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DSSURYHWKHVDOHRIWKHUDLOOLQHDQGWKDWLWVOctober 4, 2000        ',675,&7             
decision approving the sale was not erroneous to the extent                             3HWLWLRQHUV 
that it ordered RVI to transfer its entire fee simple interest in                                     
the property constituting the rail line that was the subject of                 Y                    
RVI’s abandonment petition. Further, we find the STB’s                                                
decisions to lower the salvage value of the track and materials                                       
and to order RVI to escrow $375,000 of the sale proceeds to           685)$&( 75$163257$7,21          
pay for track restorations and repairs were not arbitrary or          %2$5'DQG81,7(' 67$7(6         
capricious. The STB also did not err in voiding the "Grade            2) $0(5,&$                     
Separated Crossing Settlement Agreement" ("GSCSA")                                    5HVSRQGHQWV 
entered into between RVI and Boardman Township and                                                    
RVI’s transfer of surface rights in 4.012 acres of the line to                                        
the Park District. )RU WKH UHDVRQV VHW IRUWK DERYH ZH          &2/80%,$1$ &2817< 3257          
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customers were required to endure long delays in getting to                                     BBBBBBBBBBBBBBBBB
their nursery when the primary access road was blocked by
waiting trains. Finding that "[t]he language of the statute                                         23,1,21
could not be more precise, and it is beyond peradventure that                                   BBBBBBBBBBBBBBBBB
regulation of KCS trains operations, as well as the
construction and operation of the KCS side tracks, is under                     &/$<&LUFXLW-XGJHPetitioners, Railroad Ventures, Inc.
the exclusive jurisdiction of the STB unless some other                      ("RVI"), Boardman Township ("Boardman Township"), and
provision in the ICCTA provides otherwise," the Fifth Circuit                Boardman Township Park District ("the Park District") seek
in Friberg held that the plaintiffs’ common claims of                        review of several orders issued throughout the year 2000 by
negligence were preempted by the ICCTA. 267 F.3d at 443-                     Respondent Surface Transportation Board ("the STB") during
44.                                                                          the course of a sale by RVI to Intervenor Columbiana County
                                                                             Port Authority ("CCPA") of a 35.7-mile rail line ("the rail
  In the present case, it is manifestly clear that Congress                  line") extending from milepost 0.0 at Youngstown, Ohio to
intended to preempt the Ohio state statutes, and any claims                  milepost 35.7 at Darlington, Pennsylvania, with a connecting
arising therefrom, to the extent that they intrude upon the                  one-mile segment near Negley, Ohio, pursuant to 49 U.S.C.
STB’s exclusive jurisdiction over "transportation by rail                    § 10904. &&3$LVDTXDVLSXEOLFDJHQF\HVWDEOLVKHGE\WKH
carriers" and "the construction, acquisition, operation,                     %RDUG RI &RXQW\ &RPPLVVLRQHUV RI &ROXPELDQD &RXQW\
abandonment, or discontinuance of spur, industrial, team,                    2KLR  7KH RWKHU LQWHUYHQRU &HQWUDO &ROXPELDQD 	
switching, or side tracks, or facilities, even if the tracks are             3HQQV\OYDQLD 5DLOZD\ ,QF ³&&35´ D ZKROO\ RZQHG
located, or intended to be located, entirely in one State."               VXEVLGLDU\RIWKH$UNDQVDV6KRUW/LQH5DLOURDGV,QFKDVD
86&E$OWKRXJK%RDUGPDQ7RZQVKLSFODLPV                        OHDVHWRRSHUDWHWKHUDLOOLQH The sale occurred after RVI,
WKDW WKH SXUSRVH RI WKH *6&6$ ZDV WR FRPSO\ ZLWK WKH               which acquired the rail line from Youngstown & Southern
UHTXLUHPHQWVRIWKH2KLRVWDWXWHVE has preemptive                 Railroad on November 8, 1996, submitted an application to
effect to the extent that these state statutes conflict with                 the STB for exemption from certain regulations, pursuant to
federal law. Cipollone, 505 U.S. at 516 (citing Maryland v.                  49 U.S.C. § 10502, and for authority to abandon the rail line
Louisiana, 451 U.S. 725, 746 (1981)).                                      pursuant to 49 U.S.C. § 10903(a). For the reasons set forth
                                                                             below, we AFFIRM the STB’s orders.

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       %HFDXVH WKH SDUWLHV KDYH QRW UDLVHG WKH PDWWHU ZH QHHG QRW DGGUHVV
whether the Ohio statutes at issue are preempted by the Federal Railroad     $6WDWXWRU\DQG5HJXODWRU\)UDPHZRUN
Safety Act (FRSA), 49 U.S.C. §§ 20101-20153. See CSX Transp. Inc. v.
City of Plymouth, 283 F.3d 812, 817 (6th Cir. 2002) (noting that the           &RQJUHVVKDVUHJXODWHGWKHDEDQGRQPHQWRIUDLOURDGOLQHV
FRSA preempted WKH 0LFKLJDQ VWDWXWH SURKLELWLQJ WUDLQV IURP
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7UDQVSRUWDWLRQ$FWRI6WDW7RH[SHGLWHWKH               49 U.S.C. § 10501(b). As explained by the Ninth Circuit in
DEDQGRQPHQW SURFHVV &RQJUHVV PRGLILHG WKH ,QWHUVWDWH                   City of Auburn v. United States, 154 F.3d 1025, 1030 (9th
&RPPHUFH $FW ZLWK WKH HQDFWPHQW RI WKH 5DLOURDG                       Cir. 1998):
5HYLWDOL]DWLRQDQG5HJXODWRU\5HIRUP$FWRI5$FW
3XE / 1R   6WDW   ZKLFK DGGHG D                Section 10501 of the ICCTA, which governs the STB's
SURYLVLRQ86&QRZ86&WKDW                     jurisdiction, states the [B]oard will have exclusive
VXVSHQGHG DEDQGRQPHQW RI D OLQH IRU XS WR VL[ PRQWKV WR              jurisdiction over "the construction, acquisition, operation,
DOORZ WLPH IRU D SURVSHFWLYH SXUFKDVHU WR FRQVXPPDWH WKH               abandonment, or discontinuance of spur, industrial, team,
                                                                               switching, or side tracks, or facilities, even if the tracks
                                                                               are located, or intended to be located, entirely in one
                                                                               State." 49 U.S.C. § 10501(b)(2) (1997). The same
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                                                                               section states that "the remedies provided under this part
      3XUVXDQW WR WKH ,QWHUVWDWH &RPPHUFH $FW RI   6WDW             with respect to regulation of rail transportation are
 &RQJUHVV FUHDWHG WKH ,&& WR UHJXODWH UDLOURDGV   6HH &KLFDJR 	        exclusive and preempt the remedies provided under
1: 7UDQVS &R Y .DOR %ULFN 	 7LOH &R     86   
                                                                               Federal or State law." 49 U.S.C. § 10501(b) (1997). . . .
UHFRJQL]LQJ WKH ,QWHUVWDWH &RPPHUFH $FW DV ³DPRQJ WKH PRVW SHUYDVLYH
DQG FRPSUHKHQVLYH RI IHGHUDO UHJXODWRU\ VFKHPHV´       8QLWHG 6WDWHV Y      The section unambiguously states: "The authority of the
%DOWLPRUH 	 25 &R       86    ³7KH ,QWHUVWDWH           Board under this subchapter is exclusive." Id.
&RPPHUFH $FW LV RQH RI WKH PRVW FRPSUHKHQVLYH UHJXODWRU\ SODQV WKDW
&RQJUHVV KDV HYHU XQGHUWDNHQ´  0LG$PHULFDQ (QHUJ\ &R Y 67%          154 F.3d at 1030 (emphasis in original).
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                                                                               In City of Auburn, the Ninth Circuit, endorsing a "broad
                                                                             reading of Congress’ preemption intent, not a narrow one,"
WK &LU  QRWLQJ WKDW ³&RQJUHVV¶ DXWKRULW\ WR UHJXODWH UDLOURDGV LV
ZHOO HVWDEOLVKHG´                                                          rejected the City’s argument that Congress, through the
                                                                             ICCTA, only intended preemption of economic regulation of
     ,QLWLDOO\ WKH ,QWHUVWDWH &RPPHUFH $FW GLG QRW VXEMHFW UDLOURDG         the railroads. Finding that Congressional intent was clear and
DEDQGRQPHQWV WR WKH MXULVGLFWLRQ RI WKH ,&& 6HH +D\ILHOG  86 DW
 +RZHYHU ZLWK WKH SDVVDJH RI WKH 7UDQVSRUWDWLRQ $FW RI 
                                                                             that preemption of rail activity is a valid exercise of
&RQJUHVV VRXJKW WR SUHHPSW DFWLRQV E\ VWDWH DQG ORFDO DXWKRULWLHV WKDW       Congressional power under the Commerce Clause, the Ninth
SUHYHQWHG UDLOURDGV IURP DEDQGRQLQJ XQSURILWDEOH OLQHV 5/7' 5\ &RUS       Circuit affirmed the STB’s finding that state and local
Y 67%  )G   WK &LU  QRWLQJ WKDW ³&RQJUHVV VRXJKW      environmental review laws were preempted pursuant to
WR EDODQFH WKH UDLOURDG FRPSDQLHV¶ QHHG WR GLVSRVH RI WUDFNDJH WKDW ZDV QR   § 10501(b)(2).
ORQJHU SURILWDEOH ZLWK WKH SXEOLF¶V QHHG IRU D ZRUNLQJ LQWHUVWDWH WUDFN
V\VWHP´FLWLQJ 6WHYHQ 5 :LOG $ +LVWRU\ RI 5DLOURDG $EDQGRQPHQWV 
7UDQVS /-    DQG &RORUDGR Y 8QLWHG 6WDWHV  86 
                                                                               The Fifth Circuit has also found preemption under 49
  )RU WKH PRVW SDUW IURP  XQWLO  &RQJUHVV VHW QR      U.S.C. § 10501(b). In Friberg, 267 F.3d at 439, the Fifth
WLPH OLPLW IRU DEDQGRQPHQWV 6HH +D\ILHOG  86 DW  QRWLQJ     Circuit ruled that suits against the railroad (KCS) for
WKDW ³>U@DLOURDGV FRQVHTXHQWO\ IRXQG WKHPVHOYHV HQPHVKHG LQ OHQJWK\          negligence were preempted by federal law under 49 U.S.C.
SURFHHGLQJV´ ZKLOH DWWHPSWLQJ WR ³XQEXUGHQ WKHPVHOYHV SURPSWO\ RI
XQSURILWDEOH OLQHV´ &RQVRO 5DLO &RUS Y 67%  )G   '&
                                                                             § 10501(b). In that case, the plaintiffs, who operated a
&LU  ³)RU PRVW RI WKLV SHULRG &RQJUHVV VHW QR WLPH OLPLW IRU
                                                                             landscape nursery, alleged that they lost business and
DEDQGRQPHQW SURFHHGLQJV´                                                  eventually were forced to close their business because their
    5DLOURDG9HQWXUHVHWDO      1RV        1RV             5DLOURDG9HQWXUHVHWDO           
      Y6XUIDFH7UDQVS%G                                    Y6XUIDFH7UDQVS%G
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state law so conflict that it is impossible for a party to comply   DFTXLVLWLRQRIDUDLOOLQHIURPDQDEDQGRQLQJFDUULHU6HH
with both simultaneously, or where enforcement of state law         +D\ILHOG155Y&KLFDJR	1:7UDQVS&R86
prevents the accomplishment of the full purposes and                7KH,QWHUVWDWH&RPPHUFH$FWZDVIXUWKHU
objectives of federal law. See Cipollone v. Liggett Group,          DPHQGHGE\WKHSDVVDJHRIWKH6WDJJHUV5DLO$FWRI
Inc., 505 U.S. 504, 516 (1992); Friberg v. Kansas City S. Ry.       3XE / 1R   6WDW   ZKLFK DGGHG D
Co., 267 F.3d 439, 442 (5th Cir. 2001). "If the statute             IRUFHGVDOH SURYLVLRQ WR WKH IRUPHU  86&  
contains an express preemption clause, the task of statutory        DOORZLQJWKH,&&WRVHWWKHSULFHDQGRWKHUWHUPVRIVDOHZKHQ
construction must in the first instance focus on the plain          DSDUW\WRWKHVDOHUHTXHVWHGLW,GDW³7KHXQGHUO\LQJ
wording of the clause, which necessarily contains the best          UDWLRQDOHRIUHSUHVHQWVDFRQWLQXDWLRQRI&RQJUHVV¶
evidence of Congress’ preemptive intent." CSX Transp. Inc.          HIIRUWVWRDFFRPPRGDWHWKHFRQIOLFWLQJLQWHUHVWVRIUDLOURDGV
v. Easterwood, 507 U.S. 658, 664 (1993). Although there is          WKDW GHVLUH WR XQEXUGHQ WKHPVHOYHV TXLFNO\ RI XQSURILWDEOH
a presumption under the Supremacy Clause that Congress did          OLQHV DQG VKLSSHUV WKDW DUH GHSHQGHQW XSRQ FRQWLQXHG UDLO
not intend to preempt state law, "an assumption of nonpre-          VHUYLFH´*65RRILQJ3URGV&RY67%)G
emption is not triggered when the State regulates in an area        WK&LU³*65RRILQJ,,³7KH6WDJJHUV5DLO$FWRI
where there has been a history of significant federal                QRZ FRGLILHG DW  86&   ZDV HQDFWHG WR
presence." United States v. Locke, 529 U.S. 89, 108 (2000).         DGGUHVVFRQFHUQVDERXWWKHGHWHULRUDWLQJUDLOVHUYLFHSURYLGHG
                                                                    RQ VRPH RI WKH VHFRQGDU\ UDLOURDG OLQHV WKURXJKRXW WKH
  As set forth in 49 U.S.C. § 10501(b):                             FRXQWU\´&RQVRO5DLO&RUSY,&&)G'&
                                                                    &LU  QRWLQJ WKDW WKH SXUSRVH RI WKH IRUFHGVDOH
  (b) The jurisdiction of the Board over--
  (1) transportation by rail carriers, and the remedies
  provided in this part with respect to rates, classifications,
  rules (including car service, interchange, and other
  operating rules), practices, routes, services, and facilities
  of such carriers; and
                                                                        
