STB REPORT #32 - APRIL 16 - 30, 1999 ****************************************************************************** A compilation of decisions and notices published by the Surface Transportation Board. Includes information on track abandonments, ownership changes and trackage rights agreements. Condensed for readability. The full text is available at www.stb.dot.gov/ ****************************************************************************** SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-33 (Sub-No. 133X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION--IN FORT BEND COUNTY, TX In the above-entitled proceeding, no environmental or historic preservation issues have been raised by any party or identified by the Section of Environmental Analysis. It is ordered: 1. Abandonment of the involved rail line will have no significant effect on the quality of the human environment and conservation of energy resources or on historic resources. Decided: April 9, 1999 Service Date - April 16, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-55 (Sub-No. 566X)] CSX Transportation, Inc.--Abandonment Exemption--in Duval County, FL On March 29, 1999, CSX Transportation, Inc. (CSXT) filed a petition to abandon a portion of its Jacksonville Service Lane, Kingsland Subdivision, extending from milepost S- 634.85 at Acorn Street to milepost S-635.09 at the connection of the line to be abandoned with CSXT's former Jacksonville-Savannah main line, a distance of 0.24-miles, in Jacksonville, Duval County, FL . The line includes no stations. By issuance of this notice, the Board is instituting an exemption proceeding. A final decision will be issued by July 16, 1999. Decided: April 12, 1999. Service Date - April 16, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-55 (SUB-NO. 569X) CSX TRANSPORTATION, INC. --ABANDONMENT EXEMPTION-- IN GUERNSEY AND NOBLE COUNTIES, OHIO In this proceeding, CSX Transportation, Inc. (CSXT) has filed a petition in connection with the abandonment of a portion of its railroad line known as the Eastern Ohio Branch, located between milepost BPB-4.9, near Byesville, and the end of the line at milepost BPB-18.23, near Cumberland, a distance of 13.3 miles in Guernsey and Noble Counties, Ohio. On July 13, 1998, CSXT placed an embargo on the line due to several washouts which resulted from heavy rainstorms in June, 1998. CSXT states that the cost of rehabilitating the line would exceed $300,000. There are two shippers on the line. One shipper produces pressure vessel tanks for power plants and oil refineries as well as pipe for gas and oil companies. This shipper accounted for one shipment in 1996 and one in 1997. The other shipper received one shipment in 1996. The railroad states that the shippers and local authorities are considering the possible purchase or subsidy of all or part of the line. Alternative truck transportation is available for both shippers, according to CSXT. The Ohio Historical Society (SHPO) has indicated that one bridge, a through pinned truss bridge identified by CSXT as Bridge #5, is eligible for listing in the National Register of Historic Places. The SHPO has requested additional information regarding the bridge. We therefore recommend that the following condition be placed on any decision granting abandonment authority: CSXT shall retain its interest in and take no steps to alter the historic integrity of Bridge #5, a through pinned truss bridge, until completion of the Section 106 process of the National Historic Preservation Act. Service Date - April 16, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION Docket No. AB-389 (Sub-No. 1X) GEORGIA GREAT SOUTHERN DIVISION, SOUTH CAROLINA CENTRAL RAILROAD CO., INC. ABANDONMENT AND DISCONTINUANCE EXEMPTION BETWEEN ALBANY AND DAWSON, IN TERRELL, LEE, AND DOUGHERTY COUNTIES, GA On March 16, 1998, Carlton Company, et al., filed a petition seeking revocation of the notice of interim trail use or abandonment (NITU) that authorized the Rails to Trails Conservancy (RTC) to negotiate an interim trail/use rail banking agreement under the National Trails System Act with the Georgia Great Southern Division, South Carolina Central Railroad Co., Inc. (GGS), for a 13.62-mile rail line between Albany and Sasser, GA. The line segment was conveyed to RTC effective October 16, 1997. The other listed petitioners are Jon V. Daniel, Howard T. Daniel, L. Critt Jordan, J. Ladd Jordan, and John Gay. In a pleading filed April 15, 1998, Bruce Properties, a partnership, asked to be added as a party to the petition. In a pleading filed March 2, 1998, Terra Industries, Inc., joined in Carlton's opposition to interim trail use and sought rescission of the notice of interim trail use or abandonment. Petitioners apparently are all adjacent landowners, but, other than Bruce, they do not specifically claim to have reversionary property interests in the right-of-way. RTC replied to the petition. Petitioners contend that the Board overlooked serious procedural errors and deviated from established procedure in approving a NITU. We will treat their pleading as a petition to reopen the proceeding and revoke the NITU. We will deny the petition. On February 12, 1999, Carlton requested that we add two filings to its petition. The first, filed January 8, 1999, by Geosciences, Inc., is an assessment of the environmental, ecological, and historical resources of two properties that are adjacent to the rail right-of-way. Geosciences asserts that, under the National Environmental Policy Act (NEPA), the Board is required to consider the environmental impact of constructing the proposed trail. Then, on February 4, 1999, Geosciences forwarded a copy of a letter from the U.S. Army Corps of Engineers indicating that the placement of dredged or fill materials into adjacent waterways and wetlands required Department of Army authorization. Neither pleading nor the February 12 letter contained a certificate of service, as required, or otherwise indicated that copies were served on all parties of record. Therefore, they will not be accepted. However, even if they had been served on all parties as required by our regulations, the pleadings do not raise issues that would be considered in this Trails Act case. Because we lack authority either to force or deny trail use for a particular railroad line, our issuance of a NITU . . . is only a ministerial act, not a major Federal action to which NEPA would apply. Moreover, the Board undertook an appropriate environmental review of the proposed abandonment, and the decision served August 16, 1996, authorizing the abandonment exemption contained conditions to protect the environment during salvage activities, including conditions that were recommended by the Corps. In a decision and NITU served August 16, 1996, GGS was exempted from the prior approval requirements to abandon its 13.62-mile line of railroad between milepost 86.5 at Albany and milepost 72.88 at Sasser and to discontinue service over its 5.38-mile line of railroad between milepost 72.88 at Sasser and milepost 67.5 at Dawson, in Terrell, Lee, and Dougherty Counties, GA. The NITU provided a 180-day period for GGS and the Chehaw Park Authority to negotiate an interim trail use/rail banking agreement for the 13.62-mile line segment between Albany and Sasser. Subsequently, RTC was substituted for Chehaw as the negotiating party for the remainder of the 180-day negotiating period through February 12, 1997. The initial negotiating period was extended through August 11, 1997, and then to November 30, 1997, by decisions served February 28, and August 11, 1997. A petition to reopen must state in detail the respects in which the proceeding involves material error, new evidence, or substantially changed circumstances. Petitioners argue that the Board committed the following errors warranting revocation of the NITU: (1) the Board erred in substituting RTC as a new negotiating party under the NITU because RTC's Trails Act request was not filed by the August 26, 1996 filing deadline for requesting a trail condition imposed in the August 16 abandonment exemption decision; (2) the Board erred in not revoking the NITU in August of 1996, after it was notified that Chehaw's representative had been instructed in 1995 to withdraw Chehaw's NITU request; and (3) because GGS previously sold portions of the rail right-of-way to Bruce, the Board erred in approving a NITU for a rail corridor that is allegedly no longer continuous and on which abandonment purportedly had been consummated. The action to substitute RTC as the negotiating party under the NITU did not violate any established procedures. To the contrary, we have long permitted the substitution of trail sponsors so long as the statutory criteria are met. In its request to be substituted as the negotiating party, RTC stated that it had agreed to assume responsibility for negotiating a trail use agreement with GGS after being advised that Chehaw intended to formally withdraw its statement of willingness to assume financial responsibility. RTC also asked that its request be accepted in accordance with our policy of accepting late-filed trail use statements so long as we retain jurisdiction over the corridor. The August 16 decision had indicated that additional trail use requests could be filed by August 26, 1996. Although RTC's request was not filed until September 3, 1996, trail use requests can be accepted as long as the Board retains jurisdiction over the involved right-of- way and the carrier is willing to enter into negotiation. Shortly thereafter, we received a letter from Mr. Tom Seegmueller, Chehaw's Chairman, requesting that Chehaw be removed as a negotiating party under the NITU. Mr. Seegmueller's letter is dated August 21, 1996, but was not filed until September 13, 1996. Although petitioners argue that the Board erred in not revoking the NITU when Mr. Seegmueller's letter was received, RTC's request to be substituted was pending at that point. Moreover, Mr. Seegmueller did not request that the NITU be vacated. On the contrary, he specifically stated that he understood that action was being taken to substitute RTC as the negotiating party, and he simply requested that Chehaw be removed as a party as soon as possible. Furthermore, RTC had asserted that GGS had consented in RTC's motion to file an interim trail use statement. Therefore, GGS plainly did not indicate an intent to consummate the abandonment. In these circumstances, the request to substitute RTC as the negotiating party for the remainder of the period of the NITU was proper. Concerning the second issue, we believe that the