William A. Lucas; August Lucas; David J. Kushon; Janie B. Kushon v. Township of Bethel

PRECEDENTIAL
Filed February 11, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 01-3946
WILLIAM A. LUCAS; AUGUST LUCAS;
DAVID J. KUSHON; JANIE B. KUSHON,
Appellants
v.
TOWNSHIP OF BETHEL; JAMES RIEDERER;
ROBERT E. PRUNTY; MARGARETTA REED;
ALLEGHENY VALLEY LAND TRUST
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 98-cv-01928)
District Judge: Honorable Donetta W. Ambrose
Argued April 30, 2002
Before: ROTH, NYGAARD and WEIS, Circuit Judges
(Opinion filed: February 11, 2003)
Andrew G. Kimball, Esquire (Argued)
Dickie, McCamey & Chilcote, P.C.
Two PPG Place, Suite 400
Pittsburgh, PA 15222-5402
Counsel for Appellees
Karen E. Chilcote, Esquire (Argued)
Lori D. Mendicino, Esquire
Robb, Leonard & Mulvihill
2300 One Mellon Bank Center
Pittsburgh, PA 15219
Counsel for Appellees
William C. Smith, Esquire (Argued)
7800 Perry Highway
Pittsburgh, PA 15237
Counsel for Appellants
OPINION OF THE COURT
ROTH, Circuit Judge:
This jurisdictional dispute requires us to decide whether
the District Court or the Surface Transportation Board

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(STB) has authority to resolve a property claim involving a
defunct railroad line. The line, known as the Allegheny
Secondary Track, was used by the Consolidated Rail
Corporation (Conrail) as a railroad right of way. In 1989,
the STB’s predecessor, the Interstate Commerce
Commission (ICC),1 granted Conrail unconditional
authorization to abandon the Allegheny Secondary Track.
See Section 308 of the Regional Rail Reorganization Act, 45
U.S.C. S 748(c). Conrail subsequently sold its interest in the
right of way to the Allegheny Valley Land Trust (AVLT),
which intended to convert the line to a trail use.
Notwithstanding Conrail’s sale to the AVLT, plaintiffs,
who own real property underlying the Allegheny Secondary
Track, claim that Conrail’s interest reverted to them when
Conrail abandoned its right of way. Thus, when the AVLT
_________________________________________________________________
1. Effective January 1, 1996, the ICC was abolished and the STB was
established to assume the responsibility of regulating rail transportation.
ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 804, 49
U.S.C. S 701, note. See Friends of Atglen-Susquehanna Trail, Inc. v. STB,
252 F.3d 246, 250 n.1 (3d Cir. 2001). With regard to events in this case
that predate the STB, we will refer to the ICC as the agency in place at
the time.
2
permitted the Township of Bethel to enter plaintiffs’
property and remove materials from the Allegheny
Secondary Track, plaintiffs brought this lawsuit, claiming
that the Township trespassed on their property and violated
their constitutional rights.
The District Court dismissed plaintiffs’ claims on the
ground that it lacked subject matter jurisdiction to
determine whether Conrail had abandoned its line. Despite
the ICC’s unconditional authorization of abandonment, the
District Court held that the STB retained exclusive
jurisdiction over the issue of abandonment. The court
reasoned that the STB would retain exclusive jurisdiction
unless and until it determined that Conrail fully abandoned
the rail line and that the abandonment occurred before the
AVLT converted the line to a trail use. Otherwise, the
current trail use of the Allegheny Secondary Track would
provide continued basis for STB jurisdiction under the
National Trails Act, 16 U.S.C. S 1247(d), and would prevent
the right of way from reverting to plaintiffs.
We will reverse the District Court’s dismissal of this
action. We hold that the ICC’s unconditional authorization
of abandonment was sufficient to end its jurisdiction over
the Allegheny Secondary Track. First, the abandonment
was authorized under S 308, a provision that substantially
limits the STB’s authority to place the usual conditions on
abandonment of a railroad right of way. Second, both the
Supreme Court and this Court have noted that the ICC’s
jurisdiction ends once it grants unconditional authorization
to abandon a line, as is the case here. Finally, the ICC was

