Opposition Brief — CSX Transportation, Inc. v. Fritsch

No. 95-962 : “upreme Court, Ws.

= DD a

In The 7 = 1996

Supreme Court of the Hnithd Stats

*

October Term, 1995

CSX TRANSPORTATION, INC. and MONROE COUNTY,

INDIANA,

Petitioners,

vs.

JANET FRITSCH, et ai.,

Respondents.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

NELS ACKERSON

Counsel of Record

LYNN A. BULAN

THE ACKERSON GROUP,

CHARTERED

Attorneys for Respondents

1275 Pennsylvania Avenue

Suite 1100

Washington, D.C. 20004

(202) 628-1100

8129

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

4 Ve owvices, inc.

i

QUESTIONS PRESENTED

1. Whether, consistent with JCC v. Brotherhood of

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

Appeals for the District of Columbia Circuit properly exercised

jurisdiction to review a final ICC order in which the ICC

expressly considered new evidence in ruling on a motion to

reconsider.

2. Whether the ICC can reassert jurisdiction over an

abandoned right-of-way, more than 180 days after issuing an

abandonment order with a 1 80-day public use condition under 49

U.S.C. § 10906, and cause the respondent-landowners’ land to be

converted to a trail under the rails-to-trails provisions of 16

U.S.C. § 1247(d), even though the railroad company abandoned

the line under ICC authority and railroad easements across the

land were extinguished by operation of law.

ii

TABLE OF CONTENTS

Questions Presemted .....scssnéntacsienecceneauevs

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Table of CMOS oc kc kicks vaeedseee

Opinions Below 2... ccisecvcnnchssvceneeeuausaea

Statutory Provisions Involved ..............0se000:

Stateanent of the Cees o.50cke0 ens ak cee

Reasons for Denying the Writ ............00eeeeees

I.

II.

III.

The Court of Appeals Properly Exercised

Jurisdiction to Review the Agency Order

Because the ICC Considered New Evidence in

Issuing ite Pinal Order. oo ckecccccnscoccecss

No Conflict Exists Between Circuits Because

Adequacy of Notice Is Not an Issue. ..........

The Court of Appeals Decision, Which Correctly

Holds that the ICC Exceeded its Jurisdiction in

This Case by Attempting to Apply the Trails Act

After Abandonment Was Consummated, Does

Not Limit the Lawful Application Elsewhere of

Either the Public Use Condition or the

Railbanking Provisions of the Trails Act. .....

Comeieeiom .oicccisactssaste eee

iii

Contents

Page

TABLE OF CITATIONS

Cases Cited:

ICC v. Brotherhood of Locomotive Engineers,482 U.S.

Cte RCat ss Tunwt ce ebeudaustcedsvsece i, 6,7

Friends of the Sierra R.R., Inc. v. ICC, 881 F.2d 663 (9th

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

Recreation Dist. v. ICC, 493 U.S. 1093 (1990) ..... 7,8

Fritsch v. ICC, 59 F.3d 248 (D.C. Cir. 1995) ......... 2

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

iE © soos ed bien es cuss tceeccee ce 11

Platnick Brothers, Inc. v. Norfolk & Western Ry. Co.,

ios ccc bus dee sccenbcceciesss 7

Unpublished Agency Decisions Cited:

Illinois Central Gulf R.R. Co. - Abandonment - In DeWitt

and Pratt Counties, iL, AB-43 (Sub.-No.134), served

adc CeR Gi eu cho eveceteck seedeccecss 1]

Statutes Cited:

I et mee ee i Boa

a a a A a ae Ak eae ge passim

iv

Contents

APPENDIX

Appendix A— Motion to Strike |

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Page

]

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

District of Columbia Circuit is reported at 59 F.3d 248 (D.C. Cir.

1995), and is reproduced in Petitioners’ Appendix at la-13a

(hereinafter “Pet. App.”). The final order of the Interstate

Commerce Commission (hereinafter“ICC”) that was the subject

of the proceeding below was served by the ICC on March 22,

1994, and is reproduced in Pet. App. at 28a-36a.

