HomeMy WebLinkAbout20252315.tiff52018 SERVICE DATE - JULY 30, 2025
EB
SURFACE TRANSPORTATION BOARD
DECISION
Docket No. AB 857 (Sub -No. 2)
COLORADO LANDOWNERS -ADVERSE ABANDONMENT -
GREAT WESTERN RAILWAY OF COLORADO, LLC IN WELD COUNTY, COLO.
Digest:1 This decision denies an application for adverse abandonment of a rail
line in Weld County, Colo.
Decided: July 28, 2025
On October 5, 2022, a group of landowners (Landowners)2 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). As
discussed below, the Board will deny the Landowners' application.
BACKGROUND
The Line extends from milepost 0.0 at or near Johnstown, Colo., to milepost 6.2 at or
near Welty, Colo. (Landowners Appl. 2.) The Line primarily served the sugar beet industry
until the 1970s but fell into disuse when the local sugar beet industry shut down. (Id. at 3.)
Although the Board authorized Great Western to abandon the Line in 2008, the abandonment
authority expired without being exercised. See Great W. Ry. of Colo.-Aban. Exemption -in
Weld Cnty., Colo., Docket No. AB 857 (Sub -No. IX). On April 6, 2022, Great Western filed an
environmental and historic report in a new abandonment docket, Great Western Railway of
Colorado -Abandonment Exemption -in Weld County, Colo., Docket No. AB 857 (Sub -
The digest constitutes no part of the decision of the Board but has been prepared for the
convenience of the reader. It may not be cited to or relied upon as precedent. See Poly
Statement on Plain Language Digs. in Decisions, EP 696 (STB served Sept. 2, 2010).
2 The 27 Landowners are listed in Appendix 1 to the application. (Landowners
Appl. 2 n.1; see also id., App. 1.)
Although the application was submitted 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).
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Docket No. AB 857 (Sub -No. 2)
No. 3X). However, Great Western has not applied for renewed abandonment authority for the
Line. The Line therefore remains part of the interstate rail network within the Board's
jurisdiction. See 49 C.F.R. § 1152.29(e)(2); Honey Creek R.R.-Pet. for Declaratory Ord.,
FD 34869 et al., slip op. at 4-5 (STB served June 4, 2008).
In their October 5, 2022 application for adverse abandonment, the Landowners state that
they own land adjacent to and within the right-of-way of the Line, and that land within the right-
of-way is burdened by an easement that permits Great Western's use of that property for railroad
purposes. (Landowners Appl. 3-4.) According to the Landowners, the public convenience and
necessity permit abandonment because the Line has not been used for 43 years, reinstating rail
service is not feasible, and abandonment of the Line will benefit the public by allowing the
Landowners to put their land to productive use. (Id. at 8-16.) The Landowners also ask the
Board to waive the Trails Act provisions of 49 C.F.R. § 1152.29, arguing that applying those
provisions here, where the Landowners oppose trail use on the Line, would be inconsistent with
a grant of adverse abandonment. (Id. at 18.)
Great Western filed a reply to the Landowners' application on October 14, 2022, in
which Great Western argues the Landowners have not shown that the current and future public
convenience and necessity permit abandonment because Great Western is making efforts to
reinstitute rail service on the Line. (Great Western Reply 8, 10-12.) Great Western also
describes discussions with potential shippers and planned repairs to the Line. (Id. at 6-7, 12.)
On October 31, 2022, the Landowners filed a surreply arguing that the potential for future rail
use of the Line is too speculative to rebut the Landowners' showing. (Landowners Surreply 4, 7-
8.)
On November 18, 2022, Great Western filed a protest of the Landowners' adverse
abandonment application pursuant to 49 C.F.R. § 1152.25(a)(1), which reiterates and
supplements the arguments set out in Great Western's reply and provides additional information
and documentation about Great Western's efforts to rehabilitate the Line and reinstitute rail
service. (Great Western Protest 6-7, 9, 11, 15.) The Landowners replied to Great Western's
protest on December 5, 2022, arguing that the materials provided by Great Western do not
establish a need for future transportation over the Line. (Landowners Reply 4 n.8, 7.)
On January 17, 2023, Great Western filed environmental comments in response to the
Board's December 14, 2022 Draft Environmental Assessment. The environmental -related
substance of Great Western's comments was addressed in the Final Environmental Assessment
(Final EA) published on May 19, 2023, but Great Western's environmental comments also
contain information and evidence related to Great Western's efforts to restore service on the Line
that are relevant to this decision. (Great Western Env't Comment 7-9.)
The Board also received two letters from the Town of Johnstown, Colo. (Town). First,
on August 18, 2022, the Town filed a letter stating that it supports abandonment of the Line.
