The National Corridors Initiative Logo

Feb. 21, 2017
Vol. 17 No. 7

Copyright © 2017
NCI Inc., All Rights Reserved
Founded 1989
Our 17th Newsletter Year


A Weekly North American Transportation Update For Transportation
Advocates, Professionals, Journalists, And Elected Or Appointed Officials,
At All Levels Of Government.

James P. RePass, Sr.
Managing Editor / Webmaster
Dennis Kirkpatrick
Foreign Editor
David Beale
Contributing Editor
Molly N. McKay

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IN THIS EDITION...   In This Edition...

  Guest Opinion…
What American Commuter Rail Can Learn From Paris
  Transit-Oriented Development…
Denver Plans To Repay Union Station Debt Sooner,
   And RTD Says It Will Save $134 Million
  Funding Lines…
Metra Increases Fares To Fund Capital Projects
Federal Funding Halted For Caltrain Electrification
  Expansion Lines…
Kraft Group Sways Board To OK Commuter Rail
   Pilot Program
  Selected Rail stocks…
  Legal Lines…
Feds Move To Save Amtrak Regulatory Power
   Over Railroads
Mercer Island To Sue Sound Transit, WSDOT
   Over Light Rail Plans
  Political Lines…
U.S. Rep. Courtney Aims To Block Funding For
   FRA’s Northeast Corridor Plan
Moorman To Congress: “New Era” Of Amtrak,
   Investment Required
  Business Lines…
Softbank Buys Florida East Coast Owner
  Publication Notes …

GUEST OPINION... Guest Opinion...  

What American Commuter Rail
Can Learn From Paris

By Alon Levy
Streetsblog USA

For years, transit advocatesin New York and other U.S. citieswith legacy rail systemshave advocated for modernizing commuter rail to run more like a subway, often using Paris as an example. For good reason: Data suggests Parisianregionalrail lines are well-used throughout the day, meaning the system helps people forgo driving for all types of trips, not just the trip to work.

Starting in the 1970s, Paris connected its suburban rail lines to form the RER network. Instead of ending in stubs in the central city, the RER runs as an express subway throughthe city proper.Using time-of-day trip data*, we can compare the RER to its American counterparts.

While the largest share of boardings in the Paris suburbs isin the morning peak, there is also substantial ridership in the afternoon and evening. In contrast, commuter rail in the U.S. is tilted much more heavily to peak hour ridership.

In Paris, I attempted to exclude all stations that do not serve originating commuters: the airport, the city center stations, stations dominated by transfers, and the big suburban job centers. Across the remaining stations, representing the region’s bedroom communities, 46percentof weekday boardings are in the peak hours between 6 and 10 a.m.

On the LIRR, the corresponding figure, excluding city center stations, is 67percent.On Metro-North, excluding job centers White Plains and Stamford, it is 69percent (including them, it is 63 percent).On the MBTA, it is 81 percent.

U.S. commuter railroads are often full to seated capacity duringpeak hours but only carry a few people per car at other times.An entire off-peak MBTA train might have, at its fullest, 60 passengers. This is not the case in Paris, where midday RER trains routinely leave the city with every seat full.

There are two main reasons for this: service frequency and land use.This article focuses on frequency, with land use covered in afollow-up post.

Commuter rail service in the U.S. is simply not frequentenough throughout the day. Outside of rush hour, it’s common for trains to run once per hourin New York and Boston. Some MBTA lines have midday service gaps of two hours or longer. On LIRR branchlines, stations only get hourly service. Even on some LIRR and Metro-North trunk routes, service runs every 30 minutes.

This service pattern isnot frequent or reliable enough for people to orient their lives around the trains, so instead, anyone who can afford a car in the suburbs served by these trains gets one, and drives it to all destinations except the urbancore. To American regionalrail operatorsto think less in terms of peak-hour commuters and more in terms of good overall service, especially for people who do not own cars(even if they travelto the rail stationfrom another community).

Parisian commuter trains are oriented toward all-day ridership. The RER network is one of the most important models worldwide forrunning commuter rail like a subway, complete with an urban service pattern not too different from that of New York’s express subway lines. On the busiest RER trunk lines, the RER A and B, off-peak trains still comeevery fourand fiveminutes, respectively.

Even RER branchlines, and some suburban railbranches not connected to the RER, have high off-peak frequency. Typicaloff-peak trains on these lines come every 15 minutes, rising to 10 minutes on two out of three RER A branches.A few come every 20 minutes, and fewer still come every 30. The trains are usually either on time or only two to threeminutes late. (Only distant exurbs have hourly service, and there, ridership is indeed concentrated in peak hours.)

