United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 1997 Decided December 30, 1997
No. 95-1481
Daryl Becker,
Petitioner
v.
Surface Transportation Board and
United States of America,
Respondents
T and P Railway, Inc. and
American Trails Association, Inc.,
Intervenors
Consolidated with
No. 97-1243
On Petitions for Review of Orders of the
Surface Transportation Board
Nels J. Ackerson argued the cause and filed the briefs for
the petitioner. Lynn A. Bulan entered an appearance.
Evelyn G. Kitay, Attorney, Surface Transportation Board,
argued the cause for the respondent, with whom Henri F.
Rush, General Counsel, Ellen D. Hanson, Deputy General
Counsel, and M. Alice Thurston, Attorney, United States
Department of Justice, were on brief. J. Carol Williams and
Jeffrey P. Kehne, Attorneys, United States Department of
Justice, entered appearances.
Fritz R. Kahn was on the brief for intervenors American
Trails Association, Inc., et al.
Before: Edwards, Chief Judge, Henderson and Rogers,
Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Petitioner
Daryl Becker challenges decisions by the Surface Transporta-
tion Board (STB, Board) and the Interstate Commerce Com-
mission (ICC, Commission) authorizing conversion of a rail-
road right-of-way to trail use under the National Trails
System Act (Trails Act), 16 U.S.C. ss 1241 et seq. See T and
P Railway--Abandonment Exemption--in Shawnee, Jeffer-
son and Atchison Counties, KS, Docket No. AB-381, 1997
WL 68,211 (STB Feb. 7, 1997) (JA A302); T and P Rail-
way--Abandonment Exemption--in Shawnee, Jefferson and
Atchison Counties, KS, 1995 WL 424909 (ICC July 5, 1995)
(JA A258).1 Becker, who claims a reversionary interest in
the right-of-way, contends that the Commission lacked juris-
diction to issue a notice of interim trail use (NITU) on March
30, 1994 because the right-of-way was abandoned before that
date. We agree that the right-of-way had been abandoned
and that the Commission therefore lacked jurisdiction to issue
__________
1 The ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat.
803, abolished the ICC and created the STB to assume many of its
functions. The proceeding below spanned the tenure of both bod-
ies.
the NITU.2
The facts are not in dispute. In 1991 T and P Railway, Inc.
(T&P) acquired a 41-mile rail line in Kansas from the Atche-
son, Topeka and Santa Fe Railway Co. In September 1992
T&P applied to the ICC for authorization to abandon the line.
By decision served April 27, 1993 the ICC granted T&P an
abandonment exemption pursuant to then 49 U.S.C. s 10505
(current version at 49 U.S.C. s 10502) and imposed a 180-day
public use condition on the proposed abandonment pursuant
to 49 U.S.C. s 10906. The decision further directed T&P to
notify the Commission within ten days if it was willing to
negotiate for interim trail use and rail banking pursuant to
the Trails Act, 16 U.S.C. s 1247(d). After receiving an
affirmative response, the Commission issued a NITU on May
25, 1993 authorizing T&P to negotiate a trail use agreement
with the Kansas Department of Wildlife and Parks during the
180-day public use period. When the Kansas Department of
Wildlife and Parks later withdrew, T&P agreed to negotiate
with the Kansas Department of Transportation (KDOT) until
the end of the 180-day period but refused to extend negotia-
tions beyond that time. Accordingly, the NITU expired on
November 27, 1993 with no agreement having been reached.
In the meantime T&P had canceled its tariffs and removed all
of the rails and ties from the line.
More than three months later, on March 2, 1994, the
American Trails Association, Inc. (ATA) filed with the Com-
mission a statement of willingness to assume financial respon-
sibility for interim trail use and rail banking of the right-of-
way pursuant to 49 C.F.R. s 1152.29(a). On March 10, 1994
T&P notified the Commission it had negotiated an agreement
to sell the right-of-way to ATA and requested that another
__________
2 The STB recently amended its regulations to require that
railroads desiring to exercise abandonment authority "file a notice
of consummation with the Board to signify that it has exercised the
authority granted and fully abandoned the line." 49 C.F.R.
s 1152.29(e)(2). The requirement of written notice of abandonment
should eliminate uncertainty over whether a particular line has been
abandoned.
NITU issue. By decision dated March 30, 1994, the Commis-
sion reopened the proceeding, determined it retained jurisdic-
tion because T&P had never consummated abandonment of
the right-of-way and issued the requested NITU. On April
14, 1994 ATA and T&P informed the Commission that they
had reached an interim trail use/rail banking agreement.
On April 27, 1994 Becker filed a petition to reopen the
proceedings, to rescind the March 30, 1994 decision and to
dismiss the trail use request for lack of jurisdiction on the
ground, inter alia, that the right-of-way had been abandoned.
The Commission denied the petition on July 5, 1995, again
concluding there had been no abandonment. Becker filed a
motion for reconsideration on August 8, 1995 and on Septem-
ber 18, 1995 petitioned this court for review of the denial.
While the petition was pending the Board denied Becker's
motion for reconsideration on February 7, 1997. On April 8,
1997 Becker petitioned this court for review of that denial.
The sole issue before the court is whether the Board and
the Commission correctly determined that T&P did not aban-
don the right-of-way before the March 30, 1994 NITU issued.
