Time Out: Preparing for Round 9

Written by David Peter Alan, Contributing Editor
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The battle over Amtrak’s proposal to run two daily round trips between Mobile and New Orleans is far from over. It is about to heat up again after a two-month lull, but the STB announced on July 11 that the relative calm (at least as far as the public will notice) will last a little longer.

The agency has informed Railway Age that it has not yet been determined when the proceedings will resume. The reason is an ongoing skirmish over discovery that Amtrak needs, the host railroads don’t want to furnish, and Board Chair Martin J. Oberman wants Amtrak to have, in the hope of settling the long-standing dispute. 

Just when it looked like Round 9 would begin on Wednesday, July 13, the decision was announced that extended the date for at least two weeks. The two-paragraph ruling said in pertinent part: “The current deadline for the Parties to file any supplemental evidence is July 13, 2022. The Board is considering outstanding discovery requests raised in Amtrak’s pending motion to compel, as well as certain other outstanding matters in this proceeding,” and “Because of those outstanding matters still under Board consideration, the deadline for filing any supplemental evidence will be extended to July 27, 2022.” 

Prospective host railroads CSX (between the endpoints) and Norfolk Southern (in New Orleans) have been fighting hard against allowing the new passenger trains on their lines unless they are given infrastructure improvements on a scale that Amtrak says is not necessary for the proposed service. The Port of Mobile later joined the case on CSX’s and NS’s side. The most recent phase of the battle concluded on May 12, the 11th day of the trial before the Board. At the end of the proceedings, Oberman expressed his dissatisfaction with the way both sides had presented their cases and, especially with the lack of information that would aid the Board in deciding how much infrastructure would have to be built to accommodate the passenger trains without unreasonably interfering with freight service. In a May 17 decision, the Board sent the parties back to gather and present more evidence, and to start mediation.

Railway Age has been providing comprehensive coverage of the battle, with both news stories and commentaries about the trial (all linked below), hearings, briefs and other filings, and various issues connected with the matter. We had planned to bring you coverage of Round 9 as soon as the new evidence is presented, but both sides have been fighting over how much information in CSX’s and NS’s possession Amtrak should be allowed to see. Because these discovery issues have not yet been settled, the deadline was extended.

On May 17, the Board ordered that the evidentiary record for the upcoming hearings would be open until June 13. There were three more procedural decisions after that one, and before the most-recent. Amtrak then asked for additional discovery, including some information from CSX and NS about their train movements in the area under review. That included allowing certain Amtrak employees to view the information on a confidential basis (Amtrak requested that its security classification be lowered from “highly confidential” to “confidential” for the purpose, or that the employees be allowed to see it anyway). Amtrak also asked for more information concerning the RTC (Rail Traffic Controller) model used to simulate traffic on the line at issue, which was generated for the railroads by Mark Dingler, and which he mentioned when he was a witness at trial. Amtrak also wanted answers to certain items in supplemental interrogatories that it had served on the opposing parties. An interrogatory is a discovery device consisting of specific questions that a party asks its adversaries, and it can also include requests for documents or other information. The May 26 procedural order required responses to Amtrak’s motions by May 31, in order to keep the June 13 hearing date that had been scheduled previously.

The Board decided Amtrak’s motions in a substantive five-page decision on June 10. While all decisions and papers filed in the case can be found on the STB’s website, www.stb.gov, under the docket number FD-36496, the Digest (which is not officially considered part of the decision itself) summarized it this way: “This decision modifies the protective order in this proceeding to allow certain Amtrak in-house personnel to access certain materials designated as ‘highly confidential.’ The Board also orders Board-sponsored mediation and extends the deadline for filing supplemental evidence by 30 days, until July 13, 2022.”

The July 1 decision dealt with a June 24 joint status report filed by CSX and NS. It said that they were holding talks with Amtrak in an effort to resolve the discovery dispute, and that they were giving documents and information to Amtrak. The Board also directed the parties to submit a joint status report (or separate status reports, if they did not submit a joint report) by July 6. 

