United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 1, 1998 Decided September 22, 1998
No. 97-1516
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
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. Mat-
zen, 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.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: In 1996, the Surface Transportation
Board ("STB" or "Board") issued a Notice of Proposed Rule-
making 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 Com-
merce 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 main-
tained 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 origi-
nal 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, s 402, 41 Stat. 456, 477-78. See Chicago & N.W. Transp.
Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 319-20 (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.
s 10903(a)(1), (d); National Wildlife Fed'n, 850 F.2d at 704.
When abandonment approval is given, however, federal regu-
latory 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 creat-
ed the current version of the so-called "rails to trails" pro-
gram. See Pub. L. No. 98-11, s 208, 97 Stat. 42, 48 (codified
as amended at 16 U.S.C. s 1247(d)) ("Trails Act").3 Under
__________
1 The word "abandon" has a precise meaning in this regulatory
scheme. An abandoned railroad corridor is one that is no longer
used for rail service and is removed from the national transporta-
tion system. See Preseault v. ICC, 494 U.S. 1, 5-6 n.3 (1990). A
line that is no longer in use, but has not been officially abandoned,
may be reactivated later and is termed "discontinued." See id.
2 The Board authorizes abandonment when it "finds that the
present or future public convenience and necessity require or
permit the abandonment...." 49 U.S.C. s 10903(d).
3 Section 1247(d) states in full:
The Secretary of Transportation, the Chairman of the Surface
Transportation Board, and the Secretary of the Interior, in
administering the Railroad Revitalization and Regulatory Re-
form Act of 1976 [45 U.S.C.A. s 801 et seq.], shall encourage
the program, railroad corridors otherwise ripe for abandon-
ment 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. s 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. s 1152.20(a)(2).
__________
State and local agencies and private interests to establish
appropriate trails using the provisions of such programs. Con-
sistent with the purposes of that Act, and in furtherance of the
national policy to preserve established railroad rights-of-way
for future reactivation of rail service, to protect rail transporta-
tion 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 pre-
pared 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 abandonment
or discontinuance inconsistent or disruptive of such use.
4 When a railroad seeks abandonment authorization under exemp-
tion procedures pursuant to 49 U.S.C. s 10502 (available when no
local traffic has run on the line in at least two years), the process is
less involved in some respects from the one we describe. See 49
C.F.R. ss 1152.50, 1152.60. The Trails Act rules of 49 C.F.R.
s 1152.29 remain fully applicable. 49 C.F.R. s 1152.50(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. s 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 Transporta-
tion Board written comments concerning the proposed aban-
donment ... 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 abandon-
ment ... that do wish to participate actively and fully in the
process should file a protest." See 49 C.F.R. s 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. ss 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 inspec-
tion at relevant railroad stations. See 49 C.F.R. s 1152.24(c).
Within twenty days the Board publishes notice of the
application in the Federal Register. See 49 C.F.R.
s 1152.24(e)(2). The Federal Register notice explains how
anyone can file a comment or protest. See 49 C.F.R.
s 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.
s 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. s 1152.29(a).6
__________
5 The use is deemed "interim" because the corridor may be
returned to active railroad use in the future. See Birt v. STB, 90
F.3d 580, 583 (D.C. Cir. 1996).
6 Offers of financial assistance and public use proposals may also
be filed. See 49 U.S.C. ss 10904, 10905; 49 C.F.R. ss 1152.27,
Within 110 days of the filing of the application, the Board
determines whether the corridor qualifies for abandonment.
See 49 C.F.R. s 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. s 1152.27, covering offers of
financial assistance), the STB must determine whether any
trail use proposals filed conform to s 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. s 1152.29(b)(1),
(d)(1). If the railroad declines that option, abandonment is
authorized. See 49 C.F.R. s 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. s 1152.29(c). If an
agreement is reached the corridor becomes a trail and aban-
donment 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 compensa-
__________
1152.28. These involve alternative uses for rights-of-way and the
opportunity for any person to avoid abandonment by subsidizing or
purchasing the line. They are not at issue in this case.