issue of whether Chehaw's representative, Mr. W. Spencer Lee, should have previously withdrawn Chehaw's statement of willingness does not affect the outcome of this case. However, because petitioners argue that Mr. Lee acted improperly in handling Chehaw's request, RTC has furnished affidavits on this issue from both Mr. Phillip E. Franklin, the former Chairman of Chehaw, and from Mr. Lee. Mr. Franklin states that he did not consider that Mr. Lee acted inappropriately. He submits that Chehaw's withdrawal was not based on opposition to the trail, and recalls that Mr. Lee indicated that he would find a substitute petitioner. Mr. Lee states that Chehaw's original NITU petition was filed as executed by Mr. Franklin. Thereafter, when Mr. Franklin asked him to remove the petition, Mr. Lee submits that they discussed substituting another petitioner as a matter of accommodation. Mr. Lee claims that he told Mr. Franklin that he would replace Chehaw once a substitute trail entity was found. Assertedly, the August 16 decision and NITU was issued before the parties could take action to substitute RTC as the negotiating party. The abandonment exemption granted in the August 16 decision did not become effective until September 15, 1996, and GGS would not have been able to consummate the transaction prior to that date. Thus, even if Chehaw's NITU request had been previously withdrawn, the Board would have retained jurisdiction to issue a new NITU in response to RTC's September 3 request because GGS had not consummated the abandonment and was willing to negotiate with RTC. Petitioners final arguments relate to the effect of the sale of two parcels of the rail corridor to Bruce on August 14, 1995, and July 11, 1996. Petitioners contend that selling the parcels before the abandonment was authorized, together with the alleged canceling of tariffs and removing tracks, consummated the abandonment. Petitioners also claim that the Board erred in approving a NITU for a rail corridor that allegedly is no longer continuous as a result of the sales. We find that these arguments lack merit. RTC acknowledges that GGS sold parcels of the rail corridor to Bruce in 1995 and 1996 and furnished a verified statement of Mr. Todd Cecil discussing those sales. (Mr. Cecil is the Director-Real Estate for Railtex, the parent company of GGS.) According to Mr. Cecil, GGS sold the two parcels to Bruce by quitclaim deeds that retained an easement 30 feet in width to allow for continued rail operations. Both sales evidently took place prior to issuance of the August 16 decision granting the abandonment exemption. Mr. Cecil also states that Bruce was informed at the time of purchase of the uncertainty that the rail line would ultimately be abandoned. (Bruce, however, contends that GGS never mentioned during the sale of the two parcels that it intended to sell or contract with anyone else for trail or other use.) He asserts that the price paid by Bruce was based on the existence of the easement and the fact that it was perpetual. The quitclaim deeds reserved to GGS an exclusive easement for any and all railroad purposes. . . . [S]aid easement will terminate in the event of [GGS ] removal of all railroad trackage and Track Materials within the easement area. First, we reject the notion that the line of railroad was no longer continuous because of the sales. Notwithstanding the sale of the two parcels, GGS specifically retained an exclusive easement for any and all railroad purposes. . . . The agency has long found that it is consistent with the common carrier obligation of a railroad for the carrier to sell the underlying assets of rail line while retaining an easement that is sufficient for carrying out rail operations. Nothing in the evidence of record here shows that the sales would preclude further rail operations on the line. Furthermore, a rail easement on property where there are reversionary landowners is not extinguished until the railroad consummates abandonment of the rail line. We reject petitioners argument that GGS activities constituted a consummation of the abandonment. As noted, the quitclaim deeds retained an easement 30 feet in width to allow for continued rail operations. Moreover, Mr. Cecil explains that, from the time that the initial NITU was issued and subsequently, GGS intended to rail bank the right-of-way under the Trails Act, rather than abandon it. GGS transferred the tracks and crossties to RTC, along with rail easements, fee property, and such other property interests held by GGS to allow for both interim trail use and possible future rail use as contemplated by the Trails Act. The evidence of track removal in the record occurred after the line was conveyed to RTC for interim trail use effective October 16, 1997. Track removal following the imposition of a trail condition, standing alone, does not constitute consummation of an abandonment. Terra attached a letter by Carlton contending that, if RTC removed the track and crossties from the parcels purchased by Bruce, Bruce will be able to prevent access to these segments. This argument also lacks merit. The right-of-way remains under our jurisdiction for the duration of the interim trail use because the abandonment authority was suspended when the parties entered into a trail use arrangement for the line segment. Indeed, if the parties decide to terminate their trail use arrangement in the future, they must request that the Board vacate the NITU and issue a decision reinstating the abandonment exemption. Carlton's suggestion, that a common carrier obligation to provide rail service can be unilaterally extinguished by the wording in the deeds, is wrong. It is well settled that a common carrier obligation to provide rail service subject to our jurisdiction remains until appropriate authority for full abandonment is received and the abandonment is consummated. Removal of the track after a NITU has been issued does not defeat trail use or the possible future restoration of the line. Although the line remains intact for both trail use and the reinstitution of service, Bruce may have recourse to monetary damages for possible breach of the parties private agreement regarding the removal of the tracks and the termination of the easement. Such a determination, however, is outside our jurisdiction and must be made in a different forum. In sum, we conclude that GGS did not consummate the abandonment, that the rail easements in the parcels sold to Bruce remain intact to allow for continued rail service, that the Board retained jurisdiction to issue a NITU to RTC, and that the line is properly rail banked under the Trails Act. Accordingly, we conclude that there is no basis for reopening the proceeding and revoking the NITU. It is ordered: 1. Except for the filings of January 8, February 4, and February 12, 1999, Carlton's petition and additional documentation are accepted, and will be treated as a petition to reopen and revoke the NITU. 2. The petition is denied. Decided: April 12, 1999 Service Date - April 16, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33722] Brandywine Valley Railroad Company--Modified Rail Certificate On March 17, 1999, Brandywine Valley Railroad Company filed a notice for a modified certificate of public convenience and necessity to operate the following lines of railroad: (a) between milepost 12.7 at the Delaware/Pennsylvania state line and milepost 30.29 at Modena, PA, a distance of 17.59 miles; and (b) between milepost 18.0 at Wawa, PA, and milepost 54.50 at the Pennsylvania/Maryland state line near Sylmar, MD, a distance of 36.50 miles. In a decision served March 26, 1999, the Board's Chairman denied a petition filed March 19, 1999, by the Delaware Valley Railroad Company (DV), the former operator of the line, to stay the effectiveness of this notice. Under our rules, carriers can begin operating immediately on the filing of the notice. The lines of railroad are owned by the Pennsylvania Department of Transportation (PennDOT) and by the Southeastern Pennsylvania Transportation Authority (SEPTA), respectively. The lines were not included in the final system plan at the time the Consolidated Rail Corporation was formed and, as such, were authorized to be abandoned without further approval of the Interstate Commerce Commission. PennDOT acquired its line segment from the trustees of the Reading Railroad, while SEPTA acquired its segment from the trustees of the Penn Central Transportation Company, after the respective lines were abandoned in 1976. Brandywine states that, when the notice was filed, the lines were being operated by the Delaware Valley Railroad Company (DV) under an arrangement with PennDOT pursuant to a modified certificate. Brandywine further states that PennDOT gave DV a notice of termination (in December 1998, according to Brandywine) effective March 19, 1999, and DV stopped operating on that date. PennDOT contracted with Brandywine to assume operations, which began on March 22, 1999. Under an interim operating agreement between Brandywine and PennDOT, service is to be provided by Brandywine until September 30, 1999. Brandywine is also negotiating to purchase the line. On March 23, 1999, Brandywine filed a petition for prescription of alternative rail service over a line of track owned by the Wilmington and Northern Railroad Company and operated by DV as a designated operator between milepost 12.7 at the Delaware/Pennsylvania border and milepost 2.9 at Elsmere Jct., DE. That petition will be addressed in a separate Board decision. The rail segment qualifies for a modified certificate of public convenience and necessity. Brandywine indicates that no subsidy is involved and that there are no preconditions for shippers to meet in order to receive rail service. Decided: April 13, 1999. Service Date - April 16, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33727] New Hampshire and Vermont Railroad Company--Operation Exemption--Certain Lines of the State of New Hampshire New Hampshire and Vermont Railroad Company (NHVT), a Class III rail carrier has filed a notice to operate approximately 36 miles of certain rail lines owned by the State of New Hampshire by and through the New Hampshire Department of Transportation (subject lines). The parties state that NHVT and the State of New Hampshire, by its Department of Transportation, entered into an operating agreement on March 15, 1999, providing for NHVT's operation of the subject line. The subject lines consist of a parcel or strip of railroad land of varying width, lying in Grafton and Coos Counties, NH, comprising a portion of railroad right- of-way