Before any status reports were filed, CSX and NS opposed Amtrak’s motions. In their letter of June 22, they submitted additional factual information, which was redacted from the “public” version. They also argued that settlement negotiations are not admissible as evidence under Rule 408 of the Federal Rules of Evidence. They went on to argue that “An Impartial Judge May Not Draw or Rely on Facts From Materials Not in Evidence” and then mentioned “press reports.” The rest of the argument was redacted, so we don’t know the specific substance of it. The Port of Mobile replied in a letter dated June 29, agreeing with the positions that CSX and NS had taken.

The other parties filed separate status report on July 6, as directed. Amtrak said they could not agree on a joint status report, but all of them indicated that there had been talks regarding the discovery issues in question, and each mentioned issues that remained unresolved. 

NS continued to object to Amtrak’s request for certain information about the RTC modeling at issue, arguing: “Amtrak’s efforts to obtain RTC studies and workpapers that support analysis that was not submitted into evidence violates the work product doctrine.” NS also said: “NS agreed to produce certain information to Amtrak that generally falls into three buckets: (1) information that would allow Amtrak to view some operational metrics on selected other segments on the NS that host Amtrak (‘Operational Metrics’); (2) certain Operational Metrics information to extent NS maintains it in the ordinary course of business related to NS divisions that have Amtrak service; and (3) construction costs for analogous infrastructure improvements (‘Capital Project Costs’).” In addition, NS claimed that “despite having no obligation to do so, NS undertook a special project to create Operational Metrics information for six NS segments where Amtrak also operates over an NS line to allow Amtrak to perform an analysis of these segments.” 

Later in its document, NS made this statement: “Amtrak has all the data it needs to perform whatever studies or analysis it requires. NS should not have to perform yet another special study of the Gulf Coast Corridor using the methodology and metrics preferred by Amtrak when Amtrak could have performed its own study at any time during this proceeding. Because Amtrak has the information it needs and NS has voluntarily provided the information requested except for speed on the Back Belt, the Board should deny any request by Amtrak asking the Board to compel NS to produce even more data and for NS to further study of the Gulf Coast Corridor.”

New Orleans rail network. OpenRailway Map.org

CSX’s document was similar to the one that NS filed. It described in detail the information that Amtrak wanted, opposed Amtrak’s Motion to Compel, and claimed that it had provided “substantial data” to Amtrak. CSX offered data and timetables on operational metrics for 51 subdivisions where Amtrak operates on its lines. The theme of CSX’s report was that it had provided data to Amtrak, but there were still discovery issues that had not been resolved. CSX also argued that giving Amtrak the information it had requested that was obtained by Mark Dingler for his RTC studies would give Amtrak an “unfair advantage by permitting them to preview CSXT and NS’s legal strategy after objecting to the introduction of supplemental RTC analysis during the hearing.” On other issues, CSX claimed that it had responded to one of Amtrak’s requests with data about customer impacts if Amtrak operates the passenger trains in question, but that a special study “of historical customer service performance to Gulf Coast customers from 2019 through 2022” would be inappropriate.

Mobile Rail Network. OpenRailwayMap.org

Amtrak began its status report by telling its side of the story of the evidentiary dispute: After the conclusion of the previous portion of the trial, “Amtrak quickly determined that it required additional information from CSX and NS to address items identified by the Board. As a result, on May 17, 2022, Amtrak propounded supplemental interrogatories to CSX and NS. Rather than engaging with Amtrak on those supplemental interrogatories, CSX and NS stated that they would not respond to the interrogatories at all. Left with no choice, Amtrak promptly filed a motion to compel” (at 1).

Regarding (1) Information that Would Allow the Board to Compare Performance on Other Lines, Amtrak said CSX has been cooperative: “Amtrak appreciates that CSX worked with Amtrak in good faith to reach a compromise and does not seek Board intervention with respect to the CSX production” but criticized NS for refusing to provide requested information: “NS informed Amtrak that it would not be able to answer the subparts of Interrogatory 3 asking for average minutes of freight train delay per 100 miles, average freight train speed, and average number of recrews for these six segments in a manner that would allow comparison to what was reported in the 2021 RTC study. NS stated that it would provide only average freight train speed information for these six segments, and that average speed would be calculated in a different method than that used in the RTC study.” Amtrak specifically asked for “average speed information for the Back Belt that is calculated in the same way NS calculated speed for the six segments addressed in its supplemental production” or, in the alternative, that the Board make an adverse inference if NS does not furnish Amtrak with that information.

