Fox River Neighborhood Ass'n v. Surface Transportation Board

D.C. Circuit

Fox River Neighborhood Ass'n v. Surface Transportation Board

5 F. App'x 1

CourtCourt of Appeals for the D.C. Circuit

DecidedFebruary 23, 2001

DocketNo. 00-1148

StatusPublished

This text of 5 F. App'x 1 (Fox River Neighborhood Ass'n v. Surface Transportation Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fox River Neighborhood Ass'n v. Surface Transportation Board, 5 F. App'x 1 (D.C. Cir. 2001).

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Opinion

JUDGMENT

This petition for review was considered on the record from the Surface Transportation Board (STB) and on the briefs of counsel. The Court has accorded the issues full consideration and has determined that they occasion no need for a published opinion. See D.C.Cir. Rule 36(b). It is

ORDERED and ADJUDGED that the petition for review be denied. Petitioners challenge the STB’s 1995 notice of interim trail use (NITU) and seven subsequent extensions of the NITU. We lack jurisdiction to review the NITU and first six extensions. Petitioners did not appeal from the STB’s original decisions in these matters, and the time to do so has now expired. See 28 U.S.C. §§ 2342(5), 2344. Petitioners’ 1998 request for reconsideration by the STB raised no issues of fact or law that could not have been raised earlier; it merely charged that the STB had committed material error. Under ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 278-84, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987), we lack jurisdiction to review the STB’s denial of such a request.

Although we may review petitioners’ timely challenge to the seventh [2]*2extension, see Schoenbohm v. FCC, 204 F.3d 243, 245 (D.C.Cir.2000), that challenge fails to persuade. Petitioners’ first argument, that the STB lacks authority to grant such an extension, has previously been rejected by this court. See Birt v. Surface Transportation Board, 90 F.3d 580, 588-89 (D.C.Cir.1996). Petitioners’ second argument, that the STB had no jurisdiction to issue the extension because the railroad had earlier abandoned the corridor, is without merit. In fact, the railroad was actively negotiating to sell the corridor at the time and thus had not abandoned it. See, e.g., Stine v. Marathon Oil, 976 F.2d 254, 266 (5th Cir.1992); Wood v. City of E. Providence, 811 F.2d 677, 679 (1st Cir.1987).

The clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir. Rule 41.

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JUDGMENT

This petition for review was considered on the record from the Surface Transportation Board (STB) and on the briefs of counsel. The Court has accorded the issues full consideration and has determined that they occasion no need for a published opinion. See D.C.Cir. Rule 36(b). It is

ORDERED and ADJUDGED that the petition for review be denied. Petitioners challenge the STB’s 1995 notice of interim trail use (NITU) and seven subsequent extensions of the NITU. We lack jurisdiction to review the NITU and first six extensions. Petitioners did not appeal from the STB’s original decisions in these matters, and the time to do so has now expired. See 28 U.S.C. §§ 2342(5), 2344. Petitioners’ 1998 request for reconsideration by the STB raised no issues of fact or law that could not have been raised earlier; it merely charged that the STB had committed material error. Under ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 278-84, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987), we lack jurisdiction to review the STB’s denial of such a request.

Although we may review petitioners’ timely challenge to the seventh [2]*2extension, see Schoenbohm v. FCC, 204 F.3d 243, 245 (D.C.Cir.2000), that challenge fails to persuade. Petitioners’ first argument, that the STB lacks authority to grant such an extension, has previously been rejected by this court. See Birt v. Surface Transportation Board, 90 F.3d 580, 588-89 (D.C.Cir.1996). Petitioners’ second argument, that the STB had no jurisdiction to issue the extension because the railroad had earlier abandoned the corridor, is without merit. In fact, the railroad was actively negotiating to sell the corridor at the time and thus had not abandoned it. See, e.g., Stine v. Marathon Oil, 976 F.2d 254, 266 (5th Cir.1992); Wood v. City of E. Providence, 811 F.2d 677, 679 (1st Cir.1987).

The clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir. Rule 41.

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