Petition for Writ of Certiorari — CSX Transportation, Inc. v. Fritsch

Supreme Court brief1996

Ask Donna

What actually matters in this document.

Text

Supreme Court of the Anited

OFFICE

States

OCTOBER TERM, 1995

CSX TRANSPORTATION, INC., and

MONROE COUNTY, INDIANA,

Petitioners,

JANET FRITSCH, ef al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

CHARLES M. ROSENBERGER

CSX TRANSPORTATION,

500 Water Street, J150

Jacksonville, Florida 32202

(303) 298-5700

Counsel for CSX

Transportation, Inc.,

Petitioner

Of Counsel:

WILLIAM STEGER

Monroe County Attorneys

Courthouse, Room 220

Bloomington, Indiana 47404

(812) 333-3573

December 18, 1995

INC.

CHARLES H. MONTANGE

Counsel of Record

426 NW 162nd Street

Seattle, Washington 98177

(206) 546-1936

Counsel for Monroe County,

Petitioner

too. Sere.

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208

QUESTIONS PRESENTED

1. Whether a party may successfully petition for

judicial review of an agency refusal to reopen an

administratively final decision, when the motion to reopen is

predicated upon allegations of material error,

notwithstanding this Court’s holding to the contrary in

Interstate Commerce Commission v. Brotherhood of

Locomotive Engineers, 482 U.S. 270 (1987).

2. Whether the rule (declared in Brotherhood of

Locomotive Engineers) requiring that judicial review be

sought within 60 days of final agency action, as provided in

28 U.S.C. § 2344, is subject to an enormous loophole where

a member of the public claims that the only notice he

received was the customary Federal Register notice, which

is the same kind of notice on which federal agencies

otherwise rely to trigger rights of participation and review.

3. Whether ICC’s construction of the Revised

Interstate Commerce Act as authorizing it to retain

jurisdiction over a rail corridor for the 180 days provided in

a post-abandonment public use condition issued pursuant to

49 U.S.C. § 10906 is now incorrect, notwithstanding

reliance by the parties on that consistently held, judicially

supported construction.

PARTIES TO THE PROCEEDING

PER SUPREME COURT RULES 14.1(B) & 29.1

Parties-respondent before the court of appeals were

Monroe County (a lega: ~ubdivision of the State of Indiana),

CSX Transportation Inc., Monroe County Parks and

Recreation Department (an agency of Monroe County), and

the Interstate Commerce Commission. Rails to Trails

Conservancy was an amicus curiae on the side of the parties-

respondent.

Parties-petitioner before the court of appeals were

Janet Fritsch, Norman & Mary Lee Deckard, John L.

Edgeworth, Franklin A. Andrew, Carol A. Daniels, Dennis

Clark, Jack and Deanna Waterford, William & Rose

Wampler, Delma & Anna Turner, Devin & Nikii McKamey,

Brenda Flynn, Walter C. and Sara J. Anstead, Victor Oolitic

Stone Company, Inc. and Indian Creek Land Company, Inc.

Pursuant to Supreme Court Rule 29.1, CSX

Transportation, Inc. provides the following disclosure:

CSX Transportation, Inc. is a wholly owned

subsidiary of CSX Corporation, which has shares outstanding

in the hands of the public. CSX Transportation, Inc. has the

following affiliated companies which have shares outstanding

in the hands of the public: Allegheny and Western Railway

Company, The Baltimore and Cumberland Valley Rail Road

Extension Company, The Central Railroad Company of

South Carolina, The Cincinnati Inter-Terminal Railroad

ill

Company, The Cleveland Terminal & Valley Railroad

Company, Dayton and Michigan Railroad Company, and

The Home Avenue Railroad Company.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED .........c22ee000. i

PARTIES TO THE PROCEEDINGS ............ ii

TA Oe CEG i Pe et eee iv

pp Fin 8 i re ee ree vi

CP RIOT ne or0846 ih ow & aE ele es 2

ee ee es re eee 2

STATUTORY PROVISIONS INVOLVED......... 2

PEPE 6 SKN TRE eee eo 3

A. Statutory and Regulatory Framework........... 4

B. Peoopetine Datees 0 BU 6 occ eee ek ce wees 8

C. Proceedings Before the Court of Appeals ....... 11

REASONS FOR GRANTING THE PETITION ...... 12

I. The Court of Appeals’ Jurisdictional Holding

Conflicts with this Court’s Decision in

Brotherhood of Locomotive Engineers (BLE)

and with Numerous Decisions Upholding the

Adequacy of Federal Register Notice in the

Context of Federal Administrative

a ore ee ee ee 12

A. The Jurisdictional Holding Conflicts

Ws KS Ba re hes cc Per: 12

B. _ The Jurisdictional Ruling Confounds

Reliance on Federal Register Notice

and Directly Conflicts with Friends of

SO NE oo Sos oa os BERR 14

C. The Jurisdictional Issue Is Important . . . . 18

I. The Court of Appeals’ Substantive

Re-interpretation of ICC Jurisdiction Is

Inconsistent with this Court’s

Construction in Hayfield Northern,

Inconsistent with Consistent Past Agency

Practice, and Eviscerates §10906.......... 19

CERAM Sh koe keel a 26

Appendix A (decision below)................. la

Appendix B (order denying rehearing)............ 16a

Appendix C (ICC decision served 2/16/93)......... 18a

Appendix D (ICC decision served 2). ne cape 21a

Appendix E (ICC decision served MUMS. sds vk 25a

Appendix F (ICC decision served po, 28a

Appendix G (Motion to Reconsider atICC)......... 37a

Appendix H (ICC decision served wees . Seu 4la

TABLE OF AUTHORITIES

CASES PAGE

Chevron v. NRDC,

Bie fA ee 21

Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co.,

460 U3. SERIE) cs 6c dh eweees buneen 5, 20

CMC Real Estate Corp. v. ICC,

807 F.2d 1025 (D.C. Cir. 1986) ......... 15, 18, 23

Colorado v. United States,

273 U.S. SS a Dee oases 20, 21

Consolidated Rail Corp. v. ICC,

rR YY Foe | eee ry 20

EEOC v. Associated Dry Goods Corp.,

449 UB. BO CSSD 0 0 0 SSS OSE ES 21

Federal Crop Insurance Corp. v. Merrill,

392 U.S. SP Gee oc eve ce tetesseceseateee 15

Friends of Sierra Railroad v. ICC,

881 F.2d 663 (9th Cir. 1989),

cert. denied sub nom. Tuolumne Park and

Recreation District v. ICC,

466 Ui: SE oC baw es so Ree e eet passim

Glosemeyer v. Missouri-K-T R.R.,

685 F. Supp. 1108 (E.D. Mo. 1988),

aff'd, 879 F.2d 316 (8th Cir. 1989),

cert. denied, 494 U.S. 1003 (1990). ........... 25

vii

Guam v. United States,

744 F.2d 699 (9th Cir. 1984)................ 15

Hayfield Northern R.R. v. Chicago & N.W. Transp. Co..,

pn I arte ina eo hou wa 4, 20, 21

Illinois Commerce Commission v. ICC,

848 F.2d 1246 (D.C. Cir. 1988),

cert. denied, 488 U.S. 1004 (1989) _.......... 6, 15

Interstate Commerce Commission v. Brotherhood of

Locomotive Engineers,

es SI os, co 0:'c'n on picld wick passim

Mr. Sprout, Inc. v. U.S.,

Pree CRP RC NOR: b.5' 0's 00 6 Sab on ORR 21

National Labor Relations Board v. Bell Aerospace,

te Ee! Ne oe 21

North Alabama Express v. United States,

585 F.2d 783 (Sth Cir. 1978) ............... 15

Pennsylvania PUC v. U.S.,

812 F.2d 8 (D.C. Cir. 1987) ............... 21

Preseault v. ICC,

es ES oc 0x a wla a Seed oedh bees 6

Reed v. Meserve,

487 F.2d 646 (Ist Cir. 1973)................ 20

Viii

Vermont Yankee Nuclear Power Corp. v. NRDC,

eer re er 21

ADMINISTRATIVE CASES

Burlington Northern RR Co. -- Abandonment

Exemption -- in Fall River and Custer

Counties, SD, AB-6 (Sub-no. 293X),

es is a ek a Byers SS 20

Burlington Northern RR Co. -- Abandonment --

Fremont & Kenmore, King County, WA,

Se es ND obs c-d io ccc eae a wee ews 23

Burlington Northern RR Co. -- Abandonment --

Fremont & Kenmore, King County, WA,

ICC Fin. Dkt. 26638, served April 14, 1973 ...... 23

Illinois Central Gulf RR Co. -- Abandonment --

in DeWitt and Piatt Counties, AB-43

(Sub-no. 134), served Jan.4, 1989 ............ 20

Supplemental Trails Act Procedures,

CER Ae Oe ess i ae bee EOS 7

STATUTES

National Trails System Act

isn Oe ee ev becele BA ce ie passim

PAGE

Administrative Orders Review Act (Hobbs Act)

Pe Se. ok, ite. bu eS a hhc 8

oe Vane ES PAE HE 8, 13, 19

Federal Register and Code of Federal Regulations

I cil sto gt, ake ey cnt 15

Revised Interstate Commerce Act,

ed 5h ooh 6 Cokes kde 8

Rg ee sian ag wh ae 6, 15

ng sk o wld Wa eas a wg 5

IG os so so a a do ae 2 wn wee 5

RE eke vas ceace ceeds passim

REGULATIONS

Interstate Commerce Regulations

a TE fet) Sy CE 7

Le 8 lS» a ana 6, 7, 17

ee et OS SE Re Re ee eee 7

k,n ee 7

seth Ea en 9

ee a i ME i he 5 ks oad Dinvacak passim

LEGISLATIVE HISTORY

H. Rep. No. 104-311 (Nov. 6, 1995) ............ 5

S. Rep. No. 104-176 (Nov. 21, 1995)

S. 1879, reprinted in Railroads -- 1975 -- Part 2,

Hearings before the Senate Comm. on Commerce,

94th Cong., Ist Sess. (1975) .....

RULES

Be ee i 5 bss. as ee 08

ee FS eee ere

No. 95-___

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

CSX TRANSPORTATION, INC. and

MONROE COUNTY, INDIANA,

Petitioners,

JANET FRITSCH, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR

THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

CSX Transportation, Inc. and Monroe County,

Indiana, intervenor-respondents below, respectively petition

for a writ of certiorari to review the judgment of the United

States Court of Appeals for the District of Columbia Circuit

in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at 59

F.3d 248 (D.C. Cir. 1995), and is reproduced as Appendix

(App.) la-13a. The order denying rehearing (App. 16a) is

unreported. The initial order of the Interstate Commerce

Commission (ICC) issuing a Notice of Exemption (App. 18a-

20a) was published in the Federal Register on February 16,

1993. By decision served March 22, 1993 (App. 41a), ICC

issued a public use condition pursuant to 49 U.S.C. § 10906.

By decision served September 27, 1993 (App. 21a - 24a),

ICC issued a Notice of Interim Trail Use ("NITU"). By

decision served October 20, 1993 (App. 25a - 27a), ICC

denied various protests to the NITU. By decision served

March 22, 1994 (App. 28a - 36a), ICC denied further

reconsideration.

JURISDICTION

The U.S. Court of Appeals for the D.C. Circuit

entered its judgment on July 18, 1995, and denied a timely

rehearing request on September 18, 1995. The jurisdiction

of this Court is invoked under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 2344 provides, in relevant part, that

"{o]n entry of a final order ..., [the ICC] shall promptly give

notice thereof by service or publication in accordance with

its rules. Any party aggrieved by the final order may,

within 60 days after its entry, file a petition to review the

order in the court of appeals wherein venue lies. ..."

49 U.S.C. § 10906 provides, in relevant part, that

{w]hen [the ICC authorizes abandonment or

discontinuance], the Commission shall find further

whether the rail properties that are involved in the

proposed abandonment or discontinuance are suitable

for use for public purposes, including highways,

other forms of mass transportation, conservation,

energy production or transmission, or recreation. If

the Commission finds that the rail properties

proposed to be abandoned are suitable for public

purposes, the properties may be sold, leased,

exchanged, or otherwise disposed of only under

conditions provided in the order of the Commission.

The conditions may include a prohibition on any such

disposal for a period of not more than 180 days after

the effective date of the order, unless the properties

have first been offered, on reasonable terms, for sale

for public purposes.

