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

Written by David Peter Alan, Contributing Editor
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In the twelfth in a series of reports and commentaries concerning the ongoing “Second Battle of Mobile Bay,” Railway Age Editor-in-Chief William C. Vantuono called for “reason” to prevail and urged the parties to negotiate a plan that would bring passenger trains to the Gulf Coast in a manner that’s fair to everybody concerned. His commentary was posted between the two sessions of the STB hearing that can still be characterized as the latest skirmish in the Second Battle of Mobile Bay.

Sixty-two persons made statements, followed by the combatants themselves. The battle line was drawn roughly 50/50 between those who want to see passenger trains between the Crescent City and Mobile and those who don’t.

This thirteenth article is an account of the battle from my “virtual” viewing position on the STB YouTube channel. I believe the difference between Amtrak’s willingness to pay and CSX’s demand for payment is within negotiable range, but there was little acknowledgement of that at the hearing. 

This latest skirmish was fought hard on Tuesday and Wednesday, Feb. 15 and 16. Holding their grounds through it all were Amtrak, joined by elected and other officials from Mississippi and advocates for passenger trains from around the nation; and CSX, its shippers and a multiplicity of officials from Mobile and elsewhere in Alabama. The “front” extended into offices and dens throughout much of the nation. The objectives of both sides were strongly articulated, and the battle line was clearly drawn. The action lasted for slightly more than ten hours, three-quarters of it on Tuesday. Pre-trial matters that were not part of the hearing followed on Wednesday.

Based on the testimony, both sides have clear objectives. Amtrak and its allies plan a major campaign, if they win this battle, to convince the states to establish new state-supported trains and corridors in every region of the country. Its battle plan is Connect US, revealed last year (Amtrak’s 2035 Map: Hopes and Challenges, and Is Amtrak’s 2035 Map Riding on the Surf Board?). CSX and its allies wish to prevent Amtrak from ramming Connect US down their throats.

Martin Oberman

STB Chair Martin J. Oberman managed to retain his neutrality and composure throughout the proceeding, and he started by laying out the ground rules for the combatants. He said he wanted “interested persons, other than parties” to give their impressions, and mentioned that this was “a case of first impression,” which everybody knew, whether or not they chose to admit that in their statements. He said Amtrak has made its application under 49 U.S.C. §24308(e) and introduced the hearing by announcing: “Amtrak is seeking an Order requiring CSX and Norfolk Southern to allow Amtrak to operate two round-trip intercity passenger trains per day over the rail lines of CSX and NS between New Orleans and Mobile. We’ve had discovery in this case and we’ve received numerous filings already, including evidence and argument by Amtrak, CSX, NS, and the Port of Mobile. Early next month, we will have a formal hearing on the record, involving those four parties. The primary purpose of today’s session is for interested persons, other than the four parties to the case, to provide comments.”

Sen. Roger Wicker (R-Miss.)

Sen. Roger Wicker, a Mississippi Republican, fired the first shot, for Amtrak. Wicker has called for passenger trains along the Mississippi Gulf Coast. The current plan calls for stops at Bay St. Louis, Gulfport, Biloxi, and Pascagoula in his state, with the endpoints at New Orleans and Mobile. He started by saying, “Restoration of this vital service is long overdue,” and described the impact of Hurricane Katrina, which devastated the Mississippi Gulf Coast and New Orleans in 2005, and whose influence is still being felt. He added: “One of the victims that remains is passenger rail service along the Gulf Coast,” and said that trains would help complete the region’s recovery and economic growth. According to Wicker, the plan would help freight rail, too, “an improvement, not an impairment.” Amtrak and the host railroads (all on CSX, except for five miles in New Orleans) would need to work together, but this is not a zero-sum game. It would help spur tourism in the area and “get people off the Interstate.”

FRA Administrator Amit Bose was next and backed Wicker. He said the results in the present case would have “far-reaching implications beyond the Gulf Coast,” and that the issue was whether host railroads would be required to fulfill the statutory obligations they assumed when relieved of their common-carrier passenger responsibilities when Amtrak was founded more than 50 years ago. He drew an analogy to an old saying about justice, “service delayed is service denied,” and pointed out that Congress had allocated $58 billion to “maintain, improve and expand passenger rail service throughout the country.” That includes restoring former routes and running all trains daily. 

