Either the railroad requests and receives advance authority to abandon, or it exercises its rights under the streamlined exemption process. In either case, there is a formal submission to the agency, the proper steps are followed, and the carrier secures authority to abandon. The grant of authority through either process is purely discretionary.
The railroad does not have to exercise that authority. Typically, if not exercised, the authority expires after one year. Once the time to exercise has expired, the railroad must initiate another proceeding if it wishes to abandon. To exercise that authority, the carrier must submit an unequivocal consummation notice, under which it advises the agency that it has exercised the granted right to abandon. This submission creates an unambiguous regulatory record.
It leaves practically no room for debate over whether a line has or has not been abandoned, thus minimizing litigation over the issue in the courts or at the agency. ISW had never filed a consummation notice, so the line was not abandoned. To be sure, the landowners are not without a regulatory remedy, generally referred to as an adverse abandonment.
In such a proceeding, the applicant has a heavy burden to demonstrate that the public convenience and necessity require that the carrier's common carrier rights and obligations be extinguished. An adverse abandonment is, as the Board stated, typically a complex proceeding.
It requires public input, statutorily-required environmental and historic reviews, a consideration of the present and future need for rail service on the line, and a decision whether that need is outweighed by other interests.
This is a substantially heavier burden than the one that the landowners sought to carry by characterizing their request as a declaratory order of abandonment. Congress has required the STB to assess cost-based filing fees, and the adverse abandonment fee is far from its mandated highest charge. The STB did, though, hint that if the landowners choose to seek an adverse abandonment, it might waive some requirements — possibly referring to some or all of the filing fee. Whether property owners seeking to secure ownership of So, why has ISW not simply abandoned the line?
One possible explanation is the fact that it attempted in to negotiate a "trail use," or "rail banking," arrangement with a local trails organization. Under the National Trails System Act, if a railroad and a trails organization can reach agreement, the line of railroad goes into a rail bank , with the trails organization taking over management of the property for an indefinite period of time.
The easement document will usually state that upon the cessation of use of the property for railroad purposes, the use of the property reverts to the underlying fee title owner. Even if the easement document does not contain such verbiage, the cessation of use by the railroad company will operate to re-vest the easement interest in the fee title owner. This type of abandonment is a matter of intent. A railroad company is deemed to have abandoned its rights in the property if:.
Quite often there is a dispute between a fee title owner and the railroad company as to the issue of intent. Unless it is expressly determined that abandonment has occurred, TxDOT must deal with both the fee title owner and the railroad company in acquiring the needed ROW. Relinquishment of Jurisdiction. Abandonment, or relinquishment, of jurisdiction is the cessation of jurisdiction over a railroad company's operations by the STB.
This form of abandonment occurs when the STB issues an order of abandonment. This determination is made when interstate commerce is no longer being served by the railroad company on the property and federal oversight is no longer necessary. This type of abandonment can occur if the railroad company owns fee title to the property or has an easement interest in the property.
Brandt, Fed. In an decision, the United States Supreme Court has reversed the Tenth Circuit Court of Appeals to find that fee simple ownership of an abandoned railroad right of way vested in the owner of the surrounding tract, not in the United States, which had claimed a reversionary interest. The patent did not specify what would occur if the railway abandoned the right of way.
In , the United States filed an action against the defendant and others, seeking an order quieting title in the United States to the abandoned right of way. The district court granted summary judgment to the United States, and the Tenth Circuit Court of Appeals affirmed, ruling that the United States had retained an implied reversionary interest in the right of way, which vested in the United States when the right of way was relinquished.
The United States Supreme Court reversed, finding that fee simple had vested in favor of the defendant when the railway abandoned the right of way. The Court based its decision in large part on the fact that the United States had argued before the Court the opposite position and won more than 70 years ago, in the case of Great Northern Railway Co. United States, U.
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