-
5(&200(1'(' )25 )8//7(;7 38%/,&$7,21 5DLOURDG9HQWXUHVHWDO 1RV 3XUVXDQW WR 6L[WK &LUFXLW 5XOH Y6XUIDFH7UDQVS%G (/(&7521,& &,7$7,21 )(' $SS 3 WK &LU HWDO )LOH 1DPH D S FRQGXFWRIWKHSDUWLHVDSSHDULQJEHIRUHLW´ FLWLQJ&KHFNRVN\ 81,7('67$7(6&28572)$33($/6 Y 6(& )G '& &LU 6LOEHUPDQ - FRQFXUULQJ 7RXFKH5RVV &RY6(& )G G )257+(6,;7+&,5&8,7 &LU VHHDOVR3HWHUVY8QLRQ3DF5&R)G BBBBBBBBBBBBBBBBB WK &LU GHVFULELQJ RQH SXUSRVH RI DGPLQLVWUDWLYHH[KDXVWLRQUHTXLUHPHQWDVDOORZLQJDJHQF\WR GLVFRXUDJHSDUWLHV¶GLVUHJDUGRISURFHVVHVDQGSURFHGXUHV 7KXVZHFDQQRWILQGWKDWWKH67%DFWHGDUELWUDULO\LQYRLGLQJ 5$,/52$' 9(1785(6 ,1& ; 59,¶VWUDQVIHURIVXUIDFHULJKWVLQDFUHVRIWKHOLQHWR WKH3DUN'LVWULFW %2$5'0$1 1RV 72:16+,3 2+,2 &21&/86,21 DQG ! $FFRUGLQJO\ZHFRQFOXGHWKDWWKH67%KDGMXULVGLFWLRQWR %2$5'0$1 72:16+,3 3$5. DSSURYHWKHVDOHRIWKHUDLOOLQHDQGWKDWLWVOctober 4, 2000 ',675,&7 decision approving the sale was not erroneous to the extent 3HWLWLRQHUV that it ordered RVI to transfer its entire fee simple interest in the property constituting the rail line that was the subject of Y RVI’s abandonment petition. Further, we find the STB’s decisions to lower the salvage value of the track and materials and to order RVI to escrow $375,000 of the sale proceeds to 685)$&( 75$163257$7,21 pay for track restorations and repairs were not arbitrary or %2$5'DQG81,7(' 67$7(6 capricious. The STB also did not err in voiding the "Grade 2) $0(5,&$ Separated Crossing Settlement Agreement" ("GSCSA") 5HVSRQGHQWV entered into between RVI and Boardman Township and RVI’s transfer of surface rights in 4.012 acres of the line to the Park District. )RU WKH UHDVRQV VHW IRUWK DERYH ZH &2/80%,$1$ &2817< 3257 WKHUHIRUH$)),50WKHGHFLVLRQVRIWKH67% $87+25,7<DQG&(175$/ &2/80%,$1$ 3(11649 U.S.C. § 10502, and for authority to abandon the rail line Louisiana,
451 U.S. 725, 746 (1981)). pursuant to
49 U.S.C. § 10903(a). For the reasons set forth below, we AFFIRM the STB’s orders. ,%$&.*5281' %HFDXVH WKH SDUWLHV KDYH QRW UDLVHG WKH PDWWHU ZH QHHG QRW DGGUHVV whether the Ohio statutes at issue are preempted by the Federal Railroad $6WDWXWRU\DQG5HJXODWRU\)UDPHZRUN Safety Act (FRSA),49 U.S.C. §§ 20101-20153. See CSX Transp. Inc. v. City of Plymouth,
283 F.3d 812, 817 (6th Cir. 2002) (noting that the &RQJUHVVKDVUHJXODWHGWKHDEDQGRQPHQWRIUDLOURDGOLQHV FRSA preempted WKH 0LFKLJDQ VWDWXWH SURKLELWLQJ WUDLQV IURP FRQWLQXRXVO\ EORFNLQJ JUDGH FURVVLQJV IRU PRUH WKDQ ILYH PLQXWHV ZKLOH VLQFHWKHVHFRQGGHFDGHRIWKHODVWFHQWXU\ZKHQLWHQWUXVWHG GHFOLQLQJ WR DGGUHVV ZKHWKHU WKH VWDWXWH ZDV SUHHPSWHG E\ E RI WKH ,QWHUVWDWH &RPPHUFH &RPPLVVLRQ ³WKH ,&&´ ZLWK WKH ,&&7$ FI 7\UUHOO Y 1RUIRON 6 5\ &R )G WK &LU MXULVGLFWLRQ RYHU VXFK DEDQGRQPHQWV SXUVXDQW WR WKH ILQGLQJ WKDW WKH GLVWULFW FRXUW HUUHG LQ FRQFOXGLQJ WKDW 2KLR WUDFN FOHDUDQFH UHJXODWLRQ ZDV SUHHPSWHG E\ E KROGLQJ WKDW WKH 2KLR UXOH UHTXLULQJ DW OHDVW IRXUWHHQ IHHW RI FOHDUDQFH EHWZHHQ WKH FHQWHUV RI 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO 7UDQVSRUWDWLRQ$FWRI 6WDW7RH[SHGLWHWKH49 U.S.C. § 10501(b). As explained by the Ninth Circuit in DEDQGRQPHQW SURFHVV &RQJUHVV PRGLILHG WKH ,QWHUVWDWH City of Auburn v. United States,
154 F.3d 1025, 1030 (9th &RPPHUFH $FW ZLWK WKH HQDFWPHQW RI WKH 5DLOURDG Cir. 1998): 5HYLWDOL]DWLRQDQG5HJXODWRU\5HIRUP$FWRI 5$FW 3XE / 1R 6WDW ZKLFK DGGHG D Section 10501 of the ICCTA, which governs the STB's SURYLVLRQ 86& QRZ 86& WKDW jurisdiction, states the [B]oard will have exclusive VXVSHQGHG DEDQGRQPHQW RI D OLQH IRU XS WR VL[ PRQWKV WR jurisdiction over "the construction, acquisition, operation, DOORZ WLPH IRU D SURVSHFWLYH SXUFKDVHU WR FRQVXPPDWH WKH abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State."
49 U.S.C. § 10501(b)(2) (1997). The same section states that "the remedies provided under this part 3XUVXDQW WR WKH ,QWHUVWDWH &RPPHUFH $FW RI 6WDW with respect to regulation of rail transportation are &RQJUHVV FUHDWHG WKH ,&& WR UHJXODWH UDLOURDGV 6HH &KLFDJR exclusive and preempt the remedies provided under 1: 7UDQVS &R Y .DOR %ULFN 7LOH &R 86 Federal or State law."
49 U.S.C. § 10501(b) (1997). . . . UHFRJQL]LQJ WKH ,QWHUVWDWH &RPPHUFH $FW DV ³DPRQJ WKH PRVW SHUYDVLYH DQG FRPSUHKHQVLYH RI IHGHUDO UHJXODWRU\ VFKHPHV´ 8QLWHG 6WDWHV Y The section unambiguously states: "The authority of the %DOWLPRUH 25 &R 86 ³7KH ,QWHUVWDWH Board under this subchapter is exclusive."
Id.&RPPHUFH $FW LV RQH RI WKH PRVW FRPSUHKHQVLYH UHJXODWRU\ SODQV WKDW &RQJUHVV KDV HYHU XQGHUWDNHQ´ 0LG$PHULFDQ (QHUJ\ &R Y 67%
154 F.3d at 1030(emphasis in original). )G WK &LU QRWLQJ WKDW ³WKH ,QWHUVWDWH &RPPHUFH $FW SURYLGHG IRU D VWULFW UHJXODWRU\ IUDPHZRUN WR JRYHUQ WKH IHGHUDO UDLOURDG LQGXVWU\´ &LW\ RI $XEXUQ Y 8QLWHG 6WDWHV )G In City of Auburn, the Ninth Circuit, endorsing a "broad reading of Congress’ preemption intent, not a narrow one," WK &LU QRWLQJ WKDW ³&RQJUHVV¶ DXWKRULW\ WR UHJXODWH UDLOURDGV LV ZHOO HVWDEOLVKHG´ rejected the City’s argument that Congress, through the ICCTA, only intended preemption of economic regulation of ,QLWLDOO\ WKH ,QWHUVWDWH &RPPHUFH $FW GLG QRW VXEMHFW UDLOURDG the railroads. Finding that Congressional intent was clear and DEDQGRQPHQWV WR WKH MXULVGLFWLRQ RI WKH ,&& 6HH +D\ILHOG 86 DW +RZHYHU ZLWK WKH SDVVDJH RI WKH 7UDQVSRUWDWLRQ $FW RI that preemption of rail activity is a valid exercise of &RQJUHVV VRXJKW WR SUHHPSW DFWLRQV E\ VWDWH DQG ORFDO DXWKRULWLHV WKDW Congressional power under the Commerce Clause, the Ninth SUHYHQWHG UDLOURDGV IURP DEDQGRQLQJ XQSURILWDEOH OLQHV 5/7' 5\ &RUS Circuit affirmed the STB’s finding that state and local Y 67% )G WK &LU QRWLQJ WKDW ³&RQJUHVV VRXJKW environmental review laws were preempted pursuant to WR EDODQFH WKH UDLOURDG FRPSDQLHV¶ QHHG WR GLVSRVH RI WUDFNDJH WKDW ZDV QR § 10501(b)(2). ORQJHU SURILWDEOH ZLWK WKH SXEOLF¶V QHHG IRU D ZRUNLQJ LQWHUVWDWH WUDFN V\VWHP´ FLWLQJ 6WHYHQ 5 :LOG $ +LVWRU\ RI 5DLOURDG $EDQGRQPHQWV 7UDQVS /- DQG &RORUDGR Y 8QLWHG 6WDWHV 86 The Fifth Circuit has also found preemption under 49 )RU WKH PRVW SDUW IURP XQWLO &RQJUHVV VHW QR U.S.C. § 10501(b). In Friberg, 267 F.3d at 439, the Fifth WLPH OLPLW IRU DEDQGRQPHQWV 6HH +D\ILHOG 86 DW QRWLQJ Circuit ruled that suits against the railroad (KCS) for WKDW ³>U@DLOURDGV FRQVHTXHQWO\ IRXQG WKHPVHOYHV HQPHVKHG LQ OHQJWK\ negligence were preempted by federal law under 49 U.S.C. SURFHHGLQJV´ ZKLOH DWWHPSWLQJ WR ³XQEXUGHQ WKHPVHOYHV SURPSWO\ RI XQSURILWDEOH OLQHV´ &RQVRO 5DLO &RUS Y 67% )G '& § 10501(b). In that case, the plaintiffs, who operated a &LU ³)RU PRVW RI WKLV SHULRG &RQJUHVV VHW QR WLPH OLPLW IRU landscape nursery, alleged that they lost business and DEDQGRQPHQW SURFHHGLQJV´ eventually were forced to close their business because their 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO state law so conflict that it is impossible for a party to comply DFTXLVLWLRQRIDUDLOOLQHIURPDQDEDQGRQLQJFDUULHU6HH with both simultaneously, or where enforcement of state law +D\ILHOG155Y&KLFDJR 1:7UDQVS&R86 prevents the accomplishment of the full purposes and 7KH,QWHUVWDWH&RPPHUFH$FWZDVIXUWKHU objectives of federal law. See Cipollone v. Liggett Group, DPHQGHGE\WKHSDVVDJHRIWKH6WDJJHUV5DLO$FWRI Inc.,505 U.S. 504, 516 (1992); Friberg v. Kansas City S. Ry. 3XE / 1R 6WDW ZKLFK DGGHG D Co.,
267 F.3d 439, 442 (5th Cir. 2001). "If the statute IRUFHGVDOH SURYLVLRQ WR WKH IRUPHU 86& contains an express preemption clause, the task of statutory DOORZLQJWKH,&&WRVHWWKHSULFHDQGRWKHUWHUPVRIVDOHZKHQ construction must in the first instance focus on the plain DSDUW\WRWKHVDOHUHTXHVWHGLW,GDW ³7KHXQGHUO\LQJ wording of the clause, which necessarily contains the best UDWLRQDOHRI UHSUHVHQWVDFRQWLQXDWLRQRI&RQJUHVV¶ evidence of Congress’ preemptive intent." CSX Transp. Inc. HIIRUWVWRDFFRPPRGDWHWKHFRQIOLFWLQJLQWHUHVWVRIUDLOURDGV v. Easterwood,
507 U.S. 658, 664 (1993). Although there is WKDW GHVLUH WR XQEXUGHQ WKHPVHOYHV TXLFNO\ RI XQSURILWDEOH a presumption under the Supremacy Clause that Congress did OLQHV DQG VKLSSHUV WKDW DUH GHSHQGHQW XSRQ FRQWLQXHG UDLO not intend to preempt state law, "an assumption of nonpre- VHUYLFH´ *65RRILQJ3URGV&RY67%)G emption is not triggered when the State regulates in an area WK&LU ³*65RRILQJ,, ³7KH6WDJJHUV5DLO$FWRI where there has been a history of significant federal QRZ FRGLILHG DW 86& ZDV HQDFWHG WR presence." United States v. Locke,
529 U.S. 89, 108 (2000). DGGUHVVFRQFHUQVDERXWWKHGHWHULRUDWLQJUDLOVHUYLFHSURYLGHG RQ VRPH RI WKH VHFRQGDU\ UDLOURDG OLQHV WKURXJKRXW WKH As set forth in
49 U.S.C. § 10501(b): FRXQWU\´ &RQVRO5DLO&RUSY,&& )G '& &LU QRWLQJ WKDW WKH SXUSRVH RI WKH IRUFHGVDOH (b) The jurisdiction of the Board over-- (1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and 7KH REMHFWLYHV RI WKH SUHVHQW 86& WKH IRUPHU (2) the construction, acquisition, operation, 86& DUH WR SUHVHUYH UDLO VHUYLFH IRU VKLSSHUV RYHU D OLQH WKDW abandonment, or discontinuance of spur, industrial, team, ZRXOG RWKHUZLVH EH DEDQGRQHG ZKLOH SHUPLWWLQJ WKH RZQHU RI DQ switching, or side tracks, or facilities, even if the tracks 6HH XQSURILWDEOH UDLO OLQH WR VHOO LW SURPSWO\ IRU LWV IDLU PDUNHW YDOXH are located, or intended to be located, entirely in one 5DLOURDG 7UDQVSRUWDWLRQ 3ROLF\ $FW RI +HDULQJV RQ 6 EHIRUH WKH 6HQDWH &RPP RQ &RPPHUFH 6FLHQFH DQG 7UDQVSRUWDWLRQ 6 5HS 1R State, is exclusive. Except as otherwise provided in this DW WK &RQJ VW 6HVV QRWLQJ WKDW WKLV VHFWLRQ part, the remedies provided under this part with respect ³VHWV XS D SURFHGXUH ZKHUH UDLO OLQHV DSSURYHG IRU DEDQGRQPHQW PD\ EH to regulation of rail transportation are exclusive and SXUFKDVHG RU VXEVLGL]HG LQ RUGHU WR FRQWLQXH UDLO VHUYLFH´ +5 5HS 1R preempt the remedies provided under Federal or State DW WK &RQJ G 6HVV UHSULQWHG LQ law. 86&&$1 DW QRWLQJ WKDW WKLV VHFWLRQ ZLOO ³DVVLVW VKLSSHUV ZKR DUH VLQFHUHO\ LQWHUHVWHG LQ LPSURYLQJ UDLO VHUYLFH ZKLOH DW WKH VDPH WLPH SURWHFWLQJ FDUULHUV IURP SURWUDFWHG OHJDO SURFHHGLQJV ZKLFK DUH FDOFXODWHG PHUHO\ WR WHGLRXVO\ H[WHQG WKH DEDQGRQPHQW SURFHVV´ 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO SURYLVLRQLV³QRWVLPSO\WKHPDLQWHQDQFHRIUDLOOLQHVEXWWKH from its interpretation of two provisions of the OFA statute: FRQWLQXDWLRQRIUDLOVHUYLFH´ HPSKDVLVLQRULJLQDO the common carrier obligations of § 10904(f)(4)(A) and the STB’s authority to set the terms and conditions of a forced $IWHUWKH,&&FHDVHGWRH[LVWHIIHFWLYH-DQXDU\ sale pursuant to § 10904(f)(1). Section 10904(f)(4)(A) bars SXUVXDQW WR WKH Interstate Commerce Commission a purchaser of a rail line from transferring or discontinuing Termination $FWRI49 U.S.C. §§ 10101-16106(1997) service during the two years after the purchase, and restricts ³WKH,&&7$´ DXWKRULW\RYHUWKHDEDQGRQPHQWRIUDLOURDG the purchaser from transferring the line to anyone but the OLQHVSDVVHGWRWKH6XUIDFH7UDQVSRUWDWLRQ%RDUG ³WKH67%´ seller for a five-year post-sale period. Thus, the STB acted 6HH 86& *6 5RRILQJ ,, )G DW within its authority when it recognized that the GSCSA 0LG$PHULFDQ(QHUJ\&RY67% )G Q impeded a line owner’s ability to perform rail operations by WK&LU 5/7'5\&RUSY67%)G conditioning a line owner’s full resumption of service with WK&LU &RQVRO5DLO&RUSY67% )G the obligation to complete the projected improvements set '& &LU QRWLQJ WKDW ³PDQ\ IXQFWLRQV RI WKH ,&& forth in the agreement. It was also reasonable for the STB to LQFOXGLQJ DXWKRULW\ RYHU DEDQGRQPHQW SURFHHGLQJV ZHUH view the provisions of the GSCSA as an intrusion onto its WUDQVIHUUHGWRWKH67%LQWKH'HSDUWPHQWRI7UDQVSRUWDWLRQ´ § 10904(f)(1) authority to fix the terms and conditions of an 7KH67%LVQRZWKHIHGHUDODJHQF\ZLWKH[FOXVLYHMXULVGLFWLRQ OFA sale. Noting that "section 10904 represents a clear RYHU WUDQVSRUWDWLRQ E\ UDLOURDG )ULHQGV RI WKH $WJOHQ legislative determination that rail service should be preserved 6XVTXHKDQQD7UDLO,QFY67%)GQ G whenever there is an offeror willing to provide for continued &LU FLWLQJ 86& D 7KXV LI D service," the STB did not act unreasonably in voiding the UDLOURDGOLQHIDOOVZLWKLQLWVMXULVGLFWLRQWKH67%¶VDXWKRULW\ GSCSA to the extent it imposed obligations on parties other RYHU DEDQGRQPHQW LV ERWK H[FOXVLYH DQG SOHQDU\ 6HH than Boardman Township and RVI, and to the extent it 3UHVHDXOW Y ,&& 86 FLWLQJ &KLFDJR required construction of an overpass or underpass before the 1RUWK:HVWHUQ7UDQVS&RY.DOR%ULFN 7LOH&R86 5/7'5\&RUS)GDW resumption of rail service. Because the STB has acted rationally and in accordance with law, we therefore affirm the ,QDGGLWLRQPRVWRIWKHSURYLVLRQVRIWKHIRUPHU,QWHUVWDWH order voiding the GSCSA. &RPPHUFH$FWZHUHUHHQDFWHGLQWKH ICCTA. 