Lowe v. Surface Transportation Board

540 F. App'x 6
CourtCourt of Appeals for the D.C. Circuit
DecidedNovember 1, 2013
DocketNos. 10-1130, 10-1133
StatusPublished

This text of 540 F. App'x 6 (Lowe 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.

Bluebook
Lowe v. Surface Transportation Board, 540 F. App'x 6 (D.C. Cir. 2013).

Opinion

JUDGMENT

PER CURIAM.

This petition for review of an order of the Surface Transportation Board was presented to the court, and briefed and argued. The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See D.C.Cir. R. 36(d). It is

ORDERED AND ADJUDGED that for the reasons set forth in the accompanying memorandum the petition for review be denied.

Pursuant to Rule 36 of this Court, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en [7]*7banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41.

Memorandum

Petitioners Lowe and Strohmeyer and Intervenor Riffin (“Offerors”) challenge a final decision of the Surface Transportation Board on several grounds. In the decision, the Board allowed Norfolk Southern Railway Company to abandon the Cockeysville Industrial Track (“CIT”) and exempted the CIT from the forced-sale requirements of 49 U.S.C. § 10904. Because we find that several of Offerors’ arguments are forfeited, and that the remaining ones are without merit, we deny the petition for review.

First, Offerors have forfeited several of their arguments by failing to raise them to the Board. For instance, they claim that Norfolk Southern failed to identify the precise end point of the CIT and that under Consolidated Rail Corp. v. Surface Transportation Board, 571 F.3d 13, 19 (D.C.Cir.2009), the Board lacked jurisdiction to determine the precise end point. Offerors also claim that abandonment of the CIT would leave several stranded segments. Since Offerors could have presented both arguments to the Board before its final decision but did not, we find the issues forfeited. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (explaining the “general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice”); Mitchell v. Christopher, 996 F.2d 375, 378-79 (D.C.Cir.1993) (noting that, except for “challenges that concern the very composition or ‘constitution’ of an agency,” this court has “insisted that jurisdictional questions be put to agencies before they are brought to us”).

In addition, although some of the issues Offerors listed in their opening brief could conceivably be construed to challenge the exemption from 49 U.S.C. § 10903, Offerors did not brief these issues; consequently, they are abandoned. See Terry v. Reno, 101 F.3d 1412, 1415 (D.C.Cir.1996) (“Simply listing the issues on review without briefing them does not preserve them.”).

Second, several claims fail because Of-ferors do not identify any prejudice that they experienced as a result of the challenged actions. Offerors claim that by striking the filings made by Lowe and Strohmeyer, the Board acted arbitrarily and in violation of their due process rights. Assuming the March 22, 2010, decision to strike was error, however, we can find no prejudice from the challenged action, see 5 U.S.C. § 706, and therefore have no basis to reverse the Board on this ground. We generally do not consider arguments that are raised for the first time in a reply brief. Bd. of Regents of Univ. of Wash. v. EPA 86 F.3d 1214, 1221 (D.C.Cir.1996). Thus, we refuse to consider Offerors’ claim that the Board’s decision led to a failure by Norfolk Southern to provide requested information. Moreover, the Board accepted Lowe and Strohmeyer’s amended filings, which were substantively identical to their original filings. To the extent that Offer-ors argue that the March 22 order created a period during which the Board unlawfully signaled that they were barred from making additional filings, in fact the Board’s Federal Register notice said that responses should be filed by January 25, 2010. 75 Fed.Reg. 516, 517/1 (Jan. 5, 2010). Additionally, the Board determined that the verified letters Lowe stated she would have filed would not have changed the Board’s decision, Norfolk S. Ry. Co. — Petition for Exemption — In Baltimore City and Baltimore Cnty., Md., STB No. AB-[8]*8290 (Sub-No. 311X), 2012 WL 264190, at *11 (served Jan. 27, 2012) (denying petition to reopen), and we have been shown no reason to doubt that. The Board explicitly stated in its March 22 decision that the “ruling does not preclude any financially responsible person from submitting an offer of financial assistance [ (“OFA”) ] in this proceeding at the proper time,” leaving the door open to the Offerors’ pursuit of that avenue. Because Offerors do not identify any prejudice from the disputed order to strike, the order provides no legal ground to set aside the Board’s ultimate decision.

Finally, we consider Offerors’ claim that the Board erroneously exempted the CIT from the forced-sale provisions of 49 U.S.C. § 10904. Pursuant to 49 U.S.C. § 10502, the Board may exercise its discretion to exempt rail carriers from statutory abandonment procedures, including the forced-sale procedures set forth in 49 U.S.C. § 10904. We have recognized that, with respect to exemptions from § 10904, “the [Board] properly exercises that discretion when the right-of-way to be abandoned is needed for a public purpose and there is no overriding public need for continued rail service.” Kessler v. Surface Transp. Bd., 635 F.3d 1, 5 (D.C.Cir.2011). Substantial evidence existed to show the CIT met the Kessler standard, and the Board decision granting Norfolk Southern an exemption from the forced-sale procedures was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (E).

The evidence available to the Board, which is cited in the Board’s decision, supports the finding that the CIT met the Kessler standard. Ample evidence demonstrated that the CIT is needed for a valid public purpose. Maryland Transit Administration (“MTA”) operates its passenger rail service along the line during most hours of the day. When it is not operating the service, MTA uses the line for staging and other purposes.

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