STATEMENT

In its decision below, the U.S. Court of Appeals for

the D.C. Circuit claimed jurisdiction over an ICC refusal to

reopen a final administrative proceeding where the motion to

reopen was based on grounds of "material error." The court

of appeals decision thus conflicts directly with JCC v.

Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987),

in which this Court held that the courts of appeal lack

jurisdiction over such refusals to reopen.

The D.C. Circuit sought to avoid this direct conflict

with JCC v. Brotherhood of Locomotive Engineers, by

asserting an exception to the doctrine of repose where the

person seeking to reopen allegedly failed to receive actual

notice of the contested order, despite the fact that all

individuals and entities received constructive notice of the

administrative proceeding in the Federal Register (as well as

newspaper notice) and declined to become parties. This

aspect of the decision conflicts directly with the Ninth

Circuit’s decision in Friends of Sierra Railroad v. ICC, 881

F.2d 663 (9th Cir. 1989), cert. denied sub nom., Tuolumne

Park and Recreation District v. ICC, 493 U.S. 1093 (1990).

In Friends of Sierra Railroad, the Ninth Circuit held that

Federal Register notice of an ICC rail abandonment

proceeding is sufficient and binds the world, such that

judicial review based on material error is foreclosed pursuant

to ICC v. Brotherhood of Locomotive Engineers, unless the

petition is filed within 60 days of the final order for which

review is sought.

On the merits, the D.C. Circuit determined that,

because the railroad had "abandoned" the line during the

period in which a post-abandonment "public use condition"

was in effect, ICC lacked jurisdiction to issue an order

preserving the line for future rail service through

railbanking/interim trail use, pursuant to Section 8(d) of the

National Trails System Act, 16 U.S.C. § 1247(d). This

aspect of the panel’s decision directly conflicts with this

Court’s determination that ICC retains jurisdiction, where,

as here, ICC "attaches postabandonment conditions" to its

certificate of abandonment. Hayfield Northern R.R. v.

Chicago & N.W. Transp. Co., 467 U.S. 622, 633 (1984).

The relevant statutes and the proceedings below will

be summarized insofar as germane to these issues.

A. Statutory and Regulatory Framework

ICC has exclusive and plenary authority over

discontinuance of service on, or abandonment of, freight

railroad lines under the Revised Interstate Commerce Act.

See 49 U.S.C. § 10903-04.' ICC administers numerous

statutes bearing on post-abandonment authorization relief.

For example, under 49 U.S.C. § 10905, ICC is authorized

to compel transfer of lines authorized for abandonment for

continued rail use. Under 49 U.S.C. § 10906, ICC must

determine if a line authorized for abandonment is suitable for

alternative public uses, and, if so, that statute expressly

authorizes ICC to establish "public use conditions" for up to

180 days post-abandonment in order to foster such use.

Further, under section 8(d) of the National Trails System

Act, 16 U.S.C. § 1247(d), ICC is required to issue an order

authorizing interim trail use rather than abandonment of a

' See also Colorado v. United States, 271 U.S. 153 (1926);

Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311

(1981). As this Petition for Certiorari is written, legislation is pending

in a House-Senate Conference Committee to abolish the ICC. The

House and Senate versions of the legislation both preserve exclusive

and plenary federal authority over freight rail abandonments, basically

transferring ICC’s jurisdiction in this regard to a new agency within

the U.S. Department of Transportation. See House Report 104-311

(Nov. 6, 1995); Senate Report 104-176 (Nov. 21, 1995). Rail

abandonment regulation with regard to all issues presented in this

Petition is thus expected to continue largely unchanged except for the

name of the agency.

corridor where a railroad and a third party reach an

agreement to preserve the corridor for possible future rail

reactivation ("railbanking").”

49 U.S.C. § 10505 authorizes ICC to grant

exemptions from aspects of its regulation. Pursuant to §

10505, ICC adopted a special regulation, published at 49

C.F.R. § 1152.50, governing abandonments of rail lines

which have not been used for local traffic for at least two

years. Under § 1152.50, a carrier seeking abandonment

authority files a "notice of exemption" with the ICC, with

service on specified officials, including state and local

officials. ICC automatically publishes the "notice" in the

Federal Register twenty days later. The Federal Register

notice authorizes the abandonment, subject to motions for

reconsideration, and to subsequent imposition of

environmental, historic preservation, public use conditions,

railbanking/trail use conditions and so forth. Notice of

decisions imposing such conditions is served on all parties to

the proceeding pursuant to 49 C.F.R. § 1150.52(d)(5).’

ICC’s "environmental" regulations also require local

newspaper notice of "exempt" abandonments under 49

2 The constitutionality of 16 U.S.C. § 1247(d) as implemented by

ICC was affirmed by this Court in Preseault v. ICC, 494 U.S. 1

(1990).

> ICC’s two-year out of service class exemption regulation (49

C.F.R. § 1152.50), was upheld, including in terms of sufficiency of

notice, in /llinois Commerce Commission v. ICC, 848 F.2d 1246

(D.C. Cir. 1988), cert. denied, 488 U.S. 1004 (1989).

C.F.R. § 1152.50. See 49 C.F.R. §1105.12.4 The

newspaper notice is found in an Appendix to §1105.12.

That notice explains how interested individuals can file and

serve comments, and provides information in the event of

questions relating to the proceeding.

Under ICC procedures, ICC will revoke the "notice

of exempt abandonment" and instead issue a "Notice of

Interim Trail Use" ("NITU") under 16 U.S.C. § 1247(d)

when a railroad consents to negotiate a trail use/railbanking

agreement with a qualified party. ICC’s regulations indicate

that the agency will entertain late-filed requests for trail

use/railbanking, or late decisions by the railroad to consent

to the issuance of trail use/railbanking order, so long as the

Commission possesses jurisdiction to do so. See

Supplemental Trails Act Procedures, 4 1.C.C.2d 152, 158

(1987).

Under ICC regulations, motions or petitions to

reconsider a decision must be filed no later than 20 days

from a final order.* Barring a timely motion for

* General environmental statutes such as the National

Environmental Policy Act, 42 U.S.C. § 4321, et seq., and section 106

of the National Historic Preservation Act, 16 U.S.C. § 470f, are

applicable to rail abandonment proceedings, including “exempt” rail

abandonment proceedings.

* Under 49 C.F.R. § 1011.2(a)(7) (made applicable pursuant to

49 C.F.R. § 1152.25(e)(1)(iv)), parties seeking further review of

decisions issuing NITU’s must appeal or move within ten days of

service. To the extent § 1011.2(a)(7) is not applicable, ICC’s more

general reconsideration provision, 49 C.F.R. § 1115.3(e), applies.

This provision affords parties 20 days in which to seek further review

reconsideration, an order is final. ICC is authorized to

reconsider its decisions, and to reopen a proceeding, under

49 U.S.C. § 10327(g).

Judicial review of ICC final orders is governed by 28

U.S.C. § 2321 and the Hobbs Act, codified at 28 U.S.C. §§

2341, et seq. As germane here, 28 U.S.C. § 2344 provides

that an aggrieved part must file a petition for review of an

ICC final order within 60 days of service or publication of

the order as provided in ICC rules.

B. Proceeding before the ICC

Because the railroad line at issue here had not been

employed for local traffic for more than two years, CSX

Transportation, Inc. (CSX) filed a "notice of exemption"

pursuant to 49 C.F.R. § 1152.50 for authority to abandon

approximately 22.5 miles of rail corridor (Milepost Q-222.5

near Bloomington to Milepost Q-245.0 at Bedford) in

Monroe and Lawrence Counties. The notice was served on

all parties for whom service was required under ICC

regulations. ICC issued a Notice of Exemption, which was

published in the Federal Register on February 16, 1993.

App. 18a. The notice was effective 30 days later (i.e., on

March 18, 1993), but ICC specifically retained jurisdiction

to modify the order in response to timely requests for a

public use condition or trail use/railbanking orders. Jd.

Monroe County timely sought issuance of "interim

trail use/railbanking" order pursuant to 16 U.S.C. § 1247(d)

of an ICC order.

and 49 C.F.R. § 1152.29, as well as a public use condition

barring disposal of property interests (other than rail and

ties) in the corridor pending negotiations for acquisition of

the corridor for public use. CSX initially opposed issuance

of a interim trail use condition. However, pursuant to an

order served March 22, 1993, ICC imposed a 180-day public

use condition under 49 U.S.C. § 10906. App. 4la.

While the public use condition was in effect, CSX

advised ICC by letter filed March 29, 1993 that it had

exercised abandonment authority on March 19, 1993. The

parties then began negotiations for the transfer of the

corridor during the interval of the public use condition.

Prior to expiration of the 180-day public use condition, CSX

moved ICC to reopen the proceeding in order to issue a

Notice of Interim Trail Use (NITU) in lieu of a certificate of

abandonment, pursuant to 16 U.S.C. § 1247(d). CSX

served all parties to the proceeding. No party responded,

except Monroe County, which filed a letter supporting the

issuance of a NITU. Both CSX and Monroe County argued

that ICC retained jurisdiction to act by reason of the public

use condition.

By decision served September 27, 1993, ICC

reopened the proceeding to issue a NITU, allowing the

parties sixty days to negotiate a railbanking agreement for

the 11.64 mile segment of the line in Monroe County. App.

2la. The Commission expressly found that it retained

jurisdiction to issue the NITU by reason of the public use

condition, notwithstanding CSX’s letter filed March 29

indicating a March 19 abandonment. ICC explained that

"CSX [Transportation] legally could not fully abandon the

line until expiration of the 180-day public use condition and

the [railroad’s} March 29 letter-filing was, in effect,

notification that it had discontinued operations." App. 23a.

During the 60-day NITU negotiation period, CSX and

Monroe County completed negotiations and railbanked the

11.64-mile corridor.

Under ICC regulations, the agency will serve a

"notice or decision on all parties ... if use of [a notice of

exempt abandonment] is made subject to environmental,

energy, historic preservation, public use and/or interim trial

use and rail banking conditions.” 49 C.F.R. §

1152.50(d)(5). According to ICC records, 98 parties or

representatives of parties accordingly received service by

U.S. Mail of the September 27, 1993 decision issuing the

NITU.

Several members of the public, including Victor

Oolitic Stone Company (one of the petitioners below)

immediately filed letter-protests. However, these letters

were not served on the railroad and otherwise failed to meet

requirements for timely motions of reconsideration. ICC

served an order on October 20, 1993 treating the letter

protests as correspondence. App. 25a.

On November 8, 1993, over 40 days after the

September 27, 1993 order issuing the NITU, Victor Oolitic

Stone Company, et al., filed and served a “Motion to

Reconsider Decision and Notice of Interim Trail Use or

Abandonment.” App. 37a. ICC denied the “motion to

reconsider" by a decision served March 22, 1994. App.

28a. The Commission expressly found that it had

jurisdiction, explaining that it retained jurisdiction over the

corridor until the completion of all post-abandonment

conditions, quoting its earlier decision. App. 34a.

Victor Oolitic Stone Company and Janet Fritsch, et

al., then petitioned for review of the March 22, 1994,

refusal to reopen the proceeding in the D.C. Circuit.

C. Proceedings Before the Court of Appeals

Arguing that Victor Oolitic Stone Company and Ms.

Fritsch, et al. were seeking review of a denial of a motion

to reopen for material error, CSX and Monroe County

contended that the court of appeals lacked jurisdiction over

the appeal pursuant to JCC v. Brotherhood of Locomotive

Engineers, 482 U.S. 270 (1987), and Friends of Sierra

Railroad v. ICC, 881 F.2d 663 (9th Cir. 1989), cert. denied

sub nom., Tuolumne Park and Recreation District v. ICC,

493 U.S. 1093 (1990). ICC also joined in that contention at

oral argument. The court of appeals, while recognizing that

the question "may be a close one,” nonetheless found that it

had appellate jurisdiction. App. 9a.

Turning to the merits, ICC, CSX and Monroe County

all contended ICC retained jurisdiction to impose the NITU.

The court of appeals recognized that ICC imposed a public

use condition for the express purpose of preserving

jurisdiction to keep the corridor intact. In the words of the

court of appeals, the Commission

"did impose a public use condition under section

10906 purporting to stay the disposition of property

for 180 days .... The Commission imposed this

condition to attempt to allow [Monroe County] and

CSX time to negotiate...."

