267 F.3d 1144 (D.C. Cir. 2001)
Citizens Against Rails-To-Trails, an unincorporated association, et al., Petitionersv.Surface Transportation Board and United States of America, RespondentsUnion Pacific Railroad Company, et al., Intervenors
No. 00-1387
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2001Decided October 26, 2001

[Copyrighted Material Omitted][Copyrighted Material Omitted]
On Petition for Review of an Order of the Surface Transportation Board
James R. Baarda argued the cause for petitioners.  With  him on the briefs was Nels J. Ackerson.
Evelyn G. Kitay, Attorney, Surface Transportation Board,  argued the cause for respondents.  With her on the brief  were Ellen D. Hanson, Deputy General Counsel, and David  J. Lazerwitz, Attorney, U.S. Department of Justice.
Curt A. Fransen, Deputy Attorney General, State of Idaho,  and Howard A. Funke argued the cause for intervenors. With them on the joint brief were Richard A. Allen, Andrea  Ferster, Allan G. Lance, Attorney General, State of Idaho,  Clive J. Strong, Division Chief, J. Michael Hemmer, Carolyn  F. Corwin, James V. Dolan and Lawrence E. Wzorek. Charles H. Montange entered an appearance.
Before:  Henderson, Randolph and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge:


1
A coalition of Idaho land owners  denominated Citizens Against Rails-to-Trails ("CART") petition for review of the decision of the Surface Transportation  Board in Union Pacific Railroad Company--Abandonment--Wallace Branch, ID, STB Docket No. AB-33 (June  26, 2000).  In that decision the Board authorized Union  Pacific to salvage 71.5 miles of its Wallace Branch rail line in  Idaho, subject to four environmental conditions, and also  authorized the right-of-way to be used as a trail pursuant to  the National Trails System Act, 16 U.S.C. § 1247(d) (2000)  ("Trails Act").  CART challenges only the authorization of  interim trail use.1  It contends that the Board was required  to assess the environmental impacts of trail use and erred in  not disallowing trail use because the right-of-way is contaminated.  The Board determined that the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4343 (1982),  does not apply to the Trails Act, and that the Trails Act does  not otherwise require an environmental assessment prior to  issuance of a certificate for interim trail use.  Because CART  fails to show that these determinations were contrary to law  or unreasonable, we deny the petition.

I.

2
This case is before the court following the Surface Transportation Board's decision on remand from this court in State  of Idaho By and Through Idaho Pub. Utilities Comm'n v.  I.C.C., 35 F.3d 585, 599 (D.C. Cir. 1994).  In that case, this  court affirmed the Interstate Commerce Commission's decision to permit immediate discontinuance of rail operations on  the Wallace Branch rail line, but remanded the Commission's  conditional authorization of salvage.  Id. at 599.  After further proceedings, the Surface Transportation Board, as successor to the Commission,2 through its Section of Environmental Analysis, issued for public review and comment a  draft supplemental environmental assessment.  Upon review  of the Section's final assessment, the Board concluded that if  salvage is conducted according to the plans worked out by the  railroad and other federal agencies, and if four new environmental mitigation conditions were implemented, then the  railroad's salvage proposal would not have significant adverse  environmental impacts.


3
The Board also issued a certificate of interim trail use  ("CITU") permitting interim trail use and rail banking of the  right-of-way because the State of Idaho and the Coeur d'Alene Tribe had submitted the requisite statement of willingness to assume full responsibility for the property and the  railroad had indicated its willingness to negotiate with them. The Board rejected CART's argument that the issuance of a  Trails Act authorization required the preparation of environmental documentation under NEPA.  The Board took the  position that questions relating to how and whether the rightof-way should be used as a trail were not questions for the  Board to decide. Viewing its role under the Trails Act as  ministerial, the Board concluded that issuance of a CITU is  not a federal action under NEPA.  The Board further observed that the environmental implications of trail use on the  right-of-way had been thoroughly addressed in the detailed  studies performed in connection with civil proceedings that  led to a consent decree in 1999.3

II.

