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SJC-12002

ELAINE K. MURRAY & another1 vs. DEPARTMENT OF CONSERVATION AND
                          RECREATION.



            Suffolk.    April 5, 2016. - August 4, 2016.

 Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                             Hines, JJ.2


Land Court, Jurisdiction. Jurisdiction, Land Court.     Railroad.
     Easement. Real Property, Easement.



     Civil action commenced in the Land Court Department on
September 19, 2011.

     The case was heard by Gordon H. Piper, J., on motions for
summary judgment.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     David A. Murray (Peter M. Schilling with him) for the
plaintiffs.
     Frances S. Cohen, Assistant Attorney General, for the
defendant.



     1
         Ruth Levens.
     2
       Justice Duffly participated in the deliberation on this
case prior to her retirement.
                                                                    2


     SPINA, J.   The plaintiffs appeal from a judgment of the

Land Court dismissing without prejudice their action to quiet

title under G. L. c. 240, §§ 6-10, for lack of subject matter

jurisdiction.3   The thrust of their action is that a railroad

easement formerly owned by the Pennsylvania Central

Transportation Co. (Penn Central) across portions of their lands

was abandoned when the United States Railway Association (USRA),

acting pursuant to the Regional Rail Reorganization Act of 1973,

devised a final system plan which designated certain profitable

rail lines that were to be transferred from eight bankrupt

regional rail carriers in the northeast and the midwest regions

of the country to the Consolidated Rail Corporation (Conrail),

but not the rail line over the easement that encumbered their

lands.   The plaintiffs contended that the railroad easement over

their lands was abandoned by virtue of its nondesignation for

transfer to Conrail in the final system plan.   The judge in the

Land Court disagreed and concluded that a certificate of

abandonment from the Federal Surface Transportation Board (STB)

was necessary before a State court could exercise jurisdiction

to determine State law claims regarding easements, and that

STB's jurisdiction was both exclusive and primary.    The




     3
       The judgment followed a hearing on cross motions for
summary judgment.
                                                                       3


plaintiffs appealed, and we transferred the case to this court

on our own motion.     We affirm the judgment of the Land Court.

    1.     Facts.   The following facts are undisputed.   Boston and

Worcester Railroad (B&W) was created in 1831.    In 1847 it filed

a "Plan of Location of the Newton Railroad" with the Middlesex

County commissioners.    The easement over the plaintiffs'

properties appears as part of the proposed railroad line

depicted on the 1847 plan of location.     The relevant part of the

line was known as the Newton Lower Falls Branch (branch line).

Penn Central succeeded to the B&W interest in the branch line.

In 1970, Penn Central filed for bankruptcy.

    The Regional Rail Reorganization Act of 1973, Pub. L. 93-

236, 87 Stat. 985 (1973 Act), was enacted by Congress on January

2, 1974 and is codified at 45 U.S.C. §§ 701 et seq. (2012).        The

1973 Act was designed to address the complexities arising from

the bankruptcies of eight regional rail carriers in the

northeast and midwest region of the country, including Penn

Central.   See Regional R.R. Reorganization Act Cases, 419 U.S.

102, 108 (1974) (Regional R.R. Cases).     It created Conrail,

which would be tasked with operating railroads in the region,

and the USRA, which was to develop a plan to determine which

rail lines of the bankrupt railroads would be transferred to

Conrail, and which would not.     The result of USRA's charge was

the July 26, 1975, final system plan for restructuring railroads
                                                                   4


in the northeast and midwest.   The final system plan indicates

that the branch line in this case was not designated to be

transferred to Conrail.   The final system plan also indicates

that the branch line had been last used in May, 1972.

     An application to abandon the branch line under § 304(f) of

the 1973 Act had been filed with USRA and was pending as of June

26, 1975, the date of the final system plan.   A search of

Federal records could not definitively establish whether a

certificate of abandonment had ever issued.4   In 1976, Penn

Central (or its successor or agent) began to remove the rails

from the ground of the branch line.   By deed dated November 1,

1982, and recorded with the Middlesex County South registry of

deeds, Penn Central granted and released to the Commonwealth all

its interest in the branch line.