Then, on June 4, 2024, the Landowners filed a request for leave to file out of time a second letter
from the Town, dated May 24, 2024, which affirms the Town's support of the proposed
abandonment, and also includes an update on the status of the Line. (Landowners Req. to File
Letter, Ex., June 4, 2024.) Great Western moved to reject the Landowners' filing containing the
2
Docket No. AB 857 (Sub -No. 2)
second Town letter on June 20, 2024, alleging improper service. In an order issued on
August 15, 2024, the Landowners' filing was accepted into the record, the applicable service
requirements were waived, and Great Western was directed to respond to the substance of the
Town's second letter. Great Western filed a response and a renewed motion to reject the Town's
second letter on August 27, 2024, in which Great Western provides additional information about
the status of the Line, reiterates its objections to various service issues, and argues that the Board
does not have authority to grant abandonments filed by third parties under 49 U.S.C. § 10903.
(Great Western Mot. to Reject 1-3, Aug. 27, 2024.)
PRELIMINARY MATTERS
Procedural issues.
Great Western lodges procedural challenges to multiple filings, claiming that the
Landowners did not comply with the Board's rules. Great Western alleges that the Landowners'
application for adverse abandonment was never served on Great Western's counsel and therefore
should have been rejected. (Great Western Protest 5; Great Western Mot. to Reject 1, June 20,
2024; Great Western Mot. to Reject 1, Aug. 27, 2024.) Great Western likewise asks the Board to
reject the Landowners' June 4, 2024 filing because it was not served on each "party of record"
listed on the Board's website for this proceeding.' (Great Western Mot. to Reject 1, June 20,
2024; Great Western Mot. to Reject 1, Aug. 27, 2024.) To the extent service on the parties did
not fully comply with the Board's rules, the Landowners are reminded that they are expected to
comply with the Board's service requirements and serve all parties of record listed on the
Board's service list for this proceeding. However, Great Western does not allege any harm
resulting from the purported improper service, and the service issues do not appear to have
deprived Great Western of its ability to participate in this proceeding. The Board therefore
declines to reject either document, and Great Western's renewed motion to reject the
Landowners' June 4, 2024 filing will be denied.
Great Western also alleges that the Landowners' notice of intent to file an abandonment
application was not served or published in accordance with the time limits set out in 49 C.F.R.
§ 1152.20(b) and did not comply with the notice of intent language approved by the Board in its
February 11, 2022 decision.' (Great Western Reply 5; Great Western Protest 5.) These
4 The Board's website identifies four individuals as "parties of record" in this
proceeding: two attorneys who represent Great Western, and two attorneys who represent the
Landowners (one of whom filed, signed, and submitted the filing). The Board's procedural rules
state that when a party is represented by counsel, service upon the attorney is deemed to be
service upon the party. 49 C.F.R. § 1104.12(a). The attorneys themselves are not parties of
record, but when a document is served on a party represented by multiple attorneys, copies
should be provided to each of that party's attorneys.
' The issues raised by Great Western also include several concerns related to the
Landowners' environmental and historic report. (See Great Western Reply 3-4; Great Western
Protest 3-4; Great Western Env't Comment 2-6.) The issues concerning the environmental and
historic report were addressed in the Final EA issued by the Board's Office of Environmental
3
Docket No. AB 857 (Sub -No. 2)
procedural rules are intended to ensure that members of the public receive adequate notice
regarding Board proceedings that affect their interests, and the Board expects full compliance
with these rules from parties in Board proceedings. Great Western does not identify any actual
or potential harm to the public arising from these procedural issues, however, nor does Great
Western ask the Board to reject the application or take any action in response. Additionally, the
denial of the Landowners' application renders this issue moot. The Board therefore declines to
rule on these challenges.
The parties also raise multiple issues concerning the Board's rules on replies to replies.
The Landowners request permission to file a surreply to Great Western's October 14, 2022 reply,
arguing that a surreply is necessary to correct errors and misstatements in Great Western's reply.
(Landowners Req. to File Surreply 1, Oct. 31, 2022.) Great Western asks the Board not to accept
the Landowners' surreply, arguing that the Landowners do not identify any errors or
misstatements in Great Western's reply. (Great Western Protest 6.)
While the Board has in the past often accepted replies to replies, such filings are
prohibited under the Board's regulations. See 49 C.F.R. § 1104.13(c); see Sunflower State
Indus. Ry.-Pet. for Declaratory Ord., FD 36714 (Sub -No. 1), slip op. at 2 n.3 (STB served
Mar. 28, 2025) (explaining that § 1104.13(c) will be more strictly enforced going forward to
promote the orderly and efficient administration of cases). The Landowners' surreply, however,
addresses verified statements from prospective shippers identified in Great Western's reply that
were likely unavailable when the Landowners submitted their application for adverse
abandonment. In light of these circumstances, and given the Board's past acceptance of replies
to replies in this proceeding, see Colo. Landowners -Adverse Aban.-Great W. Ry. of Colo., in
Weld Cnty., Colo., AB 857 (Sub -No. 2), slip op. at 2 n.4 (STB served Feb. 11, 2022), the Board
will exercise its discretion to accept into the record all filings submitted to date.6
Finally, on April 30, 2025, the Landowners filed a request for expedited consideration,
seeking a decision by June 30, 2025. (Landowners Req. for Expedited Consideration 2.) The
Landowners state their intent to seek a writ of mandamus if the case is not decided by the
requested date. (Id. at 2.) On May 13, 2025, Great Western filed a letter responding to
Landowners' stated intent to seek mandamus. The service date of this decision renders the
Landowners' request to expedite moot.
