|SURFACE TRANSPORTATION BOARD DECISION DOCUMENT|
|ALLEGHENY VALLEY RAILROAD COMPANY--PETITION FOR DECLARATORY ORDER|
|DECISION GRANTED A PETITION FOR DECLARATORY ORDER FILED BY THE ALLEGHENY VALLEY RAILROAD COMPANY BY FINDING THAT A RAIL EASEMENT BETWEEN 16TH STREET AND 21ST STREET IN PITTSBURGH, PA REMAINS AN ACTIVE LINE OF RAILROAD.|
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|Full Text of Decision|
39978 SERVICE DATE – JUNE 15, 2010
SURFACE TRANSPORTATION BOARD
Docket No. FD 35239
ALLEGHENY VALLEY RAILROAD COMPANY—PETITION FOR DECLARATORY ORDER
Decided: June 11, 2010
April 23, 2009, Allegheny Valley Railroad Company (AVRC) filed a petition for a
declaratory order, asking that the Board find that a rail easement between
case concerns a rail easement running between
In 1983, Conrail sold a parcel of land in the Strip District to Buncher, but retained the rail easement in question for itself. Buncher and the Pittsburgh Redevelopment Authority had each previously acquired railroad property in the area. The parcel with the easement constituted the last remaining rail property in that area.
Conrail Abandonment in Allegheny County, Pa., AB-167 (Sub-No. 558N) (ICC
served May 18, 1984) (Conrail Abandonment), Conrail sought authority
from our predecessor, the Interstate Commerce Commission (ICC), to abandon 1.46
miles of track, including a portion of the Valley Industrial Track,
pursuant to a Northeast Rail Services Act of 1981 (NERSA) certificate. This authority covered some track in the
Strip District. By the mid-1980’s, the
track running over the easement had been removed and the area paved over
without objection by Conrail. In 1995, pursuant
to a quitclaim deed, AVRC purportedly bought the easement from Conrail as part
of its acquisition of a 22.65-mile line running from downtown
As noted, on April 23, 2009, AVRC filed the instant petition to clarify whether the easement remains active for use as a line of railroad. AVRC requests that the Board issue a declaratory order confirming that (1) the carrier has the full and unrestricted right to provide common carrier rail service over the rail easement, and (2) it may proceed to reconstruct railroad tracks over the easement along with other rail facilities, including passenger platforms.
Buncher filed a reply in opposition to AVRC’s April 23 arguments on June 2, 2009, and AVRC filed a rebuttal on June 11, 2009. Buncher submitted a response to AVRC’s rebuttal on June 25, 2009, and a motion asking that the Board accept its filing. AVRC filed a reply on July 15, 2009. Buncher filed supplemental evidence on August 4, 2009, and attached a motion asking that the Board accept the filing into the record. AVRC filed a reply on August 20, 2009.
Because Buncher had made an argument concerning the “Final System
Plan” (FSP), the
Board ordered the parties to submit additional filings regarding the effect on
this case of the decision of the United States Court of Appeals for the
District of Columbia Circuit in Consolidated Rail Corp. v. STB, 571 F.3d
13 (D.C. Cir. 2009) (Harsimus). That case involved the Board’s jurisdiction
to interpret the FSP or the
government officials have submitted comments in this proceeding. On June 9, 2009, the Honorable Jason Altmire, United States Representative for the 4th District
of Pennsylvania, filed a letter supporting AVRC’s petition
and the institution of commuter rail service into downtown
On January 26, 2010, the Board held an oral argument to further explore the parties’ positions in this proceeding. In a letter dated January 28, 2010, AVRC addressed a question raised at oral argument regarding the existence of a survey of the easement. According to AVRC, Exhibit E of its petition for declaratory order contains a survey of the easement. On February 2, 2010, Buncher filed a reply disagreeing that Exhibit E separately identifies the easement rights within the parcel of land at issue in this proceeding. AVRC filed a rebuttal on February 26, 2010.
