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Becker v. Surface Transp. Bd.

ELR Citation: 28 ELR 20533
Nos. No. 95-1481, 132 F.3d 60/(D.C. Cir., 12/30/1997)

The court holds that the Interstate Commerce Commission (ICC) lacked jurisdiction under the National Trails System Act to issue a second notice of interim trail use (NITU) authorizing a railroad to negotiate a trail use agreement. The court first holds that the railroad's right-of-way had been abandoned before the second NITU was issued. When the first NITU expired, the railroad had sought and been granted an exemption from the requirement of a certificate of public convenience and necessity, had ceased service, and had canceled its tariffs. In addition, the railroad had taken the further step of removing the rails and ties from the line. The railroad's additional behavior also signifies abandonment. The railroad expressed its intent not to continue trail use negotiations beyond a 180-day public use period. In its reply to a request to extend the negotiation period, the railroad stated unequivocally that the extension request had come too late and that the railroad was unprepared to agree to a further six-month extension. Given the railroad's intent to abandon and its expressed opposition to extension of the negotiation period, the court concludes that when the first NITU expired, abandonment was consummated and the ICC lost jurisdiction over the line.

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

Counsel for Respondents
Evelyn G. Kitay
Surface Transportation Board
1925 K St. NW, Washington DC 20423
(202) 565-1674

Before Edwards and Rogers, JJ.