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06/07/88 Cleveland & Cuyahoga v. Interstate Commerce

June 7, 1988

CLEVELAND & CUYAHOGA HEIGHTS RAILROAD CORPORATION, PETITIONER

v.

INTERSTATE COMMERCE COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS, THE NEWBURGH AND SOUTH SHORE



Before Buckley and Williams, Circuit Judges, and Thomas F. Hogan,* United States District Judge for the District of Columbia.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Railway Company, Intervenor 1988.CDC.225

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

Petitions for Review of Orders of the Interstate Commerce Commission

MEMORANDUM

Cleveland & Cuyahoga Heights Railroad Corp. petitions for review of an Interstate Commerce Commission decision on the disposition of an abandoned short line railroad near Cleveland, Ohio. The agency action is founded on a decision to give little credence to CCH or its cost estimates. Our review of the record gives us no reason to disagree with the ICC's determination.

Background

This case presents three consolidated petitions for review of ICC orders in proceedings for abandonment of a railroad and subsequent offers to purchase the abandoned railroad under 49 U.S.C. §§ 10903, 10905 (1982). On June 28, 1985, the Newburgh & South Shore Railway Co. applied to the ICC for authorization to abandon its entire line (7.33 miles of mainline track and 20.64 miles of yard and sidings) in Cuyahoga County, Ohio, south of Cleveland. An "abandonment" occurs when a carrier discontinues service without the intent to resume such service. Section 10903 provides in pertinent part:

(a) A rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title may --

(1) abandon any part of its railroad lines; or

(2) discontinue the operation of all rail transportation over any part of its railroad lines;

only if the Commission finds that the present or future public convenience and necessity require or permit the abandonment or discontinuance.

49 U.S.C. § 10903.

An administrative law judge heard testimony for two days and concluded, inter alia, on December 3, 1985, that the public convenience and necessity permitted the abandonment. On December 10, 1985, the ICC authorized abandonment of the NSS line. The final step in the abandonment process is issuance of a certificate of abandonment, which occurs only if no bona ...


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