Moreover, off-peak schedules are predictable — trains always come the same number of minutes after the hour (known as clock face scheduling). For example, at Bures-sur-Yvette, a southern Paris suburb, inbound RER B trains leave at :03, :18, :33, and :48 after the hour between 10:33 and 3:48 every weekday. It’s easy forpeople tomemorize the schedule, and if they live within walking distance of this or any other RER station, they can time their arrival at the platform to coincide withthe train. In the U.S., Metro-North and some LIRR lines have off-peak clock face schedules (every hour, rarely every half hour), but on the MBTA only the Lowell Line does.

There’s growing emphasis on frequency among transit advocates in the U.S. This is because even rush hour ridership benefits from higher off-peak frequency: Office workers are more likely to ride the train when the trains will still be frequent at 7 or 8 p.m. if work runs late.

But off-peak frequency is the most useful for off-peak ridership, of course. This is why it is so significant that Paris gets especially high off-peak ridership. Itsuggests that if frequency on U.S. commuter rail improves, more people will choose to orient their lives around the better transit service. Some will choose not to own a car, whileothers will still own one but use it less than they do today.

Commuter rail operators may think that adding frequency would just result in running more empty trains, but the fact that off-peak RER trains are full suggests otherwise. If transit agencies choose to add more service, off-peak ridership is likely to rise disproportionately to the increase in frequency.

*A note of caution on the data: the Parisian numbers do not cover the entire commuter rail network. Paris has two different operators: RATP, which runs the Metro, most of RER A, and half of RER B; and SNCF, which runs the RER lines that RATP does not, as well as the more traditional Transilien lines. Only SNCF makes time-of-day data available to the public, based on one-day counts; RATP only has annual numbers. In the U.S., three big commuter railroads provide time-of-day data: the LIRR and Metro-North in New York, and the MBTA Commuter Rail in Boston. Of those, Metro-North and the MBTA only provide data on inbound boardings, though the MBTA also says it has very few outbound boardings in the suburbs.

From an article appearing at:

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TRANSIT-ORIENTED DEV... Transit-Oriented Development...  

Denver Plans To Repay Union Station Debt Sooner,
And RTD Says It Will Save $134 Million

City, RTD Refinance $300M In Loans After Development
Fuels Tax Proceeds That More Than Triple Projections

By Jon Murray
The Denver Post

The development boom that is sprouting a neighborhood around Denver’s Union Station project has come fast, spiking property and sales tax proceeds to levels not expected until 2022, city officials say.

Last week, the city and the Regional Transportation District took advantage of that revenue — which came in at triple the original projections last year — by refinancing $300 million in federal loans. Those provided the bulk of the money for the marquee project of Denver’s transit expansion.

The upshot: both governments will save money by paying lower interest rates, and Denver expects to pay off its share in eight years. RTD projects it will save $6 million a year through 2040, or $134 million.

That money potentially could help fill gaps in underfunded rail lines in RTD’s $5.3 billion-and-counting FasTracks program. “It’s a big deal,” RTD spokesman Nate Currey said.

The restructuring of the project loans less than three years after Union Station’s reopening is a bright spot amid ongoing technical crossing issues with RTD’s new commuter rail lines and the long-resented shelving of its northwest rail line to Boulder and Longmont.

“With 100,000 commuters passing through it every day and the incredible economic and residential growth that has occurred around it, Denver Union Station has become one of our city’s greatest success stories,” Mayor Michael Hancock said in a statement. “As the area continues to outperform growth projections, we are taking steps to ensure that we are saving taxpayer money by aggressively paying off our debt.”


Photo: Brent Lewis, The Denver Post

Denver’s Union Station with the Winter Park Express ski train on Saturday, March 14, 2015.

Here is a look at how Union Station is performing financially:

A $500 Million Project

Union Station has become the hub for Denver’s new and future commuter rail lines in a nearly $500 million project that built new train platforms and a new light rail station, linked by an underground bus concourse that spans two blocks.

A $50 million renovation of the historic Union Station terminal, now owned by RTD, brought several bars, restaurants and concessionaires, along with the Crawford Hotel, when it reopened in spring 2014.

The structure has become the centerpiece of a new dense neighborhood in an area where rail yards once provided a bleak backdrop. Block after block has attracted $1 billion in private development — with each now covered or soon to be filled with mid-rise apartments, office buildings and hotels.


Rendering provided by East West Partners and Amstar Advisors

A rendering of The Coloradan, a 19-story, 342-unit condominium tower under construction at 1750 Wewatta St. in the Union Station neighborhood.

How The Project Was Financed

Two major federal loans approved in 2010 provided $300 million, with the rest coming from federal grants, an RTD contribution, state and local money and land sales. To repay them, RTD and the city set out to use RTD’s regional sales tax and tax-increment financing, which captures future gains in tax proceeds due to improved values in an area to finance current improvements.

At the time, Denver City Council faced some public consternation about the Union Station project’s prospects when it was asked to approve a measure putting up general-fund city dollars as a backstop for a portion of the loans — in case tax receipts failed to cover the payments.