4
CART contends that the Trails Act requires the Board to  implement that Act in a manner to effect its public recreational purposes.4  Consequently, in CART's view, the Board's 71.5 mile length, and thus the Tribe is a reversionary interest  holder of the right of way.  See Intervenor's Brief at 5 citing Idaho  v. U.S., 121 S. Ct. 2135 (June 18, 2001).  As the State of Idaho  explained at oral argument, "ceded area" refers to land the Tribe  originally held but ceded to the United States during initial western  expansion through various treaties.  Because the land of CART's  members will be directly affected by the conversion of the right-ofway to a trail, CART has a sufficient stake in the outcome of the  instant case to give it Article III standing.  See State of Idaho By refusal to consider any environmental, contamination, or human hazard facts relating to the implementation and consequences of trail use, was contrary to NEPA requirements and  was arbitrary and capricious.  Because, CART continues, the  requirements and policies of the Trails Act mandate that a  CITU permit a recreational trail only if the purposes of the  Trails Act, set forth at 16 U.S.C. § 1241 (2000), are satisfied,  the CITU should be revoked, and the rail line declared  abandoned, in view of record evidence that the contamination  in the right-of-way is a human health hazard.  Essentially,  then, the court must review the Board's determinations that  (1) NEPA is inapplicable to CITU issuance under the Trails  Act, and (2) the Trails Act itself does not require an environmental assessment before issuance of the CITU.


5
The Trails Act, as amended by the National Trails System  Act Amendments of 1983, Pub. L. 98-11, 97 Stat. 42, "is the  culmination of congressional efforts to preserve shrinking rail  trackage by converting unused rights-of-way to recreational  trails."  Preseault v. I.C.C., 494 U.S. 1, 5 (1990).  Under the  Trails Act, the Board must "preserve established railroad  rights-of-way for future reactivation of rail service" by prohibiting abandonment where, if the railroad is willing to enter  into an agreement for trail use, a trail sponsor offers to  assume responsibility for management, payment of taxes, and  legal liability for the right-of-way and agrees to return the  right-of-way should there ever be a proposal to reactivate the  line for rail service.  See 16 U.S.C. § 1247(d) (2000).  If the  parties reach agreement, the land may be transferred to the  trail operator for interim trail use, subject to Board-imposed  terms and conditions;  if no agreement is reached, the railroad may abandon the line entirely and liquidate its interests. See Preseault, 494 U.S. at 7.  By deeming interim trail use to  be like discontinuance rather than abandonment, Congress  sought to prevent property interests from reverting to the  landowners under state law.  See id. at 8.


6
The provisions of the Trails Act are straightforward.  Section 8(d) of the amended Trails Act provides:If a State, political subdivision, or qualified private organization is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be levied or assessed against such rights-of-way, then the Board shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this chapter, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use.


7
16 U.S.C. § 1247(d).  The Board has promulgated regulations  requiring sponsors to submit certain documentation describing the site and indicating the user's willingness to assume  full responsibility for management, legal liability, and taxes,  as well as an acknowledgment of the user's continuing obligation to meet its responsibilities subject to future reactivation of the right-of-way for rail service.  See 49 C.F.R.  § 1152.29.  Upon receipt of such documentation, the Board  applies a rebuttable presumption of fitness of a sponsor.  See  Jost v. Surface Transp. Bd., 194 F.3d 79, 89 (D.C. Cir. 1999). Thus, where the railroad is willing to enter negotiations with  the sponsor, the abandonment is deferred and if the parties  reach agreement within a certain time, no abandonment can  occur until the user terminates trail use in an administrative  proceeding;  absent an agreement the CITU converts to a  notice of abandonment.  See Jost, 194 F.3d at 82;  Goos v.  I.C.C., 911 F.2d 1283, 1286 (8th Cir. 1990).


8
NEPA generally requires federal agencies to examine the  environmental effects of proposed federal actions and to  inform the public of the environmental concerns that were  considered in the agency's decisionmaking.  See Baltimore  Gas v. Natural Res. Defense Council, 462 U.S. 87, 97 (1983). Specifically, NEPA requires agencies to prepare an environmental evaluation for all proposals for "major Federal actions  significantly affecting the quality of the human environment."  42 U.S.C. § 4332(2)(C) (1994).  NEPA applies to the Board's  decisions to allow rail line abandonments.  See Idaho, 35 F.3d  at 595;  49 C.F.R. § 1105.6(b)(2).  On the other hand, the  Board has determined that NEPA does not require analysis  of the environmental effects of possible interim trail use  because the issuance of a CITU is only a ministerial act.  See  Iowa Southern Railroad Co.-Exemption-Abandonment in  Pottawattamie, Mills, Fremont and Page Counties, IA, 5  I.C.C. 2d 496, 502-03 (June 7, 1989).  The Board adhered to  this position in rejecting CART's arguments.

III.