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never asked to intervene and prevent abandonment by
certifying an interim trail use under the National Trail Act.
Thus, the Act’s provisions are inapplicable to this case. We
address these points in more detail below.
I. Facts and Procedural History
Plaintiffs own two separate parcels of real estate. In 1852,
a previous owner of the land subjected both parcels to a
railroad right of way, known as the Allegheny Secondary
Track. Since that time, a number of different railroad
companies have operated trains over the Allegheny
3
Secondary Track. Conrail acquired this right of way on
April 1, 1976, and had common carrier obligations on the
track from April 1, 1976, until June 8, 1989.
On June 8, 1989, the ICC authorized Conrail to
discontinue service over the Allegheny Secondary Track
pursuant to S 308(c) of the Regional Rail Reorganization
Act. Plaintiffs claim that Conrail’s interest in the right of
way reverted to them when Conrail abandoned the line
pursuant to the ICC’s order. Thus, plaintiffs deny that the
AVLT was authorized to allow the Town of Bethel to enter
plaintiffs’ property in order to remove ballast 2 from the right
of way.
A. Abandonment under S 308(c) of the Regional Rail
Reorganization Act.
In the Northeast Rail Service Act of 1981 (NERSA),
Congress amended the Regional Rail Reorganization Act of
1973 by adding S 308.3 Under S 308(c), Conrail may
abandon an unprofitable right of way by filing a notice of
insufficient revenues, waiting at least 90 days, and then
filing an application for abandonment. See 45 U.S.C.
S 748(c). The express language of S 308(c) requires the ICC
to grant Conrail’s application 90 days after it is filed and
allows the agency to delay abandonment only if an offer of
financial assistance is made within 90 days of Conrail’s
application. 45 U.S.C. S 748(c)-(d); 49 U.S.C.S 10904(d)(2).
The ICC has also noted that it may delay S 308
abandonments under the interim use provisions set forth in
the National Trails Act, 16 U.S.C. S 1247(d). See Rail
Abandonments--Use of Right of Ways as Trails, 2 I.C.C.2d
591, 613 (April 16, 1986).
Conrail initiated this abandonment procedure on October
31, 1985. It notified the ICC that it intended to abandon
the Allegheny Secondary Track by filing a notice of
Insufficient Revenues under S 308(c). Conrail filed an
_________________________________________________________________
2. Ballast is a coarse stone used to form the bed of a railroad track or
road.
3. The amendment adding S 308 was enacted as S 1156 of the NERSA,

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and as Subtitle E of the Omnibus Budget Reconciliation Act of 1981
(Public Law No. 97-35). It is codified at 45 U.S.C.S 748.
4
application for approval of abandonment well over 90 days
later, on March 8, 1989. On June 8, 1989, and as required
by S 308, the ICC authorized Conrail to abandon its line.
The ICC’s certificate of abandonment states that no offer of
financial assistance was made within 90 days of Conrail’s
application, and, thus, there was no reason to delay
approval under S 308(c). The June 8, 1989, certificate does
not suggest that the ICC intended to place any National
Trails Act conditions on Conrail’s abandonment of its line.
The ICC neither mentioned the provisions of 16 U.S.C.
S 1247(d) nor certified an interim trail use. 4 The ICC’s June
8 order has never been appealed and neither the ICC nor
the STB has ever reopened abandonment proceedings.
B. Sale of Conrail’s Right of Way.
After the ICC issued its order authorizing abandonment,
Conrail pursued the sale of its interest in the Allegheny
Secondary Track. One of the parties with which it
negotiated was the AVLT, a non-profit organization that
seeks to convert unused railroad beds into recreational
trails while preserving the road beds for future rail uses.
Before the AVLT purchased the Allegheny Secondary Track
rail corridor from Conrail, it entered into a bridge
maintenance agreement with the County of Armstrong and
the county’s Conservancy Charitable Trust. Both the bridge
agreement and a piece of related correspondence sent to
Conrail made reference to the AVLT’s intention to use the
property as a rail trail.
Conrail sold the rail corridor to AVLT on January 7,
1992. At the time of sale, all the equipment for operating
trains on the corridor remained intact. The sale agreement
explicitly allowed Conrail the right to remove the railroad
track and all its appurtenant materials, excluding ballast
and bridges. Conrail’s sale agreement also stated that it did
not contemplate providing rail service on the property.
_________________________________________________________________
4. Nor did it address the requirements of the National Historic
Preservation Act, 16 U.S.C. S 470f. See Friends of the Atglen-
Susquehanna Trail, 252 F.3d at 251. We need not address the
applicability of S 470f in this case, however, as there is nothing in the
record to suggest that the line abandoned by Conrail would be "eligible"
for inclusion in the National Register.
5
Several times after the sale, the AVLT declared its
intention to preserve the Allegheny Secondary Track as an
interim recreational use trail under the National Trails Act,
16 U.S.C. S 1247(d). Conrail, however, refused the AVLT’s
request to apply for an extension from the ICC to authorize