Regarding claims by CSX and NS of “near-catastrophic” effects absent at least $400 million worth of new infrastructure, Bose said the two Class I’s have not met their statutory burden of showing that the proposed new trains (two daily round trips) would unreasonably impair freight operations under 49 U.S.C.§24308(e), they have not been sufficiently transparent (“The public has a right to know”), and that an operational analysis can be made without compromising CSX’s or NS’s confidentiality. He concluded by saying, “A prompt resolution is in the interest of the public,” and that the FRA will assist in making restoration of passenger service a reality.

Alabama State Sen. Chris Elliott (R-District 32)

The proceeding was divided into twelve panels after Wicker and Bose opened it. Except for the last ones, which consisted of Amtrak and CSX, all members of the other panels were assigned to form groups that supported one side or the other, with a few exceptions. With only one exception, every Alabama official—elected or appointed, state or local—testified against Amtrak service. A number of Alabama legislators appeared, with the Mayor of Mobile and a City Councilman. The Association of American Railroads (AAR) and the American Short Line and Regional Railroad Association appeared. “State and Local Interests” included mostly business and trade associations in Alabama. Conservative think-tanks who argued that the proposed trains constitute a poor investment and a waste of money and who recommended that the money be spent on highways instead were also represented. (One is based in Mississippi, the other in New Orleans.) There were additional conservative think-tanks and others who opposed the trains. 

AAR President and CEO Ian Jefferies

For the most part, the presenters on that side refrained from attacking Amtrak directly, usually saying that they either took no position regarding “America’s Railroad” or saying that they had ridden on Amtrak trains, some even said they enjoyed the trip. Without exception, though, they said that Amtrak should not be running trains between New Orleans and Mobile, at least not unless there is enough new infrastructure to satisfy CSX, a condition that appeared to coincide with CSX’s demands. For the most part, their attitudes reflected NIMBY thinking: that Amtrak is objectionable along the Gulf Coast but not necessarily elsewhere. One exception was Mobile City Council member Joel Daves, who said that Amtrak is “a travel adventure, not a transportation alternative,” and that people who could not or did not wish to drive could take the bus. From my perspective, the existing bus service is neither a “travel adventure” (at least not a positive one) or a “transportation alternative.”

ASLRRA President Chuck Baker

With few exceptions, every speaker against Amtrak service made essentially the same arguments. In summary:

  • We need to keep freight-rail strong to improve our economy.
  • Passenger trains will cause a negative impact on freight service.
  • Infrastructure needs and costs should not be attributed to or borne by “freight” railroads.
  • Passenger trains will impose a long-term cost on Alabama, even if infrastructure is built now.
  • This is the wrong time for passenger trains, with supply chains under such stress today.
  • It’s a zero-sum game: Adding passenger trains harms freight shipping and delivery.
  • Passenger trains will interfere with freight, slowing it down and creating bottlenecks.
  • There is a need for additional study; we don’t know enough about infrastructure or future costs.
  • There will not be enough passenger demand to justify trains, at least not without another study.
  • Passenger trains threaten Alabama’s future prosperity.
  • Passenger trains would wreak havoc on other sectors, including shipping and local industries.
  • Challenges at ports like Mobile will get worse. Shippers will leave them for other ports.
  • Times have changed: The Port of Mobile has grown too much since 2005 and is still growing.
  • Passenger trains pose a threat to the economies of Mobile and Alabama generally.
  • This is a single-track railroad, with seven drawbridges and not enough passing sidings.
  • Amtrak funding is uncertain in the long term, so passenger trains are a bad investment.
  • The attractiveness of Alabama’s business climate will erode if the Amtrak trains run.
  • The economic value of the Port and the jobs it supports must be protected.
  • Investment will dry up, the effect being felt as far away as Central Alabama, maybe Chicago.
  • We need to take action to protect the standards of freight delivery that shippers rely on.

