Friends of the Atglen-Susquenhanna Trial, Inc. v. Surface Transp. Bd.

• Decision Date: 31 May 2001
• Docket Number: ATGLEN-SUSQUEHANNA,No. 99-5837,99-5837
• Citation: 252 F.3d 246
• Parties: (3rd Cir. 2001) FRIENDS OF THETRAIL, INC., Petitioner v. SURFACE TRANSPORTATION BOARD and UNITED STATES OF AMERICA, Respondents
• Court: U.S. Court of Appeals — Third Circuit

Page 246

252 F.3d 246 (3rd Cir. 2001)

FRIENDS OF THE ATGLEN-SUSQUEHANNA TRAIL, INC., Petitioner v. SURFACE TRANSPORTATION BOARD and UNITED STATES OF AMERICA, Respondents

No. 99-5837

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued September 12, 2000

Opinion Filed May 31, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Andrea C. Ferster, Esquire (Argued), Washington, D.C. Charles Montange, Esquire, Seattle, WA, Attorneys for Petitioner.

Ellen D. Hanson, General Counsel, Louis Mackall, V. Attorney (Argued), Surface Transportation Board, Washington, D.C. M. Alice Thurston, Esquire, John T. Stahr, Esquire, United States Department of Justice, Washington, D.C., Attorneys for Respondent.

Paul D. Keenan, Esquire, Hoyle, Morris & Kerr, Philadelphia, PA, Attorney for Intervenor Respondent.

Before: NYGAARD, ROTH and BARRY, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge:

The Enola Branch is a 66.5 mile railroad line which was built in the early Twentieth Century and was known as one of the remarkable engineering feats of that time. Petitioner, Friends of the Atglen-Susquehana Trail, Inc. (FAST), seeks judicial review of a final order of the Surface Transportation Board (STB)¹ permitting abandonment of the Enola Branch. FAST challenges the manner in which the STB carried out its responsibilities under 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. 470f. In particular, FAST objects to the manner in which the STB identified and protected historic properties along the line, to the STB's failure to consider evidence that the corridor as a whole was entitled to protection as a historic property, and to the manner in which the STB terminated consultation on a plan to protect historically eligible property. For the reasons that follow, we will vacate the STB's decision and remand this matter to it for further consideration.

I. REGULATORY BACKGROUND

A. ABANDONMENT OF RAIL LINES

FAST seeks review of the actions of the STB in the exercise of its exclusive regulatory jurisdiction over rail carriers and rail transportation, particularly its jurisdiction to permit a rail carrier to abandon or discontinue use of an existing rail line that might qualify as or contain historic property. We begin, therefore, with an overview of the relevant regulatory landscape.

A rail carrier intending to abandon, and to be released from its obligations to retain or operate, any part of its railroad lines must file an application to do so with the STB and such abandonment must adhere to certain established procedures. See 49 U.S.C. 10903(a)(1)(A); see also 49 U.S.C. 10903-10907. The STB is empowered to exempt a transaction from the ordinary regulatory requirements if the STB finds that the ordinary procedures are not necessary to carry out federal transportation policy and that either the transaction is limited in scope or the full application procedures are not necessary to protect shippers from any abuses of market power. See 49 U.S.C. 10502(a).

The abandonment of a rail line or corridor will qualify as an exempt transaction if the carrier certifies that no local traffic has moved over the line for at least two years, that any traffic on the line can be rerouted over other lines, and that no formal complaints, regarding cessation of service on the line, are pending or have been decided within that two-year period. See 49 C.F.R. 1152.50(b). This process is intended to be an expedited one. The exemption, and therefore permission to abandon the rail line, becomes effective 30 days after publication of notice in the Federal Register. See 49 C.F.R. 1152.50(d)(3); see also 49 U.S.C. 10502(b) ("Any proceeding begun as a result of an application under this subsection shall be completed within 9 months after it is begun."). An exempt abandonment remains subject to any conditions that the STB may impose upon it.

