Goos v. I.C.C.
| Citation | 911 F.2d 1283 |
| Decision Date | 22 August 1990 |
| Docket Number | No. 89-2142,89-2142 |
| Parties | Todd GOOS, et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. Natural Heritage Foundation, Southwest Iowa Nature Trails Project, Inc. and Rails to Trails Conservancy, Intervenor. Page County Conservation Board, Intervenor. Iowa Southern Railroad Company, Inc., Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
T. Scott Bannister, Des Moines, Iowa, for petitioners.
Charles H. Montange, Washington, D.C., for respondents.
Evelyn Kitay, Washington, D.C., for intervenors.
Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and LARSON, * Senior District Judge.
Todd Goos and twenty other landowners filed a petition for review of an Interstate Commerce Commission decision. In the decision, served on May 18, 1989, the I.C.C. reconsidered its grant of an exemption pursuant to 49 U.S.C. Sec. 10505 (1982) for a transaction involving a railroad line in Iowa. The holding, in which the I.C.C. characterized the landowners' challenge as one not to the exemption but to the issuance of a Notice of Interim Trail Use under the Rails to Trails Act, see 16 U.S.C. Secs. 1241-1251 (1988), rejected the environmental and constitutional challenges raised by the landowners to the Rails to Trails Act, and reaffirmed the grant of an exemption from the requirements imposed by 49 U.S.C. Sec. 10903 (1982 & Supp. V 1987). In their petition for review, Goos and the other landowners argue primarily that the I.C.C. failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. Secs. 4321-4347 (1982), when it granted a Notice of Interim Trail Use pursuant to 16 U.S.C. Sec. 1247(d) without preparing an environmental assessment. We affirm.
On May 6, 1988, Iowa Southern Railroad filed with the I.C.C. a petition for exemption from abandonment pursuant to 49 U.S.C. Sec. 10505. Iowa Southern sought to exempt itself from the prior approval requirements of 49 U.S.C. Sec. 10903 as it sought to cease its use of approximately sixty miles of rail line stretching almost continuously from Council Bluffs to Blanchard, Iowa. Iowa Southern also sought to abandon approximately three miles of side track in Pottawattamie, Mills, Fremont and Page counties in Iowa. An exemption from abandonment allows a railroad to discontinue rail service upon meeting certain statutory conditions found in section 10505, thereby avoiding the more rigorous I.C.C. review otherwise required by section 10903 in a regular abandonment proceeding. The petition was initially opposed by the Page County Conservation Board, jointly by the Page County Board of Supervisors and the Page County Engineer, and by the group of landowners headed by Todd Goos.
Incident to its request for an exemption, Iowa Southern noted that it was negotiating with the Iowa Natural Heritage Foundation, a non-profit land trust which seeks to preserve natural areas in Iowa, to sell or donate the right of way for interim trail use pursuant to 16 U.S.C. Sec. 1247(d). In essence, section 1247(d), part of the Rails to Trails Act, encourages the preservation of existing rail corridors for public use and for possible future rail use (often referred to as railbanking) by allowing a railroad that seeks to abandon a line to negotiate interim trail use with an interested third party willing to assume financial responsibility for the line. 1 Section 1247(d) in effect prevents a rail line from being abandoned and thus from reverting to property owners holding reversionary interests. Instead, section 1247(d) provides that interim use of the line, voluntarily negotiated between the rail company and an interested third party, "shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes." Once begun, so long as interim trail use continues, section 1247(d) ensures that the property will not revert.
The procedure established to carry out this statutory scheme is as follows. When a railroad has filed a petition for abandonment under 49 U.S.C. Sec. 10903, or a petition for an exemption under 49 U.S.C. Sec. 10505, an interested prospective interim trail user may file a petition with the I.C.C. indicating its willingness to acquire and assume financial responsibility for the right of way. 49 C.F.R. Sec. 1152.29(a)(2) (1989). If the railroad indicates a willingness to enter into an interim trail use agreement, the I.C.C. will issue either a Certificate of Interim Trail Use (CITU) in a regular abandonment proceeding, 49 C.F.R. Sec. 1152.29(c), or a Notice of Interim Trail Use (NITU) in an exempt abandonment proceeding. 49 C.F.R. Sec. 1152.29(d). An NITU or CITU gives the railroad and the prospective trail user 180 days in which to reach agreement. If an agreement is reached, then no abandonment can result until the trail user terminates trail use in an I.C.C. proceeding. Absent agreement within 180 days, the CITU or NITU converts into a notice of abandonment.
