Next Step in Gulf Coast Case: Mediation

Written by Marybeth Luczak, Executive Editor
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The Surface Transportation Board (STB) on June 10 ordered Board-sponsored mediation in the Gulf Coast case 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. CSX and Amtrak respond.

The freight railroads and the Port last month renewed their request for mediation, 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.

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 will last 30 days—beginning on the first mediation session date—and STB may extend it if all parties agree. “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.)

STB also announced in its June 10 decision that it would allow certain Amtrak personnel access to select materials designated as “highly confidential,” modifying the protective order in Amtrak’s application to operate Gulf Coast service. “The Board is allowing certain in-house Amtrak personnel access to materials produced in connection with the 2020 and 2021 Rail Traffic Controller (RTC) studies so that it can fully respond to evidentiary issues raised by the Board in the recent [11-day evidentiary] hearing [that ended May 12],” STB summarized. (Editor’s Note: RTC modeling simulates real-time conditions on a rail line. During the hearing, RTC was described by some as the “gold standard” for determining what needs to be done so the existing freight service and new passenger service can both run on the same railroad.)

“The Board specifically invited the parties to present additional RTC modeling evidence, and without such access, Amtrak would be at a significant disadvantage,” STB continued. “The Board’s decision also extends the deadline for filing supplemental evidence by 30 days, until July 13, 2022.”

STB Chairman Martin J. Oberman

“All parties should have the opportunity to fully respond to the evidentiary issues raised at the hearing,” STB Chairman Martin J. Oberman said during the decision announcement. “It is also the Board’s intent to have a full and complete record in such an important matter that affects the public interest.”

How did the railroads react to the news? While NS did not have a statement to share with Railway Age, CSX told the magazine that it “appreciates the STB’s decision to order Board-sponsored mediation and looks forward to working with the appointed mediator and all parties towards a reasonable and amicable solution.”

An Amtrak spokesman issued the following statement: “Amtrak appreciates the Board’s continued efforts to instill transparency into this process and will work to meet the Board’s new deadline. We will also work with the mediator the Board appoints and continue our preparations for beginning this service along the Gulf Coast as soon as possible.”

Download the STB’s June 10 decision:

Further Reading:

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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