known as the Berlin Branch and a portion of railroad right-of-way known as the Groveton Branch : (a) from milepost 113.0 in Littleton, NH to milepost 125.0 in Whitefield, NH; (b) from milepost 125.0 in Whitefield, NH to milepost 130.9 in Jefferson (Waumbec Junction), NH (at the point of switch for the Maine Central Railroad connecting track); and (c) from milepost 130.9 in Jefferson (Waumbec Junction), NH, to a point in Groveton (Northumberland), NH (at the Whistle Post located South of the West Street crossing, such point being the point of intersection with the tracks of the St. Lawrence & Atlantic Railroad Company). The earliest the transaction could be consummated was March 25, 1999, the effective date of the exemption. However, this transaction is related to STB Finance Docket No. 33728, in which the State of New Hampshire has filed a notice of exemption with respect to its purchase of these lines from NHVT. Because the exemption in STB Finance Docket No. 33728 was not scheduled to take effect until on or after March 30, 1999, the exemption in STB Finance Docket No. 33727 could not have been consummated prior to March 30, 1999. Decided: April 8, 1999. Service Date - April 16, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33728] State of New Hampshire Department of Transportation--Acquisition Exemption--New Hampshire and Vermont Railroad Company The State of New Hampshire Department of Transportation (NHDOT), a noncarrier, has filed a notice to acquire (by purchase) approximately 36.0 miles of rail line owned by the New Hampshire and Vermont Railroad Company (NHVT). The lines being acquired by NHDOT are known as the Berlin Branch and the Groveton Branch and extend: (a) from milepost 113.0 at Littleton, NH, to milepost 125.0 at Whitefield, NH; (b) from milepost 125.0 at Whitefield, NH, to milepost 130.9 at Jefferson (Waumbec Junction), NH; and (c) from milepost 130.9 at Jefferson (Waumbec Junction), NH, to a point in Groveton (Northumberland), NH, where said line intersects with a line of railroad owned by the St. Lawrence & Atlantic Railroad Company. NHVT will operate the property. The transaction was scheduled to be consummated on or after March 30, 1999. This transaction is related to STB Finance Docket No. 33727, wherein NHVT has filed a notice of exemption to operate over the lines once they are owned by NHDOT. Thus, NHVT will continue as the primary common carrier freight operator of the subject lines. Decided: April 8, 1999. Service Date - April 16, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33721] Norfolk Southern Railway Company and The Cincinnati, New Orleans & Texas Pacific Railway Company Trackage Rights Exemption Consolidated Rail Corporation, at Columbus, OH Consolidated Rail Corporation (CRC) has agreed to grant overhead trackage rights to Norfolk Southern Railway Company, on behalf of itself and its wholly owned subsidiary The Cincinnati, New Orleans & Texas Pacific Railway Company (collectively referred to as NS), over a total distance of approximately 5.4 miles of CRC's lines at Columbus, Franklin County, OH, as follows: (1) between approximately milepost CP-134.3, at Clintonville Connection, and the connection between the parties at approximately milepost 138.0, at CP 138 near Scioto, a distance of approximately 3.7 miles on CRC's Columbus Line; and (2) between approximately milepost 138.0, at CP 138, and approximately milepost 139.7, in the vicinity of Auburn Switch, a distance of approximately 1.7 miles on CRC's Cincinnati Line. These trackage rights extend a trackage rights arrangement previously exempted by the Board on a line between Columbus and Cincinnati, OH. The trackage rights will permit NS to utilize its newly constructed and more efficient Clintonville Connection. As part of the transaction approved by the Board in Finance Docket No. 33388, NS was authorized to obtain trackage rights over the portion of the line between milepost CP-134.3 and milepost CP-138.0 and was authorized to operate over the portion of the line between milepost CP-138.0 and milepost CP-139.7. Thus, once NS acts on those authorizations, which the applicants in STB Finance Docket No. 33388 have projected to be on approximately June 1, 1999, the trackage rights included in this notice will no longer be required, but NS will continue to provide service over these lines after that date pursuant to the other authorizations in Finance Docket No. 33388. The transaction is scheduled to be consummated on or after April 14, 1999. The trackage rights will permit NS to move overhead traffic more safely, efficiently, and quickly through the Columbus area. Decided: April 13, 1999. Service Date - April 19, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD STB Finance Docket No. 33407 DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION CONSTRUCTION INTO THE POWDER RIVER BASIN NOTICE TO THE PARTIES: On March 10, 1999, the Final Scope of Study for the Environmental Impact Statement (EIS) and Request for Comments on 1) the Modified Proposed Action, referred to as Alternative C, and 2) the City of Rochester, Minnesota's South Bypass Proposal was issued in this proceeding. The Final Scope provided a 30 day comment period for interested parties to submit comments on the two new proposed alternatives listed above, while making it clear that the 30 day comment period, which was due to expire on April 10, 1999, was in addition to, not a substitute for, the comment period that will be provided on all aspects of the Draft Environmental Impact Statement (DEIS) when that document is made available. The Board and cooperating agencies have received requests to extend the April 10, 1999 comment date. Some of the requests seek an extension in which to comment on a number of potential environmental impacts and others seek additional time to permit development of bypass alternative proposals. As discussed below, we will provide a limited additional comment period for interested communities to develop bypass proposals. As we stated in the Final Scope, we are mindful of our obligations under the National Environmental Policy Act to explore and evaluate in the EIS a reasonable range of alternatives designed to meet the purpose and need of the applicant's proposal. At the same time, we are aware that we cannot let the environmental review process indefinitely delay the Board's final decision on this matter. In the Final Scope, we made a preliminary determination, based on the City of Rochester's engineering study and cost estimates, that the City had met an initial burden of showing that its proposed south bypass may be a feasible routing alternative. Accordingly, we requested comments from the railroad and other concerned parties on whether the south bypass proposal was feasible, or would simply shift the potential environmental consequences of the applicant's proposal to different communities and populations. Having provided this opportunity in Rochester, we believe that we should afford other interested communities the same opportunity to submit specific bypass designs. Therefore, we will extend the comment period established in the Final Scope for an additional 60 days, or until June 10, 1999, to provide time for any other interested community to submit a bypass proposal. Dakota, Minnesota & Eastern Railroad or any interested party or person who may be affected by a proposed bypass would then have 30 days, or until July 12, 1999, to respond. In addition, parties may use the additional time to submit comments on other alternatives described in the Final Scope. We note that the information we receive from any community regarding a bypass must be detailed enough for us to determine whether a specific bypass proposal constitutes a reasonable and feasible alternative to the applicant's proposal or merely relocates the potential environmental consequences of the applicant's proposed action. To that end, any bypass proposal submitted by a community must, at a minimum, contain the following information: detailed maps showing where the route would be located; quantified impacts to wetlands; cut and fill requirements to permit design and operation of a railroad; roads that would be crossed and their average daily traffic levels; proximity of the bypass to sensitive structures (for example, schools, libraries, hospitals, residences, retirement communities, and nursing homes); and impacts to landowners and farmlands. Also, in considering bypass proposals that may be submitted to the Board and determining whether they constitute reasonable, feasible alternatives, we will take into account the applicant's goal to create a more efficient route by which to transport coal. A circuitous route that bypasses numerous communities could add so many additional miles that it would be unlikely to allow applicant to achieve its goal of providing efficient rail transportation. However, before arriving at a final decision on the range of alternatives to be addressed in the DEIS, we will carefully consider any specific bypass proposal and all responses to such a proposal. Finally, we must balance our responsibility to analyze a reasonable range of alternatives with the need to move the environmental review process forward without undue delay. To allow us to issue the DEIS in a timely manner, we will not grant further extensions of time. The requests for additional time to provide comments on potential environmental impacts will be denied. As the Board and its cooperating agencies stated in the Final Scope, we are in the process of preparing a DEIS analyzing all potential environmental effects discovered during the course of the environmental review process, including concerns identified during scoping. The DEIS will be made available upon its completion for public review and comment. Accordingly, there is no need to provide an additional comment period on potential environmental impacts at this point. Bypass proposals and comments on alternatives described in the Final Scope must be submitted to the Board by June 10, 1999. Replies or responses must be submitted by July 12, 1999. It is ordered: 1. The comment due date set forth in the Final Scope regarding alternatives shall be extended to June 10, 1999. Reply comments are due by July 12, 1999. No further extensions of time shall be granted. Decided: April 14, 1999 Service Date - April 20, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-57 (Sub-No. 46X) SOO LINE RAILROAD COMPANY--ABANDONMENT EXEMPTION--IN ST. PAUL, RAMSEY COUNTY, MN By petition filed on December 31, 1998, Soo Line Railroad Company, doing business as Canadian Pacific