SURFACE TRANSPORTATION BOARD DECISION DOCUMENT
    Decision Information

Docket Number:  
AB_33_302_X

Case Title:  
UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION--IN DUNN COUNTY, WIS.

Decision Type:  
Decision

Deciding Body:  
Director Of Proceedings

    Decision Summary

Decision Notes:  
DECISION: (1) REOPENED THIS PROCEEDING; AND (2) MODIFIED A NOTICE SERVED AND PUBLISHED IN THIS PROCEEDING.

    Decision Attachments

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    Full Text of Decision

37195

43059 SERVICE DATE – LATE RELEASE MAY 6, 2013

DO

 

SURFACE TRANSPORTATION BOARD

 

DECISION AND NOTICE OF INTERIM TRAIL USE OR ABANDONMENT

 

Docket No. AB 33 (Sub-No. 302X)

 

UNION PACIFIC RAILROAD COMPANY—ABANDONMENT EXEMPTION—

IN DUNN COUNTY, WIS.

 

Decided: May 6, 2013

 

Union Pacific Railroad Company (UP) filed a verified notice of exemption under 49 C.F.R. pt. 1152 subpart F–Exempt Abandonments to abandon a 0.58-mile line of railroad on its Menomonie Industrial Lead from milepost 0.32 near Cedar Falls Road to the end of the line at milepost 0.90 near Oak Avenue, in Menomonie, Dunn County, Wis. (the Line). Notice of the exemption was served and published in the Federal Register on April 5, 2013 (78 Fed. Reg. 20,714). The exemption is scheduled to become effective on May 7, 2013.

 

The Board’s Office of Environmental Analysis (OEA) served an environmental assessment (EA) in this proceeding on April 12, 2013, requesting comments by April 29, 2013. In the EA, OEA recommended that the Board not impose environmental conditions on any decision granting abandonment authority. No comments to the EA were filed by the April 29, 2013 due date. Therefore, no conditions will be imposed. Because no environmental or historic preservation issues have been raised by any party or identified by OEA, a Finding of No Significant Impact under 49 C.F.R. 1105.10(g) will be made pursuant to 49 C.F.R.  1011.7(a)(2)(ix).

In the EA, OEA also stated that the right-of-way may be suitable for other public use following abandonment and salvage of the Line. On April 10, 2013, the City of Menomonie, Dunn County, Wis. (the City) filed a request for the issuance of a notice of interim trail use (NITU) to negotiate with UP for acquisition of the Line for use as a trail under the National Trails System Act (Trails Act), 16 U.S.C.  1247(d), and 49 C.F.R.  1152.29. Pursuant to 49 C.F.R.  1152.29, the City has submitted a statement of its willingness to assume financial responsibility for the right-of-way, and has acknowledged that the use of the right-of-way for trail purposes is subject to possible future reconstruction and reactivation of the right-of-way for rail service. In a letter filed on April 9, 2013, UP has indicated its willingness to negotiate with the City for interim trail use and supports the City’s request.

 

Because the City’s request complies with the requirements of 49 C.F.R.  1152.29 and UP is willing to negotiate for trail use, a NITU will be issued. The parties may negotiate an agreement for the right-of-way during the 180-day period prescribed below. If an interim trail use agreement is reached (and thus, interim trail use is established), the parties shall jointly notify the Board within 10 days that an agreement has been reached. 49 C.F.R.  1152.29(d)(2) and (h); Nat’l Trails Sys. Act & R.R. Rights-of-Way, EP 702 (STB served Apr. 30, 2012). If no agreement is reached within 180 days, UP may fully abandon the Line. 49 C.F.R.  1152.29(d)(1). Use of the right-of-way for trail purposes is subject to possible future reconstruction and reactivation of the right-of-way for rail service.

 

The City also has requested imposition of a public use condition under 49 U.S.C.  10905 for the right-of-way. The City asks that UP be prohibited from disposing of the corridor, other than tracks, ties, and signal equipment, except for public use on reasonable terms, and that UP be barred from the removal or destruction of potential trail-related structures, such as bridges, trestles, culverts, and tunnels, for a 180-day period from the effective date of the abandonment authorization. The City’s justification for its request is that these structures have considerable value for recreational trail purposes. The City states that the 180-day period is needed to complete negotiations with UP.

