HomeMy WebLinkAbout20242268.tiff52233 SERVICE DATE - AUGUST 15, 2024
DO
RECEIVED
AUG 2 6 2024
SURFACE TRANSPORTATION BOARD WELD COUNTY
COMMISSIONERS
DECISION
Docket No. AB 857 (Sub -No. 2)
COLORADO LANDOWNERS -ADVERSE ABANDONMENT -
GREAT WESTERN RAILWAY OF COLORADO, LLC IN WELD COUNTY, COLO.
Decided: August 15, 2024
On October 5, 2022, a group of landowners (Landowners) filed an application) under
49 U.S.C. § 10903 asking the Board to authorize the third -party, or "adverse," abandonment of
approximately 6.2 miles of rail line (the Line) owned by Great Western Railway of Colorado,
LLC (Great Western), in Weld County, Colo.' (Landowners Appl. 2.) Notice of the application
was served and published in the Federal Register on October 25, 2022 (87 Fed. Reg. 64,532).
On June 4, 2024, the Landowners filed electronically a request for leave to file out of
time an attached letter from the Town of Johnstown, Colorado (the Town). (Landowners
Req. 1.) The Landowners assert that the letter contains an update on the status of the Line and
confirms the Town's support for the proposed abandonment. (Id.) On June 20, 2024, Great
Western moved to reject the Landowners' filing. It contends, first, that the Landowners' filing
did not meet the service requirements of 49 C.F.R. § 1104.12. Specifically, Great Western
argues that, although its counsel received a service copy of the Landowners' submission by mail
(a week after it was filed), it should have been, but was not, served electronically as provided
under the Board's regulations' and as indicated in the Landowners' certificate of service. (Great
Western Mot. 1.) Additionally, Great Western argues, the Landowners have not shown good
cause for the Board to accept their late -filed submission in any event. (Id. at 2.)
Here, although under the Board's regulations the June 4 submission should have been
served on Great Western by email, Great Western ultimately did receive a service copy by mail,
albeit later than it would have if the filing had been served electronically; moreover, the
1 Although the application was filed on August 18, 2022, it is considered filed on
October 5, 2022, to satisfy procedural requirements related to the Landowners' revised
environmental and historic report filed on September 13, 2022, and further amended on
September 15, 2022. See Colo. Landowners -Adverse Aban.-Great W. Ry. of Colo. in Weld
Cnty., Colo., AB 857 (Sub -No. 2), slip op. at 1 (STB served Sept. 7, 2022).
2 The Line extends from milepost 0.0 at or near Johnstown, Colo., to milepost 6.2 at or
near Welty, Colo. (Landowners Appl. 2.)
Great Western cites the provision of 49 C.F.R. § 1104.12(a) that service on the parties
"should be by the same method and class of service used in serving the Board."
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2024-2268
Docket No. AB 857 (Sub -No. 2)
Landowners' apparent failure to serve its filing electronically does not appear to have deprived
Great Western of its ability to participate in this proceeding, nor does Great Western allege any
resulting harm. Under the circumstances, rather than rejecting the filing for failure to serve, the
service requirement will be waived as to the manner of service in this instance. However, to
mitigate any prejudice to Great Western and ensure that it has a full opportunity to respond to the
content of the letter, (which Great Western alleges contains "a number of false and misleading
allegations," (Great Western Mot. 2.), Great Western will be permitted to submit an additional
reply to the Landowners' June 4 submission by August 29, 2024. The Landowners are reminded
that they are expected to comply with the Board's service requirements and serve their
submissions on all parties of record listed on the Board's service list for this proceeding in the
manner provided by the Board's regulations.4 '
Additionally, because the attached letter includes information about the status of the Line
and the views of the Town, there is good cause to accept the Landowners' late -filed June 4
submission given the amount of time that has passed since the Board last received an update on
the status of the Line, and the agency's interest in a complete record that embodies the full
spectrum of the interests involved. See 49 C.F.R. § 1152.25(d)(5).
It is ordered:
1. The Board's service requirements are waived as to the manner of service with respect
to the Landowners' June 4, 2024 submission.
2. The Landowners' June 4, 2024 filing is accepted into the record.
3. Great Western may file a response to the Landowners' June 4, 2024 filing by August
29, 2024.
4. This decision is effective on its service date.
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
4 This decision concerns only the Landowners' June 4, 2024 filing. The Board is aware
that Great Western previously filed challenges to the Landowners' compliance with certain
service and publication requirements with respect to other filings. To the extent that these
objections need to be addressed, the Board will do so in a future decision in this docket.
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