Free Cross Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:07-cv-00273-MCW

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Exhibit 5

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FOUR PENN CENTER SUITE 200
1600 JOHN F. KENNEDY. BLVD. PHILADELPHIA, PA 19103-2808
TELEPHONE 215.563.9400 YACSIMILE 215.665.9988
WWW.CC.ELAW.COM

GOLLATZ

GRIFFIN
&: EWING
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ATTORNEYS - AT - LAW
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ERIC M. HOCKY
DIRECT DIAL 215.320.3720

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December 12, 2003
VIA: UPS Overnight

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Hon. Vernon A. Williams

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Secretary
Surface Transportation Board

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Mercury Building, #711 1925 K Street, N.W.

Washington, DC 20423-0001
Re:

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ENTERED

Docket No. AB-400 (Sub-No. 3X)

Office of Proceedings

Petition of Seminole Gulf Railway, L.P. for
Exemption of Abandonment in Sarasota County, Florida
Dear Secretary Williams:

DEC .¡ :'. Ltd
Partot
Public Record
, .-

Enclosed please find for filing the original and ten (10) copies of the above-referenced

Petition for Exemption. Also enclosed is a diskette with a form of Federal Register notice, and our check in the amount of $4,700 representing the fiing fee.

Please time stamp the extra copy of this letter to indicate receipt, and return it to me in
the stamped self-addressed envelope provided for your convenience.

Respectfully,

FEE RFÆ::EIVD
Gí:C 1 5 2003

TRANSp~~~r~~~N BOARD
Enclosures

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PHILAüELPH IA

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cc: All person shown on the certficate of service.

GOLLATZ. GRIFFIN & EWING. Pc.

WEST CHESTER

WILMINGTON

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Ofice of ProceedIngs
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Part of PUblic fl"cord

ENTERED

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Before the

SURFACE TRANSPORTATION BOARD ¡Y

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Docket No, AB"400 (Sub-No, 3X)

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\)\:\, \ ti , PETITlON OF SEMINOLE GULF RAILWAY, L.P. ~ i.C~~ ~oFt EXEMPTION OF ABANDONMENT

PL.L~~:¡tt:;:'id

S~~1\O IN SARASOTA COUNTY, FLORIDA

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FEE RECEIVD
DEC 1 5 ?003
Si.Rt't,.~.i,.

TRSPORTATION BOARD

ERIC M, HOCKY GOLLATZ, GRIFFIN & EWING, P,C. Four Penn Center Suite 200 1600 John F. Kennedy Blvd, Philadelphia, PA 19103 (215) 563-9400 Attorneys for Seminole Gulf Railway, L.P.

Dated: December 12, 2003

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Before the

SURFACE TRANSPORTATION BOARD
Docket No. AB-400 (Sub-No. 3X)

PETITION OF SEMINOLE GULF RAILWAY, L.P. FOR EXEMPTION OF ABANDONMENT IN SARASOTA COUNTY, FLORIDA
Seminole Gulf Railway, L.P, ("SGLR") petitions for an exemption under 49

U.S.c. § 10502 from the provisions of 49 U.S,c. §10903 to enable SGLR to abandon 12.43 miles
of railroad located in Sarasota County, Florida, In support of

its request for exemption, SGLR

represents as follows:

BACKGROUND OF TRANSACTION
SGLR is a common carrier by railroad subject to 49 U,S,c. Subtitle IV that

operates rail lines in the State of Florida, SGLR purchased the assets comprising its lines from
CSX Transportation, Inc, ("CSXT") in 1987. SGLR leases the underlying property from CSXT,I
SGLR has now decided to abandon a portion of

its Venice Branch between

milepost SW 892 outside the city limits of

the City of

Sarasota and milepost 904.4 near the City

of

Venice, Florida, a total of 12.43 miles (the "Subject Line"),i There has been no traffic on the

SGLR acquired the full common carner obligation when it purchased the rail line, the underlying land is not subject to the Board's jurisdiction, See Seminole Gulf Railway, Inc, - Abandonment Exemption In Lee County. FL, icc Docket No. AB-400 (Sub-No. 2X)(served December 22, 1994), slip op
and has the full authority to abandon tbe line, CSXT as the owner of

at 5,

The Subject Line also includes a "wye" track and stub (at approximately milepost SW 904,2), as well as side tracks,
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line for over 20 months, there is little likelihood of

traffic coming back to the line, and there is

interest in developing the right-of-way for trail use, The Subject Line is located entirely within

Sarasota County, Florida, and traverses through United States ZIP Codes 34233, 34238, 34272,
34275 and 34285. A map showing the location of the Subject Line and its relation to other rail

lines in the area, highways, water routes and population centers is attached hereto as Exhibit "A",

Based on infonnation in SGLR's possession, the Subject Line does not contain federally granted

rights-of-way, Any documentation in petitioner's possession will be made available promptly to
those requesting it.