0LG$PHULFDQ )GDWQ6SHFLILFDOO\WKH,&&7$UHFRGLILHGWKH Finally, we note that the ICCTA preempts the Ohio state IRUPHU DV DPHQGLQJWKHVWDWXWHWROLPLWWKH statutes in question to the extent that they intrude upon the SHULRGLQZKLFKWKH67%VHWWKHWHUPVDQGFRQGLWLRQVRIWKH jurisdiction of the STB with regard to the regulation of rail IRUFHGVDOHWRWKLUW\GD\VDQGWKHGXUDWLRQRIDQ\VXEVLG\IRU transportation under § 10501(b). Under the Supremacy Clause, U.S. Const. art. 6, cl. 2, federal law preempts state or local law in various ways: (1) express preemption where the intent of Congress to preempt state law is clear and explicit; ,Q 3UHVHDXOW Y ,&& 86 WKH &RXUW QRWHG WKDW &RQJUHVV H[SUHVVHG FRQFHUQ DERXW ³WKH VKULQNLQJ UDLO WUDFNDJH´ 86 (2) field preemption where Congress’ regulation of a field is DW $V QRWHG E\ -XVWLFH %UHQQDQ ³,Q WKH 1DWLRQ¶V UDLOZD\ V\VWHP so pervasive or the federal interest is so dominant that an UHDFKHG LWV SHDN RI PLOHV >LQ @ RQO\ DERXW PLOHV intent can be inferred for federal law to occupy the field >ZHUH@ LQ XVH DQG H[SHUWV SUHGLFW WKDW PLOHV ZLOO EH DEDQGRQHG exclusively; and (3) conflict preemption, where federal and HYHU\ \HDU WKURXJK WKH HQG RI WKLV FHQWXU\´ ,G 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO is reactivated for rail service to submit the plans ". . . and FRQWLQXHGUDLOVHUYLFH6HH1DW¶O$VV¶QRI5HYHUVLRQDU\3URS metes and bounds descriptions of any property to be 2ZQHUVY67%)G '&&LU (noting appropriated for the construction of the Crossing Project that "[t]he ICCTA made some changes to the abandonment . . . ," a later provision overrides the time period and application process, such as eliminating the processing requires, among other things, completion of the project timetable and requiring that offers of financial assistance and submission to [Boardman Township] of a 2-year [OFA] be filed within four months of an abandonment maintenance bond on the improvements, before rail application, see49 U.S.C. § 10904(c)"). service can be resumed in full. $ UDLO FDUULHU SURYLGLQJ WUDQVSRUWDWLRQ VXEMHFW WR WKH 559HQWXUHV
2000 WL 1125904, at *2. MXULVGLFWLRQ RI WKH 67% PD\ DEDQGRQ LWV UDLOURDG OLQH RU GLVFRQWLQXH WKH RSHUDWLRQ RI DOO UDLO WUDQVSRUWDWLRQ RYHU LWV On appeal, Boardman Township challenges the STB’s UDLOURDGOLQHRQO\DVDXWKRUL]HGXQGHUWKHVWDWXWH 86& decisions declaring the GSCSA void and unenforceable D 7RDEDQGRQDUDLOURDGOLQHRUGLVFRQWLQXH against CCPA, claiming that the purpose of the GSCSA was RSHUDWLRQRIUDLOVHUYLFHRQDUDLOOLQHDUDLOFDUULHUPXVWILOH not to interfere with rail operations, but to secure the health, DQ DSSOLFDWLRQ ZLWK WKH 67% VHHNLQJ SULRU DSSURYDO RU DQ safety, and well-being of the residents of Boardman Township H[HPSWLRQ 86& D D $ pursuant to Ohio Rev. Code § 519.02, and to avoid the &)5 VHH )ULHQGV RI WKH $WJOHQ imposition of liability on political subdivisions "for injury, 6XVTXHKDQQD7UDLO)GDW ³$UDLOFDUULHULQWHQGLQJ death, or loss to persons or property caused by their failure to WRDEDQGRQDQGWREHUHOHDVHGIURPLWVREOLJDWLRQVWRUHWDLQRU keep public roads, highways, streets, avenues, alleys, RSHUDWHDQ\SDUWRILWVUDLOURDGOLQHVPXVWILOHDQDSSOLFDWLRQ sidewalks, bridges, aqueducts, viaducts, and public grounds WRGRVRZLWKWKH67%DQGVXFKDEDQGRQPHQWPXVWDGKHUHWR within the political subdivisions open, in repair, and free from FHUWDLQ HVWDEOLVKHG SURFHGXUHV´ A line owner may nuisance" under Ohio Rev. Code § 2744.02(B)(3). Boardman "abandon any part of its railroad lines," 49 U.S.C. Township contends that the STB’s goal of continued rail § 10903(d)(1), but cannot do so without the permission of the service, where appropriate, should not wholly displace its STB. 49 U.S.C.§ 10903(a)(1)(A); VHH .XOPHU DQG concerns for public safety and its duty to its citizens arising 6FKXPDFKHUY67%)G WK&LU under state law. At the outset, we note that Boardman Township entered 3XUVXDQW WR 86& D UDLOURDGV DV FRPPRQ FDUULHUV into the GSCSA with RVI on November 5, 1999. Because KDYH DQ REOLJDWLRQ WR SURYLGH UDLO VHUYLFH XSRQ UHDVRQDEOH UHTXHVW EXW RVI had no legal right to transfer any property interests ³WKH FRPPRQ FDUULHU REOLJDWLRQ LV QRW DEVROXWH´ *6 5RRILQJ ,, )G associated with the rail line after filing its abandonment DW $EDQGRQPHQW FRQVLVWV RI ³D SHUPDQHQW RU LQGHILQLWH FHVVDWLRQ RI petition, we thereby uphold the STB’s invalidation of the UDLO VHUYLFH ZKLFK WHUPLQDWHV D UDLO FDUULHU¶V SXEOLF VHUYLFH REOLJDWLRQ´ GSCSA agreement. *LEERQV Y 8QLWHG 6WDWHV )G WK &LU "An abandoned railroad corridor is one that is no longer used for rail service In addition, we note that the STB acted within its authority and is removed from the national transportation system." Nat’l Ass’n of Reversionary Prop. Owners, 158 F.3d at 137 n.1 (citing Presault, 494 by invalidating the agreement on public policy grounds. U.S. at 6 n.3). ³$ OLQH WKDW LV QR ORQJHU LQ XVH EXW KDV EHHQ RIILFLDOO\ Here, the STB’s decision to invalidate the GSCSA stemmed DEDQGRQHG PD\ EH UHDFWLYDWHG ODWHU DQG LV WHUPHG µGLVFRQWLQXHG¶´ ,G 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO ³5DLOFDUULHUVPXVWREWDLQ67%DXWKRUL]DWLRQWRDEDQGRQUDLO 5. The STB did not err in voiding the "Grade Separated VHUYLFHRYHUWKHLUOLQHV´ *65RRILQJ3URGV&RY67% Crossing Settlement Agreement" ("GSCSA") entered )G WK&LU ³*65RRILQJ,´ (WKDQ$OOHQ into between RVI and Boardman Township ,QFY0DLQH&HQW55&R)6XSS '9W QRWLQJWKDW³WKHTXDVLSXEOLFQDWXUHRIUDLOURDGVHQWDLOV In its January 7, 2000 decision, the STB granted CCPA’s DKLJKHUGHJUHHRISXEOLFUHVSRQVLELOLW\WKDQLVUHTXLUHGRI request to declare the GSCSA unenforceable against it, PRVW SULYDWH FRPSDQLHV´ A rail line owner is generally finding that enforcement of the GSCSA against CCPA would obligated to maintain a diagram of the rail system it operates, unreasonably interfere with CCPA’s purchase of the rail line and if the owner wishes to abandon, it must "identify each and its future fulfillment of common carrier obligations. The railroad line for which the rail carrier plans to file an STB reiterated these conclusions in its October 4, 2000 application to abandon."49 U.S.C. § 10903(c)(2)(B). 49 decision, denying Boardman Township’s request for a stay C.F.R. § 1152.22(a)(4) further specifies that the information pending appeal of the January 7, 2000 decision. In both comprising the abandonment application include: decisions, the STB viewed the GSCSA as contrary to the public interest in continued rail service. The STB’s January [a d]etailed map of the subject line on a sheet not larger 7, 2000 decision provides a summary of the provisions of the than 8x10 ½ inches, drawn to scale, and with the scale GSCSA: shown thereon. The map must show, in clear relief, the exact location of the rail line to be abandoned or over Specifically, the [GSCSA] states that "RVI or its which service is to be discontinued and its relation to successors and assigns (hereinafter referred to as ‘Line other rail lines in the area, highways, water routes, and Owner’) agree to undertake the necessary planning, population centers. construction, and future maintenance of a grade separated crossing at State Road 224 and at other such road
49 C.F.R. § 1152.22(a)(4). crossings as may be determined by [Boardman Township] . . . ." Designating it as the "Crossing 7KH 67% DXWKRUL]HV OLQH DEDQGRQPHQWV LQ WZR ZD\V Project" the [GSCSA] requires the Line Owner, within 3 5HGPRQG,VVDTXDK5\3UHV$VV¶QY67%)G months from the date the line is reactivated for continued Q WK &LU )LUVW WKH 67% PD\ SHUPLW WKH rail service, to prepare and submit for the approval of DEDQGRQPHQW RI D UDLOURDG OLQH E\ D UDLO FDUULHU RU WKH [Boardman Township] and various state authorities GLVFRQWLQXDQFHRIUDLOVHUYLFHLILWILQGVWKDWSUHVHQWRUIXWXUH detailed plans and cost estimates for the acquisition of SXEOLFFRQYHQLHQFHDQGQHFHVVLW\VXSSRUWVVXFKDEDQGRQPHQW additional property necessary for the construction of the RUGLVFRQWLQXDQFH 86& G 7RLPSOHPHQW new grade separated crossing, including adjustments to WKLVVWDQGDUGWKH67%EDODQFHVWKHSRWHQWLDOKDUPWRDIIHFWHG the public highway, which will carry the rail line over or VKLSSHUV DQG FRPPXQLWLHV DJDLQVW WKH SUHVHQW DQG IXWXUH under Route 224 and other designated road crossings. EXUGHQ WKDW FRQWLQXHG RSHUDWLRQV ZRXOG LPSRVH RQ WKH According to the [GSCSA], the Line Owner is UDLOURDGDQGRQLQWHUVWDWHFRPPHUFH6HH&RORUDGRY8QLWHG responsible for all the costs and expenses associated with 6WDWHV86 5HGPRQG,VVDTXDK the Crossing Project. While these specific terms state )G DW QRWLQJ WKDW ³&RQJUHVV VRXJKW WR EDODQFH WKH that the Line Owner has 3 months from the date the line UDLOURDG FRPSDQLHV¶ QHHG WR PDQDJH LWV WUDFNV LQ DQ 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO Kovalchick contract initially and it should not be able to HFRQRPLFDOO\HIILFLHQWPDQQHUZLWKWKHSXEOLF¶VQHHGIRUD profit from withholding information pertinent to the OFA IXQFWLRQLQJLQWHUVWDWHUDLOURDGV\VWHP´ 7KH67%PD\DOVR process. To hold otherwise would be to reward RVI for DXWKRUL]HDQDEDQGRQPHQWE\JUDQWLQJDQH[HPSWLRQIURPWKH undermining the integrity of the OFA process. Moreover, we FHUWLILFDWLRQSURFHVV6HH 86& D +RZHYHU note that RVI does not contend that the Kovalchick contract RQFHDUDLOOLQHKDVEHHQSURSHUO\DEDQGRQHGWKH67%ORVHV is unenforceable or that RVI would be able to sell the track to MXULVGLFWLRQ3UHVHDXOW 86DWQ 5/7'5\&RUS anyone other than Kovalchick. Therefore, the STB provided )GDW &RQVRO5DLO&RUS )GDW a reasoned explanation for revaluing the track and materials in accordance with the terms of the Kovalchick contract. 7KH ,&&7$ SURYLGHV IRU RIIHUV RI ILQDQFLDO DVVLVWDQFH 2)$ WR DYRLG WKH DEDQGRQPHQW RI UDLO OLQHV 86& b. Escrow of Funds for Repairs &)5 DQG IRU WKH VDOH VXEMHFW WR FRQGLWLRQVLPSRVHGE\WKH67%RIDEDQGRQHGUDLOSURSHUWLHV RVI also challenges the STB’s action in the October 4, WKDW DUH DSSURSULDWH IRU SXEOLF XVH 86& 2000 decision requiring CCPA to place $375,000 of the 6HFWLRQ E GLUHFWV D UDLO FDUULHU VHHNLQJ DXWKRULW\ WR purchase price in an escrow account to ensure that RVI paid DEDQGRQ D OLQH SXUVXDQW WR 86& WR SURYLGH for restorations to the track and signals. The STB ordered the SURPSWO\ WR D SDUW\ FRQVLGHULQJ DQ 2)$ D UHSRUW RQ WKH creation of the escrow account because RVI had authorized SK\VLFDOFRQGLWLRQRI³WKDWSDUWRIWKHUDLOURDGOLQHLQYROYHG state workers to pave over parts of the track and damage LQWKHSURSRVHGDEDQGRQPHQW ´WKHWUDIILFUHYHQXHDQGRWKHU signals during its ownership of the embargoed line. RVI GDWDQHFHVVDU\WRGHWHUPLQHWKHDPRXQWRIDQQXDOILQDQFLDO argues that the escrow order was arbitrary because it was not DVVLVWDQFHQHHGHG³WRFRQWLQXHUDLOWUDQVSRUWDWLRQRYHUWKDW under a legal obligation to maintain the line for common SDUWRIWKHUDLOURDGOLQH ´DQGDQHVWLPDWHRIWKHPLQLPXP carrier operations due to its embargo status at the time that SXUFKDVHSULFHUHTXLUHG³WRNHHSWKHOLQHRUDSRUWLRQRIWKH RVI authorized the pavement of parts of the line and the OLQHLQRSHUDWLRQ´ 86& E disconnection of signals. RVI also claims that the STB’s escrow order was an unwarranted punitive measure. 7KH 2)$ SURYLVLRQV RI WKH VWDWXWH JXDUDQWHH DQ\ ³ILQDQFLDOO\UHVSRQVLEOH´SDUW\WKHULJKWWRDFTXLUHDUDLOOLQH RVI fails to demonstrate that the STB’s decisions in this WR SURYLGH IRU FRQWLQXHG UDLO VHUYLFH 86& regard were arbitrary. Although RVI was not obligated to 8QGHU F DSURVSHFWLYH2)$SXUFKDVHU³PD\RIIHU provide service on the line during the pendency of the WRVXEVLGL]HRUSXUFKDVHWKHUDLOURDGOLQHWKDWLVVXEMHFWRI´DQ embargo, see GS Roofing I, 143 F.3d at 391, the STB acted DEDQGRQPHQWDSSOLFDWLRQ.XOPHU)GDW ³7KH reasonably in finding that RVI had an obligation to pay for 2)$SURYLVLRQVFUHDWHDIRXUPRQWKZDLWLQJSHULRGZKHUHLQ any damage to the line. Further, the record shows that, in a µDQ\SHUVRQPD\RIIHUWRVXEVLGL]HRUSXUFKDVHWKHUDLOURDG series of letters from RVI Project Manager Dennis Matey to OLQH WKDW LV WKH VXEMHFW¶ RI DQ DEDQGRQPHQW DSSOLFDWLRQ state and local officials in Ohio, RVI acknowledged that it F ´ A party must file its OFA within ten days of would be responsible for any repair and reconnection costs. a decision from the STB granting a petition for abandonment Considering RVI’s conduct since acquiring the rail line, the or exemption.
