Borough of Columbia Shawnee Run Greenway, Inc. v. Surface Transportation Board United States of America, Frank Sahd Salvage, Intervenor

Scope corpus not refer to habeas or of Review U.S.C. C. § speak thus do not suffi- further The Government asserts precision cient to divest district courts of (as were to conclude we that, if we even jurisdiction. that habeas Because the done) juris have district courts have scope jurisdiction of habeas extends to § 2241 review under diction concerning interpreta- claims the correct claims, the District Court CAT or FARRA statute, the application tion or of a District ha Ogbudimkpa’s over jurisdiction has no jurisdiction consider Ogbu- Court has he has not corpus claims because beas claim BIA dimkpa’s misinterpret- that the or constitutional legal on sought review (and regulations FARRA imple- ed of a We claim, rather factual issue. but FARRA) menting concluding dispute does not Ogbudimkpa disagree. satisfy facts in this case do stan- Rather, findings of IJ. he the factual dard for relief under we Accordingly, CAT. applied wrongly the IJ argues that reverse District Court’s dismissal for relief set forth FARRA standard for subject jurisdiction lack of matter and re- regulations implementing and its it to of Ogbu- mand for consider the merits relief is tradi his case. Habeas facts of dimkpa’s corpus petition. habeas law, to correct “errors of tionally available in application the erroneous including Cyr, 533 of statutes.” St.

terpretation add (emphasis 121 S.Ct. 2271

U.S.

ed). jurisdiction A court’s habeas district applica review of the BIA’s

encompasses undisputed legal principles to facts.

tion of 143 (“Wang’s argument F.3d at

Wang, 320 challenging applica the BIA’s appeal COLUMBIA; OF BOROUGH facts this case particular tion of the Inc., Greenway, Petitioners, Run falls permissi law within the the relevant review.”); Fort, also Saint scope ble see SURFACE TRANSPORTATION (noting at 203 the Second Cir BOARD; United States in Wang declining while cuit’s conclusion America, Respondents, petitioner’s issue because the reach nature).

claim constitutional in Be Salvage, Frank Intervenor Ogbudimkpa alleges misapplication cause Respondent. undisputed facts of legal principle record, scope falls this case within the No. 02-2599. granted to the District jurisdiction

habeas Appeals, United States Court 28 U.S.C. 2241. Court Third Circuit. III. Conclusion Argued 2003. April have con- jurisdiction courts District Filed Aug. alleging sider claims violations of CAT corpus petitions. in habeas Con- raised

gress CAT FAR- implemented passing jurisdictional provisions

RA. FARRA’s do inconsequential, relegate we inconsequential the continued collo- likewise and thus CAT is quial CAT reference to rather than FARRAis this discussion to a footnote. Pfannebecker, Zimmerman,

Robert Pfannebecker, Albert, Nuffort & Lancas- ter, PA, Borough Petitioner of Colum- bia. Seattle, Montange

Charles H. (Argued), WA, for Petitioner Shawnee Run Green- way. (Argued), sought R. the line Levitt Surface

Marilyn with the intent expressed M&H Board Office the Secre- Transportation DC, freight ship- the dormant line for resurrect Washington, Respondent tary, ping. approved The STB Sahd’s OFA and Transportation Board. Surface and compensation set the conditions for III, Powers, J. Wiggers, John Robert J. purchase of the rail line. Sahd’s Anti- Department Justice United States petitioner Borough of Co- Shawnee Division, DC, Washington, for Re- trust lumbia take issue with the decision of America. States spondent United permit purchase to to the line. Hine, Moreno, Thompson Jeffrey 0. on con- challenge to the decision is based DC, Respon- for Intervenor Washington, arbitrarily the STB acted tentions Salvage. dent Frank Sahd in determining capriciously there was likelihood that Sahd would actually ROSENN, BARRY and Circuit Before use, the rail line restore the POLLAK, Judge.* District Judges, line to transfer of the Sahd amounts taking. Having unconstitutional reviewed THE COURT OPINION OF STB, proceedings the before the we de- POLLAK, Judge. District cline decision agency’s to disturb allow purchase Sahd to the line. chapter case latest represents This history of a complex two-and-a-half- I. STATUTORY SCHEME line located in Lancas- mile stretch had County, Pennsylvania. describing underlying track Before further the ter case, pause over a when facts we unused for decade of this to outline the remained Greenway, statutory pursuant Run Inc. to which Shawnee scheme petitioner (“Shawnee”), April acquired century, STB acted. For almost the rail purchase government plenary line from its federal has exercised option (“1411” owner, authority Corporation 1411 exclusive over the abandon —not Chicago ment operator, railroad lines. party proceeding), & Co., Transp. Hummelstown Railroad Tile Middletown & N.W. Co. Kalo Brick & (“M&H” 320-21, 1124, this 450 Company party to U.S. 101 S.Ct. 67 —not (1981). planned proceeding).1 Beginning to remove L.Ed.2d 258 a traü and Act of ch. develop greenway Transportation the rails and Stat. (1920), authority was along plan route. Shawnee’s vested 477-478 however, thwarted, when intervenor- the Interstate Commerce Commission (“ICC”). Center, Salvage Through Frank Sahd vehicle of the respondent ICC (“Sahd”) (“ICCTA”), proffered an Act L. Inc. “offer of finan- Termination Pub. No. (codified (“OFA”) 104-88, to the respondent cial assistance” Stat. scattered (“STB”), U.S.C.), Transportation Congress Board of 49 on Janu- Surface sections * Poliak, Judge quire property Honorable Louis H. District from owner [1411] and that, Court operator the United States District for the East- We note in different [M&H].” Pennsylvania, sitting by desig- record, ern District portions of the M&H and 1411 are nation. interchangeably seller referred to as the (dated option property. purposes September contract owner of the For While dis- 7, 1999) assigned cussion, rights creating the to Shaw- we refer M&H will to 1411 and M&H, mention of the final nee makes no the line was to be entities whom (dated September contract acquired. 2001) permit purports to Shawnee to "ac- ary 1996 abolished the ICC and created and continued regulation unnecessary to perform functions similar to protect shippers from abuse of market previously assigned those 1152.50(c)(l-2). the ICC. 49 power.” § 49 C.F.R. ICCTA, § 10501. Pursuant to the 1152.50(d), § Under 49 C.F.R. a carrier regulatory jurisdiction broad seeking authorization for abandonment “transportation by over rail carrier.” Id. files a “notice of exemption” with the STB. 10501(a). § The term “rail carrier” is de- twenty days Within filing, fined, in part, person provid- relevant as “a publishes “notice” of proposed aban- ing common carrier transportation railroad donment in the Federal Register. Id. 10102(5). § compensation.” Id. A line 1152.50(d)(3). may or railroad not be taken out of the

