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United States Court of Appeals
Fifth Circuit
F I L E D
In the
February 9, 2005
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit
Clerk
_______________
m 0341646
_______________
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.

_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
Before JONES, SMITH, and STEWART,
ing a "Notice of Exemption" with the Inter-
Circuit Judges.
state Commerce Commission ("ICC"),2 assert-
ing that no local traffic had moved over the
JERRY E. SMITH, Circuit Judge:
line during the previous two years.3 The
In this property dispute, each of the plain-
tiffs (collectively, the "landowners") owns a
2 The ICC was abolished effective January 1,
parcel of land in Jackson or Victoria County,
1996, and the Surface Transportation Board
Texas, subject to a railroad right-of-way re-
("STB"), in the Department of Transportation, was
ferred to as the "Victoria Segment" of the
created and charged with performing the functions
"Rosenberg Line."1 The landowners sought a
previously handled by the ICC. See ICC
judgment declaring that the portion of the Vic-
Termination Act of 1995, Pub. L. No. 10488, 109
toria Segment's right-of-way that abuts their
Stat. 804, 49 U.S.C. § 701 note.
land reverted to them as a matter of law after
3 A rail carrier intending to abandon any part of
Southern Pacific Transportation Company
its railroad lines must file an application with the
("Southern Pacific"), the former owner of the
STB. See 49 U.S.C. § 10903(a)(1)(A). The STB
line, allegedly abandoned it. The district court
has the authority to exempt a rail carrier seeking to
dismissed for want of subject matter jurisdic-
abandon a rail line from the ordinary procedures
tion. We affirm.
applicable to rail abandonments if the carrier cer-
tifies that no local traffic has moved over the line
I.
for at least two years; that any traffic on the line
A.
can be rerouted over other lines; and that no formal
Southern Pacific sought permission to
complaints regarding cessation of rail service on
abandon the Victoria Segment in 1993 by fil-
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
1 The Rosenberg Line is approximately 85
railway to be abandoned is appropriate for use for
miles long and runs between Rosenberg and Vic-
public purposes. See 49 U.S.C. § 10905; 49
toria, Texas. The Victoria Segment is approxi-
C.F.R. § 1152.28(a)(1). If the agency determines
mately 62 miles long stretching from Wharton to
that the property is appropriate for public use, it is
Victoria, Texas. Texas Mexican Railway Com-
authorized to impose conditions on the
pany ("Texas Mexican") is the current owner of
abandonment of the line by the rail carrier, in-
the line, having purchased it from Union Pacific
cluding a prohibition on disposing of the property
Railroad Company ("Union Pacific") on March 12,
for 180 days unless the property is first offered for
2001; Union Pacific acquired the line in 1996 after
sale on reasonable terms for public purposes. See
its merger with Southern Pacific.
(continued...)
2

Notice of Exemption became effective on De-
In granting the preliminary injunction, the dis-
cember 1, 1993, subject to a "public use condi-
trict court found that Southern Pacific "clearly
tion," imposed by the ICC, pursuant to 49
expressed its intent to permanently abandon
U.S.C. § 10906,4 prohibiting Southern Pacific
the rail line from El Campo to Victoria" and
from disposing of the property for 180 days to
that Southern Pacific "consummated its aban-
permit interested parties to acquire it for public
donment of the rail line." As a result, the dis-
purposes.
trict court concluded that the "ICC no longer
exercises jurisdiction over the rail line."5
In 1994, Southern Pacific entered into un-
successful negotiations with another rail car-
In April 1995, while the Gulf Coast suit
rier regarding a possible sale of the entire Ros-
was pending, Southern Pacific filed a letter
enberg Line. Later that year, the Gulf Coast
with the ICC reporting that the Texas Parks
Rural Rail Transportation District ("Gulf
and Wildlife Department had expressed an
Coast"), a consortium of governmental entities
interest in acquiring the Victoria Segment for
and businesses, attempted to purchase or lease
rail-banking and interim trail use purposes,
the Victoria Segment from Southern Pacific to
pursuant to the National Trails Act, 16 U.S.C.
preserve rail service, but the parties could not
§ 1247(d).6 In a decision and order issued on
come to an agreement on price.
