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

Case 1:07-cv-00273-MCW

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Exhibit 4

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34355
EB

SERVICE DATE - LATE RELEASE APRI 2, 2004

SUR ACE TRNSPORTATION BOAR
DECISION AND NOTICE OF INTERIM TRAIL USE OR ABANONMNT
STB Docket No. AB-400 (Sub-No. 3X)

SEMIOLE GULF RAIL WAY, L.P.-ABANONMNT EXEMPIONIN SARSOTA COUNTY, FL
Decided: April 1, 2004
By petition fied on December 15,2003, Seminole Gulf Railway, L.P. (SGLR) seeks an exemption under 49 U.S.c. 10502 from the prior approval requirements of 49 U.S.c. 10903 to abandon a portion of its Venice Branch between milepost SW 892 outside the city limits of the City of

Sarasta FL, and milepost 904.4 near the City of Venice, FL, a distace of approximately 12.43

miles, in Sarasota County, FL (the line). The line includes a "wye" and stb at approxiately milepost SW 904.2 and side trcks. Notice of the fiing was served and published in the Federal Register on Januar 2, 2004 (69 FR 123). A request for issuance of a notice of interi trail use (NTU and imposition of a public use condition was filed by Sarasota County, FL (the County). i The exemption
will be granted subject to environmental, public use, tril use, and stdad employee protective conditions.

BACKGROUN
SGLR purchased the assets comprising the line from CSX Transporttion, Inc. (CSXl) in 1987 and currently leaes the underlying propert from CSXT. SGLR acquired a common carrer
obligaton when it purchas the line.

According to SGLR, there has been no trffc on the line since March 14, 2002, and there have been no rail movements over the las thee miles of the line for over 10 yeas. Durig 2002, SGLR delivered 20 ca of plywoo and lumber to Kimal Lumber (Kimal) at a tea track located on the line.
These commodities were then trans

loaded to trcks. According to petitioner, Kimal now receives car

from SGLR at a team track locaton on a different line segment for trnsload to trcks. Theeother

customers previously received service on the line but none since May 2001. Sheckler Produce
received one caload in 2001 and now receives service at another SGLR team track on a different line.

Ferrelgas of Sarasota received its last car at the end of2000. King Plasic Corpration received 21

i The County stes that its comment should be treated as a petition for recnsideration or
protest. It also assert that it taes no position on the merits of the abandonment. Accordingly, the

County's comment wil simply be considered a request for a NITU and public use condition.

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tí/ "10
cars though May 2001 at the te trck on the line. However, it opened a new plant at a different location and now receives deliveries from SGLR at Fort Ogden on a different line segment Moreover, SGLR assert that the four shippers have been served with copies of this petition, and none has
responded. Petitioner contends that there is little likelihoo of trffc retuing to the line and that there

is interest in developing the right-of-way for tril use. Finally, SGLR sttes that it and CSXT have
granted The Trust for Public Lands an option to acquire the line for conversion to a traiL.

DISCUSSION AND CONCLUSIONS
Under 49 U.S.c. 10903, a rail lire may not be abandoned without the Board's prior approval. Under 49 US.c. 10502, however, the Board must exempt a transaction or service from regulation when it finds that: (l) continued regulation is not necssa to car out the rail trsporttion policy of
49 US.C. 10101; and (2) either (a) the transaction or service is oflimited scope, or (b) regulation is

not necessary to protect shippers from the abuse of market power.
Detailed scrutiny under 49 U.S.c. 10903 is not necessar to car out the rail transporttion

policy. By minizing the adinstive expens of the applicaion procss, an exemption wil reduce

regulatory barers to exit (49 US.c. 10101(7)). An exemption will also foster sound economic
conditions and encoure effcient management by relieving SGLR of the expns of maintaing a lie
no longer generatig trffc and revenue and by allowing SGLR to apply its asts more productively
elsewhere on its system (49 U.S.c. 10101(5) and (9)). Other aspects of

the rail transporttion policy

wil not be adversely affected.