national system, may rail and a railroad That a sought carrier has STB permis not be relieved of its common carrier obli- sion abandonment often does end gation, unless the carrier first obtains story. Congress, While in establishing abandonment authority from the STB. Id. procedures lines, for the abandonment of 10903(a)(1). § sought has to assist wishing carriers to be loss, free of lines operating at a it has also procedures by which a carrier ap- recognized competing interest of main plies to the STB for abandonment of a (or taining established lines at least the captured railroad line are in 49 U.S.C. right-of-way) to meet shippers’ present § 10903. The may permit proposed and future needs for railroad ser line abandonment upon determining that Hayfield vice. See N. R.R. Chicago Co. v. “present or future public convenience Co., & 622, 630, 104 N.W. 467 Transp. U.S. necessity require permit or the aban- (1984) (refer S.Ct. 81 L.Ed.2d 527 10903(d). § donment.” Id. Alternatively, ring to “Congress’ efforts accommodate may the STB conduct rail abandonment conflicting interests of railroads that proceedings through exemption proce- desire to unburden quickly themselves by § dures authorized 49 U.S.C. unprofitable lines and shippers that are exemption One of the procedures utilized dependent upon service”); continued rail by provides the STB a streamlined mecha- ICC, Preseault v. 494 U.S. 110 S.Ct. nism for the abandonment of a rail line if (1990) (a) 108 L.Ed.2d 1 (describing “con the line has not been used for local (b) gressional to preserve shrinking efforts traffic for at least two years; overhead abandoned, rail (c) trackage”). When a line rerouted; traffic on the line can is be the property which the tracks are shipper complaint upon has filed a regarding property commonly cessation of service the carrier over the line. 49 holds laid — 1152.50(b). § C.F.R. commonly' pursu- Abandonment reverts easement— ant to exemption justified by is owners of the properties adjoining the for (1) Preseault, finding mer track prior “its review and area. U.S. approval these ... may abandonments is not S.Ct. 914. This means that it necessary carry out transporta- very the rail difficult together to cobble a contigu (2) 10101”; tion policy § of 49 U.S.C. ous strip land for a future rail line once “these transactions are scope of limited abandonment There- consummated.2 practical problem 2. This succinctly grants has been are land in the form of an ease- (which described: ment terminates in favor of the ser- abandoned, abandoned) they When railroad lines are simple do vient estate when or fee (which simply disrepair; more than fall into if triggers determinable a future inter- charged pursuant compen- to the conditions and fore, Congress STB, the “remedies” sation set abandonment administering statutory certain proceeding rail lines. is dismissed. 49 C.F.R. abandonment of that avoid the 1152.27(f)(2). § an offeror litigation, acquires When instant purposes For the 10904, may § a line under not seek to particular importance: are of two remedies (“OFAs”) transfer or discontinue service the fine financial assistance offers of 10904; years. § “rail- for at two least under 49 U.S.C. 1247(d). 10904(f)(4)(A). § § 16 U.S.C. under

banking” A. Financial Assistance B. Railbanking Offers applied carrier has to abandon When a of preserv- The second relevant method “any rail file an person” ing right-of-way is referred to as rail line purchase or subsidize a which an offer to process which an enti- “railbanking” —a to facilitate continued and so ty responsibility for a willingly assumes 10904(c); § 49 U.S.C. freight rail service. public along line and trail establishes 1152.27(f). timely § When a 49 C.F.R. 1247(d) (known route. as the 16 U.S.C. the STB finds that the OFA filed and trail “Rails-to-Trails interim AcUk'^The responsible,” the “financially offeror is be/freated, purposes use “shall not of abandonment authori- postpone STB must law, any law as an or rule of abandonment ty process. of OFA pending completion rights-of-way of the rail- use of súch 10904(d)(2). § 49 U.S.C. subject road and is purposes,” restora- or pur- tion reconstruction for railroad table, offer- is on the When an OFA poses. Id. negotiate are free to and the rail carrier transaction. Id. putative terms of the (regulations implementing The STB’s 10904(d)(2). § they If fail to reach 1247(d) § comprise procedural steps some- the offeror or the rail agreement, either what to those in an analogous involved days carrier, thirty of the within § entity OFA. 49 1152.29. Each C.F.R: that the STB set the condi- request seeking trail use files a “Statement of Will- compensation of for the tions and amount ingness Responsibili- To Assume Financial 10904(e). § thirty Id. transaction. Within 1152.29(a)(3). ty” § Id. with the STB. days request to establish conditions of the These must be “statements” filed within amount, and the STB ren- compensation days ten of the publication notice 10904(f)(1)(A). § Id. ders its decision. exemption Register. in the Federal Id. Once sets the conditions and com- 1152.29(b)(2). § If the railroad agrees to railroad is to those pensation, the bound use, negotiate prospective regarding trail terms, proponent OFA has ten but then the issues a Notice Interim days being the OFA to withdraw before (“NITU”), Trail or Abandonment Use the STB’s decision. Id. bound to permits which the railroad discontinue 10904(f)(2). § use, subject trail service in favor of interim line, of rail purchases the rail future restoration service. Id.

Once the offeror 1152.29(d)(l-2). through negotiated agreement Importantly, unlike whether est) extremely possessory estate transformed lost easements would diffi- cases, regain. simple expensive In cult absolute. and into fee such Note, Drumm, Emily Addressing right upon to the the Flaws all easement railroad loses Act, 8 Kan. Railroads fear that should the Rails-to-Trails J.L. & Pub. abandonment. future, (footnotes 158, omitted). Pol’y transport rise in the demand for rail offers, requests railbanking are not distanced it from as an usefulness inter- binding upon accepting the rail In state railroad. Borough of line— (“Columbia”) offer the discretion of the railbanking is at Columbia removed the rails carrier. at a railroad crossing repaved the In street the intersection. Conrail

II. PROCEDURAL FACTUAL AND removed the switch to connecting the main HISTORY line, thereby link severing the to the inter- Having summary forth set stat- In state tracks. Commonwealth abandonment, utory governing framework paved over another Pennsylvania cross- OFAs, railbanking, we now turn to the ing, embargoed.3 and the line was place facts of the instant case and their in 1990s, In the early Sahd —which oper- that framework. salvage yard immediately adjacent ates a This case involves two-and-a-half-mile had, times, to the tracks shipped of railroad located stretch Lancaster expressed interest in acquiring line— County, running from urban setting but the through. deal fell Accord- farmlands, open into terminating ing to the verified statement Wendell J. field about 250 of a highway. feet north Dillinger, president M&H and right-of-way along span of the line expressed interest the line twenty fluctuates sixty between feet 1993 and between Mr. Dil- width. linger “unproductive” described the and advocated a plan “rails-to-trails” so changed

The line has hands a number of might that M&H and 1411 avoid selling many times decades of its existence. adjacent piecemeal the line the 1, 1864, property April Reading On the & Columbia (“R&C”) owners. Railroad a opened 89.5-mile line (which included the 2.5-mile section at is- 1999, 7, September Stark, On Michael a here). merged sue R&C was into the businessman, local purchased option to 31, Reading Company on December 1945. acquire the line and 1411 from M&H and (“Conrail”) Rail Corporation Consolidated establish a Mr. Stark greenway. then as- acquired 1, April the 39.5-mile line on signed option the to petitioner Shawnee. Conrail, 1982, 1976. in transferred the Shawnee, preparing establish the

relevant 2.5-mile portion line to ITT greenway, payments pur- made toward the Grinnell, and the abandoned remainder of price boundary chase and commissioned line (subsequent the references to the surveys analysis. and environmental A stretch). only “line” refer to the 2.5-mile “Master Plan” greenway pre- for the was Grinnell, turn, ITT transferred the line under pared January auspices 2001 the wholly subsidiary, to its owned 1411. 1411 the Pennsylvania Department of Con- then sold to was M&H 1986. The last Resources, servation and Natural Colum- carload of on the line was trans- bia, Hempfield Township, West and the in December of 1990. ported Development Downtown Corpo- Columbia fallow,

