252 F.3d 246 (3rd Cir.

2001)

FRIENDS OF THE ATGLEN-SUSQUEHANNA TRAIL, INC.,

Petitioner
v.
SURFACE TRANSPORTATION BOARD and UNITED
STATES OF AMERICA, Respondents
No. 99-5837

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT
Argued September 12, 2000
Opinion Filed May 31, 2001

[Copyrighted Material Omitted][Copyrighted Material Omitted]

[Copyrighted Material Omitted]
Andrea C. Ferster, Esquire (Argued), Washington, D.C. Charles
Montange, Esquire, Seattle, WA, Attorneys for Petitioner.
Ellen D. Hanson, General Counsel, Louis Mackall, V. Attorney (Argued),
Surface Transportation Board, Washington, D.C. M. Alice Thurston,
Esquire, John T. Stahr, Esquire, United States Department of Justice,
Washington, D.C., Attorneys for Respondent.
Paul D. Keenan, Esquire, Hoyle, Morris & Kerr, Philadelphia, PA,
Attorney for Intervenor Respondent.
Before: NYGAARD, ROTH and BARRY, Circuit Judges.
OPINION OF THE COURT
ROTH, Circuit Judge:

The Enola Branch is a 66.5 mile railroad line which was built in the early
Twentieth Century and was known as one of the remarkable engineering feats
of that time. Petitioner, Friends of the Atglen-Susquehana Trail, Inc. (FAST),
seeks judicial review of a final order of the Surface Transportation Board

(STB)1 permitting abandonment of the Enola Branch. FAST challenges the

manner in which the STB carried out its responsibilities under 106 of the
National Historic Preservation Act (NHPA), 16 U.S.C. 470f. In particular,
FAST objects to the manner in which the STB identified and protected historic
properties along the line, to the STB's failure to consider evidence that the
corridor as a whole was entitled to protection as a historic property, and to the
manner in which the STB terminated consultation on a plan to protect
historically eligible property. For the reasons that follow, we will vacate the
STB's decision and remand this matter to it for further consideration.
I. REGULATORY BACKGROUND
A. ABANDONMENT OF RAIL LINES
2

FAST seeks review of the actions of the STB in the exercise of its exclusive
regulatory jurisdiction over rail carriers and rail transportation, particularly its
jurisdiction to permit a rail carrier to abandon or discontinue use of an existing
rail line that might qualify as or contain historic property. We begin, therefore,
with an overview of the relevant regulatory landscape.

A rail carrier intending to abandon, and to be released from its obligations to

retain or operate, any part of its railroad lines must file an application to do so
with the STB and such abandonment must adhere to certain established
procedures. See 49 U.S.C. 10903(a)(1)(A); see also 49 U.S.C. 10903-10907.
The STB is empowered to exempt a transaction from the ordinary regulatory
requirements if the STB finds that the ordinary procedures are not necessary to
carry out federal transportation policy and that either the transaction is limited
in scope or the full application procedures are not necessary to protect shippers
from any abuses of market power. See 49 U.S.C. 10502(a).

The abandonment of a rail line or corridor will qualify as an exempt transaction

if the carrier certifies 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 service on the line, are pending or
have been decided within that two-year period. See 49 C.F.R. 1152.50(b). This
process is intended to be an expedited one. The exemption, and therefore
permission to abandon the rail line, becomes effective 30 days after publication
of notice in the Federal Register. See 49 C.F.R. 1152.50(d)(3); see also 49
U.S.C. 10502(b) ("Any proceeding begun as a result of an application under
this subsection shall be completed within 9 months after it is begun."). An
exempt abandonment remains subject to any conditions that the STB may

impose upon it.

5

If the STB agrees that a proposed abandonment is exempt and allows the
abandonment to proceed under the expedited procedures, the STB must
consider certain factors prior to permitting the abandonment to become final.
See 49 C.F.R. 1152.50(a)(2). First, the STB must consider and determine
whether the rail properties to be abandoned are appropriate for use for public
purposes. See 49 U.S.C. 10905;2 49 C.F.R. 1152.28(a)(1). If the STB finds that
the properties are appropriate for public use, the STB is authorized to impose
conditions on the abandonment of the property by the carrier. Such conditions
may include a prohibition on the disposal of the property for a period of 180
days unless the property is first offered, on reasonable terms, for sale for public
purposes. See 49 U.S.C. 10905; 49 C.F.R. 1152.28(d). Second, the STB must
consider possible interim trail use or rail banking,3 should any state, political
subdivision, or qualified private organization be interested in acquiring or using
the rail line right-of-way in such a manner. See 16 U.S.C. 1247(d); 49 C.F.R.
1152.29. Third, the STB must comply with the requirements of 106 of the
National Historic Preservation Act, 16 U.S.C. 470f.

The exemption procedures of 10502 and 1152.50 are intended to expedite the
approval of the proposed abandonment by making it effective almost
immediately, subject to any conditions imposed by the STB. Consideration of
the 106 historic preservation process, on the other hand, necessarily requires
the STB to proceed more slowly. The fact that Congress has introduced a
procedure which permits the slowing of the overall abandonment process
reflects Congress's intent to balance immediate, fast-track approval of the
abandonment by the carrier with a more deliberate consideration of
preservation of historically significant properties. See Concerned Citizens
Alliance, Inc. v. Slater, 176 F.3d 686, 695-96 (3d Cir. 1999) (citing Illinois
Commerce Comm'n v. ICC, 270 U.S. App. D.C. 214, 848 F.2d 1246, 1260-61
(D.C. Cir. 1988) (describing 106 as "stop, look, and listen" provision requiring
an agency to acquire information before acting)).
B. HISTORIC PRESERVATION

Section 106 of the NHPA provides as follows:

The head of any Federal agency having direct or indirect jurisdiction over a
proposed Federal or federally assisted undertaking in any State and the head of
any Federal department or independent agency having authority to license any
undertaking shall, prior to the approval of the expenditure of any Federal funds

on the undertaking or prior to the issuance of any license, as the case may be,
take into account the effect of the undertaking on any district, site, building,
structure, or object that is included in or eligible for inclusion in the National
Register.
9

16 U.S.C. 470f. The NHPA is a procedural statute designed to ensure that, as

part of the planning process for properties under the jurisdiction of a federal
agency, the agency takes into account any adverse effects on historical places
from actions concerning that property. See Morris County Trust for Historical
Preservation v. Pierce, 714 F.2d 271, 278-79 (3d Cir. 1983). The STB, as a
federal agency, must adhere to 106 in considering and approving exemption or
abandonment of a rail line. See 36 C.F.R. 800.2(a).