9
Because NEPA's mandate is addressed to all federal agencies, the Board's determination that NEPA is inapplicable to  the Trails Act is not entitled to the deference that courts  must accord to an agency's interpretation of its governing  statute.  See Chevron v. Natural Res. Defense Council, 467  U.S. 837, 842 (1984);  People Against Nuclear Energy v. U.S.  Nuclear Regulatory Comm'n, 678 F.2d 222, 227 n.6 (D.C. Cir.  1982).5  Consequently, the issue of whether the Board erred  in determining that its decision to issue a CITU under Trails  Act is not subject to NEPA is a question of law, subject to de  novo review.  See 5 U.S.C. § 706.6  We find no error in the  ... Board's determination.7


10
The touchstone of whether NEPA applies is discretion. The twofold purpose of NEPA is "to inject environmental  considerations into the federal agency's decisionmaking process and to inform the public that the federal agency has  considered environmental concerns in its decisionmaking process."  Macht v. Skinner, 916 F.2d 13, 18 (D.C. Cir. 1990)  (quoting Weinberger v. Catholic Action of Hawaii/Peace  Educ. Project, 454 U.S. 139, 143 (1981)).  Such information  may cause the agency to modify its proposed action. See, e.g.,  Natural Res. Defense Council v. Morton, 458 F.2d 827, 831  (D.C. Cir. 1972).  If, however, the agency does not have  sufficient discretion to affect the outcome of its actions, and  its role is merely ministerial, the information that NEPA  provides can have no affect on the agency's actions, and  therefore NEPA is inapplicable.  Thus, in Macht v. Skinner,  the court affirmed the denial of federal action status to a  project where the government had discretion only over a  negligible portion of it.  916 F.2d at 19.  Likewise, in Atlanta  Coalition on the Transp. Crisis, Inc. v. Atlanta Regional  Comm'n, 599 F.2d 1333 (5th Cir. 1979), the Fifth Circuit  Court of Appeals held that the Federal Highway Administration's funding and certification of a regional planning process  was not subject to NEPA because "[t]he federal decisions  involv[ing] whether to certify and whether to fund do not  entail the exercise of significant discretion."  Id. at 1344-45. Other circuit courts of appeal have adopted similar analyses. See, e.g., Sac & Fox Nation of Missouri v. Norton, 240 F.3d  1250, 1262 (10th Cir. 2001);  Sierra Club v. Babbitt, 65 F.3d  1502, 1513 (9th Cir. 1995);  Sugarloaf, 959 F.2d at 513;  Milo  Cmty. Hosp. v. Weinberger, 525 F.2d 144, 147 (1st Cir. 1975).


11
To date, only the Eighth Circuit has addressed the precise  issue raised by CART.  In Goos, that court reasoned that  because the I.C.C. was required by the Trails Act to issue a  Notice of Interim Trail Use ("NITU") or a CITU whenever a  private party files the statement of willingness to assume  financial responsibility and the railroad agrees to negotiate,  the role of the I.C.C. in the conversion proceedings "is  essentially ministerial."  911 F.2d at 1395-96.  The I.C.C.  argued that the issuance of the NITU or CITU was incidental  to the abandonment proceeding pursuant to 49 U.S.C.  § 10903, was not a guarantee of eventual trail use, and that  only the abandonment proceeding was subject to NEPA.  Id.  at 1293.  The Eighth Circuit agreed.  Relying on its precedent,8 the Eighth Circuit focused on the fact that the I.C.C.  has no legal or factual control over the outcome of the  negotiations between the railroad and the trail sponsors;  it  can neither compel a trail conversion between unwilling parties nor does it have discretion to refuse one if voluntarily  negotiated.  Id. at 1295.  The court noted that the I.C.C. had  interpreted § 1247(d) to give it no power to compel a conversion by condemnation of the right-of-way, because Congress  had determined that trail use is desirable for a particular line  only when certain commitments are voluntarily made.  Id. The court concluded that:


12
Because the I.C.C. has not been granted any discretion under section 1247(d) to base its issuance of an NITU or CITU on environmental consequences, ... it would make little sense to force the I.C.C. to consider factors which cannot affect its decision to issue an NITU or CITU.


13
Id. at 1296.  In addition, the court concluded that the I.C.C.  lacked sufficient factual control for NEPA to apply because  the federal government does not fund the conversion and  "there is otherwise no federal involvement sufficient to turn  what is essentially a private, voluntary action into federal  action."  Id.