As the lay changes ration. The Plan noted that “[o]ne its Master physical legal property [presumably characteristics status owner indicat- Sahd] 1124, embargo, (1981). by Supreme An 3. as described the 101 S.Ct. 67 L.Ed.2d 258 If Court, emergency justified, temporary suspension embargo “is a the relieves carrier of filing liability transportation. of service initiated failing provide of a notice with for Island, Co., Chicago Transp. Chicago, the N.W. ICC v. [STB].” & Co. v. Rock & R.R. Pac. 311, Co., 2, 908, (8th Cir.1974). Kalo Brick & U.S. Tile 450 314 n. the proceedings as the before to see rail with Even they would like ed that Shawnee, 17, September on transpired, after to a trail established opposed trail [as 2001, However, it had option acquired after con- exercised the removing rails].” into a Mr. Stark and entered contract requirements operating for sidering M&H and 1411 Plan line from rail, of the Master the drafters $125,000. “a rail trail alternative for concluded economically and likelihood would be in all Meanwhile, negotiations its private own institutionally infeasible.” having acquisition of the line borne for Sahd, 17, 2001, fruit, exemp- on filed September notice of filed a M&H compensation for request § 1152.50 on March a conditions under 49 C.F.R. tion By to be set. letter of 23, 2001, pro- abandonment for transaction initiating thus 25, 2001, then, 17, Shawnee asked the April September on ceedings. Shawnee statute, require to reimburse 2001, railbanking 16 STB Sahd Shaw- invoked 1247, equitable in the timely “State- nee for its interest line. by filing § 18, 2001, the STB established Willingness Assume Financial On October To ment $125,000, and purchase price did not prescribed C.F.R. Responsibility,” later, 1152.29(a)(3). days April request on address Shawnee’s reimburse- Three 20, 2001, timely accepted filed notice of ment. Sahd conditions Sahd 2001, on requested compensation an OFA. October and the intent to file Sahd approved by the STB on the STB an extension of sale Novem- received from “petition July Sahd submitted filing OFA. On ber time for 29, 2001, requesting for clarification” on November so filed motion proceed- might uncertainty resolve exempt abandonment STB to liability regarding and to bar environmental issues as- provisions from the OFA ings Nonetheless, postponed filed sociated with OFA. STB Sahd’s OFA. days until 45 July closing due date after July on 2001. On petition a decision for clari- financially to be a reached found Sahd entity postponed fication. and further responsible ex- date of the abandonment

the effective petition the for clarification While was thereafter, July 30, on emption. Soon Columbia filed a motion with the pending, 2001, filed motion to dismiss Shawnee an time to seeking extension of file a STB the OFA. submission, In response. the Columbia “extremely itself exempt expressed the aban- as concerned motion to Shawnee’s in fact pro- Salvage Company the OFA that Sahd is em- proceedings donment from nothing ploying process the OFA more cess and its motion to dismiss Sahd’s property 2001. than a means to shield the September denied on were the question proceeding legiti- that the OFA in this from 6 decision found September federal, law, fide, process mate state local by Sahd bona submitted was undercutting cost and to the citizens of great expense “no basis the there was for maintaining Borough, countervailing rail Congressional objective the and with public not used benefit.” The STB denied the mo- Although service.” Sahd had the tion, opining attempt- since the found credible that Columbia line STB administratively reopen final ing a shift in its cus- the explanation Sahd’s OFA, ship- grant made rather than years tomer base in recent had decision an than truck for clarification. ping by responding petition rail more the attractive Later, 12, 2002, granted April on the STB service. clarification, explanation, for and resolved petition agency may the said issues in liability the environmental favor have arbitrarily acted and capriciously. Inc., of Sahd. Erection, Donovan v. Adams Steel (3d Cir.1985). Columbia, 2, 2002, May filed with the “Notice, Appeal and Petition” that case, In this petitioners contend that challenged Sahd’s faith. In again good STB’s to accept decision Sahd’s OFA submission, Columbia asserted Sahd represents departure an unreasoned from any plans “has refused to disclose or data precedent established STB requiring showing how it would the line for rail use adequate demonstration of a in- bona fide or whether it use the line for purposes, will tent continue rail service. That rail at all.” purposes Columbia also re- precedent, it is argued, established is re- that it had ported proposal made a to Sahd flected primarily in a recent appellate deci- April proposal 2002—which Sahd re- upholding ruling sion an STB v. —Kulmer jected. The proposal terms of the called STB, (10th Cir.2001). 236 F.3d 1255 withdrawing for Columbia Sahd acquiring property, operat- and Sahd Kulmer, Tenth Circuit and the May rail ing the line. On case, Ninth Circuit in a similar Redmond- 2,May STB treated submission Issaquah Railroad Preservation Ass’n as a motion to reopen, “conclude[d] (9th STB, 223 F.3d 1057 [RIRPA] Cir. [had] Columbia failed demonstrate 2000), weighed STB determinations which any grounds April for reopening [the] deci- were, procedurally, obverse of the case sion.” instance, bar. In each had it, presented denied the OFA purchased the M&H and petitioned offeror the circuit court May 1411 on 2002. Columbia and holding that acting the STB was outside petition filed the instant Shawnee re- scope statutory of its authority June view on weighing probability of continued rail III. DISCUSSION instances, service. both the circuit courts deferred to the STB and held that argue Columbia that: agency pursue was entitled to such an departed own the STB from its established inquiry. in While Kulmer and RIRPA explanation; without reasoned volved claims that the STB acted improp approval of the OFA erly by considering the likelihood of con “taking” effected unconstitutional service, petitioners tinued in this property. Shawnee’s case, contrast, claim that Did, A. depart STB its own from duty its supposed shirked to conduct precedent explana- without reasoned searching evaluation of that likelihood. tion? essence, Distilled to the petition now findings before this court seeks Administrative that:

Under Proce to Act, obliged the STB is evaluate the likeli reviewing dure courts are to “hold service; hood of rail action, continued unlawful and set aside agency find genuinely determination that ings, and conclusions to be ... STB’s found arbi was, discretion, contemplated continuing rail trary, capricious, an service abuse or law, not in without adequate otherwise accordance with law.” 5 as matter of evi- 706(2). agency dentiary If We departs support. will address these propositions from its own a reasoned without two turn: use obliged planned existing to evaluate same the vice—the the STB Is rail service? the line. Id. at *3. continued owner of likelihood of by the Tenth reviewed In the order Tenth Circuit affirmed the Kulmer; denied an Circuit rejected claim decision and the offeror’s an aban- proposed to that statutorily that the STB was barred agency found rail line. The doned as a considering rail-service continuation plans good-faith not have to did offerors Kulmer, in approving factor an OFA. on the rail service line. continued provide 1257. The noted that F.3d at court “while stated: The STB Congress specifically required has not designed for the process The OFA rail service as to consider continued STB freight continuing provide purpose factor, there is no basis in the statute for service, used and is not to be rail concluding Congress specifically processes of legitimate other obstruct doing the STB from so.” Id. prohibited local) Federal, state, (whether law RIRPA, upheld the Ninth Circuit of such service not continuation when in which similar dismissal an OFA Accordingly, likely, omitted] [citations applicant, according to the STB decision disputed, an offeror must be able when petition that formed the for the basis is for con- that its OFA to demonstrate review, than nothing “merely did more service, freight [citations tinued rail possibility of service hold[] out at Where, here, the line is not omitted] The Bur unspecified some future time.” active, must currently there be some N. & lington Ry. Santa Fe Co.—Abandonment Exem likely shippers are assurance pt King County, Wa. in ion— i n if continued service make use Assistance, Fin. Matter of Offer of available, there is suffi- and that is made (Sub-No. 380X) Docket No. AB-6 operator cient traffic enable (served 1998) (available Aug. *4 provide commitment fulfill its 452837). opined WL The Ninth Circuit service, [citations omitted] that, province “the given STB’s exclusive - Holding Fork R.R. Auth. Roaring legitimate to draw inferences from evi - Garfield, Exemption Abandonment dence,” the conclusion that “there was no Counties, CO, STB Eagle, and Pitkin future potential for traffic and that RIRPA (served *2 May AB-547X at Docket No. offering was not interested in rail service” 323347). 1999) (available at 1999 WL Redmond-Issaquah reasonable. lacking found the Kulmer of- The STB Railroad Preservation Ass’n [RIRPA] use, rail projected feror’s evidence (9th Cir.2000). STB, specific to three deficiencies pointed Accordingly, the court affirmed the denial First, ship- potential five although OFA. of the OFA. identified, three were pers were persuasive and the Kulmer and RIRPA are to use the line traffic position remaining authority two that the evaluate projections were support likelihood of rail service “too indefinite insufficient continued when Sec- with an operations.” presented OFA. We see reason continued ond, acknowledged today not disagree. offeror had “that We need decide the not be self- conduct such an freight continued service would whether must evaluation, agency offeror did in this case the sustaining.” Finally, the not because freight expressly bearing the for continued the evidence intend to use considered service, instead, passenger expectation ser- on Sahd’s announced re- but (such respect sume service. With costs as reconnecting the Line service, Sahd’s interest continued rail with adjacent track, the through rees- STB wrote: streets, tablishing crossings at four line), argument reconditioning Shawnee’s main is that the Shawnee offers Line is not needed it has no support because not for its assertion that these -years. in recent been used The fact $300,000. costs will up add any not that line has carried traffic in Corp. Exemp- Hll —Abandonment support argument a decade could tion —in Lancaster County, STB PA that there no call for continued rail (served Docket No. AB-581X Sept. 6, at *3 Here, however, service. Sáhd has of- 2001) (available 1016782)(foot- at 2001 WL convincing explanation fered a for its omitted). skills, argues RIRPA significantly, experience or Most management railroad distinguish rail or failed any equipment of the STB to showing and no and equipment”; ruling from in Illinois anyone operate to decision here its to show “require to Exemp- failed STB Cent. R.R. Co.—Abandonment reason- IL, traffic were projections that its STB Docket Perry County, tion —in pro- level rail traffic (Sub-No. 164X) (served able and that Nov. No. AB-43 to sustain rail jected would be sufficient (available 613355)], 8,1994) at 1994 WL [ sure, has, the STB in To be service.” it actual service wherein held that recent *2, Fork, Roaring WL required approval. for OFA is not currently a “line is not that where stated County, the considered Perry ICC active, assurance that there must be some OFA, submitted Freeman United likely to make use of line are shippers (“Freeman”), to Mining Company Coal available, is made if service continued a mile aban- being 6.2 line traffic enable the that there is sufficient by the Illinois Railroad doned Central pro- operator to fulfill commitment (“Illinois Central”) due to low Company must But it be remem- vide that service.” long- expiration demand for coal a com- engaging in bered that the STB supply term contracts. Freeman owned in facts each prehensive examination line a mine at the terminus of the coal proceeding. For this OFA/abandonment preserve rail ser- and wanted to a law that the court to hold as matter of the return of favorable pending vice of evi- must certain level require STB op- market conditions. Illinois Central segment examination dence one OFA, line posed arguing ignore Congress would be years. had inactive for three court, agency, tasked that acknowledging Illinois Central’s While In Roaring factfinding responsibilities. opposition, the ICC countered that Fork, shipping found that required had never recent actual service too and insuf- projections were “indefinite approval explained for that its OFA Here, no such found ficient.” STB preserve potential role was proof. Evaluating deficiencies in Sahd’s transportation. ap- therefore ICC minutiae the evidence comparing finding proved OFA based on its sufficiency of such as the definiteness offering to that Freeman was subsidize one others would be projection relative to securing the line with a view to it for rail practicable nor a level neither desirable purposes order to tender coal court to undertake— review for this coal transport as soon as it had to offer. especially it is “exclusive when the STB’s STB, in denying RIRPA’s province legitimate inferences draw Perry instant distinguished the case from RIRPA, from the 223 F.3d at evidence.” County on the facts: Perry County RIRPA’s reliance on Moreover, that the are not convinced we There, of an inac- misplaced. the owner body requires, every willing pay- tive coal mine was make instance, feasibility financial showing of preserve ments the railroad to We shippers. a roster of committed mine which the owner received quote from the Ninth length here at some The offer- immediate benefit whatever. sheds use- opinion, Circuit’s RIRPA which willingness to so manifested ful or’s do retrospective light prior ICC and strong intent to use the line for evidentiary pronouncements on requirements: future if the mine were service again to become active. No other rea- those factors all be by considered STB, mine’s son existed for the owner to they but represent only a small Here, the payments. make there is no cross-section types of the of evidence that suggest RIRPA evidence that has a in evaluating aid “circumstances interest in the line acquiring similar entirety.” their find persuasive We preserve the line rail service. STB’s characterization its prece- own for future issue is not whether service is cur- dent, as stated in the decision challenged but rently being provided, whether the by petition the instant for review: entirety circumstances their indicate Roaring Fork does set out a rigid being that assistance is financial test requiring an offeror to demonstrate rail service. The evidence offeredfor that the line would be merely viable. It Perry County that indicated the answer requires a showing sufficient to support yes. The here evidence indicates finding is, indeed, that an offer that answer is no. continued service and not for Burlington N. Santa Fe Ry. [The & some other purpose. As to that require- Exemption Co.—Abandonment —in ment, we believe that Sahd has met King County, the Matter Wa. in. Sahd, burden. which would prin- be the [Burlington], Fin. Assistance Offer cipal line,4 shipper 15,000 ships (Sub-No. 380X) Docket STB No. AB-6 25,000 scrap tons of metal annually, and (served 1998) (available *4 Aug. at it projected that it will ship 70-90 452837).] RIRPA, 1998WL 223 F.3d at per cars year. it yet While has not (emphasis by 1063-64 added RIRPA nailed down firm contracts for other court). traffic available, apparently worth emphasizing It is that the STB party filing an does OFA not need to Burlington (quoted by RIRPA the itali- prove in that its advance efforts to re- language supra.) cized noted it looks vive a will failing line without question entirety” to the “circumstances in their succeed. supported determine whether an Corp. Exemp- lili —Abandonment possibility implementa- genuine PA, County, tion —in Lancaster STB rah tion of service in the future. The (served Docket No. at *3 AB-581X n. 9