Landowners' interest in the proceeding.
Great Western argues that the Landowners have not shown that they have a proper
interest in this proceeding. (Great Western Protest 11.) The Landowners state that they all own
land adjacent to and within the right-of-way of the Line, and they seek adverse abandonment of
Analysis. See Colo. Landowners -Adverse Aban.-Great W. Ry. of Colo., in Weld Cnty.,
Colo., AB 857 (Sub -No. 2), slip op. at 2-4 (STB served May 19, 2023).
6 The Landowners also supplemented the record on October 20, 2022, in response to
procedural issues identified by Great Western, by filing a document that the Landowners state is
intended to "establish a timeline of service of documents" in this proceeding. (Landowners
Timeline 1.)
4
Docket No. AB 857 (Sub -No. 2)
the Line under 49 U.S.C. § 10903 so that they can pursue a state law claim to free the land from
the railroad easement. (Landowners Appl. 3-4.) However, only Fred Weis, Cindy Sauer, Sauer
Phantom 5 LLC, and Sauer West LLC provide corroborating information establishing their
ownership of the relevant land. (See Landowners Appl., Apps. 6-7.) All other landowners
provide only a name and mailing address. See id., App. 1.) Regardless, the Board will consider
the application, as a subset of the Landowners have established a proper interest in this
proceeding through their property interests. See Modern Handcraft, Inc.-Aban. in Jackson
Cnty., Mo., 363 I.C.C. 969, 971 (1981).
DISCUSSION AND CONCLUSIONS
The Board has exclusive and plenary jurisdiction over rail line abandonments in order to
protect the public from an unnecessary discontinuance, cessation, interruption, or obstruction of
available rail service. Norfolk S. Ry.-Adverse Aban.-St. Joseph Cnty., Ind. (Norfolk S.
Ry. 2012), AB 290 (Sub -No. 286), slip op. at 4 (STB served Apr. 17, 2012); Modern Handcraft,
Inc., 363 I.C.C. at 972. Under 49 U.S.C. § 10903(d), the standard that applies to any application
for authority to abandon or discontinue a line of railroad, including in the third -party, or adverse
(involuntary), abandonment context, is whether the present or future public convenience and
necessity (PC&N) require or permit the proposed abandonment or discontinuance. In making the
PC&N finding, the statute requires the Board to "consider whether the abandonment or
discontinuance will have a serious, adverse impact on rural and community development."
§ 10903(d). The Board must also take the goals of the Rail Transportation Policy (RTP), see
49 U.S.C. § 10101, into consideration in making a PC&N determination.
In describing the PC&N standard, the Board has typically explained that it will consider
"whether there is a present or future public need for rail service over the line and whether that
need is outweighed by other interests." See, e.g., Alloy Prop. Co. -Adverse Aban.-Chi.
Terminal R.R. in Chi., Ill., AB 1258, slip op. at 2 (STB served Apr. 30, 2018); see also Seminole
Gulf Ry.-Adverse Aban.-in Lee Cnty., Fla., AB 400 (Sub -No. 4), slip op. at 5-6 (STB served
Nov. 18, 2004) ("In implementing this standard, we must balance the competing benefits and
burdens of abandonment or discontinuance on all interested parties, including the railroad, the
shippers on the line, the communities involved, and interstate commerce generally.").
Applicants seeking adverse abandonment bear the burden of proof to show that the PC&N permit
or require abandonment. See, e.g., Waterloo Ry.-Adverse Aban.-Lines of Bangor &
Aroostook R.R. in Aroostook Cnty., Me., AB 124 (Sub -No. 2) et al., slip op. at 5 (STB served
May 3, 2004). The Board has described this as a "heavy burden." Norfolk S. Ry.-Adverse
Aban.-St. Joseph, Cnty., Ind. (Norfolk S. Ry. 2008), AB 290 (Sub -No. 286), slip op. at 5 (STB
served Feb. 14, 2008).
The statutory scheme informs how the Board weighs interests. The Board has a
"statutory duty to preserve and promote continued rail service," N.Y. Cross Harbor R.R. v. STB,
374 F.3d 1177, 1187 (D.C. Cir. 2004), and this duty is of paramount importance in adverse
abandonment proceedings, where a carrier does not file an application indicating that it "intends
to abandon any part of its railroad lines." 49 U.S.C. § 10903(a)(1).
5
Docket No. AB 857 (Sub -No. 2)
Consistent with its statutory obligations, the Board has made clear that an adverse
abandonment application may only be granted in limited circumstances and has given the
potential for continued freight service near dispositive weight when assessing the PC&N in
adverse abandonment proceedings. Seminole Gulf Ry., AB 400 (Sub -No. 4), slip op. at 5, 6; see
also Consol. Rail Corp. v. ICC, 29 F.3d 706, 712 (D.C. Cir. 1994) ("The key to the
Commission's conclusion was that no use existed for the [rail line] and it therefore did not serve
the public convenience and necessity."). Indeed, in assessing the merits of an adverse
abandonment request, the Board is "mindful of Congress' intent, as expressed in many statutory
provisions, that lines be kept within the rail system where possible." Norfolk S. Ry. 2008,
AB 290 (Sub -No. 286), slip op. at 5.
