I stopped by the BSM during their weekly library work party yesterday. I came in and said, "Hey, there's some joker pulling a center-cab Whitcomb lettered for "Northern Central" down Falls Road with a front-end loader up there......"

On the serious side, the official I talked to said "We notified the City of Baltimore's lawyers. They said 'We're too busy figuring out who our new bosses are going to be to deal with this right now....'" The city has just changed mayors and administrations, what with the former Baltimore mayor now the governor of Maryland. If I thought the principal in charge of the STB filings was of a conspiratorial bent, I might say that he timed it for this reason. But that would be attributing a lot of intelligence to someone that otherwise seems a crackpot. Supposedly the BSM folks are going to other City officials to get someone to pay attention.

I am also told (without confirmation) that this person's bureaucratic tactics have actually succeeded in granting him control of a line, in the case of a former WM/CSX branch line in Alleghany County, Maryland--a line out of Westernport or Lonaconing, Md, supposedly serving a reactivated coal mine. I have no further details at this time; even the folks who know the area report rumors at best.

But rest assured an attorney who is also a BSM member/official is on the case. I have asked him to document his work carefully; I believe that this could become a seminar at a future TRAIN/ARM convention: "How to Deal With STB Nutjobs" or the like........... I know far more about the tactics being planned than I am letting in on here, but as asked, I'm not broadcasting any "battle plans." Riffin and Co. can see what would be coming, anyway.

Trust me: If it can happen to the BSM, it can happen to your line.

A couple of random thoughts here in response to Brother Mitchell's comments:

1. Stopping this kind of thing in advance would be difficult. Commissioner Mulvey has stated publicly that he feels that the Board should be as accessible as possible and (unfortunately my colleague was not recording the conversation so this is a paraphrase) that one man's lunatic fantasy was another's brilliant business plan. This was in answer to a question raised at a luncheon in 2005 (where Mulvey was speaking) as to whether the board would consider sanctions against parties who knowingly made fraudulent filings (Note: Mr. Riffin's filings per se do not appear to be prima fascia fraudulent, just out in the left field stands somewhere). The questioner was actually referring to some of the attempts to use common carrier authority to skirt environmental regulations and an attempt to claim property ownership based on STB “approval” of a Notice of Exemption filing. Interestingly enough – the attorney responsible for the property ownership claim is alleged to have fled the room when the question was asked. (I wish I had been there.)

2. Recouping costs is always difficult. There is no actually damage from the filing and the filer cannot be held responsible if a third party believes that an exemption is any thing other than a statement that a particular transaction does not require regulatory scrutiny – unless the filer has made a (false) claim to that effect.

3. The Western Maryland line was an outright purchase under an OFA by taking over as the purchaser when the original purchaser’s financing fell through. The Board’s definition of financially responsible party is asset driven and apparently he has the assets. I have some serious questions about the viability of the line but it appears to be a legitimate transaction.

4. Change the seminar title to “Regulatory Issues Involving Operating Museums, the Surface Transportation Board, and Psycho-Ceramic Entrepreneurs" and you have something.

5. It was one of the Chesapeake Whitcombs rescued from Topton and I thought it was being towed by one of the tractors from Fells Point.

GME

There is a precedent for this kind of thing.

In 1965, Thomas Hilt applied to the ICC for a rate of $9 a ton to haul yak fat from Omaha to Chicago in his father's fleet of trucks. The railroads' Western Trunk Line Committee filed an objection, stating that the actual cost would be closer to $12.60 a ton. Mr. Hilt and the trucking industry then went to the business media to use this as Exhibit A in their case that railroads were automatically filing objections to any truck rate proposal as a matter of near reflex. I recall that the representative of the WTLC stated in response, "We don't care if they propose a rate for distilled moonbeams--if we feel it's unjust and unreasonable, we're going to protest, lest it be used as a precedent."

Trains Magazine responded to this story by printing a cartoon of a yak fat rack flat.

The libertarian in me screams that Riffin or anybody else should certainly have due process and opportunity should he come up with a feasible business plan, and far be it from me to interfere with an "underdog" successfully taking on big business and bureaucracy. The operative term, however, is "feasible." Thus far, the current Baltimore proposal shows no recognition of Baltimore City ownership of most of the land (and its lease to the BSM), no sign of any agreements with railroads with which to interchange, no sign of any business plan (feasible or wacko), and no sign of any clients, customers, or purpose.