10

The Advisory Council on Historic Preservation (ACHP) has promulgated

regulations outlining the procedures to be followed by an agency in satisfying
its responsibilities under 106, codified at 36 C.F.R. Part 800. See Morris
County Trust, 714 F.2d at 280 ("The Advisory Council's regulations are
particularly persuasive concerning the proper interpretation of NHPA.") An
agency is expected to consult with various interested parties throughout the 106
process, including the State Historical Preservation Officer (SHPO), who is the
state official appointed or designated, pursuant to 101(b)(1) of the NHPA, 16
U.S.C. 470a(b)(1), to administer the state historic preservation program. See 36
C.F.R. 800.16(v); see also 16 U.S.C. 470a(b)(3) (establishing the
responsibilities of the SHPO). The agency, in consultation with the SHPO, must
also involve the public in the process, see 36 C.F.R. 800.3(e), and identify other
parties that should be invited to participate in the process as consulting parties,
including local governments and those parties that request to participate in the
process. See 36 C.F.R. 800.3(f)(1-3). The ACHP itself must be afforded a
"reasonable opportunity to comment on such undertakings." 16 U.S.C. 470f; 36
C.F.R. 800.1(a); see also Concerned Citizens, 176 F.3d at 695 (holding that the
Council's comments must be taken into account and integrated into the decision
making process).

11

The ACHP regulations establish a three-step process: identification of historic

properties; assessment of any adverse effects of the proposed undertaking on
such properties; and creation of a plan to avoid, minimize, or mitigate those
adverse effects. See 36 C.F.R. 800.1(a). The agency, in consultation with the
SHPO and other interested parties, may address multiple steps in one
consultation as long as all parties are given an adequate opportunity to
comment. See 36 C.F.R. 800.3(g).

12

In order to identify historic properties, the agency must apply the criteria

established for the National Register of Historic Places (National Register) to

identify properties and to determine whether they would be eligible for the
National Register. See 36 C.F.R. 800.4(c)(1). Significantly, the regulations
provide that the "passage of time, changing perceptions of significance, or
incomplete prior evaluations may require the Agency Official to reevaluate
properties previously determined eligible or ineligible. " 36 C.F.R. 800.4(c)(1).
13

If the agency and the SHPO agree that the criteria for the National Register
have been met, the property or portion thereof shall be considered eligible for
the National Register for 106 purposes. See 36 C.F.R. 800.4(c)(2). If the
agency and the SHPO agree that the criteria have not been met, the property is
considered ineligible. See id. If the agency and the SHPO do not agree, or if the
ACHP or the Secretary of the Interior so requests, the agency "shall" obtain a
determination from the Secretary, acting through the Keeper of the National
Register (Keeper), as to the historic eligibility of the property. See id. Other
courts of appeals have held that this determination by the Secretary or the
Keeper should be conclusive. See Moody Hill Farms Ltd. Partnership v. United
States Department of the Interior, 205 F.3d 554, 558 (2d Cir. 1999) (describing
the independent authority of the Keeper, on behalf of the Secretary, to
determine whether a property should be listed as historic); Stop H-3 Ass'n v.
Coleman, 533 F.2d 434, 441 n.13 (9th Cir.) (noting that the Secretary's opinion
as to the historic eligibility of property is conclusive).

14

If the agency finds that there are no historic properties that will be affected by
the undertaking, the agency must document its findings and provide such
documentation to the ACHP, the SHPO, and other consulting parties. The
SHPO and the ACHP have 30 days to object to that finding; otherwise, the
agency's 106 responsibilities are deemed completed. See 36 C.F.R. 800.4(d)(1).
If the agency finds that there are historic properties that may be affected, the
agency must notify all consulting parties and invite their views on the effects of
the proposed undertaking and their assessments of any adverse effects. See 36
C.F.R. 800.4(d)(2).

15

An adverse effect is found when the undertaking may alter, directly or

indirectly, any of the characteristics that make a property historic and eligible
for inclusion in the National Register. See 36 C.F.R. 800.5(a)(1), 800.16(i).
Such adverse effects include physical destruction of or damage to all or part of
the property, alteration of the property, removal of property from its historic
location, or a change in the character of the property's use. See 36 C.F.R.
800.5(a)(2). The regulations establish the steps that an agency must take in
determining whether or not there are adverse effects and in notifying interested
parties of its findings. See 36 C.F.R. 800.5. However, agencies, as did the STB

here, will often assume the occurrence of adverse effects to properties

identified as historic. Once the agency finds (or assumes) the existence of
adverse effects, the agency must continue consulting with the parties in order to
resolve such adverse effects and to develop and evaluate alternatives or
modifications to the undertaking that will avoid, minimize, or mitigate such
effects. See 36 C.F.R. 800.5(d)(2), 800.6(a). The agency must also notify the
ACHP of the adverse effect finding and provide certain specified
documentation. See 36 C.F.R. 800.6(a)(1).
16

The process then moves to the third and final step, the resolution of adverse
effects and the development of a plan to avoid, minimize, or mitigate the
adverse effects. At this stage, the SHPO and any other consulting parties may
invite the ACHP to participate in the consultation; under certain circumstances,
the ACHP must be invited to participate. See 36 C.F.R. 800.6(a)(1)(i), (ii). The
agency and the other consulting parties may also agree to invite new parties to
consult. They are required to invite any organization that will play a specific
role or assume special responsibility in any mitigation plan. See 36 C.F.R.
800.6(a)(2).

17

The ACHP has discretion at this stage to decide if it will consult formally. See
36 C.F.R. 800.6(a)(1)(iii); see also 36 C.F.R. Part 800 App. A (setting forth
criteria that the ACHP uses to determine whether formally to enter a particular
106 review). Its decision determines how the agency must proceed. If the
ACHP chooses not to join the consultation formally, section 800.6(b)(1) of the
ACHP regulations controls. The agency consults with the SHPO and other
consulting parties in devising a plan to avoid or mitigate the adverse effects. If
the agency and the SHPO agree on a plan, they execute a Memorandum of
Agreement (MOA), a copy of which must be submitted to the ACHP for its
comments prior to the agency approving the undertaking. See 36 C.F.R.
800.6(b)(1)(iv); see also 36 C.F.R. 800.6(c)(1)(i). An executed MOA evidences
the agency's compliance with 106 of the NHPA and governs the carrying out of
the federal undertaking. See 36 C.F.R. 800.6(c). If the agency and the SHPO
fail to agree on a plan, the agency must ask the ACHP formally to join the
consultation. See 36 C.F.R. 800.6(b)(1)(v). If the ACHP again declines to
consult formally, it must provide comments on the undertaking and on the
status of the 106 review, which the agency must consider in reaching any final
decision as to mitigation. See 36 C.F.R. 800.6(b)(1)(v); see also 36 C.F.R.
800.7(c).