POSITIONS OF THE PARTIES
The parties dispute numerous issues regarding whether there is an active easement running over Buncher’s property. These issues include whether there had been 1 or 2 lines of railroad running through the Strip District, and, if 2, whether the easement at issue was subject to the 1984 Conrail NERSA abandonment authority; whether the removal of the track constituted an abandonment; whether the easement at issue involved yard track not subject to agency abandonment authority; and whether the Board has jurisdiction to decide this case in light of the recent court ruling in Harsimus. Below, we highlight the pertinent arguments raised by the parties.
One or 2 Lines of Railroad. AVRC claims that it possesses an active easement over Buncher’s property known as the Valley Industrial Track. Buncher counters that Conrail sought and received abandonment authority for this portion of the Valley Industrial Track in 1984 in Conrail Abandonment, slip op. at 1, which unconditionally granted abandonment authority under NERSA.
contends that the 1984 abandonment certificate did not cover the line in
question. AVRC claims that the
abandonment application and resulting ICC abandonment certificate only covered
the westernmost section of the Valley Industrial Track and included only the trackage and right-of-way that ran along
Buncher disagrees that there were 2 parallel lines of
railroad, both known as the Valley Industrial Track and located in the same
small area bounded by
Effect of Track Removal. Buncher claims that the subsequent removal of track and lack of objection by Conrail to the grading and paving of the property confirmed Conrail’s intent to abandon this portion of its system. Buncher asserts that Conrail’s failure to object constituted abandonment of the railroad line and removed it from the Board’s regulatory regime. Although there is no evidence that Conrail ever filed a letter stating that it had consummated the grant of abandonment authority (a letter the ICC had instructed Conrail to file upon exercising its authority), Buncher states that “Board staff” informed it that the absence of such a letter from the public file does not demonstrate that the letter was not submitted to the agency.
to Buncher, the removal of the track and lack of
objection by Conrail also extinguished, under
concedes in its petition that track on the Buncher
property has been removed and the land paved over, but it claims that agency
precedent holds that such action does not constitute abandonment of the line. AVRC agues that the Board must grant
authority to abandon the line before this easement can revert or be
extinguished. AVRC claims that neither
it nor Conrail sought such authority for the segment in question. Furthermore, the railroad notes that neither
it nor Conrail removed the adjacent Pittsburgh Produce Terminal station from
the Open and Prepay Station List Tariff or sought Pennsylvania Public Utility
Commission approval to abolish the
Track Status. Buncher asserts that AVRC’s July 15 filing provides evidence that the segment in question was not a line of railroad and that the through-route actually ran over a different track. Buncher claims that the track that ran across its property in the easement was yard track excepted from our abandonment regulation under 49 U.S.C. § 10906. Buncher contends that Conrail abandoned this track more than 20 years ago when the track was removed and the entire area paved and graded for non-railroad use without objection from Conrail.
AVRC responds that it has submitted conclusive evidence establishing that, from 1856 to 1983, Conrail and its predecessor companies operated the Allegheny Branch as a main line of railroad through the yard to provide interstate rail service.
Jurisdiction. Buncher asks that we dismiss the proceeding. It claims that the successor to the
Buncher included with both its June 25 filing and August 4 filing a motion asking that the Board accept the respective filings into the record. Buncher justifies its June 25 request by claiming that AVRC’s June 11 filing presents new evidence and arguments. And Buncher justifies its August 4 motion by noting that the material it submitted that day makes for a more complete record. AVRC opposes acceptance of these submissions because they are “replies to replies” and reference matters that Buncher could have argued in its June 2 submission. AVRC asks that, should the Board accept Buncher’s filings, the agency should also accept the railroad’s submissions. We will grant Buncher’s motions and accept all of these filings into the record. Accepting these submissions will not prejudice the parties and will provide a more complete understanding of a complicated situation.