Railway, seeks to abandon a line of railroad known as the St. Paul Terminal Trackage, extending from milepost 17.29+/- (southeast of Jackson Street) to the end of the line at milepost 18.19+/- (near I-35E North), a distance of .90+/- miles, in Ramsey County, MN. The United Transportation Union requests imposition of labor protective conditions. Comments in opposition to the petition were filed by Ramsey County Board of Commissioners (RCBC) and Tilsner Carton Company (Tilsner). We will grant the exemption, subject to an environmental condition and standard employee protective conditions. The rail line proposed for abandonment is the stub-end of a line that once served the former East 7th Street freight house in St. Paul, MN. In 1978, the line segment extending south from the end of this line was approved for abandonment. Soo seeks to abandon the stub-end because in its view the line is no longer viable. Only one shipper, Tilsner, is located on the line. Soo states that Tilsner primarily ships by truck and is not and has not been a regular user of the line. According to Soo, on August 19, 1998, Tilsner used the line to ship one carload, but prior to that time, it had been more than 2 years since Tilsner had used the line. Soo asserts that there is insufficient traffic from Tilsner to justify continued service to its facility. Because it is stub-ended, there is no overhead traffic on the line. Soo submits that, in the base year (September 1, 1997, through August 31, 1998), the line generated revenues of only $300 and total avoidable costs of $5,326. Soo estimates that the net liquidation value of the line is $528,460, which includes a land value of $525,000. (Soo states that it has pending a sale of the right-of-way for $525,000.) Soo calculates that it incurs an opportunity cost of $54,471 per year to keep the line in service. Tilsner, a manufacturer of corrugated boxes and cartons, is located at the south end of the line proposed for abandonment. Tilsner states that it is planning a major expansion of its plant, which will include the acquisition of a corrugator machine that will enable Tilsner to produce the liner board used in the manufacture of its boxes and cartons. Tilsner asserts that this will double the capacity of its plant and will create significant additional volumes of inbound rail freight as well as increase the outbound shipments by rail of finished boxes and cartons. Tilsner estimates that as many as 50 carloads per month of pulp board will be needed to support the corrugator, and that if rail service is not available it may have to relocate its facility. It argues that retaining the line constitutes a minimal burden on Soo and that Soo has made no effort to market its rail service even after being advised of Tilsner's expansion plans. Tilsner also argues that Soo made an implied promise to continue rail service when it sold Tilsner land and spur track that serves its loading docks. According to Tilsner, the Track Agreement, that it entered into with Soo regarding the spur track, prohibits the proposed abandonment of the connecting Soo line. Tilsner states that the land which it purchased from Soo on January 15, 1993, for $100,000, consists of several hundred feet of right-of-way adjacent to Tilsner's plant, that arguably is part of the right-of-way of the line proposed for abandonment. After learning that Soo intended to remove the track on the land that it was purchasing, Tilsner also purchased the track for $2,000 to keep it in place and retain railroad access to its plant. Tilsner apparently views the Track Agreement, dated March 30, 1993, as a commitment by Soo to keep Tilsner's spur track connected to Soo's system and to provide Tilsner with common carrier rail service indefinitely. RCBC also opposes the abandonment because it is concerned about the effect on Tilsner and on Ramsey County. According to RCBC, Tilsner has undergone a multi-million dollar expansion within the past 6 years and is planning future expansion of its site. RCBC asserts that the residential neighborhood as well as the business community believe that Tilsner provides an enormous asset to the area and that the lack of rail service may impair Tilsner's expansion and its viability to continue in its current location. RCBC also asserts that the proposed abandonment will affect the future of light rail and/or commuter services, and possible trail use. It does not want to be precluded from possible use of the right-of-way for a trail and light rail and/or commuter service, but the County is not in a position at this time to determine if this property may be used for these purposes because the routes have not yet been chosen and funding has not been secured. RCBC also states that the Minnesota Department of Natural Resources (DNR) may be interested in purchasing or using part of the right-of-way in conjunction with the Munger Trail. According to RCBC, the Tri-Area Block Club is currently submitting a Metro Greenways Site nomination proposal to DNR requesting that it purchase part of this right-of-way for trail use and environmental learning experiences. Regulation of the proposed transaction is not necessary to protect shippers from the abuse of market power because the sole shipper on the line has made minimal use of it. Although Tilsner desires to retain the line in order to have rail service available once its plant expansion is completed, it has not specified how long that will take. Nor has it indicated how much of this future traffic will in fact be tendered to Soo and how much might move by motor carriers. Mere speculation about future traffic is not a sound basis upon which to deny an abandonment exemption. The Track Agreement, cited by Tilsner as another reason for denying the abandonment, sets forth the rights and obligations of Tilsner and Soo with respect to the spur track that it purchased in 1993, but that transaction does not bind Soo to operate a line of railroad in interstate commerce indefinitely, if we find its operation is no longer required. RCBC's concern about ensuring Tilsner's continued presence in Ramsey County, while understandable, does not outweigh the demonstrated harm to Soo which would result from continued operation of this uneconomical line. We note that 49 U.S.C. 10904 provides a mechanism for those who want to continue rail service that the Board has authorized to be discontinued or abandoned. Any financially responsible person (and all government agencies are deemed to be financially responsible) may file an offer of financial assistance (OFA). Should Ramsey County, Tilsner, or any area businesses wish to retain the line, they may acquire the line or subsidize its continued operation under the OFA procedures. Also, late-filed trail use requests will be accepted so long as the abandonment has not been consummated and the abandoning railroad is willing to negotiate an agreement. As an alternative to interim trail use, the right-of-way may be acquired for public use as a trail under the public use provisions. In the EA, SEA indicated that: (1) the Minnesota Historical Society (the SHPO) indicates that the area of the proposed abandonment includes Westminster Junction, which meets the criteria of the National Register of Historic Places and that SHPO may need additional information to complete its evaluation of the potential impact of the abandonment on historic resources; and (2) that the National Geodetic Survey (NGS) has identified two geodetic station markers along the rail line that may be affected by the proposed abandonment and requests 90 days notice to plan relocation of any markers which may be disturbed or destroyed. In the EA, SEA recommended that we impose conditions requiring Soo to: (1) retain its interest in and take no steps to alter any sites and structures on the line that are 50 years old or older, including Westminster Junction, until completion of the section 106 process of the National Historic Preservation Act ; and (2) consult with NGS and provide it with 90 days notice prior to engaging in any activities that would disturb or destroy any geodetic markers identified on the line. The SHPO has advised SEA that the proposed abandonment will not have any physical or rail traffic effects on the Westminster Junction area. SEA states that this completes the section 106 process and recommends that the historic preservation condition previously recommended in the EA not be imposed. In addition, a comment was received from the U.S. Environmental Protection Agency (EPA) encouraging continued consultation with NGS regarding the geodetic markers identified on the line. Accordingly, as to the environment, we will only impose the condition that Soo consult with NGS and provide it with 90 days notice prior to engaging in any activities that would disturb or destroy any geodetic markers identified on the 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 Soo of the above-described line, subject to the employee protective conditions in Oregon Short Line R. Co.--Abandonment--Goshen, 360 I.C.C. 91 (1979), and the condition that Soo consult with NGS and provide it with 90 days notice prior to engaging in any activities that would disturb or destroy any geodetic markers identified on the line. 2. Soo is directed to serve a copy of this decision on Tilsner and RCBC within 5 days after the service date of this decision and to certify to the Board that it has done so. 3. Provided no OFA has been received, this exemption will be effective May 20, 1999. 