Railroad Ventures v. STB , 299 F.3d 523 ( 2002 )

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DSSURYHWKHVDOHRIWKHUDLOOLQHDQGWKDWLWVOctober 4, 2000 ',675,&7 
decision approving the sale was not erroneous to the extent 3HWLWLRQHUV 
that it ordered RVI to transfer its entire fee simple interest in 
the property constituting the rail line that was the subject of Y 
RVI’s abandonment petition. Further, we find the STB’s 
decisions to lower the salvage value of the track and materials 
and to order RVI to escrow $375,000 of the sale proceeds to 685)$&( 75$163257$7,21 
pay for track restorations and repairs were not arbitrary or %2$5'DQG81,7(' 67$7(6 
capricious. The STB also did not err in voiding the "Grade 2) $0(5,&$ 
Separated Crossing Settlement Agreement" ("GSCSA") 5HVSRQGHQWV 
entered into between RVI and Boardman Township and 
RVI’s transfer of surface rights in 4.012 acres of the line to 
the Park District. )RU WKH UHDVRQV VHW IRUWK DERYH ZH &2/80%,$1$ &2817< 3257 
WKHUHIRUH$)),50WKHGHFLVLRQVRIWKH67% $87+25,7<DQG&(175$/ 
&2/80%,$1$ 
3(11649 U.S.C. § 10502, and for authority to abandon the rail line
Louisiana, 451 U.S. 725, 746 (1981)). pursuant to 49 U.S.C. § 10903(a). For the reasons set forth
below, we AFFIRM the STB’s orders.
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whether the Ohio statutes at issue are preempted by the Federal Railroad $6WDWXWRU\DQG5HJXODWRU\)UDPHZRUN
Safety Act (FRSA), 49 U.S.C. §§ 20101-20153. See CSX Transp. Inc. v.
City of Plymouth, 283 F.3d 812, 817 (6th Cir. 2002) (noting that the &RQJUHVVKDVUHJXODWHGWKHDEDQGRQPHQWRIUDLOURDGOLQHV
FRSA preempted WKH 0LFKLJDQ VWDWXWH SURKLELWLQJ WUDLQV IURP
FRQWLQXRXVO\ EORFNLQJ JUDGH FURVVLQJV IRU PRUH WKDQ ILYH PLQXWHV ZKLOH
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7UDQVSRUWDWLRQ$FWRI6WDW7RH[SHGLWHWKH 49 U.S.C. § 10501(b). As explained by the Ninth Circuit in
DEDQGRQPHQW SURFHVV &RQJUHVV PRGLILHG WKH ,QWHUVWDWH City of Auburn v. United States, 154 F.3d 1025, 1030 (9th
&RPPHUFH $FW ZLWK WKH HQDFWPHQW RI WKH 5DLOURDG Cir. 1998):
5HYLWDOL]DWLRQDQG5HJXODWRU\5HIRUP$FWRI5$FW
3XE / 1R   6WDW   ZKLFK DGGHG D Section 10501 of the ICCTA, which governs the STB's
SURYLVLRQ86&†QRZ86&†WKDW jurisdiction, states the [B]oard will have exclusive
VXVSHQGHG DEDQGRQPHQW RI D OLQH IRU XS WR VL[ PRQWKV WR jurisdiction over "the construction, acquisition, operation,
DOORZ WLPH IRU D SURVSHFWLYH SXUFKDVHU WR FRQVXPPDWH WKH abandonment, or discontinuance of spur, industrial, team,
switching, or side tracks, or facilities, even if the tracks
are located, or intended to be located, entirely in one
State." 49 U.S.C. § 10501(b)(2) (1997). The same

section states that "the remedies provided under this part
3XUVXDQW WR WKH ,QWHUVWDWH &RPPHUFH $FW RI   6WDW  with respect to regulation of rail transportation are
 &RQJUHVV FUHDWHG WKH ,&& WR UHJXODWH UDLOURDGV 6HH &KLFDJR exclusive and preempt the remedies provided under
1: 7UDQVS &R Y .DOR %ULFN 7LOH &R  86   
Federal or State law." 49 U.S.C. § 10501(b) (1997). . . .
UHFRJQL]LQJ WKH ,QWHUVWDWH &RPPHUFH $FW DV ³DPRQJ WKH PRVW SHUYDVLYH
DQG FRPSUHKHQVLYH RI IHGHUDO UHJXODWRU\ VFKHPHV´ 8QLWHG 6WDWHV Y The section unambiguously states: "The authority of the
%DOWLPRUH 25 &R   86    ³7KH ,QWHUVWDWH Board under this subchapter is exclusive." Id.&RPPHUFH $FW LV RQH RI WKH PRVW FRPSUHKHQVLYH UHJXODWRU\ SODQV WKDW
&RQJUHVV KDV HYHU XQGHUWDNHQ´ 0LG$PHULFDQ (QHUJ\ &R Y 67%   154 F.3d at 1030 (emphasis in original).
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$FW SURYLGHG IRU D VWULFW UHJXODWRU\ IUDPHZRUN WR JRYHUQ WKH IHGHUDO
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In City of Auburn, the Ninth Circuit, endorsing a "broad
reading of Congress’ preemption intent, not a narrow one,"
WK &LU  QRWLQJ WKDW ³&RQJUHVV¶ DXWKRULW\ WR UHJXODWH UDLOURDGV LV
ZHOO HVWDEOLVKHG´ rejected the City’s argument that Congress, through the
ICCTA, only intended preemption of economic regulation of
,QLWLDOO\ WKH ,QWHUVWDWH &RPPHUFH $FW GLG QRW VXEMHFW UDLOURDG the railroads. Finding that Congressional intent was clear and
DEDQGRQPHQWV WR WKH MXULVGLFWLRQ RI WKH ,&& 6HH +D\ILHOG  86 DW
 +RZHYHU ZLWK WKH SDVVDJH RI WKH 7UDQVSRUWDWLRQ $FW RI 
that preemption of rail activity is a valid exercise of
&RQJUHVV VRXJKW WR SUHHPSW DFWLRQV E\ VWDWH DQG ORFDO DXWKRULWLHV WKDW Congressional power under the Commerce Clause, the Ninth
SUHYHQWHG UDLOURDGV IURP DEDQGRQLQJ XQSURILWDEOH OLQHV 5/7' 5\ &RUS Circuit affirmed the STB’s finding that state and local
Y 67%  )G   WK &LU  QRWLQJ WKDW ³&RQJUHVV VRXJKW environmental review laws were preempted pursuant to
WR EDODQFH WKH UDLOURDG FRPSDQLHV¶ QHHG WR GLVSRVH RI WUDFNDJH WKDW ZDV QR § 10501(b)(2).
ORQJHU SURILWDEOH ZLWK WKH SXEOLF¶V QHHG IRU D ZRUNLQJ LQWHUVWDWH WUDFN
V\VWHP´FLWLQJ 6WHYHQ 5 :LOG $ +LVWRU\ RI 5DLOURDG $EDQGRQPHQWV 
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The Fifth Circuit has also found preemption under 49
  )RU WKH PRVW SDUW IURP  XQWLO  &RQJUHVV VHW QR U.S.C. § 10501(b). In Friberg, 267 F.3d at 439, the Fifth
WLPH OLPLW IRU DEDQGRQPHQWV 6HH +D\ILHOG  86 DW  QRWLQJ Circuit ruled that suits against the railroad (KCS) for
WKDW ³>U@DLOURDGV FRQVHTXHQWO\ IRXQG WKHPVHOYHV HQPHVKHG LQ OHQJWK\ negligence were preempted by federal law under 49 U.S.C.
SURFHHGLQJV´ ZKLOH DWWHPSWLQJ WR ³XQEXUGHQ WKHPVHOYHV SURPSWO\ RI
XQSURILWDEOH OLQHV´ &RQVRO 5DLO &RUS Y 67%  )G   '&
§ 10501(b). In that case, the plaintiffs, who operated a
&LU  ³)RU PRVW RI WKLV SHULRG &RQJUHVV VHW QR WLPH OLPLW IRU
landscape nursery, alleged that they lost business and
DEDQGRQPHQW SURFHHGLQJV´ eventually were forced to close their business because their
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state law so conflict that it is impossible for a party to comply DFTXLVLWLRQRIDUDLOOLQHIURPDQDEDQGRQLQJFDUULHU6HH
with both simultaneously, or where enforcement of state law +D\ILHOG155Y&KLFDJR 1:7UDQVS&R86
prevents the accomplishment of the full purposes and 7KH,QWHUVWDWH&RPPHUFH$FWZDVIXUWKHU
objectives of federal law. See Cipollone v. Liggett Group, DPHQGHGE\WKHSDVVDJHRIWKH6WDJJHUV5DLO$FWRI
Inc., 505 U.S. 504, 516 (1992); Friberg v. Kansas City S. Ry. 3XE / 1R   6WDW   ZKLFK DGGHG D
Co., 267 F.3d 439, 442 (5th Cir. 2001). "If the statute IRUFHGVDOH SURYLVLRQ WR WKH IRUPHU  86& † 
contains an express preemption clause, the task of statutory DOORZLQJWKH,&&WRVHWWKHSULFHDQGRWKHUWHUPVRIVDOHZKHQ
construction must in the first instance focus on the plain DSDUW\WRWKHVDOHUHTXHVWHGLW,GDW³7KHXQGHUO\LQJ
wording of the clause, which necessarily contains the best UDWLRQDOHRI†UHSUHVHQWVDFRQWLQXDWLRQRI&RQJUHVV¶
evidence of Congress’ preemptive intent." CSX Transp. Inc. HIIRUWVWRDFFRPPRGDWHWKHFRQIOLFWLQJLQWHUHVWVRIUDLOURDGV
v. Easterwood, 507 U.S. 658, 664 (1993). Although there is WKDW GHVLUH WR XQEXUGHQ WKHPVHOYHV TXLFNO\ RI XQSURILWDEOH
a presumption under the Supremacy Clause that Congress did OLQHV DQG VKLSSHUV WKDW DUH GHSHQGHQW XSRQ FRQWLQXHG UDLO
not intend to preempt state law, "an assumption of nonpre- VHUYLFH´*65RRILQJ3URGV&RY67%)G
emption is not triggered when the State regulates in an area WK&LU³*65RRILQJ,,³7KH6WDJJHUV5DLO$FWRI
where there has been a history of significant federal  QRZ FRGLILHG DW  86& †  ZDV HQDFWHG WR
presence." United States v. Locke, 529 U.S. 89, 108 (2000). DGGUHVVFRQFHUQVDERXWWKHGHWHULRUDWLQJUDLOVHUYLFHSURYLGHG
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As set forth in 49 U.S.C. § 10501(b): FRXQWU\´&RQVRO5DLO&RUSY,&&)G'&
&LU  QRWLQJ WKDW WKH SXUSRVH RI WKH IRUFHGVDOH
(b) The jurisdiction of the Board over--
(1) transportation by rail carriers, and the remedies
provided in this part with respect to rates, classifications,
rules (including car service, interchange, and other
operating rules), practices, routes, services, and facilities
of such carriers; and

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(2) the construction, acquisition, operation, 86& †  DUH WR SUHVHUYH UDLO VHUYLFH IRU VKLSSHUV RYHU D OLQH WKDW
abandonment, or discontinuance of spur, industrial, team, ZRXOG RWKHUZLVH EH DEDQGRQHG ZKLOH SHUPLWWLQJ WKH RZQHU RI DQ
switching, or side tracks, or facilities, even if the tracks 6HH
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are located, or intended to be located, entirely in one 5DLOURDG 7UDQVSRUWDWLRQ 3ROLF\ $FW RI  +HDULQJV RQ 6 EHIRUH
WKH 6HQDWH &RPP RQ &RPPHUFH 6FLHQFH DQG 7UDQVSRUWDWLRQ 6 5HS 1R
State, is exclusive. Except as otherwise provided in this  DW  WK &RQJ VW 6HVV   QRWLQJ WKDW WKLV VHFWLRQ
part, the remedies provided under this part with respect ³VHWV XS D SURFHGXUH ZKHUH UDLO OLQHV DSSURYHG IRU DEDQGRQPHQW PD\ EH
to regulation of rail transportation are exclusive and SXUFKDVHG RU VXEVLGL]HG LQ RUGHU WR FRQWLQXH UDLO VHUYLFH´ +5 5HS 1R
preempt the remedies provided under Federal or State  DW  WK &RQJ G 6HVV   UHSULQWHG LQ 
law. 86&&$1 DW   QRWLQJ WKDW WKLV VHFWLRQ ZLOO ³DVVLVW VKLSSHUV
ZKR DUH VLQFHUHO\ LQWHUHVWHG LQ LPSURYLQJ UDLO VHUYLFH ZKLOH DW WKH VDPH
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FDOFXODWHG PHUHO\ WR WHGLRXVO\ H[WHQG WKH DEDQGRQPHQW SURFHVV´
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SURYLVLRQLV³QRWVLPSO\WKHPDLQWHQDQFHRIUDLOOLQHVEXWWKH from its interpretation of two provisions of the OFA statute:
FRQWLQXDWLRQRIUDLOVHUYLFH´HPSKDVLVLQRULJLQDO the common carrier obligations of § 10904(f)(4)(A) and the
STB’s authority to set the terms and conditions of a forced
$IWHUWKH,&&FHDVHGWRH[LVWHIIHFWLYH-DQXDU\ sale pursuant to § 10904(f)(1). Section 10904(f)(4)(A) bars
SXUVXDQW WR WKH Interstate Commerce Commission a purchaser of a rail line from transferring or discontinuing
Termination $FWRI49 U.S.C. §§ 10101-16106 (1997) service during the two years after the purchase, and restricts
³WKH,&&7$´DXWKRULW\RYHUWKHDEDQGRQPHQWRIUDLOURDG the purchaser from transferring the line to anyone but the
OLQHVSDVVHGWRWKH6XUIDFH7UDQVSRUWDWLRQ%RDUG³WKH67%´ seller for a five-year post-sale period. Thus, the STB acted
6HH  86& †  *6 5RRILQJ ,,  )G DW  within its authority when it recognized that the GSCSA
0LG$PHULFDQ(QHUJ\&RY67%)GQ impeded a line owner’s ability to perform rail operations by
WK&LU5/7'5\&RUSY67%)G conditioning a line owner’s full resumption of service with
WK&LU&RQVRO5DLO&RUSY67%)G the obligation to complete the projected improvements set
'& &LU  QRWLQJ WKDW ³PDQ\ IXQFWLRQV RI WKH ,&& forth in the agreement. It was also reasonable for the STB to
LQFOXGLQJ DXWKRULW\ RYHU DEDQGRQPHQW SURFHHGLQJV ZHUH view the provisions of the GSCSA as an intrusion onto its
WUDQVIHUUHGWRWKH67%LQWKH'HSDUWPHQWRI7UDQVSRUWDWLRQ´ § 10904(f)(1) authority to fix the terms and conditions of an
7KH67%LVQRZWKHIHGHUDODJHQF\ZLWKH[FOXVLYHMXULVGLFWLRQ OFA sale. Noting that "section 10904 represents a clear
RYHU WUDQVSRUWDWLRQ E\ UDLOURDG  )ULHQGV RI WKH $WJOHQ legislative determination that rail service should be preserved
6XVTXHKDQQD7UDLO,QFY67%)GQG whenever there is an offeror willing to provide for continued
&LU  FLWLQJ  86& † D  7KXV LI D service," the STB did not act unreasonably in voiding the
UDLOURDGOLQHIDOOVZLWKLQLWVMXULVGLFWLRQWKH67%¶VDXWKRULW\ GSCSA to the extent it imposed obligations on parties other
RYHU DEDQGRQPHQW LV ERWK H[FOXVLYH DQG SOHQDU\  6HH than Boardman Township and RVI, and to the extent it
3UHVHDXOW Y ,&&  86    FLWLQJ &KLFDJR required construction of an overpass or underpass before the
1RUWK:HVWHUQ7UDQVS&RY.DOR%ULFN 7LOH&R86
5/7'5\&RUS)GDW resumption of rail service. Because the STB has acted
rationally and in accordance with law, we therefore affirm the
,QDGGLWLRQPRVWRIWKHSURYLVLRQVRIWKHIRUPHU,QWHUVWDWH order voiding the GSCSA.