                                                                         7KH REMHFWLYHV RI WKH SUHVHQW  86&   WKH IRUPHU 
  (2) the construction, acquisition, operation,                     86&   DUH WR SUHVHUYH UDLO VHUYLFH IRU VKLSSHUV RYHU D OLQH WKDW
  abandonment, or discontinuance of spur, industrial, team,         ZRXOG RWKHUZLVH EH DEDQGRQHG ZKLOH SHUPLWWLQJ WKH RZQHU RI DQ
  switching, or side tracks, or facilities, even if the tracks                                                                        6HH
                                                                    XQSURILWDEOH UDLO OLQH WR VHOO LW SURPSWO\ IRU LWV IDLU PDUNHW YDOXH
  are located, or intended to be located, entirely in one           5DLOURDG 7UDQVSRUWDWLRQ 3ROLF\ $FW RI  +HDULQJV RQ 6 EHIRUH
                                                                    WKH 6HQDWH &RPP RQ &RPPHUFH 6FLHQFH DQG 7UDQVSRUWDWLRQ 6 5HS 1R
  State, is exclusive. Except as otherwise provided in this          DW  WK &RQJ VW 6HVV   QRWLQJ WKDW WKLV VHFWLRQ
  part, the remedies provided under this part with respect          ³VHWV XS D SURFHGXUH ZKHUH UDLO OLQHV DSSURYHG IRU DEDQGRQPHQW PD\ EH
  to regulation of rail transportation are exclusive and            SXUFKDVHG RU VXEVLGL]HG LQ RUGHU WR FRQWLQXH UDLO VHUYLFH´ +5 5HS 1R
  preempt the remedies provided under Federal or State               DW  WK &RQJ G 6HVV   UHSULQWHG LQ 
  law.                                                              86&&$1 DW   QRWLQJ WKDW WKLV VHFWLRQ ZLOO ³DVVLVW VKLSSHUV
                                                                    ZKR DUH VLQFHUHO\ LQWHUHVWHG LQ LPSURYLQJ UDLO VHUYLFH ZKLOH DW WKH VDPH
                                                                    WLPH SURWHFWLQJ FDUULHUV IURP SURWUDFWHG OHJDO SURFHHGLQJV ZKLFK DUH
                                                                    FDOFXODWHG PHUHO\ WR WHGLRXVO\ H[WHQG WKH DEDQGRQPHQW SURFHVV´
       5DLOURDG9HQWXUHVHWDO        1RV           1RV        5DLOURDG9HQWXUHVHWDO     
        Y6XUIDFH7UDQVS%G                                    Y6XUIDFH7UDQVS%G
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SURYLVLRQLV³QRWVLPSO\WKHPDLQWHQDQFHRIUDLOOLQHVEXWWKH            from its interpretation of two provisions of the OFA statute:
FRQWLQXDWLRQRIUDLOVHUYLFH´HPSKDVLVLQRULJLQDO                  the common carrier obligations of § 10904(f)(4)(A) and the
                                                                           STB’s authority to set the terms and conditions of a forced
   $IWHUWKH,&&FHDVHGWRH[LVWHIIHFWLYH-DQXDU\               sale pursuant to § 10904(f)(1). Section 10904(f)(4)(A) bars
SXUVXDQW WR WKH Interstate Commerce Commission                          a purchaser of a rail line from transferring or discontinuing
Termination $FWRI49 U.S.C. §§ 10101-16106 (1997)                   service during the two years after the purchase, and restricts
³WKH,&&7$´DXWKRULW\RYHUWKHDEDQGRQPHQWRIUDLOURDG                  the purchaser from transferring the line to anyone but the
OLQHVSDVVHGWRWKH6XUIDFH7UDQVSRUWDWLRQ%RDUG³WKH67%´              seller for a five-year post-sale period. Thus, the STB acted
6HH  86&   *6 5RRILQJ ,,  )G DW           within its authority when it recognized that the GSCSA
0LG$PHULFDQ(QHUJ\&RY67%)GQ                    impeded a line owner’s ability to perform rail operations by
WK&LU5/7'5\&RUSY67%)G                  conditioning a line owner’s full resumption of service with
WK&LU&RQVRO5DLO&RUSY67%)G               the obligation to complete the projected improvements set
'& &LU  QRWLQJ WKDW ³PDQ\ IXQFWLRQV RI WKH ,&&         forth in the agreement. It was also reasonable for the STB to
LQFOXGLQJ DXWKRULW\ RYHU DEDQGRQPHQW SURFHHGLQJV ZHUH                 view the provisions of the GSCSA as an intrusion onto its
WUDQVIHUUHGWRWKH67%LQWKH'HSDUWPHQWRI7UDQVSRUWDWLRQ´              § 10904(f)(1) authority to fix the terms and conditions of an
7KH67%LVQRZWKHIHGHUDODJHQF\ZLWKH[FOXVLYHMXULVGLFWLRQ              OFA sale. Noting that "section 10904 represents a clear
RYHU WUDQVSRUWDWLRQ E\ UDLOURDG  )ULHQGV RI WKH $WJOHQ           legislative determination that rail service should be preserved
6XVTXHKDQQD7UDLO,QFY67%)GQG                  whenever there is an offeror willing to provide for continued
&LU  FLWLQJ  86&  D  7KXV LI D         service," the STB did not act unreasonably in voiding the
UDLOURDGOLQHIDOOVZLWKLQLWVMXULVGLFWLRQWKH67%¶VDXWKRULW\           GSCSA to the extent it imposed obligations on parties other
RYHU DEDQGRQPHQW LV ERWK H[FOXVLYH DQG SOHQDU\  6HH               than Boardman Township and RVI, and to the extent it
3UHVHDXOW Y ,&&  86    FLWLQJ &KLFDJR 	         required construction of an overpass or underpass before the
1RUWK:HVWHUQ7UDQVS&RY.DOR%ULFN	7LOH&R86
5/7'5\&RUS)GDW                          resumption of rail service. Because the STB has acted
                                                                           rationally and in accordance with law, we therefore affirm the
  ,QDGGLWLRQPRVWRIWKHSURYLVLRQVRIWKHIRUPHU,QWHUVWDWH             order voiding the GSCSA.
&RPPHUFH$FWZHUHUHHQDFWHGLQWKH ICCTA. 0LG$PHULFDQ
)GDWQ6SHFLILFDOO\WKH,&&7$UHFRGLILHGWKH                Finally, we note that the ICCTA preempts the Ohio state
IRUPHUDVDPHQGLQJWKHVWDWXWHWROLPLWWKH               statutes in question to the extent that they intrude upon the
SHULRGLQZKLFKWKH67%VHWWKHWHUPVDQGFRQGLWLRQVRIWKH                jurisdiction of the STB with regard to the regulation of rail
IRUFHGVDOHWRWKLUW\GD\VDQGWKHGXUDWLRQRIDQ\VXEVLG\IRU             transportation under § 10501(b). Under the Supremacy
                                                                           Clause, U.S. Const. art. 6, cl. 2, federal law preempts state or
                                                                           local law in various ways: (1) express preemption where the
                                                                          intent of Congress to preempt state law is clear and explicit;
      ,Q 3UHVHDXOW Y ,&&  86    WKH &RXUW QRWHG WKDW
&RQJUHVV H[SUHVVHG FRQFHUQ DERXW ³WKH VKULQNLQJ UDLO WUDFNDJH´  86
                                                                           (2) field preemption where Congress’ regulation of a field is
DW  $V QRWHG E\ -XVWLFH %UHQQDQ ³,Q  WKH 1DWLRQ¶V UDLOZD\ V\VWHP
                                                                           so pervasive or the federal interest is so dominant that an
UHDFKHG LWV SHDN RI  PLOHV >LQ @ RQO\ DERXW  PLOHV      intent can be inferred for federal law to occupy the field
>ZHUH@ LQ XVH DQG H[SHUWV SUHGLFW WKDW  PLOHV ZLOO EH DEDQGRQHG      exclusively; and (3) conflict preemption, where federal and
HYHU\ \HDU WKURXJK WKH HQG RI WKLV FHQWXU\´ ,G
   5DLOURDG9HQWXUHVHWDO       1RV       1RV              5DLOURDG9HQWXUHVHWDO           
     Y6XUIDFH7UDQVS%G                                     Y6XUIDFH7UDQVS%G
     HWDO                                                                                        HWDO

  is reactivated for rail service to submit the plans ". . . and   FRQWLQXHGUDLOVHUYLFH6HH1DW¶O$VV¶QRI5HYHUVLRQDU\3URS
  metes and bounds descriptions of any property to be              2ZQHUVY67%)G'&&LU (noting
  appropriated for the construction of the Crossing Project        that "[t]he ICCTA made some changes to the abandonment
  . . . ," a later provision overrides the time period and         application process, such as eliminating the processing
  requires, among other things, completion of the project          timetable and requiring that offers of financial assistance
  and submission to [Boardman Township] of a 2-year                [OFA] be filed within four months of an abandonment
  maintenance bond on the improvements, before rail                application, see 49 U.S.C. § 10904(c)").
  service can be resumed in full.
                                                                      $ UDLO FDUULHU SURYLGLQJ WUDQVSRUWDWLRQ VXEMHFW WR WKH
559HQWXUHV 2000 WL 1125904, at *2.                             MXULVGLFWLRQ RI WKH 67% PD\ DEDQGRQ LWV UDLOURDG OLQH RU
                                                                   GLVFRQWLQXH WKH RSHUDWLRQ RI DOO UDLO WUDQVSRUWDWLRQ RYHU LWV
  On appeal, Boardman Township challenges the STB’s                UDLOURDGOLQHRQO\DVDXWKRUL]HGXQGHUWKHVWDWXWH86&
decisions declaring the GSCSA void and unenforceable                D7RDEDQGRQDUDLOURDGOLQHRUGLVFRQWLQXH
against CCPA, claiming that the purpose of the GSCSA was           RSHUDWLRQRIUDLOVHUYLFHRQDUDLOOLQHDUDLOFDUULHUPXVWILOH
not to interfere with rail operations, but to secure the health,   DQ DSSOLFDWLRQ ZLWK WKH 67% VHHNLQJ SULRU DSSURYDO RU DQ
safety, and well-being of the residents of Boardman Township       H[HPSWLRQ  86&   D D$  
pursuant to Ohio Rev. Code § 519.02, and to avoid the              &)5    VHH )ULHQGV RI WKH $WJOHQ
imposition of liability on political subdivisions "for injury,     6XVTXHKDQQD7UDLO)GDW³$UDLOFDUULHULQWHQGLQJ
death, or loss to persons or property caused by their failure to   WRDEDQGRQDQGWREHUHOHDVHGIURPLWVREOLJDWLRQVWRUHWDLQRU
keep public roads, highways, streets, avenues, alleys,             RSHUDWHDQ\SDUWRILWVUDLOURDGOLQHVPXVWILOHDQDSSOLFDWLRQ
sidewalks, bridges, aqueducts, viaducts, and public grounds        WRGRVRZLWKWKH67%DQGVXFKDEDQGRQPHQWPXVWDGKHUHWR
within the political subdivisions open, in repair, and free from   FHUWDLQ HVWDEOLVKHG SURFHGXUHV´  A line owner may
nuisance" under Ohio Rev. Code § 2744.02(B)(3). Boardman           "abandon any part of its railroad lines," 49 U.S.C.
Township contends that the STB’s goal of continued rail            § 10903(d)(1), but cannot do so without the permission of the
service, where appropriate, should not wholly displace its         STB.       49 U.S.C.§ 10903(a)(1)(A); VHH .XOPHU DQG
concerns for public safety and its duty to its citizens arising    6FKXPDFKHUY67%)GWK&LU
under state law.
  At the outset, we note that Boardman Township entered                
                                                                          3XUVXDQW WR  86&  D UDLOURDGV DV FRPPRQ FDUULHUV
into the GSCSA with RVI on November 5, 1999. Because               KDYH DQ REOLJDWLRQ WR SURYLGH UDLO VHUYLFH XSRQ UHDVRQDEOH UHTXHVW EXW
RVI had no legal right to transfer any property interests          ³WKH FRPPRQ FDUULHU REOLJDWLRQ LV QRW DEVROXWH´ *6 5RRILQJ ,,  )G
associated with the rail line after filing its abandonment         DW  $EDQGRQPHQW FRQVLVWV RI ³D SHUPDQHQW RU LQGHILQLWH FHVVDWLRQ RI
petition, we thereby uphold the STB’s invalidation of the          UDLO VHUYLFH ZKLFK WHUPLQDWHV D UDLO FDUULHU¶V SXEOLF VHUYLFH REOLJDWLRQ´
GSCSA agreement.                                                   *LEERQV Y 8QLWHG 6WDWHV    )G   WK &LU  "An
                                                                   abandoned railroad corridor is one that is no longer used for rail service
  In addition, we note that the STB acted within its authority     and is removed from the national transportation system." Nat’l Ass’n of
                                                                   Reversionary Prop. Owners, 158 F.3d at 137 n.1 (citing Presault, 494
by invalidating the agreement on public policy grounds.            U.S. at 6 n.3). ³$ OLQH WKDW LV QR ORQJHU LQ XVH EXW KDV EHHQ RIILFLDOO\
Here, the STB’s decision to invalidate the GSCSA stemmed           DEDQGRQHG PD\ EH UHDFWLYDWHG ODWHU DQG LV WHUPHG µGLVFRQWLQXHG¶´     ,G
      5DLOURDG9HQWXUHVHWDO       1RV          1RV          5DLOURDG9HQWXUHVHWDO    
       Y6XUIDFH7UDQVS%G                                    Y6XUIDFH7UDQVS%G
       HWDO                                                                                       HWDO

³5DLOFDUULHUVPXVWREWDLQ67%DXWKRUL]DWLRQWRDEDQGRQUDLO           5.     The STB did not err in voiding the "Grade Separated
VHUYLFHRYHUWKHLUOLQHV´*65RRILQJ3URGV&RY67%                 Crossing Settlement Agreement" ("GSCSA") entered
)GWK&LU³*65RRILQJ,´(WKDQ$OOHQ                   into between RVI and Boardman Township
,QFY0DLQH&HQW55&R)6XSS'9W
QRWLQJWKDW³WKHTXDVLSXEOLFQDWXUHRIUDLOURDGVHQWDLOV           In its January 7, 2000 decision, the STB granted CCPA’s
DKLJKHUGHJUHHRISXEOLFUHVSRQVLELOLW\WKDQLVUHTXLUHGRI            request to declare the GSCSA unenforceable against it,
PRVW SULYDWH FRPSDQLHV´  A rail line owner is generally           finding that enforcement of the GSCSA against CCPA would
obligated to maintain a diagram of the rail system it operates,         unreasonably interfere with CCPA’s purchase of the rail line
and if the owner wishes to abandon, it must "identify each              and its future fulfillment of common carrier obligations. The
railroad line for which the rail carrier plans to file an               STB reiterated these conclusions in its October 4, 2000
application to abandon." 49 U.S.C. § 10903(c)(2)(B). 49                 decision, denying Boardman Township’s request for a stay
C.F.R. § 1152.22(a)(4) further specifies that the information           pending appeal of the January 7, 2000 decision. In both
comprising the abandonment application include:                         decisions, the STB viewed the GSCSA as contrary to the
                                                                        public interest in continued rail service. The STB’s January
    [a d]etailed map of the subject line on a sheet not larger          7, 2000 decision provides a summary of the provisions of the
    than 8x10 ½ inches, drawn to scale, and with the scale              GSCSA:
    shown thereon. The map must show, in clear relief, the
    exact location of the rail line to be abandoned or over                    Specifically, the [GSCSA] states that "RVI or its
    which service is to be discontinued and its relation to                  successors and assigns (hereinafter referred to as ‘Line
    other rail lines in the area, highways, water routes, and                Owner’) agree to undertake the necessary planning,
    population centers.                                                      construction, and future maintenance of a grade separated
                                                                             crossing at State Road 224 and at other such road
49 C.F.R. § 1152.22(a)(4).                                                   crossings as may be determined by [Boardman
                                                                             Township] . . . ." Designating it as the "Crossing
  7KH 67% DXWKRUL]HV OLQH DEDQGRQPHQWV LQ WZR ZD\V                   Project" the [GSCSA] requires the Line Owner, within 3
5HGPRQG,VVDTXDK5\3UHV$VV¶QY67%)G                      months from the date the line is reactivated for continued
 Q  WK &LU   )LUVW WKH 67% PD\ SHUPLW WKH        rail service, to prepare and submit for the approval of
DEDQGRQPHQW RI D UDLOURDG OLQH E\ D UDLO FDUULHU RU WKH            [Boardman Township] and various state authorities
GLVFRQWLQXDQFHRIUDLOVHUYLFHLILWILQGVWKDWSUHVHQWRUIXWXUH            detailed plans and cost estimates for the acquisition of
SXEOLFFRQYHQLHQFHDQGQHFHVVLW\VXSSRUWVVXFKDEDQGRQPHQW                   additional property necessary for the construction of the
RUGLVFRQWLQXDQFH86&G7RLPSOHPHQW                    new grade separated crossing, including adjustments to
WKLVVWDQGDUGWKH67%EDODQFHVWKHSRWHQWLDOKDUPWRDIIHFWHG               the public highway, which will carry the rail line over or
VKLSSHUV DQG FRPPXQLWLHV DJDLQVW WKH SUHVHQW DQG IXWXUH               under Route 224 and other designated road crossings.
EXUGHQ WKDW FRQWLQXHG RSHUDWLRQV ZRXOG LPSRVH RQ WKH                  According to the [GSCSA], the Line Owner is
UDLOURDGDQGRQLQWHUVWDWHFRPPHUFH6HH&RORUDGRY8QLWHG                 responsible for all the costs and expenses associated with
6WDWHV865HGPRQG,VVDTXDK                   the Crossing Project. While these specific terms state
)G DW  QRWLQJ WKDW ³&RQJUHVV VRXJKW WR EDODQFH WKH           that the Line Owner has 3 months from the date the line
UDLOURDG FRPSDQLHV¶ QHHG WR PDQDJH LWV WUDFNV LQ DQ
   5DLOURDG9HQWXUHVHWDO      1RV       1RV           5DLOURDG9HQWXUHVHWDO        
     Y6XUIDFH7UDQVS%G                                 Y6XUIDFH7UDQVS%G
     HWDO                                                                                    HWDO

Kovalchick contract initially and it should not be able to        HFRQRPLFDOO\HIILFLHQWPDQQHUZLWKWKHSXEOLF¶VQHHGIRUD
profit from withholding information pertinent to the OFA          IXQFWLRQLQJLQWHUVWDWHUDLOURDGV\VWHP´7KH67%PD\DOVR
process. To hold otherwise would be to reward RVI for             DXWKRUL]HDQDEDQGRQPHQWE\JUDQWLQJDQH[HPSWLRQIURPWKH
undermining the integrity of the OFA process. Moreover, we        FHUWLILFDWLRQSURFHVV6HH86&D+RZHYHU
note that RVI does not contend that the Kovalchick contract       RQFHDUDLOOLQHKDVEHHQSURSHUO\DEDQGRQHGWKH67%ORVHV
is unenforceable or that RVI would be able to sell the track to   MXULVGLFWLRQ3UHVHDXOW86DWQ5/7'5\&RUS
anyone other than Kovalchick. Therefore, the STB provided         )GDW&RQVRO5DLO&RUS)GDW
a reasoned explanation for revaluing the track and materials
in accordance with the terms of the Kovalchick contract.             7KH ,&&7$ SURYLGHV IRU RIIHUV RI ILQDQFLDO DVVLVWDQFH
                                                                  2)$ WR DYRLG WKH DEDQGRQPHQW RI UDLO OLQHV  86&
     b. Escrow of Funds for Repairs                                  &)5   DQG IRU WKH VDOH VXEMHFW WR
                                                                  FRQGLWLRQVLPSRVHGE\WKH67%RIDEDQGRQHGUDLOSURSHUWLHV
   RVI also challenges the STB’s action in the October 4,         WKDW DUH DSSURSULDWH IRU SXEOLF XVH  86&  
2000 decision requiring CCPA to place $375,000 of the             6HFWLRQ E GLUHFWV D UDLO FDUULHU VHHNLQJ DXWKRULW\ WR
purchase price in an escrow account to ensure that RVI paid       DEDQGRQ D OLQH SXUVXDQW WR  86&   WR SURYLGH
for restorations to the track and signals. The STB ordered the    SURPSWO\ WR D SDUW\ FRQVLGHULQJ DQ 2)$ D UHSRUW RQ WKH
creation of the escrow account because RVI had authorized         SK\VLFDOFRQGLWLRQRI³WKDWSDUWRIWKHUDLOURDGOLQHLQYROYHG
state workers to pave over parts of the track and damage          LQWKHSURSRVHGDEDQGRQPHQW´WKHWUDIILFUHYHQXHDQGRWKHU
signals during its ownership of the embargoed line. RVI           GDWDQHFHVVDU\WRGHWHUPLQHWKHDPRXQWRIDQQXDOILQDQFLDO
argues that the escrow order was arbitrary because it was not     DVVLVWDQFHQHHGHG³WRFRQWLQXHUDLOWUDQVSRUWDWLRQRYHUWKDW
under a legal obligation to maintain the line for common          SDUWRIWKHUDLOURDGOLQH´DQGDQHVWLPDWHRIWKHPLQLPXP
carrier operations due to its embargo status at the time that     SXUFKDVHSULFHUHTXLUHG³WRNHHSWKHOLQHRUDSRUWLRQRIWKH
RVI authorized the pavement of parts of the line and the          OLQHLQRSHUDWLRQ´86&E
disconnection of signals. RVI also claims that the STB’s
escrow order was an unwarranted punitive measure.                    7KH 2)$ SURYLVLRQV RI WKH VWDWXWH JXDUDQWHH DQ\
                                                                  ³ILQDQFLDOO\UHVSRQVLEOH´SDUW\WKHULJKWWRDFTXLUHDUDLOOLQH
   RVI fails to demonstrate that the STB’s decisions in this      WR SURYLGH IRU FRQWLQXHG UDLO VHUYLFH  86&  
regard were arbitrary. Although RVI was not obligated to          8QGHUFDSURVSHFWLYH2)$SXUFKDVHU³PD\RIIHU
provide service on the line during the pendency of the            WRVXEVLGL]HRUSXUFKDVHWKHUDLOURDGOLQHWKDWLVVXEMHFWRI´DQ
embargo, see GS Roofing I, 143 F.3d at 391, the STB acted         DEDQGRQPHQWDSSOLFDWLRQ.XOPHU)GDW³7KH
reasonably in finding that RVI had an obligation to pay for       2)$SURYLVLRQVFUHDWHDIRXUPRQWKZDLWLQJSHULRGZKHUHLQ
any damage to the line. Further, the record shows that, in a      µDQ\SHUVRQPD\RIIHUWRVXEVLGL]HRUSXUFKDVHWKHUDLOURDG
series of letters from RVI Project Manager Dennis Matey to        OLQH WKDW LV WKH VXEMHFW¶ RI DQ DEDQGRQPHQW DSSOLFDWLRQ
state and local officials in Ohio, RVI acknowledged that it       F´A party must file its OFA within ten days of
would be responsible for any repair and reconnection costs.       a decision from the STB granting a petition for abandonment
Considering RVI’s conduct since acquiring the rail line, the      or exemption. 49 U.S.C. § 10904(c); 49 C.F.R.
STB, quite wisely, required an escrow of funds to repair the      § 1152.27(c)(1)(i)(B). After a prospective purchaser has
damage to the track done with RVI’s authorization.                "offered financial assistance regarding that part of the railroad
   5DLOURDG9HQWXUHVHWDO      1RV        1RV         5DLOURDG9HQWXUHVHWDO      
     Y6XUIDFH7UDQVS%G                                Y6XUIDFH7UDQVS%G
     HWDO                                                                                   HWDO

