                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-4102
                                    ___________

Missouri Friends of the Wabash       *
Trace Nature Trail, Inc.,            *
                                     *
            Petitioner,              *
                                     *
       v.                            * Petition for Review of
                                     * an Order of the Surface
Surface Transportation Board;        * Transportation Board.
Adjoining Landowners; United         *
States of America,                   *    [UNPUBLISHED]
                                     *
            Respondents,             *
                                     *
Norfolk Southern Railway Company,    *
                                     *
            Respondent-Intervenor    *
            on Appeal.               *
                                ___________

                          Submitted: October 3, 2000
                              Filed: October 11, 2000
                                  ___________

Before BEAM, FAGG, and LOKEN, Circuit Judges.
                           ___________

PER CURIAM.

       The Missouri Friends of the Wabash Trace Nature Trail, Inc. (Friends) petitioned
the Surface Transportation Board (Board) for a declaratory judgment concerning the
status of a 28.72 mile right-of-way previously owned by Wabash Railroad Company
and used to provide rail service. After the Board denied the petition, Friends sought
review in this court. Upon a thorough review of the record, we conclude that the Board
did not abuse its discretion in denying the petition. See Nebraska Trails Council v.
Surface Transp. Bd., 120 F.3d 901, 905 (8th Cir. 1997) (standard of review).

       Specifically, the record shows that the rail line was properly abandoned in 1984
when the railroad exercised its abandonment authority in accordance with a previously
issued agency certificate granting permission to abandon. At that point, the Board lost
jurisdiction over the line and thus was without jurisdiction to afford Friends the
requested relief in its petition, filed years later. See 49 U.S.C. § 10903(d) (rail carrier
may abandon any part of its lines if Board finds present or future public convenience
and necessity require or permit abandonment); Preseault v. ICC, 494 U.S. 1, 5 n.3
(1990) (once carrier abandons rail line pursuant to ICC1 authority, line is no longer part
of national transportation system, and ICC jurisdiction terminates); Winter v. ICC, 828
F.2d 1320, 1323 (8th Cir. 1987) (abandoned rail line is no longer subject to ICC
jurisdiction; intent to abandon line was clear where railroad had filed abandonment
application and followed ICC’s formal abandonment requirements).

       We reject Friends’ argument that the railroad’s lease of the property to a third
party, who temporarily provided rail service over the abandoned line, revoked the
agency’s previously granted authority to abandon. See Wisconsin Cent. Ltd. v. Surface
Transp. Bd., 112 F.3d 881, 892 (7th Cir. 1997) (lease of properly abandoned line to
third party who wishes to provide service does not subject owner or property to ICC
regulatory power, unless owner takes some affirmative action beyond mere lease of line
to indicate its willingness and ability to provide service in lessee’s stead).



      1
        The ICC (Interstate Commerce Commission) was abolished on January 1, 1996,
and the Board assumed responsibility for regulating rail transportation. See Nebraska
Trails Council, 120 F.3d at 903 n.2.
                                            -2-
Accordingly, we deny Friends’ petition for review.

A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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