 

As an alternative to interim trail use under the Trails Act, the right-of-way may be acquired for public use as a trail under 49 U.S.C.  10905. See Rail Abans.—Use of Rights-of- Way as Trails, 2 I.C.C.2d 591, 609 (1986). Under  10905, the Board may prohibit the disposal of rail properties that are proposed to be abandoned and are appropriate for public purposes for a period of not more than 180 days after the effective date of the decision approving or exempting the abandonment.

 

To justify a public use condition, a party must set forth: (i) the condition sought; (ii) the public importance of the condition; (iii) the period of time for which the condition would be effective; and (iv) justification for the imposition of the period of time requested. 49 C.F.R.  1152.28(a)(2). Because the City has satisfied these requirements, a 180-day public use condition will be imposed, requiring UP to keep intact the right-of-way (including trail-related structures such as bridges, trestles, culverts, and tunnels) and to refrain from disposing of the corridor (other than tracks, ties, and signal equipment), commencing from the May 7, 2013 effective date of the exemption.

 

When the need for interim trail use/rail banking and public use is shown, it is the Board’s policy to impose both conditions concurrently, subject to the execution of a trail use agreement. Here, however, while both conditions will be imposed at this time, the public use condition will expire on November 3, 2013, while the trail use negotiating period will run 180 days from the service date of this decision and notice, until November 2, 2013. If a trail use agreement is reached on a portion of the right-of-way prior to November 2, 2013, UP must keep the remaining right-of-way intact for the remainder of the 180-day public use condition period to permit public use negotiations. Also, a public use condition is not imposed for the benefit of any one potential purchaser, but rather to provide an opportunity for any interested person to acquire the right-of-way that has been found suitable for public purposes, including trail use. Therefore, with respect to the public use condition, UP is not required to deal exclusively with the City, but may engage in negotiations with other interested persons.

 

This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

 

It is ordered:

 

1. This proceeding is reopened.

 

2. Upon reconsideration, the notice served and published in the Federal Register on April 5, 2013, exempting the abandonment of the Line described above is modified to the extent necessary to implement interim trail use/rail banking as set forth below to permit the City to negotiate with UP for trail use for the rail line, for a period of 180 days from the service date of this decision and notice, until November 2, 2013, and to permit public use negotiations as set forth below, for a period of 180 days commencing from the May 7, 2013 effective date of the exemption, until November 3, 2013.

 

3. Consistent with the public use and interim trail/rail banking conditions imposed in this decision and notice, UP may discontinue service and salvage track and related materials. UP shall otherwise keep intact the right-of-way, including potential trail-related structures such as bridges, trestles, culverts, and tunnels, for a period of 180 days (until November 3, 2013) to enable any state or local government agency, or other interested person, to negotiate the acquisition of the right-of-way for public use. If an interim trail use/rail banking agreement is executed before expiration of the 180-day public use condition period, the public use condition will expire to the extent the trail use/rail banking agreement covers the same portion of the right-of-way.

 

4. If an interim trail use/rail banking agreement is reached, it must require the trail sponsor to assume, for the term of the agreement, full responsibility for: (i) managing the right-of-way; (ii) any legal liability arising out of the transfer or use of the right-of-way (unless the sponsor is immune from liability, in which case it need only indemnify the railroad against any potential liability); and (iii) the payment of any and all taxes that may be levied or assessed against the right-of-way.

 

5. Interim trail use/rail banking is subject to possible future reconstruction and reactivation of the right-of-way for rail service and to the trail sponsor’s continuing to meet its responsibilities for the right-of-way described in ordering paragraph 4 above.

 

6. If an interim trail use agreement is reached (and thus, interim trail use is established), the parties shall jointly notify the Board within 10 days that an agreement has been reached. 49 C.F.R.  1152.29(d)(2) and (h).

 

7. If interim trail use is implemented, and subsequently the trail sponsor intends to terminate trail use on all or any portion of the right-of-way covered by the interim trail use agreement, it must send the Board a copy of this decision and notice and request that it be vacated on a specified date.

 

8. If an agreement for interim trail use/rail banking is reached by November 2, 2013, for the right-of-way, interim trail use may be implemented. If no agreement is reached, UP may fully abandon the Line.

 

9. This decision and notice is effective on its service date.

 

By the Board, Rachel D. Campbell, Director, Office of Proceedings.