STATUTORY PROVISIONS INVOLVED

In addition to the statutory provisions set out in Petitioners’

Brief at 2-3, this case also involves 16 U.S.C. § 1247(d)

(hereinafter the “Trails Act”), which provides in relevant part:

(d) Interim use of railroad rights-of-way

. .. .Consistent with the purposes of that Act,

and in furtherance of the national policy to

preserve established railroad rights-of-way

for future reactivation of rail service, to

protect rail transportation corridors, and to

encourage energy efficient transportation

use, in the case of interim use of any

established railroad rights-of-way pursuant

to donation, transfer, lease, sale, or otherwise

in a manner consistent with this chapter, if

such interim use is subject to restoration or

reconstruction for railroad purposes, such

interim use shall not be treated, for purposes

of any law or rule of law, as an abandonment

of the use of such rights-of-way for railroad

purposes.

2

STATEMENT OF THE CASE

CSX Transportation, Inc., (hereinafter“CSX”) operated a

rail line and had railroad right-of-way easements over land in

Monroe County, Indiana that was and still is owned in fee simple

by adjacent landowners, including Respondents herein.'

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

the ICC seeking authorization to abandon this line on March 19,

1993. Pet. App. at 3a. On February 1, 1993, Monroe County filed

a request with the ICC for a public use condition, pursuant to 49

U.S.C. § 10906 (hereinafter “Section 10906”).* Pet. App. at 3a.

Section 10906 permits the ICC to impose a 180-day waiting

period after abandonment during which the railroad may not

dispose of abandoned properties that it owns which are suitable

for public use unless the properties have first been offered for sale

for public purposes. 49 U.S.C. § 10906.

On February 16, 1993, the ICC served a Notice of Exemption

authorizing abandonment effective 30 days later. Pet. App. at

18a-19a.

1. Petitioner CSX, in its Notice of Exemption, stated that it was CSX's

opinion that the properties proposed for abandonment might not be suitable for

other public purposes due to the possibility of reversionary interests in the

property. This representation as to CSX's lack of fee simple ownership in the

property has not been challenged. “Petitioners are various private landowners

who own in fee simple the land across which CSX Transportation, Inc.

(“CSX™) possessed an easement for rail purposes.” Fritsch v. ICC, 59 F.3d 248,

249 (D.C. Cir. 1995), Pet. App. at 2a. If CSX actually owned the land in fee,

CSX would be free to transfer its interest in the land to Monroe County,

regardless of whether the Trails Act applies, and neither CSX nor Monroe

County would have any reason to seek the aid of this Court.

2. The Monroe County Parks and Recreation Department, often referred

to in papers and decisions as MCPRD, is a division of Monroe County.

3

On March 18, 1993, the ICC issued a decision allowing the

abandonment, with a 180-day public use condition. Pet. App. at

41a-44a. The ICC denied Monroe County’s request for interim

trail use under 16 U.S.C. § 1247 because the railroad did not

consent to the trail use as required by 16 U.S.C. § 1247. Pet. App.

at 42a.

On March 23, 1993, and again on April 23, 1993, CSX

informed the ICC that it had abandoned the rail line on March 19,

1993. Pet. App. at 4a. Tariffs were cancelled, and during the

summer and fall of 1993, rails and ties were removed, hence

terminating the railroad use on the land, extinguishing CSX’s

railroad right-of-way easement by operation of law and relieving

the burden of the right-of-way easement from the owners of the

fee simple estate. Pet. App. at 1 la.

On September 10, 1993, Monroe County wrote to the ICC

that CSX and Monroe County had reached an agreement for

Monroe County to acquire a portion of the rail corridor for a cost

of $90,000. No evidence was submitted that CSX at that time

owned any interest in the land. Pet. App. at 4a-5Sa.

On September 14, 1993, the public use condition expired.

On that day CSX filed a statement with the ICC affirming Monroe

County’s representations and requesting th2 ICC to reopen the

abandonment proceeding to issue a Notice of Interim Trail Use

(hereinafter“NITU”) pursuant to the Trails Act, 16 U.S.C.