App. 4a. The court of appeals ruled, however, that ICC

cannot rely on § 10906 to retain jurisdiction over a corridor

post-abandonment.

ICC, CSX and Monroe County sought rehearing and

rehearing in banc. This was denied on September 18, 1995.

App. 16a.

REASONS FOR GRANTING THE PETITION

I. The Court of Appeals’ Jurisdictional

Holding Conflicts with This Court’s

Decision in Brotherhood of Locomotive

Engineers (BLE) and with the Numerous

Decisions Upholding the Adequacy of

Federal Register Notice in the Context of

Federal Administrative Proceedings

A. The Jurisdictional Holding Conflicts with BLE

In JCC v. Brotherhood of Locomotive Engineers, this

Court explained that the courts of appeals lack jurisdiction to

review agency refusals to reopen administratively final

decisions when the ground for reopening is a based on a

claim of material error. "[W]here no new data but only

‘material error’ has been put forward as the basis for

reopening, an appeal places before the courts precisely the

same substance that could have been brought there by appeal

in Pe ee Se ee ae

from the original order." 482 U.S. at 279. This Court

explained that allowing petitions for review of agency

refusals to reopen in those circumstances would be contrary

to the Hobbs Act’s 60-day limitation provision (28 U.S.C.

§ 2344) governing court of appeals jurisdiction to review

final orders. Jd. at 280.° Instead, courts may review

agency refusals to reopen only if the reopening was based on

"new evidence" or "changed circumstances." Jd. at 284.

In their "motion to reconsider" filed with the ICC on

November 8, 1993, Victor Oolitic Stone Company, Ms.

Fritsch, and the other petitioning parties asserted only that

ICC erred in issuing the September 27, 1993 NITU based on

their view that ICC lost jurisdiction over the corridor on

March 19, 1993. App. 38a-39a.’ Because the "motion to

reconsider" was filed over 40 days after the September 27

NITU, the motion was thus not timely under ICC rules.

Therefore, as the court of appeals correctly recognized, it

was an out-of-time motion to reopen. App. 8a. In its

® This Court added that "[i]t is irrelevant that the Commission’s

order refusing reconsideration discussed the merits of the [petitioners’]

claims at length. Where the Commission’s formal disposition is to

deny reconsideration, and where it makes no alteration in the

underlying order, we will not undertake an inquiry into whether

reconsideration ‘in fact’ has occurred....". 482 U.S. at 282.

’ The Victor Oolitic/Fritsch motion argued only that "CSX

abandoned its common carrier obligations in the railroad corridor on

or about March 19, 1993..." This was as clear an argument based on

“material error” as could be imagined, and involved neither new

evidence or changed circumstance. On its face, it alluded to the

condition of the line months before ICC’s decision of September 27,

1993.

decision served March 22, 1994, refusing to reconsider, ICC

reiterated without change its September 27, 1993 order

issuing the NITU; indeed, ICC quoted from this order.

App. 34a.

Thus, the ICC’s decision was in effect a refusal to re-

open a final administrative proceeding based on "material

error," appeals of which are governed by the rule of repose

in ICC v. Brotherhood of Locomotive Engineers. The court

of appeals decision accepting jurisdiction therefore squarely

conflicts with this Court’s ruling in JCC v. Brotherhood of

Locomotive Engineers. See also Friends of Sierra R.R. v.

ICC, 881 F.2d at 666 ("subsequent unsuccessful petition to

an agency to reopen cannot create a new final order giving

[the] court jurisdiction over an untimely petition for

review").

B. The Jurisdictional Ruling Confounds

Reliance on Federal Register Notice and

Directly Conflicts with Friends of Sierra

Railroad

To justify its failure to apply Brotherhood of

Locomotive Engineers below, the court of appeals suggested

that Victor Oolitic/Fritsch, et al., claimed not to be aware

that ICC had issued the Notice of Interim Trail Use via the

decision served September 27, 1993. The court of appeals

suggested that this alleged lack of notice constituted "new

evidence” justifying judicial review. App. 7a-8a.

The alleged "new evidence” was not "new" at all.

ICC complied, as did the railroad, with ali notice

requirements specified in ICC’s regulations (judicially

upheld*) governing notice in rail abandonment proceedings.

ICC had published notice of the proceeding in the Federal

all required parties, not only with its original notice, but also

with its motion to reopen to publish the NITU. ICC served

notice of the NITU on 98 parties who had indicated an

interest in participating in the proceeding. Moreover, the

alleged "new evidence" regarding the insufficiency notice did

not bear on the merits of whether ICC had jurisdiction

below; it was presented merely as an excuse for late-filing.

Heretofore, Federal Register notice of federal agency

proceedings has been viewed as legally sufficient notice to

the world. See, e.g., 44 U.S.C. § 1507; Federal Crop

Insurance Corp. v. Merrill, 332 U.S. 380, 384-85 (1947)

(regulations binding "regardless of actual knowledge ... or

hardship resulting from innocent ignorance"); Government of

Guam v. United States, 744 F.2d 699, 701 (9th Cir. 1984);

Bennett v. Director, Office of Workers’ Compensation

Programs, 717 F.2d 1167, 1169 (7th Cir. 1983); North

Alabama Express, Inc. v. United States, 585 F.2d 783, 787

n.2 (Sth Cir. 1978). The D.C. Circuit decision is thus a

sharp departure from a plethora of past decisions, including

some of its own decisions in the railroad regulatory context.

See, e.g., CMC Real Estate Corp. v. ICC, 807 F.2d 1025,

1031-32 (D.C. Cir. 1986) (major purpose of Staggers Act

reforms is to eliminate prior notice and hearing

requirements; Federal Register notice is sufficient in

"exempt" cases under 49 U.S.C. § 10505).

* See Illinois Commerce Commission v. ICC, supra.

Moreover, the Ninth Circuit considered the

sufficiency of Federal Register notice in the context of an

identical 49 C.F.R. § 1152.50 rail abandonment proceeding.

In Friends of Sierra Railroad v. ICC, 881 F.2d 663 (9th Cir.

1989), cert. denied sub. nom. Tuolumne Park and Recreation

District v. ICC, 493 U.S. 1093 (1990), ICC authorized,

through publication in the Federal Register, an exempt

abandonment pursuant to 49 C.F.R. § 1152.50. After the

abandonment was completely effective, a local agency,

joined by an excursion rail group, petitioned ICC to reopen

the proceeding (after the time for petitions for

reconsideration had expired) on the basis of a variety of

errors. ICC denied reopening in an extensive decision, and

then declined reconsideration of that denial in a second

extensive decision. The local agency and excursion group

petitioned for judicial review, contending that lack of notice

excused their failure to seek review of the original ICC

decision. The agency and the excursion rail group both

claimed lack of actual notice of the ICC proceeding.

The Ninth Circuit observed that ICC not only had

provided all persons with notice whom its regulations

required to be notified, but also provided notice of the

proceeding in the Federal Register. "Publication in the

Federal Register," according to the Ninth Circuit,

"is legally sufficient notice to all interested or

affected parties regardless of actual knowledge or

hardship resulting from ignorance."

881 F.2d at 667-68. Because Federal Register notice "was

plainly sufficient to provide notice to all interested persons

of the abandonment proceeding" the Ninth Circuit held that

alleged lack of notice did not constitute any grounds to

overcome the principle of repose set forth in this Court’s

BLE decision. Id. at 668

In short, the Ninth Circuit holding is precisely the

opposite of the D.C. Circuit holding.

Since the decision in Friends of Sierra R.R. v. ICC,

ICC altered its regulations to provide for notice in addition

to that which existed at the time Friends was decided.

Under ICC’s amended regulations, notices of an exemption

proceeding are now published not only in the Federal

1105.12.’ The public is told how it may participate in the

abandonment proceeding, and its comments are invited on

issues such as trail use.'°

* Section 1105.12 provides as follows:

"In every abandonment exemption case, the applicant shall

publish in a newspaper of general circulation in each county

in which the line is located and certify to the Commission that

it has done this by the date its notice of ... exemption is filed.

The notice shall alert the public to the proposed abandonment,

to available reuse alternatives, such as trail use and public

use, and to how it may participate in a Commission

proceeding. Sample newspaper notices are provided in the

Appendix to this section for guidance to the railroads.”

‘© The newspaper notice explains how to file and serve comments

(with addresses of the Commission and the railroad’s representative),

the topics to be addressed, and provides a telephone number to call at

the Commission for questions and assistance.

In addition, as provided in ICC’s applicable

regulations (e.g., 49 C.F.R. § 1150.50(d)(5), ICC served its

September 27 NITU decision on all persons who had

expressed any interest in the proceeding; namely, 98

individuals by U.S. Mail, the great majority of whom were

located in the Bloomington or Bedford areas. As a result,

the record demonstrates that the NITU was widely known,

and at least one of the Victor Oolitic/Fritsch, et al. parties

had actual notice of the September 27 NITU decision on the

very day it was served.'' In short, the court of appeals

erred not only as a matter of law, but as a matter of fact on

notice issues.

al The Jurisdictional Issue Is Important

This Court has already recognized the importance of

the question concerning the reviewability of agency denials

of petitions to reopen when this Court accepted for review

Brotherhood of Locomotive Engineers. The decision of the

court of appeals below effectively eviscerates the ruling in

that case. If the approach of the D.C. Circuit were now

adopted, virtually any member of the public could obtain

review of agency orders long final on any allegation of error

merely by filing a petition to reopen or reconsider, awaiting

denial, and then petitioning for judicial review based on

alleged inadequacy of Federal Register notice. This totally

'! A number of persons filed letters protesting the NITU on the

same day or shortly after its issuance. See App. 26a (discussing

filings). These filings illustrate that there was “widespread actual

public knowledge” of the NITU at the time of its issuance. See CMC

Real Estate Corp. v. ICC, 807 F.2d at 1925.

upsets the finality of agency decisions, and undercuts the

intent of Congress in adopting the 60-day time limitation on

judicial review of agency orders embodied in 28 U.S.C. §

2344.

Equally important, the D.C. Circuit decision below

casts doubt on federal agency reliance on Federal Register

notice of proceedings. Unless corrected, this will be highly

disruptive of agency procedures across the government. No

issue will be final, for interested individuals or entities can

either hang back for a "second bite" at the apple by not

responding to the initial Federal Register notice, or, if they

did participate, by shopping for an entity that did not

participate and prompt it to attack the otherwise final result

through a petition to reopen, based on the alleged inadequacy

of Federal Register notice.

Il. The Court of Appeals’ Substantive Re-

interpretation of ICC Jurisdiction Is

Inconsistent with this Court’s Construction

in Hayfield Northern, Inconsistent with

Consistent Past Agency Practice, and

Eviscerates § 10906

The court of appeals’ treatment of 49 U.S.C. § 10906

likewise conflicts with other decisions and is in error.

Unquestionably ICC’s jurisdiction terminates when a railroad

consummates an otherwise unconditioned abandonment

authorization.’ However, ICC enjoys broad power to

condition abandonments as the agency sees fit to safeguard

the public convenience and necessity." ICC has

consistently maintained that it retains jurisdiction when it

imposes appropriate post-abandonment conditions, such as

historic preservation conditions or public use conditions.'*

This Court, in discussing ICC jurisdiction, has explained that

although ICC jurisdiction ordinarily terminates upon

abandonment, that jurisdiction survives where ICC "attaches

postabandonment conditions." Hayfield Northern, 467 U.S

at 633. So long as ICC retains jurisdiction over a rail

corridor, it preempts state regulation to the contrary.

Chicago & N.W. T. Co. v. Kalo Brick & Tile Co., 450 U.S.

309 (1981); Colorado v. United States, 271 U.S. 311 (1926).

The court of appeals below recognized that ICC

"impose[d] a public use condition under section 10906

purporting to stay the disposition of property for 180 days

.... The Commission imposed this condition to attempt to

allow [Monroe County] and CSX time to negotiate...."

App. 4a. Unquestionably then, ICC imposed a condition

with the intent of retaining jurisdiction. The court of appeals

'2 E.g., Illinois Central Gulf Railroad Co. -- Abandonment -- in

Dewitt and Piatt Counties, AB-43 (Sub-no. 134), served Jan. 4, 1989

(no jurisdiction where unconditioned abandonment is consummated).

