Ctzn Agnst Rails v. STB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2001 Decided October 26, 2001

No. 00-1387

Citizens Against Rails-To-Trails,
an unincorporated association, et al.,
Petitioners

v.

Surface Transportation Board and United States of America,
Respondents

Union Pacific Railroad Company, et al.,
Intervenors

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

James R. Baarda argued the cause for petitioners. With
him on the briefs was Nels J. Ackerson.

Evelyn G. Kitay, Attorney, Surface Transportation Board,
argued the cause for respondents. With her on the brief

were Ellen D. Hanson, Deputy General Counsel, and David
J. Lazerwitz, Attorney, U.S. Department of Justice.

Curt A. Fransen, Deputy Attorney General, State of Idaho,
and Howard A. Funke argued the cause for intervenors.
With them on the joint brief were Richard A. Allen, Andrea
Ferster, Allan G. Lance, Attorney General, State of Idaho,
Clive J. Strong, Division Chief, J. Michael Hemmer, Carolyn
F. Corwin, James V. Dolan and Lawrence E. Wzorek.
Charles H. Montange entered an appearance.

Before: Henderson, Randolph and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: A coalition of Idaho land owners
denominated Citizens Against Rails-to-Trails ("CART") peti-
tion for review of the decision of the Surface Transportation
Board in Union Pacific Railroad Company--Abandon-
ment--Wallace Branch, ID, STB Docket No. AB-33 (June
26, 2000). In that decision the Board authorized Union
Pacific to salvage 71.5 miles of its Wallace Branch rail line in
Idaho, subject to four environmental conditions, and also
authorized the right-of-way to be used as a trail pursuant to
the National Trails System Act, 16 U.S.C. s 1247(d) (2000)
("Trails Act"). CART challenges only the authorization of
interim trail use.1 It contends that the Board was required
to assess the environmental impacts of trail use and erred in
not disallowing trail use because the right-of-way is contami-
nated. The Board determined that the National Environ-
mental Policy Act ("NEPA"), 42 U.S.C. ss 4321-4343 (1982),
does not apply to the Trails Act, and that the Trails Act does
not otherwise require an environmental assessment prior to
issuance of a certificate for interim trail use. Because CART
fails to show that these determinations were contrary to law
or unreasonable, we deny the petition.

__________
1 Because CART is challenging only the Board's issuance of a
certificate of interim trail use, the court, for reasons discussed
below, has no occasion to address CART's contentions regarding
the environmental conditions attached to the Board's authorization
of abandonment of the Wallace Line.

 I.

This case is before the court following the Surface Trans-
portation Board's decision on remand from this court in State
of Idaho By and Through Idaho Pub. Utilities Comm'n v.
I.C.C., 35 F.3d 585, 599 (D.C. Cir. 1994). In that case, this
court affirmed the Interstate Commerce Commission's deci-
sion to permit immediate discontinuance of rail operations on
the Wallace Branch rail line, but remanded the Commission's
conditional authorization of salvage. Id. at 599. After fur-
ther proceedings, the Surface Transportation Board, as suc-
cessor to the Commission,2 through its Section of Environ-
mental Analysis, issued for public review and comment a
draft supplemental environmental assessment. Upon review
of the Section's final assessment, the Board concluded that if
salvage is conducted according to the plans worked out by the
railroad and other federal agencies, and if four new environ-
mental mitigation conditions were implemented, then the
railroad's salvage proposal would not have significant adverse
environmental impacts.