7 The railroad is given the option of abandoning the corridor, but
is not required to do so. If the railroad exercises its authority, it
must file a notice of consummation with the STB. 49 C.F.R.
ss 1152.29(e)(2), 1152.50(e). The line is then abandoned and feder-
al jurisdiction over the corridor ends. If a notice of consummation
is not filed within one year, abandonment authorization expires
(unless there are legal or regulatory barriers to consummation) and
the line cannot be abandoned without a new proceeding. 49 C.F.R.
s 1152.29(e)(2).
tion in the United States Court of Federal Claims under 28
U.S.C. s 1491(a)(1) (the Tucker Act). See Preseault v. ICC,
494 U.S. 1, 4-5(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 aban-
donment proceedings, or of the subset of abandonment pro-
ceedings involving interim trail use proposals.
Two years later, NARPO asked the ICC to consider wheth-
er 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 landown-
ers. 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 Abandon-
ments--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, ex-
pensive 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 interim use as trails of railroad
rights-of-way that might otherwise be abandoned." Id. at *4,
*5. The Commission reiterated that reasoning in denying
NARPO's petition for reconsideration.8 See Rail Abandon-
ments--Use of Rights-of-Way as Trails--Supplemental
Trails Act Procedures, Ex Parte No. 274 (Sub-No. 13), 1990
ICC WL 287321 (Feb. 13, 1990). NARPO did not seek
judicial review.
In 1994, NARPO again asked the ICC to require railroads
or prospective trail operators to give individual notice to
landowners along the railroad corridor. This time NARPO
framed its request as a petition for a new rulemaking, not the
reopening of a prior rulemaking. The ICC denied this peti-
tion as well. See Rail Abandonments--Use of Rights-of-
Way as Trails--Supplemental Trails Act Procedures, Ex
Parte No. 274 (Sub-No. 13), 1994 ICC WL 390552 (July 27,
1994). NARPO asked this court to set aside the denial. We
explained that "an agency decision not to initiate rulemaking
is accorded extraordinary deference" and is only reversed in a
"rare and compelling case," National Ass'n of Reversionary
Property Owners v. ICC, No. 94-1581, 1995 WL 687741, at *3
(D.C. Cir. Nov. 3, 1995) (quotation marks and citations omit-
ted), and concluded that NARPO did not present such a case.
Id. at *4.
The ICC was abolished effective January 1, 1996, and its
railroad abandonment and interim trail use responsibilities
passed to the STB. See ICC Termination Act of 1995, Pub.
L. No. 104-88, ss 101, 201, 317, 109 Stat. 803, 804, 933-34,
949 ("ICCTA"). The ICCTA made some changes to the
abandonment application process, such as eliminating the
processing timetable and requiring that offers of financial
assistance be filed within four months of an abandonment
__________
8 In its denial of reconsideration the ICC also explained why the
case of Londoner v. City & County of Denver, 210 U.S. 373 (1908),
cited by NARPO, was inapposite. See Rail Abandonments--Use of
Rights-of-Way as Trails--Supplemental Trails Act Procedures,
Ex Parte No. 274 (Sub-No. 13), 1990 ICC WL 287321, at *2-*3
(Feb. 13, 1990).
application, see 49 U.S.C. s 10904(c), but no changes were
made to the Trails Act procedures.
In order to implement the ICCTA's changes and to make
other revisions to 49 C.F.R. pt. 1152 (governing abandonment
and discontinuance, and encompassing the Trails Act regula-
tions), the STB published a Notice of Proposed Rulemaking
("NPRM") on March 19, 1996. Abandonment & Discontinu-
ance of Rail Lines and Rail Transportation Under 49 U.S.C.
