STB REPORT #7 - APRIL 1 - 15, 1998 ****************************************************************************** A compilation of decisions and notices published by the Surface Transportation Board. Includes information on track abandonments, ownership changes and trackage rights agreements. Condensed for readability. The full text is available at www.stb.dot.gov/ ****************************************************************************** SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-312 (Sub-No. 2X) SOUTH CAROLINA CENTRAL RAILROAD COMPANY, INC., D/B/A CAROLINA PIEDMONT DIVISION--ABANDONMENT EXEMPTION--IN GREENVILLE COUNTY, SC By petition filed December 12, 1997, South Carolina Central Railroad Company, Inc., d/b/a Carolina Piedmont Division (CPDR), seeks an exemption to abandon two segments of its line of railroad extending from: (1) milepost AJK 585.34, in East Greenville, SC, to milepost AJK 588.63 in Greenville, SC; and (2) milepost 0.0 to milepost 2.0 in Greenville, a total distance of 5.29 miles, in Greenville County, SC. We will grant the exemption, subject to environmental and standard employee protective conditions. In April 1997, CPDR purchased the northern segment of the line (between milepost 0.0 and milepost 2.0) as part of an 11.8-mile line acquisition from the Greenville & Northern Railway (G&NR). According to CPDR, there are no rail shippers located on the northern segment of the line and no train has operated on this segment since 1993 because one of the bridges partially washed out and the line is in extremely poor condition. CPDR states that, prior to 1993, the northern segment was used by G&NR solely for movements of rail equipment to and from repair and storage facilities near milepost 0.0. In 1990, CPDR purchased the southern segment of the line (between milepost AJK 585.34 and milepost AJK 588.63) from CSX Transportation, Inc. According to CPDR, Boral Brick Company (BBC) is the only active shipper located on the southern segment, and the only traffic moving over this segment during the past several years has been inbound shipments of brick. CPDR states that alternative transportation is available to BBC over the extensive highway network in the area. CPDR asserts that BBC has been using motor carriers to meet more than 95% of its shipping needs and uses rail only as a last resort. CPDR indicates that BBC received 50 carloads in 1992, 65 carloads in 1993, 65 carloads in 1994, 34 carloads in 1995, 37 carloads in 1996, and 60 carloads in 1997 (through November). CPDR states that the southern segment of the line is constructed predominantly of 80 and 85 pound rail, rolled between 1910 and 1925, and that the track is in fair condition. In order to continue operating over this segment, however, CPDR submits that an average of 500 ties per mile would need to be replaced and washouts would need to be repaired. CPDR also provided rehabilitation figures estimating what it would cost to restore the entire line to Federal Railroad Administration (FRA) class 1 standards. According to CPDR, significant work is required on one bridge, about 30% of the ties need to be replaced, additional ballast is required, and nearly 3.2 miles of track will have to be resurfaced. The estimated cost of rehabilitating both the northern and southern segments of the line to FRA class 1 standards is $128,500. An exemption will foster sound economic conditions and encourage efficient management by relieving CPDR from the costs of rehabilitating and maintaining the line, and by allowing CPDR to use its assets more productively elsewhere on its system. SEA indicated that the U.S. Department of Commerce, National Geodetic Survey (NGS), has identified two geodetic station markers that could be affected by the proposed abandonment. Therefore, SEA recommends that a condition be imposed requiring CPDR to consult with NGS and provide it with 90 days notice prior to disturbing or destroying any geodetic marker. It is ordered: 1. Under 49 U.S.C. 10502, we exempt from the prior approval requirements of 49 U.S.C. 10903 the abandonment of the above-described line, subject to the employee protective conditions in Oregon Short Line R. Co.--Abandonment--Goshen, 360 I.C.C. 91 (1979), and the condition that CPDR shall consult with the NGS and provide it with 90 days notice prior to disturbing or destroying any geodetic marker. 2. CPDR must serve a copy of this decision on BBC within 5 days after the service date of this decision and certify to the Board that it has done so. 3. Provided no OFA has been received, this exemption will be effective on May 1, 1998. 4. CPDR shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by CPDR's filing of a notice of consummation by April 1, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: March 30, 1998 Service Date: April 1, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION Docket No. AB-433 (Sub-No. 2X) IDAHO NORTHERN & PACIFIC RAILROAD COMPANY-- ABANDONMENT AND DISCONTINUANCE EXEMPTION-- IN WASHINGTON AND ADAMS COUNTIES, ID STB Docket No. AB-33 (Sub-No. 100X) UNION PACIFIC RAILROAD COMPANY--DISCONTINUANCE OF SERVICE EXEMPTION--IN WASHINGTON COUNTY, ID STB Finance Docket No. 33305 UNION PACIFIC RAILROAD COMPANY--ACQUISITION EXEMPTION-- IDAHO NORTHERN & PACIFIC RAILROAD COMPANY On July 23, 1997, the Coalition of Concerned Citizens (CCC) filed a petition to reopen these proceedings. Friends of the Weiser River Trail, Inc. (Friends) filed a reply on July 25, 1997. Various interests submitted comments and letters. Comments/letters were filed by Union Pacific Railroad Company (UP), Idaho Senator Dirk Kempthorne, the Washington County Board of Commissioners, the Adams County Board of Commissioners, Robert and Gerlene A. Hash, Evelyn Snider on behalf of Starkey Hot Springs Summer Resort, Douglas M. Scism, Philip and Virginia Govedare, and Duane Fairchild. We will deny the petition to reopen. CCC and Friends argue about whether CCC has standing to participate in these proceedings. Because CCC is already a party of record and has participated in these cases, the standing issue has already been resolved in its favor. Consequently, we will not discuss it further. On March 17, 1995, Idaho Northern & Pacific Railroad Company (IN&P) filed a petition for exemption to: (1) abandon approximately 83.1 miles of rail line formerly owned by Union Pacific Railroad Company (UP) between milepost 1.0 near Weiser and milepost 84.1 at Rubicon, in Washington and Adams Counties, ID; and (2) discontinue trackage rights over a rail line owned and operated by UP between milepost 0.0 and milepost 1.0 in Weiser. By decision served November 1, 1995, the former Interstate Commerce Commission (ICC) granted the exemption, subject to standard labor protective conditions, environmental conditions, and a public use condition. The public use condition expired on May 28, 1996. On December 28, 1995, the ICC served a decision and notice of interim trail use or abandonment (NITU), authorizing a 180-day period for the Idaho Department of Parks and Recreation (IDPR) to negotiate an interim trail use/rail banking agreement with IN&P for the right-of-way. On May 31, 1996, IDPR requested a 180-day extension of time to negotiate under the NITU. On June 14, 1996, UP informed the Board that IN&P had reconveyed the line to it on May 14, 1996; UP, however, also agreed to the extension request. On June 17, 1996, a letter- petition was filed by Ron D. Blendu, Donna Servatius, and Dave C. Springer on behalf of CCC, requesting rejection of IDPR's extension request. On June 21, 1996, two additional trail use requests were filed by Friends and the City of Weiser, ID (the City), although the City was actually seeking trail use over the 0.5-mile segment of line sought to be abandoned in STB Docket No. AB-33 (Sub-No. 100X). On June 24, 1996, UP agreed to negotiate with those parties. By decision served July 5, 1996, the proceeding was held in abeyance (including any action on the outstanding NITU extension request) to allow IN&P and UP to clarify the status and ownership of the Weiser-Rubicon line. On July 24, 1996, CCC filed a petition for administrative review of our July 5, 1996 decision contending, among other things, that the Board lacked jurisdiction to hold the proceeding in abeyance but, rather, was required either to grant the NITU extension or to authorize final abandonment. By decision served November 14, 1996, we: (1) continued to hold the proceeding (including the NITU extension request) in abeyance; (2) directed UP to undo its acquisition of the line from IN&P or to file an application or a petition for exemption to acquire the line; and (3) denied CCC's petition for administrative review. By letter filed December 10, 1996, IDPR notified the Board that Friends would take its place as the new trail use negotiating party. UP agreed. On February 28, 1997, a new NITU decision was served which: (1) denied CCC's letter-petition opposing IDPR's extension request; (2) authorized Friends to negotiate an interim trail use/rail banking agreement with UP; and (3) extended the negotiation period under the NITU for 180 days, until August 27, 1997. By notice served and published in the Federal Register on July 29, 1996, the Board exempted UP's abandonment of a 0.5-mile segment of rail line adjacent to the line in Docket No. AB-433 (Sub-No. 2X), extending from milepost 0.5 to the end of the line at milepost 1.0, near Weiser, in Washington County, ID. On August 22, 1996, the City filed a NITU request resulting in the issuance of a decision and notice of interim trail use or abandonment on September 18, 1996. During the negotiating period, on December 