As Railway Age reported, CSX President and CEO Jim Foote sent an e-mail message to the railroad’s shippers, urging them to oppose the plan to start the new Amtrak Gulf Coast service. Five shippers participated in the hearing. One was Tom Giovenazzi, Director of Rail Service for Holcim, Inc. and a former dispatcher for Conrail, who said that Amtrak trains always have priority over freight—a questionable assertion. He said that Amtrak has “the feel of a bully who pushes to the front of the line without waiting his turn” and added that a freight train could be delayed for several hours while waiting for an Amtrak train. John Barganier, Chief Operating Officer of Manufacture Alabama, a manufacturers’ association, said the proposed trains would be a “recipe for disaster.” When Oberman pressed four of the five shippers on the question of whether they had first-hand knowledge of the situation or had relied on CSX for information, they acknowledged that they had relied on CSX.

Rep. Peter DeFazio (D-Ore)

Rep. Peter DeFazio (D-Ore), Chair of the House Transportation Committee, made an unscheduled appearance. He said he supports Amtrak’s petition, and that compatibility between Amtrak and freight is essential to provide more people with passenger rail. He stressed the importance of enforcing Amtrak’s statutory rights and agreed with other commenters that the precedent that will be set in this case will apply in the future. He cited statutory language that the STB “shall order reasonable terms” and said that the “Board has to assert its authority.” He called for expedited and unambiguous action, with no extraordinary delays or gross overcharges. 

In a blatant piece of political puffery, DeFazio touted that the Bipartisan Infrastructure Law (BIL, also known as the Infrastructure Investment and Jobs Act, IIJA) would have been “stronger, with more money” if he had written it. He said it was “written by Republicans” and conservative Democrats Joe Manchin and Kristen Sinema. He would send a message that Amtrak’s rights are going to be enforced, and urged host railroads to sit down with Amtrak. 

Amtrak’s supporters were a more-diversified group, in terms of their functions as well geography. Some are local elected officials from Mississippi or elsewhere around the country. Others are officials connected with the Gulf Coast initiative, such as the Southern Rail Commission. Still others are advocates whose mission is to push for more trains or better rail transit, from organizations that include T4America, the Rail Users’ Network (RUN) and the Rail Passengers’ Association (RPA), as well as some in other states like All Aboard Ohio, All Aboard Arizona, and Rails, Inc. (New Mexico). There were also some private citizens who spoke in their personal capacities. Some came from nearby places like New Orleans and Baton Rouge, while others lived far from the Gulf. 

Many of the initiative’s proponents understood the importance of the hearing: that the STB’s decision would determine whether or not other initiatives to expand the Amtrak network, especially where state sponsorship of a train or corridor is concerned, will be stopped dead in their tracks or could come to fruition some day. Officials from Scranton, Pa., Crestline, Ohio, Madison, Wisc., Pueblo, Colo. and other places that want passenger trains, but don’t have them, participated. 

Nearly all of CSX’s supporters made similar arguments, concentrating on local issues like the quality of freight service or protecting the Port of Mobile. The other side raised a wider-ranging set of issues, while making their global concerns known, especially their concern that the “wrong” decision by the STB would end up precluding any growth of state-supported trains or corridors on an enlarged Amtrak.

Some of the hardest-hitting statements came from three members of the Southern Rail Commission, one from each of the states involved in the current proceedings. Greg White (former Chair) was the only official from Alabama who supported the initiative. He said that the SRC’s mission was “the safe and reliable movement of people and goods across the region.” He complained about “delaying tactics by CSX using ‘straw men’ tactics to kill passenger rail” and accused CSX of stonewalling to veto passenger rail that people want. He also said that passenger trains were needed for continued growth, whether the new Mobile station is located downtown or at the airport (“Mobile Aeroplex”). SRC Chair Knox Ross of Mississippi noted that Hurricane Katrina took passenger rail with it. He said that SRC was willing to compromise and find a solution, but is getting nothing in return. He concluded by saying, “It’s been 17 years. It’s time to stop stalling and move the project forward.” 

John Robert Smith, former Amtrak Board Chair and Mayor of Meridian, Miss., and now Chair of T4America, called for “healthy cooperation between freight and passenger rail” but said that CSX had not been transparent or completely honest. He accused the railroad of withholding some information and misrepresenting other information, inflating infrastructure costs, and using intimidation and fear against its shippers. He added, “Death by delay should not be the order of the day,” and that it’s time to connect the cities along the Gulf. 