Since the Board was established in 1996, it has not granted adverse abandonment that
would result in an active shipper losing rail service with the exception of one decision that was
vacated on appeal. In New York Cross Harbor, the United States Court of Appeals for the
District of Columbia Circuit vacated a Board decision granting an adverse abandonment in
which the Board concluded that New York City's interests in putting the property to "other
public uses" outweighed "need for the rail service" given the "relatively little" traffic on the line
and other transportation options available to shippers. 374 F.3d at 1181 (quoting N.Y.C. Econ.
Dev. Corp. -Adverse Aban.-N.Y. Cross Harbor R.R. in Brooklyn, N.Y., AB 596, slip op. at 7
(STB served May 12, 2003)). Among other things, the Court faulted the Board for failing to
acknowledge its statutory duty to preserve and promote rail service, including a "fail[ure] to
explain what effect its action w[ould] have on shippers' options and competition generally." Id.
at 1187-88. It also criticized the Board for improperly shifting the burden to the objecting carrier
to come forward with sufficient evidence of hardship or harm. N.Y. Cross Harbor R.R.,
374 F.3d at 1186-87. And it found that the agency deviated from its own precedent without
adequate explanation, noting that the agency had never granted an adverse abandonment when
the carrier was operating over the line. Id. at 1181-83. The Court concluded that the Board
failed to "properly balance all of the competing interests involved" and gave too much weight to
the interests of the applicant. Id. at 1184, 1188.
Even where no shippers are actively using the rail line, the Board will deny an adverse
abandonment application where the Board "cannot say that there is no potential for continued rail
7 In one case, the Board granted adverse abandonment of an active, shipper -owned line
over the rail carrier's objection, where the line owner seeking the adverse abandonment intended
to contract with a non -regulated switching carrier for service post -abandonment, and where the
only other shipper on the line did not object. See Paulsboro Refining Co. -Adverse Aban.-in
Gloucester Cnty., N.J., AB 1095 (Sub -No. 1), slip op. at 4-6 (STB served Dec. 2, 2014). As the
Board explained, the "circumstances at issue" made that case "more analogous" to an adverse
discontinuance (i.e., a "landlord/tenant dispute") than an adverse abandonment. Id. at 5 & n.16.
With the exceptions of Paulsboro and the decision vacated by New York Cross Harbor, the
Board has otherwise "never granted an adverse abandonment when the carrier was operating
over the line." Seminole Gulf Ry., AB 400 (Sub -No. 4), slip op. at 5.
6
Docket No. AB 857 (Sub -No. 2)
service." Seminole Gulf Ry., AB 400 (Sub -No. 4), slip op. at 5.8 For example, in Yakima
Interurban Lines Association -Adverse Abandonment -in Yakima County, Wash., AB 600, slip
op. at 5 (STB served Nov. 19, 2004), an adjacent landowner applied for adverse abandonment of
a line that had not "carried traffic in some years" and was in "serious disrepair" due to the failure
of the operator. Nonetheless, and notwithstanding the landowner's "legitimate concerns" about
the operator's mismanagement of the right-of-way, the Board denied the application. Id. at 6.
The Board grounded its denial on there being "clear[ ] potential for continued rail service" based
on, among other things, evidence of shipper interest in using the line and local governments'
willingness to fund reactivation of the line. Id. at 5; see also Norfolk S. Ry. 2008, AB 290 (Sub -
No. 286), slip op. at 4 (denying adverse abandonment where record showed a "potential for
renewed rail operations" based on traffic that could move over the lines and a railroad willing to
carry it), aff d sub nom. City of S. Bend v. STB, 566 F.3d 1166 (D.C. Cir. 2009); Seminole Gulf
y , AB 400 (Sub -No. 4), slip op. at 5 (carrier presented evidence of "potential new shippers and
new uses for the line").
In considering the potential for rail service, the Board has inquired whether the carrier
has "taken reasonable steps to attract traffic."9 Seminole Gulf Ry., AB 400 (Sub -No. 4), slip op.
at 5. Such steps include efforts by the carrier to rehabilitate and utilize an inoperable line, see
Hartwell First United Methodist Church -Adverse Aban. & Discontinuance -Great Walton
R.R., in Hart Cnty., Ga., AB 1242, slip op. at 4-5 (STB served Jan. 31, 2018), or to hold itself out
for rail service, see Seminole Gulf Ry., AB 400, Sub -No. 4, slip op. at 5. When considering
these efforts -and again, consistent with its statutory duty to preserve and promote rail service -
the Board has emphasized that it will not second-guess the carrier's "judgment about the need
for, and usefulness, of' the line. Id. at 5; see also Salt Lake City Corp. -Adverse Aban.-in Salt
Lake City, Utah, AB 33 (Sub -No. 183), slip op. at 8 (STB served Mar. 8, 2002) (rejecting
argument that carrier could use alternative routes as it "would be inappropriate to substitute our
judgment for UP's business judgment").
