SURFACE TRANSPORTATION BOARD DECISION DOCUMENT
    Decision Information

Docket Number:  
FD_35239_0

Case Title:  
ALLEGHENY VALLEY RAILROAD COMPANY--PETITION FOR DECLARATORY ORDER

Decision Type:  
Decision

Deciding Body:  
Entire Board

    Decision Summary

Decision Notes:  
DECISION REOPENED THIS PROCEEDING AND VACATED AND REVERSED A PREVIOUS DECISION.

    Decision Attachments

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    Full Text of Decision

41457 SERVICE DATE – APRIL 19, 2013

EB

 

SURFACE TRANSPORTATION BOARD

 

DECISION

 

Docket No. FD 35239

 

ALLEGHENY VALLEY RAILROAD COMPANY—PETITION

FOR DECLARATORY ORDER

 

Digest:[1] After reviewing new evidence, the Board is vacating and reversing its prior decision that found the Allegheny Valley Railroad Company possesses an active railroad easement on property owned by The Buncher Company in Pittsburgh, Pa. The record, as supplemented, supports the conclusion that this portion of railroad line was abandoned pursuant to authority granted by the Board’s predecessor agency in 1984.

 

Decided: April 18, 2013

 

This dispute between the Allegheny Valley Railroad Company (AVRC) and The Buncher Company (Buncher) centers on whether an alleged line of railroad that crossed Buncher’s property between 16th Street and 21st Street in Pittsburgh, Pa. (known as the Valley Industrial Track), over which AVRC purportedly obtained an operating easement in 1995, had already been abandoned. The case involves the interpretation of a rail line abandonment authorized by the Board’s predecessor agency, the Interstate Commerce Commission (ICC), in the 1980s and events that took place in Pittsburgh after that time. Questions involving the precise description of the line sought to be abandoned and whether particular abandonment authority was exercised (i.e., consummated) are complex, fact-bound determinations that depend on a weighing of all the available evidence, including the evidence regarding the carrier’s intent.[2]

 

As discussed below, based on the record submitted at that time, the Board issued a decision in June 2010 finding that the rail easement across Buncher’s property was never abandoned. Since that decision was issued, however, Buncher has submitted new evidence that compels the Board to reconsider its conclusion that the rail operating easement is active, primarily because the names and descriptions used in various other essentially contemporaneous abandonments in the vicinity (all involving Smallman Street) strongly suggest that the Valley Industrial Track was abandoned before AVRC acquired the property at issue.

 

This information, as well as other evidence relevant to this matter that Board staff located following extensive research of archived records,[3] provides a far more complete record of the relevant facts. After carefully considering all of the available evidence, we will vacate and reverse the Board’s prior decision. As discussed below, the weight of the evidence shows that the Board erred in finding an active railroad easement over Buncher’s property.

 

BACKGROUND

 

A.    The Parties and their Initial Arguments

 

On April 23, 2009, AVRC filed a petition for declaratory order seeking a ruling from the Board under 5 U.S.C. 554(e) and 49 U.S.C. 721 that a rail easement that ran along Railroad Street between 16th Street and 21st Street in Pittsburgh, Pa. (the Valley Industrial Track) remained available for use as a line of railroad. Buncher, a landowner whose property is crossed by the alleged line, objected to the AVRC claim.

 

Consolidated Rail Corporation (Conrail) sold a parcel of land to Buncher in July 1983. The alleged line in question crossed this parcel of land, and Conrail, as part of the 1983 transaction, retained an easement in its sale to Buncher for continued rail service along the line.[4]

 

AVRC acquired a number of assets from Conrail in 1995, but Buncher claimed that the rail easement across its property was not one of them because the line had already been abandoned. Buncher pointed out that Conrail had submitted an abandonment application in Docket No. AB 167 (Sub-No. 558N),[5] filed on February 9, 1984, and authorized on May 18, 1984 (hereinafter referred to as the February 1984 VIT Abandonment), which sought to abandon the “Valley Industrial Track” from its connection with the Fort Wayne Connecting Track in Pittsburgh, Pa. (approximately milepost 0.0) to the west side of 21st Street (approximately milepost 0.66) in Allegheny County, Pa.[6] Buncher asserted that, by the late 1980’s, the track had been removed and the area paved over without objection from Conrail. According to Buncher, because the abandonment was therefore consummated, Conrail had no easement to convey to AVRC.

 

Once Buncher raised the filing of the February 1984 VIT Abandonment, AVRC relied heavily on the argument that the line involved in that abandonment was on Smallman Street, and not on Buncher’s land, based on the premise that there were two “Valley Industrial Tracks.” AVRC also argued that, even if that abandonment did cover the Valley Industrial Track on Buncher’s property, Conrail never consummated the abandonment, and still retained a railroad easement to pass on to AVRC in 1995.

 

Additionally, Buncher argued that the Board lacked jurisdiction over the case because a proper analysis required an interpretation of the Final System Plan (FSP), which had conveyed the area rail property to Conrail.[7] Buncher contended that, according to a recent decision of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in Consolidated Rail Corp. v. STB, 571 F.3d 13 (D.C. Cir. 2009) (Harsimus), matters requiring an interpretation of the FSP must be handled by the successor to the Special Court established in the 3 R Act, the U.S. District Court for the District of Columbia (U.S. District Court). Alternatively, Buncher argued that the tracks running across the property between 16th and 21st Streets were excepted spur track that could be abandoned at the carrier’s discretion pursuant to 49 U.S.C. 10906. AVRC countered that Harsimus is inapplicable here and that the Board should resolve the case.