DISCUSSION AND CONCLUSIONS
5 U.S.C. § 554(e) and 49 U.S.C. § 721, the Board may issue a declaratory order
to terminate a controversy or remove uncertainty. The Board has broad discretion in determining
whether to issue a declaratory order. See
Boston & Maine Corp. v. Town of Ayer, 330 F.3d 12, 14 n.2 (1st Cir.
2003); Delegation of Authority—Declaratory Order Proceedings, 5 I.C.C.2d
675 (1989). Because there is uncertainty
that affects both the parties and the citizens of
grant the petition and find that AVRC possesses an active easement over Buncher’s property. As discussed below, we find that there were 2 lines
running through the Strip District and that the line over Buncher’s
property was not the one subject to the 1984 NERSA abandonment
certificate. We do not need to interpret
either the FSP or the conveyance of property to Conrail to reach this
conclusion. Accordingly, we do not find the
Harsimus ruling to be applicable here, and need
not refer any matters in this case to the successor to the
Two Line Question.
AVRC’s witness, provides
a logical explanation of the development of 2 distinct lines of railroad.
He explains that the Allegheny Valley
Railroad completed building a rail line in 1856 between
for the second line of railroad running through that area, Peterson explains
that, in 1899, PRR constructed a single-track line running along
In 1902, a new two-level bridge
known as the
Over time, the PRR developed an extensive structure of yard tracks straddling the original Allegheny Valley Railroad main line. During 1929 and 1930, PRR constructed a greatly expanded produce yard between 11th and 21st Streets. This facility consisted of a number of switching tracks and a number of buildings, including a combined fruit auction and general sales building. This facility supported a produce distribution terminal operation in the area.
the 1970s, the line of railroad along
AVRC’s explanation of the lines’ history is both logical and rational. It is also supported by one of the few unambiguous pieces of evidence in the proceeding, a PRR map from 1919 that AVRC submitted as Exhibit BB in its July 15 filing. This map plainly depicts 2 through routes running through the Produce Terminal Area. Buncher has failed to demonstrate that this map shows otherwise.
as noted above, in 1972, the ICC granted the trustees of the Penn Central
authority to abandon the section of the Allegheny Branch between
Conrail’s 1984 NERSA
Abandonment. We are confident that the line of railroad that
was the subject of the 1984 NERSA abandonment certificate was not the line that
crosses Buncher’s property. Again,
the proposition that it would be irrational for Conrail to seek authority to
abandon a line for which authority to abandon had already been granted supports
the idea that the NERSA abandonment was referring to a different line.
As noted above, the inclusion in the abandonment of the lower level of the
Furthermore, we find Conrail’s actions telling. It had the most information at its disposal. It filed for abandonment authority in 1984 and sold an easement for the historic Allegheny Valley Railroad line (Railroad Street Line) to AVRC in 1995. Clearly, Conrail believed that it had an active interest there to sell. Although it sold the segment pursuant to a quitclaim deed, it did explicitly reference the rail easement in question among the segments it sold to AVRC.
Other Questions. An active easement over Buncher’s property therefore survived the NERSA abandonment. Generally, the only way a line of railroad can be abandoned is by obtaining and then exercising (i.e., consummating) abandonment authority granted by this agency or our predecessor. Because there is no record of such authority being issued to any of the owners of this line, it remains active for use as a line of railroad.
other facts found in the record do not lead us to find otherwise.
Although switching was apparently performed on the line in the late 1970’s,
this activity does not turn a line of railroad into § 10906 excepted
track. In Atchison, Topeka and Santa Fe Railway Co.—Abandonment
Because this track was clearly part of a rail line at one time, we find that it cannot be converted into an exempt spur and the Commission divested of jurisdiction over it solely through the railroad’s unilateral decision to change its use of the track segment over time. To find that this is a spur would be inconsistent with our well-established policy that where a carrier decides to reduce or cease service and/or remove track, the carrier’s common carrier obligation remains until appropriate abandonment authority is obtained.