Tax Money Beats Projections — By A Lot

So far, those concerns have become moot. The city’s finance department provided figures showing that project analyst CBRE projected tax revenue in the area in 2016 would be $3.9 million, including $635,657 from sales tax and $3.2 million from city, Denver Public Schools and special Union Station Metropolitan District property taxes.

Last year’s proceeds from those two types of taxes outpaced projections by 336 percent, at nearly $13 million total, with $11.7 million from property taxes and $1.3 million from sales taxes.

How The Boon Affects Loan Repayment

With recent approval from the City Council and RTD’s board of directors, the two governments opted to refinance the federal loans. That meant paying off a $311 million balance, which included interest that had accumulated during the construction years.

The refinancing resulted in $291 million in new borrowing: Denver took out a $197 million city loan, and RTD issued $94.4 million in bonds.

Denver’s terms call for 12 years of repayment and a 3.39 percent interest rate. But Courtney Law, the spokeswoman for the Department of Finance, says the faster-than-expected development near Union Station has the city planning to pay off that loan in eight years instead. It estimates it will save $10 million.

The city then projects that $31 million in annual tax increment — the portion diverted to pay for the loan — will flow into city, school district and metro district coffers instead.

It’s A Little Different For RTD

For the cash-strapped transit agency, the refinancing is resulting not in quicker repayment but in cheaper bills, with a better interest rate at 3.6 percent. That is expected to save nearly $6 million a year on payments starting in 2018, lasting through payoff in 2040.

RTD will tap its regional sales tax proceeds and fare box revenue to make payments, Currey said.

What about the northwest rail line?

It’s too soon for RTD to assess how it might use the money, which will become available over time. But U.S. Rep. Jared Polis, a Boulder Democrat, was quick to suggest in a news release issued Thursday afternoon that RTD should commit to put those savings toward finishing the northwest line.

That project’s cost has been estimated at north of $1.1 billion. Last year, RTD opened the first small segment from Union Station to the first stop, in Westminster, but the rest is unfunded.

“The people of Colorado approved FasTracks with the promise of Northwest Rail connecting Boulder, Broomfield, Louisville, Niwot and Longmont to the Denver metro area rail by 2017, then after passage that promise was broken and a ridiculous and unacceptable completion date of 2042 was announced,” Polis said in the release. “I have said time and again that a delay of 20-plus years is unacceptable. Now RTD has an opportunity to put a $134 million down payment toward correcting that broken promise, and they should take it.”

From a piece appearing in:

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FUNDING LINES... Funding Lines...  

Metra Increases Fares To Fund Capital Projects

By Jackie Murray
Columbia Chronicle

Facing ongoing financial constraints, Metra has raised fare prices for the third year in a row.

Effective Feb. 1, customers will pay 25 cents more for a one-way ticket, $2.75 more for a 10-Ride ticket and $11.75 more for a month-long pass, according to the Metra website. The decision was made in November 2016 after the commuter railroad company failed to make up capital funding needed for a series of incomplete structural and equipment projects.

“We evaluate the budget every year,” said Metra Spokeswoman Meg Reile. “In this case, that increased revenue is entirely allocated for use on capital projects.”


Photo:  G-Jun Yam

Metra commuter trains cue up at the station for daily service

The fare increase is expected to bring in $16.1 million in revenue by the end of 2017 with all proceeds going toward capital improvement projects, such as repairs to facilities and a car rehab program, according to Reile.

Reile said Metra’s capital budget has remained flat for some time. The company has more than $11 billion in capital needs over the next ten years, and it receives only about one-third of that, she added.

Sophomore journalism major Ariana Dolce lives in the city but takes the Metra a few times a month to visit family in the suburbs, using one-way tickets or weekend passes. Dolce said she will probably continue to use Metra on occasion but will instead rely more on receiving rides from family.  

“[Before the increase, it] was still kind of heavy on the pocket, and now it’s going to be even heavier,” Dolce said.

Government Relations Director of the Active Transportation Alliance Kyle Whitehead said while it is never good news when a transportation agency decides to raise fares, Metra is facing a lack of support from other levels of government.

“We would love if [transit was] even more affordable, but we also think it’s important to recognize the need to invest, improve and expand    public transit in the Chicago region,”  Whitehead said. “Responsibility doesn’t just fall on the transit agencies themselves but also our local, state and federal elected officials.”

Whitehead said because there has been a growing interest in riding transit in the Chicagoland area, an additional burden companies bear is to improve on the system’s infrastructure.

“From their perspective, the only way they can [improve] is with this schedule of fare increases over the next several years,” he said

For many citizens in Chicago and the surrounding suburbs, Metra is the best option available for convenient and affordable transportation for those who do not have access to a vehicle, he added.