line to be abandoned or over which rail transportation is to be       7KH67%¶VGHFLVLRQVWRORZHUWKHVDOYDJHYDOXHRIWKH
discontinued," 49 U.S.C. § 10904(d)(1) obligates the STB to             WUDFN DQG PDWHULDOV DQG WR RUGHU 59, WR HVFURZ
decide if the prospective purchaser is "financially                      RI WKH VDOH SURFHHGV WR SD\ IRU WUDFN
responsible." 8QGHU  86&  D D ³ILQDQFLDOO\           UHVWRUDWLRQV DQG UHSDLUV ZHUH QRW DUELWUDU\ RU
UHVSRQVLEOHSHUVRQ´LVGHILQHGWREH                                  FDSULFLRXV
  DSHUVRQZKR±                                                       D   'RZQZDUG5HYDOXDWLRQRI7UDFNDQG0DWHULDOV
   LV FDSDEOH RI SD\LQJ WKH FRQVWLWXWLRQDO PLQLPXP          59, FKDOOHQJHV WZR RWKHU DFWLRQV RI WKH 67% LQ LWV
  YDOXHRIWKHUDLOURDGOLQHSURSRVHGWREHDFTXLUHGDQG          2FWREHUGHFLVLRQ)LUVW59,FRQWHQGVWKDWWKH67%
                                                                   DFWHGDUELWUDULO\E\UHYDOXLQJWKHWUDFNDQGPDWHULDOV,QLWV
  LVDEOHWRDVVXUHWKDWDGHTXDWHWUDQVSRUWDWLRQZLOOEH       -DQXDU\   GHFLVLRQ WKH 67% EDVHG LWV LQLWLDO WUDFN
  SURYLGHGRYHUVXFKOLQHIRUDSHULRGRIQRWOHVVWKDQ          YDOXDWLRQRQDILUPRIIHUIURP$	.5DLOURDG0DWHULDOV,QF
  \HDUV                                                          WREX\DQGUHPRYHWKHWUDFNIRU7KH67%UHGXFHG
                                                                   WKLVDPRXQWE\WRUHIOHFWQHHGHGUHVWRUDWLRQVLQJUDGH
86&D If a party files a timely OFA, and the      FURVVLQJV DUULYLQJ DW D QHW VDOYDJH YDOXH RI 
STB finds that the party is "financially responsible," then the    6HYHUDOPRQWKVODWHUWKH67%UHYLVLWHGLWVWUDFNDQGPDWHULDOV
STB must postpone the abandonment of the line. 49 U.S.C.           YDOXDWLRQ DIWHU UHFHLYLQJ QHZ HYLGHQFH IURP &&3$
§ 10904(d)(2).                                                     %HWZHHQWKH-DQXDU\DQG2FWREHUGHFLVLRQV&&3$
                                                                   VXEPLWWHGHYLGHQFHRI59,¶VFRQWUDFWVHOOLQJWKHWUDFN
   Postponement of abandonment remains in effect until the         VDOYDJHULJKWVWR.RYDOFKLFNIRU7KH67%GHFLGHG
line owner and the prospective OFA purchaser (offeror) have        WKDWWKHVDOHQXOOLILHGVXEVHTXHQWILUPSXUFKDVHRIIHUV
come to an agreement on the terms of sale, or until the STB        DQGWKDWWKHYDOXHRIWKHWUDFNFRXOGQRWH[FHHGWKHDPRXQW
sets the terms of sale upon the request of either the line owner   59,KDGUHFHLYHGDFFRUGLQJWRFRQWUDFW
or purchaser. 49 U.S.C. § 10904(d)(2)-(f).Pursuant to 49
C.F.R. § 1152.27(h)(3), "[t]he offeror has the burden of proof        &RQWUDU\WR59,¶VFRQWHQWLRQWKH67%¶VGHFLVLRQWRUHGXFH
as to all issues in dispute." See Iowa Terminal Ry. Co. v.         WKHVDOYDJHYDOXHZDVQRWDUELWUDU\RUFDSULFLRXV$OWKRXJK
ICC, 853 F.2d 965, 969 (D.C. Cir. 1988) (noting that the           59,PDLQWDLQVWKDWWKH67%DFWHGDUELWUDULO\LQOLPLWLQJWKH
buyer "must present sufficient evidence of the line’s value to     WUDFNVDOYDJHYDOXHWRWKHDPRXQWUHFHLYHGIURPWKH
meet that burden"). When setting the terms and conditions of       .RYDOFKLFNFRQWUDFW because the contract with Kovalchick did
a sale of a rail line, the STB cannot set a price lower than the   not concern the fair market value of the track in 2000, and
"fair market value of the line." 49 U.S.C. § 10904(f)(1)(B).       because the contract with Kovalchick included a deeply
Under § 10907(b)(2), the "constitutional minimum value of          discounted salvage value based on the STB’s future
a particular railroad line shall be presumed to be not less than   abandonment authorization, the STB properly points out that
the net liquidation value of such line or the going concern        RVI would not have been able to sell the track for any more
value of such line, whichever is greater." 49 U.S.C.               than it had received in 1996. Further, the STB justifies its
§ 10907(b)(2); 49 C.F.R. § 1152.27(h)(6); GS Roofing II, 262       track revaluation, as stated in the October 4, 2000 decision, on
F.3d at 771 (noting that "Congress authorized the Board,           the ground that RVI failed to come forward with the
    5DLOURDG9HQWXUHVHWDO       1RV          1RV          5DLOURDG9HQWXUHVHWDO       
      Y6XUIDFH7UDQVS%G                                    Y6XUIDFH7UDQVS%G
      HWDO                                                                                       HWDO

assembled corridor." 559HQWXUHV:/DW                under particular circumstances, to force the sale of a railroad
6HH3RUWODQG7UDFWLRQ&R±$EDQGRQPHQW([HPSWLRQ±                line at its ‘constitutional minimum value’ to a ‘financially
LQ 0XOWQRPDK 	 &ODFNPDV &RXQWLHV 'RFNHW 1R $%             responsible person’").
6XE1R;:/DW'HFLGHG-DQ
DFFHSWLQJFRUULGRUYDOXDWLRQRQWKHEDVLVRIDQH[HFXWHGVDOHV          49 U.S.C. § 10904(f)(2) gives an offeror ten days in which
FRQWUDFW                                                             to withdraw the offer to purchase a rail line following a
                                                                       decision of the STB setting the terms of the sale. See also 49
  ,QGHFLGLQJWKHYDOXDWLRQLVVXHZHDUHFRQVWUDLQHGE\WKH           C.F.R. § 1152.27(h)(7). By statute, only the offeror is
QDUURZ VWDQGDUG RI UHYLHZ DSSOLFDEOH WR DJHQF\ GHFLVLRQV       authorized to withdraw from the terms of a STB-directed sale.
ZKLFKJHQHUDOO\UHTXLUHVDIILUPDQFHRIWKH67%¶VYDOXDWLRQ             49 U.S.C. § 10904(f)(2). Without a withdrawal by the offeror
GHFLVLRQV$VQRWHGLQ,RZD7HUPLQDO                                 within the ten-day period, the STB’s decision becomes
                                                                       binding on both parties. 49 U.S.C. § 10904(f)(2);.XOPHU
  ,QFRQVLGHULQJHDFKHOHPHQWRIWKHYDOXDWLRQRUGHUZH               )GDW³,IWKH67%ILQGVWKDWDQRIIHUPHHWVFHUWDLQ
  DUHPLQGIXOWKDWWKH>67%¶V@GHFLVLRQ³PXVWEHXSKHOGLI            FULWHULDWKHUDLOURDGLVIRUFHGWRVHOOWKHOLQHWRWKHRIIHURU
  EDVHGRQWKHUHFRUGEHIRUHLWWKH>67%¶V@GHFLVLRQLVQRW           DFFRUGLQJ WR WKH WHUPV QHJRWLDWHG E\ WKH SDUWLHV RU ZKHQ
  DUELWUDU\RUFDSULFLRXV´,OOLQRLV&HQW*XOI55&RY           QHFHVVDU\WHUPVLPSRVHGE\WKH67%´2QFHWKHUDLOOLQH
  ,&&)GWK&LU:KLOHZHPD\                KDVEHHQDFTXLUHGWKHSXUFKDVHUPD\QRWGLVFRQWLQXHVHUYLFH
  QRWVXEVWLWXWHRXUMXGJPHQWIRUWKDWRIWKHDJHQF\ZH               IRU DW OHDVW WZR \HDUV   86&  I$ Nat’l
  PXVW QHYHUWKHOHVV VDWLVI\ RXUVHOYHV WKDW WKH >67%@             Ass’n of Reversionary Prop. Owners, 158 F.3d at 138 n.4
  FRQVLGHUHGDOOUHOHYDQWIDFWRUVDQGSURYLGHGDUHDVRQHG              (noting that abandonment authorization in accordance with
  H[SODQDWLRQIRULWVGHFLVLRQ                                        the exemption procedures under § 10502 is available "when
,RZD7HUPLQDO)GDWFLWLQJ0RWRU9HKLFOH0IUV             no local traffic has run on the line in at least two years").
$VV¶Q  86 DW   $SSO\LQJ WKLV QDUURZ VWDQGDUG RI    %6WDWHPHQWRI)DFWV
UHYLHZZHILQGWKDWWKH67%GLGQRWDFWLQDQDUELWUDU\RU
FDSULFLRXVIDVKLRQE\UHIXVLQJWRFUHGLWDOORI59,¶VFRUULGRU            7KHVHFRQVROLGDWHGFDVHVLQYROYHDPLOHUDLOURDGOLQH
YDOXDWLRQHYLGHQFH$VWKH67%SRLQWVRXWLQLWVDUJXPHQWV            UXQQLQJIURP<RXQJVWRZQ2KLRWR'DUOLQJWRQ3HQQV\OYDQLD
WRWKLV&RXUWWKH67%LVXQGHUDOLPLWHGVWDWXWRU\WLPHIUDPH         ZLWK D FRQQHFWLQJ RQHPLOH VHJPHQW QHDU 1HJOH\ 2KLR
WKLUW\ GD\V LQ ZKLFK WR PDNH D GHWHUPLQDWLRQ RI WKH IDLU   Without the authorization of the STB, 59,DFTXLUHGthe rail
PDUNHWYDOXHRIWKHOLQH7RPDNHDUHDVRQHGGHWHUPLQDWLRQ           line in question from the former Youngstown and Southern
WKH 67% PXVW HVWDEOLVK JXLGHOLQHV IRU FRQVLGHULQJ DQG           Railroad Company for $730,000 on November 8, 1996. See
FUHGLWLQJYDOXDWLRQHYLGHQFH,QWKLVFDVHZHEHOLHYHWKDWWKH       R.R. Ventures, Inc. ± $EDQGRQPHQW ([HPSWLRQ ± Between
67%E\UHTXLULQJVLJQHGVDOHVFRQWUDFWVRUELQGLQJSXUFKDVH           Youngstown, OH, and Darlington, PA, in Mahoning and
RIIHUVDVHYLGHQFHRIDFRUULGRUYDOXHIRUDOORUSDUWRIDOLQH      Columbiana Counties, OH, and Beaver County, PA, 67%
KDVPDGHDUHDVRQHGDQGZRUNDEOHFKRLFH                              'RFNHW1R$%6XE1R;:/DW
                                                                       6HUYLFH'DWH-DQUpon purchasing the line, RVI
                                                                       entered into a management agreement with OLE, Ltd.
                                                                       ("OLE"), whose managing member was David L. Handel, the
       5DLOURDG9HQWXUHVHWDO       1RV           1RV       5DLOURDG9HQWXUHVHWDO    
         Y6XUIDFH7UDQVS%G                                  Y6XUIDFH7UDQVS%G
         HWDO                                                                                     HWDO

current president of RVI. Unbeknownst to the STB, RVI and                  a 20.6 acre (4.2 mile) easement to the Park District for
OLE, under the management agreement, expressed their                       $600,000, submitted by RVI initially in support of its
"intent to liquidate the property in whole or in part to                   assembled corridor valuation. While the STB did not explain
maximize the cash flow potential to both parties,"                         why it had not included the Park District agreement in the
contemplating the complete removal of railroad track and ties,             first valuation decision, it nonetheless stated that "RVI’s
which the agreement termed "debris." See R.R. Ventures, Inc.               evidence sufficiently described the location of this land, and
 Abandonment Exemption  Between Youngstown, OH, and                      the signed sales contract was good evidence of the value of
Darlington, PA, in Mahoning and Columbiana Counties, OH,                   that real estate." The STB refused to credit any other
and Beaver County, PA, STB Docket No. AB-556 (Sub-No.                      evidence proffered by RVI in support of corridor valuation,
2X), 2000 WL 1801264, at *1 6HUYLFH'DWH'HF                   particularly an 11.7-mile aerial easement RVI had earlier
To that end, RVI promptly sold the future right to salvage the             granted to Ohio Edison Company. RVI had included with its
line’s tracks and materials to another company. RVI also                   evidentiary submissions evidence of a land easement to First
immediately canceled the lease of the Ohio & Pennsylvania                  Energy Company covering the same tract, but the STB
Railroad Company ("OPRC"), the only operator authorized to                 concluded that including that easement in the valuation would
provide service on the line, thus terminating rail service for             permit RVI to receive double compensation for the land. The
several shippers on the rail line, including Darlington Brick              STB also refused to consider evidence submitted by RVI
and Clay Products Company ("Darlington Brick") and Insul                   pertaining to the sale of the four-acre parcel to the Park
Products, Inc. ("Insul"). R.R. Ventures, 2001 WL 41202, at                 District, concluding that RVI had failed to distinguish its
*1.                                                                        location from the 20.6-acre easement to the Park District, and
                                                                           easement proposals from three other entities. The STB
  As a consequence, OPRC declared an embargo on                            concluded that RVI had showed only that the entities had
November 19, 1996, stating the cancellation of its lease as the            obtained funding for trails, not that they had entered into an
cause. However, upon receiving complaints from Darlington                 agreement with RVI.
Brick and Insul, the STB’s Office of Compliance and
Enforcement ("OCE") investigated the cessation of rail                        Applying the proper burden of proof standard, the STB, in
service. Thereafter, the STB reached an agreement with the                 its January 7, 2000 decision, determined that RVI’s evidence
parties for service to be restored, and the embargo was                    was less authoritative in comparison to CCPA’s evidence.
canceled. RVI also agreed to seek belated authority from the               The STB explained that it did not ordinarily accept
STB to acquire the line. However, on December 18, 1996,                    assembled-corridor valuation, absent executed sales contracts
about one week after service on the line was restored, a                   for the entire corridor. See Boston & Maine Corp. 
weather-related washout occurred that again prevented rail                 Abandonment  In Hartford & New Haven Counties, Conn.,
                                                                           STB Docket No. AB-355 (Sub-No. 23), 1998 WL 348755, at
                                                                           *3 (Service Date July 1, 1998). In its October 4, 2000
                                                                          decision, the STB further explained: "In setting terms and
     ³$Q HPEDUJR LV µDQ HPHUJHQF\ PHDVXUH SODFHG LQ HIIHFW EHFDXVH RI
                                                                           conditions of a sale under section 10904, we cannot credit
                                                                    
VRPH GLVDELOLW\ RQ WKH SDUW RI WKH FDUULHU ZKLFK PDNHV WKH ODWWHU XQDEOH
                                                                           speculative evidence, but rely upon firm bids (from a
)G DW  TXRWLQJ                                              )
SURSHUO\ WR SHUIRUP LWV GXW\ DV D FRPPRQ FDUULHU¶´   *6 5RRILQJ ,

