Baros, et al v. Texas Mexican Rwy Co

United States Court of Appeals
Fifth Circuit
F I L E D
February 9, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03–41646
_______________
CHARLES BAROS; ET AL.,
Plaintiffs,
CHARLES BAROS; LES FURMAN; AND ROGER MILLER,
Plaintiffs-Appellants,
VERSUS
TEXAS MEXICAN RAILWAY COMPANY,
Defendant-Appellee.
* * * * * * * * * * * * * * *
ROBERT MARTIN; IRA SKLAR; DANIEL P. KUBECKA;
T.J. BABB HEIR’S PARTNERSHIP; AND RICHARD ANDERSON,
Plaintiffs-Appellants,
VERSUS
TEXAS MEXICAN RAILWAY COMPANY,
Defendant-Appellee.

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_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
Before JONES, SMITH, and STEWART,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In this property dispute, each of the plain-
tiffs (collectively, the “landowners”) owns a
parcel of land in Jackson or Victoria County,
Texas, subject to a railroad right-of-way re-
ferred to as the “Victoria Segment” of the
“Rosenberg Line.”1 The landowners sought a
judgment declaring that the portion of the Vic-
toria Segment’s right-of-way that abuts their
land reverted to them as a matter of law after
Southern Pacific Transportation Company
(“Southern Pacific”), the former owner of the
line, allegedly abandoned it. The district court
dismissed for want of subject matter jurisdic-
tion. We affirm.
I.
A.
Southern Pacific sought permission to
abandon the Victoria Segment in 1993 by fil-
ing a “Notice of Exemption” with the Inter-
state Commerce Commission (“ICC”),2 assert-
ing that no local traffic had moved over the
line during the previous two years.3 The
1 The Rosenberg Line is approximately 85
miles long and runs between Rosenberg and Vic-
toria, Texas. The Victoria Segment is approxi-
mately 62 miles long stretching from Wharton to
Victoria, Texas. Texas Mexican Railway Com-
pany (“Texas Mexican”) is the current owner of
the line, having purchased it from Union Pacific
Railroad Company (“Union Pacific”) on March 12,
2001; Union Pacific acquired the line in 1996 after
its merger with Southern Pacific.
2 The ICC was abolished effective January 1,
1996, and the Surface Transportation Board
(“STB”), in the Department of Transportation, was
created and charged with performing the functions
previously handled by the ICC. See ICC
Termination Act of 1995, Pub. L. No. 104–88, 109
Stat. 804, 49 U.S.C. § 701 note.
3 A rail carrier intending to abandon any part of
its railroad lines must file an application with the
STB. See 49 U.S.C. § 10903(a)(1)(A). The STB
has the authority to exempt a rail carrier seeking to
abandon a rail line from the ordinary procedures
applicable to rail abandonments if the carrier cer-
tifies that no local traffic has moved over the line
for at least two years; that any traffic on the line
can be rerouted over other lines; and that no formal
complaints regarding cessation of rail service on
the line are pending or have been decided within the
previous two years. See 49 C.F.R. § 1152.50(b).
If the STB agrees that a proposed abandonment is
exempt, it is required to consider whether the
railway to be abandoned is appropriate for use for
public purposes. See 49 U.S.C. § 10905; 49
C.F.R. § 1152.28(a)(1). If the agency determines
that the property is appropriate for public use, it is
authorized to impose conditions on the
abandonment of the line by the rail carrier, in-
cluding a prohibition on disposing of the property
for 180 days unless the property is first offered for
sale on reasonable terms for public purposes. See
(continued...)

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3
Notice of Exemption became effective on De-
cember 1, 1993, subject to a “public use condi-
tion,” imposed by the ICC, pursuant to 49
U.S.C. § 10906,4 prohibiting Southern Pacific
from disposing of the property for 180 days to
permit interested parties to acquire it for public
purposes.
In 1994, Southern Pacific entered into un-
successful negotiations with another rail car-
rier regarding a possible sale of the entire Ros-
enberg Line. Later that year, the Gulf Coast
Rural Rail Transportation District (“Gulf
Coast”), a consortium of governmental entities
and businesses, attempted to purchase or lease
the Victoria Segment from Southern Pacific to
preserve rail service, but the parties could not
come to an agreement on price.