6, 1996, Friends, a new potential trail sponsor, filed another NITU request. On December 11, 1996, UP indicated its willingness to negotiate with Friends for trail use/rail banking of the line. Accordingly, by decision served December 20, 1996, a NITU was issued, providing 180 days, until June 18, 1997, for Friends to negotiate an interim trail use arrangement with UP. In compliance with the Board's November 14, 1996 decision in Docket No. AB-433 (Sub-No. 2X), UP filed a notice of exemption on December 12, 1996, to acquire the involved line of railroad from IN&P, subject to negotiations for trail use. Notice of the filing was served and published in the Federal Register on January 3, 1997. By letter filed June 19, 1997, UP notified the Board that it had reached an agreement with Friends on June 17, 1997, regarding interim trail use on the right-of-way in both abandonment proceedings. By letter filed August 13, 1997, UP notified the Board that the right-of-way (including ballast, bridges and culverts) between milepost 0.5 near Weiser and milepost 84.1 at Rubicon had been conveyed to Friends, effective August 2, 1997. By letter filed August 22, 1997, Friends notified the Board that it had acquired the rail corridor. CCC, a non-profit corporation, states that many of its members are adjacent landowners that allegedly have reversionary property rights in portions of the right-of-way. CCC asserts again, as in its prior petition for administrative review, that the Board lacked authority in its July 1996 decision to hold the proceeding in abeyance in Docket No. AB-433 (Sub-No. 2X). CCC claims that the Board was required either to grant the NITU extension or to authorize final abandonment. Moreover, CCC argues that there has been both a de facto and de jure abandonment by IN&P and UP of the subject right-of-way here. CCC asserts that the railroads, by refusing to repair bridges and trestles or to pay taxes on the property, coupled with the physical removal of all rails, ties and crossings, have demonstrated a clear intent to completely abandon the line. CCC contends that, because a trail use agreement was not finalized during the initial negotiation period, and because no extension was granted before that period expired, as of May 28, 1996, the abandonment became final as a matter of law, the agency lost jurisdiction over the lines, and the right-of-way reverted under state law to the adjacent landowners. CCC adds that Friends is not a "qualified private organization" and is not financially prepared to assume full responsibility for management of the right-of-way. CCC states that Friends signed statement of willingness to assume financial responsibility for the property, which is all that is required by our Trails Act implementing procedures, is not enough to demonstrate that Friends has the ability to meet the financial and liability conditions in the statute. CCC asserts that the Board's failure to further evaluate whether Friends is financially able to manage the corridor constitutes material error. CCC is concerned that the poor condition of rail structures on the line and the rugged terrain of the right-of-way could lead to significant current and future liabilities as a result of injuries to persons and livestock. CCC also asserts that Friends may not have the financial capability to pay for a variety of tasks and services that it believes will be needed on this right-of-way. (For example, repairing and maintaining bridges, trestles and signage, spraying and controlling noxious weeds, providing fencing, parking and restrooms, conducting an environmental cleanup, and offering such services as fire suppression/fighting, law enforcement, security, search and rescue, and emergency medical response.) CCC suggests that the Trails Act arrangement is merely an attempt by the railroads to unload their liabilities on an underfunded, nonprofit organization. Finally, according to CCC, Friends has not provided any information concerning its financial backing, its net worth, or its ability to actually meet its financial obligations. Petitioner notes that state and local governments oppose transfer of the corridor and development of a trail, and have refused to provide any funding for those purposes. For these reasons, CCC asks us to: (1) enter a decision declaring the subject rail line abandoned and denying approval of the proposed transfer of the right-of-way from UP to Friends; or (2) conduct hearings concerning (a) the impact of the proposed transfer on small businesses in the area, (b) whether the subject line should be declared abandoned, and (c) whether Friends is able to assume financial responsibility for the line; or (3) impose a series of environmental and public safety conditions in the event the transfer to Friends is approved. CCC also asserts that any trail use negotiations between UP and Friends should be open and involve public hearings, and that the parties should be required to submit a copy of their trail use agreement and copies of any relevant property deeds to the Board, which should evaluate those documents before approving any deal. However, the procedures established by the Board and the ICC have been repeatedly upheld by the courts. If CCC wishes to propose additional requirements, it should file a formal petition for rulemaking setting forth specific suggestions for the Board to consider and providing reasons why the Board should devote its scarce resources to imposing additional regulatory requirements in this area. In reply, Friends asserts that CCC has not shown that it lacks adequate financial resources to be a trail manager or that it does not intend to honor its obligations under the statute. Friends argues that CCC does not indicate anything that Friends should now be doing that it is not doing by reason of financial incapacity. Friends objects to CCC's contention that it is not a qualified private organization . Friends asserts that it is as qualified as anyone else to rail bank a right-of- way. Friends states that it has already collected substantial financial resources and that it can rely on donated legal services, engineering services, and construction help. Friends has submitted a copy of its balance sheet (as of July 19, 1997) showing $35,716.72 in assets and no liabilities, and an additional $5,990.50 which is still available in matching grants. Friends has also submitted information regarding weed control and liability insurance. CCC responds that Friends' assets are "woefully inadequate" and that its balance sheet is "questionable." Friends notes that the Board's role in issuing a NITU is ministerial, and that the agency has consistently deferred to the railroad to determine if the prospective trail user is financially responsible. Finally, Friends asserts that, throughout these proceedings, the railroads have evinced a consistent intent to rail bank the right-of-way and to continue negotiating for interim trail use. Such action, Friends argues, shows that the railroads have never fully abandoned the subject lines and the Board retained jurisdiction to extend the negotiating period in Docket No. AB-433 (Sub-No. 2X). The decision to grant or deny a petition to reopen is within the broad discretion of the agency, and only on a showing of a clear abuse of that discretion would a court overrule the agency. A petition to reopen must state in detail the respects in which the proceeding involves material error, new evidence, or substantially changed circumstances. CCC here essentially argues that the Board committed material error warranting reopening of these proceedings in two respects: (1) in improperly holding the proceeding in abeyance in Docket No. AB-433 (Sub-No. 2X), when it was required to either grant an outstanding NITU extension request or to find that the line had been fully abandoned; and (2) in failing to evaluate whether Friends is, in fact, a financially fit trail sponsor. The first ground is simply a rehash of an argument CCC made previously and which we rejected. In our November 14, 1996 decision in Docket No. AB-433 (Sub-No. 2X), we stated: In its petition, CCC asserts that the Board lacked authority to hold the proceeding in abeyance but, rather, was required either to grant the NITU extension or to authorize abandonment. The petition will be denied. The Board has authority to control its own docket. In exercising that authority, we may hold a proceeding in abeyance if we conclude that doing so would be the best course of action. Here, the Director appropriately decided to defer a ruling on the extension request pending the filing of further information on the reconveyance. We added, We also reject CCC's assertion that, because the NITU negotiation period has expired, a full abandonment has occurred and our jurisdiction over this matter has been lost. . . . A railroad must take action to exercise abandonment authority. Moreover, the Board does not lose jurisdiction over the underlying right-of-way unless the railroad's action is to fully abandon the line, as opposed to exercising the lesser included authority to discontinue service over the line. Here, the parties expressed desire and intention to continue trail use negotiations beyond the 180-day period, and the railroads joining in the requests for more time, show that there was no intent to fully abandon the line. Thus, we retain jurisdiction over the property. Nothing in CCC's petition to reopen warrants a different conclusion here. We now turn to CCC's second ground for reopening, that the agency committed material error by failing adequately to evaluate whether Friends is a financially fit trail sponsor. There