40665                                         SERVICE DATE – APRIL 5, 2010

DO

 

SURFACE TRANSPORTATION BOARD

 

DECISION AND NOTICE OF INTERIM TRAIL USE OR ABANDONMENT

 

STB Docket No. AB-870X

 

BUTLER COUNTY, KANSAS—ABANDONMENT EXEMPTION—IN BUTLER

COUNTY, KS

 

Decided:  April 2, 2010

 

            Butler County, Kansas (County), filed a notice of exemption under 49 CFR 1152 Subpart F—Exempt Abandonments to abandon its entire 10.6-mile line of railroad between milepost 483.62, at Augusta, and milepost 494.22, near Andover, in Butler County, KS.  Notice of the exemption was served and published in the Federal Register on July 2, 2004 (69 FR 40472).  The exemption became effective on August 4, 2004.[1]  By decision and notice of interim trail use or abandonment (NITU) served on June 2, 2005, the proceeding was reopened and Butler County Economic Development (BCED) was authorized to negotiate a trail use agreement with the County for the entire line pursuant to section 8(d) of the National Trails System Act, 16 U.S.C. 1247(d) (Trails Act), and 49 CFR 1152.29 in order to rail bank its own line.[2]  By letter filed on June 3, 2005, BCED notified the Board that BCED and the County had consummated a trail use/rail banking agreement for the line.

 

            On September 28, 2009, BCED and the City of Augusta, KS (Augusta), filed a joint petition requesting that Augusta be substituted for BCED as the interim trail manager for the 1.58-mile segment of the line located between milepost 483.62 and milepost 485.2.  By decision and NITU served on November 5, 2009, the Board modified and vacated in part the NITU served on June 2, 2005, and granted the request to substitute Augusta as interim trail manager for this segment.

 

            On March 8, 2010, BCED and the City of Andover, KS (Andover), (collectively, petitioners), filed a joint petition requesting that Andover be substituted for BCED as the interim trail manager for a 3-mile portion of the line located between milepost 491.22, at Andover, and milepost 494.22, near Andover.  Petitioners state that the County supports this request.

 

Petitioners have submitted a copy of the extant NITU, Andover’s statement of willingness to assume financial responsibility for interim trail use and rail banking, and Andover’s acknowledgement that 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.  Petitioners also have indicated that the transfer of responsibility for the segment of the right-of-way will be within 30 days of the Board’s decision authorizing the substitution.  Petitioners’ submission meets the requirements of 49 CFR 1152.29(f).  Accordingly, petitioners’ request will be granted.

 

            This decision 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.  The NITU served on June 2, 2005, is modified to vacate from that NITU the segment of the right-of-way between milepost 491.22 and milepost 494.22.

 

            3.  A replacement NITU applicable to Andover as interim trail user is issued for the segment of the right-of-way between milepost 491.22 and milepost 494.22, effective on the service date of this decision and notice, subject to any environmental conditions that remain in effect.

 

            4.  The new trail user is required to assume, for the term of the agreement, full responsibility for management of, for any legal liability arising out of the transfer or use of (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for 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 the future use of the property for restoration of railroad operations, and to the new user’s continuing to meet the financial obligations for the right-of-way.

 

            6.  If the new trail user intends to terminate trail use, it must send the Board a copy of this decision and notice and request that it be vacated on a specified date.

 

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

 

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