MO Friends of Wabash v. STB ( 2000 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 99-4102
    ___________
    Missouri Friends of the Wabash       *
    Trace Nature Trail, Inc.,            *
    *
    Petitioner,              *
    *
    v.                            * Petition for Review of
    * an Order of the Surface
    Surface Transportation Board;        * Transportation Board.
    Adjoining Landowners; United         *
    States of America,                   *    [UNPUBLISHED]
    *
    Respondents,             *
    *
    Norfolk Southern Railway Company,    *
    *
    Respondent-Intervenor    *
    on Appeal.               *
    ___________
    Submitted: October 3, 2000
    Filed: October 11, 2000
    ___________
    Before BEAM, FAGG, and LOKEN, Circuit Judges.
    ___________
    PER CURIAM.
    The Missouri Friends of the Wabash Trace Nature Trail, Inc. (Friends) petitioned
    the Surface Transportation Board (Board) for a declaratory judgment concerning the
    status of a 28.72 mile right-of-way previously owned by Wabash Railroad Company
    and used to provide rail service. After the Board denied the petition, Friends sought
    review in this court. Upon a thorough review of the record, we conclude that the Board
    did not abuse its discretion in denying the petition. See Nebraska Trails Council v.
    Surface Transp. Bd., 
    120 F.3d 901
    , 905 (8th Cir. 1997) (standard of review).
    Specifically, the record shows that the rail line was properly abandoned in 1984
    when the railroad exercised its abandonment authority in accordance with a previously
    issued agency certificate granting permission to abandon. At that point, the Board lost
    jurisdiction over the line and thus was without jurisdiction to afford Friends the
    requested relief in its petition, filed years later. See 
    49 U.S.C. § 10903
    (d) (rail carrier
    may abandon any part of its lines if Board finds present or future public convenience
    and necessity require or permit abandonment); Preseault v. ICC, 
    494 U.S. 1
    , 5 n.3
    (1990) (once carrier abandons rail line pursuant to ICC1 authority, line is no longer part
    of national transportation system, and ICC jurisdiction terminates); Winter v. ICC, 
    828 F.2d 1320
    , 1323 (8th Cir. 1987) (abandoned rail line is no longer subject to ICC
    jurisdiction; intent to abandon line was clear where railroad had filed abandonment
    application and followed ICC’s formal abandonment requirements).
    We reject Friends’ argument that the railroad’s lease of the property to a third
    party, who temporarily provided rail service over the abandoned line, revoked the
    agency’s previously granted authority to abandon. See Wisconsin Cent. Ltd. v. Surface
    Transp. Bd., 
    112 F.3d 881
    , 892 (7th Cir. 1997) (lease of properly abandoned line to
    third party who wishes to provide service does not subject owner or property to ICC
    regulatory power, unless owner takes some affirmative action beyond mere lease of line
    to indicate its willingness and ability to provide service in lessee’s stead).
    1
    The ICC (Interstate Commerce Commission) was abolished on January 1, 1996,
    and the Board assumed responsibility for regulating rail transportation. See Nebraska
    Trails Council, 
    120 F.3d at
    903 n.2.
    -2-
    Accordingly, we deny Friends’ petition for review.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-