Time Out: Getting ready for Spherical 9


Written by

David Peter Alan, Contributing Editor

image description

The battle over Amtrak’s proposal to run two day by day spherical journeys between Cellular and New Orleans is way from over. It’s about to warmth up once more after a two-month lull, however the STB introduced on July 11 that the relative calm (at the least so far as the general public will discover) will final a bit of longer.

The company has knowledgeable Railway Age that it has not but been decided when the proceedings will resume. The reason being an ongoing skirmish over discovery that Amtrak wants, the host railroads don’t need to furnish, and Board Chair Martin J. Oberman needs Amtrak to have, within the hope of settling the long-standing dispute. 

Simply when it regarded like Spherical 9 would start on Wednesday, July 13, the choice was introduced that prolonged the date for at the least two weeks. The 2-paragraph ruling mentioned in pertinent half: “The present deadline for the Events to file any supplemental proof is July 13, 2022. The Board is contemplating excellent discovery requests raised in Amtrak’s pending movement to compel, in addition to sure different excellent issues on this continuing,” and “Due to these excellent issues nonetheless below Board consideration, the deadline for submitting any supplemental proof will likely be prolonged to July 27, 2022.” 

Potential host railroads CSX (between the endpoints) and Norfolk Southern (in New Orleans) have been combating arduous towards permitting the brand new passenger trains on their strains until they’re given infrastructure enhancements on a scale that Amtrak says shouldn’t be mandatory for the proposed service. The Port of Cellular later joined the case on CSX’s and NS’s aspect. The latest section of the battle concluded on Might 12, the 11th day of the trial earlier than the Board. On the finish of the proceedings, Oberman expressed his dissatisfaction with the way in which each side had offered their circumstances and, particularly with the ignorance that might help the Board in deciding how a lot infrastructure must be constructed to accommodate the passenger trains with out unreasonably interfering with freight service. In a Might 17 resolution, the Board despatched the events again to collect and current extra proof, and to start out mediation.

Railway Age has been offering complete protection of the battle, with each information tales and commentaries concerning the trial (all linked beneath), hearings, briefs and different filings, and numerous points related with the matter. We had deliberate to deliver you protection of Spherical 9 as quickly as the brand new proof is offered, however each side have been combating over how a lot info in CSX’s and NS’s possession Amtrak needs to be allowed to see. As a result of these discovery points haven’t but been settled, the deadline was prolonged.

On Might 17, the Board ordered that the evidentiary report for the upcoming hearings can be open till June 13. There have been three extra procedural choices after that one, and earlier than the most-recent. Amtrak then requested for added discovery, together with some info from CSX and NS about their practice actions within the space below overview. That included permitting sure Amtrak staff to view the data on a confidential foundation (Amtrak requested that its safety classification be lowered from “extremely confidential” to “confidential” for the aim, or that the staff be allowed to see it anyway). Amtrak additionally requested for extra info regarding the RTC (Rail Visitors Controller) mannequin used to simulate site visitors on the road at subject, which was generated for the railroads by Mark Dingler, and which he talked about when he was a witness at trial. Amtrak additionally needed solutions to sure objects in supplemental interrogatories that it had served on the opposing events. An interrogatory is a discovery gadget consisting of particular questions {that a} celebration asks its adversaries, and it could actually additionally embrace requests for paperwork or different info. The Might 26 procedural order required responses to Amtrak’s motions by Might 31, with a purpose to maintain the June 13 listening to date that had been scheduled beforehand.

The Board determined Amtrak’s motions in a substantive five-page resolution on June 10. Whereas all choices and papers filed within the case may be discovered on the STB’s web site, www.stb.gov, below the docket quantity FD-36496, the Digest (which isn’t formally thought of a part of the choice itself) summarized it this fashion: “This resolution modifies the protecting order on this continuing to permit sure Amtrak in-house personnel to entry sure supplies designated as ‘extremely confidential.’ The Board additionally orders Board-sponsored mediation and extends the deadline for submitting supplemental proof by 30 days, till July 13, 2022.”

The July 1 resolution handled a June 24 joint standing report filed by CSX and NS. It mentioned that they have been holding talks with Amtrak in an effort to resolve the invention dispute, and that they have been giving paperwork and knowledge to Amtrak. The Board additionally directed the events to submit a joint standing report (or separate standing experiences, if they didn’t submit a joint report) by July 6. 

