*1 m privilege that advise and assist the President that executive units day possibility keep exercising indepen- the President or de- addition to substantial might entitle documents, authority, opposed I think stroy particular the Gov- dent or as to other execu- any persuasive foreign agencies has failed to offer tive involved sensitive ernment FOIA, Congress pow- yet subject is without to hold that affairs issues such as reason subject Department nonsensitive NSC documents and the Central er State Intelligence Agency. the Federal Records Act. Second, argues that al- the Government IV.

though Records Act makes the Presidential procedures, it records available under FOIA I thus conclude that the NSC is an would specify a gives power President agency purposes of and the Feder- FOIA time, years, to exceed twelve period of al Records Act and that the Constitution during which the materials will be avail- presents subjecting no bar NSC able, 2204(a), thereby § see 44 allow- U.S.C. I these statutes. dissent. ing the President while in office to avoid the supposedly intrusive effects of FOIA and Records Act. The risk of serious

Federal

intrusion, however, slight in view of exist- exemptions and the President’s FOIA

ability to have non-NSC interactions with his Security

Assistant for National Affairs and separate, purely hold

other NSC officials who Furthermore, advisory, positions. non-NSC BIRT, Petitioner, Melinda timing differences between the Presiden- Act and the Federal

tial Records Records v. together Act must be with other dif- viewed BOARD, SURFACE TRANSPORTATION ferences that make the former more burden- al., Respondents, et respects. some than the latter certain particular, under the Presidential Records Company Union Pacific Railroad Act, altogether certain materials that are City Nampa, Idaho, exempt specifically, memoranda FOIA — Intervenors. subject discovery in litiga- or letters not 95-1211. tion —are available under the Presidential using procedures. Act Records FOIA See 5 Appeals, United States Court 2204(c)(1). 552(b)(5); § U.S.C. U.S.C. District of Columbia Circuit. Finally, in the differences statutes’ Argued April 1996. provisions judicial cannot review sustain August Decided the Government’s constitutional claim. Al- judicial though is not available for review requirements

compliance with the

Presidential Records Act as it is under the Bush, Act, Armstrong

Federal Records see v. (D.C.Cir.1991) (Armstrong

I), judicial presidential guidelines review of

describing presidential which materials are under

records is available even the Presiden- II, Act, Armstrong 1 F.3d at

tial Records see has offered no

1292-94. Government holding

convincing rationale for unconstitu- judicial application

tional the review

provisions of and the Federal Records FOIA opposed

Act to the to other EOP NSC —as *2 Ackerson, DC, Washington, argued

Neis J. petitioner. the cause and filed the briefs for Evelyn Kitay, Attorney, G. Surface Trans- Board, DC, portation Washington, argued respondents, the cause for with whom Henri Rush, Counsel, Hanson, F. General D. Ellen Deputy Jeffrey General Counsel and P. Kehne, Attorney, Department United States Justice, respondents. were the brief for appearance. J. Carol Williams entered an Anthofer, Omaha, NE, Joseph D. Eric S. Morrow, Nampa, Rossman and William A. ID, were the brief for intervenors. Montange Charles H. and Andrea C. Fer- ster, DC, Washington, were on the brief for amicus curiae. EDWARDS, Judge,

Before: Chief WALD SENTELLE, Judges. Circuit Opinion for the Court filed Circuit Judge WALD.

Dissenting opinion Judge filed Circuit SENTELLE.

WALD, Judge: Circuit parcel Petitioner Melinda Birt owns a Idaho, Canyon County, land in across which Pacific Company intervenor Union Railroad (“UP”) held a for its railroad sought April tracks.1 In proceedings represented 1. In before the Interstate Commerce dicated that she over 40 other land- ("ICC" "Commission"), property adjacent Birt in- owners who also owned to the of-way segment run- when it issued the extensions and a 16-mile of the line abandon Secondly, through Canyon County, presumably we find that the ning approval order. longer profit- operation extending was no because its acted within its discretion thereafter, city Shortly Nampa, negotiating period. Accordingly, able. we af- ques- stretch of tracks in which lies near the approving firm the order Commission’s *3 tion, using the land indicated its interest agreement. UP/Nampa rails-to-trails the Trails Act. pursuant a nature trail for organiza- Background sponsoring The Trails Act allows I. develop an unused railroad track for tion to A. “Rails-to-Trails” Conversions purposes; un- or conservational