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"rail banking" of the corridor, as is require by ICC
regulations if the roadbed is to be preserved for trail use.
49 C.F.R. S 1152.29(c)(1). Moreover, the AVLT never filed for
an interim use with the ICC, another regulatory
requirement for trail use. 49 C.F.R. S 1152.29(a). On April
6, 1992, Conrail requested approval from the Pennsylvania
Public Utilities Commission (PUC) to remove rails and ties
at certain crossings along the Allegheny Secondary Track.
After October 15, 1992, when the PUC approved
abolishment of all but one of these crossings, Conrail
entered an agreement to sell various track materials,
excluding ballast, to a salvage company.
C. First state court action.
In August of 1995, plaintiffs filed an action in the Court
of Common Pleas of Armstrong County and named as
defendants the AVLT, the Conservancy, the Armstrong Rails
to Trails Association, Conrail, and the officers of these
organizations. The plaintiffs sought a declaratory judgment
that Conrail had abandoned the Allegheny Secondary
Track; an accounting; damages for disparagement and
slander of property, trespass and continuing trespass; and
injunctive relief barring any continuing trespass. Claims
against Conrail were dismissed at the pleadings stage
because plaintiffs alleged, and Conrail agreed, that it had
abandoned its interest in the land at issue. The
Pennsylvania Superior Court affirmed the dismissal of
claims against Conrail.5 Claims against the remaining
parties were remanded to the trial court and proceeded to
summary judgment. Because the summary judgment ruling
_________________________________________________________________
5. This Superior Court decision to excuse Conrail from a property
dispute over a line that it no longer operates is distinct from the
jurisdictional determination at issue here. Thus, we reject plaintiffs’
argument that the Pennsylvania Superior Court’s dismissal of Conrail
has preclusive effect on the issue of STB jurisdiction over the Allegheny
Secondary Track.
6
both post-dates and relies upon the District Court’s ruling
in this case, we will discuss that ruling along with our
discussion of the District Court proceedings, below.
D. Removal of ballast.
In approximately July of 1997, the AVLT offered the
Township of Bethel the opportunity to remove and keep the
ballast on the Allegheny Secondary Track. When the
Township accepted, it was unaware of the pending lawsuit
and it relied on AVLT’s representation that it owned the
right to the ballast. Plaintiffs and the Township dispute
whether the Township removed survey stakes and
additional soil material in addition to ballast. Plaintiffs also
testified that they objected when they learned of the
Township’s action.

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E. Current lawsuit.
Plaintiffs filed a lawsuit against the Town of Bethel and
its agents on October 1, 1998. Their complaint includes a
state law claim for trespass and continuing trespass, as
well as federal S 1983 claims alleging violations of the
Fourth Amendment, the Takings Clause of the Fifth
Amendment, and substantive and procedural due process
under the Fourteenth Amendment. Defendants filed a third-
party complaint against AVLT on December 4, 2000.
AVLT and defendants joined in a motion to dismiss based
on a lack of subject matter jurisdiction. Fed. R. Civ. P.
12(b)(1). They argued that the District Court lacked
jurisdiction to address plaintiffs’ trespass and
constitutional claims because the STB has exclusive and
plenary jurisdiction over the initial determination of
whether Conrail has fully abandoned the Allegheny
Secondary Track, a central threshold issue underlying
plaintiffs’ claims. The Magistrate Judge agreed and
recommended that the action be dismissed. The District
Court issued an order on October 1, 2001, adopting this
recommendation and dismissing the action without
prejudice. Plaintiffs filed a timely notice of appeal.
On April 8, 2002, the Armstrong County Court of
Common Pleas followed the District Court’s ruling and held
that it lacked subject matter jurisdiction over plaintiffs’
7
property claims against the AVLT et al. See Moody v. AVLT
et al., Opinion and Order re: Cross Motions for Summary
Judgment, No. 1995-0963 (April 8, 2002).6
II. Jurisdiction
We have federal question jurisdiction over plaintiffs’
claims brought under 42 U.S.C. S 1983, and pendent
jurisdiction over plaintiffs’ state law trespass claims arising
out of a common nucleus of operative facts. See 28 U.S.C.
S 1331; 28 U.S.C. S 1367(a). We will address below whether
the District Court had subject matter jurisdiction over
takings and trespass claims involving a railroad right of
way for which the ICC has authorized unconditional
abandonment.
Although the District Court dismissed this case without
prejudice, this order is final and appealable because
plaintiffs have elected to stand on their complaint. See
Welch v. Folsom, 925 F.2d 666, 668 (3d Cir. 1991) ("If the
plaintiff . . . elects to stand on the dismissed complaint,
however, we have held that the order of dismissal[without
prejudice] is final and appealable").
III. Discussion
The District Court held that it lacked jurisdiction over
plaintiffs’ trespass and constitutional claims based on

