41461                                      SERVICE DATE – MARCH 9, 2011

DO

 

SURFACE TRANSPORTATION BOARD

 

DECISION

 

Docket No. AB 55 (Sub-No. 682X)

 

CSX TRANSPORTATION, INC.—ABANDONMENT

EXEMPTION—IN GREENBRIER AND FAYETTE COUNTIES, W. VA.

 

Decided:  March 8, 2011

 

CSX Transportation, Inc. (CSXT) filed a notice of exemption under 49 C.F.R. pt. 1152 subpart F—Exempt Abandonments to abandon a 16.7-mile line of railroad on CSXT’s Southern Region, Huntington-East Division, Sewell Subdivision, between milepost CAF 27, near Rainelle, and milepost CAF 43.7, near Nallen, in Greenbrier and Fayette Counties, W. Va.  Notice of the exemption was served and published in the Federal Register on April 3, 2008 (April 2008 notice) (73 Fed. Reg. 18,322-23).  By decision and notice of interim trail use or abandonment (NITU) served on August 29, 2008, the proceeding was reopened and a 180-day period was authorized for Greenbrier County Commission and the Fayette County Commission (the Counties) to negotiate an interim trail use/rail banking agreement with CSXT for the right-of-way involved in this proceeding, pursuant to the National Trails System Act, 16 U.S.C. § 1247(d) (Trails Act).  By decisions served on February 24, 2009, August 25, 2009, March 15, 2010, and August 24, 2010, the NITU negotiating period was extended until February 15, 2011.   

 

On February 15, 2011, the Counties filed a request for an extension of the negotiating period for 180 days.[1]  The Counties state that the parties desire to continue negotiations for a NITU, and the county commissions and CSXT have agreed to a purchase agreement.  The Counties also state that the conclusion of the purchase is dependent on the completion of an environmental assessment.  By letter filed on February 22, 2011, CSXT concurs with the extension request.[2]

 

Where, as here, the carrier has not consummated the abandonment at the end of the previously imposed negotiating period and has indicated its willingness to continue negotiations by agreeing to an extension, the Board retains jurisdiction and the NITU negotiating period may be extended.[3]  Under the circumstances, further extension of the negotiating period is warranted.  See Birt v. STB, 90 F.3d 580, 588-90 (D.C. Cir. 1996); Grantwood Village v. Mo. Pac. R.R., 95 F.3d 654, 659 (8th Cir. 1996).  An extension of the NITU negotiating period will promote the establishment of trail use and rail banking consistent with the Trails Act.  Accordingly, the NITU negotiating period will be extended from February 15, 2011, to August 14, 2011.

 

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

 

It is ordered:

 

1.  The Counties’ request to extend the NITU negotiating period is granted.

 

2.  The negotiating period under the NITU is extended until August 14, 2011.

 

3.  This decision is effective on its service date.

 

            By the Board, Joseph H. Dettmar, Acting Director, Office of Proceedings.