recreational generations, arrangement, the rail- For American railroads a “rails to trails” der right relinquish played its to use the a critical in our nation’s economic road does not role future, thereby preventing 272,000 development, peak accounting easement the at adjoining reversionary interests of land- the trackage of in the 1920s.3 Preseault v. miles (such Birt) vesting. In Feb- 1, 5, 914, 918, owners 110 S.Ct. U.S. granted several ruary (1990). of after the ICC 141,000 Today, only L.Ed.2d 1 miles negotiating in the time allotted for extensions remain, system lose an and the continues to deal —the first of which was rails-to-trails 3,000 year. each Due to additional miles Id. agree- Nampa reached retroactive —UP and cars, trucks, buses, competition the and approved the conversion. ment and the ICC2 many planes, traffic on rail lines deterio has point unprofitability. rated to the Before deci- petitions for review the ICC’s line, it can on an cease service established negotiation granting sions extensions and however, a railroad must obtain a “certificate agreement. argues approval final of the She granted, If of abandonment” from the ICC. already abandoned the track that UP had rights-of-way generally the railroad’s revert issued, depriving before these decisions were adjoining back to the landowners across jurisdiction over UP’s the Commission of property whose the tracks run. Confronted right-of-way. Birt also contends that the forfeiting a na with the Hobson’s choice of authority retroactively Commission lacked system through piecemeal tional rail aban reject negotiating extend the deadline. We lines, forcing donment of or railroads to first, arguments. As to the we think both they maintain on which cannot turn a requisite tracks failed to demonstrate the profit, Congress developed option: prior finalizing track third intent to abandon the agreement, converting to “trails.”4 the conversion and thus the Com- “rails” Section 1247(d) right- permits mission still had over the of the Trails Act5 a railroad up However, carrying freight passengers, in this court and I hear the lo- tracks. she filed only rushing roaring, on her own behalf. comotives and and the shrill steam-whistle, I hear the echoes reverberate 1, 1996, 2. On the ICC ceased to exist grandest through scenery the in the world. and its duties were transferred to the Surface (“STB”), Transportation Depart- Board in the Supreme provided thorough 4. The Court has Transportation. Act ment of Termination explanation history goals of the of the Trails 104-88, (1995). Pub.L. No. 109 Stat. 803 affirming constitutionality in a Act decision Accordingly, replaced the STB has the ICC as the Preseault, 5-7, at of the statute. See 494 U.S. respondent in this case. S.Ct. 918-19. extraordinary symbolic glimpse 3. For a of the 1247(d) provides: 5. Section importance and cultural once accorded rail- roads, Whitman, Passage Secretary Transportation, see Walt to India: the Chairman Commission, of the Interstate Commerce Singing great present, of the achievements Interior, Secretary administering of the engineers, Singing strong light works of Regulatory the Railroad Revitalization and Re- wonders, (the antique ponderous Our modern encourage form Act of shall State and outvied), east Seven In the Old World the agencies private canal, to establish local interests by mighty Suez The New railroad using provisions appropriate of such trails spann'd.... programs. purposes Consistent with the my I see over own continent the Pacific rail- Act, barrier, surmounting every of the national road contin- and in furtherance I see preserve rights-of-way winding along policy ual trains of cars the Platte established negoti discontinuing part ther seeking to abandon a line instead service as of a trails government pri or local or ate with a state conversion or full abandonment of the line: organization to assume financial and service, vate discontinuance of rail cancellation of legal responsibility for the track. Under a tariffs, and removal of tracks. If Id. agreement, “rails-to-trails” the railroad’s parties agreement prior reach third-party is transferred to sponsor manage- takes over sponsor for interim recreational conserva- right-of-way, subject ment of the to the rail- purposes. tional Because this transfer option to road’s reassert control over the deemed statute not to constitute an aban line. If agreement, do not reach reversionary donment of the inter the certificate of abandonment becomes ef- vest, adjoining landowners do not ests upon expiration fective CITU. though the railroad ceases service *4 (“[t]he permit ... CITU will the railroad to up rail takes the tracks. The line instead fully agreement if abandon the line no is right to retains the reassert control over the issued”). days reached is Once in point at if it easement some the future possession anof effective abandonment cer- decides to revive rail service. tificate, may any the railroad at time thereaf- 1247(d) § regulations implementing option fully ter exercise its to abandon the potential third-party sponsor direct a to file a by clearly exhibiting line its intent to do so. expressing statement with ICC interest UP/Nampa Agreement B. Trail Use offering in a rails-to-trails conversion and to April applied In of UP to the ICC for legal responsibility assume financial and for covering an abandonment certificate a 16- 1152.29(a) (1996). § the trail. 49 C.F.R. If Nampa mile stretch of tracks outside called fully party complied the third with the prof- the “Stoddard Branch.”7 The railroad filing requirements agrees and the railroad justifications fered several for abandonment: negotiate, to will then Commission issue major shipper on the line had rail ceased Trail “Certificate of Interim Use” shipments; (“CITU”).6 remaining traffic on the line was stays A CITU the railroad’s cer- opera- insufficient to offset maintenance and days, during tificate of for 180 abandonment costs; tion and there were no reasonable may negotiate which time the over 1152.29(c)(1). prospects enough justify § of income to contin- interim trail use. Dur- later, period, may operation ued of the line. A that time the railroad take month City Nampa8 indicating certain actions which are consistent with ei- of wrote to the ICC service, protect "regulated proceedings,” future reactivation of rail 6. abandonment corridors, customary procedure requesting transportation encourage for abandon- rail and to ment, use, the Commission issues a “CITU." In “ex- energy transportation efficient