10903, 61 Fed. Reg. 11,174 (1996).9 In its NPRM, the STB
proposed to:
(1)modify the schedule for processing abandonment
applications (among other changes, the NPRM pro-
posed giving Federal Register notice earlier in the
process),
(2)add NARPO and the Rails to Trails Conservancy
("RTC") to the list of entities that must be served
with a Notice of Intent,
(3)add zip codes to the identifying information that
railroads must provide,
(4)require railroads to provide draft Federal Register
notices,
(5)relax the requirement for filing system diagram
maps which identify lines that are, or may soon be,
the subjects of abandonment applications,
(6)eliminate the summary application process, which
allowed applicants anticipating no substantial or
material opposition to omit certain information
from its application,
(7)eliminate separate procedures for bankrupt rail-
roads,
(8)add the notice of consummation filing requirement,
(9)stop issuing certificates when abandonment appli-
cations are granted and issue only decisions in-
stead,
(10)modify the content requirements for abandonment
applications,
__________
9 The NPRM also proposed conforming changes to its environ-
mental rules in 49 C.F.R. pt. 1105.
(11)modify the financial assistance regulations,
(12)modify the method of making certain financial
calculations in abandonment applications, and
(13)eliminate an appendix from its regulations.
See id. at 11,175-79.
NARPO filed comments asking the STB to require actual
notice of interim trail use proposals to each owner of land
along a line proposed for abandonment. Consistent with its
previous decisions, the STB rejected NARPO's proposal. See
Abandonment and Discontinuance of Rail Lines and Rail
Transportation Under 49 U.S.C. 10903, 61 Fed. Reg. 67,876,
67,877 (1996) ("Final Rule"). The STB repeated perfunctorily
its previous responses to the same NARPO request, i.e., that
actual notice is not feasible or necessary, citing to those
previous decisions. Id.10
NARPO then filed a petition for reconsideration, again
asking the STB to require individualized notice. The STB
again declined on the same grounds, see Abandonment and
Discontinuance of Rail Lines and Rail Transportation Un-
der 49 U.S.C. 10903, Ex Parte No. 537, 1997 ICC WL 351419,
at *1-2 (June 18, 1997), this time including a brief discussion
of Preseault v. ICC and Preseault v. United States, explaining
why neither case dictated a contrary result.11 See id. at *2.
NARPO filed a petition for review with this court, claiming
that the Fifth Amendment's Due Process Clause requires
actual notice of trail use proposals to holders of reversionary
interests because a rails to trails conversion sometimes causes
a taking. The STB and the United States filed a motion to
__________
10 Because of NARPO and RTC's opposition to their inclusion on
the list of entities receiving Notices of Intent that proposal was
dropped. 61 Fed.Reg. at 67,877.
11 In the former case, the Supreme Court upheld the constitution-
ality of the Trails Act. See Preseault, 494 U.S. at 4-5. In the
latter case, the Federal Circuit held that a conversion to interim
trail use was a taking when the railroad originally obtained only an
easement that did not encompass trail use. See Preseault, 100 F.3d
at 1552.
dismiss as untimely. RTC and the Association of American
Railroads intervened in support of respondents.
II. Analysis
After the ICC's denial of NARPO's petition for reconsider-
ation of its individualized notice proposal in 1990, NARPO
had sixty days to seek review in this court under the Hobbs
Act. See 28 U.S.C. s 2344. It did not do so. NARPO
argues that the 1996 STB rulemaking reopened the issue of
individualized notice so that the sixty-day period runs anew
from the most recent denial of that proposal. See, e.g., Ohio
v. U.S. EPA, 838 F.2d 1325, 1328-29 (D.C. Cir. 1988). Appel-
lees and intervenors disagree that the issue was ever re-
opened in the 1996 rulemaking, so that the earlier denials
remain intact and the time for requesting their review has
consequently passed. Because the time constraints of s 2344
are jurisdictional, see, e.g., United Transp. Union-Ill. Legis-
lative Bd. v. STB, 132 F.3d 71, 75 (D.C. Cir. 1998) ("UTU"), if
NARPO's reopening theory does not apply, we are without
jurisdiction to consider NARPO's due process claim.12
The reopening doctrine is well established in this circuit,
creating "an exception to statutory limits on the time for
seeking review [of an agency decision]...." Id. at 75-76.