Perry County in Burlington case cited 6, 2001) (available Sept. at 2001 WL shows does not 1016782). require sort of demonstration that the We do not suggest the evidence petitioners would the agency have re- supporting the STB’s decision is over- quire plans,” a “time table to reacti- —“rail service,” is, whelming. A manifestly, It modest. vate “means to finance restora- reasonable crossings tion factfinder could rehabilitation of the have found track,” embargoed forecasts,” in support Sahd’s demonstration “economic of the service,” Indeed, “guarantees unpersuasive. “contracts with OFA in- is.not shippers,” “showing of conceivable that manage- pan- railroad the members of this skills,” el, STB, experience ment “rail equip- had we members of the ment,” “personnel operate the equip- would have arrived at a conclusion differ- ment,” “projections traffic” that from that ent arrived the STB. But sure, are deemed To reviewing “reasonable.” as members of a court we are persuasive shipper 4. The also found but primary fact that also the on the line. See just proponent was not Corp., 2001 WL 1016782 at *3 n. returning in rail line genuine the STB’s de- interest whether inquiring limited to use, evidentiary authority support and this court is without had some cision agen- reasonably with consistent to disturb conclusion.5 We decline was And we that the hold cy’s precedent. petitioners’ own invitation to court to this arbitrarily capri- acted by has not reassess record relied on evidence case, the decision has ciously in this since today the STB. Because we do not disturb agen- in the record and the support some conclusions, petitioners’ cor- STB’s com- of how its decision explanation cy’s ollary argument proposal Sahd’s —that unrea- precedent is not agency ports nothing amounted to more than railbank- fact, appears Sahd’s situation In sonable. have given and so should not ing, in the analogous to that of the OFA offeror railbanking over preference Shawnee’s in the STB Perry County matter: The proposal point. beside the —is by submitted the OFA approved case found that the OFA was for continued coal mine who intend- of an inactive owner service, freight finding clearly signi- a line in the future should the ed use represented fied that more Sahd’s case, active. Sahd’s mine later become attempt railbanking. than mere approved the OFA submitted salvage yard who intends to the owner of Did B. the STB violate the Amend- Fifth should it become cost-effective use taking? an by effecting ment unlawful Far from ship southern customers. petitioners The also contend past precedent, from STB’s departing the STB violated the Fifth Amendment lock-step is in of Sahd’s OFA approval for effectively taking property non-public Perry County. A with the accepted use when it Sahd’s OFA. Our in be- obtained RIRPA different result weigh decision that the STB did indeed that there was cause the STB determined bona fides of Sahd’s intent resume rail had interest that RIRPA an “no evidence” such operations erodes the foundation for rail ser- the line future preserving argument. Supreme The Court vice, in Kulmer because the STB legisla in favor counseled of deference to of future rail service projections found the determining tive decisions when what con support and insufficient to “too indefinite use,” Here, operations.” “public stitutes Haw. Hous. Auth. freight rail continued convincing ev- 467 U.S. S.Ct. the factfinder —STB—found Midkiff (“In short, it which identified —of 81 L.Ed.2d 186 idence—evidence supports despite fact 5. case further that the service would not The Kulmer self-sustaining, Cir- to the STB. The Tenth traffic re- court's deference minimum will re- quirement prohibitive. cuit that the STB can and illus- observed would be To offeror, types proof types trate, quire in different [Perry County], different who of cases: along owned an inactive coal mine the rail question, line in wanted to the rail subsidize approval re- It is that OFA does not true freight al- carrier to maintain rail service quire proof of some minimum amount of though the line inactive and was (the predeces- rail traffic. ICC anyone, including unknown when the offer- sor) require- expressed the view that such a or, would use it the future. Under the impose an to rail ser- "could obstacle ment circumstances, willingness to the offeror’s Exemption vice some cases." Rail subsidize a line which it could derive Line Abandonments Discontinuance —Of- Assistance, potential no benefit rail ser- besides 4 I.C.C.2d Fin. fers of was, added). instance, persuaded vice the STB that the OFA (emphasis For fact, for continued rail service. evidence that there credible where Kulmer, continued rail service OFA would result in Supreme that it will not has made clear sub- Court has Court instructed that “[cjontracts, express, however legislature’s cannot fet- judgment stitute ter the authority constitutional of the Con- judgment public to what constitutes gress. Contracts create rights of palpably ‘unless the use use be without ” but, property, when contracts deal with a (quoting reasonable foundation.’ United subject-matter which lies within the con- Co., Ry. v. Gettysburg Elec. 160 States they trol of the Congress, have a congeni- 668, 680, 16 40 L.Ed. 576 U.S. S.Ct. infirmity. tal cannot Parties remove their (1896))), and this court has heeded that transactions from the reach of dominant direction, Hughes v. Consol-Penn. Coal power by constitutional making contracts Cir.1991) Co., (3d 612 (citing about them.” Norman Baltimore & Midkiff). We have noted expressly Co., 240, 307-08, R.R. Ohio 294 U.S. 55 if taking give even “the motive for is to to (1935) S.Ct. 79 L.Ed. (quoted 885 fall private party,” it “can within ... still Connolly v. Pension Guar. Corp., Benefit use,” public for “under the United States 211, 223-24, 475 U.S. 106 S.Ct. is a ‘public Constitution use’ broad con- (1986)). L.Ed.2d 166 cept.” Hughes, 945 F.2d at 612-13. The determining In if a taking oc procedure OFA avoids of rail abandonment curred, engage hoc, we are to in an “ad and so comports expressed lines with the factual” inquiry into the circumstances of policy Congress to “ensure the ... con- particular case, guided by three fac transportation tinuation a sound rail (1) of particular tors significance: “the ex ... to system public meet the needs of the to tent which the regulation has interfered and the national defense.” 49 U.S.C. with distinct expecta investment-backed 10101(4); § see also 49 U.S.C. tions”; “the economic impact of the (statute’s caption reads “Offers of financial claimant”; regulation on the “the assistance to avoid abandonment and dis- character of governmental the action.” continuance”). The applied the OFA Connolly, 224-25, 475 U.S. at 106 S.Ct. statutory provisions by established Con- to gress public light serve the use. begin We with the element most crucial granting Congress a wide to this case—“the to which reg- extent berth determining pub- what constitutes ulation has interfered distinct invest- use, lic we second-guess are loath to expectations.” ment-backed Even a curso- factual agency determinations of the ry examination of the context in which the Congress which assigned decision- negotiations place contractual took makes making responsibility in proceedings. clear that Shawnee’s investment-backed argument asked at When oral which of expectations necessarily included the un- petitioners two the brunt bore derstanding that unfavorable STB actions allegedly taking, unconstitutional petition- might railway scuttle the deal. That the Shawnee, ers’ counsel suggested that be- negotiating parties continually were aware $30,000 it had cause invested purportedly any agreement subject reached was $40,000 in and had project entered the outcome of proceedings is evident into a contract buy suffered a from the face of the two contracts execut- taking as “equitable by owner.” ed.6 1999 contract which Michael option 6. The two we purchase September contracts to which refer are line on supra— purchase those discussed in the factual recital and the contract the line by contract September which Stark Michael obtained executed Shawnee on it; rather, buy rail- contract was not taken one option from acquired Stark final sale shall be way “[t]he of the conditions to contractual specified perfor- process- of all completion upon contingent was met. simply mance Far ‘Rails to Trails’ conver- necessary es destroying improperly usurping Shaw- sion, including abandonment rights, merely nee’s contractual successful ” added) (emphasis Eventual- the rail line. acknowledged out of acted discretion assigned to ly, Shaw- option the Stark within framework described nee, in turn entered into and Shawnee contracts themselves. fine. That con- contract to The second and third need elements too, tract, contemplated that the road to mention, finding our only passing given through consummation led sale’s right expect that had no to Shawnee coop- and Railroad shall STB: “Purchaser to the permit abandonment of line. We in, and their best efforts to com- erate use impact the on to be find economic Shawnee necessary filings at the plete [STB] all - contingency minimal the clauses in the (railbanking) interim trail use notices of ” final option contract the contract ab- A for the line.... subse- abandonment to obligation purchase solved Shawnee quent provides “[p]urehas- that the clause line if attempt railbanking faked. obligated proceed er not to to shall be $30,000 $40,000 to reports The to Shawnee an closing rendering [16 unless order spent project spent have on the was 1247(d)] premis- applicable risk, given Shawnee’s own the uncertain- apparent es It is thus that is effective.” Finally, ties inherent in the transaction. taken against actions were all Shawnee’s action government here was taken with backdrop statutory a and adminis- implicit goal preserving railway in which certain environment trative for the good. common As su- discussed before either con- actions were needed pra, we will not disturb the STB’s conclu- could be effected. purpose tract’s Shaw- appropriate sion that Sahd’s OFA an was surprised nee be said have been cannot goal. means for accomplishing that might decisions thwart its that the STB’s goals option contract Shawnee ac- —the petition for review is DENIED. it quired purchase and the contract execut- that provided contingency.7 ed both ROSENN, Judge, Circuit dissenting. contracting it was for a knew Shawnee controversy In this 2.5 only if the heated over a privilege that would be available track, long orders.8 When those mile dead-end rail Surface STB issued certain (STB) forthcoming, Transportation not Shawnee’s Board has accepted orders were (after assigned Dillinger Shawnee had been Mr. Stark’s verified statement from Mr. that option). "[i]n [when the contract was first signed], why there was no reason Michael contract, signed 7. time At the it the second Stark, [Shawnee], or should [M&H/1411] prospects had be aware that the Shawnee thought Salvage again have Sahd that would - were doubt of abandonment Shawnee be interested in rail service.” limitation on executed the contract line Dillinger's specific- of Mr. lies in statement days September eleven Shaw- after - ity nobody thought even if in 1999 that Sahd to dismiss Sahd's OFA de- nee's motion might suggest- an it has not submit nied the STB. why might reasonably anticipated it ed might change Sahd mind or that that his argues that evidence below "[t]he might along unequivocal is someone else come and submit that Shawnee had reasonable expectation,” based on the an OFA. investment-backed (OFA) er, Metals, an of Financial Assistance” “Offer Colonial Metals. Colonial how- scrap ever, company engaged from a met- only made one shipment outbound al The offer is neither assist business. year 1990. There has been no service existing railroad distressed nor assist what since 1990 and remains of is impoverished resuming op- railroad 2.5a mile remnant subject Rather, eration. the offer is to enable the litigation. Since no shipper has obtain a piece offeror to valuable land utilized the line. on the basis of a three-fold speculation (Sahd) Salvage Frank Center on that it can rehabilitate dismantled rail- occasion used ship scrap had the line to road, it ability has the operate metal. The President Rail- of M&H railroad, finally have road 1411 Corporation averred shippers future customers or who will use shipment scrap Sahd’s last inwas Feb- company the railroad. The OFA is from a ruary 1988 and it two received carloads of any experience in operating

