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

_______________

CHARLES BAROS; ET AL.,

Plaintiffs,

CHARLES BAROS; LES FURMAN; AND ROGER MILLER,

Plaintiffs-Appellants,

VERSUS

TEXAS MEXICAN RAILWAY COMPANY,

Defendant-Appellee.

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

ROBERT MARTIN; IRA SKLAR; DANIEL P. KUBECKA;

T.J. BABB HEIR’S PARTNERSHIP; AND RICHARD ANDERSON,

Plaintiffs-Appellants,

VERSUS

TEXAS MEXICAN RAILWAY COMPANY,

Defendant-Appellee.
2

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

Before JONES, SMITH, and STEWART,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In this property dispute, each of the plaintiffs (collectively, the “landowners”) owns a

parcel of land in Jackson or Victoria County,

Texas, subject to a railroad right-of-way referred to as the “Victoria Segment” of the

“Rosenberg Line.”1 The landowners sought a

judgment declaring that the portion ofthe Victoria Segment’s right-of-way that abuts their

land reverted to them as a matter of law after

Southern 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 sought permission to

abandon the Victoria Segment in 1993 by filing a “Notice of Exemption” with the InterstateCommerceCommission(“ICC”),2

asserting that no local traffic had moved over the

line during the previous two years.3 The

1 The Rosenberg Line is approximately 85

miles long and runs between Rosenberg and Victoria, Texas. The Victoria Segment is approximately 62 miles long stretching from Wharton to

Victoria, Texas. Texas Mexican Railway Company (“Texas Mexican”) is the current owner of

the line, having purchased it from Union Pacific

RailroadCompany (“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 Transportation Board

(“STB”), in theDepartment ofTransportation, was

created and charged with performing the functions

previously handled by the ICC. See 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 railroad lines must file an application with the

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

has the authority to exempt a rail carrier seeking to

abandon a rail line from the ordinary procedures

applicable to rail abandonments if the carrier certifies that no local traffic has moved over the line

for at least two years; that 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

exempt, it is required to consider whether the

railway to be abandoned is appropriate for use for

public purposes. See 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

authorized to impose conditions on the

abandonment of the line by the rail 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. See

(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. § 10906,4prohibiting Southern Pacific

from disposing of the property for 180 daysto

permit interested partiesto acquire it for public

purposes.

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

Rural Rail Transportation District (“Gulf

Coast”), a consortiumof governmentalentities

and businesses, attempted to purchase or lease

the Victoria Segment fromSouthern 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 fromremoving 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 court granted the temporary restraining

order, Southern Pacific removed the matter to

federal court and sought to quash the state

court’s temporary restraining order. Gulf

Coast opposed the relief sought by Southern

Pacific and requested the federal court to issue

a temporary injunction.

On August 31, 1994, the district court

granted a preliminary injunction in favor of

Gulf Coast enjoining Southern 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 Campo 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 Gulf Coast suit

was pending, Southern Pacific filed a letter

with the ICC reporting that the Texas Parks

and Wildlife Department had expressed an

interest in acquiring the Victoria Segment for

rail-banking and 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 a Notice of Interim Trail 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 Coast suit was remanded to state

court in July 1995 when the district court decided

to abstain fromexercising 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 and 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

interim trail use, subject to future reactivation of

railservice over the line. See 16 U.S.C. § 1247(d);

49 C.F.R. § 1152.29. 

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

(continued...)
4

tended the 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 trail use

to continue through that date. 

In an effort to permit continued negotiations between the Texas Parks and Wildlife

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

by a decision of the STB. The final negotiation period expired on November 30, 1996,

without an agreement.

Between 1995 and 1996, Southern Pacific

and Union Pacific had been engaged in negotiationsto 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, Union Pacific and Texas Mexican executed a

contract whereby Texas Mexican agreed to

purchase the line from Union Pacific on the

express condition that the STBissue a decision

determining that the 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 wassubject to the STB’sjurisdiction and to authorize the sale. On December

8, 2000, the STB issued a decision granting

Texas Mexican’s petition, stating its conclusion that 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 landownersfiled separate

declaratory judgment actions against Texas

Mexican in state court in Jackson County and

Victoria County. The landowners sought

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

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

the actions to federal court on the basis of a

federal question, i.e., whether there had been

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 that 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’sfindings of fact and conclusions of

law in the Gulf Coast suitSSnamely, its finding

that Southern Pacific had consummated the

abandonment of the Victoria Segment, and its

conclusion that the ICC no longer had

jurisdictionoverthe lineSSwere entitled to preclusive effect in their declaratory judgment

action. 