Regulation of the proposed trsaction is not necessa to protect shippers from the abuse of market power becaus all shippers apparently continue to receive similar rail service on other SGLR

lines and there are no prospectsofnew shippers requirg service on the line. Nevertheless, to ensure this that the shippers are informed of the Board's action, SGLR will be required to serve a copy of decision on the shippers with 5 days of the service date and certfy to the Board that it has done so. In light of the market power fiding, the Board need not determine whether the proposed abandonment is of limite scpe.
Under 49 US.c. 10502(g), the Board may not use its exemption authority to relieve a carer of its statutory obligation to protet the interest of its employees. Accrdingly, as a condition to
grting ths exemption, the Boardwil impose the employee protecive conditions set fort in Oregon

Short Line R. Co.-Abandonment-Goshen, 360 I.C.c. 91 (1979).
. SGLR has submitt an environmental report with its petition and has notified the appropriate
Federal, stte, and locl agencies of

the opportty to submit inormation conceming the environmental

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impacts of the proposed abandonment. See 49 CFR II 05 .11. The Board's Section of Environmental
Analysis (SEA) has exained the environmental report verified the da it

contains, and analyz the

probable effects of the propose action on the quality of the human environment. SEA served an environmental assessment (EA) on Februar l3, 2004, and requested comments by March l5, 2004.
In the EA, SEA notes that the National Geodetic Survey (NGS) has identified 17 geodetic station markers that may be affected by the proposed abandonment. Accordingly, SEA recommends that SGLR provide NGS with at least 90 days' notice prior to intiation of any salvage operations so that plans can be made for the reloction of the geodetic sttion markers.

No comments to the EA were fied. Therefore, the condition recommended by SEA in the EA
wil be impose. The propose abandonment, as conditioned, wil not significantly affect either the quality of the human environment or the conservation of energy resoures.

On Janua 20, 2004, the County filed a request for interi tril use/rail bang urider the National Trails Systm Act, 16 U.S.c. 1247(d) (Trails Act). The County submitted a statement of
wilingness to assue fiancial respnsibility for the management of: for any legal liability arsing out of

the trfer or use of (uness the usr is imune frm liability, in which ca it nee only indemnfy the railroad againt any potential liabilit), and for payment of any and all taes that may be levied or assessed against, the right-of-way. The County acknowledged that the use ofthe right-of-way for trail
puroses is subject to the user's continuing to meet its respnsibilities and is subject to possible futue

reconstrction and reactivation for rail service, as required at 49 CFR 1152.29. SGLR has indicated that it is willig to negotiate for interi tril use. Because the County's request complies with the requirements of 49 CFR 1152.29, and SGLR is wiling to enter into negotiations, a NITU wil be issued as requested. The paries may negotiate an ageement durg the 180-day period prescribed below. If an agrment is executed, no furter Board action is necessar. If no agreement is reached within 180
days, SGLR may fully abandon the line, subject to the conditions impose below. See 49 CFR
1152.29(d)(l). Use of

the right-of-way for tril purposes is subject to restoration for railroad

purpses.
. SEA has indicated in its EA that the right-of-way may be suitale for other public us following
abandonment. As noted above, the County has also requested that a 180-day public use condition be imposed precluding SGLR from: (1) disposing of than the tracks, ties, and signal the corrdor, other

equipment, except for public us on reaonable terms; and (2) removing or destoying potential trilrelated stctues such as bridges, trestles, culvert, and tunnels. The County submits that this corrdor

would make an excellent recreational tril and conversion ofthe propert to tril use is in accordance with local plans, and the stctures are valuable for recreational trils. The County sttes that the 180-

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day period is neeed to assemble or review title and environmental information and to begin

negotiations with SGLR.
Persons who fie under the Trails Act may also file for public use under 49 U.S.c. 10905. See

Way as Trails, 2 I.C.C.2d 591, 609 (1986) (Trails). When the need for both conditions is estblished, it is the Board's policy to impose them concurrently, subject to the execution of a trail use agreement. The County has met the public use criteria prescribed at 49 CFR ll52.28(a)(2) by specifying: (1) the condition sought; (2) the public importce ofthe condition; time for which the condition would be effective; and (4) justification for the period of (3) the period of
Rail AbandonmentsUse of Rights-of

time request. Accrdingly, a 180-day public use condition wil be imposed, commencing from the

effective date of this decision and riotice, to enable any State or local governent or other interested person to negotiate the acquisition of the line for public use. If a tril use ageement is reached on a
portion of

the 180-dy period to permit public use negotiations. Also, a public use condition is not imposed for the
the right-of-way, SGLR must keep the remaing right-of-way intact for the remainder of