without rail- machinery in 1990. In November solely vague road based Sahd indicated some in purchasing interest unsupported statement of Ronald G. Sahd August the line. On Sahd’s attor- (Ronald), its president. Without credible ney longer informed M&H that it was “no decision, support evidence to the Board acquiring interested in 1411.” In the en- I, arbitrarily capriciously. acted and suing years, the remnant dismantled therefore, respectfully dissent. objection anyone.

without Conrail switch, I. removed the interchange Columbia Borough removed the track from the in- A pertinent brief statement the of facts Crossing, town Fourth Street and the the in preceding helpful put- OFA be Pennsylvania of paved Commonwealth ting dispute in perspective. The dead- crossing. over the Route 462 (hereinafter on end track land corri- “the dor”) owned the Middletown Hum- and Having of any shipping no information (M&H) melstown Railroad Co. and the remaining interest in the 1411 trackage, 1411 Corporation through runs the center Corp. and M&H into an option entered of in Borough Columbia and terminates agreement to sell it land adjoining and the in open Hempfield Township, field West Stark, to Michael a local businessman. County, Pennsylvania. At Lancaster one planned to Stark use the stub for time, part it formed of a branch line ac- railbanking trail/greenway purposes. and quired by Rah Corporation Consolidated paid assigned He for option the and $4872 (Conrail) customer, in 1976 to one serve 2001 April to Shawnee Run Green- Grinnell, ITT shipments. for its outbound (Shawnee), way, Pennsylvania Inc. non- ITT subsequently acquired Grinnell profit corporation. made an ad- (mile- small of part the line from Conrail payment pur- ditional toward the $4872 37.2) post milepost 39.3 1982. Grin- option chase price keep open the until nell, having operating a rail- interest M&H Railroad and 1411 Corporation ob- road, wholly transferred the line to a approval tained STB for abandonment 1411 subsidiary, owned Corporation. spent of the remnant line. Shawnee also When Grinnell converted its coke-fired fur- $17,000 surveys boundary for and environ- electricity rendering naces to analysis. mental line unnecessary, it sold 1411 M&H. purchased expec- years M&H Railroad it in For prior option several it, too, local, contract, tation that would serve custom- important county, one 238 trail use with desirability tency greenway of recognized figures