' E.g., Consolidated Rail Corp. v. ICC, 29 F.3d 706, 714 (D.C.

Cir. 1994); Reed v. Meserve, 487 F.2d 646, 649-50 (Ist Cir. 1973).

'* E.g., Burlington Northern Railroad Co. --- Abandonment

Exemption -- in Fall River and Custer Counties, SD, AB-6 (Sub-no.

293X), served Feb. 9, 1989.

held that ICC lacked authority to do so. This conflicts with

this Court’s recognition, since Colorado v. United States

decided in 1926, that ICC authority over abandonments is

plenary and preempts all state regulation to the contrary.

Furthermore, it flies in the face of this Court’s recognition

in Hayfield Northern that ICC retains jurisdiction where it

imposes conditions for that purpose.

On the merits, the D.C. Circuit erred. ICC has

consistently interpreted its authorizing statute to permit it to

retain jurisdiction over a rail corridor for the duration of any

conditions placed on an abandonment authorization

pertaining to that corridor. Under Chevron v. NRDC, 467

U.S. 837, 842-45 (1984), a federal agency enjoys broad

discretion in interpreting its statute. The question is only

whether ICC’s construction is "permissible." Further, a

court must defer to ICC’s construction of "terms of art” in

the administration of these statutes. Pennsylvania PUC v.

U.S., 812 F.2d 8, 12 (D.C. Cir. 1987). Deference is

especially due where, as here, the agency construction is

long-standing and the regulated industry has come to rely

upon it.'° The court of appeals below failed to give ICC’s

long-standing practice any deference, thus conflicting with

cases such as Chevron v. NRDC, supra, and Vermont Yankee

Nuclear Power Corp. v. NRDC, 435 U.S. 512, 543 (1978)

'S. NLRB v. Bell Aerospace, 416 U.S. 267, 274-75 (1974) (if the

construction is longstanding, it is considered more authoritative

because those who have had matters before the agency have come to

rely upon it); EEOC v. Associated Dry Goods Corp., 449 U.S. 590,

600 n.17 (1981) (similar). See also Mr. Sprout, Inc. v. U.S., 8 F.3d

118, 122 (2d Cir. 1993) (agency must explain in more detail a

departure from previous interpretation).

(courts not to engraft additional procedural requirements

absent compelling circumstances).

The court of appeals argued that nothing in § 10906

"explicitly or implicitly [] refers to the staying of an

abandonment during the 180-day period." The court of

appeals sets up a kind of straw man. ICC did not purport to

"stay" the abandonment in the sense of precluding the

railroad from stopping common carrier service and

commencing salvage operations. Instead, ICC uses

conditions to retain jurisdiction over a corridor further to

protect the public convenience and necessity.

The language of 49 U.S.C. § 10906 is broad enough

to contemplate an order which maintains ICC jurisdiction but

permits cessation of service. The statute expressly indicates

that the agency can bar transfer, lease, sale or any other

disposition of the property, and take action to ensure that the

property is made available for public use on "reasonable

terms."'® Clearly the language of § 10906 is sufficient to

'© In its decision below, the court of appeals claims that CSX only

owned easements in the line which reverted to adjacent landowners

upon abandonment. App. 2a, 9a. ICC did not consider the nature of

the property interests held by CSX in the corridor, and those interests

were not litigated before ICC or the court of appeals. The court of

appeals had no basis whatsoever to assume that CSX held the corridor

only by easement, or that any easements in this case “revert” upon

abandonment. Since these are state law issues rather than federal

issues, CSX and Monroe County have not petitioned this Court for

certiorari on this wholly unsupported aspect of the court of appeals’

decision. Nonetheless, CSX and Monroe County disagree with the

court of appeals unsupported statements in this regard. The issue is,

however, not germane to the issues here presented.

render "permissible" ICC’s construction that it retains

jurisdiction over a corridor for the duration of a public use

condition under § 10906 pertaining to the corridor.

Moreover, this construction is reasonable: a § 10906

"public use" condition is less burdensome to a railroad than

a full "stay" of an abandonment authorization, for the

railroad during the 180-day "public use condition" period

may cease service and commence salvage operations. In

addition to imposing less burden on the railroad, a § 10906

condition is no more burdensome to any other interested

entity than a full stay. ICC’s use of § 10906 is thus

consistent with Congress’ overall intent to loosen "the vise

grip of regulation" on the rail industry. CMC Real Estate

Corp. v. ICC, 807 F.2d 1025, 1031 (D.C. Cir. 1986).

ICC’s construction of the statute is also supported by

the legislative history of § 10906. Prior to adoption of §

10906, ICC took the position that the "public convenience

and necessity" standard for abandonments was broad enough

to permit the agency to condition abandonments so as to

permit preservation of corridors.'’ Cognizant of the

" For example, in the early 1970’s, Burlington Northern (BN)

sought to abandon a rail line in Seattle, which numerous local groups

sought to preserve as a trail. ICC issued an order barring BN from

transferring the line, for other than a public purpose, for a period

following the effective date of the abandonment. Burlington Northern

-- Abandonment -- Fremont & Kenmore, King County, WA, 342

I.C.C. 446 (1972). ICC subsequently amended the order to provide

for mandatory arbitration of terms and conditions of transfer.

Burlington Northern -- Abandonment-- Fremont & Kenmore, ICC Fin.

Dkt. 26638, served April 14, 1973 (unpublished). The line became

Seattle’s Burke-Gilman Trail.

popularity of this objective, Washington’s Senator Magnuson

and Indiana’s Senator Hartke proposed legislation to

encourage the conversion of otherwise to-be-abandoned

railroad rights-of-way to public trail use." ICC was

supportive, testifying that

The Commission has long taken the position that its

power ... to condition abandonment approvals

enables it to impose conditions designed to enhance

public uses of abandoned rail properties.'®

The Commission recommended a "more forceful

provision,"”’ specifically proposing legislation which

would go farther toward serving a valid public-

interest goal, and would in essence require the

Commission to take steps which are presently

discretionary .*!

Under the Commission’s language, which with further

strengthening became § 10906, ICC is required to issue

"terms and conditions" to foster public use for rail lines

suitable for those purposes. Those terms and conditions

'S S. 1879, reprinted in Railroads -- 1975 -- Part 2, Hearings

before the Senate Comm. on Commerce, 94th Cong., ist Sess. at 528-

33 (1975) ("1975 Hearings”).

'? 1975 Hearings, supra, at 687 (ICC Chairman Stafford).

1975 Hearings at 680.

2! 1975 Hearings at 679.

could include orders barring sales, leases, exchanges or other

dispositions of property in the corridor for up to 180 days

post-abandonment, unless the properties were first offered on

reasonable terms for public use.” In sum, the legislative

history clearly indicates an intent to supply ICC with

sufficient jurisdiction under 49 U.S.C. § 10906 to hold a

corridor intact for possible public use for 180 days post-

abandonment.

As Congress has eased rail abandonment procedures

since the mid-1970’s in order to foster more competitive

conditions within, and the economic viability of, the railroad

industry, Congress has recognized that more rail corridors

will be abandoned. Upon abandonment, these corridors are

frequently swiftly broken up, and once lost, are extremely

difficult to reassemble. Viewing rail corridors as national

assets, which may be needed again in the future, Congress

has equipped ICC with a number of means to foster

preservation of those facilities, where such can be

accomplished without unduly burdening the railroad industry.

49 U.S.C. § 10906 is one of the statutes which Congress has

adopted for this important purpose.”

After the court of appeals’ ruling below, it is difficult

to see what is left of 49 U.S.C. § 10906. Under the D.C.

Circuit ruling, once a railroad declares a line abandoned, a

§ 10906 public use condition is ineffective to preserve ICC

” 1975 Hearings at 679.

* See Glosemeyer v. Missouri-K-T R.R., 685 F. Supp. 1108,

1113-17 (E.D. Mo. 1988), aff'd, 879 F.2d 316, 318 (8th Cir. 1989),

cert. denied, 494 U.S. 1003 (1990).

urisdiction for any of the 180 day post-abandonment period

which the statute is applicable. The statute becomes a

jead letter, and ICC’s basic alternative to preserve re-use

mons is the heavy-handed step of "staying" the entire

abandonment. Hamstringing federal rail abandonment

regulation in this fashion makes no sense. The question is

important, and merits review by this Court.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

CHARLES M. ROSENBERGER CHARLES H. MONTANGE

CSX Transportation, Inc. 426 NW 162d St.

500 Water Street, J150 Seattle, WA 98177

Jacksonville, Florida 32202 Counsel for Monroe

Counsel for CSX County,

Transportation, Inc., Petitioner

Petitioner

Of counsel:

WILLIAM STEGER

Monroe County Attorneys

Courthouse, Room 220

Bloomington, IN 47404

December 18, 1995

ee ee Sil ae te

ER: See caer eet

APPENDIX

JR Ee tn PGS A a

« w ah A» : : ice, So sss

APPENDIX A

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 1995 Decided July 18, 1995

No. 94-1403

JANET FRITSCH, ET AL.,

PETITIONERS

INTERSTATE COMMERCE COMMISSION AND

UNITED STATES OF AMERICA,

RESPONDENTS

MONROE COUNTY, A LEGAL SUBDIVISION OF THE

STATE OF INDIANA, ET AL.,

INTERVENORS

On Petition for Review of an Order of the

Interstate Commerce Commission

Nels J. Ackerson argued the cause and filed the briefs for

petitioners. M. Roy Goldberg entered an appearance.

Evelyn G. Kitay, Attorney, Interstate Commerce Com-

mission argued the cause for respondents. Henri F. Rush,

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out of

time.

General Counsel, Louis Mackall, V, Attorney, and Jeffrey P,

Kehne, Attorney, United States Department of Justice, were

on the brief for respondents. J. Carol Williams, Attorney,

United States Department of Justice, entered an appearance

for respondents.

Charles H. Montange argued the cause for intervenors

and amicus curiae. With him on the joint brief was Charles

M. Rosenberger for intervenor CSX Transportation, Inc., and

Andrea Ferster for amicus curiae Rails to Trails Conser-

vancy.

Before SILBERMAN, SENTELLE, and HENDERSON, Circuit

Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: Petitioners are various private

landowners who own in fee simple the land across which

CSX Transportation, Inc. (“CSX”) possessed an easement for

rail purposes. Petitioners challenge a decision of the Inter-

state Commerce Commission (“ICC” or “Commission”)

holding that CSX was legally unable to fully abandon its rail

line until expiration of a 180-day public use condition

attached to the Commission’s decision authorizing abandon-

ment, pursuant to 49 U.S.C. § 10906 (1994). During this

180-day period, CSX and the Monroe County Parks and

Recreation Department (“MCPRD”) had reached an agree-

ment where the MCPRD would acquire a portion of the rail

corridor for trail use under the Trails Act, 16 U.S.C.§ 1241

et seq. (1994). The Commission claimed that because CSX

was unable to abandon the rail line during that period, the

Commission retained jurisdiction to implement the Trails Act,

and that as a result, petitioners’ reversionary interest could

not vest. We hold that section 10906 did not prevent CSX

from consummating abandonment, and thus the Commission

retained no jurisdiction to implement the Trails Act.

I. BACKGROUND

On January 25, 1993, CSX filed a Notice of Exemption

with the ICC, seeking authorization to abandon a rail line that

it once had operated between Bloomington and Bedford,

Indiana. The rail line had been out of service since 1987. The

proposed consummation date of the abandonment was March

19,1993. On February 1, 1993, pursuant to 49 U.S.C. §

10906, the MCPRD filed a request with the ICC for a public

use condition to give it additional time to negotiate for

acquisition of the rail line for trail purposes. Section 10906

imposes a waiting period on the railroad, preventing it from

selling or otherwise disposing of its private property while

offers are made to the railroad by those interested in making

public use of the property. Jd. The MCPRD also notified the

ICC of its intention to file a statement of willingness to

assume financial responsibility, as required by section 1247

of the Trails Act, 16 U.S.C. § 1247. In accordance with the

ICC’s procedures under 49 C.F.R. § 1152.50 (1994), the

Commission served a notice of exemption authorizing

abandonment on February 16, 1993, effective 30 days later.

The exemption provided that “{e]nvironmental, historic

preservation, public use, or trail use/rail banking conditions

will be imposed, where appropriate, in a subsequent

decision.”

