UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


JOST, KEVIN

v.

STB


99-1054a

D.C. Cir. 1999


*	*	*


Wald, Circuit Judge: Kevin Jost petitions for review of an  order of
the Surface Transportation Board ("the Board")  declining to reopen a
proceeding wherein the Board issued a  notice of interim trail use
("NITU") for a railroad line former- ly operated by the Central Kansas
Railway ("CKR").1 Jost  sought to reopen the proceeding on the grounds
that, as a  result of right-of-way sales by CKR, CKR's notice of
exemp- tion was void for misleading statements, rail banking and 
interim trail use were not possible, and CKR had abandoned  the line.
Jost also challenged the Board's refusal to review  the financial
fitness of the Central Kansas Conservancy  ("CKC" or "the
Conservancy"), the trail sponsor that ac- quired the line from CKR.


We uphold the Board's decision not to review the fitness of  the
Conservancy to be a trail sponsor. However, we find that  the Board
has not adequately explained why Jost's evidence  concerning the
right-of-way sales did not require reopening  the proceeding.
Accordingly, we grant the petition for review  and remand to the Board
for further proceedings.


I. Background


As part of its jurisdiction over the common carrier respon- sibilities
of railroads, the Surface Transportation Board must  approve the
abandonment of a railroad line.2 Pursuant to a  


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n 1 Jost's petition is joined by Alvin Kroupa, Allen Schlehuber, and 
the Citizens Association of Marion and McPherson Counties. For 
convenience, we will refer to petitioners simply as "Jost."


2 Once abandonment occurs, "as a general proposition [the agen- cy's]
jurisdiction terminates." Preseault v. ICC, 494 U.S. 1, 5-6 n.3 
(1990).


statutory mandate, the Board has established an abbreviated  process
for abandonment of "out-of-service" lines.3 See 49  U.S.C. s 10502
(Supp. III 1998); 49 C.F.R. s 1152.50 (1998).  When a railroad files a
verified "notice of exemption" stating  it wishes to abandon an
out-of-service line, the Board pub- lishes a notice in the Federal
Register which states that the  railroad will be authorized to abandon
the line in thirty days,  unless the Board stays the exemption
pursuant to a petition.4  The notice also states that the exemption is
void ab initio if  the railroad's notice contains false or misleading
information.  See 49 C.F.R. s 1152.50(d)(3).


At this point, the "rails-to-trails" program established un- der the
Trails Act, 16 U.S.C. s 1247(d), may come into play.  The Trails Act
authorizes the Board "to preserve for possible  future railroad use
rights-of-way not currently in service and  to allow interim use of
the land as recreation trails." Pre- seault v. ICC, 494 U.S. 1, 6
(1990). Thus, the Trails Act has  two goals, to preserve railroad
rights-of-way and to encourage  the creation of new recreation trails.
See Preseault, 494 U.S.  at 17-18.


The Trails Act comes into play if, while the exemption is  pending, a
private organization files a "statement of willing- ness" with the
Board. The statement of willingness is an  indication that the private
organization (the "trail sponsor") is  willing to take over management
of and financial responsibili- ty for the right-of-way, for the
purposes of "rail banking" the  line and establishing a trail on the
right-of-way.5 If the 




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n 3 A line is considered "out-of-service" if "no local traffic has 
moved over the line for at least 2 years and any overhead [i.e., 
through] traffic on the line can be rerouted over other lines" and no 
complaints about reduced rail service are pending or have been 
decided adverse to the railroad in the prior two years. 49 C.F.R.  s
1152.50(b) (1998).


4 Once the exemption becomes effective, the railroad is authorized  to
abandon the line. Under current regulations, the railroad must  file a
notice with the Board to consummate abandonment. See 49  C.F.R. ss
1152.50(e), 1152.29(e)(2).