Earlier than any standing experiences have been filed, CSX and NS opposed Amtrak’s motions. Of their letter of June 22, they submitted further factual info, which was redacted from the “public” model. Additionally they argued that settlement negotiations are usually not admissible as proof below Rule 408 of the Federal Guidelines of Proof. They went on to argue that “An Neutral Decide Might Not Draw or Depend on Information From Supplies Not in Proof” after which talked about “press experiences.” The remainder of the argument was redacted, so we don’t know the particular substance of it. The Port of Cellular replied in a letter dated June 29, agreeing with the positions that CSX and NS had taken.

The opposite events filed separate standing report on July 6, as directed. Amtrak mentioned they may not agree on a joint standing report, however all of them indicated that there had been talks concerning the invention points in query, and every talked about points that remained unresolved. 

NS continued to object to Amtrak’s request for sure details about the RTC modeling at subject, arguing: “Amtrak’s efforts to acquire RTC research and workpapers that assist evaluation that was not submitted into proof violates the work product doctrine.” NS additionally mentioned: “NS agreed to supply sure info to Amtrak that typically falls into three buckets: (1) info that might permit Amtrak to view some operational metrics on chosen different segments on the NS that host Amtrak (‘Operational Metrics’); (2) sure Operational Metrics info to extent NS maintains it within the abnormal course of enterprise associated to NS divisions which have Amtrak service; and (3) development prices for analogous infrastructure enhancements (‘Capital Undertaking Prices’).” As well as, NS claimed that “regardless of having no obligation to take action, NS undertook a particular undertaking to create Operational Metrics info for six NS segments the place Amtrak additionally operates over an NS line to permit Amtrak to carry out an evaluation of those segments.” 

Later in its doc, NS made this assertion: “Amtrak has all the info it must carry out no matter research or evaluation it requires. NS shouldn’t should carry out one more particular examine of the Gulf Coast Hall utilizing the methodology and metrics most well-liked by Amtrak when Amtrak might have carried out its personal examine at any time throughout this continuing. As a result of Amtrak has the data it wants and NS has voluntarily supplied the data requested apart from pace on the Again Belt, the Board ought to deny any request by Amtrak asking the Board to compel NS to supply much more knowledge and for NS to additional examine of the Gulf Coast Hall.”

New Orleans rail community. OpenRailway Map.org

CSX’s doc was much like the one which NS filed. It described intimately the data that Amtrak needed, opposed Amtrak’s Movement to Compel, and claimed that it had supplied “substantial knowledge” to Amtrak. CSX provided knowledge and timetables on operational metrics for 51 subdivisions the place Amtrak operates on its strains. The theme of CSX’s report was that it had supplied knowledge to Amtrak, however there have been nonetheless discovery points that had not been resolved. CSX additionally argued that giving Amtrak the data it had requested that was obtained by Mark Dingler for his RTC research would give Amtrak an “unfair benefit by allowing them to preview CSXT and NS’s authorized technique after objecting to the introduction of supplemental RTC evaluation throughout the listening to.” On different points, CSX claimed that it had responded to one among Amtrak’s requests with knowledge about buyer impacts if Amtrak operates the passenger trains in query, however {that a} particular examine “of historic customer support efficiency to Gulf Coast clients from 2019 via 2022” can be inappropriate.

Cellular Rail Community. OpenRailwayMap.org

Amtrak started its standing report by telling its aspect of the story of the evidentiary dispute: After the conclusion of the earlier portion of the trial, “Amtrak shortly decided that it required further info from CSX and NS to deal with objects recognized by the Board. In consequence, on Might 17, 2022, Amtrak propounded supplemental interrogatories to CSX and NS. Slightly than partaking with Amtrak on these supplemental interrogatories, CSX and NS said that they’d not reply to the interrogatories in any respect. Left with no alternative, Amtrak promptly filed a movement to compel” (at 1).

Relating to (1) Info that Would Permit the Board to Evaluate Efficiency on Different Traces, Amtrak mentioned CSX has been cooperative: “Amtrak appreciates that CSX labored with Amtrak in good religion to succeed in a compromise and doesn’t search Board intervention with respect to the CSX manufacturing” however criticized NS for refusing to offer requested info: “NS knowledgeable Amtrak that it might not be capable of reply the subparts of Interrogatory 3 asking for common minutes of freight practice delay per 100 miles, common freight practice pace, and common variety of recrews for these six segments in a fashion that might permit comparability to what was reported within the 2021 RTC examine. NS said that it might present solely common freight practice pace info for these six segments, and that common pace can be calculated in a unique methodology than that used within the RTC examine.” Amtrak particularly requested for “common pace info for the Again Belt that’s calculated in the identical approach NS calculated pace for the six segments addressed in its supplemental manufacturing” or, within the different, that the Board make an adversarial inference if NS doesn’t furnish Amtrak with that info.