RPA President Jim Matthews had the longest statement allotted to an advocate. He said that host railroads continue to mislead shippers and the public alike. He complained that CSX is violating the “grand bargain” that was made when Congress established Amtrak in 1970: that Amtrak would have access to tracks at reasonable fees, since railroads were relieved of the responsibility of running passenger trains. He complained about “years of stonewalling” that deprived the region of economic progress and a “cynical opposition to progress and improved well-being.” He noted that the proposed trains would produce from $120 million to $1 billion per year in benefits for the region, including its poor communities. He also said that the American people have consistently “voted for Amtrak” through Congress, which has provided funding “for 25 straight Congresses,” and again criticized CSX for a lack of straight answers. He added that, if Amtrak lost, “this would stop any expansion of American passenger rail in its tracks.”

Regarding capacity, Matthews said that CSX currently runs four through freight trains about 200 cars long per day on the line, with some locals serving trackside industry, which yields a capacity of 800 cars. He criticized that approach, saying that the railroad could double its capacity by running 16 trains of 110 cars each, instead. He added that the trains are longer than the line’s passing sidings, so CSX has “needlessly capped capacity.” He accused CSX of “holding the new Gulf Coast passenger service hostage, demanding that Amtrak fix what CSX broke, and replace the capacity that CSX unilaterally made unusable by operating freight trains longer than sidings on the New Orleans to Mobile route.” He concluded by saying CSX has provided “no public evidence of impairment,” what they have is “insufficient and unreliable,” and the carrier has not met its burden of demonstrating that its demands for new infrastructure are reasonable. 

Other advocates raised other issues. One was RUN Chair Richard Rudolph. He noted the difference between CSX’s figure for the cost of infrastructure needed to run the proposed trains and the FRA’s number, and agreed with the FRA. He mentioned mobility concerns, including for persons with disabilities under the Americans with Disabilities Act (ADA). He expressed concern about CSX’s claims of confidentiality and said the railroad should disclose information the STB needs to determine how much new infrastructure would actually be needed. He complained about CSX’s move to push its shippers to oppose the Amtrak initiative, saying that with an attitude so strongly opposed to passenger trains, CSX should not be allowed to absorb Pan Am Railways in New England (there are currently initiatives to expand passenger service in Massachusetts, Maine, New Hampshire and Vermont). He concluded by saying that the present case is a test of Amtrak’s 2035 expansion plan: “If CSX gets its way, the plan is doomed.”

Other commenters mentioned specific issues. Betty Sparkman, a Council member in Pass Christian, Mississippi, said she was “perplexed” by people who say that the proposed trains would disrupt CSX freight service. She said that there are ten trains a day on the line, and that she knows because they shake her house as they go by. 

Salvatore Pace

Salvatore Pace, Chair of the Colorado Rail Commission and a former legislator, agreed. He said that the idea of two passenger round trips impairing CSX’s freight service “makes no sense” and called on CSX to prove that assertion. He joined others in saying that the case will be “precedent-setting” and important for the rest of the country. He said it’s “about time to have service restored” and added that he amounts of money demanded by potential host railroads would make passenger rail prohibitive. 

Stu Nicholson

Stu Nicholson, Executive Director of All Aboard Ohio, complained that CSX is asking for more money than the Southern Rail Commission had recommended, and analogized the railroad’s attitude to famed pirate Jean Lafitte demanding tribute. He said that CSX is placing “huge, unnecessary and unreasonable obstacles” in the way when the nation needs more passenger trains. He cautioned that, if CSX is allowed to enforce its demands along the Gulf Coast, it could happen everywhere. He called on the Board to act “boldly and decisively.”

John James, a Board member of All Aboard Arizona said that passenger rail provides a shot in the arm for the communities it serves. He also said that allowing the trains to run would be “good PR” for CSX, something that the company apparently can use now, and that “more trains make Amtrak more viable.”