5 "Rail banking" refers to the preservation of the right-of-way for 
possible future reinstitution of rail service. In addition to private


railroad indicates its willingness to negotiate transfer of the  line
to the trail sponsor, then the Board will issue a notice of  interim
trail use ("NITU"). Under the NITU, the authoriza- tion to abandon the
line is stayed for a set period of time and  the railroad is instead
authorized to transfer the line for rail  banking and interim trail
use. If the parties' negotiations are  successful, then the line is
conveyed for interim trail use and  possible future rail service. If
the negotiations are unsuc- cessful, then the railroad's exemption
takes effect, and the  line may be abandoned. Whether the negotiations
over inter- im trail use are successful or not, the Board need not
reopen  the proceeding once the NITU is issued.6


In February 1996, the Central Kansas Railway sought to  abandon a 33.4
mile rail line that it owned largely as ease- ments over land
belonging to others. CKR filed a notice of  exemption with the Board,
indicating that the line qualified as  "out-of-service." The Board
published a notice in the Federal  Register stating that the exemption
would be effective April  12, 1996, unless the Board took further
action. Central  Kansas Ry., LLC--Abandonment Exemption--in Marion & 
McPherson Counties, KS, 61 Fed. Reg. 10,428, 10,429 (1996).  The
notice also states that the exemption would be void ab  initio if
CKR's notice contained false or misleading informa- tion. Id.


On April 9, 1996, CKR indicated to the Board that it had  not abandoned
the line and was willing to negotiate rail  banking-interim trail use
with an entity (Jennings & Co.) that  had filed a statement of
willingness to assume responsibility  for the line. On April 12, 1996,
the Board issued a notice of  interim trail use and stayed the
exemption for six months.  The Board subsequently granted two
additional extensions of  time for the parties to negotiate rail
banking-interim trail use.  In June 1997, the Central Kansas




__________

n organizations, state and local governments may also serve as trail 
sponsors. See 16 U.S.C. s 1247(d) (Supp. III 1998).


6 However, on request of the parties, the Board will reopen the 
proceeding to grant further stays of the exemption to allow the 
parties more time for negotiations.


statement of willingness and requested a NITU. On June 12,  1997, in
its final action in this proceeding (other than the  denial of the
petition to reopen), the Board decided to issue a  NITU and to
postpone the effective date of the exemption  until December 13, 1997.
On September 19, 1997, pursuant  to this NITU, the railroad conveyed
the 33.4 mile line to the  Conservancy for rail banking-interim trail


On September 25, 1997, Jost, who owns land over which the  line passes,
filed a petition to reopen the abandonment pro- ceeding on the grounds
of material error and changed circum- stances. Jost stated that both
before and after filing its  notice of exemption, CKR had conveyed
portions of the right- of-way, which rendered the line unsuitable for
rail banking,  and therefore for interim trail use. Jost argued that
CKR's  failure to disclose these sales caused the Board to erroneously
 issue a NITU. Jost also stated that CKR's conveyance of  portions of
the right-of-way, together with the lack of service  on the line and
the removal of rails, ties, and ballast, showed  that CKR had
consummated abandonment of the line. Final- ly, Jost argued that
changed circumstances, i.e., recent ex- pressions of opposition to
interim trail use by local govern- ments, indicated that the
Conservancy would be unable to  meet its financial obligations for


CKR responded to Jost's filings by stating that, although it  had
conveyed back some right-of-way along the line, it had  retained
sufficient right-of-way in all sales to allow for rail 
banking-interim trail use.7 Since the right-of-way sales did  not
impact rail banking or interim trail use, CKR argued it  was not




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n 7 The pre-sale right-of-way width was from 100-300 feet. The 
post-sale right-of-way width, according to CKR, was from 50-230  feet.
Right-of-way as little as 30 feet wide has been found to be 
sufficient for safe rail operations. See Boston & Maine Corp. & 
Springfield Terminal Ry. Corp.--Abandonment & Discontinuance  of
Service in Hartford County, CT in the Matter of a Request to Set 
Terms & Conditions, (Docket No. AB-32) (Sub.-No. 43) (Aug. 9.  1991)
(citing examples of 30-, 30- and 50-foot wide rights-of-way,  but
noting that question is highly fact specific). Thus, CKR con- tends it


Jost responded by arguing that CKR had not simply con- veyed "excess"
right-of-way. Jost presented affidavits stat- ing that, in three
places, CKR had sold the entire, or "full- width," right-of-way,
breaking up the continuity of the line.  CKR replied that the deeds in
question were facially ambigu- ous, and that it believed it had only
conveyed excess right-of- way.8