Questions of its application arise in situations where an
agency conducts a rulemaking or adopts a policy on an issue
at one time, and then in a later rulemaking restates the policy
or otherwise addresses the issue again without altering the
original decision. We have said that when the later proceed-
ing explicitly or implicitly shows that the agency actually
reconsidered the rule, the matter has been reopened and the
__________
12 Intervenor RTC raises an additional jurisdictional issue, ques-
tioning NARPO's standing. While an intervenor can only address
issues raised by a party, see, e.g., Illinois Bell Tel. Co. v. FCC, 911
F.2d 776, 786 (D.C. Cir. 1990), this court may consider standing sua
sponte. See, e.g., Steffan v. Perry, 41 F.3d 677, 697 n.20 (D.C. Cir.
1994) (en banc). We find that NARPO's petition for review con-
tains allegations sufficient to support standing even though, inexpli-
cably, it did not repeat those allegations in its briefs.
time period for seeking judicial review begins anew. See
Public Citizen v. NRC, 901 F.2d 147, 150 (D.C. Cir. 1990).
"[T]he general principle [is] that if the agency has opened the
issue up anew, even though not explicitly, its renewed adher-
ence is substantively reviewable." Id. (quoting Association of
American R.Rs. v. ICC, 846 F.2d 1465, 1473 (D.C. Cir. 1988)).
To determine whether an agency reconsidered a previously
decided matter, thus triggering the reopening doctrine, a
court "must look to the entire context of the rulemaking
including all relevant proposals and reactions of the agen-
cy...." Id.
There are several factors we have emphasized when decid-
ing if a reopening has taken place. The language of the
NPRM itself is one factor. See id. An explicit invitation to
comment on a previously settled matter, even when not
accompanied by a specific modification proposal, is usually
sufficient to affect a reopening. See Edison Elec. Inst. v.
U.S. EPA, 996 F.2d 326, 332 (D.C. Cir. 1993).
Ambiguity in an NPRM may also tilt toward a finding that
the issue has been reopened. In Association of American
R.Rs., 846 F.2d at 1473, we scrutinized the ICC's rulemaking
notice on the question of what "rate of return" to use when
weighing the subsidization of railroads. We asked whether
the notice reopened the decision, made years earlier, to use a
"real" rate of return when weighing railroad abandonment
applications. See id. Because the rulemaking notice was
ambiguous, and could fairly be read to "suggest[ ] that the
search for harmony might lead to a rethinking of old posi-
tions," we found that the earlier decision was reopened. Id.
When an agency invites debate on some aspects of a broad
subject, however, it does not automatically reopen all related
aspects including those already decided. National Mining
Ass'n v. United States Dep't of Interior, 70 F.3d 1345 (D.C.
Cir. 1995), involved a petition for rulemaking on which the
Department of Interior sought comments asking the Depart-
ment to repeal one old rule (the "NOV" rule) and to modify a
second one. See id. at 1348. The NOV rule addressed the
point at which the Department would issue a notice of viola-
tion to a mine operator not in compliance with the Surface
Mining Control and Reclamation Act or a permit condition.
See id. at 1347. Under the NOV rule, a notice would not be
issued if a state took appropriate action within ten days of
notification by the Department. See id. The second rule
involved the standard used by the Department to assess a
state response to notification of a violation. Id. at 1348.
After inviting comment on the two issues by way of publish-
ing the petition the Department declined to open a rulemak-
ing on the NOV rule, noting that its repeal "had already been
considered in previous rulemakings." Id. The portion of the
petition dealing with the standard for state responses was
granted, however, and a rulemaking initiated on that subject
alone. Id. The petitioner argued that, by publishing and
seeking comments on the NOV repeal request, the Depart-
ment implicitly reopened that issue, and its ultimate decision
not to begin a rulemaking on the repeal of the NOV was
appealable. Id. at 1351. This court disagreed, noting that
"[t]he decision to publish a petition for rulemaking ... is not
evidence of a reexamination of the policy at issue in the
petition." Id. More importantly for present purposes, howev-
er, the petitioner had also argued strenuously that the two
issues were inextricably linked, so that by conducting a
rulemaking on the state response standard the Department
implicitly reopened the NOV rule. See id. We again disa-
greed, explaining that anything less than a direct relationship
between the two rules would be too lax a standard for
triggering the reopening doctrine:
We can scarcely imagine any rulemaking that does not
impact at least several rules that are not explicitly at
issue in the rulemaking. Permitting any affected rule to
be reopened for purposes of judicial review by a rule-
making that does not directly concern that rule would
stretch the notion of "final agency action" beyond recog-
nition....
