United States Court of Appeals

Fifth Circuit



## FILED

February 9, 2005

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 03–41646

_______________



### C HARLES 

### B AROS 

### ; ET AL



### .,

Plaintiffs,



### C HARLES 

### B AROS 

### ; L

ES 

### F URMAN 

### ; AND 

### R OGER 

### M ILLER



### ,

Plaintiffs-Appellants,

VERSUS



### T EXAS 

### M EXICAN 

### R AILWAY 

### C OMPANY



### ,

Defendant-Appellee



## .

* * * * * * * * * * * * * * *



### R OBERT 

### M ARTIN 

### ; I RA 

### S KLAR 

### ; D ANIEL 

### P. K UBECKA 

### ;

T.J. B ABB 

### H EIR 

### ’ S 

### P ARTNERSHIP 

### ; AND 

### R ICHARD 

### A NDERSON



### ,

Plaintiffs-Appellants,

VERSUS



### T EXAS 

### M EXICAN 

### R AILWAY 

### C OMPANY



### ,

Defendant-Appellee



## .2 _________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

Before J ONES , S MITH , and S TEWART

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

In this proper t y dispute, each of the plaint iffs (collectively, the “landowners”) owns a

parcel of land in Jackson or Victoria County,

Texas, subject to a rail

r oad right-of-way referred to as the “Vi ctoria Segm ent” of the

“Rosenberg Line.” 1 The landowners sought a

judgment declaring that the porti on of the Victori a Segment’s right-of-way that abuts their

land reverted to them as a matter of law after

Sou t hern Pacific Transportation Company

(“Southern Pacific”), the former owner of the

line, allegedly abandoned it. The district court

dismissed for want of subject matter jurisdiction. We affirm.

I.

A.

Southern Pacific sou ght permission to

abandon the Victoria Segment in 1993 by filing a “Notice of Exemption” with the Inters tate Commerce Commission (“ICC”), 2 asserting tha t no local traffic had moved over the

line during the p revious two y ears. 3 The

1 The R osenberg Line is approximately 85

miles long and runs between Ro senberg and Victoria, Texas. The Victoria Segment is approximately 62 miles long stretching fr om Wharton to

Victo r ia, Texas. Texas Mexican Railway Company (“Texas Mexican”) is the current owner of

the line, having purchased it from Union Pa cific

Railroad Company (“ Union Pacific”) on March 12,

2001; Union Pacific acquired the line in 1996 after

its merger with Southern Pacific. 2 The ICC was abolished effective January 1,

1996, and the Surface Trans p ortation Board

(“STB”), in the Department of Transportation, w a s

created and charged with performing the functions

previously handled by th e ICC. S ee ICC

Termination Act of 1995, Pub. L. No. 104–88, 109

Stat. 804, 49 U.S.C. § 701 note.

3 A rail carrier intending to abandon any part of

its rail r oad lines must file an application with the

STB. S ee 49 U.S.C. § 10903(a)(1)(A). The STB

has the authority to exempt a rail carrier seeking to

abandon a rail line f

r om the ordinary procedures

applicable to rail abandonments if the carrier certifies that no local tr a ffic has moved over the line

for at least two years; th at any traffic on the line

can be rerouted over other lines; and that no formal

complaints regarding cessation of rail service on

the line are pending or have been decided within the

previous two years. See 49 C.F.R. § 1152.50(b).

If the STB agrees that a proposed abandonment is

exem pt, it is required to consider whether the

railway to be abandoned is appropriate for use for

public pur poses. S ee 49 U.S.C. § 10905; 49

C.F.R. § 1152.28(a)(1). If the agency determines

that the property is appropriate for public use, it is

authori zed to impose conditions on the

abandonment of the line by therail carrier, including a prohibition on disposing of the property

for 180 days unless the property is first offered for

sale on reasonable terms for public purposes. S ee

(continued...)3

Notice of Exemption became effective on December 1, 1993, subject to a “public use condition,” imposed by the ICC, pursuant to 49

U.S.C. § 10906, 4 prohibiting Southern Pacific

from disposing of the property for 180 days to

permit interested parties to acquire it for public

purposes.

In 1994, Southern Pacific entered into unsuccessful negotiations with another rail carrier regarding a possible sale of the entire Rosenberg Line. Later that year, the Gulf Coast

Ru ral Rail Transportation District (“Gulf

Coast”), a consortium of governmental entities

and businesses, attempted to purchase or lease

the Victoria Segment from Southern Pacific to

preserve rail service, but the parties could not

come to an agreement on price.