The Board denied Jost's petition to reopen the abandon- ment
proceeding. The Board concluded that CKR's discon- tinuance of service
and removal of rails, ties and ballast did  not consummate
abandonment, particularly in light of CKR's  ongoing negotiations over
rail banking-interim trail use.  Central Kansas Ry., LLC--Abandonment
Exemption--in  Marion & McPherson Counties, KS, (Docket No. AB-406) 
(Sub.-No. 6X) (Dec. 19, 1998) ("CKR--Abandonment Exemp- tion"), slip
op. at 3 (citing Birt v. STB, 90 F.3d 580 (D.C. Cir.  1996)). The
Board also found that Jost had not made a  specific showing that the
Conservancy would be unable to  meet its financial obligations, and
therefore the Board would  not reopen the proceeding to examine the
Conservancy's  financial capacity.


Finally, the Board stated:


CKR has refuted these allegations [that the right-of-way  sales made
interim trail use and rail banking impossible]  by submitting a
verified statement specifically stating  that a sufficient width of
right-of-way was conveyed to  CKC in all instances to permit trail use
and to permit rail  service to be reinstituted for the entire length
of the  right-of-way should there be an occasion for reestablish- ment
of such rail service in the future. Moreover, while  all of the
parties' filings will be accepted into the record, 




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n 8 The description of property to be conveyed in each case was a  map
which contained both a written description and a yellow-shaded  area
indicating what was to be conveyed. However, the written  description
was inconsistent with the amount of right-of-way within  the
yellow-shaded area. CKR submitted affidavits that its intent  was to
sell only the amount indicated within the yellow-shaded area,  and not
the entire amount of right-of-way in the written description.


we will not attempt to resolve all of the property issues  that these
filings raise. State courts appear to be the  proper place for parties
to resolve property disputes  about the parties' expectations and how
much property  has been transferred and how much has been retained.


Id. at 5. The Board did not directly address Jost's contention  that
the right-of-way sales rendered the notice of exemption  misleading
and false, or that the right-of-way sales were  evidence of


Jost petitioned for review of the Board's decision not to  reopen the
proceeding, arguing that it was arbitrary and  capricious for the
Board not to examine whether the Conser- vancy was financially capable
of being a trail sponsor, not to  find that the notice of exemption
was void ab initio, not to  reconsider whether interim trail use was
appropriate in light  of the sale of portions of the right-of-way, and
not to find that  the line had been abandoned.


II. Discussion


A. Standard of Review


At the outset we must resolve the parties' disagreement  over the
standard of our review of the Board's decision not to  reopen the
proceeding. The Board contends that it is enti- tled to a particularly
deferential standard of review, since  Jost seeks review of a decision
not to reopen a prior proceed- ing. Jost, however, contends that the
Board's decision not to  reopen the proceeding was clearly arbitrary
and capricious  because it was flatly contrary to the Board's own
regulations.  We agree with neither contention.


We have recently held that "a petition seeking review of an  agency's
decision not to reopen a proceeding is not reviewable  unless the
petition is based upon new evidence or changed  circumstances."
Southwestern Bell Tel. Co. v. FCC, 180 F.2d  307, 311 (D.C. Cir.
1999). Southwestern Bell stated that the  "test for new evidence" is
whether the evidence identified by  petitioners are " 'facts which
through no fault of [the petition- er's], the original proceeding did
not contain.' " Id. at 312 


(quoting ICC v. Brotherhood of Locomotive Eng'rs, 482 U.S.  270, 279
(1987)) (alterations in original).