SGLR, together with CSXT as the underlying landowner, have granted The Trust
for Public Land an option to acquire the rail line for conversion to a traiL. All parties are anxious
for SGLR to abandon the Subject Line so that the right-of-way can be developed for public use.

Since the Subject Line has had no rail traffc for the last 20 months and only a few
cars prior to that, the abandonment of

the Subject Line is not yet eligible for the class exemption

for out of service rail lines pursuant to the provisions of 49 C.F,R, § 1152.50. Because of the
local interest in developing the right-of-way for trail use, SGLR does not want to wait until the
two year class exemption period expires. However, because of the limited scope of

the

abandonment and the minimal effects on shippers, the abandonment is still eligible for an
exemption pursuant to 49 U,S,c. §10502.

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CURRNT STATUS OFTHE SUBJECT LINE
No trains have operated on the Subject Line since March 14,2002,.1 All of

the
the

former shippers have moved elsewhere or use other arangements for their traffc; all of

shippers which received traffic from the one public delivery track on the Subject Line are still
receiving cars in rail service from SGLR at locations on its other lines. Because of

residential and

recreational development of

the land along the right-of-way there are few, if any, parcels

available for industrial development for new rail shippers,

ABANDONMENT OF THE SUBJECT LINE SHOULD BE EXEMPTED
The abandonment of

the Subject Line by SGLR would require authorization

pursuant to 49 U,S,c. § i 0903 unless the exemption requested herein is granted, The Board is
directed by 49 U,S,c. § i 0502 to grant an exemption if it finds that (i) regulation is not necessary
to cany out the rail transportation policy of 49 U.S,c. § i 0 i 01, and (2) either the transaction is
limited in scope or regulation is not needed to protect shippers from the abuse of

market power,

In a series of decisions, the Interstate Commerce Commission found that the
abandonment of rail

lines on which no traffic originated or terminated for at least two years

should be exempt from regulation under then 49 U.S,c. § 10505 (now § i 0502). Exemption of
Out of

Service Rail Lines, 366 ICC 885 (1983); Exemption afOut afService Rail Lines, 1 ICC 2d

55 (1984), as modified by 2 ICC 2d 146 (1986).4 SGLR's proposed abandonment falls

just shy

There have been no rail movements over

the last three miles of

the Subject Line

for over 10 years.
This exemption is now codified at 49 C.F.R, §1152 Subpar F.
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of

the two year class exemption critera having had no local service for 20 months, However, for

the same reasons that those decisions found that out of service rail lines satisfy the exemption
criteria, the Board should find that abandonment of

the Subject Line should be exempted and

should use the same shortened time periods as provided for class exemptions. The specific
reasons for such finding are discussed below,
This abandonment of approximately 12.43 miles of rail

line located all in one

county does not require detailed scrutiny to carr out the rail policies of 49 U,S,c. § 10101, and is
in keeping with the Board's overall policy of

removing unnecessar regulatory barriers from
traffc, and the development of

carriers, It is clear from the lack of

the area around the Subject

Line that there is little likelihood of

there ever being a future demand for local rail service over

the Subject Line, Approval of

the exemption under 49 U.S,c. §10502 will enable SGLR to
its resources without the extensive costs and

abandon the Subject Line and make better use of

delays that would otherwise occur if an application were required to be fied under Section

10903, and is in keeping with the following rail policies described in 49 U.S,C. §101O1:
* * *

(2) to minimize the need for Federal regulatory control over the rail transportation system and to require fair and expeditious
regulatory decisions when regulation is required;
* * *

(3) to promote a safe and effcient rail transportation system by allowing rail carriers to ear adequate revenues."
* * *

(5) to foster sound economic conditions in transportation...

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* * *

(7) to reduce regulatory barriers to entry into and exit from the

industr,..
* * *

(9) to encourage honest and effcient management of

railroads;

* * *

(15) to provide for the expeditious handling and resolution of all proceedings,
Moreover, the grant of the exemption will not be inconsistent with any of

the 15 items which

have been made a part of

rail transportation policy by 49 U.S,c. § i 0101,

The scope of

the exemption requested is limited and will have no direct impact on

shippers or other rail carriers, The transaction involves only i 2.43 miles of rail line at the end of
a branch line,5
Since the proposed transaction is oflimited scope, it is not necessar for the

Board to consider whether shippers need to be protected from abuse of

market power. However,

even if

the Board were to consider market power, it is clear that shippers do not need to be

protected from its abuse since there are no shippers remaining on the Subject Line, and no
prospects of future shippers, Shippers in the region have the alternatives of being served by rail

from public tracks off other SGLR lines in the area, or by motor carrer. Accordingly, regulation
is not needed to protect shippers from abuse of

market power.