J.W. Madison of Rails, Inc. in New Mexico said he hoped that Gulf Coast trains would be the start of “a new day coming” and added, “We don’t like what we’ve been missing for the past 50 years.” Madison recommended public ownership of rail infrastructure as an alternative to the present situation and suggested that it be called the “Rail Interstate.” He added that he first thought of calling it the “Interstate Rail System” but decided that another organization known as “IRS” is not a good idea.

There were very few instances when comments expressed concern about mobility for non-motorists, although a number mentioned heavy traffic on I-10, the nearby interstate highway. Julius Mullins, a retired physician in Baton Rouge, mentioned the highway, but also mentioned his concern for persons who do not drive automobiles, especially seniors. Grace Gallucci, Executive Director of the Northeast Ohio Areawide Coordinating Committee, called for enhanced mobility while allowing for freight, too. She also said that non-motorists should count. New Orleans resident Alan S. Drake said that passenger trains could help people, especially non-motorists, evacuate in the event of another severe storm like Katrina. He added that trains could also get Mississippians to “premier” health-care facilities in the Crescent City; places that are easily accessible on a local streetcar line. 

Eric Peterson

That attitude stands in marked contrast to those expressed by Matthew Nicaud of the Mississippi Center for Public Policy and Eric Peterson of the Pelican Institute for Public Policy; both conservative think tanks. Both decried the idea of spending money on passenger trains, which they considered a burden on taxpayers with questionable benefits. Both said that the money that would be spent to bring passenger trains back would be better spent on highways. Neither mentioned how non-motorists would benefit from that. STB member Karen Hedlund asked Peterson if he had ever conducted a cost-benefit analysis of rail vs. air vs. highway; he answered “No, I have not.”

Other commenters who claimed a “free market” orientation condemned “subsidies” for trains and for “mass transit” as a bad investment, and said that the money should be spent on highways, instead. Nobody mentioned the “subsidy” that goes to highways. Daniel Savickas, Government Affairs Manager for the Taxpayers’ Protection Alliance, heaped scathing criticism on Amtrak’s “unprofitable” trains that he claimed require “whopping subsidies” and suggested that folks “use I-10” or take the bus. Oberman asked him if he also believes that transit should never be subsidized. Savickas replied that he would leave it to “the private market.” Oberman replied: “I admire your idealism” before introducing the next witness.

None of the presenters from “free market” organizations decried the massive subsidies to highways that have been described as “worthy of Joseph Stalin.” Those who suggested taking the bus probably have not checked the schedules. Greyhound has two daily runs from New Orleans to Mobile. The daytime run stops at Biloxi, while the nighttime run does not. From Mobile to New Orleans, both stop at Biloxi. The Biloxi bus station is downtown, and there are local buses between there and Gulfport. The bus station in Mobile is located five miles from downtown, and local bus service is questionable. Megabus has a daytime run between New Orleans and Atlanta that stops in downtown Mobile (and Montgomery), but it’s the only one. Alan Drake, who lives in the Crescent City, told this me: “You can’t evacuate on Megabus to get away from a big storm.”

Wick Moorman

Charles “Wick” Moorman, who was President of Amtrak for 16 months in 2016-17, led Wednesday’s session. Moorman started in the engineering department of the Southern Railway Co. and was later CEO of its successor, Norfolk Southern. He is now on the Board of the Virginia Passenger Rail Authority, and while is not officially taking a position in the present case, related his experiences negotiating with Virginia for passenger trains on the historic Southern and Norfolk & Western lines, and on the Piedmont Corridor in North Carolina. With the right cooperation, he got what he called “a win-win for Amtrak, NS and the people who live in Virginia and North Carolina.” He said investment is the key to success for initiatives like the one at issue. He also said that, while at Amtrak, he attempted to reach out to CSX, but without success. Still, he said: “They shouldn’t take forever if you have reasonable people on both sides.” He continues to promote passenger trains and said, “Once states and communities see the benefit of passenger rail service, they can’t get enough of it. I think that will be the case on the Gulf Coast.”