&RPPHUFH$FWZHUHUHHQDFWHGLQWKH ICCTA. 0LG$PHULFDQ
)GDWQ6SHFLILFDOO\WKH,&&7$UHFRGLILHGWKH Finally, we note that the ICCTA preempts the Ohio state
IRUPHU†DV†DPHQGLQJWKHVWDWXWHWROLPLWWKH statutes in question to the extent that they intrude upon the
SHULRGLQZKLFKWKH67%VHWWKHWHUPVDQGFRQGLWLRQVRIWKH jurisdiction of the STB with regard to the regulation of rail
IRUFHGVDOHWRWKLUW\GD\VDQGWKHGXUDWLRQRIDQ\VXEVLG\IRU transportation under § 10501(b). Under the Supremacy
Clause, U.S. Const. art. 6, cl. 2, federal law preempts state or
local law in various ways: (1) express preemption where the
 intent of Congress to preempt state law is clear and explicit;
,Q 3UHVHDXOW Y ,&&  86    WKH &RXUW QRWHG WKDW
&RQJUHVV H[SUHVVHG FRQFHUQ DERXW ³WKH VKULQNLQJ UDLO WUDFNDJH´  86
(2) field preemption where Congress’ regulation of a field is
DW  $V QRWHG E\ -XVWLFH %UHQQDQ ³,Q  WKH 1DWLRQ¶V UDLOZD\ V\VWHP
so pervasive or the federal interest is so dominant that an
UHDFKHG LWV SHDN RI  PLOHV >LQ @ RQO\ DERXW  PLOHV intent can be inferred for federal law to occupy the field
>ZHUH@ LQ XVH DQG H[SHUWV SUHGLFW WKDW  PLOHV ZLOO EH DEDQGRQHG exclusively; and (3) conflict preemption, where federal and
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is reactivated for rail service to submit the plans ". . . and FRQWLQXHGUDLOVHUYLFH6HH1DW¶O$VV¶QRI5HYHUVLRQDU\3URS
metes and bounds descriptions of any property to be 2ZQHUVY67%)G'&&LU (noting
appropriated for the construction of the Crossing Project that "[t]he ICCTA made some changes to the abandonment
. . . ," a later provision overrides the time period and application process, such as eliminating the processing
requires, among other things, completion of the project timetable and requiring that offers of financial assistance
and submission to [Boardman Township] of a 2-year [OFA] be filed within four months of an abandonment
maintenance bond on the improvements, before rail application, see 49 U.S.C. § 10904(c)").
service can be resumed in full.
$ UDLO FDUULHU SURYLGLQJ WUDQVSRUWDWLRQ VXEMHFW WR WKH
559HQWXUHV 2000 WL 1125904, at *2. MXULVGLFWLRQ RI WKH 67% PD\ DEDQGRQ LWV UDLOURDG OLQH RU
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On appeal, Boardman Township challenges the STB’s UDLOURDGOLQHRQO\DVDXWKRUL]HGXQGHUWKHVWDWXWH86&
decisions declaring the GSCSA void and unenforceable † D7RDEDQGRQDUDLOURDGOLQHRUGLVFRQWLQXH
against CCPA, claiming that the purpose of the GSCSA was RSHUDWLRQRIUDLOVHUYLFHRQDUDLOOLQHDUDLOFDUULHUPXVWILOH
not to interfere with rail operations, but to secure the health, DQ DSSOLFDWLRQ ZLWK WKH 67% VHHNLQJ SULRU DSSURYDO RU DQ
safety, and well-being of the residents of Boardman Township H[HPSWLRQ  86& † † D D$  
pursuant to Ohio Rev. Code § 519.02, and to avoid the &)5 ††   VHH )ULHQGV RI WKH $WJOHQ
imposition of liability on political subdivisions "for injury, 6XVTXHKDQQD7UDLO)GDW³$UDLOFDUULHULQWHQGLQJ
death, or loss to persons or property caused by their failure to WRDEDQGRQDQGWREHUHOHDVHGIURPLWVREOLJDWLRQVWRUHWDLQRU
keep public roads, highways, streets, avenues, alleys, RSHUDWHDQ\SDUWRILWVUDLOURDGOLQHVPXVWILOHDQDSSOLFDWLRQ
sidewalks, bridges, aqueducts, viaducts, and public grounds WRGRVRZLWKWKH67%DQGVXFKDEDQGRQPHQWPXVWDGKHUHWR
within the political subdivisions open, in repair, and free from FHUWDLQ HVWDEOLVKHG SURFHGXUHV´  A line owner may
nuisance" under Ohio Rev. Code § 2744.02(B)(3). Boardman "abandon any part of its railroad lines," 49 U.S.C.
Township contends that the STB’s goal of continued rail § 10903(d)(1), but cannot do so without the permission of the
service, where appropriate, should not wholly displace its STB. 49 U.S.C.§ 10903(a)(1)(A); VHH .XOPHU DQG
concerns for public safety and its duty to its citizens arising 6FKXPDFKHUY67%)GWK&LU
under state law.
At the outset, we note that Boardman Township entered 
3XUVXDQW WR  86& † D UDLOURDGV DV FRPPRQ FDUULHUV
into the GSCSA with RVI on November 5, 1999. Because KDYH DQ REOLJDWLRQ WR SURYLGH UDLO VHUYLFH XSRQ UHDVRQDEOH UHTXHVW EXW
RVI had no legal right to transfer any property interests ³WKH FRPPRQ FDUULHU REOLJDWLRQ LV QRW DEVROXWH´ *6 5RRILQJ ,,  )G
associated with the rail line after filing its abandonment DW  $EDQGRQPHQW FRQVLVWV RI ³D SHUPDQHQW RU LQGHILQLWH FHVVDWLRQ RI
petition, we thereby uphold the STB’s invalidation of the UDLO VHUYLFH ZKLFK WHUPLQDWHV D UDLO FDUULHU¶V SXEOLF VHUYLFH REOLJDWLRQ´
GSCSA agreement. *LEERQV Y 8QLWHG 6WDWHV  )G   WK &LU  "An
abandoned railroad corridor is one that is no longer used for rail service
In addition, we note that the STB acted within its authority and is removed from the national transportation system." Nat’l Ass’n of
Reversionary Prop. Owners, 158 F.3d at 137 n.1 (citing Presault, 494
by invalidating the agreement on public policy grounds. U.S. at 6 n.3). ³$ OLQH WKDW LV QR ORQJHU LQ XVH EXW KDV EHHQ RIILFLDOO\
Here, the STB’s decision to invalidate the GSCSA stemmed DEDQGRQHG PD\ EH UHDFWLYDWHG ODWHU DQG LV WHUPHG µGLVFRQWLQXHG¶´ ,G
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³5DLOFDUULHUVPXVWREWDLQ67%DXWKRUL]DWLRQWRDEDQGRQUDLO 5. The STB did not err in voiding the "Grade Separated
VHUYLFHRYHUWKHLUOLQHV´*65RRILQJ3URGV&RY67% Crossing Settlement Agreement" ("GSCSA") entered
)GWK&LU³*65RRILQJ,´(WKDQ$OOHQ into between RVI and Boardman Township
,QFY0DLQH&HQW55&R)6XSS'9W
QRWLQJWKDW³WKHTXDVLSXEOLFQDWXUHRIUDLOURDGVHQWDLOV In its January 7, 2000 decision, the STB granted CCPA’s
DKLJKHUGHJUHHRISXEOLFUHVSRQVLELOLW\WKDQLVUHTXLUHGRI request to declare the GSCSA unenforceable against it,
PRVW SULYDWH FRPSDQLHV´  A rail line owner is generally finding that enforcement of the GSCSA against CCPA would
obligated to maintain a diagram of the rail system it operates, unreasonably interfere with CCPA’s purchase of the rail line
and if the owner wishes to abandon, it must "identify each and its future fulfillment of common carrier obligations. The
railroad line for which the rail carrier plans to file an STB reiterated these conclusions in its October 4, 2000
application to abandon." 49 U.S.C. § 10903(c)(2)(B). 49 decision, denying Boardman Township’s request for a stay
C.F.R. § 1152.22(a)(4) further specifies that the information pending appeal of the January 7, 2000 decision. In both
comprising the abandonment application include: decisions, the STB viewed the GSCSA as contrary to the
public interest in continued rail service. The STB’s January
[a d]etailed map of the subject line on a sheet not larger 7, 2000 decision provides a summary of the provisions of the
than 8x10 ½ inches, drawn to scale, and with the scale GSCSA:
shown thereon. The map must show, in clear relief, the
exact location of the rail line to be abandoned or over Specifically, the [GSCSA] states that "RVI or its
which service is to be discontinued and its relation to successors and assigns (hereinafter referred to as ‘Line
other rail lines in the area, highways, water routes, and Owner’) agree to undertake the necessary planning,
population centers. construction, and future maintenance of a grade separated
crossing at State Road 224 and at other such road
49 C.F.R. § 1152.22(a)(4). crossings as may be determined by [Boardman
Township] . . . ." Designating it as the "Crossing
7KH 67% DXWKRUL]HV OLQH DEDQGRQPHQWV LQ WZR ZD\V Project" the [GSCSA] requires the Line Owner, within 3
5HGPRQG,VVDTXDK5\3UHV$VV¶QY67%)G months from the date the line is reactivated for continued
 Q  WK &LU   )LUVW WKH 67% PD\ SHUPLW WKH rail service, to prepare and submit for the approval of
DEDQGRQPHQW RI D UDLOURDG OLQH E\ D UDLO FDUULHU RU WKH [Boardman Township] and various state authorities
GLVFRQWLQXDQFHRIUDLOVHUYLFHLILWILQGVWKDWSUHVHQWRUIXWXUH detailed plans and cost estimates for the acquisition of
SXEOLFFRQYHQLHQFHDQGQHFHVVLW\VXSSRUWVVXFKDEDQGRQPHQW additional property necessary for the construction of the
RUGLVFRQWLQXDQFH86&†G7RLPSOHPHQW new grade separated crossing, including adjustments to
WKLVVWDQGDUGWKH67%EDODQFHVWKHSRWHQWLDOKDUPWRDIIHFWHG the public highway, which will carry the rail line over or
VKLSSHUV DQG FRPPXQLWLHV DJDLQVW WKH SUHVHQW DQG IXWXUH under Route 224 and other designated road crossings.
EXUGHQ WKDW FRQWLQXHG RSHUDWLRQV ZRXOG LPSRVH RQ WKH According to the [GSCSA], the Line Owner is
UDLOURDGDQGRQLQWHUVWDWHFRPPHUFH6HH&RORUDGRY8QLWHG responsible for all the costs and expenses associated with
6WDWHV865HGPRQG,VVDTXDK the Crossing Project. While these specific terms state
)G DW  QRWLQJ WKDW ³&RQJUHVV VRXJKW WR EDODQFH WKH that the Line Owner has 3 months from the date the line
UDLOURDG FRPSDQLHV¶ QHHG WR PDQDJH LWV WUDFNV LQ DQ
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Kovalchick contract initially and it should not be able to HFRQRPLFDOO\HIILFLHQWPDQQHUZLWKWKHSXEOLF¶VQHHGIRUD
profit from withholding information pertinent to the OFA IXQFWLRQLQJLQWHUVWDWHUDLOURDGV\VWHP´7KH67%PD\DOVR
process. To hold otherwise would be to reward RVI for DXWKRUL]HDQDEDQGRQPHQWE\JUDQWLQJDQH[HPSWLRQIURPWKH
undermining the integrity of the OFA process. Moreover, we FHUWLILFDWLRQSURFHVV6HH86&†D+RZHYHU
note that RVI does not contend that the Kovalchick contract RQFHDUDLOOLQHKDVEHHQSURSHUO\DEDQGRQHGWKH67%ORVHV
is unenforceable or that RVI would be able to sell the track to MXULVGLFWLRQ3UHVHDXOW86DWQ5/7'5\&RUS
anyone other than Kovalchick. Therefore, the STB provided )GDW&RQVRO5DLO&RUS)GDW
a reasoned explanation for revaluing the track and materials
in accordance with the terms of the Kovalchick contract. 7KH ,&&7$ SURYLGHV IRU RIIHUV RI ILQDQFLDO DVVLVWDQFH
2)$ WR DYRLG WKH DEDQGRQPHQW RI UDLO OLQHV  86&
b. Escrow of Funds for Repairs †   &)5 †  DQG IRU WKH VDOH VXEMHFW WR
FRQGLWLRQVLPSRVHGE\WKH67%RIDEDQGRQHGUDLOSURSHUWLHV
RVI also challenges the STB’s action in the October 4, WKDW DUH DSSURSULDWH IRU SXEOLF XVH  86& † 
2000 decision requiring CCPA to place $375,000 of the 6HFWLRQ E GLUHFWV D UDLO FDUULHU VHHNLQJ DXWKRULW\ WR
purchase price in an escrow account to ensure that RVI paid DEDQGRQ D OLQH SXUVXDQW WR  86& †  WR SURYLGH
for restorations to the track and signals. The STB ordered the SURPSWO\ WR D SDUW\ FRQVLGHULQJ DQ 2)$ D UHSRUW RQ WKH
creation of the escrow account because RVI had authorized SK\VLFDOFRQGLWLRQRI³WKDWSDUWRIWKHUDLOURDGOLQHLQYROYHG
state workers to pave over parts of the track and damage LQWKHSURSRVHGDEDQGRQPHQW´WKHWUDIILFUHYHQXHDQGRWKHU
signals during its ownership of the embargoed line. RVI GDWDQHFHVVDU\WRGHWHUPLQHWKHDPRXQWRIDQQXDOILQDQFLDO
argues that the escrow order was arbitrary because it was not DVVLVWDQFHQHHGHG³WRFRQWLQXHUDLOWUDQVSRUWDWLRQRYHUWKDW
under a legal obligation to maintain the line for common SDUWRIWKHUDLOURDGOLQH´DQGDQHVWLPDWHRIWKHPLQLPXP
carrier operations due to its embargo status at the time that SXUFKDVHSULFHUHTXLUHG³WRNHHSWKHOLQHRUDSRUWLRQRIWKH
RVI authorized the pavement of parts of the line and the OLQHLQRSHUDWLRQ´86&†E
disconnection of signals. RVI also claims that the STB’s
escrow order was an unwarranted punitive measure. 7KH 2)$ SURYLVLRQV RI WKH VWDWXWH JXDUDQWHH DQ\
³ILQDQFLDOO\UHVSRQVLEOH´SDUW\WKHULJKWWRDFTXLUHDUDLOOLQH
RVI fails to demonstrate that the STB’s decisions in this WR SURYLGH IRU FRQWLQXHG UDLO VHUYLFH  86& † 
regard were arbitrary. Although RVI was not obligated to 8QGHU†FDSURVSHFWLYH2)$SXUFKDVHU³PD\RIIHU
provide service on the line during the pendency of the WRVXEVLGL]HRUSXUFKDVHWKHUDLOURDGOLQHWKDWLVVXEMHFWRI´DQ
embargo, see GS Roofing I, 143 F.3d at 391, the STB acted DEDQGRQPHQWDSSOLFDWLRQ.XOPHU)GDW³7KH
reasonably in finding that RVI had an obligation to pay for 2)$SURYLVLRQVFUHDWHDIRXUPRQWKZDLWLQJSHULRGZKHUHLQ
any damage to the line. Further, the record shows that, in a µDQ\SHUVRQPD\RIIHUWRVXEVLGL]HRUSXUFKDVHWKHUDLOURDG
series of letters from RVI Project Manager Dennis Matey to OLQH WKDW LV WKH VXEMHFW¶ RI DQ DEDQGRQPHQW DSSOLFDWLRQ
state and local officials in Ohio, RVI acknowledged that it †F´A party must file its OFA within ten days of
would be responsible for any repair and reconnection costs. a decision from the STB granting a petition for abandonment
Considering RVI’s conduct since acquiring the rail line, the or exemption. 49 U.S.C. § 10904(c); 49 C.F.R.