May 4, 1995, the ICC reopened the abandon-
ment proceeding and issued a Notice of In-
Having failed to reach an agreement, but d-
terim Trail Use ("NITU").7 The NITU ex
etermined to prevent Southern Pacific from re-
moving the tracks, Gulf Coast filed a petition
5
in state court seeking to condemn the Victoria
The Gulf Coast suit was remanded to state
Segment and requesting a temporary restrain-
court in July 1995 when the district court decided
ing order and temporary injunction. After the
to abstain from exercising jurisdiction in light of its
conclusion that the ICC no longer had jurisdiction
state court granted the temporary restraining
over the rail line. After the case remained inactive
order, Southern Pacific removed the matter to
for several years, Gulf Coast eventually opted to
federal court and sought to quash the state
nonsuit in October 2000.
court's temporary restraining order. Gulf
Coast opposed the relief sought by Southern
6 The National Trails Act authorizes the
Pacific and requested the federal court to issue
ICC/STB "to preserve for possible future railroad
a temporary injunction.
use rights-of-way not currently in service and to
allow interim use of the land as recreational trails."
On August 31, 1994, the district court
Preseault v. ICC, 494 U.S. 1, 6 (1990). Under the
granted a preliminary injunction in favor of
Act, a state, political subdivision, or private entity
Gulf Coast enjoining Southern Pacific from
may, in certain circumstances, acquire a rail right-
removing tracks along the Victoria Segment.
of-way, on terms established by the ICC/STB, for
interim trail use, subject to future reactivation of
rail service over the line. See 16 U.S.C. § 1247(d);
49 C.F.R. § 1152.29.
3(...continued)
49 U.S.C. § 10905.
7 The term "NITU" is used in exempt aban-
donment proceedings, but in regulated abandon-
4 This provision is now codified at 49 U.S.C.
ment proceedings the STB issues a "Certificate of
§ 10905.
(continued...)
3

tended t he effective date of the notice of ex-
8, 2000, the STB issued a decision granting
emption for 180 days, to November 8, 1995,
Texas Mexican's petition, stating its conclu-
thereby deferring Southern Pacific's authority
sion that it still retained jurisdiction over the
to abandon the line and permitting negotiations
line, and approving the sale. In March 2001,
for possible rail-banking and interim trail use
Texas Mexican purchased the line from Union
to continue through that date.
Pacific for $9,200,000.
In an effort to permit continued negotia-
B.
tions between the Texas Parks and Wildlife
In May 2002, the landowners filed separate
Department and Southern Pacific, the negotia-
declaratory judgment actions against Texas
tion period was extended on two more occa-
Mexican in state court in Jackson County and
sions, first on November 17, 1995, by a deci-
Victoria County. The landowners sought
sion of the ICC, and second on May 21, 1996,
judgments declaring that the railroad right-of-
by a decision of the STB. The final negotia-
way at issue (the Victoria Segment) was aban-
tion period expired on November 30, 1996,
doned as a matter of law by Southern Pacific
without an agreement.
and that the STB no longer exercises jurisdic-
tion over the line. Texas Mexican removed
Between 1995 and 1996, Southern Pacific
the actions to federal court on the basis of a
and Union Pacific had been engaged in negoti-
federal question, i.e., whether there had been
ations to merge. The STB approved the merg-
an abandonment and a resulting termination of
er on August 12, 1996, and Union Pacific suc-
federal agency jurisdiction; the actions were
ceeded to Southern Pacific's ownership inter-
consolidated.
est in the Rosenberg Line.
Both sides moved for summary judgment.