benefit of anyone potential purchaser. Rather, it provides an opportnity for any interested person to
acquire the right-of-way that has ben found suitable for public purposes, including trail use. Therefore, with respet to the public use condition, SGLR is not required to deal exclusively with the County, but

may engage in negotiations with other interested persons.
The paries should note that operation of the trail use and public use procures could be delayed, or even foreclosed, by the financial assistace process under 49 U.S.C. 10904. As stated in Tras, 2 i.C.C.2d at 608, offers offinancial assistnce (OFA) to acquire rail lines for continued rail

servce or to subsidiz rail operations tae priority over interi tril use/rail bang and public use.
this decision and notice will be postpned beyond the effective date indicated here. See 49 CFR 1152.27(e)(2). In addition, the effective date may be furter postoned at later stes in the OFA process. See 49 CFR the line is sold under the OFA procedures, the petition for abandonment 1152.27(f). Finally, if exemption will be dismisse ànd tril us and public use precluded. Alternatvely, if a sale under the OF A procedures does not occur, the trail use and public use processes may proceed.
Accrdingly, if an OFA is tiely filed under 49 CFR 1152.27(c)(l), the effective date of

It is ordered:
1. Under 49 U.S.c. 10502, the Board exempts from the prior approval requirements of 49

U.S.c. 10903 the abandonment ofthe above-described line, subject to the employee protective
conditions in Oregon Short Line R. Co.-Abandonment-Goshen, 360 I.c.c. 91 (1979), and the conditions that SGLR shall: (l) provide NGS with at lea 90 days' notice prior to initiation of any
salvage operations so that plans can be made for the reloction of the geoetic station markers;
(2) leave intact all of the right-of-way, including bridges, trestles, culvert, and tunnels

(but not trck,

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this decision and notice, to enable any State or local governent agency or any other interested person to negotiate the the line for public use; and (3) comply with the interi tril use/rail bankg procures set acuisition of
ties, and signal equipment) for aperiod of 180 days from the effective date of

fort below.

this decision and notice on all shippers within 5 days after the service date of this decision and notice and certify to the Board that it has done so.
2. SGLR is directed to serve a copy of

3. If an interi trl use/rail bang agrement is reached, it must requir the tril user to
assume, for the term of out of the trferor us of

the ageement, full rensibility for the management of: any legal liability arsing (unes the us is imune from liability, in which ca it nee only indemnfy

the railroad against any potential liability), and for the payment of any and all taes that may be levied or
assessed against the right-of-way.

4. Interi tril userail bang is subject to the future restoration of rail service and to the

user's contiuing to meet the fiancial obligations for the right-of-way.
5. Ifinteri trl us is implemente and subseuently the user intends must send the Board a copy of

to terminate tril use, it this decision and notice and request that it be vacated on a specified

date.
6. If an agreement for interi trail use/rail bang is reached by the 180t day

after service of

ths decision and notice, interi tril us may be implemente. If no agreement is reached by that time,

SGLR may fully abandon the line, provided the conditions imposed above are met.

7. An OFA under 49 CFR 1152.27(c)(I) to allow rail service to continue must be received by
the railroad and the Board by April 12, 2004, subject to time' extensions authoried under 49 CFR

1152.27(c)(1)(i)(C). The offeror mus comply with 49 U.S.c. 10904 and 49 CFR 1152.27(c)(1). Each OFA must be acmpanied by the fiing fee, which currently is set at $1,100. See 49 CFR 1002.2(f)(25).
8. OF As and related correspondence to the Board must refer to this proceeding. The following notaion must be ty in bold face on the lower left-hand comer of the envelope: "Offce of Proceedings, AB-OF A."

9. Provided no OFA has been recived this exemption wil be effective on May 2,2004.
Petitions to sty must be filed by April 19,2004, and petitions to reopen must be filed by April

27,

2004.
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10. Pursuant to the provisions of 49 CFR 1152.29( e )(2), SGLR shall file a notice of fully abandoned the line. If consummation has not ben effecte by SGLR's filing of a notice of consumaton by April 2, 2005, and there are no legal or regulatory barers to consummation, the authority to abandon wil automatically expire. If a legal or regulatory barer to consuation exists at the end of the I-yea period, the notice of consummation must be filed not later than 60 days after satisfaction, expirtion or
consumation with the Board to signfy that it has exercised the authority grted and

removal of the legal or regulatory barer.

By the Board, Chairan Nober.

Vernon A. Wiliam

Secretar

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