On March 5, 1993, CSX requested additional time to

determine whether it would negotiate a trails-use agreement

in light of the substantial number of letters it received both

for and against the trail. Local landowners opposing the

conversion of the rail line to trail use wrote the ICC, enclos-

ing copies of the deeds to their land and asserting CSX did

not own the land in fee simple, but rather only possessed

easements over the land for purposes of the rail line. Propo-

nents of the conversion also wrote the ICC, maintaining that

the imposition of a public use condition under section 10906

would prevent the extinguishment of the easements under

Indiana law. On March 16, 1993, CSX informed the Commis-

sion it had decided not to negotiate an agreement for conver-

sion.

On March 18, the Commission issued a decision permit-

ting the abandonment, while denying the MCPRD’s request

for interim trail use under section 1247 because the railroad

did not consent, as was required under the statute. However,

the Commission did impose a public use condition under

section 10906, purporting to stay the disposition of the prop-

erty for 180 days as an alternative to a section 1247 rails-to-

trails conversion. The Commission imposed this condition in

an attempt to allow MCPRD and CSX time to negotiate the

issue of conversion.

By letter dated March 23, CSX wrote to the ICC that it

had abandoned the line on March 19. On April 23, 1993,

CSX wrote to the ICC again, emphasizing the legal need for

CSX’s consent to a rails-to-trails conversion. CSX also

repeated that it had abandoned the line on March 19.

On September 10, 1993, MCPRD wrote to the ICC,

stating that CSX and MCPRD had reached an agreement to

the effect that MCPRD would acquire a portion of the rail

corridor for trail use.' On. September 14, the day the public

use condition expired, CSX filed a motion confirming

MCPRD’s position, and asked the Commission to reopen the

abandonment proceeding to issue a Notice of Interim Trail

Use under the Trails Act, 16 U.S.C. § 1247(d). CSX also

reaffirmed that it had abandoned the rail line on March 19.

The Commission issued a decision on September 23,

1993, agreeing to reopen the proceeding, and imposing the

condition for interim trail use. The Commission explained

that:

[CSX] legally could not fully abandon the line until

expiration of the 180-day public use condition and the

[CSX] March 29 letter-filing was, in effect, notifica-

tion that it had discontinued operations. . . . As there

is no evidence in the record of any intent to consum-

mate full abandonment, the Commission retains

jurisdiction to implement the Trails Act as requested

by [(CSX] and MCPRD.

On November 8, 1993, petitioner landowners filed a

motion to reconsider the Commission’s decision, which they

supplemented on December 8. Petitioners argued that CSX

abandoned its common carrier obligations on March 19,

1993, by virtue of filing a letter with the Commission,

discontinuing rail service, and removing all track materials

and communication equipment. Consequently, the Commis-

sion no longer possessed jurisdiction to impose a trail

condition.

' CSX received $90,000.00 for its change of heart.

The Commission issued its decision on March 22, 1994,

denying reconsideration and affirming its prior decision that

it retained jurisdiction to impose a trails-use condition. Peti-

tioners subsequently filed a petition for review of this denial

of reconsideration with this court on May 19, 1994.

II. DISCUSSION

As a threshold issue, the intervenors” argue we lack juris-

diction to review this petition for review. Under 28 U.S.C. §

2344 (1994), a party seeking to challenge a final ICC order

must file a petition for review within 60 days of entry of that

order. The petition before us, filed May 19, 1994, is thus

untimely for purposes of judicial review of the September

1993 Commission decision. On November 8, 1993, however,

petitioners filed a “Motion to Reconsider Decision and Notice

of Interim Trail Use and Abandonment.” The Commission

denied this motion in a decision served March 22, 1994. This

petition for review is directed at that decision.

The Commission has established procedures for timely

reconsideration of decisions in rail abandonment proceedings.

Under 49 C.F.R. § 1115.3(e), a party has twenty days from

the service date of a decision to seek reconsideration. The

Commission also has discretion under section 1115.3(e) to

extend the twenty day period an additional twenty days. In the

proceedings below, petitioners did not seek reconsideration

within the twenty-day period nor the additional twenty-day

discretionary period. On November 8, petitioners did file

what they termed a motion for reconsideration. However, this

? The intervenors include, among others, CSX and MCPRD on

behalf of the ICC.

NET ER ST SO Fe OO abe La TENS ES

ES er ae ee SSO eS ae ee

was Clearly outside the time established under the regulations.

Consequently, according to the intervenors, this motion

amounted to a motion to reopen an administratively final

decision.

The intervenors assert that this court’s jurisdiction to

review agency refusals to reopen administratively final deci-

sions is limited by ICC v. Brotherhood of Locomotive Eng’rs,

482 U.S. 270 (1987). They contend that, under Locomotive

Engineers, petitions for review of final agency action cannot

circumvent the sixty-day limitation by filing a motion to

reopen, and then petitioning for review of the motion’s

denial. They maintain that, under Locomotive Engineers,

judicial review of the merits of the original agency action is

not available where agency reconsideration was sought solely

for material error. See Locomotive Engineers, 482 U.S. at

281-82. Courts may only review a refusal to reopen if a party

sought reopening on the basis of new evidence or changed

circumstances. Jd. at 284.

Intervenors posit that the motion to reopen filed below

presented no changed circumstances or new evidence not

known or available when the September, 1993 decision was

issued. Petitioners’ motion for reconsideration alleged only

that the ICC erred in finding that it had jurisdiction to impose

a trails condition. According to intervenors, the Commission

had already addressed all issues presented by petitioners in its

September decision.

While we agree that, under Locomotive Engineers, a

refusal to reopen a proceeding for material error will not

support a petition to review the merits of the original agency

decision, we conclude that the Commission was in fact

presented with new material accompanying the motion to

reopen.’ Specifically, petitioners asserted before the Com-

mission that they were denied the opportunity to submit

' protests, arguing that CSX’s request to reopen the proceeding

was made beyond the Commission’s procedural deadlines to

file protests, and that petitioners were unaware of the filing

of the CSX motion. Not only did the Commission not reject

» petitioners’ assertions of new matter, it in fact addressed

anew the merits of the September 23 determination as though

accepting the facial validity of petitioners’ claims and reject-

ing them only on the underlying merits. While it is true that

the Supreme Court held in Locomotive Engineers that the bare

fact that “the Commission’s order refusing reconsideration

discussed the merits of the [movants’] claims at length,” does

not render a denial of reconsideration reviewable on the

merits of the underlying decision, 482 U.S. at 280, it is also

true that Locomotive Engineers recognized the reviewability

of “refusals ‘based upon new evidence or changed circum-

stances’ rather than upon ‘material error.”’ /d. at 281

(citation to concurrence omitted).

We therefore interpret Locomotive Engineers as permit-

ting merits review of a refusal to reopen where the motion to

reopen was based on non-pretextual grounds of new matter or

changed circumstances, and not merely on material error in

the original agency decision. We do not read Locomotive

Engineers to hold or imply the absolute bar suggested by

> Intervenors make much of the distinction between motions for

reconsideration and motions to reopen administratively final decisions.

However, the Supreme Court in Locomotive Engineers did not base its

holding on any such distinction, and thus, neither do we.

a rrrenieieceiieiaiiaiiiidiaiiiiaiiaiiliiadia

intervenors. If there were such an absolute bar, one can

conceive of a whole parade of horribles headed by a circum-

stance in which a party totally deprived of due process in an

original agency petition could never obtain review of the

merits although he never learned, actively or constructively,

of the proceedings to deprive him of his rights until after the

expiration of the sixty-day review period. Although the

question may be a close one, we conclude that the present

petition falls in the reviewable new-matter Category rather

than in the non-reviewable material-error category.

Turning to the merits, the ICC argues that the imposition

of a public use condition pursuant to section 10906 prevents

a railroad, which has received a decision authorizing

abandonment, from abandoning a line for 180 days. Specifi-

cally, the ICC maintains that CSX was unable to abandon its

line for 180 days, beginning March 18, 1993, the date the

ICC imposed the public use condition at issue. As a result,

CSX’s property rights could not revert to the private land-

owners who own the land across which the rail line was built

during that period. Thus, regardless of CSX’s actual intent to

abandon the line on March 19, 1993, CSX was legally bound

to wait the full 180 days. The ICC contends that because CSX

reached an agreement with Monroe County within the

180-day period concerning the conversion of part of the rail

line for trail use, CSX reversed its prior intent to abandon the

line. Consequently, the ICC could legally reopen the pro-

ceedings and issue a notice of interim trail use under Trails

Act section 1247(d), 16 U.S.C. § 1247(d).

We reject the ICC’s application of section 10906, and

hold that the imposition of a public use condition did not

prevent CSX from fully abandoning the rail line on March 19,

10a

1993. Section 10906, titled “Offering abandoned rail proper-

ties for sale for public purposes,” states:

When the Interstate Commerce Commission finds

under section 10903 of this title that the . . . public

convenience and necessity require or permit abandon-

ment or discontinuance, the Commission shall find

further whether the rail properties that are involved

. . are suitable for use for public purposes. . . . If

the Commission finds [such properties are so suit-

able], the properties may be sold, leased, exchanged,

or otherwise disposed of only under conditions pro-

vided in the order of the Commission. The conditions

may include a prohibition on any such disposal for a

period of not more than 180 days after the effective

date of the order, unless such properties have first

been offered, on reasonable terms, for sale for public

purposes.

49 U.S.C. § 10906 (emphasis added).* Nothing in this lan-

guage, explicitly or implicitly, refers to the staying of an

abandonment during the 180-day period. This section simply

States that pursuant to a 180-day public use condition, an

entity cannot dispose of its rail property during the 180-day

period unless the entity has first offered the property, upon

reasonable terms, for sale for public purposes. Notwith-

* In their brief, petitioners inexplicably rely on an outdated

version of this provision enacted in 1976, 49 U.S.C. § 1a(10), and

amended to its present form in 1978. While the specific language relied on

by petitioners is worded differently than in the current version, the

differences in language are irrelevant for the disposition of this case.

Nevertheless, we have higher expectations of counsel appearing before us.

eT Se Te

a eee ee ee

lla

standing such a sale, the statute prevents the disposition of

any assets remaining after abandonment during the 180-day

period. However, once a railroad consummates abandonment

of a bare easement, the railroad no longer possesses any

property interests to transfer. Such is the case here, where

CSX only possessed an easement on property belonging to

private landowners. Once CSX consummated abandonment,

CSX’s property interests reverted to the landowners. These

interests were thus extinguished as a matter of law. Certainly

neither section 10906 nor the Trails Act can create a new

property interest if abandonment has already occurred.

No doubt exists that abandonment had in fact occurred in

this case. No traffic had moved across the rail line since

1987. In January, 1993, CSX filed a notice of exemption with

the ICC, asserting “the proposed consummation date of the

abandonment is March 19, 1993.” On March 23, CSX

notified the Commission that it had in fact abandoned the line

on March 19, reiterating its position on both April 23 and

September 14, 1993. In addition, CSX had removed all track

materials as well as signal and communication lines and

poles.

The ICC has stated that its jurisdiction over a line termi-

nates when the line is completely abandoned, and “whether a

line is fully abandoned is a question of the carrier’s intent.”

Illinois Cent. Gulf R.R. Co.—Abandonment—in DeWitt and

Pratt Counties, IL, 5 1.C.C.2d 1054, 1061 (1988). In deter-

mining intent, the ICC asserted that it looked to whether

tariffs had been cancelled and operations had ceased. Jd.

CSX’s intent could not have been clearer in this case, based

on the letters it sent to the ICC, as well as its removal of

equipment.

12a

The ICC maintains, however, that Jllinois Cent. Gulf

R.R. is inapposite because that case involved the dismissal of

a petition seeking a trails-use condition when the railroad had

already consummated an unconditioned grant of abandonment

authority issued by the Commission. In contrast, the ICC

imposed a public use condition in the decision permitting

CSX to abandon the rail line in the case at bar. The ICC

relies on Preseault v. ICC for the proposition that its jurisdic-

tion over railroad property terminates only when an uncondi-

tioned abandonment has been consummated. 494 U.S. 1, 5-6

n.3 (1990).