“In many cases, people rely on Metra to be able to access jobs they wouldn’t otherwise be able to access  if they didn’t have a Metra station in their community,” Whitehead said. “The more people we can move through transit, the better off everybody’s going to be because we can have a more walkable, bikeable and livable city.”

From an item at:

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Federal Funding Halted
For Caltrain Electrification

Delay Puts Project To Electrify Rail At Risk
Of Being Scrapped, Rail Official Says

By Mark Noack - Mountain View Voice
Via Almanac News

The $1.96 billion Caltrain electrification project came to screeching halt on Friday, Feb. 17, after it was announced that Federal Transit Administration officials were holding back grant funding needed within days for construction to begin.

The $647 million grant request from Caltrain could still win federal approval down the line, but Federal Transit Administration (FTA) officials are reportedly telling local officials that the request must be added to President Donald Trump’s 2018 budget.

At the very least, it amounts to a delay; at worst, it could mean the project is scrapped, said Seamus Murphy, spokesman for the Caltrain electrification project.

“Under normal circumstances this should have been easy, but now we don’t know if federal funding will be there,” he said. “If we don’t have access to the federal funds, then we won’t have a Caltrain electrification project.”

FTA representatives could not be reached for immediate comment.


Almanac News file photo by Michelle Le.

A southbound train at the Fair Oaks Lane crossing in Atherton.

If the political climate were different, Caltrain officials say, the funding request would have been a shoo-in for approval. FTA officials gave the electrification project medium-high ratings in a July review, which normally would have guaranteed approval.

Of the dozens of grants awarded through the FTA capital investment program, Murphy said it is unprecedented for a project that met all the requirements to be deferred like this.

But even before the FTA announcement, the rail electrification upgrades seemed to be barreling toward political danger. Earlier this month, it was revealed that California’s congressional Republican delegation sought to block the Caltrain electrification funding as a way to also stymie the state’s $64-billion high-speed rail project. That coalition of 14 representatives sent a Jan. 24 letter to new Secretary of Transportation Elaine Chao, urging her not to sign off on the grant.

In a statement issued Friday afternoon, Rep. Anna Eshoo denounced the delay as a political maneuver and pledged to try to get funding approval before next month.

“I never imagined that the electrification of a train would be subjected to such brutal, partisan politics,” she said in her statement. “The only requirement this didn’t meet was a political one.”

Caltrain officials say they have been scrambling since first learning Friday morning that the federal portion of the $1.96 billion project was being held back.

Losing out on that money throws into jeopardy the project’s two main contracts with Stadler Rail AG and Balfour Beatty. In those contracts, Caltrain officials had committed themselves to a March 1 deadline to give the go-ahead for construction. It is still unclear what it would mean if Caltrain misses that deadline, Murphy said.

“We’re evaluating our options and determining how long we can extend that deadline,” Murphy said. He declined to elaborate on any options being considered.

Caltrain has already spent $150 million on design and preliminary construction to prepare for electrification to begin this year. As of now, the project is described as “shovel ready” and capable of providing thousands of jobs.

Originally pitched more than 15 years ago, the project to electrify the Peninsula rail corridor would be a dramatic upgrade to a transit system used by more than 47,000 daily riders on average.

The 51-mile Caltrain line stretching from San Jose to San Francisco is running at full capacity with diesel-powered engines that have been outpaced by newer technologies. A new electrified system could reportedly run about 20 percent more trains and eventually reduce emissions by up to 97 percent.

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EXPANSION LINES... Expansion Lines...  

Kraft Group Sways Board To OK
Commuter Rail Pilot Program

By Bera Dunau
The Sun Chronicle

When it comes to expanding commuter rail service to Foxboro [MA], it looks as if the Foxboro Board of Selectmen has chosen to trust in The Kraft Group.

By a vote of 4-1, with Ginny Coppola dissenting, the board of selectmen voted once again to back a pilot program that would run daily commuter rail service during the work week from Foxboro to Boston. This pilot program would involve a partnership between the Massachusetts Bay Transit Authority, the Kraft Group and the Massachusetts Department of Transportation.

The meeting last week was attended by Kraft Group Representative Dan Krantz and Ryan Coholan, chief railroad officer at the MBTA. And it was Krantz who made the most persuasive pitch to skeptics, including selectman Jim DeVellis, who worry about a future layover station on Kraft property behind North Street homes.

“Jim, all of Foxboro,” said Krantz. “Trust in us, we’re going to do the right thing.”


Photo by Mark Stockwell

The Foxboro Station platform is adjacent to the single-track Framingham Secondary line.  The stadium and Patriot Place shopping area can be seen in the background just beyond the trees.

Location, Location, Location

By DF Staff

The branch line being considered for commuter service is already used during the football sports season for select game-day service between Foxboro Stadium, home of the New England Patriots football team, and Boston, MA.  A second train operates on this branch on select game-days to Providence, RI.