                                                                           purchaser) or signed contracts in establishing the value of an
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   At the time the STB rendered its January 7, 2000 decision,     service on the line. See R.R. Ventures, Inc.  Acquisition and
RVI and CCPA produced estimates of land value according           Operation Exemption  Youngstown & S. Ry. Co., STB
to two methodologies. RVI contended that the highest and          Finance Docket No. 33385, 1997 WL 392877, at *1 (Service
best value of the land was as a single non-rail corridor, with    Date July 15, 1997).
a small number of purchasers obtaining easements or rights-
of-way over segments of the corridor. (J.A. at 1085-1119.)           Thereafter, on January 3, 1997, RVI filed a notice of
CCPA proffered evidence of value according to the "across         exemption invoking the class exemption provision at 49
the fence" ("AFT") methodology: dividing the tract into a         C.F.R. 1150.31(a)(1) for retroactive authorization of its
large number of parcels, valuing each parcel as if sold to        purchase of the rail line, stating that it had been unaware of
owners of adjoining parcels, and totaling the values of the       the need to obtain the STB’s approval to acquire the line and
parcels. RVI’s assembled corridor methodology produced a          that it had purchased the line "for the purpose of conducting
value of $1,472,930, while CCPA’s "AFT" methodology               rail freight common carrier operations" on it.,QUHVSRQVH
estimated the land value at $450,000.                             &&3$ DQG WKH 2KLR 5DLO 'HYHORSPHQW &RPPLVVLRQ
                                                                  ³25'&´ILOHGSHWLWLRQVWRUHMHFWUHYRNHRUVWD\WKHQRWLFH
  As between the two methodologies, the STB decided               RIH[HPSWLRQFODLPLQJWKDW59,GLGQRWLQWHQGWRRSHUDWHWKH
CCPA’s approach was more appropriate. Specifically, the           OLQHDQGWKDWLWKDGSUHYLRXVO\PDGHDUUDQJHPHQWVWRVFUDSWKH
STB rejected RVI’s assembled corridor methodology,                OLQH,QDQRUGHUHQWHUHGRQ-DQXDU\WKH67%UHMHFWHG
explaining that "[u]nless there is a specific documented          59,¶V QRWLFH RI H[HPSWLRQ EHFDXVH 59, KDG QRW
interest expressed by a potential purchaser of an intact          DFNQRZOHGJHG LWV FRPPRQ FDUULHU REOLJDWLRQV WR SURYLGH
corridor, we do not consider this to be an acceptable method      VHUYLFHRQWKHOLQHDQGEHFDXVH&&3$KDGDOOHJHGWKDW59,
of valuation for [net liquidation value] purposes." Although      ZRXOGQRWRSHUDWHRUDUUDQJHIRUDQRWKHUSDUW\WRRSHUDWHWKH
RVI proffered copies of purchase agreements from the Park         OLQH 6HH R.R. Ventures, Inc.  Acquisition and Operation
District and Ohio Edison Company for trail and utility            Exemption  Youngstown and S. Ry. Co., STB Finance
easements, the STB rejected RVI’s estimate of value as            Docket No. 33336, 1997 WL 7537, at *1-2 (Service Date Jan.
insufficient because the agreements pertained to portions of      9, 1997).
the corridor, rather than the corridor as a whole. In contrast,
the STB accepted CCPA’s appraisal as "complete and                  Subsequently, the Ohio & Pennsylvania Railroad Company
adequately supported and its . . . values appropriately           ("OPRC"), ORDC, CCPA, the North East Ohio Trade &
adjusted," describing the values stated in the appraisal as       Economic Consortium, Mahoning County Commissioners,
"reasonable based on the comparable sales data presented."        and other public agencies provided funding for the repairs to
Having accepted CCPA’s evidence, and subtracting $100,000         the line. However, when the Wintrow Construction
to represent an assignment by RVI for lease and interest          Corporation ("Wintrow") attempted on January 31, 1997 to
income, the STB reached a land value of $350,000.
  Thereafter, in its October 4, 2000 decision, the STB                
                                                                       8QGHU  86&   D SDUW\ WKDW LV QRW D UDLO FDUULHU PD\
revisited the land valuation. The STB decided to adjust the       LQYRNH WKH SURFHGXUHV IRU FODVV H[HPSWLRQ XQGHU  &)5  
land value upward to include an executed sale agreement for        WR DFTXLUH DQ DFWLYH UDLO OLQH UDWKHU WKDQ ILOH D GHWDLOHG DSSOLFDWLRQ
                                                                  XQGHU  &)5   
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obtain, through a general release, RVI’s permission to repair          559HQWXUHV:/DWFLWLQJ&KLFDJRDQG
the rail line in order to restore rail service, RVI rejected           1RUWK:HVWHUQ7UDQVS&R$EDQGRQPHQW,&&
Wintrow’s general release form and refused to permit the               /DNH*HQHYD/LQHDII¶GVXEQRP&KLFDJRDQG
necessary repairs to be made. As a result, the ORDC and                1RUWK:HVWHUQ7UDQVS&RY8QLWHG6WDWHV)G
CCPA filed a declaratory action on February 5, 1997 to                 WK&LU
prevent RVI from interfering with the repairs. On the same
date, the STB’s OCE sent a letter to RVI giving it 20 days to             As previously stated, the regulations place the burden of
refile for the requisite authority to acquire the rail line and        proof on the offeror for all issues in dispute concerning the
admonishing it not to interfere with OPRC’s rail operations            terms and conditions of the sale. 49 C.F.R. § 1152.27(h)(3).
in the interim. See R.R. Ventures, 1997 WL 392877, at *2.              In its January 7, 2000 decision, the STB noted:
In its response on February 25, 1997, RVI claimed that it had
reached an agreement with the contractor hired to repair the             Placing the burden of proof on the offeror is particularly
flood-damaged track, and that repairs would begin on                     appropriate in these proceedings because the offeror may
February 28, 1997 and would take about two months to                     withdraw its offer at any time prior to its acceptance of
complete. Id. RVI also indicated its intention to file for the           terms and conditions that we establish pursuant to a
legal acquisition of the rail line within 30 days of its letter. Id.     party’s request. The rail carrier, on the other hand, is
                                                                         required to sell its line to the offeror at the price we set,
   Given these assurances, the STB subsequently authorized               even if the railroad views the price as too low.
RVI’s retention of the line. A verified notice of exemption
allowing RVI to acquire and operate the rail line was                  559HQWXUHV 2000 WL 1125904, at *5. The STB explained
published on April 24, 1997. Notwithstanding the concerns              how this burden affected its method of valuing rail lines as
of the ORDC and CCPA that "RVI has not demonstrated the                follows:
remotest interest in undertaking the obligations and
responsibilities involved in an acquisition of an active line for          The burden of proof standard requires that, absent
the purpose of conducting continuing rail freight common                 probative evidence supporting the offeror’s estimates, the
carrier obligations," the STB denied their petition for a                rail carrier’s evidence is accepted. In areas of
declaratory order on July 15, 1997, as well as their petition to         disagreement, the offeror must present more specific
reject or revoke the notice of exemption. To allay the                   evidence or analysis or provide more reliable and
concerns of the ORDC and CCPA, however, the STB                          verifiable documentation than that which is submitted by
required RVI to "submit biweekly reports to the OCE on the               the carrier. Absent specific evidence supporting the
status of the lines’ restoration and to provide specific details         offeror’s estimates and contradicting the rail carrier’s
of the cause of any delays in restoring service." Id. at *3.             estimates, the fact that the burden of proof is on the
                                                                         offeror requires that we accept the carrier’s estimates in
   Thereafter, RVI filed reports infrequently, and rail service          these forced sales proceedings.
was restored for only a short period of time in 1997. After
repairs funded by state and local agencies were made to the            Id.
line, another washout occurred. After this washout, RVI
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         Y6XUIDFH7UDQVS%G                                        Y6XUIDFH7UDQVS%G
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intervenor’s argument regarding demand for an evidentiary                 refused to fund any repairs and did not cooperate with the
hearing because another party "did not assert this specific               public agencies that sought to restore service, despite the
claim before us") (citing Ill. Bell Tel. v. FCC, 911 F.2d 776,            repeated requests of local shippers and local and state
786 (D.C. Cir. 1990)). Accordingly, we DIILUPthe STB’s                   government officials to resume rail service. See R.R.
October 4, 2000 decision to the extent that it ordered RVI to             Ventures, Inc.  Abandonment Exemption  Between
transfer its entire fee simple interest in the rail line as               Youngstown, OH, and Darlington, PA, in Mahoning and
described in RVI’s abandonment petition.                                  Columbiana Counties, OH, and Beaver County, PA, STB
                                                                          Docket No. AB-556 (Sub-No. 1X), 1999 WL 23286, at *2
3.     The STB’s determination of the land value of the line              (Service Date Jan. 22, 1999). 6SHFLILFDOO\ ,QVXO PDGH D
       was not unreasonable or arbitrary                                  IRUPDO UHTXHVW RQ 'HFHPEHU   IROORZHG E\
                                                                          'DUOLQJWRQ%ULFNRQ-DQXDU\IRUUDLOVHUYLFHWREH
   When setting the terms and conditions of a sale of a rail              UHVWRUHGWRWKHLUIDFLOLWLHV
line, the STB cannot set a price lower than the "fair market
value of the line." 49 U.S.C. § 10904(f)(1)(B). Pursuant to                  $W WKLV SRLQW 59, ILOHG D QRWLFH RI FODVV H[HPSWLRQ RQ
49 U.S.C. § 10907(b)(1), the STB is directed to set the                   -DQXDU\WRDEDQGRQWKHUDLOOLQHFODLPLQJWKDW³WKH
purchase price for the forced sale of a rail line at "not less            OLQHLVQRWHFRQRPLFDOO\YLDEOH´DQGWKDW³LWVKRXOGEHDOORZHG
than the constitutional minimum value." The "constitutional               WR DEDQGRQ DQG HLWKHU VDOYDJH LW RU SHUPLW RWKHU LQWHUHVWHG
minimum value" is defined as "not less than the net                       SDUWLHV WR DFTXLUH WKH OLQH WKURXJK WKH RIIHU RI ILQDQFLDO
liquidation value of such line or the going concern value of              DVVLVWDQFHSURFHGXUHVXQGHU86&DQG&)5
such line, whichever is greater." GS Roofing II, 262 F.3d at              ´,GDW2QWKHVDPHGDWHWKH235&DOVRILOHGD
774; see also &)5KGHILQLQJ³IDLUPDUNHW            QRWLFH RI FODVV H[HPSWLRQ XQGHU  &)5  WR
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RIWKHQHWOLTXLGDWLRQYDOXHRIWKHOLQHRUWKHJRLQJFRQFHUQ             DQG 235& LPSURSHUO\ LQYRNHG WKH FODVV H[HPSWLRQ
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       Y6XUIDFH7UDQVS%G                                  Y6XUIDFH7UDQVS%G
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   2Q0D\59,VXEPLWWHGDQRWKHUDSSOLFDWLRQWRWKH            County of Allegheny, 74 Pa. Cmwlth. 85, 90, 459 A.2d 1298,
67%IRUH[HPSWLRQIURPFHUWDLQUHJXODWLRQVSXUVXDQWWR               1300 (1983) ("Black’s Law Dictionary defines a fee simple
86&   DQG IRU DXWKRULW\ WR DEDQGRQ WKH UDLO OLQH    estate as ‘one in which the owner is entitled to the entire
SXUVXDQWWR86&D,QLWVSHWLWLRQ59,VWDWHG          property, with unconditional power of disposition during his
WKDWWKHOLQHKDGEHHQRXWRIVHUYLFHIRUWZR\HDUVGXHWRWKH          life, and descending to his heirs and legal representatives
ZDVKRXW DQG DQ HPEDUJR  59,¶V SHWLWLRQ DOVR LQFOXGHG D        upon his death intestate.’").
YHULILHG VWDWHPHQW RI 'DYLG +DQGHO 59,¶V SUHVLGHQW ZKR
VWDWHGWKDW59,¶VULJKWRIZD\H[WHQGHGIURPPLOHSRVWWR             Moreover, contrary to RVI’s contention, there was no
PLOHSRVWFRQVLVWLQJRIDFUHVDQGWKDWLWVQHW            unconstitutional taking in this case. See U.S. Const. amend
OLTXLGDWLRQYDOXHRIPLOOLRQZDVEDVHGXSRQDIXOOIHH             V ("[N]or shall private property be taken for public use,
LQWHUHVWLQWKHSURSHUW\                                             without just compensation."); In re Chicago, Milwaukee, St.
                                                                        Paul and Pacific Ry. Co., 799 F.2d 317, 324 (7th Cir. 1986).
   &&3$ WKHQ UHOLHG XSRQ +DQGHO¶V GHVFULSWLRQ RI WKH             As set forth in 49 U.S.C. § 10907(b)(1), Congress authorized
SURSHUW\DQGKLVYDOXDWLRQRIWKHIXOOIHHLQWHUHVWLQWKHUDLO         the STB to force the sale of a railroad line at its
OLQHZKHQLWSUHSDUHGLWVHVWLPDWHRIWKHSXUFKDVHSULFHGXULQJ         "constitutional minimum value" to "a financially responsible
WKH2)$SURFHVV2Q$XJXVW&&3$LQYRNLQJWKH                 person." GS Roofing II, 262 F.3d at 771.  7KDW LV ZKDW
2)$SURFHGXUHVVHWIRUWKLQ86&DQG&)5             RFFXUUHGKHUH6HH8QLWHG6WDWHVY$FUHVRI/DQG
D UHTXHVWHG ILQDQFLDO GDWD DQG LQIRUPDWLRQ IURP         86QQRWLQJWKDWWKHFRQVWLWXWLRQDOPHDVXUH
59,FRQFHUQLQJDQHVWLPDWHRIWKHPLQLPXPSXUFKDVHSULFH                RIMXVWFRPSHQVDWLRQLVZKDWDZLOOLQJEX\HUZRXOGSD\LQ
UHTXLUHG WR NHHS WKH OLQH LQ RSHUDWLRQ WKH HVWLPDWHG QHW      FDVKWRDZLOOLQJVHOOHUTXRWLQJ8QLWHG6WDWHVY0LOOHU
OLTXLGDWLRQYDOXHRIWKHOLQHDQGGRFXPHQWDWLRQVKRZLQJWKDW            86
59,KDGPDUNHWDEOHWLWOHWRWKHODQGAlthough RVI provided
some of the information on August 10, 1999, it advised                     Finally, although it appears that the STB approved certain
CCPA to arrange for copying the valuation maps and deeds                transactions by RVI with third parties after RVI filed its
for the line at RVI’s offices. However, when CCPA arranged              abandonment petition, we note that these transactions are not
for its retained appraiser, Mr. John Rossi of Real Estate               being challenged on appeal. Specifically, CCPA, as an
Appraisal Associates, to visit RVI’s business office, he was            intervening party in these proceedings pursuant to Rule 15(d)
                                                                        of the Federal Rules of Appellate Procedure, has not appealed
                                                                        from the STB’s orders and has requested affirmance of its
                                                                        decisions. Because CCPA has not challenged the STB’s
     LV UHTXLUHG IRU WKH %RDUG WR PDNH DQ LQIRUPHG GHFLVLRQ RQ          approval of RVI’s conveyance of certain property interests
     ZKHWKHU WR DSSURYH WKH DEDQGRQPHQW RI WKLV OLQH RI UDLOURDG DQG    associated with the rail line after RVI filed its abandonment
     IRU RWKHU SDUWLHV ZKR PLJKW EH LQWHUHVWHG LQ SXUFKDVLQJ WKH OLQH   petition, it is therefore unnecessary to remand for further
     XQGHU VHFWLRQ  WR UHVWRUH VHUYLFH                            proceedings since CCPA is not seeking to acquire those
R.R. Ventures, Inc.  Abandonment Exemption  Between Youngstown,       property interests not conveyed to it. See Platte River
OH, and Darlington, PA, in Mahoning and Columbiana Counties, OH,        Whooping Crane Critical Habitat Maintenance Trust v.
and Beaver County, PA, STB Docket No. AB-556 (Sub-No. 1X), 1999         FERC, 962 F.2d 27, 37 n.4 (D.C.Cir.1992) (refusing to reach
WL 23286, at *2 (Service Date Jan. 22, 1999).
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   Notwithstanding, RVI argues that it should not be required       denied access by RVI to the relevant valuation maps and
to convey a fee simple interest in the rail line because the        deeds.
STB in its January 7, 2000 decision only required it to
transfer "all property by quit claim deed." As RVI notes, a           On September 2, 1999, the STB granted RVI’s petition for
"quit-claim deed transfers only those rights which a grantor        exemption pursuant to 49 U.S.C. § 10502, stating that any
has at the time of the conveyance." Finomore v. Epstein, 18         party interested in purchasing the line for continued rail
Ohio App.3d 88, 89, 481 N.E.2d 1193, 1196 (Ohio App.                service could submit an offer of financial assistance ("OFA"),
1984) (citing Jonke v. Rubin, 170 Ohio St. 41, 41, 162 N.E.2d       pursuant to 49 U.S.C. § 10904 and 49 C.F.R. § 1152.27(c)(1),
116, 116 (1959)); Greek Catholic Congregation of Borough            by September 13, 1999. See R.R. Ventures, Inc. 
of Olyphant v. Plummer, 338 Pa. 373, 377, 12 A.2d 435, 437          Abandonment Exemption  Between Youngstown, OH, and
(Pa. 1940). At the time of the conveyance in these cases, RVI       Darlington, PA, in Mahoning and Columbiana Counties, OH,
was required to transfer a full fee interest in the property.       and Beaver County, PA, STB Docket No. AB-556 (Sub-No.
Thus, the STB’s order directing RVI to transfer "all property       2X), 1999 WL 714565 (Service Date Sept. 3, 1999). In the
by quit-claim deed" was tantamount to ordering it to transfer       absence of an OFA, the exemption became effective October
a fee simple interest in the property associated with the rail      3, 1999, allowing RVI to salvage track, ties, and other
line.                                                               railroad appurtenances, and to dispose of the right-of-way.
  In addition, because CCPA acquired a fee simple interest in         On September 3, 1999, one day after the STB granted
the rail line, RVI was required to transfer all its property        RVI’s exemption petition, CCPA formally notified RVI and
interests associated with the rail line. Under Ohio law, a fee      the STB that it was considering an OFA to purchase the line
simple is the highest right, title and interest that one can have   for rail service. CCPA also petitioned the STB to toll the
in land; it is the full and absolute estate in all that can be      period for submitting an OFA until 30 days after RVI had
granted. Masheter v. Diver, 20 Ohio St.2d 74, 78, 253 N.E.2d        supplied all requested documents and information.
780, 782 (1969); see also 20 Ohio Jurisprudence 2d 237,
Estates, Section 8 ("An estate in fee simple is the entire
interest and property in the land."); Muirfield Ass’n, Inc. v.
Franklin County Bd. of Revision, 73 Ohio St.3d 710, 711, 654
                                                                         
