National Ass'n of Reversionary Property Owners v. Surface Transp. Bd.

• Decision Date: 22 September 1998
• Docket Number: No. 97-1516,97-1516
• Citation: 332 U.S.App.D.C. 325,158 F.3d 135
• Parties: , 29 Envtl. L. Rep. 20,244 NATIONAL ASSOCIATION OF REVERSIONARY PROPERTY OWNERS, Petitioner, v. SURFACE TRANSPORTATION BOARD and United States of America, Respondents, Association of American Railroads and Rails to Trails Conservancy, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 135

158 F.3d 135

332 U.S.App.D.C. 325, 29 Envtl. L. Rep. 20,244

NATIONAL ASSOCIATION OF REVERSIONARY PROPERTY OWNERS, Petitioner, v. SURFACE TRANSPORTATION BOARD and United States of America, Respondents Association of American Railroads and Rails to Trails Conservancy, Intervenors.

No. 97-1516.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 1, 1998.

Decided Sept. 22, 1998.

On Petition for Review of Orders of the Surface Transportation Board.

Cynthia L. Amara argued the cause and filed the briefs for petitioner.

Evelyn G. Kitay, Attorney, Surface Transportation Board, argued the cause for respondents. With her on the brief were Henri F. Rush, General Counsel, and Martin W Matzen, Attorney, United States Department of Justice.

Louis P. Warchot and Kenneth P. Kolson were on the brief for intervenor Association of American Railroads.

Andrea Ferster and Charles H. Montange were on the brief for intervenor Rails to Trails Conservancy.

Before: WALD, WILLIAMS and TATEL, Circuit Judges.

WALD, Circuit Judge:

In 1996, the Surface Transportation Board ("STB" or "Board") issued a Notice of Proposed Rulemaking addressing the process by which railroad corridors are formally abandoned and may be opened to subsequent use as trails. The National Association of Reversionary Property Owners ("NARPO") submitted comments asking the STB to require that individual notice be provided abutting landowners of trail conversion proposals. The STB declined to provide for such notice in its Final Rule, and denied NARPO's petition for reconsideration. NARPO petitioned this court for review, claiming that such notice is required by the Due Process Clause of the Fifth Amendment. The STB and the United States moved to dismiss the petition as untimely, because the STB's predecessor, the Interstate Commerce Commission ("ICC"), had rejected individual notice in a previous rulemaking, and the rulemaking under review did not reopen that issue. We conclude that we are without jurisdiction to review NARPO's claim, and therefore grant the motion to dismiss.

I. BACKGROUND

A. Statutory and Regulatory Framework

Rail carriers acquire the right to use the land over which railroad cars travel in a variety of ways. Some land is obtained in fee simple, but often a railroad company holds a lesser interest in the land such as an easement or a fee simple determinable. See National Wildlife Fed'n v. ICC, 850 F.2d 694, 703 (D.C.Cir.1988). We refer to such a right to use the land as a right-of-way, and any underlying interest maintained by the grantor as a reversionary interest. In the beginning of the railroad era, state property law determined when a railroad company's right-of-way lapsed and the original grantor regained full ownership and control. Long ago, however, the federal government assumed a role in that process with passage of the Transportation Act of 1920, ch. 91, § 402, 41 Stat. 456, 477-78. See Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 319-20, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981). A railroad may no longer abandon or discontinue use of a railroad corridor without the STB's approval. ¹ See 49 U.S.C. § 10903(a)(1), (d); National Wildlife Fed'n, 850 F.2d at 704. When abandonment approval is given, however, federal regulatory jurisdiction ends. ² At that point state property law returns to the foreground and controls the disposition of the land. See id.

The National Trails System Act Amendments of 1983 created the current version of the so-called "rails to trails" program. See Pub.L. No. 98-11, § 208, 97 Stat. 42, 48 (codified as amended at 16 U.S.C. § 1247(d)) ("Trails Act"). ³ Under the program, railroad corridors otherwise ripe for abandonment may be converted to trails for recreational use. STB regulations govern the process of abandonment and trail conversion. As revised by the 1996 rulemaking under review here they provide for the following process. ⁴

When a railroad wishes to abandon a corridor it files a Notice of Intent with the STB. See 49 C.F.R. § 1152.20(a)(1). The railroad must provide a copy of the Notice to significant users of the railroad, certain state entities including the governor, certain federal entities, Amtrak (if it uses the line), the Railroad Labor Executives' Association, and relevant railway labor organizations. See 49 C.F.R. § 1152.20(a)(2). The Notice must also be posted in relevant railroad stations and published in a newspaper once a week for three weeks in each affected county. See 49 C.F.R. § 1152.20(a)(3), (4). The Notice must include, inter alia, the beginning and ending railroad mileposts, the names of the stations affected, and the zip codes traversed. It must inform readers that "[a]ny interested person ... may file with the Surface Transportation Board written comments concerning the proposed abandonment ... or protests to it," that such comments must be filed within forty-five days of the application, that "the line may be suitable for other public use, including interim trail use," ⁵ and that "[p]ersons opposing the proposed abandonment ... that do wish to participate actively and fully in the process should file a protest." See 49 C.F.R. § 1152.21.

