Friends of Atglen v. Surface Trans. Board ( 2001 )

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit
5-31-2001
Friends of Atglen v. Surface Trans. Board
Precedential or Non-Precedential:
Docket 99-5837
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Filed May 31, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 99-5837
FRIENDS OF THE ATGLEN-SUSQUEHANNA TRAIL, INC.,
Petitioner
v.
SURFACE TRANSPORTATION BOARD and
UNITED STATES OF AMERICA,
Respondents
On Petition for Review of an Order
of the Surface Transportation Boar d
(No. AB-167 1095X)
Argued September 12, 2000
Before: NYGAARD, ROTH and BARRY, Circuit Judges
(Opinion filed: May 31, 2001)
Andrea C. Ferster, Esquire (Ar gued)
1100 Seventeenth Street, N.W.,
10th Floor
Washington, D. C. 20036
Charles Montange, Esquire
426 N.W. 162nd Street
Seattle, WA 98177
Attorneys for Petitioner
Ellen D. Hanson, General Counsel
Louis Mackall, V. Attorney (Argued)
Surface Transportation Board
Washington, D.C. 20423-0001
M. Alice Thurston, Esquire
John T. Stahr, Esquire
United States Department of Justice
P.O. Box 23795
L'Enfant Plaza Station
Washington, D.C. 20026
Attorneys for Respondent
Paul D. Keenan, Esquire
Hoyle, Morris & Kerr
1650 Market Street
4900 One Liberty Place
Philadelphia, PA 19103
Attorney for Intervenor Respondent
OPINION OF THE COURT
ROTH, Circuit Judge:
The Enola Branch is a 66.5 mile railroad line which was
built in the early Twentieth Century and was known as one
of the remarkable engineering feats of that time. Petitioner,
Friends of the Atglen-Susquehana Trail, Inc. (FAST), seeks
judicial review of a final order of the Surface Transportation
Board (STB)1 permitting abandonment of the Enola Branch.
_________________________________________________________________
1. The STB is the federal agency having exclusive jurisdiction over
transportation by railroad. See 49 U.S.C. S 10501(a)(1). The STB is the
successor agency to the Interstate Commerce Commission (ICC), which
was abolished by Congress in 1995. See ICC Termination Act of 1995,
S 101, P.L. 104-88, 109 Stat. 804, 49 U.S.C. S 701 note (1995). That act
also established the STB, see 49 U.S.C.S 701, and provided that it
would perform all the functions that pr eviously were performed by the
ICC as of the effective date of the act. See 49 U.S.C. S 702; see also ICC
Termination Act of 1995, S 204, P .L. 104-88, 109 Stat. 804, 49 U.S.C.
S 701 note.
In this opinion, we will refer to the agency as the ICC before its
abolition and as the STB afterwards.
2
FAST challenges the manner in which the STB carried out
its responsibilities under S 106 of the National Historic
Preservation Act (NHPA), 16 U.S.C. S 470f. In particular,
FAST objects to the manner in which the STB identified and
protected historic properties along the line, to the STB's
failure to consider evidence that the corridor as a whole
was entitled to protection as a historic pr operty, and to the
manner in which the STB terminated consultation on a
plan to protect historically eligible pr operty. For the reasons
that follow, we will vacate the STB's decision and r emand
this matter to it for further consideration.
I. REGULATORY BACKGROUND
A. ABANDONMENT OF RAIL LINES
FAST seeks review of the actions of the STB in the
exercise of its exclusive regulatory jurisdiction over rail
carriers and rail transportation, particularly its jurisdiction
to permit a rail carrier to abandon or discontinue use of an
existing rail line that might qualify as or contain historic
property. We begin, therefor e, with an overview of the
relevant regulatory landscape.
A rail carrier intending to abandon, and to be r eleased
from its obligations to retain or operate, any part of its
railroad lines must file an application to do so with the STB
and such abandonment must adhere to certain established
procedures. See 49 U.S.C. S 10903(a)(1)(A); see also 49
U.S.C. SS 10903-10907. The STB is empower ed to exempt a
transaction from the ordinary regulatory requirements if
the STB finds that the ordinary procedur es are not
necessary to carry out federal transportation policy and
that either the transaction is limited in scope or the full
application procedures are not necessary to protect
shippers from any abuses of market power . See 49 U.S.C.
S 10502(a).
The abandonment of a rail line or corridor will qualify as
an exempt transaction if the carrier certifies that no local
traffic has moved over the line for at least two years, that
any traffic on the line can be rerouted over other lines, and
that no formal complaints, regarding cessation of service on
3
the line, are pending or have been decided within that two-
year period. See 49 C.F.R. S 1152.50(b). This process is
intended to be an expedited one. The exemption, and
therefore permission to abandon the rail line, becomes
effective 30 days after publication of notice in the Federal
Register. See 49 C.F.R. 1152.50(d)(3); see also 49 U.S.C.
S 10502(b) ("Any proceeding begun as a result of an
application under this subsection shall be completed within
9 months after it is begun."). An exempt abandonment
remains subject to any conditions that the STB may impose
upon it.
If the STB agrees that a proposed abandonment is
exempt and allows the abandonment to proceed under the
expedited procedures, the STB must consider certain
factors prior to permitting the abandonment to become
final. See 49 C.F.R. S 1152.50(a)(2). First, the STB must
consider and determine whether the rail pr operties to be
abandoned are appropriate for use for public purposes. See
49 U.S.C. S 10905;2 49 C.F .R. S 1152.28(a)(1). If the STB
finds that the properties are appr opriate for public use, the
STB is authorized to impose conditions on the
abandonment of the property by the carrier . Such
conditions may include a prohibition on the disposal of the
property for a period of 180 days unless the pr operty is first
offered, on reasonable terms, for sale for public purposes.
See 49 U.S.C. S 10905; 49 C.F.R. S 1152.28(d). Second, the
STB must consider possible interim trail use or rail banking,3
should any state, political subdivision, or qualified private
organization be interested in acquiring or using the rail line
right-of-way in such a manner. See 16 U.S.C. S 1247(d); 49
C.F.R. S 1152.29. Third, the STB must comply with the
requirements of S 106 of the National Historic Preservation
Act, 16 U.S.C. S 470f.
The exemption procedures of S 10502 and S 1152.50 are
intended to expedite the approval of the pr oposed
abandonment by making it effective almost immediately,
_________________________________________________________________
2. Formerly 49 U.S.C. S 10906.
3. This would permit the railroad right-of-way to be used in some interim
manner and to be preserved for future r estoration or reconstruction and
reactivation for railroad purposes. See 49 U.S.C. S 1247(d).
4
subject to any conditions imposed by the STB.
Consideration of the S 106 historic pr eservation process, on
the other hand, necessarily requires the STB to proceed
more slowly. The fact that Congress has introduced a
procedure which permits the slowing of the overall
abandonment process reflects Congr ess's intent to balance
immediate, fast-track approval of the abandonment by the
carrier with a more deliberate consideration of preservation
of historically significant properties. See Concerned Citizens
Alliance, Inc. v. Slater, 176 F.3d 686, 695-96 (3d Cir. 1999)
(citing Illinois Commerce Comm'n v. ICC , 848 F.2d 1246,
1260-61 (D.C. Cir. 1988) (describing S 106 as "stop, look,
and listen" provision requiring an agency to acquire
information before acting)).