Having failed to reach an agreement, but d-
etermined to prevent Southern Pacific from re-
moving the tracks, Gulf Coast filed a petition
in state court seeking to condemn the Victoria
Segment and requesting a temporary restrain-
ing order and temporary injunction. After the
state court granted the temporary restraining
order, Southern Pacific removed the matter to
federal court and sought to quash the state
court’s temporary restraining order. Gulf
Coast opposed the relief sought by Southern
Pacific and requested the federal court to issue
a temporary injunction.
On August 31, 1994, the district court
granted a preliminary injunction in favor of
Gulf Coast enjoining Southern Pacific from
removing tracks along the Victoria Segment.
In granting the preliminary injunction, the dis-
trict court found that Southern Pacific “clearly
expressed its intent to permanently abandon
the rail line from El Campo to Victoria” and
that Southern Pacific “consummated its aban-
donment of the rail line.” As a result, the dis-
trict court concluded that the “ICC no longer
exercises jurisdiction over the rail line.”5
In April 1995, while the Gulf Coast suit
was pending, Southern Pacific filed a letter
with the ICC reporting that the Texas Parks
and Wildlife Department had expressed an
interest in acquiring the Victoria Segment for
rail-banking and interim trail use purposes,
pursuant to the National Trails Act, 16 U.S.C.
§ 1247(d).6 In a decision and order issued on
May 4, 1995, the ICC reopened the abandon-
ment proceeding and issued a Notice of In-
terim Trail Use (“NITU”).7 The NITU ex
3(...continued)
49 U.S.C. § 10905.
4 This provision is now codified at 49 U.S.C.
§ 10905.
5 The Gulf Coast suit was remanded to state
court in July 1995 when the district court decided
to abstain from exercising jurisdiction in light of its
conclusion that the ICC no longer had jurisdiction
over the rail line. After the case remained inactive
for several years, Gulf Coast eventually opted to
nonsuit in October 2000.
6 The National Trails Act authorizes the
ICC/STB “to preserve for possible future railroad
use rights-of-way not currently in service and to
allow interim use of the land as recreational trails.”
Preseault v. ICC, 494 U.S. 1, 6 (1990). Under the
Act, a state, political subdivision, or private entity
may, in certain circumstances, acquire a rail right-
of-way, on terms established by the ICC/STB, for
interim trail use, subject to future reactivation of
rail service over the line. See 16 U.S.C. § 1247(d);
49 C.F.R. § 1152.29.
7 The term “NITU” is used in exempt aban-
donment proceedings, but in regulated abandon-
ment proceedings the STB issues a “Certificate of
(continued...)

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4
tended t he effective date of the notice of ex-
emption for 180 days, to November 8, 1995,
thereby deferring Southern Pacific’s authority
to abandon the line and permitting negotiations
for possible rail-banking and interim trail use
to continue through that date.
In an effort to permit continued negotia-
tions between the Texas Parks and Wildlife
Department and Southern Pacific, the negotia-
tion period was extended on two more occa-
sions, first on November 17, 1995, by a deci-
sion of the ICC, and second on May 21, 1996,
by a decision of the STB. The final negotia-
tion period expired on November 30, 1996,
without an agreement.
Between 1995 and 1996, Southern Pacific
and Union Pacific had been engaged in negoti-
ations to merge. The STB approved the merg-
er on August 12, 1996, and Union Pacific suc-
ceeded to Southern Pacific’s ownership inter-
est in the Rosenberg Line.
In 1998, Texas Mexican and Union Pacific
entered into negotiations regarding the sale of
the Rosenberg Line. In November 1999, Un-
ion Pacific and Texas Mexican executed a
contract whereby Texas Mexican agreed to
purchase the line from Union Pacific on the
express condition that the STB issue a decision
determining that the Victoria Segment re-
mained subject to the STB’s jurisdiction and
authorizing the sale.
Texas Mexican thus petitioned the STB in
August 2000 to determine whether the Victo-
ria Segment was subject to the STB’s jurisdic-
tion and to authorize the sale. On December
8, 2000, the STB issued a decision granting
Texas Mexican’s petition, stating its conclu-
sion that it still retained jurisdiction over the
line, and approving the sale. In March 2001,
Texas Mexican purchased the line from Union
Pacific for $9,200,000.
B.