49 U.S.C. § 10904(c); 49 C.F.R. STB, quite wisely, required an escrow of funds to repair the § 1152.27(c)(1)(i)(B). After a prospective purchaser has damage to the track done with RVI’s authorization. "offered financial assistance regarding that part of the railroad 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO line to be abandoned or over which rail transportation is to be 7KH67%¶VGHFLVLRQVWRORZHUWKHVDOYDJHYDOXHRIWKH discontinued,"
49 U.S.C. § 10904(d)(1) obligates the STB to WUDFN DQG PDWHULDOV DQG WR RUGHU 59, WR HVFURZ decide if the prospective purchaser is "financially RI WKH VDOH SURFHHGV WR SD\ IRU WUDFN responsible." 8QGHU 86& D D ³ILQDQFLDOO\ UHVWRUDWLRQV DQG UHSDLUV ZHUH QRW DUELWUDU\ RU UHVSRQVLEOHSHUVRQ´LVGHILQHGWREH FDSULFLRXV DSHUVRQZKR±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f a party files a timely OFA, and the FURVVLQJV DUULYLQJ DW D QHW VDOYDJH YDOXH RI STB finds that the party is "financially responsible," then the 6HYHUDOPRQWKVODWHUWKH67%UHYLVLWHGLWVWUDFNDQGPDWHULDOV STB must postpone the abandonment of the line. 49 U.S.C. YDOXDWLRQ DIWHU UHFHLYLQJ QHZ HYLGHQFH IURP &&3$ § 10904(d)(2). %HWZHHQWKH-DQXDU\DQG2FWREHUGHFLVLRQV&&3$ VXEPLWWHGHYLGHQFHRI59,¶V FRQWUDFWVHOOLQJWKHWUDFN Postponement of abandonment remains in effect until the VDOYDJHULJKWVWR.RYDOFKLFNIRU7KH67%GHFLGHG line owner and the prospective OFA purchaser (offeror) have WKDWWKH VDOHQXOOLILHGVXEVHTXHQWILUPSXUFKDVHRIIHUV come to an agreement on the terms of sale, or until the STB DQGWKDWWKHYDOXHRIWKHWUDFNFRXOGQRWH[FHHGWKHDPRXQW sets the terms of sale upon the request of either the line owner 59,KDGUHFHLYHGDFFRUGLQJWRFRQWUDFW or purchaser.
49 U.S.C. § 10904(d)(2)-(f).Pursuant to
49 C.F.R. § 1152.27(h)(3), "[t]he offeror has the burden of proof &RQWUDU\WR59,¶VFRQWHQWLRQWKH67%¶VGHFLVLRQWRUHGXFH as to all issues in dispute." See Iowa Terminal Ry. Co. v. WKHVDOYDJHYDOXHZDVQRWDUELWUDU\RUFDSULFLRXV$OWKRXJK ICC,
853 F.2d 965, 969 (D.C. Cir. 1988) (noting that the 59,PDLQWDLQVWKDWWKH67%DFWHGDUELWUDULO\LQOLPLWLQJWKH buyer "must present sufficient evidence of the line’s value to WUDFNVDOYDJHYDOXHWRWKHDPRXQWUHFHLYHGIURPWKH meet that burden"). When setting the terms and conditions of .RYDOFKLFNFRQWUDFW because the contract with Kovalchick did a sale of a rail line, the STB cannot set a price lower than the not concern the fair market value of the track in 2000, and "fair market value of the line."
49 U.S.C. § 10904(f)(1)(B). because the contract with Kovalchick included a deeply Under § 10907(b)(2), the "constitutional minimum value of discounted salvage value based on the STB’s future a particular railroad line shall be presumed to be not less than abandonment authorization, the STB properly points out that the net liquidation value of such line or the going concern RVI would not have been able to sell the track for any more value of such line, whichever is greater." 49 U.S.C. than it had received in 1996. Further, the STB justifies its § 10907(b)(2);
49 C.F.R. § 1152.27(h)(6); GS Roofing II, 262 track revaluation, as stated in the October 4, 2000 decision, on F.3d at 771 (noting that "Congress authorized the Board, the ground that RVI failed to come forward with the 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO assembled corridor." 559HQWXUHV:/DW under particular circumstances, to force the sale of a railroad 6HH3RUWODQG7UDFWLRQ&R±$EDQGRQPHQW([HPSWLRQ± line at its ‘constitutional minimum value’ to a ‘financially LQ 0XOWQRPDK &ODFNPDV &RXQWLHV 'RFNHW 1R $% responsible person’"). 6XE1R; :/DW 'HFLGHG-DQ DFFHSWLQJFRUULGRUYDOXDWLRQRQWKHEDVLVRIDQH[HFXWHGVDOHV49 U.S.C. § 10904(f)(2) gives an offeror ten days in which FRQWUDFW to withdraw the offer to purchase a rail line following a decision of the STB setting the terms of the sale. See also 49 ,QGHFLGLQJWKHYDOXDWLRQLVVXHZHDUHFRQVWUDLQHGE\WKH C.F.R. § 1152.27(h)(7). By statute, only the offeror is QDUURZ VWDQGDUG RI UHYLHZ DSSOLFDEOH WR DJHQF\ GHFLVLRQV authorized to withdraw from the terms of a STB-directed sale. ZKLFKJHQHUDOO\UHTXLUHVDIILUPDQFHRIWKH67%¶VYDOXDWLRQ
49 U.S.C. § 10904(f)(2). Without a withdrawal by the offeror GHFLVLRQV$VQRWHGLQ,RZD7HUPLQDO within the ten-day period, the STB’s decision becomes binding on both parties.
49 U.S.C. § 10904(f)(2);.XOPHU ,QFRQVLGHULQJHDFKHOHPHQWRIWKHYDOXDWLRQRUGHUZH )GDW ³,IWKH67%ILQGVWKDWDQRIIHUPHHWVFHUWDLQ DUHPLQGIXOWKDWWKH>67%¶V@GHFLVLRQ³PXVWEHXSKHOGLI FULWHULDWKHUDLOURDGLVIRUFHGWRVHOOWKHOLQHWRWKHRIIHURU EDVHGRQWKHUHFRUGEHIRUHLWWKH>67%¶V@GHFLVLRQLVQRW DFFRUGLQJ WR WKH WHUPV QHJRWLDWHG E\ WKH SDUWLHV RU ZKHQ DUELWUDU\RUFDSULFLRXV´,OOLQRLV&HQW*XOI55&RY QHFHVVDU\WHUPVLPSRVHGE\WKH67%´ 2QFHWKHUDLOOLQH ,&&)G WK&LU :KLOHZHPD\ KDVEHHQDFTXLUHGWKHSXUFKDVHUPD\QRWGLVFRQWLQXHVHUYLFH QRWVXEVWLWXWHRXUMXGJPHQWIRUWKDWRIWKHDJHQF\ZH IRU DW OHDVW WZR \HDUV 86& I $ Nat’l PXVW QHYHUWKHOHVV VDWLVI\ RXUVHOYHV WKDW WKH >67%@ Ass’n of Reversionary Prop. Owners, 158 F.3d at 138 n.4 FRQVLGHUHGDOOUHOHYDQWIDFWRUVDQGSURYLGHGDUHDVRQHG (noting that abandonment authorization in accordance with H[SODQDWLRQIRULWVGHFLVLRQ the exemption procedures under § 10502 is available "when ,RZD7HUPLQDO)GDW FLWLQJ0RWRU9HKLFOH0IUV no local traffic has run on the line in at least two years"). $VV¶Q 86 DW $SSO\LQJ WKLV QDUURZ VWDQGDUG RI %6WDWHPHQWRI)DFWV UHYLHZZHILQGWKDWWKH67%GLGQRWDFWLQDQDUELWUDU\RU FDSULFLRXVIDVKLRQE\UHIXVLQJWRFUHGLWDOORI59,¶VFRUULGRU 7KHVHFRQVROLGDWHGFDVHVLQYROYHDPLOHUDLOURDGOLQH YDOXDWLRQHYLGHQFH$VWKH67%SRLQWVRXWLQLWVDUJXPHQWV UXQQLQJIURP
2000 WL 1801264 , at *1 6HUYLFH'DWH'HF particularly an 11.7-mile aerial easement RVI had earlier To that end, RVI promptly sold the future right to salvage the granted to Ohio Edison Company. RVI had included with its line’s tracks and materials to another company. RVI also evidentiary submissions evidence of a land easement to First immediately canceled the lease of the Ohio & Pennsylvania Energy Company covering the same tract, but the STB Railroad Company ("OPRC"), the only operator authorized to concluded that including that easement in the valuation would provide service on the line, thus terminating rail service for permit RVI to receive double compensation for the land. The several shippers on the rail line, including Darlington Brick STB also refused to consider evidence submitted by RVI and Clay Products Company ("Darlington Brick") and Insul pertaining to the sale of the four-acre parcel to the Park Products, Inc. ("Insul"). R.R. Ventures,2001 WL 41202, at District, concluding that RVI had failed to distinguish its *1. location from the 20.6-acre easement to the Park District, and easement proposals from three other entities. The STB As a consequence, OPRC declared an embargo on concluded that RVI had showed only that the entities had November 19, 1996, stating the cancellation of its lease as the obtained funding for trails, not that they had entered into an cause. However, upon receiving complaints from Darlington agreement with RVI. Brick and Insul, the STB’s Office of Compliance and Enforcement ("OCE") investigated the cessation of rail Applying the proper burden of proof standard, the STB, in service. Thereafter, the STB reached an agreement with the its January 7, 2000 decision, determined that RVI’s evidence parties for service to be restored, and the embargo was was less authoritative in comparison to CCPA’s evidence. canceled. RVI also agreed to seek belated authority from the The STB explained that it did not ordinarily accept STB to acquire the line. However, on December 18, 1996, assembled-corridor valuation, absent executed sales contracts about one week after service on the line was restored, a for the entire corridor. See Boston & Maine Corp. weather-related washout occurred that again prevented rail Abandonment In Hartford & New Haven Counties, Conn., STB Docket No. AB-355 (Sub-No. 23),1998 WL 348755, at *3 (Service Date July 1, 1998). In its October 4, 2000 decision, the STB further explained: "In setting terms and ³$Q HPEDUJR LV µDQ HPHUJHQF\ PHDVXUH SODFHG LQ HIIHFW EHFDXVH RI conditions of a sale under section 10904, we cannot credit VRPH GLVDELOLW\ RQ WKH SDUW RI WKH FDUULHU ZKLFK PDNHV WKH ODWWHU XQDEOH speculative evidence, but rely upon firm bids (from a )G DW TXRWLQJ ) SURSHUO\ WR SHUIRUP LWV GXW\ DV D FRPPRQ FDUULHU¶´ *6 5RRILQJ , purchaser) or signed contracts in establishing the value of an 6XSS ' 1HE &KLFDJR 1: 5\ &R Y 8QLRQ 3DFNLQJ &R 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO At the time the STB rendered its January 7, 2000 decision, service on the line. See R.R. Ventures, Inc. Acquisition and RVI and CCPA produced estimates of land value according Operation Exemption Youngstown & S. Ry. Co., STB to two methodologies. RVI contended that the highest and Finance Docket No. 33385,1997 WL 392877, at *1 (Service best value of the land was as a single non-rail corridor, with Date July 15, 1997). a small number of purchasers obtaining easements or rights- of-way over segments of the corridor. (J.A. at 1085-1119.) Thereafter, on January 3, 1997, RVI filed a notice of CCPA proffered evidence of value according to the "across exemption invoking the class exemption provision at 49 the fence" ("AFT") methodology: dividing the tract into a C.F.R. 1150.31(a)(1) for retroactive authorization of its large number of parcels, valuing each parcel as if sold to purchase of the rail line, stating that it had been unaware of owners of adjoining parcels, and totaling the values of the the need to obtain the STB’s approval to acquire the line and parcels. RVI’s assembled corridor methodology produced a that it had purchased the line "for the purpose of conducting value of $1,472,930, while CCPA’s "AFT" methodology rail freight common carrier operations" on it.,QUHVSRQVH estimated the land value at $450,000. &&3$ DQG WKH 2KLR 5DLO 'HYHORSPHQW &RPPLVVLRQ ³25'&´ ILOHGSHWLWLRQVWRUHMHFWUHYRNHRUVWD\WKHQRWLFH As between the two methodologies, the STB decided RIH[HPSWLRQFODLPLQJWKDW59,GLGQRWLQWHQGWRRSHUDWHWKH CCPA’s approach was more appropriate. Specifically, the OLQHDQGWKDWLWKDGSUHYLRXVO\PDGHDUUDQJHPHQWVWRVFUDSWKH STB rejected RVI’s assembled corridor methodology, OLQH,QDQRUGHUHQWHUHGRQ-DQXDU\ WKH67%UHMHFWHG explaining that "[u]nless there is a specific documented 59,¶V QRWLFH RI H[HPSWLRQ EHFDXVH 59, KDG QRW interest expressed by a potential purchaser of an intact DFNQRZOHGJHG LWV FRPPRQ FDUULHU REOLJDWLRQV WR SURYLGH corridor, we do not consider this to be an acceptable method VHUYLFHRQWKHOLQHDQGEHFDXVH&&3$KDGDOOHJHGWKDW59, of valuation for [net liquidation value] purposes." Although ZRXOGQRWRSHUDWHRUDUUDQJHIRUDQRWKHUSDUW\WRRSHUDWHWKH RVI proffered copies of purchase agreements from the Park OLQH 6HH R.R. Ventures, Inc. Acquisition and Operation District and Ohio Edison Company for trail and utility Exemption Youngstown and S. Ry. Co., STB Finance easements, the STB rejected RVI’s estimate of value as Docket No. 33336,1997 WL 7537, at *1-2 (Service Date Jan. insufficient because the agreements pertained to portions of 9, 1997). the corridor, rather than the corridor as a whole. In contrast, the STB accepted CCPA’s appraisal as "complete and Subsequently, the Ohio & Pennsylvania Railroad Company adequately supported and its . . . values appropriately ("OPRC"), ORDC, CCPA, the North East Ohio Trade & adjusted," describing the values stated in the appraisal as Economic Consortium, Mahoning County Commissioners, "reasonable based on the comparable sales data presented." and other public agencies provided funding for the repairs to Having accepted CCPA’s evidence, and subtracting $100,000 the line. However, when the Wintrow Construction to represent an assignment by RVI for lease and interest Corporation ("Wintrow") attempted on January 31, 1997 to income, the STB reached a land value of $350,000. Thereafter, in its October 4, 2000 decision, the STB 8QGHU 86& D SDUW\ WKDW LV QRW D UDLO FDUULHU PD\ revisited the land valuation. The STB decided to adjust the LQYRNH WKH SURFHGXUHV IRU FODVV H[HPSWLRQ XQGHU &)5 land value upward to include an executed sale agreement for WR DFTXLUH DQ DFWLYH UDLO OLQH UDWKHU WKDQ ILOH D GHWDLOHG DSSOLFDWLRQ XQGHU &)5 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO obtain, through a general release, RVI’s permission to repair 559HQWXUHV:/ DW FLWLQJ&KLFDJRDQG the rail line in order to restore rail service, RVI rejected 1RUWK:HVWHUQ7UDQVS&R$EDQGRQPHQW,&& Wintrow’s general release form and refused to permit the /DNH*HQHYD/LQH DII¶GVXEQRP&KLFDJRDQG necessary repairs to be made. As a result, the ORDC and 1RUWK:HVWHUQ7UDQVS&RY8QLWHG6WDWHV)G CCPA filed a declaratory action on February 5, 1997 to WK&LU prevent RVI from interfering with the repairs. On the same date, the STB’s OCE sent a letter to RVI giving it 20 days to As previously stated, the regulations place the burden of refile for the requisite authority to acquire the rail line and proof on the offeror for all issues in dispute concerning the admonishing it not to interfere with OPRC’s rail operations terms and conditions of the sale.49 C.F.R. § 1152.27(h)(3). in the interim. See R.R. Ventures,
1997 WL 392877, at *2. In its January 7, 2000 decision, the STB noted: In its response on February 25, 1997, RVI claimed that it had reached an agreement with the contractor hired to repair the Placing the burden of proof on the offeror is particularly flood-damaged track, and that repairs would begin on appropriate in these proceedings because the offeror may February 28, 1997 and would take about two months to withdraw its offer at any time prior to its acceptance of complete.