                                                                          6XEVHTXHQWO\ &&3$ DOVR VRXJKW WR DFTXLUH D UDLOURDG OLQH EHWZHHQ
N.E.2d 110, 111 (1995) (defining "fee simple" as "[a]bsolute        6WUXWKHUV DQG <RXQJVWRZQ2KLR IURP WKH EDQNUXSWF\ HVWDWH RI 3LWWVEXUJK
                                                                    	 /DNH (ULH 3URSHUWLHV ,QF WR DOORZ &HQWUDO &ROXPELDQD 	 3HQQV\OYDQLD
ownership unencumbered by any other interest or estate;             5DLOZD\ ,QF ³&&35´ ³WR RSHUDWH IURP 'DUOLQJWRQ WR WKH SRLQW RI
subject only to the limitations of eminent domain, escheat,         LQWHUFKDQJH ZLWK &6; 7UDQVSRUWDWLRQ ,QF DW PLOHSRVW  DW RU QHDU
police power, and taxation") (quoting the American Institute        6WUXWKHUV DQG ZLWK 1RUIRON 6RXWKHUQ 5DLOZD\ &RPSDQ\ DW PLOHSRVW 
of Real Estate Appraiser’s Dictionary of Real Estate                DW +DVHOWRQ <DUG´ Columbiana County Port Auth.  Acquisition
Appraisal (1984)). Equally, under Pennsylvania law, "[a] fee        Exemption  Certain Rail Assets of Pittsburgh & Lake Erie Props., Inc.,
simple absolute is a form of ownership in which a party has         in Mahoning County, OH, STB Finance Docket No. 33880, 2000 WL
                                                                    821476, at *1 (Service Date June 26, 2000). :H QRWH WKDW <RXQJVWRZQ
unlimited power to sell, transfer, alienate, or bequeath the        	 6RXWKHUQ 5DLOURDG &RPSDQ\ ZKLFK RZQHG WKH UDLO OLQH DW LVVXH LQ WKH
property in any lawful manner." In re Estate of Rider, 711          SUHVHQW FDVHV EHIRUH LWV SXUFKDVH E\ 59, ZDV D ZKROO\ RZQHG VXEVLGLDU\
A.2d 1018, 1021 (Pa. Super. 1998); see also Captline v.             RI WKH 0RQWRXU 5DLOURDG &RPSDQ\ ZKLFK LQ WXUQ ZDV D ZKROO\ RZQHG
                                                                    VXEVLGLDU\ RI 3LWWVEXUJK 	 /DNH (ULH 3URSHUWLHV ,QF
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      Y6XUIDFH7UDQVS%G                                     Y6XUIDFH7UDQVS%G
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6SHFLILFDOO\&&3$UHTXHVWHGWKDW59,SURYLGHLQIRUPDWLRQ                over the matter, any transactions affecting the property
DERXWLWVHVWLPDWHGPLQLPXPSXUFKDVHSULFHWRFRQWLQXHUDLO              interests associated with the rail line entered into by a rail
RSHUDWLRQV LWV HVWLPDWHG QHW OLTXLGDWLRQ YDOXH RI WKH OLQH     owner after filing an abandonment petition are invalid
LQFOXGLQJ UHDO HVWDWH DSSUDLVDOV LWV SURSHUW\ LQWHUHVW LQ WKH
OLQHDQGYDOXDWLRQPDSVIRUWKHOLQH2Q6HSWHPEHU              $OWKRXJK WKH 67% HUUHG LQ LWV LQWHUSUHWDWLRQ RI
WKH 67% JUDQWHG &&3$¶V UHTXHVWHG H[WHQVLRQ RI WLPH               I%ZHQRQHWKHOHVVDIILUPWKH67%¶V2FWREHU
DOORZLQJ&&3$WRILOHDQ2)$ZLWKLQWKLUW\GD\VRI59,¶V                 GHFLVLRQWRWKHH[WHQWWKDWLWordered RVI to transfer its
SURYLVLRQ RI WKH UHTXHVWHG LQIRUPDWLRQ RUGHULQJ 59,               entire fee simple interest in the property constituting the line
³SURPSWO\ WR SURYLGH RIIHURUV ZLWK DOO RI WKH LQIRUPDWLRQ        that was the subject of RVI’s exemption petition for
UHTXLUHGE\&)5D´6HHR.R. Ventures, Inc.             abandonment. In this case, RVI, in its abandonment petition
Abandonment Exemption  Between Youngstown, OH, and                      dated May 19, 1999, submitted the verified statement of its
Darlington, PA, in Mahoning and Columbiana Counties, OH,                 president, David Handel, stating that RVI sought to abandon
and Beaver County, PA, STB Docket No. AB-556 (Sub-No.                    the rail line comprising 302.016 acres from milepost 0.0 to
2X), 1999 WL 715271, at *2 (Service Date Sept. 10, 1999).                milepost 35.7, including "a short spur line and several
The STB also extended the effective date of RVI’s exemption              buildings referred to generically as the Negley Shops." RVI
until forty days after RVI had provided the information. Id.             placed the fair market value of the full fee interest "for the
at *3.                                                                   302.016 acres of ground comprising the RVI right of way" at
                                                                         $1,162,555. When CCPA thereafter inquired about the
  Shortly thereafter, by a letter dated September 20, 1999,              property to be sold, RVI confirmed that "an ample description
CCPA’s attorney advised the STB and RVI that CCPA                        of the line in question and the acreage involved in this rail
expected to acquire a full fee interest held by RVI as well as           line" was provided in its abandonment petition. (J.A. at 860,
"all of the interests encompassed in RVI’s estimate of                   1681.) RVI also advised both the STB and CCPA in a letter
purchase price to keep the line in operation." (J.A. at 545.)            dated September 21, 1999 that "[s]hould CCPA determine
RVI’s counsel responded the following day, stating that                  that it is necessary to acquire a fee interest in the right of way
"should CCPA determine that it is necessary to acquire a fee             in order to operate the rail line under 49 C.F.R. § 1152.27,
interest in the right of way in order to operate the rail line           RVI will convey such an interest . . . pursuant to the
under 49 C.F.R. § 1152.27, RVI will convey such an                       requirements of the STB’s OFA regulations." (J.A. at 546.)
interest." (J.A. at 546.)                                                Based upon RVI’s representations in its abandonment
                                                                         petition, it was then CCPA’s prerogative, as a prospective
   In a letter filed on October 12, 1999, CCPA informed the              OFA purchaser, to determine how much of the rail line it
STB that RVI had provided sufficient information for CCPA                wished to acquire. In this case, CCPA sought to acquire a fee
to continue with its OFA and that it would file an OFA on or             simple interest in the entire rail line as described in RVI’s
before November 8, 1999, thirty days after receipt of the                abandonment petition. Therefore, CCPA was entitled to
information from RVI.           See R.R. Ventures, Inc.                 acquire the entire fee simple interest in the property
Abandonment Exemption  Between Youngstown, OH, and                      comprising the rail line that was the subject of RVI’s
Darlington, PA, in Mahoning and Columbiana Counties, OH,                 abandonment petition.
and Beaver County, PA, STB Docket No. AB-556 (Sub-No.
2X), 1999 WL 1030076, at *1 (Service Date Nov. 12, 1999).
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     HWDO                                                                                  HWDO

these reasons, we conclude that the STB’s interpretation is        On November 8, 1999, CCPA filed a timely OFA to purchase
unreasonable.                                                      the line for $419,360. This offer consisted of $350,000 for
                                                                   the land and $69,360 for the track and materials. CCPA
   Under § 10904(f)(1)(B), the STB’s task is not to determine      compared its offer with RVI’s stated net liquidation value of
the extent of the property associated with the rail line that is   $1,607,555 ($1,162,555 for the real estate and $445,000 for
being transferred, but to set the terms of the sale in the event   track salvage), offering explanations for the disparity in the
that the parties cannot come to an agreement about these           values, as required by 49 C.F.R. § 1152.27(c)(ii)(C ). Id. In
terms. As explained, the determination about what property         particular, CCPA’s estimate of a total track value of $69,360
is being conveyed in the sale of a rail line is made by the        was based upon the cost of disposing of approximately
parties to the transaction. Pursuant to the abandonment and        125,214 bad cross ties, roughly 99% of the cross ties on the
OFA provisions of the ICCTA, the abandoning rail line owner        line. Using RVI’s own estimate of tie disposal costs, CCPA
identifies the property that is being abandoned in its             reduced RVI’s estimate by $375,642. Id. at *2.
abandonment petition, while the prospective OFA purchaser
submits an offer to buy the rail line being abandoned, either        In a decision on November 12, 1999, the STB found CCPA
in whole or part. None of this requires the STB to determine       to be "financially responsible" pursuant to 49 U.S.C.
how much of the rail line is being acquired; the parties do        § 10904(d)(1). Id. The STB therefore postponed, pursuant to
that. However, if the parties cannot come to an agreement          49 U.S.C. § 10904(d)(2), the effective date of the exemption
about the terms of the sale, the STB has the authority under §     authorizing RVI’s abandonment of the line during the
10904(f)(1)(B) to set the terms and force the sale of a railroad   pendency of the OFA process. Id. The STB informed RVI
line at its constitutional minimum value.                          and CCPA that if they were unable to agree on a purchase
                                                                   price for the line, then either party could request the STB, on
   Reading the ICCTA as a whole, we hold that once a rail          or before December 8, 1999, to set the terms and conditions
line owner files a petition seeking authority to abandon a rail    of the sale pursuant to 49 U.S.C. § 10904(e). Id.
line, a qualified OFA purchaser is entitled to determine
whether to purchase the rail line, as described in the                By December 8, 1999, CCPA and RVI were unable to
abandonment petition, in whole or part. Therefore, a rail          agree on the amount to be paid for the rail line. Thus,
owner seeking authority to abandon a rail line is not permitted    exercising its statutory right under § 10904(f)(1), CCPA filed
to reduce or diminish the property associated with the rail        its request on December 8, 1999 for the Board to establish the
line, as identified in the abandonment petition, until the OFA     terms of the sale. CCPA requested a purchase price of
process is concluded. Once a qualified OFA buyer has               $441,700, consisting of $350,000 for the land and $91,705.67
offered to purchase the rail line, as described in the             for track materials. See R.R. Ventures, Inc.  Abandonment
abandonment petition, postponement of the abandonment              Exemption  Between Youngstown, OH, and Darlington, PA,
petition remains in effect until the line owner and prospective    in Mahoning and Columbiana Counties, OH, and Beaver
OFA buyer have come to an agreement on the terms of the            County, PA, STB Docket No. AB-556 (Sub-No. 2X), 2000
sale or until the STB sets the terms of the sale upon the          WL 1125904, at *1 (Service Date Jan. 7, 2000). CCPA also
request of either party. 49 U.S.C. § 10904(d)(2)-(f). As a         requested that the STB clarify the property interests CCPA
consequence, until such time that the STB loses jurisdiction       would receive in acquiring the line. CCPA specifically asked
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the STB to require RVI to "convey to CCPA a full fee title                   possibility of interference with future rail service as a result
interest in the land comprising the right-of-way, except in any              of conflicts between the purchaser of the rail line and parties
instance where, prior to the institution of this OFA                         perhaps holding subsurface, aerial or easement rights acquired
proceeding, RVI did not possess such an interest in the right-               after the abandoning rail carrier filed its petition seeking the
of-way." In addition, CCPA advised the STB that it had                       STB’s authority to abandon the line.
recently discovered that RVI, after being advised of CCPA’s
OFA submission, had entered into a series of transactions to                    Interpreting § 10904(f)(1)(B) as part of a symmetrical and
reduce the size and value of the property. Specifically, CCPA                coherent regulatory scheme, we therefore conclude that the
sought invalidation of the November 5, 1999 Grade Separated                  STB erred in construing the statutory provision as implying
Crossing Settlement Agreement ("GSCSA") that RVI had                         a "rebuttable presumption" under which an OFA purchaser is
entered into with Boardman Township, purportedly extending                   entitled to purchase all the property interests associated with
to RVI’s successors in interest, requiring the construction of               a rail line subject to an abandonment petition unless the
an overpass or underpass at a crossing between the railway                   abandoning rail line owner shows that effective rail service
and a highway as a precondition to restoration of rail service.              can be provided with less than the entire rail line. There are
Id. at * 2. CCPA also challenged other transactions entered                  several problems with the STB’s interpretation. First, there
into by RVI without the STB’s authorization in violation of                  is no apparent textual support in the statutory provisions or
the OFA procedures that reduced the value of the right-of-                   the regulations governing the abandonment and OFA process
way, including: (1) the sale of utility crossing easements to                for implying a "rebuttable presumption." But more important,
First Energy Corporation (Ohio Edison Company) for                           by reading a rebuttable presumption into the statute, the STB
$893,000, allowing for permanent aerial easements along and                  shifts the burden of proof to the abandoning rail line owner,
across the property; (2) the assignment to Venture Properties                which is contrary to its own regulation that states that "the
of Boardman, Inc. ("VPB") of all right, title, and interest to               offeror has the burden of proof as to all issues in dispute." 49
income, proceeds, accounts receivable, royalties, and other                  C.F.R. 1152.27(h)(3). As a practical matter, this may lead to
payments arising from third-party agreements which are                       intractable problems in consummating the sale of rail lines, as
attributable to the line; (3) the sale of a 4.012-acre segment to            the present cases exemplify, defeating the purpose of having
Boardman Township Park District for $140,000; and (4) a                      an expedited abandonment process. Specifically, the STB’s
contingent agreement for the sale of approximately 20.6 acres                construal of the statute as implying a rebuttable presumption
of the right-of-way for a 4.2 mile bicycle trail. Id. at * 4.               creates the prospect of protracted abandonment proceedings
                                                                             as the parties argue about what property associated with the
                                                                             rail line is or is not necessary for effective rail service. The
                                                                             STB’s interpretation is also problematic because it raises
                                                                             questions about applying the statute in a way that is not
                                                                            arbitrary or capricious. As argued by RVI in these cases, the
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                                                                             STB’s decision regarding what property is necessary for
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                                                                             effective rail service appears arbitrary because it does not
ZD\ WKH DSSUDLVHU GLG QRW FRQVLGHU WKH WUDQVDFWLRQV EHWZHHQ 59, DQG         seem to be based upon objective principles or criteria. For
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from a practical perspective since a prospective OFA buyer                                 59,UHSOLHGWR&&3$¶VUHTXHVWWRVHWWKHWHUPVRIWKHVDOH
has to act quickly, examining and evaluating pertinent data                             RQ'HFHPEHUcontending that the STB should order
about the condition of the line, its traffic and revenue before                         it to convey no more than the minimum property interest
submitting an OFA, which is due within ten days of the                                  necessary for the provision of rail operations, which it defined
decision of the STB granting a petition for abandonment or                              as the track, related track appurtenances and a surface
exemption.         49 U.S.C. § 10904(c); 49 C.F.R.                                      easement for rail purposes. RVI suggested that a sufficient
§ 1152.27(c)(1)(i)(B). Thus, to ensure the efficacious                                  interest would consist of surface rights enabling the purchaser
valuation of a rail line, it is essential that the property interests                   to use the line for rail purposes, "conveyed by means of an
associated with the rail line remain stable.                                            easement, right of way agreement or quit claim deed subject
                                                                                        to various reservations or reversionary interests." RVI further
   Maintenance of the status quo upon the filing of an                                  asked the STB not to set aside its third-party transactions
abandonment petition also promotes the practical goal of                                pertaining to the line, contending that it was not obligated to
properly administering the statute since the STB is obligated                           inform CCPA of those transactions, since they would not
to make certain decisions within a highly constrained time                              affect CCPA’s use of the right-of-way for rail services.
frame so as to advance the goal of continuous rail service.                             Despite the fact that RVI had valued the entire line at $1.6
Specifically, it accords with the purpose of the forced-sale                            million in its abandonment petition, RVI also challenged
provision set forth in 49 U.S.C. § 10904, which is to promote                           CCPA’s requested purchase price, claiming that the limited
the continuation of viable rail service, not simply the                                 property interest in the rail line that it was prepared to sell to
maintenance of the rail line itself. See Hayfield, 467 U.S. at                          CCPA was now worth $2,261,490, almost three times as
630 (noting that the present § 10904 "represents a                                      much as RVI paid for the rail line when it purchased it on
continuation of Congress’ efforts to accommodate the                                    November 8, 1996. Specifically, RVI disputed CCPA’s
conflicting interests of railroads that desire to unburden                              valuation method, offering its valuation of the surface rights
themselves quickly of unprofitable lines and shippers that are                          in the line as an assembled corridor to be worth $1,472,930
dependent upon continued rail service"); Consol. Rail Corp,                             and valuing the track materials at $788,560.
29 F.3d at 712. Accordingly, the objective of continuing
viable rail service in behalf of interstate commerce in this                              1.   The STB’s January 7, 2000 decision setting the
country, as well as commerce throughout the continent, is                                      terms and conditions of the sale
better achieved by not permitting the transfer of property
interests associated with the rail line after the filing of the                            The STB issued its decision setting the terms and
abandonment petition. It also protects the integrity of the                           conditions for the sale of the rail line on January 7, 2000.
OFA process by ensuring transparency. Ultimately, it                                    Explaining that the offeror in a forced sale bore the burden of
produces finality and certainty in the OFA process, leading to                          proof, the STB stated that it would accept the seller’s (RVI)
the expeditious acquisition of a rail line and eliminating the                          price estimates unless the offeror (CCPA) "present[s] more
                                                                                        specific evidence or analysis or provide[s] more reliable and
                                                                                        verifiable documentation." Id. at *5. Adhering to this
                                                                                      framework, the STB accepted RVI’s track value of $788,560,
       7KURXJK     WKH   &RPPHUFH     &ODXVH     &RQJUHVV     KDV   WKH   SRZHU   WR
³UHJXODWH   &RPPHUFH      ZLWK   IRUHLJQ      1DWLRQV   DQG   DPRQJ   WKH   VHYHUDO    but subtracted $58,000 for work to restore grade crossings, to
6WDWHV   ´ 86 &RQVW DUW ,  FO 
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reach a net salvage value for track and materials of $730,560.       sale, however, the STB cannot place any burden on the
Id. at *6. The STB rejected, however, RVI’s valuation of the         offeree (i.e., the abandoning rail owner). See 49 C.F.R.
land as an assembled corridor. The STB explained:                    §1152.27(h)(3) ("The offeror has the burden of proof as to all
                                                                     issues in dispute.")
  Unless there is a specific documented interest expressed
  by a potential purchaser of an intact corridor, we do not             In short, once the owner of a rail line submits a petition
  consider this to be an acceptable method of valuation for          seeking the STB’s authority to abandon the line, it must allow
  [net liquidation value] purposes. The highest and best             a prospective OFA purchaser the opportunity to determine
  non-rail use is to sell parcels to adjoining landowners or         how much of the line to acquire, as the line is described in the
  other interested parties. See Boston and Maine Corp.              abandonment petition. Thus, at the point of filing the
  Abandonment  In Hartford and New Haven Counties,                  abandonment petition, the abandoning rail line owner cannot
  CT, STB Docket No. AB-32 (Sub-No. 83), et al., slip op.            reduce or diminish the rail line or the nature of the property
  at 4 (STB served July 1, 1998) [1998 WL 348755, at *3].            interests associated with the line. Because a rail line owner
                                                                     is subject to the STB’s jurisdiction until such time that the
Id. at *6. The STB summarized RVI’s evidence for valuing             line has been properly abandoned or sold, it therefore must
the land as an assembled corridor as amounting to two                maintain the status quo with respect to its property interests
appraisals and copies of purchase agreements for trail and           in the rail line as described in its abandonment petition.
utility easements, as well as expressions of interest to buy
some sections of the line, "but no firm offers to purchase the          The primary reason for maintaining the status quo with
entire right-of-way, much less an executed sales contract." Id.      respect to the property interests associated with the rail line as
Absent an executed sales contract or firm purchase offer for         described in the abandonment petition is to allow a
an assembled corridor, the STB concluded that RVI could not          prospective OFA buyer sufficient opportunity to assess
demonstrate that an assembled corridor was the "highest and          whether the acquisition of the line is economically viable and
best use" of the line. Id.                                         to determine what valuation to place on the rail line that it
                                                                     seeks to acquire. In this respect, it is evident that a rail line
  In contrast, the STB accepted CCPA’s "across-the fence"            embraces more than just the track necessary for the provision
("ATF") valuation methodology, finding it "complete and              of rail service. See Iowa Terminal, 853 F.2d at 965 (rejecting
                                                                     the abandoning railroad’s attempt to limit the transfer of land
                                                                     to two, rather than ten, acres, even though eight acres of land
                                                                     had been leased for nonrail purposes for several years, since
                                                                     "[t]he purpose of the statute empowering the [STB] to
                                                                     mandate a sale is to keep viable lines in operation"); see also
                                                                   In re Boston & Maine Corp., 596 F.2d 2, 6 (1st Cir. 1979)
      7KH 67% QRWHG WKDW LWV SUHGHFHVVRU WKH ,&& KDG GHFLGHG LQ
                                                                     (noting that a "‘railroad line’ is not merely the service being
3RUWODQG 7UDFWLRQ &R ± $EDQGRQPHQW ([HPSWLRQ   ± ,Q 0XOWQRPDK 	
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                                                                     provided, but the physical properties and interests belonging
                                                                     to the debtor that constitute the line"). Holding the status quo
 DW  6HUYLFH 'DWH -DQ   WKDW DQ H[HFXWHG VDOHV
FRQWUDFW ZRXOG FRQVWLWXWH WKH EHVW HYLGHQFH RI D ULJKWRIZD\¶V      from the filing of the abandonment petition is imperative
PDUNHWDELOLW\ DQG QHW OLTXLGDWLRQ YDOXH DV DQ DVVHPEOHG FRUULGRU
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which a prospective OFA buyer may offer to buy the line that                    adequately supported." Id. at *6. The STB also accepted
is the subject of an abandonment application"). )XUWKHU                         CCPA’s reduction in the value of the land by $100,000 due to
H[SHGLWLQJ WKH DEDQGRQPHQW SURFHHGLQJV LV WKH UHJXODWLRQ                  RVI’s assignment of lease and interest income to a third
VKRUWHQLQJWKHWLPHIRUILOLQJDQ2)$WRWHQGD\V  6HH                    party. Accordingly, the STB valued the land for the entire
&)5E:KHQDQ2)$LVPDGHE\DILQDQFLDOO\                        line at $350,000, added in $730,560 for track and materials,
UHVSRQVLEOHSDUW\³UHJDUGLQJWKDWSDUWRIWKHUDLOURDGOLQHWREH               and set a purchase price of $1,080,560.
DEDQGRQHG´86&GWKHDEDQGRQPHQWRIWKH
OLQHLVWKHQSRVWSRQHGXQWLOWKHWHUPVDQGFRQGLWLRQVRIWKH                       In addition to setting these terms and conditions for the
VDOHDUHHVWDEOLVKHG86&G                                 purchase of the line, the STB also addressed RVI’s third-party
                                                                                transactions. Concerning the Grade Separated Crossing
   Thus, while a railroad may "abandon any part of its railroad                 Settlement Agreement ("GSCSA") between RVI and
lines" under 49 U.S.C. § 10903(a)(1)(A), the STB is                             Boardman Township, the STB acknowledged that while it
permitted to authorize a prospective buyer under the OFA                        favored privately negotiated agreements in general, it would
provisions to purchase "that part of the railroad line to be                    deem void as against public policy any agreement imposing
abandoned" under 49 U.S.C. § 10904(d). The line owner can                       restrictions unreasonably interfering with common carrier
seek authority to abandon all or a part of its rail line, but if it             obligations, citing United States v. Baltimore & Ohio R.R.
does so, then, pursuant to § 10904(f)(1)(B), a qualified OFA                    Co., 333 U.S. 169, 177-78 (1948) for the proposition "that
purchaser is entitled to determine how much of the line it                      parties may not enter into trackage rights agreements that
wishes to acquire. Once the offeror seeks to purchase the                    abrogate rights and responsibilities under the statutory
entire rail line or a portion thereof as described in the                       provisions of the Interstate Commerce Act." Id. at *2. CCPA
abandonment petition, 49 U.S.C. § 10904(c), the STB is then                     opposed the GSCSA on the grounds that it created a condition
statutorily obligated to render a decision setting price and                    precedent to reestablishment of rail service and obliged
other sale terms as to what the offeror seeks to buy, within                    CCPA (or RVI’s successor in interest) to undertake extremely
thirty days of a request to set conditions. 49 U.S.C.                           costly construction projects to build the projected overpass or
§ 10904(f)(1)(A). Under this statutory provision, then, it                      underpass. According to CCPA, enforcement of the GSCSA
necessarily follows that neither the abandoning rail carrier nor                would cause it to forego its acquisition of the rail line, since
the STB can alter or amend what the OFA buyer has offered                       CCPA estimated that the cost of one overpass or underpass
to buy; rather, the STB can only set the terms on what the                      would likely exceed the net liquidation value of the entire rail
offeror has proposed to purchase. In setting the terms of the                   line. As a result, the STB found that the terms of the GSCSA

