STB REPORT #15 - AUGUST 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 AND NOTICE OF INTERIM TRAIL USE OR ABANDONMENT STB Docket No. AB-402 (Sub-No. 5X) FOX VALLEY & WESTERN LTD.--ABANDONMENT EXEMPTION--IN KEWAUNEE COUNTY, WI By petition filed April 15, 1998, Fox Valley & Western Ltd. (FVW -- a wholly owned subsidiary of Wisconsin Central Transportation Corporation.), seeks an exemption to abandon a 16.7-mile line of railroad, known as the Luxemburg-Kewaunee Line, extending from milepost 18.9 near Luxemburg to milepost 35.6 at the end of the line near Kewaunee, in Kewaunee County, WI. A notice was published in the Federal Register on May 5, 1998, instituting an exemption proceeding. A request for issuance of a notice of interim trail use (NITU) was filed by the Wisconsin Department of Natural Resources (WisDNR), acting through the Wisconsin Department of Transportation (WisDOT), (collectively referred to as WisDNR/DOT). The United Transportation Union requests imposition of labor protective conditions. We will grant the exemption subject to trail use, environmental, and standard employee protective conditions. FVW, a Class II rail carrier, operates approximately 450 miles of rail line in Wisconsin. The only active shipper on the line proposed for abandonment is Kewaunee Co-op, located in Kewaunee. It receives inbound shipments of various fertilizers, including potash, phosphates, urea and ammonium sulfate. According to FVW, Kewaunee Co-op is planning to relocate its operations to another rail segment. FVW states that the only other shipper that could be affected by the proposed abandonment is a power facility in Kewaunee, which is jointly owned by Wisconsin Public Service (WPS) and Wisconsin Electric Power Company (WEPC) and is operated by WPS. In 1997, there were two shipments of large transformers delivered to the power facility, one in April and the other in December. There has been no service to the power facility in 1998. According to FVW, it contacted WPS and the operator indicated that it does not oppose the abandonment. After abandonment, FVW plans to use the line's salvageable track and materials to upgrade and maintain its other rail lines, and any remaining materials will be sold as scrap. The National Geodetic Survey (NGS) has identified three geodetic station markers that may be affected by the proposed abandonment. Therefore, SEA recommends that a condition be imposed on any grant of abandonment authority requiring FVW to notify NGS at least 90 days prior to any salvage activities that may disturb or destroy these markers so that plans can be made for their relocation. In response to the EA, SEA received comments from WisDNR and FVW. WisDNR is concerned about possible arsenic contamination in the right-of-way. It states that, because the ballast will not be removed during salvage operations, no sampling will be required at this time. However, if the ballast is ever removed, WisDNR states that a sampling will be necessary to define the degree and extent of arsenic contamination and determine the appropriate remedy. FVW asserts that, while it often leaves the ballast undisturbed, it is the personal property of the railroad and may be salvaged. It claims that WisDNR does not have the authority to order a sampling of the right-of-way upon removal of the ballast. Further, FVW states that it objects to the condition that it notify NGS 90 days prior to any salvage activities. SEA states that it is their understanding that the right-of-way is part of a designated arsenic contamination site, a portion of which has been remedied. It indicates that WisDNR is concerned that the possible remaining arsenic contamination will be dislodged and pose a potential risk to human health and the environment if the ballast along the right-of-way is disturbed during salvage operations and that such disturbance would require remediation by the railroad. FVW, in its environmental report, describes several possible methods that may be employed during salvage, one of which would leave the ballast relatively undisturbed. However, FVW does not indicate which salvage method will be used. SEA, therefore, recommends that a condition be imposed on any grant of abandonment authority requiring FVW to consult with WisDNR prior to undertaking any salvage operations in order to determine whether planned salvage operations and techniques could disturb ballast along the right-of-way, which in turn could dislodge remaining arsenic deposits, and to cooperate with WisDNR in any remediation measures that may be required as a result of this consultation. We will impose the conditions recommended by SEA. WisDNR/DOT requests a NITU under the National Trails System Act. WisDOT states that WisDNR will use or preserve the land corridor and related real property for interim public transportation and recreational purposes (including highway, pedestrian and other trail uses), subject to restoration for railroad purposes. By letter filed on May 28, 1998, FVW states that it is willing to negotiate with WisDNR for interim trail use. 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 by FVW 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 conditions that: (1) FVW shall comply with the interim trail use/rail banking procedures set forth below; (2) FVW shall notify NGS at least 90 days prior to any salvage activities that may disturb or destroy the geodetic station markers identified on the line so that plans can be made for their relocation; and (3) FVW shall consult with WisDNR prior to undertaking any salvage operations in order to determine whether planned salvage operations and techniques could disturb ballast along the right-of-way and cooperate with WisDNR in any remediation measures that may be required as a result of this consultation. 2. FVW must serve a copy of this decision and notice on Kewaunee Co-op, WPS, and WEPC within 5 days after the service date of this decision and notice and certify to the Board that it has done so. 3. If an interim trail use/rail banking agreement is reached, it must require the trail user to assume, for the term of the agreement, full responsibility for management of, any legal liability arising out of the transfer or use of (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for the payment of any and all taxes that may be levied or assessed against, the right-of-way. 4. Interim trail use/rail banking is subject to the future restoration of rail service and to the user's continuing to meet the financial obligations for the right-of-way. 5. If interim trail use is implemented and subsequently the user intends to terminate trail use, it must send the Board a copy of this decision and notice and request that it be vacated on a specified date. 6. If an agreement for interim trail use/rail banking is reached by the 180th day after service of this decision and notice, interim trail use may be implemented. If no agreement is reached by that time, FVW may fully abandon the line, provided the conditions imposed above are met. 7. Provided no OFA has been received, this exemption will be effective September 2, 1998. 8. FVW shall file 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 FVW's filing of a notice of consummation by August 3, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: July 29, 1998 Service Date - Late Release August 3, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-541X PORTLAND & WESTERN RAILROAD, INC.--ABANDONMENT EXEMPTION--IN WASHINGTON COUNTY, OR By petition filed April 15, 1998, Portland & Western Railroad, Inc. (PNWR) seeks an exemption to abandon: (1) a line of railroad extending from milepost 20.05 to milepost 21.09, a distance of 1.04 miles (the Subject Line); and (2) if required, two additional segments: (a) from milepost 21.09 to milepost 21.26, a distance of 0.17 mile and (b) from milepost 21.50 to milepost 22.00, a distance of 0.5 mile, (the Additional Segments), all located at or near Hillsboro, in Washington County, OR. Notice of the institution of an exemption proceeding was published in the Federal Register on May 5, 1998. Abandonment authority for the segments from milepost 21.09 to milepost 21.26 (0.17 mile) and from milepost 21.50 to milepost 22.09 (0.5 mile) was previously granted to Burlington Northern Railroad Company (BN) in Docket No. AB-6 (Sub-No. 363X) (ICC served Dec. 5, 1994). Thereafter, PNWR filed a notice of exemption to acquire and operate all three segments in STB Finance Docket No. 33502 (STB served Nov. 24, 1997). In that proceeding, PNWR acquired the rail, track materials, and other personal property necessary for rail service and an exclusive rail easement over the underlying property; BN retained the real property with the intent to donate the property to the State of Oregon. PNWR questions the need to seek abandonment authority for the two Additional Segments previously abandoned by BN because PNWR states that it never exercised its authority due to the absence of traffic. We will grant the petition, subject to labor protective conditions. PNWR is a common carrier by railroad that currently owns approximately 154 miles of rail lines in Oregon. In September of 1995, PNWR entered into an agreement with Burlington Northern Railroad Company (BN) to lease five separate lines of the BN in PNWR's service area. During the pendency of the lease proceeding, BN agreed to sell to PNWR the lines under lease, as well as some additional properties in the region. PNWR purchased these lines in November 1997. After acquiring the Additional Segments, PNWR learned that BN had previously abandoned these segments in AB-6 (Sub-No. 363X). In any event, PNWR now seeks to abandon the Subject Line and, if required, the Additional Segments (collectively, the Lines). PNWR questions the need to seek abandonment authority for the Additional Segments because PNWR says it has never exercised its authority to operate the lines due to the absence of traffic. PNWR filed its notice of exemption, and then purchased the Additional Segments, thereby consummating the transaction. And, when PNWR subsequently held itself out to provide service, it assumed a common carrier obligation for those segments. This is true regardless of whether it was successful in its attempts to generate traffic on the Additional Segments. PNWR says that it has not provided any service on the lines since they were purchased from BN in November 1997. Assertedly, the last service provided on the lines was prior to December 1994 by BN. According to PNWR, if not for the recent change in ownership, the Lines would have been eligible for the class exemption for out-of-service rail lines. PNWR states that the Lines are not part of any through routes and that there are currently no active on- line shippers. Moreover, the petitioner says, there are no prospects for future service. Due to the absence of traffic, PNWR maintains that there is no justification for PNWR to continue to incur the costs necessary to maintain the Lines. Abandonment will allow PNWR to facilitate a road widening project by the Oregon Department of Transportation through the removal of a bridge located at milepost 20.1. PNWR plans to re-use a portion of the bridge in the reconstruction of its Cornelius Pass line. 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 by PNWR of the above-described segments of rail line, subject to the employee protective conditions in Oregon Short Line R. Co.--Abandonment-- Goshen, 360 I.C.C. 91 (1979). 2. Provided no OFA has been received, this exemption will be effective on September 2, 1998. 3. PNWR 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 PNWR's filing of a notice of consummation by August 3, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: July 28, 1998 Service Date - Late Release August 3, 1998 ------------------------------------------------------------------------- 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 decision and notice of interim trail use or abandonment (NITU) served on May 20, 1998, a 90-day period was authorized for the Rails to Trails Conservancy (RTC), to negotiate an interim trail use/rail banking agreement with South Carolina Central Railroad Company, Inc., d/b/a Carolina Piedmont Division (CPDR), for two segments of rail line extending from: (1) milepost AJK 585.34, in East Greenville, to milepost AJK 588.63 in Greenville; and (2) milepost 0.0 to milepost 2.0 in Greenville, a total distance of 5.29 miles, in Greenville County, SC. The 90-day negotiating period expired on July 30, 1998. On July 28, 1998, RTC filed a request for an extension of the negotiating period until October 31, 1998. RTC states that, while it is close to reaching an interim trail use/railbanking agreement with CPDR, several issues still need to be resolved. By letter filed July 28, 1998, CPDR states that it does not object to the extension request. It is ordered: 1. The NITU negotiating period is extended until October 31, 1998. Decided: July 31, 1998 Service Date - August 4, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-318 (Sub-No. 4X) LOUISIANA & DELTA RAILROAD, INC.