The branch is part of the “Framingham Secondary” which was previously owned by CSX Corp. but purchased in recent times by the MBTA.  The full length of the secondary runs an inland north-south route and connects the Northeast Corridor (NEC) in Mansfield, MA. with the inland route between Boston and Worcester in Framingham, MA.  The proposed pilot service would start in Boston and run on either the NEC or Fairmount branches to Readville Junction, then travel the Franklin branch to Walpole, MA.  At Walpole, it would leave the Franklin Branch and join the Framingham Secondary southward (west) to Foxboro, MA.  

The Kraft Group’s stadium parking lot used by the football stadium and the Kraft’s “Patriot Place” shopping mall would serve as a place for commuters to park.  It is located on MA Rt 1 and a short distance from access to Interstate Rt 95.  

The proposed train layover facility would be on Kraft Group property at the edge of the parking lot that is currently used for storage and the former site of a seasonal Halloween haunted house concession which ended several years ago.

Diesel multi-units (DMU) had been proposed for this service but present state budget constraints will not see that happen.  Rather some configuration of the present MBTA diesel-powered commuter trainsets operating in push-pull configuration would be used.

Krantz also said that the Kraft Group would not do anything that would negatively affect the value of their property or their neighbor’s properties. He also cited a DeVellis quote from a past issue of The Foxboro Reporter where DeVellis had said that he trusts the Kraft Group.

A previous 4-1 vote giving the board’s blessing to the project was taken at the end of November of last year.

However, that approval came with a number of conditions, including a permanent ban on an overnight layover facility for trains in town.

However, in a Dec. 20 letter, the MBTA explained that, while a layover would not be a part of a pilot program, permanent rail service would almost certainly require a layover.

The 2015 MOU between the DOT, The Kraft Group and the MBTA to provide permanent commuter rail service to Foxboro is serving as the basis for the pilot program has a layover included in it.

The selectmen did not decide on whether or not to endorse the pilot program until Tuesday’s meeting because they were not able to get all five members at a meeting until Jan. 24, after which DeVellis, who put the layover condition on the original approval, asked that the MBTA and the Kraft Group come in and speak about the layover issue.

Coholan gave an overview of activities at layovers, saying that these facilities are used to park trains, and that they are located primarily at the end of train lines. He also said that inspections and light repairs are conducted there as well.

In his comments, DeVellis said that he went to Scituate to look at the layover facility there. He noted that, while there is a mitigation wall in place there, it doesn’t completely mask the activities at the layover station.

“I definitely could hear the noise,” he said, adding that one could also smell diesel.

DeVellis also asked about what kind of input the town would have in the process of siting the layover station and in the mitigation efforts for it, and was informed by Town Manager Bill Keegan that such a facility would be immune from town zoning, although Coppola raised questions about that. He then said that he was looking for some assurances from the MBTA or the Kraft Group, which caused Krantz to speak up.

Krantz pointed out that the MOU was a framework, not a final contract, and outlined some key points of it.

On the layover, Krantz said that an effort would be made to keep the layover away from North Street and residences. Although the MOU does give a location for the layover, Krantz noted that the Kraft group does have the option to propose another location, and characterized the currently proposed location as a “placeholder.”

DeVellis also said that he hadn’t appreciated the MBTA not saying that there would be a layover station in Foxboro in their initial presentation on the pilot program, when they were asked if one was coming.

“Either they sent people that didn’t know or someone wasn’t telling the truth,” said DeVellis.

Coppola was the only selectman to vote against the pilot program in November, and her opposition was unchanged at Tuesday’s meeting.

“It was noisy, there was an odor, there was vibration,” said Coppola, speaking of the Scituate layover. “We were on the streets that were right behind the wall. And there was noise, and there was a smell.”

She said that such effects should be mitigated, and noted that mitigation in Scituate had included the construction of both a wall and payments to property owners.

She also noted that Foxboro is not formally a part of the MOU.

“I see in no way where the town of Foxboro has a seat at that table,” said Coppola.

She also asked what guarantees could be given that neighbors would not be negatively affected by a layover, even with mitigation, seeming to conclude that such an assurance would not be possible.

“That neighborhood in Scituate is not a pretty neighborhood,” she said.

Krantz assured her that the town would have a seat at the table. Coppola said that she believed Krantz’s word, but that she wanted to see such an assurance in writing before the vote. Krantz did not object to putting the assurance in writing, but said that doing so before the vote would not be necessary.

“I will work with Mr. Krantz directly to make sure that that happens,” said Keegan.

Coppola once again questioned the need for a station in Foxboro, and noted that the proposed line would not go to Back Bay station.

Toward the end of the debate, Board of Selectmen Chairman David Feldman noted that there hasn’t been a large outcry from residents who might be effected by a layover.

“There’s been very little pushback (from) people on North Street and Hallowell,” he said.