are two parts to CCC's argument. CCC claims first that we erred in not assessing Friends financial fitness when we issued the NITU and second, that we should consider Friends fitness now. CCC's argument that we should have done more to evaluate Friends fitness when we issued the NITU ignores the fact that Friends filed the statement of willingness required by our Trails Act implementing procedures. Friends, by filing the required statement of willingness, consented to assume responsibility for managing the right-of-way and for legal liability and for payment of taxes for the period of any interim trail use. Friends also agreed to comply with the statutory rail banking condition in section 1247(d). Accordingly, when UP agreed to negotiate a trail arrangement with Friends, we properly issued a NITU allowing negotiations to begin. Congress clearly intended to preserve as many rail corridors as possible under section 1247(d). Under the statute, a prospective trail sponsor may acquire the right-of-way through "donation transfer, lease, sale or otherwise" so long as the financial and rail banking requirements of the statute are met. Moreover, any "State, political subdivision or qualified private organization" can invoke section 1247(d). In these circumstances, we see no reason to change our longstanding practice of reading the word "qualified" in the statute to mean any private organization willing to assume responsibility for the line and agree to rail banking. Our Trails Act procedures have been in effect for more than 10 years. Yet no one has provided us with evidence suggesting any problem with trail sponsors failing to assume financial responsibility for the rights- of way they manage under the Trails Act. Furthermore, a railroad presumably would not agree to negotiate with a prospective trail sponsor unless the railroad believes the potential trail sponsor will be able to manage the right-of- way and assume legal liability and pay taxes. We appropriately defer to the railroad's decision to negotiate a Trails Act arrangement to determine if the prospective trail sponsor is financially responsible. The function of a trail condition is to delay the railroad's right to consummate the abandonment for the negotiating period and the period of any interim trail use. Pending an agreement with the proponent of a trail, or the consummation of the abandonment, the right-of- way remains the responsibility of the railroad. It must pay taxes, assume liability and maintain the right of way. If a railroad does not think a proponent is likely to meet its obligations, it is hard to see why the carrier would agree to negotiate with the potential trail sponsor. Thus, the carrier is the most appropriate party to determine whether any offer of negotiations is likely to prove successful, both in meeting the railroad's desires and in fulfilling the statutory and regulatory rail banking and liability requirements of the Trails Act. Requiring the proponent of a trail to provide detailed financial information or to pass a fitness test before the Board issues a trail condition could deter or delay interim trail use, which would be contrary to Congress' intent to facilitate and encourage rail banking and interim trail use on lines that otherwise would be abandoned. Moreover, the primary purpose of a fitness test would be to protect a railroad from wasting its time negotiating with an unfit trail sponsor. However, the railroad already has the ability to protect itself from that result merely by refusing to consent to the issuance of the trail condition. In these circumstances, we see no reason to change our longstanding practice of not routinely requiring detailed financial or other information from potential trail sponsors and railroads in Trails Act cases. Given our limited, ministerial role in administering this statute, and the fact that the railroad is the real party in interest, we can be assured that the Trails Act has been properly invoked and that its requirements will be met when (1) the prospective trail sponsor files the required statement of willingness and (2) the railroad that otherwise would be entitled to fully abandon the line voluntarily agrees to negotiate a Trails Act arrangement. CCC's second argument in this regard is that we should consider Friends financial fitness now. We have indicated that if a trail use arrangement is successfully negotiated and a landowner or other interested party presents evidence to call into question the continued application of the Trails Act, we would reopen the proceeding to afford the trail user an opportunity to demonstrate that it continues to meet the requirements of the statute. We stated that if we determined that the trail group does not have the ability to meet the financial and liability conditions of the statute, the trail condition would be involuntarily revoked and the line declared fully abandoned, at which point the right-of-way would no longer be part of the national transportation system, and any reversionary interests in the property would vest. Because CCC has raised fitness issues, and the parties have presented evidence on them, we will consider Friends ability to continue to meet the financial and liability requirements of the statute. In doing so, we will clarify the kind of showing we would require to involuntarily revoke a trail condition on financial fitness grounds. Local governments often have a right to collect taxes from those who build trails. If a state or local government could demonstrate that a trail manager had not or was not likely to meet its obligation to pay taxes, we would find that the financial conditions for interim trail use had not been met. We would then require that this deficiency be remedied, or that the trail condition be involuntarily revoked. No taxing authority has made any such claim here, however. Assumption of liability is only meaningful if the party with the potential liability is adequately insured or financially responsible. Under the Trails Act, the trail sponsor assumes liability only when it enters into an agreement with the railroad pursuant to 16 U.S.C. 1247(d) and our Trails Act rules. Because the railroad may have some exposure if the trail sponsor incurs a liability it cannot satisfy, we think it is reasonable to rely in the first instance on the railroad's protection of its own interests. Therefore, it is appropriate to require that someone raise this issue before we inquire into it. Here, CCC has called into question Friends ability to satisfy any liability it might incur arising out of interim use of this right-of-way as a trail. But Friends in reply states that it has purchased liability insurance in an amount adequate to provide $6 million in coverage per incident and $7 million aggregate. CCC does not state that this amount is inadequate. Moreover, we have no reason on this record to find that this amount of insurance is insufficient. In these circumstances, we conclude that CCC has not shown that Friends is unable to carry out its obligation to assume liability for injuries arising out of the recreational use of the trail under section 1247(d). The statute and our rules require that a trail sponsor assume responsibility for the management of the trail. CCC claims that Friends capitalization for an 87-mile trail is woefully inadequate. But this argument presumes that Friends is under an affirmative duty to develop a trail for advanced recreational use. In fact, the Trails Act does not require the trail to be "developed" in any particular way. There can be differing types or levels of trail use, and the agency has never become involved in determining the type or level of trail for a specific right-of- way. Moreover, there is no time limit for how quickly a trail must be developed to its intended level of use. Our chief concern, once a trail condition has been imposed, is that the statutory rail banking condition not be compromised, and that nothing occur that would preclude a railroad's right to reassert control over the right-of-way at some future time to revive active service. CCC, however, has not alleged that it would be impossible to reinstitute rail service over these lines. In addition to maintaining the integrity of rail banking, Friends is obligated to use the right-of-way so that it does not become a public nuisance. However, that is a state or local requirement, not a Board requirement. Federal preemption does not extend to the legitimate exercise of police power by states and localities. State and local laws vary from jurisdiction to jurisdiction. Because we cannot become familiar with all of those laws, it would be inappropriate, if not impossible, for us to try to establish a standard by which a trail sponsor could demonstrate its fitness to manage and maintain a particular trail. Nor has CCC introduced evidence to show that Friends has violated any particular state or local laws, or that its concern that this right-of-way may not be adequately maintained while it is used as a trail cannot be appropriately addressed at the state or local level. In short, we and the ICC acted in a manner consistent with our limited responsibilities under the Trails Act in issuing trail conditions here. Moreover, CCC has failed to demonstrate that Friends is an unfit trail user or that we lost jurisdiction over this property. Consequently, there is no basis for us to reopen these proceedings to involuntarily revoke the NITUs granted in this proceeding or to declare the line fully abandoned. In addition, we must reject CCC's request that we impose a number of environmental and public safety conditions here. The requested conditions relate to concerns beyond our limited Trails Act authority. Finally, we find no basis for oral hearing here. A thorough and accurate record has already been developed by the parties. It has not been shown that cross-examination is needed at this point in time to resolve any disputed issues of material fact, and witness demeanor has not been shown to be a matter requiring oral hearing in these proceedings. For these reasons, CCC's petitions requesting that we reopen these proceedings and hold an oral hearing are denied. It is ordered: 1. CCC's petition to reopen these proceedings is denied. 