State space, plans. for It also open regional the corridor local and land use preserving part of a purposes, as can “possible conservation noted that future rail needs system. Columbia greenway countywide inactive amply preserving served rec- Plan Borough’s Comprehensive line to the federal interim pursuant intact preserved land be as that the ommended railbanking U.S.C. [16 trail use and statute Re- County’s Lancaster open space. 1247(d)].” expressly § The Resolution Plan, which included Space gional Open supported development greenway contemplated po- Borough, Columbia with local land and trail consistent use a trail the corridor to tential conversion plans. greenway sys- countywide part rejected ultimately The Shawnee’s tem. challenge to Sahd’s offer denied Shaw- Likewise, of Penn- the Commonwealth request exempt nee’s alternative a com- the corridor as sylvania envisioned § 10502 from fine under network. greenway the state’s ponent of provisions forced sale 49 U.S.C. Bicycle & Pedestrian County’s approval 10904. STB based its cited the corridor as a future Plan also explana- solely “convincing on Sahd’s county bicycle system. trail component of tion for its recent reliance trucks and Town- Borough, Hempfield Columbia West using its desire to resume rail service.” Pennsylvania Department ship, and emphasized “Sahd has and National Resources Conservation many years, located on the com- comprehensive Master Plan funded a made use transportation extensive of it for preservation in 2001 pleted service connection with its business.” open linear corridor as vehicle-free shipped line in 1988. In Sahd last over the Plan corridor The included the space. 1990, it carloads machin- received two walking, biking, public space for and open then, ery. line has disman- Since ages of all

jogging, where “visitors nothing except tled of it remains this historic, cultural, observe abilities will 2.5 of track and the land on which it miles a di- traversing elements environmental Thus, rests. Sahd has not used the line or plan- The landscapes.” palette verse any part past years. for the thirteen provided public input. for ning process pur- The STB noted that the value in this Sahd, any of party, including informed No track, chase not the but in the fee planners preserving of an interest simple to the land. title railway purposes.1 for land ultimately option converted its II. purchase for into a the corridor contract $125,000. no- public 1411 and M&H filed proof in this dispute burden of is on exemption to abandon on tices of service STB, offeror, Sahd. Kulmer v. 2001, 12, May 2001. On April effective (10th Cir.2001). F.3d Sahd had July Sahd filed its OFA which by to show credible evidence that: exemption. stayed the effective date use; rail OFA was for continued Borough projections of traffic reason-

On Columbia re- offeror’s were April able; (3) the of rail traffic pro- Council Resolution the consis- level affirmed approached purchase desire Sahd stated that he Dil- the corridor for rail use. 1. Ronald linger expressed the fall of 2000 and jected sufficient sustain rail Nor would be has Sahd furnished any convincing Id.; Roaring Holding service. Fork R.R. any evidence that it has use for rail ser- Exemption Auth.—Abandonment —In vice. It has not furnished any evidence Counties, Garfield, Eagle except & Pitkin STB whatsoever the self-serving 547X, dkt No. AB LEXIS president, statement of its Ronald G. Sahd. (STB 21,1999). at *8 May Ronald also states rail service “will contribute to Sahd’s continued financial acknowledged The Board that this was by allowing success Salvage Sahd to reach standard, the relevant but from departed mills throughout United States and to meaningfully its own in failing follow scrap market demand for metal.” require Sahd meet its burden of broad, This wishful sup- statement is not proof. finding that the OFA was by ported single affidavit or statement of a bona fide effort to rail service continue any prospective customer. bald, unsupported was based only as- statement, to the In sertions. As second and third his unsupported Ronald Roaring requirements, South, Fork the STB has states that there are mills no evidence whatsoever and M&H submit- particularly in North Virgi- Carolina and nia, indicating ted a verified “expressed statement that have an interest” in hypothetical projected by buying levels use scrap company. metal from his justify mills, Sahd would be insufficient to names says Sahd five which he are accessible, restoration expenses. rail hotly but contested provides proceeding, he supporting effect, erroneously placed proof any them of an interest or the burden on Shawnee and Columbia to intention to scrap Sahd’s metal. prove that was not bona fide produced has not single letter of effort provide service. The STB them, interest from or a letter of intent or required greater support evidentiary a contract support pur- interest Shawnee’s assertions than for Sahd’s. For chasing scrap metal from Sahd. Not one of example, Shawnee offered a list costs to them deposed, has been Ronald’s rehabilitate the including reconnect- statement has not been tested cross- ing the adjacent through stub best, examination. At his statement is track, reestablishing four crossings worst, vague and highly speculative; at it streets, line. reconditioning fantasy. Board is The has not a shred of reasonably Shawnee estimated these costs information as to how much metal these $300,000. rejected The STB this esti- basis, mills would on an require annual mate, that no stating sup- “Shawnee offers requirements foreseeable duration of their port for its that assertion these costs will Sahd, they from and where and how are $300,000.” up add recognized The STB obtaining scrap present metal at the time. that cited Shawnee Green- Columbia produced supporting Sahd has not even way authority Master Plan as its for the they statement to show that are rail acces- proposition restoring that service would be sible. infeasible, economically and institutionally rejected but the projection STB this as a A reading Roaring close Fork demon- unsupported analysis. conclusion by by On strates that STB was bound hand, blindly other accepted reject Sahd’s Roar- offer. calculations, Fork, Sahd’s plausible although ing less the STB criticized the offeror’s Sahd no underlying offered other support tangible provid- lack evidence that other than self-serving his own in using statement. ers were interested line. The whether it siding, it has a railroad potential Southern whether five identified

offeror line or what its past, used the in the found that three has but STB shippers Again, Anvil may be. requirements the line and traffic position to use were not slightest commitment use makes not the remaining for the projections the traffic line. insufficient to the indefinite and “too two were Likewise, continued rail service.” support of a experienced president railroad case, information have no instant we very Wen- formerly operated that this potential the five any from

whatsoever state- Dillinger, stated his sworn dell J. Sahd as passing mentioned shippers Anvil had com- that neither Sahd nor ment any a rail will have use to what fine, his ship over mitted themselves to projections traffic them, what their or of felt there and had “M&H Railroad/1411 might be. keeping fine was serious interest authorization running, Anvil no abandonment from submit two letters Sahd did Dillinger Inc., requested.” have been International, it refers to as a would which not contact- However, stated that “Anvil has these letters further shipper. potential objectivity Dillinger’s 1987.” is The first ed us since evidentiary value. have scant will receive vague beyond dispute. company sen- His merely of several letter consists money amount whether the the same tences: purchased by is Shawnee. corridor delivery made utilization of rail as material at several type raw for some Likewise, informed Colonial Metals company, our plants similar within 18, 2001, that July letter dated can be an effective that it demonstrated adjacent directly a twelve-acre owns site transportation. method of Greenway. Run Co- planned that this determine In the event we no realistic cur- lonial stated “we see freight alternative a favorable would be It expressed rail need for line.” rent we I could plant, for our believe that it did view at the same time per cars week. to fifteen rail utilize three railbanking the line is nec- “anticipate essary keep line available rea- this non-committal, innocuous, This letter Colonial, therefore, future needs.” sonable transporta- evidentiary and has no value objection the Board that it had no notified That “can be effective tion need. exempting proceeding further obvious transportation” method of procedures. significance. has no generalization that any makes in this letter Nothing vague failure of recognized that the commitment; possi- expresses it merely carry any traffic in a decade “could line to future time. bility at some undetermined argument that there is call support relied, letter from for continued rail service.” STB follow-up submitted Sahd a however, that 8, This letter on Sahd’s wishful statement August Anvil dated 2001. is service, previ- its as its first it desired resume rail vague almost as indefinite and Line, and recently attempts to its buy ac- ous letter. It states that Sahd rail potential service. unsupported a at its Columbia quired product new it It The Interstate Commerce Commission. facility, is. also stating without what “[tjhose that situ- predecessor, become more held delivery that rail “has states proper- rail purchaser in which of currently investigating it ations viable” and is for continua- traveling plans and ties has no affirmative ways to reduce its service, resumption merely but It feeble state- tion or of perfunctory, costs. is ment; possibility out the of continuation or as to holds no information furnishes

