BROTH. OF RR SIGNALMEN v. Surface Transp. Bd.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 10, 2011 Decided March 29, 2011

No. 10-1138

BROTHERHOOD OF RAILROAD SIGNALMEN ET AL.,

PETITIONERS

v.

SURFACE TRANSPORTATION BOARD AND

UNITED STATES OF AMERICA,

RESPONDENTS

MASSACHUSETTS DEPARTMENT OF TRANSPORTATION AND

CSX TRANSPORTATION, INC.,

INTERVENORS

On Petition for Review of an Order

of the Surface Transportation Board

Richard S. Edelman argued the cause for the petitioners.

Michael S. Wolly was on brief.

Jeffrey D. Komarow, Attorney, Surface Transportation

Board, argued the cause for the respondents. Robert B.

Nicholson and John P. Fonte, Attorneys, United States

Department of Justice, and Raymond A. Atkins, General Counsel

and Craig M. Keats, Deputy General Counsel, Surface

Transportation Board, were on brief.

2

Keith G. O'Brien, Peter J. Shudtz and Louis E. Gitomer

were on brief for the intervenors.

Before: HENDERSON, GRIFFITH and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: The

petitioners—the Brotherhood of Railroad Signalmen, the

Brotherhood of Maintenance of Way Employees Division/IBT

and the American Train Dispatchers Association (collectively,

Unions)—challenge a decision of the Surface Transportation

Board (STB, Board) holding that the purchase by the

Massachusetts Department of Transportation (MassDOT) of

railroad track and other rail assets from CSX Transportation

(CSXT), which reserved a permanent, exclusive freight

easement over the track, is not the acquisition of a “railroad

line” requiring STB authorization or exemption under the

Interstate Commerce Commission Termination Act of 1995

(ICCTA),1 49 U.S.C. § 10901(a)(4). Mass. Dep’t of

Transp.—Acquisition Exemption—Certain Assets of CSX

Transp., Inc., Fin. Docket No. 35312 (STB May 3, 2010)

(MassDOT Dec.). Because the STB’s decision reflects a

reasonable interpretation of the statute—and in particular of the

term “railroad line” as used therein—we uphold the Board’s

decision.2

1

The ICCTA, Pub. L. No. 104-88, 109 Stat. 803 (1995), abolished

the Interstate Commerce Commission (ICC, Commission), created the

STB, transferred to it the ICC’s remaining regulatory authority and

provided that ICC precedent applies to the STB. N. Am. Freight Car

Ass’n v. Surface Transp. Bd., 529 F.3d 1166, 1169 n.2 (D.C. Cir.

2008).

2

We are satisfied that the Unions have standing under Article III

of the United States Constitution notwithstanding their own failure to

3

clearly articulate the requisite injury. Commuter Rail Div. of Reg’l

Transp. Auth. v. Surface Transp. Bd., 608 F.3d 24, 30 (D.C. Cir. 2010)

(“The ‘irreducible constitutional minimum of standing contains three

elements’: (1) injury-in-fact, (2) causation, and (3) redressability.”

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992))

(internal quotation omitted). The Unions claim in their opening brief

that they and their members are or will be injured because their

collective bargaining agreements with CSXT “were rendered . . .

ineffective as a result of the acquisition,” the Union’s members no

longer have seniority rights under the agreements and, if MassDOT is

not a “carrier” subject to the Railway Labor Act (RLA), it “will not be

obligated to collectively bargain with the Unions” and it “can contract

to have rail work performed by non-carrier entities whose employees

could not be organized under the RLA.” Pet’rs’ Br. 13-14. The

Unions acknowledge, however, that MassDOT’s current system

operator is the Massachusetts Bay Commuter Railroad, which is a

“carrier” subject to the RLA and has collective bargaining agreements

with the Unions thereunder. Pet’rs’ Br. 5 n.2; Intervenor’s Br. 17-18

& n.11. Nor have the Unions alleged their bargaining agreements with

the Massachusetts Bay Commuter Railroad are in any way inferior to

the now “ineffective” bargaining agreements they had with CSXT

covering the same employees. That MassDOT might change to a non-

carrier, non-union operator some time in the future is simply

speculative. See Lujan, 504 U.S. at 583 (1992) (“[W]e have denied

standing to plaintiffs whose likelihood of suffering any concrete

adverse effect from the challenged action was speculative.”).