2. CCC's request for oral hearing is denied. Decided: March 20, 1998 Service Date: April 1, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-459 (Sub-No. 2X) CENTRAL RAILROAD COMPANY OF INDIANA--ABANDONMENT EXEMPTION-- IN DEARBORN, DECATUR, FRANKLIN, RIPLEY, AND SHELBY COUNTIES, IN This decision denies a motion by protestants in this matter that we exempt ourselves from the statutory deadline mandated by Congress and that we compel certain types of discovery. On January 14, 1998, Central Railroad Company of Indiana (CIND) filed a petition to abandon a line of railroad known as the Shelbyville Line, extending from approximately milepost 23.0, near Thatcher station and the town of Greendale, to approximately milepost 81.0, near Shelbyville, a distance of approximately 58 miles in Dearborn, Decatur, Franklin, Ripley, and Shelby Counties, IN. Notice of the petition was served and published on February 2, 1998. On February 19, 1998, CIND filed a motion seeking an order denying discovery requests filed by certain persons who ship goods over the line or who otherwise have an interest in the proceeding, and who purportedly intend to oppose the petition (hereafter protestants ). These persons are the complainants in a pending related proceeding in STB Finance Docket No. 33386, Decatur County Commissioners, et al. v. Central Railroad Company of Indiana (the complaint proceeding). In a decision served February 27, 1998, the Board's Secretary denied the motion as a premature, overbroad request that is inconsistent with the Board's rules of procedure. The Secretary indicated that, rather than attempting to preempt discovery, as here, a party may object to discovery requests, leaving the party seeking discovery the option of applying for an order compelling replies under the procedures set forth at 49 CFR 1114.31. The Secretary added, however, that, in an abandonment exemption proceeding, discovery is generally dilatory, typically not productive, and consequently disfavored. Thereafter, on March 6, 1998, protestants filed a motion (1) to compel the production of workpapers and the taking of depositions, and (2) for adjustment of the May 4, 1998 deadline date for issuance of a decision on the merits. CIND replied to the motion on March 13, 1998. The motion will be denied. Protestants argue that the Board should compel CIND to produce the workpapers and documentation related to each section of its exemption petition and exhibits, if such materials exist. Protestants also would have CIND specifically identify relevant workpapers or documentation the railroad believes it already produced in connection with the complaint proceeding, and to produce such materials if protestants do not have them. In support of their requests, protestants note that the Board's regulation requires that: A party filing a petition for exemption shall provide its case-in-chief, along with its supporting evidence, workpapers, and related documents at the time it files its petition. Protestants position is that CIND has failed to comply with this requirement. Protestants assert that they are unable to determine which of the documents they received in the complaint proceeding are documents upon which CIND intends to rely here. Protestants also want to depose Richard H. McDonald, who prepared CIND's evidence regarding the costs of rehabilitating and maintaining the subject line, and R. Scott Morgan, who prepared CIND's avoidable cost study and financial statements. Protestants question whether Mr. McDonald personally performed the track, roadbed, and bridge inspection underlying his testimony, and they argue that examining Mr. McDonald is the best, if not the only, method available for probing the issue. Protestants assert that Mr. Morgan's study contains highly unusual numbers and that his revenue figures raise puzzling questions and involve missing facts. Protestants argue, therefore, that Mr. Morgan's variable cost study rests on certain factual assumptions and assertions as to which only Mr. Morgan or CIND can provide explanations. Protestants contend that the Board should not allow its May 4, 1998, decisional deadline in this proceeding to interfere with CIND's production of relevant data. They suggest that the Board grant an exemption, under 49 U.S.C. 10502, from the statutory deadlines. In reply, CIND avers that protestants demand for workpapers is premature and unnecessary, as the railroad has informed protestants that it would respond to their request for document production by March 17, 1998. Also, petitioner complains that protestants document requests are unduly broad as the motion does not specifically identify the documents protestants seek. CIND replies, further, that protestants have failed to advance any plausible reason why it would be necessary to depose Mr. McDonald. CIND argues that, in any event, Mr. McDonald's estimates of maintenance costs and net liquidation value (NLV) are not essential elements of the petition since (1) revenue from the line cannot support even normalized maintenance, and (2) the avoidable expenses of the line are sufficient to justify the abandonment. As such, CIND argues, reliance on the line's opportunity cost, which includes calculation of NLV, is unnecessary. The railroad adds that protestants three consultants, who contradicted Mr. McDonald's testimony in the complaint proceeding, are able to rebut disputed conclusions in this proceeding. Finally, CIND argues that the responses to protestants discovery requests that the railroad has promised to provide by March 17 may obviate the asserted need to depose Mr. Morgan. In any event, the railroad adds, the high level of detail in Mr. Morgan's cost study enables protestants easily to identify the assertions and assumptions upon which the analysis is based and to dispute them if desired. Protestants note that in our Federal Register notice published on February 2, 1998, we set a deadline of May 4, 1998, to issue a decision in this case, and they have asked us to adjust that deadline. Although protestants describe this as a self-imposed deadline, it is mandated by 49 U.S.C. 10904(c). That section provides, in relevant part, that [w]ithin 4 months after an application is filed under section 10903, any person may offer to subsidize or purchase the railroad line that is the subject of such application. Because the Board cannot know whether to process an offer of financial assistance until we have decided the application or petition to abandon the line, section 10904(c) requires that we decide all requests to abandon rail lines within 4 months. The Board therefore decides all abandonment cases within 110 days, to give 10 days notice to anyone filing an offer to purchase or subsidize a line 120 days after the date on which an application or petition to abandon a line is filed. Protestants assert that we have used our authority to exempt ourselves from the requirement that we meet this statutory deadline. But the only case cited by the protestants fails to support their argument. Congress imposed strict deadlines in abandonment cases so that we would decide them promptly. We do not think that Congress expected that we would use an exemption authority granted to simplify and expedite the regulatory process to circumvent deadlines which the Congress set. We recognize the hardships that the abandonment proceedings deadlines place on the parties to those proceedings, as well as on the Board, but we will not adjust the statutory deadline to decide this case. As we noted in our decision served in this case on February 27, 1998, discovery in an abandonment case is typically disfavored. This is due not only to the strict time constraints imposed by Congress, but also because only rarely can discovery be justified in an abandonment proceeding. The railroad does not need discovery against protestants, because the carrier has the information it needs to make its case. The issue in an abandonment is whether the line is a burden on interstate commerce, i.e., whether the revenues or benefits derived from the service on the line exceed the cost or other burdens of providing that service. As part of the process, the railroad has the burden of identifying and supporting the revenues from the service and the costs of providing the service. The protestant does not have the burden of proof, but need only challenge the evidence and arguments made by the railroad. If the carrier fails to sufficiently support its case in the face of the challenges made by the protestant, the carrier loses. In those circumstances, the Board will deny the application or petition and the carrier will have to file a new application. Protestants have failed to cite a single precedent where the Board or its predecessor agency has granted a motion to compel discovery in an abandonment case. Protestants have failed to cite any specific need for discovery here. They have simply moved that we compel CIND to comply with protestants broad brush discovery requests, none of which the protestants have shown is necessary to present their case. Some of the discovery request, such as the evidence on CIND's finances, we have already noted to be irrelevant. The nature of abandonment cases and the need to decide them promptly have led us to require that discovery requests be sharply focused and clearly justified. That is not the case here. Under the circumstances, we will deny protestants motion to compel. Protestants have not yet filed an opposition statement in this proceeding. If they wish to do so, they must file their protest by April 10, 1998. It is ordered: 1. Protestants motion is denied. 