                                                                            FILED
                             NOT FOR PUBLICATION                            JUL 13 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



ROBERT ALAN KEMP, dba NEVADA                     No. 09-70576
CENTRAL RAILROAD,
                                                 STB No. AB-33 (Sub-No. 230X)
               Petitioner,

  v.                                             MEMORANDUM *

SURFACE TRANSPORTATION
BOARD and UNITED STATES OF
AMERICA,

               Respondents.



                      On Petition for Review of an Order of the
                           Surface Transportation Board

                              Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Robert Alan Kemp petitions for review of a decision of the Surface

Transportation Board (“STB”) upholding a decision of the Director of the Office of

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                                                                 09-70576
Proceedings rejecting Kemp’s offer of financial assistance (“OFA”) under 49

U.S.C. § 10904 to avoid abandonment of a rail line. We have jurisdiction under 28

U.S.C. §§ 2321(a) and 2342(5). We review the STB’s findings for substantial

evidence, 5 U.S.C. § 706(2)(E), and its procedural rulings for an abuse of

discretion, 5 U.S.C. § 706(2)(A). We deny the petition.

       Substantial evidence supported the STB’s decision to reject Kemp’s OFA.

See Redmond-Issaquah R.R. Pres. Ass’n. v. Surface Transp. Board, 223 F.3d 1057,

1064 (9th Cir. 2000) (affirming STB’s conclusion that no potential existed for

future rail traffic or service).

       The STB did not abuse its discretion by refusing to strike Union Pacific

Railroad Company’s responses to pleadings filed by Kemp because these responses

were expressly permitted. See 49 C.F.R. § 1104.13(a) (permitting replies or

motions addressed to pleadings filed with the STB). Contrary to Kemp’s

contention, Union Pacific provided all required information. See 49 C.F.R.

§1152.27(a) (identifying information that applicants for abandonment must supply

at the request of a party considering an OFA). Finally, the STB did not abuse its

discretion by refusing to serve as a trustee or as escrow agent for Kemp in

connection with his OFA, nor by denying Kemp’s request to amend his OFA.




                                          2                                   09-70576
       Kemp’s request in his opening brief to correct the agency docket is denied.

Kemp’s motion for an extension of time to file an optional reply brief is denied;

Kemp filed an oversized opening brief that thoroughly addressed all relevant issues

and the parties submitted the entire record before the STB.

      PETITION FOR REVIEW DENIED.




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