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imposing obligations on parties other than RVI and Boardman         Kulmer, 236 F.3d at 1257.
Township and requiring construction of the grade separated
crossing as a precondition to resuming rail operations                Reading the statutory and regulatory scheme as a whole, we
unreasonably interfered with common carrier operations and          discern a clear symmetry between the abandonment and OFA
the OFA process. Id. Because the STB also found these               provisions of the ICCTA. While a line owner may "abandon
terms to "circumvent [its] statutory authority to set the terms     any part of its railroad lines," it cannot do so without the
and conditions of the sale under 49 U.S.C. [§] 10904(f)(1),"        STB’s approval. 49 U.S.C. § 10903(a)(1)(A); GS Roofing I,
it thus concluded that these terms were unenforceable as            143 F.3d at 391. Significantly, when the owner of a rail line
contrary to public policy. Id.                                      seeks to abandon a line, it must "identify each railroad line for
                                                                    which the rail carrier plans to file an application to abandon."
   Although the STB voided the GSCSA, it decided not to set         49 U.S.C. § 10903(c)(2)(B). Under 49 C.F.R. § 1152.22, an
aside the other transactions between RVI and other third            owner seeking to abandon a rail line must set forth the
parties, which CCPA had challenged on the grounds that they         following information in its abandonment application:
diminished the value of the line. As for the sale of utility
crossing easements to First Energy Corporation (Ohio Edison           [a d]etailed map of the subject line on a sheet not larger
Company), the transfer of all rights to Venture Properties of         than 8x10 ½ inches, drawn to scale, and with the scale
Boardman, Inc. ("VPB") arising from third-party agreements            shown thereon. The map must show, in clear relief, the
attributable to the line, the sale of a 4.012-acre segment to the     exact location of the rail line to be abandoned or over
Park District, and the contingent sale of about 20.6 acres of         which service is to be discontinued and its relation to
the right-of-way for a 4.2 mile bicycle trail, the STB                other rail lines in the area, highways, water routes, and
concluded that they did not interfere with rail operations, but       population centers.
would be factored into its calculation of the line’s value. Id.
at * 4-5. In particular, the STB noted that the sale of 4.012       49 C.F.R. § 1152.22(a)(4). The ICCTA also directs that a rail
acres to the Park District was explicitly conditioned on the        carrier seeking authorization to abandon a rail line under 49
continuation of rail service on the line.                           U.S.C. § 10903 must promptly provide a party considering an
                                                                    OFA with a report on the physical condition of "that part of
   The STB instructed CCPA to accept or reject the terms in         the railroad line involved in the proposed abandonment," as
writing within ten days, ordered RVI and CCPA to close on           well as other information required to determine the amount of
the deal within ninety days, and required RVI to convey "all        financial assistance needed "to continue rail transportation
property by quitclaim deed." The STB further stated that if         over that part of the railroad line" and an estimate of the
CCPA withdrew from the sale or failed to accept by timely           minimum purchase price required "to keep the line or a
written notification, then it would issue, within twenty days,      portion of the line in operation." 49 U.S.C. § 10904(b). An
a decision authorizing abandonment. RVI, Boardman                   OFA purchaser then has four months after the abandonment
Township, and the Boardman Township Park District have              petition has been filed to "offer to subsidize or purchase the
filed petitions with this Court for review of the STB’s             railroad line that is the subject of such application." 49 U.S.C.
January 7, 2000 decision.                                           § 10904(c); see Kulmer, 236 F.3d at 1256 (noting that "[t]he
                                                                    OFA provisions create a four-month waiting period" during
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(holding that city could condemn a tract of land for public           2.   The STB’s March 3, 2000 decision that CCPA
use, such as for a street, but could not take property to sell it          accepted the terms and conditions of the sale
at a profit and pay for the improvement), aff’d, 281 U.S. 439
(1930).                                                                Following the STB’s January 7, 2000 decision, CCPA sent
                                                                    a letter dated January 12, 2000, which was received by the
   The STB disagrees with RVI’s construction of 49 U.S.C.           STB on January 14, 2000, stating that it "hereby accepts the
§ 10904(f)(1)(B), arguing that the language on which RVI            terms and conditions established by the Board in its decision
focuses  "all facilities on the line or portion necessary to       served on January 7, 2000 for acquisition of Railroad
provide effective transportation services"  does not pertain       Ventures’ 35.7 mile line of railroad extending from milepost
to how much of the rail line a line owner can choose to             0.0 at Youngstown, OH to milepost 35.7 at Darlington, PA,
transfer, but instead concerns the extent of the line an OFA        and a connecting one mile line segment near Negley, OH."
purchaser may choose to buy. If the purchaser views less            CCPA added:
than the entire amount of property as sufficient for rail
operations, then the purchaser may offer to purchase only that        [CCPA] does so on the understanding, (1) that it will be
amount. See, e.g., Iowa Terminal, 853 F.2d at 968                     receiving a fee simple estate in the subject property free
(describing purchaser’s offer for a 10.4-mile segment of a            and clear of any reservations, liens, encumbrances,
26.1-mile line). If, however, an offeror, such as CCPA,               licenses, leases, easements or restrictions except those
wishes to obtain all the property described in the                    which were in existence prior to November 8, 1999, and
abandonment petition, the STB argues that it is reasonable to         considered by Mr. Rossi in the appraisal which was
presume that the entire amount is necessary for effective rail        adopted by the Board, and (2), that taxes on the subject
services.                                                             property will be apportioned as between the parties as of
                                                                      the date of settlement.
  Although the STB’s construction of § 10904 is entitled to
deference, courts ultimately have the responsibility for            (J.A. at 1211.) CCPA also sent the same letter to RVI on
interpreting federal statutes. Crounse Corp., 781 F.2d at           January 12, 2000. After receiving this letter, RVI wrote to the
1183. As pointed out by the Tenth Circuit in Kulmer:                STB on January 18, 2000, objecting that CCPA’s letter did
                                                                    not constitute a valid acceptance of the STB’s sale terms. On
  "In determining whether Congress has specifically                 January 20, 2000, RVI followed this letter with a petition to
  addressed the question at issue, a reviewing court should         the STB to vacate the decisions postponing the effective date
  not confine itself to examining a particular statutory            of the abandonment authority. RVI contended that by
  provision in isolation." FDA v. Brown & Williamson                accepting the STB’s terms "on the understanding" that it
  Tobacco Corp., 529 U.S. 120, 130-132, 120 S. Ct. 1291,            would receive an unencumbered fee simple estate, CCPA
  1300, 146 L. Ed.2d 121 (2000). Rather, a court must               sought to alter in a material way the terms set by the STB,
  read the relevant provisions in context and, insofar as           which had ordered conveyance pursuant to a quitclaim deed,
  possible, "interpret the statute ‘as a symmetrical and            without requiring RVI to make any warranty regarding the
  coherent regulatory scheme.’" Id., 529 U.S. at 132-134,           title it possessed. RVI also argued that CCPA’s acceptance
  120 S. Ct. at 1301 (quoting Gustafson v. Alloyd. Co., 513         was "conditional," not "absolute." Relying upon principles of
  U.S. 561, 569, 115 S. Ct. 1061, 131 L.Ed.2d 1 (1995)).
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contract law, RVI urged the STB to view CCPA’s letter as a          49 U.S.C. § 10904(f)(1)(B). In its October 4, 2000 decision,
rejection of the terms set forth in the decision of January 7,      the STB interpreted the parenthetical language as follows:
2000 and to treat the letter as the submission of a counteroffer
by CCPA.                                                              it serves merely to clarify that an offeror need not
                                                                      purchase the entire property slated for abandonment, but
  On March 3, 2000, the STB issued a decision rejecting               can opt to acquire less than the full length of the line
RVI’s arguments regarding CCPA’s acceptance of the terms              where the offeror wishes to provide for continued rail
set forth in the January 7, 2000 decision. See R.R. Ventures,         service on only a portion of the line.
Inc.  Abandonment Exemption  Between Youngstown, OH,
and Darlington, PA, in Mahoning and Columbiana Counties,            R.R. Ventures, 2000 WL 1470451, at *6. In rejecting RVI’s
OH, and Beaver County, PA, STB Docket No. AB-556 (Sub-              proposed interpretation of § 10904(f)(1)(B), the STB
No. 2X), 2000 WL 246367 (Service Date Mar. 3, 2000). The            articulated a presumption, rebuttable by the line owner, that
STB viewed CCPA’s letter dated January 12, 2000 as "a               an OFA purchaser would need all the property interests
valid acceptance" of the sale terms, noting that CCPA               associated with the rail line in order to provide effective
followed RVI’s initial objection with another letter                transportation operations.      Applying this rebuttable
"unequivocally" reiterating its acceptance. The STB                 presumption, the STB decided that RVI had failed to show
described CCPA’s second letter as follows:                          that CCPA could provide effective rail services on less than
                                                                    the entire rail line.
  By letter filed on January 19, 2000, CCPA states that it
  has accepted the terms and conditions of the January 7              In opposition to the STB’s interpretation, RVI construes 49
  decision and explains that, given the history of its              U.S.C. § 10904(f)(1)(B) as Congressional recognition that an
  dealings with RVI, the additional language in its                 owner need not transfer all property comprising the line, and
  acceptance letter indicating its understanding of the             as a rejection of the STB’s plenary power to force conveyance
  transaction was prudent and necessary.                            of all property interests, particularly those unrelated to rail
                                                                    operations. RVI explains that Congress recognized that some
Id. at *2. The STB then ordered RVI to convey by quitclaim          of the property included in a rail line abandonment petition
deed "all of its property interests, as discussed in this           might be necessary for rail operations, but some would not.
decision, in its 35.7-mile line of railroad extending from          Further, according to RVI, the Fifth Amendment limits the
milepost 0.0 at Youngstown, OH, to milepost 35.7 at                 STB’s authority to force the sale of property for public
Darlington, PA, and a connecting 1-mile line segment near           purposes. See Chicago & N.W. Transp. Co. v. United States,
Negley, OH" provided that CCPA tendered payment on or               678 F.2d 665, 668 (7th Cir. 1982) (suggesting that the price
before April 6, 2000. Id. at *4. The STB also admonished            set under the OFA proceeding must satisfy "just
RVI that it should not "unilaterally diminish the assets or their   compensation" principles of the Fifth Amendment). RVI
                                                                    argues that government agencies, such as the STB, can only
                                                                    require a transfer of the quantity of property or degree of
                                                                    interest necessary to accomplish the public purpose. Cf. City
                                                                    of Cincinnati v. Vester, 33 F.2d 242, 245 (6th Cir. 1929)
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SUHVHUYLQJUDLOVHUYLFHZKHQHYHUSRVVLEOHIRUWKHEHQHILWRI       value." Id. RVI has filed a petition with this Court to review
VKLSSHUVDQGWKHJHQHUDOSXEOLFcomporting with the need to       the STB’s March 3, 2000 decision.
sustain "DIXQFWLRQLQJLQWHUVWDWHUDLOURDGV\VWHP´ 5HGPRQG
,VVDTXDK)GDW%\QRWUHTXLULQJDFFHSWDQFHRQ                  7KH67%¶V2FWREHUGHFLVLRQFRQYH\LQJWKH
WKHSDUWRIDTXDOLILHG2)$SXUFKDVHU&RQJUHVVPDGHFOHDU                     UDLOOLQHWR&&3$
WKDWWKHRYHUULGLQJREMHFWLYHZDVWRSUHVHUYHUDLOVHUYLFHIRU
VKLSSHUVRYHUDOLQHWKDWZRXOGRWKHUZLVHEHDEDQGRQHG               &&3$ QRWLILHG WKH 67% RQ 0DUFK   that it was
                                                                   prepared to tender payment to RVI, but that it had discovered
  7KXV LW LV XQQHFHVVDU\ IRU DQ 2)$ SXUFKDVHU VXFK DV   some inconsistencies between specimen deeds drafted by RVI
&&3$WRILOHDQDFFHSWDQFHRIWKHWHUPVRIWKHVDOHGiven       and the property description used by CCPA’s appraiser in
that CCPA never withdrew its offer to acquire the rail line        valuing the line. CCPA followed this letter with a petition,
that RVI wanted to abandon, the sale was binding upon both         submitted on March 28, 2000, for a declaratory order from the
parties. 49 U.S.C. § 10904(f)(2). Accordingly, the STB had         STB invalidating any post-September 3, 1999 transfers or
jurisdiction to approve the sale of the rail line.                 assignments of property interests from RVI that were not
                                                                   included in CCPA’s appraisal report. CCPA specifically
2.     The STB’s October 4, 2000 decision was not                  expressed concern about RVI’s secret conveyances of the
       erroneous to the extent that it ordered RVI to              line’s non-rail crossing, aerial, and subsurface rights to its
       transfer its entire fee simple interest in property         affiliate VPB in late October and early November of 1999,
       constituting the rail line that was the subject of RVI’s    without informing CCPA or the STB about them. To ensure
       exemption petition for abandonment                          that it would actually acquire what it purchased, CCPA
                                                                   requested the STB to void "all transfers or assignments of
   RVI next argues that the STB exceeded its jurisdiction          property rights in the railroad property not specifically
under the statute because it ordered RVI to transfer more of       reflected in CCPA’s evidence on the value of the line." (J.A.
its property than was necessary for CCPA to provide effective      at 1250.)
rail service. While CCPA requested RVI to convey a fee
simple interest in all the property comprising the rail line,        Consequently, in a decision issued on April 5, 2000, the
RVI contends that to conduct effective rail operations CCPA        STB ordered RVI to show cause why it should not set aside
requires no more than a surface fee or easement over the line.     the transfers of subsurface and aerial rights to VPB, and why
In support of its contention that an owner need not transfer all
the property comprising the line, RVI relies upon 49 U.S.C.
§ 10904(f)(1)(B), which provides that when a party to an                  
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OFA proceeding asks the STB to set terms, the STB must             WKH 67% UHMHFWHG WKH SHWLWLRQV RI VKLSSHUV 'DUOLQJWRQ %ULFN DQG ,QVXO WR
                                                                   UHRSHQ 59,¶V DFTXLVLWLRQ GHFLVLRQ    7KHVH VKLSSHUV FRQWHQGHG WKDW 59,
     determine the price and other terms of sale, except that in   KDG XQGHUWDNHQ FHUWDLQ DFWLRQV WKDW PDGH UHVWRUDWLRQ RI WKH OLQH PRUH