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interference with property rights. It adopted the Magistrate
Judge’s determination that the STB had exclusive and
plenary jurisdiction to determine whether Conrail had
abandoned its right of way over the Allegheny Secondary
Track. This determination was based on a finding that the
STB will retain jurisdiction unless and until it makes an
initial determination that Conrail has fully abandoned the
Allegheny Secondary Track.
_________________________________________________________________
6. We are disturbed that none of the parties to this case notified us of
the Pennsylvania Court of Common Pleas’ April 8 ruling. We do note,
however, that the state court’s subsequent ruling does not preclude us
from making an independent evaluation of the initial judgment of the
District Court.
8
Under the circumstances of this case, however, it is plain
that the ICC’s unconditional authorization of abandonment
ended the federal agency’s regulation of the Allegheny
Secondary Track. Because the abandonment certificate
contained no conditions permitting continued regulation by
a federal agency, there is no need for the STB to determine
whether it still has jurisdiction or whether Conrail has met
all of its conditions and effectuated an abandonment
sufficient to terminate the agency’s jurisdiction. The ICC
clearly indicated its intent to end federal regulation of the
Allegheny Secondary Track. Thus, there is no jurisdictional
bar to the District Court resolving a property dispute based
on the effect of actions Conrail took after the ICC gave it
carte blanche to cease rail service.
The fundamental misstep taken by the District Court was
its failure to recognize the ICC’s unusually limited role in
the abandonment proceedings for the Allegheny Secondary
Track. First, the statutory provision governing Conrail’s
abandonment of this track is S 308 of the Regional Rail
Reorganization Act of 1973, 45 U.S.C. S 748. Section 308
limits the ICC’s usual authority to impose abandonment
conditions by providing expedited procedures for certain
abandonment requests filed by Conrail. Second, under
these expedited abandonment procedures, the ICC granted
Conrail unconditional authority to abandon its line. This
unconditional abandonment terminated the agency’s
jurisdiction over the Allegheny Secondary Track. Third, the
ICC was never asked to intervene and prevent
abandonment by certifying an interim trail use under the
National Trails Act, 16 U.S.C. S 1247(d). The record makes
clear that the ICC’s role has ceased. Thus, the question of
ownership of the roadbed after abandonment is ripe for
disposition under state property law.
A. The District Court failed to recognize that Conrail’s
abandonment was authorized under S 308(c).
The District Court’s first error was its apparent failure to
recognize that Conrail received approval to abandon its line
under S 308(c), a statutory provision which substantially

