|SURFACE TRANSPORTATION BOARD DECISION DOCUMENT|
|WISCONSIN DEPARTMENT OF TRANSPORTATION--PETITION FOR DECLARATORY ORDER--RAIL LINES IN ALMENA, CAMERON, AND RICE LAKE, BARRON COUNTY, WIS.|
|DECISION DETERMINED THAT THE WISCONSIN DEPARTMENT OF TRANSPORTATION (WisDOT) DOES NOT NEED BOARD AUTHORIZATION TO ACQUIRE TWO SEGMENTS OF RAIL LINE IN BARRON COUNTY, WIS. THE DECISION FOUND THAT THE TRANSACTION WOULD NOT CAUSE WisDOT TO BECOME A RAIL CARRIER AND WOULD NOT REQUIRE BOARD AUTHORIZATION UNDER 49 U.S.C. § 10901, OR AN EXEMPTION UNDER 49 U.S.C. § 10502. IN ADDITION, THE DECISION FOUND THAT THE TRANSACTION WOULD COME WITHIN THE PURVIEW OF THE "STATE OF MAINE" LINE OF PRECEDENT AND WOULD THEREFORE NOT BE SUBJECT TO THE BOARD'S AUTHORITY.|
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|Full Text of Decision|
41311 SERVICE DATE – NOVEMBER 10, 2011
SURFACE TRANSPORTATION BOARD
Docket No. FD 35455
WISCONSIN DEPARTMENT OF
TRANSPORTATION—PETITION FOR DECLARATORY ORDER—RAIL LINES IN ALMENA, CAMERON,
LAKE, BARRON COUNTY, WIS.
Wisconsin Department of Transportation (WisDOT) does not need Board
authorization to acquire two segments of rail line in
Decided: November 9, 2011
December 14, 2010, the Wisconsin Department of Transportation (WisDOT)
filed a petition for a declaratory order asking the Board to determine that it
does not have regulatory authority over WisDOT’s proposed acquisition of two
line segments owned by Progressive Rail, Inc. (PGR), d/b/a Wisconsin Northern
our discretionary authority under 49 U.S.C. § 721 and 5 U.S.C.
§ 554(e), we will issue a declaratory order to remove uncertainty in this
matter. As discussed below, we will grant
WisDOT’s request for a Board declaration that the transaction would not cause
WisDOT to become a rail carrier and would not require our authorization under
49 U.S.C. § 10901 (or an exemption under 49 U.S.C.
§ 10502). Based on our
interpretation of the transaction documents, we find that this transaction would
come within the purview of our State of
WisDOT proposes to
purchase two segments of rail line from PGR, a Class III railroad, but states
that the acquisition would not require Board approval under 49 U.S.C.
§ 10901(a)(4) because the common carrier obligation would remain with
PGR. The two segments, which total 23.97
miles in length, are located in
In the transaction considered in the September 2010 Decision, WisDOT planned to purchase the property from PGR through a Purchase and Sale Agreement and a Quitclaim Deed. In addition, WisDOT planned simultaneously to enter into a Land Use Agreement and a Grant Agreement for Rail Service Continuation with the Wisconsin West Rail Transit Authority (WWRTA). Pursuant to those two agreements, WisDOT planned to transfer certain rights to the property to WWRTA. Through an operating agreement, WWRTA planned to contract with PGR for PGR to provide freight rail service and to grant PGR the right to provide such service.
In the September 2010 Decision, the Board found
that, while the Quitclaim Deed purported to reserve for PGR the common carrier
obligation and a freight rail operating easement in the line segments giving
PGR the exclusive right to provide common carrier freight rail service on the
segments, the other agreements treated PGR’s easement as nonexistent or
inconsequential. The Board also found
that the language of the easement was ambiguous and could restrict PGR’s
ability to provide common carrier service and thereby limit the easement. The Board concluded that these two aspects of
the transaction were not consistent with State of
Subsequent to the September 2010 Decision, WisDOT filed a second petition for a declaratory order, which is the subject of this proceeding. Under WisDOT’s modified transaction, WisDOT would, as in the previously proposed transaction, purchase the property from PGR through a Purchase and Sale Agreement and a Quitclaim Deed, which would reserve an easement for PGR to provide common carrier service. Also as in the previous transaction, WisDOT would enter into a Land Use Agreement and a Grant Agreement for Rail Service Continuation with WWRTA.  Under an operating agreement (Operating Agreement), WWRTA would contract with PGR for PGR to provide service. However, the language in the agreements and the easement has been revised in response to the September 2010 Decision.