In 1998, Texas Mexican and Union Pacific
The landowners moved for partial summary
entered into negotiations regarding the sale of
judgment, contending that Southern Pacific
the Rosenberg Line. In November 1999, Un-
had abandoned the Victoria Segment as a mat-
ion Pacific and Texas Mexican executed a
ter of law as early as 1994, and, consequently,
contract whereby Texas Mexican agreed to
the STB had been improperly exercising juris-
purchase the line from Union Pacific on the
diction over the Victoria Segment. To that
express condition that the STB issue a decision
end, the landowners maintained that the dis-
determining that the Victoria Segment re-
trict court's findings of fact and conclusions of
mained subject to the STB's jurisdiction and
law in the Gulf Coast suitSSnamely, its finding
authorizing the sale.
that Southern Pacific had consummated the
abandonment of the Victoria Segment, and its
Texas Mexican thus petitioned the STB in
conclusion that the ICC no longer had
August 2000 to determine whether the Victo-
jurisdiction over the lineSSwere entitled to pre-
ria Segment was subject to the STB's jurisdic-
clusive effect in their declaratory judgment
tion and to authorize the sale. On December
action.
Texas Mexican moved for summary judg-
7(...continued)
ment, claiming that the district court lacked
Interim Trail Use" ("CITU"). See 49 C.F.R.
subject matter jurisdiction because (1) the STB
§ 1152.29 (c)-(d).
4

retained exclusive and plenary jurisdiction to
the Hobbs Act, 28 U.S.C. § 2342(5), which
determine whether the Victoria Segment had
vests federal courts of appeals with exclusive
been abandoned; and (2) the landowners'
jurisdiction to review all final STB orders.
declaratory judgment action was an improper
collateral attack on the STB's December 15,
II.
2000, decision approving the sale of the
The landowners contend that because the
Rosenberg Line from Union Pacific to Texas
"precise issue"SSwhether Southern Pacific
Mexican.
consummated the abandonment of the railway,
thereby terminating STB jurisdiction over the
In October 2003, the district court denied
lineSSwas decided in the Gulf Coast tempo-
the landowners' partial summary judgment
rary injunction proceeding, that finding is en-
motion and granted Texas Mexican's summary
titled to preclusive effect. This plea for collat-
judgment motion, thereby dismissing the
eral estoppel is unavailing.
landowners' suit for want of subject matter
jurisdiction. In so doing, the court refused to
A.
give preclusive effect to its prior decision in
"Collateral estoppel vel non is a question of
the Gulf Coast suit, finding that it "was limited
law reviewed de novo." Baby Dolls Topless
to the issues surrounding the application for a
Saloons, Inc. v. City of Dallas, 295 F.3d 471,
temporary injunction" and was thus not
478 (5th Cir. 2002). Where a party seeks to
reached after "a final hearing on the merits."
employ collateral estoppel offensively, howev-
er, a court has broad discretion to determine
In a thorough opinion, the court determined
whether relitigation of an issue should be pre-
that the conditional nature of the abandonment
cluded. See, e.g., Parklane Hosiery Co. v.
exemption granted Southern Pacific by the
Shore, 439 U.S. 322, 331 (1979). "We thus
ICC was dispositive: It held that when an
review the district court's refusal to offensive-
abandonment exemption is conditional, the
ly apply collateral estoppel only for abuse of
STB retains jurisdiction over a railroad right-
the broad discretion afforded it." Winters v.
of-way until it has been abandoned pursuant to
Diamond Shamrock Chem. Co., 149 F.3d 387,
the conditions established by the agency; and,
392 (5th Cir. 1998) (citing Copeland v. Mer-
in such cases, the agency retains exclusive and
rill Lynch & Co., 47 F.3d 1415, 1423 (5th Cir.
plenary jurisdiction to determine whether there
1995)).
has been an abandonment sufficient to
terminate its jurisdiction.
B.
To determine whether collateral estoppel
Because the original exemption granted to
applies, we consider whether
Southern Pacific was conditional, the district
concluded that the STB retained exclusive jur-
(1) the issue under consideration is identical
isdiction to determine whether Southern Pacif-
to that litigated in the prior action; (2) the
ic or its successors in interest ever consum-
issue was fully and vigorously litigated in
mated the abandonment of the Victoria Seg-
the prior action; (3) the issue was necessary
ment. Moreover, the court characterized the
to support the judgment in the prior case;
landowners' suit as an improper collateral at-
and (4) there is [any] special circumstance
tack on ICC and STB decisions precluded by
that would make it unfair to apply the
5

doctrine.