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limits the ICC’s involvement in abandonment proceedings.
The District Court instead treated the ICC’s order as a run-
of-the-mill abandonment authorized under the Interstate
9
Commerce Act. These run-of-the-mill proceedings, however,
come under a different statutory provision which grants the
ICC a more active role in abandonments than doesS 308.
Although federal law did not initially subject railroad
abandonments to the jurisdiction of the ICC, by 1920
Congress had ceded regulatory authority over railroad
abandonments to it. Hayfield Northern Railroad Company v.
Chicago and North Western Transportation Company, 467
U.S. 622, 628 (1984). The subsequent enactment ofS 308
exempted certain railroad abandonments from the lengthier
abandonment proceedings required under the Interstate
Commerce Act, 49 U.S.C. S 10903-6. Section 308 provides
a streamlined procedure for the ICC to process applications
to abandon railways and is limited to abandonment
applications that are initiated by Conrail prior to November
1, 1985.7
Congress enacted S 308 in order to provide Conrail with
"an unobstructed opportunity to become a solvent
operation." Consolidated Rail Corp. v. County of Monroe,
558 F. Supp. 1387, 1389 (Spec. Ct. R.R.R.A. 1983). The
ICC has stated that, in essence, "section 308 requires [it] to
grant, without examination, any Conrail abandonment
application unless an offer of financial assistance is timely
filed." See Conrail Abandonments Under NERSA , 365 I.C.C.
472, 472-73 (November 25, 1981).8 Thus, the abandonment
proceedings established by S 308 contemplate limited
agency involvement and virtually automatic approval of
Conrail’s request to abandon its line.
_________________________________________________________________
7. Specifically, S 308 does not subject abandonments to the notice
requirements and public convenience and necessity findings that apply
to the more common abandonment proceedings under 49 U.S.C.
S 10903. See 45 U.S.C. S 748(a) (application for certificates of
abandonment under this section "shall not, except as specifically
provided by this section, be subject to the provisions of chapter 109 of
Title 47"). Moreover, abandonments under section 308(c), which are
initiated from December 1, 1981 to November 1, 1985, are not subject
to the liquidation provisions of 308(e).
8. Although the ICC may delay S 308 abandonments under the interim
use provisions of the National Trails Act, 16 U.S.C.S 1247(d), we explain
below why the National Trails Act is inapplicable here.
10
The District Court failed to consider S 308, and the
limited nature of the ICC’s involvement in abandonment
proceedings thereunder, when it determined that the STB
retained jurisdiction over the Allegheny Secondary Track.

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This is evident from the court’s statement that the Court of
Appeals would have exclusive jurisdiction over the ICC’s
abandonment certificate under the Hobbs Act, 28 U.S.C.
S 2342(5). Abandonment proceedings under S 308, however,
may be appealed only to the Special Court, Regional Rail
and Reorganization Act of 1973,9 and not to the Court of
Appeals which, under the Hobbs Act Court, would hear
appeals of orders entered under the Interstate Commerce
Act. 45 U.S.C. S 1105; Edison Electric Institute v. ICC, 765
F.2d 210, 215 (D.C. Cir. 1985). As explained below, the
District Court’s failure to recognize the proper statutory
provision, which governed Conrail’s abandonment, led it to
an erroneous jurisdictional conclusion.
B. Unconditional authorization of abandonment, as
Conrail obtained under S 308, will terminate the
ICC’s jurisdiction.
Failure to grasp the unconditional nature of the ICC’s
abandonment certificate under S 308 also led the District
Court to apply the wrong jurisdictional analysis. In cases
where the ICC has placed no conditions on a railroad
abandonment, both the Supreme Court and this Court
have noted that the ICC’s decision to authorize an
abandonment will bring its jurisdiction to an end. As the
Supreme Court stated in Hayfield, 467 U.S. at 633, "unless
the Commission attaches postabandonment conditions to a
certificate of abandonment, the Commission’s authorization
of an abandonment brings its regulatory mission to an
end." Id. (emphasis added). Likewise, we have noted the
applicability of Hayfield in cases where the federal agency
does not place any conditions on abandonment: "Unless the
STB attaches post-abandonment conditions to a certificate
of abandonment . . . the authorization of abandonment
_________________________________________________________________
9. The Rules of the Special Court are set forth at 45 U.S.C. S 719. The
Special Court was dissolved on January 17, 1997, and its jurisdiction
and functions were assumed by the United States District Court for the
District of Columbia. 45 U.S.C. S 719(b).
11
ends the Board’s regulatory mission and its jurisdiction."
See Friends of Atglen-Susquehanna Trail, Inc. v. STB , 252
F.3d 246, 262 (3d Cir. 2001).10 Although the few reported
proceedings regarding abandonments under S 308 do not
address this rule, they offer no suggestion that a different
rule should apply to an unconditional abandonment under
S 308. Indeed, the expedited nature of a S 308
abandonment would argue strongly in favor of applying this
"unconditional abandonment" rule to terminate the ICC’s
regulatory role in the case of a S 308 abandonment.
The District Court, however, relied on the general rule
applied to the vast majority of railroad abandonments --
which are conditional abandonments under the Interstate
Commerce Act. The jurisdictional rule for unconditional
abandonments differs from the general rule applied to