I can go to a vanity press or copying store and print up a book or periodical I wrote. That doesn't make me an author unless I have customers for the book/periodical. I can declare my house a sovereign nation. That doesn't mean any other nation, state, etc. will recognize it. And Riffin can call himself a railroad; that doesn't mean anyone else will recognize him as such--but the STB might come close unless someone protests.

It has been an interesting afternoon, hasn't it? I remember the Yak Fat case very well. That cartoon is around here somewhere. Unfortunately you have to armour the rear of your hull after they start shooting at you when these filings are made, you cannot simply fire your main gun because you think you see it coming.

It would seem that all and sundry are ganging up on poor Mr. Riffin.

Though not in the normal format, BSM's comments are quite thorough (the only thing I would have added is that the existing operating BSM track is not Standard gage and conventional rail equipment simply won’t fit) and my instinct is that they will get the relief they want (and should certainly have) even though it will not be couched quite in the terms they asked for. (See the decision (33221) in FD 342670 (MORRISTOWN & ERIE RAILWAY, INC.--OPERATION EXEMPTION--SOMERSET TERMINAL RAILROAD CORPORATION, Standard Terminal Railroad of New Jersey, Request for a Stay ) There was a similar fact set in so far as property ownership was concerned and the Board denied the request for a stay while insuring in the dicta that the exemption held no force until and unless the Morristown and Erie could establish that Somerset actually had title to the right to operate on the property in question.). This is primarily because the notice per se does not impute a property right and is not in and of itself an injury. I would like to be wrong here and see the notice revoked and not merely gelded.

Mr. Riffin really is a railroad based on the WMS filings, where he appears to really have access to the property, and at least in theory on some of the others (see the decisions in AB 556 59X 37142 CSX TRANSPORTATION, INC.--ABANDONMENT EXEMPTION--IN ALLEGANY COUNTY, MD and FD 349630 37621 JAMES RIFFIN D/B/A THE RARITAN VALLEY CONNECTING RAILROAD-ACQUISITION AND OPERATION EXEMPTION-ON RARITAN VALLEY CONNECTING TRACK) where he may enter into the common carriage of freight without regulatory scrutiny but other than the customerless, out-of-service track beyond Frostburg, he really has nothing substantive. He does not seem to have customers, interchange agreements, or any of the other normal indices of a viable short line business…

Which brings us to Mr. Gitomer’s filing on behalf of CSXT, I read that document as a very dignified way of saying that there is no commercial relationship between CSX and Mr. Riffin’s various enterprises. And, if only because you can’t get there from here (as he will need to levitate cars twenty-five feet or so to make interchange) there is very little chance of one. He has gone a step further and asked the Board to require that new shortlines generally, (and by implication, Mr. Riffin specifically) demonstrate that they can actually function as part of the railroad system and that Mr. Riffin’s Notice be stayed or rejected until he meets this test. Since this was entered as a comment and not a motion the board will probably sidestep it and not rule on the request.

While I rather sympathize with CSX’s view here I believe that this may be viewed as being contrary to the intent of the ICC Termination Act, as the intent of the act is that regulatory scrutiny would be imposed only when the need was shown in specific instances rather than a showing as is requested here that such scrutiny is not needed. Mr. Gitomer has carboned Charles Spitulnik who has previously represented the State of Maryland and dealt with Riffin before in his attempts to claim the Northern Central Trail and the Light Rail Line by eminent domain and…

That is no real surprise as the Maryland Transit Administration is moving to both stay and dismiss the exemption. Maryland may have a slightly better chance than BSM in actually obtaining a revocation as there is an ongoing history of Mr. Riffin attempting to misuse the exemption process to claim state property and evade environmental regulation on non-railroad properties. Because of the nature of the Jones Falls Valley as described in the BSM’s filing there is clearly the making of a series of environmental questions here. As their filings have not been posted yet I simply do not know.