Id.RVI also indicated its intention to file for the terms and conditions that we establish pursuant to a legal acquisition of the rail line within 30 days of its letter.
Id.party’s request. The rail carrier, on the other hand, is required to sell its line to the offeror at the price we set, Given these assurances, the STB subsequently authorized even if the railroad views the price as too low. RVI’s retention of the line. A verified notice of exemption allowing RVI to acquire and operate the rail line was 559HQWXUHV
2000 WL 1125904, at *5. The STB explained published on April 24, 1997. Notwithstanding the concerns how this burden affected its method of valuing rail lines as of the ORDC and CCPA that "RVI has not demonstrated the follows: remotest interest in undertaking the obligations and responsibilities involved in an acquisition of an active line for The burden of proof standard requires that, absent the purpose of conducting continuing rail freight common probative evidence supporting the offeror’s estimates, the carrier obligations," the STB denied their petition for a rail carrier’s evidence is accepted. In areas of declaratory order on July 15, 1997, as well as their petition to disagreement, the offeror must present more specific reject or revoke the notice of exemption. To allay the evidence or analysis or provide more reliable and concerns of the ORDC and CCPA, however, the STB verifiable documentation than that which is submitted by required RVI to "submit biweekly reports to the OCE on the the carrier. Absent specific evidence supporting the status of the lines’ restoration and to provide specific details offeror’s estimates and contradicting the rail carrier’s of the cause of any delays in restoring service."
Id. at *3. estimates, the fact that the burden of proof is on the offeror requires that we accept the carrier’s estimates in Thereafter, RVI filed reports infrequently, and rail service these forced sales proceedings. was restored for only a short period of time in 1997. After repairs funded by state and local agencies were made to the
Id.line, another washout occurred. After this washout, RVI 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO intervenor’s argument regarding demand for an evidentiary refused to fund any repairs and did not cooperate with the hearing because another party "did not assert this specific public agencies that sought to restore service, despite the claim before us") (citing Ill. Bell Tel. v. FCC,911 F.2d 776, repeated requests of local shippers and local and state 786 (D.C. Cir. 1990)). Accordingly, we DIILUPthe STB’s government officials to resume rail service. See R.R. October 4, 2000 decision to the extent that it ordered RVI to Ventures, Inc. Abandonment Exemption Between transfer its entire fee simple interest in the rail line as Youngstown, OH, and Darlington, PA, in Mahoning and described in RVI’s abandonment petition. Columbiana Counties, OH, and Beaver County, PA, STB Docket No. AB-556 (Sub-No. 1X),
1999 WL 23286, at *2 3. The STB’s determination of the land value of the line (Service Date Jan. 22, 1999). 6SHFLILFDOO\ ,QVXO PDGH D was not unreasonable or arbitrary IRUPDO UHTXHVW RQ 'HFHPEHU IROORZHG E\ 'DUOLQJWRQ%ULFNRQ-DQXDU\ IRUUDLOVHUYLFHWREH When setting the terms and conditions of a sale of a rail UHVWRUHGWRWKHLUIDFLOLWLHV line, the STB cannot set a price lower than the "fair market value of the line."
49 U.S.C. § 10904(f)(1)(B). Pursuant to $W WKLV SRLQW 59, ILOHG D QRWLFH RI FODVV H[HPSWLRQ RQ
49 U.S.C. § 10907(b)(1), the STB is directed to set the -DQXDU\ WRDEDQGRQWKHUDLOOLQHFODLPLQJWKDW³WKH purchase price for the forced sale of a rail line at "not less OLQHLVQRWHFRQRPLFDOO\YLDEOH´DQGWKDW³LWVKRXOGEHDOORZHG than the constitutional minimum value." The "constitutional WR DEDQGRQ DQG HLWKHU VDOYDJH LW RU SHUPLW RWKHU LQWHUHVWHG minimum value" is defined as "not less than the net SDUWLHV WR DFTXLUH WKH OLQH WKURXJK WKH RIIHU RI ILQDQFLDO liquidation value of such line or the going concern value of DVVLVWDQFHSURFHGXUHVXQGHU 86& DQG &)5 such line, whichever is greater." GS Roofing II, 262 F.3d at ´,GDW 2QWKHVDPHGDWHWKH235&DOVRILOHGD 774; see also &)5 K GHILQLQJ³IDLUPDUNHW QRWLFH RI FODVV H[HPSWLRQ XQGHU &)5 WR YDOXH´DV³FRQVWLWXWLRQDOPLQLPXPYDOXHZKLFKLVWKHJUHDWHU GLVFRQWLQXHVHUYLFHRYHUWKHUDLOOLQH+RZHYHUEHFDXVH59, RIWKHQHWOLTXLGDWLRQYDOXHRIWKHOLQHRUWKHJRLQJFRQFHUQ DQG 235& LPSURSHUO\ LQYRNHG WKH FODVV H[HPSWLRQ YDOXHRIWKHOLQH´ 7KH67%PXVWGHWHUPLQHWKHVDOHSULFH SURFHGXUHWKH67%LQDGHFLVLRQILOHGRQ-DQXDU\ ³RQWKHEDVLVRIZKDWWKHVHOOHUZRXOGKDYHUHDOL]HGIURPWKH GHQLHGERWKUHTXHVWVZLWKRXWSUHMXGLFHWRDOORZWKHPWRUHILOH VDOHRIWKHDVVHWVKDGWKHOLQHLQIDFWEHHQDEDQGRQHG´,RZD WKHLU UHVSHFWLYH SHWLWLRQV IRU DEDQGRQPHQW DQG 7HUPLQDO )G DW ,Q WKH 67%¶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¶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ounty of Allegheny, 74 Pa. Cmwlth. 85, 90,459 A.2d 1298, 67%IRUH[HPSWLRQIURPFHUWDLQUHJXODWLRQVSXUVXDQWWR 1300 (1983) ("Black’s Law Dictionary defines a fee simple 86& DQG IRU DXWKRULW\ WR DEDQGRQ WKH UDLO OLQH estate as ‘one in which the owner is entitled to the entire SXUVXDQWWR 86& D ,QLWVSHWLWLRQ59,VWDWHG property, with unconditional power of disposition during his WKDWWKHOLQHKDGEHHQRXWRIVHUYLFHIRUWZR\HDUVGXHWRWKH life, and descending to his heirs and legal representatives ZDVKRXW DQG DQ HPEDUJR 59,¶V SHWLWLRQ DOVR LQFOXGHG D upon his death intestate.’"). YHULILHG VWDWHPHQW RI 'DYLG +DQGHO 59,¶V SUHVLGHQW ZKR VWDWHGWKDW59,¶VULJKWRIZD\H[WHQGHGIURPPLOHSRVWWR Moreover, contrary to RVI’s contention, there was no PLOHSRVWFRQVLVWLQJRIDFUHVDQGWKDWLWVQHW unconstitutional taking in this case. See U.S. Const. amend OLTXLGDWLRQYDOXHRIPLOOLRQZDVEDVHGXSRQDIXOOIHH V ("[N]or shall private property be taken for public use, LQWHUHVWLQWKHSURSHUW\ without just compensation."); In re Chicago, Milwaukee, St. Paul and Pacific Ry. Co.,799 F.2d 317, 324 (7th Cir. 1986). &&3$ WKHQ UHOLHG XSRQ +DQGHO¶V GHVFULSWLRQ RI WKH As set forth in
49 U.S.C. § 10907(b)(1), Congress authorized SURSHUW\DQGKLVYDOXDWLRQRIWKHIXOOIHHLQWHUHVWLQWKHUDLO the STB to force the sale of a railroad line at its OLQHZKHQLWSUHSDUHGLWVHVWLPDWHRIWKHSXUFKDVHSULFHGXULQJ "constitutional minimum value" to "a financially responsible WKH2)$SURFHVV2Q$XJXVW &&3$LQYRNLQJWKH person." GS Roofing II, 262 F.3d at 771. 7KDW LV ZKDW 2)$SURFHGXUHVVHWIRUWKLQ 86& DQG &)5 RFFXUUHGKHUH6HH8QLWHG6WDWHVY$FUHVRI/DQG D UHTXHVWHG ILQDQFLDO GDWD DQG LQIRUPDWLRQ IURP 86Q QRWLQJWKDWWKHFRQVWLWXWLRQDOPHDVXUH 59,FRQFHUQLQJDQHVWLPDWHRIWKHPLQLPXPSXUFKDVHSULFH RIMXVWFRPSHQVDWLRQLVZKDWDZLOOLQJEX\HUZRXOGSD\LQ UHTXLUHG WR NHHS WKH OLQH LQ RSHUDWLRQ WKH HVWLPDWHG QHW FDVKWRDZLOOLQJVHOOHU TXRWLQJ8QLWHG6WDWHVY0LOOHU OLTXLGDWLRQYDOXHRIWKHOLQHDQGGRFXPHQWDWLRQVKRZLQJWKDW 86 59,KDGPDUNHWDEOHWLWOHWRWKHODQGAlthough RVI provided some of the information on August 10, 1999, it advised Finally, although it appears that the STB approved certain CCPA to arrange for copying the valuation maps and deeds transactions by RVI with third parties after RVI filed its for the line at RVI’s offices. However, when CCPA arranged abandonment petition, we note that these transactions are not for its retained appraiser, Mr. John Rossi of Real Estate being challenged on appeal. Specifically, CCPA, as an Appraisal Associates, to visit RVI’s business office, he was intervening party in these proceedings pursuant to Rule 15(d) of the Federal Rules of Appellate Procedure, has not appealed from the STB’s orders and has requested affirmance of its decisions. Because CCPA has not challenged the STB’s LV UHTXLUHG IRU WKH %RDUG WR PDNH DQ LQIRUPHG GHFLVLRQ RQ approval of RVI’s conveyance of certain property interests ZKHWKHU WR DSSURYH WKH DEDQGRQPHQW RI WKLV OLQH RI UDLOURDG DQG associated with the rail line after RVI filed its abandonment IRU RWKHU SDUWLHV ZKR PLJKW EH LQWHUHVWHG LQ SXUFKDVLQJ WKH OLQH petition, it is therefore unnecessary to remand for further XQGHU VHFWLRQ WR UHVWRUH VHUYLFH proceedings since CCPA is not seeking to acquire those R.R. Ventures, Inc. Abandonment Exemption Between Youngstown, property interests not conveyed to it. See Platte River OH, and Darlington, PA, in Mahoning and Columbiana Counties, OH, Whooping Crane Critical Habitat Maintenance Trust v. and Beaver County, PA, STB Docket No. AB-556 (Sub-No. 1X), 1999 FERC,
962 F.2d 27, 37 n.4 (D.C.Cir.1992) (refusing to reach WL 23286, at *2 (Service Date Jan. 22, 1999). 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO Notwithstanding, RVI argues that it should not be required denied access by RVI to the relevant valuation maps and to convey a fee simple interest in the rail line because the deeds. STB in its January 7, 2000 decision only required it to transfer "all property by quit claim deed." As RVI notes, a On September 2, 1999, the STB granted RVI’s petition for "quit-claim deed transfers only those rights which a grantor exemption pursuant to49 U.S.C. § 10502, stating that any has at the time of the conveyance." Finomore v. Epstein, 18 party interested in purchasing the line for continued rail Ohio App.3d 88, 89,
481 N.E.2d 1193, 1196 (Ohio App. service could submit an offer of financial assistance ("OFA"), 1984) (citing Jonke v. Rubin,170 Ohio St. 41, 41, 162 N.E.2d pursuant to
49 U.S.C. § 10904and
49 C.F.R. § 1152.27(c)(1), 116, 116 (1959)); Greek Catholic Congregation of Borough by September 13, 1999. See R.R. Ventures, Inc. of Olyphant v. Plummer,
338 Pa. 373, 377,
12 A.2d 435, 437 Abandonment Exemption Between Youngstown, OH, and (Pa. 1940). At the time of the conveyance in these cases, RVI Darlington, PA, in Mahoning and Columbiana Counties, OH, was required to transfer a full fee interest in the property. and Beaver County, PA, STB Docket No. AB-556 (Sub-No. Thus, the STB’s order directing RVI to transfer "all property 2X),
1999 WL 714565(Service Date Sept. 3, 1999). In the by quit-claim deed" was tantamount to ordering it to transfer absence of an OFA, the exemption became effective October a fee simple interest in the property associated with the rail 3, 1999, allowing RVI to salvage track, ties, and other line. railroad appurtenances, and to dispose of the right-of-way. In addition, because CCPA acquired a fee simple interest in On September 3, 1999, one day after the STB granted the rail line, RVI was required to transfer all its property RVI’s exemption petition, CCPA formally notified RVI and interests associated with the rail line. Under Ohio law, a fee the STB that it was considering an OFA to purchase the line simple is the highest right, title and interest that one can have for rail service. CCPA also petitioned the STB to toll the in land; it is the full and absolute estate in all that can be period for submitting an OFA until 30 days after RVI had granted. Masheter v. Diver,
20 Ohio St.2d 74, 78, 253 N.E.2d supplied all requested documents and information. 780, 782 (1969); see also 20 Ohio Jurisprudence 2d 237, Estates, Section 8 ("An estate in fee simple is the entire interest and property in the land."); Muirfield Ass’n, Inc. v. Franklin County Bd. of Revision,73 Ohio St.3d 710, 711, 654 6XEVHTXHQWO\ &&3$ DOVR VRXJKW WR DFTXLUH D UDLOURDG OLQH EHWZHHQ N.E.2d 110, 111 (1995) (defining "fee simple" as "[a]bsolute 6WUXWKHUV DQG
2000 WL 821476 , at *1 (Service Date June 26, 2000). :H QRWH WKDW
1999 WL 715271 , at *2 (Service Date Sept. 10, 1999). milepost 35.7, including "a short spur line and several The STB also extended the effective date of RVI’s exemption buildings referred to generically as the Negley Shops." RVI until forty days after RVI had provided the information.
