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HOWARD v. SURFACE TRANSP. BD.

Nos. 04-1800, 04-1819.

389 F.3d 259 (2004)

James E. HOWARD, Chapter 11 Trustee of Bangor and Aroostook Railroad Company and Van Buren Bridge Company, Petitioner, v. SURFACE TRANSPORTATION BOARD and United States of America, Respondents. James E. Howard, Chapter 11 Trustee of Bangor and Aroostook Railroad Company and Van Buren Bridge Company, Plaintiff, Appellant, v. Canadian National Railway Company and Waterloo Railway Company, Defendants, Appellees.

United States Court of Appeals, First Circuit.

Decided November 24, 2004.

Attorney(s) appearing for the Case

Thomas M. Reiter, with whom Rory FitzPatrick, Steven P. Wright, Kirkpatrick & Lockhart, LLP, Roger A. Clement, Jr., Andrew R. Sarapas, and Verrill & Dana, LLP, were on brief, for appellant and petitioner.

William C. Sippel, with whom Thomas J. Litwiler, Fletcher & Sippel, LLC, George J. Marcus, and Marcus, Clegg & Mistretta, P.A., were on brief, for appellees Canadian National Railway Company and Waterloo Railway Company.

Alice C. Saylor, Attorney, Surface Transportation Board, Ellen D. Hanson, General Counsel, Craig M. Keats, Deputy General Counsel, R. Hewitt Pate, Assistant Attorney General, Department of Justice, Makan Delrahim, Deputy Assistant Attorney General, Robert B. Nicholson, Attorney, and John P. Fonte, Attorney, were on brief for respondents Surface Transportation Board and United States of America.

Charles A. Spitulnik, Alex Menendez, and McLeod, Watkinson & Miller were on brief for Fraser Papers Limited, intervenor.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

These consolidated appeals present the issue of law of whether the term "abandonment" in section 1170 of the Bankruptcy Code gives the bankruptcy courts the power to adversely abandon a non-debtor railroad's easement and trackage rights over rail lines owned by the debtor at the time of the bankruptcy. This appears to be an issue of first impression in the courts of appeals.

Section 1170, which resulted from the 1978 Bankruptcy Code Amendments...

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