Amtrak, CSX, NS, Port to STB: Extend Mediation

Written by Marybeth Luczak, Executive Editor
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All parties in the Gulf Coast case are in agreement—on the extension of mediation. 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 are jointly calling on the Surface Transportation Board (STB) to order a 30-day extension.

STB on June 10 ordered Board-sponsored mediation, which concludes Aug. 25.

All four parties in an Aug. 24 filing (download below) asked the STB to extend it by an additional 30 days, beginning Aug. 26, 2022. “Under the Board’s rules, mediation may be extended ‘for additional periods of time not to exceed 30 days per period, pursuant to mutual written requests of all parties to the mediation proceeding.’ 49 C.F.R. § 1109.3(b),” they wrote. “The Parties all agree that an additional 30-day period of mediation would be productive as they seek to reach an amicable resolution of this matter.”

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 first 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.”

But on June 10, STB changed course. It wrote that “[t]o facilitate settlement, the Board will order Board-sponsored mediation pursuant to 49 C.F.R. § 1109.2(a)(2). The Chairman will soon appoint one or more mediators pursuant to 49 C.F.R. § 1109.3(a).” Mediation was set to last 30 days—beginning on the first mediation session date—and STB could choose to extend it if all parties agreed. “Because Amtrak has not consented to mediate, the Board will not hold the underlying proceeding in abeyance during the pendency of the mediation. See 49 C.F.R. § 1109.3(e),” STB reported.

(CSX, NS and the Port in May had requested that mediation last 60 days and that the case “be stayed while the matter is in mediation so the parties can focus their attention and efforts on settlement”; STB did not agree.)

The witness phase of the proceeding ended May 12.

STB has not yet determined when the proceeding will resume, according to a July report by Railway Age Contributing Editor David Peter Alan, who has provided extensive coverage of the case. The reason, Alan said, 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.”

Further Reading:

Time Out: Preparing for Round 9

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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