He also noted the widespread support that the pilot program has received in town.

“I don’t see how we can go in any other direction,” said Feldman.

He also said that federal regulations would also govern the development of the site.

“I think we have adequate protection,” he said.

In the end, the board voted to rescind their previous endorsement and replace it with an endorsement that was in line with the MBTA’s Dec. 20 reply, and asked that the town would work directly with the MBTA and the Kraft Group to address any concerns that come out of the pilot program. Coppola was once again the only no vote.

The town’s assent was necessary for the pilot program to go forward. The project now needs to be approved by the MBTA’s Fiscal Management Control Board, which expressed skepticism about the pilot at a recent meeting.

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STOCKS...    Selected Rail Stocks...
BRKB – Burlington Northern Santa Fe

CNI – Canadian National

CP –  Canadian Pacific

CSX – CSX Corp

GWR – Genessee & Wyoming

KSU – Kansas City-Southern

NSC – Norfolk Southern

PWX – Providence & Worcester

UNP – Union Pacific

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LEGALLINES... Legal Lines...  

Feds Move To Save Amtrak Regulatory Power
Over Railroads

By Linda Chiem

The federal government asked a Washington, D.C., judge last Monday to issue an order largely preserving a federal statute allowing Amtrak to set performance and scheduling standards along the nation’s passenger railways, even though the D.C. Circuit already struck down the statute as unconstitutional last year.

Attorneys for the U.S. Department of Transportation filed a motion with the D.C. federal court requesting the entry of a final judgment that “severs” an arbitration provision in the Passenger Railroad Investment and Improvement Act of 2008, but preserves the rest of the law giving Amtrak power to regulate freight railroads that compete with it for track use.

It’s an unusual motion considering the D.C. Circuit in April 2016 rejected PRIIA in its entirety as being unconstitutional, saying Congress “piled anomaly on top of anomaly” when it drafted the statute endowing Amtrak — a for-profit corporation indirectly controlled by the U.S. president — with agency powers and authorizing it to regulate its resource competitors under Section 207 of PRIIA, according to the opinion.

The DOT now argues that the D.C. Circuit did not specify a remedy for the constitutional violations it identified in that ruling so it now falls to the district court to craft a judgment effectuating the D.C. Circuit’s decision. In particular, it said the D.C. Circuit did not describe which aspects of the relief requested by plaintiff should be awarded, such as requesting an order vacating the metrics and standards, a declaration that any past action under Section 207 is null and void, an injunction barring defendants from implementing, applying or taking any action whatsoever pursuant to Section 207 or the metrics and standards, or any other appropriate relief, according to its motion.

In its request on Monday, it asked the district court to set aside the existing performance metrics and scheduling standards on the books that Amtrak jointly developed with the Federal Railroad Administration, and “severing” the arbitration provision of PRIIA — Section 207(d) — from the remainder of the statute.

“This judgment would cure the constitutional defects identified by the D.C. Circuit,” the government said in its motion. “It would also permit the FRA and Amtrak, ‘in consultation with’ freight railroads and other stakeholders, 207(a), to again issue metrics and standards, an important step toward remedying the ‘poor service, unreliability, and delays resulting from freight traffic congestion’ that motivated Congress to enact the PRIIA.”

To further back its request, the government says the existing metrics and standards were developed through a process identified by the D.C. Circuit as unconstitutional, and, so, under that court’s opinion, cannot stand. But as for the PRIIA statute itself, the court should sever only the arbitration provision and not strike down all of Section 207, the government says.

The D.C. Circuit ruled in April 2016 that PRIIA violated the Constitution’s due process clause because it granted a self-interested party, Amtrak, regulatory authority over its competitors, as in the freight railroads that use and actually own much of the same tracks on which Amtrak travels.

The appeals court also ruled that PRIIA violated the Constitution’s appointments clause because it authorized either a private citizen or an improperly appointed government official — picked by the Surface Transportation Board — to exercise significant governmental power in the event that Amtrak and the FRA disagreed on what metrics or standards to come up with.

The government claims that both of those constitutionality holdings depend on the arbitration provision so getting rid of just that problematic section in the law would be enough to render the rest of the statute kosher in the eyes of the D.C. Circuit.

But the Association of American Railroads, which launched the suit on behalf of the freight railroads, quickly pounced on the government’s motion on Monday. The AAR said in a statement to Law360 on Monday that the government didn’t petition the U.S. Supreme Court to review the D.C. Circuit’s ruling, yet it’s now trying to have a lower court revive a law the appellate court unequivocally invalidated last year as being unconstitutional.

“But rather than accept the D.C. Circuit’s decision, the government is now asking the district court to resurrect the statute,” the AAR said. “The government’s effort to circumvent the D.C. Circuit’s binding decision is misguided and will be opposed by AAR and its members.”