Nonetheless, the STB acknowledged at oral argument that some of the

Unions’ members have already been displaced as a result of the

acquisition and this constitutes a concrete injury sufficient to confer

representational standing on the Unions. Oral Argument Recording

at 15:50, Bhd. of Signalmen v. Surface Transp. Bd., No. 10-1138 (D.C.

Cir. Feb. 10, 2011); see Ass’n of Flight Attendants-CWA, AFL-CIO v.

U.S. Dept. of Transp., 564 F.3d 462, 464 (D.C. Cir. 2009) (union has

representational standing to litigate on behalf of members if “(a) its

members would otherwise have standing to sue in their own right; (b)

the interests it seeks to protect are germane to the organization's

purpose; and (c) neither the claim asserted nor the relief requested

4

I.

In 2009, MassDOT agreed to purchase from CSXT property

interests in 70-plus miles of track and real estate (Railroad

Assets), including rights-of-way and related assets, in order to

expand the commuter rail system MassDOT operates through its

Massachusetts Bay Transportation Authority (MBTA). Under

the purchase agreement, CSXT retains a permanent and

exclusive freight easement over the track and MassDOT

assumes all of the dispatch and maintenance responsibilities.3

On November 24, 2009, MassDOT filed a notice seeking an

exemption under 49 U.S.C. § 105024 from the statutory

requires the participation of individual members in the lawsuit”)

(internal quotation omitted).

3

The purchase of the Railroad Assets is to take place in two

stages. The first occurred on June 11, 2010 and the second is expected

to occur in 2012.

4

Section 10502(a) provides:

In a matter related to a rail carrier providing

transportation subject to the jurisdiction of the Board under

this part, the Board, to the maximum extent consistent with

this part, shall exempt a person, class of persons, or a

transaction or service whenever the Board finds that the

application in whole or in part of a provision of this part—

(1) is not necessary to carry out the transportation

policy of section 10101 of this title; and

(2) either–

(A) the transaction or service is of limited

scope; or

(B) the application in whole or in part of the

5

requirement that a “person other than a rail carrier” obtain a

certificate of authorization in order to “acquire a railroad line.”

49 U.S.C.§ 10901(a)(4).5 At the same time, MassDOT also filed

a motion to dismiss the notice on the ground that neither

authorization nor exemption therefrom was required because the

Railroad Assets do not constitute a “railroad line” within the

meaning of section 10901(a)(4).

In a May 3, 2010 decision, the STB granted MassDOT’s

motion to dismiss based on a line of precedent extending back

almost 20 years to its decision in Maine Department of

Transportation—Acquisition & Operation Exemption—Maine

Central Railroad Co., 8 I.C.C. 2d 835 (ICC 1991) (State of

Maine). In State of Maine, the STB’s predecessor—the

provision is not needed to protect shippers from

the abuse of market power.

49 U.S.C. § 10502(a).

5

Subsection 10901(a)(4) provides in its entirety:

A person may—

...

(4) in the case of a person other than a rail carrier,

acquire a railroad line or acquire or operate an

extended or additional railroad line,

only if the Board issues a certificate authorizing such

activity under [section 10901(c)].

49 U.S.C. § 10901(a)(4). Under Section 10901(b), the acquiring

entity must file an application and the Board must provide public

notice of the certification proceeding. Id. § 10901(b). “The Board

shall issue a certificate authorizing activities for which such authority

is requested . . . unless the Board finds that such activities are

inconsistent with the public convenience and necessity.” Id.

§ 10901(c).

6

ICC—concluded it lacked jurisdiction under section 10901 over

the State of Maine’s acquisition of 15.66 miles of railroad track

from the Maine Central Railroad Company (Maine Central)

because the State of Maine purchased only physical assets, while

Maine Central retained a permanent easement to conduct its

common carrier freight operations. The ICC explained it did not

consider the transaction to constitute the acquisition of “a

railroad line” triggering mandatory review under section

10901(a)(4) because “no common carrier rights or obligations

[we]re being transferred” as “both parties agree[d] that [Maine

Central] retain[ed] the common carrier obligation and that it

could not cease to offer service on the line without ICC

permission.” 8 I.C.C. 2d at 837.

Granting MassDOT’s motion to dismiss, the Board

concluded the Unions did not meet their burden of showing that

a departure from State of Maine—which the ICC and STB have

followed in more than 60 cases—was “warranted . . . as a matter

of law or policy.” MassDOT Dec. 6-7 (citing Nat’l Cable &

Telecomms. Ass’n v. FCC, 567 F.3d 659, 667 (D.C. Cir. 2009)).

