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Nebraska Trails Council v. Surface Transp. Bd.

ELR Citation: 27 ELR 21560
Nos. 96-3656, 120 F.3d 901/(8th Cir., 07/31/1997)

The court holds that a Surface Transportation Board (STB) $150 fee on requests to use or acquire proposed-to-be-abandoned railroad rights-of-way for interim recreational trail use and rail banking is not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. The court first holds that a party requesting a trail use condition is an identifiable recipient of services provided by the STB from which that party derives a special benefit because the party can negotiate with the railroad to acquire the right-of-way and delay the abandonment process during the negotiation period. The court next holds that because the STB expends time and resources considering a trail use request, it is proper to impose a fee regardless of whether a certificate of interim trail use or abandonment or a notice of interim trail use or abandonment is issued or whether a party's trail use request is ultimately successful. Further, the cost of processing trail use requests is more appropriately borne by the requesting party because any benefits flowing to the public, who may one day use the right-of-way for recreational purposes, reasonably may be regarded as incidental in nature. Likewise, any benefits flowing to a railroad, which may someday enjoy the fruits of rail banking, reasonably may be regarded as incidental in nature. The $150 fee, reduced from the proposed $650 fee, and the fee waiver under 49 C.F.R. §1002.2(e) are neither impositions that will discourage parties from requesting trail use conditions, nor an improper attempt to recoup the STB's costs. The court finally holds that the $150 fee on a trail use request is adequately supported by the STB's cost study. The court, therefore, denies petitioner nongovernmental organizations' petition for review.

Counsel for Petitioners
Andrea C. Ferster
Law Offices of Andrea C. Ferster
1100 17th St. NW, Washington DC 20036
(202) 974-5142

Counsel for Respondents
Evelyn Katay
Surface Transportation Board
925 K St. NW, Ste. 600, Washington DC 20423
(202) 565-1558

Before Arnold, Richard S. and Arnold, Morris S., JJ.