2. Protestants opposition statement is due April 10, 1998. Decided: April 1, 1998 Service Date: Late Release April 1, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33572] Union Pacific Railroad Company Trackage Rights Exemption The Burlington Northern and Santa Fe Railway Company The Burlington Northern and Santa Fe Railway Company (BNSF) has agreed to grant overhead trackage rights to Union Pacific Railroad Company (UP) over two segments of BNSF's line: (1) between Council Bluffs, IA, at milepost 483.6 on BNSF's Bayard Subdivision (at a point which is equal to milepost 12.8 on BNSF's Omaha Subdivision) and Hastings, NE, at milepost 156.5 on BNSF's Hastings Subdivision, a distance of approximately 214.6 miles over a segment which extends from Council Bluffs through Omaha, NE, Ashland, NE, Lincoln, NE, Crete, NE, and Fairmont, NE, to Hastings, for the period March 30, 1998, through July 15, 1998; and (2) between Hastings, NE, at milepost 156.5 on BNSF's Hastings Subdivison and Northport, NE, at milepost 34.4 on BNSF's Angora Subdivision, a distance of approximately 387.7 miles over a segment which extends from Hastings though Holdredge, NE, Oxford, NE, Culbertson, NE, Wray, CO, East Brush, CO, Sterling, CO, and Sidney, NE, to Northport, for the period March 30, 1998, through September 30, 1998. On March 23, 1998, UP filed a petition for exemption in STB Finance Docket No. 33572 (Sub-No. 1), wherein UP requests that the Board permit the overhead trackage rights arrangement described in the present proceeding to expire for the portion of track between Council Bluffs and Hastings effective July 16, 1998, and to expire for the portion of track between Hastings and Northport effective October 1, 1998. That petition will be addressed by the Board in a separate decision. The transaction is scheduled to be consummated on or after March 30, 1998. The purpose of the trackage rights is to permit UP to use the BNSF trackage when UP's trackage is out of service for scheduled programmed track, roadbed and structural maintenance. Decided: March 25, 1998. Service Date: April 2, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-398 (Sub-No. 5X) SAN JOAQUIN VALLEY RAILROAD COMPANY--ABANDONMENT EXEMPTION-- IN TULARE AND KERN COUNTIES, CA On February 13, 1998, San Joaquin Valley Railroad Company (SJVR) filed a notice of exemption to abandon a 9-mile line of its railroad between milepost 295.2 near Richgrove and milepost 304.2 near Hollis, in Tulare and Kern Counties, CA. Notice of the exemption was served and published on March 5, 1998. The exemption will be effective on April 4, 1998. On March 16, 1998, the California Public Utilities Commission (CPUC) filed a petition for stay of the effective date of the exemption. On March 16 and March 17, 1998, respectively, shippers Great Lakes Chemical Corporation (Great Lakes) and J. R. Simplot Company, Minerals & Chemical Group (Simplot), also filed petitions for stay. SJVR replied to the petitions on March 16, 1998. Simplot is a fertilizer producer that maintains a facility at Jovista, CA, which, the shipper asserts, is served by the line SJVR proposes to abandon. The facility receives approximately 150 railcars a year. According to this shipper, as many as 300 cars a year have moved into the facility in the past, and the potential exists for additional traffic. Simplot avers that SJVR has proposed to reroute the shipper's traffic through Richgrove. Simplot claims, however, that the rerouting necessitates crossing two bridges situated at mileposts 289 and 281. Simplot is concerned that SJVR will neglect maintenance of these bridges, with resulting service delays or stoppages. Alternate transportation sources, the shipper avows, are too costly to be feasible. Simplot requests a stay because SJVR has provided no information as to the expenses, such as maintenance expenses, SJVR incurs in keeping the subject line open. The shipper asserts that SJVR has made no showing that it is absorbing a financial loss from operating the line. Simplot is concerned that the railroad's association with a rail salvage company may have been a motivating factor in the abandonment. Great Lakes is a specialty chemical producer that maintains a plant in McFarland (Hollis), near the southern end of the subject line. Great Lakes receives an average of 60 railcars of methyl bromide a year at its McFarland facility. Great Lakes is concerned that this abandonment proceeding may be the precursor of other abandonment proceedings that will eliminate service at points south of Hollis, including McFarland. Great Lakes asserts that the only safe way to ship its products is by rail. This shipper questions whether, as SJVR has alleged, no local traffic has moved over the subject line for at least 2 years, because Great Lakes allegedly has seen apparently full railroad cars moving past its plant within that time period. CPUC asserts that allowing the exemption to go into effect would result in the elimination of service over the mid portion of SJVR's Ducor-to-Famosa, CA line, making service to Simplot dependent on the preservation of the Ducor-to-Richgrove segment, which CPUC contends is little maintained and problematic. CPUC foresees a chain of events in which SJVR, in concert with an affiliated salvage company, would attempt to justify abandoning service to Simplot. CPUC is concerned that, should Simplot and Great Lakes lose rail service, these shippers hazardous commodities would have to move on California's busy freeways, at increased cost and risk. CPUC complains that SJVR's notice contains no financial information. The agency would like to review revenue and expense figures attributable to the entire Ducor-to-Famosa line, including the branch that serves Simplot. CPUC maintains that the Board should stay the effectiveness of the exemption in order to allow further inquiry (apparently through discovery) into the issues CPUC has raised. In reply, SJVR states that Simplot's Jovista facility is not served by the line to be abandoned but, rather, is situated on a branch that runs west from Richgrove, at milepost 294.9, north of milepost 295.2, where the subject segment begins. The railroad adds that shipments consigned to the Jovista facility will not be rerouted but, rather, will continue to move through Richgrove as they always have. Also, SJVR asserts that there is no truth to Simplot's contentions that the condition of bridges, ties, and track on the line north of Richgrove is cause for concern. The railroad avers that the line is maintained to class 1 standards as prescribed by the Federal Railroad Administration (FRA). The railroad emphasizes that its abandonment will not in any way affect operations to Simplot's Jovista facility. In response to Great Lakes concerns regarding future operations, SJVR asserts that the shipper's fears also are unfounded. The railroad indicates that it has no plans to abandon its Hollis-to-Famosa line. The railroad adds that, if it were to seek such an abandonment, shippers would have an opportunity to oppose any abandonment proposal before the Board. Regarding that shipper's belief that loaded rail cars have passed its plant within the last 2 years, SJVR asserts that there is no suggestion that the rail cars carried anything other than overhead traffic. In reply to CPUC's arguments regarding the condition of its remaining line segments, SJVR again asserts that the lines have been maintained to permit operations at FRA class 1 speeds and adds that CPUC has acknowledged this fact. If and when rail operations are threatened by disrepair of the Richgrove-to-Ducor line, SJVR asserts, interested parties would be able to petition the Board for relief and the Board could order repair of the line so as to assure continued service. The railroad characterizes as premature CPUC's concerns that the subject exemption might signal the start of a process of eliminating portions of SJVR's Ducor-to-Famosa line. The railroad states that any action to abandon the lines required to adequately serve Simplot at Jovista from the north or Great Lakes at Hollis from the south can be addressed if and when SJVR takes such action. Regarding CPUC's desire to use discovery in this proceeding, SJVR argues that, under 49 CFR 1114.21(a), discovery does not lie in an exemption proceeding because it is an informal proceeding under the Board's rules. Moreover, the railroad asserts, the matters CPUC wants to explore through discovery, such as revenue and expense data and plans for further abandonments, are not relevant to a proceeding under the class exemption for 2-year out-of-service railroad lines. Under the Board's rules of practice, a party may file a petition to stay in advance of a petition for reconsideration or reopening or pending a request for judicial review. Assuming that petitioners intend to file petitions for administrative review, the petitions for stay will be treated as having been filed in advance of such petitions. The standards governing disposition of a petition for stay are: (1) whether petitioner is likely to prevail on the merits