     4
       That application was specifically mentioned in the final
system plan in a table comprising a group of § 304(f)
applications that had neither been granted nor denied. The
table included a comment that "[t]he disposition of those
applications not approved by [USRA] will follow the line-
specific dispositions (contained in section A of this appendix)
in accordance with section 304(a) of the [1973] Act. As
provided in this section, upon expiration of the 30-day period
after the effective date of the Final System Plan, the Trustees
of the applicant railroads in reorganization may give notice to
discontinue service or to abandon the property unless someone
offers a rail service continuation subsidy under section
304(c)(2)(A) or offers to purchase the property under section
304(d). If no subsidy or purchase offer is made and the
requirements of section 304(a) are fulfilled, the Trustees will
be free to discontinue service 60 days after the effective date
of notice and will be free to abandon the property 120 days
after the effective date of discontinuance."
                                                                   5


     2.   Discussion.   Generally, before any rail line may be

abandoned, a certificate of abandonment must be obtained from

the appropriate Federal agency.5   From 1920 until 1995, that

agency was the Interstate Commerce Commission (ICC).    See

Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S.

311, 319-320 (1981), and authorities cited (providing statutory

history).   See also Hayfield N. R.R. v. Chicago & N.W. Transp.

Co., 467 U.S. 622, 627-629 (1984), and authorities cited (same).

This authority of the ICC to regulate the abandonment of rail

lines was "exclusive and plenary."    See Chicago & N.W. Transp.

Co. v. Kalo Brick & Tile Co., supra at 321.    In 1995, Congress

abolished the ICC and transferred its authority to regulate the

abandonment of rail lines to the STB.   See Interstate Commerce

Commission Termination Act of 1995, Pub. L. 104-88, 109 Stat.

803; 49 U.S.C. §§ 702, 10501, 10903 (2012).    Title 49 U.S.C.

expressly confers exclusive authority to regulate the

abandonment of rail lines, with certain exceptions not relevant

to this case, upon the STB.    See 49 U.S.C. §§ 10501, 10903.

There is no dispute here that Penn Central did not obtain a

certificate of abandonment of the branch line from the ICC, and

that the STB has not issued a certificate of abandonment for the

branch line.


     5
       Abandonment includes abandonment of easements. See
Presault v. Interstate Commerce Comm'n, 494 U.S. 1, 5, 8 (1990).
                                                                        6


    An important exception to the exclusive authority of the

ICC to regulate rail abandonments developed when, in the early

1970s, "[a] rail transportation crisis seriously threatening the

national welfare was precipitated when eight major railroads in

the northeast and midwest region of the country entered

reorganization proceedings under § 77 of the Bankruptcy Act, 11

U.S.C. § 205."   Regional R.R. Cases, 419 U.S. at 108.    Penn

Central was one of those railroads.     "After interim measures

proved to be insufficient, Congress concluded that solution of

the crisis required reorganization of the railroads, stripped of

excess facilities, into a single, viable system operated by a

private, for-profit corporation.     Since such a system cannot be

created under § 77 rail reorganization law, and since

significant [F]ederal financing would be necessary to make such

a plan workable, Congress supplemented § 77 with the [1973]

Act. . ." (footnote omitted).    Regional R.R. Cases, 419 U.S. at

108-109.   Under the 1973 Act the USRA was "established as a new

government . . . corporation charged with preparing a 'Final

System Plan' for restructuring the railroads in reorganization

into a 'financially self-sustaining rail service system.'"        Id.

at 111, citing 1973 Act, § 206(a), (a)(1); 45 U.S.C. § 716(a),

(a)(1) (1970 ed. & Supp. III).     The deadline for submission of a

proposed final system plan to Congress was 570 days after

January 2, 1974 (by July 26, 1975), the effective date of the
                                                                       7


1973 Act.   Regional R.R. Cases, supra at 112-113, citing 1973

Act §§ 207(c), (d), 208(a); 45 U.S.C. §§ 717(c), (d), 718(a)

(1970 ed. & Supp. III).   The final system plan designated those

railroad assets owned by the railroads in reorganization subject

to the 1973 Act that were to be transferred to Conrail, the

private, for-profit corporation that also was created by the

1973 Act to succeed the bankrupt railroads in the operation of a

single rail company.   Regional R.R. Cases, supra at 111, citing

1973 Act § 301(a); 45 U.S.C. § 741(a) (1970 ed. & Supp. III).

    Of significance to this appeal, the 1973 Act authorized the

discontinuance of rail service and abandonment of rail

properties (including easements) conformably with the 1973 Act,

"notwithstanding any provision of the Interstate Commerce Act

(49 U.S.C. [§§] 1 et seq.), or the constitution or law of any

State or the decision of any court or administrative agency of

the United States or of any State."   1973 Act § 304(c).     Section

304(f) of the 1973 Act states:

    "After the date of enactment of this Act, no railroad in
    reorganization may discontinue service or abandon any line
    of railroad other than in accordance with the provisions of
    this Act, unless it is authorized to do so by the [USRA]."