In this case, we cannot fault petitioners for the lack of  information
in the record about CKR's right-of-way sales.  First, the three sales
where it is alleged that "full-width"  right-of-way was sold did not
occur until after the notice of  exemption was filed. In addition,
because the grant of a  NITU appears to be virtually automatic once a
potential trail  sponsor and a railroad indicate their willingness to
negotiate  interim trail use, there is very little time when a request
for a  NITU is pending before the Board.9 Thus, the issuance of a 
NITU is not a typical agency adjudication where any interest- ed party
has an opportunity to put evidence in the record for  the agency's
consideration before the agency reaches its  decision. We do not see
this process as being inconsistent  with, or an unreasonable
interpretation of, the Trails Act, but  we cannot fault petitioners
for failing to raise the question of  the right-of-way sales in the
brief period in which the request  for a NITU was pending.10


It is true that the literal language of Jost's petition sought  to
reopen the proceeding on the grounds of "material error,"  which would
ordinarily not be a valid basis for a petition for  review. See
Locomotive Eng'rs, 482 U.S. at 280; Southwest- ern Bell, 180 F.3d at
311. However, Jost repeatedly indicates 




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n 9 For example, in this case, the first statement of willingness was 
filed April 9, 1997, and the Board decided to issue the NITU on  April
11, 1997, while the second statement of willingness was filed  on June
6, 1997, and the Board decided to issue a NITU on June 12,  1997.


10 This is not to say that the timing of the petition is irrelevant. 
It may be that the Board is entitled to refuse to reopen a proceed-
ing where there is evidence a petitioner slept on her rights. At oral 
argument, counsel for the Board suggested that the delay in raising 
the issue of right-of-way sales was a valid reason not to reopen this 
proceeding, but there is nothing in the Board's decision which 
suggests that it was relying on that rationale. See SEC v. Chenery, 
332 U.S. 194, 196 (1947) (reviewing court must "judge the propriety 
of [agency] action solely by the grounds invoked by the agency").


that the "material error" he alleges is not that the Board  wrongly
issued the NITU on the basis of the evidence in front  of it, but
rather that the Board's decision was "based on  inaccurate, incomplete
and misleading information provided  by [CKR]." Joint Appendix
("J.A.") at 94; see also id. at 103  ("STB's imposition of trail use
conditions on the railroad  corridor was in material error because it
was based on  inaccurate and insufficient facts presented to the


Thus, we believe that it is clear that the purpose of Jost's  petition
was not to challenge the Board's reasoning but to  bring new material
to its attention, and therefore the decision  not to reopen the
proceeding is reviewable. See Fritsch v.  ICC, 59 F.3d 248, 252 (D.C.
Cir. 1995) (reviewing ICC's  decision not to reopen abandonment/trail
condition proceed- ing because "[w]e ... interpret Locomotive
Engineers as  permitting merits review of a refusal to reopen where
the  motion to reopen was based on non-pretextual grounds of new 
matter or changed circumstances, and not merely on material  error in
the original agency decision").


While we believe that the Board's decision not to reopen is 
reviewable, we do not accept Jost's contention that the Board  was
required to reopen the proceeding once he filed a petition  containing
new evidence. There is nothing in the Board's  regulations governing
either petitions for reconsideration or  petitions to reopen
proceedings which requires the Board to  grant such a petition. See 49
C.F.R. ss 1115.3, 1115.4.  Accordingly, we will review the Board's
decision not to reopen  the proceeding under the familiar arbitrary
and capricious  standard. See 5 U.S.C. s 706(2)(A).


"The requirement that agency action not be arbitrary and  capricious
includes a requirement that the agency adequately  explain its result.
The arbitrary and capricious standard of  the APA mandates that an
agency take whatever steps it  needs to provide an explanation that
will enable the court to  evaluate the agency's rationale at the time
of decision."  Dickson v. Secretary of Defense, 68 F.3d 1396, 1404
(D.C. Cir.  1995) (internal quotation marks, brackets and citations
omit- ted). "[W]e may not supply a reasoned basis for the agency's 


decision that the agency itself has not given. We will,  however,
uphold a decision of less than ideal clarity if the  agency's path may
reasonably be discerned." Motor Vehicles  Mfrs. Ass'n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29,  43 (1983) (citation omitted). In
this case, we can discern the  agency's rationale with regard to the
question of the Conser- vancy's fitness to be a trail sponsor. We are,
however, unable  to discern the agency's path in addressing CKR's sale
of  portions of the right-of-way.