B. HISTORIC PRESERVATION
Section 106 of the NHPA provides as follows:
The head of any Federal agency having dir ect or
indirect jurisdiction over a proposed Federal or
federally assisted undertaking in any State and the
head of any Federal department or independent agency
having authority to license any undertaking shall, prior
to the approval of the expenditure of any Federal funds
on the undertaking or prior to the issuance of any
license, as the case may be, take into account the
effect of the undertaking on any district, site, building,
structure, or object that is included in or eligible for
inclusion in the National Register.
16 U.S.C. S 470f. The NHPA is a pr ocedural statute
designed to ensure that, as part of the planning process for
properties under the jurisdiction of a federal agency, the
agency takes into account any adverse effects on historical
places from actions concerning that pr operty. See Morris
County Trust for Historical Preservation v. Pierce, 714 F.2d
271, 278-79 (3d Cir. 1983). The STB, as a federal agency,
must adhere to S 106 in considering and approving
exemption or abandonment of a rail line. See 36 C.F.R.
S 800.2(a).
The Advisory Council on Historic Preservation (ACHP) has
promulgated regulations outlining the pr ocedures to be
5
followed by an agency in satisfying its responsibilities under
S 106, codified at 36 C.F.R. Part 800. See Morris County
Trust, 714 F.2d at 280 ("[T]he Advisory Council's
regulations are particularly persuasive concerning the
proper interpretation of NHPA.") An agency is expected to
consult with various interested parties thr oughout the
S 106 process, including the State Historical Preservation
Officer (SHPO), who is the state official appointed or
designated, pursuant to S 101(b)(1) of the NHP A, 16 U.S.C.
S 470a(b)(1), to administer the state historic preservation
program. See 36 C.F.R. S 800.16(v); see also 16 U.S.C.
S 470a(b)(3) (establishing the responsibilities of the SHPO).
The agency, in consultation with the SHPO, must also
involve the public in the process, see 36 C.F.R. S 800.3(e),
and identify other parties that should be invited to
participate in the process as consulting parties, including
local governments and those parties that r equest to
participate in the process. See 36 C.F .R. S 800.3(f)(1-3). The
ACHP itself must be afforded a "r easonable opportunity to
comment on such undertakings." 16 U.S.C. S 470f; 36
C.F.R. S 800.1(a); see also Concer ned Citizens, 176 F.3d at
695 (holding that the Council's comments must be taken
into account and integrated into the decisionmaking
process).
The ACHP regulations establish a three-step process:
identification of historic properties; assessment of any
adverse effects of the proposed undertaking on such
properties; and creation of a plan to avoid, minimize, or
mitigate those adverse effects. See 36 C.F.R. S 800.1(a). The
agency, in consultation with the SHPO and other interested
parties, may address multiple steps in one consultation as
long as all parties are given an adequate opportunity to
comment. See 36 C.F.R. S 800.3(g).
In order to identify historic properties, the agency must
apply the criteria established for the National Register of
Historic Places (National Register) to identify pr operties and
to determine whether they would be eligible for the National
Register. See 36 C.F.R. S 800.4(c)(1). Significantly, the
regulations provide that the "passage of time, changing
perceptions of significance, or incomplete prior evaluations
may require the Agency Official to r eevaluate properties
6
previously determined eligible or ineligible." 36 C.F.R.
S 800.4(c)(1).
If the agency and the SHPO agree that the criteria for the
National Register have been met, the property or portion
thereof shall be considered eligible for the National Register
for S 106 purposes. See 36 C.F .R. S 800.4(c)(2). If the
agency and the SHPO agree that the criteria have not been
met, the property is considered ineligible. See id. If the
agency and the SHPO do not agree, or if the ACHP or the
Secretary of the Interior so requests, the agency "shall"
obtain a determination from the Secr etary, acting through
the Keeper of the National Register (Keeper), as to the
historic eligibility of the property. See id. Other courts of
appeals have held that this determination by the Secretary
or the Keeper should be conclusive. See Moody Hill Farms
Ltd. Partnership v. United States Department of the Interior,
205 F.3d 554, 558 (2d Cir. 1999) (describing the
independent authority of the Keeper, on behalf of the
Secretary, to determine whether a pr operty should be listed
as historic); Stop H-3 Ass'n v. Coleman, 533 F.2d 434, 441
n.13 (9th Cir.) (noting that the Secr etary's opinion as to the
historic eligibility of property is conclusive).
If the agency finds that there are no historic properties
that will be affected by the undertaking, the agency must
document its findings and provide such documentation to
the ACHP, the SHPO, and other consulting parties. The
SHPO and the ACHP have 30 days to object to thatfinding;
otherwise, the agency's S 106 responsibilities are deemed
completed. See 36 C.F.R. S 800.4(d)(1). If the agency finds
that there are historic properties that may be affected, the
agency must notify all consulting parties and invite their
views on the effects of the proposed undertaking and their
assessments of any adverse effects. See 36 C.F.R.
S 800.4(d)(2).
An adverse effect is found when the undertaking may
alter, directly or indirectly, any of the characteristics that
make a property historic and eligible for inclusion in the
National Register. See 36 C.F .R. SS 800.5(a)(1), 800.16(i).
Such adverse effects include physical destruction of or
damage to all or part of the property, alteration of the
property, removal of property fr om its historic location, or
7
a change in the character of the property's use. See 36
C.F.R. S 800.5(a)(2). The regulations establish the steps that
an agency must take in determining whether or not there
are adverse effects and in notifying interested parties of its
findings. See 36 C.F.R. S 800.5. However, agencies, as did
the STB here, will often assume the occurr ence of adverse
effects to properties identified as historic. Once the agency
finds (or assumes) the existence of adverse ef fects, the
agency must continue consulting with the parties in order
to resolve such adverse effects and to develop and evaluate
alternatives or modifications to the undertaking that will
avoid, minimize, or mitigate such effects. See 36 C.F.R.
SS 800.5(d)(2), 800.6(a). The agency must also notify the
ACHP of the adverse effect finding and pr ovide certain
specified documentation. See 36 C.F .R. S 800.6(a)(1).
The process then moves to the third andfinal step, the
resolution of adverse effects and the development of a plan
to avoid, minimize, or mitigate the adverse ef fects. At this
stage, the SHPO and any other consulting parties may
invite the ACHP to participate in the consultation; under
certain circumstances, the ACHP must be invited to
participate. See 36 C.F.R. SS 800.6(a)(1)(i), (ii). The agency
and the other consulting parties may also agr ee to invite
new parties to consult. They are requir ed to invite any
organization that will play a specific r ole or assume special
responsibility in any mitigation plan. See 36 C.F.R.
S 800.6(a)(2).