The railroad then files an application for abandonment with the Board fifteen to thirty days after the Notice of Intent. See 49 C.F.R. §§ 1152.20(b), 1152.24(a). The application must be served on some of the same state entities that receive the Notice of Intent and must be available for inspection at relevant railroad stations. See 49 C.F.R. § 1152.24(c).

Within twenty days the Board publishes notice of the application in the Federal Register. See 49 C.F.R. § 1152.24(e)(2). The Federal Register notice explains how anyone can file a comment or protest. See 49 C.F.R. § 1152.22(i).

If a state or local government, or a private entity, is interested in converting the railroad corridor to a trail, it must submit a trail use proposal within forty-five days of the filing of the abandonment application. See 49 C.F.R. § 1152.29(b)(1). Reflecting the statutory criteria of the Trails Act, proposals must include a statement of willingness to manage the corridor, assume liability, and pay taxes. See 49 C.F.R. § 1152.29(a). ⁶

Within 110 days of the filing of the application, the Board determines whether the corridor qualifies for abandonment. See 49 C.F.R. § 1152.26(a). If abandonment conditions are met (and the line is not maintained pursuant to a subsidy or sale agreement under 49 C.F.R. § 1152.27, covering offers of financial assistance), the STB must determine whether any trail use proposals filed conform to § 1152.29(a). If not, the Board authorizes the railroad to abandon the line. ⁷ If there is a qualifying trail use proposal, the railroad may decide whether to attempt to negotiate a trail use agreement with the prospective trail operator. See 49 C.F.R. § 1152.29(b)(1), (d)(1). If the railroad declines that option, abandonment is authorized. See 49 C.F.R. § 1152.29(b)(1)(ii). If negotiations prove unsuccessful, the railroad is authorized to abandon the line after 180 days. See 49 C.F.R. § 1152.29(c). If an agreement is reached the corridor becomes a trail and abandonment is not authorized.

In this way, the conversion from railroad to trail use blocks the abandonment of the corridor even though the conditions for abandonment are otherwise met. But for the negotiation of a trail use agreement, state property law would be revived and, possibly, trigger the extinguishment of rights-of-way and the vesting of reversionary interests. When such a reversion is blocked, the interim trail use has been deemed a taking, see Preseault v. United States, 100 F.3d 1525, 1550, 1552 (Fed.Cir.1996) (in banc), and the holder of a reversionary interest that does not vest because of a trail use may seek compensation in the United States Court of Federal Claims under 28 U.S.C. § 1491(a)(1) (the Tucker Act). See Preseault v. ICC, 494 U.S. 1, 4-5, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990).

B. Rulemaking Proceedings

In 1986 the ICC adopted rules to implement the Trails Act. See Rail Abandonments--Use of Rights-Of-Way as Trails (49 CFR Parts 1105 & 1152), 2 I.C.C.2d 591 (1986). The notice provisions did not (as they do not today) provide for individual notice to holders of reversionary interests of abandonment proceedings, or of the subset of abandonment proceedings involving interim trail use proposals.

Two years later, NARPO asked the ICC to consider whether several revisions should be made in the rules, including whether trail groups making rails to trails proposals should be required to give individualized notice to abutting landowners. NARPO's petition was granted and the 1986 rulemaking was reopened. See Rail Abandonments--Use of Rights-of-Way as Trails--Supplemental Trails Act Procedures, Ex Parte No. 274 (Sub-No. 13), 1988 ICC WL 224273, at * 2 (May 23, 1988) ("we request comments on NARPO's suggestion that trail groups identify themselves to reversionary interest holders, and how this might be implemented"). One year later, however, the ICC decided not to change its original notice requirements in this respect. See Rail Abandonments--Use of Rights-of-Way as Trails--Supplemental Trails Act Procedures, Ex Parte No. 274 (Sub-No. 13), 1989 ICC WL 238631 (May 18, 1989). The ICC explained that NARPO's alleged notice deficiency was not a real problem because of already available notice mechanisms, "abundant local publicity about trail proposals," and frequent local public hearings, and that "any requirement to identify, locate and notify reversionary interest holders--individually or through a general published notice--would be a time-consuming, expensive and burdensome task." Id. at * 5 & n. 7. Further, such individualized notice did not fit with "our limited role and responsibilities under the Trails Act" and "would be inconsistent with the purposes of the Trails Act, which is to encourage and facilitate the...