STB, quite wisely, required an escrow of funds to repair the § 1152.27(c)(1)(i)(B). After a prospective purchaser has
damage to the track done with RVI’s authorization. "offered financial assistance regarding that part of the railroad
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line to be abandoned or over which rail transportation is to be  7KH67%¶VGHFLVLRQVWRORZHUWKHVDOYDJHYDOXHRIWKH
discontinued," 49 U.S.C. § 10904(d)(1) obligates the STB to WUDFN DQG PDWHULDOV DQG WR RUGHU 59, WR HVFURZ
decide if the prospective purchaser is "financially  RI WKH VDOH SURFHHGV WR SD\ IRU WUDFN
responsible." 8QGHU  86& † D D ³ILQDQFLDOO\ UHVWRUDWLRQV DQG UHSDLUV ZHUH QRW DUELWUDU\ RU
UHVSRQVLEOHSHUVRQ´LVGHILQHGWREH FDSULFLRXV
DSHUVRQZKR± D 'RZQZDUG5HYDOXDWLRQRI7UDFNDQG0DWHULDOV
 LV FDSDEOH RI SD\LQJ WKH FRQVWLWXWLRQDO PLQLPXP 59, FKDOOHQJHV WZR RWKHU DFWLRQV RI WKH 67% LQ LWV
YDOXHRIWKHUDLOURDGOLQHSURSRVHGWREHDFTXLUHGDQG 2FWREHUGHFLVLRQ)LUVW59,FRQWHQGVWKDWWKH67%
DFWHGDUELWUDULO\E\UHYDOXLQJWKHWUDFNDQGPDWHULDOV,QLWV
LVDEOHWRDVVXUHWKDWDGHTXDWHWUDQVSRUWDWLRQZLOOEH -DQXDU\   GHFLVLRQ WKH 67% EDVHG LWV LQLWLDO WUDFN
SURYLGHGRYHUVXFKOLQHIRUDSHULRGRIQRWOHVVWKDQ YDOXDWLRQRQDILUPRIIHUIURP$ .5DLOURDG0DWHULDOV,QF
\HDUV WREX\DQGUHPRYHWKHWUDFNIRU7KH67%UHGXFHG
WKLVDPRXQWE\WRUHIOHFWQHHGHGUHVWRUDWLRQVLQJUDGH
86&†D If a party files a timely OFA, and the FURVVLQJV DUULYLQJ DW D QHW VDOYDJH YDOXH RI 
STB finds that the party is "financially responsible," then the 6HYHUDOPRQWKVODWHUWKH67%UHYLVLWHGLWVWUDFNDQGPDWHULDOV
STB must postpone the abandonment of the line. 49 U.S.C. YDOXDWLRQ DIWHU UHFHLYLQJ QHZ HYLGHQFH IURP &&3$
§ 10904(d)(2). %HWZHHQWKH-DQXDU\DQG2FWREHUGHFLVLRQV&&3$
VXEPLWWHGHYLGHQFHRI59,¶VFRQWUDFWVHOOLQJWKHWUDFN
Postponement of abandonment remains in effect until the VDOYDJHULJKWVWR.RYDOFKLFNIRU7KH67%GHFLGHG
line owner and the prospective OFA purchaser (offeror) have WKDWWKHVDOHQXOOLILHGVXEVHTXHQWILUPSXUFKDVHRIIHUV
come to an agreement on the terms of sale, or until the STB DQGWKDWWKHYDOXHRIWKHWUDFNFRXOGQRWH[FHHGWKHDPRXQW
sets the terms of sale upon the request of either the line owner 59,KDGUHFHLYHGDFFRUGLQJWRFRQWUDFW
or purchaser. 49 U.S.C. § 10904(d)(2)-(f).Pursuant to 49
C.F.R. § 1152.27(h)(3), "[t]he offeror has the burden of proof &RQWUDU\WR59,¶VFRQWHQWLRQWKH67%¶VGHFLVLRQWRUHGXFH
as to all issues in dispute." See Iowa Terminal Ry. Co. v. WKHVDOYDJHYDOXHZDVQRWDUELWUDU\RUFDSULFLRXV$OWKRXJK
ICC, 853 F.2d 965, 969 (D.C. Cir. 1988) (noting that the 59,PDLQWDLQVWKDWWKH67%DFWHGDUELWUDULO\LQOLPLWLQJWKH
buyer "must present sufficient evidence of the line’s value to WUDFNVDOYDJHYDOXHWRWKHDPRXQWUHFHLYHGIURPWKH
meet that burden"). When setting the terms and conditions of .RYDOFKLFNFRQWUDFW because the contract with Kovalchick did
a sale of a rail line, the STB cannot set a price lower than the not concern the fair market value of the track in 2000, and
"fair market value of the line." 49 U.S.C. § 10904(f)(1)(B). because the contract with Kovalchick included a deeply
Under § 10907(b)(2), the "constitutional minimum value of discounted salvage value based on the STB’s future
a particular railroad line shall be presumed to be not less than abandonment authorization, the STB properly points out that
the net liquidation value of such line or the going concern RVI would not have been able to sell the track for any more
value of such line, whichever is greater." 49 U.S.C. than it had received in 1996. Further, the STB justifies its
§ 10907(b)(2); 49 C.F.R. § 1152.27(h)(6); GS Roofing II, 262 track revaluation, as stated in the October 4, 2000 decision, on
F.3d at 771 (noting that "Congress authorized the Board, the ground that RVI failed to come forward with the
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assembled corridor." 559HQWXUHV:/DW under particular circumstances, to force the sale of a railroad
6HH3RUWODQG7UDFWLRQ&R±$EDQGRQPHQW([HPSWLRQ± line at its ‘constitutional minimum value’ to a ‘financially
LQ 0XOWQRPDK  &ODFNPDV &RXQWLHV 'RFNHW 1R $% responsible person’").
6XE1R;:/DW
'HFLGHG-DQ
DFFHSWLQJFRUULGRUYDOXDWLRQRQWKHEDVLVRIDQH[HFXWHGVDOHV 49 U.S.C. § 10904(f)(2) gives an offeror ten days in which
FRQWUDFW to withdraw the offer to purchase a rail line following a
decision of the STB setting the terms of the sale. See also 49
,QGHFLGLQJWKHYDOXDWLRQLVVXHZHDUHFRQVWUDLQHGE\WKH C.F.R. § 1152.27(h)(7). By statute, only the offeror is
QDUURZ VWDQGDUG RI UHYLHZ DSSOLFDEOH WR DJHQF\ GHFLVLRQV authorized to withdraw from the terms of a STB-directed sale.
ZKLFKJHQHUDOO\UHTXLUHVDIILUPDQFHRIWKH67%¶VYDOXDWLRQ 49 U.S.C. § 10904(f)(2). Without a withdrawal by the offeror
GHFLVLRQV$VQRWHGLQ,RZD7HUPLQDO within the ten-day period, the STB’s decision becomes
binding on both parties. 49 U.S.C. § 10904(f)(2);.XOPHU
,QFRQVLGHULQJHDFKHOHPHQWRIWKHYDOXDWLRQRUGHUZH )GDW³,IWKH67%ILQGVWKDWDQRIIHUPHHWVFHUWDLQ
DUHPLQGIXOWKDWWKH>67%¶V@GHFLVLRQ³PXVWEHXSKHOGLI FULWHULDWKHUDLOURDGLVIRUFHGWRVHOOWKHOLQHWRWKHRIIHURU
EDVHGRQWKHUHFRUGEHIRUHLWWKH>67%¶V@GHFLVLRQLVQRW DFFRUGLQJ WR WKH WHUPV QHJRWLDWHG E\ WKH SDUWLHV RU ZKHQ
DUELWUDU\RUFDSULFLRXV´,OOLQRLV&HQW*XOI55&RY QHFHVVDU\WHUPVLPSRVHGE\WKH67%´2QFHWKHUDLOOLQH
,&&)GWK&LU:KLOHZHPD\ KDVEHHQDFTXLUHGWKHSXUFKDVHUPD\QRWGLVFRQWLQXHVHUYLFH
QRWVXEVWLWXWHRXUMXGJPHQWIRUWKDWRIWKHDJHQF\ZH IRU DW OHDVW WZR \HDUV   86& † I$ Nat’l
PXVW QHYHUWKHOHVV VDWLVI\ RXUVHOYHV WKDW WKH >67%@ Ass’n of Reversionary Prop. Owners, 158 F.3d at 138 n.4
FRQVLGHUHGDOOUHOHYDQWIDFWRUVDQGSURYLGHGDUHDVRQHG (noting that abandonment authorization in accordance with
H[SODQDWLRQIRULWVGHFLVLRQ the exemption procedures under § 10502 is available "when
,RZD7HUPLQDO)GDWFLWLQJ0RWRU9HKLFOH0IUV no local traffic has run on the line in at least two years").
$VV¶Q  86 DW   $SSO\LQJ WKLV QDUURZ VWDQGDUG RI %6WDWHPHQWRI)DFWV
UHYLHZZHILQGWKDWWKH67%GLGQRWDFWLQDQDUELWUDU\RU
FDSULFLRXVIDVKLRQE\UHIXVLQJWRFUHGLWDOORI59,¶VFRUULGRU 7KHVHFRQVROLGDWHGFDVHVLQYROYHDPLOHUDLOURDGOLQH
YDOXDWLRQHYLGHQFH$VWKH67%SRLQWVRXWLQLWVDUJXPHQWV UXQQLQJIURP2000 WL 1801264, at *1 6HUYLFH'DWH'HF particularly an 11.7-mile aerial easement RVI had earlier
To that end, RVI promptly sold the future right to salvage the granted to Ohio Edison Company. RVI had included with its
line’s tracks and materials to another company. RVI also evidentiary submissions evidence of a land easement to First
immediately canceled the lease of the Ohio & Pennsylvania Energy Company covering the same tract, but the STB
Railroad Company ("OPRC"), the only operator authorized to concluded that including that easement in the valuation would
provide service on the line, thus terminating rail service for permit RVI to receive double compensation for the land. The
several shippers on the rail line, including Darlington Brick STB also refused to consider evidence submitted by RVI
and Clay Products Company ("Darlington Brick") and Insul pertaining to the sale of the four-acre parcel to the Park
Products, Inc. ("Insul"). R.R. Ventures, 2001 WL 41202, at District, concluding that RVI had failed to distinguish its
*1. location from the 20.6-acre easement to the Park District, and
easement proposals from three other entities. The STB
As a consequence, OPRC declared an embargo on concluded that RVI had showed only that the entities had
November 19, 1996, stating the cancellation of its lease as the obtained funding for trails, not that they had entered into an
cause. However, upon receiving complaints from Darlington agreement with RVI.
Brick and Insul, the STB’s Office of Compliance and
Enforcement ("OCE") investigated the cessation of rail Applying the proper burden of proof standard, the STB, in
service. Thereafter, the STB reached an agreement with the its January 7, 2000 decision, determined that RVI’s evidence
parties for service to be restored, and the embargo was was less authoritative in comparison to CCPA’s evidence.
canceled. RVI also agreed to seek belated authority from the The STB explained that it did not ordinarily accept
STB to acquire the line. However, on December 18, 1996, assembled-corridor valuation, absent executed sales contracts
about one week after service on the line was restored, a for the entire corridor. See Boston & Maine Corp. 
weather-related washout occurred that again prevented rail Abandonment  In Hartford & New Haven Counties, Conn.,
STB Docket No. AB-355 (Sub-No. 23), 1998 WL 348755, at
*3 (Service Date July 1, 1998). In its October 4, 2000
 decision, the STB further explained: "In setting terms and
³$Q HPEDUJR LV µDQ HPHUJHQF\ PHDVXUH SODFHG LQ HIIHFW EHFDXVH RI
conditions of a sale under section 10904, we cannot credit

VRPH GLVDELOLW\ RQ WKH SDUW RI WKH FDUULHU ZKLFK PDNHV WKH ODWWHU XQDEOH
speculative evidence, but rely upon firm bids (from a
)G DW  TXRWLQJ   )
SURSHUO\ WR SHUIRUP LWV GXW\ DV D FRPPRQ FDUULHU¶´ *6 5RRILQJ ,
purchaser) or signed contracts in establishing the value of an
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At the time the STB rendered its January 7, 2000 decision, service on the line. See R.R. Ventures, Inc.  Acquisition and
RVI and CCPA produced estimates of land value according Operation Exemption  Youngstown & S. Ry. Co., STB
to two methodologies. RVI contended that the highest and Finance Docket No. 33385, 1997 WL 392877, at *1 (Service
best value of the land was as a single non-rail corridor, with Date July 15, 1997).
a small number of purchasers obtaining easements or rights-
of-way over segments of the corridor. (J.A. at 1085-1119.) Thereafter, on January 3, 1997, RVI filed a notice of
CCPA proffered evidence of value according to the "across exemption invoking the class exemption provision at 49
the fence" ("AFT") methodology: dividing the tract into a C.F.R. 1150.31(a)(1) for retroactive authorization of its
large number of parcels, valuing each parcel as if sold to purchase of the rail line, stating that it had been unaware of
owners of adjoining parcels, and totaling the values of the the need to obtain the STB’s approval to acquire the line and
parcels. RVI’s assembled corridor methodology produced a that it had purchased the line "for the purpose of conducting
value of $1,472,930, while CCPA’s "AFT" methodology rail freight common carrier operations" on it.,QUHVSRQVH
estimated the land value at $450,000. &&3$ DQG WKH 2KLR 5DLO 'HYHORSPHQW &RPPLVVLRQ
³25'&´ILOHGSHWLWLRQVWRUHMHFWUHYRNHRUVWD\WKHQRWLFH
As between the two methodologies, the STB decided RIH[HPSWLRQFODLPLQJWKDW59,GLGQRWLQWHQGWRRSHUDWHWKH
CCPA’s approach was more appropriate. Specifically, the OLQHDQGWKDWLWKDGSUHYLRXVO\PDGHDUUDQJHPHQWVWRVFUDSWKH
STB rejected RVI’s assembled corridor methodology, OLQH,QDQRUGHUHQWHUHGRQ-DQXDU\WKH67%UHMHFWHG
explaining that "[u]nless there is a specific documented 59,¶V QRWLFH RI H[HPSWLRQ EHFDXVH 59, KDG QRW
interest expressed by a potential purchaser of an intact DFNQRZOHGJHG LWV FRPPRQ FDUULHU REOLJDWLRQV WR SURYLGH
corridor, we do not consider this to be an acceptable method VHUYLFHRQWKHOLQHDQGEHFDXVH&&3$KDGDOOHJHGWKDW59,
of valuation for [net liquidation value] purposes." Although ZRXOGQRWRSHUDWHRUDUUDQJHIRUDQRWKHUSDUW\WRRSHUDWHWKH
RVI proffered copies of purchase agreements from the Park OLQH 6HH R.R. Ventures, Inc.  Acquisition and Operation
District and Ohio Edison Company for trail and utility Exemption  Youngstown and S. Ry. Co., STB Finance
easements, the STB rejected RVI’s estimate of value as Docket No. 33336, 1997 WL 7537, at *1-2 (Service Date Jan.
insufficient because the agreements pertained to portions of 9, 1997).
the corridor, rather than the corridor as a whole. In contrast,
the STB accepted CCPA’s appraisal as "complete and Subsequently, the Ohio & Pennsylvania Railroad Company
adequately supported and its . . . values appropriately ("OPRC"), ORDC, CCPA, the North East Ohio Trade &
adjusted," describing the values stated in the appraisal as Economic Consortium, Mahoning County Commissioners,
"reasonable based on the comparable sales data presented." and other public agencies provided funding for the repairs to
Having accepted CCPA’s evidence, and subtracting $100,000 the line. However, when the Wintrow Construction
to represent an assignment by RVI for lease and interest Corporation ("Wintrow") attempted on January 31, 1997 to
income, the STB reached a land value of $350,000.
