FRIENDS OF THE ATGLEN-SUSQUEHANNA TRAIL, INC., Petitioner v. SURFACE TRANSPORTATION BOARD and UNITED STATES OF AMERICA, Respondents
No. 99-5837
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 31, 2001
On Petition for Review of an Order of the Surface Transportation Board (No. AB-167 1095X)
Argued September 12, 2000
Before: NYGAARD, ROTH and BARRY, Circuit Judges
2001 Decisions
Opinions of the United States Court of Appeals for the Third Circuit
5-31-2001
Friends of Atglen v. Surface Trans. Board
Precedential or Non-Precedential:
Docket 99-5837
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Recommended Citation
“Friends of Atglen v. Surface Trans. Board” (2001). 2001 Decisions. Paper 120.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/120
Andrea C. Ferster, Esquire (Argued)
1100 Seventeenth Street, N.W.,
10th Floor
Washington, D. C. 20036
Charles Montange, Esquire
426 N.W. 162nd Street
Seattle, WA 98177
Attorneys for Petitioner
Louis Mackall, V. Attorney (Argued)
Surface Transportation Board
Washington, D.C. 20423-0001
M. Alice Thurston, Esquire
John T. Stahr, Esquire
United States Department of Justice
P.O. Box 23795
L‘Enfant Plaza Station
Washington, D.C. 20026
Attorneys for Respondent
Paul D. Keenan, Esquire
Hoyle, Morris & Kerr
1650 Market Street
4900 One Liberty Place
Philadelphia, PA 19103
Attorney for Intervenor Respondent
OPINION OF THE COURT
ROTH, Circuit Judge:
The Enola Branch is a 66.5 mile railroad line which was built in the early Twentieth Century and was known as one of the remarkable engineering feats of that time. Petitioner, Friends of the Atglen-Susquehana Trail, Inc. (FAST), seeks judicial review of a final order of the Surface Transportation Board (STB)1 permitting abandonment of the Enola Branch.
I. REGULATORY BACKGROUND
A. ABANDONMENT OF RAIL LINES
FAST seeks review of the actions of the STB in the exercise of its exclusive regulatory jurisdiction over rail carriers and rail transportation, particularly its jurisdiction to permit a rail carrier to abandon or discontinue use of an existing rail line that might qualify as or contain historic property. We begin, therefore, with an overview of the relevant regulatory landscape.
A rail carrier intending to abandon, and to be released from its obligations to retain or operate, any part of its railroad lines must file an application to do so with the STB and such abandonment must adhere to certain established procedures. See
The abandonment of a rail line or corridor will qualify as an exempt transaction if the carrier certifies that no local traffic has moved over the line for at least two years, that any traffic on the line can be rerouted over other lines, and that no formal complaints, regarding cessation of service on
If the STB agrees that a proposed abandonmеnt is exempt and allows the abandonment to proceed under the expedited procedures, the STB must consider certain factors prior to permitting the abandonment to become final. See
The exemption procedures of
B. HISTORIC PRESERVATION
Section 106 of the NHPA provides as follows:
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.