in the case emption proceedings,” which are abbreviated any of interim use of established railroad procedures available if no traffic has run on the donation, transfer, rights-of-way pursuant years, line for at least the Commission will two lease, sale, or a manner otherwise in consistent ("NITU”). issue a “Notice of Trail Use” Interim chapter, subject with this if such use is interim 1152.29(d). § See 49 C.F.R. The distinction is to restoration or reconstruction for railroad analysis not relevant to our here. treated, purposes, such not interim use shall be law, purposes any of law or of as an rule portion which 7. The "Stoddard Branch” rights-of-way abandonment of the use of such sought UP to abandon consists of 15.90 track State, puiposes. political for railroad If a sub- sidings, miles and 1 mile of rail located near division, organization qualified private or milepost milepost between 1.75 prepared responsibility to assume full for man- Application See UP Abandonment 17.65. agement rights-of-way any of such and for le- 19]; (Sub-No. 79), at [JA 4/27/93 use, gal liability arising out of such transfer or Union Railroad—Abandonment and Dis- Pacific payment any and for the and all taxes that Operations Canyon continuance and Ada —In against rights- be levied or assessed such Branch), (Sub- (Stoddard No. ID AB-33 of-way, impose then the Commission shall 79), (Oct. ICC WL 405656 at *1 requirement such terms and conditions as a 1993). conveyance transfer or for interim use in a chapter, manner consistent with this Initially, Canyon County expressed shall 8. an interest permit joining City Nampa sponsor or in- abandonment discontinuance with the Branch, disruptive use. its consistent of such use on the Stoddard but withdrew 1247(d) (1994). request prior August 16 U.S.C. of 1993. 29,1994 negotiating days, a rails-to-trails but did not do so until June its interest —8 seg- days expired. so that a four-mile initial had agreement with UP after the CITU On (five track could as a July ment of the be used recre- after the extension was Nampa expressed willing- opposition ational trail. granted), Nampa’s Birt filed an responsibility to assume financial request, advancing argu- ness extension the same liability legal for the and asked the presses ment she before us: the ICC staying to issue CITU UP’s grant lacked the extension be- response, of abandonment. certificate already cause had consummated the willing that it the Commission was informed prior abandonment of the CITU agreement with into a trail use enter by taking up informing the tracks and all, City Nampa part, but in a Commission of its intent to abandon Nampa had identified. Fol- segment which ap- letter dated then correspondence, Nampa lowing up on this extension, alia, pealed contending, inter agreement in a trail reiterated its interest had been aban- portion Branch of the Stoddard refer- extension, prior doned to the and that “the enced UP. (presumably CFR’s” the ICC’s abandonment regulations) did not authorize the Commis- approved On October on, sion to issue extensions. Later the ICC certificate, request for an abandonment UP’s *5 granted 30-day two additional extensions impose a trail condition because but did timely requested by Sep- both sides.10 On Nampa yet fully complied had not with the 20, Nampa signed tember UP and a final filing sponsorship; requirements for on agreement, approved trail use and the ICC 26, 1993, November it issued the actual cer- agreement February in that an order dated abandonment, tificate of to become effective 16, 1995. Railroad —Aban- Union 26,1993. month, Pacific During the same December Opera- donment and Discontinuance request trail use with the re-filed its Counties, Canyon tions —In ID and Ada Commission, properly complying with all the (Stoddard Branch), (Sub-No. 79), No. AB-33 statutory requirements, relevant and UP (Feb. 1995) 1995 WL 61495 [hereinafter agreeable indicating filed a letter it was 1995 UP Abandonment In that Decision]. Nampa’s request. response, the Commis- order, acknowledged the Commission that sion amended certificate of abandon- UP’s up had taken tracks and referred to ment on a December issue CITU correspondence the line as “abandoned” in portion running for a Branch of the Stoddard 10, 1994, May dated 5.62, milepost giving between 1.75 and both concluded, however, Id. at *4. It that de- days agree- negotiate sides 180 a trail use actions, spite these the railroad’s continued authority ment.9 to issue The Commission’s willingness a trails conversion this initial CITU is not contested. indicated that it full did not intend abandon- (11 days On before the end June ment. Id. at *5. The Commission also de- 180-day negotiating period), Nampa of the right retroactively fended its extend a requested negotia- that the ICC extend the CITU, long yet so as the railroad had not City period, stating tion has made “[t]he consummated abandonment. Id. at *4. an offer to the Railroad and the Railroad is Birt process evaluating it. asks us vacate the ICC’s orders the We feel that granting approv- price negotiated can be in the near future.” extensions CITU later, agreement. days the final conversion Her Three UP sent letter the ICC stating agreeable argument during eight day it was to an extension. central is that granted an The Commission extension of 60 window of time between that, (Sub-No. 79), agreement 9. The ICC's order stated "If an WL 542739 at *2 banking (Dec. 21, 1993). for interim trail is reached use/rail CITU, day the 180th after service of this interim may implemented. agreement trail use be If no appealed subsequent 10. Birt also both of these time, reached abandon extensions, raising substantially argu- same complete line.” Union Railroad—Aban- Pacific appeal. ments she raised the first Operations donment and Discontinuance of —In (Stoddard Branch), Canyon and Ada ID extension, (1984)), UP con- L.Ed.2d 694 and we are mindful that initial CITU and the first 1247(d) abandonment, depriving thus has read summated right-of- of further over the strong Congressional policy ICC Act to reflect “a reversionary way allowing the interests favoring banking.” trails Louis St. use/rail fellow landowners to vest. and her R.R. S.W. Co.