§ 1247(d). Pet. App. at Sa. Section 1247(d) only applies before

abandonment and authorizes the ICC to issue a NITU to cause a

line to be rail-banked and used for interim trail purposes as an

alternative to abandonment. CSX again reaffirmed that it had

abandoned the rail line on March 19, 1993. Pet. App. at 4a.

On September 23, 1993, the ICC reopened the proceeding

and issued a NITU. Pet. App. 21a-24a.

4

On November 8, 1993, the Respondent-Landowners moved

to reconsider the ICC’s decision on the basis of new evidence,

and Respondent-Landowners filed supplemental authority on

December 8, 1993. Pet. App. at37a-40a. As explained by the ICC

in its subsequent ruling, the new evidence included a claim that

“full abandonment had been consummated” and “no agreement

was reached within the 180-day period...” Pet. App. at 32a.

On December 15, 1993, Monroe County filed a Motion to

Strike “Supplemental Authority” Filed by “Class of Adjacent

Landowners” and Notice of Status of Railbanked Facility

(hereinafter “Motion to Strike and Status Report”), which

contained new evidence, including claims that the line had not

been abandoned and that Monroe County had in fact reached a

trail agreement during the 1 80-day period, and also including a

report on events and developments that had occurred after the

ICC’s September 27, 1993 decision. Respondents’ Appendix at

la-5Sa.

On March 22, 1994, the ICC issued a decisicn which, while

reaffirming its earlier decision, effectively re-opened the

proceeding by expressly considering the new evidence.

Specifically, the ICC responded to Monroe County’s Motion to

Strike and Status Report: “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 Monroe

County’s response to it.” Pet. App. at 33a, n. 6. The ICC

proceeded to consider Monroe County’s new evidence:

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

- tte th a res

5

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. ..toconstructa trail facility on

the Monroe County portion of the corridor.

Pet. App. at 33a. After reviewing the new evidence and the

earlier proceedings, the ICC ruled again that it had jurisdiction to

issue a NITU. Pet. App. at 35a-36a.

On May 19, 1994, Respondent-Landowners filed a timely

petition for review of this final agency order by the United States

Court of Appeals for the District of Columbia Circuit

(hereinafter“D.C. Circuit”).

On May 11, 1995, the D.C. Circuit held that it possessed the

jurisdiction to review the ICC’s decision because the ICC had

considered new evidence in connection with the motion for

reconsideration. Pet. App. at 8a. The D.C. Circuit further held

that the ICC was without power to undo the abandonment of the

CSX line, that the abandonment had worked a reversion of

interest to the fee simple, that the petition for review was allowed,

and that the ICC’s decision was reversed. Pet. App. at 13a.

Petitions for reconsideration were denied. Pet. App. at 16a-17a.

On December 18, 1995, CSX and Monroe County filed their

petition to this Court for a writ of certiorari. The ICC did not seek

further review by this Court.

6

REASONS FOR DENYING THE WRIT

THE COURT OFAPPEALS PROPERLY EXERCISED

JURISDICTION TO REVIEW THE AGENCY ORDER

BECAUSE THE ICC CONSIDERED NEW EVIDENCE IN

ISSUING ITS FINAL ORDER.

This Court set out the standard for judicial review of an

agency decision in/CC v. Brotherhood of Locomotive Engineers,

482 U.S. 270, 278 (1987) (hereinafter Locomotive Engineers):

When the Commission reopens a proceeding

for any reason and, after reconsideration,

issues a new and final order setting forth the

rights and obligations of the parties, that

order —even if it merely reaffirms the rights

and obligations set forth in the original order

— is reviewable on its merits .... Where,

however, the Commission refuses to reopen a

proceeding, what is reviewable is merely the

lawfulness of the refusal.

(Citations omitted).

Respondent-Landowners in their November 8, 1993 and

December 8, 1993 filings presented the ICC with new evidence.