--ABANDONMENT EXEMPTION--IN LAFOURCHE AND ASSUMPTION PARISHES, LA By decision served August 26, 1997, the Board granted Louisiana & Delta Railroad, Inc. (L&D) an exemption to abandon a line of railroad, the Napoleonville Branch, extending from milepost 1.0 near Thibodaux, Lafourche Parish, LA, to milepost 15.28 near Supreme, Assumption Parish, LA, a distance of 14.28 miles, subject to a public use condition, an environmental condition, and standard labor protective conditions. The August 26, 1997, decision denied the issuance of a notice of interim trail use filed by the City of Thibodaux, LA (City) because L&D was not willing at that time to negotiate for trail use. On October 24, 1997, a decision and notice of interim trail use or abandonment (NITU) was served that reopened the proceeding to implement interim trail use and rail banking and provided for a period of time in which L&D could negotiate an agreement with American Trails Association, Inc. (ATA). ATA has advised us that it has reached an agreement with L&D for the rail banking of the right-of-way. On May 26, 1998, Acadia Plantation (Acadia) filed a petition asking us to reopen and reconsider the October 24, 1997 decision. In its petition Acadia alleges that there is no likelihood of the railroad right-of-way ever being used for a trail and that no local governmental body has indicated its willingness to assume full financial responsibility for the right-of-way. Acadia states that it has a reversionary interest in the right of way and wants to exercise that right. Acadia claims that ATA intends to attempt to sell the right of way to the adjacent landowners. On June 22, 1998, ATA replied to Acadia's petition. ATA notes that Acadia does not even allege, much less demonstrate, that ATA has failed to fulfill the commitments it made to manage the right of way, assume legal liability arising out of the interim trail use, and to pay the taxes on the right of way. ATA further states that Acadia is relying upon an expression of disinterest by the Mayor of Thibodaux to argue that there is no likelihood that the right-of-way will ever be operated as a trail. ATA states that simply because the mayor may not be inclined to assume responsibility for the right-of-way does not mean that others, such as Lafourche or Assumption Parishes or recreational groups located within them, may not want to do so. ATA states that this is what it is striving toward. We will deny the petition to reopen. Petitioner has failed to submit new evidence, nor has it demonstrated that circumstances have changed substantially since we issued the NITU in this case on October 24, 1997. The petitioner has also failed to demonstrate that we committed material error in issuing the NITU. The record shows nothing to indicate that ATA has done anything to date to compromise the integrity of the rail-banked line. Acadia asserts that ATA seeks to sell the right-of-way to the reversionary property owners, which is a serious charge. But the petitioner offers no support for this assertion. Accordingly, there is no basis for reopening, and the petition to reopen will be denied. It is ordered: 1. Acadia's petition to reopen the NITU served October 24, 1997, is denied. Decided: July 29, 1998 Service Date - August 4, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION AND NOTICE OF INTERIM TRAIL USE OR ABANDONMENT STB Docket No. AB-492 (Sub-No. 1X) FILLMORE WESTERN RAILWAY COMPANY--ABANDONMENT EXEMPTION-- IN FILLMORE, JEFFERSON, SALINE, AND THAYER COUNTIES, NE By decision served June 26, 1998, the Board granted Fillmore Western Railway Company (FWRY) an exemption to abandon the following lines of railroad: (1) the Bruning Line, extending from milepost 10.0 near Geneva to milepost 24.5 near Bruning; (2) the Daykin Line, extending from milepost 35.8 at East Strang Junction to milepost 23.2/28.4 at Tobias and continuing to the end of the line at milepost 36.2 at Daykin; and (3) the Shickley Line, extending from milepost 37.5 near West Strang Junction to milepost 45.0 at Shickley, a total distance of 42.40 miles in Fillmore, Jefferson, Saline and Thayer Counties, NE. The exemption was scheduled to become effective on July 26, 1998. On July 14, 1998, the Nebraska Trails Foundation, Inc. (NTF), filed a request for issuance of a notice of interim trail use (NITU) under the National Trails System Act and imposition of a 180-day public use condition. NTF requests that FWRY be prohibited from disposing of the corridor, other than the tracks, ties and signal equipment, except for public use on reasonable terms, and that FWRY 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 the abandonment exemption. NTF states that the 180-day period is needed to assemble and review title information, and to complete a trail plan and commence negotiations with FWRY. NTF also submits a statement of willingness to assume financial responsibility for interim trail use and rail banking and acknowledges that use of the right-of-way for trail purposes is subject to future reactivation for rail service. By facsimile transmitted July 24, 1998, FWRY indicates its willingness to negotiate with NTF for interim trail use for 120 days instead of 180 days. A NITU will be issued. The parties may negotiate an agreement during the 120-day period prescribed below. When the need for interim trail use/rail banking and public use is shown, it is the Board's policy to impose both conditions concurrently, subject to execution of a trail use agreement. If no interim trail use agreement is reached within 120 days, FWRY must wait until the remainder of the 180-day public use condition has expired before it can fully abandon the lines. If a trail use agreement is reached on a portion of the right-of-way, FWRY must keep the remaining right- of-way intact for the remainder of the 180-day period to permit public use negotiations. It is ordered: 1. This proceeding is reopened. 2. Upon reconsideration, the decision served on June 26, 1998, exempting the abandonment of the lines described above, is modified to the extent necessary to implement interim trail use/rail banking as set forth below for a period of 120 days after the July 26, 1998 effective date (until November 23, 1998), and is subject to the condition that FWRY keep intact the right-of-way underlying the track, including bridges, trestles, culverts, and tunnels (but not track or track materials or signal equipment), for a period of 180 days after the July 26, 1998 effective date (until January 22, 1999) to enable any State or local government agency, or other interested person to negotiate for acquisition of the line for public use. If an interim trail use/rail banking agreement is executed before the 120-day expiration period specified above, the public use condition will expire to the extent the trail use/rail banking agreement covers the same line or lines. 3. If an interim trail use/rail banking agreement is reached, it must require the trail user to assume, for the term of the agreement, full responsibility for management of, for any legal liability arising out of the transfer or use of (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for the payment of any and all taxes that may be levied or assessed against the right-of-way. 4. Interim trail use/rail banking is subject to the future restoration of rail service and to the user's continuing to meet the financial obligations for the right-of-way. 5. If interim trail use is implemented, and subsequently the user intends to terminate trail use, it must send the Board a copy of this decision and notice and request that it be vacated on a specific date. 6. If an agreement for interim trail use/rail banking is reached by November 23, 1998, interim trail use may be implemented. However, if no agreement is reached by that time, FWRY may not fully abandon the lines until after January 22, 1999. Decided: July 31, 1998 Service Date - August 4, 1998 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Finance Docket No. 32760 (Sub-No. 26)] [HOUSTON/GULF COAST OVERSIGHT] Union Pacific Corporation, Union Pacific Railroad Company, and Missouri Pacific Railroad Company--Control and Merger-- Southern Pacific Rail Corporation, Southern Pacific Transportation Company, St. Louis Southwestern Railway Company, SPCSL Corp., and The Denver and Rio Grande Western Railroad Company This decision embraces the following: (1) Finance Docket No. 32760 (Sub-No. 27), Texas Mexican Railway Company & Kansas City Southern Railway--Construction Exemption--Rail Line Between Rosenberg and Victoria, TX; (2) Finance Docket No. 32760 (Sub-No. 28), Burlington Northern and Santa Fe Railway Company--Terminal Trackage Rights--Texas Mexican Railway Company; (3) Finance Docket No. 32760 (Sub-No. 29), Burlington Northern and Santa Fe Railway Company--Application for Additional Remedial Conditions Regarding Houston/Gulf Coast Area; Finance Docket No. 32760 (Sub-No. 30), Texas Mexican Railway Company, et al.--Request For Adoption of Consensus Plan; Finance Docket No. 32760 (Sub-No. 31), Houston & Gulf Coast Railroad--Application for Trackage Rights and Forced Line Sales; Finance Docket No. 32760 (Sub-No. 32), Capital Metropolitan Transportation Authority-- Responsive Application--Interchange Rights. ACTION: Decision No. 6; Notice of Acceptance of Requests for Additional Conditions to the UP/SP Merger for the Houston, Texas/Gulf Coast Area. SUMMARY: The Board is accepting for consideration requests for additional conditions to the UP/SP merger for the Houston/Gulf Coast region, filed July 8, 1998: (1) jointly by the Texas Mexican Railway Company (Tex Mex), Kansas City Southern Railway Company (KCS), and certain shipper and governmental interests; (2) by the Burlington Northern and Santa Fe Railway Company (BNSF); and (3) by certain individual shippers. Certain requested conditions will be transferred for consideration to the Board's general oversight proceeding for the UP/SP merger that began July 1, 1998, in Finance Docket No. 32760 (Sub-No. 21). SUPPLEMENTARY INFORMATION: By decision served August 12, 1996, the Board approved the common control and merger of the rail carriers controlled by Union Pacific Corporation and those controlled by Southern Pacific Rail Corporation (collectively UP/SP), subject to various conditions. Common control was consummated on September 11, 1996. We imposed a 5-year oversight condition to examine whether the conditions we imposed effectively addressed the competitive issues they were intended to address, and we retained jurisdiction to impose additional remedial conditions if those already imposed proved insufficient. In our initial oversight proceeding, we determined that, while it was still too early to tell, there was no evidence at that time that the merger, with the conditions that the Board had imposed, had produced any adverse competitive consequences. We indicated, however, that our oversight would be ongoing, and that we would continue vigilant monitoring. Last summer, UP/SP experienced serious service difficulties caused by, among other things, severely congested UP/SP lines in and around Houston that, in turn, affected rail service throughout the western United States, and the Board issued a series of decisions under its emergency service order authority, effective until August 2, 1998, to address those difficulties. In those decisions, we rejected proposals offered by certain shipper, carrier, and governmental interests that would have addressed the emergency by requiring UP/SP to permanently afford access to certain of its lines in and around Houston to other rail carriers, and to divest other lines. We determined that one of the primary reasons for the service crisis was the inadequate infrastructure in the region, and that proposals to transfer line ownership and/or broadly permit other rail carriers access to the merged UP/SP network would likely work not to end the immediate crisis, but exacerbate it. As a result, and mindful that our emergency service order authority is temporary (up to 270 days), we adopted only those measures designed to free up traffic in and around Houston without further aggravating congestion in the area or creating additional service disruptions. The Board provided, however, that interested persons could present longer-term restructuring proposals of the kind suggested above in the UP/SP merger oversight process. Based on a joint request for such relief filed on February 12, 1998, by Tex Mex/KCS, and one filed March 6, 1998, by the Greater Houston Partnership, the Board, on March 31, 1998, instituted a discrete oversight proceeding to consider requests for additional conditions to the UP/SP merger for the Houston/Gulf Coast region. We stated that we would examine whether there is any relationship between any market power gained by UP/SP through the merger and the failure of service that occurred in the region, and, if so, whether additional remedial conditions would be appropriate. We also provided that we would grant requested conditions that would substantially change UP/SP's existing configuration and operations in the region only upon the type of evidence required for inconsistent applications in merger proceedings. As indicated in Decision No. 1, we are confining our consideration in this proceeding to requests for new conditions that would reconfigure the existing UP/SP network in the Houston/Gulf Coast region. Requests for conditions that would affect the UP/SP network outside of this region, or requests for other kinds of conditions more broadly applicable to the merger as a whole, will be considered instead in the general oversight proceeding, Finance Docket No. 32760 (Sub-No. 21), that began on July 1, 1998. The requests that we will consider in this proceeding are summarized below. THE CONSENSUS PLAN (Finance Docket No. 32760 (Sub-No. 30)) The consensus plan has been offered by Tex Mex/KCS, the Chemical Manufacturers Association, the Railroad Commission of Texas, the Society of the Plastics Industry, Inc., and the Texas Chemical Council. These parties ask us to: (1) Impose permanently provisions of Service Order No. 1518 that: (a) lifted the restriction on trackage rights that Tex Mex received in the UP/SP merger over UP/SP's Corpus Christi/Robstown--Beaumont, TX line. As a condition to our approval of the UP/SP merger, we granted Tex Mex access to Houston area shippers switched by the Port Terminal Railroad Association (PTRA) and the Houston Belt & Terminal Railway Company (HBT) via trackage rights over UP/SP's Corpus Christi/Robstown--Beaumont line, subject to the restriction that all Tex Mex traffic using these trackage rights must have a prior or subsequent movement over Tex Mex Laredo-Corpus Christi line. In Service Order No. 1518, we suspended that restriction and directed UP to release these shippers from their contracts so that those desiring to do so could route traffic over Tex Mex and BNSF, in lieu of UP/SP; and (b) afforded trackage rights to Tex Mex over the UP's Algoa route between Placedo and Algoa, TX and over the BNSF between Algoa and T&NO Jct.; (2) Restore neutral switching in Houston, said to be lost when UP/SP and BNSF dissolved the HBT, that would encompass all of the industries and trackage that were formerly served by the HBT, and all industries and trackage of the PTRA, and, if PTRA is designated as the neutral switching provider, grant it trackage rights over former HBT trackage and the use of appropriate yards. (3) Expand the neutral switching area to include: (a) all shippers currently located on the former SP Galveston Subdivision between Harrisburg Jct. and Galveston, including those at Sinco, Pasadena, Deer Park, Strang, LaPorte, the Clinton Branch, the Bayport Loop and the Bayport area, including Barbours Cut and the Navigation Lead; and (b) all shippers at Galveston located on both the former SP and the former UP routes between Houston and Galveston, and require that the neutral switching company be granted trackage rights between Houston and Galveston over both routes, with rights to serve all industries located along the two lines and access to the former SP and UP yards at Strang and Galveston. (4) Establish neutral dispatching within the neutral switching area, to be located, managed and administered by the PTRA, and require that all railroads serving Houston be granted terminal trackage rights by the owning carrier over all tracks within the neutral switching and dispatching area, so that the neutral dispatcher could route trains over the most efficient route. (5) Require UP/SP and BNSF to acknowledge Tex Mex's full voting membership on the PTRA board and to restore the Port of Houston Authority as a full voting member of the PTRA board; (6) Require UP/SP to sell to Tex Mex its line between Milepost 0.0 at Rosenberg and Milepost 87.8 at Victoria, TX. Tex Mex would re-construct this line and, when completed, grant UP/SP and BNSF trackage rights between Rosenberg and Victoria to facilitate UP's directional traffic on the Brownsville Subdivision. Grant Tex Mex related trackage rights over the two miles on the south end of this line between Milepost 87.8 and the point of connection at UP/SP's Port LaVaca branch at Victoria; (7) Require