—Abandonment—in Smith theory, this the ICC’s order June Counties, Texas, Under and Cherokee AB-39 60-day granting extension (Sub-No. 12), 1992 WL 457275 at *3 subsequent 30-day well as the extensions (Mar. 23, 1992). approval agreement, the trail use naught, no were all for since the Commission A. UP Did Not Consummate Abandon- longer any authority over the line. We had ment challenging petition her as also read Birt contends that UP took all the authority agency’s to issue the first extension necessary steps abandon the Stod is, eight retroactively in June of 1994 —that dard Branch the CITU into before converted ICC, expiration of the CITU. The a certificate of abandonment June positions it part, for its reiterates the took 1994, and thus consummation when occurred in- not demonstrate an below: that UP did lapsed.11 argument CITU Petitioner’s and that it acted tent to abandon fails, however, point this because she has not properly extending UP/Nampa CITU. successfully shown that UP intended to aban analy- Ultimately, we find the Commission’s don the line. As this court noted in Black v. persuasive. sis considering when whether railroad abandonment, must has consummated we II. Discussion look to the intent: carrier’s precedent, peti established Under determination as to whether there is [A] if did tioner is correct that UP consummate *6 an “abandonment” should involve more eight days in during the June abandonment searching inquiry and functional about between and extension actual intent of the to the transac- CITU, jurisdiction the ICC would have lost by than formalities tion the bare addressed time, right-of-way at that and ac over the here. As stated granted cordingly could not have the exten Appeals, Eighth of abandon- Circuit Court Preseault, See, 3,n. e.g., sion. 494 at 5 U.S. by an intention of ment is characterized (ICC jurisdiction 110 at 919 n. 3 loses S.Ct. permanently indefi- the carrier to cease upon over railroad abandonment nitely transportation all service on the rel- Co., line); Hayfield N. R.R. Inc. v. Chica of line.... is the “intent” of the [I]t evant Co., 622, 633, go Transp. 104 N.W. 467 U.S. spectrum railroad —as evidenced (1984) 2610, 2617, S.Ct. 81 L.Ed.2d 527 varying appropriate facts from case to (same). then, questions, critical are: pivotal case—that should be issue. First, arbitrary ca was the Commission (D.C.Cir.1985) 106, 762 F.2d 113 & n. 15 pricious finding that UP did not consum omitted). (internal quotations The Commis issued its mate abandonment before actions sion has listed several concrete 29, Second, 1994? extension order June which indicate an intent to abandon: the ICC authorized to extend the was operations, of tar cessation of cancellation eight though it waited to do so until iffs, salvage of the track and track materi expired? Naturally, after the CITU we als, relinquishment of control over the review the Commission’s construction R.R. right-of-way. Illinois Cent. Co.— deference, National Trails Act with see Gulf ICC, Piatt Coun Abandonment — in DeWitt and 699 Fed’n v. Wildlife (Sub-No. ties, Illinois, 134), (D.C.Cir.1988) (citing Chevron U.S.A. Inc. v. (Dec. 1988). Council, Inc., at *5 1988 WL 235412 Natural Resources Defense factors, however, 837, 842, equally consis are 467 U.S. 104 S.Ct. 81 These agreement during regulations, is reached the allotted It is not that under ICC trail use contested negotiation. Respon- period for converts See Brief a CITU such as the one issue here at 17. into an effective certificate of abandonment if no dents operations light subsequent explanation temporary cessation of of the railroad’s tent with statements, (“discontinuance”), firmly permits which a rails-to- of the two and its ex- per pressed does not effect a to continue “rails-to-trails” ne- trails conversion but desire throughout period abandonment. C.F.R. gotiations manent the nine-month 1152.29(c) Policy January September Statement on Rails of 1994. Conversions, Trails Ex Parte No. responding opposition to Birt’s initial to the 1990). (Jan. 29, statement, extension, WL 287255 at *3 1990 ICC the first UP addressed Thus, to determine whether the railroad’s that explaining to the Commission is abandonment or mere discontinu conduct line had Pacific’s advice Union ance, often look to additional be we must merely been “abandoned” was a statement signifies which one or the other. St. havior to the that Union Pacific had discon- effect R.R. Co. — Abandonment—in Louis S.W. obligation tinued its common carrier Texas, and Cherokee Smith operate by willing- shown the line. As (Sub-No. 12), AB-39 1992 ICC WL City with the ness to 1992).12 (Mar. 23, at *3-*4 conveyance right way trail, Union Pacific did not intend that the types Birt identifies of actions two jurisdiction requisite Commission lose over the line she claims demonstrate the which and, event, First, any that result would have intent to abandon. UP discontinued service, tariffs, salvaged impossible been because of the existence of rail canceled its clear, course, It property. and ties on CITU. the rails the contested Since, however, salvaging trackage does not in a are consistent result these actions discontinuance, loss of Commission because the with either abandonment or willingness to enter into trails has en- railroad’s we must also consider whether UP negotiations act is inconsistent with an in- gaged in other actions which shed addi- light points tent to consummate abandonment. tional its intent. also pieces correspondence in two which UP The Commission found this clarification refers to the line as “abandoned.” credible, relying upon February, it in its 3,1994 letter to the UP stated: ruling that UP had not abandoned the track. to the “Pursuant Commission’s Certificate Abandonment Decision at *4-*5. 26, 1993, and Decision served November the While, out, points as Birt UP has extensive portion of Branch Union Pacific’s Stoddard business, experience in the railroad and its *7 milepost milepost between 1.75 and 17.65was attorneys expected be to know the dif- must 26, abandoned effective December 1993.” ference between “abandonment” and “discon- letter, Birt, this one another written UP a rail think the tinuance” of line—we do not 23, 1994, May stated on it could not arbitrarily determining acted in Commission provide rights- on which her with information willingness negotiate that UP’s continued of-way adjoining would revert to landowners stronger signal a of its than the was intent long standing “because of a Union Pacific misuse of the term “abandoned” in this let- policy making regard- of not determinations “mistake,” ter. As for the second the Com- (em- way” ing rights title to abandoned again mission determined that UP’s use of added). phasis disposi- should not the word “abandoned” be only incidentally adequately do not believe these letters tive since it was used in a