We disagree. The Supreme Court in Presault only stated

that “[o]nce a carrier ‘abandons’ a rail line pursuant to

authority granted by the [ICC], the line is no longer part of

the national transportation system, and although the Commis-

sion is empowered to impose conditions on abandonments, ...

as a general proposition ICC jurisdiction terminates.” Jd. In

the present case, the Commission did not impose any condi-

tion on the abandonment by CSX as such that would prevent

‘the reversion of the property interest to the petitioners. The

only condition in the order reads as follows:

The exemption is subject to the condition that [CSX]

leave intact all bridges, culverts, and similar struc-

tures (but not track or track materials) for a period of

180 days unless the property is first offered, on

reasonable terms, for sale for public purposes.

Nothing in the condition recites a limitation on the ability

of CSX to effect an abandonment. On March 23, when CSX

announced by letter to the Commission that it had “abandoned

this line of railroad effective March 19, 1993,” there was no

13a

condition that prevented it from doing so. The Commission

offers no other reason why this case falls outside the general

rule of terminated jurisdiction stated in Presault. And we hold

that it had no jurisdiction to undo the abandonment and

impose conditions thereon. Because we so hold, we need not

decide whether Indiana State property law would dictate that

a Change of use in an easement would constitute an additional

taking of the property of the fee owner, nor whether such

additional taking would be compensable under the Fifth

Amendment to the United States Constitution. See Preseault

494 U.S. at 4 (“[E]ven if the rails-to-trails statute gives rise

to a taking, compensation is available to petitioners under the

Tucker Act, 28 U.S.C. § 1491(a)(1) (1982 ed.)”). Those

questions are left for another day. Sufficient unto this day is

the decision that the easement holder had abandoned its

interest and the fee owners prevailed.

Ill. CONCLUSION

For the foregoing reasons, we conclude that we have

jurisdiction to review the ICC’s decision. We further con-

clude that the ICC was without power to undo the abandon-

ment of the CSX line; that the abandonment had worked a

reversion of interest to the fee simple; and that the petition for

review is therefore allowed and the decision of the Com-

mission reversed.

It is so ordered.

l4a

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 94-1403

Janet Fritsch, et al.,

Petitioners

Interstate Commerce Commission and

United States of America,

Respondents

Monroe County, a legal subdivision

of the State of Indiana, et al.,

Intervenors

MANDATE

Pursuant to the provisions of Fed. R. App. Pro. 49(a).

ISSUED: 9/26/95

“BY: /s/_ E. Brown, Deputy Clerk

Before: SILBERMAN, SENTELLE and HENDERSON, Circuit

Judges. ~

JUDGMENT

This cause came on to be heard on the petition for review

of an order of the Interstate Commerce Commission and was

argued by counsel. On consideration thereof, it is

ORDERED and ADJUDGED, by the Court, that the

petition for review is granted, in accordance with the opinion

of the court filed herein this date.

15a

FOR THE COURT:

Mark J. Langer, Clerk

By: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

Date: July 18, 1995

Opinion for the Court filed by Circuit Judge Sentelle.

16a

APPENDIX B

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1995

No. 94-1403

Filed Sep 18 1995

Janet Fritsch, et al.,

Petitioners,

United States of America

and Interstate Commerce Commission,

Respondents

BEFORE: Silberman, Sentelle and Henderson, Circuit

Judges.

ORDER

Upon consideration of the petitions for rehearing of

respondents and intervenors, it is

ORDERED that the petitions be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

By: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

17a

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1995

No. 94-1403

Filed Sep 18 1995

Janet Fritsch, et al.,

Petitioners,

United States of America

and Interstate Commerce Commission,

Respondents

BEFORE: Edwards, Chief Judge, Wald, Silberman,

Buckley, Williams, Ginsburg, Sentelle, Henderson,

Randolph, Rogers, and Tatel, Circuit Judges

ORDER

Upon consideration of the Suggestions for Rehearing Jn

Banc of respondents and intervenors, and the absence of a

request by any member of the court for a vote, it is

ORDERED that the suggestions be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

By: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

18a

APPENDIX C

INTERSTATE COMMERCE COMMISSION

NOTICE OF EXEMPTION

[Docket No. AB-55 (Sub-No. 455X)]

CSX TRANSPORTATION, INC.—

ABANDONMENT EXEMPTION—

IN MONROE AND LAWRENCE COUNTIES, IN

Service Date: February 16, 1993

CSX Transportation, Inc. (CSXT) has filed a notice of

exemption under 49 CFR 1152 Subpart F—Exempt

Abandonment to abandon its approximately 22.5-mile rail line

between milepost Q-222.5 at Bloomington and milepost

Q-245.0 at Bedford, in Monroe and Lawrence Counties, IN.

CSXT has certified that: (1) no local traffic has moved

over the line for at least 2 years; (2) there is no overhead

traffic on the line; (3) no formal complaint filed by a user of

rail service on the line (or by a State or local government

entity acting on behalf of such user) regarding cessation of

service over the line either is pending with the Commission

or with any U.S. District Court or has been decided in favor

of the complainant within the 2-year period. CSXT also has

certified that the requirement at 49 CFR 1152.50(d)(1) (notice

to government agencies) has been met.

As a condition to this exemption, any employee adversely

affected by the abandonment shall be protected under Oregon

Short line R. Co.—Abandonment—Goshen, 360 1.C.C. 91

(1979). To address whether this condition adequately protects

affected employees, a petition for partial revocation under 49

U.S.C. 10505(d) must be filed.

19a

Provided no formal expression of intent to file an offer of

financial assistance (OFA) has been received, this exemption

will be effective on March 18, 1993, unless Stayed pending

reconsideration. Petitions to stay that do not involve

environmental issues,' formal expressions of intent to file an

OFA under 49 CFR 1152.27 (c)(2),? and trail use/rail banking

requests under 49 CFR 1152.29° must be filed by February

26, 1993. Petitions to reopen or requests for public use

conditions under 49 CFR 1152.28 must be filed by March 8,

1993, with:

Office of the Secretary

Case Control Branch

Interstate Commerce Commission

Washington, DC 20423

' A stay will be issued routinely by the Commission in those

proceedings where an informed decision on environmental issues (whether

raised by a party or by the Commission’s Section of Energy and

Environment in its independent investigation) cannot be made before the

effective date of the notice of exemption. See exemption of Out-of-Service

Rail Lines, 5 1.C.C. 2d 377 (1989). Any entity seeking a stay involving

environmental concerns is encouraged to filed its request as soon as

possible in order to permit this Commission to review and act on the

request before the effective date of this exemption.

> See Exempt. of Rail Abandonment-Offers of Finan. Assist., 4

1.C.C. 2d 164 (1987).

> The Commission will accept a late-filed trail use request as

long as it retains jurisdiction to do so.

20a

A copy of any pleading filed with the Commission should

be sent to applicant’s representative:

Charles M. Rosenberger

500 Water Street J150

Jacksonville, FL 32202

If the notice of exemption contains false or misleading

information, the exemption is void ab initio.

Applicant has filed an environmental report which

addresses the abandonment’s effects, if any, on the

environmental and historic resources. The Section of Energy

and Environment (SEE) will issue an environmental

assessment (EA) by February 19, 1993. Interested persons

may obtain a copy of the EA by writing to SEE (Room 3219,

Interstate Commerce Commission, Washington, DC 20423)

or by calling Elaine Kaiser, Chief of SEE, at (202) 927-6248.

Comments on environmental and historic preservation matters

must be filed within 15 days after the EA is available to the

public.

Environmental, historic preservation, public use, or trail

use/rail banking conditions will be imposed, where

appropriate, in a subsequent decision.

Decided: February 1, 1993

By the Commission, David M. Konschnik, Director,

Office of Proceedings.

Sidney L. Strickland, Jr.

(SEAL) Secretary

2la

APPENDIX D

INTERSTATE COMMERCE COMMISSION

DECISION AND NOTICE OF INTERIM TRAIL USE

OR ABANDONMENT

[Docket No. AB-55 (Sub-No. 455X)]

CSX TRANSPORTATION, INC.—

ABANDONMENT EXEMPTION—

IN MONROE AND LAWRENCE COUNTIES, IN

Decided: September 23, 1993

Service Date: September 27, 1993

CSX Transportation, Inc. (CSXT), filed a verified notice

under 49 CFR 1152 Subpart F-Exempt Abandonments to

abandon a 22.5-mile rail line between milepost Q-222.5 at

Bloomington and milepost Q-245.0 at Bedford, in Monroe

and Lawrence Counties, IN. A notice of exemption was

served and published in the Federal Register (58 FR 8635-36)

on February 16, 1993. The exemption became effective

March 18, 1993.

On February 3, 1993, the Monroe County Parks and

Recreation Department (MCPRD) filed a request for a public

use condition under 49 U.S.C. 10906 and 49 CFR 1152.28

covering the entire involved line. On February 12, 1993,

MCPRD filed a request for interim trail use/rail banking

under 16 U.S.C. 1247(d) and 49 CFR 1152.29, including a

statement of willingness to assume financial responsibility ,

again for the entire line. By letter filed March 17, 1993,

CSXT declined to negotiate a trail use agreement.

22a

As an alternative to interim trail use under the National

Trails System Act (Trails Act), the right-of-way may be

acquired for public use as a trail under 49 U.S.C. 10906.

The Trails Act is interpreted as being strictly voluntary on the

part of the abandoning railroad. Because CSXT had declined

to negotiate a trail use agreement and MCPRD had made the

requisite showing for a public use condition, by decision

served March 22, 1993, the Commission denied the trail use

request but imposed a 180-day public use condition on the

entire line.

By letter filed March 29, 1993, CSXT informed the

Commission that the involved line had been “abandoned”

effective March 19, 1993—1 day after the exemption became

effective.

By motion filed September 14, 1993, CSXT requested

that this proceeding be reopened and that the Commission

issue a notice of interim trail use (NITU), not to exceed 60

days, for that segment of rail corridor in Monroe County.

CSXT assertedly has been negotiating with MCPRD under the

public use condition for the sale of that segment. On

September 14, 1993, MCPRD submitted a letter supporting

the CSXT motion.

The Commission retains jurisdiction to implement the

Trails Act so long as the abandonment has not been

consummated and the abandoning railroad is willing to

negotiate. Here, the only issue is whether CSXT

consummated the abandonment. On March 29, 1993, when

CSXT filed its letter notifying the Commission that it had

abandoned the line on March 19, 1993, CSXT was, by its

own admission, negotiating with MCPRD under the public

23a

use condition. In any event, CSXT legally could not fully

abandon the line until expiration of the 180-day public use

condition and the CSXT March 29 letter-filing was, in effect,

notification that it had discontinued operations. Docket No.

AB-174 (Sub-No. 2X), The Central Vermont Railway,

Inc.—Abandonment Exemption—In Franklin County, VT (not

printed), served October 18, 1990. As there is no evidence

in the record of any intent to consummate full abandonment,

the Commission retains jurisdiction to implement the Trails

Act as requested by CSXT and MCPRD.

Accordingly, the proceeding will be reopened and the

notice of exemption modified to the extent necessary to

implement interim trail use/rail banking on the 11.64-mile

segment of line between milepost Q-222.5 at Bloomington

and milepost Q-234.14 at Monroe/Lawrence County Line.

The parties may negotiate an agreement during the 60-day

period prescribed below.

It is ordered:

1. This proceeding is reopened.

2. The notice of exemption published in the Federal

of the above-described rail line, is modified to the extent

necessary to implement interim trail use/rail banking on that

11.64-mile segment between milepost Q-222.5 at

Bloomington and milepost Q-234.14 at Monroe/Lawrence

County Line.

3. CSXT may discontinue service, cancel tariffs for the

line on not less than 10 days’ notice to the Commission, and

Salvage track and related materials consistent with interim

trail use/rail banking after the effective date of this decision

24a

and notice. Tariff cancellations must refer to this decision

and notice by date and doc!et number.

4. If an interim traii use/rail banking agreement is

reached, it must require the trail user to assume, for the term

of the agreement, full responsibility for management of, any

liability arising out of the transfer or use of (unless the user

is immune from liability, in which case it need only

indemnify the railroad against any potential liability), and the

payment of any taxes imposed on the right-of-way.

5. Interim trail use/rail banking is subject to the future

restoration of rail service.

6. If the user intends to terminate trail use, it must send

the Commission a copy of this decision and notice and request

that it be vacated on a specified date.

7. If an agreement for interim trail use/rail banking is

reached by the 60th day after service of this decision and

notice, interim trail use may be implemented. If no

agreement is reached by the 60th day, CSXT may fully

abandon the line.