UP to sell or lease an existing yard in Houston (preferably the Booth Yard) to the Tex Mex. Tex Mex would sub-lease to UP a portion of the yard to hold up to 300 empty storage cars until Tex Mex can complete construction of the line between Rosenberg and Victoria and build a storage yard between Rosenberg and El Campo. Upon completion of the new storage yard, Tex Mex would cancel its sub-lease with UP and offer to lease to UP track space at the new storage yard for the same number of empty storage cars and to upgrade Booth Yard by reconstructing the south end of the yard; and (8) Require UP to allow Tex Mex/KCS to construct a new rail line on UP's right-of-way adjacent to UP's Lafayette Subdivision between Dawes and Langham Road, Beaumont, TX. Upon completion of this new rail line, Tex Mex/KCS would deed it to UP in exchange for a deed to the UP's Beaumont Subdivision between Settegast Jct., Houston, and Langham Road, Beaumont. Tex Mex would dispatch this line from Houston and grant BNSF and UP trackage rights over this line, and would retain trackage rights over the Lafayette Subdivision between Houston and Beaumont. BNSF (Finance Docket No. 32760 (Sub-No. 29)) In this proposal, the Board is asked to: (1) Grant BNSF permanent bidirectional overhead trackage rights on UP's Caldwell- Flatonia-San Antonio and Caldwell-Flatonia-Placedo lines to give BNSF long-term operational flexibility to avoid congested UP lines between Temple and San Antonio, TX and between Algoa and Corpus Christi, TX; (2) Grant BNSF trackage rights over both the UP line and the SP line between Harlingen and Brownsville, TX (until UP constructs a connection between the UP and SP lines at Brownsville to complete a rail bypass project) and allow the Brownsville & Rio Grande International Railroad (BRGI) to act as BNSF's agent for such service, so that BNSF may begin effective and competitive trackage rights service to both Brownsville and the Transportacion Ferroviara Mexicana (TFM) connection at Matamoros, and to alleviate problems in the Brownsville area resulting from the incomplete rail bypass project; (3) Grant BNSF overhead trackage rights on the UP Taylor-Milano line, so that BNSF may avoid congestion on the UP lines between Temple and Taylor, and Taylor and Sealy, and to provide a less circuitous routing; (4) Order neutral switching supervision on the former SP Baytown and Cedar Bayou Branches and on the former SP Sabine and Chaison Branches serving the Beaumont-Port Arthur, TX area, to correct UP's inadequate local switch service via haulage and reciprocal switch between BNSF and its customers. The neutral switching supervisor would be selected by the parties unless they were unable to agree, in which case the switching supervisor would be selected by an arbitrator; (5) Order PTRA's operation of the UP Clinton Branch in Houston, in order to eliminate delays caused by UP to BNSF's trains providing service to the Houston Public Elevator; (6) Grant BNSF overhead trackage rights giving it the option to join the directional operations over any UP line, or lines in corridors where BNSF has trackage rights over one, but not both, lines involved in the UP directional flows, specifically including the Fort Worth--Dallas line (via Arlington), so that BNSF could provide more efficient competitive operations; (7) Grant BNSF trackage rights on additional UP lines for BNSF to operate over any available clear routes through the terminal, as determined and managed by the Spring Consolidated Dispatching Center (SCDC), including the SP route between West Junction and Tower 26 via Chaney Junction, so that BNSF can avoid congestion in the Houston terminal area; (8) Order the coordinated dispatching of operations over the UP and SP routes between Houston and Longview, TX, and Houston and Shreveport, LA, by the SCDC, to alleviate congestion in the corridor and to improve coordination of BNSF and UP trains arriving and departing the Houston area on UP lines north of Houston; and (9) Grant overhead trackage rights on UP's San Antonio-Laredo line to avoid the adverse impact of (a) unnecessary routing of traffic through Houston, UP's south Texas congestion and service problems, and UP's alleged favoritism of its own business, and (b) the unforeseen changes in market structuring, including the influence of KCS on Tex Mex's ability to work with BNSF at Laredo, and the unexpected lack of direct competition in the privatized Mexican rail system. BNSF (Finance Docket No. 32760 (Sub-No. 28)) In a related proposal, BNSF has filed an application asking the Board to grant it terminal trackage rights that would permit it: (a) to use a segment of Tex Mex track between MP 0.00 at the International Bridge at Laredo, TX and the vicinity of MP 0.50, including over the International Bridge at Laredo; and (b) equal access to use the International Bridge for interchange purposes through establishment of defined operational windows for BNSF's use. The Board will accept and consider the Consensus Plan and BNSF proposals. SHIPPER-REQUESTED CONDITIONS Various Houston area and other Texas shippers have filed requests, with supporting evidence, for new conditions to the merger that would have discrete application to them. Shippers making these requests are E.I. DuPont de Nemours and Company, Dow Chemical Company, Formosa Plastics Corporation, U.S.A., and Central Power & Light Company. The Greater Houston Partnership (GHP) also adopted a resolution with recommendations to promote competitive rail service in Houston similar to many of the requested conditions made by BNSF and the Consensus Plan, particularly that for neutral switching. GHP specifically asks the Board to: (1) consider making permanent the temporary trackage rights already granted railroads serving the Houston-Gulf Coast region; (2) make the Port of Houston and all long haul railroads serving Houston full and equal voting members of the PTRA board; (3) provide a mechanism for all railroads serving Houston to buy trackage rights over trackage owned by the Port of Houston and operated by PTRA, trackage formerly owned by the HBT prior to its dissolution, and additional trackage; (4) order the reconstitution of PTRA as a neutral dispatching, switching and car movement operator, to encompass all of the trackage described in (3); (5) encourage UP/SP to agree with other carriers to sell or lease abandoned and underutilized rights of way and switching yards, and mediate negotiations for sales and leases; and (6) order PTRA to develop a regional master plan of added facilities and operations needed to provide system capacity in excess of demand for the foreseeable future. The Board will accept and consider all of these proposals. We also note that the National Industrial Transportation League (NITL), while not making any specific requests, argues that there is a clear need for additional conditions to the merger in the Houston/Gulf Coast region, and asks that the Board particularly consider proposals that would establish neutral switching in Houston, make permanent the emergency service order authority granted to Tex Mex, provide increased overhead trackage rights in the region, and encourage increased infrastructure. CAPITAL METROPOLITAN TRANSPORTATION AUTHORITY (Finance Docket No. 32760 (Sub-No. 32) Capital Metro, a regional transit authority that owns a 162-mile line that traverses Austin, TX between Giddings and Llano, TX, requests, with supporting evidence, a condition granting BNSF trackage rights over 4.4 miles of UP/SP tracks between Round Rock and McNeil, TX, and interchange rights at McNeil with Capital Metro's operator, the Central of Tennessee Railway & Navigation Company, Inc. d/b/a the Longhorn Railway Company (Longhorn). The Board will accept and consider this request. In the UP/SP merger, the Board determined that Capital Metro could interchange freight traffic with BNSF at Giddings, at the east end of the line, or Elgin, toward the center of the line, but it denied Capital Metro's requested condition that BNSF be permitted to interchange with Longhorn at McNeil, the line's westernmost interchange point. Capital Metro is seeking the McNeil condition anew, because BNSF no longer runs through trains through Elgin, the interchange point Capital Metro selected, due to UP/SP congestion south of Elgin, and Giddings is only a theoretical interchange. KENNETH B. COTTON (Finance Docket No. 32760 (Sub-No. 31)) On August 3, 1998, Kenneth B. Cotton, a small businessman on behalf of the Houston and Gulf Coast Railroad (H&GC), asks the Board to accept a late-filed application for new conditions. Mr. Cotton requests the following: (1) Grant H&GC trackage rights on UP between Wharton, TX and Rosenberg, TX, and allow interchange with BNSF at Rosenberg; (2) If the Wharton-Rosenberg and Wharton-Victoria segments of UP's Rosenberg- Victoria line are sold to Tex Mex, grant H&GC trackage rights from Victoria-Rosenberg over Tex Mex, with switching rights between Victoria and Rosenberg, and with interchange rights at Victoria with Tex Mex, BNSF, and UP; (3) Grant H&GC trackage rights on UP between Rosenberg and Houston via West Junction, with access to PTRA, New South, Englewood, and Settegast Yards; (4) Grant H&GC trackage rights on UP between Bay City, TX, and Algoa, TX, with interchange rights with BNSF at Algoa; (5) Require UP to sell H&GC track from Congress Yard in Houston to M.P. 233.0 in Galveston, TX, including rights over the lift bridge at Galveston, and to interchange with H&GC all Galveston-bound grain trains at Congress Yard or Rosenberg. H&GC also requests access to the Texas City Terminal Railway at Texas City, TX; and (6) Require UP to sell the former SP Galveston Subdivision line between M.P. 38.8 to M.P. 55.6, with trackage rights over the lift bridge at Galveston. Although Mr. Cotton filed no evidence in support of H&GC's requests, he has asserted that a grant of the conditions he has requested would benefit freight shippers and competition in the Houston area. We will accept and consider his late-filed application. In contrast, we will not accept or consider requested conditions by the Texas Electric Rail Lines, which does not appear to offer freight service, for the forced sale, or forced rehabilitation and reactivation, of several vaguely and inadequately described UP/SP lines in Texas. Finally, we note that several persons have filed letters supporting one or more of the requested conditions summarized above; others have submitted letters, without supporting evidence, that request other conditions. These letters will be placed in the docket, but any requested conditions made in them different than those outlined above will not be considered. Decided: August 3, 1998. Service Date - August 4, 1998 PROCEDURAL SCHEDULE August 28, 1998 Notice of intent to participate in proceeding due. September 18, 1998 All comments, evidence, and argument opposing requests for new remedial conditions to the merger due. Comments by U.S. Department of Justice and U.S. Department of Transportation due. October 16, 1998 Rebuttal evidence and argument in support of requests for new conditions due. The necessity of briefing, oral argument, and voting conference will be determined after the Board's review of the pleadings. ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33635] Bellingham International Railroad LLC--Acquisition and Operation Exemption--The Burlington Northern and Santa Fe Railway Company Bellingham International Railroad LLC (BIR), a noncarrier, has filed a notice of exemption to acquire the exclusive rail freight easement and all track, track materials, and related structures and facilities from The Burlington Northern and Santa Fe Railway Company (BNSF) and to operate 2.0 miles of rail line between milepost 2.98 and milepost 4.98 in Bellingham, Washington. The transaction was expected to be consummated on or shortly after July 22, 1998. Decided: July 27, 1998. Service Date - August 4, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION Docket No. AB-3 (Sub-No. 131) MISSOURI PACIFIC RAILROAD COMPANY--ABANDONMENT--HOPE- BRIDGEPORT LINE IN DICKINSON AND SALINE COUNTIES, KS Docket No. AB-3 (Sub-No. 133X) MISSOURI PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- IOWA JUNCTION LINE-MANCHESTER LINE IN JEFFERSON DAVIS AND CALCASIEU PARISHES, LA Docket No. AB-12 (Sub-No. 184X) SOUTHERN PACIFIC TRANSPORTATION COMPANY--ABANDONMENT EXEMPTION--WENDEL-ALTURAS LINE IN MODOC AND LASSEN COUNTIES, CA Docket No. AB-12 (Sub-No. 187X) SOUTHERN PACIFIC TRANSPORTATION COMPANY--ABANDONMENT EXEMPTION--SEABROOK-SAN LEON LINE IN GALVESTON AND HARRIS COUNTIES, TX Docket No. AB-33 (Sub-No. 93X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- WHITTIER JUNCTION-COLIMA JUNCTION LINE IN LOS ANGELES COUNTY, CA Docket No. AB-33 (Sub-No. 94X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- MAGNOLIA TOWER-MELROSE LINE IN ALAMEDA COUNTY, CA Docket No. AB-33 (Sub-No. 96) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT--BARR-GIRARD LINE IN MENARD, SANGAMON AND MACOUPIN COUNTIES, IL Docket No. AB-33 (Sub-No. 97X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- IN DECAMP-EDWARDSVILLE LINE IN MADISON COUNTY, IL Docket No. AB-33 (Sub-No. 98X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- EDWARDSVILLE-MADISON LINE IN MADISON COUNTY, IL Docket No. AB-33 (Sub-No. 99X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- LITTLE MOUNTAIN JUNCTION-LITTLE MOUNTAIN LINE IN BOX ELDER AND WEBER COUNTIES, UT In Docket No. AB-3 (Sub-No. 131), Missouri Pacific Railroad Company (MPRR) filed an application to abandon, and for The Denver and Rio Grande Western Railroad Company to discontinue its trackage rights on, a line of railroad extending from milepost 459.20 near Hope to milepost 491.20 near Bridgeport, a distance of approximately 31.24 miles (milepost 478.05 = milepost 478.81) in Dickinson and Saline Counties, KS. MPRR merged into Union Pacific Railroad Company (UPRR) on January 1, 1997. By letter filed November 12, 1997, UPRR notified the Board that service had been discontinued on the line as authorized in the certificate of interim trail use or abandonment (CITU) served on September 10, 1996. In Docket No. AB-3 (Sub-No. 133X), MPRR filed a petition for exemption to abandon an approximately 8.5-mile rail line between milepost 680.0 near Iowa Junction and milepost 688.5 near Manchester in Jefferson Davis and Calcasieu Parishes, LA. In Docket No. AB-12 (Sub-No. 184X), Southern Pacific Transportation Company (SPT) filed a petition to abandon an 85.5-mile rail line between milepost 360.1, near Wendel, and milepost 445.6, near Alturas, in Modoc and Lassen Counties, CA. In Docket No. AB-12 (Sub-No. 187X), SPT filed a notice of exemption to abandon approximately 10.5 miles of its Seabrook-San Leon Line from milepost 30.0 near Seabrook, to milepost 40.5 near San Leon, in Galveston and Harris Counties, TX. On November 20, 1996, a decision and notice of interim trail use or abandonment (NITU) was served, authorizing a 180- day period for the City of Dickinson to negotiate an interim trail use/rail banking agreement with SPT. In Docket No. AB-33 (Sub-No. 93X), Union