The Advisory Council on Historic Preservation (ACHP) has promulgated regulations outlining the procedures to be
The ACHP regulations establish a three-step process: identification of historic properties; assessment of any adverse effects of the proposed undertaking on such properties; and creation of a plan to avoid, minimize, or mitigate those adverse effects. See
In order to identify historic properties, the agency must apply the criteria established for the National Register of Historic Places (National Register) to identify properties and to determine whether they would be eligible for the National Register. See
If the agency and the SHPO agree that the criteria for the National Register have been met, the property or portion thereof shall be considered eligible for the National Register for S 106 purposes. See
If the agency finds that there are no historic properties that will be affected by the undertaking, the agency must document its findings and provide such documentation to the ACHP, the SHPO, and other consulting parties. The SHPO and the ACHP have 30 days to object to that finding; otherwise, the agency‘s S 106 responsibilities are deemed completed. See
An adverse effect is found when the undertaking may alter, directly or indirectly, any of the characteristics that make a property historic and eligible for inclusion in the National Register. See
The process then moves to the third and final step, the resolution of adverse effects and the development of a plan to avoid, minimize, or mitigate the adverse effects. At this stage, the SHPO and any other consulting parties may invite the ACHP to participate in the consultation; under certain circumstances, the ACHP must be invited to participate. See
The ACHP has discretion at this stage to decide if it will consult formally. See
If, at any point, the ACHP formally joins the consultation on mitigation, section 800.6(b)(2) controls. The ACHP must execute thе MOA along with the agency, the SHPO, and any other consulting parties. See
If, at any point during consultation, the agency, the SHPO, or the ACHP determines that further consultation will not be productive, any of them may, upon notice to the other consulting parties, terminate consultation. See
Comments from the ACHP are governed by
II. FACTS
There is no dispute as to the underlying facts or the course of the regulatory proceedings in this matter. In October 1989, Conrail4 filed a Notice of Exemption with the ICC, seeking to abandon the Enola Branch, a 66.5-mile rail corridor running through Lancaster and Chester Counties, in Pennsylvania. Conrail certified that no traffic had moved over the line for two years. There is no suggestion that Conrail did not adhere to the filing and notice requirements for seeking an exemption. Lancaster County objected to Conrail‘s petition, primarily seeking a public use or interim trail use and rail banking condition on the exemption. Although the County did not expressly raise S 106 or seek a historic condition on the abandonment, it did provide the following description of the rail line to the ICC:
The Enola Branch railroad line itself is a historically significant resource. Pennsylvania Railroad President A.J. Cassett built the railroad line as a passenger route through Pennsylvania and Ohio in the first decade of this century. It was once a vital east-west freight line for southeastern Pennsylvania. The families of Italian laborers constructed the line and now inhabit the Quarryville area. The railroad corridor is designed and constructed to have little slope, so it either cuts into the ground or is elevated over most of its length. The project is known as one of the most remarkable engineering feats of its time. The physical impacts of the corridor on adjacent land owners is negligible. The line is very well designed with the landscape to limit obtrusiveness to the natural character of the area. It is
said the earth moving involved in the project rivaled that of the construction of the Panama Canal.
The ICC issued an Order on February 22, 1990 (1990 Order) in which it granted to Conrail the exemption, subject to three conditions: 1) that Conrail keep intact all the right-of-way underlying the track, including bridges and culverts, for a period of 180 days, to allow for the negotiation of a public use acquisition; 2) that Conrail comply with terms and conditions for implementing possible interim trail use and rail banking; and 3) “that Conrail take no steps to alter the historic integrity of the bridges on the line until completion of the section 106 process of the National Historic Preservation Act,
The remaining condition on abandonment was for the preservation of historically significant properties, pending STB‘s completion of the S 106 process. The 1990 Order only required preservation of the historic integrity of the bridges on the line. This limitation apparently was based on a 1989 telephone conversation between a member of the ICC‘s Section of Environmental Analysis (SEA) and Pennsylvania‘s SHPO, the Pennsylvania Historical and Museum Commission, Bureau for Historic Preservation (PHMC). In that conversation, the SHPO indicated that some or all of the 83 bridges on the line potentially were eligible for inclusion in the National Register but that it had not completed its review. The 1990 Order did not discuss or address the comments from Lаncaster County about the historic significance of the line as a whole. The ICC also
The ICC then followed its common practice of assuming that abandonment of the Enola Branch corridor would adversely affect the rail properties identified as historic, i.e., some or all of the 83 bridges. The ICC therefore proceeded to the third step in the S 106 process, development of a plan to avoid, minimize, or mitigate the adverse effects. The record does not indicate, however, that the ICC notified the ACHP of the presumptive finding of adverse effects.
The final, mitigation stage of the S 106 process was also a long one. It was complicated by the fact that in April 1996, FAST petitioned the STB to reopen the proceedings and to broaden the S 106 cоndition to encompass the entire Enola Branch, as the eligible historic property to be preserved. In its petition, FAST relied on a letter dated February 24, 1994, from Brenda Barrett, director of the PHMC (the Pennsylvania SHPO), to Wendy Tippetts of an organization known as “TWO.”5 In that letter, Barrett stated that, in the opinion of the SHPO, the Enola Branch and the Atglen & Susquehana Branch both were eligible for listing in the National Register. The STB was sent a copy of the letter.