on appeal; (2) whether petitioner will be irreparably harmed in the absence of a stay; (3) whether issuance of a stay would substantially harm other parties; and (4) whether issuance of a stay is in the public interest. The party seeking stay or injunctive relief carries the burden of persuasion on all of the elements required for extraordinary relief such as a stay. Petitioners here have failed to demonstrate entitlement to a stay under the governing criteria. Accordingly, their requests for such relief will be denied. In order to prevail on a petition to reject the notice, petitioners would have to demonstrate that SJVR's notice contains false or misleading information or that the railroad's certification under section 1152.50(b) is somehow inaccurate. Here, although Simplot and Great Lakes have asserted that local traffic has, in fact, moved over the line during the last 2 years, their assertions appear to be without merit. In particular, SJVR has stated in response that it has not used the line to serve Simplot and that any traffic moving over the line is overhead traffic. Petitioners also question whether the line is unprofitable but, as SJVR correctly notes, profitability is not in issue in a 2-year out-of-service exemption. Finally, petitioners arguments that the subject abandonment is a component of an overall scheme to eliminate service is speculative. Nevertheless, in this regard, SJVR is advised that future proposals for abandonment in the area of the Richgrove-to-Hollis line will be scrutinized with petitioners arguments in mind, particularly should the cessation of service to a shipper be involved. Petitioners do not show how they would suffer irreparable harm in the absence of a stay. As noted, no shipper is losing service as a result of the abandonment. Contentions that service might be disrupted in the future, and that shippers might have to resort to the more costly and hazardous alternative of motor carrier transportation, are speculative. Furthermore, if rail operations are threatened by disrepair of the Richgrove-to-Ducor line, interested parties can petition the Board for relief at that time. In short, it does not appear that the impact of the proposed abandonment will be anything other than de minimis. Nevertheless, an abandonment authorization or exemption is not irreversible; a carrier that proceeds with an abandonment assumes the risk that Board action may be reversed on appeal and that service may have to be resumed. If the Board's action here ultimately is reversed, then SJVR would have to take whatever steps are necessary to reinstitute service. For these reasons, a stay is not essential to the shippers opportunity to obtain relief. Issuance of a stay would harm SJVR, as it would continue to incur the opportunity costs it is experiencing by forgoing a more profitable alternative use of assets tied up in a line that has not carried local traffic in more than 2 years. In other words, a stay would prevent SJVR from achieving the savings that abandonment of the line would provide. The public interest does not support a stay. Petitioners claims as to ulterior motives behind SJVR's seeking abandonment, and their speculation that there might be future service disruptions, simply do not suffice to support the extraordinary relief of a stay. The Board expects that SJVR will properly maintain its remaining line segments and serve its shippers consistent with its common carrier obligation, as it has committed to do. It is ordered: 1. The requests for stay are denied. Decided: March 31, 1998 Service Date: April 3, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-493 (Sub-No. 7X)] Track Tech, Inc.--Abandonment Exemption--in Adair and Union Counties, IA On March 17, 1998, Track Tech, Inc. (Track Tech), filed with the Surface Transportation Board (Board) a petition to abandon a line of railroad between milepost 1.45 near Creston, IA, and milepost 21.15 at the end of the line in or near Greenfield, IA, which traverses U.S. Postal Service ZIP Codes 50801, 50848, and 50849, a distance of 19.70 miles, in Adair and Union Counties, IA. The line includes the stations of Creston, located at milepost 1.45, Orient, located at milepost 12.2, and Greenfield, located at milepost 21.15. Petitioner acquired this line from The Burlington Northern and Santa Fe Railway Company (BNSF) in June 1997. Petitioner also acquired six other lines from BNSF in November 1996 and filed petitions for exemption to abandon these lines in STB Docket No. AB-493 (Sub- Nos. 1X, 2X, 3X, 4X, 5X, and 6X). The exemptions in Sub-Nos. 1X, 2X, and 5X were granted by decisions served on January 12, 1998. The exemptions in Sub-Nos. 3X, 4X, and 6X were granted by decisions served on February 24, 1998. By issuance of this notice, the Board is instituting an exemption proceeding. A final decision will be issued by July 2, 1998. Decided: March 27, 1998. Service Date: April 6, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33574] The Burlington Northern and Santa Fe Railway Company Trackage Rights Exemption Union Pacific Railroad Company Union Pacific Railroad Company (UP) has agreed to grant limited overhead trackage rights to The Burlington Northern and Santa Fe Railway Company (BNSF) between the following points: (1) Shawnee Junction, WY, in the vicinity of UP's milepost 271.4 (North Platte Subdivision) and Northport, NE, in the vicinity of UP's milepost 117.3 (North Platte Subdivision), a distance of approximately 154 miles (Shawnee Junction segment); (2) Fish Lake, WA, in the vicinity of UP's milepost 354.7 (Spokane Subdivision) and Attalia, WA, in the vicinity of UP's milepost 215.7 (Spokane Subdivision), a distance of approximately 139 miles (Fish Lake segment); and (3)(a) Lewisville, AR, in the vicinity of UP's milepost 390.3 (Pine Bluff Subdivision) and Big Sandy, TX, in the vicinity of UP's milepost 525.0, on the Pine Bluff Subdivision (milepost 112.95 Dallas Subdivision), and (b) Longview, TX, in the vicinity of UP's milepost 89.6, on the Dallas Subdivision (milepost 0.0 Palestine Subdivision) and Dallas, TX, in the vicinity of UP's milepost 214.6 (Dallas Subdivision), a distance of approximately 260 miles (Lewisville/Longview segment). On March 24, 1998, BNSF and UP filed a petition for exemption in STB Finance Docket No. 33574 (Sub-No. 1), wherein BNSF and UP request that the Board permit the overhead trackage rights arrangement described in the present proceeding to expire on July 15, 1998, for the Shawnee Junction segment, on September 1, 1998, for the Fish Lake segment, and on July 31, 1998, for the Lewisville/Longview segment. That petition will be addressed by the Board in a separate decision. The transaction is scheduled to be consummated on April 1, 1998, for the Shawnee Junction segment, on July 1, 1998, for the Fish Lake segment, and on June 15, 1998, for the Lewisville/Longville segment. The purpose of the trackage rights is to allow BNSF to operate over an alternate line while BNSF's line is undergoing maintenance and repair. Decided: March 30, 1998. Service Date: April 6, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-31 (Sub-No. 31X) GRAND TRUNK WESTERN RAILROAD INCORPORATED-- ABANDONMENT EXEMPTION--IN OAKLAND COUNTY, MI In the above-entitled proceeding, no environmental or historic preservation issues have been raised by any party or identified by the Section of Environmental Analysis. Accordingly, a Finding of No Significant Impact under 49 CFR 1105.10(g) will be made pursuant to 49 CFR 1011.8(c)(10). It is ordered: 1. Abandonment of the involved rail line will have no significant effect on the quality of the human environment and conservation of energy resources or on historic resources. Decided: March 30, 1998 Service Date: April 7, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-55 (Sub-No. 560X)] CSX Transportation, Inc.--Abandonment Exemption--In Logan County, WV On March 18, 1998, CSX Transportation, Inc. (CSXT) filed with the Surface Transportation Board (Board) a petition to abandon a 0.72-mile portion of its Logan Subdivision, extending between milepost CMB-0.33 at Bandmill Junction and milepost CMB-1.05 near Melville, in Logan County, WV. The line traverses U.S. Postal Service Zip Codes 25649 and 25654 and includes the stations of Bandmill Junction and Melville. By issuance of this notice, the Board is instituting an exemption proceeding. A final decision will be issued by July 6, 1998. Decided: March 31, 1998. Service Date: April 7, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-391 (Sub-No. 4X)] Red River Valley & Western Railroad Company--Abandonment Exemption--in Benson County, ND Red River Valley & Western Railroad Company (RRVW) has filed a notice to abandon an approximately 10.55-mile line of railroad from milepost 79.08, approximately 0.6 miles north of Oberon, to milepost 89.63, in Minnewaukan, in Benson County, ND. The line traverses United States Postal Service Zip Codes 58357 and 58351. Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on May 9, 1998, unless stayed pending reconsideration. RRVW shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by RRVW's filing of a notice of consummation by April 9, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: March 31, 1998. Service Date: April 9, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-167 (Sub-No. 1182X) CONSOLIDATED RAIL CORPORATION--ABANDONMENT EXEMPTION--IN INDIANA COUNTY, PA Consolidated Rail Corporation (Conrail) filed a notice to abandon an 11.80-mile portion of the Blairsville Secondary Track between milepost 5.70+/- and milepost 17.50+/-, in Indiana County, PA. Notice of the exemption was served and published in the Federal Register on March 12, 1998. The exemption was scheduled to become effective on April 11, 1998, but a formal expression of intent to file an offer of financial assistance (OFA) has been filed by the Kovalchick Corporation (KOVC) to purchase the entire line, which has the effect of staying the effective date of the exemption for 10 days until April 21, 1998. KOVC simultaneously requested that Conrail provide it with the financial data and information prescribed in 49 CFR 1152.27(a). On March 30, 1998, Conrail filed a request for a 60-day extension to develop and submit the required information requested by KOVC. By petition filed March 18, 1998, the Cambria and Indiana Trail Council (CITC) filed a request for the issuance of a notice of interim trail use (NITU), and for a public use condition, in order to negotiate with Conrail for acquisition of the right-of-way for use as a trail. CITC requests that Conrail be prohibited from disposing of the corridor, other than the tracks, ties, and signal equipment, except for public use on reasonable terms, and that Conrail be barred from removing or destroying any trail-related structures, such as bridges, trestles, culverts and tunnels, for a 180-day period from the effective date of abandonment exemption. CITC submitted a statement of willingness to assume financial responsibility for interim trail use and rail banking, and acknowledged that the use of the right-of-way for trail purposes is subject to future reactivation for rail service. CITC states that it needs the full 180-day period because it has not had the opportunity to assemble or to review title information or commence negotiations with Conrail. By reply filed March 30, 1998, Conrail indicated its willingness to negotiate with CITC for interim trail use. To justify a public use condition, a party must set forth: (i) the condition sought; (ii) the public importance of the condition; (iii) the period of time for which the condition would be effective; and (iv) justification for the imposition of the period of time requested. CITC has satisfied the requirements for both a public use condition and a NITU and, therefore, imposition of both would be appropriate commencing with the effective date of the exemption. However, an OFA takes priority over any requests for a NITU or for a public use condition. Therefore, issuance and effectiveness of a NITU and a public use condition will be delayed until the OFA process has been completed. If agreement is reached on sale or subsidy of the line, public use and trail use conditions would be unnecessary and unavailable. If no agreement is reached on the OFA, the appropriate decision and notice of interim trail use will be issued. It is ordered: 1. If the OFA process terminates, a decision effective on its service date will be issued to impose the notice of interim trail use and the public use condition. 2. The requests for issuance of a notice of interim trail use and for issuance of a public use condition are held in abeyance pending completion of the OFA process. 3. Conrail is directed to provide KOVC with the requested information to enable KOVC to file an OFA. The deadline for KOVC to file its OFA is extended to June 10, 1998. 4. The effective date of the exemption is postponed until June 20, 1998. Decided: April 9, 1998 Service Date: April 10, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33576] Albany Bridge Company, Inc., Georgia & Florida Railroad Co., Inc., Gulf & Ohio Railways, Inc., Lexington & Ohio Railroad Co., Inc., Live Oak, Perry & Georgia Railroad Company, Inc., Piedmont & Atlantic Railroad Co., Inc., Rocky Mount & Western Railroad Co., Inc., Wiregrass Central Railroad Company, Inc.--Corporate Family Transaction Exemption--Gulf & Ohio Railways Holding Co., Inc. Albany Bridge Company, Inc., Georgia & Florida Railroad Co., Inc., Gulf & Ohio Railways, Inc., Lexington & Ohio Railroad Co., Inc., Live Oak, Perry & Georgia Railroad Company, Inc., Piedmont & Atlantic Railroad Co., Inc., Rocky Mount & Western Railroad Co., Inc., Wiregrass Central Railroad Company, Inc. (Railroad Companies), and Gulf & Ohio Railways Holding Co., Inc. (Holding Company) have filed a joint notice of exemption to undertake a corporate family transaction, which involves a transfer of ownership of the Railroad Companies from H. Peter Claussen and Linda C. Claussen, owners of all outstanding shares of stock in the Railroad Companies, to the Holding Company. The Holding Company will be wholly owned by H. Peter Claussen and Linda C. Claussen. The transaction was to be consummated on or after March 30, 1998. The purpose of the transaction is to eliminate administrative expenses associated with the continued maintenance of separate loans for each of the Railroad Companies. This is a transaction within a corporate family of the type specifically exempted from prior review and approval under 49 CFR 1180.2(d)(3). The transaction will not result in adverse changes in service levels, significant operational changes or a change in the competitive balance with carriers operating outside the applicants corporate family. Decided: April 1, 1998. Service Date: April 10, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33577] Minnesota Commercial Railway Co.--Lease and Operation Exemption--Burlington Northern Santa Fe Railway Co. Minnesota Commercial Railway Co. (MC), a Class III rail carrier, has filed a notice of exemption to lease from The Burlington Northern and Santa Fe Railway Company (BNSF), its Hugo Line between Roseville and Hugo, MN, a total of 16 miles of track. MC has been operating over the Hugo Line and related BNSF track under local trackage rights. The lease will supersede the trackage rights on the Hugo Line, and MC will become exclusive operator of the line, assuming all maintenance and common carrier duties on that line. The transaction is expected to be consummated on or shortly after April 24, 1998. Decided: April 2, 1998. Service Date: April 10, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT DOCKET NO. AB-391 (Sub. No. 4X) Red River Valley and Western Railroad Company Notice of Exemption in Benson County, North Dakota In the above entitled proceeding, the Red River Valley and Western Railroad Company (RRVW), has filed a notice in connection with the abandonment of its line of railroad between Milepost 79.08 near Oberon to Milepost 89.63 in Minnewaukan, a distance of 10.55 miles in Benson County, North Dakota. The right-of-way passes through a sparsely populated agricultural area of north central North Dakota. In its application, RRVW states that there has been no traffic on the line during the past two years. We recommend the following environmental condition be placed on any decision granting abandonment authority: The National Geodetic Survey (NGS) has identified 5 geodetic station markers that may be affected by the proposed abandonment. Therefore, RRVW shall notify NGS at least 90 days prior to any salvage activities that may disturb or destroy these markers to that plans can be made for their relocation. Based on the information provided from all sources to date, we conclude that, as currently proposed, abandonment of the line will not significantly affect the quality of the human environment. Therefore, the environmental impact statement process is unnecessary. Service Date: April 14, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION Finance Docket No. 32639 METRO NORTH COMMUTER RAILROAD COMPANY--ACQUISITION EXEMPTION--THE MAYBROOK LINE Finance Docket No. 32639 (Sub-No. 1) METRO NORTH COMMUTER RAILROAD COMPANY--EXEMPTION-- FROM 49 U.S.C. SUBTITLE IV By decision served January 13, 1995, Metro North Commuter Railroad Company (MNCR) was granted exemptions under 49 U.S.C. 10505: (1) from the prior approval requirements for MNCR to acquire from Maybrook Properties, Inc. (MPI), the Maybrook Line, between milepost 71.2 on the Connecticut/New York State Line and approximately milepost 0.0 at Beacon, NY, a distance of 41.1 miles (The connecting branches that form the Maybrook Line also retain their original milepost designations used by the former New York Central and New York, New Haven & Hartford, which are milepost 12.8 and milepost 42.9); and (2) from the provisions of 49 U.S.C. Subtitle IV pertaining to its ownership of the subject line. On February 13, 1995, the United Transportation Union (UTU) filed a petition to revoke the exemptions and MNCR replied. MNCR is a public corporation and a subsidiary of the New York Metropolitan Transportation Authority (MTA). MNCR was established in 1982 to assume the common carrier commuter rail service formerly provided by Consolidated Rail Corporation on the Hudson, Harlem and New Haven lines to and from Grand Central Terminal in New York City. MNCR provides neither common carrier freight service nor intercity rail passenger service as defined by the Rail Passenger Service Act of 1970. UTU argues that "blanket" exemptions are not authorized under 49 U.S.C. 10505 to relieve a rail carrier from all provisions of 49 U.S.C. Subtitle IV. UTU primarily relies on the language of section 10505(a), which twice refers to "a provision of this subtitle" as opposed to "Subtitle IV." UTU states that this language requires that each section of the Interstate Commerce Act (Act) must be considered separately in any exemption request. UTU argues that several decisions support this view. UTU states that section 10505(a) requires that a two-part test be applied for each exemption from "a provision." According to UTU, under the first part of the test, a determination must be made for each provision from which an exemption is