Having failed to reach an agreement, but determined to prevent Southern Pacific from removing the tracks, Gulf Coast filed a petition

in state court seeking to condemn the Victoria

Segment and requesting a temporary restraining order and temporary injunction. After the

state c o urt granted the temporary restraining

order, Southern Pacific removed the matter to

federal court and sought to quash the state

court’s temporary restraining o rder. Gul f

Coast opposed the relief sought by S outhern

Pacific and requested the federal court to issue

a temporary injunction.

On August 31, 1994, the district court

granted a pre liminary injunction in favor of

Gulf Coast enjoining Sou t hern Pacific from

removing tracks along the Victoria Segment. In granting the preliminary injunction, the district court found that Southern Pacific “clearly

expressed its intent to permanently abandon

the rail line from El Camp o to Victoria” and

that Southern Pacific “consummated its abandonment of the rail line.” As a result, the district court concluded that the “ICC no longer

exercises jurisdiction over the rail line.” 5

In April 1995, while the Gul f Coast suit

w as pending, Southern Pacific filed a lette r

with the ICC reporting t h at the Texas Parks

and W i ldlife Department had expressed an

interest in acquiring the Victoria Segment for

rail-banking an d interim trail use purposes,

pursuant to the National Trails Act, 16 U.S.C.

§ 1247(d). 6 In a decision and order issued on

May 4, 1995, the ICC reopened the abandonment proceeding and issued aNotice of Interim Trai l Use (“NITU”). 7 The NITU ex

3 (...continued)

49 U.S.C. § 10905.

4 This provision is now codified at 49 U.S.C.

§ 10905. 5 The Gulf C o ast suit was remanded to state

court in July 1995 when the district court decided

to abstain from exercising jurisdiction in light of its

conclusion that the ICC no longer had jurisdiction

over the rail line. After the case remained inactive

for several years, Gulf Coast eventually opted to

nonsuit in October 2000.

6 The National Trails Act authorizes the

ICC/STB “to preserve for possible future railroad

use rights-of-way not currently in service an d to

allow interim use of the land as recreational trails.”

Preseault v. ICC

, 494 U.S. 1, 6 (1990). Under the

Act, a state, political subdivision, or private entity

may, in certain circumstances, acquire a rail rightof-way, on terms established by the ICC/STB, for

interi m trail use, subject to future reactivation of

rail service over the line. S ee 16 U.S.C. § 1247(d);

49 C.F.R. § 1152.29.

7 The term “NITU” is used in exempt abandonment proceedings, but in re g ulated abandonment proceedings the STB issues a “Certificate of

(continued...)4

ten ded t he effective date of the notice of exemption for 180 days, to November 8, 1995,

thereby deferring Southern Pacific’s authority

to abandon the line and permitting negotiations

for possible rail-banking and interim t rail use

to continue through that date.

In an effort to permit continued ne goti ations between the Texas Par ks and Wildlife

Department and Southern Pacific, the negotiation period was ext ended on two m ore occasions, first on November 17, 1995, by a decision of the ICC, and second on May 21, 1996,

by a decision of th e STB. The final negotiation period expired on November 30, 19 9 6,

without an agreement.

Between 1995 and 1996, Southern Pacific

and Union Pacific had been engaged in negotiations to merge. The STB approved the merger on August 12, 1996, and Union Pacific succeeded to Southern Pacific’s ownership interest in the Rosenberg Line.

In 1998, Texas Mexican and Union Pacific

entered into negotiations regarding the sale of

the Rosenberg Line. In November 1999, Unio n Pacific and Texas Mexican executed a

contract whereby Te xas Mexican agreed to

purchase the line from Union Pacific on the

express condition that the STB issue a decision

determining that t he Victoria Segment remained subject to the STB’s jurisdiction and

authorizing the sale.

Texas Mexican thus petitioned the STB in

August 2000 to determine whether the Victoria Segment was subject to the STB’s jurisdiction and to authorize the sal e. On December 8, 2000, the STB issued a decision granting

T exas Mexican’s petition, stating its conclusi o n t hat it still retained jurisdiction over the

line, and approving the sale. In March 2001,

Texas Mexican purchased the line from Union

Pacific for $9,200,000.

B.