On a related note, Mr. Riffin attempted to bypass both the Maryland Court of Appeals and the intermediate Federal Courts in his continuing attempt to assert that as he is a railroad the Maryland Department of the Environment has no jurisdiction over any of his actions. The Chief Justice of the United States refused (06A265) to extend the time to file a petition for a writ of certiorari and then refused his application (06A376) to file petition for a writ of certiorari in excess of page limits and the court then denied the writ (06-617). I agree, I simply do not see a substantial constitutional question in his claim that he is a railroad.
http://search.access.gpo.gov/supreme-co ... in&x=0&y=0

I'm sure there will be more, but in the end I doubt that Riffin will be operating over the trolley museum.

GME

(edited once to add the word "on" in Paragraph 2)

WHO the heck IS this guy? Has anyone actually met him? Is he some disgruntled local fan/former shortline employee? Is he a front for some larger entity? Someone has to have the ability to file this stuff with the STB; is he a railroad version of a "jailhouse laywer"? What's the story here?

Let me amend my comment from a few weeks ago: some serious restoration could have been funded with the money that was spent by BSM, the City of Baltimore and CSX to defend or protest this action. Can these parties recover their any of legal costs because of this frivolous filing?

I believe that he is a local (to that area) businessman who teaches (or taught) at Towson State.

As far as being able to file the Notices - anyone who can type or (print neatly) and has the spare dollars which he can give to the board as a cheque, money order or credit card can file a notice. If you look at Mr. Riffins various filings and at the STB's Schedule of Fees (49CFR1002) you will note that he has spent significantly more than pocket change on his Quixotic Crusades.

GME

The Maryland Transit Administration has now been heard from and from this we may infer that at least one STB employee is actually working on a Saturday.

I suggest that anyone with a serious interest in the issues raised by Mr. Riffin's various claims read those two filings.

While my own feeling is that the MTA is a little bit wobbly on standing, the State of Maryland, of which they are an entity is not. If the Board grants them that point (and I probably would) then they have made a very good case for both the stay and the revocation. When combined with the BSM's filing the Board does not seem have a whole lot of choice.

I do have one quibbling point to make. If Riffin had used his Frostburg Southern DBA instead of Northern Central he would be in a slightly stronger position. There is a valid argument that as all of Riffin's railroads have been Riffin dba the Lower Podunk and Timbuquethree, the entity that any purported railroad powers might be conferred on is Riffin, not the LP&T per se, and which name he uses is not a major issue. Wiggle room, but not a fatal flaw.

I am beginning to think that I have been perhaps a shade too generous to Riffin in my threshold for where simple loony leaves off and fraudulent begins. I think this case may finally establish some clear guidelines as to the level of detail required and Maryland may well prevail on the claim that the notice is so vague as to be false and/or misleading.

GME

Memo to EDM - Even though I believe the BSM attorney is pro bono as he is a member of their board, I see more than enough billable hours here so far to have put your RS1 back in service.

http://www.stb.dot.gov/filings/all.nsf/ ... enDocument
http://www.stb.dot.gov/filings/all.nsf/ ... enDocument

As noted before, so far the City of Baltimore, as far as I know, hasn't spent anything. I could be proven wrong tomorrow morning, but.......

The swiftness of the CSX response, as well as the phrasings used in CSX's response, leads me to believe that the CSX response (Petition to Stay) was made by CSX's legal department, i.e. attorneys in the employ of or on retainer by CSX. It wouldn't surprise me in the least if this was more or less an automatic response on behalf of CSX made in almost any instance when a filing is made with the STB which pertains in any way to CSX, although varied for the situation (in this instance, it was critical to point out the lack of any interchange arrangement). In other words, if CSX didn't have someone on staff whose job it was to read STB filings and respond if necessary, they would be derelict in their duties. (Now, if the stories about Riffin gaining control of a CSX line in Alleghany County, Md. are true, that may indeed be a response to an earlier instance of CSX "falling asleep at the switch." But I don't know that--maybe CSX really and truly didn't care.)

The attorney for the BSM is also apparently a director of the Museum as well--I see him at the Museum almost every Wednesday afternoon meeting with the treasurer, president, curator, etc. when I leave a Library work session. He definitely knows his streetcars, but he also strikes me as someone on the board for his business and legal expertise, not his ability (if any) to run or repair a streetcar. Whether the preparation of the STB Petition to Deny Exemption was done pro bono, as part of a legal retainer arrangement, or a billable expense is strictly between him and the Museum--but I would agree that such an issue is one that should be brought up in any future seminar or lecture on this topic. If this were to happen to your group/museum, who would YOU call upon? (Remember, "Trainlawyer" is hiding from us!)