We line, answering queries establish intent to in Birt’s about which UP’s abandon letter Cir.1974); types might light Chicago, ICC v. 12. Various of behavior shed Rock Island & Pacific Co., 908, (8th Cir.1974), just whether a railroad intends to abandon or R.R. 501 F.2d 911-12 denied, 972, 1393, temporarily example, discontinue service. For if cert. 420 U.S. 95 S.Ct. 43 (1975). repair purpose- a in L.Ed.2d Our court has also noted line bad due to the railroad’s weather, neglect destroyed by previously ful bad courts that the Commission has found an have it, meant to abandon intent to abandon based on a railroad's failure to inferred that the railroad by though attract a terminations of service caused make efforts to rail traffic on line (such beyond factors the railroad's control as where service had been discontinued. See Con ICC, 706, conditions) generally Corp. v. 29 F.3d unusual weather are not solidated Rail Inc., See, (D.C.Cir.1994) (citing Handcraft, e.g., characterized as abandonment. ICC v. Modem 969, Co., 590, (2d (1981)). Cent. 363 I.C.C. Maine R.R. 593-94 reversionary referring to the line as “aban line inter- ICC parts of the rail were 26, ests, on whether this doned” effective December 1993. Since focused not at all and at *5. Al- the CITU issued on December been abandoned. line had prevented abandoning in before its though of the term both instanc- UP UP’s use 21, 1994, undoubtedly explanation position on June Birt’s sloppy, this es was only prevail if abandonment is a speak Actions do can one- too seems reasonable. if, words, way a was all the while once railroad makes some louder than street — abandon, indication that it intends to it can engaged negotiating with on the change opt usage for trails course trail conversion. sure, may legal this instead. To be be the Prior to termination of the initial expresses if a outcome the railroad definite times the Commission several UP advised possession intent to abandon while in of an willingness to enter into a trails con of its if effective certificate of abandonment. But it first August when version: already stayed the certificate been Nampa’s about contacted the Commission here, CITU, as it was the railroad cannot 16, 1993, request; on November when re be held fast to an isolated indication of in agreement; in an iterated its interest tent to abandon rather than to 13, 1994, joined Nampa in when it on June sponsor, until potential with a trail at least 60-day asking for a extension of the CITU. expires. thing, For the CITU one such previously found that The Commission has holding parties result would to what risk participation in rails- a railroad’s continued strategic bargaining position be a dur negotiations suggests that it does to-trails ing explicitly negotia a time reserved but intend to abandon tion, preference and so undermine the per while rather retain Congress trail use which addressed en mitting interim trail use. St. Louis Cf. 1247(d). acting R.R. Smith S.W. Co. — Abandonment—in Counties, Texas, points Birt Fritsch v. 59 F.3d 248 to. Cherokee (Sub-No. (D.C.Cir.1995), 12), 457275 at *4 cert. denied sub. nom. CSX 1992 ICC WL — 1992) (Mar. Fritsch, U.S. -, (negotiations Transp., Inc. v. sale of line 1262, 134 (1996), requir L.Ed.2d 210 indicate railroad did not intend to abandon S.Ct. line).13 Fritsch, Certainly it was reasonable for the a different result. this court that it re to draw the same conclusion reversed decision here, particularly final letter ex tained over track owned when UP’s “public condition”14 at pressing amenability to trail use comes CSX while a use was more than six months after the most com tached to the certificate abandonment Shortly piece pending. still after the Commission pelling of evidence marshals CSX, favor —the letter from issued a certificate of abandonment to her gotiate potential sponsor distinguishable 13. We find Illinois Central with a Gulf —occurred abandonment, Company, a case in the Commis- Railroad which but issuance of certificates of *8 rejected a claim that it intended to sion railroad's filing application, before of a CITU the Commis- conversion, negotiate a trails rather than aban- jurisdiction had lost over the sion ruled that it There, potential don the track. a railroad and a grant rights-of-way a and could not CITU. sponsor requests trail filed for a CITU on two Here, negotiate displayed trail an intent to granted a stretches of track. The ICC had certifi- contemporaneous might with that use actions years cate of abandonment two before the CITU several otherwise indicate abandonment —not filed, petition the and first track was four years those events occurred. filing request years prior to of the CITU second track. Illinois Cent. R.R. Co.