In this case, several county conservation boards and the Iowa Natural Heritage Foundation indicated their interest in trail use and filed statements of willingness to assume financial responsibility. In its decision of July 29, 1988, in which the I.C.C. issued the abandonment exemption under 49 U.S.C. Sec. 10505, the I.C.C. noted the availability of interim trail use, and made the exemption subject to a public use condition pursuant to 49 U.S.C. Sec. 10906 (1982). The public use condition precluded the railroad from disposing of structures on the right of way that could be suitable for trail use. By decision of August 18, 1988, the I.C.C. stayed the effective date of the exemption for sixty days, to allow the I.C.C. to complete an environmental assessment on the environmental effects of abandonment. 2 The stay was twice extended to allow completion of the environmental assessment, but on December 12, 1988, the stay was vacated and an NITU entered. In its December 12 decision, however, the I.C.C. stayed implementation of the NITU pending its reconsideration of the abandonment exemption.
The I.C.C. undertook its reconsideration pursuant to a petition filed on August 19, 1988, by Todd Goos and the other landowners. 3 In their petition, the landowners requested that the I.C.C. require Iowa Southern to submit an expanded environmental report on the environmental effects of interim trail use, and argued that the operation of section 1247(d) constituted an unconstitutional taking of their reversionary interests. In its decision of December 12, 1988, the I.C.C. characterized the landowners' environmental argument as follows: "Certain adjacent landowners ... contend[ ] that the National Environmental Policy Act (NEPA) requires the Commission to consider: (1) the environmental effects of the conversion of a railroad right-of-way to interim trail use under section 8(d) of the Trails Act." Decision and Notice of Interim Trail Use or Abandonment, I.C.C. Docket No. AB-298 at 2 (December 12, 1988). 4
The I.C.C. made its final decision on May 18, 1989. The I.C.C. concluded that it is not required by NEPA to "analyze the environmental effects of possible interim trail use." Iowa S. R.R.--Exemption--Abandonment in Pottawattamie, Mills, Fremont and Page Counties, IA, 5 I.C.C.2d 496, 501 (1989). Rather, the I.C.C. contends that it must consider only the environmental consequences of the proposed abandonment, as it did in its environmental assessment in this case, and not the environmental effects of the conversion to trail use. Furthermore, the I.C.C. found no unconstitutional taking by operation of section 1247(d). Thus, the I.C.C. vacated the stay imposed on implementation of the NITU. Since then, Iowa Natural Heritage Foundation has reached agreement with Iowa Southern for interim trail use, and the parties advise us that work on the trail is currently underway.
In their initial brief to this court, the landowners presented four issues for review. Three of them involved the constitutional takings question, and the fourth argued that the I.C.C. failed to comply with NEPA. Following the Supreme Court's decision in Preseault v. Interstate Commerce Comm'n, --- U.S. ----, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990), in which the Court considered and rejected similar takings claims arising out of section 1247(d), the landowners withdrew these arguments. Accordingly, the only issue we consider in this case is whether NEPA requires the I.C.C. to consider, as part of an abandonment proceeding, the environmental effects of conversion to interim trail use pursuant to section 1247(d).
We begin, however, by considering whether we have jurisdiction over all of the petitioners in this lawsuit. As part of its initial brief, Iowa Southern moved to dismiss all petitioners except for Todd Goos for want of subject matter jurisdiction. Iowa Southern argues that the petition for review, which was timely filed on July 13, 1989, and which listed the petitioners as "Todd Goos, et al.," conveys jurisdiction in this court only over Goos because "et al." does not satisfy the specificity requirement of Fed.R.App.P. 15(a).
A party must appeal from a final order of a federal agency, in this case the I.C.C., within sixty days. 28 U.S.C. Sec. 2344 (1988). The I.C.C. entered its final decision on May 18, 1989, and petitioners "Todd Goos, et al." filed their petition for review on July 13, 1989, within the sixty-day period. Rule 15(a) requires, however, that "[t]he petition shall specify the parties seeking review." Fed.R.App.P. 3(c) similarly provides that "[t]he notice of appeal shall specify the party or parties taking the appeal." It is this specificity requirement with which "Todd Goos, et al." fails to comply, and, because the requirement is jurisdictional, as is the time limit within which to file...
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