The Board underscored the policy reasons behind the State of

Maine decision, noting that the “main reason is ‘to remove

obstacles which might inhibit States from acquiring lines so that

service can be continued,’ ” while “ensur[ing] long term freight

service to shippers”—with the “added benefit” of “facilitat[ing]

intrastate commuter operations.” MassDOT Dec. at 7 (quoting

State of Maine, 8 I.C.C. 2d at 837 n.7) (internal quotation

omitted). The same policies, the Board explained, are served

here because MassDOT’s acquisition of the Railroad Assets will

assure that adequate freight service as well as intercity passenger

service continues and will allow MassDOT to expand commuter

rail passenger service as well. Id. By contrast, abruptly

abandoning State of Maine’s policy “could have widespread

impacts on transportation planning throughout the country.” Id.

at 8. The Unions timely petitioned for review.

7

II.

Notwithstanding the long line of agency precedent applying

State of Maine, the Unions argue it was wrongly decided

because its holding is inconsistent with the statutory language

and with other precedent. We address each of their arguments

in turn.

A. The Statutory Language

First, the Unions assert that the language of section 10901

unambiguously mandates that MassDOT obtain STB

authorization or exemption therefrom before it may acquire the

Railroad Assets. “We review the [Board’s] interpretation of

section 10901, a statute it is charged with enforcing, under the

principles set forth in Chevron USA[] Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984).” Detroit/Wayne

County Port Auth. v. ICC, 59 F.3d 1314, 1315 (D.C. Cir. 1995).

At Chevron step 1, if the “Congress has directly spoken to the

precise question at issue,” we “must give effect to the

unambiguously expressed intent of Congress.” Chevron, 467

U.S. at 842-43. “If, however, the court determines Congress has

not directly addressed the precise question at issue” but is “silent

or ambiguous with respect to the specific issue, the question for

the court”—at Chevron step 2—“is whether the agency’s answer

is based on a permissible construction of the statute.” Id. at 843.

At issue here is the proper interpretation of the term “railroad

line” and whether it may encompass more than “simply a

portion of a railroad” consisting of “physical assets.” Pet’rs’

Br. 21.

The ICCTA does not define “railroad line” but it does

define “railroad” as

8

includ[ing]—

(A) a bridge, car float, lighter, ferry, and

intermodal equipment used by or in

connection with a railroad;

(B) the road used by a rail carrier and

owned by it or operated under an agreement;

and

(C) a switch, spur, track, terminal,

terminal facility, and a freight depot, yard,

and ground, used or necessary for

transportation; . . . .

49 U.S.C. § 10102(6). Relying on this definition, the Unions

assert that a “railroad line is simply a portion of a railroad,”

reasoning:

[I]f “railroad” is defined as including track, switches,

spurs, and roadbed, a “railroad line” is necessarily

comprised of track, switches, spurs, and roadbed.

Accordingly, the Section 10901 requirement for Board

approval of a non-carrier’s acquisition of a railroad line

means the physical assets of the line; the road, track,

roadbed, bridges, switches, and spurs, used for railroad

transportation.

Pet’rs’ Br. 21. Thus, the Unions maintain, section 10901(a)(4)

requires that the Board must either authorize or exempt

MassDOT’s acquisition of the physical assets which constitute

a portion of CSXT’s railroad. But the Union’s focus on the

statutory definition of “railroad” ignores that the operative term

here is “railroad line.” See Nicholson v. ICC, 711 F.2d 364, 369

(D.C. Cir. 1983) (“There is a distinction in the statute between

‘railroad’ and ‘railroad line.’ Petitioner’s reasoning simply

ignores the significance of the term ‘line’ in the phrase ‘railroad

line’ . . . .”) (citation omitted). Nor is “railroad line” necessarily

9

limited to a “portion” of a railroad’s assets; it may refer to a

railroad’s entire railroad operation. See VIII Oxford English

Dictionary 978 (2d ed. 1989) (“line”: “In railway lang[uage] . . .

applied . . . sometimes to an entire system of railways under one

management”); Princeton Univ., “railroad line,” WordNet 3.0,

http://wordnetweb.princeton.edu (last visited Mar. 24, 2011)

(“railroad line” is “line that is the commercial organization

responsible for operating a system of transportation for trains

that pull passengers or freight”). Because “railroad line” is an

ambiguous term and the ICCTA is silent on its meaning, it is left

to the STB to reasonably interpret the term at Chevron step 2.