Monroe County, in its Motion to Strike and Status Report,

presented new evidence of its own. The ICC explicitly declined

to strike the Respondent-Landowners’ Motion to Reconsider

Decisicn and Notice of Interim Trail Use (hereinafter “Motion to

Reconsider”) and supplemental authority, and instead it

expressly considered the new evidence that was submitted by

both Respondent-Landowners’ and Monroe County. The ICC’s

7

written decision denying Respondent-Landowners’ Motion to

Reconsider explicitly acknowledges its consideration of the new

evidence. Pet. App. at 8a.

This Court explained in Locomotive Engineers that if an

agency in fact reconsiders a ruling, even if its new final order

merely reaffirms the rights and obligations set forth in the

original order, the new final order is reviewable on its merits. 482

U.S. at 278.

The argument of Petitioners here (Intervenors below) that

there was no “new evidence” but only “newly raised evidence”

completely ignores the evidence that Monroe County itself

presented. Monroe County presented evidence of facts that

occurred both before and after the ICC’s September 27, 1993

order. “Newly raised evidence” is “precisely the same substance

that could have been brought there by an appeal from an original

order,” and is therefore not reviewable. JCC v. Brotherhood of

Locomotive Engineers, 482 U.S. 270, 279 (1987). Thus,

evidence that was available at the time of the original proceeding

is not “new evidence.” Friends of the SierraR.R., Inc. v. ICC, 881

F.2d 663, 667 (9th Cir. 1989), cert. denied sub nom. Tuolumne

Park and Recreation Dist. v. ICC, 493 U.S. 1093 (1990). See also

Platnick Brothers, Inc. v. Norfolk & Western Railway Co., 367

I.C.C. 782, 785 (1983) (“in an administratively final case it is

only fair that “new evidence’ be in fact new.”).

Monroe County’s “new evidence” was new. The evidence

presented to the ICC in connection with Respondent-

Landowners’ Motion to Reconsider and Supplemental Authority

to Motion to Reconsider Decision and Notice of Interim Trail Use

and Monroe County’s Motion to Strike and Status Report is “new

evidence” since the facts provided to the ICC concerned events

that occurred after the ICC issued its original decision allowing

the exemption. The ICC expressly declined to strike the “new

8

evidence” and acted upon it in its decision issued on March 22,

1994. Since the ICC accepted “new evidence” in connection

with its March 22, 1994 order, the D.C. Circuit properly

exercised jurisdiction to review that new final order.

Il.

NO CONFLICT EXISTS BETWEEN CIRCUITS

BECAUSEADEQUACY OF NOTICE IS NOTAN ISSUE.

No issue whatsoever is presented by the nature or content of

the Federal Register notice that was published in this case.

Petitioners’ focus on the Federal Register appears to be merely

an effort to create the appearance of a conflict between circuits

where none exists. Only if there had been no “new evidence”

would there be any substance whatsoever to the farfetched

contention that the D.C. Circuit’s decision here somehow

conflicts with the Ninth Circuit’s decision in Friends of the

Sierra R.R., Inc. v. ICC, 881 F.2d 663, 667 (9th Cir. 1989), cert.

denied sub nom. Tuolumne Park and Recreation Dist. v. ICC, 493

U.S. 1093 (1990).?

3. Petitioners based their entire Federal Register argument on one

phrase taken out of context from the D.C. Circuit's opinion, “[Landowner-

Respondents] were unaware of the filing of the CSX motion.” However, the

D.C. Circuit did not hold that the lack of notice was the basis for reviewing the

ICC decision of March 22, 1994. The D.C. Circuit considered the record in

which the ICC itself acknowledged that it had considered new evidence and the

D.C. Circuit explained:

Not only did the Commission not reject [Respondent-

Landowners’] assertions of new matter, it in fact

addressed anew the merits of the September 23

determination as though accepting the facial validity of

{Landowner-Respondents’] claims and rejected them

only on the underlying merits.

Pet. App. at 8a.

9

Because the ICC considered new evidence and in fact re-

opened the proceeding, determining the rights and obligations of

the parties to the action, Respondent-Landowners’ Motion To

Reconsider was the subject of anew final agency decision. When

the ICC ruled on that motion on March 22, 1994, Respondent-

Landowners timely filed their appeal of that denial on May 19,

1994. 3

IIl.