Thereafter, in its October 4, 2000 decision, the STB 
8QGHU  86& †  D SDUW\ WKDW LV QRW D UDLO FDUULHU PD\
revisited the land valuation. The STB decided to adjust the LQYRNH WKH SURFHGXUHV IRU FODVV H[HPSWLRQ XQGHU  &)5  
land value upward to include an executed sale agreement for  WR DFTXLUH DQ DFWLYH UDLO OLQH UDWKHU WKDQ ILOH D GHWDLOHG DSSOLFDWLRQ
XQGHU  &)5   
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obtain, through a general release, RVI’s permission to repair 559HQWXUHV:/DW
FLWLQJ&KLFDJRDQG
the rail line in order to restore rail service, RVI rejected 1RUWK:HVWHUQ7UDQVS&R$EDQGRQPHQW,&&
Wintrow’s general release form and refused to permit the /DNH*HQHYD/LQHDII¶GVXEQRP&KLFDJRDQG
necessary repairs to be made. As a result, the ORDC and 1RUWK:HVWHUQ7UDQVS&RY8QLWHG6WDWHV)G
CCPA filed a declaratory action on February 5, 1997 to WK&LU
prevent RVI from interfering with the repairs. On the same
date, the STB’s OCE sent a letter to RVI giving it 20 days to As previously stated, the regulations place the burden of
refile for the requisite authority to acquire the rail line and proof on the offeror for all issues in dispute concerning the
admonishing it not to interfere with OPRC’s rail operations terms and conditions of the sale. 49 C.F.R. § 1152.27(h)(3).
in the interim. See R.R. Ventures, 1997 WL 392877, at *2. In its January 7, 2000 decision, the STB noted:
In its response on February 25, 1997, RVI claimed that it had
reached an agreement with the contractor hired to repair the Placing the burden of proof on the offeror is particularly
flood-damaged track, and that repairs would begin on appropriate in these proceedings because the offeror may
February 28, 1997 and would take about two months to withdraw its offer at any time prior to its acceptance of
complete. Id. RVI also indicated its intention to file for the terms and conditions that we establish pursuant to a
legal acquisition of the rail line within 30 days of its letter. Id. party’s request. The rail carrier, on the other hand, is
required to sell its line to the offeror at the price we set,
Given these assurances, the STB subsequently authorized even if the railroad views the price as too low.
RVI’s retention of the line. A verified notice of exemption
allowing RVI to acquire and operate the rail line was 559HQWXUHV 2000 WL 1125904, at *5. The STB explained
published on April 24, 1997. Notwithstanding the concerns how this burden affected its method of valuing rail lines as
of the ORDC and CCPA that "RVI has not demonstrated the follows:
remotest interest in undertaking the obligations and
responsibilities involved in an acquisition of an active line for The burden of proof standard requires that, absent
the purpose of conducting continuing rail freight common probative evidence supporting the offeror’s estimates, the
carrier obligations," the STB denied their petition for a rail carrier’s evidence is accepted. In areas of
declaratory order on July 15, 1997, as well as their petition to disagreement, the offeror must present more specific
reject or revoke the notice of exemption. To allay the evidence or analysis or provide more reliable and
concerns of the ORDC and CCPA, however, the STB verifiable documentation than that which is submitted by
required RVI to "submit biweekly reports to the OCE on the the carrier. Absent specific evidence supporting the
status of the lines’ restoration and to provide specific details offeror’s estimates and contradicting the rail carrier’s
of the cause of any delays in restoring service." Id. at *3. estimates, the fact that the burden of proof is on the
offeror requires that we accept the carrier’s estimates in
Thereafter, RVI filed reports infrequently, and rail service these forced sales proceedings.
was restored for only a short period of time in 1997. After
repairs funded by state and local agencies were made to the Id.line, another washout occurred. After this washout, RVI
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intervenor’s argument regarding demand for an evidentiary refused to fund any repairs and did not cooperate with the
hearing because another party "did not assert this specific public agencies that sought to restore service, despite the
claim before us") (citing Ill. Bell Tel. v. FCC, 911 F.2d 776, repeated requests of local shippers and local and state
786 (D.C. Cir. 1990)). Accordingly, we DIILUPthe STB’s government officials to resume rail service. See R.R.
October 4, 2000 decision to the extent that it ordered RVI to Ventures, Inc.  Abandonment Exemption  Between
transfer its entire fee simple interest in the rail line as Youngstown, OH, and Darlington, PA, in Mahoning and
described in RVI’s abandonment petition. Columbiana Counties, OH, and Beaver County, PA, STB
Docket No. AB-556 (Sub-No. 1X), 1999 WL 23286, at *2
3. The STB’s determination of the land value of the line (Service Date Jan. 22, 1999). 6SHFLILFDOO\ ,QVXO PDGH D
was not unreasonable or arbitrary IRUPDO UHTXHVW RQ 'HFHPEHU   IROORZHG E\
'DUOLQJWRQ%ULFNRQ-DQXDU\IRUUDLOVHUYLFHWREH
When setting the terms and conditions of a sale of a rail UHVWRUHGWRWKHLUIDFLOLWLHV
line, the STB cannot set a price lower than the "fair market
value of the line." 49 U.S.C. § 10904(f)(1)(B). Pursuant to $W WKLV SRLQW 59, ILOHG D QRWLFH RI FODVV H[HPSWLRQ RQ
49 U.S.C. § 10907(b)(1), the STB is directed to set the -DQXDU\WRDEDQGRQWKHUDLOOLQHFODLPLQJWKDW³WKH
purchase price for the forced sale of a rail line at "not less OLQHLVQRWHFRQRPLFDOO\YLDEOH´DQGWKDW³LWVKRXOGEHDOORZHG
than the constitutional minimum value." The "constitutional WR DEDQGRQ DQG HLWKHU VDOYDJH LW RU SHUPLW RWKHU LQWHUHVWHG
minimum value" is defined as "not less than the net SDUWLHV WR DFTXLUH WKH OLQH WKURXJK WKH RIIHU RI ILQDQFLDO
liquidation value of such line or the going concern value of DVVLVWDQFHSURFHGXUHVXQGHU86&†DQG&)5
such line, whichever is greater." GS Roofing II, 262 F.3d at ´,GDW
2QWKHVDPHGDWHWKH235&DOVRILOHGD
774; see also &)5†KGHILQLQJ³IDLUPDUNHW QRWLFH RI FODVV H[HPSWLRQ XQGHU  &)5  WR
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RIWKHQHWOLTXLGDWLRQYDOXHRIWKHOLQHRUWKHJRLQJFRQFHUQ DQG 235& LPSURSHUO\ LQYRNHG WKH FODVV H[HPSWLRQ
YDOXHRIWKHOLQH´7KH67%PXVWGHWHUPLQHWKHVDOHSULFH SURFHGXUHWKH67%LQDGHFLVLRQILOHGRQ-DQXDU\
³RQWKHEDVLVRIZKDWWKHVHOOHUZRXOGKDYHUHDOL]HGIURPWKH GHQLHGERWKUHTXHVWVZLWKRXWSUHMXGLFHWRDOORZWKHPWRUHILOH
VDOHRIWKHDVVHWVKDGWKHOLQHLQIDFWEHHQDEDQGRQHG´,RZD WKHLU UHVSHFWLYH SHWLWLRQV IRU  DEDQGRQPHQW DQG
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SURFHHGLQJVIRURIIHUVWRSXUFKDVHXQGHUVHFWLRQ WKLV FRXOG ZHOO EH DQ DFFHSWDEOH DSSURDFK IRU UHVROYLQJ WKH
LV WKH >QHW OLTXLGDWLRQ YDOXH@ RI WKH UDLO SURSHUWLHV IRU VHUYLFH LVVXHV VXUURXQGLQJ 59,¶V DFTXLVLWLRQ RI WKLV OLQH DQG
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2Q0D\59,VXEPLWWHGDQRWKHUDSSOLFDWLRQWRWKH County of Allegheny, 74 Pa. Cmwlth. 85, 90, 459 A.2d 1298,
67%IRUH[HPSWLRQIURPFHUWDLQUHJXODWLRQVSXUVXDQWWR 1300 (1983) ("Black’s Law Dictionary defines a fee simple
86& †  DQG IRU DXWKRULW\ WR DEDQGRQ WKH UDLO OLQH estate as ‘one in which the owner is entitled to the entire
SXUVXDQWWR86&†D,QLWVSHWLWLRQ59,VWDWHG property, with unconditional power of disposition during his
WKDWWKHOLQHKDGEHHQRXWRIVHUYLFHIRUWZR\HDUVGXHWRWKH life, and descending to his heirs and legal representatives
ZDVKRXW DQG DQ HPEDUJR  59,¶V SHWLWLRQ DOVR LQFOXGHG D upon his death intestate.’").
YHULILHG VWDWHPHQW RI 'DYLG +DQGHO 59,¶V SUHVLGHQW ZKR
VWDWHGWKDW59,¶VULJKWRIZD\H[WHQGHGIURPPLOHSRVWWR Moreover, contrary to RVI’s contention, there was no
PLOHSRVWFRQVLVWLQJRIDFUHVDQGWKDWLWVQHW unconstitutional taking in this case. See U.S. Const. amend
OLTXLGDWLRQYDOXHRIPLOOLRQZDVEDVHGXSRQDIXOOIHH V ("[N]or shall private property be taken for public use,
LQWHUHVWLQWKHSURSHUW\ without just compensation."); In re Chicago, Milwaukee, St.
Paul and Pacific Ry. Co., 799 F.2d 317, 324 (7th Cir. 1986).
&&3$ WKHQ UHOLHG XSRQ +DQGHO¶V GHVFULSWLRQ RI WKH As set forth in 49 U.S.C. § 10907(b)(1), Congress authorized
SURSHUW\DQGKLVYDOXDWLRQRIWKHIXOOIHHLQWHUHVWLQWKHUDLO the STB to force the sale of a railroad line at its
OLQHZKHQLWSUHSDUHGLWVHVWLPDWHRIWKHSXUFKDVHSULFHGXULQJ "constitutional minimum value" to "a financially responsible
WKH2)$SURFHVV2Q$XJXVW&&3$LQYRNLQJWKH person." GS Roofing II, 262 F.3d at 771.  7KDW LV ZKDW
2)$SURFHGXUHVVHWIRUWKLQ86&†DQG&)5 RFFXUUHGKHUH6HH8QLWHG6WDWHVY$FUHVRI/DQG
D UHTXHVWHG ILQDQFLDO GDWD DQG LQIRUPDWLRQ IURP 86QQRWLQJWKDWWKHFRQVWLWXWLRQDOPHDVXUH
59,FRQFHUQLQJDQHVWLPDWHRIWKHPLQLPXPSXUFKDVHSULFH RIMXVWFRPSHQVDWLRQLVZKDWDZLOOLQJEX\HUZRXOGSD\LQ
UHTXLUHG WR NHHS WKH OLQH LQ RSHUDWLRQ WKH HVWLPDWHG QHW FDVKWRDZLOOLQJVHOOHUTXRWLQJ8QLWHG6WDWHVY0LOOHU
OLTXLGDWLRQYDOXHRIWKHOLQHDQGGRFXPHQWDWLRQVKRZLQJWKDW 86
59,KDGPDUNHWDEOHWLWOHWRWKHODQGAlthough RVI provided
some of the information on August 10, 1999, it advised Finally, although it appears that the STB approved certain
CCPA to arrange for copying the valuation maps and deeds transactions by RVI with third parties after RVI filed its
for the line at RVI’s offices. However, when CCPA arranged abandonment petition, we note that these transactions are not
for its retained appraiser, Mr. John Rossi of Real Estate being challenged on appeal. Specifically, CCPA, as an
Appraisal Associates, to visit RVI’s business office, he was intervening party in these proceedings pursuant to Rule 15(d)
of the Federal Rules of Appellate Procedure, has not appealed
from the STB’s orders and has requested affirmance of its
decisions. Because CCPA has not challenged the STB’s
LV UHTXLUHG IRU WKH %RDUG WR PDNH DQ LQIRUPHG GHFLVLRQ RQ approval of RVI’s conveyance of certain property interests
ZKHWKHU WR DSSURYH WKH DEDQGRQPHQW RI WKLV OLQH RI UDLOURDG DQG associated with the rail line after RVI filed its abandonment
IRU RWKHU SDUWLHV ZKR PLJKW EH LQWHUHVWHG LQ SXUFKDVLQJ WKH OLQH petition, it is therefore unnecessary to remand for further
XQGHU VHFWLRQ  WR UHVWRUH VHUYLFH proceedings since CCPA is not seeking to acquire those
R.R. Ventures, Inc.  Abandonment Exemption  Between Youngstown, property interests not conveyed to it. See Platte River
OH, and Darlington, PA, in Mahoning and Columbiana Counties, OH, Whooping Crane Critical Habitat Maintenance Trust v.
and Beaver County, PA, STB Docket No. AB-556 (Sub-No. 1X), 1999 FERC, 962 F.2d 27, 37 n.4 (D.C.Cir.1992) (refusing to reach
WL 23286, at *2 (Service Date Jan. 22, 1999).
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Notwithstanding, RVI argues that it should not be required denied access by RVI to the relevant valuation maps and
to convey a fee simple interest in the rail line because the deeds.
STB in its January 7, 2000 decision only required it to
transfer "all property by quit claim deed." As RVI notes, a On September 2, 1999, the STB granted RVI’s petition for
"quit-claim deed transfers only those rights which a grantor exemption pursuant to 49 U.S.C. § 10502, stating that any
has at the time of the conveyance." Finomore v. Epstein, 18 party interested in purchasing the line for continued rail
Ohio App.3d 88, 89, 481 N.E.2d 1193, 1196 (Ohio App. service could submit an offer of financial assistance ("OFA"),
1984) (citing Jonke v. Rubin, 170 Ohio St. 41, 41, 162 N.E.2d pursuant to 49 U.S.C. § 10904 and 49 C.F.R. § 1152.27(c)(1),
116, 116 (1959)); Greek Catholic Congregation of Borough by September 13, 1999. See R.R. Ventures, Inc. 
of Olyphant v. Plummer, 338 Pa. 373, 377, 12 A.2d 435, 437 Abandonment Exemption  Between Youngstown, OH, and
(Pa. 1940). At the time of the conveyance in these cases, RVI Darlington, PA, in Mahoning and Columbiana Counties, OH,
was required to transfer a full fee interest in the property. and Beaver County, PA, STB Docket No. AB-556 (Sub-No.
