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DSSURYHWKHVDOHRIWKHUDLOOLQHDQGWKDWLWVOctober 4, 2000
decision approving the sale was not erroneous to the extent
that it ordered RVI to transfer its entire fee simple interest in
the property constituting the rail line that was the subject of
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
pay for track restorations and repairs were not arbitrary or
capricious. The STB also did not err in voiding the "Grade
Separated Crossing Settlement Agreement" ("GSCSA")
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
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whether the Ohio statutes at issue are preempted by the Federal Railroad
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
FRSA preempted WKH 0LFKLJDQ VWDWXWH SURKLELWLQJ WUDLQV IURP
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customers were required to endure long delays in getting to
their nursery when the primary access road was blocked by
waiting trains. Finding that "[t]he language of the statute
could not be more precise, and it is beyond peradventure that
regulation of KCS trains operations, as well as the
construction and operation of the KCS side tracks, is under
the exclusive jurisdiction of the STB unless some other
provision in the ICCTA provides otherwise," the Fifth Circuit
in Friberg held that the plaintiffs’ common claims of
negligence were preempted by the ICCTA. 267 F.3d at 443-
44.
In the present case, it is manifestly clear that Congress
intended to preempt the Ohio state statutes, and any claims
arising therefrom, to the extent that they intrude upon the
STB’s exclusive jurisdiction over "transportation by rail
carriers" and "the construction, acquisition, operation,
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."
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effect to the extent that these state statutes conflict with
federal law. Cipollone, 505 U.S. at 516 (citing Maryland v.
Louisiana, 451 U.S. 725, 746 (1981)).
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&/$<&LUFXLW-XGJHPetitioners, Railroad Ventures, Inc.
("RVI"), Boardman Township ("Boardman Township"), and
Boardman Township Park District ("the Park District") seek
review of several orders issued throughout the year 2000 by
Respondent Surface Transportation Board ("the STB") during
the course of a sale by RVI to Intervenor Columbiana County
Port Authority ("CCPA") of a 35.7-mile rail line ("the rail
line") extending from milepost 0.0 at Youngstown, Ohio to
milepost 35.7 at Darlington, Pennsylvania, with a connecting
one-mile segment near Negley, Ohio, pursuant to 49 U.S.C.
§ 10904. &&3$LVDTXDVLSXEOLFDJHQF\HVWDEOLVKHGE\WKH
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OHDVHWRRSHUDWHWKHUDLOOLQH The sale occurred after RVI,
which acquired the rail line from Youngstown & Southern
Railroad on November 8, 1996, submitted an application to
the STB for exemption from certain regulations, pursuant to
49 U.S.C. § 10502, and for authority to abandon the rail line
pursuant to 49 U.S.C. § 10903(a). For the reasons set forth
below, we AFFIRM the STB’s orders.
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49 U.S.C. § 10501(b). As explained by the Ninth Circuit in
City of Auburn v. United States, 154 F.3d 1025, 1030 (9th
Cir. 1998):
Section 10501 of the ICCTA, which governs the STB's
jurisdiction, states the [B]oard will have exclusive
jurisdiction over "the construction, acquisition, operation,
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
with respect to regulation of rail transportation are
exclusive and preempt the remedies provided under
Federal or State law." 49 U.S.C. § 10501(b) (1997). . . .
The section unambiguously states: "The authority of the
Board under this subchapter is exclusive." Id.
154 F.3d at 1030 (emphasis in original).
In City of Auburn, the Ninth Circuit, endorsing a "broad
reading of Congress’ preemption intent, not a narrow one,"
rejected the City’s argument that Congress, through the
ICCTA, only intended preemption of economic regulation of
the railroads. Finding that Congressional intent was clear and
that preemption of rail activity is a valid exercise of
Congressional power under the Commerce Clause, the Ninth
Circuit affirmed the STB’s finding that state and local
environmental review laws were preempted pursuant to
§ 10501(b)(2).
The Fifth Circuit has also found preemption under 49
U.S.C. § 10501(b). In Friberg, 267 F.3d at 439, the Fifth
Circuit ruled that suits against the railroad (KCS) for
negligence were preempted by federal law under 49 U.S.C.
§ 10501(b). In that case, the plaintiffs, who operated a
landscape nursery, alleged that they lost business and
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
with both simultaneously, or where enforcement of state law
prevents the accomplishment of the full purposes and
objectives of federal law. See Cipollone v. Liggett Group,
Inc., 505 U.S. 504, 516 (1992); Friberg v. Kansas City S. Ry.
Co., 267 F.3d 439, 442 (5th Cir. 2001). "If the statute
contains an express preemption clause, the task of statutory
construction must in the first instance focus on the plain
wording of the clause, which necessarily contains the best
evidence of Congress’ preemptive intent." CSX Transp. Inc.
v. Easterwood, 507 U.S. 658, 664 (1993). Although there is
a presumption under the Supremacy Clause that Congress did
not intend to preempt state law, "an assumption of nonpre-
emption is not triggered when the State regulates in an area
where there has been a history of significant federal
presence." United States v. Locke, 529 U.S. 89, 108 (2000).
As set forth in 49 U.S.C. § 10501(b):
(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
(2) the construction, acquisition, operation,
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, is exclusive. Except as otherwise provided in this
part, the remedies provided under this part with respect
to regulation of rail transportation are exclusive and
preempt the remedies provided under Federal or State
law.
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from its interpretation of two provisions of the OFA statute:
the common carrier obligations of § 10904(f)(4)(A) and the
STB’s authority to set the terms and conditions of a forced
sale pursuant to § 10904(f)(1). Section 10904(f)(4)(A) bars
a purchaser of a rail line from transferring or discontinuing
service during the two years after the purchase, and restricts
the purchaser from transferring the line to anyone but the
seller for a five-year post-sale period. Thus, the STB acted
within its authority when it recognized that the GSCSA
impeded a line owner’s ability to perform rail operations by
conditioning a line owner’s full resumption of service with
the obligation to complete the projected improvements set
forth in the agreement. It was also reasonable for the STB to
view the provisions of the GSCSA as an intrusion onto its
§ 10904(f)(1) authority to fix the terms and conditions of an
OFA sale. Noting that "section 10904 represents a clear
legislative determination that rail service should be preserved
whenever there is an offeror willing to provide for continued
service," the STB did not act unreasonably in voiding the
GSCSA to the extent it imposed obligations on parties other
than Boardman Township and RVI, and to the extent it
required construction of an overpass or underpass before the
resumption of rail service. Because the STB has acted
rationally and in accordance with law, we therefore affirm the
order voiding the GSCSA.
Finally, we note that the ICCTA preempts the Ohio state
statutes in question to the extent that they intrude upon the
jurisdiction of the STB with regard to the regulation of rail
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;
(2) field preemption where Congress’ regulation of a field is
so pervasive or the federal interest is so dominant that an
intent can be inferred for federal law to occupy the field
exclusively; and (3) conflict preemption, where federal and

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is reactivated for rail service to submit the plans ". . . and
metes and bounds descriptions of any property to be
appropriated for the construction of the Crossing Project
. . . ," a later provision overrides the time period and
requires, among other things, completion of the project
and submission to [Boardman Township] of a 2-year
maintenance bond on the improvements, before rail
service can be resumed in full.
559HQWXUHV 2000 WL 1125904, at *2.
On appeal, Boardman Township challenges the STB’s
decisions declaring the GSCSA void and unenforceable
against CCPA, claiming that the purpose of the GSCSA was
not to interfere with rail operations, but to secure the health,
safety, and well-being of the residents of Boardman Township
pursuant to Ohio Rev. Code § 519.02, and to avoid the
imposition of liability on political subdivisions "for injury,
death, or loss to persons or property caused by their failure to
keep public roads, highways, streets, avenues, alleys,
sidewalks, bridges, aqueducts, viaducts, and public grounds
within the political subdivisions open, in repair, and free from
nuisance" under Ohio Rev. Code § 2744.02(B)(3). Boardman
Township contends that the STB’s goal of continued rail
service, where appropriate, should not wholly displace its
concerns for public safety and its duty to its citizens arising
under state law.
At the outset, we note that Boardman Township entered
into the GSCSA with RVI on November 5, 1999. Because
RVI had no legal right to transfer any property interests
associated with the rail line after filing its abandonment
petition, we thereby uphold the STB’s invalidation of the
GSCSA agreement.
In addition, we note that the STB acted within its authority
by invalidating the agreement on public policy grounds.
Here, the STB’s decision to invalidate the GSCSA stemmed
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KDYH DQ REOLJDWLRQ WR SURYLGH UDLO VHUYLFH XSRQ UHDVRQDEOH UHTXHVW EXW
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DW $EDQGRQPHQW FRQVLVWV RI ³D SHUPDQHQW RU LQGHILQLWH FHVVDWLRQ RI
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*LEERQV Y 8QLWHG 6WDWHV )G WK &LU "An
abandoned railroad corridor is one that is no longer used for rail service
and is removed from the national transportation system." Nat’l Ass’n of
Reversionary Prop. Owners, 158 F.3d at 137 n.1 (citing Presault, 494
U.S. at 6 n.3). ³$ OLQH WKDW LV QR ORQJHU LQ XVH EXW KDV EHHQ RIILFLDOO\
DEDQGRQHG PD\ EH UHDFWLYDWHG ODWHU DQG LV WHUPHG μGLVFRQWLQXHG¶´ ,G
FRQWLQXHGUDLOVHUYLFH6HH1DW¶O$VV¶QRI5HYHUVLRQDU\3URS
2ZQHUVY67%)G '&&LU (noting
that "[t]he ICCTA made some changes to the abandonment
application process, such as eliminating the processing
timetable and requiring that offers of financial assistance
[OFA] be filed within four months of an abandonment
application, see 49 U.S.C. § 10904(c)").
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WRGRVRZLWKWKH67%DQGVXFKDEDQGRQPHQWPXVWDGKHUHWR
FHUWDLQ HVWDEOLVKHG SURFHGXUHV´ A line owner may
"abandon any part of its railroad lines," 49 U.S.C.
§ 10903(d)(1), but cannot do so without the permission of the
STB. 49 U.S.C.§ 10903(a)(1)(A); VHH .XOPHU DQG
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³5DLOFDUULHUVPXVWREWDLQ67%DXWKRUL]DWLRQWRDEDQGRQUDLO
VHUYLFHRYHUWKHLUOLQHV´ *65RRILQJ3URGV&RY67%
)G WK&LU ³*65RRILQJ,´ (WKDQ$OOHQ
,QFY0DLQH&HQW55&R)6XSS '9W
QRWLQJWKDW³WKHTXDVLSXEOLFQDWXUHRIUDLOURDGVHQWDLOV
DKLJKHUGHJUHHRISXEOLFUHVSRQVLELOLW\WKDQLVUHTXLUHGRI
PRVW SULYDWH FRPSDQLHV´ A rail line owner is generally
obligated to maintain a diagram of the rail system it operates,
and if the owner wishes to abandon, it must "identify each
railroad line for which the rail carrier plans to file an
application to abandon." 49 U.S.C. § 10903(c)(2)(B). 49
C.F.R. § 1152.22(a)(4) further specifies that the information
comprising the abandonment application include:
[a d]etailed map of the subject line on a sheet not larger
than 8x10 ½ inches, drawn to scale, and with the scale
shown thereon. The map must show, in clear relief, the
exact location of the rail line to be abandoned or over
which service is to be discontinued and its relation to
other rail lines in the area, highways, water routes, and
population centers.
49 C.F.R. § 1152.22(a)(4).
7KH 67% DXWKRUL]HV OLQH DEDQGRQPHQWV LQ WZR ZD\V
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RUGLVFRQWLQXDQFH86&† G 7RLPSOHPHQW
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5. The STB did not err in voiding the "Grade Separated
Crossing Settlement Agreement" ("GSCSA") entered
into between RVI and Boardman Township
In its January 7, 2000 decision, the STB granted CCPA’s
request to declare the GSCSA unenforceable against it,
finding that enforcement of the GSCSA against CCPA would
unreasonably interfere with CCPA’s purchase of the rail line
and its future fulfillment of common carrier obligations. The
STB reiterated these conclusions in its October 4, 2000
decision, denying Boardman Township’s request for a stay
pending appeal of the January 7, 2000 decision. In both
decisions, the STB viewed the GSCSA as contrary to the
public interest in continued rail service. The STB’s January
7, 2000 decision provides a summary of the provisions of the
GSCSA:
Specifically, the [GSCSA] states that "RVI or its
successors and assigns (hereinafter referred to as ‘Line
Owner’) agree to undertake the necessary planning,
construction, and future maintenance of a grade separated
crossing at State Road 224 and at other such road
crossings as may be determined by [Boardman
Township] . . . ." Designating it as the "Crossing
Project" the [GSCSA] requires the Line Owner, within 3
months from the date the line is reactivated for continued
rail service, to prepare and submit for the approval of
[Boardman Township] and various state authorities
detailed plans and cost estimates for the acquisition of
additional property necessary for the construction of the
new grade separated crossing, including adjustments to
the public highway, which will carry the rail line over or
under Route 224 and other designated road crossings.
According to the [GSCSA], the Line Owner is
responsible for all the costs and expenses associated with
the Crossing Project. While these specific terms state
that the Line Owner has 3 months from the date the line