In May 2002, the landowners filed separate
declaratory judgment actions against Texas
Mexican in state court in Jackson County and
Victoria County. The landowners sought
judgments declaring that the railroad right-of-
way at issue (the Victoria Segment) was aban-
doned as a matter of law by Southern Pacific
and that the STB no longer exercises jurisdic-
tion over the line. Texas Mexican removed
the actions to federal court on the basis of a
federal question, i.e., whether there had been
an abandonment and a resulting termination of
federal agency jurisdiction; the actions were
consolidated.
Both sides moved for summary judgment.
The landowners moved for partial summary
judgment, contending that Southern Pacific
had abandoned the Victoria Segment as a mat-
ter of law as early as 1994, and, consequently,
the STB had been improperly exercising juris-
diction over the Victoria Segment. To that
end, the landowners maintained that the dis-
trict court’s findings of fact and conclusions of
law in the Gulf Coast suitSSnamely, its finding
that Southern Pacific had consummated the
abandonment of the Victoria Segment, and its
conclusion that the ICC no longer had
jurisdiction over the lineSSwere entitled to pre-
clusive effect in their declaratory judgment
action.
Texas Mexican moved for summary judg-
ment, claiming that the district court lacked
subject matter jurisdiction because (1) the STB
7(...continued)
Interim Trail Use” (“CITU”). See 49 C.F.R.
§ 1152.29 (c)-(d).

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5
retained exclusive and plenary jurisdiction to
determine whether the Victoria Segment had
been abandoned; and (2) the landowners’
declaratory judgment action was an improper
collateral attack on the STB’s December 15,
2000, decision approving the sale of the
Rosenberg Line from Union Pacific to Texas
Mexican.
In October 2003, the district court denied
the landowners’ partial summary judgment
motion and granted Texas Mexican’s summary
judgment motion, thereby dismissing the
landowners’ suit for want of subject matter
jurisdiction. In so doing, the court refused to
give preclusive effect to its prior decision in
the Gulf Coast suit, finding that it “was limited
to the issues surrounding the application for a
temporary injunction” and was thus not
reached after “a final hearing on the merits.”
In a thorough opinion, the court determined
that the conditional nature of the abandonment
exemption granted Southern Pacific by the
ICC was dispositive: It held that when an
abandonment exemption is conditional, the
STB retains jurisdiction over a railroad right-
of-way until it has been abandoned pursuant to
the conditions established by the agency; and,
in such cases, the agency retains exclusive and
plenary jurisdiction to determine whether there
has been an abandonment sufficient to
terminate its jurisdiction.
Because the original exemption granted to
Southern Pacific was conditional, the district
concluded that the STB retained exclusive jur-
isdiction to determine whether Southern Pacif-
ic or its successors in interest ever consum-
mated the abandonment of the Victoria Seg-
ment. Moreover, the court characterized the
landowners’ suit as an improper collateral at-
tack on ICC and STB decisions precluded by
the Hobbs Act, 28 U.S.C. § 2342(5), which
vests federal courts of appeals with exclusive
jurisdiction to review all final STB orders.
II.
The landowners contend that because the
“precise issue”SSwhether Southern Pacific
consummated the abandonment of the railway,
thereby terminating STB jurisdiction over the
lineSSwas decided in the Gulf Coast tempo-
rary injunction proceeding, that finding is en-
titled to preclusive effect. This plea for collat-
eral estoppel is unavailing.
A.
“Collateral estoppel vel non is a question of
law reviewed de novo.” Baby Dolls Topless
Saloons, Inc. v. City of Dallas, 295 F.3d 471,
478 (5th Cir. 2002). Where a party seeks to
employ collateral estoppel offensively, howev-
er, a court has broad discretion to determine
whether relitigation of an issue should be pre-
cluded. See, e.g., Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 331 (1979). “We thus
review the district court’s refusal to offensive-
ly apply collateral estoppel only for abuse of
the broad discretion afforded it.” Winters v.
Diamond Shamrock Chem. Co., 149 F.3d 387,
392 (5th Cir. 1998) (citing Copeland v. Mer-
rill Lynch & Co., 47 F.3d 1415, 1423 (5th Cir.
1995)).
B.
To determine whether collateral estoppel
applies, we consider whether
(1) the issue under consideration is identical
to that litigated in the prior action; (2) the
issue was fully and vigorously litigated in
the prior action; (3) the issue was necessary
to support the judgment in the prior case;
and (4) there is [any] special circumstance
that would make it unfair to apply the

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6
doctrine.
