noting that although a railroad company’s cessation of operations, cancellation of tariffs, salvage of tracks and other equipment, and relinquishment of control over the right-of-way may indicate an intent to abandon, these factors are equally consistent with a temporary cessation, or discontinuance of operations that would permit a rails-to-trails conversion, and thus would not be indicia of abandonment
How later courts described this case
- noting that although a railroad company’s cessation of operations, cancellation of tariffs, salvage of tracks and other equipment, and relinquishment of control over the right-of-way may indicate an intent to abandon, these factors are equally consistent with a temporary cessation, or discontinuance of operations that would permit a rails-to-trails conversion, and thus would not be indicia of abandonment
- holding that the Interstate Commerce Commission had authority to extend retrospectively a Certificate of Interim Trail Use eight days after the Certificate had expired
- explaining that “the railroad’s rights-of-way generally revert back to the adjoining landowners across whose property the tracks run” upon abandonment
- observing that § 1247(d) may come into play when "a railroad seek[s] to abandon a line"
Written by the judges who cited it.
The opinion
SENTELLE, Circuit Judge,
dissenting:
As the majority acknowledges Fritsch v. ICC, 59 F.3d 248 (D.C.Cir.1995), establishes the law on reopening abandoned rail track-age for rails-to-trail agreement. Under Fritsch , the ICC’s “jurisdiction over a line terminates when the line is completely abandoned _” Id. at 253 . In Fritsch we concluded that an abandonment had occurred where the railroad had expressed its intention to abandon; offered adequate support for, and received approval of, its abandonment certificate; and removed its equipment. As the majority acknowledges, in the present case UP had filed its request for an abandonment certificate, received approval and removed its equipment. It even sent correspondence to the petitioner in the present case referring to the rights of way as “abandoned.” The majority in a heading states that “UP did not consummate abandonment,” but points to nothing further that UP needed to or indeed could have done to consummate its abandonment. This case is squarely governed by Fritsch , and I do not see how the Board or future petitioners will be able to determine whether Fritsch or this opinion governs similar disagreements.
I further do not understand the majority’s reasoning in upholding the Board’s retroactive extension. In Fritsch we held that once the abandonment had occurred, the Commission (now succeeded by the Board) had lost its jurisdiction to take action granting a rails-to-trail conversion. We expressly held that “the ICC was without power to undo the abandonment....” Id. I do not understand nor does the majority explain how a Board without jurisdiction, under the rubric of granting an extension not granted before the loss of jurisdiction, can reopen to create a jurisdiction it has lost. As we noted in Fritsch , the Supreme Court has held that “[ojnce a carrier ‘abandons’ a rail line pursuant to authority granted by the [Board], the line is no longer part of the national transportation system, and although the [Board] is empowered to impose conditions on abandon-ments, ... as a general proposition ... jurisdiction terminates.” Id. (quoting Preseault v. ICC, 494 U.S. 1 , 5-6 n. 3, 110 S.Ct. 914 , 919 n. 3, 108 L.Ed.2d 1 (1990)).
In Fritsch , we held that because the Commission had not imposed any condition on the abandoning line, it retained no jurisdiction, and the attempt to change the mind of the railroad and the Commission on the question of abandonment was without effect. I do not see why the same is not true here.
In sum, this case is indistinguishable from Fritsch , and the result should be the same. I respectfully dissent.