 

B.    The Board’s June 15, 2010 Decision

 

In its June 15, 2010 decision, the Board granted AVRC’s request that it issue a declaratory order to clarify the situation. The Board determined that, at the time of the February 1984 VIT Abandonment, there were likely two different lines referred to as the “Valley Industrial Track” – one running along Railroad Street and extending west from where Railroad Street ended (crossing Buncher’s property) on the north side of the Produce Terminal located there, and a second one running along Smallman Street to the south of the Produce Terminal. This finding was largely based on an early 20th century map created by one of Conrail's predecessors, the Pennsylvania Railroad (PRR), and a verified statement provided by the president of AVRC, which purportedly traced the area’s rail history since the 1850s.

 

Specifically, based on the information then available, the Board found that the February 1984 VIT Abandonment referring to the “Valley Industrial Track” covered a portion of the line running along Smallman Street, rather than the line that had run across the Buncher property and thus the February 1984 VIT Abandonment was not relevant to this dispute.[8] The Board also noted that when Conrail sold various rail assets in the area to AVRC in 1995, Conrail explicitly included in its quitclaim deed easement language covering the track segment in question. The Board determined that the quitclaim deed language suggested that Conrail believed it had retained a rail easement to convey.

 

In sum, the Board concluded, based on the evidence available at that time, that there had been a line of railroad crossing Buncher’s property and that an active railroad easement over Buncher’s property survived the February 1984 VIT Abandonment.

 

C. The Appeal

 

Buncher appealed the Board’s decision to the D.C. Circuit. In a Motion to Adduce Additional Evidence Pursuant to 28 U.S.C.  2347(c) (Motion to Adduce) that was part of Buncher’s appeal, Buncher submitted new evidence that it argued would affect the Board’s decision. According to Buncher, that additional evidence established that, in mid-1984, Conrail filed three abandonment applications related to the line along Smallman Street, south of the Produce Terminal—two filed in May 1984 (Sub-Nos. 571N and 572N) and one filed in June 1984 (Sub-No. 641N). Thus, Buncher claimed, a total of four distinct abandonment applications were filed in 1984 that were directly relevant to the AVRC declaratory order petition: Sub-No. 558N (referring to the “Valley Industrial Track”); and Sub-Nos. 571N, 572N, and 641N (all referring to “Smallman Street”).

 

The Board filed a motion for voluntary remand with the court after determining that the new Buncher evidence could be material to both the June 2010 decision and the proceedings on appeal. After some initial resistance, Buncher joined the other parties in seeking a voluntary remand of the matter to the Board.

 

The court remanded the case to the Board in an order issued on January 26, 2011. Buncher submitted its additional evidence in an opening brief filed with the Board on April 11, 2011, AVRC filed a reply on May 11, 2011, and Buncher filed a rebuttal on May 26, 2011. In addition, as explained further below, Board’s staff search of records at the agency and at the National Archives at College Park, Md., produced more documents relating to various abandonment filings in the 1970s and 1980s that are also relevant to the matter before us.

 

D. The Parties’ Arguments and Evidence on Remand

 

As an initial matter, Buncher renews its Harsimus claim that the Board lacks jurisdiction to resolve the case. Buncher also presents the additional evidence that led to the Board’s request for voluntary remand—two May 1984 abandonment applications and one June 1984 abandonment application, in which Conrail sought authority to abandon track along specified portions of Smallman Street (referred to hereinafter as the Smallman Abandonments).[9]

 

Buncher argues that, because the Smallman Abandonments specifically refer to portions of the line along Smallman Street, the February 1984 VIT Abandonment could not have also covered a line in roughly the same area along Smallman Street. Moreover, because the Smallman Abandonments do not refer to the Smallman Street line as the “Valley Industrial Track,” Buncher argues that there is and was actually only one Valley Industrial Track—extending along Railroad Street to the north of the Produce Terminal—and that the line crossing the Buncher property must have been the subject of the February 1984 VIT Abandonment. Buncher concludes that this abandonment has long since been consummated (because, among other things, the track was removed and the entire area paved and graded for non-rail use more than 20 years ago without objection from Conrail), and that, accordingly, there is no active railroad easement across its property today. Buncher also notes that, even if the 1972 Abandonment discussed by the Board in its original decision covered the Valley Industrial Track, the February 1984 VIT Abandonment could nevertheless have covered a part of the same track to ensure “closure, completeness, and avoidance of ‘gaps and gores’ in description or recitals.”[10]

 

In reply, AVRC offers its own analysis of the Smallman Abandonments and how they relate to the February 1984 VIT Abandonment of the “Valley Industrial Track.” AVRC presents a new witness, Gerhard M. Williams, Jr., formerly Conrail’s Assistant Vice President for Regional Market Development, and additional testimony from Russell A. Peterson, the Chief Executive Officer of AVRC. In his verified statement, Williams describes his involvement in the activities leading up to the Conrail filing of the Smallman Abandonments. Citing the Williams statement, AVRC argues that the February 1984 VIT Abandonment and the Smallman Abandonments all referred to a line along Smallman Street. According to AVRC (and Williams), Conrail filed, but did not consummate, the February 1984 VIT Abandonment because of concerns raised by the then Mayor of Pittsburgh, Produce Terminal shippers, and other governmental officials about cutting off rail access to the Produce Terminal. Williams asserts that Conrail accepted a compromise whereby it agreed to “reactivate” the Valley Industrial Track north of the Produce Terminal Building situated between Railroad and Smallman Streets, actually provided service over that reactivated line (AVRC and Williams include a Conrail map purportedly showing the reactivated line), and then refiled for authority to abandon the line along Smallman Street through the three Smallman Abandonments. Based on this testimony, AVRC asserts that the reactivated line corresponds to the railroad easement that the Board found to be active in the June 2010 decision and that the easement crosses Buncher’s property.