The STB responded to the petition on October 2, 1997 (1997 Order) by ordering that 1) the proceeding was reopened, 2) the request by FAST to expand the condition to include the entire Enola Line was denied, and 3) the S 106 condition imposed in 1990 was modified to encompass only 32 bridges on the line and archaeological sites near 36 bridges as the properties eligible for listing in
Neither FAST nor the SHPO has provided any justification for the SHPO‘s apparently changed position with regard to eligibility of the entire line in the National Register. Indeed, the SHPO letter submitted by FAST does not even acknowledge that the SHPO had ever reached a previous determination on this matter. . . . It is clear that the SHPO was originally concerned only with the eligibility of certain bridges and archaeological sites for section 106 purposes. The fact that certain items were included in the SHPO‘s original opinion while others were excluded indicates that the SHPO did not originally consider the entire line eligible.6
FAST timely petitioned for reconsideration of the refusal to reopen the proceedings and to expand the identified eligible historic properties. With that petition pending, the parties proceeded along separate tracks. FAST and other interested parties requested that the STB formally submit the question of the historical significance of the Enola Branch line as a whole to the ACHP for referral to the Secretary of the Interior and the Keeper for a conclusive determination. When FAST received no response from the STB, FAST asked the ACHP to become involved in the process. The ACHP wrote to the STB in March 1998, asserting that the STB never notified the ACHP of its finding of adverse effects, never identified potentially interested parties to consult on the S 106 process, and never informed the ACHP as to how it identified еligible property. The ACHP requested that it be included in the S 106 process and that it be provided background documentation. The STB never responded to this letter.
The MOA was submitted to the SHPO and Conrail for execution, to the ACHP for approval, as well as to FAST and the Historic Preservation Trust of Lancaster County (the Trust) for comments. In the transmittal letter to the ACHP, the STB for the first time broached the possibility of breaking off consultation, stating that “[i]f it appears that further consultation would not be productive, we will terminate consultation.”
The SHPO declined to sign the MOA, citing the ACHP‘s concerns that it had not been asked to consult in the development of the MOA; the SHPO withheld further review and signature of the plan until the STB had consulted with the ACHP. FAST stated specific objections to the draft MOA, noting FAST‘s desire to preserve the line and to establish a trail on the corridor. FAST also objected to the manner in which public input had been gathered for the project.
The ACHP, upon receipt of the draft MOA, asserted that the matter of the STB‘s overall compliance with S 106 “remains unresolved” and that “serious shortcomings persist in STB‘s evaluation of historic properties, solicitation of public input, evaluation of alternatives, and,
In its February 1, 1999, response, the STB described the manner in which it had carried out the identification process and asserted that the identification and effects phases of the S 106 process had been completed and need not be reopened. The STB specifically noted that changed perceptions or evaluations of what is historically significant and therefore eligible for the National Register may indeed justify reevaluation or reopening of proceedings but did not necessarily require such a result. Because the STB had found inadequate justification for reopening the identification stage, it continued to decline to do so. The STB solicited anew the ACHP‘s comments on mitigation and the MOA.
The ACHP, on February 26, 1999, formally referred the matter to the Secretary of the Interior and informed the STB that, pending receipt of the Keeper‘s findings, it believed that the identification and evaluation requirements had not been met. The ACHP further asserted that, if the STB continued its efforts to finalize the draft MOA, it would be in violation of its statutory and regulatory obligations. In April 1999, the Keeper issued a determination that the entire 66.5-mile Enola Branch line was eligible for designation in the National Register. The determination stated:
Constructed by the Pennsylvania Railroad between 1902 and 1906, the entire 66.5 mile Enola Branch Line is eligible for the National Register of Historic Places for its historic and engineering significance. Built as a significant component of the Pennsylvania Railroad
system, the Enola Branch line was an important engineering feat of the early 20th century. The Enola Branch Line differed from other railroads of the period in that it was designed to have no contact with other vehicular routes, and it was to run almost completely level and in a straight line. This straight line, with low radius curves and very little change in grade, provided improved and efficient delivery of freight by rail. Building the line necessitated vast аmounts of cutting and filling and the construction of numerous stone bridges and culverts built by skilled Italian stone masons.