8. This decision is effective on its service date. -

By the Commission, David M. Konschnik, Director,

Office of Proceedings.

Sidney L. Strickland, Jr.

(SEAL) Secretary

25a

APPENDIX E

INTERSTATE COMMERCE COMMISSION

DECISION

[Docket No. AB-55 (Sub-No. 455X)]

CSX TRANSPORTATION, INC.—

ABANDONMENT EXEMPTION—

IN MONROE AND LAWRENCE CGUNTIES, IN

Decided: October 15, 1993

Service Date: October 20, 1993

CSX Transportation, Inc. (CSXT), filed a notice for an

exemption under 49 CFR 1152 Subpart F—Exempt Abandon-

ments to abandon its 22.5-mile rail line between milepost

Q-222.5 at Bloomington and milepost Q-245.0 at Bedford,

in Monroe and Lawrence Counties, IN. A notice of exemp-

tion was served and published in the Federal Register on

February 16, 1993 (58 FR 8635-36). The exemption became

effective March 18, 1993.

By decision served March 22, 1993, the Director of the

Office of Proceedings, in disposing of requests made by the

Monroe County Parks and Recreation Department (MCPRD),

denied a request for issuance of a notice of interim trail use

(NITU) because CSXT had declined to negotiate a trail use

agreement, but granted a request for the imposition of a _

public use condition. The public use condition expired on

September 14, 1993 (the 180th day after the effective date of

the exemption).

By motion filed September 14, 1993, CSXT requested

that this proceeding be reopened and that the Commission

issue, under 16 U.S.C. 1247(d) (Trails Act), an NITU for the

26a

section of the rail corridor in Monroe County. On September

14, 1993, MCPRD submitted a letter supporting the CSXT

motion. By decision and notice of interim trails use or

abandonment, dated September 23, 1993, and served Septem-

ber 27, 1993, the Director of the Office of Proceedings,

reopened the proceeding and modified the exemption to the

extent necessary to implement interim trail use/rail banking

on that segment of the involved line within Monroe County.

By substantially identical letters dated September 26, 27,

28, or 29, 1993, each styled “Protest for Reasons of Public

Safety,” and tendered for filing at the Commission by

facsimile (FAX) transmission and/or the United States Postal

Service on dates extending from September 27, 1993, through

October 5, 1993, various firms' concerned with the quarrying

and fabrication of limestone in the vicinity of the involved

right-of-way, express opposition to the NITU. None of the

letter-protests includes a certificate showing simultaneous

service upon all parties to the proceeding (see 49 CFR

1104.12) or states in detail the respects in which the proceed-

ing involves material error, new evidence, or substantially

changed circumstances, or includes a request that the Com-

mission make such a determination (see 49 CFR 1115.4).

Because the letter-protests did not comply with the

requirements of 49 CFR 1104.12, they wili be treated as

correspondence in this docket. It should be noted, however,

that substantively the “protests” appear to have little merit. In

' Victor Oolitic Stone Co; Independent Limestone Company;

B.G. Hoadley Quarries Inc.; Moon Freight Lines, Inc.; Fluck Limestone

Co., Inc.; Reed Quarries, Inc.; Indiana Limestone Institute of America,

Inc.; and the Star Stone Co., Inc.

27a

Finance Docket No. 30724 (Sub-No. 1), Wisconsin and

Calumet Railroad Company. Inc.—Notice of Interim Trail Use

and Termination of Modified Certificate (not printed), served

September 29, 1993, the Commission recently emphasized

that its authority under the Trails Act is very limited because

the trails use program is voluntary and consensual between

the railroad and the trails user. The Commission’s jurisdiction

is essentially ministerial and its discretion extends to deter-

mining only whether the Trails Act has been properly invoked

and the trails user’s statutory requirements regarding rail

banking and the trail user’s assumption of managerial respon-

sibility have been met. Jd.

The procedural irregularity noted, the failure to supply a

copy of the protest to the railroad is sufficient to warrant this

treatment of the letter-protests, rather than disposition of

them on the merits. Any attempt to refile the letters as

pleadings should be in compliance with the rules with respect

to petitions to reopen and service of pleadings.

It is ordered:

1. The letter-protests tendered for filing in this proceed-

ing by Victor Oolitic Stone Co.; Independent Limestone

Company; B.G. Hoadley Quarries Inc.; Moon Freight Lines,

Inc.; Fluck Limestone Co., Inc.; Reed Quarries, Inc.; Indiana

Limestone Institute of America, Inc.; and the Star Stone (2.,

Inc., are accepted as correspondence.

2. This decision is effective on its service date.

By the Commission, Sidney L. Strickland, Jr., Secretary.

Sidney L. Strickland, Jr.

(SEAL) Secretary

28a

APPENDIX F

INTERSTATE COMMERCE COMMISSION

DECISION

[Docket No. AB-55 (Sub-No. 455X)]

CSX TRANSPORTATION, INC.—

ABANDONMENT EXEMPTION—

IN MONROE AND LAWRENCE COUNTIES, IN

Decided: March 14, 1994

Service Date: March 22, 1994

CSX Transportation, Inc. (CSXT), filed a notice for an

exemption under 49 CFR 1152 Subpart F—Exempt Abandon-

ments to abandon its 22.5—mile rail line between milepost

Q-222.5 at Bloomington and milepost Q—245.0 at Bedford, in

Monroe and Lawrence Counties, IN. A notice of exemption

was served and published in the Federal Register on February

16, 1993 (58 FR 8635-36). The exemption became effective

March 18, 1993.

By decision served March 22, 1993, the Acting Director of

the Office of Proceedings, in disposing of requests made by the

Monroe County Parks and Recreation Department (MCPRD),

denied a request for issuance of a notice of interim trail use

(NITU) under the National Trails System Act (Trails Act), 16

U.S.C. 1247(d), and 49 CFR 1152.29 because CSXT had

declined to negotiate a trail use agreement, but granted a

request for the imposition of a public use condition under 49

U.S.C. 10906. The public use condition expired on September

29a

14, 1993 (the 180th day after the effective date of the exemp-

tion.)!

By motion filed September 14, 1993, (CSXT motion)

CSXT requested that this proceeding be reopened and that the

Commission issue under the Trails Act a NITU for the

segment of the rail corridor in Monroe County. On Septem-

ber 14, 1993, MCPRD filed a letter supporting the CSXT

motion.* By decision and notice of interim trail use or

abandonment, dated September 23, 1993, and served

September 27, 1993, (September 27 decision), the Director of

the Office of Proceedings reopened the proceeding and

modified the exemption to the extent necessary to implement

interim trail use/rail banking on that segment of the involved

line within Monroe County.

By substartially identical letters dated September 26, 27,

28, or 29, 194. , each styled “Protest for Reasons of Public

Safety,” various firms,’ concerned with the quarrying and

' The decision imposing the public use condition was actually

decided on March 18, 1993, the day the exemption was to become

effective, thus making the exemption subject to the condition from the

outset.

> The filings on September 14 were by facsimile (FAX)

transmission. The originals were filed subsequently with the Commission.

See the notice in Acceptance of Mail Via FAX (not printed), served and

published December 22, 1989 (54 FR 52857), which provides that FAX

transmission may be used for a Commission filing when submission is

required on short notice.

* Victor Oolitic Stone Co; Independent Limestone Company;

B.G. Hoadley Quarries Inc.; Moon Freight Lines, Inc.; Fluck Limestone

Co., Inc.; Reed Quarries, Inc.; Indiana Limestone Institute of America,

30a

fabrication of limestone in the vicinity of the involved right-

of-way, expressed opposition to the NITU. By decision

served October 20, 1993 (October 20 decision), the Secretary

indicated that the letter-protests would not be considered on

the merits because they did not comply with the requirements

of 49 CFR 1104.12, and indicated they would be treated as

correspondence.

On November 8, 1993, Victor Oolitic Stone Company,

Inc., and a number of other named members of a purported

“class” of owners of property adjacent to the rail corridor in

Monroe County (Property Owners or petitioners) filed a

motion to reconsider the September 27 decision. Petitioners

assert that they have been denied the opportunity to submit

their protests before the Commission, arguing that CSXT’s

request to reopen the proceeding and the execution of the

purchase Offer/Contract were performed outside the Com-

mission’s procedural deadlines to file protests and that

petitioners were unaware of the filing of the CSXT motion.

Petitioners assert further that they object to the transfer of the

right-of-way until MCPRD complies with Federal, state, and

local land use regulations. They contend that CSX abandoned

its common carrier obligations in the railroad corridor on or

about March 19, 1993, by virtue of filing a letter with the

Commission, discontinuing rail service, and subsequently re-

Inc.; and the Star Stone Co., Inc., were the firms identified in the

decision, but other firms filed similar letters. The tendered filings were

made both by FAX and the United States Postal Service and duplications

were involved.

3la

moving all trackage, other track materials, and signal and

communication lines and poles.‘

On November 12, 1993, MCPRD filed a pleading in

Opposition to Property Owners’ motion for reconsideration.

According to MCPRD, petitioners offer no grounds for

reconsideration but instead present a general restatement of

alleged facts already presented to the Commission and to the

parties. In responding to Property Owners’ assertion that

they have been denied an opportunity to submit protests

before the Commission, MCPRD cites the October 20

decision which indicates the possibility of refiling the letters

as protests. In response to petitioners’ opposition to the

transfer of the right-of-way, MCPRD asserts that the transfer

is under the authority of and in full compliance with the

NITU. MCPRD asserts further that petitioners’ concern with

compliance with Federal, state, and local land use regulations

is misplaced. It states that petitioners do not identify any

particular regulations and cites Missouri-Kansas-Texas

Railroad—Abandonment—in St. Charles, Warren, Montgom-

ery, Callaway, Boone, Howard, Cooper and Pettis Counties,

MC, Docket No. AB-102 (Sub-No. 13) (ICC served Feb. 19,

1991), in which the Commission denied a motion to reopen

and indicated that allegations of failure to comply with local

or state requirements could be addressed to relevant local or

states authorities. _MCPRD argues also that Property

Owners’s motion was not timely filed as required by 49 CFR

* As noted in the September 27 decision, by letter filed March 29,

1993, CSXT informed the Commission that the involved line had been

“abandoned” effective March 19, 1993—1 day after the exemption became

effective.

32a

1115.3, because more than 20 days had elapsed after service

of the September 27 decision.

On November 19, 1993, CSXT filed its reply to the

motion for reconsideration. In response to petitioners’

assertion that CSXT’s request to reopen the proceeding and

the execution of the purchase Offer/Contract were performed

outside the Commission’s procedural deadlines to file

protests, CSXT cites Burlington Northern Railroad Com-

pany—Abandonment Exemption—Rail River and Custer

Counties, SD, Docket No. AB-6 (Sub-No. 293X) (ICC

served Feb. 9, 1989), asserting that the Commission has

always held that it will accept late-filed Trails Act requests as

long as it retains jurisdiction to do so.°

On December 9, 1993, counsel for Property Owners

(Counsel) filed “supplemental authority to the motion to

reconsider.” This pleading focuses on the jurisdictional issue

and asserts that the Commission did not retain jurisdiction

because full abandonment had been consummated and because

the September 27 decision came after the public use condition

had expired, and should thus be voided. Counsel argues that,

as no agreement was reached within the 180-day period,

CSXT had full abandonment authority.

On December 15, 1993, MCPRD filed a motion to strike

the supplemental authority pleading as contrary to Commis-

sion rules at 49 CFR 1104.13(c) disallowing a reply to a

> In response to petitioners’ concern about being unaware of the

filing of the CSXT motion, CSXT asserts that it did in fact serve the

motion on all parties of record.

33a

reply.° MCPRD argues nonetheless that a public use condi-

tion was timely requested and duly imposed by the Com-

mission. It asserts further that, during the course of the

public use condition, CSXT and MCPRD negotiated a trail

use and railbanking agreement and then timely requested the

Commission to issue a NITU, an action for which, argues

MCPRD, the Commission retained jurisdiction. In addition

to its motion to strike, MCPRD included a report on the

status of the railbanked facility. It stated that it had assumed

management and other responsibilities for the corridor, that

a railbanking agreement with CSX had been implemented

under the NITU, and that MCPRD had received a grant of

approximately $1 million from the Federal government’s

Intermodal Surface Transportation Efficiency Act’s “enhance-

ments program” to construct a trail facility on the Monroe

County portion of the corridor.

