970424.docx

MEMORANDUM
TO:RON LAW, REGULATED CARRIER DIVISION
FROM:BRAD PURDY
DATE:APRIL 24, 1997
RE:MOSCOW-ARROW RAIL LINE
You asked that I review the inquiry from Mr. Paul Kenna regarding the abandonment of the Arrow Branch and the possibility that the state of Idaho may somehow initiate a legal process to stop the salvaging of that particular branch which has just begun.  My response is, of course, limited to whatever authority the Idaho Public Utilities Commission may have.  The only statute in the Idaho Code pertaining to the abandonment of rail lines is Idaho Code § 62-424, which provides:
62-424.  Hearing on abandonment.—Whenever any railroad proposes to abandon any branch line or main line now in operation within the state of Idaho, the railroad shall file notice of the intended abandonment with the public utilities commission.  Not less than ninety (90) days after such notice, the public utilities commission shall schedule a public hearing on the proposed abandonment.  If the hearing results in a finding by the commission that the abandonment of the branch line or main line would adversely affect the area then being served and that there is reason to believe that the closure would impair the access of Idaho communities to vital goods and services and market access to those communities and that the line has potential for profitability, then the public utilities commission shall transmit a report of its findings to the interstate commerce commission on behalf of the people of the state of Idaho.
As is clear from the statute, the Interstate Commerce Commission (now the Surface Transportation Board) is the governmental agency with sole authority regarding the abandonment of rail lines.  The only involvement that the Idaho Public Utilities Commission has in these matters is the preparation of a report which it submits to the Surface Transportation Board in the event that the Commission finds that the abandonment of the line in question would adversely affect the area being served and that there is reason to believe that the closure would impair the access of Idaho communities to vital goods and services and market access to those communities and that the line has potential for profitability.  In fact, the Idaho Public Utilities Commission did submit such a report to the Surface Transportation Board, then the Interstate Commerce Commission, protesting the abandonment of the Arrow Branch.  Nonetheless, the ICC issued an Order granting Burlington Northern’s request to abandon that branch.  Thus, the Commission has already exhausted its only opportunity for having an effect on whether the Arrow Branch is abandoned.  While the state of Idaho, through other agencies, may or may not have the legal authority to obtain an injunction prohibiting the removal of the Arrow Branch, it is my opinion that, the Idaho Public Utilities Commission does not.
Regarding paragraph No. 5 of Mr. Kenna’s letter, I see no reason why the fact that the Arrow Branch has been sold to another railroad would somehow authorize this Commission to seek and obtain an injunction prohibiting the removal of the track.  Again, the Commission never has such authority.  It would appear that this is a matter that should be brought to the attention of the Surface Transportation Board.
This is not a formal opinion of the Attorney General.
Brad Purdy
vld/M:Law.bp