14
We agree with the Eighth Circuit in Goos that the absence  of significant discretion in the Board regarding issuance of a  CITU removes that issuance from the reach of NEPA. Heretofore this court has held that the I.C.C. reasonably  interpreted the Trails Act to accord it no power to force  transfers of the rights-of-way when the railroad is unwilling. See Nat'l Wildlife Fed'n v. I.C.C., 850 F.2d 694 (D.C. Cir.  1988).  Further, the court has held that the I.C.C. could  reasonably establish a rebuttable presumption of fitness of a  private sponsor who filed the required documentation.  See  Jost, 194 F.3d at 89.  In neither case did the court view the  I.C.C.'s role as involving significant discretion with regard to  issuance of a CITU.  To the contrary, in Jost the court cited  Goos with approval in observing that the Trails Act requires  that the Board " 'shall' impose a trail condition ... whenever  a railroad is prepared to convey the right-of-way to an  organization that is 'prepared to assume full responsibility'  for management of the line, for liability, and for taxes owed." Id. at 89 (quoting 16 U.S.C. § 1247(d)).


15
CART nonetheless contends that the Board has substantial  discretion in deciding to issue a CITU because, in its view,  the Trails Act imposes six decisions on the Board before it  can issue a CITU.9  An examination of the decisions that  CART identifies indicates, however, that they relate either to  the statutory conditions for sponsorship or to decisions that  Congress has determined shall be made by the railroad and  trail sponsor in their voluntary agreement, if any.  For  example, the decision whether a corridor is suitable for use as  a public recreational trail as part of the national trails system  has been made by Congress.  In the Trails Act, Congress  determined that all rail lines that are to be abandoned are  potentially suitable for trail use and left the precise configuration of the trail use to the parties' voluntary agreement.  See  Iowa Southern Railroad Co.-Exemption-Abandonment in  Pottawattamie, Mills, Fremont and Page Counties, IA, 5  I.C.C. 2d 496, 502-03 (June 7, 1989).  Although CART might  prefer that the suitability determination be made by the  Board, Congress did not impose that responsibility on the  Board.  The Board thus could reasonably interpret its responsibilities under the Trails Act to be largely ministerial  without, as CART suggests, abdicating its statutory responsibility under NEPA.  On the other hand, the decision whether  a trail sponsor is prepared to assume full responsibility for  management of the trail, as well as legal and tax liabilities, is  addressed by the Board through a rebuttable presumption; no more is required.  See Jost, 194 F.3d at 89.  For these  reasons, we are unpersuaded that these "six decisions" provide the Board with sufficient discretion to render NEPA  applicable to issuance of a CITU under the Trails Act.

IV.

16
CART's alternative contention that the Trails Act itself  requires a separate environmental analysis prior to issuance  of a CITU also fails.  In reaching this conclusion, we apply  Chevron, 467 U.S. at 844, to determine whether the Board's  determination that a separate environmental analysis is not  required by § 1247(d) is "a permissible construction of the  statute."  Id. at 843.


17
Section 1247(d) directs the Board to issue a CITU subject  to terms and conditions imposed by the Board.  It does not  expressly refer to environmental considerations, and the legislative history does not indicate that environmental unfitness  would bar trails conversion and mandate abandonment.  See  H.R. Rep. 28, 98th Cong., 1st Sess., p. 8 (1983).  As interpreted by the Board, the terms and conditions referred to in  § 1247(d) relate to the requirement that a sponsor assume  the financial and legal obligations associated with the right-ofway and that use of the land is subject to future restoration of  rail service.  See 49 C.F.R. § 1152.29(c)(2) (2000).  Thus, if a  qualified trail sponsor submits the required statement of  willingness, and the railroad is willing to negotiate a trail use  agreement, and the Board has approved abandonment of the  rail line, the Board must issue a CITU.  See id. at  § 1152.29(c)(1).  Official Board policy establishes a presumption of fitness of such a trail sponsor.  See Jost, 194 F.3d at  89.  Under the Board's interpretation, then, its discretion is  substantially restrained.


18
Congress' stated purposes in enacting the Trails Act were  twofold:  to preserve rail corridors for future railroad use and  to permit public recreational use of trails.  See Preseault, 494  U.S. at 10.  Accordingly, Congress used language that focused on those purposes, implicitly leaving environmental  considerations either to environmental assessments accompanying the abandonment proceeding, the parties' agreement,  or other federal or state and local law.  Nothing in the text or  the legislative history suggests a contrary Congressional intent.  Indeed, because the trails conversion arises after an  abandonment determination in which environmental considerations have been addressed, the scheme Congress envisioned  for trail conversion recognized that the railroad would be  aware of some of its environmental remediation responsibilities before agreeing to discuss an agreement with trail sponsors.  Because the Board's interpretation of its role in CITU  issuance is consistent with Congress' intention that the parties voluntarily reach agreement on public trail use, we hold  that the Board could reasonably conclude that Congress did not intend for the Board to conduct a separate environmental  assessment for a CITU.