4. Soo 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 Soo's filing of a notice of consummation by April 20, 2000, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: April 19, 1999 Service Date Late Release - April 20, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-6 (Sub-No. 381X) THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY-- ABANDONMENT EXEMPTION--IN HENNEPIN AND RAMSEY COUNTIES, MN The Burlington Northern and Santa Fe Railway Company (BNSF) filed a notice to abandon 2.43 miles of rail line between milepost 0.00 near East Minneapolis and milepost 2.43 near Rollins Oil, in Hennepin and Ramsey Counties, MN. By decision served on December 29, 1998, a 180-day public use condition was imposed for the 2.43-mile line at the request of the Minnesota Department of Transportation (MnDot). The condition required that BNSF keep the right-of-way intact, including bridges, trestles, culverts and tunnels, for a period of 180 days after the effective date of the exemption to permit MnDot 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 is scheduled to expire on June 28, 1999. On March 2, 1999, BNSF requested that the Board partially vacate the public use condition for the line segment between milepost 2.18 and milepost 2.43. BNSF states that, in order to facilitate the location of a new rail shipper facility (Triangle Warehouse) and rail spur within the abandonment/discontinuance area, it has been negotiating a sale of a section of property included within the abandonment/discontinuance limits. According to BNSF, the closing of the sale transaction is pending. Alternatively, BNSF seeks Board approval for the sale notwithstanding the public use condition or a Board clarification that the sale would be consistent with the public use condition (under the theory that, while the property would become private spur track, the property would be sold for continued rail purposes). BNSF also states that it has been negotiating the transfer of another section of property along the right-of-way to Diversified Graphics for private use and, accordingly, requests that a portion of the right-of-way between milepost 0.00 and Broadway Street NE be released from the public use condition, or that the Board authorize the transaction notwithstanding the pendency of the public use condition. The public use condition was imposed in the decision served December 29, 1998, at the request of MnDot in order to provide a 180-day period for MnDot and other agencies to study alternative transportation and transmission usages for the right-of-way, to obtain appraisals, and to negotiate with BNSF. On March 19, 1999, the Minneapolis Park and Recreation Board (Minneapolis PRB) filed a letter with the Board reporting on a meeting held on March 11, 1999, to discuss the future of the 2.43-mile right-of-way. According to the Minneapolis PRB, the meeting was attended by representatives of a number of state, county, and local governmental entities, including MnDot, and all parties to the meeting reportedly agreed that the 2.43-mile line has the potential for meeting the transportation needs for rapid transit and commuter/recreational trails. In view of the continued and demonstrated public interest in the use of the right-of-way, and the lack of any showing by BNSF that its proposed property transfers would not be inconsistent with the public uses under consideration, the relief sought by BNSF will not be granted. It is ordered: 1. BNSF's request for relief from the application of the public use condition imposed in this proceeding as to the segments between milepost 2.18 and milepost 2.43 and between milepost 0.00 and Broadway NE is denied. 2. The public use condition imposed in the decision served on December 29, 1998, remains in effect until June 28, 1999. Decided: April 19, 1999 Service Date - April 21, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-406 (Sub-No. 8X) CENTRAL KANSAS RAILWAY LIMITED LIABILITY COMPANY-- ABANDONMENT EXEMPTION--IN HARPER COUNTY, KS Central Kansas Railway Limited Liability Company (CKR) filed a notice to abandon an approximately 8-mile line of its railroad on the Spring Branch between milepost 69.0 at Anthony and milepost 77.0 at Spring, in Harper County, KS. The exemption is scheduled to become effective on April 25, 1999. The Board's Section of Environmental Analysis (SEA) served an environmental assessment (EA) in this proceeding on March 31, 1999. In the EA, SEA states that the National Geodetic Survey (NGS) has identified thirteen 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 CKR to consult with the NGS and provide NGS with 90 days notice prior to disturbing or destroying any geodetic markers. The condition will be imposed. It is ordered: 1. This proceeding is reopened. 2. Upon reconsideration, the exemption of the abandonment of the line described above is subject to the condition that CKR consult with the NGS and provide NGS with 90 days notice prior to disturbing or destroying any geodetic station markers. Decided: April 19, 1999 Service Date - April 22, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-33 (Sub-No. 132X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION--IN RIO GRANDE AND MINERAL COUNTIES, CO IN THE MATTER OF AN OFFER OF FINANCIAL ASSISTANCE Union Pacific Railroad Company (UP) filed a notice to abandon and discontinue service over a 21.6-mile line of railroad known as the Creede Branch, extending from milepost 299.3 near Derrick to the end of the line at milepost 320.9 at Creede, in Rio Grande and Mineral Counties, CO. The exemption was scheduled to become effective on February 24, 1999, but formal expressions of intent to file an offer of financial assistance (OFA) were timely filed by the February 4, 1999 due date by the Denver & Rio Grande Railway Historical Foundation (D&RGHF) (to purchase or to acquire by donation the entire line), by South Fork-Creede Railway Corridor Preservation Group Inc. (SFCR) (to purchase the entire line), and by the Rio Grande & San Juan Railroad Co. (RG&SJ) (to purchase the entire line). These filings automatically stayed the effective date of the exemption until March 6, 1999. SFCR and RG&SJ also requested UP to provide financial data and information. On February 4, 1999, and February 19, 1999, RG&SJ and SFCR, respectively, filed petitions to toll the 30-day period for submitting their OFAs. By decision served February 23, 1999, the deadline to file an OFA was extended to March 26, 1999, and the effective date of the abandonment exemption was further postponed to April 5, 1999. On March 26, 1999, RG&SJ timely filed an OFA to purchase the entire line for $302,000. Also on March 26, 1999, D&RGHF filed a request to extend its due date to file an OFA for an additional 5 days. By decisions served March 30, 1999, D&RGHF was granted an extension until March 31, 1999, to file its OFA, and RG&SJ was found financially responsible, and the effective date of the exemption authorizing abandonment was postponed to permit the OFA process to proceed. By letter filed on March 31, 1999, RG&SJ indicated its objection to the 5-day extension and reserved the right to file an administrative appeal. By letter filed April 1, 1999, RG&SJ urged the Board to reject any OFA filed by D&RGHF after the March 31, 1999 extended due date, asserting that acceptance of a late-filed OFA would prejudice both it and UP. On April 2, 1999, D&RGHF filed a petition for leave to file its OFA two days late and tendered an OFA to purchase the entire line for $387,930. D&RGHF stated that, despite its best efforts, it was unable to finalize financial statements for it and Mr. Donald H. Shank, D&RGHF's founder, until April 2, 1999. D&RGHF urged the Board to accept its late-filed OFA because UP would not be prejudiced by the acceptance. D&RGHF pointed out that the effective date of the exemption had already been postponed due to the filing and acceptance of RG&SJ's OFA and adds that UP would have a choice of offerors with which to negotiate if D&RGHF's OFA is accepted. On April 5, 1999, RG&SJ filed a letter, in which it took the position that D&RGHF's OFA should be rejected on the following grounds: first, that it unjustifiably delayed negotiations between UP and RG&SJ that might otherwise have begun without waiting for UP's selection of an offeror with which to negotiate, and that RG&SJ was prejudiced both by the delay and by the fact that the timing of D&RGHF's filing permitted it to see RG&SJ's OFA and then submit a higher bid; second, that D&RGHF did not adequately explain the disparity between its OFA and UP's valuation of the property; and third, that D&RGHF did not adequately demonstrate its financial responsibility. By decision of the Director of the Office of Proceedings, served April 6, 1999, D&RGHF's offer was accepted. Moreover, it was determined that D&RGHF is financially responsible and, because there were two offers from financially responsible entities as a result of this determination, UP was directed to provide written notification of its selection of the offeror with which it wished to transact business to the Board and all parties by April 12, 1999. On April 12, 1999, UP notified the Board that it had selected D&RGHF for negotiations with respect to the possible purchase of the line segment. On April 14, 1999, RG&SJ appealed the April 6 decision, arguing that the Director acted erroneously in accepting D&RGHF's offer and that it should be rejected. RG&SJ alleges that D&RGHF does not intend to acquire and operate the subject line for common carrier rail service, but rather as a narrow gauge steam powered historic railroad, a use it asserts is outside the purposes of the OFA statute. RG&SJ submitted a copy of an article that was reported in the Colorado Time-Table, April 1999, to support its statement. RG&SJ further argues that, if D&RGHF had filed its offer in a timely manner, as RG&SJ did, neither offeror would have been in a position to learn in advance the amount the other party offered. RG&SJ states that, because D&RGHF had prior knowledge of its $302,000 offer, D&RGHF was in a position to make a higher bid. RG&SJ asserts that, under these circumstances, D&RGHF's OFA should be rejected. RG&SJ adds that it is now offering $778,616, and requests the Board to accept its revised offer. RG&SJ also states that evidence previously submitted to the Board on March 26, 1999, indicates that its backers have sufficient funds to purchase the entire line for the asking price and to maintain and operate the line for two years. In response, D&RGHF asserts that it intends to acquire and operate the line to provide interstate common carrier rail freight service. It maintains that it intends to provide tourist passenger service in addition to freight service. D&RGHF states that it is considering the addition of a third rail that would allow a narrow-gauge passenger operation, but which would not be inconsistent with freight operations over the existing rails. Finally, D&RGHF disputes RG&SJ's claims that acceptance of D&RGHF's later and higher offer was unfair. The OFA procedures require that an offer be for continued rail service on a line that otherwise would be abandoned and that the offeror be financially responsible. The evidence here supports the Director's finding that D&RGHF is financially responsible. Furthermore, the record supports D&RGHF's contention that it intends to acquire the line for continued rail freight service. D&RGHF states in its reply that it has every intention of acquiring and operating the rail line for the provision of interstate common carrier rail freight service. According to D&RGHF, the tourist passenger service will be in addition to freight service. The third rail in the line that