Moorman compared Mobile to Norfolk, Va., another large and busy port where there is now Amtrak service. Amtrak and NS were able to work out a deal. He said, “We worked collaboratively with Amtrak to determine what capacity was needed, and that capacity was installed,” and added that there was no detrimental impact on the port’s rail service. He touted the benefits of Rail Line Capacity Modeling, also known as RTC (Rail Traffic Controller) modeling to determine the actual capacity of a line, where more infrastructure is needed, and what should be built. He added that the key concept is “bang for the buck.” He also stressed that both sides in such a deal must be transparent and committed to a fair process. When Board member Karen J. Hedlund asked Moorman how he achieved his success in Virginia, he said, “NS was always open to conversation and negotiation. We were always happy to talk. It was a very iterative, almost collegial, process, where everyone … had a seat at the table.”

Yet, Moorman warned, “Building infrastructure is always the last choice, because of its expense.” He said that there are less-expensive solutions, “like tweaking schedules or implementing operational efficiencies that will minimize the need for expensive infrastructure investment.” When STB Member Michele Schultz asked him how much infrastructure he thought might be needed before passenger trains could run on the line to Mobile, Moorman could not answer directly, but he said that NS would only host the trains on six miles or so of the Back Bay route within New Orleans, but that it’s a busy line. 

When it came to CSX, he was not particularly collegial, characterizing their number of $2.3 billion in infrastructure improvements, even all the way from New Orleans to Jacksonville, as “laughable.” He added: “I studied CSX for 40 years and never quite understood them.” He did say, though: “There’s some number; it’s not enormous, but it’s not insignificant, that’s required.” Even at that, Moorman said he was optimistic that there will be passenger trains between New Orleans and Mobile.

CSX, NS, Amtrak Have Their Say

Jim Foote

CSX President and CEO Jim Foote led off. He started by saying, “CSX is not against the introduction of new passenger rail service on the Gulf Coast … I am urging the Board to be a voice of reason here.” But then, he accused Amtrak of “seeking to force its way onto our rail lines, without consideration of any of the impacts it would have on our existing and future customers, and the local communities.” He labeled it “politically advantageous” for Amtrak to attempt to start service without building new infrastructure, and accused Amtrak of “trying to change the law.” 

“This case is about far more than just getting 20 to 40 people per trip from New Orleans to Mobile,” Foote said, with more than a hint of sarcasm. “It’s about a new national agenda and Amtrak’s desire to change the law and create a new road map for creating new passenger service without working with host carriers or local communities to first add necessary capacity.” He asked the STB to show reason, and then implicitly threatened litigation. He pointed to concerns from CSX customers (who were asked to petition the STB) and claimed that Amtrak wanted to run four trains daily “during ‘peak’ hours” without any consideration of needed infrastructure.

Throughout his statement, Foote took a strident tone and appeared to be doing what we in the legal profession call “playing hardball.” Two reliable sources who know him told me that Foote looked “visibly angry” while making his statement, which is “uncharacteristic for a Canadian, so he must have been really ticked off.” He stated that CSX did not withhold information and would have agreed to restoring one train that ran three times a week, the schedule that ran between New Orleans and Orlando as the eastern portion of the Sunset Limited until Hurricane Katrina struck in 2005 and the train was discontinued. Two daily round trips to Mobile appeared to be a different matter. 

After Foote’s formal statement, Oberman asked him about a report that mentioned delays at Gentilly Yard in New Orleans. He also pointed out that CSX had spent $30 billion on share repurchases instead of building more infrastructure, even “if Amtrak were to disappear.” Foote’s anger, annoyance—whatever you want to call it—visibly rose, and he started thumping his fist on the table for emphasis. “It’s called a pandemic,” he said, citing the 6,000 CSX employees that contracted COVID-19 and the 35 that died. Oberman and Board Member Robert Primus were skeptical. 