If the STB agrees that a proposed abandonment is exempt and allows the abandonment to proceed under the expedited procedures, the STB must consider certain factors prior to permitting the abandonment to become final. See 49 C.F.R. 1152.50(a)(2). First, the STB must consider and determine whether the rail properties to be abandoned are appropriate for use for public purposes. See 49 U.S.C. 10905;² 49 C.F.R. 1152.28(a)(1). If the STB finds that the properties are appropriate for public use, the STB is authorized to impose conditions on the abandonment of the property by the carrier. Such conditions may include a prohibition on the disposal of the property for a period of 180 days unless the property is first offered, on reasonable terms, for sale for public purposes. See 49 U.S.C. 10905; 49 C.F.R. 1152.28(d). Second, the STB must consider possible interim trail use or rail banking,³ should any state, political subdivision, or qualified private organization be interested in acquiring or using the rail line right-of-way in such a manner. See 16 U.S.C. 1247(d); 49 C.F.R. 1152.29. Third, the STB must comply with the requirements of 106 of the National Historic Preservation Act, 16 U.S.C. 470f.

The exemption procedures of 10502 and 1152.50 are intended to expedite the approval of the proposed abandonment by making it effective almost immediately, subject to any conditions imposed by the STB. Consideration of the 106 historic preservation process, on the other hand, necessarily requires the STB to proceed more slowly. The fact that Congress has introduced a procedure which permits the slowing of the overall abandonment process reflects Congress's intent to balance immediate, fast-track approval of the abandonment by the carrier with a more deliberate consideration of preservation of historically significant properties. See Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 695-96 (3d Cir. 1999) (citing Illinois Commerce Comm'n v. ICC, 270 U.S. App. D.C. 214, 848 F.2d 1246, 1260-61 (D.C. Cir. 1988) (describing 106 as "stop, look, and listen" provision requiring an agency to acquire information before acting)).

B. HISTORIC PRESERVATION

Section 106 of the NHPA provides as follows:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.

16 U.S.C. 470f. The NHPA is a procedural statute designed to ensure that, as part of the planning process for properties under the jurisdiction of a federal agency, the agency takes into account any adverse effects on historical places from actions concerning that property. See Morris County Trust for Historical Preservation v. Pierce, 714 F.2d 271, 278-79 (3d Cir. 1983). The STB, as a federal agency, must adhere to 106 in considering and approving exemption or abandonment of a rail line. See 36 C.F.R. 800.2(a).

The Advisory Council on Historic Preservation (ACHP) has promulgated regulations outlining the procedures to be followed by an agency in satisfying its responsibilities under 106, codified at 36 C.F.R. Part 800. See Morris County Trust, 714 F.2d at 280 ("The Advisory Council's regulations are particularly persuasive concerning the proper interpretation of NHPA.") An agency is expected to consult with various interested parties throughout the 106 process, including the State Historical Preservation Officer (SHPO), who is the state official appointed or designated, pursuant to 101(b)(1) of the NHPA, 16 U.S.C. 470a(b)(1), to administer the state historic preservation program. See 36 C.F.R. 800.16(v); see also 16 U.S.C. 470a(b)(3) (establishing the responsibilities of the SHPO). The agency, in consultation with the SHPO, must also involve the public in the process, see 36 C.F.R. 800.3(e), and identify other parties that should be invited to participate in the process as consulting parties, including local governments and those parties that request to participate in the process. See 36 C.F.R. 800.3(f)(1-3). The ACHP itself must be afforded a "reasonable opportunity to comment on such undertakings." 16 U.S.C. 470f; 36 C.F.R. 800.1(a); see also Concerned Citizens, 176 F.3d at 695 (holding that the Council's comments must be taken into account and integrated into the decision making process).

The ACHP regulations establish a three-step process: identification of historic properties; assessment of any adverse effects of the proposed undertaking on such properties; and creation of a plan to avoid, minimize, or mitigate those adverse effects. See 36 C.F.R. 800.1(a). The agency, in consultation with the SHPO and other interested parties, may address multiple steps in one consultation as long as all parties are given an adequate opportunity to comment. See 36 C.F.R. 800.3(g).

In order to identify historic properties, the agency must apply the criteria established for the National Register of Historic Places (National Register) to identify properties and to determine whether they would be eligible for the National Register. See 36 C.F.R. 800.4(c)(1). Significantly, the regulations provide that the "passage of time, changing perceptions of significance, or incomplete prior evaluations may require the Agency Official to reevaluate properties previously determined eligible or ineligible. " 36 C.F.R. 800.4(c)(1).

If the agency and the SHPO agree that the criteria for the National Register have been met, the property or portion thereof shall be considered eligible for the National Register for 106 purposes. See 36 C.F.R. 800.4(c)(2). If the agency and the SHPO agree that the criteria have not been met, the...