Id.placed the fair market value of the full fee interest "for the at *3. 302.016 acres of ground comprising the RVI right of way" at $1,162,555. When CCPA thereafter inquired about the Shortly thereafter, by a letter dated September 20, 1999, property to be sold, RVI confirmed that "an ample description CCPA’s attorney advised the STB and RVI that CCPA of the line in question and the acreage involved in this rail expected to acquire a full fee interest held by RVI as well as line" was provided in its abandonment petition. (J.A. at 860, "all of the interests encompassed in RVI’s estimate of 1681.) RVI also advised both the STB and CCPA in a letter purchase price to keep the line in operation." (J.A. at 545.) dated September 21, 1999 that "[s]hould CCPA determine RVI’s counsel responded the following day, stating that that it is necessary to acquire a fee interest in the right of way "should CCPA determine that it is necessary to acquire a fee in order to operate the rail line under
49 C.F.R. § 1152.27, interest in the right of way in order to operate the rail line RVI will convey such an interest . . . pursuant to the under
49 C.F.R. § 1152.27, RVI will convey such an requirements of the STB’s OFA regulations." (J.A. at 546.) interest." (J.A. at 546.) Based upon RVI’s representations in its abandonment petition, it was then CCPA’s prerogative, as a prospective In a letter filed on October 12, 1999, CCPA informed the OFA purchaser, to determine how much of the rail line it STB that RVI had provided sufficient information for CCPA wished to acquire. In this case, CCPA sought to acquire a fee to continue with its OFA and that it would file an OFA on or simple interest in the entire rail line as described in RVI’s before November 8, 1999, thirty days after receipt of the abandonment petition. Therefore, CCPA was entitled to information from RVI. See R.R. Ventures, Inc. acquire the entire fee simple interest in the property Abandonment Exemption Between Youngstown, OH, and comprising the rail line that was the subject of RVI’s Darlington, PA, in Mahoning and Columbiana Counties, OH, abandonment petition. and Beaver County, PA, STB Docket No. AB-556 (Sub-No. 2X),
1999 WL 1030076, at *1 (Service Date Nov. 12, 1999). 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO these reasons, we conclude that the STB’s interpretation is On November 8, 1999, CCPA filed a timely OFA to purchase unreasonable. the line for $419,360. This offer consisted of $350,000 for the land and $69,360 for the track and materials. CCPA Under § 10904(f)(1)(B), the STB’s task is not to determine compared its offer with RVI’s stated net liquidation value of the extent of the property associated with the rail line that is $1,607,555 ($1,162,555 for the real estate and $445,000 for being transferred, but to set the terms of the sale in the event track salvage), offering explanations for the disparity in the that the parties cannot come to an agreement about these values, as required by
49 C.F.R. § 1152.27(c)(ii)(C ).
Id.In terms. As explained, the determination about what property particular, CCPA’s estimate of a total track value of $69,360 is being conveyed in the sale of a rail line is made by the was based upon the cost of disposing of approximately parties to the transaction. Pursuant to the abandonment and 125,214 bad cross ties, roughly 99% of the cross ties on the OFA provisions of the ICCTA, the abandoning rail line owner line. Using RVI’s own estimate of tie disposal costs, CCPA identifies the property that is being abandoned in its reduced RVI’s estimate by $375,642.
Id. at *2. abandonment petition, while the prospective OFA purchaser submits an offer to buy the rail line being abandoned, either In a decision on November 12, 1999, the STB found CCPA in whole or part. None of this requires the STB to determine to be "financially responsible" pursuant to 49 U.S.C. how much of the rail line is being acquired; the parties do § 10904(d)(1). Id. The STB therefore postponed, pursuant to that. However, if the parties cannot come to an agreement
49 U.S.C. § 10904(d)(2), the effective date of the exemption about the terms of the sale, the STB has the authority under § authorizing RVI’s abandonment of the line during the 10904(f)(1)(B) to set the terms and force the sale of a railroad pendency of the OFA process. Id. The STB informed RVI line at its constitutional minimum value. and CCPA that if they were unable to agree on a purchase price for the line, then either party could request the STB, on Reading the ICCTA as a whole, we hold that once a rail or before December 8, 1999, to set the terms and conditions line owner files a petition seeking authority to abandon a rail of the sale pursuant to
49 U.S.C. § 10904(e).
Id.line, a qualified OFA purchaser is entitled to determine whether to purchase the rail line, as described in the By December 8, 1999, CCPA and RVI were unable to abandonment petition, in whole or part. Therefore, a rail agree on the amount to be paid for the rail line. Thus, owner seeking authority to abandon a rail line is not permitted exercising its statutory right under § 10904(f)(1), CCPA filed to reduce or diminish the property associated with the rail its request on December 8, 1999 for the Board to establish the line, as identified in the abandonment petition, until the OFA terms of the sale. CCPA requested a purchase price of process is concluded. Once a qualified OFA buyer has $441,700, consisting of $350,000 for the land and $91,705.67 offered to purchase the rail line, as described in the for track materials. See R.R. Ventures, Inc. Abandonment abandonment petition, postponement of the abandonment Exemption Between Youngstown, OH, and Darlington, PA, petition remains in effect until the line owner and prospective in Mahoning and Columbiana Counties, OH, and Beaver OFA buyer have come to an agreement on the terms of the County, PA, STB Docket No. AB-556 (Sub-No. 2X), 2000 sale or until the STB sets the terms of the sale upon the WL 1125904, at *1 (Service Date Jan. 7, 2000). CCPA also request of either party.
49 U.S.C. § 10904(d)(2)-(f). As a requested that the STB clarify the property interests CCPA consequence, until such time that the STB loses jurisdiction would receive in acquiring the line. CCPA specifically asked 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO the STB to require RVI to "convey to CCPA a full fee title possibility of interference with future rail service as a result interest in the land comprising the right-of-way, except in any of conflicts between the purchaser of the rail line and parties instance where, prior to the institution of this OFA perhaps holding subsurface, aerial or easement rights acquired proceeding, RVI did not possess such an interest in the right- after the abandoning rail carrier filed its petition seeking the of-way." In addition, CCPA advised the STB that it had STB’s authority to abandon the line. recently discovered that RVI, after being advised of CCPA’s OFA submission, had entered into a series of transactions to Interpreting § 10904(f)(1)(B) as part of a symmetrical and reduce the size and value of the property. Specifically, CCPA coherent regulatory scheme, we therefore conclude that the sought invalidation of the November 5, 1999 Grade Separated STB erred in construing the statutory provision as implying Crossing Settlement Agreement ("GSCSA") that RVI had a "rebuttable presumption" under which an OFA purchaser is entered into with Boardman Township, purportedly extending entitled to purchase all the property interests associated with to RVI’s successors in interest, requiring the construction of a rail line subject to an abandonment petition unless the an overpass or underpass at a crossing between the railway abandoning rail line owner shows that effective rail service and a highway as a precondition to restoration of rail service. can be provided with less than the entire rail line. There are Id. at * 2. CCPA also challenged other transactions entered several problems with the STB’s interpretation. First, there into by RVI without the STB’s authorization in violation of is no apparent textual support in the statutory provisions or the OFA procedures that reduced the value of the right-of- the regulations governing the abandonment and OFA process way, including: (1) the sale of utility crossing easements to for implying a "rebuttable presumption." But more important, First Energy Corporation (Ohio Edison Company) for by reading a rebuttable presumption into the statute, the STB $893,000, allowing for permanent aerial easements along and shifts the burden of proof to the abandoning rail line owner, across the property; (2) the assignment to Venture Properties which is contrary to its own regulation that states that "the of Boardman, Inc. ("VPB") of all right, title, and interest to offeror has the burden of proof as to all issues in dispute." 49 income, proceeds, accounts receivable, royalties, and other C.F.R. 1152.27(h)(3). As a practical matter, this may lead to payments arising from third-party agreements which are intractable problems in consummating the sale of rail lines, as attributable to the line; (3) the sale of a 4.012-acre segment to the present cases exemplify, defeating the purpose of having Boardman Township Park District for $140,000; and (4) a an expedited abandonment process. Specifically, the STB’s contingent agreement for the sale of approximately 20.6 acres construal of the statute as implying a rebuttable presumption of the right-of-way for a 4.2 mile bicycle trail. Id. at * 4. creates the prospect of protracted abandonment proceedings as the parties argue about what property associated with the rail line is or is not necessary for effective rail service. The STB’s interpretation is also problematic because it raises questions about applying the statute in a way that is not arbitrary or capricious. As argued by RVI in these cases, the :KLOH &&3$¶V DSSUDLVHU FRQVLGHUHG WKH VDOH RI WKH XWLOLW\ FURVVLQJ HDVHPHQWV WR )LUVW (QHUJ\ &RUSRUDWLRQ DQG WKH DVVLJQPHQW RI 59,¶V STB’s decision regarding what property is necessary for LQWHUHVWV WR LWV DIILOLDWH 93% LQ DGMXVWLQJ WKH ODQG YDOXH RI WKH ULJKW RI effective rail service appears arbitrary because it does not ZD\ WKH DSSUDLVHU GLG QRW FRQVLGHU WKH WUDQVDFWLRQV EHWZHHQ 59, DQG seem to be based upon objective principles or criteria. For %RDUGPDQ 7RZQVKLS 3DUN 'LVWULFW EHFDXVH WKH\ ZHUH HQWHUHG LQWR WKH GD\ EHIRUH &&3$ VXEPLWWHG LWV 2)$ WR WKH 67% DQG 59, 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO from a practical perspective since a prospective OFA buyer 59,UHSOLHGWR&&3$¶VUHTXHVWWRVHWWKHWHUPVRIWKHVDOH has to act quickly, examining and evaluating pertinent data RQ'HFHPEHU contending that the STB should order about the condition of the line, its traffic and revenue before it to convey no more than the minimum property interest submitting an OFA, which is due within ten days of the necessary for the provision of rail operations, which it defined decision of the STB granting a petition for abandonment or as the track, related track appurtenances and a surface exemption.49 U.S.C. § 10904(c); 49 C.F.R. easement for rail purposes. RVI suggested that a sufficient § 1152.27(c)(1)(i)(B). Thus, to ensure the efficacious interest would consist of surface rights enabling the purchaser valuation of a rail line, it is essential that the property interests to use the line for rail purposes, "conveyed by means of an associated with the rail line remain stable. easement, right of way agreement or quit claim deed subject to various reservations or reversionary interests." RVI further Maintenance of the status quo upon the filing of an asked the STB not to set aside its third-party transactions abandonment petition also promotes the practical goal of pertaining to the line, contending that it was not obligated to properly administering the statute since the STB is obligated inform CCPA of those transactions, since they would not to make certain decisions within a highly constrained time affect CCPA’s use of the right-of-way for rail services. frame so as to advance the goal of continuous rail service. Despite the fact that RVI had valued the entire line at $1.6 Specifically, it accords with the purpose of the forced-sale million in its abandonment petition, RVI also challenged provision set forth in
49 U.S.C. § 10904, which is to promote CCPA’s requested purchase price, claiming that the limited the continuation of viable rail service, not simply the property interest in the rail line that it was prepared to sell to maintenance of the rail line itself. See Hayfield, 467 U.S. at CCPA was now worth $2,261,490, almost three times as 630 (noting that the present § 10904 "represents a much as RVI paid for the rail line when it purchased it on continuation of Congress’ efforts to accommodate the November 8, 1996. Specifically, RVI disputed CCPA’s conflicting interests of railroads that desire to unburden valuation method, offering its valuation of the surface rights themselves quickly of unprofitable lines and shippers that are in the line as an assembled corridor to be worth $1,472,930 dependent upon continued rail service"); Consol. Rail Corp, and valuing the track materials at $788,560. 29 F.3d at 712. Accordingly, the objective of continuing viable rail service in behalf of interstate commerce in this 1. The STB’s January 7, 2000 decision setting the country, as well as commerce throughout the continent, is terms and conditions of the sale better achieved by not permitting the transfer of property interests associated with the rail line after the filing of the The STB issued its decision setting the terms and abandonment petition. It also protects the integrity of the conditions for the sale of the rail line on January 7, 2000. OFA process by ensuring transparency. Ultimately, it Explaining that the offeror in a forced sale bore the burden of produces finality and certainty in the OFA process, leading to proof, the STB stated that it would accept the seller’s (RVI) the expeditious acquisition of a rail line and eliminating the price estimates unless the offeror (CCPA) "present[s] more specific evidence or analysis or provide[s] more reliable and verifiable documentation." Id. at *5. Adhering to this framework, the STB accepted RVI’s track value of $788,560, 7KURXJK WKH &RPPHUFH &ODXVH &RQJUHVV KDV WKH SRZHU WR ³UHJXODWH &RPPHUFH ZLWK IRUHLJQ 1DWLRQV DQG DPRQJ WKH VHYHUDO but subtracted $58,000 for work to restore grade crossings, to 6WDWHV ´ 86 &RQVW DUW , FO 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO reach a net salvage value for track and materials of $730,560. sale, however, the STB cannot place any burden on the Id. at *6. The STB rejected, however, RVI’s valuation of the offeree (i.e., the abandoning rail owner). See 49 C.F.R. land as an assembled corridor. The STB explained: §1152.27(h)(3) ("The offeror has the burden of proof as to all issues in dispute.") Unless there is a specific documented interest expressed by a potential purchaser of an intact corridor, we do not In short, once the owner of a rail line submits a petition consider this to be an acceptable method of valuation for seeking the STB’s authority to abandon the line, it must allow [net liquidation value] purposes. The highest and best a prospective OFA purchaser the opportunity to determine non-rail use is to sell parcels to adjoining landowners or how much of the line to acquire, as the line is described in the other interested parties. See Boston and Maine Corp. abandonment petition. Thus, at the point of filing the Abandonment In Hartford and New Haven Counties, abandonment petition, the abandoning rail line owner cannot CT, STB Docket No. AB-32 (Sub-No. 83), et al., slip op. reduce or diminish the rail line or the nature of the property at 4 (STB served July 1, 1998) [1998 WL 348755, at *3]. interests associated with the line. Because a rail line owner is subject to the STB’s jurisdiction until such time that the
Id. at *6. The STB summarized RVI’s evidence for valuing line has been properly abandoned or sold, it therefore must the land as an assembled corridor as amounting to two maintain the status quo with respect to its property interests appraisals and copies of purchase agreements for trail and in the rail line as described in its abandonment petition. utility easements, as well as expressions of interest to buy some sections of the line, "but no firm offers to purchase the The primary reason for maintaining the status quo with entire right-of-way, much less an executed sales contract."
Id.respect to the property interests associated with the rail line as Absent an executed sales contract or firm purchase offer for described in the abandonment petition is to allow a an assembled corridor, the STB concluded that RVI could not prospective OFA buyer sufficient opportunity to assess demonstrate that an assembled corridor was the "highest and whether the acquisition of the line is economically viable and best use" of the line.