The ACHP has discretion at this stage to decide if it will
consult formally. See 36 C.F.R.S 800.6(a)(1)(iii); see also 36
C.F.R. Part 800 App. A (setting forth criteria that the ACHP
uses to determine whether formally to enter a particular
S 106 review). Its decision deter mines how the agency must
proceed. If the ACHP chooses not to join the consultation
formally, section 800.6(b)(1) of the ACHP r egulations
controls. The agency consults with the SHPO and other
consulting parties in devising a plan to avoid or mitigate
the adverse effects. If the agency and the SHPO agree on a
plan, they execute a Memorandum of Agreement (MOA), a
copy of which must be submitted to the ACHP for its
comments prior to the agency approving the undertaking.
See 36 C.F.R. S 800.6(b)(1)(iv); see also 36 C.F.R.
8
S 800.6(c)(1)(i). An executed MOA evidences the agency's
compliance with S 106 of the NHPA and governs the
carrying out of the federal undertaking. See 36 C.F.R.
S 800.6(c). If the agency and the SHPO fail to agree on a
plan, the agency must ask the ACHP formally to join the
consultation. See 36 C.F.R. S 800.6(b)(1)(v). If the ACHP
again declines to consult formally, it must pr ovide
comments on the undertaking and on the status of the
S 106 review, which the agency must consider in reaching
any final decision as to mitigation. See 36 C.F.R.
S 800.6(b)(1)(v); see also 36 C.F .R. S 800.7(c).
If, at any point, the ACHP formally joins the consultation
on mitigation, section 800.6(b)(2) controls. The ACHP must
execute the MOA along with the agency, the SHPO, and any
other consulting parties. See 36 C.F .R. S 800.6(b)(2); see
also 36 C.F.R. S 800.6(c)(1)(ii). Any party that assumes a
responsibility in carrying out the MOA may also be asked
to be a signatory to the MOA. See 36 C.F .R. S 800.6(c)(2)(ii).
If, at any point during consultation, the agency, the
SHPO, or the ACHP determines that further consultation
will not be productive, any of them may, upon notice to the
other consulting parties, terminate consultation. See 36
C.F.R. S 800.7(a). If the agency ter minates the consultation,
it must request and receive comment fr om the ACHP. See
36 C.F.R. S 800.7(a)(1).
Comments from the ACHP are governed by S 800.7(c).
The ACHP has 45 days from receipt of a r equest to provide
comments on an agency's termination of mitigation
consultation, pursuant to S 800.7(a)(1), or on an agency's
statement that it is unable to reach an MOA thr ough
consultation with the SHPO alone, pursuant to
S 800.6(b)(1)(v). See 36 C.F.R.S 800.7(c)(2). The agency
must take these comments into account in reaching a final
decision on the undertaking, see 36 C.F .R. S 800.7(c)(4),
and the agency is required to document that it did so by
explaining its decision and providing evidence that it
considered the ACHP's comments. See 36 C.F.R.
S 800.7(c)(4)(i); see also Concerned Citizens, 176 F.3d at 696
(stating that the "relevant agency must demonstrate that it
has read and considered" the opinions and
recommendations of the ACHP). This decision and
9
explanation is to be provided to the ACHP , to all consulting
parties, and to the public prior to the final appr oval and
carrying out of the undertaking. See 36 C.F .R.
SS 800.7(c)(4)(i-iii).
II. FACTS
There is no dispute as to the underlying facts or the
course of the regulatory proceedings in this matter. In
October 1989, Conrail4 filed a Notice of Exemption with the
ICC, seeking to abandon the Enola Branch, a 66.5-mile rail
corridor running through Lancaster and Chester Counties,
in Pennsylvania. Conrail certified that no traffic had moved
over the line for two years. There is no suggestion that
Conrail did not adhere to the filing and notice requirements
for seeking an exemption. Lancaster County objected to
Conrail's petition, primarily seeking a public use or interim
trail use and rail banking condition on the exemption.
Although the County did not expressly raiseS 106 or seek
a historic condition on the abandonment, it did pr ovide the
following description of the rail line to the ICC:
The Enola Branch railroad line itself is a historically
significant resource. Pennsylvania Railr oad President
A.J. Cassett built the railroad line as a passenger route
through Pennsylvania and Ohio in the first decade of
this century. It was once a vital east-west fr eight line
for southeastern Pennsylvania. The families of Italian
laborers constructed the line and now inhabit the
Quarryville area. The railroad corridor is designed and
constructed to have little slope, so it either cuts into
the ground or is elevated over most of its length. The
project is known as one of the most remarkable
engineering feats of its time. The physical impacts of
the corridor on adjacent land owners is negligible. The
line is very well designed with the landscape to limit
obtrusiveness to the natural character of the ar ea. It is
_________________________________________________________________
4. Conrail's assets have been acquired by, and divided between, two
railroad operations, Norfolk Souther n Corp. (Norfolk) and CSX Corp. The
former Enola Line is now controlled by Norfolk, which intervened in this
appeal on behalf of the STB.
10
said the earth moving involved in the project rivaled
that of the construction of the Panama Canal.
The ICC issued an Order on February 22, 1990 (1990
Order) in which it granted to Conrail the exemption, subject
to three conditions: 1) that Conrail keep intact all the right-
of-way underlying the track, including bridges and culverts,
for a period of 180 days, to allow for the negotiation of a
public use acquisition; 2) that Conrail comply with terms
and conditions for implementing possible interim trail use
and rail banking; and 3) "that Conrail take no steps to alter
the historic integrity of the bridges on the line until
completion of the section 106 process of the National
Historic Preservation Act, 16 U.S.C. S 470." Negotiations
between Conrail and Lancaster County to preserve the line,
either through sale for public use or for interim trail use
and rail banking, proved unsuccessful, despite extensions
well beyond the 180-day period provided for in the 1990
Order. The record indicates that the trail use plan fell
through in part because FAST was unable to act as a
financially responsible party for an interim trail use or to
find a public sponsor, as requir ed under 49 C.F.R.
S 1152.29(a)(2). On April 19, 1993, the ICC denied
Lancaster County's request for a further extension of the
negotiating period, vacated the trail use condition, and
granted Conrail permission to abandon the line (1993
Order).
The remaining condition on abandonment was for the
preservation of historically significant pr operties, pending
STB's completion of the S 106 process. The 1990 Order only
required preservation of the historic integrity of the bridges
on the line. This limitation apparently was based on a 1989
telephone conversation between a member of the ICC's
Section of Environmental Analysis (SEA) and Pennsylvania's
SHPO, the Pennsylvania Historical and Museum
Commission, Bureau for Historic Preservation (PHMC). In
that conversation, the SHPO indicated that some or all of
the 83 bridges on the line potentially were eligible for
inclusion in the National Register but that it had not
completed its review. The 1990 Order did not discuss or
address the comments from Lancaster County about the
historic significance of the line as a whole. The ICC also
11
never sought a determination from the Secretary of the
Interior or the Keeper as to the historic eligibility of the line
as a whole or of other portions of the rail corridor . The 1990
Order made no final identification of eligible historic
properties but limited the scope of possible historic
properties to some or all of the bridges on the line, as
initially identified by the SHPO in the telephone
conversation.