 

On rebuttal, Buncher responds to Williams’ verified statement by noting that a 1993 Conrail map shows the reactivated line as being a different line than the Valley Industrial Track, and argues that Williams’ statement is based, in part, on erroneously placing the line asserted to be the reactivated line on the Buncher parcel. Buncher also observes that the February 7, 1984 letter from Conrail to the Mayor[11] promises to delay filing for abandonment authority for the Smallman Street line, despite Conrail filing an abandonment application for the Valley Industrial Track two days later, or February 9, 1984—suggesting that the Smallman Abandonments and February 1984 VIT Abandonment covered different lines.

 

E. Additional Evidence

 

Given the discrepancies between the original evidence submitted by the parties and the new evidence that the parties presented to the Board only after the June 2010 decision, the Board also conducted its own research. Board staff combed through agency records and found a Notice of Insufficient Revenue underlying the February 1984 VIT Abandonment filed in September 1983.[12] The research also produced a separate NIR for one of the Smallman Abandonments, Sub-No. 641N, filed October 31, 1983[13] (and which ultimately led to the June 1984 Smallman Abandonment application in that docket); shipper and government representative letters from December 1983 and early 1984 protesting the Sub-No. 641N abandonment; and reply letters from the ICC.[14] Finally, after a search of records in the National Archives, staff found the complete 1972 Abandonment application with a color map,[15] as well as two subsequent decisions from the ICC extending the consummation deadline for the 1972 Abandonment into 1975.[16] As discussed below, this information, which stems from the evidence submitted on remand and a search of information from the National Archives, provides further support for Buncher’s position that there is no longer an active rail easement across Buncher’s property. We have made all of this information part of the record in this proceeding.

 

PRELIMINARY MATTERS

 

The Board sought a voluntary remand and then reinitiated this proceeding after reviewing evidence attached to the Motion to Adduce that Buncher had filed with the D.C. Circuit. Before we readdress the merits taking into account this evidence, we will explain our decision to treat the Motion to Adduce as a petition to reopen and reconsider our June 2010 decision, and why we have the jurisdiction to determine the merits of this dispute.

 

The Motion to Adduce was the functional equivalent of a petition to reopen based on new evidence. Under our statute, we may reopen a proceeding because of material error, new evidence, or substantially changed circumstances.[17] The alleged grounds for reopening must be sufficient to convince us that, if accepted, they would lead the Board to materially alter its prior decision.[18] The agency’s practice is to only accept “new” evidence as opposed to “newly discovered” evidence when reconsidering a decision. See Tongue River R.R.—Constr. and Operation—W. Alignment, FD 30186 (Sub-No. 3), slip op. at 13 (STB served June 15, 2011) (citing Friends of Sierra R.R. v. ICC, 881 F.2d 663, 667 (9th Cir. 1989)). Here, we find it appropriate to treat this evidence as new rather than newly discovered. The Board itself sought remand from the D.C. Circuit to consider the evidence that Buncher had presented in its Motion to Adduce, and no party has objected to our consideration of that evidence. Moreover, it is not the type of evidence Buncher should have been expected to know about when it responded to AVRC’s petition for declaratory order in 2009.[19] Indeed, some of the evidence upon which the Board now relies was discovered by the Board only after a time-consuming review in the National Archives by Board staff. Given all of these circumstances, we have considered the evidence so as to decide this case with the most complete record possible.

 

We also find that it is not necessary to interpret the FSP or the conveyance of property to Conrail in the FSP to resolve this dispute. Rather, our analysis here is based solely on our interpretation of relevant abandonment authority issued by the ICC and evidence regarding the parties’ actions and events that took place following the issuance of that authority. Accordingly, we agree with AVRC that Harsimus is inapplicable and that we need not refer any matters in this case to the U.S. District Court.

 

DISCUSSION AND CONCLUSIONS

 

The issue here is whether we should revisit the Board’s declaration that there is an active railroad easement running across Buncher’s property. This question turns on: (1) whether an active line of railroad extended from Railroad Street across the Buncher property; (2) whether the February 1984 VIT Abandonment refers to the line extending from Railroad Street (as argued by Buncher)[20] or to a parallel line running along Smallman Street (as argued by AVRC); and (3) whether the February 1984 VIT Abandonment was consummated.[21]

 

As indicated, the passage of decades and the initial record presented have made this a difficult and complex case to resolve. We now have a much more complete record before us than the Board did when it first considered this dispute. As discussed below, the additional evidence provided by Buncher, as supplemented by agency staff research, persuades us that the assumptions that led to the conclusion in the June 2010 decision that there was still an active rail easement across Buncher’s property were wrong. Rather, the weight of the evidence now shows that the active line of railroad on the Buncher property has long since been abandoned. Therefore, for the reasons discussed below, we will vacate and reverse the Board’s prior decision finding that AVRC’s rail easement over Buncher’s property remains active.

 

A. An active line of railroad once crossed the Buncher property.

 

The record indicates that a line of railroad once crossed Buncher’s property on the north side of the Produce Terminal. As explained in the testimony of AVRC’s Russell Peterson, the Allegheny Valley Railroad completed building a rail line in 1856 between Pittsburgh and Kittanning, Pa.[22]  This line commenced at the terminal at the intersection of 11th Street and Smallman Street (MP 0.0) and crossed north to the Railroad Street alignment and then moved eastward. Presumably, line haul service began to be provided on this line in the late 1850s following its construction. This line became known as part of the Allegheny Branch. In 1900, PRR leased the Allegheny Branch,[23] and the 1919 map of the PRR that AVRC submitted as part of its July 15, 2009 filing clearly shows this line.[24] The description of the Allegheny Branch line is also consistent with the description of the Valley Industrial Track beginning at milepost 0.3 acquired by AVRC in Allegheny Valley Railroad Co.—Acquisition and Operation Exemption—Certain Lines of Consolidated Rail Corp., FD 32783, slip op. at 1 (ICC served Nov. 17, 1995), and a reference to the Valley Industrial Track in the February 1984 VIT Abandonment as “Formerly Allegheny Sec.”).