Winters, 149 F.3d at 391 (quoting Copeland,
47 F.3d at 1422). We have set out several
other “safeguards that must be present before
estoppel may be employed.” Id. As relevant
here, first among these additional safeguards is
a “requirement that the ‘facts and the legal
standard used to assess them are the same in
both proceedings.’” Id. (quoting Copeland, 47
F.3d at 1422). Second, we inquire whether “a
‘new determination of the issue is warranted
by differences in the quality of extensiveness of
the procedures followed in the two courts.’”
Id. (quoting Copeland, 47 F.3d at 1423)
(quoting RESTATEMENT (SECOND) OF
JUDGMENTS § 28(3))). Third, we regard the
availability of judicial review of the first
proceeding as being “of paramount importance
to the issue of preclusion.” Id. at 395.8
C.
The district court can hardly be said to have
abused its discretion by deciding that its find-
ing in the Gulf Coast suit was not entitled to
preclusive effect. Not only was the abandon-
ment finding entered only ten days after Gulf
Coast sued Southern Pacific, but it was made
under the legal standard applicable to issuance
of a temporary injunctionSSi.e., a substantial
likelihood of success on the merits in light of a
substantial threat of irreparable injury. Thus,
the abandonment finding cannot be said to
have been “fully and vigorously litigated in the
prior action,”9 nor was the question of aban-
donment assessed under the same legal
standard as would be applicable on a direct
petition for review of an order of the STB.10
Moreover, the prior abandonment finding
was not subject to judicial review. The district
court’s August 31, 1994, order granting the
temporary injunction, which incorporated the
court’s findings of fact and conclusions of law,
never went into effect because Gulf Coast
failed to post the bond required as a prerequi-
site.11 Southern Pacific thus had neither the in-
centive to appeal (because the judgment never
went into effect) nor the ability to appeal
(because the order was not final). Because we
have treated finality and the concomitant
availability of judicial review as an essential
8 Indeed, as noted in Winters, the Restatement
“specifically provides for an exception to preclu-
sion when ‘[t]he party against whom preclusion is
sought could not, as a matter of law, have obtained
review of the judgment in the initial action.’” Win-
ters, 149 F.3d at 395 & n.9 (quoting RESTATE-
MENT (SECOND) OF JUDGMENTS § 28(1)); see also
18 WRIGHT, MILLER & COOPER, FEDERAL
PRACTICE AND PROCEDURE § 4421, at 203 (1981)
(“Since appellate review is an integral part of the
system, there is strong reason to insist that preclu-
sion should be denied to findings that could not be
tested by the appellate procedure ordinarily avail-
able, either by appeal or cross appeal.”) (footnotes
omitted).
9 Winters, 149 F.3d at 391 (quoting Copeland,
47 F.3d at 1422).
10 See, e.g., Copeland, 47 F.3d at 1422 (“Col-
lateral estoppel does not preclude litigation of an
issue unless both the facts and the legal standard
used to assess them are the same in both pro-
ceedings.”).
11 Accord United States v. Assoc. Air. Transp.,
Inc., 256 F.2d 857, 861 (5th Cir. 1956) (noting
that until posting of the required bond the order
granting an injunction “was conditional and with-
out operative effect, and . . . there was, in short,
no order to appeal from”).

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7
predicate to issue preclusion,12 this fact alone
is sufficient to reject the landowners’ pre-
clusion argument.
Accordingly, given, inter alia, the tempo-
rary and limited treatment the issue of aban-
donment received in the Gulf Coast suit’s pre-
liminary injunction proceeding, the legal stan-
dard applied in that proceeding, and the un-
availability of judicial review, the district court
did not abuse its discretion in refusing to give
preclusive effect to its abandonment finding.
III.
Putting aside the question of estoppel, we
now consider anew the district court’s conclu-
sion that it lacked subject matter jurisdiction
“to determine whether Southern Pacific or its
successors in interest ever consummated the
abandonment of the Line.” We conclude that
because the abandonment authorization ini-
tially granted by the ICC was conditional, the
STB retained exclusive and plenary jurisdiction
to determine whether there has been an
abandonment sufficient to terminate its juris-
diction. Accordingly, the district court prop-
erly concluded that it lacked subject matter
jurisdiction to hear the landowners’ suit alleg-
ing that, as a matter of law, Southern Pacific
consummated the abandonment of the Victoria
Segment.