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Kovalchick contract initially and it should not be able to
profit from withholding information pertinent to the OFA
process. To hold otherwise would be to reward RVI for
undermining the integrity of the OFA process. Moreover, we
note that RVI does not contend that the Kovalchick contract
is unenforceable or that RVI would be able to sell the track to
anyone other than Kovalchick. Therefore, the STB provided
a reasoned explanation for revaluing the track and materials
in accordance with the terms of the Kovalchick contract.
b. Escrow of Funds for Repairs
RVI also challenges the STB’s action in the October 4,
2000 decision requiring CCPA to place $375,000 of the
purchase price in an escrow account to ensure that RVI paid
for restorations to the track and signals. The STB ordered the
creation of the escrow account because RVI had authorized
state workers to pave over parts of the track and damage
signals during its ownership of the embargoed line. RVI
argues that the escrow order was arbitrary because it was not
under a legal obligation to maintain the line for common
carrier operations due to its embargo status at the time that
RVI authorized the pavement of parts of the line and the
disconnection of signals. RVI also claims that the STB’s
escrow order was an unwarranted punitive measure.
RVI fails to demonstrate that the STB’s decisions in this
regard were arbitrary. Although RVI was not obligated to
provide service on the line during the pendency of the
embargo, see GS Roofing I, 143 F.3d at 391, the STB acted
reasonably in finding that RVI had an obligation to pay for
any damage to the line. Further, the record shows that, in a
series of letters from RVI Project Manager Dennis Matey to
state and local officials in Ohio, RVI acknowledged that it
would be responsible for any repair and reconnection costs.
Considering RVI’s conduct since acquiring the rail line, the
STB, quite wisely, required an escrow of funds to repair the
damage to the track done with RVI’s authorization.
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8QGHU† F DSURVSHFWLYH2)$SXUFKDVHU³PD\RIIHU
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† F ´ A party must file its OFA within ten days of
a decision from the STB granting a petition for abandonment
or exemption. 49 U.S.C. § 10904(c); 49 C.F.R.
§ 1152.27(c)(1)(i)(B). After a prospective purchaser has
"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
discontinued," 49 U.S.C. § 10904(d)(1) obligates the STB to
decide if the prospective purchaser is "financially
responsible." 8QGHU 86& † D D ³ILQDQFLDOO\
UHVSRQVLEOHSHUVRQ´LVGHILQHGWREH
DSHUVRQZKR±
LV FDSDEOH RI SD\LQJ WKH FRQVWLWXWLRQDO PLQLPXP
YDOXHRIWKHUDLOURDGOLQHSURSRVHGWREHDFTXLUHGDQG
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SURYLGHGRYHUVXFKOLQHIRUDSHULRGRIQRWOHVVWKDQ
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86&† D If a party files a timely OFA, and the
STB finds that the party is "financially responsible," then the
STB must postpone the abandonment of the line. 49 U.S.C.
§ 10904(d)(2).
Postponement of abandonment remains in effect until the
line owner and the prospective OFA purchaser (offeror) have
come to an agreement on the terms of sale, or until the STB
sets the terms of sale upon the request of either the line owner
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
as to all issues in dispute." See Iowa Terminal Ry. Co. v.
ICC, 853 F.2d 965, 969 (D.C. Cir. 1988) (noting that the
buyer "must present sufficient evidence of the line’s value to
meet that burden"). When setting the terms and conditions of
a sale of a rail line, the STB cannot set a price lower than the
"fair market value of the line." 49 U.S.C. § 10904(f)(1)(B).
Under § 10907(b)(2), the "constitutional minimum value of
a particular railroad line shall be presumed to be not less than
the net liquidation value of such line or the going concern
value of such line, whichever is greater." 49 U.S.C.
§ 10907(b)(2); 49 C.F.R. § 1152.27(h)(6); GS Roofing II, 262
F.3d at 771 (noting that "Congress authorized the Board,
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WREX\DQGUHPRYHWKHWUDFNIRU7KH67%UHGXFHG
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%HWZHHQWKH-DQXDU\DQG2FWREHUGHFLVLRQV&&3$
VXEPLWWHGHYLGHQFHRI59,¶VFRQWUDFWVHOOLQJWKHWUDFN
VDOYDJHULJKWVWR.RYDOFKLFNIRU7KH67%GHFLGHG
WKDWWKHVDOHQXOOLILHGVXEVHTXHQWILUPSXUFKDVHRIIHUV
DQGWKDWWKHYDOXHRIWKHWUDFNFRXOGQRWH[FHHGWKHDPRXQW
59,KDGUHFHLYHGDFFRUGLQJWRFRQWUDFW
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.RYDOFKLFNFRQWUDFW because the contract with Kovalchick did
not concern the fair market value of the track in 2000, and
because the contract with Kovalchick included a deeply
discounted salvage value based on the STB’s future
abandonment authorization, the STB properly points out that
RVI would not have been able to sell the track for any more
than it had received in 1996. Further, the STB justifies its
track revaluation, as stated in the October 4, 2000 decision, on
the ground that RVI failed to come forward with the

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under particular circumstances, to force the sale of a railroad
line at its ‘constitutional minimum value’ to a ‘financially
responsible person’").
49 U.S.C. § 10904(f)(2) gives an offeror ten days in which
to withdraw the offer to purchase a rail line following a
decision of the STB setting the terms of the sale. See also 49
C.F.R. § 1152.27(h)(7). By statute, only the offeror is
authorized to withdraw from the terms of a STB-directed sale.
49 U.S.C. § 10904(f)(2). Without a withdrawal by the offeror
within the ten-day period, the STB’s decision becomes
binding on both parties. 49 U.S.C. § 10904(f)(2);.XOPHU
)GDW ³,IWKH67%ILQGVWKDWDQRIIHUPHHWVFHUWDLQ
FULWHULDWKHUDLOURDGLVIRUFHGWRVHOOWKHOLQHWRWKHRIIHURU
DFFRUGLQJ WR WKH WHUPV QHJRWLDWHG E\ WKH SDUWLHV RU ZKHQ
QHFHVVDU\WHUPVLPSRVHGE\WKH67%´ 2QFHWKHUDLOOLQH
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IRU DW OHDVW WZR \HDUV 86& † I $ Nat’l
Ass’n of Reversionary Prop. Owners, 158 F.3d at 138 n.4
(noting that abandonment authorization in accordance with
the exemption procedures under § 10502 is available "when
no local traffic has run on the line in at least two years").
%6WDWHPHQWRI)DFWV
7KHVHFRQVROLGDWHGFDVHVLQYROYHDPLOHUDLOURDGOLQH
UXQQLQJIURP<RXQJVWRZQ2KLRWR'DUOLQJWRQ3HQQV\OYDQLD
ZLWK D FRQQHFWLQJ RQHPLOH VHJPHQW QHDU 1HJOH\ 2KLR
Without the authorization of the STB, 59,DFTXLUHGthe rail
line in question from the former Youngstown and Southern
Railroad Company for $730,000 on November 8, 1996. See
R.R. Ventures, Inc. ± $EDQGRQPHQW ([HPSWLRQ ± Between
Youngstown, OH, and Darlington, PA, in Mahoning and
Columbiana Counties, OH, and Beaver County, PA, 67%
'RFNHW1R$% 6XE1R; :/DW
6HUYLFH'DWH-DQ Upon purchasing the line, RVI
entered into a management agreement with OLE, Ltd.
("OLE"), whose managing member was David L. Handel, the

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VRPH GLVDELOLW\ RQ WKH SDUW RI WKH FDUULHU ZKLFK PDNHV WKH ODWWHU XQDEOH
SURSHUO\ WR SHUIRUP LWV GXW\ DV D FRPPRQ FDUULHU¶´ *6 5RRILQJ ,
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current president of RVI. Unbeknownst to the STB, RVI and
OLE, under the management agreement, expressed their
"intent to liquidate the property in whole or in part to
maximize the cash flow potential to both parties,"
contemplating the complete removal of railroad track and ties,
which the agreement termed "debris." See R.R. Ventures, Inc.
% Abandonment Exemption % Between Youngstown, OH, and
Darlington, PA, in Mahoning and Columbiana Counties, OH,
and Beaver County, PA, STB Docket No. AB-556 (Sub-No.
2X), 2000 WL 1801264, at *1 6HUYLFH'DWH'HF
To that end, RVI promptly sold the future right to salvage the
line’s tracks and materials to another company. RVI also
immediately canceled the lease of the Ohio & Pennsylvania
Railroad Company ("OPRC"), the only operator authorized to
provide service on the line, thus terminating rail service for
several shippers on the rail line, including Darlington Brick
and Clay Products Company ("Darlington Brick") and Insul
Products, Inc. ("Insul"). R.R. Ventures, 2001 WL 41202, at
*1.
As a consequence, OPRC declared an embargo on
November 19, 1996, stating the cancellation of its lease as the
cause. However, upon receiving complaints from Darlington
Brick and Insul, the STB’s Office of Compliance and
Enforcement ("OCE") investigated the cessation of rail
service. Thereafter, the STB reached an agreement with the
parties for service to be restored, and the embargo was
canceled. RVI also agreed to seek belated authority from the
STB to acquire the line. However, on December 18, 1996,
about one week after service on the line was restored, a
weather-related washout occurred that again prevented rail
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a 20.6 acre (4.2 mile) easement to the Park District for
$600,000, submitted by RVI initially in support of its
assembled corridor valuation. While the STB did not explain
why it had not included the Park District agreement in the
first valuation decision, it nonetheless stated that "RVI’s
evidence sufficiently described the location of this land, and
the signed sales contract was good evidence of the value of
that real estate." The STB refused to credit any other
evidence proffered by RVI in support of corridor valuation,
particularly an 11.7-mile aerial easement RVI had earlier
granted to Ohio Edison Company. RVI had included with its
evidentiary submissions evidence of a land easement to First
Energy Company covering the same tract, but the STB
concluded that including that easement in the valuation would
permit RVI to receive double compensation for the land. The
STB also refused to consider evidence submitted by RVI
pertaining to the sale of the four-acre parcel to the Park
District, concluding that RVI had failed to distinguish its
location from the 20.6-acre easement to the Park District, and
easement proposals from three other entities. The STB
concluded that RVI had showed only that the entities had
obtained funding for trails, not that they had entered into an
agreement with RVI.
Applying the proper burden of proof standard, the STB, in
its January 7, 2000 decision, determined that RVI’s evidence
was less authoritative in comparison to CCPA’s evidence.
The STB explained that it did not ordinarily accept
assembled-corridor valuation, absent executed sales contracts
for the entire corridor. See Boston & Maine Corp. %
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
conditions of a sale under section 10904, we cannot credit
speculative evidence, but rely upon firm bids (from a
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,
RVI and CCPA produced estimates of land value according
to two methodologies. RVI contended that the highest and
best value of the land was as a single non-rail corridor, with
a small number of purchasers obtaining easements or rights-
of-way over segments of the corridor. (J.A. at 1085-1119.)
CCPA proffered evidence of value according to the "across
the fence" ("AFT") methodology: dividing the tract into a
large number of parcels, valuing each parcel as if sold to
owners of adjoining parcels, and totaling the values of the
parcels. RVI’s assembled corridor methodology produced a
value of $1,472,930, while CCPA’s "AFT" methodology
estimated the land value at $450,000.
As between the two methodologies, the STB decided
CCPA’s approach was more appropriate. Specifically, the
STB rejected RVI’s assembled corridor methodology,
explaining that "[u]nless there is a specific documented
interest expressed by a potential purchaser of an intact
corridor, we do not consider this to be an acceptable method
of valuation for [net liquidation value] purposes." Although
RVI proffered copies of purchase agreements from the Park
District and Ohio Edison Company for trail and utility
easements, the STB rejected RVI’s estimate of value as
insufficient because the agreements pertained to portions of
the corridor, rather than the corridor as a whole. In contrast,
the STB accepted CCPA’s appraisal as "complete and
adequately supported and its . . . values appropriately
adjusted," describing the values stated in the appraisal as
"reasonable based on the comparable sales data presented."
Having accepted CCPA’s evidence, and subtracting $100,000
to represent an assignment by RVI for lease and interest
income, the STB reached a land value of $350,000.
Thereafter, in its October 4, 2000 decision, the STB
revisited the land valuation. The STB decided to adjust the
land value upward to include an executed sale agreement for
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service on the line. See R.R. Ventures, Inc. % Acquisition and
Operation Exemption % Youngstown & S. Ry. Co., STB
Finance Docket No. 33385, 1997 WL 392877, at *1 (Service
Date July 15, 1997).
Thereafter, on January 3, 1997, RVI filed a notice of
exemption invoking the class exemption provision at 49
C.F.R. 1150.31(a)(1) for retroactive authorization of its
purchase of the rail line, stating that it had been unaware of
the need to obtain the STB’s approval to acquire the line and
that it had purchased the line "for the purpose of conducting
rail freight common carrier operations" on it.,QUHVSRQVH
&&3$ DQG WKH 2KLR 5DLO 'HYHORSPHQW &RPPLVVLRQ
³25'&´ ILOHGSHWLWLRQVWRUHMHFWUHYRNHRUVWD\WKHQRWLFH
RIH[HPSWLRQFODLPLQJWKDW59,GLGQRWLQWHQGWRRSHUDWHWKH
OLQHDQGWKDWLWKDGSUHYLRXVO\PDGHDUUDQJHPHQWVWRVFUDSWKH
OLQH,QDQRUGHUHQWHUHGRQ-DQXDU\WKH67%UHMHFWHG
59,¶V QRWLFH RI H[HPSWLRQ EHFDXVH 59, KDG QRW
DFNQRZOHGJHG LWV FRPPRQ FDUULHU REOLJDWLRQV WR SURYLGH
VHUYLFHRQWKHOLQHDQGEHFDXVH&&3$KDGDOOHJHGWKDW59,
ZRXOGQRWRSHUDWHRUDUUDQJHIRUDQRWKHUSDUW\WRRSHUDWHWKH
OLQH 6HH R.R. Ventures, Inc. % Acquisition and Operation
Exemption % Youngstown and S. Ry. Co., STB Finance
Docket No. 33336, 1997 WL 7537, at *1-2 (Service Date Jan.
9, 1997).
Subsequently, the Ohio & Pennsylvania Railroad Company
("OPRC"), ORDC, CCPA, the North East Ohio Trade &
Economic Consortium, Mahoning County Commissioners,
and other public agencies provided funding for the repairs to
the line. However, when the Wintrow Construction
Corporation ("Wintrow") attempted on January 31, 1997 to