 

Generally, the only way a line of railroad can be abandoned is by obtaining and then exercising (i.e., consummating) abandonment authority granted by the Board or its predecessor.[25] Because there is no record of such authority being issued to any of the owners of this line prior to 1984, an active line of railroad crossed the Buncher property at the time of the February 1984 VIT Abandonment.[26]

 

B. The February 1984 VIT Abandonment covered the active line crossing the Buncher property.

 

We find, based on our analysis of the new evidence presented by Buncher, that there was only one Valley Industrial Track involved in the abandonments at issue here—the line that crossed the Buncher property and ran along Railroad Street—and that the February 1984 VIT Abandonment pertained only to that single line.

 

The key support Buncher provides for its position that the line across its property was the only Valley Industrial Track, and was abandoned, are the Smallman Abandonments and their clear differences from the line described as the Valley Industrial Track in the February 1984 VIT Abandonment. Buncher argues that, because the May and June 1984 Smallman Abandonments specifically refer to the line along Smallman Street, the February 1984 VIT Abandonment cannot also have applied to a line in roughly the same area along Smallman Street. Moreover, because the Smallman Abandonments do not refer at any time to the Smallman Street line as the “Valley Industrial Track,” Buncher argues that there is and was actually only one Valley Industrial Track, and that it is on the north side of the Produce Terminal, extending along Railroad Street. Therefore, according to Buncher, the line crossing its property on Railroad Street had to have been the subject of the February 1984 VIT Abandonment in Sub-No. 558N.

 

Buncher’s reasoning, as well the evidence on which Buncher relies, is persuasive. The February 1984 VIT Abandonment and three Smallman Abandonment applications were drafted and filed within months of each other and were thus contemporaneous. The most reasonable explanation for the differences between the two sets of abandonments is that the preparers of the abandonment applications were referring to different lines when they referred to “Smallman Street” and the “Valley Industrial Track.”

 

The additional evidence Board staff discovered buttresses our conclusion. The record now reveals that Conrail filed separate and distinct Notices of Insufficient Revenue in Sub-Nos. 558N, 641N, 571N, and 572N in the Fall of 1983. In particular, Conrail filed an NIR for the Sub-No. 558N line (called the “Valley Industrial Track”) between roughly 11th Street and 24th Street in September 1983[27] and about one month later filed a different NIR to abandon a part of the Smallman Street line between a point east of 14th Street and a point east of 24th Street (Sub-No. 641N).[28] After commencing the NERSA abandonment process by filing these NIRs, Conrail filed applications to continue the abandonment process for the various segments. Conrail began by filing the February 1984 VIT Abandonment. Then, it filed two of the Smallman Street applications in May 1984 and a final one in June 1984. Conrail included maps with its various NIRs as well as its subsequent abandonment applications, and these support the conclusion that the applications were for distinct lines.

 

First, the abandonment and additional evidence descriptions for the Valley Industrial Track and Smallman Street differ in significant ways. The Sub-No. 558N Valley Industrial Track abandonment, filed in the February 1984 VIT Abandonment, describes that line as “Formerly Allegheny Sec. Jct. with Ft. Wayne Conn. Track (approx. M.P. 0.0) to N. Side of 21st Street (approx. M.P. 0.66).” The description of the line in the Smallman Street filing in Sub-No. 641N in June 1984 denotes the “Smallman Street Track, In Pittsburgh E. of 14th Street (approx. M.P. 0.3) to Jct. with Valley Industrial E. of 24th Street (approx. M.P. 0.85).” Neither the October 1983 Notice of Insufficient Revenue filing in Sub-No. 641N for the Smallman Street line nor the subsequent June 1984 abandonment application in Sub-No. 641N makes any reference to the line as also being known as the “Valley Industrial Track,” claims that this Smallman Street line used to be called the “Valley Industrial Track,” or even references the “Valley Industrial Track” at all (other than to describe the Smallman Street line as intersecting with the Valley Industrial Track at 24th Street, again suggesting that they are not one and the same). Likewise, neither the September 1983 NIR nor the February 1984 abandonment application for the Valley Industrial Track in Sub-No. 558N suggests that the February 1984 VIT Abandonment pertains to Smallman Street. Furthermore, none of the letters in the record from concerned shippers or government representatives about the proposed Smallman Abandonment in Sub-No. 641N refers to this line as the “Valley Industrial Track.”[29] In addition, the Valley Industrial Track filings do not describe that line as “embedded in the city street.” All three filings for Smallman Street do.