Cf. Detroit/Wayne County Port Auth., 59 F.3d at 1316 (D.C.

Cir. 1995) (“Because the Transportation Act nowhere defines

the terms ‘extension’ or ‘addition,’ we proceed to step two of

Chevron to determine whether the Commission’s interpretation

of section 10901(a) is permissible.”).

Since State of Maine, the STB has defined “railroad line” to

include not only physical railroad property but also the interstate

freight transportation authority attached to the physical property.

As the Board observed, “ordinarily, the Board exercises its

regulatory authority under section 10901(a)(4) where a

noncarrier becomes a carrier by acquiring a railroad line” and

“typically the noncarrier is acquiring the rail line in order to

become a carrier and provide the transportation in place of the

selling carrier, which typically relinquishes some or all of its

right to use the line.” MassDOT Dec. 7. But “in the State of

Maine situation, the parties’ intent and the purpose of the sale is

the opposite of the typical section 10901(a)(4) sale”: “The seller

does not relinquish its rights and obligations with respect to

providing rail freight transportation” and “the noncarrier that

purchases the physical assets of a rail line does not thereby

assume any common carrier obligation.” Id. Here, as in State

of Maine, the right to provide the common carrier service

remains with CSXT, the selling carrier, because it reserved for

itself a permanent and exclusive freight carrier easement.

10

Accordingly, the Board determined the noncarrier did not

become “a rail carrier providing transportation” and the

acquisition is not subject to section 10901(a)(4)’s authorization

requirement. Id.; see also State of Maine, 8 I.C.C. 2d at 836-37

(“Under § 10901, we have exclusive jurisdiction over the

acquisition of a railroad line by a non-carrier (including a State)

where the common carrier rights and obligations are also to be

transferred, in whole or in part. Here, however, no common

carrier rights or obligations are being transferred.”) (citation

omitted). As we have previously observed, the STB’s treatment

of the transaction is a sensible one. See United Transp.

Union-Illinois Legislative Bd. v. ICC, 52 F.3d 1074, 1078 (D.C.

Cir. 1995) (“[W]e can appreciate the logic of State of Maine

with respect to section 10901 acquisitions by noncarriers: if the

noncarrier does not thereby also acquire common carrier

obligations, it is not, nor will it become, a ‘rail carrier providing

transportation subject to the jurisdiction’ of the Commission,

and hence section 10901(a) does not give the Commission

jurisdiction over the transaction.” (quoting 49 U.S.C. § 10901(a)

(1995))).6 By contrast, as the Board points out, the Unions’

approach ignores the intended use of the Railroad Assets, which

is key to determining whether a person is a “rail carrier” subject

6

This interpretation is not, as the Unions contend, “inconsistent

with [the Board’s] treatment of the related . . . transaction” in

Massachusetts Coastal Railroad LLC—Acquisition—CSX

Transportation Inc., Fin. Docket No. 35314, 2010 WL 4974575 (STB

Mar. 29, 2010). Pet’rs’ Br. 23-24 n.9. There the Board addressed the

meaning of “property” in 49 U.S.C. § 11323, which separately

subjects to Board jurisdiction and requires Board approval or

authorization of the “purchase, lease, or contract” by one carrier “to

operate property of another rail carrier.” 49 U.S.C. § 11323(a)(2). In

any event, it was because Massachusetts Coastal (unlike MassDOT)

acquired a “permanent rail freight easement” that the STB exercised

jurisdiction over the transaction. See Mass. Coastal, 2010 WL

4974575, at *4.

11

to the Board’s jurisdiction. See 49 U.S.C. § 10102(5) (“ ‘rail

carrier’ means a person providing common carrier railroad

transportation for compensation”); cf. Nicholson, 711 F.2d at

367 (“[W]hether a particular track segment is a ‘railroad line,’

requiring Commission authorization pursuant to section

10901(a), or a ‘spur, industrial, team, switching, or side’ track,

exempt from Commission jurisdiction pursuant to section

10907(b), turns on the intended use of the track segment . . . .”)

(footnote omitted).

In sum, because the Board’s interpretation of “railroad line”

as including the right to operate as a common carrier is

consistent with common usage and leads to a logical application

of section 10901’s authorization requirement, limited to actual

carriers only, we conclude it passes muster at Chevron step 2.