WisDOT argues that the easement and the agreements, as revised, comply with the September 2010 Decision and with the terms and conditions of State of Maine and its progeny, including previous cases involving WisDOT’s acquisition of rail lines. As a result, WisDOT claims, the conveyance of the line segments would not constitute the acquisition of a railroad line within the scope of 49 U.S.C. § 10901, and, thus, the transaction would not require the Board’s regulatory authorization.
DISCUSSION AND CONCLUSIONS
The acquisition of an active rail line and the common carrier obligation that goes with it ordinarily require Board approval. Where the acquiring entity is a noncarrier, the standard for approval is set out in 49 U.S.C. § 10901. However, State of Maine and its progeny hold that the sale of the physical assets of a rail line by a carrier to a state or other public agency does not constitute the sale of a railroad line within the meaning of § 10901 when the selling carrier: (1) retains a permanent, exclusive freight rail operating easement giving it the right and common carrier obligation to provide freight rail service on the line; and (2) has sufficient control over the line to carry out its common carrier operations. When the seller retains the common carrier obligation and control over freight rail service, our precedent holds that ownership of the railroad line remains with the selling carrier for purposes of § 10901(a)(4). For a transaction to fall within that precedent, however, the terms of the sale must protect the selling carrier from undue interference by the purchaser with the provision of common carrier freight rail service. Mass. Dep’t. of Transp.—Acquis. Exemption—Certain Assets of CSX Transp., FD 35312, slip op. at 5 (STB served May 3, 2010), aff'd sub nom. Bhd. of R.R. Signalmen v. STB, 638 F.3d 807 (D.C. Cir. 2011). Therefore, in determining whether WisDOT would become a rail carrier if the transaction were completed, the Board will look to whether PGR would obtain a permanent, exclusive freight easement and would have sufficient interest in and control over the line to permit it to carry out its common carrier obligation.
In the September 2010 Decision, the Board expressed concerns that the transaction proposed there was deficient in two respects: (1) the easement retained by PGR was ambiguous and did not contain the permanent, exclusive freight rail operating easement language that State of Maine requires; and (2) the accompanying transaction agreements failed to demonstrate that WisDOT and WWRTA would not be able to unreasonably interfere with PGR’s ability to operate.
The revised agreements and easement submitted by the parties address the Board’s concerns. The parties’ agreements now provide that PGR will retain a permanent, exclusive freight rail operating easement over the line segments in order to carry out its common carrier obligation. The parties have removed the easement language that the Board found to be ambiguous in the September 2010 Decision. PGR would not transfer its common carrier obligation to WisDOT or WWRTA, and neither WisDOT nor WWRTA would hold itself out as a common carrier performing freight rail service. We also find that the agreements, as revised, would not give WisDOT or WWRTA the ability to interfere unduly with PGR’s ability to carry out its common carrier obligation. The Operating Agreement now expressly recognizes that PGR “may not terminate service until it obtains authority from the STB.” The parties have modified the Operating Agreement to state that upon termination for default, PGR “shall immediately seek authorization from the [Board] to discontinue service.” In addition, the Operating Agreement now states that Board approval will be required before termination can be effective, as opposed to the operating agreement considered in the September 2010 Decision, which merely stated that Board approval may be required for termination to be effective.
agreements, taken as a whole, are not impediments to the continuation of common
carrier service by the operator. We
conclude that the transaction comports with State of
The Operating Agreement has a number of provisions that appear to limit its term. It contains an initial 20-year term that may be renewed for successive 20-year terms. In addition, article 7 sets forth the grounds for termination of the Operating Agreement for default. The breach of any material provision of the Operating Agreement becomes an event of default if not cured after reasonable notice. If a non-defaulting party declares that the other party is in default, the non-defaulting party may terminate the Operating Agreement. If WWRTA were to terminate the Operating Agreement for an alleged default by PGR, then PGR’s “rights as a lessee . . . and its lease and license to use the Land and Improved Property shall cease.”