Concerning (2) Information that Would Allow the Board to Determine Impacts to Customers, Amtrak complained that CSX did not provide useful information on the impacts to freight customers with the passenger trains added to existing freight service. Amtrak claimed that CSX said that preparing such information would require a “special study” (at 4), so “Amtrak requests that the Board bar CSX from offering, citing, or otherwise relying on any new data or information about how restoration of Amtrak’s Gulf Coast service will impact customers on the Gulf Coast line, given that CSX has not produced customer service evidence to Amtrak.”  

With respect to (3) Information on Capital Improvement Costs, Amtrak complained that CSX furnished information about capital costs as to five project categories, including bridges, but “CSX designated this information highly confidential and said it could not be shared with Amtrak internal personnel” (at 5). Amtrak also said it was not satisfied with NS’s response, but was not seeking Board intervention at this time.

Amtrak also renewed its request for information compiled by Mark Dingler about RTC modeling on the lines at issue, saying: “As a result, there is no basis to withhold those analyses, other than to preclude Amtrak from scrutinizing and addressing them in its supplemental filing. Amtrak requests that the Board either order CSX and NS to provide these materials to Amtrak or bar CSX and NS from relying on them” (at 6, emphasis in original).

The Board had also ordered mediation, but there has been no report concerning how much progress the effort has made toward resolving the dispute. This is not unusual, because mediation is a closed-door process, there are seldom any substantive reports concerning it, unless the mediation effort produces a settlement, or the parties and the mediator(s) decide to give up. Given the ferocity with which the parties are fighting over how much information CSX and NS should furnish to Amtrak, it appears highly unlikely that the ongoing mediation effort can produce a settlement, especially since mediation is a non-binding process.

During the ongoing hiatus in the trial, there were two very different comments filed with the Board. The American Chemistry Council commented by letter dated June 29, calling on the Board to ensure that enough infrastructure is added, especially in and around the New Orleans Gateway, to keep up the quality of freight service for the association’s members in the chemical industry. 

The other comment, consisting of a single-page letter, came from Lora Anne Lucero, a “retired senior” form Albuquerque. She expressed her concern about climate change and mentioned her experiences traveling overseas, where passenger rail service is better than it is here. She also said: “Amtrak’s network today is smaller than it was in 1971 despite 120 million more people in this country. The current application under consideration by the STB to increase passenger rail service on the Gulf Coast represents an important bellwether for the future of passenger rail service in the United States. With the recent bipartisan support for $75 billion earmarked for expansion of passenger rail service, we have a wonderful opportunity to reinvigorate rail ridership.” She proposed re-framing the issue before the Board this way: “How can the U.S. provide both freight and passenger rail service in an equitable and efficient manner for all parties? The false competition between freight and passenger rail service is a 20th century relic. In the 21st century, new challenges such as climate change and a growing population require new thinking. We most certainly can find a solution to support the needs of freight and passenger rail service.”

Thus the two above-mentioned comments appear to state both sides of the issue in the present case, as well as many more that will certainly follow it. We will have more to report as developments occur, including how the STB meets the challenge posed to them by the “retired senior” from Albuquerque.  

Further Reading:

Next Step in Gulf Coast Case: Mediation

Gulf Coast Battle, Rounds 7-8

Gulf Coast Battle: An Interim Report

Round 6: The Port Raises a Statutory Issue

Round 5: A Skirmish Over a Model

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

Round 4: A Battle Within a Battle

Round 3: Raising Legal Issues in a Case of First Impression

Round 2 Over, Round 3 Under Way

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

Gulf Coast Battle: CSX Seeks Shipper Support; Amtrak Advocates Respond

STB Sets Gulf Coast Hearing, But Amtrak Loses Pre-Hearing Round

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