B. Other Decisions

The Unions contend the decisions in State of Maine and

here are inconsistent with other agency and judicial decisions.

We disagree because we find each of the cited decisions

distinguishable.

First, the Unions cite earlier ICC decisions involving the

acquisitions of railroad lines by governmental entities for

intrastate rail transportation. They assert, for example, that State

of Maine is inconsistent with the ICC’s decision in Common

Carrier Status of States, State Agencies & Instrumentalities, &

Political Subdivisions, 363 I.C.C. 132, aff’d, Simmons v. ICC,

697 F.2d 326 (D.C. Cir. 1982), in which the ICC determined that

a state’s acquisition of a fully abandoned line or a line

“approved for abandonment and not yet fully abandoned” was

subject to section 10901’s authorization requirement but should

be exempted from it under 49 U.S.C. § 10505 (now § 10502,

supra note 4). 363 I.C.C. at 141. Unlike Maine or MassDOT,

however, a state acquiring an abandoned (or soon to be

abandoned) line acquires not only the physical assets but also

12

the rights (and concomitant obligations) of freight carriage

formerly possessed by the abandoning carrier, which retains no

rights in the abandoned line. By contrast, in dismissing

MassDOT’s notice of exemption, the Board determined that

because CSXT (like Maine Central) reserved the freight rights

to the acquired property permanently and exclusively, MassDOT

(like the State of Maine) did not acquire the rail line so that its

acquisition of the Railroad Assets by themselves was not subject

to section 10901’s authorization requirement in the first instance

and therefore did not need to be exempted from it.

Similarly, in City of Austin, Texas—Acquisition—Southern

Pacific Transportation Co., Fin. Docket No. 30861(A), 1986

WL 1166762 (ICC Nov. 4, 1986), the ICC required the City of

Austin to obtain its authorization because, as the Commission

explained in State of Maine, Austin in fact “assumed a common

carrier obligation (even though it did not intend to operate the

line itself), because by acquiring full ownership of the line it

necessarily assumed responsibility for contracting with, and

ensuring continued service by, a rail operator.” 8 I.C.C. 2d at

838 n.6 (emphasis added). Unlike CSXT, the seller there

retained no easement.

The Unions rely particularly on Staten Island Rapid Transit

Operating Authority v. ICC, 718 F.2d 533 (2d Cir. 1983), aff’g

Bhd. of Locomotive Eng’rs v. Staten Island Rapid Transit

Operating Auth., 360 I.C.C. 464 (1979), in which the Second

Circuit upheld the ICC’s determination that the municipality’s

transit authority became a common carrier when it purchased a

rail line to operate local passenger service because it also had

“concurrent responsibilities for maintenance of the line for

interstate freight service” so as to “bring[] it within the

[Interstate Commerce Act].” 718 F.2d at 539. It is true that the

seller there, like CSXT, retained the right to operate freight

service. Unlike CSXT, however, it did so not through a

permanent and exclusive easement but through a trackage rights

13

agreement separate from (albeit incorporated into) the purchase

and sale agreement. The ICC determined that the seller’s

contractual reservation of freight service “reliev[ed]” the

municipality from the obligation to provide such service “but

only so long as the authorized trackage rights arrangement

remain[ed] in effect.” 360 I.C.C. at 472. Because the

municipality had received from the ICC “an unqualified

certificate of public convenience and necessity” to acquire the

line, it had an “implicit duty under the certificate of furnishing

adequate freight service in interstate commerce (which duty

l[ay] latent so long as substitute freight service [wa]s being

fulfilled by [the seller] under a trackage rights arrangement).”

Id. at 472-74; see also Staten Island, 718 F.2d at 539-40. In

contrast, MassDOT received no “unqualified” right to the

Railroad Assets—its right is qualified by CSXT’s permanent

and exclusive freight service easement—and therefore acquired

no obligation (latent or otherwise) to provide freight service.

Finally, the Unions assert that since State of Maine was

decided, the enactment of the ICCTA has broadened the Board’s

jurisdiction through unidentified “provisions” and cases have so

“held,” extending the Board’s jurisdiction beyond interstate to

include intrastate railroad transportation. Pet’rs’ Br. 37-38.

None of the cited cases, however, addresses section 10901 or

when authorization or exemption is required. Instead, each

considers the different issue of when state law regulation of rail

carrier transportation is preempted under 49 U.S.C. § 10501(b).

See Franks Inv. Co. v. Union Pac. R.R., 534 F.3d 443 (5th Cir.