The ICC then followed its common practice of assuming
that abandonment of the Enola Branch corridor would
adversely affect the rail properties identified as historic, i.e.,
some or all of the 83 bridges. The ICC therefor e proceeded
to the third step in the S 106 pr ocess, development of a
plan to avoid, minimize, or mitigate the adverse ef fects. The
record does not indicate, however, that the ICC notified the
ACHP of the presumptive finding of adverse ef fects.
The final, mitigation stage of the S 106 pr ocess was also
a long one. It was complicated by the fact that in April
1996, FAST petitioned the STB to reopen the proceedings
and to broaden the S 106 condition to encompass the entire
Enola Branch, as the eligible historic property to be
preserved. In its petition, FAST r elied on a letter dated
February 24, 1994, from Brenda Barr ett, director of the
PHMC (the Pennsylvania SHPO), to Wendy T ippetts of an
organization known as "TWO."5 In that letter, Barrett stated
that, in the opinion of the SHPO, the Enola Branch and the
Atglen & Susquehana Branch both were eligible for listing
in the National Register. The STB was sent a copy of the
letter.
The STB responded to the petition on October 2, 1997
(1997 Order) by ordering that 1) the pr oceeding was
reopened, 2) the request by FAST to expand the condition
to include the entire Enola Line was denied, and 3) the
S 106 condition imposed in 1990 was modified to
encompass only 32 bridges on the line and ar chaeological
sites near 36 bridges as the properties eligible for listing in
_________________________________________________________________
5. At oral argument, counsel for FAST represented that FAST hired
Tippetts as consultant in the efforts to preserve the corridor as historic
property. Nothing has been presented to us explaining what "TWO"
stands for.
12
the National Register. In explaining its decision to deny
FAST's petition to expand the scope of the eligible historic
property, the Board stated that
Neither FAST nor the SHPO has provided any
justification for the SHPO's apparently changed
position with regard to eligibility of the entire line in
the National Register. Indeed, the SHPO letter
submitted by FAST does not even acknowledge that the
SHPO had ever reached a previous deter mination on
this matter. . . . It is clear that the SHPO was originally
concerned only with the eligibility of certain bridges
and archaeological sites for section 106 purposes. The
fact that certain items were included in the SHPO's
original opinion while others were excluded indicates
that the SHPO did not originally consider the entir e
line eligible.6
FAST timely petitioned for reconsideration of the refusal
to reopen the proceedings and to expand the identified
eligible historic properties. With that petition pending, the
parties proceeded along separate tracks. F AST and other
interested parties requested that the STB formally submit
the question of the historical significance of the Enola
Branch line as a whole to the ACHP for referral to the
Secretary of the Interior and the Keeper for a conclusive
determination. When FAST received no response from the
STB, FAST asked the ACHP to become involved in the
process. The ACHP wrote to the STB in Mar ch 1998,
asserting that the STB never notified the ACHP of its
finding of adverse effects, never identified potentially
interested parties to consult on the S 106 process, and
never informed the ACHP as to how it identified eligible
property. The ACHP requested that it be included in the
S 106 process and that it be provided background
documentation. The STB never responded to this letter.
_________________________________________________________________
6. The STB also questioned the applicability of the letter, noting that,
although the caption of the letter contained the correct docket number,
it referred to a project encompassing additional lines and counties. The
STB stated that it "is unclear what this pr oject entails." The STB also
noted that any information submitted by F AST in support of the
eligibility of the entire line had not been supplied to Conrail or
submitted
for entry in the public record.
13
Meanwhile, the STB proceeded as if the first two steps of
the S 106 process, identification of eligible properties and
determination of adverse effects, had been concluded and
the only remaining step was to devise a plan to mitigate the
adverse effects on the bridges and archaeological sites that
it had identified as eligible properties. The STB formally
consulted with the SHPO and Conrail; the recor d does not
indicate that the STB formally invited the ACHP to consult
on the mitigation plan. In August 1998, the STB drafted an
MOA, memorializing terms that had been agr eed upon by
the SHPO, Conrail, and the STB. The plan provided that 1)
Conrail would perform recor dation of five identified bridges
to State Level Recordation Standards prior to the demolition
of those bridges, 2) Conrail would provide funding in excess
of $15,000 to the Railroad Museum of Pennsylvania for
development of a 6-8 minute video outlining the history of
the Enola Branch, 3) Conrail would convey segments of the
abandoned line and bridges to local townships and would
provide the municipalities with an agreed sum of money for
future maintenance of those bridges.
The MOA was submitted to the SHPO and Conrail for
execution, to the ACHP for approval, as well as to FAST and
the Historic Preservation Trust of Lancaster County (the
Trust) for comments. In the transmittal letter to the ACHP,
the STB for the first time broached the possibility of
breaking off consultation, stating that"[i]f it appears that
further consultation would not be productive, we will
terminate consultation."
The SHPO declined to sign the MOA, citing the ACHP's
concerns that it had not been asked to consult in the
development of the MOA; the SHPO withheld further r eview
and signature of the plan until the STB had consulted with
the ACHP. FAST stated specific objections to the draft MOA,
noting FAST's desire to preserve the line and to establish a
trail on the corridor. FAST also objected to the manner in
which public input had been gathered for the pr oject.
The ACHP, upon receipt of the draft MOA, asserted that
the matter of the STB's overall compliance withS 106
"remains unresolved" and that "serious shortcomings
persist in STB's evaluation of historic properties,
solicitation of public input, evaluation of alter natives, and,
14
development of a mitigation plan." Further , the ACHP
discussed the provisions in the S 106 r egulations that
provide for reevaluation of determinations of eligibility and
for the possible involvement of the Secretary of the Interior.
The ACHP concluded that "the eligibility issue r egarding the
historic significance of the entire Enola Branch Line will
need to be resolved before we can consider the draft MOA."
The ACHP stated that only after receiving for mal comments
from the Keeper could the ACHP evaluate whether all
possible effects had been considered. The ACHP also
suggested a meeting among the STB, the SHPO, Conrail,
and the ACHP.
In its February 1, 1999, response, the STB described the
manner in which it had carried out the identification
process and asserted that the identification and effects
phases of the S 106 process had been completed and need
not be reopened. The STB specifically noted that changed
perceptions or evaluations of what is historically significant
and therefore eligible for the National Register may indeed
justify reevaluation or reopening of pr oceedings but did not
necessarily require such a result. Because the STB had
found inadequate justification for reopening the
identification stage, it continued to decline to do so. The
STB solicited anew the ACHP's comments on mitigation and
the MOA.