—Aban- Gulf 14. of the Railroad Revitalization Section 10906 Illinois, donment—in DeWitt and Piatt imposes 180-day waiting peri- a and Reform Act (Sub-No. 134), 1988 WL 235412 at lease, sell, ex- that wishes to od on a railroad (Dec. 19, 1988). The Commission found *l-*2 During change, dispose or otherwise line. applications that at the time abandonment time, any railroad must consider com- granted, that were filed and the railroad intend- tracks, purchase petitive rather than convert offers for ed to abandon the use; subsequently only entity public them to trail did the the track for a use. an that will use Fritsch, any (1994); intent to enter into a rails-to- railroad exhibit § 49 U.S.C. see also agreement. trails Id. at *5-*6. Because aban- at 252-53. F.3d any ne- donment—absent indicia of an intent to the Commission it had aban identified several actions similar to the indi- the railroad told (removal tracks, line and indicated that it would not doned the cia of intent Fritsch service, conversion. correspondence rails-to-trails and with cessation Fritsch, later, at 250. Six months expressing an the Commission intent agree changed its mind and reached an abandon), CSX marshaled coun Commission sponsor. with the would-be trail ment tervailing contemporaneous evidence of approved pursuant the deal Commission negotiations period continued trail over a Act, authority ruling that under the Trails suggested rail nine months which that the jurisdiction property it retained over the be short, road did not intend to abandon.15 180-day “public period” cause the use had analytic resolving framework for while the time, expired not and until that CSX could the railroad exhibit both cases is similar —did legally consummate abandonment. This an intent to abandon at a time when it was ruled, however, court that while authorized to do so the Commission?— sell, lease, stays authority a railroad’s present in clear evidence of such intent is one exchange, dispose right- or otherwise case but not the other. of-way, stay it abandonment. Id. at does had, Concluding the railroad Authority B. Had to Issue Extensions fact, agreed abandoned the line before Nampa Negoti- CITU While UP and usage, the court ruled that the Commis ated jurisdiction approve sion lacked the once Birt claims the lacked spurned, agreement. now favored trail use authority to issue three extensions agree We that under Fritsch other rele UP/Nampa eight CITU —one on June precedent, vant abandonment terminates the original expired; after the CITU one authority Commission’s over a rail line. 19; Fritsch, August September the final one on however, the court found the rail argues 26. Birt that the first Commission is road’s intent to abandon the line before it any grant not authorized to extensions of a began negotiations sponsor with the trail regulations prescribe CITU because its own “could not have been clearer.” Id. at 253. 180-day negotiations.16 deadline for distinguishes That conclusion is what Fritsch We Fritsch, disagree. Although regulation from Birt’s situation —in bell indicates days, rang displayed any railroad that the CITU shall run 180 it is silent well before the usage. Although granted.17 interest in trail Birt has as to whether extensions be expressing Although 15.In concern about how "the Board trol. actions to which both Birt petitioners point might or future will be able to determine and the dissent have been sufficient opinion governs identify whether or Fritsch this similar for consummation if the Board could not disagreements,” dissenting opinion any conflicting casting the dis- evidence doubt on UP's abandon, implies sent that these two decisions set forth pointed specific intent to it has con- conflicting standards for consummation of aban- temporaneous actions UP which led it to We donment. think not. Fritsch holds that conclude that intended to railroad retain deprives clear evidence of intent abandon line control over the until a rails-to-trails conver- pro- a line Commission of over negotiated, sion had been rather than abandon- subsequently reasserting authority hibits it from ing the line. not, however, over the easement. We do read holding Fritsch as that abandonment is necessar- regulations provide 16. The "rails-to-trails” in rel- ily triggered upon showing piece single part: evant abandon, of evidence indicative of an intent to appropriate ... The Commission will issue an accompanied by conflicting contemporane- when permit CITU NITU will suggesting ous evidence that the railroad intend- *9 agreed period for a to the ed to retain control over the line. Since such ..., days, but not to exceed 180 at the end of countervailing may properly evidence lead the which, the CITU or NITU will convert into a Board the to find that railroad did not intend to permitting certificate ... abandonment. appropriate abandon the the Board asked added). not, 1152(g) (emphasis § question considering objections: 49 C.F.R. in Birt’s as suggests, engaged the dissent whether UP had in contrast, By Congress impose specific specific 17. did a several actions consistent with an intent abandon, days § during time limit of 180 in 10906 of the Railroad but whether UP’s actions this Act, period, entirely, Regulatory in an Reform which considered their indicated Revitalization "public intent use to abandon or an intent to maintain con- allows the Commission to issue a