B. CKR's Right-of-Way Sales


Jost presented three reasons why the alleged sale of full- width
sections of the right-of-way required the Board to  reconsider its
decision to allow interim trail use over the line.  First, Jost argued
that the railroad's failure to disclose the  sale of portions of its
right-of-way constituted false and  misleading information. See 49
C.F.R. s 1152.50(d)(3) (notice  of exemption void ab initio if it
contains false or misleading  information). Second, Jost argued that
the sale of full-width  right-of-way would cut the rail line in two,
making it impossi- ble to "rail bank" any part of the line, and
therefore making  interim trail use inappropriate. Third, Jost argued
that the  sale of portions of the line was additional evidence that
CKR  consummated abandonment of the line, and therefore the  Board
lost jurisdiction over the line, prior to issuance of the  NITU.


It appears that the sale of full-width right-of-way would be  material
to the Board's decision in all of these three areas.  On the first
issue, the Board argues in its brief that CKR's  notice of exemption
is not void because there was no material  false statement. The Board
relies on the fact that sale of the  right-of-way would not affect
CKR's ability to use the exemp- tion proceeding to abandon the line.
However, sale of full- width right-of-way certainly could affect CKR's
ability to  obtain a NITU and convey the line for interim trail use.
We  do not see--and the Board has not seen fit to tell us--why  false
statements that affect the issuance of a trail condition, if  not the
exemption itself, are not material to the proceeding.  At oral
argument, counsel for the Board also suggested that 


CKR may not have been under any obligation to inform the  Board that it
had sold off portions of the right-of-way once it  filed its notice of
exemption. Thus, it is possible that the  notice was not void ab
initio because at the moment it was  filed it did not contain any
material false statements, since  the right-of-way sold up to that
point was not "full-width,"  and did not bisect the line. However, we
are extremely  reluctant to accept that theory as a valid basis for
upholding  the Board's decision, particularly in the absence of any
evi- dence that the Board itself relied on such a theory. In the 
first place, it appears that five sales of right-of-way took place 
before the notice of exemption was filed, and the Board never 
addressed the significance of those sales to the feasibility of 
either conversion to trail use or eventual reinstitution of rail 
service.11 See J.A. 117-18. Perhaps more importantly, in the  absence
of a definitive statement by the Board that petition- ers are under no
obligation to supplement a filing which  becomes false or misleading
due to subsequent events, such  as the later sale of full-width
right-of-way, we do not think  counsel's statement at argument, that
no regulation specifical- ly requires updating information in the
notice of exemption, is  sufficient to demonstrate that the Board
takes such a parsi- monious and time-limited view of its own
regulations barring  false statements.12 Cf. 49 C.F.R s 1114.29 (party
engaged in  discovery in a Board proceeding "is under a duty
seasonably  to correct his response" if he "knows or later learns that
his  response [to a discovery request] is incorrect"). Since the 
Board never discussed the false statement issue in its deci- sion, we
cannot assume that any false statements CKR may  have made were not




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n 11 Since apparently none of these sales involved "full-width" right-
of-way, there might be good reason for the Board to find that the 
omission of these sales was not a material false statement, even as 
to the NITU. However, we are not willing to assume such a finding  in
the absence of any discussion by the Board of the question.


12 It is possible that such a limited view of what constitutes a false 
statement could itself be "arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law," but we have no 
occasion to decide that question here. 5 U.S.C. s 706(2)(A).


As to the second issue, the effect of right-of-way sales on  rail
banking, we do not read the Board's decision as saying  that, if
full-width right-of-way sales had taken place, that fact  would not be
material to its decision to impose a trail condi- tion. The Board
recognized that the parties were contesting  whether "CKR's [sales]
have made interim trail use and rail  banking impossible" and
indicated that if Jost's allegations  proved to be true, the Board
"would revisit the issues."  CKR--Abandonment Exemption, slip op. at
5. Again, we see  no reason, and the Board's decision gives us none,
why the  possibility that full-width sales occurred would not be
materi- al to the Board's decision to impose a trail condition.


