Nebraska Trails Council v. Surface Transp. Bd., 96-3656

• Citation: 120 F.3d 901
• Decision Date: 31 July 1997
• Docket Number: No. 96-3656,96-3656
• Parties: 27 Envtl. L. Rep. 21,560 NEBRASKA TRAILS COUNCIL; Rails to Trails Coalition of Kansas; Iowa Trails Council; East Alabama Regional Planning & Development Commission; Ozark Greenways, Inc.; Friends of the Pumpkinvine Nature Trail, Inc.; Chaparral Rails to Trails, Inc.; Kentucky Rails to Trails Council; Rails to Trails Conservancy, Petitioners, v. SURFACE TRANSPORTATION BOARD; United States of America, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 901

120 F.3d 901

27 Envtl. L. Rep. 21,560

NEBRASKA TRAILS COUNCIL; Rails to Trails Coalition of Kansas; Iowa Trails Council; East Alabama Regional Planning & Development Commission; Ozark Greenways, Inc. Friends of the Pumpkinvine Nature Trail, Inc.; Chaparral Rails to Trails, Inc.; Kentucky Rails to Trails Council Rails to Trails Conservancy, Petitioners, v. SURFACE TRANSPORTATION BOARD; United States of America, Respondents.

No. 96-3656.

United States Court of Appeals Eighth Circuit.

Submitted May 19, 1997.

Decided July 31, 1997.

Charles H. Montage, Seattle, WA, argued (Andrea Ferster, Washington, DC, on the brief), for petitioners.

Evelyn G. Kitay, Washington, DC, argued (Albert M. Ferlo, Jr., on the brief), for respondents.

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BOWMAN, Circuit Judge.

Petitioners, which are several nongovernmental organizations interested in fostering recreational trails, seek review of a decision of the Surface Transportation Board (STB) establishing a $150 fee on requests to use or acquire proposed-to-be-abandoned railroad rights-of-way for interim recreational trail use and rail banking. ¹ This Court has jurisdiction to review a final order of the STB pursuant to 28 U.S.C. §§ 2321(a), 2342(5) (Supp. I 1995). Because we find that this fee is not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law, the petition for review is denied.

I.

The Independent Offices Appropriation Act (IOAA), 31 U.S.C. § 9701 (1994), represents the core of the statutory framework guiding the STB's decision. The IOAA seeks to make "each service or thing of value provided by [a federal] agency ... self-sustaining to the extent possible," id. § 9701(a), by authorizing the head of each agency to "prescribe regulations establishing the charge for a service or thing of value provided by the agency," id. § 9701(b). The charges must be fair and based on the Government's costs, the value of the service or thing to the recipient, the public policy or interest being served, and other relevant facts. See id.

The STB issues regulations establishing fees for a variety of its services. Because of the STB's exclusive jurisdiction over transportation by rail carriers, which includes jurisdiction over the abandonment of railroad lines, see 49 U.S.C. § 10501(b) (Supp. I 1995), many of the STB's services relate to abandonment proceedings. A rail carrier "who intends to ... abandon any part of its railroad lines ... must file an application relating thereto with the [STB]," and the abandonment must be carried out in accordance with 49 U.S.C. §§ 10901-10907 (Supp. I 1995). 49 U.S.C. § 10903(a)(1) (Supp. I 1995); see also Grantwood Village v. Missouri Pac. R.R., 95 F.3d 654, 659 (8th Cir.1996) (recognizing the exclusive jurisdiction of the Interstate Commerce Commission (ICC) ² to deem a railroad right-of-way abandoned), cert. denied, --- U.S. ----, 117 S.Ct. 1082, 137 L.Ed.2d 216 (1997). A rail carrier may abandon a part of its railroad lines "only if the [STB] finds that the present or future public convenience and necessity require or permit the abandonment." 49 U.S.C. § 10903(d) (Supp. I 1995).

Two primary avenues currently are utilized by the STB in authorizing abandonments. First, in a process involving extensive filing, service, and notice requirements, as well as possible STB hearings, the STB may grant applications submitted by carriers seeking to abandon railroad lines. See Abandonment and Discontinuance of Rail Lines and Rail Transportation Under 49 U.S.C. § 10903, 61 Fed.Reg. 67,876, 67,885-90 (1996) (to be codified at 49 C.F.R. §§ 1152.20-1152.25) [hereinafter Abandonment and Discontinuance]. Second, in certain circumstances, the STB may exempt a proposed abandonment from these regulatory provisions. See 49 U.S.C. § 10502(a) (Supp. I 1995); Abandonment and Discontinuance, 61 Fed.Reg. at 67,916 (to be codified at 49 C.F.R. § 1152.50).