The ACHP, on February 26, 1999, formally referred the
matter to the Secretary of the Interior and informed the
STB that, pending receipt of the Keeper's findings, it
believed that the identification and evaluation r equirements
had not been met. The ACHP further asserted that, if the
STB continued its efforts to finalize the draft MOA, it would
be in violation of its statutory and regulatory obligations. In
April 1999, the Keeper issued a determination that the
entire 66.5-mile Enola Branch line was eligible for
designation in the National Register. The determination
stated:
Constructed by the Pennsylvania Railroad between
1902 and 1906, the entire 66.5 mile Enola Branch Line
is eligible for the National Register of Historic Places for
its historic and engineering significance. Built as a
significant component of the Pennsylvania Railr oad
15
system, the Enola Branch line was an important
engineering feat of the early 20th century. The Enola
Branch Line differed from other railroads of the period
in that it was designed to have no contact with other
vehicular routes, and it was to run almost completely
level and in a straight line. This straight line, with low
radius curves and very little change in grade, pr ovided
improved and efficient delivery of fr eight by rail.
Building the line necessitated vast amounts of cutting
and filling and the construction of numerous stone
bridges and culverts built by skilled Italian stone
masons.
On August 13, 1999 (1999 Order), the STB denied FAST's
petition for reconsideration of the 1997 Or der, holding that
FAST had not made the required showing of material error,
new evidence, or changed circumstances warranting
reconsideration. The Board declined to give substantial
weight to the one new piece of evidence, a letter to the
Trust from the Curator of Transportation of the National
Museum of American History.7 The STB found that the
letter could have been presented earlier and noted that the
Curator took no formal position in the matter . The STB also
declined to reconsider the import of the TWO letter, noting
that FAST still had not explained the discr epancy between
that letter and the SHPO's formal position on the record
before the STB that the only issue remaining in the
proceeding was mitigation.8 The STB similarly rejected the
Keeper's statement of eligibility, describing it as"pro
forma." The STB emphasized that its identification decision
had been based on an agreement with the SHPO about the
properties to be protected (all of the bridges, later narrowed
to 32 bridges and 36 archaeological areas) and that under
these circumstances, to restart the identification process to
_________________________________________________________________
7. That letter, dated April 2, 1997, detailed the history of the line and
called its significance "unquestioned." The Curator stated that he could
take "no formal position in such a legal pr oceeding," but he stated that
he supported the development of the line, intact, as a recreational and
educational trail.
8. The STB emphasized several letters from the SHPO, post-1994, that
appear to reflect this same view.
16
include the entire rail line "would add inexcusable delay to
a process that has already taken much too long."
The STB then terminated the consultation pr ocess and
removed the S 106 condition, subject only to Conrail's
compliance with the terms of the proposed, although
unexecuted, MOA. In terminating consultation, the STB
emphasized the steps it had taken throughout this process.
It found that "further consultation would be fruitless." It
further noted the fact that the ACHP would not r espond on
the issue of mitigation, despite the STB's r equest for it to do
so, and "instead continues to seek to dictate the[STB's]
procedures and compel us to reopen this case and declare
this entire rail line historic." The STB considered the
ACHP's letters in January and February 1999 to be its
comments and recommendations on the undertaking and
on termination of consultation; having taken them into
account, the STB determined that it had complied with
S 106 and that the process was complete.
The record indicates that Conrail/Nor folk has
consummated abandonment of the rail line, other than the
bridges. According to Norfolk, it has been more than ten
years since there was activity on the line and more than
eight years since there was any railroad equipment or
property on the land. All tracks, ties, rails, signage, and
equipment have been stripped from the pr operty.
III. JURISDICTION
The STB, as statutory successor to the ICC under the
ICC Termination Act, had jurisdiction over Conrail's
petition to abandon the Enola Branch and could do so
under the exempt procedures. See 49 U.S.C.
SS 10501(a)(1)(A), 10502(a)(1), 49 C.F .R. S 1152.50. We have
exclusive jurisdiction to review a final or der of the STB,
pursuant to 28 U.S.C. SS 2321 and 2342(5), pr ovided that
the petition for review was filed by the aggrieved party
within 60 days of entry of the final order . See 28 U.S.C.
S 2344. FAST filed the instant petition for review within 60
days of service of the Board's 1999 Order .
The STB and intervenor Norfolk did, however , raise two
preliminary issues questioning our jurisdiction to review
17
the STB's order and the STB's jurisdiction should this
matter be remanded.
A. WHICH ORDER IS BEING REVIEWED?
The STB argues that FAST actually is challenging the
1990 Order that limited the scope of potentially historically
eligible properties to the 83 bridges on the rail line. It is the
STB's position that direct judicial review of the 1990 Order
is precluded by S 2344, which requir es that a petition for
review of final agency action be filed within 60 days. See 28
U.S.C. S 2344; see also ICC v. Brotherhood of Locomotive
Eng'rs, 482 U.S. 270, 277 (1987). Once that 60-day period
has passed, an agency order is no longer subject to judicial
review. See id. The STB contends that F AST is precluded
from making any arguments that in any way address the
manner in which the STB identified historic pr operties or
its determination that only some bridges and archaeological
areas are eligible for historic pr otection. The STB argues
that we have jurisdiction to review only the plan for
mitigation as to the bridges and the decision to ter minate
consultation. It suggests that we may not addr ess any
issues relating to the identification of historic properties.
We disagree and conclude that we do have jurisdiction to
review the entire matter, including those aspects of the
STB's decisions relating to the identification of eligible
historic properties on the rail line. First, in the 1997 Order,
the STB rejected FAST's request that the preservation
requirement imposed in the 1990 Or der be broadened to
apply to the entire Enola Branch line. However , the 1997
Order expressly stated that "[t]his proceeding is reopened."
When the STB "reopens a proceeding for any reason and,
after reconsideration, issues a new and final order setting
forth the rights and obligations of the parties, that order--
even if it merely reaffirms the rights and obligations set
forth in the original order--is reviewable on its merits."
BLE, 482 U.S. at 278 (citing United States v. Seatrain Lines,
Inc., 329 U.S. 424 (1947)). The STB urged that the
reopening must be understood in context, that the
proceeding was reopened only for the limited purpose of
narrowing the scope of the historic condition. However,
reopening a proceeding "for any r eason," even if only to
18
reaffirm the original order , gives us jurisdiction to review
every aspect of the reopening order . See BLE, 482 U.S. at
278.
Reopening in this case, even if only to narr ow rather than
expand the original identification decision, makes the
issues of identification reviewable. The STB cannot claim
that identification was complete prior to 1997, yet still
reopen the proceeding in order to consider some aspect of
identification. That further consideration is subject to
review, both as to whether it was proper to narrow the
scope of the properties to be protected and also as to
whether it was improper not to expand the scope of the
protected properties. In short, the STB's explicit order to
reopen this proceeding meant reopening for all purposes,
thereby bringing the issue of identification back into play
and making it subject to review at this time.
