*1 m рrivilege 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 Nampа, 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.
resрondent 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,
surmоunting 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
abаndon 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 nо 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 Abandonmеnt
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
Opеra-
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)
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
destrоyed 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
contactеd 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.
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
stоp
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
dirеctory.
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
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 occurrеd, 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 thе 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- terminatеs _” 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