D&RGHF is considering to allow a narrow gauge passenger operation would not be inconsistent with a rail freight operation. Moreover, most of the track rehabilitation that D&RGHF would perform would consist of replacing failed standard-gauge crossties with new standard-gauge crossties. Thus, nothing in RG&SJ's appeal shows that D&RGHF's offer does not fall within the scope of the OFA statute. As to the Director's acceptance of D&RGHF's OFA after the due date, we agree with the Director that there was no evidence that the railroad in question, UP, would be disadvantaged by acceptance of D&RGHF's OFA. Indeed, on April 12, 1999, UP selected D&RGHF as the party with which it will negotiate. At the same time, given RG&SJ's claim that the Board's acceptance of D&RGHF's later and higher offer was unfair to RG&SJ, and RG&SJ's statement that it now offers $778,616 for the line, it seems appropriate to give UP time to advise us whether the railroad has changed its mind regarding the party with which it wishes to negotiate. Therefore, UP is directed to provide updated written notification to the Board and all parties to this proceeding by April 26, 1999. Following UP's selection of the party for negotiations, if negotiations are not successful, a request to set terms will be due by May 10, 1999. If no agreement is reached between the party with which UP decides to negotiate and UP, and the Board has not been requested to establish conditions and the amount of compensation by May 10, 1999, then the other party may file a request with the Board by May 20, 1999, for the Board to establish conditions and the amount of compensation. And, if no agreement is reached between the selected negotiating party and UP, and the Board is requested to set conditions and compensation, the Board sets the conditions and compensation, and the selected negotiating party withdraws its offer, then the other party may accept the Board's decision setting terms and compensation within 20 days after the service date of that decision. Accordingly, we find no basis for reversing the Director's April 6 decision and we will deny RG&SJ's appeal of that decision, but give UP time to provide updated written notification as to the party with which it will negotiate, given the unusual circumstances of this case. It is ordered: 1. RG&SJ's appeal is denied, but UP will be given until April 26, 1999, either to make a new selection of a negotiating party or to confirm its earlier selection. 2. The new due dates for pertinent filings are as set forth in this decision. Decided: April 21, 1999 Service Date - Late Release April 22, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33739] Illinois Central Railroad Company Trackage Rights Exemption Indiana Harbor Belt Railroad Company Indiana Harbor Belt Railroad Company (IHB) has agreed to grant overhead trackage rights to Illinois Central Railroad Company (IC) over IHB's trackage from milepost 33.9, in Broadview, IL, to milepost 39.3, in Franklin Park, IL, a total distance of 5.4 miles. The parties report that they intend to consummate the transaction as of April 30, 1999. The earliest the transaction can be consummated is April 21, 1999. The purpose of the trackage rights is to facilitate economical and efficient operation of IC's overhead traffic through Broadview and Franklin Park. Decided: April 16, 1999. Service Date - April 26, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-493 (Sub-No. 7X) TRACK TECH, INC.--ABANDONMENT EXEMPTION--IN ADAIR AND UNION COUNTIES, IA By decision and notice of interim trail use or abandonment (NITU) served on July 2, 1998, a 180-day period was authorized under the National Trails System Act for the Iowa Trails Council, Inc. (ITC), to negotiate an interim trail use/rail banking agreement with Track Tech, Inc., for a 19.70-mile line of railroad between milepost 1.45 near Creston, and milepost 21.15 at the end of the line in or near Greenfield, in Adair and Union Counties, IA. The line had formerly been owned and operated by The Burlington Northern and Santa Fe Railway Company (BNSF). Thereafter, pursuant to offer of financial assistance provisions, Green Valley Chemical Company was authorized to acquire the portion of the line between milepost 1.45 and milepost 5.45. By decision served on September 21, 1998, the Board approved the purchase and dismissed the exemption with respect to the part of the line between milepost 1.45 and milepost 5.45. The NITU remained in effect for the remainder of the line between milepost 5.45 and milepost 21.15. The 180-day negotiating period under the NITU expired on December 29, 1998. By letter dated December 30, 1998, and filed on January 8, 1999, ITC requested an extension of the NITU negotiating period for an additional 180 days. On February 2, 1999, ITC filed a letter that it had received from BNSF, in which BNSF indicated its agreement to a 90-day extension of the negotiating period. Track Tech, the entity that had the common carrier obligation to provide service over the line and the entity to which the exemption to abandon the line was granted, initially did not file a response with the Board stating whether it was willing to continue negotiations with ITC. By decision served on February 11, 1999, Track Tech was directed to notify the Board within 10 days of the service date of the decision whether it agreed to an extension of the NITU negotiating period for the portion of the line between milepost 5.45 and milepost 21.15. On February 12, 1999, Track Tech advised the Board that Track Tech and BNSF agreed to an extension of the NITU negotiating period for an additional 90 days. By decision served on February 19, 1999, the negotiating period under the NITU was extended for an additional 90 days to March 29, 1999. By letter dated March 19, 1999, and filed on March 23, 1999, Track Tech provided formal notice to the Board that it was no longer willing to negotiate for interim trail use for the portion of the line between milepost 5.45 and milepost 21.15. Track Tech stated that it had consummated and exercised the abandonment authority granted to it and had fully abandoned the line on March 12, 1999. According to Track Tech, all negotiations for interim trail use ceased on or before March 12, 1999, and, therefore, it requested that the Board terminate the NITU negotiating period effective as of March 12, 1999, the date of Track Tech's intention to consummate its abandonment authority. By letter filed on March 29, 1999, however, ITC requested an extension of the NITU negotiating period for an additional 14 days. Track Tech responded by letter filed on March 31, 1999, stating that, notwithstanding its letter filed on March 23, it had consulted with BNSF and ITC and now agreed to an extension of the NITU negotiating period for an additional 14 days. On April 12, 1999, ITC filed another request to extend the NITU negotiating period to May 1, 1999. By letter filed on April 13, 1999, Track Tech stated that it agrees to the additional extension. On April 14, 1999, a petition for leave to intervene in this proceeding was filed by the 32 members of an organization of landowners known as the Farmers Group, including Leo and Darlene Cheers (collectively referred to as the intervenors). The intervenors argue that the Board lacks jurisdiction to extend the NITU negotiating period, contending that Track Tech filed formal notice that it had consummated its abandonment of the portion of the line at issue here on March 12, 1999, thus depriving the Board of jurisdiction to issue or extend a NITU. Whether or not a line has been abandoned depends on a carrier's intent. The Board's regulations include a provision that is designed to provide clear evidence of when an authorized abandonment has been consummated, thus, avoiding litigation over whether or not a line has been abandoned. A railroad that receives authority from the Board to abandon a line is required to file a notice of consummation with the Board within 1 year of its abandonment authorization to signify that it has exercised the authority granted and fully abandoned the line. Notices will be deemed conclusive on the point of consummation if there are no legal or regulatory barriers to consummation (such as outstanding conditions, including Trails Act conditions). Track Tech's March 23, 1999 formal notice to the Board that trail use negotiations had ceased, that it was no longer willing to negotiate, and that it had exercised the abandonment authority and fully abandoned the line on March 12, 1999, is conclusive on the point of consummation. While there is some question as to whether Track Tech should have consummated the abandonment before the removal of the outstanding condition, the courts have held that clear statements by a carrier that the carrier intends to consummate abandonment govern. And Track Tech's subsequent letters agreeing to further trail use negotiations do not negate Track Tech's prior statement that it had abandoned the line on March 12. Once the Board's jurisdiction over a line is lost, the carrier's change of mind concerning trail use does not restore the Board's jurisdiction under the Trails Act, and the negotiating period may not be extended. The line is no longer part of the interstate railway system and the Board has no jurisdiction to impose or extend a trail use negotiating period. Accordingly, the requests to extend the NITU negotiating period are denied. It is ordered: 1. The petition for leave to intervene is granted and accepted into the record in this proceeding. 