Id.to determine what valuation to place on the rail line that it seeks to acquire. In this respect, it is evident that a rail line In contrast, the STB accepted CCPA’s "across-the fence" embraces more than just the track necessary for the provision ("ATF") valuation methodology, finding it "complete and of rail service. See Iowa Terminal,853 F.2d at 965(rejecting the abandoning railroad’s attempt to limit the transfer of land to two, rather than ten, acres, even though eight acres of land had been leased for nonrail purposes for several years, since "[t]he purpose of the statute empowering the [STB] to mandate a sale is to keep viable lines in operation"); see also In re Boston & Maine Corp.,596 F.2d 2, 6 (1st Cir. 1979) 7KH 67% QRWHG WKDW LWV SUHGHFHVVRU WKH ,&& KDG GHFLGHG LQ (noting that a "‘railroad line’ is not merely the service being 3RUWODQG 7UDFWLRQ &R ± $EDQGRQPHQW ([HPSWLRQ ± ,Q 0XOWQRPDK &ODFNPDV &RXQWLHV 25 'RFNHW 1R $% 6XE1R ; :/ provided, but the physical properties and interests belonging to the debtor that constitute the line"). Holding the status quo DW 6HUYLFH 'DWH -DQ WKDW DQ H[HFXWHG VDOHV FRQWUDFW ZRXOG FRQVWLWXWH WKH EHVW HYLGHQFH RI D ULJKWRIZD\¶V from the filing of the abandonment petition is imperative PDUNHWDELOLW\ DQG QHW OLTXLGDWLRQ YDOXH DV DQ DVVHPEOHG FRUULGRU 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO which a prospective OFA buyer may offer to buy the line that adequately supported." Id. at *6. The STB also accepted is the subject of an abandonment application"). )XUWKHU CCPA’s reduction in the value of the land by $100,000 due to H[SHGLWLQJ WKH DEDQGRQPHQW SURFHHGLQJV LV WKH UHJXODWLRQ RVI’s assignment of lease and interest income to a third VKRUWHQLQJWKHWLPHIRUILOLQJDQ2)$WRWHQGD\V 6HH party. Accordingly, the STB valued the land for the entire &)5 E :KHQDQ2)$LVPDGHE\DILQDQFLDOO\ line at $350,000, added in $730,560 for track and materials, UHVSRQVLEOHSDUW\³UHJDUGLQJWKDWSDUWRIWKHUDLOURDGOLQHWREH and set a purchase price of $1,080,560. DEDQGRQHG´ 86& G WKHDEDQGRQPHQWRIWKH OLQHLVWKHQSRVWSRQHGXQWLOWKHWHUPVDQGFRQGLWLRQVRIWKH In addition to setting these terms and conditions for the VDOHDUHHVWDEOLVKHG 86& G purchase of the line, the STB also addressed RVI’s third-party transactions. Concerning the Grade Separated Crossing Thus, while a railroad may "abandon any part of its railroad Settlement Agreement ("GSCSA") between RVI and lines" under49 U.S.C. § 10903(a)(1)(A), the STB is Boardman Township, the STB acknowledged that while it permitted to authorize a prospective buyer under the OFA favored privately negotiated agreements in general, it would provisions to purchase "that part of the railroad line to be deem void as against public policy any agreement imposing abandoned" under
49 U.S.C. § 10904(d). The line owner can restrictions unreasonably interfering with common carrier seek authority to abandon all or a part of its rail line, but if it obligations, citing United States v. Baltimore & Ohio R.R. does so, then, pursuant to § 10904(f)(1)(B), a qualified OFA Co.,
333 U.S. 169, 177-78 (1948) for the proposition "that purchaser is entitled to determine how much of the line it parties may not enter into trackage rights agreements that wishes to acquire. Once the offeror seeks to purchase the abrogate rights and responsibilities under the statutory entire rail line or a portion thereof as described in the provisions of the Interstate Commerce Act." Id. at *2. CCPA abandonment petition,
49 U.S.C. § 10904(c), the STB is then opposed the GSCSA on the grounds that it created a condition statutorily obligated to render a decision setting price and precedent to reestablishment of rail service and obliged other sale terms as to what the offeror seeks to buy, within CCPA (or RVI’s successor in interest) to undertake extremely thirty days of a request to set conditions. 49 U.S.C. costly construction projects to build the projected overpass or § 10904(f)(1)(A). Under this statutory provision, then, it underpass. According to CCPA, enforcement of the GSCSA necessarily follows that neither the abandoning rail carrier nor would cause it to forego its acquisition of the rail line, since the STB can alter or amend what the OFA buyer has offered CCPA estimated that the cost of one overpass or underpass to buy; rather, the STB can only set the terms on what the would likely exceed the net liquidation value of the entire rail offeror has proposed to purchase. In setting the terms of the line. As a result, the STB found that the terms of the GSCSA 2Q WKH RWKHU KDQG LI WKH OLQH RZQHU UHWDLQV DQ\ SDUW RI WKH ODQG WKHQ LWV FRPPRQ FDUULHU GXW\ RYHU WKDW SDUW RI WKH OLQH UHPDLQV LQ HIIHFW ³$FURVVWKHIHQFH´ RU ³RYHUWKHIHQFH´ YDOXDWLRQ PHWKRG LV DPRQJ LQ WKH DEVHQFH RI DQ HPEDUJR DQG WKH OLQH RZQHU PD\ QRW DEDQGRQ D YDULRXV PHWKRGV XVHG LQ DSSUDLVLQJ UDLOURDG SURSHUW\ 7KH UHWDLQHG SRUWLRQ DEVHQW 67% DSSURYDO 6HH *6 5RRILQJ , )G DW ³DFURVVWKHIHQFH´ PHWKRG ZKLFK FRPSDUHV WKH UDLOURDG SURSHUW\ ZLWK 7R WKH H[WHQW WKHQ WKDW 59, GLG QRW LQFOXGH QRQFRQWLJXRXV SRUWLRQV ³DGMDFHQW RU QHDUE\ LQGXVWULDO DQG FRPPHUFLDO SURSHUW\´ LV VRFDOOHG RI WKH OLQH LQ LWV DEDQGRQPHQW DSSOLFDWLRQ &&3$ FRXOG QRW DFTXLUH WKRVH ³EHFDXVH LW EDVHV WKH EHVW XVH DQG YDOXH RI WKH UDLOURDG SURSHUW\ RQ WKH XVH SURSHUWLHV WKURXJK LWV 2)$ +RZHYHU 59, FDQQRW VHOO WKRVH WUDFWV XQOHVV DQG YDOXH RI WKH ODQG DFURVV WKH IHQFH IURP WKH UDLOURDG ODQG´ LW REWDLQV WKH SHUPLVVLRQ RI WKH 67% &KHVDSHDNH : 5\ Y )RUVW )G WK &LU 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO imposing obligations on parties other than RVI and Boardman Kulmer, 236 F.3d at 1257. Township and requiring construction of the grade separated crossing as a precondition to resuming rail operations Reading the statutory and regulatory scheme as a whole, we unreasonably interfered with common carrier operations and discern a clear symmetry between the abandonment and OFA the OFA process. Id. Because the STB also found these provisions of the ICCTA. While a line owner may "abandon terms to "circumvent [its] statutory authority to set the terms any part of its railroad lines," it cannot do so without the and conditions of the sale under 49 U.S.C. [§] 10904(f)(1)," STB’s approval.49 U.S.C. § 10903(a)(1)(A); GS Roofing I, it thus concluded that these terms were unenforceable as 143 F.3d at 391. Significantly, when the owner of a rail line contrary to public policy. Id. seeks to abandon a line, it must "identify each railroad line for which the rail carrier plans to file an application to abandon." Although the STB voided the GSCSA, it decided not to set
49 U.S.C. § 10903(c)(2)(B). Under
49 C.F.R. § 1152.22, an aside the other transactions between RVI and other third owner seeking to abandon a rail line must set forth the parties, which CCPA had challenged on the grounds that they following information in its abandonment application: diminished the value of the line. As for the sale of utility crossing easements to First Energy Corporation (Ohio Edison [a d]etailed map of the subject line on a sheet not larger Company), the transfer of all rights to Venture Properties of than 8x10 ½ inches, drawn to scale, and with the scale Boardman, Inc. ("VPB") arising from third-party agreements shown thereon. The map must show, in clear relief, the attributable to the line, the sale of a 4.012-acre segment to the exact location of the rail line to be abandoned or over Park District, and the contingent sale of about 20.6 acres of which service is to be discontinued and its relation to the right-of-way for a 4.2 mile bicycle trail, the STB other rail lines in the area, highways, water routes, and concluded that they did not interfere with rail operations, but population centers. would be factored into its calculation of the line’s value.Id. at * 4-5. In particular, the STB noted that the sale of 4.012
49 C.F.R. § 1152.22(a)(4). The ICCTA also directs that a rail acres to the Park District was explicitly conditioned on the carrier seeking authorization to abandon a rail line under 49 continuation of rail service on the line. U.S.C. § 10903 must promptly provide a party considering an OFA with a report on the physical condition of "that part of The STB instructed CCPA to accept or reject the terms in the railroad line involved in the proposed abandonment," as writing within ten days, ordered RVI and CCPA to close on well as other information required to determine the amount of the deal within ninety days, and required RVI to convey "all financial assistance needed "to continue rail transportation property by quitclaim deed." The STB further stated that if over that part of the railroad line" and an estimate of the CCPA withdrew from the sale or failed to accept by timely minimum purchase price required "to keep the line or a written notification, then it would issue, within twenty days, portion of the line in operation."
49 U.S.C. § 10904(b). An a decision authorizing abandonment. RVI, Boardman OFA purchaser then has four months after the abandonment Township, and the Boardman Township Park District have petition has been filed to "offer to subsidize or purchase the filed petitions with this Court for review of the STB’s railroad line that is the subject of such application." 49 U.S.C. January 7, 2000 decision. § 10904(c); see Kulmer, 236 F.3d at 1256 (noting that "[t]he OFA provisions create a four-month waiting period" during 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO (holding that city could condemn a tract of land for public 2. The STB’s March 3, 2000 decision that CCPA use, such as for a street, but could not take property to sell it accepted the terms and conditions of the sale at a profit and pay for the improvement), aff’d,281 U.S. 439(1930). Following the STB’s January 7, 2000 decision, CCPA sent a letter dated January 12, 2000, which was received by the The STB disagrees with RVI’s construction of 49 U.S.C. STB on January 14, 2000, stating that it "hereby accepts the § 10904(f)(1)(B), arguing that the language on which RVI terms and conditions established by the Board in its decision focuses "all facilities on the line or portion necessary to served on January 7, 2000 for acquisition of Railroad provide effective transportation services" does not pertain Ventures’ 35.7 mile line of railroad extending from milepost to how much of the rail line a line owner can choose to 0.0 at Youngstown, OH to milepost 35.7 at Darlington, PA, transfer, but instead concerns the extent of the line an OFA and a connecting one mile line segment near Negley, OH." purchaser may choose to buy. If the purchaser views less CCPA added: than the entire amount of property as sufficient for rail operations, then the purchaser may offer to purchase only that [CCPA] does so on the understanding, (1) that it will be amount. See, e.g., Iowa Terminal,
853 F.2d at968 receiving a fee simple estate in the subject property free (describing purchaser’s offer for a 10.4-mile segment of a and clear of any reservations, liens, encumbrances, 26.1-mile line). If, however, an offeror, such as CCPA, licenses, leases, easements or restrictions except those wishes to obtain all the property described in the which were in existence prior to November 8, 1999, and abandonment petition, the STB argues that it is reasonable to considered by Mr. Rossi in the appraisal which was presume that the entire amount is necessary for effective rail adopted by the Board, and (2), that taxes on the subject services. property will be apportioned as between the parties as of the date of settlement. Although the STB’s construction of § 10904 is entitled to deference, courts ultimately have the responsibility for (J.A. at 1211.) CCPA also sent the same letter to RVI on interpreting federal statutes. Crounse Corp., 781 F.2d at January 12, 2000. After receiving this letter, RVI wrote to the 1183. As pointed out by the Tenth Circuit in Kulmer: STB on January 18, 2000, objecting that CCPA’s letter did not constitute a valid acceptance of the STB’s sale terms. On "In determining whether Congress has specifically January 20, 2000, RVI followed this letter with a petition to addressed the question at issue, a reviewing court should the STB to vacate the decisions postponing the effective date not confine itself to examining a particular statutory of the abandonment authority. RVI contended that by provision in isolation." FDA v. Brown & Williamson accepting the STB’s terms "on the understanding" that it Tobacco Corp.,
529 U.S. 120, 130-132,
120 S. Ct. 1291, would receive an unencumbered fee simple estate, CCPA 1300,
146 L. Ed.2d 121(2000). Rather, a court must sought to alter in a material way the terms set by the STB, read the relevant provisions in context and, insofar as which had ordered conveyance pursuant to a quitclaim deed, possible, "interpret the statute ‘as a symmetrical and without requiring RVI to make any warranty regarding the coherent regulatory scheme.’"
Id.,529 U.S. at 132-134, title it possessed. RVI also argued that CCPA’s acceptance 120 S. Ct. at 1301 (quoting Gustafson v. Alloyd. Co., 513 was "conditional," not "absolute." Relying upon principles of U.S. 561, 569,
115 S. Ct. 1061,
131 L.Ed.2d 1(1995)). 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO contract law, RVI urged the STB to view CCPA’s letter as a49 U.S.C. § 10904(f)(1)(B). In its October 4, 2000 decision, rejection of the terms set forth in the decision of January 7, the STB interpreted the parenthetical language as follows: 2000 and to treat the letter as the submission of a counteroffer by CCPA. it serves merely to clarify that an offeror need not purchase the entire property slated for abandonment, but On March 3, 2000, the STB issued a decision rejecting can opt to acquire less than the full length of the line RVI’s arguments regarding CCPA’s acceptance of the terms where the offeror wishes to provide for continued rail set forth in the January 7, 2000 decision. See R.R. Ventures, service on only a portion of the line. Inc. Abandonment Exemption Between Youngstown, OH, and Darlington, PA, in Mahoning and Columbiana Counties, R.R. Ventures,
2000 WL 1470451, at *6. In rejecting RVI’s OH, and Beaver County, PA, STB Docket No. AB-556 (Sub- proposed interpretation of § 10904(f)(1)(B), the STB No. 2X),
2000 WL 246367(Service Date Mar. 3, 2000). The articulated a presumption, rebuttable by the line owner, that STB viewed CCPA’s letter dated January 12, 2000 as "a an OFA purchaser would need all the property interests valid acceptance" of the sale terms, noting that CCPA associated with the rail line in order to provide effective followed RVI’s initial objection with another letter transportation operations. Applying this rebuttable "unequivocally" reiterating its acceptance. The STB presumption, the STB decided that RVI had failed to show described CCPA’s second letter as follows: that CCPA could provide effective rail services on less than the entire rail line. By letter filed on January 19, 2000, CCPA states that it has accepted the terms and conditions of the January 7 In opposition to the STB’s interpretation, RVI construes 49 decision and explains that, given the history of its U.S.C. § 10904(f)(1)(B) as Congressional recognition that an dealings with RVI, the additional language in its owner need not transfer all property comprising the line, and acceptance letter indicating its understanding of the as a rejection of the STB’s plenary power to force conveyance transaction was prudent and necessary. of all property interests, particularly those unrelated to rail operations. RVI explains that Congress recognized that some Id. at *2. The STB then ordered RVI to convey by quitclaim of the property included in a rail line abandonment petition deed "all of its property interests, as discussed in this might be necessary for rail operations, but some would not. decision, in its 35.7-mile line of railroad extending from Further, according to RVI, the Fifth Amendment limits the milepost 0.0 at Youngstown, OH, to milepost 35.7 at STB’s authority to force the sale of property for public Darlington, PA, and a connecting 1-mile line segment near purposes. See Chicago & N.W. Transp. Co. v. United States, Negley, OH" provided that CCPA tendered payment on or
678 F.2d 665, 668 (7th Cir. 1982) (suggesting that the price before April 6, 2000. Id. at *4. The STB also admonished set under the OFA proceeding must satisfy "just RVI that it should not "unilaterally diminish the assets or their compensation" principles of the Fifth Amendment). RVI argues that government agencies, such as the STB, can only require a transfer of the quantity of property or degree of interest necessary to accomplish the public purpose. Cf. City of Cincinnati v. Vester,
33 F.2d 242, 245 (6th Cir. 1929) 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO SUHVHUYLQJUDLOVHUYLFHZKHQHYHUSRVVLEOHIRUWKHEHQHILWRI value."Id.RVI has filed a petition with this Court to review VKLSSHUVDQGWKHJHQHUDOSXEOLFcomporting with the need to the STB’s March 3, 2000 decision. sustain "DIXQFWLRQLQJLQWHUVWDWHUDLOURDGV\VWHP´ 5HGPRQG ,VVDTXDK)GDW %\QRWUHTXLULQJDFFHSWDQFHRQ 7KH67%¶V2FWREHUGHFLVLRQFRQYH\LQJWKH WKHSDUWRIDTXDOLILHG2)$SXUFKDVHU&RQJUHVVPDGHFOHDU UDLOOLQHWR&&3$ WKDWWKHRYHUULGLQJREMHFWLYHZDVWRSUHVHUYHUDLOVHUYLFHIRU VKLSSHUVRYHUDOLQHWKDWZRXOGRWKHUZLVHEHDEDQGRQHG &&3$ QRWLILHG WKH 67% RQ 0DUFK that it was prepared to tender payment to RVI, but that it had discovered 7KXV LW LV XQQHFHVVDU\ IRU DQ 2)$ SXUFKDVHU VXFK DV some inconsistencies between specimen deeds drafted by RVI &&3$WRILOHDQDFFHSWDQFHRIWKHWHUPVRIWKHVDOHGiven and the property description used by CCPA’s appraiser in that CCPA never withdrew its offer to acquire the rail line valuing the line. CCPA followed this letter with a petition, that RVI wanted to abandon, the sale was binding upon both submitted on March 28, 2000, for a declaratory order from the parties.