In May 2002, the landowners filed separate

de claratory judgment actions against Texas

Mexican in state court in Jackson County and

Victor i a County. The landowners sought

judgments declaring that the railroad right-ofway at issue (the Victoria Segment) was abandoned as a matt er of law by Southern Pacific

and that the STB no longer exercises jurisdiction over the line. Texas Mexican remo ved

the actions to federal court on t he basis of a

f ederal question, i.e.

, whether there had bee n

an abandonment and a resulting termination of

federal agency jurisdiction; the actions were

consolidated.

Both sides moved for summary judgment.

The landowners moved for partial summary

judgment, contending t h at Southern Pacific

had abandoned the Victoria Segment as a matter of law as early as 1994, and, consequently,

the STB had been improperly exercising jurisdiction over the Victoria Segment. To that

end, the landowners maintained that the district court’s findings of fact and conclusions of

law in the Gulf Coast suit 

### SS namely, its finding

that Southern Pacific had consummate d the

abandonment of the Victoria Segment, and its

conclusion that the ICC n o longer had

jurisdiction over the line 

### SS were entitled to preclusive effect in their declaratory judgment

action.

Texas Mexican moved for summary judgment, claiming that t he district court lacked

subject matter jurisdiction because (1) the STB 7 (...continued)

Interim Trail Use” (“CITU”). S ee 49 C.F.R.

§ 1152.29 (c)-(d).5

ret a ined exclusive and plenary jurisdiction to

determine whether the Victoria Seg ment had

been abandoned; and (2) t he landowners’

declaratory judgment action was an improper

collateral attack on th e STB’s December 15,

2000, decision approvi n g the sale of the

Rosenberg Line from Union Pacific t o Texas

Mexican.

In October 2003, the district court denied

the landowners’ partial summary judgm ent

motion and granted Texas Mexican’s summary

judgment motion, thereby dism issing the

landowners’ suit for want of subject m atter

jurisdiction. In so doing, the court refused to

give preclusive effect to it s prior decision in

the Gulf Coast suit, finding that it “was limit ed

to the issues surrounding the application for a

t emporary injunction” and was thus no t

reached after “a final hearing on the merits.”

In a thorough opinion, the court determined

that the conditional nature of the abandonment

exemption granted Southern Pacific b y the

ICC w as dispositive: It held that when an

abandonment exemption is condit io nal, the

STB retains jurisdiction over a railroad rightof-way until it has been abandoned pursuant to

the conditions established by the agency; and,

in such cases, the agency retains exclusive and

plenary jurisdiction to determine whether there

has been an abandonment sufficient to

terminate its jurisdiction.

Because the original exemption granted to

So uthern Pacific was conditional, the district

concluded that the STB retained exclusive jurisdiction to determine whether Southern Pacific or its successors in interest ever consummated th e abandonment of the Victoria Segment. Moreover, t he court characterized the

landowners’ suit as an improper collateral attack on ICC and STB decisions precluded by the Hobbs Act, 2 8 U.S.C. § 2342(5), whi ch

vests fe d eral courts of appeals with exclusive

jurisdiction to review all final STB orders.

II.

The landowners contend that because the

“ p recise issue” 

### SS

whether Southern Pacific

consummated the abandonment of the railway,

thereby terminating STB jurisdiction over the

line 

### SS was decided in the Gulf Coast temporary injunction proceeding, tha t finding is entitled to preclusive effect. This plea for collateral estoppel is unavailing.

A.

“Collateral estoppel vel non is a question of

law reviewed de novo .” B aby Dolls To pless

Saloons, Inc. v. City of Dallas

, 295 F.3d 471,

478 (5th Cir. 2002)

. Where a party seeks to

employ collateral estoppel offensively, however, a court has broad discretion to determine

whether relitigation of an issue should be precluded. S ee, e.g.

, Parklane Hosiery Co. v.

Shore

, 439 U.S. 322, 331 (1979 ). “We thus

review the district court’s refusal to offensivel y apply collateral estoppel only for abuse of

the broad d i scretion afforded it.” W inters v.

Diamond Shamrock Chem. Co.

, 149 F.3d 387,

392 (5th Cir. 1998) (citing Copeland v. Merrill Lynch & Co.

, 47 F.3d 1415, 1423 (5th Cir.

1995)).

B.