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obtain, through a general release, RVI’s permission to repair
the rail line in order to restore rail service, RVI rejected
Wintrow’s general release form and refused to permit the
necessary repairs to be made. As a result, the ORDC and
CCPA filed a declaratory action on February 5, 1997 to
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
refile for the requisite authority to acquire the rail line and
admonishing it not to interfere with OPRC’s rail operations
in the interim. See R.R. Ventures, 1997 WL 392877, at *2.
In its response on February 25, 1997, RVI claimed that it had
reached an agreement with the contractor hired to repair the
flood-damaged track, and that repairs would begin on
February 28, 1997 and would take about two months to
complete. Id. RVI also indicated its intention to file for the
legal acquisition of the rail line within 30 days of its letter. Id.
Given these assurances, the STB subsequently authorized
RVI’s retention of the line. A verified notice of exemption
allowing RVI to acquire and operate the rail line was
published on April 24, 1997. Notwithstanding the concerns
of the ORDC and CCPA that "RVI has not demonstrated the
remotest interest in undertaking the obligations and
responsibilities involved in an acquisition of an active line for
the purpose of conducting continuing rail freight common
carrier obligations," the STB denied their petition for a
declaratory order on July 15, 1997, as well as their petition to
reject or revoke the notice of exemption. To allay the
concerns of the ORDC and CCPA, however, the STB
required RVI to "submit biweekly reports to the OCE on the
status of the lines’ restoration and to provide specific details
of the cause of any delays in restoring service." Id. at *3.
Thereafter, RVI filed reports infrequently, and rail service
was restored for only a short period of time in 1997. After
repairs funded by state and local agencies were made to the
line, another washout occurred. After this washout, RVI
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As previously stated, the regulations place the burden of
proof on the offeror for all issues in dispute concerning the
terms and conditions of the sale. 49 C.F.R. § 1152.27(h)(3).
In its January 7, 2000 decision, the STB noted:
Placing the burden of proof on the offeror is particularly
appropriate in these proceedings because the offeror may
withdraw its offer at any time prior to its acceptance of
terms and conditions that we establish pursuant to a
party’s request. The rail carrier, on the other hand, is
required to sell its line to the offeror at the price we set,
even if the railroad views the price as too low.
559HQWXUHV 2000 WL 1125904, at *5. The STB explained
how this burden affected its method of valuing rail lines as
follows:
The burden of proof standard requires that, absent
probative evidence supporting the offeror’s estimates, the
rail carrier’s evidence is accepted. In areas of
disagreement, the offeror must present more specific
evidence or analysis or provide more reliable and
verifiable documentation than that which is submitted by
the carrier. Absent specific evidence supporting the
offeror’s estimates and contradicting the rail carrier’s
estimates, the fact that the burden of proof is on the
offeror requires that we accept the carrier’s estimates in
these forced sales proceedings.
Id.

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intervenor’s argument regarding demand for an evidentiary
hearing because another party "did not assert this specific
claim before us") (citing Ill. Bell Tel. v. FCC, 911 F.2d 776,
786 (D.C. Cir. 1990)). Accordingly, we DIILUPthe STB’s
October 4, 2000 decision to the extent that it ordered RVI to
transfer its entire fee simple interest in the rail line as
described in RVI’s abandonment petition.
3. The STB’s determination of the land value of the line
was not unreasonable or arbitrary
When setting the terms and conditions of a sale of a rail
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
49 U.S.C. § 10907(b)(1), the STB is directed to set the
purchase price for the forced sale of a rail line at "not less
than the constitutional minimum value." The "constitutional
minimum value" is defined as "not less than the net
liquidation value of such line or the going concern value of
such line, whichever is greater." GS Roofing II, 262 F.3d at
774; see also &)5† K GHILQLQJ³IDLUPDUNHW
YDOXH´DV³FRQVWLWXWLRQDOPLQLPXPYDOXHZKLFKLVWKHJUHDWHU
RIWKHQHWOLTXLGDWLRQYDOXHRIWKHOLQHRUWKHJRLQJFRQFHUQ
YDOXHRIWKHOLQH´ 7KH67%PXVWGHWHUPLQHWKHVDOHSULFH
³RQWKHEDVLVRIZKDWWKHVHOOHUZRXOGKDYHUHDOL]HGIURPWKH
VDOHRIWKHDVVHWVKDGWKHOLQHLQIDFWEHHQDEDQGRQHG´,RZD
7HUPLQDO )GDW,QWKH67%¶V-DQXDU\
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refused to fund any repairs and did not cooperate with the
public agencies that sought to restore service, despite the
repeated requests of local shippers and local and state
government officials to resume rail service. See R.R.
Ventures, Inc. % Abandonment Exemption % Between
Youngstown, OH, and Darlington, PA, in Mahoning and
Columbiana Counties, OH, and Beaver County, PA, STB
Docket No. AB-556 (Sub-No. 1X), 1999 WL 23286, at *2
(Service Date Jan. 22, 1999). 6SHFLILFDOO\ ,QVXO PDGH D
IRUPDO UHTXHVW RQ 'HFHPEHU IROORZHG E\
'DUOLQJWRQ%ULFNRQ-DQXDU\IRUUDLOVHUYLFHWREH
UHVWRUHGWRWKHLUIDFLOLWLHV
$W WKLV SRLQW 59, ILOHG D QRWLFH RI FODVV H[HPSWLRQ RQ
-DQXDU\WRDEDQGRQWKHUDLOOLQHFODLPLQJWKDW³WKH
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WR DEDQGRQDQGHLWKHUVDOYDJHLWRUSHUPLWRWKHULQWHUHVWHG
SDUWLHV WR DFTXLUH WKH OLQH WKURXJK WKH RIIHU RI ILQDQFLDO
DVVLVWDQFHSURFHGXUHVXQGHU86&†DQG&)5
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QRWLFH RI FODVV H[HPSWLRQ XQGHU &)5 WR
GLVFRQWLQXHVHUYLFHRYHUWKHUDLOOLQH+RZHYHUEHFDXVH59,
DQG 235& LPSURSHUO\ LQYRNHG WKH FODVV H[HPSWLRQ
SURFHGXUHWKH67%LQDGHFLVLRQILOHGRQ-DQXDU\
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WKHLU UHVSHFWLYH SHWLWLRQV IRU DEDQGRQPHQW DQG
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LV UHTXLUHG IRU WKH %RDUG WR PDNH DQ LQIRUPHG GHFLVLRQ RQ
ZKHWKHU WR DSSURYH WKH DEDQGRQPHQW RI WKLV OLQH RI UDLOURDG DQG
IRU RWKHU SDUWLHV ZKR PLJKW EH LQWHUHVWHG LQ SXUFKDVLQJ WKH OLQH
XQGHU VHFWLRQ WR UHVWRUH VHUYLFH
R.R. Ventures, Inc. % Abandonment Exemption % Between Youngstown,
OH, and Darlington, PA, in Mahoning and Columbiana Counties, OH,
and Beaver County, PA, STB Docket No. AB-556 (Sub-No. 1X), 1999
WL 23286, at *2 (Service Date Jan. 22, 1999).
2Q0D\59,VXEPLWWHGDQRWKHUDSSOLFDWLRQWRWKH
67%IRUH[HPSWLRQIURPFHUWDLQUHJXODWLRQVSXUVXDQWWR
86& † DQG IRU DXWKRULW\ WR DEDQGRQ WKH UDLO OLQH
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WKDWWKHOLQHKDGEHHQRXWRIVHUYLFHIRUWZR\HDUVGXHWRWKH
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YHULILHG VWDWHPHQW RI 'DYLG +DQGHO 59,¶V SUHVLGHQW ZKR
VWDWHGWKDW59,¶VULJKWRIZD\H[WHQGHGIURPPLOHSRVWWR
PLOHSRVWFRQVLVWLQJRIDFUHVDQGWKDWLWVQHW
OLTXLGDWLRQYDOXHRIPLOOLRQZDVEDVHGXSRQDIXOOIHH
LQWHUHVWLQWKHSURSHUW\
&&3$ WKHQ UHOLHG XSRQ +DQGHO¶V GHVFULSWLRQ RI WKH
SURSHUW\DQGKLVYDOXDWLRQRIWKHIXOOIHHLQWHUHVWLQWKHUDLO
OLQHZKHQLWSUHSDUHGLWVHVWLPDWHRIWKHSXUFKDVHSULFHGXULQJ
WKH2)$SURFHVV2Q$XJXVW&&3$LQYRNLQJWKH
2)$SURFHGXUHVVHWIRUWKLQ86&†DQG&)5
D UHTXHVWHG ILQDQFLDO GDWD DQG LQIRUPDWLRQ IURP
59,FRQFHUQLQJDQHVWLPDWHRIWKHPLQLPXPSXUFKDVHSULFH
UHTXLUHG WR NHHS WKH OLQH LQ RSHUDWLRQ WKH HVWLPDWHG QHW
OLTXLGDWLRQYDOXHRIWKHOLQHDQGGRFXPHQWDWLRQVKRZLQJWKDW
59,KDGPDUNHWDEOHWLWOHWRWKHODQGAlthough RVI provided
some of the information on August 10, 1999, it advised
CCPA to arrange for copying the valuation maps and deeds
for the line at RVI’s offices. However, when CCPA arranged
for its retained appraiser, Mr. John Rossi of Real Estate
Appraisal Associates, to visit RVI’s business office, he was
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County of Allegheny, 74 Pa. Cmwlth. 85, 90, 459 A.2d 1298,
1300 (1983) ("Black’s Law Dictionary defines a fee simple
estate as ‘one in which the owner is entitled to the entire
property, with unconditional power of disposition during his
life, and descending to his heirs and legal representatives
upon his death intestate.’").
Moreover, contrary to RVI’s contention, there was no
unconstitutional taking in this case. See U.S. Const. amend
V ("[N]or shall private property be taken for public use,
without just compensation."); In re Chicago, Milwaukee, St.
Paul and Pacific Ry. Co., 799 F.2d 317, 324 (7th Cir. 1986).
As set forth in 49 U.S.C. § 10907(b)(1), Congress authorized
the STB to force the sale of a railroad line at its
"constitutional minimum value" to "a financially responsible
person." GS Roofing II, 262 F.3d at 771. 7KDW LV ZKDW
RFFXUUHGKHUH6HH8QLWHG6WDWHVY$FUHVRI/DQG
86Q QRWLQJWKDWWKHFRQVWLWXWLRQDOPHDVXUH
RIMXVWFRPSHQVDWLRQLVZKDWDZLOOLQJEX\HUZRXOGSD\LQ
FDVKWRDZLOOLQJVHOOHU TXRWLQJ8QLWHG6WDWHVY0LOOHU
86
Finally, although it appears that the STB approved certain
transactions by RVI with third parties after RVI filed its
abandonment petition, we note that these transactions are not
being challenged on appeal. Specifically, CCPA, as an
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
approval of RVI’s conveyance of certain property interests
associated with the rail line after RVI filed its abandonment
petition, it is therefore unnecessary to remand for further
proceedings since CCPA is not seeking to acquire those
property interests not conveyed to it. See Platte River
Whooping Crane Critical Habitat Maintenance Trust v.
FERC, 962 F.2d 27, 37 n.4 (D.C.Cir.1992) (refusing to reach