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conditional abandonments. When an abandonment is
conditional, the ICC retains jurisdiction over a railroad
right of way until it has been abandoned pursuant to the
conditions established by the federal agency. See Preseault
v. ICC, 494 U.S. 1, 5 n.3 (1990); Hayfield , 467 U.S. at 633;
see also Birt v. STB, 90 F.3d 580, 589 (D.C. Cir. 1996). In
such cases, the agency also retains exclusive, plenary
jurisdiction to determine whether there has been an
abandonment sufficient to terminate its jurisdiction. See
Friends of the Atglen-Susquehanna Trail, 252 F.3d at 262
(rejecting argument that rail line had been abandoned
"because there has been no STB finding that Norfolk
consummated abandonment of the rail line").11 Because
_________________________________________________________________
10. The D.C. Circuit has taken this rule a step further and found
abandonment based on a conditional ICC order, where "nothing in the
condition recites a limitation on the ability of CSX to effect an
abandonment." Fritsch v. ICC, 59 F.3d 248, 253 (D.C. Cir. 1995).
11. Historically, the STB determined whether an abandonment was
consummated by evaluating the carrier’s objective intent to cease
permanently or indefinitely all transportation service on the line. Id. This
test leaves a great deal of uncertainty as to the rail line’s status,
however. Since 1997, the STB has taken steps to alleviate this problem
by renewing a requirement that railroads file with the agency a letter
confirming consummation of abandonment. Becker v. Surface
Transportation Board, 132 F.3d 60, 61 n.2 (D.C. Cir. 1997) (noting that
the STB recently amended its regulations to require that railroads file a
notice of consummation with the STB); see also Consolidated Rail Corp.
v. Surface Transportation Board, 93 F.3d 793 (D.C. Cir. 1996) (discussing
pre-1984 requirement that railroads file with the ICC a letter confirming
consummation of abandonment).
12
Conrail’s abandonment was authorized without conditions
under the provisions of S 308, the District Court erred in
following the general rule to conclude that the STB retained
exclusive jurisdiction. As explained above, the ICC’s
unconditional abandonment order makes clear that there is
no basis for continued federal regulation of the Allegheny
Secondary Track.
Moreover, because the District Court failed to recognize
that the ICC’s unconditional abandonment certificate ended
the agency’s jurisdiction, it also failed to note that any
property disputes regarding the railroad’s right of way may
be resolved according to state property law: "When
abandonment approval is given . . . state property law
returns to the foreground and controls the disposition of
the land." National Assoc. of Reversionary Property Owners
v. STB, 158 F.3d 135, 137 (D.C. Cir. 1998). This conclusion
has been supported by the Special Court which has noted
that another court would not interfere with its exclusive
jurisdiction by resolving property disputes of this ilk: If
"some adjacent landowner to a railroad right of way
brought a complaint for trespass arising out of Conrail’s
dismantling process, that lawsuit would not fall within the
jurisdiction of the Special Court." Consolidated Rail Corp. v.