Thus, the STB’s order directing RVI to transfer "all property 2X), 1999 WL 714565 (Service Date Sept. 3, 1999). In the
by quit-claim deed" was tantamount to ordering it to transfer absence of an OFA, the exemption became effective October
a fee simple interest in the property associated with the rail 3, 1999, allowing RVI to salvage track, ties, and other
line. railroad appurtenances, and to dispose of the right-of-way.
In addition, because CCPA acquired a fee simple interest in On September 3, 1999, one day after the STB granted
the rail line, RVI was required to transfer all its property RVI’s exemption petition, CCPA formally notified RVI and
interests associated with the rail line. Under Ohio law, a fee the STB that it was considering an OFA to purchase the line
simple is the highest right, title and interest that one can have for rail service. CCPA also petitioned the STB to toll the
in land; it is the full and absolute estate in all that can be period for submitting an OFA until 30 days after RVI had
granted. Masheter v. Diver, 20 Ohio St.2d 74, 78, 253 N.E.2d supplied all requested documents and information.
780, 782 (1969); see also 20 Ohio Jurisprudence 2d 237,
Estates, Section 8 ("An estate in fee simple is the entire
interest and property in the land."); Muirfield Ass’n, Inc. v.
Franklin County Bd. of Revision, 73 Ohio St.3d 710, 711, 654

6XEVHTXHQWO\ &&3$ DOVR VRXJKW WR DFTXLUH D UDLOURDG OLQH EHWZHHQ
N.E.2d 110, 111 (1995) (defining "fee simple" as "[a]bsolute 6WUXWKHUV DQG 2000 WL
821476, at *1 (Service Date June 26, 2000). :H QRWH WKDW 1999 WL 715271, at *2 (Service Date Sept. 10, 1999). milepost 35.7, including "a short spur line and several
The STB also extended the effective date of RVI’s exemption buildings referred to generically as the Negley Shops." RVI
until forty days after RVI had provided the information. Id. placed the fair market value of the full fee interest "for the
at *3. 302.016 acres of ground comprising the RVI right of way" at
$1,162,555. When CCPA thereafter inquired about the
Shortly thereafter, by a letter dated September 20, 1999, property to be sold, RVI confirmed that "an ample description
CCPA’s attorney advised the STB and RVI that CCPA of the line in question and the acreage involved in this rail
expected to acquire a full fee interest held by RVI as well as line" was provided in its abandonment petition. (J.A. at 860,
"all of the interests encompassed in RVI’s estimate of 1681.) RVI also advised both the STB and CCPA in a letter
purchase price to keep the line in operation." (J.A. at 545.) dated September 21, 1999 that "[s]hould CCPA determine
RVI’s counsel responded the following day, stating that that it is necessary to acquire a fee interest in the right of way
"should CCPA determine that it is necessary to acquire a fee in order to operate the rail line under 49 C.F.R. § 1152.27,
interest in the right of way in order to operate the rail line RVI will convey such an interest . . . pursuant to the
under 49 C.F.R. § 1152.27, RVI will convey such an requirements of the STB’s OFA regulations." (J.A. at 546.)
interest." (J.A. at 546.) Based upon RVI’s representations in its abandonment
petition, it was then CCPA’s prerogative, as a prospective
In a letter filed on October 12, 1999, CCPA informed the OFA purchaser, to determine how much of the rail line it
STB that RVI had provided sufficient information for CCPA wished to acquire. In this case, CCPA sought to acquire a fee
to continue with its OFA and that it would file an OFA on or simple interest in the entire rail line as described in RVI’s
before November 8, 1999, thirty days after receipt of the abandonment petition. Therefore, CCPA was entitled to
information from RVI. See R.R. Ventures, Inc.  acquire the entire fee simple interest in the property
Abandonment Exemption  Between Youngstown, OH, and comprising the rail line that was the subject of RVI’s
Darlington, PA, in Mahoning and Columbiana Counties, OH, abandonment petition.
and Beaver County, PA, STB Docket No. AB-556 (Sub-No.
2X), 1999 WL 1030076, at *1 (Service Date Nov. 12, 1999).
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these reasons, we conclude that the STB’s interpretation is On November 8, 1999, CCPA filed a timely OFA to purchase
unreasonable. the line for $419,360. This offer consisted of $350,000 for
the land and $69,360 for the track and materials. CCPA
Under § 10904(f)(1)(B), the STB’s task is not to determine compared its offer with RVI’s stated net liquidation value of
the extent of the property associated with the rail line that is $1,607,555 ($1,162,555 for the real estate and $445,000 for
being transferred, but to set the terms of the sale in the event track salvage), offering explanations for the disparity in the
that the parties cannot come to an agreement about these values, as required by 49 C.F.R. § 1152.27(c)(ii)(C ). Id. In
terms. As explained, the determination about what property particular, CCPA’s estimate of a total track value of $69,360
is being conveyed in the sale of a rail line is made by the was based upon the cost of disposing of approximately
parties to the transaction. Pursuant to the abandonment and 125,214 bad cross ties, roughly 99% of the cross ties on the
OFA provisions of the ICCTA, the abandoning rail line owner line. Using RVI’s own estimate of tie disposal costs, CCPA
identifies the property that is being abandoned in its reduced RVI’s estimate by $375,642. Id. at *2.
abandonment petition, while the prospective OFA purchaser
submits an offer to buy the rail line being abandoned, either In a decision on November 12, 1999, the STB found CCPA
in whole or part. None of this requires the STB to determine to be "financially responsible" pursuant to 49 U.S.C.
how much of the rail line is being acquired; the parties do § 10904(d)(1). Id. The STB therefore postponed, pursuant to
that. However, if the parties cannot come to an agreement 49 U.S.C. § 10904(d)(2), the effective date of the exemption
about the terms of the sale, the STB has the authority under § authorizing RVI’s abandonment of the line during the
10904(f)(1)(B) to set the terms and force the sale of a railroad pendency of the OFA process. Id. The STB informed RVI
line at its constitutional minimum value. and CCPA that if they were unable to agree on a purchase
price for the line, then either party could request the STB, on
Reading the ICCTA as a whole, we hold that once a rail or before December 8, 1999, to set the terms and conditions
line owner files a petition seeking authority to abandon a rail of the sale pursuant to 49 U.S.C. § 10904(e). Id.line, a qualified OFA purchaser is entitled to determine
whether to purchase the rail line, as described in the By December 8, 1999, CCPA and RVI were unable to
abandonment petition, in whole or part. Therefore, a rail agree on the amount to be paid for the rail line. Thus,
owner seeking authority to abandon a rail line is not permitted exercising its statutory right under § 10904(f)(1), CCPA filed
to reduce or diminish the property associated with the rail its request on December 8, 1999 for the Board to establish the
line, as identified in the abandonment petition, until the OFA terms of the sale. CCPA requested a purchase price of
process is concluded. Once a qualified OFA buyer has $441,700, consisting of $350,000 for the land and $91,705.67
offered to purchase the rail line, as described in the for track materials. See R.R. Ventures, Inc.  Abandonment
abandonment petition, postponement of the abandonment Exemption  Between Youngstown, OH, and Darlington, PA,
petition remains in effect until the line owner and prospective in Mahoning and Columbiana Counties, OH, and Beaver
OFA buyer have come to an agreement on the terms of the County, PA, STB Docket No. AB-556 (Sub-No. 2X), 2000
sale or until the STB sets the terms of the sale upon the WL 1125904, at *1 (Service Date Jan. 7, 2000). CCPA also
request of either party. 49 U.S.C. § 10904(d)(2)-(f). As a requested that the STB clarify the property interests CCPA
consequence, until such time that the STB loses jurisdiction would receive in acquiring the line. CCPA specifically asked
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the STB to require RVI to "convey to CCPA a full fee title possibility of interference with future rail service as a result
interest in the land comprising the right-of-way, except in any of conflicts between the purchaser of the rail line and parties
instance where, prior to the institution of this OFA perhaps holding subsurface, aerial or easement rights acquired
proceeding, RVI did not possess such an interest in the right- after the abandoning rail carrier filed its petition seeking the
of-way." In addition, CCPA advised the STB that it had STB’s authority to abandon the line.
recently discovered that RVI, after being advised of CCPA’s
OFA submission, had entered into a series of transactions to Interpreting § 10904(f)(1)(B) as part of a symmetrical and
reduce the size and value of the property. Specifically, CCPA coherent regulatory scheme, we therefore conclude that the
sought invalidation of the November 5, 1999 Grade Separated STB erred in construing the statutory provision as implying
Crossing Settlement Agreement ("GSCSA") that RVI had a "rebuttable presumption" under which an OFA purchaser is
entered into with Boardman Township, purportedly extending entitled to purchase all the property interests associated with
to RVI’s successors in interest, requiring the construction of a rail line subject to an abandonment petition unless the
an overpass or underpass at a crossing between the railway abandoning rail line owner shows that effective rail service
and a highway as a precondition to restoration of rail service. can be provided with less than the entire rail line. There are
Id. at * 2. CCPA also challenged other transactions entered several problems with the STB’s interpretation. First, there
into by RVI without the STB’s authorization in violation of is no apparent textual support in the statutory provisions or
the OFA procedures that reduced the value of the right-of- the regulations governing the abandonment and OFA process
way, including: (1) the sale of utility crossing easements to for implying a "rebuttable presumption." But more important,
First Energy Corporation (Ohio Edison Company) for by reading a rebuttable presumption into the statute, the STB
$893,000, allowing for permanent aerial easements along and shifts the burden of proof to the abandoning rail line owner,
across the property; (2) the assignment to Venture Properties which is contrary to its own regulation that states that "the
of Boardman, Inc. ("VPB") of all right, title, and interest to offeror has the burden of proof as to all issues in dispute." 49
income, proceeds, accounts receivable, royalties, and other C.F.R. 1152.27(h)(3). As a practical matter, this may lead to
payments arising from third-party agreements which are intractable problems in consummating the sale of rail lines, as
attributable to the line; (3) the sale of a 4.012-acre segment to the present cases exemplify, defeating the purpose of having
Boardman Township Park District for $140,000; and (4) a an expedited abandonment process. Specifically, the STB’s
contingent agreement for the sale of approximately 20.6 acres construal of the statute as implying a rebuttable presumption
of the right-of-way for a 4.2 mile bicycle trail. Id. at * 4. creates the prospect of protracted abandonment proceedings
as the parties argue about what property associated with the
rail line is or is not necessary for effective rail service. The
STB’s interpretation is also problematic because it raises
questions about applying the statute in a way that is not
 arbitrary or capricious. As argued by RVI in these cases, the
:KLOH &&3$¶V DSSUDLVHU FRQVLGHUHG WKH VDOH RI WKH XWLOLW\ FURVVLQJ
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STB’s decision regarding what property is necessary for
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effective rail service appears arbitrary because it does not
ZD\ WKH DSSUDLVHU GLG QRW FRQVLGHU WKH WUDQVDFWLRQV EHWZHHQ 59, DQG seem to be based upon objective principles or criteria. For
%RDUGPDQ 7RZQVKLS 3DUN 'LVWULFW EHFDXVH WKH\ ZHUH HQWHUHG LQWR WKH GD\
EHIRUH &&3$ VXEPLWWHG LWV 2)$ WR WKH 67% DQG 59,
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from a practical perspective since a prospective OFA buyer 59,UHSOLHGWR&&3$¶VUHTXHVWWRVHWWKHWHUPVRIWKHVDOH
has to act quickly, examining and evaluating pertinent data RQ'HFHPEHUcontending that the STB should order
about the condition of the line, its traffic and revenue before it to convey no more than the minimum property interest
submitting an OFA, which is due within ten days of the necessary for the provision of rail operations, which it defined
decision of the STB granting a petition for abandonment or as the track, related track appurtenances and a surface
exemption. 49 U.S.C. § 10904(c); 49 C.F.R. easement for rail purposes. RVI suggested that a sufficient
§ 1152.27(c)(1)(i)(B). Thus, to ensure the efficacious interest would consist of surface rights enabling the purchaser
valuation of a rail line, it is essential that the property interests to use the line for rail purposes, "conveyed by means of an
associated with the rail line remain stable. easement, right of way agreement or quit claim deed subject
to various reservations or reversionary interests." RVI further
Maintenance of the status quo upon the filing of an asked the STB not to set aside its third-party transactions
abandonment petition also promotes the practical goal of pertaining to the line, contending that it was not obligated to
properly administering the statute since the STB is obligated inform CCPA of those transactions, since they would not
to make certain decisions within a highly constrained time affect CCPA’s use of the right-of-way for rail services.
frame so as to advance the goal of continuous rail service. Despite the fact that RVI had valued the entire line at $1.6
Specifically, it accords with the purpose of the forced-sale million in its abandonment petition, RVI also challenged
provision set forth in 49 U.S.C. § 10904, which is to promote CCPA’s requested purchase price, claiming that the limited
the continuation of viable rail service, not simply the property interest in the rail line that it was prepared to sell to
maintenance of the rail line itself. See Hayfield, 467 U.S. at CCPA was now worth $2,261,490, almost three times as
630 (noting that the present § 10904 "represents a much as RVI paid for the rail line when it purchased it on
continuation of Congress’ efforts to accommodate the November 8, 1996. Specifically, RVI disputed CCPA’s
conflicting interests of railroads that desire to unburden valuation method, offering its valuation of the surface rights
themselves quickly of unprofitable lines and shippers that are in the line as an assembled corridor to be worth $1,472,930
dependent upon continued rail service"); Consol. Rail Corp, and valuing the track materials at $788,560.
29 F.3d at 712. Accordingly, the objective of continuing
viable rail service in behalf of interstate commerce in this 1. The STB’s January 7, 2000 decision setting the
country, as well as commerce throughout the continent, is terms and conditions of the sale
better achieved by not permitting the transfer of property
interests associated with the rail line after the filing of the The STB issued its decision setting the terms and
abandonment petition. It also protects the integrity of the conditions for the sale of the rail line on January 7, 2000.
OFA process by ensuring transparency. Ultimately, it Explaining that the offeror in a forced sale bore the burden of
produces finality and certainty in the OFA process, leading to proof, the STB stated that it would accept the seller’s (RVI)
the expeditious acquisition of a rail line and eliminating the price estimates unless the offeror (CCPA) "present[s] more
specific evidence or analysis or provide[s] more reliable and
verifiable documentation." Id. at *5. Adhering to this
 framework, the STB accepted RVI’s track value of $788,560,
7KURXJK WKH &RPPHUFH &ODXVH &RQJUHVV KDV WKH SRZHU WR
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reach a net salvage value for track and materials of $730,560. sale, however, the STB cannot place any burden on the
Id. at *6. The STB rejected, however, RVI’s valuation of the offeree (i.e., the abandoning rail owner). See 49 C.F.R.
land as an assembled corridor. The STB explained: §1152.27(h)(3) ("The offeror has the burden of proof as to all
issues in dispute.")
Unless there is a specific documented interest expressed
by a potential purchaser of an intact corridor, we do not In short, once the owner of a rail line submits a petition
consider this to be an acceptable method of valuation for seeking the STB’s authority to abandon the line, it must allow
[net liquidation value] purposes. The highest and best a prospective OFA purchaser the opportunity to determine
non-rail use is to sell parcels to adjoining landowners or how much of the line to acquire, as the line is described in the
other interested parties. See Boston and Maine Corp.  abandonment petition. Thus, at the point of filing the
Abandonment  In Hartford and New Haven Counties, abandonment petition, the abandoning rail line owner cannot
CT, STB Docket No. AB-32 (Sub-No. 83), et al., slip op. reduce or diminish the rail line or the nature of the property
at 4 (STB served July 1, 1998) [1998 WL 348755, at *3]. interests associated with the line. Because a rail line owner
is subject to the STB’s jurisdiction until such time that the
Id. at *6. The STB summarized RVI’s evidence for valuing line has been properly abandoned or sold, it therefore must
the land as an assembled corridor as amounting to two maintain the status quo with respect to its property interests
appraisals and copies of purchase agreements for trail and in the rail line as described in its abandonment petition.
utility easements, as well as expressions of interest to buy
some sections of the line, "but no firm offers to purchase the The primary reason for maintaining the status quo with
entire right-of-way, much less an executed sales contract." Id. respect to the property interests associated with the rail line as
Absent an executed sales contract or firm purchase offer for described in the abandonment petition is to allow a
an assembled corridor, the STB concluded that RVI could not prospective OFA buyer sufficient opportunity to assess
demonstrate that an assembled corridor was the "highest and whether the acquisition of the line is economically viable and
best use" of the line.