     no case shall the Board set a price which is below the fair   GLIILFXOW DQG WKDW WKH 67% VKRXOG KDYH PRUH YLJRURXVO\ HQIRUFHG LWV RZQ
                                                                   SROLF\ ZLWK UHJDUG WR 59,¶V YLRODWLRQV RI LWV FRPPRQ FDUULHU REOLJDWLRQV
     market value of the line (including, unless otherwise
                                                                   ##Ventures, Inc.  Acquisition and Operation Exemption  Youngstown
     mutually agreed, all facilities on the line or portion        & S. R.R. Co., STB Finance Docket No. 33385, 2000 WL 24367, at *3
     necessary to provide effective transportation services).      (Service Date Mar. 3, 2000).
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the entire property considered in the January 7, 2000 decision      regulation is "manifestly contrary to the statute." Ragsdale,
should not be transferred to CCPA. See R.R. Ventures, Inc.          122 S. Ct. at 1160. Under the clear terms of § 10904(f)(2),
 Abandonment Exemption  Between Youngstown, OH, and               the offeror need not file an acceptance of the STB’s decision
Darlington, PA, in Mahoning and Columbiana Counties, OH,            setting the terms of the sale. Rather, an offeror needs to
and Beaver County, PA, STB Docket No. AB-556 (Sub-No.               respond to the STB’s decision only in the event that it wants
2X), 2000 WL 351356, at *2 (Service Date April 5, 2000).            to withdraw its offer to purchase the line. Thus, once an
The STB explained that after RVI supplied information about         offeror has made an offer to purchase a line being abandoned,
the line to CCPA on October 8, 1999, RVI had a continuing           and the STB has made a decision setting the terms of the sale,
duty to keep CCPA informed of any changes in the                    then the sale of the rail line is binding upon both the rail
information. The STB stated that "[b]y transferring assets          carrier selling the line and the offeror, unless the offeror
after October 8, 1999, and failing to immediately inform the        withdraws its offer within ten days of the STB’s decision
offeror and the STB, RVI has undermined the OFA process."           setting the terms of the sale.
Id. at *1. The STB also noted that RVI’s proposed quitclaim
deeed to convey the 4.2 acre parcel to Boardman Township               In effect, the position of a prospective OFA purchaser
Park District "directly contravenes our March 3, 2000               mirrors that of the abandoning rail owner abandoning the line.
decision" and that "RVI may not transfer this parcel to the         In a forced sale under § 10904(f)(2), neither the purchaser nor
Park District." Id. at *2 n. 2.                                     the abandoning rail owner is required to accept the STB’s
                                                                    terms of the sale. However, the statute permits an OFA
   RVI responded to the show cause order on April 20, 2000          purchaser, but not the abandoning rail owner, to withdraw its
by claiming that 49 U.S.C. § 10904 required only the sale of        offer within ten days of the STB’s decision imposing the
a surface easement, denying any intent to convey a fee simple       terms of the sale. Absent a withdrawal on the part of the OFA
interest in the property. According to RVI, it only intended        buyer, the sale is consummated in accordance with the terms
to "convey an easement for railroad purposes together with all      imposed by the STB, pursuant to its exclusive and plenary
track." Thus, RVI argued that if the STB forced RVI to              jurisdiction. Thus, the statute imposes, if you will, a "forced
transfer its entire interest in all the property, including parts   acceptance" on the part of the OFA purchaser, unless the
that RVI believed were not related to rail service, at a price of   buyer takes the affirmative action of withdrawing its offer.
$350,000, the STB would commit an unconstitutional taking           Such a "forced acceptance" is the logical counterpart of the
in violation of the Fifth Amendment. Further, RVI                   forced sale provision of § 10904(f)(2), requiring the
challenged the STB’s jurisdiction over "non-rail assets which       abandoning line owner to sell in accordance with the terms of
are not necessary for the provision of rail transportation          the sale established by the STB.
service," demanding that the STB dismiss its show cause
order and issue an order completing the sale.                          Here, we construe the absence of any language in the
                                                                    statute requiring a qualified OFA purchaser to accept the
   In support of its position, RVI submitted a verified             terms of the forced sale as signaling Congress’ clear intention
statement from its president, David Handel, who stated that         not to require acceptance on the part of the purchaser. We
RVI had informed CCPA of the transfer of subsurface and air         believe that the omission of language regarding acceptance by
rights, third-party agreements, and surface easements at a          an OFA purchaser UHIOHFWV &RQJUHVV¶ RYHUDUFKLQJ JRDO RI
   5DLOURDG9HQWXUHVHWDO      1RV        1RV         5DLOURDG9HQWXUHVHWDO     
     Y6XUIDFH7UDQVS%G                                Y6XUIDFH7UDQVS%G
     HWDO                                                                                   HWDO

agreed to its sale terms and denied RVI’s motions to vacate        meeting on November 30, 1999. Handel noted that CCPA’s
and to stay the sale of the rail line.                             appraiser John Rossi, who had filed an earlier verified
                                                                   statement, disclaiming prior knowledge of the transfers of
   To determine whether the STB had jurisdiction to force          subsurface and aerial rights, was not present at the meeting,
RVI to sell the line, we begin by examining the pertinent          and thus had not included the transfers in his appraisal filed
statutory language. Pursuant to 49 U.S.C. § 10903, the STB         in December of 1999. According to Handel, RVI "had
has exclusive and plenary jurisdiction over a rail carrier         consistently maintained throughout this proceeding that
seeking to abandon a rail line. 3UHVHDXOW86DWFLWLQJ   subsurface and aerial rights were not part of the interest which
.DOR%ULFN86DW5/7'5\&RUS)GDW          RVI was prepared to convey to CCPA for purposes of
)ULHQGV RI WKH $WJOHQ6XVTXHKDQQD 7UDLO  )G DW    continued rail operations."
QAs previously stated, 49 U.S.C. § 10904(f)(2) gives
an offeror ten days in which to withdraw the offer to purchase       In response to RVI’s show cause filing, CCPA denied any
a rail line following a decision of the STB setting the terms of   knowledge about the conveyance of subsurface or aerial rights
the sale. Without a withdrawal by the offeror, the STB’s           prior to March 23, 2000, stating that "a third party" brought
decision becomes binding on both parties.                          the matter to CCPA’s attention. CCPA also highlighted that
                                                                   Handel had valued the land for abandonment purposes on the
   While the statute does not impose any requirements or time      basis of a full fee interest, and that RVI’s counsel had, on
constraints on the offeror concerning the acceptance of the        September 21, 1999, stated that RVI would convey a fee
terms and conditions set by the STB, 49 C.F.R.                     interest in the land. Finally, CCPA stated that an official of
§ 1152.27(h)(7) does require the offeror to accept or reject the   Central Columbiana & Pennsylvania Railways, Inc.
STB’s terms and conditions within ten days. Specifically, 49       ("CCPR") had determined that the entire area of land,
C.F.R. § 1152.27(h)(7) provides:                                   including noncontiguous parcels, was necessary for rail
                                                                   operations on the line. The official, Timothy Robbins, further
  Within 10 days of the service date of the Board’s                explained in a verified statement that RVI had undertaken or
  decision, the offeror must accept or reject the Board’s          authorized the removal of some track and the overpaving of
  terms and conditions with a written notification to the          some rail crossings. Another CCPR employee, Walter Gane,
  Board and all parties to the proceeding.                         provided a verified statement that RVI "has not only allowed
                                                                   the line to deteriorate, but has tacitly approved the destruction
49 C.F.R. § 1152.27(h)(7).                                         of portions of the line, as well as other actions that have
   In this instance, there is a clear conflict between the plain   caused the line to be inoperable, including paving over
language of the statute and the implementing regulation. The       multiple roadway crossings." Because the cost of restoring
statutory language of § 10904(f)(2) does not require the           these alterations was estimated to be approximately $335,000,
offeror to "accept" the terms imposed by the STB within a          CCPA consequently requested that the STB order RVI to
designated period of time, yet the implementing regulation         place sufficient funds in escrow to cover the repair costs.
requires the offeror to accept or reject the terms within ten        On May 10, 2000, RVI moved the STB to reopen the OFA
days. Here, we conclude that 49 C.F.R. § 1152.27(h)(7)             valuation process on the basis of new evidence concerning the
must give way to 49 U.S.C. § 10904(f)(2) because the
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     Y6XUIDFH7UDQVS%G                                Y6XUIDFH7UDQVS%G
     HWDO                                                                                   HWDO

"highest and best use" of the line. RVI accompanied this          WKHVWDWXWH´5DJVGDOHY:ROYHULQH:RUOG:LGH,QF6
motion with a verified statement from Handel, representing        &WTXRWLQJ&KHYURQ86DW
that Williams Communications, Inc. ("Williams") had
contacted both RVI and CCPA about installing fiber optic             ,QDGGLWLRQXQGHUWKH$GPLQLVWUDWLYH3URFHGXUHV$FWWKLV
cable along the line. Handel stated that this information         &RXUW FDQQRW VHW DVLGH WKH 67%¶V GHFLVLRQV ILQGLQJV DQG
"validates the contentions of RVI that the highest and best use   FRQFOXVLRQVXQOHVVWKH\DUH³DUELWUDU\FDSULFLRXVDQDEXVHRI
of its right-of-way is as a non-rail linear corridor." Though     GLVFUHWLRQRURWKHUZLVHQRWLQDFFRUGDQFHZLWKODZFRQWUDU\
RVI claimed that Williams intended to install a fiber optic       WR FRQVWLWXWLRQDO ULJKW SRZHU SULYLOHJH RU LPPXQLW\ LQ
cable along RVI’s right-of-way, RVI admitted that "Williams       H[FHVV RI VWDWXWRU\ MXULVGLFWLRQ>@    RU XQVXSSRUWHG E\
has not conducted any further negotiations with RVI" after        VXEVWDQWLDO HYLGHQFH´   86&  $ ( )LOP
RVI submitted a proposal to it on behalf of VPB.                  7UDQVLW,QFY,&&)GWK&LU,Q
                                                                  GHWHUPLQLQJZKHWKHUDGHFLVLRQE\WKH67%ZDVDUELWUDU\RU
   CCPA also petitioned the STB on May 19, 2000 to reopen         FDSULFLRXV WKLV &RXUW PXVW FRQVLGHU ZKHWKHU WKHUH ZDV D
the proceedings based on new evidence, having just learned        ³UDWLRQDOFRQQHFWLRQEHWZHHQWKHIDFWVIRXQGDQGWKHFKRLFH
that RVI’s former president Ron Hall had previously               PDGH´,G$GHFLVLRQLVQRWDUELWUDU\RUFDSULFLRXVZKHQLW
contracted on November 15, 1996 to sell the salvage right to      LVSRVVLEOHWRRIIHUDUHDVRQHGHYLGHQFHEDVHGH[SODQDWLRQIRU
the line’s track and track materials to Kovalchick Corporation    D SDUWLFXODU RXWFRPH 0RWRU 9HKLFOH 0IUV $VV¶Q Y 6WDWH
("Kovalchick") for $400,000. The agreement conditioned            )DUP0XW$XWR,QV&R863HUU\Y
Kovalchick’s right to remove track upon RVI’s obtaining           8QLWHG)RRG	&RPP:RUNHUV'LVW8QLRQV	
abandonment or exemption authority from the STB. In its           )GWK&LU,QGHWHUPLQLQJZKHWKHUWKH
response to the STB, RVI admitted the sale of the salvage         67%¶V ILQGLQJV DUH VXSSRUWHG E\ VXEVWDQWLDO HYLGHQFH WKLV
rights to Kovalchick, but contended that the sale was             &RXUWH[DPLQHVZKHWKHUWKH67%FRQVLGHUHG³VXFKUHOHYDQW
conditional and subject to the STB’s abandonment authority.       HYLGHQFHDVDUHDVRQDEOHPLQGPLJKWDFFHSWDVDGHTXDWHWR
                                                                  VXSSRUWWKHFRQFOXVLRQUHDFKHG´53&DUERQH&RQVWU&R
   On October 4, 2000, the STB issued its decision regarding      Y2FFXSDWLRQDO6DIHW\	+HDOWK5HYLHZ&RPP¶Q)G
its show cause order and resolved various issues that had         WK&LU
arisen since the January 7, 2000 decision setting the terms of
the sale. The STB first rejected RVI’s argument that,             %$QDO\VLV
pursuant to 49 U.S.C. § 10904(f)(1), it was only obligated to
convey an easement for railroad purposes and rail materials.       7KH67%KDGMXULVGLFWLRQWRDSSURYHWKHVDOHRIWKH
The STB stated:                                                       UDLOOLQH
                                                                    2Q DSSHDO 59, ILUVW FRQWHQGV WKDW WKH 67% ODFNHG
  Where (as here) the offeror does not seek to purchase less      MXULVGLFWLRQWRIRUFHWKHVDOHRIWKHOLQHDIWHUWKH-DQXDU\
  than the entire property, we believe that it is reasonable       DQG 2FWREHU   GHFLVLRQV EHFDXVH CCPA never
  to assume that the entire property is needed for effective      properly accepted the STB’s terms of sale. Accordingly, RVI
  transportation services. After all, that is the property the    urges us to vacate the STB’s March 3, 2000 and November 2,
  selling/abandoning carrier (or its predecessor) assembled       2000 decisions, in which the STB determined that CCPA had
  for, and dedicated to, rail service.
    5DLOURDG9HQWXUHVHWDO        1RV          1RV         5DLOURDG9HQWXUHVHWDO      
      Y6XUIDFH7UDQVS%G                                    Y6XUIDFH7UDQVS%G
      HWDO                                                                                       HWDO