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

subject matterjurisdictionbecause (1) theSTB

7

(...continued)

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

§ 1152.29 (c)-(d). 
5

retained exclusive and plenary jurisdiction to

determine whether the Victoria Segment had

been abandoned; and (2) the landowners’

declaratory judgment action was an improper

collateral attack on the STB’s December 15,

2000, decision approving the sale of the

Rosenberg Line from Union Pacific to Texas

Mexican.

In October 2003, the district court denied

the landowners’ partial summary judgment

motion and grantedTexasMexican’ssummary

judgment motion, thereby dismissing the

landowners’ suit for want of subject matter

jurisdiction. In so doing, the court refused to

give preclusive effect to its prior decision in

the Gulf Coast suit, finding that it “waslimited

to the issues surrounding the application for a

temporary injunction” and was thus not

reached after “a final hearing on the merits.” 

In a thoroughopinion, the court determined

that the conditionalnature ofthe abandonment

exemption granted Southern Pacific by the

ICC was dispositive: It held that when an

abandonment exemption is conditional, the

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

the conditions established by the agency; and,

in such cases, the agency retains exclusive and

plenaryjurisdiction to determinewhetherthere

has been an abandonment sufficient to

terminate its jurisdiction. 

Because the original exemption granted to

Southern Pacific was conditional, the district

concluded that the STB retained exclusive jurisdictionto determine whether Southern Pacific or its successors in interest ever consummated the abandonment of the Victoria Segment. Moreover, the court characterized the

landowners’ suit as an improper collateral attack on ICC and STB decisions precluded by

the Hobbs Act, 28 U.S.C. § 2342(5), which

vests federal courts of appeals with exclusive

jurisdiction to review all final STB orders. 

II.

The landowners contend that because the

“precise issue”SSwhether Southern Pacific

consummated the abandonment ofthe railway,

thereby terminating STB jurisdiction over the

lineSSwas decided in the Gulf Coast temporary injunction proceeding, that 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.” Baby Dolls Topless

Saloons, Inc. v. City of Dallas, 295 F.3d 471,

478 (5th Cir. 2002). Where a party seeks to

employcollateral estoppeloffensively, however, a court has broad discretion to determine

whether relitigation of an issue should be precluded. See, e.g., Parklane Hosiery Co. v.

Shore, 439 U.S. 322, 331 (1979). “We thus

review the district court’srefusal to offensively apply collateral estoppel only for abuse of

the broad discretion afforded it.” Winters 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 determine whether collateral estoppel

applies, we consider whether 

(1) the issue under consideration isidentical

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

issue was fully and vigorously litigated in

the prior action;(3) the issue was necessary

to support the judgment in the prior case;

and (4) there is [any] special circumstance

that would make it unfair to apply the
6

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.” Id. As relevant

here, first among these additionalsafeguardsis

a “requirement that the ‘facts and the legal

standard used to assess them are the same in

both proceedings.’” Id. (quotingCopeland, 47

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

‘new determination of the issue is warranted

bydifferencesin the qualityof extensiveness of

the procedures followed in the two courts.’”

Id. (quoting Copeland, 47 F.3d at 1423)

(quoting RESTATEMENT (SECOND) OF

JUDGMENTS § 28(3))). Third, we regard the

availability of judicial review of the first

proceeding as being “ofparamount importance

to the issue of preclusion.” Id. at 395.8

C.