Id. to determine what valuation to place on the rail line that it
seeks to acquire. In this respect, it is evident that a rail line
In contrast, the STB accepted CCPA’s "across-the fence" embraces more than just the track necessary for the provision
("ATF") valuation methodology, finding it "complete and of rail service. See Iowa Terminal, 853 F.2d at 965 (rejecting
the abandoning railroad’s attempt to limit the transfer of land
to two, rather than ten, acres, even though eight acres of land
had been leased for nonrail purposes for several years, since
"[t]he purpose of the statute empowering the [STB] to
mandate a sale is to keep viable lines in operation"); see also
 In re Boston & Maine Corp., 596 F.2d 2, 6 (1st Cir. 1979)
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(noting that a "‘railroad line’ is not merely the service being
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provided, but the physical properties and interests belonging
to the debtor that constitute the line"). Holding the status quo
 DW
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which a prospective OFA buyer may offer to buy the line that adequately supported." Id. at *6. The STB also accepted
is the subject of an abandonment application"). )XUWKHU CCPA’s reduction in the value of the land by $100,000 due to
H[SHGLWLQJ WKH DEDQGRQPHQW SURFHHGLQJV LV WKH UHJXODWLRQ RVI’s assignment of lease and interest income to a third
VKRUWHQLQJWKHWLPHIRUILOLQJDQ2)$WRWHQGD\V  6HH party. Accordingly, the STB valued the land for the entire
&)5E:KHQDQ2)$LVPDGHE\DILQDQFLDOO\ line at $350,000, added in $730,560 for track and materials,
UHVSRQVLEOHSDUW\³UHJDUGLQJWKDWSDUWRIWKHUDLOURDGOLQHWREH and set a purchase price of $1,080,560.
DEDQGRQHG´86&†GWKHDEDQGRQPHQWRIWKH
OLQHLVWKHQSRVWSRQHGXQWLOWKHWHUPVDQGFRQGLWLRQVRIWKH In addition to setting these terms and conditions for the
VDOHDUHHVWDEOLVKHG86&†G purchase of the line, the STB also addressed RVI’s third-party
transactions. Concerning the Grade Separated Crossing
Thus, while a railroad may "abandon any part of its railroad Settlement Agreement ("GSCSA") between RVI and
lines" under 49 U.S.C. § 10903(a)(1)(A), the STB is Boardman Township, the STB acknowledged that while it
permitted to authorize a prospective buyer under the OFA favored privately negotiated agreements in general, it would
provisions to purchase "that part of the railroad line to be deem void as against public policy any agreement imposing
abandoned" under 49 U.S.C. § 10904(d). The line owner can restrictions unreasonably interfering with common carrier
seek authority to abandon all or a part of its rail line, but if it obligations, citing United States v. Baltimore & Ohio R.R.
does so, then, pursuant to § 10904(f)(1)(B), a qualified OFA Co., 333 U.S. 169, 177-78 (1948) for the proposition "that
purchaser is entitled to determine how much of the line it parties may not enter into trackage rights agreements that
wishes to acquire. Once the offeror seeks to purchase the abrogate rights and responsibilities under the statutory
entire rail line or a portion thereof as described in the provisions of the Interstate Commerce Act." Id. at *2. CCPA
abandonment petition, 49 U.S.C. § 10904(c), the STB is then opposed the GSCSA on the grounds that it created a condition
statutorily obligated to render a decision setting price and precedent to reestablishment of rail service and obliged
other sale terms as to what the offeror seeks to buy, within CCPA (or RVI’s successor in interest) to undertake extremely
thirty days of a request to set conditions. 49 U.S.C. costly construction projects to build the projected overpass or
§ 10904(f)(1)(A). Under this statutory provision, then, it underpass. According to CCPA, enforcement of the GSCSA
necessarily follows that neither the abandoning rail carrier nor would cause it to forego its acquisition of the rail line, since
the STB can alter or amend what the OFA buyer has offered CCPA estimated that the cost of one overpass or underpass
to buy; rather, the STB can only set the terms on what the would likely exceed the net liquidation value of the entire rail
offeror has proposed to purchase. In setting the terms of the line. As a result, the STB found that the terms of the GSCSA

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imposing obligations on parties other than RVI and Boardman Kulmer, 236 F.3d at 1257.
Township and requiring construction of the grade separated
crossing as a precondition to resuming rail operations Reading the statutory and regulatory scheme as a whole, we
unreasonably interfered with common carrier operations and discern a clear symmetry between the abandonment and OFA
the OFA process. Id. Because the STB also found these provisions of the ICCTA. While a line owner may "abandon
terms to "circumvent [its] statutory authority to set the terms any part of its railroad lines," it cannot do so without the
and conditions of the sale under 49 U.S.C. [§] 10904(f)(1)," STB’s approval. 49 U.S.C. § 10903(a)(1)(A); GS Roofing I,
it thus concluded that these terms were unenforceable as 143 F.3d at 391. Significantly, when the owner of a rail line
contrary to public policy. Id. seeks to abandon a line, it must "identify each railroad line for
which the rail carrier plans to file an application to abandon."
Although the STB voided the GSCSA, it decided not to set 49 U.S.C. § 10903(c)(2)(B). Under 49 C.F.R. § 1152.22, an
aside the other transactions between RVI and other third owner seeking to abandon a rail line must set forth the
parties, which CCPA had challenged on the grounds that they following information in its abandonment application:
diminished the value of the line. As for the sale of utility
crossing easements to First Energy Corporation (Ohio Edison [a d]etailed map of the subject line on a sheet not larger
Company), the transfer of all rights to Venture Properties of than 8x10 ½ inches, drawn to scale, and with the scale
Boardman, Inc. ("VPB") arising from third-party agreements shown thereon. The map must show, in clear relief, the
attributable to the line, the sale of a 4.012-acre segment to the exact location of the rail line to be abandoned or over
Park District, and the contingent sale of about 20.6 acres of which service is to be discontinued and its relation to
the right-of-way for a 4.2 mile bicycle trail, the STB other rail lines in the area, highways, water routes, and
concluded that they did not interfere with rail operations, but population centers.
would be factored into its calculation of the line’s value. Id.
at * 4-5. In particular, the STB noted that the sale of 4.012 49 C.F.R. § 1152.22(a)(4). The ICCTA also directs that a rail
acres to the Park District was explicitly conditioned on the carrier seeking authorization to abandon a rail line under 49
continuation of rail service on the line. U.S.C. § 10903 must promptly provide a party considering an
OFA with a report on the physical condition of "that part of
The STB instructed CCPA to accept or reject the terms in the railroad line involved in the proposed abandonment," as
writing within ten days, ordered RVI and CCPA to close on well as other information required to determine the amount of
the deal within ninety days, and required RVI to convey "all financial assistance needed "to continue rail transportation
property by quitclaim deed." The STB further stated that if over that part of the railroad line" and an estimate of the
CCPA withdrew from the sale or failed to accept by timely minimum purchase price required "to keep the line or a
written notification, then it would issue, within twenty days, portion of the line in operation." 49 U.S.C. § 10904(b). An
a decision authorizing abandonment. RVI, Boardman OFA purchaser then has four months after the abandonment
Township, and the Boardman Township Park District have petition has been filed to "offer to subsidize or purchase the
filed petitions with this Court for review of the STB’s railroad line that is the subject of such application." 49 U.S.C.
January 7, 2000 decision. § 10904(c); see Kulmer, 236 F.3d at 1256 (noting that "[t]he
OFA provisions create a four-month waiting period" during
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(holding that city could condemn a tract of land for public 2. The STB’s March 3, 2000 decision that CCPA
use, such as for a street, but could not take property to sell it accepted the terms and conditions of the sale
at a profit and pay for the improvement), aff’d, 281 U.S. 439(1930). Following the STB’s January 7, 2000 decision, CCPA sent
a letter dated January 12, 2000, which was received by the
The STB disagrees with RVI’s construction of 49 U.S.C. STB on January 14, 2000, stating that it "hereby accepts the
§ 10904(f)(1)(B), arguing that the language on which RVI terms and conditions established by the Board in its decision
focuses  "all facilities on the line or portion necessary to served on January 7, 2000 for acquisition of Railroad
provide effective transportation services"  does not pertain Ventures’ 35.7 mile line of railroad extending from milepost
to how much of the rail line a line owner can choose to 0.0 at Youngstown, OH to milepost 35.7 at Darlington, PA,
transfer, but instead concerns the extent of the line an OFA and a connecting one mile line segment near Negley, OH."
purchaser may choose to buy. If the purchaser views less CCPA added:
than the entire amount of property as sufficient for rail
operations, then the purchaser may offer to purchase only that [CCPA] does so on the understanding, (1) that it will be
amount. See, e.g., Iowa Terminal, 853 F.2d at 968 receiving a fee simple estate in the subject property free
(describing purchaser’s offer for a 10.4-mile segment of a and clear of any reservations, liens, encumbrances,
26.1-mile line). If, however, an offeror, such as CCPA, licenses, leases, easements or restrictions except those
wishes to obtain all the property described in the which were in existence prior to November 8, 1999, and
abandonment petition, the STB argues that it is reasonable to considered by Mr. Rossi in the appraisal which was
presume that the entire amount is necessary for effective rail adopted by the Board, and (2), that taxes on the subject
services. property will be apportioned as between the parties as of
the date of settlement.
Although the STB’s construction of § 10904 is entitled to
deference, courts ultimately have the responsibility for (J.A. at 1211.) CCPA also sent the same letter to RVI on
interpreting federal statutes. Crounse Corp., 781 F.2d at January 12, 2000. After receiving this letter, RVI wrote to the
1183. As pointed out by the Tenth Circuit in Kulmer: STB on January 18, 2000, objecting that CCPA’s letter did
not constitute a valid acceptance of the STB’s sale terms. On
"In determining whether Congress has specifically January 20, 2000, RVI followed this letter with a petition to
addressed the question at issue, a reviewing court should the STB to vacate the decisions postponing the effective date
not confine itself to examining a particular statutory of the abandonment authority. RVI contended that by
provision in isolation." FDA v. Brown & Williamson accepting the STB’s terms "on the understanding" that it
Tobacco Corp., 529 U.S. 120, 130-132, 120 S. Ct. 1291, would receive an unencumbered fee simple estate, CCPA
1300, 146 L. Ed.2d 121 (2000). Rather, a court must sought to alter in a material way the terms set by the STB,
read the relevant provisions in context and, insofar as which had ordered conveyance pursuant to a quitclaim deed,
possible, "interpret the statute ‘as a symmetrical and without requiring RVI to make any warranty regarding the
coherent regulatory scheme.’" Id., 529 U.S. at 132-134, title it possessed. RVI also argued that CCPA’s acceptance
120 S. Ct. at 1301 (quoting Gustafson v. Alloyd. Co., 513 was "conditional," not "absolute." Relying upon principles of
U.S. 561, 569, 115 S. Ct. 1061, 131 L.Ed.2d 1 (1995)).
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contract law, RVI urged the STB to view CCPA’s letter as a 49 U.S.C. § 10904(f)(1)(B). In its October 4, 2000 decision,
rejection of the terms set forth in the decision of January 7, the STB interpreted the parenthetical language as follows:
2000 and to treat the letter as the submission of a counteroffer
by CCPA. it serves merely to clarify that an offeror need not
purchase the entire property slated for abandonment, but
On March 3, 2000, the STB issued a decision rejecting can opt to acquire less than the full length of the line
RVI’s arguments regarding CCPA’s acceptance of the terms where the offeror wishes to provide for continued rail
set forth in the January 7, 2000 decision. See R.R. Ventures, service on only a portion of the line.
Inc.  Abandonment Exemption  Between Youngstown, OH,
and Darlington, PA, in Mahoning and Columbiana Counties, R.R. Ventures, 2000 WL 1470451, at *6. In rejecting RVI’s
OH, and Beaver County, PA, STB Docket No. AB-556 (Sub- proposed interpretation of § 10904(f)(1)(B), the STB
No. 2X), 2000 WL 246367 (Service Date Mar. 3, 2000). The articulated a presumption, rebuttable by the line owner, that
STB viewed CCPA’s letter dated January 12, 2000 as "a an OFA purchaser would need all the property interests
valid acceptance" of the sale terms, noting that CCPA associated with the rail line in order to provide effective
followed RVI’s initial objection with another letter transportation operations. Applying this rebuttable
"unequivocally" reiterating its acceptance. The STB presumption, the STB decided that RVI had failed to show
described CCPA’s second letter as follows: that CCPA could provide effective rail services on less than
the entire rail line.
By letter filed on January 19, 2000, CCPA states that it
has accepted the terms and conditions of the January 7 In opposition to the STB’s interpretation, RVI construes 49
decision and explains that, given the history of its U.S.C. § 10904(f)(1)(B) as Congressional recognition that an
dealings with RVI, the additional language in its owner need not transfer all property comprising the line, and
acceptance letter indicating its understanding of the as a rejection of the STB’s plenary power to force conveyance
transaction was prudent and necessary. of all property interests, particularly those unrelated to rail
operations. RVI explains that Congress recognized that some
Id. at *2. The STB then ordered RVI to convey by quitclaim of the property included in a rail line abandonment petition
deed "all of its property interests, as discussed in this might be necessary for rail operations, but some would not.
decision, in its 35.7-mile line of railroad extending from Further, according to RVI, the Fifth Amendment limits the
milepost 0.0 at Youngstown, OH, to milepost 35.7 at STB’s authority to force the sale of property for public
Darlington, PA, and a connecting 1-mile line segment near purposes. See Chicago & N.W. Transp. Co. v. United States,
Negley, OH" provided that CCPA tendered payment on or 678 F.2d 665, 668 (7th Cir. 1982) (suggesting that the price
before April 6, 2000. Id. at *4. The STB also admonished set under the OFA proceeding must satisfy "just
RVI that it should not "unilaterally diminish the assets or their compensation" principles of the Fifth Amendment). RVI
argues that government agencies, such as the STB, can only
require a transfer of the quantity of property or degree of
interest necessary to accomplish the public purpose. Cf. City
of Cincinnati v. Vester, 33 F.2d 242, 245 (6th Cir. 1929)
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SUHVHUYLQJUDLOVHUYLFHZKHQHYHUSRVVLEOHIRUWKHEHQHILWRI value." Id. RVI has filed a petition with this Court to review
VKLSSHUVDQGWKHJHQHUDOSXEOLFcomporting with the need to the STB’s March 3, 2000 decision.
sustain "DIXQFWLRQLQJLQWHUVWDWHUDLOURDGV\VWHP´ 5HGPRQG
,VVDTXDK)GDW%\QRWUHTXLULQJDFFHSWDQFHRQ  7KH67%¶V2FWREHUGHFLVLRQFRQYH\LQJWKH
WKHSDUWRIDTXDOLILHG2)$SXUFKDVHU&RQJUHVVPDGHFOHDU UDLOOLQHWR&&3$
WKDWWKHRYHUULGLQJREMHFWLYHZDVWRSUHVHUYHUDLOVHUYLFHIRU
VKLSSHUVRYHUDOLQHWKDWZRXOGRWKHUZLVHEHDEDQGRQHG &&3$ QRWLILHG WKH 67% RQ 0DUFK   that it was
prepared to tender payment to RVI, but that it had discovered
7KXV LW LV XQQHFHVVDU\ IRU DQ 2)$ SXUFKDVHU VXFK DV some inconsistencies between specimen deeds drafted by RVI
&&3$WRILOHDQDFFHSWDQFHRIWKHWHUPVRIWKHVDOHGiven and the property description used by CCPA’s appraiser in
that CCPA never withdrew its offer to acquire the rail line valuing the line. CCPA followed this letter with a petition,
that RVI wanted to abandon, the sale was binding upon both submitted on March 28, 2000, for a declaratory order from the
parties. 49 U.S.C. § 10904(f)(2). Accordingly, the STB had STB invalidating any post-September 3, 1999 transfers or
jurisdiction to approve the sale of the rail line. assignments of property interests from RVI that were not
included in CCPA’s appraisal report. CCPA specifically
2. The STB’s October 4, 2000 decision was not expressed concern about RVI’s secret conveyances of the
erroneous to the extent that it ordered RVI to line’s non-rail crossing, aerial, and subsurface rights to its
transfer its entire fee simple interest in property affiliate VPB in late October and early November of 1999,
constituting the rail line that was the subject of RVI’s without informing CCPA or the STB about them. To ensure
exemption petition for abandonment that it would actually acquire what it purchased, CCPA
requested the STB to void "all transfers or assignments of
RVI next argues that the STB exceeded its jurisdiction property rights in the railroad property not specifically
under the statute because it ordered RVI to transfer more of reflected in CCPA’s evidence on the value of the line." (J.A.
its property than was necessary for CCPA to provide effective at 1250.)
rail service. While CCPA requested RVI to convey a fee
simple interest in all the property comprising the rail line, Consequently, in a decision issued on April 5, 2000, the
RVI contends that to conduct effective rail operations CCPA STB ordered RVI to show cause why it should not set aside
requires no more than a surface fee or easement over the line. the transfers of subsurface and aerial rights to VPB, and why
In support of its contention that an owner need not transfer all
the property comprising the line, RVI relies upon 49 U.S.C.