Coast sued Southern Pacific, but it was made
under the legal standard applicable to issuance
Winters, 149 F.3d at 391 (quoting Copeland,
of a temporary injunctionSSi.e., a substantial
47 F.3d at 1422). We have set out several
likelihood of success on the merits in light of a
other "safeguards that must be present before
substantial threat of irreparable injury. Thus,
estoppel may be employed." Id. As relevant
the abandonment finding cannot be said to
here, first among these additional safeguards is
have been "fully and vigorously litigated in the
a "requirement that the `facts and the legal
prior action,"9 nor was the question of aban-
standard used to assess them are the same in
donment assessed under the same legal
both proceedings.'" Id. (quoting Copeland, 47
standard as would be applicable on a direct
F.3d at 1422). Second, we inquire whether "a
petition for review of an order of the STB.10
`new determination of the issue is warranted
by differences in the quality of extensiveness of
Moreover, the prior abandonment finding
the procedures followed in the two courts.'"
was not subject to judicial review. The district
Id. (quoting Copeland, 47 F.3d at 1423)
court's August 31, 1994, order granting the
(quoting RESTATEMENT (SECOND) OF
temporary injunction, which incorporated the
JUDGMENTS § 28(3))). Third, we regard the
court's findings of fact and conclusions of law,
availability of judicial review of the first
never went into effect because Gulf Coast
proceeding as being "of paramount importance
failed to post the bond required as a prerequi-
to the issue of preclusion." Id. at 395.8
site.11 Southern Pacific thus had neither the in-
centive to appeal (because the judgment never
went into effect) nor the ability to appeal
C.
(because the order was not final). Because we
The district court can hardly be said to have
have treated finality and the concomitant
abused its discretion by deciding that its find-
availability of judicial review as an essential
ing in the Gulf Coast suit was not entitled to
preclusive effect. Not only was the abandon-
ment finding entered only ten days after Gulf
8 Indeed, as noted in Winters, the Restatement
9 Winters, 149 F.3d at 391 (quoting Copeland,
"specifically provides for an exception to preclu-
47 F.3d at 1422).
sion when `[t]he party against whom preclusion is
sought could not, as a matter of law, have obtained
10 See, e.g., Copeland, 47 F.3d at 1422 ("Col-
review of the judgment in the initial action.'" Win-
lateral estoppel does not preclude litigation of an
ters, 149 F.3d at 395 & n.9 (quoting RESTATE-
issue unless both the facts and the legal standard
MENT (SECOND) OF JUDGMENTS § 28(1)); see also
used to assess them are the same in both pro-
18 WRIGHT, MILLER & COOPER, FEDERAL
ceedings.").
PRACTICE AND PROCEDURE § 4421, at 203 (1981)
("Since appellate review is an integral part of the
11 Accord United States v. Assoc. Air. Transp.,
system, there is strong reason to insist that preclu-
Inc., 256 F.2d 857, 861 (5th Cir. 1956) (noting
sion should be denied to findings that could not be
that until posting of the required bond the order
tested by the appellate procedure ordinarily avail-
granting an injunction "was conditional and with-
able, either by appeal or cross appeal.") (footnotes
out operative effect, and . . . there was, in short,
omitted).
no order to appeal from").
6

predicate to issue preclusion,12 this fact alone
A.
is sufficient to reject the landowners' pre-
Although the district court concluded that
clusion argument.
it lacked subject matter jurisdiction over the
landowners's suit, it did not dismiss the suit
Accordingly, given, inter alia, the tempo-
under FED. R. CIV. P. 12(b)(1); rather, it dis-
rary and limited treatment the issue of aban-
missed for want of jurisdiction by granting
donment received in the Gulf Coast suit's pre-
Texas Mexican's summary judgment motion.
liminary injunction proceeding, the legal stan-
In any event, the distinction is ultimately of lit-
dard applied in that proceeding, and the un-
tle consequence for purposes of this appeal,
availability of judicial review, the district court
because "[w]e review dismissals for lack of
did not abuse its discretion in refusing to give
subject matter jurisdiction and grants of sum-
preclusive effect to its abandonment finding.
mary judgment de novo." Hager v. Nations-
Bank, N.A., 167 F.3d 245, 247 (5th Cir. 1999)
III.