18

If, at any point, the ACHP formally joins the consultation on mitigation,
section 800.6(b)(2) controls. The ACHP must execute the MOA along with the
agency, the SHPO, and any other consulting parties. See 36 C.F.R. 800.6(b)(2);

see also 36 C.F.R. 800.6(c)(1)(ii). Any party that assumes a responsibility in

carrying out the MOA may also be asked to be a signatory to the MOA. See 36
C.F.R. 800.6(c)(2)(ii).
19

If, at any point during consultation, the agency, the SHPO, or the ACHP
determines that further consultation will not be productive, any of them may,
upon notice to the other consulting parties, terminate consultation. See 36
C.F.R. 800.7(a). If the agency terminates the consultation, it must request and
receive comment from the ACHP. See 36 C.F.R. 800.7(a)(1).

20

Comments from the ACHP are governed by 800.7(c). The ACHP has 45 days
from receipt of a request to provide comments on an agency's termination of
mitigation consultation, pursuant to 800.7(a)(1), or on an agency's statement
that it is unable to reach an MOA through consultation with the SHPO alone,
pursuant to 800.6(b)(1)(v). See 36 C.F.R. 800.7(c)(2). The agency must take
these comments into account in reaching a final decision on the undertaking,
see 36 C.F.R. 800.7(c)(4), and the agency is required to document that it did so
by explaining its decision and providing evidence that it considered the ACHP's
comments. See 36 C.F.R. 800.7(c)(4)(i); see also Concerned Citizens, 176 F.3d
at 696 (stating that the "relevant agency must demonstrate that it has read and
considered" the opinions and recommendations of the ACHP). This decision
and explanation is to be provided to the ACHP, to all consulting parties, and to
the public prior to the final approval and carrying out of the undertaking. See 36
C.F.R. 800.7(c)(4)(i-iii).
II. FACTS

21

There is no dispute as to the underlying facts or the course of the regulatory

proceedings in this matter. In October 1989, Conrail4 filed a Notice of
Exemption with the ICC, seeking to abandon the Enola Branch, a 66.5-mile rail
corridor running through Lancaster and Chester Counties, in Pennsylvania.
Conrail certified that no traffic had moved over the line for two years. There is
no suggestion that Conrail did not adhere to the filing and notice requirements
for seeking an exemption. Lancaster County objected to Conrail's petition,
primarily seeking a public use or interim trail use and rail banking condition on
the exemption. Although the County did not expressly raise 106 or seek a
historic condition on the abandonment, it did provide the following description
of the rail line to the ICC:

22

The Enola Branch railroad line itself is a historically significant resource.

Pennsylvania Railroad President A.J. Cassett built the railroad line as a

passenger route through Pennsylvania and Ohio in the first decade of this
century. It was once a vital east-west freight line for southeastern Pennsylvania.
The families of Italian laborers constructed the line and now inhabit the
Quarryville area. The railroad corridor is designed and constructed to have little
slope, so it either cuts into the ground or is elevated over most of its length. The
project is known as one of the most remarkable engineering feats of its time.
The physical impacts of the corridor on adjacent land owners is negligible. The
line is very well designed with the landscape to limit obtrusiveness to the
natural character of the area. It is said the earth moving involved in the project
rivaled that of the construction of the Panama Canal.
23

The ICC issued an Order on February 22, 1990 (1990 Order) in which it
granted to Conrail the exemption, subject to three conditions: 1) that Conrail
keep intact all the right-of-way underlying the track, including bridges and
culverts, for a period of 180 days, to allow for the negotiation of a public use
acquisition; 2) that Conrail comply with terms and conditions for implementing
possible interim trail use and rail banking; and 3) "that Conrail take no steps to
alter the historic integrity of the bridges on the line until completion of the
section 106 process of the National Historic Preservation Act, 16 U.S.C. 470."
Negotiations between Conrail and Lancaster County to preserve the line, either
through sale for public use or for interim trail use and rail banking, proved
unsuccessful, despite extensions well beyond the 180-day period provided for
in the 1990 Order. The record indicates that the trail use plan fell through in
part because FAST was unable to act as a financially responsible party for an
interim trail use or to find a public sponsor, as required under 49 C.F.R.
1152.29(a)(2). On April 19, 1993, the ICC denied Lancaster County's request
for a further extension of the negotiating period, vacated the trail use condition,
and granted Conrail permission to abandon the line (1993 Order).

24

The remaining condition on abandonment was for the preservation of

historically significant properties, pending STB's completion of the 106
process. The 1990 Order only required preservation of the historic integrity of
the bridges on the line. This limitation apparently was based on a 1989
telephone conversation between a member of the ICC's Section of
Environmental Analysis (SEA) and Pennsylvania's SHPO, the Pennsylvania
Historical and Museum Commission, Bureau for Historic Preservation
(PHMC). In that conversation, the SHPO indicated that some or all of the 83
bridges on the line potentially were eligible for inclusion in the National
Register but that it had not completed its review. The 1990 Order did not
discuss or address the comments from Lancaster County about the historic
significance of the line as a whole. The ICC also never sought a determination
from the Secretary of the Interior or the Keeper as to the historic eligibility of

the line as a whole or of other portions of the rail corridor. The 1990 Order
made no final identification of eligible historic properties but limited the scope
of possible historic properties to some or all of the bridges on the line, as
initially identified by the SHPO in the telephone conversation.
25

The ICC then followed its common practice of assuming that abandonment of
the Enola Branch corridor would adversely affect the rail properties identified
as historic, i.e., some or all of the 83 bridges. The ICC therefore proceeded to
the third step in the 106 process, development of a plan to avoid, minimize, or
mitigate the adverse effects. The record does not indicate, however, that the
ICC notified the ACHP of the presumptive finding of adverse effects.

26

The final, mitigation stage of the 106 process was also a long one. It was
complicated by the fact that in April 1996, FAST petitioned the STB to reopen
the proceedings and to broaden the 106 condition to encompass the entire Enola
Branch, as the eligible historic property to be preserved. In its petition, FAST
relied on a letter dated February 24, 1994, from Brenda Barrett, director of the
PHMC (the Pennsylvania SHPO), to Wendy Tippetts of an organization known
as "TWO."5 In that letter, Barrett stated that, in the opinion of the SHPO, the
Enola Branch and the Atglen & Susquehana Branch both were eligible for
listing in the National Register. The STB was sent a copy of the letter.