2008), rev’d, 593 F.3d 404 (5th Cir. 2010) (en banc); Norfolk S.

Ry. v. City of Austell, Ga., 1997 WL 1113647, at *6 (N.D. Ga.

Aug. 18, 1997); CSX Transp. v. Ga. Pub. Serv. Comm’n, 944 F.

Supp. 1573, 1583 (N.D. Ga 1996); Burlington N. Santa Fe Corp.

v. Anderson, 959 F. Supp. 1288 (D. MT 1997).

14

C. Reliance on State of Maine

The Unions also attempt to undermine the STB’s reliance

on State of Maine. To begin, they distinguish State of Maine on

the ground that, unlike MassDOT, Maine did not take over

dispatching and maintenance responsibilities for the freight

service. This is true but the STB adequately accounted for this

distinction. The Board noted its policy that, even where freight

rights are retained by the seller, the Board will find there has

been a jurisdictional acquisition if the rights acquired by the

purchaser are “so extensive that the noncarrier has acquired

control of the rail line,” a determination it makes on a case by

case basis. MassDOT Dec. at 8. “Early on, the ICC applied a

relatively strict standard” but over time “determined that

reasonable restrictions on freight operations are acceptable if

necessary to permit commuter operations and the freight carrier

has sufficient access to conduct its existing and reasonably

foreseeable freight operations so that it can satisfy its common

carrier obligation.” Id. at 9. With regard to maintenance and

dispatching in particular, the Board explained that “the public

agency may assume responsibility for maintaining the line and

dispatching freight operations if the operating procedures are

reasonable and do not discriminate against freight service, and

if the freight carrier has the right to inspect and to request

prompt repair of any track defects.” Id. at 9-10 (citing Metro

Reg’l Transit Auth.—Acquisition Exemption—CSX Transp., Inc.,

Fin. Docket No. 33838, slip op. at 2-3 (STB served Oct. 10,

2003); Utah Transit Auth.—Acquisition Exemption—Union Pac.

R.R., Fin. Docket No. 35008, slip op. at 4 (STB served July 23,

2007); Sacramento-Placerville Transp. Corridor Joint Powers

Auth.—Acquisition Exemption—Certain Assets of S. Pac.

Transp. Co., Fin. Docket No. 33046, slip op. at 2 (STB served

Oct. 28, 1996); Los Angeles County Transp. Comm’n—Pet. for

Exemption—Acquisition from Union Pac. R.R. Co., Fin. Docket

Nos. 32374 et al., slip op. at 2 (STB served July 23, 1996)). We

find the Board’s policy a reasonable one as it provides that the

15

responsible jurisdictional carrier—here CSXT—has the

opportunity to ensure the tracks are being adequately maintained

and available for interstate freight transportation.

The Unions further fault the STB’s emphasis on its

longstanding and extensive application of State of Maine, noting

that in the decision’s progeny, there were “no oppositions to the

motions to dismiss, no participation by any other party, no

additional analysis by the ICC/STB, and the ICC/STB merely

repeated the State of Maine holding in discussions of the issue

limited to ½ page to 1 page.” Pet’rs’ Br. 40. Thus, the Unions

maintain: “What the Board has characterized as a

well-established, well-vetted line of precedent is merely the

continuous echo of a ruling that was without foundation.” Id. at

42. The combination of some 60 decisions and no challenge

thereto in 20 years, however, suggests that potential opponents

deemed such a challenge fruitless, perhaps in recognition that

the Board’s interpretation of section 10901(a)(4) is reasonable.

In any event, that the Board has repeatedly interpreted the

statute the same way for 20 years does indeed warrant

deference. See Barnhart v. Walton, 535 U.S. 212, 220 (2002)

(“[T]his Court will normally accord particular deference to an

agency interpretation of longstanding duration.”) (citation

omitted).7

7

The Unions also argue that the STB either has jurisdiction over

the transaction or it does not and that the Board tried to have it both

ways by disclaiming jurisdiction to authorize the purchase vel non,

while at the same time purporting to “continue to have jurisdiction

over the rail property.” MassDOT Dec. at 3 n.4. We see nothing

inconsistent or illogical in the Board’s policy, which distinguishes

between the transfer of physical assets and the transfer of the right to

use the assets as an interstate freight carrier. It is the latter that

subjects a carrier to the Board’s jurisdiction.

16

For the foregoing reasons, the petition for review is denied.

So ordered.