We conclude that the determinations were unsupported by
substantial evidence and that Becker's petition for review of
the Board's decision should therefore be granted.
"In determining whether a railroad has abandoned a line,
one must focus on the railroad's objective intent." Consoli-
dated Rail Corp. v. STB, 93 F.3d 793, 799 (D.C. Cir. 1996).
" 'In determining intent, we look at certain indicia: a line is
fully abandoned when a certificate of public convenience and
necessity ... is issued and has become effective, tariffs have
been canceled and operations have ceased.' " Black v. ICC,
762 F.2d 106, 112 (D.C. Cir. 1985). Id. at 798 (quoting Iowa
Power, Inc.--Construction Exemption--Council Bluffs, IA, 8
I.C.C.2d 858, 863 (1990)). Each of these indicia is present
here. When the NITU expired, T&P had sought and been
granted an exemption from the requirement of a certificate of
public convenience and necessity, see 49 U.S.C. ss 10505,
10903, had ceased service and had canceled its tariffs. In
addition, T&P had taken the further step of removing the
rails and ties from the line. See Consolidated Rail Corp., 93
F.3d at 798 ("Conrail had gone beyond the indicia of intent
that the ICC found to be sufficient in Iowa Power ... it had
... scheduled the commencement of salvage opera-
tions...."). Nevertheless, the Board, relying on Birt v. STB,
90 F.3d 580, 585 (D.C. Cir. 1996), asserted below that "while
discontinued rail service, salvaged track, and tariff cancella-
tion are actions often taken in connection with abandonment,
they also are fully consistent with the lesser action of tempo-
rary cessation of rail operations or trail use" and "are entitled
to little weight where, as here, the railroad's actions demon-
strate an intent not to abandon by its continued willingness to
negotiate." 1997 WL 68,211, at *3 (JA A305). The Board
then concluded that "the railroad's expressed desire and
intention to continue trail use negotiations beyond the 180-
day period shows that in this case, as in Birt, there was no
intent to fully abandon the line." Id. Neither Birt nor the
record supports the Board's position.
It is true that in Birt the court acknowledged that "cessa-
tion of operations, cancellation of tariffs, salvage of the track
and track materials, and relinquishment of control over the
right-of-way ... are equally consistent with temporary cessa-
tion of operations ('discontinuance'), which permits a rails-to-
trails conversion," as they are with permanent abandonment.
90 F.3d at 585-86. The court then concluded that "to deter-
mine whether the railroad's conduct is abandonment or mere
discontinuance, we must often look to additional behavior
which signifies one or the other." Id. at 586. Here, addition-
al behavior signifies abandonment. The sole indication of
discontinuance cited by the Board is T&P's "expressed desire
and intention to continue trail use negotiations beyond the
180-day period," 1997 WL 68,211, at *3 (JA A305).
T&P's "expressed" intent, however, was to the contrary. In
its reply to KDOT's request to extend the negotiation period,
T&P expressed its willingness to accept offers during the
remainder of the 180-day period but stated unequivocally
that KDOT's extension request had "come[ ] too late" and
that T&P was "unprepared to agree to a further six month
extension." JA A212.3 There is no evidence that T&P
intended to negotiate further until its March 10, 1994 notifica-
tion that it had reached an agreement with ATA. Given
T&P's intent to abandon before that time and its expressed
opposition to extension of the negotiation period, we must
conclude that when the May 1993 NITU expired on Novem-
ber 27, 1993 abandonment was consummated and the Board
lost jurisdiction over the line. See 49 C.F.R. s 1152.29(d)(1)
("The NITU will permit the railroad to discontinue service,
cancel tariffs, and salvage track and materials, consistent with
interim trail use and rail banking, 30 days after the date it is
issued, and permit the railroad to fully abandon the line if no
agreement is reached 180 days after it is issued, subject to
appropriate conditions, including labor protection, and envi-
ronmental matters."); Preseault v. ICC, 494 U.S. 1, 5 n.3
(1990) ("Once a carrier 'abandons' a rail line pursuant to
authority granted by the Interstate Commerce Commission,
the line is no longer part of the national transportation
system, and although the Commission is empowered to im-
pose conditions on abandonments, see, e.g., 49 U.S.C.
ss 10905(f)(4), 10906 (1982 ed.), as a general proposition ICC
jurisdiction terminates.").4 The Board then was without jur-
isdiction to issue the second NITU on March 30, 1994.5
__________
3 Both the Commission's final decision and the Board's denial of
reconsideration ignore these statements.
4 We cannot accept the Board's suggestion that T&P's silence
indicated intent not to abandon. See 1997 WL 68,211, at 3. Not
only is this view unsupported by precedent or logic--its adoption
would permit a railroad to sit on an unused line indefinitely with no
indication of its status. The Board's new regulations requiring
written notice of consummation avoid this result by providing for
automatic expiration of abandonment authority after one year if no
notice of consummation has been filed. See 49 C.F.R.
s 1152.29(e)(2).
5 In light of this conclusion we need not address Becker's chal-
lenge to the ATA's qualifications or the adequacy of the STB's
review of them.
For the preceding reasons, the petition for review of the
Board's February 7, 1997 denial of reconsideration is
Granted.