Jump to Navigation
Jump to Content

Birt v. Surface Transp. Bd.

ELR Citation: 26 ELR 21609
Nos. 95-1211, 90 F.3d 580/(D.C. Cir., 08/02/1996)

The court upholds the Interstate Commerce Commission's (ICC's) approval of a rails-to-trails agreement between a railroad company and a municipality. The ICC had granted the railroad a certificate of interim trail use (CITU), which stayed the railroad's certificate of abandonment for 180 days while the railroad and the municipality negotiated the agreement. Eight days after the CITU expired and converted into a certificate of abandonment, the ICC granted the parties a 60-day extension of the negotiating time. The court first holds that the railroad did not consummate abandonment of the line when the CITU expired, which would have deprived the ICC of further jurisdiction over the right-of-way and allowed the reversionary interests of the neighboring landowners to vest. The railroad's discontinuation of rail service, cancellation of tariffs, and salvage of the rails and ties on the line are equally consistent with either abandonment or a temporary cessation of operations, which permits a rails-to-rails conversion but does not effect a permanent abandonment. Further, two letters in which the railroad referred to the line as abandonment do not adequately establish the railroad's intent to abandon the line, in light of its subsequent explanation of the two statements and its firmly expressed desire to continue rails-to-rails negotiations through the entire period at issue. The court next holds that the ICC has the authority to issue extensions of negotiating time. Although the rails-to-rails regulation indicates that the CITU shall run 180 days, it is silent as to whether extensions may be granted. The ICC's reading of its regulation is consistent with past practice, and its policy of granting extensions when presented with evidence of good-faith negotiations between a railroad and a potential trail sponsor does not compromise the goal of providing a defined window of opportunity for reaching agreement on a trails conversion. The court further holds that the ICC had the authority to grant the extension retroactively. An effective certificate of abandonment confers permissive authority on the railroad; until the railroad actually consummates abandonment, none occurs, and the ICC retains jurisdiction over the railroad's right-of-way. There is no reason why, in the absence of effective abandonment, the ICC could not exercise this ongoing authority to extend the CITU even though the existing one had expired. To the extent fairness concerns are implicated, they weigh against the landowner. Denying the extension solely on grounds of retroactivity would force the railroad and the municipality—who filed their request for an extension four days prior to expiration of the CITU—to bear the brunt of the agency's tardy consideration.

Counsel for Petitioner
Nels J. Ackerson
The Ackerson Group
1275 Pennsylvania Ave. NW, Ste. 1100, Washington DC 20004
(202) 628-1100

Counsel for Respondent
Jeffrey P. Kehne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: EDWARDS, Chief Judge, WALD and SENTELLE, Circuit Judges.