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National Ass'n of Reversionary Property Owners v. Surface Transp. Bd.

ELR Citation: 29 ELR 20244
Nos. No. 97-1516, 158 F.3d 135/(D.C. Cir., 09/22/1998)

The court holds that it lacks jurisdiction to review property owners' claims that the Surface Transportation Board's (STB's) failure to provide individual notice to abutting landowners of trail conversion proposals violates due process. The Interstate Commerce Commission denied the property owners' petition for reconsideration of the individualized notice proposal in 1990, and the property owners' failed to seek circuit court review within 60 days, as required by the Hobbs Act. The property owners claim that a 1996 STB rulemaking reopened the notice issue. The court first holds that the three specific proposals in the 1996 rulemaking did not reopen the individual notice issue. The proposed change in timing of Federal Register notice was just that—a change in timing. The second change—adding the property owners and another group to the notice list—represented only a modification of a technique currently used by the STB to promote awareness of abandonment applications. And the third notice change—adding zip codes—is similarly only an easily accomplished modification to the already existing requirements of publication and notice to organizational entities. The court also holds that the rulemaking's references to the Interstate Commerce Commission Termination Act and its welcoming of public comments do not indicate that the STB was soliciting comments on the settled issue of individualized notice. The court further holds that the STB's responses to the property owners' comments did not reflect a genuine reconsideration of whether to provide actual notice. The mere act of repeating old reasons for an old policy in response to unsolicited comments is not the equivalent of reconsidering, and therefore reopening, the old issue.

Counsel for Petitioner
Cynthia L. Amara
Attorney General's Office
One Ashburton Pl., Boston MA 02108
(617) 727-2202/9173

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

Before Williams and Tatel, JJ.