(per curiam).13
Putting aside the question of estoppel, we
now consider anew the district court's conclu-
B.
sion that it lacked subject matter jurisdiction
Once a rail carrier abandons a line, the line
"to determine whether Southern Pacific or its
is no longer part of the national transportation
successors in interest ever consummated the
system, and the STB's jurisdiction terminates.
abandonment of the Line." We conclude that
See Preseault, 494 U.S., at 5 n.3. Thus, in
because the abandonment authorization ini-
proceedings in which the STB imposes no
tially granted by the ICC was conditional, the
conditions on an abandonment, the STB's de-
STB retained exclusive and plenary jurisdiction
cision to authorize the abandonment will end
to determine whether there has been an
its jurisdiction over the line.14
abandonment sufficient to terminate its juris-
diction. Accordingly, the district court prop-
erly concluded that it lacked subject matter
13 See also Martinez v. Dep't of U.S. Army, 317
jurisdiction to hear the landowners' suit alleg-
F.3d 511, 512 (5th Cir. 2003) ("This Court re-
ing that, as a matter of law, Southern Pacific
views dismissals for lack of subject matter jur-
consummated the abandonment of the Victoria
isdiction under Fed. R. Civ. P. 12(b)(1) based on
Segment.
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
12 See, e.g., J.R. Clearwater, Inc. v. Ashland
novo.").
Chem. Co., 93 F.3d 176, 179 & n.2 (5th Cir.
1996) ("Finality is an essential component of the
14 See, e.g., Hayfield N.R.R. v. Chicago & N.W.
concepts of both res judicata and collateral estop-
Transp. Co., 467 U.S. 622, 633 (1984) ("[U]nless
pel."); Avondale Shipyards, Inc. v. Insured
the Commission attaches postabandonment condi-
Lloyd's, 786 F.2d 1265, 1269-73 (5th Cir. 1986)
tions to a certificate of abandonment, the Commis-
(refusing to grant preclusive effect to partial sum-
sion's authorization of an abandonment brings it
mary judgment order on the basis that it was not
regulatory mission to an end."); see also Lucas v.
appealable); id. at 1270 ("We are not aware of any
Township of Bethel, 319 F.3d 595, 602 (3d Cir.
federal appellate decision which has applied pre-
2003) ("In cases where the ICC has placed no
clusion to a prior nonfinal ruling as to which ap-
conditions on a railroad abandonment . . . the
pellate review was unavailable . . . .").
(continued...)
7

In contrast, where an abandonment is con-
ern Pacific from "altering the historic integ-
ditional, the STB retains jurisdiction over a
rity" of a portion of the line until completion
railroad right-of-way until it has been aban-
of the National Historic Preservation Act re-
doned pursuant to the conditions imposed by
view process.
the agency. See id.; Lucas, 319 F.3d at 603.
"In such cases, the agency also retains exclu-
Because Southern Pacific's abandonment
sive, plenary jurisdiction to determine whether
authorization was conditional, the district
there has been an abandonment sufficient to
court correctly determined that the STB re-
terminate its jurisdiction." Lucas, 319 F.3d at
tained exclusive and plenary jurisdiction over
603 (citing Friends of the Atglen-Susquehan-
the line to determine whether there has been an
na Trail, 252 F.3d at 262).
abandonment sufficient to terminate its jur-
isdiction. See id. Consequently, the court
There is no dispute that Southern Pacific's
correctly concluded that it did not have
authority to abandon the Victoria Segment
jurisdiction to decide whether Southern Pacific
was expressly conditioned in several respects
or its successors in interest abandoned the line.