49 U.S.C. § 10904(f)(2). Accordingly, the STB had STB invalidating any post-September 3, 1999 transfers or jurisdiction to approve the sale of the rail line. assignments of property interests from RVI that were not included in CCPA’s appraisal report. CCPA specifically 2. The STB’s October 4, 2000 decision was not expressed concern about RVI’s secret conveyances of the erroneous to the extent that it ordered RVI to line’s non-rail crossing, aerial, and subsurface rights to its transfer its entire fee simple interest in property affiliate VPB in late October and early November of 1999, constituting the rail line that was the subject of RVI’s without informing CCPA or the STB about them. To ensure exemption petition for abandonment that it would actually acquire what it purchased, CCPA requested the STB to void "all transfers or assignments of RVI next argues that the STB exceeded its jurisdiction property rights in the railroad property not specifically under the statute because it ordered RVI to transfer more of reflected in CCPA’s evidence on the value of the line." (J.A. its property than was necessary for CCPA to provide effective at 1250.) rail service. While CCPA requested RVI to convey a fee simple interest in all the property comprising the rail line, Consequently, in a decision issued on April 5, 2000, the RVI contends that to conduct effective rail operations CCPA STB ordered RVI to show cause why it should not set aside requires no more than a surface fee or easement over the line. the transfers of subsurface and aerial rights to VPB, and why In support of its contention that an owner need not transfer all the property comprising the line, RVI relies upon
49 U.S.C. § 10904(f)(1)(B), which provides that when a party to an ,Q WKH FRPSDQLRQ FDVH DOVR GHFLGHG E\ WKH 67% RQ 0DUFK OFA proceeding asks the STB to set terms, the STB must WKH 67% UHMHFWHG WKH SHWLWLRQV RI VKLSSHUV 'DUOLQJWRQ %ULFN DQG ,QVXO WR UHRSHQ 59,¶V DFTXLVLWLRQ GHFLVLRQ 7KHVH VKLSSHUV FRQWHQGHG WKDW 59, determine the price and other terms of sale, except that in KDG XQGHUWDNHQ FHUWDLQ DFWLRQV WKDW PDGH UHVWRUDWLRQ RI WKH OLQH PRUH no case shall the Board set a price which is below the fair GLIILFXOW DQG WKDW WKH 67% VKRXOG KDYH PRUH YLJRURXVO\ HQIRUFHG LWV RZQ SROLF\ ZLWK UHJDUG WR 59,¶V YLRODWLRQV RI LWV FRPPRQ FDUULHU REOLJDWLRQV market value of the line (including, unless otherwise # # Ventures, Inc. Acquisition and Operation Exemption Youngstown mutually agreed, all facilities on the line or portion & S. R.R. Co., STB Finance Docket No. 33385,
2000 WL 24367, at *3 necessary to provide effective transportation services). (Service Date Mar. 3, 2000). 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO the entire property considered in the January 7, 2000 decision regulation is "manifestly contrary to the statute." Ragsdale, should not be transferred to CCPA. See R.R. Ventures, Inc. 122 S. Ct. at 1160. Under the clear terms of § 10904(f)(2), Abandonment Exemption Between Youngstown, OH, and the offeror need not file an acceptance of the STB’s decision Darlington, PA, in Mahoning and Columbiana Counties, OH, setting the terms of the sale. Rather, an offeror needs to and Beaver County, PA, STB Docket No. AB-556 (Sub-No. respond to the STB’s decision only in the event that it wants 2X),2000 WL 351356, at *2 (Service Date April 5, 2000). to withdraw its offer to purchase the line. Thus, once an The STB explained that after RVI supplied information about offeror has made an offer to purchase a line being abandoned, the line to CCPA on October 8, 1999, RVI had a continuing and the STB has made a decision setting the terms of the sale, duty to keep CCPA informed of any changes in the then the sale of the rail line is binding upon both the rail information. The STB stated that "[b]y transferring assets carrier selling the line and the offeror, unless the offeror after October 8, 1999, and failing to immediately inform the withdraws its offer within ten days of the STB’s decision offeror and the STB, RVI has undermined the OFA process." setting the terms of the sale.
Id. at *1. The STB also noted that RVI’s proposed quitclaim deeed to convey the 4.2 acre parcel to Boardman Township In effect, the position of a prospective OFA purchaser Park District "directly contravenes our March 3, 2000 mirrors that of the abandoning rail owner abandoning the line. decision" and that "RVI may not transfer this parcel to the In a forced sale under § 10904(f)(2), neither the purchaser nor Park District." Id. at *2 n. 2. the abandoning rail owner is required to accept the STB’s terms of the sale. However, the statute permits an OFA RVI responded to the show cause order on April 20, 2000 purchaser, but not the abandoning rail owner, to withdraw its by claiming that
49 U.S.C. § 10904required only the sale of offer within ten days of the STB’s decision imposing the a surface easement, denying any intent to convey a fee simple terms of the sale. Absent a withdrawal on the part of the OFA interest in the property. According to RVI, it only intended buyer, the sale is consummated in accordance with the terms to "convey an easement for railroad purposes together with all imposed by the STB, pursuant to its exclusive and plenary track." Thus, RVI argued that if the STB forced RVI to jurisdiction. Thus, the statute imposes, if you will, a "forced transfer its entire interest in all the property, including parts acceptance" on the part of the OFA purchaser, unless the that RVI believed were not related to rail service, at a price of buyer takes the affirmative action of withdrawing its offer. $350,000, the STB would commit an unconstitutional taking Such a "forced acceptance" is the logical counterpart of the in violation of the Fifth Amendment. Further, RVI forced sale provision of § 10904(f)(2), requiring the challenged the STB’s jurisdiction over "non-rail assets which abandoning line owner to sell in accordance with the terms of are not necessary for the provision of rail transportation the sale established by the STB. service," demanding that the STB dismiss its show cause order and issue an order completing the sale. Here, we construe the absence of any language in the statute requiring a qualified OFA purchaser to accept the In support of its position, RVI submitted a verified terms of the forced sale as signaling Congress’ clear intention statement from its president, David Handel, who stated that not to require acceptance on the part of the purchaser. We RVI had informed CCPA of the transfer of subsurface and air believe that the omission of language regarding acceptance by rights, third-party agreements, and surface easements at a an OFA purchaser UHIOHFWV &RQJUHVV¶ RYHUDUFKLQJ JRDO RI 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO agreed to its sale terms and denied RVI’s motions to vacate meeting on November 30, 1999. Handel noted that CCPA’s and to stay the sale of the rail line. appraiser John Rossi, who had filed an earlier verified statement, disclaiming prior knowledge of the transfers of To determine whether the STB had jurisdiction to force subsurface and aerial rights, was not present at the meeting, RVI to sell the line, we begin by examining the pertinent and thus had not included the transfers in his appraisal filed statutory language. Pursuant to
49 U.S.C. § 10903, the STB in December of 1999. According to Handel, RVI "had has exclusive and plenary jurisdiction over a rail carrier consistently maintained throughout this proceeding that seeking to abandon a rail line. 3UHVHDXOW 86DW FLWLQJ subsurface and aerial rights were not part of the interest which .DOR%ULFN86DW 5/7'5\&RUS)GDW RVI was prepared to convey to CCPA for purposes of )ULHQGV RI WKH $WJOHQ6XVTXHKDQQD 7UDLO )G DW continued rail operations." QAs previously stated,
49 U.S.C. § 10904(f)(2) gives an offeror ten days in which to withdraw the offer to purchase In response to RVI’s show cause filing, CCPA denied any a rail line following a decision of the STB setting the terms of knowledge about the conveyance of subsurface or aerial rights the sale. Without a withdrawal by the offeror, the STB’s prior to March 23, 2000, stating that "a third party" brought decision becomes binding on both parties. the matter to CCPA’s attention. CCPA also highlighted that Handel had valued the land for abandonment purposes on the While the statute does not impose any requirements or time basis of a full fee interest, and that RVI’s counsel had, on constraints on the offeror concerning the acceptance of the September 21, 1999, stated that RVI would convey a fee terms and conditions set by the STB, 49 C.F.R. interest in the land. Finally, CCPA stated that an official of § 1152.27(h)(7) does require the offeror to accept or reject the Central Columbiana & Pennsylvania Railways, Inc. STB’s terms and conditions within ten days. Specifically, 49 ("CCPR") had determined that the entire area of land, C.F.R. § 1152.27(h)(7) provides: including noncontiguous parcels, was necessary for rail operations on the line. The official, Timothy Robbins, further Within 10 days of the service date of the Board’s explained in a verified statement that RVI had undertaken or decision, the offeror must accept or reject the Board’s authorized the removal of some track and the overpaving of terms and conditions with a written notification to the some rail crossings. Another CCPR employee, Walter Gane, Board and all parties to the proceeding. provided a verified statement that RVI "has not only allowed the line to deteriorate, but has tacitly approved the destruction49 C.F.R. § 1152.27(h)(7). of portions of the line, as well as other actions that have In this instance, there is a clear conflict between the plain caused the line to be inoperable, including paving over language of the statute and the implementing regulation. The multiple roadway crossings." Because the cost of restoring statutory language of § 10904(f)(2) does not require the these alterations was estimated to be approximately $335,000, offeror to "accept" the terms imposed by the STB within a CCPA consequently requested that the STB order RVI to designated period of time, yet the implementing regulation place sufficient funds in escrow to cover the repair costs. requires the offeror to accept or reject the terms within ten On May 10, 2000, RVI moved the STB to reopen the OFA days. Here, we conclude that
49 C.F.R. § 1152.27(h)(7) valuation process on the basis of new evidence concerning the must give way to
49 U.S.C. § 10904(f)(2) because the 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO "highest and best use" of the line. RVI accompanied this WKHVWDWXWH´5DJVGDOHY:ROYHULQH:RUOG:LGH,QF6 motion with a verified statement from Handel, representing &W TXRWLQJ&KHYURQ86DW that Williams Communications, Inc. ("Williams") had contacted both RVI and CCPA about installing fiber optic ,QDGGLWLRQXQGHUWKH$GPLQLVWUDWLYH3URFHGXUHV$FWWKLV cable along the line. Handel stated that this information &RXUW FDQQRW VHW DVLGH WKH 67%¶V GHFLVLRQV ILQGLQJV DQG "validates the contentions of RVI that the highest and best use FRQFOXVLRQVXQOHVVWKH\DUH³DUELWUDU\FDSULFLRXVDQDEXVHRI of its right-of-way is as a non-rail linear corridor." Though GLVFUHWLRQRURWKHUZLVHQRWLQDFFRUGDQFHZLWKODZ FRQWUDU\ RVI claimed that Williams intended to install a fiber optic WR FRQVWLWXWLRQDO ULJKW SRZHU SULYLOHJH RU LPPXQLW\ LQ cable along RVI’s right-of-way, RVI admitted that "Williams H[FHVV RI VWDWXWRU\ MXULVGLFWLRQ> @ RU XQVXSSRUWHG E\ has not conducted any further negotiations with RVI" after VXEVWDQWLDO HYLGHQFH´ 86& $ ( )LOP RVI submitted a proposal to it on behalf of VPB. 7UDQVLW,QFY,&& )G WK&LU ,Q GHWHUPLQLQJZKHWKHUDGHFLVLRQE\WKH67%ZDVDUELWUDU\RU CCPA also petitioned the STB on May 19, 2000 to reopen FDSULFLRXV WKLV &RXUW PXVW FRQVLGHU ZKHWKHU WKHUH ZDV D the proceedings based on new evidence, having just learned ³UDWLRQDOFRQQHFWLRQEHWZHHQWKHIDFWVIRXQGDQGWKHFKRLFH that RVI’s former president Ron Hall had previously PDGH´,G$GHFLVLRQLVQRWDUELWUDU\RUFDSULFLRXVZKHQLW contracted on November 15, 1996 to sell the salvage right to LVSRVVLEOHWRRIIHUDUHDVRQHGHYLGHQFHEDVHGH[SODQDWLRQIRU the line’s track and track materials to Kovalchick Corporation D SDUWLFXODU RXWFRPH 0RWRU 9HKLFOH 0IUV $VV¶Q Y 6WDWH ("Kovalchick") for $400,000. The agreement conditioned )DUP0XW$XWR,QV&R86 3HUU\Y Kovalchick’s right to remove track upon RVI’s obtaining 8QLWHG)RRG &RPP:RUNHUV'LVW8QLRQV abandonment or exemption authority from the STB. In its )G WK&LU ,QGHWHUPLQLQJZKHWKHUWKH response to the STB, RVI admitted the sale of the salvage 67%¶V ILQGLQJV DUH VXSSRUWHG E\ VXEVWDQWLDO HYLGHQFH WKLV rights to Kovalchick, but contended that the sale was &RXUWH[DPLQHVZKHWKHUWKH67%FRQVLGHUHG³VXFKUHOHYDQW conditional and subject to the STB’s abandonment authority. HYLGHQFHDVDUHDVRQDEOHPLQGPLJKWDFFHSWDVDGHTXDWHWR VXSSRUWWKHFRQFOXVLRQUHDFKHG´53&DUERQH&RQVWU&R On October 4, 2000, the STB issued its decision regarding Y2FFXSDWLRQDO6DIHW\ +HDOWK5HYLHZ&RPP¶Q)G its show cause order and resolved various issues that had WK&LU arisen since the January 7, 2000 decision setting the terms of the sale. The STB first rejected RVI’s argument that, %$QDO\VLV pursuant to49 U.S.C. § 10904(f)(1), it was only obligated to convey an easement for railroad purposes and rail materials. 7KH67%KDGMXULVGLFWLRQWRDSSURYHWKHVDOHRIWKH The STB stated: UDLOOLQH 2Q DSSHDO 59, ILUVW FRQWHQGV WKDW WKH 67% ODFNHG Where (as here) the offeror does not seek to purchase less MXULVGLFWLRQWRIRUFHWKHVDOHRIWKHOLQHDIWHUWKH-DQXDU\ than the entire property, we believe that it is reasonable DQG 2FWREHU GHFLVLRQV EHFDXVH CCPA never to assume that the entire property is needed for effective properly accepted the STB’s terms of sale. Accordingly, RVI transportation services. After all, that is the property the urges us to vacate the STB’s March 3, 2000 and November 2, selling/abandoning carrier (or its predecessor) assembled 2000 decisions, in which the STB determined that CCPA had for, and dedicated to, rail service. 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO of RVI and VPB’s remaining rights in the rail line. R.R. R.R. Ventures, Inc. Abandonment Exemption Between Ventures, Inc. Abandonment Exemption Between Youngstown, OH, and Darlington, PA, in Mahoning and Youngstown, OH, and Darlington, PA, in Mahoning and Columbiana Counties, OH, and Beaver County, PA, STB Columbiana Counties, OH, and Beaver County, PA, STB Docket No. AB-556 (Sub-No. 2X),2000 WL 1470451, at *6 Docket No. AB-556 (Sub-No. 2X),
2001 WL 1396719, at * (Service Date Oct. 4, 2000). In reaching this conclusion, the 4 (Service Date Nov. 9, 2001). In view of RVI’s interference STB imposed a "heavy burden" on the abandoning carrier to with the administration of the escrow fund, WKH67%IXUWKHU rebut the presumption that all the property was necessary for GLUHFWHG&&3$³WRPDQDJHWKHIXQGVGLUHFWO\´DQG³FRPSOHWH effective rail operations. The STB concluded that RVI failed DOOUHSDLUVIRUZKLFKWKHHVFURZIXQGVDUHWREHXVHGZLWKLQ to sustain this burden, finding that RVI’s "assurance" that the GD\VIURPWKHHIIHFWLYHGDWHRIWKLVGHFLVLRQ´,GDW property interests that it intended to convey to CCPA would be sufficient to operate the rail line was "entitled to little, if ,,',6&866,21 any, weight, considering that RVI has not had any experience operating this, or any other, rail line."Id.The STB further $6WDQGDUGRI5HYLHZ reasoned that dividing the surface rights from other property When asked to review a decision of an administrative rights in the land would be "impractical and unworkable" and agency, this Court employs a narrow standard of review. See "could create constant tension between the owner of the rail Simms v. Nat’l Traffic Safety Admin.,
45 F.3d 999, 1003 (6th line (here, RVI’s affiliate VPB) or other easement holders . . . Cir. 1995). )LUVWWKLV&RXUW³PXVWJLYHFRQVLGHUDEOHZHLJKW and the holder of surface rights to conduct rail operations DQGGXHGHIHUHQFHWRWKH>67%¶V@LQWHUSUHWDWLRQRIWKHVWDWXWHV (here, CCPA)."
