Town of Springfield, Nj v. Surface Transp.

• Citation: 412 F.3d 187
• Decision Date: 24 June 2005
• Docket Number: No. 04-1280.,04-1280.
• Parties: TOWN OF SPRINGFIELD, NEW JERSEY, et al., Petitioners v. SURFACE TRANSPORTATION BOARD and United States of America, Respondents Union County, New Jersey and Morristown and Erie Railway, Inc., Intervenors
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

412 F.3d 187

TOWN OF SPRINGFIELD, NEW JERSEY, et al., Petitioners v. SURFACE TRANSPORTATION BOARD and United States of America, Respondents

Union County, New Jersey and Morristown and Erie Railway, Inc., Intervenors

No. 04-1280.

United States Court of Appeals, District of Columbia Circuit.

Argued May 19, 2005.

Decided June 24, 2005.

On Petition for Review of an Order of the Surface Transportation Board.

Scott N. Stone argued the cause and filed the briefs for petitioners.

Cecelia H. Cannizzaro, Attorney, Surface Transportation Board, argued the cause for respondents. With her on the brief were Greer S. Goldman and Mark R. Haag, Attorneys, U.S. Department of Justice, Ellen D. Hanson, General Counsel, and Craig M. Keats, Deputy General Counsel.

John D. Heffner and John K. Fiorilla were on the brief for intervenor Union County, New Jersey and Morristown and Erie Railway, Inc. in support of respondents.

Before: RANDOLPH, GARLAND, and ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge.

In July 2002, the Surface Transportation Board awarded the Morristown and Erie Railway a modified certificate of public convenience and necessity to operate two previously-abandoned railway lines in New Jersey. 67 Fed. Reg. 44,928 (July 5, 2002). Those lines, which are located in Union County, pass through five municipalities: the Township of Springfield, the City of Summit, and the Boroughs of Kenilworth, Roselle, and Roselle Park. The State of New Jersey owns the rail lines. The State vested Union County with the authority to oversee the rehabilitation and future use of the lines. Union County entered into a written agreement with the Morristown and Erie Railway to perform the rehabilitation work and operate the lines.

In January 2004, the five municipalities, concerned about several environmental and safety issues, filed a petition asking the Board to reopen its July 2002 decision granting the modified certificate. The Board denied the petition, and the municipalities sought judicial review.

Under the Board's regulation, a petition to reopen "must state in detail the respects in which the proceeding involves material error, new evidence, or substantially changed circumstances." 49 C.F.R. § 1115.4. The municipalities say they satisfied the reopening regulation because Union County first passed a resolution stating that the final stages of the railway rehabilitation would not occur without the municipalities' approval and then passed a second resolution authorizing the Morristown and Erie Railway to complete the rehabilitation even though the municipalities had not consented. According to the municipalities, none of which participated in the original certificate proceeding, the county's original resolution "lulled" them into inaction during the proceeding. This will not wash. The Board proceedings ended in July 2002. Union County adopted the first resolution in August 2002, more than a month later. Before passing the resolution, Union County sent the municipalities several letters indicating that work would not proceed without their consent,...