The district court can hardly be said to have

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

preclusive effect. Not only was the abandonment finding entered only ten days after Gulf

Coast sued Southern Pacific, but it was made

under the legalstandard applicable to issuance

of a temporary injunctionSSi.e., a substantial

likelihood ofsuccess on the meritsin light of a

substantial threat of irreparable injury. Thus,

the abandonment finding cannot be said to

have been “fully and vigorously litigated in the

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

standard as would be applicable on a direct

petition for review of an order of the STB.10

Moreover, the prior abandonment finding

was not subject to judicialreview. The district

court’s August 31, 1994, order granting the

temporary injunction, which incorporated the

court’sfindings offact and conclusions oflaw,

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 effect) nor the ability to appeal

(because the order was not final). Because we

have treated finality and the concomitant

availability of judicial review as an essential

8

Indeed, as noted in Winters, the Restatement

“specifically provides 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 (quoting RESTATEMENT (SECOND) OFJUDGMENTS § 28(1)); see also

18 WRIGHT, MILLER & COOPER, FEDERAL

PRACTICE AND PROCEDURE § 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 standard

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

that 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. 

Accordingly, 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 that proceeding, and the unavailability of judicialreview, the district court

did not abuse its discretion in refusing to give

preclusive effect to its abandonment finding. 

III.

Putting aside the question of estoppel, we

now consider anew the district court’s conclusion that it lacked subject matter jurisdiction

“to determine whether Southern Pacific or its

successors in interest ever consummated the

abandonment of the Line.” We conclude that

because the abandonment authorization initially granted by the ICC was conditional, the

STBretained exclusive and plenary jurisdiction

to determine whether there has been an

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

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

consummated the abandonment oftheVictoria

Segment.

A.

Although the district court concluded that

it lacked subject matter jurisdiction over the

landowners’s suit, it did not dismiss the suit

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

Texas Mexican’s summary judgment motion.

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

because “[w]e review dismissals for lack of

subject matter jurisdiction and grants of summary judgment de novo.” Hager v. NationsBank, 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 transportation

system, and the STB’s jurisdiction terminates.

See 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 See, 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 that it was not

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

federal appellate decision which has applied preclusion to a prior nonfinal ruling 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. 12(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 motion for summary judgment de

novo.”). 

14 See, e.g., HayfieldN.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, theCommission’s authorization of an abandonment brings it

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

Township of Bethel, 319 F.3d 595, 602 (3d Cir.

2003) (“In cases where the ICC has placed no

conditions on a railroad abandonment . . . the

(continued...)
8

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

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

the agency. See id.; Lucas, 319 F.3d at 603.

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

there has been an abandonment sufficient to

terminate its jurisdiction.” Lucas, 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 the Victoria Segment

was expressly conditioned in several respects

by the ICC’s decision granting its Notice of

Exemption.15 First, the ICC imposed a 180-

day public use condition “to enable any State

or localgovernment agencyor other interested

person to negotiate the acquisition of the line

for public use.” Second, the ICC required

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 Engineering]

concerning future flood prevention measures

prior to initiating any salvage activities on the

line.” And fourth, the ICC prohibited Southern Pacific from “altering the historic integrity” of a portion of the line until completion

of the National Historic Preservation Act review process.

Because Southern Pacific’s abandonment

authorization was conditional, the district

court 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. See id. Consequently, the court

correctly concluded that it did not have

jurisdictionto decidewhether SouthernPacific

or itssuccessorsin interest abandoned the line.

C.

The landowners do not directly dispute any

of the foregoing. Instead, they contend that

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

no agreement was reached on interim trail use

within the initial 180-day period imposed by

the ICC, thus depriving the agency of further

jurisdiction over the right-of-wayand allowing

the landowners’ reversionary intereststo vest.

According to thistheory, 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, wasfor naught, because

the agency no longer had jurisdiction over the

line; the same was true for its November 17,

1995, and May 21, 1996, decisions further

postponing the effective date, and the 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 abandonment will

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

Atglen-Susquehanna Trail, Inc. v. STB, 252 F.3d

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

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.SSAbandonment ExemptionSSIn 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 use agreement is

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

landowners infer that abandonment is

consummated as a matter of lawSSand thus

agency jurisdiction terminatesSSif no interim

trail use agreement is reached upon expiration

of a NITU. This, however, is incorrect.