Indeed, since New York Cross Harbor, the Board has only granted an adverse
abandonment over the objection of the operating carrier three times.10 One of those cases was
8 Although the rail line in Seminole Gulf was carrying traffic when the case was decided,
the only active shipper planned to depart from the line shortly thereafter, and no new shippers
had committed to use the line. AB 400 (Sub -No. 4), slip op. at 5.
9 The Board notes, however, that 49 U.S.C. § 11101(a), requires a rail carrier to
"provide ... service upon reasonable request," and the inquiry is not intended to expand that
obligation.
10 The Board has granted a number of adverse abandonment applications where the
carrier "do[es] not oppose the requested abandonment" and where "there are no remaining
shippers who desire service." Minn. Com. Ry.-Adverse Discontinuance -in Ramsey Cnty.,
Minn., AB 882 et al., slip op. at 4 (STB served July 16, 2008); see also Snohomish Cnty.-
Adverse Aban.-GNP RLY, Inc., in Snohomish Cnty., Wash., AB 1331, slip op. at 5 (STB
served July 11, 2024) (granting adverse abandonment application supported by carrier where
record showed that the line was non -viable and no potential shipper expressed interest in using
the line); Norfolk S. Ry. 2012, AB 290 (Sub -No. 286), slip op. at 4 ("It is now clear that there are
7
Docket No. AB 857 (Sub -No. 2)
subsequently vacated," and another was the unusual Paulsboro case discussed at supra note 7,
which, as the Board explained, was more analogous to an adverse discontinuance than an adverse
abandonment. In the remaining case -Denver & Rio Grande Railway Historical Foundation -
Adverse Abandonment -in Mineral County, Colo. -the Board granted adverse abandonment of
a long -inoperable one -mile line where the applicant had met its burden of demonstrating that
there was "no potential for freight service." AB 1014, slip op. at 13 (STB served May 23, 2008).
In reaching this conclusion, the Board thoroughly considered the "prospect of each of the
prospective shippers" that the carrier identified, which it by and large rejected as speculative and
without supporting evidence.12 Denver & Rio Grande, AB 1014, slip op. at 7-12.
In Denver & Rio Grande, the Board also found that the carrier had not taken reasonable
steps to attract any shippers, as there was "no evidence" to support the carrier's contention that it
had rehabilitated any portion of the line in the many years since it acquired the line through the
offer of financial assistance process after Union Pacific sought to abandon the line. Id. at 11-12.
Moreover, the carrier represented that it would not "`beat the bushes' to attract shippers" until
the "necessary rehabilitation work [wa]s complete." Id. at 11. Consistent with its statutory
obligations and the precedent discussed above, it was only after the Board was sure of the
"essentially non-existent need to preserve this [one] -mile segment" that it considered whether
adverse abandonment would advance the public interest associated with the applicant's plans to
develop the property for non -rail uses. Id. at 17.
The Board's recent precedent demonstrates that the Board tends to grant adverse
abandonment over a carrier's objection only where a line is inoperable, and the record strongly
shows a lack of present or future need for rail service and a lack of interest by the rail carrier to
restore the line or attract rail business. Once the Board has made a determination that the present
or future PC&N require or permit abandonment of a rail line, the Board must then consider the
environmental impacts of the proposed abandonment so that the Board may meet its obligations
under the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370m-11, and, pursuant to
49 U.S.C. § 10903(b)(2), the Board must ensure that affected rail employees are adequately
protected.
no shippers who desire service on the Lines. NSR, the affected carrier, does not object ... [and]
the record indicates that [a different, previously interested carrier] no longer has an interest.");
City of Chi., Ill. -Adverse Aban.-Chi. Terminal R.R. in Chi., Ill., AB 1036, slip op. at 4-5
(STB served June 16, 2010) (granting adverse abandonment where no traffic currently
originated, terminated, or bridged over the rail segments, no shippers opposed the proposed
abandonment, and the affected rail carrier supported abandonment of the line).
11 See Stewartstown R.R.-Adverse Aban.-in York Cnty., Pa. (Stewartstown 2012),
AB 1071 (STB served Nov. 16, 2012), vacated, Stewartstown R.R.-Adverse Aban.-in York
Cnty., Pa., AB 1071 (STB served Nov. 14, 2013).
12 Although later vacated, in Stewartstown 2012, the Board granted adverse
abandonment only after reviewing all of the future shipping prospects of each prospective
shipper that had been identified, or which submitted a letter of opposition with the Board, and
concluding that "there is no present need, and little likelihood of a future need, for rail service on
the Line." Stewartstown 2012, AB 1071, slip op. at 5-10.
8
Docket No. AB 857 (Sub -No. 2)
In past adverse abandonment cases, when the Board has concluded that the PC&N did
not require or permit continued rail operations over a line, the decision removed the line from the
Board's jurisdiction, enabling the applicant to pursue other legal remedies to force the carrier off
the line. Norfolk S. Ry. 2008, AB 290 (Sub -No. 286), slip op. at 3-4; Consol. Rail Corp.,
29 F.3d at 708-09; Modern Handcraft, 363 I.C.C. at 972.
PC&N Analysis
After applying the principles described above and considering the interests involved in
this case, the Board finds that, in light of Great Western's efforts to rehabilitate the Line and
restore freight rail service, the Landowners have not established that the PC&N require or permit
adverse abandonment.