27

The STB responded to the petition on October 2, 1997 (1997 Order) by

ordering that 1) the proceeding was reopened, 2) the request by FAST to
expand the condition to include the entire Enola Line was denied, and 3) the
106 condition imposed in 1990 was modified to encompass only 32 bridges on
the line and archaeological sites near 36 bridges as the properties eligible for
listing in the National Register. In explaining its decision to deny FAST's
petition to expand the scope of the eligible historic property, the Board stated
that

28

Neither FAST nor the SHPO has provided any justification for the SHPO's
apparently changed position with regard to eligibility of the entire line in the
National Register. Indeed, the SHPO letter submitted by FAST does not even
acknowledge that the SHPO had ever reached a previous determination on this
matter. . . . It is clear that the SHPO was originally concerned only with the
eligibility of certain bridges and archaeological sites for section 106 purposes.
The fact that certain items were included in the SHPO's original opinion while
others were excluded indicates that the SHPO did not originally consider the
entire line eligible.6 FAST timely petitioned for reconsideration of the refusal
to reopen the proceedings and to expand the identified eligible historic
properties. With that petition pending, the parties proceeded along separate

tracks. FAST and other interested parties requested that the STB formally
submit the question of the historical significance of the Enola Branch line as a
whole to the ACHP for referral to the Secretary of the Interior and the Keeper
for a conclusive determination. When FAST received no response from the
STB, FAST asked the ACHP to become involved in the process. The ACHP
wrote to the STB in March 1998, asserting that the STB never notified the
ACHP of its finding of adverse effects, never identified potentially interested
parties to consult on the 106 process, and never informed the ACHP as to how
it identified eligible property. The ACHP requested that it be included in the
106 process and that it be provided background documentation. The STB never
responded to this letter.
29

Meanwhile, the STB proceeded as if the first two steps of the 106 process,
identification of eligible properties and determination of adverse effects, had
been concluded and the only remaining step was to devise a plan to mitigate the
adverse effects on the bridges and archaeological sites that it had identified as
eligible properties. The STB formally consulted with the SHPO and Conrail;
the record does not indicate that the STB formally invited the ACHP to consult
on the mitigation plan. In August 1998, the STB drafted an MOA,
memorializing terms that had been agreed upon by the SHPO, Conrail, and the
STB. The plan provided that 1) Conrail would perform recordation of five
identified bridges to State Level Recordation Standards prior to the demolition
of those bridges, 2) Conrail would provide funding in excess of $ 15,000 to the
Railroad Museum of Pennsylvania for development of a 6-8 minute video
outlining the history of the Enola Branch, 3) Conrail would convey segments of
the abandoned line and bridges to local townships and would provide the
municipalities with an agreed sum of money for future maintenance of those
bridges.

30

The MOA was submitted to the SHPO and Conrail for execution, to the ACHP
for approval, as well as to FAST and the Historic Preservation Trust of
Lancaster County (the Trust) for comments. In the transmittal letter to the
ACHP, the STB for the first time broached the possibility of breaking off
consultation, stating that, "if it appears that further consultation would not be
productive, we will terminate consultation."

31

The SHPO declined to sign the MOA, citing the ACHP's concerns that it had
not been asked to consult in the development of the MOA; the SHPO withheld
further review and signature of the plan until the STB had consulted with the
ACHP. FAST stated specific objections to the draft MOA, noting FAST's
desire to preserve the line and to establish a trail on the corridor. FAST also
objected to the manner in which public input had been gathered for the project.

32

The ACHP, upon receipt of the draft MOA, asserted that the matter of the
STB's overall compliance with 106 "remains unresolved" and that "serious
shortcomings persist in STB's evaluation of historic properties, solicitation of
public input, evaluation of alternatives, and, development of a mitigation plan."
Further, the ACHP discussed the provisions in the 106 regulations that provide
for reevaluation of determinations of eligibility and for the possible
involvement of the Secretary of the Interior. The ACHP concluded that "the
eligibility issue regarding the historic significance of the entire Enola Branch
Line will need to be resolved before we can consider the draft MOA." The
ACHP stated that only after receiving formal comments from the Keeper could
the ACHP evaluate whether all possible effects had been considered. The
ACHP also suggested a meeting among the STB, the SHPO, Conrail, and the
ACHP.

33

In its February 1, 1999, response, the STB described the manner in which it had
carried out the identification process and asserted that the identification and
effects phases of the 106 process had been completed and need not be
reopened. The STB specifically noted that changed perceptions or evaluations
of what is historically significant and therefore eligible for the National
Register may indeed justify reevaluation or reopening of proceedings but did
not necessarily require such a result. Because the STB had found inadequate
justification for reopening the identification stage, it continued to decline to do
so. The STB solicited anew the ACHP's comments on mitigation and the MOA.

34

The ACHP, on February 26, 1999, formally referred the matter to the Secretary
of the Interior and informed the STB that, pending receipt of the Keeper's
findings, it believed that the identification and evaluation requirements had not
been met. The ACHP further asserted that, if the STB continued its efforts to
finalize the draft MOA, it would be in violation of its statutory and regulatory
obligations. In April 1999, the Keeper issued a determination that the entire
66.5-mile Enola Branch line was eligible for designation in the National
Register. The determination stated:

35

Constructed by the Pennsylvania Railroad between 1902 and 1906, the entire
66.5 mile Enola Branch Line is eligible for the National Register of Historic
Places for its historic and engineering significance. Built as a significant
component of the Pennsylvania Railroad system, the Enola Branch line was an
important engineering feat of the early 20th century. The Enola Branch Line
differed from other railroads of the period in that it was designed to have no
contact with other vehicular routes, and it was to run almost completely level
and in a straight line. This straight line, with low radius curves and very little
change in grade, provided improved and efficient delivery of freight by rail.

Building the line necessitated vast amounts of cutting and filling and the
construction of numerous stone bridges and culverts built by skilled Italian
stone masons.
36

On August 13, 1999 (1999 Order), the STB denied FAST's petition for
reconsideration of the 1997 Order, holding that FAST had not made the
required showing of material error, new evidence, or changed circumstances
warranting reconsideration. The Board declined to give substantial weight to
the one new piece of evidence, a letter to the Trust from the Curator of
Transportation of the National Museum of American History.7 The STB found
that the letter could have been presented earlier and noted that the Curator took
no formal position in the matter. The STB also declined to reconsider the
import of the TWO letter, noting that FAST still had not explained the
discrepancy between that letter and the SHPO's formal position on the record
before the STB that the only issue remaining in the proceeding was mitigation.8
The STB similarly rejected the Keeper's statement of eligibility, describing it as
"pro forma." The STB emphasized that its identification decision had been
based on an agreement with the SHPO about the properties to be protected (all
of the bridges, later narrowed to 32 bridges and 36 archaeological areas) and
that under these circumstances, to restart the identification process to include
the entire rail line "would add inexcusable delay to a process that has already
taken much too long."

37

The STB then terminated the consultation process and removed the 106
condition, subject only to Conrail's compliance with the terms of the proposed,
although unexecuted, MOA. In terminating consultation, the STB emphasized
the steps it had taken throughout this process. It found that "further consultation
would be fruitless." It further noted the fact that the ACHP would not respond
on the issue of mitigation, despite the STB's request for it to do so, and "instead
continues to seek to dictate the [STB's] procedures and compel us to reopen this
case and declare this entire rail line historic." The STB considered the ACHP's
letters in January and February 1999 to be its comments and recommendations
on the undertaking and on termination of consultation; having taken them into
account, the STB determined that it had complied with 106 and that the process
was complete.