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Notwithstanding, RVI argues that it should not be required
to convey a fee simple interest in the rail line because the
STB in its January 7, 2000 decision only required it to
transfer "all property by quit claim deed." As RVI notes, a
"quit-claim deed transfers only those rights which a grantor
has at the time of the conveyance." Finomore v. Epstein, 18
Ohio App.3d 88, 89, 481 N.E.2d 1193, 1196 (Ohio App.
1984) (citing Jonke v. Rubin, 170 Ohio St. 41, 41, 162 N.E.2d
116, 116 (1959)); Greek Catholic Congregation of Borough
of Olyphant v. Plummer, 338 Pa. 373, 377, 12 A.2d 435, 437
(Pa. 1940). At the time of the conveyance in these cases, RVI
was required to transfer a full fee interest in the property.
Thus, the STB’s order directing RVI to transfer "all property
by quit-claim deed" was tantamount to ordering it to transfer
a fee simple interest in the property associated with the rail
line.
In addition, because CCPA acquired a fee simple interest in
the rail line, RVI was required to transfer all its property
interests associated with the rail line. Under Ohio law, a fee
simple is the highest right, title and interest that one can have
in land; it is the full and absolute estate in all that can be
granted. Masheter v. Diver, 20 Ohio St.2d 74, 78, 253 N.E.2d
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
N.E.2d 110, 111 (1995) (defining "fee simple" as "[a]bsolute
ownership unencumbered by any other interest or estate;
subject only to the limitations of eminent domain, escheat,
police power, and taxation") (quoting the American Institute
of Real Estate Appraiser’s Dictionary of Real Estate
Appraisal (1984)). Equally, under Pennsylvania law, "[a] fee
simple absolute is a form of ownership in which a party has
unlimited power to sell, transfer, alienate, or bequeath the
property in any lawful manner." In re Estate of Rider, 711
A.2d 1018, 1021 (Pa. Super. 1998); see also Captline v.
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/DNH (ULH 3URSHUWLHV ,QF WR DOORZ &HQWUDO &ROXPELDQD 3HQQV\OYDQLD
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LQWHUFKDQJH ZLWK &6; 7UDQVSRUWDWLRQ ,QF DW PLOHSRVW DW RU QHDU
6WUXWKHUV DQG ZLWK 1RUIRON 6RXWKHUQ 5DLOZD\ &RPSDQ\ DW PLOHSRVW
DW +DVHOWRQ <DUG´ Columbiana County Port Auth. % Acquisition
Exemption % Certain Rail Assets of Pittsburgh & Lake Erie Props., Inc.,
in Mahoning County, OH, STB Finance Docket No. 33880, 2000 WL
821476, at *1 (Service Date June 26, 2000). :H QRWH WKDW <RXQJVWRZQ
6RXWKHUQ 5DLOURDG &RPSDQ\ ZKLFK RZQHG WKH UDLO OLQH DW LVVXH LQ WKH
SUHVHQW FDVHV EHIRUH LWV SXUFKDVH E\ 59, ZDV D ZKROO\ RZQHG VXEVLGLDU\
RI WKH 0RQWRXU 5DLOURDG &RPSDQ\ ZKLFK LQ WXUQ ZDV D ZKROO\ RZQHG
VXEVLGLDU\ RI 3LWWVEXUJK /DNH (ULH 3URSHUWLHV ,QF
denied access by RVI to the relevant valuation maps and
deeds.
On September 2, 1999, the STB granted RVI’s petition for
exemption pursuant to 49 U.S.C. § 10502, stating that any
party interested in purchasing the line for continued rail
service could submit an offer of financial assistance ("OFA"),
pursuant to 49 U.S.C. § 10904 and 49 C.F.R. § 1152.27(c)(1),
by September 13, 1999. See R.R. Ventures, Inc. %
Abandonment Exemption % Between Youngstown, OH, and
Darlington, PA, in Mahoning and Columbiana Counties, OH,
and Beaver County, PA, STB Docket No. AB-556 (Sub-No.
2X), 1999 WL 714565 (Service Date Sept. 3, 1999). In the
absence of an OFA, the exemption became effective October
3, 1999, allowing RVI to salvage track, ties, and other
railroad appurtenances, and to dispose of the right-of-way.
On September 3, 1999, one day after the STB granted
RVI’s exemption petition, CCPA formally notified RVI and
the STB that it was considering an OFA to purchase the line
for rail service. CCPA also petitioned the STB to toll the
period for submitting an OFA until 30 days after RVI had
supplied all requested documents and information.

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³SURPSWO\ WR SURYLGH RIIHURUV ZLWK DOO RI WKH LQIRUPDWLRQ
UHTXLUHGE\&)5 D ´6HHR.R. Ventures, Inc. %
Abandonment Exemption % Between Youngstown, OH, and
Darlington, PA, in Mahoning and Columbiana Counties, OH,
and Beaver County, PA, STB Docket No. AB-556 (Sub-No.
2X), 1999 WL 715271, at *2 (Service Date Sept. 10, 1999).
The STB also extended the effective date of RVI’s exemption
until forty days after RVI had provided the information. Id.
at *3.
Shortly thereafter, by a letter dated September 20, 1999,
CCPA’s attorney advised the STB and RVI that CCPA
expected to acquire a full fee interest held by RVI as well as
"all of the interests encompassed in RVI’s estimate of
purchase price to keep the line in operation." (J.A. at 545.)
RVI’s counsel responded the following day, stating that
"should CCPA determine that it is necessary to acquire a fee
interest in the right of way in order to operate the rail line
under 49 C.F.R. § 1152.27, RVI will convey such an
interest." (J.A. at 546.)
In a letter filed on October 12, 1999, CCPA informed the
STB that RVI had provided sufficient information for CCPA
to continue with its OFA and that it would file an OFA on or
before November 8, 1999, thirty days after receipt of the
information from RVI. See R.R. Ventures, Inc. %
Abandonment Exemption % Between Youngstown, OH, and
Darlington, PA, in Mahoning and Columbiana Counties, OH,
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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over the matter, any transactions affecting the property
interests associated with the rail line entered into by a rail
owner after filing an abandonment petition are invalid
$OWKRXJK WKH 67% HUUHG LQ LWV LQWHUSUHWDWLRQ RI
† I % ZHQRQHWKHOHVVDIILUPWKH67%¶V2FWREHU
GHFLVLRQWRWKHH[WHQWWKDWLWordered RVI to transfer its
entire fee simple interest in the property constituting the line
that was the subject of RVI’s exemption petition for
abandonment. In this case, RVI, in its abandonment petition
dated May 19, 1999, submitted the verified statement of its
president, David Handel, stating that RVI sought to abandon
the rail line comprising 302.016 acres from milepost 0.0 to
milepost 35.7, including "a short spur line and several
buildings referred to generically as the Negley Shops." RVI
placed the fair market value of the full fee interest "for the
302.016 acres of ground comprising the RVI right of way" at
$1,162,555. When CCPA thereafter inquired about the
property to be sold, RVI confirmed that "an ample description
of the line in question and the acreage involved in this rail
line" was provided in its abandonment petition. (J.A. at 860,
1681.) RVI also advised both the STB and CCPA in a letter
dated September 21, 1999 that "[s]hould CCPA determine
that it is necessary to acquire a fee interest in the right of way
in order to operate the rail line under 49 C.F.R. § 1152.27,
RVI will convey such an interest . . . pursuant to the
requirements of the STB’s OFA regulations." (J.A. at 546.)
Based upon RVI’s representations in its abandonment
petition, it was then CCPA’s prerogative, as a prospective
OFA purchaser, to determine how much of the rail line it
wished to acquire. In this case, CCPA sought to acquire a fee
simple interest in the entire rail line as described in RVI’s
abandonment petition. Therefore, CCPA was entitled to
acquire the entire fee simple interest in the property
comprising the rail line that was the subject of RVI’s
abandonment petition.

