Environmental Matters > Key Cases: Enola Branch
In Friends of the Atglen-Susquehanna Trail, Inc. v. Surface Transportation Bd., 252 F.3d 246 (3d Cir. 2001), the United States Court of Appeals for the Third Circuit vacated and remanded to the Board this case involving the agency’s historic review of a proposal to abandon a rail line known as the Enola Branch in Lancaster and Chester Counties, Pennsylvania. The Board’s decision to allow the discontinuance of rail service on the Enola Branch is unaffected by the court’s remand. However, the court ruled that the Board failed to comply fully with the procedural requirements of the National Historic Preservation Act, 16 U.S.C. 470f (NHPA). In doing so, the court vacated the Board’s decisions issued in 1997 and 1999 denying the requests of the Friends of the Atglen-Susquehanna Trail, Inc. (FAST) to reopen and broaden the historic preservation condition imposed by the Board’s predecessor, the Interstate Commerce Commission, in a 1990 decision permitting Consolidated Rail Corporation (Conrail) to fully abandon the Enola Branch except for the bridges on the line.
Pursuant to the court’s remand, the NHPA historic review process was reinitiated. Under Section 106 of the NHPA, Federal agencies are required to consider the effects of their licensing decisions on historic properties and must give the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment on the proposed undertaking. 36 CFR 800.1(a). In this case, the entire Enola Branch, rather than only the bridges, had been determined to be historic by the Keeper of the National Register of Historic Places.
To determine what conditions, if any, should be imposed to avoid, minimize, or mitigate adverse effects on the historic properties, SEA issued a Notice to the Parties on October 24, 2002 (October 2002 Notice). The October 2002 Notice set forth the background of the case, described the Board’s reinitiation of the Section 106 process, and solicited comments. On October 20, 2003, SEA issued a second Notice to the Parties and proposed Draft Memorandum of Agreement (Draft MOA) for public review and comment. In addition to providing a 45-day period for interested parties to file written comments on the proposed Draft MOA, SEA held two public meetings in Quarryville, Pennsylvania, on November 19, 2003. At the meetings, SEA staff explained the historic review process, informally answered questions, and solicited oral and written comments. Approximately 200 people attended these meetings, including elected officials, organization representatives, and private citizens.
It is important to note that many commenters, including Lancaster County, have expressed interest in the creation of a recreational trail in this proceeding. Although SEA has heard considerable support for converting the right-of-way to interim trail use/railbanking, pursuant to the National Trails System Act, 16 U.S.C. 1247(d) (Trails Act), interim trail use is voluntary, and the Board cannot impose a Notice of Interim Trail Use (NITU) unless the railroad agrees to negotiate an interim trail use agreement under the Trails Act. National Wildlife Fed’n v. ICC, 850 F.2d 694, 700 (D.C. Cir. 1988); 49 CFR 1152.29(b)(2), (d)(1). A full explanation of trails use can be found in the Notice to the Parties served on April 12, 2004.
Based on consultation with the ACHP, the Pennsylvania Historical and Museum Commission (State Historic Preservation Office or SHPO), Norfolk Southern Railroad Company (NS) (which acquired the Enola Branch from Conrail in 1997) and interested and official consulting parties, including the townships, government entities, and organizations such as FAST, as well as careful consideration of all comments from the public, SEA developed the Final MOA detailing measures to avoid or mitigate any adverse effects that the abandonment might have on historic properties. These measures include:
• Documentation of appropriate representative structures on the Enola Branch to Pennsylvania state standards.
• Archival research of the history of the Enola Branch.
• Consolidation of the documentation and the results of the archival research into one cohesive document to be archived at the SHPO’s office.
On April 12, 2004, the Final MOA was made available to the consulting parties and the public in a third Notice to the Parties (April 2004 Notice). The April 2004 Notice also summarized and responded to all comments received in response to the October 2003 Notice and Draft MOA. By July 2004, the Final MOA had been signed by the necessary parties (the ACHP, the SHPO, SEA, and the railroad), as well as the Townships of Martic, Providence, and Sadsbury, and on August 4, 2004, the executed Final MOA was filed with the Advisory Council for Historic Preservation (ACHP). This completes the historic review process in this case and demonstrates the Board’s compliance with the NHPA and the court’s decision. See 36 CFR 800.6(c). Accordingly, in a decision served on January 19, 2005 (January 2005 Decision), the previously imposed historic preservation condition was removed, and this abandonment licensing proceeding was terminated, thus permitting the railroad to fully abandon the line.
Availability of the January 2005 Decision and the Final MOA: Printed copies of the January 2005 Decision and the Final MOA in AB-167 (Sub-No. 1095X) are available for a fee by contacting ASAP Document Solutions at (202) 306-4004, or via firstname.lastname@example.org. The decision may also be viewed on the Board’s website at no cost at http://www.stb.dot.gov, by clicking on the link “E-Library” and going to “Decisions and Notices.”
The links below provide access to the full text of the Board’s January 2005 Decision and the July 2004 Executed Final MOA.