2. The requests to extend the NITU negotiating period filed by ITC on March 29, 1999, and April 12, 1999, are denied. Decided: April 26, 1999 Service Date - April 28, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33736] New Orleans & Gulf Coast Railway Company--Acquisition Exemption--New Orleans Lower Coast Railroad Company, Inc. New Orleans & Gulf Coast Railway Company (NOGC), a noncarrier, has filed to acquire from New Orleans Lower Coast Railroad Company, Inc. (NOLR), 23.688-miles of rail line currently owned and operated by NOLR, between milepost 0.312 at Gouldsboro Yard, LA, and milepost 24.0 at Myrtle Grove, LA. NOGC will be the exclusive operator of the rail line. The transaction was scheduled to be consummated on or shortly after April 15, 1999. This transaction is related to STB Finance Docket No. 33737, wherein Rio Grande Pacific Corporation will continue in control of NOGC, upon its becoming a Class III rail carrier. Decided: April 20, 1999. Service Date - April 28, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33737] Rio Grande Pacific Corporation--Continuance in Control Exemption--New Orleans & Gulf Coast Railway Company Rio Grande Pacific Corporation (Rio Grande), a noncarrier, has filed a verified notice of exemption to continue in control of New Orleans & Gulf Coast Railway Company (NOGC), upon its becoming a Class III rail carrier. The transaction was scheduled to be consummated on or shortly after April 15, 1999. This transaction is related to STB Finance Docket No. 33736, wherein NOGC seeks to acquire rail lines from New Orleans Lower Coast Railroad Company, Inc. (NOLR). In addition to NOGC, Rio Grande controls three Class III rail carriers. These carriers are Idaho Northern & Pacific Railroad Company, operating in the states of Idaho and Oregon, Nebraska Central Railroad Company, operating in the state of Nebraska, and Wichita, Tillman & Jackson Railway Company, Inc., operating in the states of Texas and Oklahoma. NOGC is a noncarrier corporation formed for the purpose of acquiring 23.688 miles of rail line from NOLR. NOGC will be the exclusive operator of the line. Decided: April 20, 1999. Service Date - April 28, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-559 (SUB-NO. 1X) GAULEY RIVER RAILROAD, LLC --ABANDONMENT AND DISCONTINUANCE OF SERVICE-- IN WEBSTER AND NICHOLAS COUNTIES, WEST VIRGINIA No. AB-55 (SUB-NO. 572X) CSX TRANSPORTATION, INC. -- DISCONTINUANCE IN WEBSTER AND NICHOLAS COUNTIES, WEST VIRGINIA In the Docket No. AB-559 (Sub-No. 1X) proceeding, the Gauley River Railroad, LLC (GRIV) has filed a petition in connection with (1) the discontinuance of service over, and abandonment of its railroad line located between milepost BUC-119, near Cowen, and milepost BUC-119, at Allingdale (hereafter, Line A ), a distance of approximately 10.0 miles; (2) the discontinuance of service over a line of railroad between milepost BUE-0.0 at Allingdale, and milepost BUE-12.4 at Muddlety Falls, a distance of approximately 12.4 miles ( hereafter, Line B ); and (3) the discontinuance of service over and abandonment of approximately 8.3 miles of railroad between milepost BUE-12.4 at Muddlety Falls, and milepost BUE-20.7 at Muddlety, including the McMillon Creek Branch and the Delmont Branch (hereafter, Line C ), all in Webster and Nicholas Counties, WV. Collectively, Lines A, B, and C will be referred to as the Line , which is approximately 30.7 miles in total length. GRIV purchased Lines A and C from CSX Transportation, Inc. (CSXT) in mid- 1998. Simultaneously, GRIV subleased Line B from CSXT, enabling GRIV to operate Lines A, B and C as a single, continuous line of railroad. CSXT holds a leasehold interest in Line B, and retains the common carrier rights and obligations over Line B. Line B is owned by the Strouds Creek and Muddlety Railroad Company. CSXT, in the Docket No. AB-55 (Sub-No. 572X) proceeding, has also filed a petition in connection with discontinuance of its service over Line B. This environmental assessment primarily applies to Lines A and C, which GRIV owns and would abandon and salvage if the authority sought is granted. With respect to Line B, no environmental impact is expected because no physical change to the right-of-way will take place. The Line extends through sparsely populated rural areas. No traffic has moved over the Line since 1994, and GRIV has embargoed all service over the Line due to unsafe track conditions. A portion of the Line extends through Monongahela National Forest. There are two industries on the Line, each of which trucks their products to other locations on CSXT. The West Virginia Department of Culture and History (SHPO) has not completed a review of the proposed abandonment. The West Virginia Division of Environmental Protection has indicated that certain permits may be required before salvage operations commence. We therefore recommend that the following conditions be placed on any decision granting abandonment authority: 1. GRIV shall 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. 2. Prior to commencing salvage operations, GRIV shall consult with the West Virginia Division of Environmental Protection-Office of Water Resources to determine if permits are necessary. Service Date - April 29, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 33388 (Sub-No. 89) CSX CORPORATION AND CSX TRANSPORTATION, INC., NORFOLK SOUTHERN CORPORATION AND NORFOLK SOUTHERN RAILWAY COMPANY CONTROL AND OPERATING LEASES/AGREEMENTS CONRAIL, INC. AND CONSOLIDATED RAIL CORPORATION (ARBITRATION REVIEW) On March 18, 1999, the Transport Workers Union of America (TWU) sought review of the February 27, 1999 arbitration award rendered by referee Richard R. Kasher. The Kasher Award adopted an implementing arrangement under Article I, section 4 of the New York Dock conditions imposed by the Board in Decision No. 89 of STB Finance Docket No. 33388, with respect to operations by both Norfolk Southern Railway Company (NSR) and CSX Transportation, Inc. (CSXT) following their takeover of Conrail operations as permitted by that decision. On April 9, 1999, having reached a satisfactory arrangement with CSXT, TWU filed a Partial Withdrawal Of Petition For Review Of Arbitration Award, withdrawing the union's petition insofar as it related to CSXT. By motion filed on April 26, 1999, TWU and NSR jointly request that the Board defer handling of TWU's petition for review until September 1, 1999, and take no action with respect to the petition prior to that date. As grounds, TWU and NSR assert that they have reached a settlement that would lead to dismissal of the remaining issues involved in the petition if the settlement is ratified by the TWU membership. Because this is a valid reason for granting the motion, and it is unopposed, the motion will be granted. It is ordered: 1. This proceeding will be held in abeyance until September 1, 1999. Decided: April 28, 1999 Service Date - April 29, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-33 (Sub-No. 126X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION--IN JEFFERSON COUNTY, WI On November 5, 1998, a decision and notice of interim trail use or abandonment (NITU) was served, authorizing a 180-day period for the City of Fort Atkinson to negotiate an interim trail use/rail banking agreement with Union Pacific Railroad Company (UP) for the 2.0-mile line of railroad on the Clyman Branch from the end of the line at milepost 110.0 to milepost 112.0 near Fort Atkinson, in Jefferson County, WI. The 180-day period under the NITU is scheduled to expire on May 7, 1999. On April 20, 1999, Wisconsin Department of Transportation (WisDot) on behalf of the City filed a request for an additional 180-day extension of the negotiation period. WisDot states that negotiations between the parties (the City and UP) are currently continuing in good faith, but more time is needed to finalize negotiations. By letter filed April 22, 1999, UP states that is agreeable to the NITU extension. The requested extension will be granted. It is ordered: 1. The negotiating period under the NITU is extended to November 3, 1999. Decided: April 27, 1999 Service Date - April 30, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-55(SUB-NO. 571X) CSX Transportation, Inc. -- Petition for Exemption In Saginaw County, Michigan In this proceeding, CSX Transportation, Inc. (CSXT)has filed a petition in connection with the abandonment and discontinuance of service on a line of railroad known as the Detroit Service Lane, Dean Subdivision, extending between milepost CBE-7.80 and Milepost CBE- 10.09, a distance of approximately 2.29 miles, within the city of Paines, Saginaw County, Michigan. CSXT states in its application that the line is used exclusively for the interchange of traffic between CSXT and Mid-Michigan Railroad, Inc. (MMRR) and that upon abandonment authority, CSXT will sell the line to MMRR for continued rail use. CSXT further states that there are no rail patrons location on the line it proposes to abandon. CSXT states that if MMRR does not acquire the line, CSXT will not consummate the abandonment and will allow its authority to abandon lapse. Despite the probable continuation of rail service by MMRR, the US Army Corps of Engineers recommends that CSXT contact the Corps Michigan office to determine whether the proposed abandonment requires authorization under Section 404 of the Federal Clean Water Act. Therefore, we recommend the following condition: Prior to abandonment, and to determine whether authorization is required under the Federal Clean Water Act, CSXT shall contact the US Army Corp of Engineers. Service Date - April 30, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 32760 (Sub-No. 33) 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 (Arbitration Review) In an arbitration decision that was issued on March 25, 1999, an implementing agreement was imposed, permitting the Union Pacific Railroad Company (UP) to create the Salina Hub in Salina, KS, and to relocate a home terminal from Pratt, KS, to Herington, KS. On April 14, 1999, Lyn Swonger and James Spaulding (petitioners), who are members of the United Transportation Union (UTU), appealed the arbitrator's decision on behalf of themselves and all other similarly situated trainmen. Petitioners assert that they have been notified by UP that it intends to implement the arbitration decision on May 1, 1999. Responses to the appeal are due May 4, 1999. On April 21, 1999, petitioners filed a motion to stay the effect of the arbitration decision pending a ruling on their petition to review the arbitration decision. Petitioners contend that there would be irreparable harm if the arbitration decision were not stayed because, if the arbitration decision takes effect, it would result in the relocation of the home terminal, requiring many employees to relocate and/or to travel a substantial distance to and from work. UTU and UP oppose the stay request. UTU and UP state that this dispute involves the establishment of a hub in Salina on the former Tucumcari Line, which had been owned by the Chicago, Rock Island and Pacific Railroad Company (RI) and subsequently by the St. Louis Southwestern Railway Company (SSW). According to UTU and UP, when SSW purchased the Tucumcari Line in 1980, an implementing agreement was negotiated in which RI employees were considered to have severed their employment relationship with RI and were given a new seniority date on the SSW, which was the date they were hired by the SSW. In addition, those employees were given point seniority on the Tucumcari Line with prior rights at such points, including Salina. The two individuals, who appealed the arbitrator's decision in this