On August 13, 1999 (1999 Order), the STB denied FAST‘s petition for reconsideration of the 1997 Order, holding that FAST had not made the required showing of material error, new evidence, or changed circumstances warranting reconsideration. The Board declined to give substantial weight to the one new piece of evidence, a letter to the Trust from the Curator of Transportation of the National Museum of American History.7 The STB found that the letter could have been presented earlier and noted that the Curator took no formal position in the matter. The STB also declined to reconsider the import of the TWO letter, noting that FAST still had not explained the discrepancy between that letter and the SHPO‘s formal position on the record before the STB that the only issue remaining in the proceeding was mitigation.8 The STB similarly rejected the Keeper‘s statement of eligibility, describing it as “pro forma.” The STB emphasized that its identification decision had been based on an agreement with the SHPO about the properties to be protected (all of the bridges, later narrowed to 32 bridges and 36 archaeological аreas) and that under these circumstances, to restart the identification process to
The STB then terminated the consultation process and removed the S 106 condition, subject only to Conrail‘s compliance with the terms of the proposed, although unexecuted, MOA. In terminating consultation, the STB emphasized the steps it had taken throughout this process. It found that “further consultation would be fruitless.” It further noted the fact that the ACHP would not respond on the issue of mitigation, despite the STB‘s request for it to do so, and “instead continues to seek to dictate the [STB‘s] procedures and compel us to reopen this case and declare this entire rail line historic.” The STB considered the ACHP‘s letters in January and February 1999 to be its comments and recommendations on the undertaking and on termination of consultation; having taken them into account, the STB determined that it had complied with S 106 and that the process was complete.
The record indicates that Conrail/Norfolk has consummated abandonment of the rail line, other than the bridges. According to Norfolk, it has been mоre than ten years since there was activity on the line and more than eight years since there was any railroad equipment or property on the land. All tracks, ties, rails, signage, and equipment have been stripped from the property.
III. JURISDICTION
The STB, as statutory successor to the ICC under the ICC Termination Act, had jurisdiction over Conrail‘s petition to abandon the Enola Branch and could do so under the exempt procedures. See
The STB and intervenor Norfolk did, however, raise two preliminary issues questioning our jurisdiction to review
A. WHICH ORDER IS BEING REVIEWED?
The STB argues that FAST actually is challenging the 1990 Order that limited the scope of potentially historically eligible properties to the 83 bridges on the rail line. It is the STB‘s position that direct judicial review of the 1990 Order is precluded by S 2344, which requires that a petition for review of final agency action be filed within 60 days. See
We disagree and conclude that we do have jurisdiction to review the entire matter, including those aspects of the STB‘s decisions relating to the identification of eligible historic properties on the rail line. First, in the 1997 Order, the STB rejected FAST‘s request that the preservation requirement imposed in the 1990 Order be broadened to apply to the entire Enola Branch line. However, the 1997 Order expressly stated that “[t]his proceeding is reopened.” When the STB “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.” BLE, 482 U.S. at 278 (citing United States v. Seatrain Lines, Inc., 329 U.S. 424 (1947)). The STB urged that the reopening must be understood in context, that the proceeding was reopened only for the limited purpose of narrowing the scope of the historic condition. However, reopening a proceeding “for any reason,” even if only to
Reopening in this case, even if only to narrow rather than expand the original identification decision, makes the issues of identification reviewable. The STB cannot claim that identification was complete prior to 1997, yet still reopen the proceeding in order to consider some aspect of identification. That further consideration is subject to review, both as to whether it was proper to narrow the scope of the properties to be protected and also as to whether it was improper not to expand the scope of the protected properties. In short, the STB‘s explicit order to reopen this proceeding meant reopening for all purposes, thereby bringing the issue of identification back into play and making it subject to review at this time.
