STB text concerning the recent attempted abandonment and dismantling of the Twin State RR in northern Vermont. This is the north end of the former Maine Central Mountain Division, which runs from Portland-St. Johnsbury (middle portion used by Conway Scenic RR), and TSRR is the same organization that previously ran the Lamoille Valley RR in VT.

Subject: [Shortline/Industrial Rail News] Fwd: STB 'Abandon Ship' dept. - Twin State RR, St Johnsbury to Lunenburg VT


Full Text of Decision

35048

SERVICE DATE - LATE RELEASE OCTOBER 12, 2004

DO


SURFACE TRANSPORTATION BOARD

DECISION

STB Docket No. AB-862X

TWIN STATE RAILROAD COMPANY -ABANDONMENT EXEMPTION- IN CALEDONIA AND ESSEX COUNTIES, VT

Decided: October 12, 2004


Twin State Railroad Company (TSRR) filed a notice of exemption under 49 CFR 1152 Subpart F-Exempt
Abandonments to abandon approximately 20 miles of rail line between milepost 0.057 in St. Johnsbury
and Railroad Engineering Station 5503 at River Road (Town Road) in Lunenburg (Gilman), in Caledonia
and Essex Counties, VT. Notice of the exemption was served and published in the Federal Register on
September 3, 2004 (69 FR 53973-74). The exemption was scheduled to become effective on October 6,
2004, but a formal expression of intent to file an offer of financial assistance (OFA) to purchase
the line was timely filed by the State of Vermont, Agency of Transportation. The filing of that
expression of intent automatically stayed the effective date of the exemption for 10 days until
October 16, 2004, to permit the Board to address any OFA filed on or before October 6, 2004. See 49
CFR 1152.27(c)(2)(i). No OFA has been filed.

The Board's Section of Environmental Analysis (SEA) issued an environmental assessment (EA) in this
proceeding that was served on September 7, 2004. In the EA, SEA recommended that the following
conditions be imposed on any decision granting abandonment authority. First, SEA recommended that,
prior to conducting any abandonment and salvaging activities, TSRR be required to consult with the
U.S. Army Corps of Engineers - New England District (Corps) on permitting requirements for any
abandonment and salvaging activities that may occur within waters of the United States, including,
but not limited to, streams, rivers, lakes, and wetlands. Second, SEA recommended that, prior to
conducting any abandonment and salvaging activities, TSRR be required to consult with the U.S. Fish
and Wildlife Service - Concord, New Hampshire Office (FWS), regarding potential impacts from
salvaging activities to threatened species, and report the outcome of these consultations to SEA.
Third, SEA recommended that, to protect the line for potential future use or interim recreational
use, if salvaging occurs, TSRR be required, during salvage activities, to remove all ties and rails
from the right-of-way for proper disposal, reuse or recycling. Fourth, SEA recommended that TSRR be
required to notify the U.S. Department of Commerce, National Geodetic Survey (NGS), 90 days prior to
salvage activities so that NGS can plan for the potential removal of the 11 identified geodetic
station markers on the line that may be affected by the proposed abandonment. Fifth, SEA recommended
that TSRR be required to retain its interest in and take no steps to alter the historic integrity of
the right-of-way until completion of the section 106 process of the National Historic Preservation
Act, 16 U.S.C. 470f (NHPA), so that (a) TSRR may submit additional information to the Vermont Agency
for Commerce and Community Development, Division of Historic Preservation (SHPO), and (b) the SHPO
may complete its assessment.