proceeding, had been employed by the RI and SSW on the Tucumcari Line. UTU and UP state further that UP's operating plan in the UP-SP merger proceeding indicated that the carrier intended to use the hub and spoke system to implement the merger, with one hub at Salina. UTU and UP indicate in their replies that they conducted negotiations under New York Dock conditions, and tentatively agreed on an implementing agreement for the Salina Hub. Apparently, the tentative agreement provided that employees would be dovetailed into the roster based upon their date of hire on the property at which they were last employed. UTU and UP state, however, that the UTU Associate General Chairperson representing former SSW employees refused to initial this agreement, because the employees from the RI objected to the seniority dates that would be used to form the new seniority roster. The matter was then submitted to arbitration under New York Dock. UTU and UP indicate that the arbitration decision adopted the tentative agreement that UP and UTU had negotiated and authorized UP to close its terminal in Pratt and transfer the affected employees to Herington. The standards governing a stay request are: (1) whether petitioner is likely to prevail on the merits of the appeal; (2) whether petitioner will be irreparably harmed in the absence of a stay; (3) whether issuance of a stay would substantially harm other parties; and (4) whether issuance of a stay is in the public interest. Petitioners have not addressed the stay criteria, and more importantly have not met the evidentiary burden that those criteria impose. A review of their petition and the replies of UTU and UP leads to the conclusion that the sought relief has not been shown to be warranted. Accordingly, the motion for stay will be denied. Petitioners challenge the arbitrator's factual determinations. They deny that the proposed implementing agreement represents a fair and equitable method of blending the rights of the RI trainmen with those of other affected employees. In addition, petitioners seek to set aside the arbitrator's finding that the transfer of employees from Pratt to Herington will not require them to report for work beyond a reasonable driving distance from their present locations. Typically, the Board defers to an arbitrator's determination regarding the manner of integrating seniority. Moreover, the arbitrator relied upon the prior award regarding similar issues arising out of the creation of the Salt Lake City and Denver Hubs. These circumstances indicate that it is unlikely that the Board will entertain petitioners appeal, let alone that petitioners will prevail on their appeal of the arbitrator's decision. Petitioners assert that certain employees will be harmed because they will have to relocate or will be required to travel a substantial distance. While the Board recognizes that relocations can be inconvenient, and under some circumstances rise to the level of irreparable injury, that is not the case here. UTU, in its reply, accurately observed that any such inconvenience here clearly will be adequately remedied by monetary compensation under the New York Dock protective conditions. Moreover, the implementing agreement imposed by the arbitrator provides for the payment of relocation benefits to any employee who either volunteers or is forced to relocate to Herington. UP notes that, as early as November 1998, 28 employees volunteered to relocate from Pratt to Herington and that no employees have been forced to relocate. Given these protections and the circumstances present here, petitioners have not met their burden of showing that they will suffer irreparable harm absent a stay of the arbitrator's decision. UTU asserts that, if a stay were granted, all the other affected employees, as well as UP, would be harmed. The union notes that petitioners are a small minority who seek to improve their own position at the expense of other employees and do not represent the best interests of all of the UTU's membership on each of the merged lines. Instead, UTU argues that petitioners seek to thwart implementation of a fair and rational integration of pre-existing seniority rosters. In addition, UP states that it will not realize the cost savings associated with the coordination, if a stay is imposed. UP claims that it has incurred considerable expense to prepare to implement the coordination and is paying lodging costs for engineers who have relinquished their leases in Pratt in anticipation of relocating to Herington. In addition, UP says that it is reprogramming computers and training employees and adjusting train schedules to coincide with the May 1 implementation. Thus, this standard also weighs in favor of denying the stay request. Petitioners have not explained how issuance of a stay would further the public interest. On the other hand, the arbitrator's decision determined that implementation of the hub and spoke operations at Salina would have public transportation benefits by increasing efficiencies. The increased efficiencies arguably result in reduced rates and improved service to the public without undue disruption of employees. A stay would likely delay the public transportation benefits. On balance, this standard weighs in favor of denying the stay request as well. For the reasons discussed above, petitioners motion for stay will be denied. It is ordered: 1. Petitioners motion for stay is denied. Decided: April 29, 1999 Service Date - April 30, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33735] Great Western Railway of Colorado, L.L.C.--Acquisition Exemption--The Burlington Northern and Santa Fe Railway Company Great Western Railway of Colorado, L.L.C. (GWR), a Class III rail carrier, has filed to acquire approximately 6.12 miles of rail lines owned by The Burlington Northern and Santa Fe Railway Company (BNSF) located: (1) between milepost 76.5 and milepost 75.48, near Riverside Avenue in Fort Collins, CO; (2) between milepost 74.57, near Linden Street, and milepost 74.3, at Willow Street, in Fort Collins; (3) all of the tracks, except Track No. 398, in BNSF's North Yard, in Fort Collins; (4) BNSF's Black Hollow Line located between BNSF's main line at milepost 77.36 and the end of the Black Hollow Line at milepost 79.53 near Fort Collins; and (5) BNSF's Busch Spur located between milepost 78.8 and milepost 79.9 in Busch, CO. GWR will operate the property. In conjunction with the acquisition of these rail lines, GWR will acquire approximately 7.1 miles of incidental overhead trackage rights over BNSF's rail line between milepost 74.5, in Fort Collins, and milepost 80.2, near Busch, and over Track No. 398, in BNSF's North Yard, in Fort Collins. GWR will also acquire by assignment from BNSF approximately .91 miles of overhead trackage rights over the Union Pacific Railroad Company's rail line located between Mullberry Street and Linden Street, in Fort Collins. The earliest the transaction could be consummated was April 16, 1999. Decided: April 20, 1999. Service Date - April 30, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33738] Rock & Rail, Inc.--Acquisition and Operation Exemption--The Burlington Northern and Santa Fe Railway Company Rock & Rail, Inc. (R&R), a Class III rail carrier, has filed to acquire The Burlington Northern and Santa Fe Railway Company's (BNSF) ownership interest in, and to acquire from BNSF a permanent and exclusive rail freight easement to operate over, and thus to operate, approximately 41.31 miles of rail line in Pueblo and Canon City, CO. The lines or rights intended to be acquired by R&R are as follows: (1) from milepost 160.30 in Canon City extending westerly for a distance of approximately 252 feet in Fremont County, CO; (2) from milepost 160.80 in Canon City extending easterly approximately 256 feet to serve the power plant at or near Canon City, in Fremont County, CO; (3) BNSF's trackage rights over Union Pacific Railroad Company's (UP) rail line between milepost 160.30 in Canon City and milepost 120.73 in Pueblo, a distance of 39.57 miles in Fremont and Pueblo Counties, CO; and (4) all of BNSF's connecting sidings, spurs, sidetracks and yard, industrial, team and switching tracks that are owned or leased by BNSF between the end of BNSF's track, approximately 252 feet west of milepost 160.30 in Canon City, and the connection between BNSF's line and UP's line at milepost 120.73 in Pueblo. In addition, BNSF will grant R&R incidental trackage rights over BNSF's rail line extending easterly from the connection between BNSF's line and UP's line at milepost 120.73 in Pueblo and approximately 2,243 feet over Track No. 254, approximately 2,240 feet over Track No. 256, and approximately 4,200 feet over BNSF's main line track to milepost 619.75, for the purpose of interchanging with BNSF in Pueblo, for a total distance of approximately 1.64 miles in Pueblo County, CO. The transaction was scheduled to be consummated on or after April 14, 1999. R&R has subsequently advised the Board that the transaction has been consummated and that R&R will shortly commence operations on the Canon City-Pueblo Line. The purpose of the transaction is to permit R&R, rather than BNSF, to serve the shippers at Canon City, Florence, and Portland, and to conduct overhead operations between Canon City and Pueblo. On April 14, 199, UP submitted a letter stating that it was not objecting to the requested exemption because it is permissive in nature and would not give BNSF the ability to transfer rights that it has no legal right to transfer. UP went on to assert that BNSF's trackage rights between milepost 147.01, near Portland, CO, and milepost 160.30, near Canon City, are not assignable by BNSF without UP's consent and that UP's consent has neither been sought nor granted. UP also asserted that, while there is a small power plant at Canon City, neither BNSF's solely owned track nor its trackage rights over UP in the vicinity of Canon City actually reach the power plant. UP thus disputes that R&R would have a right to serve the power plant. In issuing this notice, the Board is making no ruling on the contractual rights of the parties. Therefore, by invoking the class exemption, R&R has the right to perform common carrier service to the extent that it has or obtains the property rights to enable it to carry out the service. Decided: April 26, 1999. Service Date - April 30, 1999 ============================================================ Comments or questions about this compilation should be directed to Paul Moore at 71367.1057@Compuserve.com. ============================================================