STB ruling against D&RG Historical Foundation (Aug 18, 2014)

Chris Webster · **Joined:** Sat Aug 25, 2007 12:45 am **Posts:** 1087

While looking for something else, I happened upon SURFACE TRANSPORTATION BOARD Docket No. FD 35496 DENVER & RIO GRANDE RAILWAY HISTORICAL FOUNDATION PETITION FOR DECLARATORY ORDER, dated August 18, 2014.

It is interesting reading. While IANAA (I am not an attorney), the document seems to bust several railfan-myths I've seen posted here.

For instance, this section on Page 10 seems to say that STB would not exercise jurisdiction over many of the "remove operating rail to put in trail" (Adirondack Scenic, Catskill Mountain, and Fillmore & Western) disputes discussed in other RYPN threads:

Quote:

Under established Board precedent, such wholly intrastate passenger excursion operations do not constitute rail operations as “part of the interstate rail network,” and as a result the operations are outside the Board’s jurisdiction....(wholly intrastate passenger rail operations with no connection to, and no through ticketing planned with, Amtrak or any other interstate carrier are not within the Board’s jurisdiction, even though the operations would be physically conducted on part of the interstate rail network).

Also interesting is the decision itself: activities on a parcel of land have to be in furtherance of interstate transportation in order to be under the STB's jurisdiction. My takeaway is that if you are storing (e.g. Stillwater) and/or restoring rolling stock, you had better be following zoning and other local laws - those local ordinances can only be overruled if you are actually engaged in interstate transportation.

robertmacdowell · **Posted:** Sun Aug 24, 2014 3:01 am

Don't naysay. It's not that bad. STB is not the only source of protection at the Federal level and certainly not at the state level.

Consider the example of Bingham v. RLTD. In which the court affirmed the railroad's right to be exempt from local jurisdiction even though it was a rail-trail. In fact the court decided on state laws alone, and dodged the question of how Federal law might apply.

Also, this case is not about the railroad right-of-way. It is about a railroad-owned parcel adjacent to the right-of-way. The protections are not the same.

* For instance, trespassing on the railroad is illegal even if it's not posted. But UP owns a ton of land (e.g. land grant property). If I cut across a UP-owned cornfield that is not posted, can I be arrested?
* Norfolk Southern owns a 4-story office building in Dearborn, Michigan. Can they just tell the building inspector to stay away because it's a "railroad auxiliary structure" regulated solely by STB?

Obviously these are stupid cases, and courts loathe stupid cases and punish those who bring them. Likewise I'm sure the STB didn't much appreciate the D&RGW H.S.'s appearance before them, again… and aimed to tell them to "get out and don't come back, there's nothing for you here."