In sum, neither the fact that switching occurred nor the fact that the track was removed changes the fact that Conrail possessed a line of railroad. It sold this line to AVRC in 1995. Accordingly, AVRC possesses an active easement across Buncher’s property that remains available as a line of railroad on which AVRC can reconstruct the track.
the parties dispute the width of the easement. As noted at the oral
argument, this matter is better settled by a
It is ordered:
1. Buncher’s motions to supplement the record are granted, and Buncher’s submissions and AVRR’s responses are all accepted into the record.
2. AVRR’s petition for declaratory order is granted as discussed above.
3. This decision is effective on its date of service.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Nottingham.
 The Allegheny Valley Railroad and petitioner AVRC are unrelated companies.
abandonment authority included the Valley Industrial Track from its connection
with the Fort Wayne Connecting Track in
 These portions are described as running between milepost 0.3 and milepost 4.7, milepost 2.7 and milepost 13.8, milepost 1.8 and milepost 2.7, and milepost 0.7 and milepost 2.3. Allegheny Valley R.R.—Acquis. & Operation Exemption—Certain Lines of Consolidated Rail Corp., FD 32783 (ICC served Nov. 17, 1995) (Allegheny Acquisition).
 In response to the bankruptcy of several midwestern and northeastern railroad companies, Congress enacted the Regional Rail Reorganization Act of 1973, Pub. L. No. 93-236, 87 Stat. 985 (1974). Pursuant to that Act, the United States Railway Association developed the FSP to designate which lines would be retained in active service (and consequently transferred to Conrail, a government-created successor railroad to the various railroads in reorganization) and which would be allowed to be abandoned. The FSP was submitted to Congress on July 26, 1975 and approved in § 601(e) of the Railroad Revitalization and Regulatory Reform Act of 1976, Pub. L. No. 94-210, 90 Stat. 127 (1976). Buncher had pointed to the FSP, along with other evidence, as support for its position that Conrail Abandonment included the portion of the Valley Industrial Track at issue here.
 In March 1976,
 Buncher argues that this line, now known as the Valley Industrial Track, was formerly known as the Allegheny Secondary and before that was known as the Allegheny Branch. AVRC contends that the Allegheny Secondary, which was the subject of the 1984 abandonment, was not the same line as the Allegheny Branch, which AVRR purportedly acquired.
 According to Buncher, pursuant to the holding in Lucas v. Township of Bethel, 319 F.3d 595 (3d Cir. 2003) involving another NERSA abandonment, the ICC’s jurisdiction over the property ended anyway upon issuance of the abandonment authority without regard to whether Conrail exercised it. AVRC challenges that holding and points out that the 1984 abandonment certificate is a permissive grant of authority and that the record demonstrates that this authority has not been consummated.
 As noted in Union Pacific R.R. Co.—Operation Exemption— In Yolo County, Cal., FD 34252, slip op. at 3-4 (STB served Dec. 5, 2002), in cases governed by 49 U.S.C. § 10906 (formerly 49 U.S.C. § 10907 (1995)), we do not have authority under §§ 10901-10905 and § 10907 over construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching or side tracks. For a discussion of the factors we consider when we address whether a track segment is excepted from our licensing authority by § 10906 or, alternatively, fully subject to the rail licensing provisions of the statute, see, e.g., United Transportation Union-Illinois v. STB, 169 F.3d 474, 477-78 (7th Cir. 1999).
 AVRC states that the Valley Industrial Track that had run over Buncher’s property was formally known as the Allegheny Branch. As set forth above, AVRC argues that the track in question was 1 of 2 lines each known as the Valley Industrial Track.
 See Buncher’s Reply n.5, V.S. Jackovic 2, & Ex. C, June 2, 2009.
 See Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 490 U.S. 311, 311 (1981); Honey Creek R.R.–Petition for Declaratory Order, et al., FD 34869, et al., slip op. at 3 (STB served June 4, 2008); and 49 U.S.C. 10903(a)(1).