 

Furthermore, the areas proposed for abandonment in each of the maps submitted with the Notices of Insufficient Revenue and corresponding abandonment applications are labeled and crosshatched with what is to be abandoned, and provide visual confirmation of differences. As can be seen from those maps, each abandonment is separate and distinct. They all employ the same general layout of the lines in the area, in relatively simple format, and in no instance are the crosshatched areas and corresponding mileposts, or their location, the same as in another docket. The line proposed for abandonment in the NIR for Sub-No. 558N, denoted “Valley Industrial Track,” is marked on the north side of where the Produce Terminal should be located. On the other hand, the maps filed in the NIRs and applications for the Smallman Abandonments identify their respective segments to be south of where the Produce Terminal should be located.[30]

 

Finally, the Notice of Insufficient Revenue for Sub-No. 558N (Valley Industrial Track)[31] stated that there had been no traffic or revenues on that line for over 12 months, but the filings submitted for the Smallman Abandonments at issue in Sub-Nos. 571N and 572N, and Sub-No. 641N all claimed that there was substantial traffic and revenue on the Smallman Street line for the same period. It should also be noted that the September 1983 NIR in Sub-No. 558N described the Valley Industrial Track as being a “Former Overhead Route. No originating or terminating traffic during last 12 months.” As a purely “overhead” line that did not carry traffic originating or terminating on the line, it was likely that the route was not being used to serve the Produce Terminal, and, thus, was not being used for traffic in the same way as the Smallman Street line. If AVRC’s theory were correct, Sub-No. 558N’s traffic patterns would mirror the traffic patterns for Sub-Nos. 641N, 571N, and 572N, but they do not. This, too, indicates that the abandonments refer to different lines rather than the same line.

 

Nor do the precise mileposts or street designations of the lines in any two of the four different applications line up in a way that would suggest any are duplicative: For example, the Valley Industrial Track abandonment in Sub-No. 558N terminates at 21st Street (which also coincides with the endpoint of the Buncher property), while the Smallman Street October 1983 NIR for the abandonment in Sub-No. 641N runs along Smallman Street from a point east of 14th Street to a point east of 24th Street.[32]

The evidence also undermines AVRC’s position that the Smallman Street line and the Railroad Street line were collectively referred to as the “Valley Industrial Track” based on community, shipper, and governmental involvement at the time. AVRC argues that, although Conrail sought to abandon the line along Smallman Street by filing the Sub-No. 558N Notice of Insufficient Revenue in the Fall of 1983 and then the February 1984 VIT Abandonment application, the carrier simply let that application languish based on pressure that it had received from the City and the community, and later sought to abandon the same line through Sub-Nos. 571N, 572N, and 641N only a few months later with its filings in May and June of 1984.

 

Conrail documents now in the record, however, show that this interpretation does not track actual events. Specifically, the evidence shows that, in 1983, there was still rail carriage to customers in the Produce Terminal on the south side of the Produce Terminal along Smallman Street, and the Smallman Street line was an active line of railroad.[33] The record further indicates that remaining rail traffic had waned after the Urban Redevelopment Authority of Pittsburgh (URA) bought the Produce Terminal, and that by 1983 Conrail wanted to abandon some or all of the Smallman Street line. Conrail also was disposing of and abandoning other property in the area. Shortly after the Smallman Street NIR in Sub-No. 641N was filed in October 1983, the City and several produce companies wrote letters to Conrail expressing concern about Conrail’s possible abandonment of part of the Smallman Street line, because abandonment would cut off the only rail line serving the Produce Terminal. Their letters specifically referenced the docket number for that Smallman Abandonment, and not the earlier one for the Valley Industrial Track.[34] This would be logical if, as the record shows, by that point, no traffic was moving over the Valley Industrial Track.

 

AVRC’s witness Peterson asserts that, even if the line at issue in Sub-No. 558N was on Buncher’s property, that abandonment was essentially dropped so that the Valley Industrial Track could be reactiviated as part of a compromise with the City so that Conrail could go forward with abandoning Smallman Street.[35] There is, however, no evidence to support this. Moreover, the May 14, 1984 Conrail memorandum indicates that the line reactivation was being contemplated on land owned by the City rather than on land owned by Buncher.[36]

C. The February 1984 VIT Abandonment was consummated.

 

For this determination, the Board must examine whether the carrier’s actions evidence an intent to consummate the abandonment authority. Our review of the record on remand leads us to conclude that Conrail had no railroad easement interest to convey to AVRC in 1995 because Conrail received authority from the ICC to abandon the Valley Industrial Track in 1984 and also consummated that abandonment.

 

Although we do not have a letter of consummation,[37] subsequent events that took place in the area combined with carrier inaction support the conclusion that the February 1984 VIT Abandonment was consummated before the 1995 conveyance to AVRC. For instance, the record shows that Buncher pulled up the rails and cordoned off the property using Jersey barriers as early as 1988. Moreover, “[w]ithin a few years after Conrail obtained the abandonment certificate from the ICC,” Buncher “filled and graded [its property] for non-railroad use ….”[38] Nothing in the record, however, shows that Conrail objected to Buncher’s activities or took any action to show its intent to maintain the Valley Industrial Track as an active line of railroad. Finally, even the map included with Conrail’s May 14, 1984 memo describes the portion of the Valley Industrial Track that crosses the Buncher property as abandoned.[39] Given these facts, the most reasonable interpretation is that, notwithstanding the language in the quitclaim deed, Conrail consummated the abandonment of the Valley Industrial Track before the alleged 1995 conveyance of the railroad easement to AVRC.

 

We have taken into account the assertion of former Conrail officer Williams on remand that the Valley Industrial Track remains active, but his recollections are not sufficient to persuade us that the abandonment was not consummated. For example, in his verified statement attached to AVRC’s May 11, 2011 reply, Williams alludes to the Conrail May 1984 memo where he proposes an option of reactivating track for continued rail service. In his 2011 statement, he asserts that this track to be reactivated is the Valley Industrial Track. But there is no affirmative description of the track that would be subject to reactivation as the “Valley Industrial Track.” To the contrary, as noted above, the May 1984 memo states that the track being considered for “reactivation” is on property owned by the City, whereas the Valley Industrial Track was on property owned by Buncher. Although Williams contends in his 2011 verified statement that continued service is shown in a 1993 ZTS Map as being provided over a line designated as “Line 703” (also known as Track 3), the map Conrail provided to Buncher prior to Buncher’s 1983 property purchase does not show Line 703 as crossing Buncher’s property.[40]

 

Conrail’s transfer of the easement to AVRC does not establish that the consummation did not occur. Although Conrail included a rail easement for the property in question in its 1995 deed selling rail property to AVRC, it did so by quitclaim deed. Accordingly, Conrail was not warranting that it still possessed a railroad easement that remained available for use as a line of railroad, but only that it was selling AVRC whatever interest it might have in the property. Thus, the deed language is insufficient to outweigh the other evidence now in the record supporting the conclusion that the Valley Industrial Track had been abandoned by 1995.