The Board also issued a certificate of interim trail use
("CITU") permitting interim trail use and rail banking of the
right-of-way because the State of Idaho and the Coeur d'Al-
ene Tribe had submitted the requisite statement of willing-
ness to assume full responsibility for the property and the
railroad had indicated its willingness to negotiate with them.
The Board rejected CART's argument that the issuance of a
Trails Act authorization required the preparation of environ-
mental documentation under NEPA. The Board took the
position that questions relating to how and whether the right-
of-way should be used as a trail were not questions for the
Board to decide. Viewing its role under the Trails Act as
ministerial, the Board concluded that issuance of a CITU is
not a federal action under NEPA. The Board further ob-
served that the environmental implications of trail use on the
right-of-way had been thoroughly addressed in the detailed

__________
2 See I.C.C. Termination Act of 1995, Pub. L. No. 104-88, 109
Stat. 803 (1995). Hereinafter, we generally refer to the Surface
Transportation Board ("the Board").

studies performed in connection with civil proceedings that
led to a consent decree in 1999.3

II.

CART contends that the Trails Act requires the Board to
implement that Act in a manner to effect its public recreation-
al purposes.4 Consequently, in CART's view, the Board's

__________
3 In 1991, the Coeur d'Alene Tribe sued Union Pacific pursuant
to s 107 of the Comprehensive Environmental Response, Compen-
sation, and Liability Act, 42 U.S.C. s 9607 (1995) ("CERCLA"), for
damages as a result of injuries to natural resources in areas that
include the property at issue in the instant case. A final Consent
Decree, lodged at the end of 1999, was approved the following
summer. See United States & State of Idaho v. Union Pacific, No.
CV 99-0606-N-EJL, and Coeur d'Alene Tribe v. Union Pacific, No.
CV 91-0342-N-EJL (D. Idaho Aug. 25, 2000). The Consent Decree
obligates Union Pacific to remediate all environmental damage
under oversight by the United States, the State of Idaho, and the
Coeur d'Alene Tribe. Union Pacific also remains liable for cleanup
if new information arises indicating that the response actions will
not protect human health and the environment. Finally, Union
Pacific agreed to be responsible into perpetuity for the operation
and maintenance of the various barriers that will be used in
implementing the response actions. Id.

4 CART states in its brief that its members own land that
adjoins the railroad right-of-way and that some members also own
fee simple title to land over which the right of way runs. See
Petitioners' Main Brief at 4. This claim is unchallenged by the
Board. The Tribe, as intervenor, states in its brief that the rail line
runs through the Coeur d'Alene Indian Reservation for 14 miles
and through the Tribe's "ceded area" for the remainder of its full
71.5 mile length, and thus the Tribe is a reversionary interest
holder of the right of way. See Intervenor's Brief at 5 citing Idaho
v. U.S., 121 S. Ct. 2135 (June 18, 2001). As the State of Idaho
explained at oral argument, "ceded area" refers to land the Tribe
originally held but ceded to the United States during initial western
expansion through various treaties. Because the land of CART's
members will be directly affected by the conversion of the right-of-
way to a trail, CART has a sufficient stake in the outcome of the
instant case to give it Article III standing. See State of Idaho By

refusal to consider any environmental, contamination, or hu-
man hazard facts relating to the implementation and conse-
quences of trail use, was contrary to NEPA requirements and
was arbitrary and capricious. Because, CART continues, the
requirements and policies of the Trails Act mandate that a
CITU permit a recreational trail only if the purposes of the
Trails Act, set forth at 16 U.S.C. s 1241 (2000), are satisfied,
the CITU should be revoked, and the rail line declared
abandoned, in view of record evidence that the contamination
in the right-of-way is a human health hazard. Essentially,
then, the court must review the Board's determinations that
(1) NEPA is inapplicable to CITU issuance under the Trails
Act, and (2) the Trails Act itself does not require an environ-
mental assessment before issuance of the CITU.