§ 10904(f)(1)(B), which provides that when a party to an 
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determine the price and other terms of sale, except that in KDG XQGHUWDNHQ FHUWDLQ DFWLRQV WKDW PDGH UHVWRUDWLRQ RI WKH OLQH PRUH
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market value of the line (including, unless otherwise
##Ventures, Inc.  Acquisition and Operation Exemption  Youngstown
mutually agreed, all facilities on the line or portion & S. R.R. Co., STB Finance Docket No. 33385, 2000 WL 24367, at *3
necessary to provide effective transportation services). (Service Date Mar. 3, 2000).
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the entire property considered in the January 7, 2000 decision regulation is "manifestly contrary to the statute." Ragsdale,
should not be transferred to CCPA. See R.R. Ventures, Inc. 122 S. Ct. at 1160. Under the clear terms of § 10904(f)(2),
 Abandonment Exemption  Between Youngstown, OH, and the offeror need not file an acceptance of the STB’s decision
Darlington, PA, in Mahoning and Columbiana Counties, OH, setting the terms of the sale. Rather, an offeror needs to
and Beaver County, PA, STB Docket No. AB-556 (Sub-No. respond to the STB’s decision only in the event that it wants
2X), 2000 WL 351356, at *2 (Service Date April 5, 2000). to withdraw its offer to purchase the line. Thus, once an
The STB explained that after RVI supplied information about offeror has made an offer to purchase a line being abandoned,
the line to CCPA on October 8, 1999, RVI had a continuing and the STB has made a decision setting the terms of the sale,
duty to keep CCPA informed of any changes in the then the sale of the rail line is binding upon both the rail
information. The STB stated that "[b]y transferring assets carrier selling the line and the offeror, unless the offeror
after October 8, 1999, and failing to immediately inform the withdraws its offer within ten days of the STB’s decision
offeror and the STB, RVI has undermined the OFA process." setting the terms of the sale.
Id. at *1. The STB also noted that RVI’s proposed quitclaim
deeed to convey the 4.2 acre parcel to Boardman Township In effect, the position of a prospective OFA purchaser
Park District "directly contravenes our March 3, 2000 mirrors that of the abandoning rail owner abandoning the line.
decision" and that "RVI may not transfer this parcel to the In a forced sale under § 10904(f)(2), neither the purchaser nor
Park District." Id. at *2 n. 2. the abandoning rail owner is required to accept the STB’s
terms of the sale. However, the statute permits an OFA
RVI responded to the show cause order on April 20, 2000 purchaser, but not the abandoning rail owner, to withdraw its
by claiming that 49 U.S.C. § 10904 required only the sale of offer within ten days of the STB’s decision imposing the
a surface easement, denying any intent to convey a fee simple terms of the sale. Absent a withdrawal on the part of the OFA
interest in the property. According to RVI, it only intended buyer, the sale is consummated in accordance with the terms
to "convey an easement for railroad purposes together with all imposed by the STB, pursuant to its exclusive and plenary
track." Thus, RVI argued that if the STB forced RVI to jurisdiction. Thus, the statute imposes, if you will, a "forced
transfer its entire interest in all the property, including parts acceptance" on the part of the OFA purchaser, unless the
that RVI believed were not related to rail service, at a price of buyer takes the affirmative action of withdrawing its offer.
$350,000, the STB would commit an unconstitutional taking Such a "forced acceptance" is the logical counterpart of the
in violation of the Fifth Amendment. Further, RVI forced sale provision of § 10904(f)(2), requiring the
challenged the STB’s jurisdiction over "non-rail assets which abandoning line owner to sell in accordance with the terms of
are not necessary for the provision of rail transportation the sale established by the STB.
service," demanding that the STB dismiss its show cause
order and issue an order completing the sale. Here, we construe the absence of any language in the
statute requiring a qualified OFA purchaser to accept the
In support of its position, RVI submitted a verified terms of the forced sale as signaling Congress’ clear intention
statement from its president, David Handel, who stated that not to require acceptance on the part of the purchaser. We
RVI had informed CCPA of the transfer of subsurface and air believe that the omission of language regarding acceptance by
rights, third-party agreements, and surface easements at a an OFA purchaser UHIOHFWV &RQJUHVV¶ RYHUDUFKLQJ JRDO RI
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agreed to its sale terms and denied RVI’s motions to vacate meeting on November 30, 1999. Handel noted that CCPA’s
and to stay the sale of the rail line. appraiser John Rossi, who had filed an earlier verified
statement, disclaiming prior knowledge of the transfers of
To determine whether the STB had jurisdiction to force subsurface and aerial rights, was not present at the meeting,
RVI to sell the line, we begin by examining the pertinent and thus had not included the transfers in his appraisal filed
statutory language. Pursuant to 49 U.S.C. § 10903, the STB in December of 1999. According to Handel, RVI "had
has exclusive and plenary jurisdiction over a rail carrier consistently maintained throughout this proceeding that
seeking to abandon a rail line. 3UHVHDXOW86DWFLWLQJ subsurface and aerial rights were not part of the interest which
.DOR%ULFN86DW5/7'5\&RUS)GDW RVI was prepared to convey to CCPA for purposes of
)ULHQGV RI WKH $WJOHQ6XVTXHKDQQD 7UDLO  )G DW continued rail operations."
QAs previously stated, 49 U.S.C. § 10904(f)(2) gives
an offeror ten days in which to withdraw the offer to purchase In response to RVI’s show cause filing, CCPA denied any
a rail line following a decision of the STB setting the terms of knowledge about the conveyance of subsurface or aerial rights
the sale. Without a withdrawal by the offeror, the STB’s prior to March 23, 2000, stating that "a third party" brought
decision becomes binding on both parties. the matter to CCPA’s attention. CCPA also highlighted that
Handel had valued the land for abandonment purposes on the
While the statute does not impose any requirements or time basis of a full fee interest, and that RVI’s counsel had, on
constraints on the offeror concerning the acceptance of the September 21, 1999, stated that RVI would convey a fee
terms and conditions set by the STB, 49 C.F.R. interest in the land. Finally, CCPA stated that an official of
§ 1152.27(h)(7) does require the offeror to accept or reject the Central Columbiana & Pennsylvania Railways, Inc.
STB’s terms and conditions within ten days. Specifically, 49 ("CCPR") had determined that the entire area of land,
C.F.R. § 1152.27(h)(7) provides: including noncontiguous parcels, was necessary for rail
operations on the line. The official, Timothy Robbins, further
Within 10 days of the service date of the Board’s explained in a verified statement that RVI had undertaken or
decision, the offeror must accept or reject the Board’s authorized the removal of some track and the overpaving of
terms and conditions with a written notification to the some rail crossings. Another CCPR employee, Walter Gane,
Board and all parties to the proceeding. provided a verified statement that RVI "has not only allowed
the line to deteriorate, but has tacitly approved the destruction
49 C.F.R. § 1152.27(h)(7). of portions of the line, as well as other actions that have
In this instance, there is a clear conflict between the plain caused the line to be inoperable, including paving over
language of the statute and the implementing regulation. The multiple roadway crossings." Because the cost of restoring
statutory language of § 10904(f)(2) does not require the these alterations was estimated to be approximately $335,000,
offeror to "accept" the terms imposed by the STB within a CCPA consequently requested that the STB order RVI to
designated period of time, yet the implementing regulation place sufficient funds in escrow to cover the repair costs.
requires the offeror to accept or reject the terms within ten On May 10, 2000, RVI moved the STB to reopen the OFA
days. Here, we conclude that 49 C.F.R. § 1152.27(h)(7) valuation process on the basis of new evidence concerning the
must give way to 49 U.S.C. § 10904(f)(2) because the
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"highest and best use" of the line. RVI accompanied this WKHVWDWXWH´5DJVGDOHY:ROYHULQH:RUOG:LGH,QF6
motion with a verified statement from Handel, representing &WTXRWLQJ&KHYURQ86DW
that Williams Communications, Inc. ("Williams") had
contacted both RVI and CCPA about installing fiber optic ,QDGGLWLRQXQGHUWKH$GPLQLVWUDWLYH3URFHGXUHV$FWWKLV
cable along the line. Handel stated that this information &RXUW FDQQRW VHW DVLGH WKH 67%¶V GHFLVLRQV ILQGLQJV DQG
"validates the contentions of RVI that the highest and best use FRQFOXVLRQVXQOHVVWKH\DUH³DUELWUDU\FDSULFLRXVDQDEXVHRI
of its right-of-way is as a non-rail linear corridor." Though GLVFUHWLRQRURWKHUZLVHQRWLQDFFRUGDQFHZLWKODZFRQWUDU\
RVI claimed that Williams intended to install a fiber optic WR FRQVWLWXWLRQDO ULJKW SRZHU SULYLOHJH RU LPPXQLW\ LQ
cable along RVI’s right-of-way, RVI admitted that "Williams H[FHVV RI VWDWXWRU\ MXULVGLFWLRQ>@    RU XQVXSSRUWHG E\
has not conducted any further negotiations with RVI" after VXEVWDQWLDO HYLGHQFH´   86& † $ ( )LOP
RVI submitted a proposal to it on behalf of VPB. 7UDQVLW,QFY,&&)GWK&LU,Q
GHWHUPLQLQJZKHWKHUDGHFLVLRQE\WKH67%ZDVDUELWUDU\RU
CCPA also petitioned the STB on May 19, 2000 to reopen FDSULFLRXV WKLV &RXUW PXVW FRQVLGHU ZKHWKHU WKHUH ZDV D
the proceedings based on new evidence, having just learned ³UDWLRQDOFRQQHFWLRQEHWZHHQWKHIDFWVIRXQGDQGWKHFKRLFH
that RVI’s former president Ron Hall had previously PDGH´,G$GHFLVLRQLVQRWDUELWUDU\RUFDSULFLRXVZKHQLW
contracted on November 15, 1996 to sell the salvage right to LVSRVVLEOHWRRIIHUDUHDVRQHGHYLGHQFHEDVHGH[SODQDWLRQIRU
the line’s track and track materials to Kovalchick Corporation D SDUWLFXODU RXWFRPH 0RWRU 9HKLFOH 0IUV $VV¶Q Y 6WDWH
("Kovalchick") for $400,000. The agreement conditioned )DUP0XW$XWR,QV&R863HUU\Y
Kovalchick’s right to remove track upon RVI’s obtaining 8QLWHG)RRG &RPP:RUNHUV'LVW8QLRQV 
abandonment or exemption authority from the STB. In its )GWK&LU,QGHWHUPLQLQJZKHWKHUWKH
response to the STB, RVI admitted the sale of the salvage 67%¶V ILQGLQJV DUH VXSSRUWHG E\ VXEVWDQWLDO HYLGHQFH WKLV
rights to Kovalchick, but contended that the sale was &RXUWH[DPLQHVZKHWKHUWKH67%FRQVLGHUHG³VXFKUHOHYDQW
conditional and subject to the STB’s abandonment authority. HYLGHQFHDVDUHDVRQDEOHPLQGPLJKWDFFHSWDVDGHTXDWHWR
VXSSRUWWKHFRQFOXVLRQUHDFKHG´53&DUERQH&RQVWU&R
On October 4, 2000, the STB issued its decision regarding Y2FFXSDWLRQDO6DIHW\ +HDOWK5HYLHZ&RPP¶Q)G
its show cause order and resolved various issues that had WK&LU
arisen since the January 7, 2000 decision setting the terms of
the sale. The STB first rejected RVI’s argument that, %$QDO\VLV
pursuant to 49 U.S.C. § 10904(f)(1), it was only obligated to
convey an easement for railroad purposes and rail materials.  7KH67%KDGMXULVGLFWLRQWRDSSURYHWKHVDOHRIWKH
The STB stated: UDLOOLQH
2Q DSSHDO 59, ILUVW FRQWHQGV WKDW WKH 67% ODFNHG
Where (as here) the offeror does not seek to purchase less MXULVGLFWLRQWRIRUFHWKHVDOHRIWKHOLQHDIWHUWKH-DQXDU\
than the entire property, we believe that it is reasonable  DQG 2FWREHU   GHFLVLRQV EHFDXVH CCPA never
to assume that the entire property is needed for effective properly accepted the STB’s terms of sale. Accordingly, RVI
transportation services. After all, that is the property the urges us to vacate the STB’s March 3, 2000 and November 2,
selling/abandoning carrier (or its predecessor) assembled 2000 decisions, in which the STB determined that CCPA had
for, and dedicated to, rail service.
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of RVI and VPB’s remaining rights in the rail line. R.R. R.R. Ventures, Inc.  Abandonment Exemption  Between
Ventures, Inc.  Abandonment Exemption  Between Youngstown, OH, and Darlington, PA, in Mahoning and
Youngstown, OH, and Darlington, PA, in Mahoning and Columbiana Counties, OH, and Beaver County, PA, STB
Columbiana Counties, OH, and Beaver County, PA, STB Docket No. AB-556 (Sub-No. 2X), 2000 WL 1470451, at *6
Docket No. AB-556 (Sub-No. 2X), 2001 WL 1396719, at * (Service Date Oct. 4, 2000). In reaching this conclusion, the
4 (Service Date Nov. 9, 2001). In view of RVI’s interference STB imposed a "heavy burden" on the abandoning carrier to
with the administration of the escrow fund, WKH67%IXUWKHU rebut the presumption that all the property was necessary for
GLUHFWHG&&3$³WRPDQDJHWKHIXQGVGLUHFWO\´DQG³FRPSOHWH effective rail operations. The STB concluded that RVI failed
DOOUHSDLUVIRUZKLFKWKHHVFURZIXQGVDUHWREHXVHGZLWKLQ to sustain this burden, finding that RVI’s "assurance" that the
GD\VIURPWKHHIIHFWLYHGDWHRIWKLVGHFLVLRQ´,GDW
 property interests that it intended to convey to CCPA would
be sufficient to operate the rail line was "entitled to little, if
,,',6&866,21 any, weight, considering that RVI has not had any experience
operating this, or any other, rail line." Id. The STB further
$6WDQGDUGRI5HYLHZ reasoned that dividing the surface rights from other property
When asked to review a decision of an administrative rights in the land would be "impractical and unworkable" and
agency, this Court employs a narrow standard of review. See "could create constant tension between the owner of the rail
Simms v. Nat’l Traffic Safety Admin., 45 F.3d 999, 1003 (6th line (here, RVI’s affiliate VPB) or other easement holders . . .