Present or Future Need for Rail Service.
The Landowners cite Denver & Rio Grande, AB 1014; Modern Handcraft, 363 I.C.C.
969; and Chelsea Property Owners -Abandonment -Portion of Consolidated Rail Corp.'s West
30th Street Secondary Track in N.Y.C., 8 I.C.C.2d 773 (1992), affld sub nom. Consol. Rail
Corp., 29 F.3d 706, for the proposition that adverse abandonment should be granted where the
record reflects lengthy nonuse of a line and there is compelling evidence that there will be no
need to use that line for rail transportation in the future. (Landowners Appl. 8.) The
Landowners argue that the PC&N permit abandonment in this case because the Line has not
been used in decades and there is, in the Landowners' view, no realistic potential for future use
of the Line. (Id. at 3, 12-15; Landowners Surreply 7-8.) More specifically, the Landowners
claim, based on the lack of traffic over the Line, that Great Western has made no efforts to solicit
traffic for decades, indicating that shippers are unlikely to materialize. (Landowners Appl. 13,
15.) The Landowners further assert that reinstating rail service will be cost -prohibitive and
"close to impossible." (Id. at 15.) They question the adequacy of the repairs planned by Great
Western, (Landowners Reply 4 n.8), and argue that the cost of providing service on the Line
would outweigh any benefit to Great Western, (see Landowners Appl. 15).
Although the Landowners have shown that the Line has experienced a lengthy period of
nonuse, that fact alone does not justify adverse abandonment. Great Western concedes that there
are no current freight operations on the Line, that there has been no traffic on the Line in many
years, and that the Line is in need of repairs. (Great Western Protest 9-10; see also Landowners
Appl., App. 4 Ex. D 1-3, Ex. E 1-3.) However, as explained below, the record also reflects that
Great Western seeks to reinstate freight service, has an actionable plan to do so, and has already
taken steps toward implementing that plan. In other words, while there is presently no need for
rail service, Great Western has committed itself to restoring the Line and attracting rail business.
Under these circumstances, there is a reasonable potential for future rail use, and extended
nonuse of the Line is not a sufficient reason to remove rail assets from the interstate rail network.
See Hartwell First United Methodist Church, AB 1242, slip op. at 6; Norfolk S. Ry. 2008,
AB 290 (Sub -No. 286), slip op. at 6-7.
9
Docket No. AB 857 (Sub -No. 2)
First, the Landowners do not demonstrate that they have any basis, apart from the
observed lack of traffic on the Line, to know about potential shipper interest or the extent of any
efforts by Great Western to solicit traffic for the Line. Moreover, Great Western has provided
evidence that it is actively seeking new traffic for the Line and has communicated with potential
new shippers. A verified statement from the President and Chief Executive Officer of G4
Energy, LLC (G4), reflects that as of August 24, 2022, G4 was in active discussions with Great
Western about opening a new rail and transloading facility adjacent to the Line that could receive
and transload up to one million tons of product annually. (Great Western Reply, V.S. Grossi-
Rolfi 1-2; Great Western Protest, Ex. at A-2 to A-3.) Similarly, a verified statement from Walter
Sanders, President of Rocky Mountain Transload, Inc. (RMT), shows that as of October 3, 2022,
RMT was in discussions with Great Western about opening a transloading facility adjacent to the
Line that could ship up to 50,000 tons of product annually. (Great Western Reply, V.S.
Sanders 1-2; Great Western Protest, Ex. at A-4 to A-5.) Although they do not contain definitive
commitments to ship on the Line, and the record suggests that the negotiations were ultimately
not successful (Great Western Mot. to Reject 2, Aug. 27, 2024), these verified statements show
that Great Western has a desire to continue operations, and that it has taken reasonable steps to
acquire traffic. They also suggest a potential future demand for freight rail service once Great
Western's rehabilitation of the Line is complete.
Moreover, although the Landowners claim that these potential shippers lack facilities or
any way to access the Line, see Landowners Surreply 7-8), Great Western's evidence shows that
it owns five acres of land adjacent to the Line (Great Western Protest 6-7, 15), and is in
negotiations to acquire more land (Great Western Mot. to Reject 2, Aug. 27, 2024), which could
be leased to shippers for transloading operations. Great Western's property would provide
potential shippers with access to the Line. The record reflects that as of November 18, 2022,
Great Western was engaged with multiple potential customers interested in locating rail -centric
facilities on that site (Great Western Protest, Ex., V.S. Sabatini at A-7), and was in the process of
negotiating a letter of intent to lease the site for use as a transloading facility (Great Western
Protest 15; id., Ex. at 18-21).
Although the Landowners argue that reinstating rail service will be cost -prohibitive,
(Landowners Appl. 15), the record reflects that Great Western has already made substantial
investments in, and made progress toward, repairing the Line. (See Great Western Reply, V.S.