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
C.
or local government agency or other interested
The landowners do not directly dispute any
person to negotiate the acquisition of the line
of the foregoing. Instead, they contend that
for public use." Second, the ICC required
Southern Pacific's abandonment was automat-
Southern Pacific to "consult with [the Texas
ically consummated, as a matter of law, when
Natural Heritage Program] prior to initiating
no agreement was reached on interim trail use
any salvage activities on this line." Third, the
within the initial 180-day period imposed by
ICC required that Southern Pacific "consult
the ICC, thus depriving the agency of further
with the [U.S. Army Corps of Engineering]
jurisdiction over the right-of-way and allowing
concerning future flood prevention measures
the landowners' reversionary interests to vest.
prior to initiating any salvage activities on the
According to this theory, the agency's order of
line." And fourth, the ICC prohibited South-
May 4, 1995, reopening the Victoria
Segment's abandonment proceeding and post-
poning the abandonment exemption's effective
14(...continued)
date for 180 days to allow for further interim
ICC's decision to authorize an abandonment will
trail use negotiations, was for naught, because
bring its jurisdiction to an end."); Friends of the
the agency no longer had jurisdiction over the
Atglen-Susquehanna Trail, Inc. v. STB, 252 F.3d
line; the same was true for its November 17,
246, 262 (3d Cir. 2001) ("Unless the STB attaches
1995, and May 21, 1996, decisions further
post-abandonment conditions to a certificate of
postponing the effective date, and the STB's
abandonment or exemption . . . the authorization of
December 8, 2000, decision approving the sale
abandonment ends the Board's regulatory mission
of the line to Texas Mexican.
and its jurisdiction.").
15
It is not disputed that under STB regula-
See S. Pac. Transp. Co.SSAbandonment Ex-
emptionSSIn Jackson, Victoria, and Wharton
tions a NITU, such as the one issued here (or
Counties, TX, Docket No. AB-12 (Sub. No. 162X)
a CITU in nonexempt abandonment proceed-
(Dec. 23, 1993).
8

ings), converts into an effective certificate of
ment regime.18
abandonment if no trail use agreement is
reached during the period allotted for negotia-
Indeed, the problem with the landowners'
tion.16 But from this proposition the
argument is more acutely perceived in light of
landowners infer that abandonment is
recent changes in the railway abandonment
consummated as a matter of lawSSand thus
regime. "Historically, the STB determined
agency jurisdiction terminatesSSif no interim
whether an abandonment was consummated by
trail use agreement is reached upon expiration
evaluating the rail carrier's objective intent to
of a NITU. This, however, is incorrect.
cease permanently or indefinitely all trans-
portation service on the line." Lucas, 319
The relevant STB regulation states that ex-
F.3d at 603 n.11. Because of the uncertainty
piration of a NITU will "permit" a railroad ful-
such an approach fostered as to a particular
ly to abandon the line, therefore indicating that
line's status, however, the STB, since 1997,
an effective certificate of abandonment au-
has required rail carriers to file with the agency
thorizes, but does not itself establish, complete
a letter confirming consummation of aban-
consummation of the abandonment.17 Thus,
donment.19 Although a similar filing require-
"an effective certificate of abandonment
ment was in effect before the Victoria Seg-
confers permissive authority on the railroad;
ment's abandonment was authorized in De-
until the railroad actually consummates an
cember 1993,20 no such requirement was in ef-
abandonment, none occurs, and the Commis-
fect when the Victoria Segment's authoriza-
sion retains jurisdiction over the railroad's
right-of-way." Birt, 90 F.3d at 589 (emphasis
18
added). The landowners' claim that agency
Moreover, the fact that an abandonment pro-
jurisdiction was automatically terminated upon
ceeding can be reopened to grant a NITU or CITU
expiration of the initial 180-day public use
more than 180 days after the abandonment exemp-
tion's issuance, or that a NITU can be extended be-
negotiation period is, therefore, contrary to the
yond the 180-day statutory period, provides further
plain text of the governing regulations and is
support for this conclusion. See, e.g., Birt, 90
based on an incorrect view of the abandon-
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 expira-
tion). That is, if, as the landowners contend, an
16 See, e.g., Birt v. STB, 90 F.3d 580, 583
abandonment were automatically consummated as
(D.C. Cir. 1996) ("If the parties do not reach
a matter of law absent agreement 180 days after is-
agreement, the certificate of abandonment becomes
suance of a NITU, the agency would be without
effective upon expiration of the CITU."); id. n.11.
jurisdiction to reopen or extend the period for
negotiations.
