Free Motion for Summary Judgment - District Court of Federal Claims - federal

Case 1:07-cv-00271-RHH

Document 56-7

Filed 05/15/2008

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37728 DO

SERVICE DATE - FEBRUARY 14,2007

SURF ACE TRANSPORTATION BOARD

DECISION

STB Docket No. AB-I081X

SAN PEDRO RAILROAD OPERATING COMPANY, LLC-ABANDONMENT EXEMPTION-IN COCHISE COUNTY, AZ

Decided: February 12,2007
By decision served February 3, 2006, the Board, under 49 U.S.C. 10502, exempted from the prior approval requirements of 49 U.S.C. i 0903 the abandonment by San Pedro Railroad Operating Company, LLC (SPROC) of approximately 76.2 miles of railroad line in Cochise County, AZ, as follows: (1) the Bisbee Branch, between
milepost 1085.0 at Bisbee Junction and milepost 1090.6 atBisbee, a distance of

5.6 miles; and (2) the Douglas Branch (a) between milepost 1097.3 near Paul Spur and milepost 1106.5 near Douglas, a distance of9.2 miles, (b) between milepost 1055.8 near Paul Spur, a distance of 41.5 miles, and (c) between Charleston and milepost 1097.3 near milepost 1040.15 near Curtiss and milepost 1055.8 near Charleston, a distance of 19.9 miles. The exemption was scheduled to become effective on March 5, 2006, unless an offer of financial assistance (OF A) was filed on or before February 13, 2006.

On February 13, 2006, Sonora-Arizona International LLC (Sonora) timely fied an OFA under 49 U.S.C. 10904 and 49 CFR 1152.27(c) to purchase the line. By decision served on February 17, 2006, the Board, by the Director of the Office of Proceedings, found Sonora to be financially responsible and postponed the effective date of the exemption to permit the OFA process to proceed. Subsequently, on March 17,2006, Sonora fied a request that the Board set the terms and conditions for the sale of this line. The Board did so in a decision served on April 13, 2006. On April 24, 2006, Sonora fied notice that it accepted the Board's terms and conditions. The Board approved the sale and dismissed the petition for exemption, effective on the date the sale was
consummated, in a decision served on May 3, 2006.

its OFA in On july 12,2006, Sonora fied a notice indicating its withdrawal of this proceeding. On July 13,2006, SPROC fied a letter requesting that the Board vacate the May 3 decision authorizing the sale and authorize SPROC to abandon this line. On July 20, 2006, SPROC fied a letter indicating its wilingness to enter into trail use negotiations previously requested by the Trut for Public Land (the Trust) under the By a decision served on National Trails System Act, 16 U.S.C. 1247(d) (Trails Act). July 26, 2006, the Board reopened the proceeding, granted Sonora permission to withdraw its OFA, terminated the financial assistance process, and vacated the the February 17,2006 decision to the extent it postponed the effective date of

Def. Exhibit E

Case 1:07-cv-00271-RHH

Document 56-7

Filed 05/15/2008

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STB Docket No. AB-l 08 1 X

abandonment exemption. In the same decision, the Board also imposed a public use condition and issued a notice of interim trail use (NITU) for the subject line under the Trails Act, authorizing the Trust to negotiate an interim trail use/rail banking agreement with SPROC until January 22, 2007.
the NITU negotiating period. The Trust states that it and SPROC are in the process of completing the subject right-ofthe portions of negotiations on an option for the Trust's purchase of way owned by SPROC in the Douglas Branch as follows: (a) between milepost 1040.15 near Curtiss and milepost 1055.8 near Charleston, and (b) between milepost 1055.8 near the rail line with Charleston and approximately milepost 1074.3 at the intersection of State Highway 92 (subject right-of-way). The Trust states that additional time is needed for the parties to negotiate an option agreement for the property in the subject right-ofway.
On January 22,2007, the Trust fied a request for a 30-day extension of

the railroad line designated under the original abandonment and NITU filing described as: (I) the Bisbee Branch, between milepost 1085.0 at Bisbee Junction and milepost 1090.6 the Douglas Branch, specifically (a) between milepost at Bisbee, and (2) portions of 1097.3 near Paul Spur and milepost 1106.5 near Douglas, and (b) between approximately milepost 1074.3 at the intersection with State Highway 92 andmilepost 1097.3 near Paul Spur. According to the Trust, SPROC has indicated that it desires to remove these the right-of-way from continued trail use negotiations. portions of
According to the Trust, the subject right-of-way will not include portions of

the Trust's extension request and consented to the extension for those portions of the property in the subject right-of-way identified by the Trust.
In a letter filed January 25, 2007, SPROC acknowledged receipt of

On January 29, 2007, SPROC fied a letter stating that it had consummated the abandonment ofthe line between: (1) milepost 1084.0 and milepost 1097.3 at Paul Spur, (2) milepost 1097.3 at Paul Spur and milepost 1106.5 near Douglas, and (3) milepost i
1085.0 at Bisbee Junction and milepost 1090.6 at Bisbee.

Where, as here, the carrier has not consummated the abandonment at the end of the previously imposed negotiating period and has indicated its wilingness to continue negotiations by requesting an extension, the Board retains jurisdiction and the NITU
negotiating period may be extended. Under the circumstances, further extension of

the negotiating period is warranted. See Birt v. STB, 90 F.3d 580, 588-90 (D.C. Cir. 1996);

Grantwood Vilage v. Missouri Pac. R.R. Co., 95 F.3d 654, 659 (8th Cir. 1996). Accordingly, the NITU negotiating period wil be extended to February 21, 2007.

the right-of-way between milepost 1074.3 at the intersection ofthe rail line with State Highway 92 and milepost 1084.0 was not mentioned by SPROC in its January 29 letter.
the segment of

i The status of

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Case 1:07-cv-00271-RHH

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STB Docket No. AB-I081X
the human

This action wil not significantly affect either the quality of

environment or the conservation of energy resources.
It is ordered:

1. Petitioner's request to extend the NITU negotiating period is granted.

2. The NITU negotiating period is extended until February 21, 2007, for the
portion of the line: (a) between milepost 1040.15 near Curtiss

and milepost 1055.8 near

Charleston, and (b) between milepost 1055.8 near Charleston and approximately milepost the rail line with State Highway 92. 1074.3 at the intersection of

3. This decision is effective on the date of service.

By the Board, David M. Konschnik, Director, Offce of Proceedings.

Vernon A. Wiliams Secretary

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