To encourage the preservation of railroad rights-of-way for future rail use and to encourage the establishment of nature trails, Congress enacted the National Trails System Act Amendments of 1983, Pub.L. No. 98-11, 97 Stat. 42, 48. Section 8(d) of the amended National Trails System Act (codified as further amended at 16 U.S.C. § 1247(d) (Supp. I 1995)) provides:

Consistent with the purposes of [the Railroad Revitalization and Regulatory Reform Act of 1976, 45 U.S.C. §§ 801-838 (1994 & Supp. I 1995) ], and in furtherance of the national policy to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use, in the case of interim use of any established railroad rights-of-way pursuant to donation, transfer, lease, sale, or otherwise in a manner consistent with this chapter, if such interim use is subject to restoration or reconstruction for railroad purposes, such interim use 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. If a State, political subdivision, or qualified private organization is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be levied or assessed against such rights-of-way, then the [STB] shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this chapter, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use.

In sum, as long as a third party agrees to assume financial responsibility for the right-of-way, the rail line will not be considered abandoned, and thus not revert to property owners possessing reversionary interests. See Goos v. ICC, 911 F.2d 1283, 1286 (8th Cir.1990). Absent a determination of abandonment, the rail property will remain within the STB's jurisdiction. See Hayfield N. R.R. v. Chicago & N.W. Transp. Co., 467 U.S. 622, 633-34, 104 S.Ct. 2610, 2617-18, 81 L.Ed.2d 527 (1984) (stating that unless ICC attaches post-abandonment conditions to certificate of abandonment, the ICC's authorization of abandonment terminates its jurisdiction).

A party interested in acquiring or using a proposed-to-be-abandoned railroad right-of-way for interim trail use and rail banking must, among other requirements, submit a written protest or comment to the STB, see Abandonment and Discontinuance, 61 Fed.Reg. at 67,889 (to be codified at 49 C.F.R. § 1152.25(a)(1)), and file with the STB a "Statement of Willingness to Assume Financial Responsibility," the content of which is prescribed by regulation, see Abandonment and Discontinuance, 61 Fed.Reg. at 67,894-95 (to be codified at 49 C.F.R. § 1152.29(a)(3)). In a regular abandonment proceeding, if "a railroad agrees to negotiate an interim trail use/rail banking agreement, then the [STB] will issue a CITU [ (Certificate of Interim Trail Use or Abandonment) ] to the railroad and to the interim trail user for that portion of the right-of-way to be covered by the agreement." Abandonment and Discontinuance, 61 Fed.Reg. at 67,895 (to be codified at 49 C.F.R. § 1152.29(c)(1)). In an exemption proceeding, if a railroad agrees to negotiate, then the STB will issue a NITU (Notice of Interim Trail Use or Abandonment). See Abandonment and Discontinuance, 61 Fed.Reg. at 67,895 (to be codified at 49 C.F.R. § 1152.29(d)(1)). If no interim trail use/rail banking agreement is reached within 180 days after issuance of either a CITU or NITU, the railroad is permitted to fully abandon its right-of-way. See Abandonment and Discontinuance, 61 Fed.Reg. at 67,895 (to be codified at 49 C.F.R. § 1152.29(c)(1), (d)(1)). During this 180-day window, a railroad is under no obligation to negotiate with any prospective interim trail user. At the same time, however, a railroad is not limited to negotiating with parties that have previously filed trail use requests. If a trail use requester and a railroad reach agreement concerning interim trail use and rail banking, the agreement is automatically authorized by the CITU or NITU, see Preseault v. ICC, 494 U.S. 1, 7 n. 5, 110 S.Ct. 914, 919 n.5, 108 L.Ed.2d 1 (1990), and no abandonment can occur absent further action by the STB. If a railroad does not wish to negotiate an interim trail use agreement, then no CITU or NITU will be issued, and the STB will act on the abandonment application. See Abandonment and Discontinuance, 61 Fed.Reg. at 67,895 (to be codified at 49 C.F.R. § 1152.29(b)(1)(ii)).

II.

On April 5, 1996, the STB issued a notice of proposed rulemaking concerning the 1996 update to its user fee schedule. See Regulations Governing Fees for Services Performed in Connection with Licensing and Related Services--1996 Update, 61 Fed.Reg. 15,208 (to be codified at 49 C.F.R. pt. 1002) [hereinafter Proposed 1996 Fee Schedule]. The STB proposed a number of new fees, including a $650 fee on each request pursuant to 16 U.S.C. § 1247(d) (Supp. I 1995) for a trail use condition in an abandonment proceeding. See Proposed 1996 Fee Schedule, 61 Fed.Reg. at 15,210 (fee item 27). The $650 figure was based on 1996 cost study data concerning twenty different proceedings where a trail use condition had been requested. The public comments received in response to the proposed fees stressed concerns, inter alia, that the true beneficiaries of trail use requests are not the requesters themselves, but the general public and the railroads whose rights-of-way are preserved through rail banking, and further that the amount of the fee would represent a substantial impediment to groups interested in acquiring railroad rights-of-way for interim trail use.

The STB issued its final revised fee schedule on August 14, 1996. See Regulations Governing Fees for Services Performed in Connection...