The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 14, 2002 Decided June 14, 2002
No. 01-1305
Keokuk Junction Railway Co.,
Petitioner
v.
Surface Transportation Board and
United States of America,
Respondents
Burlington Northern and Santa Fe Railway Company,
Intervenor
On Petition for Review of an Order of the
Surface Transportation Board
William A. Mullins argued the cause and filed the briefs
for petitioner.
Theodore K. Kalick, Attorney, Surface Transportation
Board, argued the cause for respondents. With him on the
brief were Ellen D. Hanson, General Counsel, Craig M.
Keats, Deputy General Counsel, John P. Fonte and Robert B.
Nicholson, Attorneys, U.S. Department of Justice.
Michael E. Roper and Robert M. Jenkins III were on the
brief for intervenor. Richard E. Weicher entered an appear-
ance.
Before: Ginsburg, Chief Judge, and Randolph and Tatel,
Circuit Judges.
Opinion for the Court filed by Chief Judge Ginsburg.
Ginsburg, Chief Judge: After the Keokuk Junction Railway
Company terminated the long-standing agreement whereby
trains of the Burlington Northern and Santa Fe Railway
Company crossed its track, the BNSF convinced the Surface
Transportation Board to order that the crossing be allowed.
The KJRY now petitions this court for review. We grant the
petition because the BNSF has not received from the Board
the certificate without which the Board lacks authority to
order a crossing.
I. Background
In 1881 the predecessor of the Burlington Northern and
Santa Fe Railway Company contracted with the predecessor
of the Keokuk Junction Railway Company to cross the latter's
track at Keokuk, Iowa, just west of Bloody Run Creek, a
tributary of the Mississippi River. The BNSF's main line
runs parallel to and south of the KJRY's main line, but the
BNSF also owns a line of track (the Mooar Line) to the north
of the KJRY's main line. The BNSF's trains therefore must
cross the KJRY's track to get from the Mooar Line to the
BNSF's main line.
From 1881 until 1993, the BNSF crossed the KJRY via a
"crossing diamond" whereby the BNSF track directly over-
lapped that of the KJRY, forming a large "X" at the intersec-
tion. After a significant flood in 1993, one of the BNSF's
customers requested that the BNSF access the Mooar Line
at a location east of Bloody Run Creek to avoid future
problems and damage from flooding. Under this plan, the
BNSF's trains would use a quarter mile of the KJRY's track
in order to travel from the BNSF main line to the Mooar
Line. The two companies entered into a "Crossing Agree-
ment" with respect to this plan in 1996.
In 1998 the KJRY tried to buy the Mooar Line from the
BNSF. When the BNSF declined to sell, the KJRY in-
formed the BNSF of its intention to terminate the crossing
agreement. Soon thereafter, the BNSF petitioned the Board
for a declaratory order requiring the KJRY to let its trains
cross the KJRY's track. The Board granted the order, of
which the KJRY now petitions for review.
II. Analysis
The Interstate Commerce Act, as amended, provides that
no rail carrier may "construct an extension to any of its
railroad lines" unless the Surface Transportation Board "is-
sues a certificate authorizing such activity." 49 U.S.C.
s 10901(a). The statute goes on to provide, at s 10901(d)(1):
When a certificate has been issued by the Board under
this section authorizing the construction or extension of a
railroad line, no other rail carrier may block any con-
struction or extension authorized by such certificate by
refusing to permit the carrier to cross its property.
By its terms, therefore, s 10901(d)(1) prohibits a rail carrier
from blocking a crossing only "[w]hen a certificate has been
issued by the Board."
The Board has not issued the BNSF a certificate for
construction or operation of the track that runs north and
south across the KJRY's line. Why? The original track was
constructed in 1881, before the enactment of the certificate
requirement; and when the BNSF relocated the crossing
after the flooding in 1993 by laying new track, it did not
obtain a certificate because it was merely rebuilding track
that had been lawfully constructed without one. The KJRY
now argues that because the statute authorizes the Board to
order a crossing only upon its issuance of a certificate, and
the Board has not issued one, it erred in ordering the KJRY
to allow the BNSF's trains to cross the KJRY's line.
The Board in its decision did not explain why, despite not
having issued a certificate, it considered itself authorized to
issue the order. Instead, it merely referred to the issuance
of a certificate as "a formality that, in a case such as this one,
we do not believe is necessary." The Board in its brief gives
similarly short shrift to the KJRY's argument, writing only
that "even requiring the issuance of a certificate for an
existing line constructed prior to the advent of regulation
would be a needless formality, elevating form over sub-
stance." The BNSF's brief does no better, acknowledging
that s 10901(d)(1) on its face requires the Board to issue a
certificate before it orders a crossing; maintaining that "[t]he
Board could issue, or re-issue, a construction certificate in a
[sic] face of a dispute regarding an existing crossing"; and
resisting that course on the ground that it "would be an
empty formality." We take the view, however, that the
issuance of a certificate, formality or not, is the condition
precedent the Congress prescribed.
Indeed, in this case the issuance of a certificate may not be
a mere formality -- if there is merit in any of the several
grounds upon which the KJRY opposes it. The KJRY argues
that (1) the Board may not lawfully issue a certificate for
track built before the enactment of s 10901; (2) because the
track at issue is switching track, it is exempt from the
Board's authority to impose a crossing right, see 49 U.S.C.
s 10906 ("Notwithstanding section 10901 ..., [t]he Board
does not have authority under this chapter over ... switch-
ing, or side tracks"); and (3) the BNSF's trains operate over
rather than "cross" the KJRY's track. We will not have
occasion to deal with these arguments, however, unless and
until the Board issues the BNSF a certificate following a
proceeding in which the KJRY presents its objections anew.
III. Conclusion
For the foregoing reasons, the petition for review is grant-
ed and the order of the Board is
Vacated.