The Trails Act, as amended by the National Trails System
Act Amendments of 1983, Pub. L. 98-11, 97 Stat. 42, "is the
culmination of congressional efforts to preserve shrinking rail
trackage by converting unused rights-of-way to recreational
trails." Preseault v. I.C.C., 494 U.S. 1, 5 (1990). Under the
Trails Act, the Board must "preserve established railroad
rights-of-way for future reactivation of rail service" by pro-
hibiting abandonment where, if the railroad is willing to enter
into an agreement for trail use, a trail sponsor offers to
assume responsibility for management, payment of taxes, and
legal liability for the right-of-way and agrees to return the
right-of-way should there ever be a proposal to reactivate the
line for rail service. See 16 U.S.C. s 1247(d) (2000). If the
parties reach agreement, the land may be transferred to the
trail operator for interim trail use, subject to Board-imposed
terms and conditions; if no agreement is reached, the rail-
road may abandon the line entirely and liquidate its interests.
See Preseault, 494 U.S. at 7. By deeming interim trail use to
be like discontinuance rather than abandonment, Congress
sought to prevent property interests from reverting to the
landowners under state law. See id. at 8.

__________
and Through Idaho Pub. Utilities Comm'n v. I.C.C., 35 F.3d 585,
590 (D.C. Cir. 1994); Lujan v. Defenders of Wildlife, 504 U.S. 555,
589 (1992).

 The provisions of the Trails Act are straightforward. Sec-
tion 8(d) of the amended Trails Act provides:

If a State, political subdivision, or qualified private orga-
nization 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 Board 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 aban-
donment or discontinuance inconsistent or disruptive of
such use.

16 U.S.C. s 1247(d). The Board has promulgated regulations
requiring sponsors to submit certain documentation describ-
ing the site and indicating the user's willingness to assume
full responsibility for management, legal liability, and taxes,
as well as an acknowledgment of the user's continuing obli-
gation to meet its responsibilities subject to future reactiva-
tion of the right-of-way for rail service. See 49 C.F.R.
s 1152.29. Upon receipt of such documentation, the Board
applies a rebuttable presumption of fitness of a sponsor. See
Jost v. Surface Transp. Bd., 194 F.3d 79, 89 (D.C. Cir. 1999).
Thus, where the railroad is willing to enter negotiations with
the sponsor, the abandonment is deferred and if the parties
reach agreement within a certain time, no abandonment can
occur until the user terminates trail use in an administrative
proceeding; absent an agreement the CITU converts to a
notice of abandonment. See Jost, 194 F.3d at 82; Goos v.
I.C.C., 911 F.2d 1283, 1286 (8th Cir. 1990).

NEPA generally requires federal agencies to examine the
environmental effects of proposed federal actions and to
inform the public of the environmental concerns that were
considered in the agency's decisionmaking. See Baltimore
Gas v. Natural Res. Defense Council, 462 U.S. 87, 97 (1983).
Specifically, NEPA requires agencies to prepare an environ-
mental evaluation for all proposals for "major Federal actions
significantly affecting the quality of the human environment."

42 U.S.C. s 4332(2)(C) (1994). NEPA applies to the Board's
decisions to allow rail line abandonments. See Idaho, 35 F.3d
at 595; 49 C.F.R. s 1105.6(b)(2). On the other hand, the
Board has determined that NEPA does not require analysis
of the environmental effects of possible interim trail use
because the issuance of a CITU is only a ministerial act. See
Iowa Southern Railroad Co.-Exemption-Abandonment in
Pottawattamie, Mills, Fremont and Page Counties, IA, 5
I.C.C. 2d 496, 502-03 (June 7, 1989). The Board adhered to
this position in rejecting CART's arguments.

III.

Because NEPA's mandate is addressed to all federal agen-
cies, the Board's determination that NEPA is inapplicable to
the Trails Act is not entitled to the deference that courts
must accord to an agency's interpretation of its governing
statute. See Chevron v. Natural Res. Defense Council, 467
U.S. 837, 842 (1984); People Against Nuclear Energy v. U.S.
Nuclear Regulatory Comm'n, 678 F.2d 222, 227 n.6 (D.C. Cir.
1982).5 Consequently, the issue of whether the Board erred
in determining that its decision to issue a CITU under Trails
Act is not subject to NEPA is a question of law, subject to de
novo review. See 5 U.S.C. s 706.6 We find no error in the

__________
5 Marsh v. Natural Res. Council, 490 U.S. 360 (1989), estab-
lished that when a court reviews an agency's factual determination
that a major federal action will not "significantly" affect the envi-
ronment, review is governed by the arbitrary and capricious stan-
dard of 5 U.S.C. s 706(2)(A). Thus, Marsh did not resolve the
precise question of what review is appropriate in challenges to
agency actions that raise the threshold legal question whether an
action falls within NEPA in the first place.