THE COURT OF APPEALS DECISION, WHICH

CORRECTLY HOLDS THAT THE ICC EXCEEDED ITS

JURISDICTION IN THIS CASE BY ATTEMPTING TO

APPLY THE TRAILSACTAFTERABANDONMENT WAS

CONSUMMATED, DOES NOT LIMIT THE LAWFUL

APPLICATION ELSEWHERE OF EITHER THE

PUBLIC USE CONDITION OR THE RAILBANKING

PROVISIONS OF THE TRAILSACT.

The Court of Appeals decision here correctly defined the

limits of the ICC’s jurisdiction in this case. The Court of Appeals

decision does not limit the application of the public use condition

under Section 10906 of the Railroad Revitalization and

Regulatory Reform Act of 1976. 49 U.S.C. § 10906. Neither

does the Court of Appeals decision here limit the power of the

ICC to facilitate railbanking and rails-to-trails conversions under

the Trails Act.

The petition for a writ of certiorari here muddles the

important differences between Section 10906 and the Trails Act.

In the Trails Act, Congress provided a mechanism by which rails

could be converted to trails. The Trails Act preempts state

abandonment !aw because by federal law no abandonment is

deemed to have occurred. Under the Trails Act, if before

abandonment both the railroad and a responsible party agree to

10

negotiate a trail use, the ICC may issue a NITU and initiate a 180-

day negotiation period to allow the railroad and would-be trail

manager to come to an agreement concerning interim trail use.

Through this process, a railroad right-of-way corridor may be

converted to a trail, without triggering the extinguishment of

railroad right-of-way easements and the consequent resumption

of full dominion over the railroad corridor by the underlying

landowners.

But this case did not proceed as a Trails Act case because, as

acknowledged by the ICC and all of the parties, CSX expressly

declined to participate in negotiations for such a conversion and

as a result, by law, the ICC could not issue a NITU. Instead, the

ICC authorized abandonment, witha public use condition. After

CSX had taken all necessary steps to abandon the line and upon

expiration of the public use condition, abandonment was

consummated at the latest on September 14, 1994. Pet. App. at

21a, 28a, 42a. Therefore the Trails Act provisions thereafter

simply could not and did not apply to this case.

The statute that is in issue here is Section 10906. The plain

language of 10906 permits a public use condition to be effective

only after ICC abandonment authorization. That provision does

not prevent the consummation of abandonment and the

consequent extinguishment of right-of-way easements by

operation of law. Rather, it requires the railroad to make

available for public purposes, under a procedure similar to aright

of first refusal, whatever property the railroad retains that is

suitable for public use. If easements are extinguished, of course,

the railroad may have no land left to transfer.

The railroad right-of-way easements across Respondent-

Landowners’ land were extinguished upon abandonment, which

occurred before the ICC’s September 27 order. Thus,

Respondent-Landowners’ land was no longer available to CSX to

1]

negotiate with Monroe County oranyone else. Additionally, the

plain language of Section 10906 permits the ICC to impose a

public use condition “for a period not more than 180 days,”

which expired before the ICC attempted to resurrect its

jurisdiction by imposing interim trail use under the Trails Act.

With the expiration of the Section 10906 public use condition, the

ICC’s jurisdiction over the rail line expired, even if it had not

expired with the earlier extinguishment of the easements.

Therefore the ICC had no power to make orders concerning

Respondent-Landowners’ land.

ICC jurisdiction ordinarily ends with the issuance of a

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

N.W. Transp. Co., 467 U.S. 622, 633 (1984). The ICC has

described its test of consummation of abandonment:

Our jurisdiction over a line typically ends

when a line is fully abandoned. Whether a

line is fully abandoned is a question of the

Carrier’s intent. In determining intent, we

look at certain indicia: a line is fully

abandoned when a certificate of public

convenience or necessity (or an exempt'on

notice as pertinent) is issued and has become

effective, tariffs have been cancelled and

operations have ceased. Abandonment is

considered consummated when aline is fully

abandoned.