38

The record indicates that Conrail/Norfolk has consummated abandonment of

the rail line, other than the bridges. According to Norfolk, it has been more
than ten years since there was activity on the line and more than eight years
since there was any railroad equipment or property on the land. All tracks, ties,
rails, signage, and equipment have been stripped from the property.

III. JURISDICTION
39

The STB, as statutory successor to the ICC under the ICC Termination Act, had
jurisdiction over Conrail's petition to abandon the Enola Branch and could do
so under the exempt procedures. See 49 U.S.C. 10501(a)(1)(A), 10502(a)(1),
49 C.F.R. 1152.50. We have exclusive jurisdiction to review a final order of the
STB, pursuant to 28 U.S.C. 2321 and 2342(5), provided that the petition for
review was filed by the aggrieved party within 60 days of entry of the final
order. See 28 U.S.C. 2344. FAST filed the instant petition for review within 60
days of service of the Board's 1999 Order.

40

The STB and intervenor Norfolk did, however, raise two preliminary issues
questioning our jurisdiction to review the STB's order and the STB's
jurisdiction should this matter be remanded.

41

A. WHICH ORDER IS BEING REVIEWED?

42

The STB argues that FAST actually is challenging the 1990 Order that limited
the scope of potentially historically eligible properties to the 83 bridges on the
rail line. It is the STB's position that direct judicial review of the 1990 Order is
precluded by 2344, which requires that a petition for review of final agency
action be filed within 60 days. See 28 U.S.C. 2344; see also ICC v.
Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 277, 96 L. Ed. 2d 222, 107 S.
Ct. 2360 (1987). Once that 60-day period has passed, an agency order is no
longer subject to judicial review. See id. The STB contends that FAST is
precluded from making any arguments that in any way address the manner in
which the STB identified historic properties or its determination that only some
bridges and archaeological areas are eligible for historic protection. The STB
argues that we have jurisdiction to review only the plan for mitigation as to the
bridges and the decision to terminate consultation. It suggests that we may not
address any issues relating to the identification of historic properties.

43

We disagree and conclude that we do have jurisdiction to review the entire

matter, including those aspects of the STB's decisions relating to the
identification of eligible historic properties on the rail line. First, in the 1997
Order, the STB rejected FAST's request that the preservation requirement
imposed in the 1990 Order be broadened to apply to the entire Enola Branch
line. However, the 1997 Order expressly stated that, "this proceeding is
reopened." When the STB "reopens a proceeding for any reason and, after
reconsideration, issues a new and final order setting forth the rights and
obligations of the parties, that order -- even if it merely reaffirms the rights and

obligations set forth in the original order -- is reviewable on its merits." BLE,
482 U.S. at 278 (citing United States v. Seatrain Lines, Inc., 329 U.S. 424, 91
L. Ed. 396, 67 S. Ct. 435 (1947)). The STB urged that the reopening must be
understood in context, that the proceeding was reopened only for the limited
purpose of narrowing the scope of the historic condition. However, reopening a
proceeding "for any reason," even if only to reaffirm the original order, gives us
jurisdiction to review every aspect of the reopening order. See BLE, 482 U.S.
at 278.
44

Reopening in this case, even if only to narrow rather than expand the original
identification decision, makes the issues of identification reviewable. The STB
cannot claim that identification was complete prior to 1997, yet still reopen the
proceeding in order to consider some aspect of identification. That further
consideration is subject to review, both as to whether it was proper to narrow
the scope of the properties to be protected and also as to whether it was
improper not to expand the scope of the protected properties. In short, the STB's
explicit order to reopen this proceeding meant reopening for all purposes,
thereby bringing the issue of identification back into play and making it subject
to review at this time.

45

Second, FAST's 1996 petition (resolved in the 1997 Order), seeking reopening
of the proceedings for the purpose of reconsidering and expanding the
identification decision, was based on a claim of new evidence or changed
circumstances, particularly evidence of changed opinions and perceptions of
how much of the rail line would be eligible for the National Register. Where a
motion to reopen is based on non-pretextual arguments about new evidence or
changed circumstances, the refusal to reopen or reconsider a decision itself is
reviewable for abuse of discretion. See BLE, 482 U.S. at 284 ("If the petition
that was denied sought reopening on the basis of new evidence or changed
circumstances review is available and abuse of discretion is the standard.");
Fritsch v. ICC, 313 U.S. App. D.C. 252, 59 F.3d 248, 252 (D.C. Cir. 1995)
(interpreting BLE to permit merits review of a refusal to reopen where the
motion is based on non-pretextual grounds of new evidence or changed
circumstances); Friends of Sierra R.R., Inc. v. ICC, 881 F.2d 663, 666-67 (9th
Cir. 1989) ("The order denying [the] petition is subject to review only if the
petition sought reopening on the basis of 'new evidence' or 'substantially
changed circumstances.' "). Even assuming that the STB's 1997 Order declined
to reopen for the purposes of expanding the historic condition, that refusal to
reopen is itself subject to judicial review. Under BLE, we would have
jurisdiction to determine whether the Board's refusal to expand the condition
was an abuse of discretion.

46

The STB argues that FAST did not actually submit any new or newly
discovered evidence because the opinions of the ACHP, the SHPO, the Keeper,
and the Curator, regarding the historic eligibility of the entire line, were
available all along and could have been presented earlier. The STB contends,
therefore, that FAST actually sought reopening and reconsideration based on
"material error," the denial of which motion unquestionably would not be
subject to judicial review. See BLE, 482 U.S. at 280 (holding that "where a
party petitions an agency for reconsideration on the ground of 'material error,' .
. . 'an order which merely denies rehearing' . . . is not itself reviewable.").

47

The STB's argument fails because it conflates the jurisdictional and merits
analyses. Whether the evidence presented actually is new or newly discovered,
as opposed to newly presented, goes to the merits of whether the refusal to
reopen or reconsider a prior decision was proper or lawful. It does not go to the
jurisdiction of the court of appeals to review that refusal. Jurisdiction and
reviewability are based on the fact that the motion before the STB alleged the
existence of new evidence or changed circumstances. See Friends of Sierra, 881
F.2d at 666 ("We determine reviewability solely by examining the bases
advanced in the petition to reopen."). That basis for the motion, assuming it is
not a pretext, is sufficient alone to confer jurisdiction to review the Board's
refusal to expand the identified historic properties and protect the entire rail
line.

48

From the record before us, we conclude that FAST sought reopening based on
new evidence or changed circumstances, not material error, such that the
refusal to reopen is subject to judicial review.

49

FAST moved within 60 days for reconsideration of the 1997 Order, thus tolling
the period for seeking judicial review of the 1997 Order until reconsideration
was denied. The 1999 Order denied reconsideration of the refusal to reopen and
the petition for review was filed within 60 days.