Finally, we also think that the sale of right-of-way is  material
evidence for the Board to consider in deciding  whether CKR abandoned
the line prior to the issuance of the  NITU. We have previously
indicated that "the pivotal issue"  in determining whether a railroad
has consummated abandon- ment "is the intent of the railroad--as
evidenced by a spec- trum of facts varying as appropriate from case to
case." Birt  v. STB, 90 F.3d 580, 585 (D.C. Cir. 1996) (internal
quotation  marks omitted). In this case, the Board looked to CKR's 
discontinuance of service, its removal of rails, ties and ballast, 
its negotiations over interim trail use, and its ultimate state- ment
that it had conveyed the line for interim trail use. We  can see no
reason why the sale of portions of the right-of-way  would not also be
an appropriate fact for the Board to  consider in evaluating the
intentions of the railroad. It would  be strange, to say the least, if
the removal of rails, ties and  ballast were material facts, but the
sale of the entire right-of- way at a given point were not. Cf. RLTD
Ry. Corp. v. STB,  166 F.3d 808, 812 (6th Cir. 1999) (upholding
Board's conclu- sion that "a de facto abandonment occurred because the
line  was no longer linked to and part of the interstate rail 
system") (internal quotation marks omitted).


Since the possibility that CKR had sold off full-width right- of-way
was material to the issues before the Board, the Board  needed to
address forthrightly the issue of whether CKR did  sell off full-width
right-of-way, or, at least, explain why the  possibility that
full-width right-of-way was sold would not 


alter the Board's decision to issue a NITU. However, the  only
reference by the Board to any of these issues was the  passage quoted
at length above. Unfortunately, that passage  is entirely too opaque
to enable us to review meaningfully the  Board's decision.


It is possible to read the sentence which states that "CKR  has refuted
[Jost's] allegations" as a factual finding by the  Board, based on the
affidavits in the record, that CKR had  not sold full-width
right-of-way. In that case, we could  review the Board's finding to
determine whether it had  sufficient support in the record not to be
arbitrary and  capricious. However, in the very next sentence, the
Board  states that it "will not attempt to resolve all of the property
 issues that these filings raise," and suggests that the parties 
should resolve their differences in state court.13


The basis for an administrative action


must be set forth with such clarity as to be understanda- ble. It will
not do for a court to be compelled to guess at  the theory underlying
the agency's action; nor can a  court be expected to chisel that which
must be precise  from what the agency has left indecisive. In other 
words, [w]e must know what a decision means before the  duty becomes
ours to say whether it is right or wrong.


SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (internal  quotation
marks omitted).


In this case, we simply cannot tell what the decision means,  i.e., on
what basis the Board concluded that Jost's evidence of  the sale of
full-width right-of-way did not require reopening 




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n 13 The Board's brief similarly attempts to straddle these two 
approaches. In one place the brief states that "[t]he Board placed 
substantial weight on CKR's verified statement ... [and] concluded 
that petitioners had not proven that the conveyance of interests in 
certain lots ... makes reactivation of rail service impossible." 
Resp'ts' Br. at 13. Elsewhere the brief suggests that the Board 
"declined to speculate on the outcome of a [state court] quiet-title 
action," id. at 24, and "[p]roperly [d]eferred" to a state court 
determination. Id. at 23.


the proceeding. It appears unlikely that the Trails Act either 
requires the Board to determine for itself in every case the  validity
of the railroad's property rights, or allows the Board  to disregard
totally prima facie evidence that the railroad no  longer owned an
adequate right-of-way. Cf. Idaho N. & Pac.  R.R. Co.--Abandonment &
Discontinuance Exemption--In  Washington & Adams Counties, ID, Docket
No. AB-433  (Sub.-No. 2X) (April 1, 1998) ("Idaho Northern") ("[I]f a
trail  use arrangement is successfully negotiated, and a landowner  or
other interested party presents evidence to call into ques- tion the
continued application of the Trails Act, we would  reopen the
proceeding to afford the trail user an opportunity  to demonstrate
that it continues to meet the requirements of  the statute.").14 At
the same time, even if some full-width  right-of-way was sold, it may
be that the Act authorizes  interim trail use over the remaining
right-of-way, assuming  the Board retains jurisdiction over the line.
We would defer  to the Board's reasonable interpretation of what the
Act  requires, see Chevron U.S.A. Inc. v. Natural Resources De- fense
Council, Inc., 467 U.S. 837, 842-43 (1984), if we could  discern the
Board's interpretation in its decision.


Unfortunately, the Board's decision "cross[es] the line from  the
tolerably terse to the intolerably" elliptic. Greater Bos- ton
Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir.  1970). The
Board needs to articulate how it proceeds when  faced with an
allegation that sales of full-width right-of-way  have occurred, and
why it believes that practice is consistent  with statutory
requirements governing its jurisdiction and the 




__________

n 14 We do not hold that the Board is required to resolve disputed 
issues of state property law, or even that the Board is necessarily 
required to reopen the proceeding on the evidence presented by  Jost.
If the Board chooses to reopen the proceeding, it may be  appropriate
for the Board to stay proceedings pending action in a  state court.
Alternatively, the Board may choose to make its own  determination,
subject to revision upon notice of a final state court  judgment. We
only require that the Board address the material  issues of fact which
have been raised concerning the applicability of  the Trails Act in
whatever way the Board finds most consistent with  the language and
goals of the Act.


Trails Act. At that point, if petitioners are still dissatisfied,  this
court will have something to review.


If the Board was elliptic about why it need not consider  whether the
sales made rail banking impossible, it was mute  on why it need not
consider whether the sales made CKR's  notice of exemption void, or
constituted evidence of abandon- ment of the line. Again, we presume
neither to suggest a  rationale nor to find one in the tea leaves of
the Board's  opinion. We simply hold that the Board must articulate
the  reasoning behind its decision with sufficient clarity to enable 
petitioners and this court to understand the basis for its 


C. The Conservancy's Fitness to Serve as Trail Sponsor


The Board's treatment of Jost's challenge to its decision  not to
reopen the proceeding to examine the financial fitness  of the
Conservancy to serve as trail sponsor illustrates well  the Board's
ability to articulate the basis for its decision.  Jost's petition,
construed somewhat generously, challenged  both the Board's general
policy concerning financial "fitness  tests" and the application of
that policy to the Conservancy.  In rejecting Jost's challenge, the
Board clearly stated the  standard it was applying, the rationale for
that standard, and  why the petition did not satisfy that standard.


In its decision, the Board followed and restated the policy  with
regard to financial "fitness tests" that was explained in  Idaho
Northern. In Idaho Northern, the Board indicated  that it interpreted
the phrase "qualified private organization"  in section 1247(d) to
mean any organization willing to assume  management and financial
responsibility for the line in ques- tion. In this case, as in Idaho
Northern, the Board noted  that negotiation over a trail condition
delays abandonment of  a line, and extends the railroad's
responsibility for the right- of-way. Accordingly, "the primary
purpose of a fitness test  would be to protect a railroad from wasting
its time negotiat- ing with an unfit trail sponsor. However, the
railroad al- ready has the ability to protect itself from that result
merely  by refusing to consent to the issuance of the trail
condition."  CKR--Abandonment Exemption, slip op. at 4; see also Idaho


Northern (employing similar reasoning and noting that ten  years of
experience with the Act had not shown any problem  with trail sponsors
failing to meet their responsibilities). The  Board stated that not
only was a financial fitness test for trail  sponsors unnecessary, but
such a test would be contrary to  the intent behind the Trails Act
because it could have the  effect of deterring or delaying interim
trail use.


For these reasons, the Board applies a presumption that  any private
organization that files a statement of willingness  meets the
statutory requirement to be a trail sponsor. How- ever, the Board's
presumption that a trail sponsor is qualified  is rebuttable. The
Board has indicated that "if it is shown  that the trail sponsor does
not have the ability to continue to  meet the financial and liability
conditions of the statute, the  trail condition would be involuntarily
revoked." CKR--Aban- donment Exemption, slip op. at 4-5.