To d et ermine whether collateral estoppel

applies, we consider whether

(1) the issue under consideration is identical

to that litigated in the prior action; (2) the

i ssue was fully and vigorously litigated in

the prior action; (3) the issue was necessary

t o support the judgment in the prior case;

and (4) there is [any] special circumstance

that would make it unfair to apply the6

doctrine.

Winters , 149 F.3d at 391 (quoting Copeland

, 47 F.3d at 1422)

. We have set out several

other “safeguards that must be present before

estoppel may be employed.” I d. As relevant

here, first among these additional safeguards is

a “r e quirement that the ‘facts and the legal

standard used to as sess them are the same in

both proceedings.’” Id. (quoting Copeland

, 47

F.3d at 1422). Second, we inquire whether “a

‘new determination o f t he issue is warranted

by differences in the quality of extensiveness of

the procedures followed in the two courts.’”

Id. (quoting Copeland

, 47 F.3d at 1423)

(quoting R ESTATEMENT (S ECOND ) OF

J UDGMENTS § 28(3))). Third, we regard the

availabilit y of judicial review of the first

proceeding as being “of paramount importance

to t he issue of preclusion.” I d. at 395. 8

C.

The district court can hardly be said to have

abused its discretion by deciding that its finding in t he Gulf Coast suit was not entitled to

preclusive effect. Not only was the abandonment finding entered only ten days after Gul f Coast sued Southern Pacific, but it was made

under the legal standard applicable to issuance

of a temporary injunc t ion 

### SS i.e.

, a substantial

likelihood of success on the merits in light of a

substantial t h reat of irreparable injury. Thus,

the abandonment finding cannot be said to

have been “fully and vigorously litigated in the

prior action,” 9 nor was the question of abandonment assessed under t he same legal

standard as would be applicable on a direct

petition for review of an order of the STB. 10

Moreover, the prior abando n ment finding

was not subject to judicial review. The district

court’s August 31, 1994, order granting the

temporary injunction, which incorporated the

court’s findings of fact and conclusions of law,

never went into effect because Gulf Coast

failed to post the bond required as a prerequisite. 11 Southern Pacific thus had neither the incentive to appeal (because the judgment never

went into ef

fect ) nor the ability to appeal

(because the order was not final). Because we

have treated finalit y and the concomitant

availabilit y o f judicial review as an essential

8 Indeed, as noted in W inters

, the Restatement

“specifically provi des for an exception to preclusion when ‘[t]he party against whom preclusion is

sought could not, as a matter of law, have obtained

review of the judgment in the initial action.’” Winters

, 149 F.3d at 395 & n.9 (quoti n g R ESTATE

MENT (S ECOND ) OF J UDGMENTS § 28(1)); see also

1 8 W RIGHT

, M ILLER & C OOPER

, F EDERA L

P RACTICE AND P ROCEDURE § 4421, at 203 (1981)

(“ Since appellate review is an integral part of the

system, there is strong reason to insist that preclusion should be denied to findings that could not be

tested by the appellate procedure ordinarily available, either by appeal or cross appeal.”) (footnotes

omitted). 9 Winters

, 149 F.3d at 391 (quoting Copeland

, 47 F.3d at 1422).

10 See, e.g.

, Copeland , 47 F.3d at 1422 (“Collateral estoppel does not preclude litigation of an

issue unless both the facts and the legal st andard

used to assess them

are the same in both proceedings.”).

11 Accord United States v. Assoc. Air. Transp.,

Inc.

, 256 F.2d 857, 861 (5th Cir. 1956) (noting

th a t until posting of the required bond the order

granting an injunction “was conditional and without operative effect, and . . . there was, in short,

no order to appeal from”).7

predicate to issue preclusion, 12 this fact alone

is sufficient to reject the landowners’ preclusion argument.

A c cordingly, given, inter alia

, the temporary and limited treatment the issue of abandonment received in the Gulf Coast suit’s preliminary injunction proceeding, the legal standard applied in tha t proceeding, and the unavailabilit y of judicial review, the district court

did not abuse its discretion in refusing to give

preclusi ve effect to its abandonment finding.

III.

Put t ing aside the question of estoppel, we

now consider anew the district court’s conclusion that it lacked subject matter juris dicti on

“to determine whether Southern Pacific or its

successors in interest ever cons ummated the

abandonment of the Line.” We conclude that

because the abandonme nt authorization initially granted by the ICC was conditional, the

STB retained exclu si

ve and plenary jurisdiction

to determine whether there h as been an

abandonment sufficient to terminate its jurisdiction. Accordingly, the district court properly concluded that it la cked subject matter

jurisdiction to hear the landowners’ suit alleging that, as a matter of law, Southern Pacifi c

consummated the abandonment of the Victoria

Segment. A.