6 Section 706 of the APA provides in relevant part:

To the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and determine
the meaning or applicability of the terms of an agency action.
The reviewing court shall--

...

Board's determination.7

The touchstone of whether NEPA applies is discretion.
The twofold purpose of NEPA is "to inject environmental
considerations into the federal agency's decisionmaking pro-
cess and to inform the public that the federal agency has
considered environmental concerns in its decisionmaking pro-
cess." Macht v. Skinner, 916 F.2d 13, 18 (D.C. Cir. 1990)
(quoting Weinberger v. Catholic Action of Hawaii/Peace
Educ. Project, 454 U.S. 139, 143 (1981)). Such information
may cause the agency to modify its proposed action. See, e.g.,
Natural Res. Defense Council v. Morton, 458 F.2d 827, 831
(D.C. Cir. 1972). If, however, the agency does not have
sufficient discretion to affect the outcome of its actions, and
its role is merely ministerial, the information that NEPA
provides can have no affect on the agency's actions, and
therefore NEPA is inapplicable. Thus, in Macht v. Skinner,
the court affirmed the denial of federal action status to a
project where the government had discretion only over a
negligible portion of it. 916 F.2d at 19. Likewise, in Atlanta
Coalition on the Transp. Crisis, Inc. v. Atlanta Regional
Comm'n, 599 F.2d 1333 (5th Cir. 1979), the Fifth Circuit
Court of Appeals held that the Federal Highway Administra-
tion's funding and certification of a regional planning process
was not subject to NEPA because "[t]he federal decisions
involv[ing] whether to certify and whether to fund do not
entail the exercise of significant discretion." Id. at 1344-45.
Other circuit courts of appeal have adopted similar analyses.
See, e.g., Sac & Fox Nation of Missouri v. Norton, 240 F.3d
1250, 1262 (10th Cir. 2001); Sierra Club v. Babbitt, 65 F.3d

__________
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be-

(A) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; ...

7 Several circuits to confront the same question have adopted a
"reasonableness" standard of review. See Northcoast Envtl. Ctr. v.
Glickman, 136 F.3d 660, 667 (9th Cir. 1998); Sugarloaf Citizens
Ass'n v. F.E.R.C., 959 F.2d 508, 511 (4th Cir. 1992); Goos, 911 F.2d
at 1291. We understand this to mean that the courts conducted de
novo review.

1502, 1513 (9th Cir. 1995); Sugarloaf, 959 F.2d at 513; Milo
Cmty. Hosp. v. Weinberger, 525 F.2d 144, 147 (1st Cir. 1975).

To date, only the Eighth Circuit has addressed the precise
issue raised by CART. In Goos, that court reasoned that
because the I.C.C. was required by the Trails Act to issue a
Notice of Interim Trail Use ("NITU") or a CITU whenever a
private party files the statement of willingness to assume
financial responsibility and the railroad agrees to negotiate,
the role of the I.C.C. in the conversion proceedings "is
essentially ministerial." 911 F.2d at 1395-96. The I.C.C.
argued that the issuance of the NITU or CITU was incidental
to the abandonment proceeding pursuant to 49 U.S.C.
s 10903, was not a guarantee of eventual trail use, and that
only the abandonment proceeding was subject to NEPA. Id.
at 1293. The Eighth Circuit agreed. Relying on its prece-
dent,8 the Eighth Circuit focused on the fact that the I.C.C.
has no legal or factual control over the outcome of the
negotiations between the railroad and the trail sponsors; it
can neither compel a trail conversion between unwilling par-
ties nor does it have discretion to refuse one if voluntarily
negotiated. Id. at 1295. The court noted that the I.C.C. had
interpreted s 1247(d) to give it no power to compel a conver-
sion by condemnation of the right-of-way, because Congress
had determined that trail use is desirable for a particular line
only when certain commitments are voluntarily made. Id.
The court concluded that:

Because the I.C.C. has not been granted any discretion
under section 1247(d) to base its issuance of an NITU or
CITU on environmental consequences, ... it would make
little sense to force the I.C.C. to consider factors which
cannot affect its decision to issue an NITU or CITU.

__________
8 In Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269 (8th
Cir.), cert. denied, 449 U.S. 836 (1980), the court held that issuance
of a federal permit for part of a non-federal construction project did
not make the entire project subject to NEPA because there was no
grant of legal control over the entire project. See id. at 272. See
also Ringsred v. Duluth, 828 F.2d 1305, 1308 (8th Cir. 1987).

Id. at 1296. In addition, the court concluded that the I.C.C.
lacked sufficient factual control for NEPA to apply because
the federal government does not fund the conversion and
"there is otherwise no federal involvement sufficient to turn
what is essentially a private, voluntary action into federal
action." Id.

We agree with the Eighth Circuit in Goos that the absence
of significant discretion in the Board regarding issuance of a
CITU removes that issuance from the reach of NEPA.
Heretofore this court has held that the I.C.C. reasonably
interpreted the Trails Act to accord it no power to force
transfers of the rights-of-way when the railroad is unwilling.
See Nat'l Wildlife Fed'n v. I.C.C., 850 F.2d 694 (D.C. Cir.
1988). Further, the court has held that the I.C.C. could
reasonably establish a rebuttable presumption of fitness of a
private sponsor who filed the required documentation. See
Jost, 194 F.3d at 89. In neither case did the court view the
I.C.C.'s role as involving significant discretion with regard to
issuance of a CITU. To the contrary, in Jost the court cited
Goos with approval in observing that the Trails Act requires
that the Board " 'shall' impose a trail condition ... whenever
a railroad is prepared to convey the right-of-way to an
organization that is 'prepared to assume full responsibility'
for management of the line, for liability, and for taxes owed."
Id. at 89 (quoting 16 U.S.C. s 1247(d)).

CART nonetheless contends that the Board has substantial
discretion in deciding to issue a CITU because, in its view,
the Trails Act imposes six decisions on the Board before it
can issue a CITU.9 An examination of the decisions that

__________
9 CART identifies the six decisions to be: "(1) The corridor
must be suitable for use as a public recreational trail as part of the
national trails system, (2) trail use and conditions must be consis-
tent with the National Trails System Act, (3) the corridor must be
preserved for future restoration or reconstruction for railroad pur-
poses, (4) a trail sponsor must be prepared to assume full responsi-
bility for management of rights-of-way as trails, (5) a trail sponsor
must be prepared to assume full responsibility for any liability
arising out of the transfer or use, and (6) once the above conditions
are met, the STB is to impose terms and conditions on a transfer or