19
Finally, it bears noting that the particular concerns CART  raises about the environmental suitability of the railroad's  right-of-way for a public trail are not without remedy.  As the  Board noted, the consent decree entered into by the State  and the Tribe with the railroad provides for the environmental remediation that CART asserts is required.  See supra  note 3.  This became clear at oral argument when counsel for  CART was unable to identify any further environmental  remediation that would likely result from an environmental  assessment under NEPA.  In light of the consent decree, the  additional environmental assessment under NEPA during the  remand in the abandonment proceeding, and the four conditions imposed by the Board, CART fails to show that their  environmental concerns have not been addressed.


20
Accordingly, we deny the petition.



Notes:


1
  Because CART is challenging only the Board's issuance of a  certificate of interim trail use, the court, for reasons discussed  below, has no occasion to address CART's contentions regarding  the environmental conditions attached to the Board's authorization  of abandonment of the Wallace Line.


2
  See I.C.C. Termination Act of 1995, Pub. L. No. 104-88, 109  Stat. 803 (1995).  Hereinafter, we generally refer to the Surface  Transportation Board ("the Board").


3
  In 1991, the Coeur d'Alene Tribe sued Union Pacific pursuant  to § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607 (1995) ("CERCLA"), for  damages as a result of injuries to natural resources in areas that  include the property at issue in the instant case.  A final Consent  Decree, lodged at the end of 1999, was approved the following  summer.  See United States & State of Idaho v. Union Pacific, No.  CV 99-0606-N-EJL, and Coeur d'Alene Tribe v. Union Pacific, No.  CV 91-0342-N-EJL (D. Idaho Aug. 25, 2000).  The Consent Decree  obligates Union Pacific to remediate all environmental damage  under oversight by the United States, the State of Idaho, and the  Coeur d'Alene Tribe.  Union Pacific also remains liable for cleanup  if new information arises indicating that the response actions will  not protect human health and the environment.  Finally, Union  Pacific agreed to be responsible into perpetuity for the operation  and maintenance of the various barriers that will be used in  implementing the response actions.  Id.


4
  CART states in its brief that its members own land that  adjoins the railroad right-of-way and that some members also own  fee simple title to land over which the right of way runs.  See  Petitioners' Main Brief at 4.  This claim is unchallenged by the  Board.  The Tribe, as intervenor, states in its brief that the rail line  runs through the Coeur d'Alene Indian Reservation for 14 miles  and through the Tribe's "ceded area" for the remainder of its full  and Through Idaho Pub. Utilities Comm'n v. I.C.C., 35 F.3d 585,  590 (D.C. Cir. 1994);  Lujan v. Defenders of Wildlife, 504 U.S. 555,  589 (1992).


5
  Marsh v. Natural Res. Council, 490 U.S. 360 (1989), established that when a court reviews an agency's factual determination  that a major federal action will not "significantly" affect the environment, review is governed by the arbitrary and capricious standard of 5 U.S.C. § 706(2)(A).  Thus, Marsh did not resolve the  precise question of what review is appropriate in challenges to  agency actions that raise the threshold legal question whether an  action falls within NEPA in the first place.


6
  Section 706 of the APA provides in relevant part:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall -
(2) hold unlawful and set aside agency action, findings, and conclusions found to be
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;  ...


7
  Several circuits to confront the same question have adopted a  "reasonableness" standard of review.  See Northcoast Envtl. Ctr. v.  Glickman, 136 F.3d 660, 667 (9th Cir. 1998);  Sugarloaf Citizens  Ass'n v. F.E.R.C., 959 F.2d 508, 511 (4th Cir. 1992);  Goos, 911 F.2d  at 1291.  We understand this to mean that the courts conducted de  novo review.


8
  In Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269 (8th  Cir.), cert. denied, 449 U.S. 836 (1980), the court held that issuance  of a federal permit for part of a non-federal construction project did  not make the entire project subject to NEPA because there was no  grant of legal control over the entire project.  See id. at 272.  See  also Ringsred v. Duluth, 828 F.2d 1305, 1308 (8th Cir. 1987).


9
  CART identifies the six decisions to be:  "(1) The corridor  must be suitable for use as a public recreational trail as part of the  national trails system, (2) trail use and conditions must be consistent with the National Trails System Act, (3) the corridor must be  preserved for future restoration or reconstruction for railroad purposes, (4) a trail sponsor must be prepared to assume full responsibility for management of rights-of-way as trails, (5) a trail sponsor  must be prepared to assume full responsibility for any liability  arising out of the transfer or use, and (6) once the above conditions  are met, the STB is to impose terms and conditions on a transfer or  conveyance for trail use in a manner consistent with the National  Trails System Act."