DISCUSSION AND CONCLUSIONS

There are two issues to be considered in disposing of this

motion for reconsideration. First, we must determine if we

had jurisdiction to issue the NITU at the time of the Septem-

ber 27 decision. If we determine that we retained jurisdic-

tion, we must then ascertain the extent of our involvement

under the Trails Act.

®* MCPRD also challenges the pleading on other grounds,

including the identity of the “Class of Adjacent Property Owners”

represented by counsel, arguing that the Commission has never approved,

identified, or certified any “class” in this proceeding. In the interests of

a more complete discussion of the issues raised in opposition, we will not

strike the supplemental pleading but consider it in light of MCPRD’s

response to it.

34a

As noted in the September 27 decision, which addressed

the exact jurisdictional issue raised by petitioners, the

Commission did, and continues to, retain jurisdiction to

implement the jurisdiction over an abandonment until all

conditions on the abandonment have expired. The public use

condition had expired neither when CSXT assertedly

abandoned the line on March 19, 1993, nor when it filed its

letter with the Commission on March 29, 1993, notifying the

Commission of its March 19, 1993 abandonment. Thus, the

Commission retained jurisdiction over the line. As the

September 27 decision stated:

The Commission retains jurisdiction to implement

the Trails Act so ling as the abandonment has not been

consummated and that abandoning railroad is willing

to negotiate. Here, the only issue is whether CSXT

consummated the abandonment. On March 29, 1993,

when CSXT filed its letter notifying the Commission

that it had abandoned the line on March 19, 1993,

CSXT was, by its own admission, negotiating with

MCPRD under the public use condition. In any

event, CSXT legally could not fully abandon the line

until expiration of the 180~—day public use condition

and the CSXT March 29 letter-filing was, in effect,

notification that it had discontinued operations.

Docket No. AB-174 (Sub-No. 2X), The Central

Vermont Railway, Inc.—Abandonment Exemption—In

Franklin County, VT (not printed), served October 18,

1990. As there is no evidence in the record of any

intent to consummate full abandonment, the Commis-

35a

sion retains jurisdiction to implement the Trails Act as

requested by CSXT and MCPRD.

September 27 decision, 1.

Next, we must consider the extent of our role under the

Trails Act. As we stated in the October 20 decision, our

authority under the Trails Act is very limited. The decision

stated:

[T]he trails use program is voluntary and consensual

between the railroad and the trails user. The Com-

mission’s jurisdiction is essentially ministerial and its

discretion extends to determining only whether the

Trails Act has been properly invoked and the trails

user’s statutory requirements regarding rail banking

and the trail user’s assumption of managerial responsi-

bility have been met.[’]

October 20 decision, 1-2.

A review of the record in light both previous decisions in

this proceeding and of Commission precedent, leads to a

conclusion that the September 27 decision properly invoked

Commission jurisdiction under the Trails Act. Accordingly,

we deny petitioners’ motion to reconsider.

It is ordered:

1. The motion to reconsider the decision and notice of

interim trail use or abandonment is denied.

2. This decision is effective on March 22, 1994.

’ Citing Wisconsin and Calumet Railroad Company, Inc.—Notice

of Interim Trails use and Termination of Modified Certificate, Finance

Docket No. 30724 (Sub-No. 1) (ICC served Sept. 29, 1993).

36a

By the Commission, Chairman McDonald, Vice Chair-

man Phillips, Commissioners Simmons and Philbin

/s/ Sidney L. Strickland, Jr.

Sidney L. Strickland, Jr.

(SEAL) Secretary

‘7 37a

APPENDIX G

BEFORE THE

INTERSTATE COMMERCE COMMISSION

DOCKET NO. AB-55 (SUB. NO. 455X)

CSX TRANSPORTATION, INC.

ABANDONMENT EXEMPTION

IN MONROE AND LAWRENCE COUNTIES, INDIANA

MOTION TO RECONSIDER DECISION AND NOTICE

OF INTERIM TRAIL USE OR ABANDONMENT

Petitioners, Victor Oolitic Stone Company, Inc., Norman

& Mary Lee Deckard, Franklin A. Andrew, Carol A.

Daniels, Dennis Clark, Jack & Deanna Waterford, William

& Rose Wampler, Indian Creek Land Company, Inc., Delmer

& Anna Turner, Devin & Nikki McKarney, Brenda Flynn,

John L. Edgeworth, Jane Fritsch, and all others similarly

situated, by counsel, as members of a Class of property

owners adjacent to the CSX rail corridor in Monroe County,

Indiana, request the Commission to reconsider its Decision

and Notice of Interim Trail Use or Abana: ment, issued

September 23, 1993 (Service Date: September 27, 1993) and

in support of this request state as follows:

(1) CSX, through its predecessors in interest acquired a

right of way in Monroe County, Indiana from members of the

Class and\or their predecessors in interest for the purpose of

operating a railroad corridor. The right of way is legally

described as follows:

Being that portion of CSX Transportation’s corridor

in Monroe County, Indiana beginning at milepost

222.5 or valuation station 11746+00 on seller’s

38a

valuation map 242, sheet 11, about 300 feet north of

the centerline of County Club Road in Bloomington,

Monroe County, Indiana, extending southward about

11.64 miles to milepost 234.14 or valuation station

12360+67 on seller’s valuation map 242, sheet 14, at

the Monroe/Lawrence County line. The corridor or

premises varies in width but is generally 66 feet wide

and includes approximately 18 bridges, and structures,

ballast, bridge ties but excludes all trackage, other

track material and signal and communication lines and

poles which will be removed by seller. The premise

contains about 123.501 acres as generally shown on

seller’s valuation maps 242, sheets 11, 12, S-12A and

14, and 247, sheets 1-3 inclusive and incorporated

herein by refererice.

Generally referred to as “the railroad corridor”.

(2) CSX filed a Notice of Exemption to abandon the

railroad corridor before the Interstate Commerce Commission

(“ICC”) on January 25, 1993. The Notice of Exemption

became effective on March 18, 1993.

(3) The Monroe County Parks & Recreation Department

(“MCPRD”) submitted a request for issuance of a Notice of

Interim Trail Use (“NITU”) on February 1, 1993 and a

Statement of Willingness to Assume Financial Responsibility

on February 9, 1993. This Commission denied the MCPRD

request for the interim trail use on March 22, 1993; a public

use condition was granted instead which expired on Septem-

ber 18, 1993.

(4) CSX abandoned its common carrier obligations in the

railroad corridor on or about March 19, 1993 by virtue of the

39a

action filed with the ICC combined with its discontinuance of

rail service and subsequent removal of all trackage, other than

track materials and signal & communication lines and poles.

(5) CSX filed its Motion to Reopen Proceeding on

September 14, 1993, resulting in an ICC decision allowing

interim trail use for a period of sixty (60) days, during which

an agreement could be negotiated between CSX and MCPRD

to establish and maintain a recreational trail on the abandoned

railroad corridor.

(6) A Purchase Offer/Contract was entered into by CSX,

as Seller, and MCPRD, as Buyer, which purports to transfer

the right of way, invoking the National Trails Act [16 U.S.C.

1247(d)].

(7) The procedural posture of this proceeding has

effectively denied the Class of adjacent property owners the

opportunity to submit their protests before this Commission.

CSX’s request to reopen the proceeding before this Commis-

sion and the execution of the Purchase Offer/Contract were

performed well outside the Commission’s procedural dead-

lines to file protests and, despite due diligence, were only

recently discovered by the Class of adjacent property owners.

(8) The Class of adjacent property owners objects to the

transfer of the right of way until such time as MCPRD is able

to demonstrate compliance with federal, state and local land

use regulations.

WHEREFORE, the Class of adjacent property owners

requests that this Commission reconsider its Decision and

Notice of Interim Trail Use or Abandonment, and allow the

protests to be presented pursuant to 49 C.F.R. 1152.20.

40a

Respectfully submitted,

/s/ Paul J. Watts

Paul J. Watts (#1137-60)

/s/ Thomas E. Densford _

Thomas E. Densford (#13955-64)

Attorneys for the Class of Adjacent

Property Owners

4la

APPENDIX H

INTERSTATE COMMERCE COMMISSION

[Docket No. AB-55 (Sub-No. 455X)]

CSX TRANSPORTATION, INC.—

ABANDONMENT EXEMPTION—

IN MONROE AND LAWRENCE COUNTIES, IN

Decided: March 18, 1993

Service Date: March 22, 1993

CSX Transportation, Inc. (CSXT), filed a notice for an

exemption under 49 CFR 1152 Subpart F—Exempt Abandon-

ments tc abandon its 22.5-mile rail line between milepost

Q—222.5 at Bloomington and milepost Q—245.0 at Bedford,

in Monroe and Lawrence Counties, IN. A notice of exemp-

tion was served and published in the Federal Register on

February 16, 1993 (58 CFR 8635-36). The exemption is

scheduled to become effective March 18, 1993

The Commission’s Section of Energy and Environment

has issued an environmental assessment indicating that the

right-of-way may be suitable for other public use following

abandonment. On February 3, 1993, the Monroe County

Parks and Recreation Department (MCPRD) tendered

comments on environmental issues. These comments

embraced a request for a public use condition under 49 CFR

1152.28 and also indicated that a statement of willingness to

assume financial responsibility in support of a request for a

notice of interim trail use (NITU) would be filed later. That

statement was filed February 12, 1993. Numerous public

comments supporting and opposing the use of the right-of-

way as a trail have been received by the Commission.

42a

By letter dated March 17, 1993, CSXT declined to enter

into an interim trail use agreement. Therefore, since 49

U.S.C. 1247(d) permits only voluntary interim trail use, the

Commission cannot issue a NITU in this proceeding. See

Rail Abandonment— Use of Rights-of-Way as Trails, 2 1.C.C.

2d 591 (1986) (Trails).

As an alternative to interim trail use under the National

Trails System Act, the right-of-way may be acquired for

public use as a trail under 49 U.S.C. 10906. See Trails, 2

I.C.C. 2d at 609. To justify a public use condition a party

must show: (1) the condition sought; (2) the public impor-

tance of the condition; (3) the period of time for which the

condition would be effective; and (4) justification for im-

position of the time period. See 49 CFR 1152.28(a)(2).

MCPRD has satisfied these requirements and, therefore,

a 180-day public use condition will be imposed in its usual

form. While it appears that CSXT may have only an ease-

ment interest in substantial portions of the right-of-way and

be unable to sell such an interest for a nonrail use, in Trails

the Commission recognized that the right-of-ways subject to

public use conditions might include easements as well as

property owned by the railroad. The Commission, stated:

Section 10906 permit the Commission to order a

railroad not to dispose of rail property it owns for up

to 180 days after the effective date of a decision

authorizing abandonment, unless the properties have

been offered, on reasonable terms, for sale for public

purposes. Since railroads are free to accept or decline

interim trail use proposals and public use offers, there

is no practical basis for refusing to permit prospective

43a

interim trail users to invoke the public use statute

when the right-of-way includes easement property

and property owned by the carrier. Id.

One further matter requires comment. MCPRD

recognizes that the Commission ordinarily restricts disposition

only with respect to roadbed materials, bridges, culverts, and

real estate, and allows removal of track and track materials

when the proposed acquisition is for a trail or other nonrail

related public use. Here MCPRD seeks some additional

unspecified condition on salvage because MCPRD’s ability to

have control over removal of track and ties would assertedly

minimize disruption to the roadbed and thus reduCe the

expense of rendering the roadbed suitable for trails use.

MCPRD has not adequately justified the imposition of a

nonroutine condition prohibiting removal of track and track

materials and the public use condition will be imposed in its

usual form allowing removal of such materials.

As conditioned, this action will not significantly affect

either the quality of the human environment or conservation

of energy resources.

It is ordered

1. This proceeding is reopened.

2. The request for issuance of a notice of interim trail

use is denied.

3. The exemption is subject to the condition that CSXT

leave intact all bridges, culverts, and similar struc-

tures (but not track or track materials) for a period

of 180 days unless the property is first offered, on

reasonable terms, for sale for public purposes.

44a

4. The request for a public use condition in all other

respects is denied.

5. This decision is effective on its service date.

By the Commission, Joseph H. Dettmar, Acting Director,

Office of Proceedings.

Sidney L. Strickland, Jr.

(SEAL) Secretary

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.