Second, FAST's 1996 petition (resolved in the 1997
Order), seeking reopening of the pr oceedings for the
purpose of reconsidering and expanding the identification
decision, was based on a claim of new evidence or changed
circumstances, particularly evidence of changed opinions
and perceptions of how much of the rail line would be
eligible for the National Register. Wher e a motion to reopen
is based on non-pretextual arguments about new evidence
or changed circumstances, the refusal to r eopen or
reconsider a decision itself is reviewable for abuse of
discretion. See BLE, 482 U.S. at 284 ("If the petition that
was denied sought reopening on the basis of new evidence
or changed circumstances review is available and abuse of
discretion is the standard."); Fritsch v. ICC, 59 F.3d 248,
252 (D.C. Cir. 1995) (interpreting BLE to permit merits
review of a refusal to reopen wher e the motion is based on
non-pretextual grounds of new evidence or changed
circumstances); Friends of Sierra R.R., Inc. v. ICC, 881 F.2d
663, 666-67 (9th Cir. 1989) ("The or der denying [the]
petition is subject to review only if the petition sought
reopening on the basis of `new evidence' or`substantially
changed circumstances.' "). Even assuming that the STB's
1997 Order declined to reopen for the purposes of
expanding the historic condition, that refusal to reopen is
itself subject to judicial review. Under BLE, we would have
19
jurisdiction to determine whether the Boar d's refusal to
expand the condition was an abuse of discretion.
The STB argues that FAST did not actually submit any
new or newly discovered evidence because the opinions of
the ACHP, the SHPO, the Keeper, and the Curator,
regarding the historic eligibility of the entire line, were
available all along and could have been presented earlier.
The STB contends, therefore, that F AST actually sought
reopening and reconsideration based on"material error,"
the denial of which motion unquestionably would not be
subject to judicial review. See BLE, 482 U.S. at 280
(holding that "where a party petitions an agency for
reconsideration on the ground of `material error,' . . . `an
order which merely denies rehearing' . . . is not itself
reviewable.").
The STB's argument fails because it conflates the
jurisdictional and merits analyses. Whether the evidence
presented actually is new or newly discover ed, as opposed
to newly presented, goes to the merits of whether the
refusal to reopen or reconsider a prior decision was proper
or lawful. It does not go to the jurisdiction of the court of
appeals to review that refusal. Jurisdiction and
reviewability are based on the fact that the motion before
the STB alleged the existence of new evidence or changed
circumstances. See Friends of Sierra, 881 F.2d at 666 ("[W]e
determine reviewability solely by examining the bases
advanced in the petition to reopen."). That basis for the
motion, assuming it is not a pretext, is sufficient alone to
confer jurisdiction to review the Board's refusal to expand
the identified historic properties and pr otect the entire rail
line.
From the record before us, we conclude that FAST sought
reopening based on new evidence or changed
circumstances, not material error, such that the refusal to
reopen is subject to judicial review.
FAST moved within 60 days for reconsideration of the
1997 Order, thus tolling the period for seeking judicial
review of the 1997 Order until reconsideration was denied.
The 1999 Order denied reconsideration of the refusal to
reopen and the petition for review wasfiled within 60 days.
20
We have jurisdiction, therefore, to review the 1997 Order
through its denial by the 1999 Order . See BLE, 482 U.S. at
279 (stating that a petition for reconsideration tolls the
period for judicial review of the original or der, which can be
appealed directly after the petition for r econsideration is
denied).
B. THE STB'S JURISDICTION ON REMAND
Norfolk, as intervenor on behalf of the STB, raises a
different argument, going to the STB's jurisdiction on
remand. Norfolk suggests that, because it has abandoned
the Enola Branch, the STB no longer would have
jurisdiction on remand to make any deter minations as to
the historic status of the line as a whole or to impose
mitigation conditions on any non-bridge property. It argues
that any decision vacating the STB's original identification
decision and remanding the case to the STB would be futile
because, beyond the bridges already identified, the STB
would be without the power to impose any historic
conditions on the abandoned line as a whole.9
It is true, generally, that once a carrier abandons a rail
line, the line no longer is part of the national transportation
system and the STB's jurisdiction terminates. See Preseault
v. ICC, 494 U.S. 1, 5-6 n.3 (1990). Unless the STB attaches
post-abandonment conditions to a certificate of
abandonment or exemption, such as requir ements under
S 106, the authorization of abandonment ends the Board's
regulatory mission and its jurisdiction. See id.; Hayfield N.
R.R. Co., Inc. v. Chicago & Northwestern T ransp. Co., 474
U.S. 622, 633-34 (1984). The determination of whether a
railroad has abandoned a line hinges on the railroad's
objective intent to cease permanently or indefinitely all
_________________________________________________________________
9. Norfolk raises the issue of the STB's jurisdiction for the first time
on
appeal. In opposing FAST's motion to r eopen before the STB, Norfolk
never suggested that the STB was without jurisdiction to expand the
scope of the historical condition on the rail line. Yet if the STB would
have had jurisdiction to expand the historical condition in the 1997
Order, it is not clear why the STB would lack jurisdiction to do the same
on remand from our determination that the 1997 Order declining to
reopen was in error.
21
transportation service on the line. See Birt v. Surface
Transp. Bd., 90 F.3d 580, 585 (D.C. Cir. 1996) (citation and
internal quotation marks omitted). Abandonment is
considered consummated when the rail line is fully
abandoned. See Consolidated Rail Corp. v. Sur face Transp.
Bd., 93 F.3d 793, 798 (D.C. Cir. 1996).
We reject Norfolk's argument because there has been no
STB finding that Norfolk consummated abandonment of the
rail line as an entire property. Following the 1990 Order,
Conrail removed all remnants of the railr oad line from the
property, including all tracks, ties, rails, signage, and
equipment. According to Norfolk, it has been more than ten
years since there was activity on the pr operty, more than
eight years since there was railroad equipment on the
property, and more than seven years since Conrail
attempted to negotiate converting the rail into a trail.
But the historical eligibility of the line as a whole does
not require the presence of the tracks and other railroad
equipment. The historically eligible property, as found by
the Keeper and urged by FAST, is the rail line itself,
including the trail and all of the bridges. The issue is
whether Norfolk has abandoned, sold, or otherwise
disposed of any portion of that property, a point on which
the record is silent. If, on remand, the STB concludes that
Norfolk has disposed of some portion of the line, the STB
will be without power to expand the historical condition to
cover that property already sold. But the STB otherwise
does have the power to expand the historical condition to
cover all property not abandoned and to r equire Norfolk to
preserve the status quo and not to sell or otherwise disturb
or dispose of the rail line pending proper completion of the
S 106 process.
IV. HISTORIC ELIGIBILITY OF THE ENOLA LINE
We now proceed to the merits of this petition, whether
the STB erred in carrying out its statutory obligations
under S 106. Our review is governed by the Administrative
Procedure Act (APA), 5 U.S.C. S 706(2), which provides that
a court of appeals may "hold unlawful and set aside agency
action, findings, and conclusions found to be arbitrary,
22
capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. S 706(2)(A); see Consolidated
Rail Corp. v. United States, 855 F.2d 78, 85 (3d Cir. 1988)
(applying S 706 to review of ICC decision).
As we set out in Part I.B, supra, the NHP A is a
procedural rather than a substantive statute, designed to
ensure that federal agencies take into account the effect on
historic places of federally regulated undertakings. See
Morris County Trust, 714 F.2d at 278-79. The statute
represents a balance between the goals of historic
preservation and the needs of business and community
development. See id. at 280; 37 C.F.R. S 800.1(a). Our
concern on review under the NHPA is less with the
substantive results reached by the STB on the historic
eligibility of the Enola Branch than with the pr ocedures
and reasoning the STB followed in reaching those results.