(Editor’s Note: Louis S. Thompson, Principal of Thompson, Galenson and Associates, LLC, and who, as Policy and Budget Analyst in the Office of the Secretary, U.S. Department of Transportation from 1968 to 1973, was a member of the federal government team that created Amtrak, comments: “From the creation of Amtrak in 1970 we have all lived this issue. The intention in creating Amtrak was first to relieve the freight railroads of the passenger losses that were threatening to bankrupt them, and second to put the burden for passenger service where it belonged: on those public authorities who wanted it enough to pay for it.  We did think we were doing the freight railroads something of a favor by letting them out faster than the regulatory process would have permitted, and we asked them to pay 150% of their avoidable losses, which they could pay by transferring existing rolling stock. We did require that passenger trains would have access at avoidable cost. But, it is clear that ‘avoidable cost’ must include whatever added capital investment is required to meet the service levels Amtrak needs if those levels exceed the needs of freight service. In this regard, the question of how much has been paid by railroads to shareholders in stock buybacks is totally irrelevant to passenger service, though it might be relevant in a freight proceeding. The basic principle should be clear: Do a capacity study both with and without any changes Amtrak needs. Let Amtrak choose which improvements it needs and the related tradeoffs. Amtrak pays, with whatever state support might be involved,  and the freight railroad allows and supports the new or improved operation. There is of course (and sadly) room for dueling capacity studies and some need for negotiation of cost estimates, but this is the kind of thing that should be resolved without litigation or regulation. When not resolvable, the argument should be mostly over facts on the table, not wild accusations.” – William C. Vantuono)

Speaking for NS, Bill Mullins said that he supports the Amtrak service, but the problem is process. He also praised developments in Virginia, as Moorman did, and said that NS would be open to negotiation or Board-sponsored mediation. 

Rob Winbush, speaking for the Port of Mobile and its railroad, the Terminal Railroad of Alabama State Docks, said the proposed Amtrak service could harm the port, and that he opposes it. He objected to the FRA’s endorsement of the initiative and claimed that the DOT (the FRA’s parent agency) has been “disengaged” on Mobile. Oberman responded by disputing that contention.

Stephen Gardner

Then it was Amtrak President and CEO Stephen Gardner’s turn. He started by denying that the proposed trains would impair freight service. He referred to the “bargain” that the railroads made when Amtrak was founded in 1970, but said that although “the railroads eagerly embraced that bargain, not all of them lived up to it,” and “they demanded what Congress called ‘inordinate capital improvements’” to host Amtrak trains. As a result, he said, Congress enacted Section 24308(e) in 1980 “to create an expedited procedure to allow Amtrak to operation additional trains, unless the host railroad can prove serious adverse impacts on freight operations.” Gardner said that the present situation is like the ones that Amtrak encountered in the 1970s. He said that “many communities and elected officials from both parties are clamoring for expanded Amtrak service” and Congress is giving $58 billion for funding. He said it would constitute “good transportation policy and a matter of regional equity” to bring Gulf Coast service back.

Regarding the dollar figures in dispute, Gardner cited one from the Gulf Coast Working Group of $95 million for infrastructure improvements (which Gardner said would benefit both Amtrak and freight railroads over time) and another $5 million for stations, a total of $100 million, but he also alleged that CSX did not participate in good faith in efforts to restore the trains, demanding $1.1 billion. He acknowledged that state funds are available, but said that CSX’s current demand for $440 million to prepare the line is still too much. He recited the history of Amtrak’s efforts to work with CSX, NS, the FRA and other interested parties to restart the service, and analogized the situation to a public utility and argued against “gold-plating” freight lines. He criticized host railroads for wanting to decide where the trains would go and when, “but that’s not the law,” adding that negotiations with CSX and NS broke down, so Amtrak initiated the present case. 

“Modeling and capital investments aren’t prerequisites to every increase in rail service,” he added. “Amtrak hasn’t required modeling or costly infrastructure investments each time a freight railroad or commuter railroad wanted to add trains on our Northeast Corridor, the busiest, by far, rail line in North America.” He cited how Amtrak accommodated CSX in operating additional crude oil trains in 2013 on the NEC. 

Gardner also said that lack of transparency is a problem, that NS and CSX would not tell Amtrak or the FRA what they needed to know, creating what he said the FRA called “an opaque black box with meaningless inputs.” He made an analogy to a football game where NS and CSX made up rules as they went along, and accused them of inventing freight trains that do not exist (“257% more”), ignoring operational efficiencies and artificially inflating delays. He also accused CSX of making “flawed and hyperbolic assumptions” about the proposed Amtrak trains slowing their freight trains down, but said they would actually reduce the speed of the freights by only 0.7 mph, “what CSX and NS claim is ‘unreasonable impairment’ of their freight operations.”