50

We have jurisdiction, therefore, to review the 1997 Order through its denial by
the 1999 Order. See BLE, 482 U.S. at 279 (stating that a petition for
reconsideration tolls the period for judicial review of the original order, which
can be appealed directly after the petition for reconsideration is denied).
B. THE STB'S JURISDICTION ON REMAND

51

Norfolk, as intervenor on behalf of the STB, raises a different argument, going

to the STB's jurisdiction on remand. Norfolk suggests that, because it has

abandoned the Enola Branch, the STB no longer would have jurisdiction on
remand to make any determinations as to the historic status of the line as a
whole or to impose mitigation conditions on any non-bridge property. It argues
that any decision vacating the STB's original identification decision and
remanding the case to the STB would be futile because, beyond the bridges
already identified, the STB would be without the power to impose any historic
conditions on the abandoned line as a whole.9
52

It is true, generally, that once a carrier abandons a rail line, the line no longer is
part of the national transportation system and the STB's jurisdiction terminates.
See Preseault v. ICC, 494 U.S. 1, 5-6 n.3, 108 L. Ed. 2d 1, 110 S. Ct. 914
(1990). Unless the STB attaches post-abandonment conditions to a certificate of
abandonment or exemption, such as requirements under 106, the authorization
of abandonment ends the Board's regulatory mission and its jurisdiction. See
id.; Hayfield N. R.R. Co., Inc. v. Chicago & Northwestern Transp. Co., 467
U.S. 622, 633-34, 104 S. Ct. 2610, 81 L. Ed. 2d 527 (1984). The determination
of whether a railroad has abandoned a line hinges on the railroad's objective
intent to cease permanently or indefinitely all transportation service on the line.
See Birt v. Surface Transp. Bd., 319 U.S. App. D.C. 357, 90 F.3d 580, 585
(D.C. Cir. 1996) (citation and internal quotation marks omitted). Abandonment
is considered consummated when the rail line is fully abandoned. See
Consolidated Rail Corp. v. Surface Transp. Bd., 320 U.S. App. D.C. 130, 93
F.3d 793, 798 (D.C. Cir. 1996).

53

We reject Norfolk's argument because there has been no STB finding that
Norfolk consummated abandonment of the rail line as an entire property.
Following the 1990 Order, Conrail removed all remnants of the railroad line
from the property, including all tracks, ties, rails, signage, and equipment.
According to Norfolk, it has been more than ten years since there was activity
on the property, more than eight years since there was railroad equipment on
the property, and more than seven years since Conrail attempted to negotiate
converting the rail into a trail.

54

But the historical eligibility of the line as a whole does not require the presence
of the tracks and other railroad equipment. The historically eligible property, as
found by the Keeper and urged by FAST, is the rail line itself, including the
trail and all of the bridges. The issue is whether Norfolk has abandoned, sold,
or otherwise disposed of any portion of that property, a point on which the
record is silent. If, on remand, the STB concludes that Norfolk has disposed of
some portion of the line, the STB will be without power to expand the historical
condition to cover that property already sold. But the STB otherwise does have
the power to expand the historical condition to cover all property not abandoned

and to require Norfolk to preserve the status quo and not to sell or otherwise
disturb or dispose of the rail line pending proper completion of the 106 process.
IV. HISTORIC ELIGIBILITY OF THE ENOLA LINE
55

We now proceed to the merits of this petition, whether the STB erred in
carrying out its statutory obligations under 106. Our review is governed by the
Administrative Procedure Act (APA), 5 U.S.C. 706(2), which provides that a
court of appeals may "hold unlawful and set aside agency action, findings, and
conclusions found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. 706(2)(A); see Consolidated
Rail Corp. v. United States, 855 F.2d 78, 85 (3d Cir. 1988) (applying 706 to
review of ICC decision).

56

As we set out in Part I.B, supra, the NHP A is a procedural rather than a
substantive statute, designed to ensure that federal agencies take into account
the effect on historic places of federally regulated undertakings. See Morris
County Trust, 714 F.2d at 278-79. The statute represents a balance between the
goals of historic preservation and the needs of business and community
development. See id. at 280; 37 C.F.R. 800.1(a). Our concern on review under
the NHPA is less with the substantive results reached by the STB on the
historic eligibility of the Enola Branch than with the procedures and reasoning
the STB followed in reaching those results. See Morris County Trust, 714 F.2d
at 280. We have agreed that 106 is a "stop, look, and listen" provision,
requiring an agency to acquire and consider information prior to making a
decision and approving a federal undertaking. See Concerned Citizens, 176
F.3d at 695-96 (citing Illinois Commerce Comm'n, 848 F.2d at 1260-61).

57

The issue, therefore, is whether the STB touched all the procedural bases in
limiting the scope of the identified historic properties on the line to the 32
bridges and 36 archaeological areas, in refusing to expand that identification in
1997 and 1999, in unilaterally approving the mitigation plan outlined in the
draft MOA and the 1999 Order, and in terminating consultation in the 1999
Order. We conclude that the STB did not touch all the bases. The STB's
decision to terminate the process as it did, and to provide only limited historic
protection, must be vacated and this matter remanded to the STB for further
proceedings.
A. IDENTIFICATION

58

Although there would appear to be a lack of constructive public dialogue in the

whole of the 106 identification process, FAST did not seek review of the 1990
Order at the time it issued, nor has FAST formally complained about the early
stages of the 106 identification. We will begin our analysis therefore with the
events occurring after FAST's 1996 petition to reopen and expand the historic
condition. In the 1997 and 1999 Orders, the STB concluded that the TWO letter
and the letter from the Curator were not new or newly discovered evidence in
that both pieces of information were available prior to their submission to the
STB in 1996. The STB also discounted the SHPO's position as stated in the
TWO letter because it was inconsistent with its formal position before the STB
and the inconsistency was not explained. In addition, in the 1999 Order, the
STB rejected the Keeper's statement as "pro forma" and not justifying
reopening the identification phase because doing so "would add inexcusable
delay to a process that has already taken much too long."
59

The identification process must, however, be a fluid and ongoing one. "The
passage of time, changing perceptions of significance, or incomplete prior
evaluations may require the Agency Official to reevaluate properties previously
determined eligible or ineligible." 36 C.F.R. 800.4(c)(1)(emphasis added). The
STB's own regulations also permit it to reopen or reconsider a prior action
because of new evidence or substantially changed circumstances. See 49 U.S.C.
722(c). If we read 722(c) together with 800.4(c)(1), these provisions suggest
that evidence of changed perceptions of historical significance constitutes
evidence of substantially changed circumstances, thus permitting reopening or
reconsideration.