A.
Although the district court concluded that
it lacked subject matter jurisdiction over the
landowners’s suit, it did not dismiss the suit
under FED. R. CIV. P. 12(b)(1); rather, it dis-
missed for want of jurisdiction by granting
Texas Mexican’s summary judgment motion.
In any event, the distinction is ultimately of lit-
tle consequence for purposes of this appeal,
because “[w]e review dismissals for lack of
subject matter jurisdiction and grants of sum-
mary judgment de novo.” Hager v. Nations-
Bank, N.A., 167 F.3d 245, 247 (5th Cir. 1999)
(per curiam).13
B.
Once a rail carrier abandons a line, the line
is no longer part of the national transportation
system, and the STB’s jurisdiction terminates.
See Preseault, 494 U.S., at 5 n.3. Thus, in
proceedings in which the STB imposes no
conditions on an abandonment, the STB’s de-
cision to authorize the abandonment will end
its jurisdiction over the line.14
12 See, e.g., J.R. Clearwater, Inc. v. Ashland
Chem. Co., 93 F.3d 176, 179 & n.2 (5th Cir.
1996) (“Finality is an essential component of the
concepts of both res judicata and collateral estop-
pel.”); Avondale Shipyards, Inc. v. Insured
Lloyd’s, 786 F.2d 1265, 1269-73 (5th Cir. 1986)
(refusing to grant preclusive effect to partial sum-
mary judgment order on the basis that it was not
appealable); id. at 1270 (“We are not aware of any
federal appellate decision which has applied pre-
clusion to a prior nonfinal ruling as to which ap-
pellate review was unavailable . . . .”).
13 See also Martinez v. Dep’t of U.S. Army, 317
F.3d 511, 512 (5th Cir. 2003) (“This Court re-
views dismissals for lack of subject matter jur-
isdiction under Fed. R. Civ. P. 12(b)(1) based on
questions of law de novo.”); Pluet v. Frasier, 355
F.3d 381, 383 (5th Cir. 2004) (“We review the
grant of a motion for summary judgment de
novo.”).
14 See, e.g., Hayfield N.R.R. v. Chicago & N.W.
Transp. Co., 467 U.S. 622, 633 (1984) (“[U]nless
the Commission attaches postabandonment condi-
tions to a certificate of abandonment, the Commis-
sion’s authorization of an abandonment brings it
regulatory mission to an end.”); see also Lucas v.
Township of Bethel, 319 F.3d 595, 602 (3d Cir.
2003) (“In cases where the ICC has placed no
conditions on a railroad abandonment . . . the
(continued...)

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In contrast, where an abandonment is con-
ditional, the STB retains jurisdiction over a
railroad right-of-way until it has been aban-
doned pursuant to the conditions imposed by
the agency. See id.; Lucas, 319 F.3d at 603.
“In such cases, the agency also retains exclu-
sive, plenary jurisdiction to determine whether
there has been an abandonment sufficient to
terminate its jurisdiction.” Lucas, 319 F.3d at
603 (citing Friends of the Atglen-Susquehan-
na Trail, 252 F.3d at 262).
There is no dispute that Southern Pacific’s
authority to abandon the Victoria Segment
was expressly conditioned in several respects
by the ICC’s decision granting its Notice of
Exemption.15 First, the ICC imposed a 180-
day public use condition “to enable any State
or local government agency or other interested
person to negotiate the acquisition of the line
for public use.” Second, the ICC required
Southern Pacific to “consult with [the Texas
Natural Heritage Program] prior to initiating
any salvage activities on this line.” Third, the
ICC required that Southern Pacific “consult
with the [U.S. Army Corps of Engineering]
concerning future flood prevention measures
prior to initiating any salvage activities on the
line.” And fourth, the ICC prohibited South-
ern Pacific from “altering the historic integ-
rity” of a portion of the line until completion
of the National Historic Preservation Act re-
view process.
Because Southern Pacific’s abandonment
authorization was conditional, the district
court correctly determined that the STB re-
tained exclusive and plenary jurisdiction over
the line to determine whether there has been an
abandonment sufficient to terminate its jur-
isdiction. See id. Consequently, the court
correctly concluded that it did not have
jurisdiction to decide whether Southern Pacific
or its successors in interest abandoned the line.
