The STB released a decision late yesterday revoking the Class Exemption granted to James Riffin to acquire and operate the Northern Central between York and Baltimore.

The very short version of the opinion was that there were sufficient questions raised concerning the legitimacy of the notice that the authority to acquire and operate the railroad should be revoked, and that Mr.Riffin's application should be made subject to full regulatory scrutiny and he is invited to resubmit the petition for full scrutiny under the appropriate rules.

A request for sanctions against the attorney who represents the State of Maryland was dismissed out of hand.

The Board did point out that Mr. Riffin was claiming on one hand in state court that the state could not regulate his activities on certain properties because his status as a railroad invoked the doctrine of Federal Preemption and was claiming before the STB that arguments concerning those same properties belonged in state court because they were not connected with the railroad.

COMMENTARY: While I am willing to reluctantly acknowledge that some of my brother practitioners of the black art of the law are not terribly bright, for Mr. Riffin to think that we would buy that pair of arguments is an insult that makes the worst of the lawyer jokes pale. This is the first time I have ever seen someone actually use the “orphan defense” – Killing one’s parents and pleading for mercy on the grounds that one is an orphan.

There really was a lot wrong with both of the petitions and the answers to the subsequent filings, not the least of which were that there did not seem to be a business plan which would sustain the operation and the ability to acquire the property rights was highly questionable. Then of course there is the problem of levitating the dinner train or the cars of aggregate or “infield dirt” between the segments. What is really scary from a legal point of view were the assertions made concerning the absolute right to condemn right of way and the extreme over reach of the preemption doctrine to include properties which were not related to railroad operations. There is a substantial body of case law on these two topics and Mr. Riffin’s claims do not seem on their face to have been consistent with it.

I have two possible conclusions: The first is that Mr. Riffin is a well meaning railfan who did not finish his homework or obtain good legal counsel before wading into the regulatory morass and simply ended up way over his head. The second, and in my mind more likely, conclusion is that there may never have been a legitimate intent to operate a railroad, at least not on the Maryland end, and that the STB filings may well have been for the purpose of evading the environmental regulations and/or acquiring use of the land under the right of way for purposes other than a railroad.

The judge in Baltimore County will have to straighten that one out. For Mr. RiffinÂ’s sake it would be slightly better if the first conclusion is correct. If I were sitting on this and I reached the second conclusion the next item on my calendar concerning Mr. Riffin would be would be the hearing on a contempt citation.

I would suggest for purposes of remaining topical on this board that this be considered an example of what not to do if you are attempting acquire a property to operate and how useful good legal counsel can really be. Though somewhat out of date, the best book yet on starting a short line, McCaffery and Gibertson, was written by lawyers.

GME



STB Decision
gmedwardsesq@juno.com

> Though somewhat out of date,
> the best book yet on starting a short line,
> McCaffery and Gibertson, was written by
> lawyers.

> GME

What would be the title of said book?
Thanks,
J



jeff_acock@hotmail.com

McCaffery, R. Lawrence Jr. and Gilbertson, Peter A., "STARTING A SHORTLINE" American Shortline Railroad Association, Washington, DC, 1983
GME
> What would be the title of said book?
> Thanks,
> J


gmedwardsesq@juno.co