Illinois Central Gulf R.R. Co. - Abandonment - In DeWitt and

Pratt Counties, IL, AB-43 (Sub.-No. 134), served Jan. 4, 1989.

Clearly ICC jurisdiction ends with the consummation of

abandonment. When the ICC places a public use condition on an

abandonment, the ICC of course retains jurisdiction to enforce

the opportunities for public entities to negotiate the purchase of

a

12

whatever property, if any, remains after abandonment. The ICC

has no power to create new real property interests in the railroad.

The D.C. Circuit correctly held here that CSX had taken

every step necessary to abandon, and in fact had acknowledged to

the ICC on several occasions that it had abandoned the rail

corridor on March 19, 1993. Abandonment was not “stayed” by

the imposition of a public use condition under 49 U.S.C. § 10906.

Upon abandonment, the right-of-way easements were

extinguished, the Respondent-Landowners’ land was no longer a

part of the national transportation system, and the ICC’s

jurisdiction ended.

The D.C. Circuit’s decision follows unmistakable and

consistent precedents. There is no important legal issue for this

Court to review.

CONCLUSION

For the foregoing reasons, the writ of certiorari should be

denied.

Respectfully submitted,

NELS ACKERSON

Counsel of Record

LYNNA. BULAN |

THEACKERSON GROUP, |

CHARTERED

1275 Pennsylvania Avenue, N.W.

Suite 1100

Washington, D.C. 20004

Phone: (202) 628-1100

la

APPENDIX A — MOTION TO STRIKE

BEFORE THE INTERSTATE COMMERCE COMMISSION

AB-55 (Sub-no. 455X)

CSX Transportation, Inc. — Exemption — Monroe and

Lawrence Counties, Indiana

(1) Motion to Strike “Supplemental Authority”

Filed by “Class of Adjacent Land Owners”

and (2) Notice of Status of Railbanked Facility

Motion to Strike

On 13 December, counsel for Monroe County (used

collectively to refer to Monroe County and its Parks and

Recreation Department, a party in this proceeding) received a

copy of a document entitled “Supplemental Authority to

Motion to Reconsider Decision and Notice of Interim Trail

Use or Abandonment.” Monroe County moves to strike this

“Supplemental Authority” for the reasons stated below.

1. The “Supplemental Authority” amounts to a reply to a

reply, and is not permitted under 49 C.F.R. 1104.13(c) (“{a]

reply to a reply is not permitted”). Indeed, the “supplemental”

pleading amounts not just to a second bite at the apple, but

apparently an even more illicit third.

Monroe County assumes that the “Class of Adjacent

Property Owners” is comprised of the entities that filed

unserved “letter-protests” dated in late September 1993.

These protests were disallowed by this Commission, except as

correspondence, for failure to comply with ICC procedural

requirements. See decision in this docket served October 20.

2a

Appendix A

The attorney (Mr. Watts) serving the “Supplemental

Authority” at issue here then filed a “petition to reconsider” on

November 4, 1993, on behalf of certain identified persons or

companies. That petition, as Monroe County pointed out in its

reply served November 9, provided absolutely no grounds to

reconsider.

Mr. Watts’ latest emission (the “Supplemental

Authority”), which was received one month after our reply

was served, amounts to nothing more than a third effort at the

same subject. It purports to offer some rationale for the

November 4 petition to reconsider, and to fill in the gaping

hole Monroe pointed out on November 9. Mr. Watts’

“Supplemental” volley is thus clearly a reply to a reply, and

unquestionably is not permitted by the Commission’s

regulations.

Mr. Watts gives no basis for the delay, or rationale for

permitting its filing in contravention of this Commission’s

regulation, nor could he. Mr. Watts’ reply to our reply offers

nothing new, either factual or legal. There are simply no

grounds for his failure to comply with this Commission’s

regulations.

2. The “Supplemental Authority” fails to identify the

persons on whose behalf it is filed. The title page and

unnumbered final page of the pleading states that the signatory

attorney represents “Class of Adjacent Property Owners” but

those property owners are not identified, and this Commission

has never approved, identified or certified any “class,” let

alone the class specified. Attorneys filing pleadings with the

Commission should identify the persons on whose behalf they

are filing, so that parties to a proceeding do not have to

“assume,” as we have had to do, the identity of our opposition.

