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Court denies challenge to financial responsiblity of non-profit trail group

Kansas landowner's challenge to railbanking denied. Owner claimed the trail group was not financially responsible. Issues still unresolved as to whether railroad improperly disposed of parts of the right-of-way before agreeing to the trail use condition.

From SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-406 (Sub-No. 6X)

Central Kansas Railway, Limited (CKR) filed a notice of exemption under 49 CFR 1152 Subpart F--Exempt Abandonments to abandon a 33.4-mile portion of its line of railroad known as the McPherson Subdivision, in Marion and McPherson Counties, KS. Notice of the exemption was served and published in the Federal Register on March 13, 1996 (61 FR 10428-29). Subsequently, negotiation periods were provided for CKR to negotiate with several potential trail users for an interim trail use/rail banking agreement with respect to the right-of-way involved in this proceeding. As a result, CKR conveyed the entire right-of-way for rail banking/interim trail use to Central Kansas Conservancy on September 19, 1997.

On September 25, 1997, Kevin Jost, Alvin Kroupa, Allen Schlehuber and the Citizens Association of Marion and McPherson Counties (Petitioners) filed a petition to reopen the proceeding to challenge the Board's authorization of the trail use negotiations that resulted in the conveyance. By decision served December 18, 1998, the Board denied the petition to reopen. A Court Action was instituted before the U.S. District Court of Appeals for the District of Columbia Circuit, and in Jost v. STB, No. 99-1054 (D.C. Cir. Oct. 22, 1999), the court affirmed in part and remanded in part the Board's decision served December 18, 1998, declining to reopen this case. Specifically, the court affirmed the Board's determination not to scrutinize the financial fitness of the trail sponsor, but remanded for further explanation the determination not to reopen the proceeding to consider the impact of alleged right-of-way sales.

By decision served December 8, 1999, the Board reaffirmed and clarified the decision served December 18, 1998. On December 29, 1999, Petitioners filed a petition for reconsideration of that decision. On January 12, 2000, CKR filed a request for an extension of time to file its reply to the petition to reopen. The current due date for CKR's reply is January 18, 2000. CKR states that the extension is required because the undersigned attorney is presently in the hospital. CKR also indicates that counsel for the Petitioners does not object to the extension request.

CKR's request is reasonable and will be granted.

It is ordered:
1. CKR's extension request is granted.
2. CKR's reply is due February 7, 2000.

United States Court of Appeals decision stated:

"On September 19, 1997, pursuant to this NITU, the Central Kansas Railway ("CKR") conveyed the 33.4 mile line to the Central Kansas Conservancy (CKC) for rail banking-interim trail use."

"On September 25, 1997, Jost, who owns land over which the line passes, filed a petition to reopen the abandonment proceeding on the grounds of material error and changed circumstances. Jost stated that both before and after filing its notice of exemption, CKR had conveyed portions of the right-of-way, which rendered the line unsuitable for rail banking, and therefore for interim trail use. Jost argued that CKR's failure to disclose these sales caused the Board to erroneously issue a NITU. Jost also stated that CKR's conveyance of portions of the right-of-way, together with the lack of service on the line and the removal of rails, ties, and ballast, showed that CKR had consummated abandonment of the line. Finally, Jost argued that changed circumstances, i.e., recent expressions of opposition to interim trail use by local governments, indicated that the Conservancy would be unable to meet its financial obligations for trail management."

However, the decision does clarify the responsibility of the Surface Transportation Board in hearing challenges to property rights issues:

"It appears unlikely that the Trails Act either requires the Board to determine for itself in every case the validity of the railroad's property rights, or allows the Board to disregard totally prima facie evidence that the railroad no longer owned an adequate right-of-way."

--United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 4, 1999 Decided October 22, 1999 -- No. 99-1054 --

  • Kevin Jost, et al., Petitioners
  • v. Surface Transportation Board and United States of America, Respondents
  • Central Kansas Railway, Limited Liability Company, Intervenor
  • On Petition for Review of an Order of the Surface Transportation Board

The whole text of the decision is at: http://www.cadc.uscourts.gov/common/opinions/199910/99-1054a.txt

April 2003

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