Gibson Dunn partner Tom Dupree, who is representing the AAR in the long-running case, similarly slammed the government’s motion Monday.

“This is a transparent effort to circumvent the D.C. Circuit’s ruling striking down Section 207,” Dupree said in a statement to Law360. “Rather than accept the D.C. Circuit’s decision, the government is now asking the district court to override that decision and reach the opposite result.  We are reviewing today’s filing and will respond in due course.”

The DOT had fought tooth and nail against the D.C. Circuit’s ruling, pushing for a rehearing or a rehearing en banc last summer. It insisted that the three-judge panel invalidated an act of Congress on “novel constitutional grounds” and based its holding on the “mistaken conclusion” that Amtrak’s role in promulgating the metrics and standards amounted to regulatory authority.

According to the agency, while Amtrak collaborates with the Federal Railroad Administration on the metrics and standards to help determine when Amtrak can trigger an investigation by the Surface Transportation Board, the actual regulatory power lies with the STB, according to court filings. The economic rail regulator can impose relief against a freight railroad based only on the railroad’s failure to comply with the separate and long-standing statutory preference requirement, the DOT argued.

However, the D.C. Circuit denied the DOT’s rehearing bid in September 2016. The agency and the federal government had until Feb. 6 to petition the Supreme Court to review the case, but it didn’t file a petition.

AAR is represented by Thomas H. Dupree Jr., Amir C. Tayrani and Lucas C. Townsend of Gibson Dunn, and by in-house counsel Kathy Kirmayer and Daniel Saphire.

The government is represented by Chad Readler, Channing D. Phillips, Judry L. Subar, and Justin M. Sandberg of the U.S. Department of Justice.

The district court case is Association of American Railroads v. U.S. Department of Transportation et al., case number 1:11-cv-01499, in the U.S. District Court for the District of Columbia.

The appellate case is Association of American Railroads v. U.S. Department of Transportation et al., case number 12-5204, in the U.S. Court of Appeals for the District of Columbia Circuit.

Editing by Katherine Rautenberg.

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Mercer Island To Sue Sound Transit, WSDOT
Over Light Rail Plans

The City Claims Violation Of A 1976 Agreement
Which Gives It Unique Privileges

By Zosha Millman

As light rail expansion plans continue to roll out, several Mercer Island residents are worried they’re living on the wrong side of the tracks.

The city of Mercer Island has announced its intention to sue Sound Transit and the state Department of Transportation over the loss of access to Interstate 90’s carpool lanes.
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Mercer Island residents -- even when driving solo -- have historically been granted access to I-90’s high-occupancy vehicle lanes, thanks to a deal struck in 1976 during pre-construction planning for the freeway. But later this year, when construction gets underway to add light rail across the I-90 express lanes, that access will go away.

In addition to losing HOV access, drivers on the affluent island would also lose access to ramps from Island Crest Way, the island’s major arterial, which city leaders said would result in congestion around the narrower streets of the city center.

It’s an issue that’s been grinding gears on Mercer Island ever since the light rail plan was proposed. On Feb. 1, a letter from both agencies confirmed that, under federal law, they could not permit single-occupancy vehicles to use HOV lanes.

“Neither the Washington State Department of Transportation (WSDOT) nor Sound Transit are empowered to reverse the Federal Highway Administration’s decisions regarding access by single-occupant Mercer Island traffic to the new HOV lanes across Lake Washington,” Sound Transit CEO Peter Rogoff said in a statement issued Tuesday.

And so, last night at a packed City Council meeting, Mercer Island’s council voted to sue.

For islanders, it seems, the issue is one of preserving the agreement from 1976, and of land use (local journalist Erica Barnett tweeted that someone during the meeting equated this fight to the battle over the Dakota Access pipeline). As an island spokesperson said, the suit was about buying some “breathing room.”

“Islanders approved the East Link Light Rail Project by a conclusive margin, and as a community, we still believe in the benefits the Project will provide to the region and to us,” Mayor Bruce Bassett wrote in a statement.  

“But even the best public works projects bring consequences that must be taken seriously and mitigated effectively. So far, negotiations with Sound Transit and WSDOT haven’t yielded results, but we remain hopeful this issue can be resolved favorably and swiftly.”

The 14-mile East Link project has been chugging along for more than eight years and is scheduled to open in 2023. Both Sound Transit and WSDOT say they remain committed to staying on schedule.

“While Sound Transit remains ready to reach solutions through negotiations, the agency will take all legal actions necessary to avoid delays or increased costs to taxpayers in fulfilling our promise to voters to complete East Link,” Rogoff said. “Building fast and reliable light rail service across Lake Washington is not only a commitment to the residents of Bellevue, Redmond, Mercer Island and Seattle but to every resident of the Sound Transit District.

“Delays to the East Link project pose significant risks of increased costs to regional taxpayers and significant delays to opening the project in 2023.”