Although the district court conclu ded that

it lacked subject mat t er jurisdiction over the

landowners’s suit, it did not dism iss t he suit

under F ED

. R

. C IV

. P. 12(b)(1); rather, it dismissed for want of jurisdiction by granting

Texas Mexic an’s summary judgment motion.

In any event, the distinction is ultimately of little consequen ce for purposes of this appeal,

because “[w]e review dismissals for lack of

subject matter jurisdiction and grants of summary judgment de novo .” H ager v. Na tionsBank, N.A.

, 167 F.3d 245, 247 (5th Cir. 1999)

(per curiam). 13

B.

Once a rail carrier abandons a line, the line

is no longer part of the national transportati on

system, and the STB’s jurisdiction terminates.

Se e Preseault , 494 U.S., at 5 n.3. Thus, in

proceedings in which the STB imposes no

conditions on an abandonment, the STB’s decision to authorize the abandonment will end

its jurisdiction over the line. 14

12 S ee, e.g.

, J.R. Clearwater, Inc. v. Ashland

Chem. Co.

, 93 F.3d 176, 179 & n.2 (5th Cir.

1996) (“Finality is an essential component of the

concepts of both res judicata and collateral estoppel.”); Avondale Shipyards, Inc. v. Insured

Lloyd’s

, 786 F.2d 1265, 1269-73 (5th Cir. 1986)

(refusing to grant preclusive effect to partial summary judgment order on the basis tha t it was not

appealable); id. at 1270 (“We are not aware of any

federal appellate decision which has applied preclusion to a prior nonfinal r uling as to which appellate review was unavailable . . . .”). 13 See also Martinez v. Dep’t of U.S. Army

, 317

F.3d 511, 512 (5th Cir. 2003) (“This Court reviews dismissals for lack of subject matter jurisdiction under Fed. R. Civ. P. 1 2(b)(1) based on

questions of law de novo .”); Pluet v. Frasier

, 355

F.3d 381, 383 (5th Cir. 2004) (“We review the

grant of a m

otion for summary judgment d e

novo .”).

14 See, e.g.

, Hayfield N.R.R. v. Chicago & N.W.

Transp. Co.

, 467 U.S. 622, 633 (1984) (“[U]nless

the Commission attaches postabandonment conditions to a certificate of abandonment, the Commission’s authorization of

an abandonment brings it

regulatory mission to an end.”); see also Lucas v.

Township of Bethel

, 3 19 F.3d 595, 602 (3d Cir.

2003) (“In cases where the ICC h as placed no

conditions on a railroad abandonment

. . . the

(continued...)8

In contrast, where an abandonment is conditional, the STB retains juris diction over a

railroad right-of-way until it has been abandoned p ursuant to the conditions imposed by

the agency. S ee id. ; Lucas

, 319 F.3d at 603.

“In such cases, the ag ency also retains exclusive, plenary jurisdiction to determine whether

there has been an abandonmen t s ufficient to

terminate its jurisdiction.” L ucas

, 319 F.3d at

603 (citing Friends of the Atglen-Susquehanna Trail

, 252 F.3d at 262).

There is no dispute that Southern Pacific’s

authority to abandon

t he Victoria Segment

was expressly conditioned in seve ral respects

by the ICC’s decision granting its N oti ce of

Exemption. 1 5 First, the ICC imposed a 180-

day public use condition “to e n able any State

or local government agency or other interested

person to negotiate the acquisition of the line

for public use.” Second, the ICC requi red

Southern Pacific to “consult with [the Texas

Natural Heritage Program] prior to initiating

any salvage activities on this line.” Third, the

ICC required that Southern Pacific “consult

with the [U.S. Army Corps of En gineering]

concerning future flood prevent i on measures

prior to initiating any salvage activities on the

line.” And fourth, the ICC prohibited Southern P acific from “altering the historic integrity” of a porti o n of the line until completion

of the National

Historic Preservation Act review process.

Because Southern Pacific’s abandonment

authorization was conditional, t he district

cou rt correctly determined that the STB retained exclusive and plenary jurisdiction over

the line to determine whether there has been an

abandonment sufficient to terminate its jurisdiction. S e e i d. Consequently, the court

corre c tly concluded that it did not have

jurisdiction to decide whether Southern Pacific

or its successors in interest abandoned the line.