Id.
We also consider an agency's response to comments filed
by parties during a rulemaking in deciding if a prior rule has
been reopened. See Public Citizen, 901 F.2d at 150. In
UTU, a union sought review of a new STB requirement that
parties submit certain documents on computer diskette, as
well as "the STB's longstanding rules and policies regarding
public access to transcripts and to pleadings and correspon-
dence from docket files." UTU, 132 F.3d at 72. The agen-
cy's proposed rule concerning the diskettes on which it invited
comments did not suggest changing the public access rules
and policies or solicit comments on them. See id. at 76. In
the union's comments filed during the rulemaking, however, it
asked for improved public access. See id. at 74. The STB, in
its Final Rule and modified Final Rule, did reference and list
its existing access mechanisms. See id. at 76. Because "the
STB's discussion of its policies and rules regarding public
access to transcripts, pleadings, and correspondence came
only in response to the UTU's unsolicited comments, and ...
the Board merely reiterated its (and its predecessor's) long-
standing policies," we held that the public access provisions
had not been reopened and that the challenge was therefore
untimely. Id. at 76. Our decision in UTU was in accord with
our earlier statement that:
[t]he "reopening" rule of Ohio v. EPA is not a license for
bootstrap procedures by which petitioners can comment
on matters other than those actually at issue, goad an
agency into a reply, and then sue on the grounds that the
agency had re-opened the issue. To so read Ohio v.
EPA would undermine congressional efforts to secure
prompt and final review of agency decisions.
American Iron & Steel Inst. v. U.S. EPA, 886 F.2d 390, 398
(D.C. Cir. 1989); see also National Mining Ass'n, 70 F.3d at
1352 ("Of course, that a statement accompanies the denial of a
petition for rulemaking is not, without much more, sufficient
to trigger the reopener doctrine.").
In this case, NARPO contends that the STB's NPRM both
explicitly and implicitly reopened the individual notice issue,
and that the STB's responses to its comments and its petition
for reconsideration demonstrate reconsideration on the merits
by the agency.
To support that claim NARPO highlights several parts of
the NPRM:
[T]he Board is proposing to revise part 1152 to imple-
ment the changes brought about by the ICCTA and to
streamline and update the regulations.
We view the ICCTA as reform legislation. As a result,
we are taking this opportunity to examine, reform and
streamline the existing rules and process.
We have also attempted to update the regulations to
improve notice to the public and ensure ample opportuni-
ty for full public participation early in our proceedings,
which we believe will ultimately result in an expeditious
resolution satisfactory to the interested parties.
Because of the importance of proposing rules to imple-
ment the new law as soon as possible, we recognize that
we may have overlooked some potential improvements or
may have proposed to retain provisions or language that
no longer serves a useful purpose. We therefore wel-
come public comments on these proposals, and on any
other areas where changes might be made, to streamline
our abandonment regulations further and to assist us in
carrying out the will of the Congress in the most efficient
manner possible.
We view the notice as a critical step in meeting the new
timeframes applicable to the abandonment process, be-
cause the notice apprises the public of proposed abandon-
ments and ensures that potential concerns are brought to
light at an early stage in the process and addressed.
61 Fed. Reg. at 11,175-76. NARPO also points to three of
the changes proposed by the STB--giving actual notice to
NARPO and RTC, changing the timing of Federal Register
notice, and adding zip codes to identifying information that
railroads seeking abandonment authorization must provide.
NARPO views the language quoted and the specific changes
proposed as evidence that the STB laid open the entire
subject of notice, including the previously resolved question of
individual notice to reversionary interest holders.
We begin our assessment of NARPO's argument with some
initial observations. First, we note that the NPRM included
other more qualifying language than the invitational over-
tures NARPO cites. See id. at 11,175 ("we are not proposing
major revisions at this time to our ... Trails Act rules").
Second, we nonetheless acknowledge that parts of the NPRM
when read in isolation do sound like a call for suggested
changes. Third, we point out that the NPRM does not in any
way mention the subject of individual notice to landowners.