Vallos; Great Western Protest, Ex., V.S. Sabatini; Great Western Env't Comment, Ex.) Great
Western states that it spent approximately $1.5 million from 2022 to 2024 to repair and maintain
the Line. (Great Western Mot. to Reject 2, Aug. 27, 2024.) In addition, the President and Chief
Operating Officer of Great Western's parent company, OmniTRAX, Inc., explains that as of
November 15, 2022, the railroad had already replaced 4,000 crossties, and had plans to install
4,500 tons of ballast, surface 31,680 feet of track and make associated drainage repairs, replace
184 feet of track at a grade crossing, make repairs to one turnout, and replace approximately
4,840 feet of rail. (Great Western Protest, Ex., V.S. Sabatini at A-6.) Great Western's
January 17, 2023 environmental comments indicate that it has installed 800 tons of ballast,
started restoring right-of-way drainage, and received delivery of approximately 5,000 feet of rail,
and that it intended to complete the repairs and begin service on the Line in early 2023. (Great
Western Env't Comment 8-9.) Although service has not yet been reinstituted, Great Western
states that it has continued to upgrade and maintain the Line. (Great Western Mot. to Reject 2,
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Docket No. AB 857 (Sub -No. 2)
Aug. 27, 2024.) Moreover, the Landowners provide no evidence to support their assertions that
Great Western's repair projects will ultimately be unsuccessful or are not genuine efforts to
reinstate freight service.13 And the Landowners do not claim to have the qualifications to assess
the cost and feasibility of rail line repairs, nor do they submit evidence from an expert. Great
Western's documented investment and efforts, along with its progress in making repairs, thus
rebut the Landowners' claims against the Line's viability.
Finally, the Landowners provide no supporting evidence for their claim that the cost of
providing service on the Line would outweigh any benefit to Great Western. (See Landowners
Appl. 15.) The Board recognizes suggestions in the record that serious efforts to rehabilitate the
Line and reinstitute freight rail service started only after the Landowners gave notice that they
intended to seek adverse abandonment, (see Landowners Appl. 14; Great Western Protest 8-9),
and that substantial repairs are needed before freight rail service can resume on the Line, (see
Great Western Protest 9-10). However, Great Western states that the Line has direct access to
both Union Pacific Railroad Company and BNSF Railway Company, (Great Western Reply 7), a
configuration that generally supports viability for a short line railroad. The record also indicates
that OmniTRAX, Inc. is involved in scoping and overseeing the necessary repairs, which
suggests support for the investment within the corporate structure. (Great Western Reply, V.S.
Vallos; Great Western Protest, Ex., V.S. Sabatini.) Thus, the Landowners have not shown that
reactivation of the Line is economically infeasible, particularly in light of Great Western's
demonstrated willingness to invest in the Line.
In sum, the Landowners' arguments about lack of potential shipper interest and access to
the Line, and the cost -prohibitive and inadequate nature of the planned repairs, are unsupported.
The Landowners have not met their burden because, unlike the applicants in the cases they cite,
the Landowners have not adequately supported their assertions that there is no potential for
future use of the Line. On the other hand, Great Western has demonstrated a genuine desire to
continue service and has taken reasonable steps to acquire traffic.l4
13 The only evidence the Landowners provide in support of their claims are the sworn
statements of two of the 27 Landowners, and a May 24, 2024, letter from the Town. The sworn
statements speak only to the lack of freight rail service on the Line, which is not disputed here.
(Landowners Appl., Apps. 6 & 7 (describing the railroad activity these landowners have
observed on their property, with photographs of the Line from 2015 and 2022).) The Town's
letter also asserts that the Line is not yet back in use and cites complaints from residents about
the condition of one of the Line's grade crossings. (Landowners Letter, Ex. at 1-2, June 4,
2024.) Repairs to this grade crossing were being managed by the Colorado Department of
Transportation (CDOT). (Great Western Reply, V.S. Vallos 2; Great Western Protest, Ex., V.S.
Sabatini at A-7.) However, as noted below, these repairs were halted due to this adverse
abandonment proceeding. (Great Western Mot. to Reject 1-2, Aug. 27, 2024.)
14 Cf. Denver & Rio Grande, AB 1014, slip op. at 11 (finding that the evidence
supported only the possibility of one potential shipper, which would ship only one to three
carloads per year); Modern Handcraft, 363 I.C.C. at 969-71 (finding that the line had been turned
into a parking lot and was generating revenue solely from billboard rentals and parking lot
licenses); and Chelsea Prop. Owners, 8 I.C.C.2d at 781-82, 789, 791 (finding that the only
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Docket No. AB 857 (Sub -No. 2)
Other Interests.
As noted, in assessing an adverse abandonment request, the Board considers not only at
the present or future interest in rail service, but also other interests that may be implicated,
including those of the landowners, the larger community, and the interstate rail network at large.