See Morris County Trust, 714 F.2d at 280. We have agreed
that S 106 is a "stop, look, and listen" provision, requiring
an agency to acquire and consider infor mation prior to
making a decision and approving a federal undertaking. See
Concerned Citizens, 176 F.3d at 695-96 (citing Illinois
Commerce Comm'n, 848 F.2d at 1260-61).
The issue, therefore, is whether the STB touched all the
procedural bases in limiting the scope of the identified
historic properties on the line to the 32 bridges and 36
archaeological areas, in refusing to expand that
identification in 1997 and 1999, in unilaterally approving
the mitigation plan outlined in the draft MOA and the 1999
Order, and in terminating consultation in the 1999 Order.
We conclude that the STB did not touch all the bases. The
STB's decision to terminate the process as it did, and to
provide only limited historic protection, must be vacated
and this matter remanded to the STB for further
proceedings.
A. IDENTIFICATION
Although there would appear to be a lack of constructive
public dialogue in the whole of the S 106 identification
process, FAST did not seek review of the 1990 Order at the
time it issued, nor has FAST formally complained about the
23
early stages of the S 106 identification. W e will begin our
analysis therefore with the events occurring after FAST's
1996 petition to reopen and expand the historic condition.
In the 1997 and 1999 Orders, the STB concluded that the
TWO letter and the letter from the Curator wer e not new or
newly discovered evidence in that both pieces of
information were available prior to their submission to the
STB in 1996. The STB also discounted the SHPO's position
as stated in the TWO letter because it was inconsistent with
its formal position before the STB and the inconsistency
was not explained. In addition, in the 1999 Or der, the STB
rejected the Keeper's statement as "pr o forma" and not
justifying reopening the identification phase because doing
so "would add inexcusable delay to a process that has
already taken much too long."
The identification process must, however , be a fluid and
ongoing one. "The passage of time, changing per ceptions of
significance, or incomplete prior evaluations may require
the Agency Official to reevaluate properties previously
determined eligible or ineligible." 36 C.F .R. S 800.4(c)(1)
(emphasis added). The STB's own regulations also permit it
to reopen or reconsider a prior action because of new
evidence or substantially changed circumstances. See 49
U.S.C. S 722(c). If we read S 722(c) together with
S 800.4(c)(1), these provisions suggest that evidence of
changed perceptions of historical significance constitutes
evidence of substantially changed circumstances, thus
permitting reopening or reconsideration.
In the 1997 and 1999 Orders, however, the STB focused
only on whether FAST had submitted new evidence; it did
not consider whether FAST had submitted evidence of
substantially changed circumstances. This ruling ignores
the "changed circumstances" language ofS 722(c).
Furthermore, the STB failed to consider the Keeper's
statement that the entire Enola Branch line was eligible for
designation in the National Register. The ACHP had taken
the position that the Keeper's findings wer e necessary
before the identification process could be completed. Once
the ACHP had brought the Keeper into the pr ocess, the
Keeper's conclusions had to be considered. As we noted in
Part I.B, supra, the Keeper has been held to have
24
independent authority to determine whether a property
should be listed in the National Register. See Moody Hill
Farms, 205 F.3d at 558.
The STB ignored the Keeper's determination because of
its "untimeliness" and the STB's concer n that considering it
would impose additional, inexcusable delay on theS 106
process. This consideration of late timing is, however,
inconsistent with S 800.4(c)(1). If the passage of time can be
a basis for reevaluation of the identification decision under
the regulations, it cannot at the same time be a basis for
refusing to consider evidence of changed per ceptions of
historical significance. By focusing on the timing of the
Keeper's statement and refusing to consider and address its
merits, the STB introduced an improper consideration into
the identification process. The fact that the STB and the
SHPO had previously agreed that the bridges were the only
properties that were historically eligible does not and
cannot outweigh, without further explanation, the Keeper's
determination, whenever that determination was rendered.
See Moody Hills, 205 F.3d at 558-59 (stating that the
Keeper is not bound by the historic determinations of state
and local authorities).
The STB also dismissed the Keeper's statement as"pro
forma" and therefore not entitled to serious weight.
However, the STB did not indicate in what way the
statement was pro forma, nor did it indicate what
additional information the Keeper should have presented in
its evaluation. The Keeper's evaluation included a lengthy
paragraph describing the Enola Branch's overall historic
significance; the Board has not explained why the Keeper's
position was not entitled at least to some consideration.
The STB is correct in contending that, because it and the
SHPO initially did not disagree as to the scope of eligible
properties, the STB was not requir ed under the regulations
to request a determination from the Secretary of the
Interior or from the Keeper. Such a r eferral is required only
if the STB and the SHPO do not agree. See 36 C.F.R.
S 800.4(c)(2). However, that same r egulation provides that
the Secretary or the ACHP can request such a
determination at any time, whether or not the STB and the
SHPO disagree. See 36 C.F.R.S 800.4(c)(2). Given the
25
authority of the Keeper, it must follow that once that
determination has been obtained, it is entitled to some
attention by the agency.
Moreover, the fact that the SHPO's position in the TWO
letter in 1994, that the entire line was eligible for the
National Register, appeared to be a change from its earlier
position before the STB was not sufficient gr ounds for the
STB not to consider that letter as evidence of changed
perceptions. The STB argues that nothing in the statutes or
regulations requires it to rethink its decisions whenever an
affected party changes its mind. See Connecticut Trust for
Historic Preservation v. ICC, 841 F .2d 479, 484 (2d Cir.
1988). However, Connecticut Trust involved a potential
purchaser of the abandoned rail property that changed its
mind about which portions of the line it wanted to
purchase. See id. That is significantly different from a
change of position by the SHPO, which is statutorily
empowered to advise the STB throughout theS 106 process
and is not an affected party in the same way as a would-be
purchaser. The SHPO's revised view as to the eligibility of
the entire rail line may represent a changed perception of
historic significance or be the result of a more complete
evaluation of the property. The SHPO's changed perception
should have received some consideration on its merits and
should not have been rejected out of hand as an
unexplained change of heart.
The STB similarly erred in not giving sufficient
consideration to the views of the ACHP. While the ultimate
decision on an undertaking remains with the agency
implementing it, the ACHP must be affor ded the
opportunity to comment and its comments must be taken
into account by the agency in rendering its decision. See
Concerned Citizens, 176 F.3d at 695 (quoting Waterford
Citizens' Ass'n v. Reilly, 970 F.2d 1287, 1290 (4th Cir.
1992)). The agency must make clear that it consider ed the
ACHP's opinions, see Concerned Citizens , 176 F.3d at 696,
instead of dismissing them as an attempt by the ACHP to
"dictate" the STB's procedures.