sought that regulation is unnecessary to carry out the rail transportation goals of section 10101a. UTU argues that this statutory responsibility cannot be carried out by issuing a blanket order finding that application of no provision is necessary. Accordingly, it argues that an examination must be made regarding each provision's relationship to the goals of the national transportation policy. UTU maintains that, once an examination of the first aspect of section 10505(a) is completed, the second part of the test set forth in section 10505(a)(2)(A) or (B) must then be undertaken. UTU argues that this second part of the test also demonstrates that an exemption can be granted only on a provision-by-provision basis, and asserts, specifically, that section 10505(a)(2)(B) provides that a determination must be made on whether "application of a provision of this subtitle is not needed to protect shippers from the abuse of market power." UTU contends that, if Congress had intended to permit the grant of blanket exemptions, it would not have referred to "a provision" for the second time in the same section. Moreover, UTU notes that section 10505(g)(2) prohibits the use of section 10505(a) to "relieve a carrier of its obligation to protect the interests of employees as required by this subtitle." UTU notes that section 10505(e) provides that exemption authority may not be used "to relieve any rail carrier from an obligation to provide contractual terms for liability and claims which are consistent with the provisions of section 11707." UTU also points to section 207 of the Railroad Revitalization and Regulatory Reform Act of 1976, the predecessor of former section 10505 (now section 10502), for the proposition that blanket exemptions cannot be granted from the provisions of the Act. Section 207 stated that exemptions shall be granted "from such provisions [of the Act] to the extent and for such period of time as may be specified in such order" after certain requirements are met. UTU contends that the change from "such provisions" to "a provision" in section 10505(a) shows that Congress intended to ensure that exemptions were granted on a provision-by-provision basis. Similarly, UTU notes that, under the Feeder Railroad Development Program of 49 U.S.C. 10910, which was enacted at the same time as section 10505 in the Staggers Rail Act of 1980, Congress specifically gave authority under section 10910(g)(2) to grant blanket exemptions. UTU compares this with the language of section 10505 referring only to "a provision" to demonstrate that Congress "obviously intended" not to allow blanket exemptions under section 10505. UTU argues further that, even if authority to grant blanket exemptions is authorized, MNCR has not demonstrated any need for an exemption from Subtitle IV. UTU argues that MNCR's assertion that regulation of its operations is not necessary to carry out the rail transportation policy of section 10101a is insufficient justification for the exemption. UTU rejects MNCR's statement that it does not intend to hold itself out to provide common carrier service because MNCR will assume responsibility for maintenance and dispatching freight service over the line. Freight operations are conducted by Danbury Terminal Railroad Company, not MNCR. UTU notes that MNCR also rests its request for an exemption on the need to preserve freight service, which UTU argues directly contradicts its assertion that regulation of its operations is not necessary to carry out the rail transportation policy. In summary, UTU argues that MNCR has not shown that regulation of its operations would be burdensome to MNCR or that regulation is unnecessary; and therefore, UTU asks that the exemption be revoked. MNCR argues that UTU's motion should be denied for lack of standing. MNCR notes that UTU has failed to show any harm to any of its members, that mandatory labor protective conditions were imposed on the transaction, and that no employees of either MNCR or Danbury Terminal Railroad Company (Danbury) were affected in any way because the transaction did not change any operations of either carrier. MNCR also states that MPI has no employees, that Danbury has no labor interests that are represented by UTU, and that its UTU-represented employees work for "an unregulated private carrier." Accordingly, MNCR maintains that UTU has no standing and that its petition must be denied. MNCR avers that UTU's primary contention that blanket exemptions are not authorized under section 10505 "is contrary to the strong deregulatory philosophy embodied in the Staggers Rail Act . . . as well as longstanding precedent." (MNCR argues that "contrary to UTU's characterization, it has not sought a blanket exemption from the entire Act." Rather MNCR states that "it sought an exemption from the provisions of one subchapter of the Act, Subtitle IV." MNCR is incorrect in this regard because Subtitle IV contained all of the provisions of the Interstate Commerce Act.) MNCR states that section 10505 does not require consideration of whether the exemption meets each and every one of the 15 stated rail transportation policy goals, but rather only those aspects of the policy bearing on the propriety of the exemption. MNCR refers to the legislative history of the Staggers Act, which directed the Commission to "pursue partial and complete exemptions from remaining regulation." MNCR argues that a policy requiring separate petitions "for each and every provision for which an exemption is sought would be contrary to [this] clearly stated Congressional policy . . . ." None of the court cases that UTU cites, MNCR asserts, involved a request for an exemption from all provisions of the Act. MNCR rejects UTU's argument that section 10505(a) requires that a petitioner demonstrate that regulation would be "burdensome" before an exemption can be granted. MNCR argues that neither the statute nor the legislative history uses the word "burdensome" or contains any indication that Congress intended for a petitioner to show that the regulation from which it seeks an exemption is "burdensome" before it could obtain the exemption. MNCR maintains that the burden of proof is on the party seeking to revoke an exemption, and that the party must show reasonable, specific concerns demonstrating that reconsideration of the exemption is warranted. MNCR avers that UTU does not allege that any aspect of its transaction is inconsistent with any of the goals of section 10101a and that otherwise UTU has submitted no evidence to justify regulatory scrutiny of the transaction or its operations. Accordingly, MNCR argues that the petition to revoke should be denied. We may reopen a proceeding based upon new evidence, changed circumstances, or material error. UTU's pleading in essence consists of additional argument claiming that the ICC committed material error in granting this exemption. Under 49 U.S.C. 10505(d), we may revoke an exemption if we find that application of the provisions of 49 U.S.C. Subtitle IV to a person, class, or transportation is necessary to carry out the rail transportation policy of 49 U.S.C. 10101a. Petitions to revoke must be based on reasonable, specific concerns demonstrating that reconsideration of the exemption is warranted. Thus, the standard for revoking an exemption is whether regulation is needed to carry out the rail transportation policy of section 10101a. Under this standard, we evaluate revocation petitions to correct demonstrated abuses. The party seeking to revoke the exemption has the burden of proving that regulation of the transaction is necessary. UTU has not shown material error, new evidence or changed circumstances; and therefore, we will deny the petition to reopen and to revoke this exemption. UTU does not cite or address any problems that it expects to arise specifically from the grant of the exemptions to MNCR. Instead, UTU focuses on whether 49 U.S.C. 10505(a) provides sufficient jurisdiction to grant "blanket" exemptions. UTU argues that section 10505(a)'s use of the term "a provision" limits each exemption granted to only one provision of the Act. We find that it does not. From the early days of the Staggers Act, the ICC granted blanket exemptions that extended to numerous provisions of the Act. We note that, while use of the indefinite article "a" always precedes and modifies a singular noun, it does not necessarily connote a numerical limitation of one. It also may mean "any" rather than "one." "Any," in turn, may mean "all" or "every," as well as "some" or "one." Accordingly, we find that the use of the word "a" does not compel us to limit the number of provisions that may be subject to an exemption under 49 U.S.C. 10505(a). UTU has presented no evidence regarding the legislative history of section 10505 to indicate that Congress chose the word "a" to limit exemption powers in the manner that UTU advances here. Rather, the legislative history indicates that Congress expected these exemption powers to be used liberally to remove all unnecessary regulation. As MNCR points out, none of the cases that UTU cites provides support for its position. Based on the considerations discussed above, the petition will be denied. It is ordered: 1. UTU's petition to reopen and to revoke the exemptions granted in these proceedings is denied. 2. This decision is effective on May 15, 1998. Decided: April 9, 1998 Service Date: Late Release April 15, 1998 ============================================================ Comments or questions about this compilation should be directed to Paul Moore at 71367.1057@Compuserve.com. ============================================================