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these reasons, we conclude that the STB’s interpretation is
unreasonable.
Under § 10904(f)(1)(B), the STB’s task is not to determine
the extent of the property associated with the rail line that is
being transferred, but to set the terms of the sale in the event
that the parties cannot come to an agreement about these
terms. As explained, the determination about what property
is being conveyed in the sale of a rail line is made by the
parties to the transaction. Pursuant to the abandonment and
OFA provisions of the ICCTA, the abandoning rail line owner
identifies the property that is being abandoned in its
abandonment petition, while the prospective OFA purchaser
submits an offer to buy the rail line being abandoned, either
in whole or part. None of this requires the STB to determine
how much of the rail line is being acquired; the parties do
that. However, if the parties cannot come to an agreement
about the terms of the sale, the STB has the authority under §
10904(f)(1)(B) to set the terms and force the sale of a railroad
line at its constitutional minimum value.
Reading the ICCTA as a whole, we hold that once a rail
line owner files a petition seeking authority to abandon a rail
line, a qualified OFA purchaser is entitled to determine
whether to purchase the rail line, as described in the
abandonment petition, in whole or part. Therefore, a rail
owner seeking authority to abandon a rail line is not permitted
to reduce or diminish the property associated with the rail
line, as identified in the abandonment petition, until the OFA
process is concluded. Once a qualified OFA buyer has
offered to purchase the rail line, as described in the
abandonment petition, postponement of the abandonment
petition remains in effect until the line owner and prospective
OFA buyer have come to an agreement on the terms of the
sale or until the STB sets the terms of the sale upon the
request of either party. 49 U.S.C. § 10904(d)(2)-(f). As a
consequence, until such time that the STB loses jurisdiction
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On November 8, 1999, CCPA filed a timely OFA to purchase
the line for $419,360. This offer consisted of $350,000 for
the land and $69,360 for the track and materials. CCPA
compared its offer with RVI’s stated net liquidation value of
$1,607,555 ($1,162,555 for the real estate and $445,000 for
track salvage), offering explanations for the disparity in the
values, as required by 49 C.F.R. § 1152.27(c)(ii)(C ). Id. In
particular, CCPA’s estimate of a total track value of $69,360
was based upon the cost of disposing of approximately
125,214 bad cross ties, roughly 99% of the cross ties on the
line. Using RVI’s own estimate of tie disposal costs, CCPA
reduced RVI’s estimate by $375,642. Id. at *2.
In a decision on November 12, 1999, the STB found CCPA
to be "financially responsible" pursuant to 49 U.S.C.
§ 10904(d)(1). Id. The STB therefore postponed, pursuant to
49 U.S.C. § 10904(d)(2), the effective date of the exemption
authorizing RVI’s abandonment of the line during the
pendency of the OFA process. Id. The STB informed RVI
and CCPA that if they were unable to agree on a purchase
price for the line, then either party could request the STB, on
or before December 8, 1999, to set the terms and conditions
of the sale pursuant to 49 U.S.C. § 10904(e). Id.
By December 8, 1999, CCPA and RVI were unable to
agree on the amount to be paid for the rail line. Thus,
exercising its statutory right under § 10904(f)(1), CCPA filed
its request on December 8, 1999 for the Board to establish the
terms of the sale. CCPA requested a purchase price of
$441,700, consisting of $350,000 for the land and $91,705.67
for track materials. See R.R. Ventures, Inc. % Abandonment
Exemption % Between Youngstown, OH, and Darlington, PA,
in Mahoning and Columbiana Counties, OH, and Beaver
County, PA, STB Docket No. AB-556 (Sub-No. 2X), 2000
WL 1125904, at *1 (Service Date Jan. 7, 2000). CCPA also
requested that the STB clarify the property interests CCPA
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
interest in the land comprising the right-of-way, except in any
instance where, prior to the institution of this OFA
proceeding, RVI did not possess such an interest in the right-
of-way." In addition, CCPA advised the STB that it had
recently discovered that RVI, after being advised of CCPA’s
OFA submission, had entered into a series of transactions to
reduce the size and value of the property. Specifically, CCPA
sought invalidation of the November 5, 1999 Grade Separated
Crossing Settlement Agreement ("GSCSA") that RVI had
entered into with Boardman Township, purportedly extending
to RVI’s successors in interest, requiring the construction of
an overpass or underpass at a crossing between the railway
and a highway as a precondition to restoration of rail service.
Id. at * 2. CCPA also challenged other transactions entered
into by RVI without the STB’s authorization in violation of
the OFA procedures that reduced the value of the right-of-
way, including: (1) the sale of utility crossing easements to
First Energy Corporation (Ohio Edison Company) for
$893,000, allowing for permanent aerial easements along and
across the property; (2) the assignment to Venture Properties
of Boardman, Inc. ("VPB") of all right, title, and interest to
income, proceeds, accounts receivable, royalties, and other
payments arising from third-party agreements which are
attributable to the line; (3) the sale of a 4.012-acre segment to
Boardman Township Park District for $140,000; and (4) a
contingent agreement for the sale of approximately 20.6 acres
of the right-of-way for a 4.2 mile bicycle trail. Id. at * 4.
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possibility of interference with future rail service as a result
of conflicts between the purchaser of the rail line and parties
perhaps holding subsurface, aerial or easement rights acquired
after the abandoning rail carrier filed its petition seeking the
STB’s authority to abandon the line.
Interpreting § 10904(f)(1)(B) as part of a symmetrical and
coherent regulatory scheme, we therefore conclude that the
STB erred in construing the statutory provision as implying
a "rebuttable presumption" under which an OFA purchaser is
entitled to purchase all the property interests associated with
a rail line subject to an abandonment petition unless the
abandoning rail line owner shows that effective rail service
can be provided with less than the entire rail line. There are
several problems with the STB’s interpretation. First, there
is no apparent textual support in the statutory provisions or
the regulations governing the abandonment and OFA process
for implying a "rebuttable presumption." But more important,
by reading a rebuttable presumption into the statute, the STB
shifts the burden of proof to the abandoning rail line owner,
which is contrary to its own regulation that states that "the
offeror has the burden of proof as to all issues in dispute." 49
C.F.R. 1152.27(h)(3). As a practical matter, this may lead to
intractable problems in consummating the sale of rail lines, as
the present cases exemplify, defeating the purpose of having
an expedited abandonment process. Specifically, the STB’s
construal of the statute as implying a rebuttable presumption
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
STB’s decision regarding what property is necessary for
effective rail service appears arbitrary because it does not
seem to be based upon objective principles or criteria. For

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from a practical perspective since a prospective OFA buyer
has to act quickly, examining and evaluating pertinent data
about the condition of the line, its traffic and revenue before
submitting an OFA, which is due within ten days of the
decision of the STB granting a petition for abandonment or
exemption. 49 U.S.C. § 10904(c); 49 C.F.R.
§ 1152.27(c)(1)(i)(B). Thus, to ensure the efficacious
valuation of a rail line, it is essential that the property interests
associated with the rail line remain stable.
Maintenance of the status quo upon the filing of an
abandonment petition also promotes the practical goal of
properly administering the statute since the STB is obligated
to make certain decisions within a highly constrained time
frame so as to advance the goal of continuous rail service.
Specifically, it accords with the purpose of the forced-sale
provision set forth in 49 U.S.C. § 10904, which is to promote
the continuation of viable rail service, not simply the
maintenance of the rail line itself. See Hayfield, 467 U.S. at
630 (noting that the present § 10904 "represents a
continuation of Congress’ efforts to accommodate the
conflicting interests of railroads that desire to unburden
themselves quickly of unprofitable lines and shippers that are
dependent upon continued rail service"); Consol. Rail Corp,
29 F.3d at 712. Accordingly, the objective of continuing
viable rail service in behalf of interstate commerce in this
country, as well as commerce throughout the continent, is
better achieved by not permitting the transfer of property
interests associated with the rail line after the filing of the
abandonment petition. It also protects the integrity of the
OFA process by ensuring transparency. Ultimately, it
produces finality and certainty in the OFA process, leading to
the expeditious acquisition of a rail line and eliminating the
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59,UHSOLHGWR&&3$¶VUHTXHVWWRVHWWKHWHUPVRIWKHVDOH
RQ'HFHPEHUcontending that the STB should order
it to convey no more than the minimum property interest
necessary for the provision of rail operations, which it defined
as the track, related track appurtenances and a surface
easement for rail purposes. RVI suggested that a sufficient
interest would consist of surface rights enabling the purchaser
to use the line for rail purposes, "conveyed by means of an
easement, right of way agreement or quit claim deed subject
to various reservations or reversionary interests." RVI further
asked the STB not to set aside its third-party transactions
pertaining to the line, contending that it was not obligated to
inform CCPA of those transactions, since they would not
affect CCPA’s use of the right-of-way for rail services.
Despite the fact that RVI had valued the entire line at $1.6
million in its abandonment petition, RVI also challenged
CCPA’s requested purchase price, claiming that the limited
property interest in the rail line that it was prepared to sell to
CCPA was now worth $2,261,490, almost three times as
much as RVI paid for the rail line when it purchased it on
November 8, 1996. Specifically, RVI disputed CCPA’s
valuation method, offering its valuation of the surface rights
in the line as an assembled corridor to be worth $1,472,930
and valuing the track materials at $788,560.
1. The STB’s January 7, 2000 decision setting the
terms and conditions of the sale
The STB issued its decision setting the terms and
conditions for the sale of the rail line on January 7, 2000.
Explaining that the offeror in a forced sale bore the burden of
proof, the STB stated that it would accept the seller’s (RVI)
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,
but subtracted $58,000 for work to restore grade crossings, to

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3RUWODQG 7UDFWLRQ &R ± $EDQGRQPHQW ([HPSWLRQ ± ,Q 0XOWQRPDK
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reach a net salvage value for track and materials of $730,560.
Id. at *6. The STB rejected, however, RVI’s valuation of the
land as an assembled corridor. The STB explained:
Unless there is a specific documented interest expressed
by a potential purchaser of an intact corridor, we do not
consider this to be an acceptable method of valuation for
[net liquidation value] purposes. The highest and best
non-rail use is to sell parcels to adjoining landowners or
other interested parties. See Boston and Maine Corp. %
Abandonment % In Hartford and New Haven Counties,
CT, STB Docket No. AB-32 (Sub-No. 83), et al., slip op.
at 4 (STB served July 1, 1998) [1998 WL 348755, at *3].
Id. at *6. The STB summarized RVI’s evidence for valuing
the land as an assembled corridor as amounting to two
appraisals and copies of purchase agreements for trail and
utility easements, as well as expressions of interest to buy
some sections of the line, "but no firm offers to purchase the
entire right-of-way, much less an executed sales contract." Id.
Absent an executed sales contract or firm purchase offer for
an assembled corridor, the STB concluded that RVI could not
demonstrate that an assembled corridor was the "highest and
best use" of the line. Id.
In contrast, the STB accepted CCPA’s "across-the fence"
("ATF") valuation methodology, finding it "complete and
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sale, however, the STB cannot place any burden on the
offeree (i.e., the abandoning rail owner). See 49 C.F.R.
§1152.27(h)(3) ("The offeror has the burden of proof as to all
issues in dispute.")
In short, once the owner of a rail line submits a petition
seeking the STB’s authority to abandon the line, it must allow
a prospective OFA purchaser the opportunity to determine
how much of the line to acquire, as the line is described in the
abandonment petition. Thus, at the point of filing the
abandonment petition, the abandoning rail line owner cannot
reduce or diminish the rail line or the nature of the property
interests associated with the line. Because a rail line owner
is subject to the STB’s jurisdiction until such time that the
line has been properly abandoned or sold, it therefore must
maintain the status quo with respect to its property interests
in the rail line as described in its abandonment petition.
The primary reason for maintaining the status quo with
respect to the property interests associated with the rail line as
described in the abandonment petition is to allow a
prospective OFA buyer sufficient opportunity to assess
whether the acquisition of the line is economically viable and
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
embraces more than just the track necessary for the provision
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)
(noting that a "‘railroad line’ is not merely the service being
provided, but the physical properties and interests belonging
to the debtor that constitute the line"). Holding the status quo
from the filing of the abandonment petition is imperative