C.

The landowners do not directly dispute any

of the foregoing. Instead, they contend that

Southern Pacific’s abandonment was autom atically consummated, as a matter of law, when

no agreement was reached on interim trail use

within the init

ial 180-day period imposed by

the ICC, thus depriving the agency of further

jurisdiction over the right-of-way and allowing

the landowners’ reversionary interests to vest.

According to this theory, the agency’s order of

May 4, 1995, reopening the Victoria

Segment’s abandonment proceeding and postponing the abandonment exemption’s effective

date for 180 days to allow for further interim

trail use negotiations, was for naught, because

the agency no longer had jurisdiction over the

line; t he same was true for its November 17,

1995, and May 21, 1996, decisio ns further

postponing the effective date, and th e STB’s

December 8, 2000, decision approving the sale

of the line to Texas Mexican.

It is not disputed that under STB regulations a NITU, such as the one issued here (or

a CITU in nonexempt abandonment proceed14 (...continued)

ICC’s decision to authorize an abandon ment will

bring its jurisdiction to an end.” ); F riends of the

Atglen-Susquehanna Trail, Inc. v. STB

, 252 F.3d

246, 262 (3d Cir. 2001) (“Unless the STB attaches

post-abandonment conditions to a certificate of

abandonment or exemption

. . . the authorization of

abandonment ends the Board’s regulatory mission

and its jurisdiction.”).

15 See S. Pac. Transp. Co. SS Abandonment Exemption SS

I n Jackson, Victoria, and Wharton

Counties, TX

, Docket No. AB-12 (Sub. No. 162X)

(Dec. 23, 1993).9

ings), converts into an

effective certificate of

abandonment if no trail us e agreement is

reached during the period allotted for negotiation. 16 But from this propo sition the

landowners infer th at abandonment is

consummated as a matter of law 

### SS and thus

agency juri sdiction terminates 

### S S if no interim

trail use agreement is reached upon expiration

of a NITU. This, however, is incorrect.

The relevant STB regulation states that expiration of a NITU will “permit” a railroad fully to abandon the line, therefore indicating that

an effective certificate of abandonmen t authorizes, but does not itself establish, complete

consummation of

t he abandonment. 1 7 Thus,

“an effective certificate of ab andonment

confers permissive authority o n the railroad;

until the railroad actually c o nsummates an

abandonment, none occurs, and the Commission retains jurisdiction o ver the railroad’s

right-of-way.” B irt

, 90 F.3d at 589 (emphasis

added). The landowners’ claim that agency

jurisdiction was automatic al ly terminated upon

expiration of the init

ial 180-day publi c use

negotiation period is, therefore, contrary to the

plain text of the g o verning regulations and is

based on an in co rrect view of the abandonment regime. 18

Indeed, the pro blem with the landowners’

argument is more acutely perceived in light of

recent changes in the railway abandonment

regime. “Historically, the STB determined

w hether an abandonment was consummated by

evaluating the rail carrier’s objective intent to

cease permane nt ly or indefinitely all transportati on service on the line.” L u cas , 319

F.3d at 603 n.11. Because of the uncertainty

such an approa c h fostered as to a particular

line’s status, however, the S TB, since 1997,

has required rail carriers to file with the agency

a letter confirming co nsummation of abandonmen t. 19 Although a similar filing requirement was in effect before the Victoria Segment’s abandonment w as authorized in December 1993, 20 no such requirement was in effect when the Victoria

Segment’s authoriza16 See, e.g.

, Birt v. S TB , 90 F.3d 580, 583

( D.C. Cir. 1996) (“If the parties do not reac h

agreement, the certificate of abandonment becomes

effective upon expiration of the CITU.”); id. n.11.

17 See 49 C.F.R. § 1152.29(d)(1) (“The NITU

will

. . . permit the railroad to fully aband on the

line if no agreement is reached 180 days after it is

issued, subject to appropriate conditions, including

labor protection, and environmental matters.” (emphasis added); see also 49 C.F.R. § 1152.29(c)(1)

(“The CITU will

. . . pe rmit the railroad to fully

abandon the line if no agre ement is reached 180

days after it is issued . . . .”) (emphasis added). 18 Moreover, the fact that an abandonment proceeding can be reopened to grant a NITU or CITU

more than 180 days after the abandonment exemption’s issuance, or that a NITU can be extended beyond the 180-day statutory period, provides further

support for this con clusion. S ee, e.g.