The city will seek an initial six-month moratorium on East Link permitting. It’s moving full steam ahead in order to preserve its unique privileges, such as HOV access, Mercer Island resident-only parking at the park-and-ride lot, and special bus access.

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POLITICAL LINES... Political Lines...  

U.S. Rep. Courtney Aims To Block Funding
For FRA’s Northeast Corridor Plan

From Progressive Railroading

U.S. Rep. Joe Courtney (D-Conn.) has vowed to block federal funding that would be used to implement the Federal Railroad Administration’s (FRA) NEC FUTURE rail improvement project.

Courtney received a letter from the House Appropriations Subcommittee on Transportation, Housing and Urban Development that stated there is no funding for the FRA to implement the plan’s rail upgrades in the Northeast Corridor either under current law or in the fiscal-year 2017 budget for transportation appropriations, the congressman said in a press release.

Courtney is objecting to the plan in response to constituents’ concerns about a proposal that would change Amtrak’s Boston-to-Washington route. One recommendation calls for a new route dubbed the “Kenyon Bypass” that would allow higher-speed trains to travel through coastal towns in Connecticut and parts of Rhode Island.

Proposals in the NEC FUTURE plan are subject to the appropriations process. The FRA has been gathering feedback on its Tier 1 final environmental impact statement for the plan, which was unveiled last year.

“The letter I received from House appropriations ... makes it perfectly clear that there is simply no money being provided to FRA for implementation of their NEC FUTURE plan, including the so-called Kenyon Bypass,” said Courtney in a press release.

“I will continue to work with my colleagues from both sides of the aisle to ensure that no funding is made available now or in the future for FRA to implement any upgrades which harms communities here in southeastern Connecticut,” Courtney added.

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Moorman To Congress: “New Era” Of Amtrak,
Investment Required

By Stuart Chirls
Railway Age

The head of Amtrak told lawmakers a new era of infrastructure investment is needed to ensure a healthy future for long-distance passenger rail travel in the U.S.

Amtrak President and CEO Wick Moorman urged a hearing of the Senate Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security to invest in the carrier’s infrastructure, fleet, and stations.

“The time is now to invest in our aging assets,” Moorman said in prepared remarks. “More than ever, our nation and the traveling public rely on Amtrak for mobility, but the future of Amtrak depends on whether we can renew the cars, locomotives, bridges, tunnels, stations and other infrastructure that allows us to meet these growing.

Amtrak had record ridership of more than 31 million passengers and ticket revenues of $2.2 billion in 2016, Moorman said. “I’m certain that we can get even better by relentlessly improving our safety culture, modernizing and upgrading our products and strengthening our operational efficiency and project delivery.”

The former chief executive of Norfolk Southern said that Amtrak, now 45 years of age, needs additional support from Congress and the Trump Administration to upgrade aging assets in order to continue to provide reliable services and network operations.

The benefits to the traveling public and the national economy are worth significant investment, said Moorman, including in these projects:

Amtrak, he said, is focused on identifying ways to improve collaboration with the 21 states and various commuter agencies it partners with to provide service on corridors across the country as well as on the Northeast Corridor.

Moorman urged the Federal government to explore different ways to back intercity passenger rail service such as direct investments, public-private partnerships and innovative financing, streamlining of the environmental review process, and less bureaucratic red tape.

Moorman added that such rail infrastructure investments not only help Amtrak better serve passengers, but also stimulate job growth in construction, manufacturing, and professional services. Rail cars, locomotives, steel, concrete, machinery, signals and track are sourced from across the nation.

“Investments in these sectors can help spur the rebirth of America’s passenger rail manufacturing and supply sector,” he said.

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BUSINESS LINES... Business Lines...  


Softbank Buys Florida East Coast Owner

By Stuart Chirls
Railway age Magazine

SoftBank Group Corp. has acquired Fortress Investment Group LLC, parent of Florida East Coast Railway and TRAC Intermodal, for $3.3 billion in cash.

Florida East Coast was acquired by Fortress and taken private in 2007. The hedge fund in 2016 reportedly had explored a sale of the regional carrier, which operates 350 miles of track between Miami and Jacksonville.

TRAC is the largest provider of intermodal chassis with 267,000 in its active fleet and 60 depots in North America.

Fortress also owns the Central Maine & Quebec Railway.

The terms of the deal approved by Fortress’ board represent a 38.6 percent premium on the stock price for shareholders.

Tokyo-based Softbank said senior management would remain in place as Fortress operates as an independent entity headquartered in New York. It has about $70 billion under management.

Softbank, owned by Masayoshi Son of Japan, has emerged as a major player in technology and communications, with $180 billion under management. It acquired control of telecom provider Sprint Corp. in 2013.

Subject to approval by Fortress shareholders and regulators, the transaction is expected to close in the second half of 2017.

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PUBLICATION NOTES...  Publication Notes...

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