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County of Monroe, 558 F. Supp. 1387, 1390 n.8 (Spec. Ct.
R.R.R.A. March 31, 1983).
Thus, we conclude that in this case the District Court is
free to determine, as a matter of state law, whether Conrail
has abandoned its right of way and whether its interest in
the right of way has reverted to plaintiffs. Resolution of this
question will not interfere with the STB’s exclusive
jurisdiction to authorize abandonments because the federal
agency has already granted unconditional authority for
Conrail to terminate service.
C. The AVLT has not invoked the STB’s jurisdiction
under the provisions of the National Trail Act.
Our jurisdictional analysis is not altered by defendants’
claim that the AVLT prevented abandonment by converting
the railroad right of way to a trail under the provisions of
the National Trails Act, 16 U.S.C. S 1247(d). The National
Trails Act is designed to prevent an interest in a railroad
13
right of way from reverting under state law when the right
of way is used as a trail after the railroad discontinues
service. Preseault, 494 U.S. at 8. Thus, if the STB certifies
an interim trail use, and an agreed trail use is negotiated
in a timely manner, the STB will maintain federal
jurisdiction over the right of way. The National Trail Act’s
provisions are applicable to abandonment proceedings
under S 308. See Rail Abandonments--Use of Right of Ways
as Trails, 2 I.C.C.2d 591, 613 (April 16, 1986).
In order to preserve the right of way, however, the STB
requires a sponsor wishing to maintain a trail to file certain
documentation describing the site, indicating the user’s
willingness to assume full responsibility for management,
legal liability, and taxes, and acknowledging the user’s
continuing obligation to meet its responsibilities. 49 C.F.R.
S 1152.29(a); see also Citizens Against Rails-to-Trails v. STB,
267 F.3d 1144, 1150 (D.C. Cir. 2001). If the abandonment
is authorized under S 308, the railroad must agree to
negotiate a rail banking agreement before the STB will issue
a certificate of interim use (or CITU) to prevent the right of
way from reverting under state property law. 49 C.F.R.
S 1152.29(c)(1) (discussing requirements applicable to
NERSA abandonments, which include abandonments under
S 308).12 The AVLT never met these requirements by filing
with the ICC or STB, and Conrail refused to join the AVLT
in filing for railbanking with the ICC. Thus, there is no
basis for arguing that the STB has jurisdiction over this
matter under the provisions of the National Trails Act.
Nor does the District Court’s reliance on the Eighth
Circuit’s opinion in Grantwood Village v. Missouri Pac. R.R.
Co., 95 F.3d 654 (8th Cir. 1996), support a contrary
decision. Grantwood involved an abandonment under the
Interstate Commerce Act, 49 U.S.C.A. SS 10903-04, in
which one party filed a request for interim use during

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abandonment proceedings before the ICC. Id. at 656. There,
_________________________________________________________________
12. Although there is authority supporting the ICC’s ability to authorize
interim use based on a late-filed application, the ICC cannot take such
action after its jurisdiction over a railway has ended, as is the case here,
see Illinois Central Railroad Co.-Abandonment-In Dewitt and Piatt
Counties, IL, 5 I.C.C. 2d 1054, 1060-61 (1989).
14
the ICC granted a notice of interim use (or NITU), 13 and the
parties reached a trail use agreement within the time
provided by the ICC. Id. A subsequent quiet title action
raised the question of whether the trail use agreement
precluded abandonment and reversion to the owners of the
underlying property.
The Eighth Circuit Court of Appeals held that the suit
amounted to a collateral attack on the ICC’s allowance for
an interim trail use and that the ICC’s authorization of
such trail use precluded a finding that the right of way had
been abandoned under state law. Grantwood, 95 F.3d at
657-58. In this case, however, regulatory requirements for
an interim trail use have not been met. A request for
interim trail use has never been filed with the ICC or the
STB and neither agency has authorized an interim use. 49
C.F.R. S 1152.29(a). Nor could the AVLT meet these
requirements because Conrail did not agree to join the
AVLT in filing with the ICC for rail banking. 49 C.F.R.
S 1152.29(c)(1). Thus, the ICC has not authorized the AVLT
to conduct any trail use that would preclude a finding of
abandonment of the Allegheny Secondary Track under state
law. Grantwood is inapplicable.
IV. CONCLUSION
As explained above, it is clear that the ICC’s regulatory
role over the Allegheny Secondary Track has ended and
that there is no basis for continued agency regulation of
this railroad right of way. Thus, there is no jurisdictional
impediment to the District Court’s adjudication of plaintiffs’
property dispute. We will reverse the District Court’s
October 1, 2001, Order dismissing this case without
prejudice and remand it for further proceedings consistent
with this opinion.
_________________________________________________________________
13. A NITU is the type of interim trail use permit that the ICC uses in a
proceeding involving the exemption of a route from ICC regulation; in
other proceedings, including abandonments under section 308, the
agency will issue a Certificate of Interim Trail Use, or CITU. See, e.g., 49
C.F.R. S 1152.29.
15
A True Copy:
Teste:

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Clerk of the United States Court of Appeals
for the Third Circuit
16

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