What’s Next?

Will the parties come to an agreement, start building what is needed, and get the trains running? Negotiation would be the best course, but every “peace conference” has some issues that must be resolved before the parties start talking seriously. In the present case, that would be where to locate the Mobile station. The analogous situation dates from the talks to end the Vietnam War, when the first issue to be resolved was the shape of the table. In other words, appearances and “saving face” are very important. The issue here is whether to use the “legacy” station location in downtown Mobile that was used by the Louisville & Nashville and later CSX, or to go to the Mobile Aeroplex at Brookley, which is located at 2455 Michigan Avenue, near an entrance to I-10 southwest of town. Local bus service is questionable, and it is almost five miles from downtown Mobile.

While there has been some question about whether or not the “legacy” location downtown can be used again, Amtrak spokesperson Marc Magliari says it can. He told me that it still has two tracks, and that a new platform can be built. There is room to build a layup track off the main, and there is money available for the project. From that information, it appears both practical and sensible to use the location for a stop, especially since it is located downtown. Magliari added that CSX has expressed its willingness to allow Amtrak to use the location. If this is true, it appears obvious that a downtown location in a historic city like Mobile is better than an outlying airport, but it’s officials who will make that decision, not riders.

As he gave his statement, Jim Foote seemed angry and maybe ready for a fight. This is my personal impression, but it raises the question of whether he could be taking a hard line as a negotiating posture. That is a relatively common stance for a party going into a legal battle. CSX owns the railroad, but its ability to require Amtrak to build infrastructure and observe other conditions is not unlimited. The STB, with FRA input, can limit that power. Is Foote “rallying his troops” in advance of the all-important March 9-10 hearing three weeks from now? That certainly seems possible.

In contrast to Foote, Stephen Gardner seemed more relaxed, although he was still emphatic. Is he projecting an aura of self-confidence as part of his preparation for the March hearing? If so, he is also engaging in a well-known negotiating practice. While CSX has criticized him for not making an offer of how much Amtrak is willing to spend for infrastructure to get Gulf Coast service going, he has argued that he can’t get a reasonable number from CSX. Until it has what it feels is a credible number, Amtrak can’t, or won’t, do much to reply.

At this writing, it does not appear that Amtrak and CSX are so far apart that it would not be possible to come up with a compromise with which both sides can live. That is often the mission of public agencies like the STB and the FRA. They “know the railroad” well enough to determine what needs to be done and how much it will cost. Mullins said that NS would be amenable to negotiation or Board-sponsored mediation, and Foote said that CSX could accept Board-sponsored mediation, too. The STB has the authority to arbitrate the dispute, to make a determination about what is necessary and then to enforce it. 

Usually, though, a component of a proceeding of this sort is an effort to settle the dispute through mediation. Gardner also indicated that Amtrak is ready to make a commitment toward infrastructure. That would encompass negotiating or participating in mediation (or, at least, accepting the STB’s determination) to settle the dispute and start preparing the line for passenger trains.

When questioning Gardner, Karen Hedlund commented: “The parties appear to be talking past each other.” It’s reasonable to expect that many others who saw them made the same observation. This is the sort of situation where neutral tribunals like the STB can resolve a dispute and move the parties from impasse to action. They seem competent to do so, and if they succeed, we may be able to take a train from New Orleans to Mobile or the towns on the Mississippi Gulf Coast in the foreseeable future.

David Peter Alan is one of America’s most experienced transit users and advocates, having ridden every rail transit line in the U.S., and most Canadian systems. He has also ridden the entire Amtrak network and most of the routes on VIA Rail. His advocacy on the national scene focuses on the Rail Users’ Network (RUN), where he has been a Board member since 2005. Locally in New Jersey, he served as Chair of the Lackawanna Coalition for 21 years, and remains a member. He is also a member of NJ Transit’s Senior Citizens and Disabled Residents Transportation Advisory Committee (SCDRTAC). When not writing or traveling, he practices law in the fields of Intellectual Property (Patents, Trademarks and Copyright) and business law. The opinions expressed here are his own.

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