More critically, though, we go on to consider the cited
language in the NPRM in the "entire context of the rulemak-
ing." Public Citizen, 901 F.2d at 150. Indeed, for our
purposes it is the context here that makes all the difference;
it shows why this NPRM, unlike the one at issue in Associa-
tion of American R.Rs., for instance, was not ultimately
ambiguous.
NARPO argues that the STB's NPRM is comparable to the
EPA's solicitation of comments on a proposed rule at issue in
Edison Electric Institute, where we found that the invitation
did act to reopen a prior rulemaking. The EPA had issued in
1986 a hazardous waste storage rule to implement s 3004(j)
of the Resource Conservation and Recovery Act. See Edison
Elec. Inst., 996 F.2d at 329. In 1989 the EPA proposed
another rule on hazardous waste, and explicitly asked for
comments on an alternative interpretation of s 3004(j). Id.
at 329-30. After the agency ultimately adhered to its original
view, we found the reopening doctrine applicable. See id. at
332. In Ohio v. U.S. EPA, we also found that a 1985
rulemaking had reopened 1982 regulations. In that case the
EPA republished the old rules in an NPRM as part of a new
proposal. See Ohio, 838 F.2d at 1328. Although the EPA
explicitly sought comments on the new provisions only, it
discussed the operation of the older ones in "general policy
terms" as part of its statement of basis and purpose and
responded on the merits to a comment on the older rule. Id.
at 1328-29. Ohio relied on Montana v. Clark, 749 F.2d 740
(D.C. Cir. 1984), which found that a 1981 proposal reopened a
1978 rule concerning reclamation fees collected from mine
operators. The proposal "held out [the 1978 rule] as a
proposed regulation, offered an explanation for its language,
solicited comments on its substance, and responded to the
comments in promulgating the regulation in its final form."
Id. at 744. Unlike the proposals and requests for comments
in Edison, Ohio, and Montana, the STB's NPRM in this case
did not mention the settled subject of the earlier rulemak-
ing--owner notice. The STB did not explicitly seek com-
ments on the propriety of not affording individualized notice
or on any alternative approach to dealing with reversionary
interest holders; in short, unlike Edison, Ohio, and Montana,
it did not focus attention in any way on the settled notice
provision.
The three specific proposals in the NPRM involving en-
hanced notice do not themselves in any way suggest or
require a wholesale review of the STB's notice regime. The
proposed change in timing of Federal Register notice was
just that--a change in timing. Such a notice was already
required, only at a different point in the process. The change
was occasioned by the statutory changes made by the ICCTA
to the abandonment process timetable. The second change--
adding NARPO and RTC to the notification list--although
not prompted by the ICCTA, represented only a modification
of a technique currently used by the Board to promote
awareness of abandonment applications; the STB already
required a railroad proposing abandonment to serve cer-
tain entities with its Notice of Intent. See 49 C.F.R.
s 1152.20(a)(2) (1996). Moreover, there is a qualitative as
well as quantitative difference in kind in notifying known
entities, such as NARPO and RTC, about a trail use proposal
and giving notice to all individuals who hold reversionary
interests in land abutting the railroad corridor, in terms of
the ease of ascertaining the identities of such owners and
assuring individualized communication with them. The third
notice change--adding zip codes--is similarly only an easily
accomplished modification to the already existing require-
ments of publication and notice to organizational entities. In
sum, these three specific notice proposals involved incremen-
tal improvements to the methods previously adopted by the
STB to notify potentially interested parties of abandonment
applications. Like the state response standard involved in
National Mining Ass'n, none of these three are inextricably
bound up with the kind of owner-notice sought by NARPO;
in truth, the connection between the proposed changes and
the rule sought to be reopened is much weaker than the one
asserted there. By making these notice proposals, the Board
did not in any way signal its intent to revisit the distinct and
settled subject of individualized notice to those with rever-
sionary interests. At most, the Board signaled a willingness
to tinker with existing notification procedures, but not to
adopt brand new and potentially much more complex and
expensive ones.