C.
The landowners do not directly dispute any
of the foregoing. Instead, they contend that
Southern Pacific’s abandonment was automat-
ically consummated, as a matter of law, when
no agreement was reached on interim trail use
within the initial 180-day period imposed by
the ICC, thus depriving the agency of further
jurisdiction over the right-of-way and allowing
the landowners’ reversionary interests to vest.
According to this theory, the agency’s order of
May 4, 1995, reopening the Victoria
Segment’s abandonment proceeding and post-
poning the abandonment exemption’s effective
date for 180 days to allow for further interim
trail use negotiations, was for naught, because
the agency no longer had jurisdiction over the
line; the same was true for its November 17,
1995, and May 21, 1996, decisions further
postponing the effective date, and the STB’s
December 8, 2000, decision approving the sale
of the line to Texas Mexican.
It is not disputed that under STB regula-
tions a NITU, such as the one issued here (or
a CITU in nonexempt abandonment proceed-
14(...continued)
ICC’s decision to authorize an abandonment will
bring its jurisdiction to an end.”); Friends of the
Atglen-Susquehanna Trail, Inc. v. STB, 252 F.3d
246, 262 (3d Cir. 2001) (“Unless the STB attaches
post-abandonment conditions to a certificate of
abandonment or exemption . . . the authorization of
abandonment ends the Board’s regulatory mission
and its jurisdiction.”).
15 See S. Pac. Transp. Co.SSAbandonment Ex-
emptionSSIn Jackson, Victoria, and Wharton
Counties, TX, Docket No. AB-12 (Sub. No. 162X)
(Dec. 23, 1993).

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ings), converts into an effective certificate of
abandonment if no trail use agreement is
reached during the period allotted for negotia-
tion.16 But from this proposition the
landowners infer that abandonment is
consummated as a matter of lawSSand thus
agency jurisdiction terminatesSSif no interim
trail use agreement is reached upon expiration
of a NITU. This, however, is incorrect.
The relevant STB regulation states that ex-
piration of a NITU will “permit” a railroad ful-
ly to abandon the line, therefore indicating that
an effective certificate of abandonment au-
thorizes, but does not itself establish, complete
consummation of the abandonment.17 Thus,
“an effective certificate of abandonment
confers permissive authority on the railroad;
until the railroad actually consummates an
abandonment, none occurs, and the Commis-
sion retains jurisdiction over the railroad’s
right-of-way.” Birt, 90 F.3d at 589 (emphasis
added). The landowners’ claim that agency
jurisdiction was automatically terminated upon
expiration of the initial 180-day public use
negotiation period is, therefore, contrary to the
plain text of the governing regulations and is
based on an incorrect view of the abandon-
ment regime.18
Indeed, the problem with the landowners’
argument is more acutely perceived in light of
recent changes in the railway abandonment
regime. “Historically, the STB determined
whether an abandonment was consummated by
evaluating the rail carrier’s objective intent to
cease permanently or indefinitely all trans-
portation service on the line.” Lucas, 319
F.3d at 603 n.11. Because of the uncertainty
such an approach fostered as to a particular
line’s status, however, the STB, since 1997,
has required rail carriers to file with the agency
a letter confirming consummation of aban-
donment.19 Although a similar filing require-
ment was in effect before the Victoria Seg-
ment’s abandonment was authorized in De-
cember 1993,20 no such requirement was in ef-
fect when the Victoria Segment’s authoriza-
16 See, e.g., Birt v. STB, 90 F.3d 580, 583
(D.C. Cir. 1996) (“If the parties do not reach
agreement, the certificate of abandonment becomes
effective upon expiration of the CITU.”); id. n.11.
17 See 49 C.F.R. § 1152.29(d)(1) (“The NITU
will . . . permit the railroad to fully abandon the
line if no agreement is reached 180 days after it is
issued, subject to appropriate conditions, including
labor protection, and environmental matters.” (em-
phasis added); see also 49 C.F.R. § 1152.29(c)(1)
(“The CITU will . . . permit the railroad to fully
abandon the line if no agreement is reached 180
days after it is issued . . . .”) (emphasis added).