The ACHP formally became involved in the S 106 process
in March 1998, at the request of F AST, during the
pendency of FAST's motion for reconsideration. ACHP
26
involvement was not required at the identification stage and
the STB did not err in not immediately seeking ACHP
comments on identification. However, the ACHP is identified
as a source of guidance and advice regar ding the
application of the regulations; it also is empowered to enter
the S 106 process at any time that it determines that its
involvement is necessary to ensure that the purposes and
requirements of S 106 are met. See 36 C.F.R. S 800.2(b).
Once the ACHP entered the proceedings, the STB, although
not required to follow the comments and suggestions of the
ACHP at any stage, was required to take these comments
into account and to indicate that the comments wer e given
genuine attention on their merits. The relevant"agency
must demonstrate that it has read and consider ed those
recommendations" and "it must make clear in the record
that the ACHP's comments were taken seriously." See
Concerned Citizens, 176 F.3d at 696.
The record here shows that the ACHP's comments were
not taken seriously.10 In several letters to the STB following
its decision to participate in the consultation, the ACHP
raised its concerns about the way in which historically
eligible properties had been identified and its desire to see
further consideration of what properties on the rail line
_________________________________________________________________
10. The parties dispute the amount of defer ence or weight to be accorded
to the ACHP's interpretation of its regulations. FAST relies on our
statement in Morris County that "the Advisory Council's regulations are
particularly persuasive concerning the pr oper interpretation of NHPA."
See Morris County, 714 F.2d at 280. Nor folk points to the statements in
Concerned Citizens that found no support for the conclusion that the
ACHP's judgments were entitled to great weight. See Concerned Citizens,
176 F.3d at 696 n.6. FAST argues that Concerned Citizens was a case
challenging the Federal Highway Administration's compliance with S 4(f)
of the Department of Transportation Act, in which the ACHP plays no
role. By contrast, the instant case is a challenge to compliance with the
ACHP's own regulations under the NHPA. W e need not resolve this
matter because, even assuming that the ACHP's judgment is entitled
only to minimal weight and that the agency mer ely must afford these
comments some attention and consideration, see Concerned Citizens,
176 F.3d at 696, we conclude that the STB in the instant case did not
accord the ACHP's comments even that minimal degree of attention and
consideration.
27
should be identified as historic. The STB did not respond to
these concerns.
Moreover, any delay in ACHP participation and comment
may be attributed, at least in part, to the STB. The STB
apparently did not, as required, notify the ACHP of its
determination of adverse effects at the time of its initial
presumptive finding of such effects in 1990. See 36 C.F.R.
S 800.6(a)(1) (requiring notification of the ACHP upon a
finding of adverse effects). The STB also did not involve the
ACHP when requested to do so by FAST , sometime prior to
March 1998. Instead, FAST was for ced to contact the ACHP
itself, pursuant to 36 C.F.R. S 800.6(a)(1)(ii). As a result, the
ACHP did not become involved in the proceedings until
March 1998.
Finally, the STB never mentioned or gave any
consideration to the detailed statement by Lancaster
County, in its 1989 objection to Conrail's Notice of
Exemption, as to the historic significance of the line as a
whole. The substance of this statement was similar to the
comments made by the Keeper in its 1999 deter mination of
eligibility. Although the County did not expr essly request a
historic condition on the abandonment of the line, its
comments provided the STB with initial evidence as to the
historical significance of the rail line as a linear source.
Like any other evidence from an interested party, this was
entitled to some consideration by the Board in identifying
historic properties. However, the r ecord does not reflect that
the Board ever recognized or consider ed the merits of this
statement.
B. TERMINATION OF CONSULTA TION
FAST also challenges the manner in which the STB
terminated the regulatory consultation. After declining to
reconsider FAST's request to expand the historic condition
and protect the entire rail line, the STB unilaterally
terminated consultation on mitigation, unilaterally
terminated the entire S 106 pr ocess, and imposed the terms
of the unexecuted MOA, finding that it "constitutes
appropriate historic mitigation for the bridges at issue."
28
The terms of the MOA were established following
negotiations among the STB, Conrail, and the SHPO; all
three agreed to terms, including r ecordation of five bridges,
funding of the film, transfer of certain bridge pr operties to
local municipalities, and payment of money by Conrail for
upkeep of those bridges. However, the SHPO declined to
sign the MOA, citing the ACHP's desire to consult in the
process. At that point, the STB was requir ed to invite the
ACHP formally to participate in the consultation, and, if the
ACHP declined to consult, to obtain the ACHP's comments
on the undertaking and on the proposed mitigation plan.
See 36 C.F.R. SS 800.6(b)(1)(v), 800.7(c)(2). The STB did
submit a copy of the MOA to the ACHP for comment and
approval; the ACHP expressly declined to comment on the
MOA or the mitigation plan, focusing its comments instead
on what it found to be deficiencies in the S 106 process
generally and the need to reconsider identification.
The STB certainly has the power to declare consultation
at an impasse and to terminate, if it finds that further
consultation would not be productive. See 36 C.F.R.
S 800.7(a). However, the applicable r egulations require that,
if the STB does terminate consultation, it must give notice
of that termination to the ACHP, see 36 C.F.R. S 800.7(a)(1);
allow 45 days for ACHP comments on termination, see 36
C.F.R. S 800.7(c)(2); and take those comments into account,
giving them genuine attention and consideration, in
terminating consultation and reaching afinal decision. See
36 C.F.R. S 800.7(c)(4). Only after r eceipt and consideration
of those comments may the STB complete the ter mination
of the process and implement a mitigation plan, provided
that it expressly take such comments into account in
rendering that final decision. See Concer ned Citizens, 176
F.3d at 696. The STB did not meet these r equirements for
termination.
We can understand the impatience of the STB to resolve
this expedited abandonment. Nevertheless, when
procedures are established by law, those procedures must
be followed. Because the STB did not follow the r equired
procedures, we conclude that it abused its discretion in
implementing the MOA and in terminating the consultation.
For these reasons, the 1997 and 1999 Or ders will be
vacated and this matter will be remanded to the STB.
29
In determining to vacate and remand this matter, we in
no way suggest that FAST is entitled to the r elief it seeks.
We take no position as to whether the entir e Enola Branch
is eligible for inclusion in the National Register or as to
whether there is sufficient evidence of changed perceptions
of historical significance or changed circumstances to
justify preserving the entire line. W e also take no position
as to whether the mitigation plan favored by the STB is
proper although we note that the ultimate decision is left to
the STB after due consideration of comments fr om
interested parties. See Concerned Citizens, 176 F.3d at 696.
We also take no position as to whether consultation is at an
impasse and whether the process properly should be
terminated. We hold only that, on r emand, the STB must
conduct the S 106 process in accor dance with the
regulations. It must consider the comments and opinions of
the Keeper, the ACHP, and other inter ested parties as to the
scope of the eligible historic properties and as to a proper
mitigation plan. If the STB again decides that further
consultation is fruitless and that the S 106 process should
be termination, it must follow the procedural track
established by the regulations for termination.
V. CONCLUSION
For the foregoing reasons, the motion of the STB to
dismiss the petition for review is denied. The petition for
review is granted and the 1997 and 1999 Or ders of the STB
are vacated. This matter is remanded to the Surface
Transportation Board for further pr oceedings consistent
with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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