60

In the 1997 and 1999 Orders, however, the STB focused only on whether
FAST had submitted new evidence; it did not consider whether FAST had
submitted evidence of substantially changed circumstances. This ruling ignores
the "changed circumstances" language of 722(c).

61

Furthermore, the STB failed to consider the Keeper's statement that the entire
Enola Branch line was eligible for designation in the National Register. The
ACHP had taken the position that the Keeper's findings were necessary before
the identification process could be completed. Once the ACHP had brought the
Keeper into the process, the Keeper's conclusions had to be considered. As we
noted in Part I.B, supra, the Keeper has been held to have independent authority
to determine whether a property should be listed in the National Register. See
Moody Hill Farms, 205 F.3d at 558.

62

The STB ignored the Keeper's determination because of its "untimeliness" and
the STB's concern that considering it would impose additional, inexcusable
delay on the 106 process. This consideration of late timing is, however,

inconsistent with 800.4(c)(1). If the passage of time can be a basis for

reevaluation of the identification decision under the regulations, it cannot at the
same time be a basis for refusing to consider evidence of changed perceptions
of historical significance. By focusing on the timing of the Keeper's statement
and refusing to consider and address its merits, the STB introduced an improper
consideration into the identification process. The fact that the STB and the
SHPO had previously agreed that the bridges were the only properties that were
historically eligible does not and cannot outweigh, without further explanation,
the Keeper's determination, whenever that determination was rendered. See
Moody Hills, 205 F.3d at 558-59 (stating that the Keeper is not bound by the
historic determinations of state and local authorities).
63

The STB also dismissed the Keeper's statement as "pro forma" and therefore
not entitled to serious weight. However, the STB did not indicate in what way
the statement was pro forma, nor did it indicate what additional information the
Keeper should have presented in its evaluation. The Keeper's evaluation
included a lengthy paragraph describing the Enola Branch's overall historic
significance; the Board has not explained why the Keeper's position was not
entitled at least to some consideration.

64

The STB is correct in contending that, because it and the SHPO initially did not
disagree as to the scope of eligible properties, the STB was not required under
the regulations to request a determination from the Secretary of the Interior or
from the Keeper. Such a referral is required only if the STB and the SHPO do
not agree. See 36 C.F.R. 800.4(c)(2). However, that same regulation provides
that the Secretary or the ACHP can request such a determination at any time,
whether or not the STB and the SHPO disagree. See 36 C.F.R. 800.4(c)(2).
Given the authority of the Keeper, it must follow that once that determination
has been obtained, it is entitled to some attention by the agency.

65

Moreover, the fact that the SHPO's position in the TWO letter in 1994, that the
entire line was eligible for the National Register, appeared to be a change from
its earlier position before the STB was not sufficient grounds for the STB not to
consider that letter as evidence of changed perceptions. The STB argues that
nothing in the statutes or regulations requires it to rethink its decisions
whenever an affected party changes its mind. See Connecticut Trust for
Historic Preservation v. ICC, 841 F.2d 479, 484 (2d Cir. 1988). However,
Connecticut Trust involved a potential purchaser of the abandoned rail property
that changed its mind about which portions of the line it wanted to purchase.
See id. That is significantly different from a change of position by the SHPO,
which is statutorily empowered to advise the STB throughout the 106 process
and is not an affected party in the same way as a would-be purchaser. The

SHPO's revised view as to the eligibility of the entire rail line may represent a
changed perception of historic significance or be the result of a more complete
evaluation of the property. The SHPO's changed perception should have
received some consideration on its merits and should not have been rejected out
of hand as an unexplained change of heart.
66

The STB similarly erred in not giving sufficient consideration to the views of
the ACHP. While the ultimate decision on an undertaking remains with the
agency implementing it, the ACHP must be afforded the opportunity to
comment and its comments must be taken into account by the agency in
rendering its decision. See Concerned Citizens, 176 F.3d at 695 (quoting
Waterford Citizens' Ass'n v. Reilly, 970 F.2d 1287, 1290 (4th Cir. 1992)). The
agency must make clear that it considered the ACHP's opinions, see Concerned
Citizens, 176 F.3d at 696, instead of dismissing them as an attempt by the
ACHP to "dictate" the STB's procedures.

67

The ACHP formally became involved in the 106 process in March 1998, at the
request of FAST, during the pendency of FAST's motion for reconsideration.
ACHP involvement was not required at the identification stage and the STB did
not err in not immediately seeking ACHP comments on identification.
However, the ACHP is identified as a source of guidance and advice regarding
the application of the regulations; it also is empowered to enter the 106 process
at any time that it determines that its involvement is necessary to ensure that the
purposes and requirements of 106 are met. See 36 C.F.R. 800.2(b). Once the
ACHP entered the proceedings, the STB, although not required to follow the
comments and suggestions of the ACHP at any stage, was required to take
these comments into account and to indicate that the comments were given
genuine attention on their merits. The relevant "agency must demonstrate that it
has read and considered those recommendations" and "it must make clear in the
record that the ACHP's comments were taken seriously." See Concerned
Citizens, 176 F.3d at 696.

68

The record here shows that the ACHP's comments were not taken seriously. 10
In several letters to the STB following its decision to participate in the
consultation, the ACHP raised its concerns about the way in which historically
eligible properties had been identified and its desire to see further consideration
of what properties on the rail line should be identified as historic. The STB did
not respond to these concerns.

69

Moreover, any delay in ACHP participation and comment may be attributed, at

least in part, to the STB. The STB apparently did not, as required, notify the
ACHP of its determination of adverse effects at the time of its initial

presumptive finding of such effects in 1990. See 36 C.F.R. 800.6(a)(1)

(requiring notification of the ACHP upon a finding of adverse effects). The
STB also did not involve the ACHP when requested to do so by FAST,
sometime prior to March 1998. Instead, FAST was forced to contact the ACHP
itself, pursuant to 36 C.F.R. 800.6(a)(1)(ii). As a result, the ACHP did not
become involved in the proceedings until March 1998.
70

Finally, the STB never mentioned or gave any consideration to the detailed
statement by Lancaster County, in its 1989 objection to Conrail's Notice of
Exemption, as to the historic significance of the line as a whole. The substance
of this statement was similar to the comments made by the Keeper in its 1999
determination of eligibility. Although the County did not expressly request a
historic condition on the abandonment of the line, its comments provided the
STB with initial evidence as to the historical significance of the rail line as a
linear source. Like any other evidence from an interested party, this was
entitled to some consideration by the Board in identifying historic properties.
However, the record does not reflect that the Board ever recognized or
considered the merits of this statement.
B. TERMINATION OF CONSULTATION

71

FAST also challenges the manner in which the STB terminated the regulatory
consultation. After declining to reconsider FAST's request to expand the
historic condition and protect the entire rail line, the STB unilaterally
terminated consultation on mitigation, unilaterally terminated the entire 106
process, and imposed the terms of the unexecuted MOA, finding that it
"constitutes appropriate historic mitigation for the bridges at issue."