Further the public will benefit from the benefit because the right-of-way will be developed for public recreational use.

Thus, there is also no affect on any overhead traffc.
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No fonnal complaint by a user of rail service on the Subject Line, or a state or
local government entity acting on behalf of such a user, regarding cessation of service over the

Subject Line either is pending with the Board or any U,S, District Court or has been decided in
favor of a complainant within the last two years,

ADDITIONAL INFORMATION
SGLR provides the following additional information that would be required under
49 C.F,R. i i 52,50(d)(2) and 1152.22 if

this Petition were filed under the Board's class

exemption:
(a)(I) The exact name of applicant is: Seminole Gulf Railway, L.P.

(a)(2) SGLR is a common carrier by railroad subject to 49 U,S.c. Subtitle iv,
chapter 105.

(a)(3) SGLR seeks to abandon the Subject Line. SGLR owns the track,
improvements and roadbed structure comprising the Subject Line, but does

not hold title to the underlying land, SGLR leases the land from CSXT,

the former rail operator of the line, It is the intention of SGLR and CSXT
to sell the Subject Line for trail use pursuant to an existing option
agreement with The Trust for Public Land,
(a)(4) A map of

the Subject Line is attached as Exlubit A.

(a)(7) The representative ofSGLR to whom correspondence should be sent is
Eric M. Hocky, Esq., Gollatz, Griffn & Ewing, P,C., Four Penn Center,

Suite 200, 1600 John F. Kennedy Blvd., Philadelphia, PA 19103,
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(a)(8) The Subject Line traverses through United States ZIP Codes 34233,

34238,34272,34275 and 34285,
(e)(4) SGLR believes that the Subject Line is suitable for use for other public
purposes, in particular for trail use. The Subject Line is 12.43 miles in
length and connects growing residential and recreational areas that abut
the right-of-way for its entire length,

SGLR proposes to consummate the abandonment at the earliest possible date
pemiitted by the Board,

EMPLOYEE PROTECTION
Although no employees ofSGLR are expected to be affected by the abandonment,
SGLR recognizes that this abandonment will be made subject to the employee protective

conditions in Oregon Short Line Railroad Co. --Abandonment--Goshen, 360 icc 91 (1979).

ENVIRONMENTAL AND HISTORIC REPORTS
The Environmental/Historic Report, required by 49 C.F.R. § I 121 ,3(a) and
§ I 152,60, was fied with the Board on November 20,2003, and was served on additional

agencies in accordance with the requirements of 49 C.F,R. §§I 105,7 and 1105,8. Since that
report was filed, SGLR has received a few additional responses, copies of

which are attached as

Exhibit "B", None of

the additional responses raise any environmental or historic concerns about

the abandonment.

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NOTICE
Approximately 20 days prior to the filing of

this Petition, SGLR notified, in

writing, those agencies and shippers referenced in 49 C.F,R. § 1152,206, as well as those required
under 49 C.F,R. §§1152,60(d) and 1152,50 (d), of its intent to file this Petition. Copies of

these

notices are attached as Exhibit "c", Further, as shown in the Environmental/Historic Report,
SGLR has also complied with the notice requirements of 49 C.F.R, § 1105,11, and with the

publication requirements 49 C.F,R. § Ii 05,12,

Finally, pursuant to the provisions of 49 C.F,R. § i 152,60(c), B&P has attached, as
Exhibit "D", a draft Federal Register notice of

its petition to be published by the Board within 20
the draft notice

days of

the petition's fiing with the Board. SGLR is also submitting a copy of

on a computer diskette compatible with the Board's current word processing capabilities,

6 SGLR's employees are not represented, and therefore notice was not sent to any
labor organizations.
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CONCLUSION
For the foregoing reasons, SGLR requests that the Board, under 49 U.S.c.
§ I 0502, exempt the abandonment of

the Subject Line from regulation under 49 U.S.c. § i 0903,

and handle the exemption on the timing for class exemptions.

Respectfully submitted,

di/1CKY

GOLLA:J~GRlFFIN & EWING, P,c. Four Penn Center Suite 200
1600 John F. Kennedy Blvd, Philadelphia, P A 19103
(2 I 5) 563-9400

Attorneys for Seminole Gulf

Railway, L.P.

Dated: December 12, 2003

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VERIFICA nON
I, Gordon H. Fay, f1_~d_-l of Seminole Gulf

Railway, Inc., as genera

parner of Seminole Gulf Railway, L.P., venfy under penalty of peijur that the foregoing is true

and correct. Further, I certify that I am quaified and authonzed to fie this Venfication.

Dated: December Ji-, 2003.

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