Second, FAST‘s 1996 petition (resolved in the 1997 Order), seeking reopening of the proceedings for the purpose of reconsidering and expanding the identification decision, was based on a claim of new evidence or changed circumstances, particularly evidence of changed opinions and perceptions of how much of the rail line would be eligible for the National Register. Where a motion to reopen is based on non-pretextual arguments about new evidence or changed circumstances, the refusal to reopen or reconsider a decision itself is reviewable for abuse of discretion. See BLE, 482 U.S. at 284 (“If the petition that was denied sought reopening on the basis of new evidence or changed circumstances review is available and abuse of discretion is the standard.“); Fritsch v. ICC, 59 F.3d 248, 252 (D.C. Cir. 1995) (interpreting BLE to permit merits review of a refusal to reopen where the motion is based on non-pretextual grounds of new evidence or changed circumstances); Friends of Sierra R.R., Inc. v. ICC, 881 F.2d 663, 666-67 (9th Cir. 1989) (“The order denying [the] petition is subject to review only if the petition sought reopening on the basis of `new evidence’ or `substantially changed circumstanсes.’ “). Even assuming that the STB‘s 1997 Order declined to reopen for the purposes of expanding the historic condition, that refusal to reopen is itself subject to judicial review. Under BLE, we would have
The STB argues that FAST did not actually submit any new or newly discovered evidence because the opinions of the ACHP, the SHPO, the Keeper, and the Curator, regarding the historic eligibility of the entire line, were available all along and could have been presented earlier. The STB contends, therefore, that FAST actually sought reopening and reconsideration based on “material error,” the denial of which motion unquestionably would not be subject to judicial review. See BLE, 482 U.S. at 280 (holding that “where a party petitions an agency for reconsideration on the ground of `material error,’ . . . `an order which merely denies rehearing’ . . . is not itself reviewable.“).
The STB‘s argument fails because it conflates the jurisdictional and merits analyses. Whether the evidence presented actually is new or newly discovered, as opposed to newly presented, goes to the merits of whether the refusal to reopen оr reconsider a prior decision was proper or lawful. It does not go to the jurisdiction of the court of appeals to review that refusal. Jurisdiction and reviewability are based on the fact that the motion before the STB alleged the existence of new evidence or changed circumstances. See Friends of Sierra, 881 F.2d at 666 (“[W]e determine reviewability solely by examining the bases advanced in the petition to reopen.“). That basis for the motion, assuming it is not a pretext, is sufficient alone to confer jurisdiction to review the Board‘s refusal to expand the identified historic properties and protect the entire rail line.
From the record before us, we conclude that FAST sought reopening based on new evidence or changed circumstances, not material error, such that the refusal to reopen is subject to judicial review.
FAST moved within 60 days for reconsideration of the 1997 Order, thus tolling the period for seeking judicial review of the 1997 Order until reconsideration was denied. The 1999 Order denied reconsideration of the refusal to reopen and the petition for review was filed within 60 days.
B. THE STB‘S JURISDICTION ON REMAND
Norfolk, as intervenor on behalf of the STB, raises a different argument, going to the STB‘s jurisdiction on remand. Norfolk suggests that, because it has abandoned the Enola Branch, the STB no longer would have jurisdiction on remand to make any determinations as to the historic status of the line as a whole or to impose mitigation conditions on any non-bridge property. It argues that any decision vacating the STB‘s original identification decision and remanding the case to the STB would be futile because, beyond the bridges already identified, the STB would be without the power to impose any historic conditions on the abandoned line as a whole.9
It is true, generally, that once a carrier abandons a rail line, the line no longer is part of the national transportation system and the STB‘s jurisdiction terminates. See Preseault v. ICC, 494 U.S. 1, 5-6 n.3 (1990). Unless the STB attaches post-abandonment conditions to a certificate of abandonment or exemption, such as requirements under S 106, the authorization of abandonment ends the Board‘s regulatory mission аnd its jurisdiction. See id.; Hayfield N. R.R. Co., Inc. v. Chicago & Northwestern Transp. Co., 474 U.S. 622, 633-34 (1984). The determination of whether a railroad has abandoned a line hinges on the railroad‘s objective intent to cease permanently or indefinitely all
We reject Norfolk‘s argument because there has been no STB finding that Norfolk consummated abandonment of the rail line as an entire property. Following the 1990 Order, Conrail removed all remnants of the railroad line from the property, including all tracks, ties, rails, signage, and equipment. According to Norfolk, it has been more than ten years since there was activity on the property, more than eight years since there was railroad equipment on the property, and more than seven years since Conrail attempted to negotiate converting the rail into a trail.