589 negotiations interpreted good-faith this ambi- between the railroad The Commission of permitting potential sponsor compromise as extensions guity its rules the signifi- give the Commission goal a CITU. We that a is intended to CITU advance— reviewing interpretation; this leeway cant providing opportunity a defined window of that “courts owe precedent firmly establishes agreement reaching on a trails conver- agency interpreta- greater ‘even deference Although sion. extensions ad infinitum agency ... agency rules than tions of might purpose by allowing frustrate that statutory ambiguous interpretations of stop railroad to service without either relin- ” Railway v. terms.’ Brotherhood Carmen quishing rights putting its to the easement or of (D.C.Cir.1995) Pena, (quot- 705 64 F.3d use, productive an exten- Corp. v. 43 F.3d ing Consolidated Rail days sion of 30 or 60 does not threaten such (D.C.Cir.1995) (quoting Capital 1532 a result. FCC, System, Inc. v. 28 F.3d Network (D.C.Cir.1994))). Deciding that could have 206 timely granted a extension does not end the find the Commission’s construction We inquiry. must also consider Birt’s addi We regulations acceptable an one. its trails agency tional claim that the retro could not First, reading regulation of the CITU is actively issue the first extension June See, past practice. e.g., Mis consistent with 1994, eight days expired. after the CITU As Exemp R.R. Co.—Abandonment ti souri Pacific explained, we an effective certificate of aban TX, County, Denton on— I n permissive authority donment confers on the (Sub-No. 99X), (May 1993 ICC WL 182674 railroad; actually until the railroad consum 24,1993); R.R. Missouri Co . —Aban Pacific abandonment, occurs, mates none and the Okfuskee, Okmulgee, Hughes, donment — In Commission retains over the rail Johnston, Atoka, Pontotoc, Coal, Bryan right-of-way. road’s We see no reason then AB-3(Sub-No. 63), OK why, in the absence of effective abandon (Dec. 18, 1989); Aban- ICC WL 247069 Rail during eight-day period, ment Rights-of-Way as donments — Use ongoing authority ICC could not exercise this Supplemental Act Proce Trails Trails — CITU, though existing to extend the (Sub-No. dures, 13), Ex Parte No. expired. one had Birt has identified no rea (Dee. 1987) (“Exam at ICC WL 97291 *3 why son extension in this case retroactive ples types of that could be decisions unfair, objection most often would be [of made the Director the rails-to-trails See, agency e.g., raised to retroactive action. program] extending ... would include Culp PieRoe, J. agreement.”). Kenneth Davis & Richard period for reach a trail use JR., § 13.2 despite Law granting These decisions Administrative Treatise extensions — (1994). are To the extent fairness concerns language square § with 1152.29—also implicated by dispute, they probably this a have discussed elsewhere to reluctance we Birt; weigh against denying the extension mandatory, regulatory construe deadlines as solely grounds retroactivity would force directory. than Brotherhood rather See Carmen, request filed their Railway 704-05.18 Nor —who days prior four policy granting ex an extension does the Commission’s agen- presented with evidence of the CITU19 —to bear the brunt of the tensions when otherwise, Congress we staying a indication that intended condition" sale or lease of railroad's directory. statutory right-of-way. provision suggests deadline to be This that had will deem why apply Congress preclude we of a We see no reason should not intended to extension principle regulatory deadline. An it would included a similar time limit same have all, 1247(d) agency, presumably no more inclined of the Trails Act. Congress place constraints on adminis- than action, especially it is its own.” Id. trative when Carmen, agency regulation construed stating petition "Each shall be decided not appellant receipt” permit- argument, di- 19. At oral counsel later than 4 months after its requir- regulation ting petition to an ICC after the 4 rected our attention decide expired. requests filed “not less for extensions be month deadline had Brotherhood of Carmen, days prior Railway to the due date.” See 64 F.3d at 704. This court than 10 *10 1104.7(b). Appellant upheld agency, holding did not raise this a clear C.F.R. "absent 590 Although or indeed could have done to consummate tardy we are