The Operating Agreement also states that it would terminate if WWRTA were to lose its right to the property:
The right of [WWRTA] to the continued use of the Land and Improved Property is subject to termination in the event of default or certain happenings with a final termination at the end of the term of the Land Use Agreement and Grant Agreement between WisDOT and [WWRTA]. It is a condition of this Agreement, that in the event [WWRTA] loses its right to possession or use of any of the Land or Improved Property because of conditions imposed by WisDOT or because of future failures or inability of [WWRTA] to meet all the requirements for holding and retaining the Land and Improved Property, then this Agreement terminates and ceases, and no liability attaches to [WWRTA] for such termination, provided that [WWRTA] has fulfilled its obligation herein to offer Operator an opportunity to cure any such default.
The Operating Agreement also contains a section addressing PGR’s obligations if it fails to provide freight service as defined in the Operating Agreement. That section requires PGR to return possession of any line segment or section of any line segment on which PGR has failed to provide service to WWRTA. Finally, the Operating Agreement provides that the parties agree to submit to final and conclusive arbitration of disputes regarding the agreement and the parties’ performance under the agreement.
We find that in light of PRG’s permanent freight easement, these default, term, termination, transfer, and arbitration provisions cannot be interpreted or enforced in a way that would affect PGR’s common carrier service. The easement preserves PGR’s common carrier rights and obligations as to the line segments unless and until the Board approves a transfer of the easement to another carrier or approves discontinuance of PGR’s service. Thus, for example, if the Operating Agreement were to terminate because PGR were found to be in default, service by PGR could not end until another carrier is put into place with Board approval or until abandonment or discontinuance authorization is obtained.
Based on this finding and the record in this case, we find that nothing in the transaction would affect the continuing validity of PGR’s permanent, exclusive freight easement, as provided in the deed, or would otherwise unduly interfere with PGR’s ability to fulfill its common carrier obligation. Therefore, the proposed transaction is consistent with State of Maine and the proposed acquisition of the two line segments by WisDOT would not constitute the acquisition of a railroad line under 49 U.S.C. § 10901(a)(4) or cause WisDOT to become a rail carrier. Under these circumstances, we declare that the proposed transaction does not require Board authorization under 49 U.S.C. § 10901.
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
It is ordered:
1. WisDOT’s petition for declaratory order is granted as discussed above.
2. This decision will be effective on its service date.
By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Mulvey.
 The digest constitutes no part of the decision of the Board but has been prepared for the convenience of the reader. It may not be cited to or relied upon as precedent. See Policy Statement on Plain Language Digests in Decisions, EP 696 (STB served Sept. 2, 2010).
 On August 9, 2011, Wisconsin Governor Scott Walker submitted a letter in support of WisDOT’s petition, explaining the economic benefits of the acquisition. On August 31, 2011, Wisconsin State Senator Bob Jauch also submitted a letter supporting the petition.
 According to WisDOT, WWRTA is a public entity and consortium of interested Wisconsin counties created under Wisconsin law, in part, to oversee the preservation of rail service on certain rail lines acquired by the State of Wisconsin.
 The Purchase and Sale Agreement, Land Use Agreement, Operating Agreement, and Grant Agreement for Rail Service Continuation are collectively referred to as “the agreements.”
 WisDOT Pet., Attach. 4, § 7.1(a).
 WisDOT Pet., Attach. 4, § 7.8.
 WisDOT Pet., Attach. 4, § 7.5.
 The Board will consider the public interest in any discontinuance proceeding, not just the parties’ agreements.
 WisDOT Pet., Attach. 4, § 2.1(b).
 WisDOT Pet., Attach. 4, § 2.1(c).
 WisDOT Pet., Attach. 4, §§ 7.1, 7.3
 WisDOT Pet., Attach. 4, § 7.2.
 WisDOT Pet., Attach. 4, § 7.4.
 WisDOT Pet., Attach. 4, § 13.12(a).
 WisDOT Pet., Attach. 4, § 7.10(c).
 WisDOT Pet., Attach. 4, § 13.14.