Regarding (2) Info that Would Permit the Board to Decide Impacts to Prospects, Amtrak complained that CSX didn’t present helpful info on the impacts to freight clients with the passenger trains added to current freight service. Amtrak claimed that CSX mentioned that making ready such info would require a “particular examine” (at 4), so “Amtrak requests that the Board bar CSX from providing, citing, or in any other case counting on any new knowledge or details about how restoration of Amtrak’s Gulf Coast service will affect clients on the Gulf Coast line, on condition that CSX has not produced customer support proof to Amtrak.”  

With respect to (3) Info on Capital Enchancment Prices, Amtrak complained that CSX furnished details about capital prices as to 5 undertaking classes, together with bridges, however “CSX designated this info extremely confidential and mentioned it couldn’t be shared with Amtrak inner personnel” (at 5). Amtrak additionally mentioned it was not happy with NS’s response, however was not looking for Board intervention at the moment.

Amtrak additionally renewed its request for info compiled by Mark Dingler about RTC modeling on the strains at subject, saying: “In consequence, there isn’t any foundation to withhold these analyses, aside from to preclude Amtrak from scrutinizing and addressing them in its supplemental submitting. Amtrak requests that the Board both order CSX and NS to offer these supplies to Amtrak or bar CSX and NS from counting on them” (at 6, emphasis in unique).

The Board had additionally ordered mediation, however there was no report regarding how a lot progress the hassle has made towards resolving the dispute. This isn’t uncommon, as a result of mediation is a closed-door course of, there are seldom any substantive experiences regarding it, until the mediation effort produces a settlement, or the events and the mediator(s) resolve to surrender. Given the ferocity with which the events are combating over how a lot info CSX and NS ought to furnish to Amtrak, it seems extremely unlikely that the continued mediation effort can produce a settlement, particularly since mediation is a non-binding course of.

In the course of the ongoing hiatus within the trial, there have been two very completely different feedback filed with the Board. The American Chemistry Council commented by letter dated June 29, calling on the Board to make sure that sufficient infrastructure is added, particularly in and across the New Orleans Gateway, to maintain up the standard of freight service for the affiliation’s members within the chemical business. 

The opposite remark, consisting of a single-page letter, got here from Lora Anne Lucero, a “retired senior” type Albuquerque. She expressed her concern about local weather change and talked about her experiences touring abroad, the place passenger rail service is healthier than it’s right here. She additionally mentioned: “Amtrak’s community right this moment is smaller than it was in 1971 regardless of 120 million extra folks on this nation. The present software into consideration by the STB to extend passenger rail service on the Gulf Coast represents an essential bellwether for the way forward for passenger rail service in the USA. With the current bipartisan assist for $75 billion earmarked for growth of passenger rail service, we’ve got an exquisite alternative to reinvigorate rail ridership.” She proposed re-framing the problem earlier than the Board this fashion: “How can the U.S. present each freight and passenger rail service in an equitable and environment friendly method for all events? The false competitors between freight and passenger rail service is a twentieth century relic. Within the twenty first century, new challenges resembling local weather change and a rising inhabitants require new considering. We most actually can discover a answer to assist the wants of freight and passenger rail service.”

Thus the 2 above-mentioned feedback seem to state each side of the problem within the current case, in addition to many extra that can actually observe it. We could have extra to report as developments happen, together with how the STB meets the problem posed to them by the “retired senior” from Albuquerque.  

Additional Studying:

Subsequent Step in Gulf Coast Case: Mediation

Gulf Coast Battle, Rounds 7-8

Gulf Coast Battle: An Interim Report

Spherical 6: The Port Raises a Statutory Problem

Spherical 5: A Skirmish Over a Mannequin

Has the Railroads’ ‘Get Up and Go’ Spirit ‘Bought Up and Gone’?

Spherical 4: A Battle Inside a Battle

Spherical 3: Elevating Authorized Points in a Case of First Impression

Spherical 2 Over, Spherical 3 Beneath Means

STB Slug-Out: Amtrak vs. CSX, Spherical 1

Gulf Coast Battle: CSX Seeks Shipper Assist; Amtrak Advocates Reply

STB Units Gulf Coast Listening to, However Amtrak Loses Pre-Listening to Spherical


Supply hyperlink