Pacific Railroad Company (UPRR) filed a notice of exemption to abandon approximately 5.18 miles of the Whittier Junction-Colima Junction line (portion of the Anaheim Branch) from milepost 0.0 near Whittier Junction to milepost 5.18 near Colima Junction, in Los Angeles County, CA. On December 13, 1996, a NITU was served, authorizing a 180-day period for the City of Whittier to negotiate an interim trail use/rail banking agreement with UPRR. In Docket No. AB-33 (Sub-No. 94X), UPRR filed a notice of exemption to abandon approximately 4.9 miles of the Magnolia Tower-Melrose line (portion of the Canyon Subdivision) from milepost 5.8 near Magnolia Tower to milepost 10.7 near Melrose, in Alameda County, CA. A 180-day public use condition was imposed at the request of San Francisco Bay Trail for a portion of the line from milepost 7.6 to milepost 7.1. The condition required that UPRR keep the right-of-way intact, including bridges, culverts, and similar structures, for a period of 180 days after the September 11, 1996 effective date of the exemption to permit San Francisco and any other state or local government agency, or other interested person, to negotiate for acquisition of the line for public use. The public use condition expired on March 10, 1997. On January 22, 1997, a NITU was served authorizing a 180-day period for the City of Oakland (City) to negotiate an interim trail use /rail banking agreement with UPRR for the portion of the right-of-way from milepost 7.6 to milepost 7.1. The City's request for a NITU did not embrace the segment of the line between milepost 5.8 to milepost 7.1. In any event, the Board lost jurisdiction over that segment (between milepost 5.8 to milepost 7.1) when UPRR abandoned it. On February 2, 1998, a NITU was served authorizing the City to negotiate an interim trail use/rail banking agreement with UPRR for the portion of the right-of- way from milepost 7.1 at Oak Street to milepost 9.0 until August 8, 1998. In Docket No. AB-33 (Sub-No. 96), UPRR filed an application to abandon approximately 38.4 miles of rail line extending from milepost 51.0 near Barr to milepost 89.4 near Girard in Menard, Sangamon, and Macoupin Counties, IL. In Docket No. AB-33 (Sub-No. 97X), UPRR filed a notice of exemption to abandon approximately 14.6 miles of the DeCamp-Edwardsville line (portion of the Madison Subdivision) from milepost 119.2 near DeCamp to milepost 133.8 near Edwardsville, in Madison County, IL. In Docket No. AB-33 (Sub-No. 98X), UPRR filed a petition for exemption to abandon its 14.98-mile rail line from milepost 133.8 near Edwardsville to milepost 148.78 near Madison, in Madison County, IL. In Docket No. AB-33 (Sub-No. 99X), UPRR filed a notice of exemption to abandon approximately 12.0 miles of the Little Mountain Junction-Little Mountain Line (portion of the Little Mountain Branch) from milepost 0.0 near Little Mountain Junction to milepost 12.0 near Little Mountain, in Box Elder and Weber Counties, UT. By letter filed December 22, 1997, and amended on December 31, 1997, UPRR notified the Board that it had exercised the authority conferred by the NITU as follows: (1) service was discontinued over the 10-mile portion of the line extending from milepost 1.0 near Little Mountain Junction to milepost 11.0 near Little Mountain, UT; (2) the 1-mile portion of the line extending from milepost 0.0 to milepost 1.0 near Little Mountain Junction, UT, was reclassified to yard trackage; and (3) the 1-mile portion of the line extending from milepost 11.0 to milepost 12.0 near Little Mountain, UT, was reclassified to yard trackage. The negotiation periods for the CITUs served on September 10, 1996, and NITUs, published in the Federal Register on August 12, 1996, authorizing among other things, a 180-day period for MPRR, UPRR and SPT to negotiate an interim trail use/rail banking agreement with various parties and governmental agencies. The negotiation periods for these proceedings were extended by decisions served February 10, 1997, and January 26, 1998. The negotiation periods are scheduled to expire on August 8, 1998. On February 2, 1998, a NITU was served in Docket No. AB-33 (Sub-No. 94X) extending the negotiation period under the NITU for the right-of-way between milepost 7.1 and milepost 7.6 and between milepost 7.6 and milepost 9.0. By letters filed July 16, 1998, and July 23, 1998, UPRR requests an extension of the CITU and NITU negotiation periods for these proceedings through August 8, 1999. UPRR states that it has not consummated any of these abandonments and has not negotiated with the parties interested in the lines because of the uncertainty as to the timing of the abandonments. UPRR also stated, that as noted in the January 26, 1998 decision, the timing of the abandonments will be determined by ongoing merger implementation, the securing of labor implementing agreements, systems integration, and completion of various capital projects outlined in the merger. A further extension of the NITU and CITU negotiating periods is warranted. It is ordered: 1. The periods for negotiations for interim trail use/rail banking in these proceedings are extended to August 8, 1999. In Docket No. AB-33 (Sub-No. 94X), the extension of the NITU covers the 1.9-mile portion of the line from milepost 7.1 at Oak Street to milepost 9.0. Decided: July 30, 1998 Service Date - August 5, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-31 (Sub-No. 34X) GRAND TRUNK WESTERN RAILROAD INCORPORATED-- ABANDONMENT EXEMPTION--IN OAKLAND COUNTY, MI Grand Trunk Western Railroad Incorporated (GTW) filed a notice of exemption to abandon a 0.53-mile line of its railroad on the Cass City Subdivision between milepost 0.72 and milepost 1.25 in Oakland County, Pontiac, MI. Notice of the exemption was published in the Federal Register on July 6, 1998. The exemption is scheduled to become effective on August 5, 1998. By petition filed July 20, 1998, the City of Pontiac, MI (City) filed a request for the issuance of a notice of interim trail use (NITU) for the entire line under the National Trails System Act and for a public use condition, so that it could negotiate with GTW for use of the line as a recreational trail. The City requests that GTW be prohibited from disposing of the corridor, other than the tracks, ties, and signal equipment, except for public use on reasonable terms, and that GTW be barred from removing or destroying potential trail-related structures, such as bridges, trestles, culverts and tunnels, for a 180-day period from the effective date of the abandonment exemption. By reply filed July 30, 1998, GTW declines to negotiate with the City regarding the trail use request but does not object to the imposition of a public use condition under the terms described by the City. GTW also states that it is willing to negotiate with the City for the sale of the right-of-way proposed for abandonment. As an alternative to interim trail use under the Trails Act, the right-of-way may be acquired for public use as a trail. 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. The City has satisfied these requirements and, therefore, a 180-day public use condition will be imposed commencing with the effective date of the exemption. The City states that it needs the full 180-day period because it has not had an opportunity to commence negotiations with GTW. GTW may remove tracks, ties, and signal equipment on the right-of- way, but is required to leave bridges, trestles, culverts, and tunnels intact during that period. It is ordered: 1. This proceeding is reopened. 2. The request for issuance of a notice of interim trail use is denied. 3. The request for imposition of a public use condition is granted. The exemption of the abandonment of the 0.53-mile segment is subject to the condition that GTW leave intact all of the right-of-way underlying the tracks, including bridges, trestles, culverts and tunnels (but not track ties and signal equipment), for a period of 180 days from the August 5, 1998 effective date of the abandonment exemption (until February 1, 1999), to enable any State or local government agency, or other interested person to negotiate the acquisition of the line for public use. Decided: August 3, 1998 Service Date - August 5, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-6 (Sub-No. 380X) THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY --ABANDONMENT EXEMPTION--IN KING COUNTY, WA IN THE MATTER OF AN OFFER OF FINANCIAL ASSISTANCE This decision rejects an offer of financial assistance (OFA) filed by Redmond-Issaquah Railroad Preservation Association (RIRPA) and defers action on trail use requests filed by King County, WA, and The Land Conservancy of Seattle and King County (TLC). This proceeding concerns the disposition of a line of railroad (the Lake Sammamish line or the line) extending between milepost 7.3, near Redmond, and milepost 19.75, at Issaquah, a distance of 12.45 miles in King County. The line runs along Lake Sammamish, several miles to the east of Seattle, WA. No scheduled train operations have been conducted on the line since BNSF embargoed it for safety reasons on August 8, 1996. On April 15, 1997, TLC, a noncarrier, filed a notice of exemption to acquire and operate the Redmond-Issaquah line. The exemption became effective on April 22, 1997, and BNSF and TLC consummated the transaction on that date. Then, on June 11, 1997, less than 3 months later, TLC filed a petition for exemption to abandon the line. TLC's petition included a request for exemption from the provisions of 49 U.S.C. 10904, which provide any financially responsible person the opportunity to buy or subsidize a line authorized for abandonment at a price set by the Board. The petition also included a request for the issuance of a notice of interim trail use or abandonment (NITU). In a decision served September 26, 1997, we concluded that TLC never had any intention of reinstituting rail service on the line, and that, instead, TLC had put into effect a plan to convert the line to trail use as soon as possible after acquisition of the line. We also concluded that TLC's actions constituted a misuse of our procedures, which envision that a party that acquires a nonabandoned rail line does so to continue to provide rail service. To protect the integrity of our processes, we revoked our authority for the acquisition and ordered TLC to reconvey the Redmond-Issaquah line to BNSF. We noted that BNSF itself might pursue abandonment, and that interested persons, such as King County, might seek trail use/railbanking conditions or make an offer of financial assistance to provide for continued operations at that point. In a subsequent decision served October 22, 1997, the Chairman ordered the reconveyance requirement held in abeyance pending resolution of petitions to reconsider the September 26 decision. In a separate decision served September 29, 1997, the Board dismissed TLC's petition to abandon the line. By petitions filed October 7 and 17, 1997, respectively, TLC and BNSF sought reconsideration of the decision revoking the acquisition. On October 9, 1997, TLC petitioned forreinstatement of its abandonment proceeding. As pertinent, in the acquisition exemption proceeding, RIRPA intervened and replied to the petitions. The National Association of Reversionary Property Owners (NARPO) also replied to the petitions. In a decision served May 13, 1998, we concluded that TLC and BNSF had failed to establish any basis for reconsideration of the prior decision revoking the acquisition exemption, and thus we denied their petitions seeking such relief. We also found that title to the line had never appropriately passed to TLC, but we continued to hold in abeyance the requirement that TLC reconvey the line to BNSF. We noted that the record showed that no traffic had moved over the line for nearly 2 years, that there was little, if any, demand for future service over the line, that BNSF wanted to dispose of the line, which required substantial rehabilitation, and that King County wanted to acquire it for trail use. In view of these facts, we determined that the best way to accommodate the public interest was to reinstate the abandonment proceeding initiated by TLC, substitute BNSF for TLC (because title had never properly passed), and determine whether the criteria for an abandonment exemption had been met. We found that the criteria had been met and granted BNSF an exemption to abandon the Redmond-Issaquah line, subject to labor protection and environmental conditions. We directed BNSF to advise us by May 26, 1998, whether the railroad was going to exercise its abandonment authority. In the May 1998 decision, we noted that, if BNSF decided to exercise the abandonment exemption authority, any person desiring rail service to be continued would have the opportunity to file an OFA. We advised, however, that the facts that caused us to find in the acquisition proceeding that TLC never had any intention of providing rail service on the line made it highly unlikely that any future acquisition proceeding involving the line would survive review by us. We emphasized that the OFA process envisions that a party that acquires a rail line will continue to provide rail service. Where that is not the case, we noted, we will not allow our jurisdiction to shield a railroad, or any other party seeking relief before us, from the legitimate processes of Federal, state, or local law. Given our concern about the potential for further misuse or abuse of our processes in this matter, we indicated our intentions regarding any OFAs that might be filed: Given the circumstances surrounding this case, we advise the public and all the parties that have participated in these proceedings that we intend to carefully review the substance as well as the form of any OFA that should be filed involving this line. Specifically, because the information now before us shows that this line is not currently being used for rail service and that there is no apparent demand for rail service, any entity filing an OFA should be prepared to submit not only evidence of its financial responsibility, but also evidence of a public need for continued rail service. Similarly, anyone challenging an OFA should be prepared to address why the OFA is not bona fide. We will not tolerate abuse of the OFA procedures by either proponents or opponents of an OFA. On May 26, 1998, BNSF filed a letter stating that it had not yet determined whether it will abandon the Redmond-Issaquah line. BNSF also stated, however, that it intends to take whatever steps are necessary to be relieved of its common carrier status with respect to the subject line. On June 2, 1998, RIRPA filed an OFA to acquire the line. On June 5, 1998, BNSF filed a petition to reject the OFA. Also on June 5, Darigold, Inc., the sole shipper to use the line in recent years, filed a letter supporting railbanking of the line and dismissal of the OFA. On June 8, 1998, TLC filed a motion to dismiss the OFA. Also on that date, King County filed objections to an OFA proceeding, renewed its request for issuance of a NITU, and reaffirmed its statement of willingness with respect to the