[Federal Register Volume 81, Number 127 (Friday, July 1, 2016)]
[Notices]
[Pages 43334-43335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15652]
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SURFACE TRANSPORTATION BOARD
[Docket No. AB 1241; Docket No. FD 36040] \1\
Newvista Property Holdings, LLC--Adverse Abandonment of the
Ironton Branch--In Utah County, Utah; Newvista Property Holdings, LLC--
Petition For Declaratory Order
By petition filed on March 7, 2016, NewVista Property Holdings, LLC
(NewVista), seeks waivers of certain Board regulations and exemptions
from certain statutory provisions in connection with an adverse, or
third-party, application for abandonment it plans to file under 49
U.S.C. 10903. NewVista's petition concerns approximately 1.87 miles of
railroad owned by Union Pacific Railroad Company (UP) known as the
Ironton Branch. NewVista states that it owns, or controls, nearly all
of the industrial property that abuts the Ironton Branch.
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\1\ These proceedings are not consolidated. A single decision is
being issued for administrative convenience.
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On March 28, 2016, UP filed a reply to NewVista's petition, arguing
that the petition should be rejected or denied because the Ironton
Branch is excepted track under 49 U.S.C. 10906, and thus falls outside
the Board's abandonment authority.
On April 7, 2016, NewVista filed a reply to UP's reply (the
Surreply). In its Surreply, NewVista requests: (1) Guidance regarding
the appropriate procedures to obtain a ruling on whether the Ironton
Branch has been removed from the Board's jurisdiction; (2) a
declaratory order that the Board ``has authority to adversely abandon
the
[[Page 43335]]
Ironton Branch'' or that the Ironton Branch is no longer part of the
national rail system and that the Board has no jurisdiction over the
Ironton Branch. Additionally, ``[i]f the Ironton Branch has been taken
outside the authority of the STB because an abandonment already has
been consummated, [NewVista] requests a declaratory order so stating.''
The history and status of the Ironton Branch is well documented.
The Interstate Commerce Commission (ICC) authorized UP's request to
abandon the Ironton Branch in 1977. L.A. & Salt Lake R.R.--Aban.--
Portion of the Ironton Branch in Utah Cty., Utah, AB 85 (Sub-No. 3)
(ICC served Oct. 6, 1977). Subsequently, UP filed a notice with the ICC
on December 30, 1977, clarifying that track between Mileposts 0.64 and
0.71 was ``retired and removed,'' and that track between Mileposts 0.00
and 0.64, and between Mileposts 0.71 and 1.87, was to be retained and
reclassified as yard track. The Board confirmed the status of those
portions of the Ironton Branch as yard track in Joseph R. Fox--Petition
for Declaratory Order, FD 35161 (STB served May 18, 2009), aff'd Fox v.
STB, 379 Fed. Appx. 767 (10th Cir. 2010). In that decision, the Board
also confirmed that industrial yard track, while excepted under 49
U.S.C. 10906 from the need to obtain Board authority for construction,
abandonment, or operation, is nevertheless subject to the Board's
jurisdiction and is not subject to state or local regulation.
Because yard track is not subject to the Board's Sec. 10903
abandonment authority, the Board recently explained that yard track is
likewise excepted from the Board's adverse abandonment process.
Instead, the proper vehicle for removing the Board's jurisdiction over
yard track is through a declaratory order proceeding. Pinelawn
Cemetery--Pet. for Declaratory Order, FD 35468, slip op. at 11 n.31
(STB served Apr. 21, 2015). Because the portion of the Ironton Branch
remaining under Board jurisdiction is yard track, an adverse
abandonment is not appropriate here. Therefore, the Board will deny
NewVista's petition for waiver and will close the abandonment
proceeding.
However, NewVista's Surreply contains a request for a declaratory
order in the alternative. The Board has discretionary authority under 5
U.S.C. 554(e) and 49 U.S.C. 1321 to issue a declaratory order to
eliminate a controversy or remove uncertainty. Here, a controversy
exists as to whether the yard track has been or can be removed from the
Board's jurisdiction. The Board will therefore institute a declaratory
order proceeding.
It is ordered:
1. NewVista's petition for waiver in Docket No. AB 1241 is denied.
2. Docket No. AB 1241 is closed.
3. A declaratory order proceeding is instituted in Docket No. FD
36040. All parties must comply with the Rules of Practice, including 49
CFR parts 1112 and 1114.
4. NewVista's Opening Statement is due August 23, 2016.
5. Replies are due September 12, 2016.
6. NewVista's rebuttal is due September 22, 2016.
7. Notice of the Board's action will be published in the Federal
Register.
8. The decision is effective on the date of service.
Decided: June 23, 2016.
By the Board, Rachel D. Campbell, Director, Office of
Proceedings.
Rena Laws-Byrum,
Clearance Clerk.
[FR Doc. 2016-15652 Filed 6-30-16; 8:45 am]
BILLING CODE 4915-01-P