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This was originally posted on A/P by Jeff Moore

https://www.stb.gov/filings/all.nsf/ba7f93537688b8e5852573210004b31...$FILE/241657.pdf

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This makes for some very interesting reading if anybody has an interest in freight operations on the shared ROW.  I haven't any information on the STB's ruling, which should issue very quickly, but reading the papers, as an attorney, my money is on NCRA/NWP Co.  I don't see where SMART has a leg to stand on.  I note in press reports that the SMART GM claims to be acting "on the instructions of the SMART board."  Reading between the lines, I take it that the SMART board, primarily local politicians with no railroading experience, have acted based upon political considerations due to public pressure (however slight) in order to cover their own political butts and not based on any legal advice regarding the limits of their authority under federal railroad regulations.  Again, I am afraid that this problem is going to continue for so long as the SMART board sees SMART as a stand-alone autonomous transit system rather than a commuter rail transit system connected to and operating on the national rail commerce network under uniform federal regulation.

Bob Cleek - I agree with you. if you read all the documents, SMART has an exhibit in the document listed on this thread dated after the NCRA served them with SMART looking frantic trying to get ahold of Jake Park allowing movement of the grain cars. It looks that SMART is back peddling quickly. I honestly have my money with NCRA/NWP on this one too. STB isn't going to let those 12 cars sit. My bet is that STB will tell SMART to allow NCRA/NWP to move freight and allow the 12 tankers at interchange to move to Schellville. Then reschedule another hearing to discuss the problem. 

I think the NCRA/NWP could make a big enough stink in court and with the feds, that the FRA may hold off allowing SMART to conduct operations until the issues in the operating agreement is resolved. Think back to Novato vs NCRA/NWP when they opened in 2011...

I have read this a couple times. I don't see how NCRA is in violation of this at all. A customer requested to store cars with hazmat... What is funny about this, is that SMART wouldn't care any which way if NCRA was storing centerbeams, or grain hoppers... its the product, which SMART cannot say you cannot store Hazmat but you can store what ever else, we don't care? 

If federal law prohibited "this kind of storage," I expect it wouldn't be happening all over the US during this period of petroleum product surpluses.  It's been inspected and passed by the feds... twice.  I don't see any provision anywhere which would give SMART any right or authority to dictate what NCRA/NWP Co. can ship, no way, no how.  SMART has the right, and obligation, to "direct traffic" over the designated segments of the ROW so trains aren't running into each other, but that's it.  They may "own" the dirt and the tracks, but NCRA/NWP Co. has an easement giving them the right to use those tracks to the extent permitted by FRA regulations.  SMART doesn't have any right to micro-manage NCRA/NWP Co. operations.  The larger issue here is SMART's failure to recognize that their control over their ROW is limited by the operating agreement.  It seems the SMART board sees themselves as having their own isolated little "train set" and that freight operations are at their pleasure.  That's simply not the case.  It's understandable that freight operations complicate their operation because they've got to "share the road," but that was the condition under which they assumed ownership of the former NCRA ROW sections. (All their ROW north to Headlsburg and east to Lombard.) That was the deal.  NCRA would not have been in compliance with their charter if they bargained away freight rights to service the former NWP ROW.  NCRA was formed to preserve and promote freight service.

STB's request for a reply from SMART is a fairly good indicator that NCRA/NWP Co. got their attention and so they're giving SMART a chance to have their say before they rule.  Requests for emergency relief like this are rarely granted unless there is a compelling showing of need for the immediate order rather than proceeding in the ordinary course.  If a request for an emergency order doesn't look like it makes a good case for immediate relief, the hearing agency will commonly simply issue a one-line denial, which is there way of saying, "Make your request on the ordinary procedural time line."  SMART certainly is backpedaling.  The clearly did stop all freight traffic, but only later backed down on grain cars.  NWP Co.'s parking "in transit" hazmat cars on yard sidings sure sounds to me like "... as may be transported by NCRA in its capacity as a common carrier by rail."  I'm no railroad law expert, but it seems to me that as long as a car is moved from destination A to destination B by NWP Co. it's being "transported by a common carrier by rail."  We'll see what the STB has to say shortly, I'd expect.  Meanwhile, SMART continues to appear "unable to play well with other children."

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