3a

Appendix A

3. In the event that this Commission entertains Mr. Watts’

third bite at the apple in contravention of 49 C.F.R.

1104.13(c), Monroe County notes that Mr. Watts on behalf of

his “Class” makes a number of legal and factual

misstatements. For example, this Commission has

consistently recognized that it retains jurisdiction over a

corridor so long as a condition on an abandonment

authorization remains extant, and even if salvage activities

have been undertaken. The reason is that there is not “full

consummation” of the abandonment authority so long as a

condition is extant. Conversely, if salvage activities have not

taken place, and the corridor is otherwise intact, the

Commission has also consistently taken the position that it

retains jurisdiction even if the abandonment was

unconditioned or the conditions imposed have expired. The

reason again is lack of “full consummation.”

In the case at bar, a public use condition was timely

requested and duly imposed by the ICC. During the interval

provided by the public use condition, CSX Transportation and

Monroe County negotiated a trail use and railbanking

agreement for the portion of this corridor in Monroe County,

and jointly requested that this Commission enter a railbanking

order. Specifically, Monroe County advised the Commission

of this situation in a letter dated September 10, filed

September 14, within the time provided by the public use

condition. This Commission has consistently taken the

position that a timely request during the period of a condition

continues the Commission’s jurisdiction for a period

sufficient to act upon the request, even if the Commission’s

action is a short time outside the period of the initial condition,

as here. Compare Burlington Northern Railroad Company —

Exemption — Fall River and Custer Counties, SD, AB-6

da

Appendix A

(Sub-no. 293X), served Jan. 4, 1989 (lifting a condition

barring salvage and disposal effective Feb. 3, 1989) with

same, served Feb. 9, 1989 (issuing a NITU in response to a

request by State of South Dakota “dated” January 27, 1989 —

six day interval between lifting condition and imposition of

section 8(d) order, although order timely requested).

As CSX Transportation's conduct here shows, the railroad

during the course of a public use condition negotiated an

agreement keeping the Monroe County portion of the corridor

intact, which is what a public use condition is supposed to

facilitate. The parties timely requested ICC to issue a NITU, in

accordance with the Commission’s now ancient policy of

doing so “as long as we retain jurisdiction to do so.”

Burlington Northern, supra, served Feb. 9, 1989, at p. 1. The

situation is controlled by cases such as Burlington Northern.

Illinois Central Gulf — Abandonment — De Witt and Piatt

Counties, Ill., 5 1CC2d 1054 (1988), cited by Mr. Watts, is

inapposite. That corridor had been authorized for

abandonment, the abandonment was effective, the line had

been salvaged, and there were no conditions, let alone extant

conditions. Here there were conditions, the conditions were

extant, and the parties actually completed an agreement while

the conditions were extant.

Status of Railbanked Facility

Monroe County is pleased to report (a) that it has assumed

management responsibility and other responsibilities for the

corridor in question in accordance with 16 U.S.C. 1247(d), (b)

that a railbanking agreement with CSX has been implemented

pursuant to the NITU, and (c) that the County has received a

5a

Appendix A

substantial (approximately $1 million) grant from the federal

government’s Intermodal Surface Transportation Efficiency

Act’s “enhancements program” to construct a trail facility on

the Monroe County portion of the corridor.

Respectfully submitted,

s/ Charles H. Montange

Charles H. Montange

426 NW 162 Street

Seattle, Washington 98177

(206) 546-1936

Attorney for Monroe County

Certificate of Service

I hereby certify that a copy of the foregoing was served by

U.S. Mail, postage pre-paid, first class, this 14th day of

December, 1993, upon Paul J. Watts, Esq., 85 S. Main Street,

Spencer, Indiana 47460-1787 and Charles Rosenberger, Esq..,

CSX Transportation, 500 Water Street, Jacksonville, Florida

32202.

s/ Charles H. Montange