 

D. The evidence favoring Buncher’s position outweighs the remaining evidence in the record.

 

While AVRC has provided some evidence to support its position and other evidence before us here is contradictory or ambiguous, the weight of the evidence that is now available supports Buncher’s position. For instance, when determining in the June 2010 decision that the February 1984 VIT Abandonment did not refer to the line across Buncher’s property, the Board relied on the fact that the February 1984 VIT Abandonment referred to a line that connected to the Fort Wayne Connecting Track at the Fort Wayne Bridge. The Board originally believed that the 1972 Abandonment had extinguished a line along Railroad Street where it would have connected to the Fort Wayne Bridge, and, therefore, was persuaded that only a line along Smallman Street would have met the description of the line subsequently authorized for abandonment in the February 1984 VIT Abandonment.

 

Although the actual import of the 1972 Abandonment on the area’s railroad lines is still not entirely clear, the new evidence before us suggests that we placed too much reliance on the 1972 Abandonment in our prior decision. Through our own research, we now have a complete application for the 1972 Abandonment, including a large color map. This map does show that the Penn Central Trustees filed for authority to abandon track not only along Railroad Street, which is north of the Produce Terminal, but also along Smallman Street, which is south of the Produce Terminal. However, it is not certain that the Penn Central Trustees exercised any of their 1972 Abandonment authority, given new record evidence that the ICC extended their consummation deadline into 1977[41]—beyond their departure date from the line and the transfer of the line to Conrail in 1976. This evidence undercuts an argument the Board found persuasive in its June 2010 decision, i.e., the fact that Conrail would not have sought to abandon the same segment in 1984 that the Penn Central Trustees had obtained abandonment authority for in 1972. Simply stated, the fact that the newly available evidence establishes that the Penn Central Trustees sought in 1972 to abandon track on both Railroad and Smallman Streets, but may not have actually consummated the authority for either, means that the 1972 Abandonment cannot properly be used to infer which line was covered by the February 1984 VIT Abandonment.

 

Finally, although the record contains a verified statement provided by Conrail Trainmaster Streett to the effect that, in the mid to late 1970s, the line along Railroad Street was actively serving customers, and had not been abandoned, Streett is attempting to recall events that occurred decades ago.[42] We decline to credit the statement because: (1) while Streett recalls customers getting service on Railroad Street, the Notice of Insufficient Revenue for Sub-No. 558N in September 1983 indicated no active movements and zero revenues; (2) shipper protests surfaced in December 1983 only after Conrail filed an NIR in Sub-No. 641N for a portion of the Smallman Street line on the south side of the terminal, foreshadowing the abandonment of a line along Smallman Street; and (3) the May 14, 1984 Conrail memo from Williams establishes that the Produce Terminal was serviced by rail on its south side while the north side was used for truck service at that time.[43]

 

CONCLUSION

 

For the reasons discussed above, we are reopening this proceeding and vacating and reversing our June 15, 2010 decision finding that AVRC’s rail easement over Buncher’s property remains active. We voluntarily sought remand of this case back to the agency after Buncher submitted new information about the relevance of the Smallman Abandonments on appeal. The weight of the evidence now supports the conclusion that Conrail sought to abandon the Valley Industrial Track crossing Buncher’s property in Sub-No. 558N, that the ICC granted that authority in the February 1984 VIT Abandonment, and that that authority was consummated prior to 1995.

 

It is ordered:

 

1. The Motion to Adduce Additional Evidence Pursuant to 28 U.S.C.  2347(c) filed by The Buncher Company before the U.S. Court of Appeals for the District of Columbia Circuit will be treated as a petition to reopen based on new evidence.

 

2. The Buncher Company’s petition to reopen based on new evidence is granted, and the Board’s June 15, 2010 decision in this proceeding finding that AVRC’s rail easement over Buncher’s property remains active is vacated and reversed.

 

3. This decision is effective 30 days after its service date.

 

By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Mulvey.

 

APPENDIX A

 

To view Appendix A, please see the PDF version of this decision.

 

APPENDIX B

 

To view Appendix B, please see the PDF version of this decision.

 

APPENDIX C

 

To view Appendix C, please see the PDF version of this decision.

 

APPENDIX D

 

To view Appendix D, please see the PDF version of this decision.

 

APPENDIX E

 

To view Appendix E, please see the PDF version of this decision.



[1] The digest constitutes no part of the decision of the Board but has been prepared for the convenience of the reader. It may not be cited to or relied upon as precedent. Policy Statement on Plain Language Digests in Decisions, EP 696 (STB served Sept. 2, 2010).

[2] Abandonment authority is permissive, and an abandonment authorized by this agency must be consummated before a line is fully abandoned and the property is removed from the national rail transportation system. The agency currently requires railroads to file a notice of consummation under 49 C.F.R. 1152.29(e)(2) to signify that a line has been abandoned, but that regulation was not in effect when the events at issue here took place. Accordingly, in this case the Board must examine whether the carrier’s actions show an intent to consummate the abandonment authority.

[3] The evidence to which we refer consists of filings in prior proceedings before the ICC and written agency decisions. The documents are attached in Appendices to this decision and are made part of the record in this proceeding.