    The plaintiffs contend that once the final system plan

became effective, and the branch line was not designated for

transfer to Conrail, Penn Central was free to abandon service

and dispose of the branch line as it chose.   They rely on
                                                                   8


Regional R.R. Cases, where the Supreme Court said "railroads in

reorganization subject to the [1973] Act are free to abandon

service and dispose as they wish of any rail properties not

designated for transfer under the Final System Plan" (emphasis

added).   Regional R.R. Cases, 419 U.S. at 116-117, citing 1973

Act § 304(a)-(c); 45 U.S.C. § 744(a)-(c) (1970 ed. & Supp. III).

What the plaintiffs ignore is that the Supreme Court's use of

the word "free" was qualified by the citation to § 304(a)-(c) of

the 1973 Act.

    Section 304(a) describes a procedure for discontinuance of

service on lines not designated for transfer to Conrail under

the final system plan.   Although USRA authorization was not

required, trustees of a railroad in reorganization desiring to

discontinue rail service not designated for transfer under the

final system plan were required to give notice in writing, not

sooner than thirty days following the effective date of the

final system plan, of intent to discontinue such rail service on

a date certain not less than sixty days after the date of such

notice.   See 1973 Act § 304(a)(A)-(B).   The 1973 Act required

such notice be "sent by certified mail to the Governor and State

transportation agencies of each State and to the government of

each political subdivision of each State in which such rail

properties [were] located and to each shipper who [had] used
                                                                       9


such rail service during the twelve months preceding the notice.6

1973 Act § 304(a)(C).    There is no evidence in the record before

us that Penn Central gave the requisite written notice.

     Moreover, under § 304(b) of the 1973 Act, rail properties

over which rail service had been discontinued under § 304(a)

could not be abandoned sooner than 120 days after the effective

date of such discontinuance, except for reasons not relevant to

this case.    After the passage of 120 days, the trustees could

abandon such rail properties by giving thirty days' written

notice to those persons and entities identified in § 304(a)(C).

See 1973 Act § 304(b).    As applicable to this case, § 304(c) of

the 1973 Act states:     "[n]o rail service may be discontinued and

no rail properties may be abandoned pursuant to this section

. . . after [two] years from the effective date of the final

system plan."    There is no evidence in the record before us that

Penn Central gave the requisite notice under § 304(b) for

abandonment of the branch line.

     As provided in § 304(f) of the 1973 Act, abandonment could

be obtained "other than in accordance with the provisions of

[the 1973] Act," that is, other than under § 304(a)-(c), by

obtaining authorization directly from USRA.    There is no

evidence that Penn Central obtained such authorization.      Because

there is no evidence that Penn Central abandoned the branch line

     6
         See note 4, supra.
                                                                 10


at any time, either by obtaining a certificate of abandonment

from the ICC or the STB, or by utilizing the procedures under

the 1973 Act's narrow window of opportunity, the judge correctly

determined that the question of abandonment of the branch line

remains in the exclusive jurisdiction of the Federal government,

and that the Land Court does not have subject matter

jurisdiction over the plaintiffs' action to quiet title.7

                                   Judgment affirmed.




     7
       We need not address the other issues raised by the
plaintiffs, but it does appear that they are not without a
remedy. They may commence an "adverse abandonment" proceeding
before the Surface Transportation Board. See 49 U.S.C.
§ 10903(a) (2012). See Consolidated Rail Corp. v. Interstate
Commerce Comm'n, 29 F.3d 706, 708-710 (D.C. Cir. 1994). In any
event, Congress did not intend for mere nonuse to determine
whether a railroad easement should constitute abandonment and
removal of such easement from the inventory of unused assets
that "remain[] intact for future railroad purposes." Presault
v. Interstate Commerce Comm'n, 494 U.S. 1, 8 (1990), quoting
H.R. Rep. No. 98-28 at 8-9 (1983).