Cir. 1995). )LUVWWKLV&RXUW³PXVWJLYHFRQVLGHUDEOHZHLJKW and the holder of surface rights to conduct rail operations
DQGGXHGHIHUHQFHWRWKH>67%¶V@LQWHUSUHWDWLRQRIWKHVWDWXWHV (here, CCPA)." Id. Although RVI claimed that there would
LW DGPLQLVWHUV XQOHVV LWV VWDWXWRU\ FRQVWUXFWLRQ LV SODLQO\ be no problems between a railroad with surface rights and
XQUHDVRQDEOH´5/7'5\&RUS)GDWTXRWLQJ other parties with subsurface or aerial rights, the STB was
%URWKHUKRRGRI/RFRPRWLYH(QJ¶UVY,&&)G not persuaded, however, that there can be any assurance
WK&LUVHHJHQHUDOO\&KHYURQ86$,QFY1DWXUDO that rail operations will be unhampered unless the offeror
5HVRXUFHV 'HIHQVH &RXQFLO  86   
KROGLQJWKDWUHYLHZLQJFRXUWPXVWRQO\DVNZKHWKHUDJHQF\ (who will be responsible for ensuring that rail service is
DFWLRQ³LVEDVHGRQDSHUPLVVLEOHFRQVWUXFWLRQRIWKHVWDWXWH´ provided) possesses sufficient property rights to
³:KLOHDQDJHQF\¶VLQWHUSUHWDWLRQRIDVWDWXWHLVHQWLWOHGWR determine unimpeded who may enter the right-of-way at
GHIHUHQFHµIHGHUDOFRXUWVEHDUWKHXOWLPDWHUHVSRQVLELOLW\IRU what times and under what circumstances, as well as
LQWHUSUHWLQJ IHGHUDO VWDWXWHV¶´ &URXQVH &RUS Y ,&&  whether any underground or additional overhead cables
)GWK&LUTXRWLQJ0HDGH7RZQVKLSY or similar structures would interfere with its own rail use
$QGUXV)GWK&LU:HDOVRQRWHWKDW of the right-of-way.
³>D@QDJHQF\¶VLQWHUSUHWDWLRQRILWVRZQUHJXODWLRQ>V@PHULW>@
HYHQ JUHDWHU GHIHUHQFH WKDQ LWV LQWHUSUHWDWLRQ RI WKH VWDWXWH Id. Accordingly, the STB ordered RVI to include in the
WKDWLWDGPLQLVWHUV´%XIIDOR&UXVKHG6WRQH,QFY67% conveyance to CCPA "all property in the right-of-way,
)G'&&LU+RZHYHUDUHJXODWLRQIURP including the subsurface and air rights, all real estate and
WKH DJHQF\ FKDUJHG ZLWK LPSOHPHQWLQJ WKH VWDWXWH FDQQRW track, and all other rail materials." Id. at *12.
VWDQGLILWLV³DUELWUDU\FDSULFLRXVRUPDQLIHVWO\FRQWUDU\WR
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The STB also voided RVI’s transfers of subsurface and continued rail service." Id. at *2. The STB also rejected a
aerial rights to its affiliate, VPB, and the sale of 4.012 acres request from RVI to include language in the bill of sale
to the Park District. Citing Kalo Brick, 450 U.S. at 320, the conditioning the sale on CCPA’s assumption of liability for
STB held that these transfers violated the STB’s "continuing repair of track fixtures, concluding that this language
and exclusive regulatory jurisdiction over the rail line prior to contravened the STB’s order creating an escrow account for
its abandonment." Id. at *7. According to the STB, RVI’s RVI’s payment of track repairs and restoration. Id. at * 3.
attempted conveyances after the commencement of the OFA However, the STB granted a request from RVI to include
process amounted to "a blatant effort to strip away as much of language in the instruments of conveyance indicating that the
the property as possible to avoid including those portions of transfer to CCPA was subject to future orders and decisions
the property in the OFA sale." Id. The STB further viewed of the STB and this Court.
the transfers as "undermin[ing] the OFA sale by jeopardizing
CCPA’s ability to provide effective, uninterrupted rail CCPA then moved this Court for an injunctive order
service." Id. Based upon the need "to protect the integrity of compelling RVI to comply with the STB’s decisions and
the OFA process," the STB, relying upon its inherent enjoining RVI from collaterally attacking the STB’s decision.
regulatory authority, reaffirmed its order directing that "RVI In an order issued on January 5, 2001, a panel of this Court
sell to CCPA all of the interests that it acquired in this rail partially granted CCPA’s motion, directing RVI to comply
line with the exception of the licenses and crossings to which with the October 4, 2000 and December 7, 2000 decisions of
CCPA has acquiesced by reducing its assessment of the the STB requiring the transfer of the rail line to CCPA. This
valuation of the line . . . ." Id. Court remanded the matter to STB "for the limited purpose of
specifying the form of the deed and bill of sale to be utilized
The STB also addressed evidence of RVI’s 1996 sale of the for the transfer and scheduling a new date for the closing."
track salvage rights to Kovalchick. While CCPA Pursuant to this Court’s January 5, 2001 order, the STB
characterized the Kovalchick sale as evincing RVI’s clear issued a decision on January 17, 2001, rejecting the proposed
lack of intention to operate the line and requested revocation deeds proffered by RVI, directing the parties to use the
of the abandonment exemption on this ground, the STB proposed deeds proffered by CCPA, as well as its proposed
declined to revoke the exemption, but instead decided to bill of sale, and setting a closing date of January 23, 2001.
revalue the track and materials in light of the evidence of the R.R. Ventures, Inc.  Abandonment Exemption  Between
sale to Kovalchick. Specifically, the STB explained that RVI Youngstown, OH, and Darlington, PA, in Mahoning and
had withheld information about the Kovalchick sale during its Columbiana Counties, OH, and Beaver County, PA, STB
earlier valuation of the line, "render[ing] meaningless the later Docket No. AB-556 (Sub-No. 2X), 2001 WL 41202, at *2-3
offer upon which [the] STB had relied." The STB determined (Service Date Jan. 17, 2001).
that the net salvage value for the track should be reduced to
the $400,000 that Kovalchick had paid for the right to salvage Thereafter, in May of 2001, CCPA filed a request with the
the materials in the future. Id. at *8-9. STB seeking clarification of the assets to be transferred to it
and the establishment of a procedure for disbursing the funds
The STB also refused RVI’s request that the STB reopen from the escrow account to pay for repairs to the line. In a
the line valuation to consider evidence of the line as an decision on November 9, 2001, the STB clarified the extent
 5DLOURDG9HQWXUHVHWDO 1RV 1RV 5DLOURDG9HQWXUHVHWDO 
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FRUULGRU  7KH 67% H[SODLQHG WKDW LW KDG FUHGLWHG DOO WKH assembled corridor, except for in one limited area, adjusting
³FRQYLQFLQJHYLGHQFH´RIDVVHPEOHGFRUULGRUYDOXHOLPLWHG the value of the land upward somewhat to reflect timely
WR WKH FRQWUDFW IRU VDOH RI  DFUHV RI ODQG WR %RDUGPDQ evidence of a contingent sale of 20.6 acres to the Park District
7RZQVKLSDQGWKHHDUOLHUVDOHRIDQDHULDOHDVHPHQWWR2KLR for a 4.2 mile bicycle trail, for which RVI had earlier
(GLVRQ&RPSDQ\7KH67%UHIXVHGWRFUHGLWRWKHUFRUULGRU submitted a signed contract. Because RVI had a contract to
YDOXDWLRQHYLGHQFHEecause RVI had not presented it in the sell its rights on the 4.2 mile segment to the Park District in
form of a signed sale agreement or firm purchase offer. Id. at the event that the line were abandoned, the STB revalued the
* 6-7. Finally, the STB reconfirmed its conclusion that the acreage sold to the Park District at the contract price of
proper track salvage value was limited to $400,000 based $600,000, and revalued the remaining portion of the land
upon the 1996 sale to Kovalchick. The STB explained that within Boardman Township (approximately two acres) at
"if abandonment had occurred, RVI could not have resold the $19,306. The STB’s revaluation of the land thus yielded a
track and materials to a different company for any price, total land value of $817,868, from which it subtracted
because it earlier had sold the future salvage rights for $100,000 for income assigned by RVI to a third party. The
$400,000." Id. at *7. RVI has filed a petition for this Court’s STB added the $717,868 to the new $400,000 track value and
review of the STB’s November 2, 2000 decision. By an order reached a total value for the rail line of $1,117,868. Id. at *
dated November 17, 2000, this Court denied RVI’s request 10-11.
for a stay pending judicial review.
However, the STB rejected all of RVI’s other reasons for
5. The STB’s December 7, 2000, January 17, 2001 and revaluing the land as an assembled corridor, concluding that
November 9, 2001 decisions RVI’s evidence, which included proposals by other park
districts to gain funding for trails on the line and an offer by
After the STB’s November 2, 2000 decision, a number of RVI to sell an easement to Williams for installation of fiber
issues arose between the parties resulting in several more optic cable, was not submitted prior to its setting the land
decisions of the STB. On December 7, 2000, the STB valuation in the January 7, 2000 decision and was
rejected a request from RVI to bind CCPA and its prospective "speculative." The STB explained:
operator, CCPR, to the 1996 "management agreement"
between RVI and OLE, Ltd., which required the payment to With the exception of the completed sale of an easement
a property manager of ten percent of the gross receipts from to Ohio Edison [that the Board had included in its prior
the operation, rent, or transfer of the rail line. R.R. Ventures, valuation of the land], there is no comparable signed
Inc.  Abandonment Exemption  Between Youngstown, OH, contract for sale of rights for other utility easements on
and Darlington, PA, in Mahoning and Columbiana Counties, any portion of the right-of-way. Nor is there a firm bid
OH, and Beaver County, PA, STB Docket No. AB-556 (Sub- from a purchaser that would be binding upon RVI’s
No. 2X), 2000 WL 1801264, at *2-3 (Service Date Dec. 7, acceptance.
2000). The STB found that this obligation, costing
approximately $137,000, subjected CCPA to unnecessary and Id. at * 9. The STB also refused to include the 4.012-acre
burdensome costs, possibly thwarting a sale of the rail line sale to the Park District because RVI had not identified the
under the OFA process, and was contrary to the primary
purpose of 49 U.S.C. § 10904, which is "to provide for
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location of the parcel, and did not argue that the contract for The STB then issued a decision on November 2, 2000,
sale demonstrated the value of the land. Id. at * 10. denying RVI’s motions to vacate and to stay the sale. R.R.
Ventures, Inc.  Abandonment Exemption  Between
Finally, the STB discussed CCPA’s evidence regarding Youngstown, OH, and Darlington, PA, in Mahoning and
removal of, or damage to, segments of the line and track. Columbiana Counties, OH, and Beaver County, PA, STB
Specifically, the STB responded to correspondence Docket No. AB-556 (Sub-No. 2X), 2000 WL 1648143introduced by CCPA that showed that RVI authorized "state (Service Date Nov. 2, 2000). The STB explained that
road crews [to] pave over the line while it was still an active pursuant to 49 U.S.C. § 10904(f)(2), an offeror, such as
rail line and at the same time that shippers were requesting CCPA, is obligated to file a notice of withdrawal from a sale
service." Because the STB found that RVI acted in "blatant within ten days of a STB decision setting terms, but it is not
disregard of its common carrier obligations to provide statutorily obligated to file a notice of acceptance. The STB
service," it acceded to CCPA’s request to establish an escrow also rejected RVI’s argument that CCPA had failed to comply
account for funding "to ensure that RVI pays for uncovering with the ten-day period for accepting or rejecting in writing
and restoring paved-over track and for reconnecting signal the STB’s terms pursuant to 49 C.F.R. § 1152.27(h)(7).
equipment at road crossings." Id. at * 11. The STB According to the STB, CCPA had provided proper written
accordingly directed that $375,000 of the sale price be placed notice when the STB set the initial sale terms on January 7,
into an escrow account, and ordered RVI to permit CCPA and 2000, and thus had complied with the regulation because the
its agents to inspect the line for damage. The STB then STB had not required another notice of CCPA’s acceptance
ordered RVI to convey to "CCPA all land, track, and related of its October 3, 2000 decision. The STB further rejected
material, and property interests covered by [its] previous RVI’s motion to vacate in light of CCPA’s October 20, 2000
order, as clarified here, within 45 days of the date of service letter of acceptance. Id. at * 3-4.
of this decision according to the terms of closing stated in this
decision." Id. at * 12. RVI, Boardman Township, and the 7KH 67% DOVR GHQLHG 59,¶V PRWLRQ IRU D VWD\ SHQGLQJ
Park District have filed petitions for review from the STB’s MXGLFLDOUHYLHZRIWKH2FWREHUGHFLVLRQ7KH67%
October 4, 2000 decision. ILUVW UHMHFWHG 59,¶V DUJXPHQW WKDW &&3$ KDG QRW SURSHUO\
DFFHSWHGWKH-DQXDU\WHUPVRIWKHVDOH59,DJDLQDGYDQFHG
4. The STB’s November 2, 2000 decision denying WKHDUJXPHQWWKDWWKH67%FRXOGRQO\IRUFHDQRZQHUWRVHOO
RVI’s motions to vacate and to stay the sale DVPXFKSURSHUW\DVQHFHVVDU\IRUUDLORSHUDWLRQVDQGWKDW
&&3$¶V DFFHSWDQFH RI D IHH LQWHUHVW ZDV JUHDWHU WKDQ WKH
After the STB’s October 4, 2000 decision, RVI filed a 67%¶V WHUPV  7KH 67% UHLWHUDWHG LWV ³UHEXWWDEOH
motion to vacate the sale and vacate postponement of the SUHVXPSWLRQ´WKDWDSXUFKDVHUZRXOGQHHGDOORIWKHVHOOHU¶V
abandonment exemption on the grounds that CCPA had not LQWHUHVWV³WRSURYLGHHIIHFWLYHWUDQVSRUWDWLRQVHUYLFHEHFDXVH
timely accepted the STB’s new sale terms. RVI also WKDWLVWKHSURSHUW\WKHVHOOHURULWVSUHGHFHVVRUDVVHPEOHG
requested a stay of the sale pending review by this Court. IRU DQG GHGLFDWHG WR UDLO VHUYLFH´ FRQFOXGLQJ WKDW &&3$
CCPA responded to this motion with a letter to the STB dated ZRXOGQHHGDOORI59,¶VLQWHUHVWLQWKHOLQH,GDW

October 20, 2000, advising both the STB and RVI that "it
accepts the revised terms and conditions." 7KH67%DOVRUHMHFWHG59,¶VFRQWHQWLRQWKDWWKH67%KDG
LJQRUHGHYLGHQFHRIQRQUDLOXVHRIWKHOLQHDVDQDVVHPEOHG