CART identifies indicates, however, that they relate either to
the statutory conditions for sponsorship or to decisions that
Congress has determined shall be made by the railroad and
trail sponsor in their voluntary agreement, if any. For
example, the decision whether a corridor is suitable for use as
a public recreational trail as part of the national trails system
has been made by Congress. In the Trails Act, Congress
determined that all rail lines that are to be abandoned are
potentially suitable for trail use and left the precise configura-
tion of the trail use to the parties' voluntary agreement. See
Iowa Southern Railroad Co.-Exemption-Abandonment in
Pottawattamie, Mills, Fremont and Page Counties, IA, 5
I.C.C. 2d 496, 502-03 (June 7, 1989). Although CART might
prefer that the suitability determination be made by the
Board, Congress did not impose that responsibility on the
Board. The Board thus could reasonably interpret its re-
sponsibilities under the Trails Act to be largely ministerial
without, as CART suggests, abdicating its statutory responsi-
bility under NEPA. On the other hand, the decision whether
a trail sponsor is prepared to assume full responsibility for
management of the trail, as well as legal and tax liabilities, is
addressed by the Board through a rebuttable presumption;
no more is required. See Jost, 194 F.3d at 89. For these
reasons, we are unpersuaded that these "six decisions" pro-
vide the Board with sufficient discretion to render NEPA
applicable to issuance of a CITU under the Trails Act.

IV.

CART's alternative contention that the Trails Act itself
requires a separate environmental analysis prior to issuance
of a CITU also fails. In reaching this conclusion, we apply
Chevron, 467 U.S. at 844, to determine whether the Board's
determination that a separate environmental analysis is not
required by s 1247(d) is "a permissible construction of the
statute." Id. at 843.

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conveyance for trail use in a manner consistent with the National
Trails System Act."

 Section 1247(d) directs the Board to issue a CITU subject
to terms and conditions imposed by the Board. It does not
expressly refer to environmental considerations, and the leg-
islative history does not indicate that environmental unfitness
would bar trails conversion and mandate abandonment. See
H.R. Rep. 28, 98th Cong., 1st Sess., p. 8 (1983). As interpret-
ed by the Board, the terms and conditions referred to in
s 1247(d) relate to the requirement that a sponsor assume
the financial and legal obligations associated with the right-of-
way and that use of the land is subject to future restoration of
rail service. See 49 C.F.R. s 1152.29(c)(2) (2000). Thus, if a
qualified trail sponsor submits the required statement of
willingness, and the railroad is willing to negotiate a trail use
agreement, and the Board has approved abandonment of the
rail line, the Board must issue a CITU. See id. at
s 1152.29(c)(1). Official Board policy establishes a presump-
tion of fitness of such a trail sponsor. See Jost, 194 F.3d at
89. Under the Board's interpretation, then, its discretion is
substantially restrained.

Congress' stated purposes in enacting the Trails Act were
twofold: to preserve rail corridors for future railroad use and
to permit public recreational use of trails. See Preseault, 494
U.S. at 10. Accordingly, Congress used language that fo-
cused on those purposes, implicitly leaving environmental
considerations either to environmental assessments accompa-
nying the abandonment proceeding, the parties' agreement,
or other federal or state and local law. Nothing in the text or
the legislative history suggests a contrary Congressional in-
tent. Indeed, because the trails conversion arises after an
abandonment determination in which environmental consider-
ations have been addressed, the scheme Congress envisioned
for trail conversion recognized that the railroad would be
aware of some of its environmental remediation responsibili-
ties before agreeing to discuss an agreement with trail spon-
sors. Because the Board's interpretation of its role in CITU
issuance is consistent with Congress' intention that the par-
ties voluntarily reach agreement on public trail use, we hold
that the Board could reasonably conclude that Congress did

not intend for the Board to conduct a separate environmental
assessment for a CITU.

Finally, it bears noting that the particular concerns CART
raises about the environmental suitability of the railroad's
right-of-way for a public trail are not without remedy. As the
Board noted, the consent decree entered into by the State
and the Tribe with the railroad provides for the environmen-
tal remediation that CART asserts is required. See supra
note 3. This became clear at oral argument when counsel for
CART was unable to identify any further environmental
remediation that would likely result from an environmental
assessment under NEPA. In light of the consent decree, the
additional environmental assessment under NEPA during the
remand in the abandonment proceeding, and the four condi-
tions imposed by the Board, CART fails to show that their
environmental concerns have not been addressed.

Accordingly, we deny the petition.