But the historical eligibility of the line as a whole does not require the presence of the tracks and other railroad equipment. The historically eligible property, as found by the Keeper and urged by FAST, is the rail line itself, including the trail and all of the bridges. The issue is whether Norfolk has abandoned, sold, or otherwise disposed of any portion of that property, a point on which the record is silent. If, on remand, the STB concludes that Norfolk has disposed of some portion of the line, the STB will be without power to expand the historical condition to cover that property already sold. But the STB otherwise does have the power to expand the historical condition to cover all property not abandoned and to require Norfolk to preserve the status quo and not to sell or otherwise disturb or dispose of the rail line pending proper completion of the S 106 process.
IV. HISTORIC ELIGIBILITY OF THE ENOLA LINE
We now proceed to the merits of this petition, whether the STB erred in carrying out its statutory obligations under S 106. Our review is governed by the Administrative Procedure Act (APA),
As we set out in Part I.B, supra, the NHPA is a procedural rather than a substantive statute, designed to ensure that federal agencies take into account the effect on historic places of federally regulated undertakings. See Morris County Trust, 714 F.2d at 278-79. The statute represents a balance between the goals of historic preservation and the needs of business and community development. See id. at 280;
The issue, therefore, is whether the STB touched all the procedural bases in limiting the scope of the identified historic properties on the line to the 32 bridges and 36 archaeological areas, in refusing to expand that identification in 1997 and 1999, in unilaterally approving the mitigation plan outlined in the draft MOA and the 1999 Order, and in terminating consultation in the 1999 Order. We conclude that the STB did not touch all the bases. The STB‘s decision to terminate the process as it did, and to provide only limited historic protection, must be vacated аnd this matter remanded to the STB for further proceedings.
A. IDENTIFICATION
Although there would appear to be a lack of constructive public dialogue in the whole of the S 106 identification process, FAST did not seek review of the 1990 Order at the time it issued, nor has FAST formally complained about the
The identification process must, however, be a fluid and ongoing one. “The passage of time, changing perceрtions of significance, or incomplete prior evaluations may require the Agency Official to reevaluate properties previously determined eligible or ineligible.”
In the 1997 and 1999 Orders, however, the STB focused only on whether FAST had submitted new evidence; it did not consider whether FAST had submitted evidence of substantially changed circumstances. This ruling ignores the “changed circumstances” language of
Furthermore, the STB failed to consider the Keeper‘s statement that the entire Enola Branch line was eligible for designation in the National Register. The ACHP had taken the position that the Keeper‘s findings were necessary before the identification process could be completed. Once the ACHP had brought the Keeper into the process, the Keeper‘s сonclusions had to be considered. As we noted in Part I.B, supra, the Keeper has been held to have
The STB ignored the Keeper‘s determination because of its “untimeliness” and the STB‘s concern that considering it would impose additional, inexcusable delay on the S 106 process. This consideration of late timing is, however, inconsistent with
The STB also dismissed the Keeper‘s statement as “pro forma” and therefore not entitled to serious weight. However, the STB did not indicate in what way the statement was pro forma, nor did it indicate what additional information the Keeper should have presented in its evaluation. The Keeper‘s evaluation included a lengthy paragraph describing the Enola Branch‘s overall historic significance; the Board has not explained why the Keeper‘s position was not entitled at least to some consideration.