, Birt

, 90

F.3d at 589 (upholding the STB’s authority both to

ex tend an NITU for more than 180 days and

retroactively to extend an NITU after its expiration). That is, if, as the landowners contend, an

abandonment were automatically consummated as

a matter of law absent agreement 180 days after issuance of a NITU, the agency would be without

jurisdiction to reopen or ex tend the period for

negotiations.

19 See Lucas

, 319 F.3d at 603 n.11 (citing

Becker v. STB

, 132 F.3d 60, 61 n.2 (D.C . Cir.

1997)).

20 See, e.g.

, Consol. Rail Corp. v. STB.

, 93

F.3d 793, 798 (D.C. Cir. 1996) (not ing pre-1984

requirement that rail carriers file with the ICC a

letter confirming consummation of abandonment).10

tion occurred.

Critically, no such public filing requirement

would be necessary if the STB’s jurisdiction

over a rail line ceased automatically as a

matter of law on the expiration of the 180-day

period imposed by a NITU. To the contrary

, this filing requirement i mplicitly recognizes

that the decision actually to abandon a line

rests with the carrier; it i s only upon actual

consummation of the abandonment that the

STB’s jurisdiction ceases.

D.

As we have indicated, because the original

abandonment authorization was conditional,

the determination of whether there has actually

been an abandonment is within the primary and

exclusive jurisdiction of the STB. Despite the

STB’s exclusive jurisdiction to determine

whether the abandonment has been

consummated, however, the landowners’ suit

sought a declaration from the district court

that Southern Pacific had consummate d the

abandonment of the Victoria Segment as early

as 1994 as a result of various acts and omissions on the line. 21 Whatever the merits of

these contentions, it is evident that the practical effect of the landowners’ suit is improperly

to challenge various ICC and STB decisions

that necessarily (albeit implicit ly) decided that

Southern Pacific di d not consummate the abandonment of the Victoria Segment.

In at least four decisions and orders issued

after the conditional abandonment was authorized in 1993, the ICC and STB exercised jurisdiction over t he Victoria Segment. 2 2 The

landowners stress that none of these decisions

ever directly held that Southern Pacific had not

consummated the abandonment of the Victoria

Segment. But what the landowners fail to

grasp is that each decision and order issued by

the ICC and STB after the init ial abandonment

autho rization in 1993 required continued

agency j uri sdi

cti on over the Victoria

Segment 

### SS

and therefore no consummated

abandonment 

### SS

to be valid agency action.

In other words, if, as the landowners maintain, Southern Pacific had in fact consummated

the abandonment of the Victoria Segment as

early as 1994, it follows that the agency was

ultra vires in each of its decisions between the

init ial abandonment authorization and the

ultimate sale of the line, bec ause once an

abandonment is consummated, the a gency’s

juri sdiction terminates. S ee Preseault

, 494

U.S. at 5-6 n.3; Bi rt , 90 F.3d at 585. Consequently, each of the decisions and orders issued by the ICC and STB between the init ial

abando n ment authorization and the ultimate

sale of the line necessarily (again, albeit implicitly) determined that Southern Pacific had

21 The landowners point to the following alleged

acts and omissions on the part of Southern Pacific

to support their contention Southern Pacific

consummated the abando nment of the line: (1) its

removal of rails and ties; (2) its failure to repair

flood-damaged portions of the line; (3) its failure

to maintain mowing and spraying operations; and

(4 ) its failure to object to certain landowners’

fencing in portions of the right-of-way for grazing

purposes. 22 As we have indicated, these include the ICC’s

May 4, 1995, decision reopening the Victori a

Segment’s aban donment proceeding and postponing the exemption’s effective date for 180 days

to allow for int erim trail use negotiations; the

ICC’s November 17, 1995, decision and the STB’s

May 21, 1 996, decision further postponing the

ex emption’s effective date to allow for continued

trail use negotiations; and the STB’s May 8, 2000,

decision approving the sale of the Rosenberg Line

to Texas Mexican.11

n o t consummated the abandonment of the

Victoria Segment. 23

Therefore, “[a]lthough n o t in form a request for review of an ICC order, the practical

effect is to seek

such a review.” D ave v.

