment Commission explained that the County The letter later states that the members of the Commission "wish to go on record as being committed to protesting any further abandonment west of U.S. 36 and, specifically, any future efforts to abandon the line from that point west to Hillsdale." In a similar vein, petitions signed by County residents expressed opposition to any future abandonment because it would "have a severely negative impact on county plans to develop an industrial park in the area now serviced by the rail from U.S. 36 west to Hillsdale."
CSXT's response, dated August 3, 1994, only added to the confusion surrounding the location of the west terminus of the proposed abandonment. Noting that the County's comment raised "two separate and distinct issues" — the proposed abandonment of track between mileposts 184.07 and 191.41, and the possible future abandonment of track to the west of milepost 191.41 — CSXT addressed these concerns as follows:
It is obvious that the letters and petitions attached to [the comment] also only intended to express opposition to the possible future abandonment filing by CSXT of its line of railroad between Hillsdale and Montezuma. For example, the petitions signed by interested residents of Parke County, Indiana[,] indicate that they are opposed to any abandonment that will adversely affect, or have a negative impact on county plans to develop an industrial park in the area now served by rail from U.S. 36 west to Hillsdale. The area of concern being referred to in the petition is not included in CSXT's proposed abandonment between Montezuma and Bloomingdale which is the subject matter of this proceeding. That area would, however, be included in any prospective abandonment filing between Montezuma and Hillsdale.
The letters from the Parke County Industrial Development Committee and from Mr. Mitchell Vogel also refer to the development of an industrial park at Montezuma and ensuring that rail service east from Hillsdale to the west side of U.S. 36 be maintained. Once again these areas are not involved in this docket, but would be included in an abandonment filing between Montezuma and Hillsdale.
It is therefore clear that the comments of the various letters and petitions attached... relate solely to retaining rail service between Hillsdale and Montezuma. They do not relate to the rail line at issue in this proceeding[,] which involves CSXT's rail line between Montezuma and Bloomingdale.
In a second comment to the Board, the County reiterated that it had no objection to the proposed Montezuma Abandonment. But once again, the comment misidentified the west end of the abandonment as corresponding to U.S. Highway 36 and not County Road 228: "[The Redevelopment Commission] continue[s] to actively support the county's effort to develop an industrial park along the CSX line that will remain between Montezuma and U.S. 36, and ... appreciate[s] CSX Transportation Inc.'s apparent willingness to work with us and other county entities towards this goal." Upon receipt of this comment, the Board granted CSXT's application as unopposed, and in September 1994 CSXT filed a letter with the Board confirming consummation of abandonment.
It was not until January 1995, when CSXT began dismantling track a short distance west of U.S. Highway 36, that the County became aware of its mistake regarding the west terminus of the abandonment. It promptly sent a letter to CSXT, stating that "[t]here now appears to be a misunderstanding as to the exact location of the west end of the trackage to be abandoned." The County complained that the "X" marks appearing on the drawing attached to CSXT's application indicated The County also protested that CSXT had made repeated assurances (pointing specifically to its August 3, 1994, letter to the Board) that the west terminus did not extend beyond U.S. Highway 36. The County requested that CSXT drop any plans to dismantle trackage west of the highway and join it in petitioning the Board to reopen the proceedings.
CSXT responded by offering to leave the East Segment intact and sell it to the County. The County did not pursue this offer, however. Instead, six years later it and Montezuma Grain petitioned for reopening of the abandonment proceedings, arguing that the inclusion of the East Segment in the abandonment was the result of "mistake and inadvertence." The Board denied the petition on two grounds. First, it held that it lacked jurisdiction to reopen the proceedings because CSXT had already consummated the abandonment. Alternatively, the Board found that the petitioners failed to allege any procedural defects that would warrant relief. The Board acknowledged that "CSXT's `X' marks on the map, with hindsight, should probably have extended a fraction of an inch farther to the left on the schematic drawing than they actually did." Nonetheless, the Board concluded that the drawing was insufficient to show a lack of intent to abandon the East Segment since the application itself contained an accurate description of the track by mileposts and by total mileage. The Board also acknowledged that CSXT's August 3, 1994, letter was hardly "a model of clarity" and that the letter suggested that no track west of U.S. Highway 36 would be included in the Montezuma Abandonment. But any misstatements in the letter, the Board concluded, were "not so egregious as to overcome the explicit milepost references and other evidence to the contrary."
CSXT continued to provide rail service through part of 1997 to the West Segment — the 1.17-mile of track running west from milepost 191.41 to milepost 192.58, where it intersected with CSXT's north-south main line in Hillsdale. In April 1997 demand for service on the West Segment dried up completely when Montezuma Grain, the only remaining shipper on the line, went out of business. CSXT therefore removed the crossing diamond at milepost 192.58 in order to avoid the high expenses...
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