subject line. Also filing a statement of willingness in this proceeding was TLC itself, on June 1, 1998. In its OFA, RIRPA offered to buy the line for $997,260. The offeror provided evidence to demonstrate that it had assets of $1.9 million, enough, RIRPA maintained, to finance the acquisition plus start-up costs of $52,477 and $77,110 needed to bring the line up to Federal Railroad Administration (FRA) excepted track standards. Noting that BNSF had estimated the line to be worth $16,197,000, RIRPA offered an explanation of the discrepancy between the railroad's valuation and RIRPA's offer by stating that BNSF possessed only an easement interest for 23 of the 30 parcels comprising the line. RIRPA supported its valuation by verified statements of individuals allegedly qualified to assess rail real estate and to value scrap track material. Generally where an OFA is filed, the Director of the Office of Proceedings, exercising delegated authority, would determine if the offeror possessed the wherewithal to make good on the offer, and, in so doing, consider whether the offeror had explained any discrepancy between the offer and the carrier's estimate of the value of the line. But as we specifically explained in our May 1998 decision, it is appropriate for us to require, and carefully review before instituting an OFA proceeding, evidence of a public need for continued rail services, given the unusual circumstances surrounding this case (i.e., a record showing that (1) BNSF embargoed the line for safety reasons in August 1996, (2) no traffic has moved on it since that time, (3) the cost of restoring the line would be substantial, and (4) we had no information to suggest that prospects for anything more than de minimis traffic on the line now or in the future exists--certainly not enough to cover rehabilitation, maintenance and operating costs). We must be mindful that Congress enacted the OFA provisions to provide for continued rail service. Accordingly, this agency's (and its predecessor s) long-standing precedent that an offer must contemplate continued rail service reflects current law as well as the prior statute. Here, after considering all the evidence presented by RIRPA and the other parties, we conclude that the record does not permit us to conclude that the offer is motivated by a desire to provide continued rail service. Nor can we find that continued rail service is likely to result from the offer. That being the case, it would be an abuse of our processes to permit the section 10904 process to go forward. BNSF has declined to indicate whether it will exercise the abandonment authority granted. If BNSF declines to consummate the abandonment authority, the OFA would be moot. But we will issue a decision on this OFA here to resolve the unique issues which it raises.Accordingly, RIRPA's OFA will be rejected. RIRPA is an association of individuals, most of whom live along the shore of Lake Sammamish adjacent to the railroad right of way. In motions asking us to dismiss the OFA, TLC, King County, and the BNSF (herein collectively, the opponents) say that RIRPA's only interest is to frustrate the development of a trail on the right of way and to thereby preserve the privacy of RIRPA members. The opponents offer correspondence by RIRPA about the project to substantiate this claim. This evidence is relevant but is not, by itself, dispositive. Nothing prohibits landowners adjacent to a right of way from filing an OFA. That their primary motivation might be to defeat interim trail use would by itself not condemn an offer, as long as they were intending to provide rail service and there existed a real need for that service. Indeed, correspondence prepared at a time when this line was still in service envisioned continuing service to the last remaining shipper on the line. But that shipper, Darigold, stopped using the line for shipping butter following the BNSF embargo for safety reasons and has made clear that it does not oppose abandonment and has no desire to use this line for rail service again. In response to the request in our May 1998 decision that any offeror submit evidence of a public need for rail service in its OFA, RIRPA submitted verified statements from four shippers. However, RIRPA's statements provide no basis for us to conclude that future traffic on the line is other than highly speculative. None of the companies that submitted verified statements has ever shipped or received traffic over this line. Indeed, it does not appear that any has ever used rail service at all. Two of the companies ship manufactured goods--boats, wood stoves, saunas, and hot tubs--that rarely move by rail. Both use truck exclusively and make no commitment to use the line. The perfunctory support statements from these companies indicate only that they would consider using rail service if rates were reasonable and competitive with alternative modes of transportation. Neither company has any agreement with RIRPA on what such a rate might be. As neither has a rail siding, each would need to have any rail shipment transloaded onto truck, a costly, time consuming process which poses the threat of damage, especially with a commodity such as boats. A third statement of support was submitted by Schrod-Mar, Inc. (SMI), which supplies sand and gravel to asphalt and concrete production facilities at Redmond, WA. SMI says it would be interested in shipping gravel from Palmer, WA, to a siding on the line for transloading onto truck for delivery to SMI's facilities. SMI currently uses truck but expresses concern about traffic congestion and possible weight limits on a part its routing, which would necessitate circuitous movements. SMI states that it has requested RIRPA to advise it of when and under what terms SMI can begin to use RIRPA's rail service. Apparently neither has made any commitment to the other. SMI's statement does not show a public need for continued rail service on this line. As BNSF points out in its comments, SMI does not say it is served by rail at origin, and it does not appear to be. Thus, gravel would have to be trucked from origin to the railhead, loaded into freight cars, transported to the Lake Sammamish line, transloaded onto trucks, and hauled to the destination. The shipment would have to move over two carriers, BNSF and RIRPA. The entire haul is only slightly in excess of 100 miles, a very short haul for a truck-rail-truck move involving two rail carriers. SMI has no transloading facility at origin and apparently would have to build one, which would require a significant investment. BNSF would charge the rate at origin, and there is no indication that that carrier could or would quote a rate that would compete with existing trucking service. SMI has made no commitment to volumes and has not sought a rate quote from either BNSF or RIRPA. The fourth statement is from Lakeside Industries (Lakeside), which ships rock. Lakeside operates a gravel pit and rock crushing facility on the Lake Sammamish line at Issaquah, and it states that the reserves of rock there have been almost depleted. Lakeside states that it needs rail service to bring rock from Centralia, WA, 90 miles away, to Issaquah, so that Lakeside could crush the rock there and ship it to Lakeside customers. Lakeside does not explain why it must employ this seemingly circuitous procedure rather than crushing rock at origin in Centralia the way it does now at Issaquah. The movement from Centralia would originate on a short line, the Puget Sound and Pacific Railroad, then move over BNSF and RIRPA, a three-line haul. This would seem to be an inefficient and expensive movement requiring extensive switching on a very short line haul. The entire movement here is only slightly more than 200 miles. Lakeside sought a rate quote from BNSF. That carrier quoted a rate of $1,361 per car, which Lakeside has rejected as unreasonably high. That being the case, Lakeside does not appear to offer any potential as a source of business of the RIRPA. Lakeside speaks of challenging the BNSF rate if RIRPA acquires the line. But inasmuch as Lakeside has shipped by truck over this route for years, it would be extremely unlikely that the Board would have jurisdiction over the reasonableness of such a rate. The record here and in the earlier proceedings before us involving this line contain ample evidence that the Lake Sammamish line would require extensive rehabilitation in order to make the line operable. TLC claims that the cost of rehabilitating the line to carry traffic at 10 miles per hour under FRA Class 1 standards will amount to almost $1,000,000, and it has submitted a detailed analysis to support its argument. TLC has claimed in its abandonment petition that it would cost in excess of $650,000 to rehabilitate the line and, in light of the recent washout of a bridge, TLC states that it would now cost $971,000 to bring the line up to either FRA Class I standards or to FRA excepted standards. RIRPA claims that it would only cost $77,110 to rehabilitate the line to FRA excepted track standards, and submits a verified statement in support of the claim. However, the one-page statement is not a contract to perform the work for the amount stated and is not supported by any real analysis. This track has been in excepted status--less than FRA Class 1 status--for more than 4 years. The track was embargoed for safety reasons in August 1996 and no traffic has moved over it since that time. The inspection conducted for TLC by R.L. Banks identifies significant deficiencies in the track, which is hardly surprising in view of the history of the line in recent years. Thus, even if the appraisal conducted by TLC may be somewhat high, the record leaves no doubt that substantial rehabilitation would have to be undertaken to again make the line operable. The record indicates that no traffic has moved over the line in almost 2 years, that any prospect for future traffic is highly speculative, and that the cost to rehabilitate the line is substantial. In short, given all the circumstances, it is not reasonable to believe that the offeror would make the substantial investments required to rehabilitate the track (including the replacement of a bridge) in order to pursue rail traffic that ceased long ago and that, based on the shipper statements submitted by RIRPA itself, does not show any real likelihood of returning. This is particulary true where, as here, the offeror is not an entrepreneur with a track record of running short lines and a sound business plan to attract new shippers, but rather is an association consisting mostly of landowners who live along the line. RIRPA's expression of willingness to haul traffic that seems unlikely to materialize does not provide a sufficient basis for invoking section 10904. In support of its OFA, RIRPA relies on an ICC decision allowing an offeror, over the objections of the abandoning railroad, to subsidize a rail line that had been out of service. (Perry County). RIRPA specifically cites language in the November 8 decision in Perry County, stating, The Commission has never required there to be recent actual service for transportation availability to be continued through an OFA. Rather, it has viewed its task under 49 U.S.C. 10905 [now 10904] as preserving the potential for transportation. RIRPA's reliance on Perry County is misplaced. There, the owner of an inactive coal mine was willing to make payments to the railroad to preserve a line from which the mine owner received no immediate benefit whatever. The offeror's willingness to do so manifested a strong intent to use the line for rail service in the future if the mine were again to become active. No other reason existed for the mine's owner to make the payments. Here, there is no evidence to suggest that RIRPA has a similar interest in acquiring the line to preserve the line for future rail service. The issue is not whether service is currently being provided, but whether the circumstances in their entirety indicate that the financial assistance is being offered for rail service. The evidence in Perry County indicated that the answer was yes. The evidence here indicates that the answer is no. Given all of these circumstances, we cannot conclude that the offer of financial assistance filed by RIRPA is for continued rail service. That being the case, we will not institute a proceeding under section 10904, and, accordingly, we need not determine whether RIRPA is a financially responsible person. King County and TLC have requested that interim trail use/railbanking be imposed. They have also submitted statements of willingness to assume financial responsibility for the right-of- way and acknowledged that use of the right-of-way is subject to possible future reconstruction and reactivation of the right-of-way for rail service. The requests comply with the requirements for interim trail use/railbanking. As noted, however, BNSF has not notified the Board whether it is going to exercise its abandonment exemption authority. Therefore, we will defer action on the trail use requests of King County and TLC pending BNSF's notifying us whether it is going to exercise its abandonment exemption authority and, if so, whether it is willing to negotiate for trails use. It is ordered: 1. The offer of financial assistance submitted by RIRPA is rejected. 2. Action on the trail use requests of King County and TLC is deferred. Decided: August 4, 1998 Service Date - Late Release August 5, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-31 (Sub-No. 35X) GRAND TRUNK WESTERN RAILROAD INCORPORATED--ABANDONMENT EXEMPTION--IN MACOMB COUNTY, MI Grand Trunk Western Railroad Incorporated (GTW) filed a notice of exemption to abandon a 19.08-mile line of its railroad on the Romeo Subdivision between Richmond and Washington from milepost 0.42 to milepost 19.50 in Macomb County, MI. Notice of the exemption was published in the Federal Register on July 10, 1998. The exemption is scheduled to become effective on August 9, 1998. The Board's Section of Environmental Analysis (SEA) served an environmental assessment (EA) in this proceeding on July 22, 1998. In the EA, SEA states that the Michigan State Historic Preservation Office (SHPO) states that it may need additional information to complete its evaluation of the potential impact of this project on historic resources. Therefore, SEA recommends that a condition be imposed requiring GTW to retain its interest in and take no steps to alter the historic integrity of all sites and structures on the right-of-way that are 50 years old or older until completion of the section 106 process of the National Historic Preservation Act. SEA also states that the National Geodetic Survey (NGS) has identified numerous geodetic station markers that may be affected by the proposed abandonment. NGS requests that it be notified 90 days in advance of any activities that may disturb or destroy these markers to plan for their relocation. Therefore, SEA recommends that a condition be imposed requiring GTW to consult with the NGS and provide NGS with 90 days notice prior to disturbing or destroying any geodetic markers. In the EA, SEA concluded that the right-of-way may be suitable for other public use following abandonment in this proceeding. By petition filed July 23, 1998, the Macomb County Parks and Recreation Commission (Macomb County) filed a request for the issuance of a notice of interim trail use (NITU) for the entire line under the National Trails System Act, and for a public use condition, so that it could negotiate with GTW for acquisition of the right-of-way for use as a trail. Macomb County requests that GTW be prohibited from disposing of the corridor, other than the tracks, ties, and signal equipment, except for public use on reasonable terms, and that GTW be barred from removing or destroying potential trail-related structures, such as bridges, trestles, culverts and tunnels, for a 180-day period from the effective date of the abandonment exemption. By reply filed July 31, 1998, GTW declines to negotiate with Macomb County regarding the trail use request but does not object to the imposition of a public use condition under the terms described by Macomb County. GTW also states that it is willing to negotiate with Macomb County for sale of the right-of-way proposed for abandonment. As an alternative to interim trail use under the Trails Act, the right-of-way may be acquired for public use as a trail. 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. Macomb County has satisfied these requirements and, therefore a 180-day public use condition will be imposed commencing with the effective date of the exemption. Macomb County states that it needs the full 180-day period because it has not had an opportunity to commence negotiations with GTW. GTW may remove tracks, ties, and signal equipment on the right-of-way, but is required to leave bridges, trestles, culverts, and tunnels intact during that period. It is ordered: 1. This proceeding is reopened. 2. The request for issuance of a notice of interim trail use is denied. 3. The request for imposition of a public use condition is granted. The exemption of the abandonment of the 19.08 mile segment is subject to the condition that GTW leave intact all of the right-of-way underlying the tracks, including bridges, trestles, culverts and tunnels (but not track ties and signal equipment), for a period of 180 days from the August 9, 1998 effective date of the abandonment exemption (until February 5, 1999), to enable any State or local government agency, or other interested person to negotiate the acquisition of the line for public use. 4. The exemption of the abandonment is also subject to the conditions that GTW: (a) retain its interest in and take no steps to alter the historic integrity of all sites and structures on the right-of-way that are 50 years old or older until completion of the section 106 process of the National Historic Preservation Act, 16 U.S.C. 470f; and (b) consult with the National Geodetic Survey and provide NGS with 90 days notice prior to disturbing or destroying any geodetic markers. Decided: August 4, 1998 Service Date - August 6, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-55 (Sub-No. 554X) CSX TRANSPORTATION, INC.--ABANDONMENT EXEMPTION--IN JASPER COUNTY, SC AND CHATHAM COUNTY, GA CSX Transportation, Inc. (CSXT) filed a notice of exemption to abandon approximately 14.20 miles of its line of railroad from milepost SHC-497.59 near South Hardeeville, SC, to milepost SHC-505.05, and from milepost SH-505.05 to milepost SH-510.06 at North Savannah, GA, and the Hutchison Island Spur from milepost SHB-509.93 to milepost SHB-511.66, in Jasper County, SC, and Chatham County, GA. Notice of the exemption was published in the Federal Register on November 24, 1997. By decision served December 23, 1997, this proceeding was reopened at the request of the Board's Section of Environmental Analysis (SEA) and the exemption was made subject to the conditions that CSXT: (1) consult with the Savannah District and the Charleston District Offices of the Army Corps of Engineers prior to commencing any salvage operations involving the Broad River Bridge; and (2) retain its interest in and take no steps to alter the integrity of all sites and structures on the right-of-way in Georgia that are 50 years old or older until completion of the section 106 process of the National Historic Preservation Act. By letter dated July 20, 1998, the Georgia Historic Preservation Division has informed SEA that the segment of the line proposed for abandonment in Georgia is not eligible for listing in the National Register of Historic Places. Therefore, SEA recommends that the historic preservation condition imposed in the December 23 decision be removed. Accordingly, the proceeding will be reopened and the previously imposed historic preservation condition will be removed. The salvage condition imposed in the December 23, 1997 decision remains in effect. It is ordered: 1. This proceeding is reopened. 2. Upon reconsideration, the section 106 historic preservation condition imposed in the December 23, 1997, decision is removed. Decided: August 3, 1998 Service Date - August 6, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 28676 (Sub-No. 4) (Arbitration Review) GRAND TRUNK WESTERN RAILROAD CONTROL DETROIT, TOLEDO AND IRONTON RAILROAD COMPANY AND DETROIT AND TOLEDO SHORE LINE RAILROAD COMPANY We are denying the appeal by the United Transportation Union (UTU) of the decision of the arbitration panel (the "Panel") entered on January 19, 1998 (Barry E. Simon, Neutral Member). In 1979, our predecessor agency, the Interstate Commerce Commission (ICC), approved the acquisition of the Detroit, Toledo and Ironton Railroad Company and the Detroit & Toledo Shore Line Railroad Company (DTSL) by the Grand Trunk Western Railroad ("Grand Trunk" or "the Carrier"). To satisfy the statutory labor protection requirement, the ICC imposed an agreement that was negotiated between Grand Trunk and the unions representing the employees of the three carriers (the "1979 Agreement"). The 1979 Agreement grants enhanced income protections extending beyond those provided under our standard New York Dock formula. The enhanced protections are called "attrition protections" because they cover eligible employees until they leave the workforce due to resignation, retirement, termination for cause, or death. On November 3, 1995, UTU presented the Carrier with letters from trainmen of the former DTSL asserting claims for attrition protection under the 1979 Agreement. Because the parties could not agree on these claims, the dispute was taken to arbitration. During arbitration, the Carrier argued that attrition protection does not apply. Grand Trunk claimed that, under the 1979 Agreement, the attrition protection is subject to a precedent condition that the parties negotiate a single, company-wide agreement governing crafts represented by UTU to replace the current separate agreements applying for former employees of each carrier. Grand Trunk says that this condition has not been satisfied. UTU responded that there was no such condition precedent and that the attrition protection applies without qualification. The Panel agreed with the Carrier, holding that the attrition benefits do not apply because the parties have not negotiated a single, company-wide agreement governing the crafts represented by UTU. On February 27, 1998, UTU filed an appeal of the Panel's decision. Grand Trunk filed a reply to the appeal on March 4, 1998. The appeal does not meet our standard of review. The 1979 Agreement adopted by the ICC is clear on its face in providing that the attrition protection is a supplemental protection that is subject to the condition precedent that the parties negotiate a single, company-wide agreement to replace the separate agreements that currently apply to the former employees of each carrier. In particular, section 1 of the 1979 Agreement adopted by the ICC provides that the New York Dock formula will apply except as the formula is specifically modified in that Agreement. In turn, section 11 of the 1979 Agreement makes it clear that the benefits supplementing New York Dock under that Agreement are subject to the condition precedent that a single agreement be negotiated. As found by the Panel, "[b]y providing that the enhanced (attrition) benefits are effective on the date of the acquisition or the date of a single working agreement, whichever date is later, it is evident both conditions must be satisfied." In other words, according to sections 1 and 11 of the 1979 Agreement adopted by the ICC, the members of a labor organization may receive the supplemental attrition protection only when that organization and the Company negotiate a single, company-wide agreement. Until such an agreement is negotiated, the standard New York Dock protection applies. It is undisputed that a single, company-wide agreement governing the crafts represented by UTU has yet to be negotiated. The parties intent in negotiating sections 1 and 11 of the 1979 Agreement is not difficult to discern. A single working agreement would serve the Carrier's interest by simplifying labor bargaining and administration. From labor's point of view, however, a single agreement could upset established seniority. It is reasonable to believe that the Carrier offered labor the benefit of added protection as an incentive for labor to agree to change such patterns by accepting a single working agreement. If we were to adopt UTU's interpretation, the provision in the 1979 Agreement referring to a "single working agreement" would be nullified, and UTU would obtain the benefit of the added protection without having to give anything in return. If the parties had intended such a result, they would surely have provided simply that the attrition protection would take effect when the acquisition was consummated, without including the "whichever date is later" language. UTU has not shown that the Panel's interpretation of the 1979 Agreement is "egregious error" or "fails to draw its essence from the imposed labor conditions." The Panel's decision is entirely consistent with the plain language and purpose of the 1979 Agreement, which refute UTU's contention that attrition protection applies whether or not a separate agreement has been negotiated. Moreover, we find no error in the Panel's conclusions . It is ordered: 1. The appeal is denied. Decided: July 31, 1998 Service Date - August 6, 1998 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-31 (Sub-No. 32X)] Grand Trunk Western Railroad Incorporated--Abandonment Exemption--In Oakland County, MI On July 20, 1998, Grand Trunk Western Railroad Incorporated (GTW) filed a petition to abandon a 3.1-mile line of railroad known as the Jackson Spur extending between milepost 35.3 at Pontiac and milepost 38.4 at Sylvan Lake, in Oakland County, MI. The line traverses U.S. Postal Service Zip Codes 48341 and 48320 and includes no stations. By issuance of this notice, the Board is instituting an exemption proceeding. A final decision will be issued by November 6, 1998. Decided: August 3, 1998. Service Date - August 7, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-55 (Sub-No. 547X) CSX TRANSPORTATION, INC.--ABANDONMENT EXEMPTION--IN MUSKEGON COUNTY, MI In a decision and notice of interim trail use or abandonment (NITU) served on August 14, 1997, a 180-day period was authorized for the Michigan Department of Natural Resources (MDNR) to negotiate an interim trail use/rail banking agreement with CSX Transportation, Inc. (CSXT) for a 10.13-mile portion of its Detroit Division, Montague Subdivision, extending from milepost 62.12 at Berry to milepost 72.25 at the end of track at Montague, including a 3.5-mile industrial lead track at Montague, a total of 13.63 miles, in Muskegon County, MI. By decision served March 10, 1998, the NITU negotiation period was extended an additional 180 days until August 9, 1998. By letter-request filed August 5, 1998, the Michigan Department of Natural Resources (MDNR) seeks a 60-day extension of the NITU negotiation period, stating that an agreement is expected to be completed within 60 days. CSXT agrees to the extension. It is ordered: 1. MDNR's request to extend the NITU negotiation period is granted. 2. The NITU negotiation period is extended until October 8, 1998. Decided: August 6, 1998 Service Date - August 7, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-55(SUB-NO. 563X) CSX Transportation, Inc. -- Abandonment Exemption In Harrison County, West Virginia In this proceeding, CSX Transportation, Inc. (CSXT) has filed a petition in connection with the abandonment of a portion of its Cumberland Coal Business Unit, WVA&P Subdivision, extending between Milepost BUR-1.23 and Milepost BUR-2.1 at Clarksburg, a total distance of approximately 0.87 miles, in Harrison County, West Virginia. CSXT states in its application that it presently operates as part of its Cumberland Coal Business Unit, its WVA&P Subdivision which is a 1.1 mile branch line that is connected to its Bridgeport Subdivision in Clarksburg, West Virginia. CSXT proposes to abandon the terminal 0.87-mile portion of this branch line. CSXT states that there is one business, Hartland Planing Mill (Hartland), located on the line proposed for abandonment which has received only 21 carloads in the last 8 years. Hartland and the City of Clarksburg oppose the proposed abandonment. We recommend that no environmental conditions be placed on any decision granting abandonment authority. Service Date - August 7, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT DOCKET NO. AB-55 (Sub. No. 564X) CSX Transportation, Inc. --Abandonment in Washington, County, Illinois In the above entitled proceeding, CSX Transportation, Inc. (CSXT)has filed a notice in connection with the abandonment of its line of railroad between Milepost OOH-445.7 at Okawville and Milepost OOH.448.6 at the end of track at Venedy, a distance of approximately 2.9 miles, in Washington County, Illinois. The right-of-way is situated in the rural farmland of southern Illinois. The Marion Illinois Suboffice of the U.S. Fish and Wildlife Service (USFWS) has informed us that the endangered Indiana bat utilizes trees for roosting and the rearing of young in the area of the proposed abandonment. USFWS recommends a protective condition on any abandonment authority prohibiting tree cutting during a portion of the year in order to avoid impacting this species. We will recommend such a condition as follows: Based on advice from the Marion Illinois Suboffice of U.S. Fish and Wildlife Service, we recommend that a condition be imposed on any abandonment authority prohibiting CSXT from any salvage operations that involve tree clearing between May 1 and August 31 in order to avoid impacting the endangered Indiana bat. Service Date - August 7, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-167 (Sub-No. 1176X) CONSOLIDATED RAIL CORPORATION--ABANDONMENT EXEMPTION-- IN WICOMICO COUNTY, MD By decision and notice of interim trail use or abandonment (NITU) served on April 15, 1997, the Board modified the prior decision issued in this proceeding (granting an exemption that would permit abandonment of the line in question) to the extent necessary to implement interim trail use/rail banking. The Board authorized a 180-day period for the Maryland Mass Transit Administration (MTA) to negotiate a trail use agreement with Consolidated Rail Corporation (Conrail) regarding: (1) the portion of its Mardella Industrial Track extending from milepost 40.80+/- to the junction with Conrail's Delmarva Secondary at milepost 42.00+/-, near Salisbury, MD; and (2) Conrail's Mill Street Industrial Track, extending from the connection with the Mardella Industrial Track at milepost 0.00+/- to milepost 0.60+/-, near Salisbury. By decision served August 28, 1997, the negotiating period was subsequently extended for one year, until September 16, 1998. On July 13, 1998, MTA filed a second extension request to extend the negotiating period for another 180 days to March 17, 1999. MTA states that the factors underlying the Board's decision to grant the first extension remain, in that service on the line has continued, acquisition of the line by the proposed owner of the right-of-way, Norfolk Southern Railway Company (NS), has not been completed, and NS has yet to determine whether service will be continued. MTA adds that, on the basis of information it has received, it expects these decisions to be made within the next six months. By letter filed July 20, 1998, Conrail supports the request and certifies that it has not consummated abandonment of the line. It is ordered: 1. The request to extend the interim trail use negotiating period is granted. 2. The NITU negotiating period is extended to March 17, 1999. Decided: August 6, 1998 Service Date - August 7, 1998 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION SURFACE TRANSPORTATION BOARD STB Finance Docket No. 33407 Dakota, Minnesota & Eastern Railroad Corporation--Construction and Operation of New Rail Facilities in Campbell, Converse, Niobrara, and Weston Counties, Wyoming; Custer, Fall River, Jackson, and Pennington Counties, South Dakota; and Blue Earth, Nicollet, and Steele Counties, Minnesota. Action: Amended Notice of Intent to Prepare an Environmental Impact Statement (EIS); Extension of Request for Comments on the Draft EIS Scope. Summary: On February 20, 1998, the Dakota, Minnesota & Eastern Railroad Corporation (DM&E) filed an application with the Surface Transportation Board (Board) for authority to construct and operate new rail line facilities in east-central Wyoming, southwest South Dakota, and south-central Minnesota. The project involves approximately 280.9 miles of new rail line construction. Additionally, DM&E proposes to rebuild approximately 597.8 miles of existing rail line along its current system to standards acceptable for operation of unit coal trains. On April 28, 1998, DM&E submitted a Special Use Application to the U.S.D.A. Forest Service (USFS) for an easement under the Federal Land Management Policy Act to build new rail lines across portions of the Thunder Basin National Grassland in Wyoming, administered by the Medicine Bow-Routt National Forests, and across portions of the Buffalo Gap National Grassland, administered by the Nebraska National Forest. Because portions of RARE II roadless areas on the Buffalo Gap National Grassland could be affected, there is a possibility that the Nebraska National Forest Land and Resource Management Plan could be amended in the Forest Service Record of Decision. The Northern Great Plains (NGP) Management Plan Revision Environmental Impact Statement (EIS) is being prepared at this time, which could affect the proposed action. Conversely, the proposed action, if approved, could affect the NGP Management Plan and a plan amendment may also be necessary. In April, 1998, DM&E also submitted its application to the U.S.D.I. Bureau of Land Management (BLM) for a right-of-way across public lands administered by the BLM in Wyoming and South Dakota for the construction of new rail lines. Because the BLM is presently preparing the Newcastle Resource Management Plan EIS, the proposed action could affect this Plan as well or the Plan could have an effect on the proposed action. Additionally, the DM&E will submit an application to the U.S. Army Corps of Engineers (COE), when appropriate, for a permit regarding the proposed dredge and fill activities within the waters of the United States, and any other appropriate permit required by the COE, relative to the proposed construction of new rail lines or reconstruction of existing lines. The U.S. Bureau of Reclamation is presently preparing an EIS on the Cheyenne River/Angostura project, which could be affected by the proposed action or which could have an effect on the proposed action. Because the construction and operation of the proposed project has the potential to result in significant impacts on the quality of the human environment, the Agencies have determined that the preparation of an EIS is appropriate. The Board's Section of Environmental Analysis (SEA) has previously held agency and public scoping meetings and has accepted written public comments as part of the EIS process. However, the previous Notice of Intent did not include notification to the public that other federal agencies would have decision-making authority. Therefore, the purpose of this Amended Notice of Intent is to notify persons and agencies interested in or affected by the proposed project, of additional USFS, BLM, and COE agency decisions that will be triggered by the project, and to seek additional comments relating to these agency decisions. SUPPLEMENTARY INFORMATION: The proposed rail construction project, referred to as the "Powder River Basin Expansion Project," would involve the construction and operation of approximately 280.9 miles of new rail line by the Dakota, Minnesota & Eastern Railroad Corporation (DM&E), Brookings, South Dakota. The project would provide access for a third rail carrier to serve the region's coal mines and transport coal eastward from the Powder River Basin. New rail construction would include approximately 262.03 miles of rail line extending off DM&E's existing system near Wasta, South Dakota, extending generally southwesterly to Edgemont, South Dakota, and then westerly into Wyoming to connect with existing coal mines located south of Gillette, Wyoming. This portion of the new construction would traverse portions of Custer, Fall River, Jackson, and Pennington Counties, South Dakota and Campbell, Converse, Niobrara, and Weston Counties, Wyoming. New rail construction would also include an approximate 13.31 mile line segment around Mankato, Minnesota, within Blue Earth and Nicollet Counties. DM&E currently has trackage on both sides of Mankato, accessed by trackage rights on rail line operated by Union Pacific Railroad (UP). The proposed Mankato construction would provide DM&E direct access between its existing lines, avoid operational conflicts with UP, and route rail traffic around the southern side of Mankato, avoiding the downtown area. The final proposed segment of new rail construction would involve a connection between the existing rail systems of DM&E and I&M Rail Link. The connection would include construction and operation of approximately 2.94 miles of new rail line near Owatonna, Steele County Minnesota. The connection would allow interchange of rail traffic between the two carriers. In order to transport coal over the existing system, DM&E proposes to rebuild approximately 597.8 miles of rail line along its existing system. The majority of this, approximately 584.95 miles, would be along DM&E's mainline between Wasta, South Dakota, and Winona, Minnesota. An additional approximate 12.85 miles of existing rail line between Oral and Smithwick, South Dakota, would also be rebuilt. Rail line rebuilding would include rail and tie replacement, additional sidings, signals, grade crossing improvements, and other systems. DM&E's plans to transport coal as its principal commodity. However, shippers desiring rail access could ship other commodities in addition to coal over DM&E's rail line. Existing shippers along the existing DM&E system would continue to receive rail service. Service Date - August 7, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 33627 ELKINS CARMEN -- PETITION TO REVIEW ARBITRATION DECISION We are denying the petition for review of the May 19, 1998 decision of an Arbitration Committee. Petitioners, hereafter the "Elkins Carmen" or "Claimants," are 41 carmen who were, on and before November 1981, employed at the Elkins Car Shop (the shop) of the Western Maryland Railway, one of the railroads that was absorbed into what is now respondent CSX Transportation, Inc. ("CSXT" or "the Carrier"). The shop serviced CSXT's 93-mile line in West Virginia from Elkins to Bergoo. On November 28, 1981, a fire destroyed the roundhouse, one of the buildings of the shop, and it was never rebuilt. The following day, the Carrier initiated an emergency furlough of the carmen working at the shop. Although some of the carmen were recalled to work, by July 1982, all of the petitioning Elkins Carmen had been furloughed. They were never returned to full time active duty. After July 1982, there were at most eight carmen working at the shop, and the Carrier eventually ceased all repair operations at the shop. After the furloughs, the Carrier conducted repairs in the vicinity of Elkins, but these repairs were conducted by carmen brought in from other points or by outside contractors, rather than by the petitioning Elkins Carmen. In 1987, a Special Board of Adjustment ruled that the Elkins Carmen were not entitled to benefits under the applicable collective bargaining agreement, finding that the Carrier had not improperly diverted car repair work from Elkins to other locations and that the furloughs were due to the fire and a system-wide decline in business. On or about August 31, 1993, the Carrier filed an application with our predecessor agency, the Interstate Commerce Commission, to abandon the 122-mile Taggert to Bergoo line, which included the 93-mile Elkins-to-Bergoo segment. The Carrier withdrew the application on January 10, 1994 but renewed it on January 27, 1995. On January 9, 1997, in compliance with a court decision, the Board approved the Carrier's abandonment of the 93-mile Elkins-to-Bergoo segment, subject to the standard Oregon Short Line labor protection conditions. On March 4, 1997, the Elkins Carmen requested protective benefits from the Carrier under Oregon Short Line. Then Elkins Carmen argued, and continue to argue, that: (1) the abandonment (rather than the fire and general business conditions) terminated their employment with the Carrier; and, therefore, (2) they are entitled to severance benefits under Oregon Short Line. After the Carrier rejected their claim on April 4, 1997, they took it to arbitration. On May 19, 1998, the arbitrator issued a decision denying the claim. The arbitrator held that: (1) Claimants bear the initial burden of coming forward with evidence that they were displaced or dismissed as a result of a transaction subject to protection under Oregon Short Line; and (2) if this burden is borne, the burden shifts to the Carrier to prove that benefits may not be awarded because the displacement or dismissal was due to causes other than the protected transaction, such as, for example, general business conditions. The arbitrator then found that Claimants had not met the burden of coming forward for two reasons: (1) Claimants had not shown that there was a causal nexus between the abandonment and their furloughs; and (2) Claimants were not "dismissed or displaced" under Oregon Short Line because they had not been placed in a worse position as a result of the abandonment. The arbitrator held that, because Claimants had not met the aforementioned burden of coming forward, the Carrier was not required to show that Claimants furloughs were due to causes other than the abandonment. By petition filed on June 19, 1998, the Elkins Carmen appealed the arbitrator's decision. On July 9, 1998, the Carrier filed a reply. We will deny the appeal because it does not satisfy our standard of review. We do not review issues of causation or other purely factual issues, in the absence of egregious error. Here, the arbitrator's finding that claimants have not demonstrated that they were displaced or dismissed as a result of the abandonment of the line was a factual finding of causation that may not be overturned in the absence of egregious error. Claimants petition for review falls short of showing that the arbitrator's findings were egregious error. Our review of the arbitrator's thorough and well reasoned decision persuades us that it is amply supported by the record. The portions of the record cited by the arbitrator showed that the employees involved had been on furlough for more than 15 years, that the furloughs were due to a shop fire and changes in repair policies, events that occurred over 15 years before the abandonment took place, and that their not being recalled during this period was due to lack of work and lack of seniority. As a result, the arbitrator concluded that Claimants employment status was unaffected by the abandonment. It is ordered: 1. The petition for review is denied. Decided: July 31, 1998 Service Date - August 7, 1998 ------------------------------------------------------------------------ SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-33 (SUB-NO.123X) UNION PACIFIC RAILROAD COMPANY --ABANDONMENT EXEMPTION-- IN BUTLER COUNTY, IOWA (BRISTOW BRANCH BETWEEN CLARKSVILLE AND ALLISON) In this proceeding, the Union Pacific Railroad Company (UP) has filed a notice in connection with the abandonment and discontinuance of operations on the Bristow Branch of its railroad line located between Milepost 288.8 near Clarksville to railroad milepost 294.75 near Allison, a distance of 5.95 miles in Butler County, Iowa. The National Geodetic Survey (NGS) has identified five geodetic markers along the rail line and requests 90 days notice to plan relocation of any markers which may be disturbed or destroyed. Therefore we recommend that the following condition be imposed on any decision granting abandonment authority: The Union Pacific Railroad Co. shall consult with the National Geodetic Survey and provide NGS with 90 days notice prior to disturbing or destroying any geodetic markers. The State Historical Society of Iowa indicated an interest in structures which are more than 50 years old. There are three such structures which have been identified by the railroad. Accordingly, we recommend imposition of the following condition: The Union Pacific Railroad Co, shall retain its interest in and take no steps to alter the historic integrity of bridges numbered 289.47, 289.86, and 291.48 until completion of the Section 106 process of the National Historic Preservation Act. Service Date - August 11, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-55 (Sub-No. 562X) CSX TRANSPORTATION, INC.