of RVI and VPB’s remaining rights in the rail line. R.R.                R.R. Ventures, Inc.  Abandonment Exemption  Between
Ventures, Inc.  Abandonment Exemption  Between                        Youngstown, OH, and Darlington, PA, in Mahoning and
Youngstown, OH, and Darlington, PA, in Mahoning and                     Columbiana Counties, OH, and Beaver County, PA, STB
Columbiana Counties, OH, and Beaver County, PA, STB                     Docket No. AB-556 (Sub-No. 2X), 2000 WL 1470451, at *6
Docket No. AB-556 (Sub-No. 2X), 2001 WL 1396719, at *                   (Service Date Oct. 4, 2000). In reaching this conclusion, the
4 (Service Date Nov. 9, 2001). In view of RVI’s interference            STB imposed a "heavy burden" on the abandoning carrier to
with the administration of the escrow fund, WKH67%IXUWKHU             rebut the presumption that all the property was necessary for
GLUHFWHG&&3$³WRPDQDJHWKHIXQGVGLUHFWO\´DQG³FRPSOHWH              effective rail operations. The STB concluded that RVI failed
DOOUHSDLUVIRUZKLFKWKHHVFURZIXQGVDUHWREHXVHGZLWKLQ            to sustain this burden, finding that RVI’s "assurance" that the
GD\VIURPWKHHIIHFWLYHGDWHRIWKLVGHFLVLRQ´,GDW          property interests that it intended to convey to CCPA would
                                                                        be sufficient to operate the rail line was "entitled to little, if
                       ,,',6&866,21                                   any, weight, considering that RVI has not had any experience
                                                                        operating this, or any other, rail line." Id. The STB further
$6WDQGDUGRI5HYLHZ                                                   reasoned that dividing the surface rights from other property
   When asked to review a decision of an administrative                 rights in the land would be "impractical and unworkable" and
agency, this Court employs a narrow standard of review. See             "could create constant tension between the owner of the rail
Simms v. Nat’l Traffic Safety Admin., 45 F.3d 999, 1003 (6th            line (here, RVI’s affiliate VPB) or other easement holders . . .
Cir. 1995). )LUVWWKLV&RXUW³PXVWJLYHFRQVLGHUDEOHZHLJKW            and the holder of surface rights to conduct rail operations
DQGGXHGHIHUHQFHWRWKH>67%¶V@LQWHUSUHWDWLRQRIWKHVWDWXWHV         (here, CCPA)." Id. Although RVI claimed that there would
LW DGPLQLVWHUV XQOHVV LWV VWDWXWRU\ FRQVWUXFWLRQ LV SODLQO\      be no problems between a railroad with surface rights and
XQUHDVRQDEOH´5/7'5\&RUS)GDWTXRWLQJ              other parties with subsurface or aerial rights, the STB was
%URWKHUKRRGRI/RFRPRWLYH(QJ¶UVY,&&)G                not persuaded, however, that there can be any assurance
WK&LUVHHJHQHUDOO\&KHYURQ86$,QFY1DWXUDO           that rail operations will be unhampered unless the offeror
5HVRXUFHV 'HIHQVH &RXQFLO  86   
KROGLQJWKDWUHYLHZLQJFRXUWPXVWRQO\DVNZKHWKHUDJHQF\                (who will be responsible for ensuring that rail service is
DFWLRQ³LVEDVHGRQDSHUPLVVLEOHFRQVWUXFWLRQRIWKHVWDWXWH´          provided) possesses sufficient property rights to
³:KLOHDQDJHQF\¶VLQWHUSUHWDWLRQRIDVWDWXWHLVHQWLWOHGWR             determine unimpeded who may enter the right-of-way at
GHIHUHQFHµIHGHUDOFRXUWVEHDUWKHXOWLPDWHUHVSRQVLELOLW\IRU           what times and under what circumstances, as well as
LQWHUSUHWLQJ IHGHUDO VWDWXWHV¶´ &URXQVH &RUS Y ,&&          whether any underground or additional overhead cables
)GWK&LUTXRWLQJ0HDGH7RZQVKLSY                or similar structures would interfere with its own rail use
$QGUXV)GWK&LU:HDOVRQRWHWKDW                of the right-of-way.
³>D@QDJHQF\¶VLQWHUSUHWDWLRQRILWVRZQUHJXODWLRQ>V@PHULW>@
HYHQ JUHDWHU GHIHUHQFH WKDQ LWV LQWHUSUHWDWLRQ RI WKH VWDWXWH   Id. Accordingly, the STB ordered RVI to include in the
WKDWLWDGPLQLVWHUV´%XIIDOR&UXVKHG6WRQH,QFY67%           conveyance to CCPA "all property in the right-of-way,
)G'&&LU+RZHYHUDUHJXODWLRQIURP             including the subsurface and air rights, all real estate and
WKH DJHQF\ FKDUJHG ZLWK LPSOHPHQWLQJ WKH VWDWXWH FDQQRW          track, and all other rail materials." Id. at *12.
VWDQGLILWLV³DUELWUDU\FDSULFLRXVRUPDQLIHVWO\FRQWUDU\WR
    5DLOURDG9HQWXUHVHWDO      1RV        1RV        5DLOURDG9HQWXUHVHWDO    
      Y6XUIDFH7UDQVS%G                               Y6XUIDFH7UDQVS%G
      HWDO                                                                                  HWDO

   The STB also voided RVI’s transfers of subsurface and            continued rail service." Id. at *2. The STB also rejected a
aerial rights to its affiliate, VPB, and the sale of 4.012 acres    request from RVI to include language in the bill of sale
to the Park District. Citing Kalo Brick, 450 U.S. at 320, the       conditioning the sale on CCPA’s assumption of liability for
STB held that these transfers violated the STB’s "continuing        repair of track fixtures, concluding that this language
and exclusive regulatory jurisdiction over the rail line prior to   contravened the STB’s order creating an escrow account for
its abandonment." Id. at *7. According to the STB, RVI’s            RVI’s payment of track repairs and restoration. Id. at * 3.
attempted conveyances after the commencement of the OFA             However, the STB granted a request from RVI to include
process amounted to "a blatant effort to strip away as much of      language in the instruments of conveyance indicating that the
the property as possible to avoid including those portions of       transfer to CCPA was subject to future orders and decisions
the property in the OFA sale." Id. The STB further viewed           of the STB and this Court.
the transfers as "undermin[ing] the OFA sale by jeopardizing
CCPA’s ability to provide effective, uninterrupted rail                CCPA then moved this Court for an injunctive order
service." Id. Based upon the need "to protect the integrity of      compelling RVI to comply with the STB’s decisions and
the OFA process," the STB, relying upon its inherent                enjoining RVI from collaterally attacking the STB’s decision.
regulatory authority, reaffirmed its order directing that "RVI      In an order issued on January 5, 2001, a panel of this Court
sell to CCPA all of the interests that it acquired in this rail     partially granted CCPA’s motion, directing RVI to comply
line with the exception of the licenses and crossings to which      with the October 4, 2000 and December 7, 2000 decisions of
CCPA has acquiesced by reducing its assessment of the               the STB requiring the transfer of the rail line to CCPA. This
valuation of the line . . . ." Id.                                  Court remanded the matter to STB "for the limited purpose of
                                                                    specifying the form of the deed and bill of sale to be utilized
   The STB also addressed evidence of RVI’s 1996 sale of the        for the transfer and scheduling a new date for the closing."
track salvage rights to Kovalchick.              While CCPA         Pursuant to this Court’s January 5, 2001 order, the STB
characterized the Kovalchick sale as evincing RVI’s clear           issued a decision on January 17, 2001, rejecting the proposed
lack of intention to operate the line and requested revocation      deeds proffered by RVI, directing the parties to use the
of the abandonment exemption on this ground, the STB                proposed deeds proffered by CCPA, as well as its proposed
declined to revoke the exemption, but instead decided to            bill of sale, and setting a closing date of January 23, 2001.
revalue the track and materials in light of the evidence of the     R.R. Ventures, Inc.  Abandonment Exemption  Between
sale to Kovalchick. Specifically, the STB explained that RVI        Youngstown, OH, and Darlington, PA, in Mahoning and
had withheld information about the Kovalchick sale during its       Columbiana Counties, OH, and Beaver County, PA, STB
earlier valuation of the line, "render[ing] meaningless the later   Docket No. AB-556 (Sub-No. 2X), 2001 WL 41202, at *2-3
offer upon which [the] STB had relied." The STB determined          (Service Date Jan. 17, 2001).
that the net salvage value for the track should be reduced to
the $400,000 that Kovalchick had paid for the right to salvage        Thereafter, in May of 2001, CCPA filed a request with the
the materials in the future. Id. at *8-9.                           STB seeking clarification of the assets to be transferred to it
                                                                    and the establishment of a procedure for disbursing the funds
  The STB also refused RVI’s request that the STB reopen            from the escrow account to pay for repairs to the line. In a
the line valuation to consider evidence of the line as an           decision on November 9, 2001, the STB clarified the extent
     5DLOURDG9HQWXUHVHWDO      1RV         1RV        5DLOURDG9HQWXUHVHWDO     
       Y6XUIDFH7UDQVS%G                                Y6XUIDFH7UDQVS%G
       HWDO                                                                                   HWDO

FRUULGRU  7KH 67% H[SODLQHG WKDW LW KDG FUHGLWHG DOO WKH   assembled corridor, except for in one limited area, adjusting
³FRQYLQFLQJHYLGHQFH´RIDVVHPEOHGFRUULGRUYDOXHOLPLWHG            the value of the land upward somewhat to reflect timely
WR WKH FRQWUDFW IRU VDOH RI  DFUHV RI ODQG WR %RDUGPDQ   evidence of a contingent sale of 20.6 acres to the Park District
7RZQVKLSDQGWKHHDUOLHUVDOHRIDQDHULDOHDVHPHQWWR2KLR           for a 4.2 mile bicycle trail, for which RVI had earlier
(GLVRQ&RPSDQ\7KH67%UHIXVHGWRFUHGLWRWKHUFRUULGRU             submitted a signed contract. Because RVI had a contract to
YDOXDWLRQHYLGHQFHEecause RVI had not presented it in the            sell its rights on the 4.2 mile segment to the Park District in
form of a signed sale agreement or firm purchase offer. Id. at        the event that the line were abandoned, the STB revalued the
* 6-7. Finally, the STB reconfirmed its conclusion that the           acreage sold to the Park District at the contract price of
proper track salvage value was limited to $400,000 based              $600,000, and revalued the remaining portion of the land
upon the 1996 sale to Kovalchick. The STB explained that              within Boardman Township (approximately two acres) at
"if abandonment had occurred, RVI could not have resold the           $19,306. The STB’s revaluation of the land thus yielded a
track and materials to a different company for any price,             total land value of $817,868, from which it subtracted
because it earlier had sold the future salvage rights for             $100,000 for income assigned by RVI to a third party. The
$400,000." Id. at *7. RVI has filed a petition for this Court’s       STB added the $717,868 to the new $400,000 track value and
review of the STB’s November 2, 2000 decision. By an order            reached a total value for the rail line of $1,117,868. Id. at *
dated November 17, 2000, this Court denied RVI’s request              10-11.
for a stay pending judicial review.
                                                                        However, the STB rejected all of RVI’s other reasons for
  5.    The STB’s December 7, 2000, January 17, 2001 and              revaluing the land as an assembled corridor, concluding that
        November 9, 2001 decisions                                    RVI’s evidence, which included proposals by other park
                                                                      districts to gain funding for trails on the line and an offer by
   After the STB’s November 2, 2000 decision, a number of             RVI to sell an easement to Williams for installation of fiber
issues arose between the parties resulting in several more            optic cable, was not submitted prior to its setting the land
decisions of the STB. On December 7, 2000, the STB                    valuation in the January 7, 2000 decision and was
rejected a request from RVI to bind CCPA and its prospective          "speculative." The STB explained:
operator, CCPR, to the 1996 "management agreement"
between RVI and OLE, Ltd., which required the payment to                With the exception of the completed sale of an easement
a property manager of ten percent of the gross receipts from            to Ohio Edison [that the Board had included in its prior
the operation, rent, or transfer of the rail line. R.R. Ventures,       valuation of the land], there is no comparable signed
Inc.  Abandonment Exemption  Between Youngstown, OH,                  contract for sale of rights for other utility easements on
and Darlington, PA, in Mahoning and Columbiana Counties,                any portion of the right-of-way. Nor is there a firm bid
OH, and Beaver County, PA, STB Docket No. AB-556 (Sub-                  from a purchaser that would be binding upon RVI’s
No. 2X), 2000 WL 1801264, at *2-3 (Service Date Dec. 7,                 acceptance.
2000). The STB found that this obligation, costing
approximately $137,000, subjected CCPA to unnecessary and             Id. at * 9. The STB also refused to include the 4.012-acre
burdensome costs, possibly thwarting a sale of the rail line          sale to the Park District because RVI had not identified the
under the OFA process, and was contrary to the primary
purpose of 49 U.S.C. § 10904, which is "to provide for
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location of the parcel, and did not argue that the contract for        The STB then issued a decision on November 2, 2000,
sale demonstrated the value of the land. Id. at * 10.               denying RVI’s motions to vacate and to stay the sale. R.R.
                                                                    Ventures, Inc.  Abandonment Exemption  Between
   Finally, the STB discussed CCPA’s evidence regarding             Youngstown, OH, and Darlington, PA, in Mahoning and
removal of, or damage to, segments of the line and track.           Columbiana Counties, OH, and Beaver County, PA, STB
Specifically, the STB responded to correspondence                   Docket No. AB-556 (Sub-No. 2X), 2000 WL 1648143
introduced by CCPA that showed that RVI authorized "state           (Service Date Nov. 2, 2000). The STB explained that
road crews [to] pave over the line while it was still an active     pursuant to 49 U.S.C. § 10904(f)(2), an offeror, such as
rail line and at the same time that shippers were requesting        CCPA, is obligated to file a notice of withdrawal from a sale
service." Because the STB found that RVI acted in "blatant          within ten days of a STB decision setting terms, but it is not
disregard of its common carrier obligations to provide              statutorily obligated to file a notice of acceptance. The STB
service," it acceded to CCPA’s request to establish an escrow       also rejected RVI’s argument that CCPA had failed to comply
account for funding "to ensure that RVI pays for uncovering         with the ten-day period for accepting or rejecting in writing
and restoring paved-over track and for reconnecting signal          the STB’s terms pursuant to 49 C.F.R. § 1152.27(h)(7).
equipment at road crossings." Id. at * 11. The STB                  According to the STB, CCPA had provided proper written
accordingly directed that $375,000 of the sale price be placed      notice when the STB set the initial sale terms on January 7,
into an escrow account, and ordered RVI to permit CCPA and          2000, and thus had complied with the regulation because the
its agents to inspect the line for damage. The STB then             STB had not required another notice of CCPA’s acceptance
ordered RVI to convey to "CCPA all land, track, and related         of its October 3, 2000 decision. The STB further rejected
material, and property interests covered by [its] previous          RVI’s motion to vacate in light of CCPA’s October 20, 2000
order, as clarified here, within 45 days of the date of service     letter of acceptance. Id. at * 3-4.
of this decision according to the terms of closing stated in this
decision." Id. at * 12. RVI, Boardman Township, and the                7KH 67% DOVR GHQLHG 59,¶V PRWLRQ IRU D VWD\ SHQGLQJ
Park District have filed petitions for review from the STB’s        MXGLFLDOUHYLHZRIWKH2FWREHUGHFLVLRQ7KH67%
October 4, 2000 decision.                                           ILUVW UHMHFWHG 59,¶V DUJXPHQW WKDW &&3$ KDG QRW SURSHUO\
                                                                    DFFHSWHGWKH-DQXDU\WHUPVRIWKHVDOH59,DJDLQDGYDQFHG
  4.    The STB’s November 2, 2000 decision denying                 WKHDUJXPHQWWKDWWKH67%FRXOGRQO\IRUFHDQRZQHUWRVHOO
        RVI’s motions to vacate and to stay the sale                DVPXFKSURSHUW\DVQHFHVVDU\IRUUDLORSHUDWLRQVDQGWKDW
                                                                    &&3$¶V DFFHSWDQFH RI D IHH LQWHUHVW ZDV JUHDWHU WKDQ WKH
  After the STB’s October 4, 2000 decision, RVI filed a             67%¶V WHUPV  7KH 67% UHLWHUDWHG LWV ³UHEXWWDEOH
motion to vacate the sale and vacate postponement of the            SUHVXPSWLRQ´WKDWDSXUFKDVHUZRXOGQHHGDOORIWKHVHOOHU¶V
abandonment exemption on the grounds that CCPA had not              LQWHUHVWV³WRSURYLGHHIIHFWLYHWUDQVSRUWDWLRQVHUYLFHEHFDXVH
timely accepted the STB’s new sale terms. RVI also                  WKDWLVWKHSURSHUW\WKHVHOOHURULWVSUHGHFHVVRUDVVHPEOHG
requested a stay of the sale pending review by this Court.          IRU DQG GHGLFDWHG WR UDLO VHUYLFH´ FRQFOXGLQJ WKDW &&3$
CCPA responded to this motion with a letter to the STB dated        ZRXOGQHHGDOORI59,¶VLQWHUHVWLQWKHOLQH,GDW
October 20, 2000, advising both the STB and RVI that "it
accepts the revised terms and conditions."                            7KH67%DOVRUHMHFWHG59,¶VFRQWHQWLRQWKDWWKH67%KDG
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