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

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

consummation of the abandonment.17 Thus,

“an effective certificate of abandonment

confers permissive authority on the railroad;

until the railroad actually consummates an

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

right-of-way.” Birt, 90 F.3d at 589 (emphasis

added). The landowners’ claim that agency

jurisdictionwas automatically terminated upon

expiration of the initial 180-day public use

negotiationperiod is, therefore, contraryto the

plain text of the governing regulations and is

based on an incorrect view of the abandonment regime.18

Indeed, the problem with the landowners’

argument is more acutely perceived in light of

recent changes in the railway abandonment

regime. “Historically, the STB determined

whether an abandonment was consummated by

evaluating the rail carrier’s objective intent to

cease permanently or indefinitely all transportation service on the line.” Lucas, 319

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

such an approach fostered as to a particular

line’s status, however, the STB, since 1997,

hasrequired rail carriersto file with the agency

a letter confirming consummation of abandonment.19 Although a similar filing requirement was in effect before the Victoria Segment’s abandonment was authorized in December 1993,20 no such requirement wasin effect when the Victoria Segment’s authoriza16 See, e.g., Birt v. STB, 90 F.3d 580, 583

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

agreement, the certificateof 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 abandon 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 . . . permit the railroad to fully

abandon the line if no agreement 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 the180-day statutory period, providesfurther

support for this conclusion. See, e.g., Birt, 90

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

extend 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 extend 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) (noting 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 implicitly recognizes

that the decision actually to abandon a line

rests with the carrier; it is 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 determinationofwhetherthere has actually

been an abandonment is within the primaryand

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 consummated 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 isimproperly

to challenge various ICC and STB decisions

that necessarily (albeit implicitly) decided that

Southern Pacific did 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 the Victoria Segment.22

 The

landowners stress that none of these decisions

ever directly held that Southern Pacific had not

consummated the abandonment oftheVictoria

Segment. But what the landowners fail to

grasp is that each decision and order issued by

the ICC and STB after the initial abandonment

authorization in 1993 required continued

agency jurisdiction over the Victoria

SegmentSSand therefore no consummated

abandonmentSSto be valid agency action.

In other words, if, as the landowners maintain, SouthernPacific 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

initial abandonment authorization and the

ultimate sale of the line, because once an

abandonment is consummated, the agency’s

jurisdiction terminates. See Preseault, 494

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

abandonment 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 abandonment 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 Victoria

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

to allow for interim trail use negotiations; the

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

May 21, 1996, decision further postponing the

exemption’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

not consummated the abandonment of the

Victoria Segment.23

Therefore, “[a]lthough not in form a request for review of an ICC order, the practical

effect is to seek such a review.” Dave v.

Rails-to-Trails 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. See

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

therefore, bywhich the landowners could have

challenged the STB’s continued jurisdiction

over the line, and the implicit decision that

Southern Pacific had not consummated the

abandonment, would have been to seek direct

judicialreview (within sixty days) of any ofthe

ICC’s or STB’s orders. See 28 U.S.C. §

2344. 

Of course, it is true generally that under 28

U.S.C. § 2344 only a “party aggrieved” by a

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

in a definitive sense in the statute, and limits

the right of appeal to those who actually participated in the agency proceeding.” Am.

Trucking Ass’ns, Inc. v. ICC, 673 F.2d 82, 84

(5th Cir. 1982) (per curiam).24 But the fact

that only partiesto the agencyproceedings can

seek direct review under the Hobbs Act does

not excuse the Landowners from following

this exclusive procedure, thereby allowing

them collaterally to attack various agency orders by maintaining a declaratory judgment

action in district court. Rather, this statutory

limit on the availability of direct review indicates that the landowners had an affirmative

duty to intervene25 before the agency in any of

the proceedings involving the Victoria Segment beginning in 1994, when they claim

Southern Pacific consummated the abandonment, until the STB’s approval of the sale of

the Rosenberg Line in 2000. 

By failing affirmatively to act to protect

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 Simmons 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 order.”). We note that, despite this

(continued...)

24(...continued)

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

‘attacked as exceeding the power of the Commission.’” Am. 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. See, e.g., In

reChicago, 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 Chicago 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

language 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

theirinterests by intervening in the agencyproceedings, the landowners cannot now advance

their claims in a collateral action that necessarily challenges several agency decisions

and orders as being issued after the agency’s

jurisdiction over the line terminated:

[I]t isincumbent ‘upon an interested person

to act affirmatively to protect himself’ in

administrative proceedings, and . . . [s]uch

a person 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. Nuclear Regulatory Comm’n, 513

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

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

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

AFFIRMED.