17 See 49 C.F.R. § 1152.29(d)(1) ("The NITU
will . . . permit the railroad to fully abandon the
19 See Lucas, 319 F.3d at 603 n.11 (citing
line if no agreement is reached 180 days after it is
Becker v. STB, 132 F.3d 60, 61 n.2 (D.C. Cir.
issued, subject to appropriate conditions, including
1997)).
labor protection, and environmental matters." (em-
phasis added); see also 49 C.F.R. § 1152.29(c)(1)
20 See, e.g., Consol. Rail Corp. v. STB., 93
("The CITU will . . . permit the railroad to fully
F.3d 793, 798 (D.C. Cir. 1996) (noting pre-1984
abandon the line if no agreement is reached 180
requirement that rail carriers file with the ICC a
days after it is issued . . . .") (emphasis added).
letter confirming consummation of abandonment).
9

tion occurred.
abandonment of the Victoria Segment.
Critically, no such public filing requirement
In at least four decisions and orders issued
would be necessary if the STB's jurisdiction
after the conditional abandonment was autho-
over a rail line ceased automatically as a
rized in 1993, the ICC and STB exercised jur-
matter of law on the expiration of the 180-day
isdiction over the Victoria Segment.22 The
period imposed by a NITU. To the contrary,
landowners stress that none of these decisions
this filing requirement implicitly recognizes
ever directly held that Southern Pacific had not
that the decision actually to abandon a line
consummated the abandonment of the Victoria
rests with the carrier; it is only upon actual
Segment. But what the landowners fail to
consummation of the abandonment that the
grasp is that each decision and order issued by
STB's jurisdiction ceases.
the ICC and STB after the initial abandonment
authorization in 1993 required continued
D.
agency jurisdiction over the Victoria
As we have indicated, because the original
SegmentSSand therefore no consummated
abandonment authorization was conditional,
abandonmentSSto be valid agency action.
the determination of whether there has actually
been an abandonment is within the primary and
In other words, if, as the landowners main-
exclusive jurisdiction of the STB. Despite the
tain, Southern Pacific had in fact consummated
STB's exclusive jurisdiction to determine
the abandonment of the Victoria Segment as
whether the abandonment has been
early as 1994, it follows that the agency was
consummated, however, the landowners' suit
ultra vires in each of its decisions between the
sought a declaration from the district court
initial abandonment authorization and the
that Southern Pacific had consummated the
ultimate sale of the line, because once an
abandonment of the Victoria Segment as early
abandonment is consummated, the agency's
as 1994 as a result of various acts and omis-
jurisdiction terminates. See Preseault, 494
sions on the line.21 Whatever the merits of
U.S. at 5-6 n.3; Birt, 90 F.3d at 585. Con-
these contentions, it is evident that the practi-
sequently, each of the decisions and orders is-
cal effect of the landowners' suit is improperly
sued by the ICC and STB between the initial
to challenge various ICC and STB decisions
abandonment authorization and the ultimate
that necessarily (albeit implicitly) decided that
sale of the line necessarily (again, albeit im-
Southern Pacific did not consummate the
plicitly) determined that Southern Pacific had
22 As we have indicated, these include the ICC's
21 The landowners point to the following alleged
May 4, 1995, decision reopening the Victoria
acts and omissions on the part of Southern Pacific
Segment's abandonment proceeding and post-
to support their contention Southern Pacific
poning the exemption's effective date for 180 days
consummated the abandonment of the line: (1) its
to allow for interim trail use negotiations; the
removal of rails and ties; (2) its failure to repair
ICC's November 17, 1995, decision and the STB's
flood-damaged portions of the line; (3) its failure
May 21, 1996, decision further postponing the
to maintain mowing and spraying operations; and
exemption's effective date to allow for continued
(4) its failure to object to certain landowners'
trail use negotiations; and the STB's May 8, 2000,
fencing in portions of the right-of-way for grazing
decision approving the sale of the Rosenberg Line
purposes.
to Texas Mexican.