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which a prospective OFA buyer may offer to buy the line that
is the subject of an abandonment application"). )XUWKHU
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Thus, while a railroad may "abandon any part of its railroad
lines" under 49 U.S.C. § 10903(a)(1)(A), the STB is
permitted to authorize a prospective buyer under the OFA
provisions to purchase "that part of the railroad line to be
abandoned" under 49 U.S.C. § 10904(d). The line owner can
seek authority to abandon all or a part of its rail line, but if it
does so, then, pursuant to § 10904(f)(1)(B), a qualified OFA
purchaser is entitled to determine how much of the line it
wishes to acquire. Once the offeror seeks to purchase the
entire rail line or a portion thereof as described in the
abandonment petition, 49 U.S.C. § 10904(c), the STB is then
statutorily obligated to render a decision setting price and
other sale terms as to what the offeror seeks to buy, within
thirty days of a request to set conditions. 49 U.S.C.
§ 10904(f)(1)(A). Under this statutory provision, then, it
necessarily follows that neither the abandoning rail carrier nor
the STB can alter or amend what the OFA buyer has offered
to buy; rather, the STB can only set the terms on what the
offeror has proposed to purchase. In setting the terms of the
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adequately supported." Id. at *6. The STB also accepted
CCPA’s reduction in the value of the land by $100,000 due to
RVI’s assignment of lease and interest income to a third
party. Accordingly, the STB valued the land for the entire
line at $350,000, added in $730,560 for track and materials,
and set a purchase price of $1,080,560.
In addition to setting these terms and conditions for the
purchase of the line, the STB also addressed RVI’s third-party
transactions. Concerning the Grade Separated Crossing
Settlement Agreement ("GSCSA") between RVI and
Boardman Township, the STB acknowledged that while it
favored privately negotiated agreements in general, it would
deem void as against public policy any agreement imposing
restrictions unreasonably interfering with common carrier
obligations, citing United States v. Baltimore & Ohio R.R.
Co., 333 U.S. 169, 177-78 (1948) for the proposition "that
parties may not enter into trackage rights agreements that
abrogate rights and responsibilities under the statutory
provisions of the Interstate Commerce Act." Id. at *2. CCPA
opposed the GSCSA on the grounds that it created a condition
precedent to reestablishment of rail service and obliged
CCPA (or RVI’s successor in interest) to undertake extremely
costly construction projects to build the projected overpass or
underpass. According to CCPA, enforcement of the GSCSA
would cause it to forego its acquisition of the rail line, since
CCPA estimated that the cost of one overpass or underpass
would likely exceed the net liquidation value of the entire rail
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
Township and requiring construction of the grade separated
crossing as a precondition to resuming rail operations
unreasonably interfered with common carrier operations and
the OFA process. Id. Because the STB also found these
terms to "circumvent [its] statutory authority to set the terms
and conditions of the sale under 49 U.S.C. [§] 10904(f)(1),"
it thus concluded that these terms were unenforceable as
contrary to public policy. Id.
Although the STB voided the GSCSA, it decided not to set
aside the other transactions between RVI and other third
parties, which CCPA had challenged on the grounds that they
diminished the value of the line. As for the sale of utility
crossing easements to First Energy Corporation (Ohio Edison
Company), the transfer of all rights to Venture Properties of
Boardman, Inc. ("VPB") arising from third-party agreements
attributable to the line, the sale of a 4.012-acre segment to the
Park District, and the contingent sale of about 20.6 acres of
the right-of-way for a 4.2 mile bicycle trail, the STB
concluded that they did not interfere with rail operations, but
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
acres to the Park District was explicitly conditioned on the
continuation of rail service on the line.
The STB instructed CCPA to accept or reject the terms in
writing within ten days, ordered RVI and CCPA to close on
the deal within ninety days, and required RVI to convey "all
property by quitclaim deed." The STB further stated that if
CCPA withdrew from the sale or failed to accept by timely
written notification, then it would issue, within twenty days,
a decision authorizing abandonment. RVI, Boardman
Township, and the Boardman Township Park District have
filed petitions with this Court for review of the STB’s
January 7, 2000 decision.
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Kulmer, 236 F.3d at 1257.
Reading the statutory and regulatory scheme as a whole, we
discern a clear symmetry between the abandonment and OFA
provisions of the ICCTA. While a line owner may "abandon
any part of its railroad lines," it cannot do so without the
STB’s approval. 49 U.S.C. § 10903(a)(1)(A); GS Roofing I,
143 F.3d at 391. Significantly, when the owner of a rail line
seeks to abandon a line, it must "identify each railroad line for
which the rail carrier plans to file an application to abandon."
49 U.S.C. § 10903(c)(2)(B). Under 49 C.F.R. § 1152.22, an
owner seeking to abandon a rail line must set forth the
following information in its abandonment application:
[a d]etailed map of the subject line on a sheet not larger
than 8x10 ½ inches, drawn to scale, and with the scale
shown thereon. The map must show, in clear relief, the
exact location of the rail line to be abandoned or over
which service is to be discontinued and its relation to
other rail lines in the area, highways, water routes, and
population centers.
49 C.F.R. § 1152.22(a)(4). The ICCTA also directs that a rail
carrier seeking authorization to abandon a rail line under 49
U.S.C. § 10903 must promptly provide a party considering an
OFA with a report on the physical condition of "that part of
the railroad line involved in the proposed abandonment," as
well as other information required to determine the amount of
financial assistance needed "to continue rail transportation
over that part of the railroad line" and an estimate of the
minimum purchase price required "to keep the line or a
portion of the line in operation." 49 U.S.C. § 10904(b). An
OFA purchaser then has four months after the abandonment
petition has been filed to "offer to subsidize or purchase the
railroad line that is the subject of such application." 49 U.S.C.
§ 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
use, such as for a street, but could not take property to sell it
at a profit and pay for the improvement), aff’d, 281 U.S. 439
(1930).
The STB disagrees with RVI’s construction of 49 U.S.C.
§ 10904(f)(1)(B), arguing that the language on which RVI
focuses % "all facilities on the line or portion necessary to
provide effective transportation services" % does not pertain
to how much of the rail line a line owner can choose to
transfer, but instead concerns the extent of the line an OFA
purchaser may choose to buy. If the purchaser views less
than the entire amount of property as sufficient for rail
operations, then the purchaser may offer to purchase only that
amount. See, e.g., Iowa Terminal, 853 F.2d at 968
(describing purchaser’s offer for a 10.4-mile segment of a
26.1-mile line). If, however, an offeror, such as CCPA,
wishes to obtain all the property described in the
abandonment petition, the STB argues that it is reasonable to
presume that the entire amount is necessary for effective rail
services.
Although the STB’s construction of § 10904 is entitled to
deference, courts ultimately have the responsibility for
interpreting federal statutes. Crounse Corp., 781 F.2d at
1183. As pointed out by the Tenth Circuit in Kulmer:
"In determining whether Congress has specifically
addressed the question at issue, a reviewing court should
not confine itself to examining a particular statutory
provision in isolation." FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 130-132, 120 S. Ct. 1291,
1300, 146 L. Ed.2d 121 (2000). Rather, a court must
read the relevant provisions in context and, insofar as
possible, "interpret the statute ‘as a symmetrical and
coherent regulatory scheme.’" Id., 529 U.S. at 132-134,
120 S. Ct. at 1301 (quoting Gustafson v. Alloyd. Co., 513
U.S. 561, 569, 115 S. Ct. 1061, 131 L.Ed.2d 1 (1995)).
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2. The STB’s March 3, 2000 decision that CCPA
accepted the terms and conditions of the sale
Following the STB’s January 7, 2000 decision, CCPA sent
a letter dated January 12, 2000, which was received by the
STB on January 14, 2000, stating that it "hereby accepts the
terms and conditions established by the Board in its decision
served on January 7, 2000 for acquisition of Railroad
Ventures’ 35.7 mile line of railroad extending from milepost
0.0 at Youngstown, OH to milepost 35.7 at Darlington, PA,
and a connecting one mile line segment near Negley, OH."
CCPA added:
[CCPA] does so on the understanding, (1) that it will be
receiving a fee simple estate in the subject property free
and clear of any reservations, liens, encumbrances,
licenses, leases, easements or restrictions except those
which were in existence prior to November 8, 1999, and
considered by Mr. Rossi in the appraisal which was
adopted by the Board, and (2), that taxes on the subject
property will be apportioned as between the parties as of
the date of settlement.
(J.A. at 1211.) CCPA also sent the same letter to RVI on
January 12, 2000. After receiving this letter, RVI wrote to the
STB on January 18, 2000, objecting that CCPA’s letter did
not constitute a valid acceptance of the STB’s sale terms. On
January 20, 2000, RVI followed this letter with a petition to
the STB to vacate the decisions postponing the effective date
of the abandonment authority. RVI contended that by
accepting the STB’s terms "on the understanding" that it
would receive an unencumbered fee simple estate, CCPA
sought to alter in a material way the terms set by the STB,
which had ordered conveyance pursuant to a quitclaim deed,
without requiring RVI to make any warranty regarding the
title it possessed. RVI also argued that CCPA’s acceptance
was "conditional," not "absolute." Relying upon principles of

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contract law, RVI urged the STB to view CCPA’s letter as a
rejection of the terms set forth in the decision of January 7,
2000 and to treat the letter as the submission of a counteroffer
by CCPA.
On March 3, 2000, the STB issued a decision rejecting
RVI’s arguments regarding CCPA’s acceptance of the terms
set forth in the January 7, 2000 decision. See R.R. Ventures,
Inc. % Abandonment Exemption % Between Youngstown, OH,
and Darlington, PA, in Mahoning and Columbiana Counties,
OH, and Beaver County, PA, STB Docket No. AB-556 (Sub-
No. 2X), 2000 WL 246367 (Service Date Mar. 3, 2000). The
STB viewed CCPA’s letter dated January 12, 2000 as "a
valid acceptance" of the sale terms, noting that CCPA
followed RVI’s initial objection with another letter
"unequivocally" reiterating its acceptance. The STB
described CCPA’s second letter as follows:
By letter filed on January 19, 2000, CCPA states that it
has accepted the terms and conditions of the January 7
decision and explains that, given the history of its
dealings with RVI, the additional language in its
acceptance letter indicating its understanding of the
transaction was prudent and necessary.
Id. at *2. The STB then ordered RVI to convey by quitclaim
deed "all of its property interests, as discussed in this
decision, in its 35.7-mile line of railroad extending from
milepost 0.0 at Youngstown, OH, to milepost 35.7 at
Darlington, PA, and a connecting 1-mile line segment near
Negley, OH" provided that CCPA tendered payment on or
before April 6, 2000. Id. at *4. The STB also admonished
RVI that it should not "unilaterally diminish the assets or their
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49 U.S.C. § 10904(f)(1)(B). In its October 4, 2000 decision,
the STB interpreted the parenthetical language as follows:
it serves merely to clarify that an offeror need not
purchase the entire property slated for abandonment, but
can opt to acquire less than the full length of the line
where the offeror wishes to provide for continued rail
service on only a portion of the line.
R.R. Ventures, 2000 WL 1470451, at *6. In rejecting RVI’s
proposed interpretation of § 10904(f)(1)(B), the STB
articulated a presumption, rebuttable by the line owner, that
an OFA purchaser would need all the property interests
associated with the rail line in order to provide effective
transportation operations. Applying this rebuttable
presumption, the STB decided that RVI had failed to show
that CCPA could provide effective rail services on less than
the entire rail line.
In opposition to the STB’s interpretation, RVI construes 49
U.S.C. § 10904(f)(1)(B) as Congressional recognition that an
owner need not transfer all property comprising the line, and
as a rejection of the STB’s plenary power to force conveyance
of all property interests, particularly those unrelated to rail
operations. RVI explains that Congress recognized that some
of the property included in a rail line abandonment petition
might be necessary for rail operations, but some would not.
Further, according to RVI, the Fifth Amendment limits the
STB’s authority to force the sale of property for public
purposes. See Chicago & N.W. Transp. Co. v. United States,
678 F.2d 665, 668 (7th Cir. 1982) (suggesting that the price
set under the OFA proceeding must satisfy "just
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
VKLSSHUVDQGWKHJHQHUDOSXEOLFcomporting with the need to
sustain "DIXQFWLRQLQJLQWHUVWDWHUDLOURDGV\VWHP´ 5HGPRQG
,VVDTXDK)GDW%\QRWUHTXLULQJDFFHSWDQFHRQ
WKHSDUWRIDTXDOLILHG2)$SXUFKDVHU&RQJUHVVPDGHFOHDU
WKDWWKHRYHUULGLQJREMHFWLYHZDVWRSUHVHUYHUDLOVHUYLFHIRU
VKLSSHUVRYHUDOLQHWKDWZRXOGRWKHUZLVHEHDEDQGRQHG
7KXV LW LV XQQHFHVVDU\ IRU DQ 2)$ SXUFKDVHU VXFK DV
&&3$WRILOHDQDFFHSWDQFHRIWKHWHUPVRIWKHVDOHGiven
that CCPA never withdrew its offer to acquire the rail line
that RVI wanted to abandon, the sale was binding upon both
parties. 49 U.S.C. § 10904(f)(2). Accordingly, the STB had
jurisdiction to approve the sale of the rail line.
2. The STB’s October 4, 2000 decision was not
erroneous to the extent that it ordered RVI to
transfer its entire fee simple interest in property
constituting the rail line that was the subject of RVI’s
exemption petition for abandonment
RVI next argues that the STB exceeded its jurisdiction
under the statute because it ordered RVI to transfer more of
its property than was necessary for CCPA to provide effective
rail service. While CCPA requested RVI to convey a fee
simple interest in all the property comprising the rail line,
RVI contends that to conduct effective rail operations CCPA
requires no more than a surface fee or easement over the line.
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
OFA proceeding asks the STB to set terms, the STB must
determine the price and other terms of sale, except that in
no case shall the Board set a price which is below the fair
market value of the line (including, unless otherwise
mutually agreed, all facilities on the line or portion
necessary to provide effective transportation services).
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,Q WKH FRPSDQLRQ FDVH DOVR GHFLGHG E\ WKH 67% RQ 0DUFK
WKH 67% UHMHFWHG WKH SHWLWLRQV RI VKLSSHUV 'DUOLQJWRQ %ULFN DQG ,QVXO WR
UHRSHQ 59,¶V DFTXLVLWLRQ GHFLVLRQ 7KHVH VKLSSHUV FRQWHQGHG WKDW 59,
KDG XQGHUWDNHQ FHUWDLQ DFWLRQV WKDW PDGH UHVWRUDWLRQ RI WKH OLQH PRUH
GLIILFXOW DQG WKDW WKH 67% VKRXOG KDYH PRUH YLJRURXVO\ HQIRUFHG LWV RZQ
SROLF\ ZLWK UHJDUG WR 59,¶V YLRODWLRQV RI LWV FRPPRQ FDUULHU REOLJDWLRQV
55 Ventures, Inc. % Acquisition and Operation Exemption % Youngstown
& S. R.R. Co., STB Finance Docket No. 33385, 2000 WL 24367, at *3
(Service Date Mar. 3, 2000).
value." Id. RVI has filed a petition with this Court to review
the STB’s March 3, 2000 decision.
7KH67%¶V2FWREHUGHFLVLRQFRQYH\LQJWKH
UDLOOLQHWR&&3$
&&3$ QRWLILHG WKH 67% RQ 0DUFK that it was
prepared to tender payment to RVI, but that it had discovered
some inconsistencies between specimen deeds drafted by RVI
and the property description used by CCPA’s appraiser in
valuing the line. CCPA followed this letter with a petition,
submitted on March 28, 2000, for a declaratory order from the
STB invalidating any post-September 3, 1999 transfers or
assignments of property interests from RVI that were not
included in CCPA’s appraisal report. CCPA specifically
expressed concern about RVI’s secret conveyances of the
line’s non-rail crossing, aerial, and subsurface rights to its
affiliate VPB in late October and early November of 1999,
without informing CCPA or the STB about them. To ensure
that it would actually acquire what it purchased, CCPA
requested the STB to void "all transfers or assignments of
property rights in the railroad property not specifically
reflected in CCPA’s evidence on the value of the line." (J.A.
at 1250.)
Consequently, in a decision issued on April 5, 2000, the
STB ordered RVI to show cause why it should not set aside
the transfers of subsurface and aerial rights to VPB, and why