[4] See Buncher’s Reply, Exh. D, June 2, 2009.

[5] Further references to abandonment proceedings in this decision omit the full docket number and refer only to the number of the relevant sub docket. The sub dockets containing the letter “N” were filed under the Northeast Rail Service Act of 1981 (NERSA), which provided a window (ending in 1985) during which Conrail could qualify for streamlined abandonment procedures for its lines by first filing a Notice of Insufficient Revenue (or NIR) for each such line to be abandoned.

[6] The application followed a Conrail NIR filed in September 1983, as discussed further below. Buncher later explained that “the portion of the Valley Industrial Track between milepost 0.0 and milepost 0.66 generated no revenues or expenses at that time. It was no longer being used.” Buncher’s Reply n. 10, June 2, 2009.

[7] In response to the bankruptcy of several midwestern and northeastern railroad companies, Congress enacted the Regional Rail Reorganization Act of 1973, Pub. L. No. 93-236, 87 Stat. 985 (1974). 44 U.S.C. 701-719 (3 R Act). Pursuant to that Act, the United States Railway Association developed the FSP to designate which lines would be retained in active service (and consequently transferred to Conrail, a government-created successor railroad to the various railroads in reorganization) and which would be allowed to be abandoned. To administer the restructuring, the 3 R Act created a Special Court, which subsequently ordered the conveyance of the property by recorded deed. Lines so transferred that remained in the national rail system for at least two years would become subject to the ICC’s abandonment authority. 45 U.S.C. 744(g). The FSP was submitted to Congress on July 26, 1975, and approved in 601(e) of the Railroad Revitalization and Regulatory Reform Act of 1976, Pub. L. No. 94-210, 90 Stat. 127 (1976).

 

[8] It used to be possible to cross the Fort Wayne Bridge (Bridge) at 11th Street by moving west along both the Railroad Street line and the Smallman Street line. When the June 2010 decision was issued, the Board believed that it was only possible to connect to the Bridge along the Smallman Street line in 1984, because the Railroad Street line apparently had its connection to the Bridge severed in 1972 when the ICC authorized the Penn Central Transportation Co. trustees (Penn Central Trustees) to abandon the 0.2-mile portion of the Allegheny Branch, together with associated side tracks, between 12th Street and 14th Street. See Trustees of the Property of Penn Central Transp. Aban. Portion of its Allegheny Branch, Pittsburgh, Allegheny Cnty., Pa., FD 26942 (ICC served Mar. 13, 1972) (1972 Abandonment). Accordingly, in 2010, the 1972 Abandonment seemed to dictate that only the line along Smallman Street fit the line described in the February 1984 VIT Abandonment. As discussed below, however, additional information concerning the 1972 Abandonment indicates that either a line along Smallman Street or Railroad Street met that description. The additional information also raises the question of whether that 1972 Abandonment authority was ever consummated.

[9] See Sub-No. 572N (application filed May 23, 1984, and attached as Exhibit A to Buncher’s April 11, 2011 Opening Evidence) where Conrail sought authority to abandon the Smallman Street Track from a point near milepost 0.0 east of 11th Street to a point near milepost 0.3 east of 14th Street; Sub-No. 571N (application filed May 23, 1984, and attached as Exhibit B to Buncher’s April 11, 2011 Opening Evidence) where Conrail sought authority to abandon the Smallman Street Track from a point at approximately milepost 0.71 south of 22nd Street to a point at approximately milepost 1.3 south of 29th Street; and Sub-No. 641N (application filed June 8, 1984, and attached as Exhibit C to Buncher’s April 11, 2011 Opening Evidence) where Conrail sought authority to abandon the Smallman Street Branch from a point east of 14th Street at approximately milepost 0.3 to a point east of 24th Street at approximately milepost 0.85. Each of these abandonments was granted in the Autumn of 1984.

[10] Buncher’s Opening Brief 34, Apr. 11, 2011.

[11] See AVRC’s Reply, Exh. E, May 11, 2011.

[12] See Appendix A.

[13] See Appendix B.

[14] See Appendix C.

[15] We have attached a compressed version of the map at Appendix D.

[16] A search of internal agency records revealed an index card indicating that the ICC further extended the deadline into 1977. The earlier extensions and index card are attached at Appendix E.

[17] 49 U.S.C.  722(c); 49 C.F.R.  1115.3; see also CSX Corp.—Control—Conrail, 3 S.T.B. 764, 770 (1998). We are also authorized to “modify [our] findings of fact, or make new findings … and may modify or set aside [our] order” so that we may analyze new evidence. 28 U.S.C.   2347(c).

[18] E.g., Montezuma Grain v. STB, 339 F.3d 535, 542 (7th Cir. 2003).

[19] For the most part, the evidence pertains to other abandonments and events in the vicinity to which Buncher was not a party. Buncher would not have had a basis at the time to search for other abandonments that it had no basis for knowing existed. Nor were the Smallman Abandonments mentioned by AVRC at the oral argument held on this case prior to the June 2010 decision. In this instance, the records indicating existence of the Smallman Abandonments were first discovered by Buncher after it approached a nonparty carrier following the Board’s June 2010 decision. Hence, the Board does not consider that, in the unusual circumstances here, such records were effectively available to Buncher prior to issuance of the June 2010 decision.

[20] Assuming an active line ran across the Buncher property.

[21] Assuming the February 1984 VIT Abandonment refers to the Railroad Street line.

[22] See AVRC’s Reply, V.S. Peterson 2, July 15, 2009.

[23] In 1910, PRR consolidated the Allegheny Valley Railroad into its own corporate structure.  AVRC and the Allegheny Valley Railroad are unrelated companies. Subsequently, the Penn Central Transportation Company and Conrail became successor operators of the line.