--ABANDONMENT EXEMPTION--IN ROCKY MOUNT, NASH COUNTY, NC By petition filed on April 23, 1998, CSX Transportation, Inc. (CSXT), seeks an exemption to abandon a portion of its Florence Service Lane, North End Subdivision, extending from Valuation Station 4+30 at Falls Road to Valuation Station 36+00 at the end of the track near Earl Street, a distance of 0.60 miles, in Rocky Mount, Nash County, NC. A notice was published in the Federal Register on May 13, 1998, instituting an exemption proceeding. The United Transportation Union requests imposition of labor protective conditions. We will grant the exemption, subject to environmental and standard employee protective conditions. According to CSXT, the line proposed for abandonment is in poor condition and is constructed of obsolete 85-pound jointed rail. CSXT estimates that the cost to replace the track with at least 100-pound rail would be approximately $51,600. In addition to replacing the track, CSXT states that approximately 1,500 new ties must be installed at a cost of $40 per tie and a total cost of $60,000. In addition to the track and ties, CSXT states that there are seven road crossings on the line which are in need of immediate repair. It estimates that it would cost $90,000 to repair all of the crossings, and submits that, if it is to continue operating in the future, gates and flashing lights should be installed at three of the crossings at a cost of $100,000 per crossing and a total cost of $300,000. Although a portion of this cost could be reimbursed through federal funding, CSXT states that it would have to bear the continued maintenance expenses of these signals in the future. CSXT concludes that the total cost to perform the necessary maintenance and signaling work to allow for continued operations on the line is more than $500,000. CSXT asserts that there is no justification for an expenditure of this magnitude in light of the volume of traffic which has historically originated and terminated on the line. In recent years, only two rail patrons, Log Cabin Homes (Log Cabin) and New Southern of Rocky Mount (New Southern), have originated or terminated rail traffic on the line. Log Cabin uses the line as a team track for the delivery of lumber because it does not have a private siding at its place of business. (By letter filed on May 7, 1998, CSXT states that, since the filing of its petition, it has been informed by Log Cabin that it is interested in purchasing the line.) In 1996, it received 6 carloads and in 1997, it received 10 carloads. New Southern used the line to ship vegetable oil and meal. In 1996, it shipped 16 carloads. Since then, it has not used the line. According to CSXT, New Southern was in bankruptcy prior to 1987 and its operations have consistently decreased since that time. It is CSXT's understanding that Woodland Farms, a company located in Laurinburg, NC, is considering purchasing New Southern through an affiliated company. CSXT states in its petition that Woodland Farms has indicated an interest in purchasing the line if it acquires New Southern. CSXT states that the transportation alternatives available to the two patrons on the line include the use of motor carriers and CSXT's team track in Rocky Mount which is located approximately one-half mile from the line proposed for abandonment. CSXT certified that a copy of the petition was served on Log Cabin, New Southern, and Woodland Farms. SEA indicated that the State of North Carolina, Department of Environment and Natural Resources (DENR) has stated that any exposed areas within the railroad right-of-way are to be appropriately stabilized prior to abandonment. The DENR also states that areas that may be contributing to off-site sedimentation may be subject to the requirements of the Sedimentation Pollution Control Act of 1973. Therefore, SEA recommends that we impose a condition requiring CSXT, prior to any salvage activities, to consult with DENR to determine if permits are necessary under the provisions of the Sedimentation Pollution Control Act of 1973. We will impose the condition recommended by SEA. 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 by CSXT of the above-described line, subject to: (a) the employee protective conditions in Oregon Short Line R. Co.--Abandonment--Goshen, 360 I.C.C. 91 (1979); and (b) the condition that CSXT shall, prior to any salvage activities, consult with DENR to determine if permits are necessary under the provisions of the Sedimentation Pollution Control Act of 1973. 2. CSXT is directed to serve a copy of this decision on Log Cabin, New Southern, and Woodland Farms 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 September 10, 1998. 4. CSXT 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 CSXT's filing of a notice of consummation by August 11, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: August 7, 1998 Service Date - August 11, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-414 (Sub-No. 2X) IOWA INTERSTATE RAILROAD, LTD.--ABANDONMENT EXEMPTION IN MARION COUNTY, IA By petition filed April 23, 1998, Iowa Interstate Railroad, Ltd. (IAIS), seeks an exemption to abandon its line of railroad extending from milepost 123.5 near Otley to the end of the line at or near milepost 114.80 in Pella, a distance of 8.70 miles, in Marion County, IA. We will grant the exemption, subject to environmental, historic preservation, and standard employee protective conditions. The line proposed for abandonment was a line of the former Chicago, Rock Island & Pacific Railroad Co. (the Rock Island). IAIS, a Class II carrier, purchased the line on October 10, 1984, from Chicago Pacific Corporation, the successor to the Trustee of the Rock Island. According to IAIS, the line is constructed of 100-pound rail laid in 1910, and is generally in fair condition. The ties and ballast range from fair to poor condition. IAIS estimates that it would cost $1,350,000 to rehabilitate the line to Federal Railroad Administration (FRA) Class 2 safety standards. IAIS asserts that there is no economic justification for such costly rehabilitation given the minimal usage of the line by its former rail customers. IAIS states that four shippers are located on the line at Pella: Pella Corporation, Pella Field Service, the City of Pella, and Farm Service Co-op. There is no overhead traffic. The two major shippers, Pella Corporation and the City of Pella, support the abandonment. According to IAIS, during its last full year of operation in 1996, it handled 330 cars and 308 cars the year before. All former rail usage has been diverted to truck due to reasons unique to each shipper. In addition to numerous motor carriers in the area, IAIS submits that alternative transportation is available from other rail carriers. According to IAIS, The Burlington Northern and Santa Fe Railway Company is only 6 miles south of Pella, and Union Pacific Railroad Company's north- south line is approximately 15 miles east of Pella. SEA indicated that the U.S. Department of Commerce, National Geodetic Survey (NGS), has identified five geodetic station markers that could be affected by the proposed abandonment. Therefore, SEA recommends that a condition be imposed requiring IAIS to notify NGS at least 90 days prior to any salvage activities that may disturb or destroy these geodetic markers so that plans can be made for their relocation. SEA also indicated that the U.S. Army Corps of Engineers states that IAIS should contact Mr. Rick Nelson, Field Supervisor, Rock Island Field Office of the U.S. Fish and Wildlife Service (FWS), to determine if any federally listed endangered species are being impacted, and if so, how to avoid or minimize impacts. Also the Iowa Department of Natural Resources (IDNR) states that if listed species or rare communities are found during the planning or construction phases, additional studies and/or mitigation may be required. Therefore, SEA recommends that a condition be imposed requiring IAIS, prior to salvage activities, to consult with FWS and IDNR to determine if permits are required. Finally, SEA indicated that the State Historical Society of Iowa (IA SHPO) states that, if the abandonment uncovers an item or items which may have archeological, historical or architectural interest, or if important data come to light in the project area, IAIS should make reasonable efforts to avoid or minimize harm to the property until the significance of the discovery can be determined. SEA recommends that a condition be imposed requiring IAIS to discontinue salvage operations and consult with the IA SHPO, if archaeological or historical materials are discovered. We will impose the conditions recommended by SEA. 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 conditions that: (1) IAIS shall notify NGS at least 90 days prior to any salvage activities that may disturb or destroy any geodetic markers so that plans can be made for their relocation; (2) IAIS shall consult with FWS and IDNR to determine if permits are required prior to salvage activities; and (3) IAIS shall discontinue salvage operations and consult with IA SHPO, if archaeological or historical materials are discovered. 2. IAIS must serve a copy of this decision on the shippers on the line 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 September 10, 1998. 4. IAIS 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 IAIS's filing of a notice of consummation by August 11, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: August 7, 1998 Service Date - August 11, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 33557 APPLICATION OF VENTURA COUNTY TRANSPORTATION COMMISSION FOR AN ORDER REQUIRING JOINT USE OF TERMINAL FACILITIES IN VENTURA COUNTY, CA By application filed February 12, 1998, the Ventura County Transportation Commission (VCTC) seeks an order to require Union Pacific Railroad Company (UP) to permit VCTC to use certain of its terminal facilities and 18.6 miles of main line trackage for commuter rail operations, operated for VCTC by the Southern California Regional Rail Authority. By agreement of the parties, a procedural schedule was not adopted in order to allow the parties an opportunity to negotiate a settlement of this matter. According to a letter from VCTC filed February 25, 1998, as spplemented by a letter filed March 12, 1998, the parties had reached a tentative agreement. On June 30, 1998, VCTC and UP jointly filed a petition for exemption from the statutory time limitation, which requires that we complete any proceeding within 180 days after the filing of the request for relief. Accordingly, a final decision on VCTC's application is due on August 11, 1998. VCTC and UP request a 90-day extension of this statutory deadline, to and including November 9, 1998, so that they can negotiate a final agreement that reflects their agreement in principle. Because the proposed exemption is consistent with the goals of the rail transportation policy and the exemption is of limited scope, we will exempt this proceeding from the 180-day completion deadline and extend that deadline for 90 days, through and including November 9, 1998. It is ordered: 1. Under 49 U.S.C. 10502, we exempt this proceeding from the requirement of 49 U.S.C. 11102(d) that it be completed within 180 days. The deadline for a decision is extended to November 9, 1998. 2. Notice of the exemption will be published in the Federal Register on August 11, 1998. Decided: July 29, 1998 Service Date - August 11, 1998 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-544X SEA LION RAILROAD--ABANDONMENT EXEMPTION-- IN KING COUNTY, WA STB Finance Docket No. 33594 BALLARD TERMINAL RAILROAD COMPANY, L.L.C.-- MODIFIED RAIL CERTIFICATE STB Finance Docket No. 33486 ADVENTURE TRAIL D/B/A SEA LION RAILROAD-- ACQUISITION AND OPERATION EXEMPTION-- THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY In STB Docket No. AB-544X, by petition filed April 23, 1998, and supplemented on June 1, 1998, Adventure Trail, Inc., doing business as Sea Lion Railroad (Sea Lion), seeks an exemption to abandon a line of railroad (hereafter, the Ballard Line) between milepost 0.09 and the end of the line at milepost 2.70, a distance of almost 3 miles in the Ballard District of Seattle, King County, WA. In addition, Sea Lion seeks to be exempted from offer of financial assistance (OFA) provisions and public use provisions. A request by the City of Seattle for issuance of a notice of interim trail use (NITU) was filed with the petition. The Board published notice of the petition in the Federal Register on May 13, 1998. Comments were filed by the National Association of Reversionary Property Owners (NARPO or the Association), Ballard Terminal Railroad Company, L.L.C. (BTRC), and BTRC's Operations Manager Byron Cole. Letters of support were filed by five shippers. Sea Lion replied to the comments of NARPO. We will grant the abandonment exemption, subject to standard employee protective conditions. We will deny the request for exemption from section 10904, and we will defer action on the request for issuance of a NITU. The request for an exemption from section 10905 will be denied as moot. In STB Finance Docket No. 33594, on May 4, 1998, BTRC filed a notice for a modified certificate of public convenience and necessity to operate the above-described line. BTRC says that it has been the operator of the line since the line was acquired by Sea Lion. BTRC and the City of Seattle state that they anticipate that, once abandonment is authorized, Sea Lion will transfer to Seattle the real estate underlying the right-of-way, Sea Lion will transfer to BTRC all track and rail assets, and BTRC will operate the line under a contract with Seattle. As discussed below, we will defer action on the notice because the request for a modified certificate is premature. In STB Finance Docket No. 33486, on October 8, 1997, Sea Lion filed a verified notice of exemption to acquire and operate the above-described line. Notice was published October 30, 1997. No comments were filed in response to the notice. The exemption became effective October 5, 1997. Sea Lion consummated the acquisition on December 19, 1997. On May 20, 1998, the United Transportation Union (UTU) filed a petition to revoke the exemption in STB Finance Docket No. 33486. Sea Lion and BNSF individually replied to the petition on June 5, 1998. We will deny the petition to revoke. These proceedings have arisen as a result of private negotiations between BNSF, Ballard Line shippers, the City of Seattle, and Sea Lion, which is a Washington State nonprofit corporation. As we understand it, BNSF wants to shed an unprofitable, low-traffic branch line and, at the same tine, to retain the long-haul traffic the line generates. Shippers on the line want to preserve their rail service. Seattle wants to acquire the rail corridor in order to develop the final portions of its Burke-Gilman Trail. To accomplish this, the interested parties entered into negotiations, which resulted in a plan under which Sea Lion would become the interim custodian of the involved BNSF rail and real estate assets. Sea Lion would acquire the Ballard Line, secure an operator for the line, coordinate a transfer of assets, and assist in developing a rail-with-trail project. Pursuant to this plan, two shippers formed BTRC to become the new operator of the Ballard Line. Sea Lion entered into a contract with BTRC wh