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the entire property considered in the January 7, 2000 decision
should not be transferred to CCPA. See R.R. Ventures, Inc.
% Abandonment Exemption % Between Youngstown, OH, and
Darlington, PA, in Mahoning and Columbiana Counties, OH,
and Beaver County, PA, STB Docket No. AB-556 (Sub-No.
2X), 2000 WL 351356, at *2 (Service Date April 5, 2000).
The STB explained that after RVI supplied information about
the line to CCPA on October 8, 1999, RVI had a continuing
duty to keep CCPA informed of any changes in the
information. The STB stated that "[b]y transferring assets
after October 8, 1999, and failing to immediately inform the
offeror and the STB, RVI has undermined the OFA process."
Id. at *1. The STB also noted that RVI’s proposed quitclaim
deeed to convey the 4.2 acre parcel to Boardman Township
Park District "directly contravenes our March 3, 2000
decision" and that "RVI may not transfer this parcel to the
Park District." Id. at *2 n. 2.
RVI responded to the show cause order on April 20, 2000
by claiming that 49 U.S.C. § 10904 required only the sale of
a surface easement, denying any intent to convey a fee simple
interest in the property. According to RVI, it only intended
to "convey an easement for railroad purposes together with all
track." Thus, RVI argued that if the STB forced RVI to
transfer its entire interest in all the property, including parts
that RVI believed were not related to rail service, at a price of
$350,000, the STB would commit an unconstitutional taking
in violation of the Fifth Amendment. Further, RVI
challenged the STB’s jurisdiction over "non-rail assets which
are not necessary for the provision of rail transportation
service," demanding that the STB dismiss its show cause
order and issue an order completing the sale.
In support of its position, RVI submitted a verified
statement from its president, David Handel, who stated that
RVI had informed CCPA of the transfer of subsurface and air
rights, third-party agreements, and surface easements at a
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regulation is "manifestly contrary to the statute." Ragsdale,
122 S. Ct. at 1160. Under the clear terms of § 10904(f)(2),
the offeror need not file an acceptance of the STB’s decision
setting the terms of the sale. Rather, an offeror needs to
respond to the STB’s decision only in the event that it wants
to withdraw its offer to purchase the line. Thus, once an
offeror has made an offer to purchase a line being abandoned,
and the STB has made a decision setting the terms of the sale,
then the sale of the rail line is binding upon both the rail
carrier selling the line and the offeror, unless the offeror
withdraws its offer within ten days of the STB’s decision
setting the terms of the sale.
In effect, the position of a prospective OFA purchaser
mirrors that of the abandoning rail owner abandoning the line.
In a forced sale under § 10904(f)(2), neither the purchaser nor
the abandoning rail owner is required to accept the STB’s
terms of the sale. However, the statute permits an OFA
purchaser, but not the abandoning rail owner, to withdraw its
offer within ten days of the STB’s decision imposing the
terms of the sale. Absent a withdrawal on the part of the OFA
buyer, the sale is consummated in accordance with the terms
imposed by the STB, pursuant to its exclusive and plenary
jurisdiction. Thus, the statute imposes, if you will, a "forced
acceptance" on the part of the OFA purchaser, unless the
buyer takes the affirmative action of withdrawing its offer.
Such a "forced acceptance" is the logical counterpart of the
forced sale provision of § 10904(f)(2), requiring the
abandoning line owner to sell in accordance with the terms of
the sale established by the STB.
Here, we construe the absence of any language in the
statute requiring a qualified OFA purchaser to accept the
terms of the forced sale as signaling Congress’ clear intention
not to require acceptance on the part of the purchaser. We
believe that the omission of language regarding acceptance by
an OFA purchaser UHIOHFWV &RQJUHVV¶ RYHUDUFKLQJ JRDO RI

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agreed to its sale terms and denied RVI’s motions to vacate
and to stay the sale of the rail line.
To determine whether the STB had jurisdiction to force
RVI to sell the line, we begin by examining the pertinent
statutory language. Pursuant to 49 U.S.C. § 10903, the STB
has exclusive and plenary jurisdiction over a rail carrier
seeking to abandon a rail line. 3UHVHDXOW86DW FLWLQJ
.DOR%ULFN86DW 5/7'5\&RUS)GDW
)ULHQGVRIWKH$WJOHQ6XVTXHKDQQD7UDLO)GDW
QAs previously stated, 49 U.S.C. § 10904(f)(2) gives
an offeror ten days in which to withdraw the offer to purchase
a rail line following a decision of the STB setting the terms of
the sale. Without a withdrawal by the offeror, the STB’s
decision becomes binding on both parties.
While the statute does not impose any requirements or time
constraints on the offeror concerning the acceptance of the
terms and conditions set by the STB, 49 C.F.R.
§ 1152.27(h)(7) does require the offeror to accept or reject the
STB’s terms and conditions within ten days. Specifically, 49
C.F.R. § 1152.27(h)(7) provides:
Within 10 days of the service date of the Board’s
decision, the offeror must accept or reject the Board’s
terms and conditions with a written notification to the
Board and all parties to the proceeding.
49 C.F.R. § 1152.27(h)(7).
In this instance, there is a clear conflict between the plain
language of the statute and the implementing regulation. The
statutory language of § 10904(f)(2) does not require the
offeror to "accept" the terms imposed by the STB within a
designated period of time, yet the implementing regulation
requires the offeror to accept or reject the terms within ten
days. Here, we conclude that 49 C.F.R. § 1152.27(h)(7)
must give way to 49 U.S.C. § 10904(f)(2) because the
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meeting on November 30, 1999. Handel noted that CCPA’s
appraiser John Rossi, who had filed an earlier verified
statement, disclaiming prior knowledge of the transfers of
subsurface and aerial rights, was not present at the meeting,
and thus had not included the transfers in his appraisal filed
in December of 1999. According to Handel, RVI "had
consistently maintained throughout this proceeding that
subsurface and aerial rights were not part of the interest which
RVI was prepared to convey to CCPA for purposes of
continued rail operations."
In response to RVI’s show cause filing, CCPA denied any
knowledge about the conveyance of subsurface or aerial rights
prior to March 23, 2000, stating that "a third party" brought
the matter to CCPA’s attention. CCPA also highlighted that
Handel had valued the land for abandonment purposes on the
basis of a full fee interest, and that RVI’s counsel had, on
September 21, 1999, stated that RVI would convey a fee
interest in the land. Finally, CCPA stated that an official of
Central Columbiana & Pennsylvania Railways, Inc.
("CCPR") had determined that the entire area of land,
including noncontiguous parcels, was necessary for rail
operations on the line. The official, Timothy Robbins, further
explained in a verified statement that RVI had undertaken or
authorized the removal of some track and the overpaving of
some rail crossings. Another CCPR employee, Walter Gane,
provided a verified statement that RVI "has not only allowed
the line to deteriorate, but has tacitly approved the destruction
of portions of the line, as well as other actions that have
caused the line to be inoperable, including paving over
multiple roadway crossings." Because the cost of restoring
these alterations was estimated to be approximately $335,000,
CCPA consequently requested that the STB order RVI to
place sufficient funds in escrow to cover the repair costs.
On May 10, 2000, RVI moved the STB to reopen the OFA
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"highest and best use" of the line. RVI accompanied this
motion with a verified statement from Handel, representing
that Williams Communications, Inc. ("Williams") had
contacted both RVI and CCPA about installing fiber optic
cable along the line. Handel stated that this information
"validates the contentions of RVI that the highest and best use
of its right-of-way is as a non-rail linear corridor." Though
RVI claimed that Williams intended to install a fiber optic
cable along RVI’s right-of-way, RVI admitted that "Williams
has not conducted any further negotiations with RVI" after
RVI submitted a proposal to it on behalf of VPB.
CCPA also petitioned the STB on May 19, 2000 to reopen
the proceedings based on new evidence, having just learned
that RVI’s former president Ron Hall had previously
contracted on November 15, 1996 to sell the salvage right to
the line’s track and track materials to Kovalchick Corporation
("Kovalchick") for $400,000. The agreement conditioned
Kovalchick’s right to remove track upon RVI’s obtaining
abandonment or exemption authority from the STB. In its
response to the STB, RVI admitted the sale of the salvage
rights to Kovalchick, but contended that the sale was
conditional and subject to the STB’s abandonment authority.
On October 4, 2000, the STB issued its decision regarding
its show cause order and resolved various issues that had
arisen since the January 7, 2000 decision setting the terms of
the sale. The STB first rejected RVI’s argument that,
pursuant to 49 U.S.C. § 10904(f)(1), it was only obligated to
convey an easement for railroad purposes and rail materials.
The STB stated:
Where (as here) the offeror does not seek to purchase less
than the entire property, we believe that it is reasonable
to assume that the entire property is needed for effective
transportation services. After all, that is the property the
selling/abandoning carrier (or its predecessor) assembled
for, and dedicated to, rail service.
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DQG 2FWREHU GHFLVLRQV EHFDXVH CCPA never
properly accepted the STB’s terms of sale. Accordingly, RVI
urges us to vacate the STB’s March 3, 2000 and November 2,
2000 decisions, in which the STB determined that CCPA had