cy’s consideration. squarely gov- caused adminis- abandonment. This case is cognizant of the confusion its Fritsch, to extension re- agencies responding and I do not see how the trative erned passed, initial deadline quests petitioners after the will be able to Board or future and the extension opinion situations do arise such whether or this determine Fritsch operate unreasonably. did not granted here governs disagreements. similar majority’s I not understand the further do III. Conclusion reasoning upholding in the Board’s retroac objections find neither of Birt’s to the We In we held that once tive extension. Fritsch compelling, and con- orders Commission’s occurred, had the Commis the abandonment regarding orders clude ICC’s Board) (now by the had lost sion succeeded arbitrary not UP/Nampa CITU were granting to take action a rails- its Although petitioner identi- capricious. expressly held that to-trail conversion. We which could be several actions fied power “the was without to undo the as evidence of an intent to aban- construed I abandonment....” Id. do understand Branch, the Commission don Stoddard majority explain how a Board nor does the sug- countervailing evidence which identified jurisdiction, under the rubric of without gested that the railroad intended granted granting an extension not before the City agreement with the a rails-to-trails jurisdiction, reopen can to create a loss Nampa, right-of-way. not to abandon its jurisdiction it has lost. As we noted in act outside the Nor did Fritsch, Supreme Court has held that extending bounds of its discretion the du- “[ojnce pursu a carrier ‘abandons’ a rail line UP/Nampa ration of the CITU its orders [Board], authority granted by the ant to 19, 20, September August of June longer part line is no of the national trans Accordingly, petition for review is portation system, although the [Board] is Denied. empowered impose conditions on abandon- ments, juris general proposition ... ... as a SENTELLE, Judge, dissenting: Circuit (quoting diction Preseault terminates.” majority acknowledges As the Fritsch v. ICC, 3, 110 v. 5-6 n. S.Ct. 919 U.S. (D.C.Cir.1995), F.3d 248 establishes (1990)). 3, 108 n. L.Ed.2d reopening rail track- the law on abandoned Fritsch, In we held that because the Com- age agreement. rails-to-trail Under imposed mission had not condition on the Fritsch, “jurisdiction the ICC’s over a line jurisdiction, abandoning no retained completely when the line is aban- terminates _” change attempt and the the mind of the con- doned Id. at 253. Fritsch we question railroad and the Commission on the cluded that an abandonment had occurred I abandonment was without effect. do expressed the railroad had its inten- where why abandon; see the same is not true here. adequate support offered tion to of, for, approval and received its abandon- sum, indistinguishable this case is certificate; equipment. ment and removed its Fritsch, and the result should be the same. majority acknowledges, present in the As the respectfully I dissent. request had filed its for an abandon- case UP certificate, approval ment received and re- equipment. It sent

moved corre-

spondence petitioner present to the in the referring way rights to the as “aban-

case majority heading

doned.” The states abandonment,”

that “UP did not consummate points nothing

but further that UP needed EPA, Corp. point v. in her briefs to this court or before the Linemaster Switch agency, (D.C.Cir.1991). it. and so we will not consider See Ohio EPA, (D.C.Cir.1993); v. F.2d 1528-29