Jost characterizes this policy as an abdication of the  Board's
statutory responsibilities. We disagree and conclude  that the Board's
policy is a reasonable interpretation of its  obligation under the
statute. There certainly is nothing in  the statute which expresses a
congressional intent contrary to  the Board's practices. Cf. Chevron,
467 U.S. at 842-43  ("[T]he court, as well as the agency, must give
effect to the  unambiguously expressed intent of Congress."). The
Trails  Act is virtually silent on what makes a private organization 
"qualified" to be a trail sponsor. The Act is clear, however,  that
the Board "shall" impose a trail condition, and not permit 
abandonment of a line, whenever a railroad is prepared to  convey the
right-of-way to an organization that is "prepared  to assume full
responsibility" for management of the line, for  liability, and for
taxes owed. 42 U.S.C. s 1247(d) (Supp. III  1998); see also Goos v.
ICC, 911 F.2d 1283, 1295 (8th Cir.  1990) (statute gives agency
"little, if any, discretion to fore- stall a voluntary agreement to
effect a conversion to trail  use"). It is certainly reasonable for
the Board to draw from  the Act a congressional intent "to preserve
for possible future  railroad use rights-of-way not currently in
service and to  allow interim use of the land as recreation trails,"
Preseault,  494 U.S. at 6, and to carry out its mandate in ways that


further, rather than unnecessarily hinder, those goals. The  Board's
explanation of why a presumption of fitness is consis- tent with the
goals of the Act is reasonable. See CKR-- Abandonment Exemption, slip
op. at 4 ("A railroad presum- ably would not agree to negotiate with a
prospective trail  sponsor unless the railroad believes the trail
sponsor will be  able to manage the right-of-way and assume legal
liability and  pay taxes. ... Pending an agreement with the proponent
of  any interim trail, or the consummation of the abandonment,  the
right-of-way remains the responsibility of the railroad.  Thus, the
carrier is the most appropriate party to determine  whether any offer
is likely to prove successful both in meeting  the railroad's desires
and in fulfilling the statutory and regu- latory liability
requirements of the Trails Act. Requiring the  proponent of a trail
... to pass a fitness test whenever the  Board issues a trail
condition could deter or delay interim  trail use, which would be
contrary to Congress' intent to  facilitate and encourage rail banking
and interim trail use  ....") (citation omitted). In short, we believe
the Board's  use of a rebuttable presumption in these circumstances is
a  reasonable interpretation of the Trails Act, and, therefore, we 
will not overturn it.15 See Chevron, 467 U.S. at 845.


Having found the Board's policy to be reasonable under the  statute,
the next question is whether the Board's application  of that policy
in this case was arbitrary and capricious. See 5  U.S.C. s 706(2)(A).
Jost argues that he presented sufficient  information to rebut the
presumption that the Conservancy  was capable of meeting its
responsibilities as trail sponsor.  The information Jost presented was
that three local govern- ments had expressed their opposition to
interim trail use, and  also that Kansas state law would impose
substantial responsi- bilities on a trail sponsor, such as weed and
litter control, and  the installation of signs and fencing.


The Board found that "there has been no specific showing  here that the
trail sponsor has not met, or likely will not be  able to meet, its
financial obligations regarding this trail."  CKR--Abandonment
Exemption, slip op. at 5. The Board 




__________

n 15 Similarly, we see nothing in the Trails Act that requires the 
Board to license petitioners to engage in discovery of the financial 
fitness of potential trail sponsors.


stated that "the Trails Act does not require a trail to be  'developed'
in any particular way" and "there is no absolute  time limit for how
quickly a trail must be developed to its  intended level of use."


We see no basis for finding that this conclusion was arbi- trary or
capricious. Jost offered nothing but speculation that  the Conservancy
would be unable to meet its responsibilities.  The Conservancy never
indicated to the Board that it was  relying on local governments for
funding, so it is not clear  why their opposition should raise any
inference that the  Conservancy could not raise needed funds. In the
absence of  any real evidence that the Conservancy was failing to
meet,  or would fail to meet, its responsibilities, there is no reason
to  believe that the presumption of financial fitness had been 
rebutted. Accordingly, we will uphold the Board's decision  not to
examine the Conservancy's fitness to be a trail sponsor.


III. Conclusion


We conclude that the Board's decision not to reopen the  proceeding to
examine Central Kansas Conservancy's fitness  to be a trail sponsor
was not arbitrary and capricious. How- ever, because we are unable to
discern the basis for the  Board's decision that it was unnecessary to
reopen the pro- ceeding to consider Central Kansas Railway's
right-of-way  sales, we remand this case to the Board for further
proceed- ings consistent with this opinion.


So ordered.