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of RVI and VPB’s remaining rights in the rail line. R.R.
Ventures, Inc. % Abandonment Exemption % Between
Youngstown, OH, and Darlington, PA, in Mahoning and
Columbiana Counties, OH, and Beaver County, PA, STB
Docket No. AB-556 (Sub-No. 2X), 2001 WL 1396719, at *
4 (Service Date Nov. 9, 2001). In view of RVI’s interference
with the administration of the escrow fund, WKH67%IXUWKHU
GLUHFWHG&&3$³WRPDQDJHWKHIXQGVGLUHFWO\´DQG³FRPSOHWH
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When asked to review a decision of an administrative
agency, this Court employs a narrow standard of review. See
Simms v. Nat’l Traffic Safety Admin., 45 F.3d 999, 1003 (6th
Cir. 1995). )LUVWWKLV&RXUW³PXVWJLYHFRQVLGHUDEOHZHLJKW
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R.R. Ventures, Inc. % Abandonment Exemption % Between
Youngstown, OH, and Darlington, PA, in Mahoning and
Columbiana Counties, OH, and Beaver County, PA, STB
Docket No. AB-556 (Sub-No. 2X), 2000 WL 1470451, at *6
(Service Date Oct. 4, 2000). In reaching this conclusion, the
STB imposed a "heavy burden" on the abandoning carrier to
rebut the presumption that all the property was necessary for
effective rail operations. The STB concluded that RVI failed
to sustain this burden, finding that RVI’s "assurance" that the
property interests that it intended to convey to CCPA would
be sufficient to operate the rail line was "entitled to little, if
any, weight, considering that RVI has not had any experience
operating this, or any other, rail line." Id. The STB further
reasoned that dividing the surface rights from other property
rights in the land would be "impractical and unworkable" and
"could create constant tension between the owner of the rail
line (here, RVI’s affiliate VPB) or other easement holders . . .
and the holder of surface rights to conduct rail operations
(here, CCPA)." Id. Although RVI claimed that there would
be no problems between a railroad with surface rights and
other parties with subsurface or aerial rights, the STB was
not persuaded, however, that there can be any assurance
that rail operations will be unhampered unless the offeror
(who will be responsible for ensuring that rail service is
provided) possesses sufficient property rights to
determine unimpeded who may enter the right-of-way at
what times and under what circumstances, as well as
whether any underground or additional overhead cables
or similar structures would interfere with its own rail use
of the right-of-way.
Id. Accordingly, the STB ordered RVI to include in the
conveyance to CCPA "all property in the right-of-way,
including the subsurface and air rights, all real estate and
track, and all other rail materials." Id. at *12.

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The STB also voided RVI’s transfers of subsurface and
aerial rights to its affiliate, VPB, and the sale of 4.012 acres
to the Park District. Citing Kalo Brick, 450 U.S. at 320, the
STB held that these transfers violated the STB’s "continuing
and exclusive regulatory jurisdiction over the rail line prior to
its abandonment." Id. at *7. According to the STB, RVI’s
attempted conveyances after the commencement of the OFA
process amounted to "a blatant effort to strip away as much of
the property as possible to avoid including those portions of
the property in the OFA sale." Id. The STB further viewed
the transfers as "undermin[ing] the OFA sale by jeopardizing
CCPA’s ability to provide effective, uninterrupted rail
service." Id. Based upon the need "to protect the integrity of
the OFA process," the STB, relying upon its inherent
regulatory authority, reaffirmed its order directing that "RVI
sell to CCPA all of the interests that it acquired in this rail
line with the exception of the licenses and crossings to which
CCPA has acquiesced by reducing its assessment of the
valuation of the line . . . ." Id.
The STB also addressed evidence of RVI’s 1996 sale of the
track salvage rights to Kovalchick. While CCPA
characterized the Kovalchick sale as evincing RVI’s clear
lack of intention to operate the line and requested revocation
of the abandonment exemption on this ground, the STB
declined to revoke the exemption, but instead decided to
revalue the track and materials in light of the evidence of the
sale to Kovalchick. Specifically, the STB explained that RVI
had withheld information about the Kovalchick sale during its
earlier valuation of the line, "render[ing] meaningless the later
offer upon which [the] STB had relied." The STB determined
that the net salvage value for the track should be reduced to
the $400,000 that Kovalchick had paid for the right to salvage
the materials in the future. Id. at *8-9.
The STB also refused RVI’s request that the STB reopen
the line valuation to consider evidence of the line as an
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continued rail service." Id. at *2. The STB also rejected a
request from RVI to include language in the bill of sale
conditioning the sale on CCPA’s assumption of liability for
repair of track fixtures, concluding that this language
contravened the STB’s order creating an escrow account for
RVI’s payment of track repairs and restoration. Id. at * 3.
However, the STB granted a request from RVI to include
language in the instruments of conveyance indicating that the
transfer to CCPA was subject to future orders and decisions
of the STB and this Court.
CCPA then moved this Court for an injunctive order
compelling RVI to comply with the STB’s decisions and
enjoining RVI from collaterally attacking the STB’s decision.
In an order issued on January 5, 2001, a panel of this Court
partially granted CCPA’s motion, directing RVI to comply
with the October 4, 2000 and December 7, 2000 decisions of
the STB requiring the transfer of the rail line to CCPA. This
Court remanded the matter to STB "for the limited purpose of
specifying the form of the deed and bill of sale to be utilized
for the transfer and scheduling a new date for the closing."
Pursuant to this Court’s January 5, 2001 order, the STB
issued a decision on January 17, 2001, rejecting the proposed
deeds proffered by RVI, directing the parties to use the
proposed deeds proffered by CCPA, as well as its proposed
bill of sale, and setting a closing date of January 23, 2001.
R.R. Ventures, Inc. % Abandonment Exemption % Between
Youngstown, OH, and Darlington, PA, in Mahoning and
Columbiana Counties, OH, and Beaver County, PA, STB
Docket No. AB-556 (Sub-No. 2X), 2001 WL 41202, at *2-3
(Service Date Jan. 17, 2001).
Thereafter, in May of 2001, CCPA filed a request with the
STB seeking clarification of the assets to be transferred to it
and the establishment of a procedure for disbursing the funds
from the escrow account to pay for repairs to the line. In a
decision on November 9, 2001, the STB clarified the extent

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FRUULGRU 7KH 67% H[SODLQHG WKDW LW KDG FUHGLWHG DOO WKH
³FRQYLQFLQJHYLGHQFH´RIDVVHPEOHGFRUULGRUYDOXHOLPLWHG
WR WKH FRQWUDFW IRU VDOH RI DFUHV RI ODQG WR %RDUGPDQ
7RZQVKLSDQGWKHHDUOLHUVDOHRIDQDHULDOHDVHPHQWWR2KLR
(GLVRQ&RPSDQ\7KH67%UHIXVHGWRFUHGLWRWKHUFRUULGRU
YDOXDWLRQHYLGHQFHEecause RVI had not presented it in the
form of a signed sale agreement or firm purchase offer. Id. at
* 6-7. Finally, the STB reconfirmed its conclusion that the
proper track salvage value was limited to $400,000 based
upon the 1996 sale to Kovalchick. The STB explained that
"if abandonment had occurred, RVI could not have resold the
track and materials to a different company for any price,
because it earlier had sold the future salvage rights for
$400,000." Id. at *7. RVI has filed a petition for this Court’s
review of the STB’s November 2, 2000 decision. By an order
dated November 17, 2000, this Court denied RVI’s request
for a stay pending judicial review.
5. The STB’s December 7, 2000, January 17, 2001 and
November 9, 2001 decisions
After the STB’s November 2, 2000 decision, a number of
issues arose between the parties resulting in several more
decisions of the STB. On December 7, 2000, the STB
rejected a request from RVI to bind CCPA and its prospective
operator, CCPR, to the 1996 "management agreement"
between RVI and OLE, Ltd., which required the payment to
a property manager of ten percent of the gross receipts from
the operation, rent, or transfer of the rail line. R.R. Ventures,
Inc. % Abandonment Exemption % Between Youngstown, OH,
and Darlington, PA, in Mahoning and Columbiana Counties,
OH, and Beaver County, PA, STB Docket No. AB-556 (Sub-
No. 2X), 2000 WL 1801264, at *2-3 (Service Date Dec. 7,
2000). The STB found that this obligation, costing
approximately $137,000, subjected CCPA to unnecessary and
burdensome costs, possibly thwarting a sale of the rail line
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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assembled corridor, except for in one limited area, adjusting
the value of the land upward somewhat to reflect timely
evidence of a contingent sale of 20.6 acres to the Park District
for a 4.2 mile bicycle trail, for which RVI had earlier
submitted a signed contract. Because RVI had a contract to
sell its rights on the 4.2 mile segment to the Park District in
the event that the line were abandoned, the STB revalued the
acreage sold to the Park District at the contract price of
$600,000, and revalued the remaining portion of the land
within Boardman Township (approximately two acres) at
$19,306. The STB’s revaluation of the land thus yielded a
total land value of $817,868, from which it subtracted
$100,000 for income assigned by RVI to a third party. The
STB added the $717,868 to the new $400,000 track value and
reached a total value for the rail line of $1,117,868. Id. at *
10-11.
However, the STB rejected all of RVI’s other reasons for
revaluing the land as an assembled corridor, concluding that
RVI’s evidence, which included proposals by other park
districts to gain funding for trails on the line and an offer by
RVI to sell an easement to Williams for installation of fiber
optic cable, was not submitted prior to its setting the land
valuation in the January 7, 2000 decision and was
"speculative." The STB explained:
With the exception of the completed sale of an easement
to Ohio Edison [that the Board had included in its prior
valuation of the land], there is no comparable signed
contract for sale of rights for other utility easements on
any portion of the right-of-way. Nor is there a firm bid
from a purchaser that would be binding upon RVI’s
acceptance.
Id. at * 9. The STB also refused to include the 4.012-acre
sale to the Park District because RVI had not identified the

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location of the parcel, and did not argue that the contract for
sale demonstrated the value of the land. Id. at * 10.
Finally, the STB discussed CCPA’s evidence regarding
removal of, or damage to, segments of the line and track.
Specifically, the STB responded to correspondence
introduced by CCPA that showed that RVI authorized "state
road crews [to] pave over the line while it was still an active
rail line and at the same time that shippers were requesting
service." Because the STB found that RVI acted in "blatant
disregard of its common carrier obligations to provide
service," it acceded to CCPA’s request to establish an escrow
account for funding "to ensure that RVI pays for uncovering
and restoring paved-over track and for reconnecting signal
equipment at road crossings." Id. at * 11. The STB
accordingly directed that $375,000 of the sale price be placed
into an escrow account, and ordered RVI to permit CCPA and
its agents to inspect the line for damage. The STB then
ordered RVI to convey to "CCPA all land, track, and related
material, and property interests covered by [its] previous
order, as clarified here, within 45 days of the date of service
of this decision according to the terms of closing stated in this
decision." Id. at * 12. RVI, Boardman Township, and the
Park District have filed petitions for review from the STB’s
October 4, 2000 decision.
4. The STB’s November 2, 2000 decision denying
RVI’s motions to vacate and to stay the sale
After the STB’s October 4, 2000 decision, RVI filed a
motion to vacate the sale and vacate postponement of the
abandonment exemption on the grounds that CCPA had not
timely accepted the STB’s new sale terms. RVI also
requested a stay of the sale pending review by this Court.
CCPA responded to this motion with a letter to the STB dated
October 20, 2000, advising both the STB and RVI that "it
accepts the revised terms and conditions."
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The STB then issued a decision on November 2, 2000,
denying RVI’s motions to vacate and to stay the sale. R.R.
Ventures, Inc. % Abandonment Exemption % Between
Youngstown, OH, and Darlington, PA, in Mahoning and
Columbiana Counties, OH, and Beaver County, PA, STB
Docket No. AB-556 (Sub-No. 2X), 2000 WL 1648143
(Service Date Nov. 2, 2000). The STB explained that
pursuant to 49 U.S.C. § 10904(f)(2), an offeror, such as
CCPA, is obligated to file a notice of withdrawal from a sale
within ten days of a STB decision setting terms, but it is not
statutorily obligated to file a notice of acceptance. The STB
also rejected RVI’s argument that CCPA had failed to comply
with the ten-day period for accepting or rejecting in writing
the STB’s terms pursuant to 49 C.F.R. § 1152.27(h)(7).
According to the STB, CCPA had provided proper written
notice when the STB set the initial sale terms on January 7,
2000, and thus had complied with the regulation because the
STB had not required another notice of CCPA’s acceptance
of its October 3, 2000 decision. The STB further rejected
RVI’s motion to vacate in light of CCPA’s October 20, 2000
letter of acceptance. Id. at * 3-4.
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