18 Moreover, the fact that an abandonment pro-
ceeding can be reopened to grant a NITU or CITU
more than 180 days after the abandonment exemp-
tion’s issuance, or that a NITU can be extended be-
yond the 180-day statutory period, provides further
support for this conclusion. See, e.g., Birt, 90
F.3d at 589 (upholding the STB’s authority both to
extend an NITU for more than 180 days and
retroactively to extend an NITU after its expira-
tion). That is, if, as the landowners contend, an
abandonment were automatically consummated as
a matter of law absent agreement 180 days after is-
suance of a NITU, the agency would be without
jurisdiction to reopen or extend the period for
negotiations.
19 See Lucas, 319 F.3d at 603 n.11 (citing
Becker v. STB, 132 F.3d 60, 61 n.2 (D.C. Cir.
1997)).
20 See, e.g., Consol. Rail Corp. v. STB., 93
F.3d 793, 798 (D.C. Cir. 1996) (noting pre-1984
requirement that rail carriers file with the ICC a
letter confirming consummation of abandonment).

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10
tion occurred.
Critically, no such public filing requirement
would be necessary if the STB’s jurisdiction
over a rail line ceased automatically as a
matter of law on the expiration of the 180-day
period imposed by a NITU. To the contrary,
this filing requirement implicitly recognizes
that the decision actually to abandon a line
rests with the carrier; it is only upon actual
consummation of the abandonment that the
STB’s jurisdiction ceases.
D.
As we have indicated, because the original
abandonment authorization was conditional,
the determination of whether there has actually
been an abandonment is within the primary and
exclusive jurisdiction of the STB. Despite the
STB’s exclusive jurisdiction to determine
whether the abandonment has been
consummated, however, the landowners’ suit
sought a declaration from the district court
that Southern Pacific had consummated the
abandonment of the Victoria Segment as early
as 1994 as a result of various acts and omis-
sions on the line.21 Whatever the merits of
these contentions, it is evident that the practi-
cal effect of the landowners’ suit is improperly
to challenge various ICC and STB decisions
that necessarily (albeit implicitly) decided that
Southern Pacific did not consummate the
abandonment of the Victoria Segment.
In at least four decisions and orders issued
after the conditional abandonment was autho-
rized in 1993, the ICC and STB exercised jur-
isdiction over the Victoria Segment.22 The
landowners stress that none of these decisions
ever directly held that Southern Pacific had not
consummated the abandonment of the Victoria
Segment. But what the landowners fail to
grasp is that each decision and order issued by
the ICC and STB after the initial abandonment
authorization in 1993 required continued
agency jurisdiction over the Victoria
SegmentSSand therefore no consummated
abandonmentSSto be valid agency action.
In other words, if, as the landowners main-
tain, Southern Pacific had in fact consummated
the abandonment of the Victoria Segment as
early as 1994, it follows that the agency was
ultra vires in each of its decisions between the
initial abandonment authorization and the
ultimate sale of the line, because once an
abandonment is consummated, the agency’s
jurisdiction terminates. See Preseault, 494
U.S. at 5-6 n.3; Birt, 90 F.3d at 585. Con-
sequently, each of the decisions and orders is-
sued by the ICC and STB between the initial
abandonment authorization and the ultimate
sale of the line necessarily (again, albeit im-
plicitly) determined that Southern Pacific had
21 The landowners point to the following alleged
acts and omissions on the part of Southern Pacific
to support their contention Southern Pacific
consummated the abandonment of the line: (1) its
removal of rails and ties; (2) its failure to repair
flood-damaged portions of the line; (3) its failure
to maintain mowing and spraying operations; and
(4) its failure to object to certain landowners’
fencing in portions of the right-of-way for grazing
purposes.
22 As we have indicated, these include the ICC’s
May 4, 1995, decision reopening the Victoria
Segment’s abandonment proceeding and post-
poning the exemption’s effective date for 180 days
to allow for interim trail use negotiations; the
ICC’s November 17, 1995, decision and the STB’s
May 21, 1996, decision further postponing the
exemption’s effective date to allow for continued
trail use negotiations; and the STB’s May 8, 2000,
decision approving the sale of the Rosenberg Line
to Texas Mexican.

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not consummated the abandonment of the
Victoria Segment.23
Therefore, “[a]lthough not in form a re-
quest for review of an ICC order, the practical
effect is to seek such a review.” Dave v.