The STB is correct in contending that, because it and the SHPO initially did not disagree as to the scope of eligible properties, the STB was not required under the regulations to request a determination from the Secretary of the Interior or from the Keeper. Such a referral is required only if the STB and the SHPO do not agree. See
Moreover, the fact that the SHPO‘s position in the TWO letter in 1994, that the entire line was eligible for the National Register, appeared to be a change from its earlier position before the STB was not sufficient grounds for the STB not to consider that letter as evidence of changed perceptions. The STB argues that nothing in the statutes or regulations requires it to rethink its decisions whenever an affected party changes its mind. See Connecticut Trust for Historic Preservation v. ICC, 841 F.2d 479, 484 (2d Cir. 1988). However, Connecticut Trust involved a potential purchaser of the abandoned rail property that changed its mind about which portions of the line it wanted to purchase. See id. That is significantly different from a change of position by the SHPO, which is statutorily empowered to advise the STB throughout the S 106 process and is not an affected party in the same way as a would-be purchaser. The SHPO‘s revised view as to the eligibility of the entire rail line may represent a changed perception of historic significance or be the result of a more complete evaluation of the property. The SHPO‘s changed perception should have received some consideration on its merits and should not have been rejected out of hand as an unexplained change of heart.
The STB similarly erred in not giving sufficient consideration to the views of the ACHP. While the ultimate decision on an undertaking remains with the agency implementing it, the ACHP must be afforded the opportunity to comment and its comments must be taken into account by the agency in rendering its decision. See Concerned Citizens, 176 F.3d at 695 (quoting Waterford Citizens’ Ass‘n v. Reilly, 970 F.2d 1287, 1290 (4th Cir. 1992)). The agency must make clear that it considered the ACHP‘s opinions, see Concerned Citizens, 176 F.3d at 696, instead of dismissing them as an attempt by the ACHP to “dictate” the STB‘s procedures.
The ACHP formally became involved in the S 106 process in March 1998, at the request of FAST, during the pendency of FAST‘s motion for reconsideration. ACHP
The record here shows that the ACHP‘s comments were not taken seriously.10 In several letters to the STB following its decision to participate in the consultation, the ACHP raised its concerns about the way in which historically eligible properties had been identified and its desire to see further consideration of what properties on the rail line
Moreover, any delay in ACHP participation and comment may be attributed, at least in part, to the STB. The STB apparently did not, as required, notify the ACHP of its determination of adverse effects at the time of its initial presumptive finding of such effects in 1990. See
Finally, the STB never mentioned or gave any consideration to the detailed statement by Lancaster County, in its 1989 objection to Conrail‘s Notice of Exemption, as to the historic significance of the line as a whole. The substance of this statement was similar to the comments made by the Keeper in its 1999 determination of eligibility. Although the County did not expressly request a historic condition on the abandonment of the line, its comments provided the STB with initial evidence as to the historical significance of the rail line as a linear source. Like any other evidence from an interested party, this was entitled to some consideration by the Board in identifying historic properties. However, the record does not reflect that the Board ever recognized or considered the merits of this statement.
B. TERMINATION OF CONSULTATION
FAST also challenges the manner in which the STB terminated the regulatory consultation. After declining to reconsider FAST‘s request to expand the historic condition and protect the entire rail line, the STB unilaterally terminated consultation on mitigation, unilaterally terminated the entire S 106 process, and imposed the terms of the unexecuted MOA, finding that it “constitutes appropriate historic mitigation for the bridges at issue.”
The STB certainly has the power to declare consultation at an impasse and to terminate, if it finds that further consultation would not be productive. See
We can understand the impatience of the STB to resolve this expedited abandonment. Nevertheless, when procedures are established by law, those procedures must be followed. Because the STB did not follow the required procedures, we conclude that it abused its discretion in implementing the MOA and in terminating the consultation. For these reasons, the 1997 and 1999 Orders will be vacated and this matter will be remanded to the STB.
V. CONCLUSION
For the foregoing reasons, the motion of the STB to dismiss the petition for review is denied. The petition for review is granted and the 1997 and 1999 Orders of the STB are vacated. This matter is remanded to the Surface Transportation Board for further proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit