Robert Alan Kemp, dba NEVADA CENTRAL RAILROAD v. SURFACE TRANSPORTATION BOARD and UNITED STATES OF AMERICA

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
09-70576
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT ALAN KEMP, dba NEVADA
CENTRAL RAILROAD,
Petitioner,
v.
SURFACE TRANSPORTATION
BOARD and UNITED STATES OF
AMERICA,
Respondents.
No. 09-70576
STB No. AB-33 (Sub-No. 230X)
MEMORANDUM*
On Petition for Review of an Order of the
Surface Transportation Board
Submitted June 29, 2010**
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Robert Alan Kemp petitions for review of a decision of the Surface
Transportation Board (“STB”) upholding a decision of the Director of the Office of
FILED
JUL 13 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

09-70576 2
Proceedings rejecting Kemp’s offer of financial assistance (“OFA”) under 49
U.S.C. § 10904 to avoid abandonment of a rail line. We have jurisdiction under 28
U.S.C. §§ 2321(a) and 2342(5). We review the STB’s findings for substantial
evidence, 5 U.S.C. § 706(2)(E), and its procedural rulings for an abuse of
discretion, 5 U.S.C. § 706(2)(A). We deny the petition.
Substantial evidence supported the STB’s decision to reject Kemp’s OFA.
See Redmond-Issaquah R.R. Pres. Ass’n. v. Surface Transp. Board, 223 F.3d 1057,
1064 (9th Cir. 2000) (affirming STB’s conclusion that no potential existed for
future rail traffic or service).
The STB did not abuse its discretion by refusing to strike Union Pacific
Railroad Company’s responses to pleadings filed by Kemp because these responses
were expressly permitted. See 49 C.F.R. § 1104.13(a) (permitting replies or
motions addressed to pleadings filed with the STB). Contrary to Kemp’s
contention, Union Pacific provided all required information. See 49 C.F.R.
§1152.27(a) (identifying information that applicants for abandonment must supply
at the request of a party considering an OFA). Finally, the STB did not abuse its
discretion by refusing to serve as a trustee or as escrow agent for Kemp in
connection with his OFA, nor by denying Kemp’s request to amend his OFA.

-- 2 of 3 --

09-70576 3
Kemp’s request in his opening brief to correct the agency docket is denied.
Kemp’s motion for an extension of time to file an optional reply brief is denied;
Kemp filed an oversized opening brief that thoroughly addressed all relevant issues
and the parties submitted the entire record before the STB.
PETITION FOR REVIEW DENIED.

-- 3 of 3 --