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.. 03/26/99 11:26 RYAN COMPANIES ~ 6124902931 817 352 2397 M\ r. 25. 1999 4: 38PM BNSF LEGAL NO.566 P004/004 No. 7373 P. 3/3 condition. the sale may pro<<ed without speciaJ dispensation from the Board or otherwise waiting to clos~ Wltil July 29. 1999. The Board draws distinctions between right-of-way used in current freight operations and surplus right-ot-way. See, e.g., Los Angeles Counry Transp. Comm'n - Petition for Exemption - Acquisition and Trackage Rights Exemplionfrom Union Pac. RR., Finance Docket Nos. 32374 and 32375, 1996 (sJip op.) STB LEXIS 205. p. 2. served Jul. 23, 1996 (referencing non-jurisdi~onal "surplus" right-of-way); Soulhern Pac. Tramp. Co. - Abandonment E%emprion - Lo.f Angeles County, CA., Docket No. AB-12 (Sub-No. 139X). 9 I.C.C.2d 385. 1993 ICe LEXIS 29, p. 11, served Feb. 25, 1993 ("We have never asserted jurisdiction over the ability of railroads to allow nOD-carri~.. .on their excess real estate when fegulated rail service will not be affeetcd 1betcby. to) Moreover. the Board routinely declines to assert jurisdiction over the transfer of right-of-way or other fixed assets when the railroad retains a permanen~ unconditional easement to perform an of the common carrier freight operations over its line. Southwest Ohio RegiCJnal Transit A.uThority - Acquisition Exemption - Cerlai" AnelJ of the indiana & Ohio Ry" Finanee Docket No. 33524 (slip op.), 1997 sm LEXIS 328, p. S, served Dec. 24, )997 (citations omitted). Final1y, the Board's own order served December 28, 1999, specifically provided that BNSf shov.ld "leave in tact aU of the right-of-way IUJderlying the InIcM. intluding bridges, trestles. culverts and tunnels (but not track ties and signal equipment), for a period of 180 days from the December 30, 1998 effective date of the abandonment exemption. .. .. 1he pro1)Crty at issue is a substantial distance from the tracks, and certainly cannot be considered property ''underlying me tracks." In sum, the STB' s own precedent distinguishes between property critical to freight operations and surplus property. Historically, the Board has declined to assume jurisdiction over private transfers not affecting rail operations, and thus logically would not assume such jurisdiction in an ahandonment proceediag. Finally, the Board's own order clearly and specifically identifies the properties subject to the public use condition, Since the properties to be transferred to Triangle Warehouse do not u",derh~ the tracks> nor do they approach a reasonably close distance to the transportation canidar reasona.bly necessary for freight operations. they are not subject to the public use condition, nor are they suhject to the STB' s jurisdiction in the pending proceedings. After you have had a chance to review this infonnation, I would like to discuss it with you. A5 explained. we are extremely interested in avoiding further delay. Sincerely, ~B~~ Cc: Ms. Ethel AHen Steele ';7}5AC\