241 (A.P.A.) some resumption unspecified of service at the Administrative Procedure Act time, are not to be consid properly requires future finding that actual choice and ered offers of financial assistance do made “arbitrary, capricious, was not scope fall within the of 49 U.S.C. not discretion, abuse of or otherwise not in R.R. Lines & 10905.” Abandonment accordance law.” 5 Service, Parte Discontinuance Ex No. 706(2)(A).3 (Sub-No. 6), 249, 365 I.C.C. 260 274 In making finding, this we consider (I.C.C.1981). whether the decision was based on “a con- may past, Sahd have used the line sideration of the relevant factors” and years. but not the last thirteen “whether there has a clear error of using desire to resume service judgment.” Park, Overton 401 U.S. at mere desire is proof feasibility,

but 416, 91 S.Ct. 814. This inquiry Court’s service, proof need for the or into the facts be “searching should and there is sufficient for a traffic viable majority careful.” Id. The acknowledges capability operate and Sahd has the that the evidence supporting STB deci- unsupported a railroad. Sahd’s wish is a is “manifestly[ Maj. sion modest.” op. ] reject feeble basis on which important 233-234. modest, The evidence is not only local, county, and bona fide and plans state wishful, so paltry, speculative but for trails and open space. the acceptance of its OFA was arbitrary capricious. III. scope under review the arbitrary The STB’s Roaring failure to follow capricious standard narrow. Al requires

Fork reversal in this case. It is though a court is not substitute its arbitrary capricious agency for an judgment for agency, that of the “[n]ever- from its own depart precedent without rea- theless, the agency must examine the rele explanation. soned Donovan v. Adams vant data and a satisfactory articulate ex Erection, (3d Inc., F.2d Steel 766 807 planation including for its action a ‘rational Cir.1985). The STB’s decision is entitled connection facts found between the and the presumption to a regularity but “that choice made.’” Motor Vehicle As shield presumption not to action [its] Mfrs. Co., v. State Auto. soc. Farm Mut. Ins. thorough, from a probing, in-depth re- U.S. S.Ct. L.Ed.2d 443 See view.” Citizens to Preserve Overton (internal omitted). citation The STB Volpe, v. Park 401 U.S. 91 S.Ct. (1971).2 provide here has failed to a satisfactory 28 L.Ed.2d Scrutiny explanation accepting the facts does not Sahd’s par end with the determina- ticularly in light strong tion the STB has acted within the evidence to scope Rather, statutory authority. the contrary. Arbitrary capricious review is not al 3. Since the OFA makes no statute reference to record, hearing ways on the is an informal majority suggests. as deferential as the adjudication hearings and no formal are re EPA, example, Ethyl Corp. For However, quired. application "in their to the denied, (D.C.Cir.), 941, 1 cert. 426 U.S. 96 requirement support of factual the substantial 2663, (1976), major S.Ct. 49 L.Ed.2d 394 arbitrary capricious evidence test and the and ity dissenting opinions collectively and devot test are one and Ass’n the same.” Data thirty-eight pages analysis ed to a detailed Reserve, 677, Processing v. Fed. 745 F.2d 683 upon factual studies relied an administra (D.C.Cir. 1984); Ashcroft, Sevoian v. accord agency. tive 166, (3d Cir.2002). Court stated when it the Supreme

As NATIONAL RAILROAD PASSENGER Com- order Interstate set aside an CORPORATION Commission: merce findings analysis no no There are v. made, indi- the choice no justify here PENNSYLVANIA PUBLIC UTILITY on which the Commis- cation of the basis COMMISSION; Thomas, Glen Chair expert discretion. We sion exercised Utility man, Pennsylvania Public the Administra- prepared are not Commission; Bloom, K. Robert Vice Act will us to permit

tive Procedure Pennsylvania Chairman, Public Utili Ex- accept adjudicatory practice. such ty Commission; Wilson, Jr., Aaron lifeblood pert discretion Commissioner, Pennsylvania Public unless process, but we administrative Utility Commission; Fitz Terrence J. for administra- requirements make the Commissioner, Pennsylvania patrick, demanding, exper- tive action strict Utility Commission, Appellants Public tise, govern- strength modern ment, which can monster rules become Pennsylvania Southeastern limits discretion. with no on its practical Transportation Authority Lines, v. Burlington Truck Inc. United States, 83 S.Ct. 371 U.S. (note L.Ed.2d citations Pennsylvania Utility Public omitted) original). (emphasis Commission, Appellant. judgment this case has the 02-30477, No. 02-3148. seriously obstructing public effect of had interest. If the followed its own Appeals, United States Court of required prove Sahd to all precedent and Third Circuit. Roaring requirements, Fork three of the Argued June 2003. compelled to

would have conclude Aug. Filed carried that Sahd had not its burden. As stands, evidence it now there track will used for

suggest that the benefit,

public either environmental for continued purposes

and recreational

rail service.

IV. I would reverse

Accordingly, grant petition

Board’s decision

review. notes recent on reliance trucks and its desire Because the STB undertook to weigh service, using to resume rail and it OFA, the bona fides of Sahd’s and because use of points past its the Line and its that weighing harmony was in past previous attempts buy the Line. precedent, it follows that the limited Shawnee notes Sahd has not docu- determine, of role this court is mented its claim once the submitting contracts has accepted with the southern that it fides customers bona of an named, but do not we believe that whether certain quantum such of evi- evidence is needed here. support dence need the result. argues Shawnee line of Sahd’s necessarily law, work impeaches the bona 2. As a matter was the STB’s of fides of its commitments and shows that determination genuinely Sahd only Sahd is interested in scrapping the contemplated continuing rail service Line. But did not Sahd find the Line adequate evidentiary without support? likely canvassing buy candidates to The language quoted from the liquidate. Sahd has been on located STB’s discussion of probability Sahd’s of many years, Line for and has made ex- resuming rail service reveals that tensive use of it transportation ser- agency thought it unlikely that Sahd was vice connection with its business. value, purchasing and, the line for scrap Moreover, would have to further, was satisfied that Sahd intended all the including assets of a fee ship to resume use of line to to named simple underlying interest real southern customers. estate, and be precluded would from dis- posing challenging sufficiency Line for years. least evaluation, high price petitioners of the real have lev- estate relative price to the the rail a barrage agency’s and the restric- eled of criticism the conclusion, tions in section disposal arguing that: acqui- Sahd’s assets of a rail line acquisition make sition of the nothing line amounts to more solely the M&H Line to obtain the rail “railbanking,” than for which OFA is unattractive therefore unlikely mechanism; the appropriate “Sahd proposition. presented plans, no rail no time table to service, Shawnee reactivate no argues means to finance restoration res- crossings service would be toration of uneconomic be- rehabilitation of track, cause rehabilitation embargoed and maintenance no economic fore- casts, service, costs would prohibitively expensive. no guarantees of no con- But, although list of tracts with shippers, showing any offers

Case Details

Case Name: Borough of Columbia Shawnee Run Greenway, Inc. v. Surface Transportation Board United States of America, Frank Sahd Salvage, Intervenor

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 3, 2003

Citation: 342 F.3d 222

Docket Number: 02-2599

Court Abbreviation: 3rd Cir.