Insofar as the "frivolousness" of this suit, the problem becomes that you would then be required to effectively divine mental state and intentions of the filer for each specific case. That gets to be as dangerous as defining a "hate crime," and it's something I strongly discourage. One could, however, make a case that a long series of similarly not-thought-through actions should be just cause not only for routine dismissal, but possible legal action for cost recovery.

Incidentally, for the record there really WAS an interchange between the B&O "Baltimore Belt Line" main line above the Jones Falls Valley and the old Ma & Pa. There was a sloped "ramp" perhaps several hundred feet long with approximately a 4% grade between the Ma & Pa and B&O, beginning in front of the roundhouse at the lower end and ending at a siding next to the B&O bridge over the valley. This ramp also served the coal chutes for the railroad's steamers, beside the northern end of the freight house. I don't have to tell you that said track has been gone since at least 1958, if not earlier.

ADM said:
Insofar as the "frivolousness" of this suit, the problem becomes that you would then be required to effectively divine mental state and intentions of the filer for each specific case. That gets to be as dangerous as defining a "hate crime," and it's something I strongly discourage.

*******
As for me, a famous jurist once said on the subject of pornography, "I know it when I see it." In this case, simply subsitute "frivolous".

If it walks like a duck, quacks like a duck, looks like a duck..... it's probably NOT a 4-8-4.

The good folks at the Baltimore Streetcar Museum may breath easy again. The Chairman of the STB has indefinitely stayed Mr. Riffin’s exemption. I suspect the reason for the indefinite stay – which, especially issued by the chairman himself, is rather uncommon – is the protests from CSX and the Mass Transit Administration. My impression from CXS’s reply is that they are getting a bit tired of him. I suspect that that is also true of the State of Maryland, the Board, and almost everybody else who has had to deal with him.

The CSX reply is quite worth the minute or so it takes to read.

There was also a filing by Norfolk Southern in an unrelated matter in New Jersey which essentially states that Mr. Riffin’s arguments concerning what may or may not be de minimis administrative errors twenty, thirty, fifty, or one hundred years ago really do not belong in the discussions of the here and now, nor are they sufficient to overturn otherwise correct transfers of property rights.

Until Somerset/CNJ and now Mr. Riffin came along I never thought I would be reading the STB filings for their humor value.

GME

Stay:
http://www.stb.dot.gov/decisions/readin ... enDocument

CSX Reply:
http://www.stb.dot.gov/filings/all.nsf/ ... enDocument

NS vis BRI:
http://www.stb.dot.gov/filings/all.nsf/ ... enDocument

It seems to be all over but for the shouting. Over the past weekend the Surface Transportation Board relocated its offices in the District of Columbia to 395 E Street, S.W. (EP 668 0 SURFACE TRANSPORTATION BOARD--2007 OFFICE RELOCATION BUSINESS PLAN) and as a result there was a weeks lull in my normal reading as they shut down on Thursday, the First of March, and did not begin posting the filings again until the morning of Thursday the Eighth… and by the time that the deluge of required reading had abated there were six more filings in this teapot tempest, from BSM (2), the City of Baltimore (finally!!) CSX, the MTA, and W.R. Allen Associates (all dated the Sixth) and one more on Mr. Riffin’s latest request for a declaratory order.

For those with the patience and the time the current round of filings is worth reading. The opposition filings posted so far in this matter total 158 pages plus an additional 117 from the State of Maryland in a related matter (FD 34997 0 JAMES RIFFIN-PETITION FOR DECLARATORY ORDER) which is really just Mr. Riffin asking the board to have everybody in general and the State of Maryland in particular stop picking on him.

Taken as a whole the comments pick holes in each of Riffin's claims that you could drive a train through. I am not going to take up the space by enumerating all of the points here but I will give good odds that the exemption will be revoked, and, if by some strange chance it is allowed to stand, it will be with the dicta that it just does not matter until he has all of the requisite agreements in place. I doubt that that will happen anytime in his next six lifetimes.