E.g., N.Y. Cross Harbor R.R., 374 F.3d at 1180. In doing so, the Board is mindful of Congress'
intent (as expressed in many statutory provisions) that lines be kept within the rail system where
possible, and of the possibility of the Line once again supporting rail service to the shipping
public. Norfolk S. Ry. 2008, AB 290 (Sub -No. 286), slip op. at 5-6; see also N.Y. Cross Harbor
R.R., 374 F.3d at 1188 (criticizing Board for failing to adequately account for "abandonment's
impact on rail service or on interstate commerce generally"). Here, despite general contentions
that the public interest supports abandonment of the Line, Landowners fail to establish that such
interests support removing the Line from the Board's jurisdiction.
The Landowners contend that the condition of the Line is dangerous 15 and that the area
has changed from a primarily agricultural area to a primarily residential development.
(Landowners Appl. 13, 16.) They argue that abandonment would benefit the public by allowing
the Landowners to get their land back, (Landowners Appl. 16 n.13), and put it to "productive
use" by, for example, allowing farm equipment to cross the right-of-way without incurring
damage. (Landowners Reply 3 n.7.) The Landowners also claim that the right-of-way between
Johnstown High School and Interstate 25 is "targeted for commercial and residential
development." (Id.) In addition, the Town states that Great Western has not maintained the Line
in the past, and that it receives frequent complaints about the condition of a highway grade
crossing on the Line. (Landowners Req. to File Letter, Ex. at 1, June 4, 2024.) The Town also
argues that the Line is not currently being used for the economic benefit of the community and is
not likely to benefit the community in the future because the Town has seen no evidence of
prospective shippers. (Id. at 1-2.) The letters from the Town reflect that the Town explored,
without success, the possibility of railbanking the Line under the Trails Act and establishing a
bike and pedestrian trail. (Town Letter 2, Aug. 18, 2022; Landowners Req. to File Letter, Ex.
at 2, June 4, 2024.)
The Landowners' claims that abandonment of the Line would promote the public interest
are vague and unsupported. They provide no evidence of any planned commercial and
residential development. To the contrary, Great Western indicates that the Line traverses mainly
rural farmlands, and that restoring freight rail service on the Line is important to the local rural
economy. (Great Western Reply 14; Great Western Protest 7-8.) Moreover, the Town's letters
do not identify any current plans for municipal or public use of the Line, and the Landowners
state that they are opposed to trail use and the imposition of 49 U.S.C. § 10905 public use
potential shipper sought to withdraw, suitable real estate was owned by parties unwilling to sell,
line owner showed no progress to reinstate service, and reinstatement proposal was not
economically feasible).
is One landowner states that the tracks are dangerous to children and cattle, citing
concerns about calves getting caught in the rails while grazing. (Landowners Appl., App. 7
para. 11.)
12
Docket No. AB 857 (Sub -No. 2)
provisions. (Landowners Appl 16-18.) With regard to the highway grade -crossing issues, Great
Western states that CDOT planned to replace the grade crossing in question, but the project was
canceled due to this pending adverse abandonment proceeding. (Great Western Mot. to Reject 2,
Aug. 27, 2024.) Great Western adds that it will work with CDOT and the Town to repair the
crossing after this proceeding concludes. (Id.) Overall, on this record, the Landowners' claims
are insufficient to justify removing the Line from the interstate rail network against the carrier's
will.
In conclusion, because the record reflects a potential for future use of the Line due to
Great Western's demonstrated interest in continued rail service, and its efforts to rehabilitate the
Line, the interests described by the Landowners do not justify removing it from the interstate rail
network. See City of S. Bend, 566 F.3d at 1170-71; N.Y. Cross Harbor R.R., 374 F.3d at 1180;
Yakima Interurban Lines Ass'n, AB 600, slip op. at 5-6. Rather, denial of the proposed
abandonment will be consistent with the Board's duty to preserve and promote continued rail
service. See City of S. Bend, 566 F.3d at 1168; N.Y. Cross Harbor R.R., 374 F.3d at 1187.
Questions Not Reached
Great Western argues for the first time in its August 27, 2024 submission that the Board
lacks authority to grant applications for abandonment filed by parties other than the owner of the
Line. (Great Western Mot. to Reject 2-3, Aug. 27, 2024.) It reiterates this argument in its
May 13, 2025 letter in response to Landowners' request for expedited consideration. (Great
Western Response to Request to Expedite 3, May 13, 2025.) However, it is not necessary to
reach this issue here because the Board will deny the Landowners' application. For the same
reasons, this decision does not address the Landowners' requests for waiver of the trail use
provision at 49 C.F.R. § 1152.29, exemption from the offer of financial assistance provisions in
49 U.S.C. § 10904, and exemption from the public use provisions in 49 U.S.C. § 10905.
It is ordered:
1. The Landowners' request for permission to file a surreply to Great Western's
October 14, 2022 reply is granted, and the filing is accepted into the record.
2. The Landowners' October 20, 2022 filing is accepted into the record.
3. Great Western's Aug. 27, 2024 motion to reject the Landowner's June 4, 2024 filing is
denied.
4. The application for adverse abandonment is denied.
5. This decision is effective on its service date.
By the Board, Board Members Fuchs, Hedlund, Primus, and Schultz.
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