10

not consummated the abandonment of the
that only parties to the agency proceedings can
Victoria Segment.23
seek direct review under the Hobbs Act does
not excuse the Landowners from following
Therefore, "[a]lthough not in form a re-
this exclusive procedure, thereby allowing
quest for review of an ICC order, the practical
them collaterally to attack various agency or-
effect is to seek such a review." Dave v.
ders by maintaining a declaratory judgment
Rails-to-Trails Conservancy, 79 F.3d 940, 942
action in district court. Rather, this statutory
(9th Cir. 1996). Pursuant to the Hobbs Act,
limit on the availability of direct review indi-
however, the courts of appeals have exclusive
cates that the landowners had an affirmative
jurisdiction over any action to enjoin, suspend,
duty to intervene25 before the agency in any of
or determine the validity of an STB order. See
the proceedings involving the Victoria Seg-
28 U.S.C. § 2342(5). The proper means,
ment beginning in 1994, when they claim
therefore, by which the landowners could have
Southern Pacific consummated the abandon-
challenged the STB's continued jurisdiction
ment, until the STB's approval of the sale of
over the line, and the implicit decision that
the Rosenberg Line in 2000.
Southern Pacific had not consummated the
abandonment, would have been to seek direct
By failing affirmatively to act to protect
judicial review (within sixty days) of any of the
ICC's or STB's orders. See 28 U.S.C. §
2344.
24(...continued)
rule, two Fifth Circuit cases suggest that nonpar-
Of course, it is true generally that under 28
ties may appeal ICC orders if "the agency action is
U.S.C. § 2344 only a "party aggrieved" by a
`attacked as exceeding the power of the Com-
final agency order may seek direct judicial re-
mission.'" Am. Trucking Ass'ns, 673 F.2d at 85
n.4 (quoting Schwartz v. Alleghany Corp., 282 F.
view, and the term "party aggrieved" is "used
Supp. 161, 163 (S.D.N.Y. 1968)); see also Wales
in a definitive sense in the statute, and limits
Transp. Co. v. ICC, 728 F.2d 774, 776 n.1 (5th
the right of appeal to those who actually par-
Cir. 1984).
ticipated in the agency proceeding." Am.
Trucking Ass'ns, Inc. v. ICC, 673 F.2d 82, 84
This line of cases has, however, been squarely
(5th Cir. 1982) (per curiam).24 But the fact
rejected by some of our sister circuits. See, e.g., In
re Chicago, Milwaukee, St. Paul & Pac. R.R.., 799
F.2d 317, 335 (7th Cir. 1986) ("The statute limits
23 See King County v. Rasmussen, 299 F.3d
review to petitions filed by parties, and that is
1077, 1089 (9th Cir. 2002) ("The STB implicitly
that."); Erie-Niagra Rail Steering Committee v.
has answered this question by asserting jurisdiction
STB, 167 F.3d 111, 113 (2d Cir. 1999) ("We agree
over the rail line; judicial review of the order must
with the Seventh Circuit in Chicago and the Dis-
be obtained directly from a court of appeals . . . .").
trict of Columbia Circuit in Simmons. To the ex-
tent that non-parties were once permitted to appeal
24 See also Simmons v. ICC, 716 F.2d 40, 42
ICC decisions, that avenue was closed by the clear
(D.C. Cir. 1983) ("This circuit has consistently in-
language of the Hobbs Act when it became
terpreted the phrase `party aggrieved' to require as
applicable to the ICC in 1975.").
a general matter that petitioners be parties to any
proceedings before the agency preliminary to is-
25 The applicable standards and requirements
suance of its order."). We note that, despite this
for intervention in a proceeding before the STB are
(continued...)
set forth in 49 C.F.R. § 1113.7.
11

their interests by intervening in the agency pro-
ceedings, the landowners cannot now advance
their claims in a collateral action that nec-
essarily challenges several agency decisions
and orders as being issued after the agency's
jurisdiction over the line terminated:
[I]t is incumbent `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.
12