While the numbers vary with the firm and the complexity of the case, one page of a lawyer’s brief can easily cost somewhere between one and two hundred dollars to produce. This is simply the administrative cost to the firm or the practitioner; it does not include what he needs to take home at the end of the day to feed his family. In this case calculate the fees as starting at a low end of Two Hundred Fifty Dollars an hour and go up from there. Ignore that the fact that the BSM’s attorney is on their board and was acting in that capacity rather than for his firm and that the Allen firm is not a law firm but had an interest of their own here to defend, as they both still had the costs and the time that could otherwise have put to something remunerative.

As Mr. Allen states that he walked the track, I think we may assume that he had to devote at least a day to simply going to Baltimore to look at the property. Then add in the fact that CSX’s attorney actually spent Sunday afternoon down there on the bike trail with his own video camera. I have no idea how his firm is going to account for that.

Splitting the difference in costs at One Hundred Fifty Dollars and using the total of 275 pages in both actions we have a cost to the practitioners of over Forty Thousand Dollars ($41,250.00). Double that to cover actually paying the attorney’s fees. This exercise in foaming lunacy has now cost something over Eighty Thousand Dollars that could have been used for something productive elsewhere. It will probably continue to grow.

Then add to that the cost to the taxpayer of having the Board deal with all of this. All three board members and at least one member of each of their personal staffs and a number of other staff members and attorneys all have to read this stuff and do something with it. We can now at least double the lawyer cost. That puts us over One Hundred Sixty Thousand Dollars. Riffin paid a Fifteen Hundred Dollar filing fee.

To paraphrase Sir Winston, “ Never in the history of Jurisprudence has so much been paid by so many to deal with so little.” I wouldn’t doubt for a moment that the museum could have made good use of ten percent of this and that most if not all of the parties opposing Mr. Riffin would have rather simply sent the museum a cheque for their share of that amount and gone and done something else with the time.

The MTA’s reply in the declaratory order action includes a transcript of the Federal Court hearing on the environmental issues raised in earlier NCRR exemption attempts. I think it is quite revealing of Mr. Riffin’s actual motives. He was also mentioned by name in the comments of the Association of American Railroads in EP 659 0 PUBLIC PARTICIPATION IN CLASS EXEMPTION PROCEEDINGS as one of the poster children for why there needs to be a change in the exemption process to allow greater opportunity for public participation and a tightening of the requirements for the accuracy and detail of the information required in such notices.

Aside from the time and other resources spent on dealing with this sort of thing, I believe that the real danger here is what Brother Allen articulated – that this could be a backdoor precedent in the multiple attempts by Riffin, Somerset/CNJ, and similar non-entities to claim status as a common carrier for purposes other than serving as a common carrier and to claim some form of title to various parcels of real estate with out having to pay for it.

Imagine the mayhem if it were actually possible to do as Mr. Riffin attempted here. No piece of property that might have ever had track on it would be safe from a claim by anyone with Fifteen Hundred Dollars.

Perhaps the gentleman in Princeton who wanted to buy the Dinky many years ago should have tried this approach. “Good morning New Jersey Transit. I just gave the Surface Transportation Board a cheque for $1,500.00 and my notice is effective in seven days so please get your equipment off of here by then…” and I would certainly not want to be standing in front of brother Conrad if one of these guys turned up in Winnsboro, South Carolina, and said the Rockton and Rion was now his.

GME

Been there, done that, got the T-shirt. Well, technically, this was before my time, but...

That's why SCRM doesn't own the last mile of track into Anderson Quarry, in fact. Despite the fact that Martin-Marietta Aggrigates had been paying taxes on the ROW, the previous owner sued us shortly after we got the railroad, claiming that he hadn't included the line from Rion to Anderson Quarry in the sale to M-M. Claimed the line from Rion to Anderson Quarry was a spur and not part of the main line. The... er, individual acting as our lawyer at the time agreed to a settlement that gave him the last mile when a 4-year-old could see that the previous owner didn't have a leg to stand on. I still haven't forgiven him for that, as the settlement is still causing confusion over some of our property lines. Mercifully that individual has dropped out so I don't have to deal with him.

I'll admit that the previous owner didn't use the ICC/STB, however -- he used the civil court system.

That said, our victory (of sorts) caused major shockwaves in the local community. It was the first time that individual had EVER lost a court case. His power in the community eroded to nothing quickly. Today I hear that he's been declared incompetent to manage his own affairs and is in a home. Sorta goes to show what can happen to you if you take on the wrong people. :o)