The Surface Transportation Board (STB) on Nov. 10 granted a joint motion to amend the procedural schedule of its decision on the dispute between Amtrak on one side and CSX, Norfolk Southern (NS), and the Alabama State Port Authority and its Terminal Railway Alabama State Docks division (collectively, the Port) on the other for Gulf Coast passenger rail service. The Board had previously granted an extension to Dec. 1 of mediation.
Their dispute stems from Amtrak’s March 2021 application seeking an STB order requiring host freight railroads CSX and NS to allow intercity passenger trains to operate over their lines from New Orleans, La., to Mobile, Ala.; service would consist of two daily round-trips. This resulted in months of clashes via STB filings between Amtrak and the freight railroads (as well as years of clashes before STB involvement). STB instituted a proceeding on the proposed service in August 2021.
Following an STB public hearing, held Feb. 15-16, 2022, and roughly a week before a scheduled evidentiary hearing (starting April 4, 2022), the Class I’s and the Port made their first request for STB-sponsored mediation. Amtrak rejected it, writing in an STB filing that while “an amicable resolution of this matter may be possible,” the move to mediation is “yet another attempt to further delay a process that has already been delayed far too long.”
STB on April 1 denied the railroad-port motion for mediation. Explaining its decision, the agency wrote: “Here, it is unfortunate that the petitioning parties formally petitioned for mediation only after this matter had been pending for more than a year and on the eve the evidentiary hearing. It is equally unfortunate that Amtrak has now, and in the past, rejected the idea of Board-sponsored mediation. Had all parties been willing to enter into mediation, the Board might have been inclined to more favorably consider the request, even at this late date, since this matter appears to be one that could have been resolved through mediation, had the railroads, Amtrak, and the Port been willing to moderate their positions.”
The freight railroads and the Port in May renewed their mediation request, saying they “continue to believe that an amicable resolution is possible—one that facilitates a prompt and orderly commencement of Gulf Coast passenger service while protecting the customers and shipping partners that rely on quality freight rail service.” Amtrak opposed it.
STB on June 10 changed course and ordered Board-sponsored mediation, to conclude Aug. 25. At the joint request of Amtrak, CSX, NS and the Port, STB extended mediation on Aug. 24, Sept. 27 and Oct. 11. While the mediation was not extended last month, the four parties continued to communicate concerning a possible settlement of the dispute, they wrote in their Oct. 28 filing (download below).
“The parties have made considerable progress in their discussions, and expect that the coming weeks, leading up to Dec.1, will be critical in determining whether a negotiated resolution can be reached,” they wrote. “In order to allow the parties to devote their full attention toward a potential settlement, the parties request that the Board issue a temporary stay of the proceedings. Given the Board’s Oct. 28, 2022 order setting an accelerated schedule for conclusion of the evidentiary hearing (Nov. 17 and 18) and a voting conference (Dec. 7), it would be very challenging for the parties to focus on settlement efforts while also preparing for those proceedings. Therefore, the parties request that the Board stay the case until Dec. 1, 2022. If the second round of mediation concludes on Dec. 1 without an agreement to extend or settle, the parties request that the Board set a status conference with Board staff to discuss a schedule to conclude the case.”
STB announced on Oct. 28 that it would hold on Nov. 17-18 a continuation of the hearings that ended May 12, which would cover examination and cross-examination of new evidence presented in supplemental materials filed. “The Board expects the evidentiary part of this hearing to be completed within five hours,” STB reported. “ During the Dec. 7, 2022 voting conference, the Board members will discuss among themselves, and may vote on, the outcome of the case. Although the voting conference will be open for public observation, no participation by the Parties or the public will be permitted.”
On Nov. 2, STB issued a decision (download below) extending the mediation through Dec. 1, noting that it “favors the resolution of disputes through mediation in lieu of formal Board proceedings whenever possible.” But it denied “without prejudice,” the request to stay the underlying proceeding during mediation. “This case has already involved substantial delay since the last hearing session on May 12, 2022,” STB wrote in its decision. “The Board granted the parties substantial additional time to submit supplemental evidence and even before today [Nov. 2] extended the mediation period several times. The public interest militates against further delay of the evidentiary hearing phase of this proceeding and the Board’s planned voting conference.” STB reported that it will, however, offer Amtrak CSX, NS and the Port “an opportunity to persuade it that a change in the procedural schedule is warranted and would be constructive,” since it “would still prefer the parties to reach a settlement.” According to STB, the parties “may either seek to reschedule the hearing dates or waive further evidentiary hearing. In either event, if each of the parties submits a statement signed by its chief executive officer (CEO), by Nov. 10, 2022, certifying that substantial progress has been made towards reaching a settlement with an explanation that there is a substantial probability that a settlement will be reached, the Board will entertain a motion to cancel the hearing on Nov. 17 and 18. If each of the parties submits only the signed statement described above, and all do not waive the additional evidentiary hearing, and the Board determines that the Nov. 17 and 18 hearing dates should be postponed, the hearing will be rescheduled for Nov. 30 and Dec. 1, 2022, to be conducted virtually by Zoom. If each of the parties submits the signed statement and waives additional evidentiary hearing before the Board (thereby agreeing that the Board may decide the case on the record already presented and compiled), the Board will cancel the additional hearing dates without rescheduling for Nov. 30 and Dec. 1. If each of the parties does not submit the signed statement described above, the hearing will continue on Nov. 17 and 18. Unless the parties inform the Board that they have agreed to a settlement, the voting conference will take place as scheduled on Dec. 7, 2022.”
The Board, in its Nov. 10 decision (download below), wrote that it “afforded the parties an opportunity to persuade it that a change in the procedural schedule would be warranted and would be constructive, indicating that the parties could either seek to reschedule the hearing dates or waive further evidentiary hearing. In either event, the Board stated that if each of the parties submitted a statement signed by its chief executive officer (CEO), by Nov. 10, 2022, certifying that substantial progress has been made toward reaching a settlement with an explanation that there is a substantial probability that a settlement will be reached, the Board would entertain a motion to cancel the hearing on Nov. 17 and 18. On Nov. 10, 2022, the parties filed a joint motion to amend the procedural schedule, requesting that the Board postpone the hearing dates currently set for Nov. 17 and 18 … The Board will grant the parties’ joint motion to amend the procedural schedule. The parties are directed to file a joint status report by Nov. 21, 2022, stating whether a settlement agreement has been reached or whether a hearing and closing arguments are still needed. The hearing dates currently scheduled for Nov. 17 and 18, 2022, will be postponed until Nov. 30, 2022 … The voting conference will remain scheduled for Dec. 7 … unless the parties inform the Board that they have reached a settlement before that date.”
U.S. Sen Roger Wicker (R-Miss.), senior Republican on the Senate Commerce Committee and likely its chairperson next year if Republicans regain Senate control, expressed satisfaction with the current developments. “I am glad the CEOs feel that negotiations are progressing and an agreement is in sight,” he said. “After more than 17 years, residents along the Mississippi Gulf Coast deserve to have Amtrak service restored as soon as possible. I appreciate the time invested by the Surface Transportation Board to keep this matter a priority, and I remain hopeful that Amtrak, CSX, Norfolk Southern, and the Port of Mobile will use this second mediation period granted by the Board to resolve this matter.”