(erielack) STB news...

["Tupaczewski, Paul R (Paul)" <paultup_@_lucent.com>]

News on the east end of the Boonton Line (thanks Will Enser!)



> > 35614
> >
> > SERVICE DATE - LATE RELEASE JULY 27, 2005
> >
> > EB
> >
> > SURFACE TRANSPORTATION BOARD
> >
> > DECISION
> >
> > STB Finance Docket No. 34649
> >
> > NEW YORK & GREENWOOD LAKE RAILWAY -FEEDER LINE
> > ACQUISITION-
> > A LINE OF NORFOLK SOUTHERN RAILWAY COMPANY
> >
> > Decided:  July 27, 2005
> >
> >
> > We are affirming a decision rejecting the feeder
> > line application of New York & Greenwood Lake
> > Railway (Greenwood or appellant).
> >
> >
> > BACKGROUND
> >
> > On January 6, 2005, Greenwood filed an application
> > under the Feeder Railroad Development Program,
> > 49 U.S.C. 10907 and 49 CFR Part 1151, to acquire
> > from Norfolk Southern Railway Company (NS) a
> > 6.2-mile segment of the Boonton line extending
> > between milepost WD-2.2 in or near Jersey City and
> > milepost WD-8.4 in or near Newark, and the
> > contiguous 3.8-mile Newark Industrial Track
> > extending
> > between milepost NK-4.3 in or near Secaucus and
> > milepost NK-8.1 in or near Kearny in Essex and
> > Hudson Counties, NJ.  Prior to that filing, this
> > line was the subject of a notice of exemption filed
> > by NS on December 29, 2004.  Norfolk Southern
> > Railway Company -Discontinuance of Service
> > Exemption-
> > Between Newark, and Kearny, NJ, in Essex an Hudson
> > Counties, NJ, STB Docket No. AB-290 (Sub-No.
> > 242X) (STB served and published in the Federal
> > Register Jan. 18, 2005) (70 FR 2923).  NS used the
> > notice-of-exemption procedures to discontinue
> > service because there had been no local traffic over
> > the line for at least 2 years, overhead traffic
> > could be rerouted, no service complaints were
> > pending, and appropriate notice of the proposed
> > discontinuance had been given.
> >
> > In a decision served February 4, 2005, in this
> > proceeding, the Board, through the Director of the
> > Office of Proceedings, rejected Greenwood's
> > application for failing to meet the criteria at 49
> > U.S.C. 10907(b)(1)(A) and 49 CFR 1151.1.[1]
> > Greenwood relied exclusively on 49 U.S.C.
> > 10907(b)(1)(A)(ii) and the portion of 49 CFR 1151.1,
> > which provides, in pertinent part, that a rail
> > line is eligible for a forced sale if it appears in
> > category 1 or 2 of the owning carrier's system
> > diagram map (SDM).  The Director determined that
> > Greenwood did not make the required showing that
> > the rail line it sought to acquire appeared in
> > category 1 or 2 of the owning railroad's SDM.
> > Category 1 of the SDM includes lines as to which an
> > abandonment or discontinuance application is
> > anticipated within 3 years.  Category 2 includes all
> > lines "potentially subject to abandonment."  49
> > CFR 1152.10(b)(1) and (2).  Even though a legal
> > notice published in The Star Ledger of Newark, NJ,
> > appeared to indicate NS's intent to discontinue
> > service over the line at issue through the
> > application process, the Director found that it did
> > not represent NS's actual SDM.  Rather, he
> > concluded that the notice merely signified NS's
> > tentative plan, as of September 2003, to eventually
> > discontinue service over the line pursuant to
> > application-a plan that was never acted upon, as
> > service over the line was in fact properly
> > discontinued under the notice-of-exemption
> > procedures.
> > On February 14, 2005, Greenwood appealed the
> > Director's decision.  NS filed a reply on February
> > 23,
> > 2005.
> >
> >
> > POSITIONS OF THE PARTIES
> >
> > On appeal, Greenwood argues that the Director's
> > decision must be reversed to correct a clear error
> > of judgment and to prevent manifest injustice.
> > Although it recognizes that the only SDM NS has
> > filed with the Board was in May 1997, appellant
> > asserts that the newspaper publication can fairly be
> > read only as a revision of NS's SDM, and thus that
> > the legal notice published in The Star Ledger on
> > September 20, 2003, constitutes an actual amended
> > SDM.  Greenwood further argues that NS will have
> > flouted the Board's regulations if it is permitted
> > to apply for discontinuance authority by notice
> > of exemption after having unambiguously declared in
> > the legal notice its intent to file a
> > discontinuance application and thereafter failing to
> > amend its SDM.  Appellant asks that we reverse
> > the Director's decision and conditionally accept its
> > feeder line application.
> >
> > NS replies that the Director correctly found that a
> > carrier's operative and legally effective SDM is
> > the one on file with the Board, not maps of a
> > portion of the carrier's system published in a
> > newspaper.  NS contends that the newspaper
> > publication was merely a legal notice (albeit, an
> > erroneous one) rather than a SDM.  NS asserts that,
> > in March 2004, it filed with the Board its
> > actual, amended SDM, which did not include the
> > subject line in category 1 or 2.
> >
> > [...]
> >
> > Full Text of Decision at:
> >
> http://www.stb.dot.gov/decisions/ReadingRoom.nsf/51d7c65c6f78e
79385256541007f0580/c001be7d780c5ee98525704b00645a20?OpenDocument
> or http://tinyurl.com/b6x7a
>

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