Rails-to-Trails Conservancy, 79 F.3d 940, 942
(9th Cir. 1996). Pursuant to the Hobbs Act,
however, the courts of appeals have exclusive
jurisdiction over any action to enjoin, suspend,
or determine the validity of an STB order. See
28 U.S.C. § 2342(5). The proper means,
therefore, by which the landowners could have
challenged the STB’s continued jurisdiction
over the line, and the implicit decision that
Southern Pacific had not consummated the
abandonment, would have been to seek direct
judicial review (within sixty days) of any of the
ICC’s or STB’s orders. See 28 U.S.C. §
2344.
Of course, it is true generally that under 28
U.S.C. § 2344 only a “party aggrieved” by a
final agency order may seek direct judicial re-
view, and the term “party aggrieved” is “used
in a definitive sense in the statute, and limits
the right of appeal to those who actually par-
ticipated in the agency proceeding.” Am.
Trucking Ass’ns, Inc. v. ICC, 673 F.2d 82, 84
(5th Cir. 1982) (per curiam).24 But the fact
that only parties to the agency proceedings can
seek direct review under the Hobbs Act does
not excuse the Landowners from following
this exclusive procedure, thereby allowing
them collaterally to attack various agency or-
ders by maintaining a declaratory judgment
action in district court. Rather, this statutory
limit on the availability of direct review indi-
cates that the landowners had an affirmative
duty to intervene25 before the agency in any of
the proceedings involving the Victoria Seg-
ment beginning in 1994, when they claim
Southern Pacific consummated the abandon-
ment, until the STB’s approval of the sale of
the Rosenberg Line in 2000.
By failing affirmatively to act to protect
23 See King County v. Rasmussen, 299 F.3d
1077, 1089 (9th Cir. 2002) (“The STB implicitly
has answered this question by asserting jurisdiction
over the rail line; judicial review of the order must
be obtained directly from a court of appeals . . . .”).
24 See also Simmons v. ICC, 716 F.2d 40, 42
(D.C. Cir. 1983) (“This circuit has consistently in-
terpreted the phrase ‘party aggrieved’ to require as
a general matter that petitioners be parties to any
proceedings before the agency preliminary to is-
suance of its order.”). We note that, despite this
(continued...)
24(...continued)
rule, two Fifth Circuit cases suggest that nonpar-
ties may appeal ICC orders if “the agency action is
‘attacked as exceeding the power of the Com-
mission.’” Am. Trucking Ass’ns, 673 F.2d at 85
n.4 (quoting Schwartz v. Alleghany Corp., 282 F.
Supp. 161, 163 (S.D.N.Y. 1968)); see also Wales
Transp. Co. v. ICC, 728 F.2d 774, 776 n.1 (5th
Cir. 1984).
This line of cases has, however, been squarely
rejected by some of our sister circuits. See, e.g., In
re Chicago, Milwaukee, St. Paul & Pac. R.R.., 799
F.2d 317, 335 (7th Cir. 1986) (“The statute limits
review to petitions filed by parties, and that is
that.”); Erie-Niagra Rail Steering Committee v.
STB, 167 F.3d 111, 113 (2d Cir. 1999) (“We agree
with the Seventh Circuit in Chicago and the Dis-
trict of Columbia Circuit in Simmons. To the ex-
tent that non-parties were once permitted to appeal
ICC decisions, that avenue was closed by the clear
language of the Hobbs Act when it became
applicable to the ICC in 1975.”).
25 The applicable standards and requirements
for intervention in a proceeding before the STB are
set forth in 49 C.F.R. § 1113.7.

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their interests by intervening in the agency pro-
ceedings, the landowners cannot now advance
their claims in a collateral action that nec-
essarily challenges several agency decisions
and orders as being issued after the agency’s
jurisdiction over the line terminated:
[I]t is incumbent ‘upon an interested person
to act affirmatively to protect himself’ in
administrative proceedings, and . . . [s]uch
a person should not be entitled to sit back
and wait until all interested persons who do
so act have been heard, and then complain
that he has not been properly treated.’
Nader v. Nuclear Regulatory Comm’n, 513
F.2d 1045, 1054 (D.C. Cir. 1975) (footnotes
omitted) (quoting Red River Broad. Co. v.
FCC, 98 F.2d 282, 286 (D.C. Cir. 1938)).
AFFIRMED.

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