72

The terms of the MOA were established following negotiations among the
STB, Conrail, and the SHPO; all three agreed to terms, including recordation of
five bridges, funding of the film, transfer of certain bridge properties to local
municipalities, and payment of money by Conrail for upkeep of those bridges.
However, the SHPO declined to sign the MOA, citing the ACHP's desire to
consult in the process. At that point, the STB was required to invite the ACHP
formally to participate in the consultation, and, if the ACHP declined to consult,
to obtain the ACHP's comments on the undertaking and on the proposed
mitigation plan. See 36 C.F.R. 800.6(b)(1)(v), 800.7(c)(2). The STB did submit
a copy of the MOA to the ACHP for comment and approval; the ACHP
expressly declined to comment on the MOA or the mitigation plan, focusing its
comments instead on what it found to be deficiencies in the 106 process
generally and the need to reconsider identification.

73

The STB certainly has the power to declare consultation at an impasse and to
terminate, if it finds that further consultation would not be productive. See 36
C.F.R. 800.7(a). However, the applicable regulations require that, if the STB
does terminate consultation, it must give notice of that termination to the
ACHP, see 36 C.F.R. 800.7(a)(1); allow 45 days for ACHP comments on
termination, see 36 C.F.R. 800.7(c)(2); and take those comments into account,
giving them genuine attention and consideration, in terminating consultation
and reaching a final decision. See 36 C.F.R. 800.7(c)(4). Only after receipt and
consideration of those comments may the STB complete the termination of the
process and implement a mitigation plan, provided that it expressly take such
comments into account in rendering that final decision. See Concerned Citizens,
176 F.3d at 696. The STB did not meet these requirements for termination.

74

We can understand the impatience of the STB to resolve this expedited

abandonment. Nevertheless, when procedures are established by law, those
procedures must be followed. Because the STB did not follow the required
procedures, we conclude that it abused its discretion in implementing the MOA
and in terminating the consultation. For these reasons, the 1997 and 1999
Orders will be vacated and this matter will be remanded to the STB.

75

In determining to vacate and remand this matter, we in no way suggest that

FAST is entitled to the relief it seeks. We take no position as to whether the
entire Enola Branch is eligible for inclusion in the National Register or as to
whether there is sufficient evidence of changed perceptions of historical
significance or changed circumstances to justify preserving the entire line. We
also take no position as to whether the mitigation plan favored by the STB is
proper although we note that the ultimate decision is left to the STB after due
consideration of comments from interested parties. See Concerned Citizens,
176 F.3d at 696. We also take no position as to whether consultation is at an
impasse and whether the process properly should be terminated. We hold only
that, on remand, the STB must conduct the 106 process in accordance with the
regulations. It must consider the comments and opinions of the Keeper, the
ACHP, and other interested parties as to the scope of the eligible historic
properties and as to a proper mitigation plan. If the STB again decides that
further consultation is fruitless and that the 106 process should be termination,
it must follow the procedural track established by the regulations for
termination.
V. CONCLUSION

76

For the foregoing reasons, the motion of the STB to dismiss the petition for

review is denied. The petition for review is granted and the 1997 and 1999
Orders of the STB are vacated. This matter is remanded to the Surface
Transportation Board for further proceedings consistent with this opinion.

Notes:
1

The STB is the federal agency having exclusive jurisdiction over transportation
by railroad. See 49 U.S.C. 10501(a)(1). The STB is the successor agency to the
Interstate Commerce Commission (ICC), which was abolished by Congress in
1995. See ICC Termination Act of 1995, 101, P.L. 104-88, 109 Stat. 804, 49
U.S.C. 701 note (1995). That act also established the STB, see 49 U.S.C. 701,
and provided that it would perform all the functions that previously were
performed by the ICC as of the effective date of the act. See 49 U.S.C. 702; see
also ICC Termination Act of 1995, 204, P.L. 104-88, 109 Stat. 804, 49 U.S.C.
701 note.
In this opinion, we will refer to the agency as the ICC before its abolition and
as the STB afterwards.

Formerly 49 U.S.C. 10906.

This would permit the railroad right-of-way to be used in some interim manner
and to be preserved for future restoration or reconstruction and reactivation for
railroad purposes. See 49 U.S.C. 1247(d).

Conrail's assets have been acquired by, and divided between, two railroad
operations, Norfolk Southern Corp. (Norfolk) and CSX Corp. The former
Enola Line is now controlled by Norfolk, which intervened in this appeal on
behalf of the STB.

At oral argument, counsel for FAST represented that FAST hired Tippetts as
consultant in the efforts to preserve the corridor as historic property. Nothing
has been presented to us explaining what "TWO" stands for.

The STB also questioned the applicability of the letter, noting that, although the
caption of the letter contained the correct docket number, it referred to a project
encompassing additional lines and counties. The STB stated that it "is unclear
what this project entails." The STB also noted that any information submitted
by FAST in support of the eligibility of the entire line had not been supplied to
Conrail or submitted for entry in the public record.

That letter, dated April 2, 1997, detailed the history of the line and called its

significance "unquestioned." The Curator stated that he could take "no formal
position in such a legal proceeding," but he stated that he supported the
development of the line, intact, as a recreational and educational trail.
8

The STB emphasized several letters from the SHPO, post-1994, that appear to
reflect this same view.

Norfolk raises the issue of the STB's jurisdiction for the first time on appeal. In
opposing FAST's motion to reopen before the STB, Norfolk never suggested
that the STB was without jurisdiction to expand the scope of the historical
condition on the rail line. Yet if the STB would have had jurisdiction to expand
the historical condition in the 1997 Order, it is not clear why the STB would
lack jurisdiction to do the same on remand from our determination that the
1997 Order declining to reopen was in error.

10

The parties dispute the amount of deference or weight to be accorded to the

ACHP's interpretation of its regulations. FAST relies on our statement in
Morris County that "the Advisory Council's regulations are particularly
persuasive concerning the proper interpretation of NHPA." See Morris County,
714 F.2d at 280. Norfolk points to the statements in Concerned Citizens that
found no support for the conclusion that the ACHP's judgments were entitled to
great weight. See Concerned Citizens, 176 F.3d at 696 n.6. FAST argues that
Concerned Citizens was a case challenging the Federal Highway
Administration's compliance with 4(f) of the Department of Transportation Act,
in which the ACHP plays no role. By contrast, the instant case is a challenge to
compliance with the ACHP's own regulations under the NHPA. We need not
resolve this matter because, even assuming that the ACHP's judgment is
entitled only to minimal weight and that the agency merely must afford these
comments some attention and consideration, see Concerned Citizens, 176 F.3d
at 696, we conclude that the STB in the instant case did not accord the ACHP's
comments even that minimal degree of attention and consideration.