Id.Although RVI claimed that there would LW DGPLQLVWHUV XQOHVV LWV VWDWXWRU\ FRQVWUXFWLRQ LV SODLQO\ be no problems between a railroad with surface rights and XQUHDVRQDEOH´5/7'5\&RUS)GDW TXRWLQJ other parties with subsurface or aerial rights, the STB was %URWKHUKRRGRI/RFRPRWLYH(QJ¶UVY,&& )G not persuaded, however, that there can be any assurance WK&LU VHHJHQHUDOO\&KHYURQ86$,QFY1DWXUDO that rail operations will be unhampered unless the offeror 5HVRXUFHV 'HIHQVH &RXQFLO 86 KROGLQJWKDWUHYLHZLQJFRXUWPXVWRQO\DVNZKHWKHUDJHQF\ (who will be responsible for ensuring that rail service is DFWLRQ³LVEDVHGRQDSHUPLVVLEOHFRQVWUXFWLRQRIWKHVWDWXWH´ provided) possesses sufficient property rights to ³:KLOHDQDJHQF\¶VLQWHUSUHWDWLRQRIDVWDWXWHLVHQWLWOHGWR determine unimpeded who may enter the right-of-way at GHIHUHQFHµIHGHUDOFRXUWVEHDUWKHXOWLPDWHUHVSRQVLELOLW\IRU what times and under what circumstances, as well as LQWHUSUHWLQJ IHGHUDO VWDWXWHV¶´ &URXQVH &RUS Y ,&& whether any underground or additional overhead cables )G WK&LU TXRWLQJ0HDGH7RZQVKLSY or similar structures would interfere with its own rail use $QGUXV )G WK&LU :HDOVRQRWHWKDW of the right-of-way. ³>D@QDJHQF\¶VLQWHUSUHWDWLRQRILWVRZQUHJXODWLRQ>V@PHULW>@ HYHQ JUHDWHU GHIHUHQFH WKDQ LWV LQWHUSUHWDWLRQ RI WKH VWDWXWH
Id.Accordingly, the STB ordered RVI to include in the WKDWLWDGPLQLVWHUV´%XIIDOR&UXVKHG6WRQH,QFY67% conveyance to CCPA "all property in the right-of-way, )G '&&LU +RZHYHUDUHJXODWLRQIURP including the subsurface and air rights, all real estate and WKH DJHQF\ FKDUJHG ZLWK LPSOHPHQWLQJ WKH VWDWXWH FDQQRW track, and all other rail materials." Id. at *12. VWDQGLILWLV³DUELWUDU\FDSULFLRXVRUPDQLIHVWO\FRQWUDU\WR 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO The STB also voided RVI’s transfers of subsurface and continued rail service." Id. at *2. The STB also rejected a aerial rights to its affiliate, VPB, and the sale of 4.012 acres request from RVI to include language in the bill of sale to the Park District. Citing Kalo Brick, 450 U.S. at 320, the conditioning the sale on CCPA’s assumption of liability for STB held that these transfers violated the STB’s "continuing repair of track fixtures, concluding that this language and exclusive regulatory jurisdiction over the rail line prior to contravened the STB’s order creating an escrow account for its abandonment." Id. at *7. According to the STB, RVI’s RVI’s payment of track repairs and restoration. Id. at * 3. attempted conveyances after the commencement of the OFA However, the STB granted a request from RVI to include process amounted to "a blatant effort to strip away as much of language in the instruments of conveyance indicating that the the property as possible to avoid including those portions of transfer to CCPA was subject to future orders and decisions the property in the OFA sale." Id. The STB further viewed of the STB and this Court. the transfers as "undermin[ing] the OFA sale by jeopardizing CCPA’s ability to provide effective, uninterrupted rail CCPA then moved this Court for an injunctive order service." Id. Based upon the need "to protect the integrity of compelling RVI to comply with the STB’s decisions and the OFA process," the STB, relying upon its inherent enjoining RVI from collaterally attacking the STB’s decision. regulatory authority, reaffirmed its order directing that "RVI In an order issued on January 5, 2001, a panel of this Court sell to CCPA all of the interests that it acquired in this rail partially granted CCPA’s motion, directing RVI to comply line with the exception of the licenses and crossings to which with the October 4, 2000 and December 7, 2000 decisions of CCPA has acquiesced by reducing its assessment of the the STB requiring the transfer of the rail line to CCPA. This valuation of the line . . . ." Id. Court remanded the matter to STB "for the limited purpose of specifying the form of the deed and bill of sale to be utilized The STB also addressed evidence of RVI’s 1996 sale of the for the transfer and scheduling a new date for the closing." track salvage rights to Kovalchick. While CCPA Pursuant to this Court’s January 5, 2001 order, the STB characterized the Kovalchick sale as evincing RVI’s clear issued a decision on January 17, 2001, rejecting the proposed lack of intention to operate the line and requested revocation deeds proffered by RVI, directing the parties to use the of the abandonment exemption on this ground, the STB proposed deeds proffered by CCPA, as well as its proposed declined to revoke the exemption, but instead decided to bill of sale, and setting a closing date of January 23, 2001. revalue the track and materials in light of the evidence of the R.R. Ventures, Inc. Abandonment Exemption Between sale to Kovalchick. Specifically, the STB explained that RVI Youngstown, OH, and Darlington, PA, in Mahoning and had withheld information about the Kovalchick sale during its Columbiana Counties, OH, and Beaver County, PA, STB earlier valuation of the line, "render[ing] meaningless the later Docket No. AB-556 (Sub-No. 2X),2001 WL 41202, at *2-3 offer upon which [the] STB had relied." The STB determined (Service Date Jan. 17, 2001). that the net salvage value for the track should be reduced to the $400,000 that Kovalchick had paid for the right to salvage Thereafter, in May of 2001, CCPA filed a request with the the materials in the future.
Id. at *8-9. STB seeking clarification of the assets to be transferred to it and the establishment of a procedure for disbursing the funds The STB also refused RVI’s request that the STB reopen from the escrow account to pay for repairs to the line. In a the line valuation to consider evidence of the line as an decision on November 9, 2001, the STB clarified the extent 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO FRUULGRU 7KH 67% H[SODLQHG WKDW LW KDG FUHGLWHG DOO WKH assembled corridor, except for in one limited area, adjusting ³FRQYLQFLQJHYLGHQFH´RIDVVHPEOHGFRUULGRUYDOXHOLPLWHG the value of the land upward somewhat to reflect timely WR WKH FRQWUDFW IRU VDOH RI DFUHV RI ODQG WR %RDUGPDQ evidence of a contingent sale of 20.6 acres to the Park District 7RZQVKLSDQGWKHHDUOLHUVDOHRIDQDHULDOHDVHPHQWWR2KLR for a 4.2 mile bicycle trail, for which RVI had earlier (GLVRQ&RPSDQ\7KH67%UHIXVHGWRFUHGLWRWKHUFRUULGRU submitted a signed contract. Because RVI had a contract to YDOXDWLRQHYLGHQFHEecause RVI had not presented it in the sell its rights on the 4.2 mile segment to the Park District in form of a signed sale agreement or firm purchase offer.Id.at the event that the line were abandoned, the STB revalued the * 6-7. Finally, the STB reconfirmed its conclusion that the acreage sold to the Park District at the contract price of proper track salvage value was limited to $400,000 based $600,000, and revalued the remaining portion of the land upon the 1996 sale to Kovalchick. The STB explained that within Boardman Township (approximately two acres) at "if abandonment had occurred, RVI could not have resold the $19,306. The STB’s revaluation of the land thus yielded a track and materials to a different company for any price, total land value of $817,868, from which it subtracted because it earlier had sold the future salvage rights for $100,000 for income assigned by RVI to a third party. The $400,000."
Id. at *7. RVI has filed a petition for this Court’s STB added the $717,868 to the new $400,000 track value and review of the STB’s November 2, 2000 decision. By an order reached a total value for the rail line of $1,117,868.
Id.at * dated November 17, 2000, this Court denied RVI’s request 10-11. for a stay pending judicial review. However, the STB rejected all of RVI’s other reasons for 5. The STB’s December 7, 2000, January 17, 2001 and revaluing the land as an assembled corridor, concluding that November 9, 2001 decisions RVI’s evidence, which included proposals by other park districts to gain funding for trails on the line and an offer by After the STB’s November 2, 2000 decision, a number of RVI to sell an easement to Williams for installation of fiber issues arose between the parties resulting in several more optic cable, was not submitted prior to its setting the land decisions of the STB. On December 7, 2000, the STB valuation in the January 7, 2000 decision and was rejected a request from RVI to bind CCPA and its prospective "speculative." The STB explained: operator, CCPR, to the 1996 "management agreement" between RVI and OLE, Ltd., which required the payment to With the exception of the completed sale of an easement a property manager of ten percent of the gross receipts from to Ohio Edison [that the Board had included in its prior the operation, rent, or transfer of the rail line. R.R. Ventures, valuation of the land], there is no comparable signed Inc. Abandonment Exemption Between Youngstown, OH, contract for sale of rights for other utility easements on and Darlington, PA, in Mahoning and Columbiana Counties, any portion of the right-of-way. Nor is there a firm bid OH, and Beaver County, PA, STB Docket No. AB-556 (Sub- from a purchaser that would be binding upon RVI’s No. 2X),
2000 WL 1801264, at *2-3 (Service Date Dec. 7, acceptance. 2000). The STB found that this obligation, costing approximately $137,000, subjected CCPA to unnecessary and
Id. at * 9. The STB also refused to include the 4.012-acre burdensome costs, possibly thwarting a sale of the rail line sale to the Park District because RVI had not identified the under the OFA process, and was contrary to the primary purpose of
49 U.S.C. § 10904, which is "to provide for 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO Y6XUIDFH7UDQVS%G Y6XUIDFH7UDQVS%G HWDO HWDO location of the parcel, and did not argue that the contract for The STB then issued a decision on November 2, 2000, sale demonstrated the value of the land.Id. at * 10. denying RVI’s motions to vacate and to stay the sale. R.R. Ventures, Inc. Abandonment Exemption Between Finally, the STB discussed CCPA’s evidence regarding Youngstown, OH, and Darlington, PA, in Mahoning and removal of, or damage to, segments of the line and track. Columbiana Counties, OH, and Beaver County, PA, STB Specifically, the STB responded to correspondence Docket No. AB-556 (Sub-No. 2X),
2000 WL 1648143introduced by CCPA that showed that RVI authorized "state (Service Date Nov. 2, 2000). The STB explained that road crews [to] pave over the line while it was still an active pursuant to
49 U.S.C. § 10904(f)(2), an offeror, such as rail line and at the same time that shippers were requesting CCPA, is obligated to file a notice of withdrawal from a sale service." Because the STB found that RVI acted in "blatant within ten days of a STB decision setting terms, but it is not disregard of its common carrier obligations to provide statutorily obligated to file a notice of acceptance. The STB service," it acceded to CCPA’s request to establish an escrow also rejected RVI’s argument that CCPA had failed to comply account for funding "to ensure that RVI pays for uncovering with the ten-day period for accepting or rejecting in writing and restoring paved-over track and for reconnecting signal the STB’s terms pursuant to
49 C.F.R. § 1152.27(h)(7). equipment at road crossings."
Id. at * 11. The STB According to the STB, CCPA had provided proper written accordingly directed that $375,000 of the sale price be placed notice when the STB set the initial sale terms on January 7, into an escrow account, and ordered RVI to permit CCPA and 2000, and thus had complied with the regulation because the its agents to inspect the line for damage. The STB then STB had not required another notice of CCPA’s acceptance ordered RVI to convey to "CCPA all land, track, and related of its October 3, 2000 decision. The STB further rejected material, and property interests covered by [its] previous RVI’s motion to vacate in light of CCPA’s October 20, 2000 order, as clarified here, within 45 days of the date of service letter of acceptance.
Id. at * 3-4. of this decision according to the terms of closing stated in this decision."
Id. at * 12. RVI, Boardman Township, and the 7KH 67% DOVR GHQLHG 59,¶V PRWLRQ IRU D VWD\ SHQGLQJ Park District have filed petitions for review from the STB’s MXGLFLDOUHYLHZRIWKH2FWREHUGHFLVLRQ7KH67% October 4, 2000 decision. ILUVW UHMHFWHG 59,¶V DUJXPHQW WKDW &&3$ KDG QRW SURSHUO\ DFFHSWHGWKH-DQXDU\WHUPVRIWKHVDOH59,DJDLQDGYDQFHG 4. The STB’s November 2, 2000 decision denying WKHDUJXPHQWWKDWWKH67%FRXOGRQO\IRUFHDQRZQHUWRVHOO RVI’s motions to vacate and to stay the sale DVPXFKSURSHUW\DVQHFHVVDU\IRUUDLORSHUDWLRQVDQGWKDW &&3$¶V DFFHSWDQFH RI D IHH LQWHUHVW ZDV JUHDWHU WKDQ WKH After the STB’s October 4, 2000 decision, RVI filed a 67%¶V WHUPV 7KH 67% UHLWHUDWHG LWV ³UHEXWWDEOH motion to vacate the sale and vacate postponement of the SUHVXPSWLRQ´WKDWDSXUFKDVHUZRXOGQHHGDOORIWKHVHOOHU¶V abandonment exemption on the grounds that CCPA had not LQWHUHVWV³WRSURYLGHHIIHFWLYHWUDQVSRUWDWLRQVHUYLFHEHFDXVH timely accepted the STB’s new sale terms. RVI also WKDWLVWKHSURSHUW\WKHVHOOHU RULWVSUHGHFHVVRU DVVHPEOHG requested a stay of the sale pending review by this Court. IRU DQG GHGLFDWHG WR UDLO VHUYLFH´ FRQFOXGLQJ WKDW &&3$ CCPA responded to this motion with a letter to the STB dated ZRXOGQHHGDOORI59,¶VLQWHUHVWLQWKHOLQH,GDW October 20, 2000, advising both the STB and RVI that "it accepts the revised terms and conditions." 7KH67%DOVRUHMHFWHG59,¶VFRQWHQWLRQWKDWWKH67%KDG LJQRUHGHYLGHQFHRIQRQUDLOXVHRIWKHOLQHDVDQDVVHPEOHG
Document Info
Docket Number： 00-3261, 00-3275, 00-3317, 00-4303, 00-4345, 00-4346, 00-4435, 01-3090 and 01-3091
Citation Numbers： 299 F.3d 523
Judges： Clay, Guy, Nugent
Filed Date： 8/1/2002
Precedential Status： Precedential
Modified Date： 10/19/2024