Comments to the EA were due by September 21, 2004. FWS contacted SEA by telephone and indicated that
it had commented on TSRR's environmental report in November 2003, and requested that its comments be
reflected in the environmental documentation for the proposed abandonment. SEA indicates that the
FWS comment letter was not referenced in TSRR's notice of exemption and had not otherwise been
provided to SEA or brought to SEA's attention by TSRR. FWS's comment letter states that there are no
Federally listed or proposed threatened or endangered species or critical habitat under the
jurisdiction of FWS known to occur in the projected area. Therefore, FWS concluded that no further
consultation under section 7 of the Endangered Species Act would be required for 1 year from
November 6, 2003, unless additional information on listed or proposed species becomes available.
Accordingly, in recognition of FWS's comments, SEA recommends that the FWS condition recommended in
the EA be changed to require instead that, if salvaging activities have not been initiated by
November 6, 2004, TSRR shall conduct a follow-up consultation with FWS - New England Field Office,
prior to initiating salvaging activities, regarding potential impacts from salvaging activities to
threatened and endangered species and TSRR shall report the outcome of these consultations to SEA.

On September 21, 2004, Maine Central Railroad Company (MEC) filed a reply to TSRR's notice of
exemption. MEC claims that TSRR's interest in the line is limited to that of a lessee, and that TSRR
does not have the right to abandon the line. It states that, when the parties entered into a lease
agreement dated March 1, 1984, MEC did not evidence any intent to convey ownership in the line or
its common carrier rights and obligations to TSRR or anyone else, and that MEC has not evidenced any
such intent throughout the term of the lease. MEC claims that the lease makes clear that it was the
intent of both parties that MEC retain ownership interest and common carrier rights and obligations
in the line. MEC points out that, rather than discontinuing its leasehold interest, TSRR claims to
have the right also to remove the rail, ties, and other track materials. MEC requests that the Board
specifically condition any authority granted to TSRR (which MEC argues would be discontinuance and
not abandonment authority) by requiring TSRR to leave the line, track, ties and other track
materials intact and undisturbed. TSRR has not responded to the MEC submission.

MEC's filing raises a question (not resolved in this decision) about whether TSRR has the legal
right, pursuant to its 1984 agreement with MEC, to abandon and salvage the line. TSRR has sought
abandonment authority in this proceeding, the Board has processed TSRR's filing as one for authority
to abandon the line, and SEA has recommended conditions covering possible abandonment and salvage of
the line. In this situation, conditions will be imposed as recommended by SEA that would apply in
the event of full abandonment and salvaging of the line. At the same time, in light of the
uncertainty regarding TSRR's right to abandon and salvage the line, the condition requested by MEC
that would require TSRR to leave the line, track, ties and other track materials intact and
undisturbed, will also be imposed. This condition, imposed in an abundance of caution, may be
removed, if appropriate, if TSRR and MEC resolve their apparent disagreement concerning their
respective legal rights to the line at issue.

As conditioned, this decision will not significantly affect either the quality of the human
environment or the conservation of energy resources.


It is ordered:

1. This proceeding is reopened.

2. Upon reconsideration, the exemption of the abandonment of the line described above is subject to
the condition that TSRR shall leave the line, track, ties and other track materials intact and
undisturbed. The exemption is also subject to the conditions, in the event that salvaging of the
line, track, ties, and other track materials is ultimately permitted to occur, that: (1) prior to
conducting any abandonment and salvaging activities, TSRR shall consult with the Corps on permitting
requirements for any abandonment and salvaging activities that may occur within waters of the United
States, including, but not limited to, streams, rivers, lakes, and wetlands; (2) if salvaging
activities have not been initiated by November 6, 2004, TSRR shall conduct a follow-up consultation
with FWS - New England Field Office, prior to initiating any salvaging activities, regarding
potential impacts from salvaging activities to threatened species, and TSRR shall report the outcome
of these consultations to SEA; (3) if salvaging occurs, during any salvage activities, TSRR shall
remove all ties and rails from the right-of-way for proper disposal, reuse or recycling; (4) TSRR
shall notify NGS 90 days prior to salvage activities so that NGS can plan for removal of the 11
geodetic station markers identified on the line; and (5) TSRR shall retain its interest in and take
no steps to alter the historic integrity of the right-of-way until completion of the section 106
process of the NHPA.

3. This decision is effective on its service date.



By the Board, David M. Konschnik, Director, Office of Proceedings.



Vernon A. Williams
Secretary