[24] See AVRC’s Reply, Exhibit BB, July 15, 2009.

[25] See Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 490 U.S. 311, 311 (1981); Honey Creek R.R.–Pet. for Declaratory Order, FD 34869, et al., slip op. at 3 (STB served June 4, 2008).

[26] This track is not 49 U.S.C. 10906 excepted spur track because it was clearly part of a rail line prior to that time. See Atchison, Topeka & Santa Fe R.R.—Aban. Exemption—in Lyon Cnty., Kan., AB 52 (Sub-No. 71X), slip op. at 3 (ICC served June 17, 1991).

[27] See Appendix A.

[28] See Appendix B.

[29] See Appendix C.

[30] There is one anomaly in this group of 1980s maps. The September 1983 NIR in Sub-No. 558N for the Valley Industrial Track clearly shows a crosshatched line labeled “Valley Industrial” that would fall on the north side of the Produce Terminal, and also shows the line to the right that is designated as the Smallman Street line in the later abandonments correctly angling in to the line east of the Valley Industrial. However, the actual abandonment map for Sub-No. 558N shows the abandoned portion in the same place, but oddly draws the Smallman Street lines slanting to the right and leading into the main line. This is the only map drawn this way, and it appears to be a mistake, because all of the Smallman Abandonments’ diagrams match up to the one for the Valley Industrial Track NIR.

[31] See Appendix A.

[32] See Appendix B.

[33] See AVRC’s Reply, Exh. F, May 11, 2011 and Appendix B of this decision. (As noted above, prior to that time the Valley Industrial Track had served overhead traffic.)

[34] On December 7, 1983, the Gullo Produce Company wrote to the Pennsylvania Department of Transportation expressing concern about the NIR in “AB167, Sub. No. 641N.” A similar letter was sent the same day from the Consumers Produce Co., Inc. stating that Conrail planned to close “the only stretch of track that serves our Terminal.” On December 21, 1983, the ICC responded to a congressional inquiry from Rep. Joseph Gaydos about the Sub-No. 641N proceeding. A second similar letter was sent on January 4, 1984, to the United Fresh Fruit and Vegetable Association, referring, again, only to Sub-No. 641N. On January 20, 1984, Pittsburgh Mayor Richard Caliguiri wrote to Stanley Crane, Chairman and CEO of Conrail:

 

I am greatly distressed that your railroad has initiated the process of abandoning trackage along Smallman Street in the City of Pittsburgh. As you know, Conrail recently sold the Urban Redevelopment Authority of Pittsburgh the Wholesale Produce Market . . . .

[emphasis added].

After noting that Conrail had implied that there would be continued service, the Mayor added:

The City has received letters of profound concern from rail users along the Smallman Street spur and we cannot allow our new Wholesale Produce Market to lose common carrier rail service. Your staff has indicated informally that they will extend the date of filing for abandonment until March. I formally request that your filing be so delayed and hope that we can use the additional time to favorably resolve this matter.

The City also complained that it had bought the Produce Terminal with a view toward upgrading it and attracting more business, and that abandoning the Smallman Street line would threaten that goal. In internal Conrail memos and a letter to Caliguiri, Conrail indicated that it would meet with the City in February to discuss this further, and would delay any filing on Smallman Street until at least March. The evidence demonstrates that it was the line on the south side of the terminal that the Mayor and vendors did not want abandoned. No mention was made in the correspondence to the September 1983 Valley Industrial Track NIR filing or the track on the north side of the Terminal. This point is further buttressed by the fact that the ultimate filing of the Smallman Abandonment application in Sub-No. 641N was, indeed, delayed, not only beyond March but into June of 1984—and was the last of the three Smallman Street abandonment applications that were filed.

[35] Peterson states at page 9 of his verified statement attached to AVRC’s May 11, 2011 Reply: Even if Conrail's initial abandonment notice for the Valley Industrial Track in AB167 (Sub No. 558N) had included track facilities and right of way between 16th and 21st Street on the north side of the Pittsburgh Produce Terminal, that notice and the authority issued by the ICC on May 14, 1984 were explicitly superseded by Conrail's commitment to the City of Pittsburgh to continue to serve the Pittsburgh Produce Terminal via its northside rail facilities.”

[36] See AVRC’s Reply, Exh. F, May 11, 2011. In a May 14, 1984 memo from AVRC’s witness Williams to the Conrail Operating Committee, Williams discusses alternatives to allow continued rail service to the Produce Terminal. His second alternative reads: “City would reactivate track on the north side of the terminal where trucks now access the terminal. City owns property and would be responsible for rehabilitation.” (Emphasis added.)

[37] The agency had requested such a letter in its decision authorizing the February 1984 VIT Abandonment. Absence of the letter is not dispositive in light of the other evidence now available that is discussed here, which demonstrates that the weight of the evidence supports a finding that this authority was exercised prior to 1995.

[38] See Buncher Reply 15, June 2, 2009.

[39] The memo is attached as Exhibit F to AVRC’s May 11, 2011 reply. The map is on the third page of the memo.

[40] See Buncher’s Rebuttal 7, May 26, 2011, and exhibits cited therein. While AVRC’s witness Peterson asserts on reply that: To this day, AVRR serves J.E. Corcoran at the Produce Terminal via its rail facilities along Railroad Street,” it could only be some portion of AVRC’s line farther east past Buncher property. Clearly that service is not being conducted using the Buncher property, which is paved over and has no track on it.

[41] See Appendix E.

[42] See AVRC’s Reply, July 15, 2009.

[43] See AVRC’s Reply, Exh. F, May 11, 2011.