Understanding the limited scope of these specific notice
proposals in the NPRM aids in interpreting the expansive
language quoted by NARPO more accurately. The refer-
ences to "improv[ing] notice to the public" and "notice as a
critical step" are most reasonably read simply as expressing
the agency's motivation and rationale for the specific changes
it proposed, not as altering the actual scope of the changes it
would entertain. The Board proposed some relatively minor
modifications to its rules on notice, and in so doing rhetorical-
ly observed the importance of notice in the abandonment and
conversion process. We do not believe such observations
conferred on NARPO a license to challenge a settled and
wholly different decision just because it also involved some
form of notice.
Nor do the references to the ICCTA in the NPRM suggest
reopening. The ICCTA only affected the rails to trails
program insofar as it made changes to the abandonment
process. By eliminating the statutory abandonment process-
ing schedule and requiring that offers of financial assistance
be filed within four months of an application, Congress neces-
sitated the promulgation of a new schedule. As the Board
explained in the NPRM, the ICCTA "generally preserve[d]
requirements for public notice and the opportunity for public
participation in development of a record upon which abandon-
ment ... applications will be decided." 61 Fed. Reg. at
11,175. Thus, in announcing a rulemaking to render the
abandonment regulations consistent with the new statute, the
STB was not pointing up a need or intention to revisit the
question of actual notice to reversionary interest holders.
The new law did not change the notice requirements in such a
way that the STB could not avoid reconsidering the actual
notice issue.
At bottom NARPO's strongest support comes from a sen-
tence it quotes from the background section in the NPRM:
"We ... welcome public comments on these proposals, and on
any other areas where changes might be made, to streamline
our abandonment regulations...." Id. Liberal though that
language may be, we cannot construe the reopener doctrine
to mean that the Board, by that one sentence, threw the
rulemaking open to any possible changes that any member of
the public might conjure up with the result that summary
denial of such changes becomes reviewable by the courts.
Agencies that do not intend to reopen an old rule might do
well to use less hospitable language in their NPRMs, but, on
balance, we consider such a diffuse invitation to be more akin
to "Y'all come and see me" than to a formal invitation to join
in the proceeding. Inserting what amounts to a suggestion
box in the Federal Register hardly eviscerates jurisdictional
time constraints.
We also find less significance than NARPO in words like
"revise," "streamline," "update," "examine," and "reform."
These words, used primarily in the supplementary and back-
ground sections of the NPRM, must also take their meaning
from their context. The context, as we have explained, was
one of making incremental adjustments to existing regula-
tions and updating in light of a statute that did not call the
STB's notice provisions into question. The use of these
words, therefore, does not indicate that the Board was solicit-
ing comments on the settled issue raised by NARPO.
NARPO also directs us to the agency's responses to its
comments, arguing that even if the invitation was not ambigu-
ous the responses reflect a genuine reconsideration by the
agency of whether to provide actual notice to reversionary
interest holders. We think not. In the Final Rule, the Board
did note that some parties had asked for individualized notice,
but in dispensing with the request offered in two paragraphs
basically the same rationale given in 1989 (concluding the
rulemaking on the question), 1990 (denying NARPO's request
to reconsider the 1989 decision), and 1994 (denying NARPO's
petition for a rulemaking on the subject). The mere act of
repeating old reasons for an old policy in response to unsolic-
ited comments is not the equivalent of reconsidering, and
therefore reopening, the old issue. See UTU, 132 F.3d at 76;
Brotherhood of Ry. Carmen v. Pena, 64 F.3d 702, 705-06
(D.C. Cir. 1995). The STB did precisely the same thing in
responding to NARPO's 1997 request for reconsideration,
adding only a brief explanation of why two cases did not
require a different result. Needless to say, simply noting
that a longstanding policy is not in conflict with two recent
cases in response to an unsolicited comment is not enough to
reopen the policy itself.
III. Conclusion
We find that the STB did not reopen the question of
individualized notice to landowners abutting the railroad cor-
ridor which its predecessor, the ICC, had addressed in an
earlier rulemaking. Accordingly, because NARPO's petition
for review was not filed within sixty days of the earlier
decision, we have no jurisdiction to consider it. The motion
to dismiss is granted.
So ordered.