Rails-to-Tr

ails Conservancy , 79 F.3d 940, 942

(9th Cir. 1996). Pursuant to the Hobbs Act,

however, the courts of appeals have exclusive

jurisdiction over any action to enjoin, suspend,

or determine the validity of an STB order. S ee

28 U.S.C. § 2342(5). The proper means,

therefore, by which the landowners could have

challenged the STB’s continued jurisdi cti on

over the line, and the implicit d ecision that

Southern Pacific had not consummated the

abandonment, would have been to seek direct

judicial review (within sixty days) of any of the

ICC’s or STB’s orders. S ee 28 U

. S.C. §

2344.

Of course, it is true generally that under 28

U.S.C. § 2 344 only a “party aggrieved” by a

final agency order may seek direct judicial review, and the term “party aggrieved” is “used

in a defin it ive sense in the statute, and limits

the right of appeal to those who actually participated in the agency pr oceedi ng.” A m.

Trucking Ass’ns, Inc. v. ICC

, 673 F.2d 82, 84

(5th Cir. 1982) (p er curiam ). 2 4 But the fact that only parties to the agency proceedings can

seek direct review under the Hobbs A c t does

not excuse the Landowners from following

this exclusive procedure, t hereby allowing

them collaterally to attack various agency orders by maint ainin g a declaratory judgment

action in district court. Rather, this statutory

limit on the availabilit

y of direct review indicates that th e landowners had an affirmative

duty to intervene 25 before the agency in any of

the proc eedings involving the Victoria Segment b eginning in 1994, when they claim

Southern Pacific consummate d t he abandonment, until the STB’s approval of t he sale of

the Rosenberg Line in 2000.

B y failing affirmat ively to act to pr otect

23 See King County v. Rasmussen

, 299 F.3d

1077, 1089 (9th Cir. 2002) (“The STB implicitly

has answered this question by asserting jurisdiction

over the rail line; judicial review of the order must

be obtained directly from a court of appeals

. . . .”).

24 See also Simm ons v. ICC , 716 F.2d 40, 42

(D.C. Cir. 1983) (“This circuit has consistently interpreted the phrase ‘party aggrieved’ to require as

a general matter that petitioners be parties to any

proceedings before the agency preliminary to issuance of its orde

r.”). We note that, despite this

(continued...) 24 (...continued)

rule, two Fift h Circuit cases suggest that nonparties may appeal ICC orders if “the agency action is

‘attacked as exceeding thepower of the Commission.’” A m. Trucking Ass’ns

, 673 F.2d at 85

n.4 (quoting Schwartz v. Alleghany Corp.

, 282 F.

Supp. 161, 163 (S.D.N.Y. 1968)); see also Wales

Transp. Co. v. ICC

, 728 F.2d 774, 776 n.1 (5th

Cir. 1984).

This line of cases has, however, been squarely

rejected by some of our sister circuits. S ee, e.g.

, In

re Chicago, Milwaukee, St. Paul & Pac. R.R..

, 799

F.2d 317, 335 (7th

Cir. 1986) (“The statute limits

review to petitions filed by parties, and that is

that.”); Erie-Niagra Rail Steering Committee v.

STB

, 167 F.3d 111, 113 (2d Cir. 1999) (“We agree

with the Seventh Circuit in C hicago and the District of Columbia Circuit in Simmons . To the extent that non-parties were once permitted to appeal

ICC decisions, that avenue was closed by the clear

lang ua ge of the Hobbs Act when it became

applicable to the ICC in 1975.”).

25 The applicable standards and requirements

for intervention in a proceeding before the STB are

set forth in 49 C.F.R. § 1113.7.12

their interests by intervening in the agency proceedings, the landowners cannot now advance

t heir claims in a collateral action that necessarily challenges several agen c y decisions

and orders as being issued a ft er the agency’s

jurisdiction over the line terminated:

[I]t is incumbent ‘upon an interested person

to act affirmative ly to protect himself’ in

administrative proceedings, and

. . . [s]uch

a perso n should not be entitled to sit back

and wait until all interested persons who do

so act have been heard, and then complain

that he has not been properly treated.’

Nader v. Nu clear Regulatory Comm’n , 513

F.2d 1045, 1054 (D.C. Ci r. 1975) (footnotes

omitted) (quoting Red River Broad. Co. v.

FCC , 98 F.2d 282, 286 (D.C. Cir. 1938)).

AFFIRMED.