Rail and Transit Litigation

Southeastern Pennsylvania Transportation Authority (SEPTA) Northeast Corridor Access Litigation: Our team successfully represented SEPTA in litigation against Amtrak seeking confirmation of SEPTA’s right to access and use the Philadelphia section of the Northeast Corridor (NEC) and adjacent stations pursuant to property and statutory rights created when Congress allocated rights in the NEC among commuter, passenger and freight operators. We obtained summary judgment on the statutory right of access in the District Court and the Court of Appeals affirmed SEPTA’s property right of access.

Albuquerque ART Project Litigation: We successfully represented the City of Albuquerque in litigation challenging a bus rapid transit project known as Albuquerque Rapid Transit (ART) on a 14-mile section of Central Avenue, a part of the historic Route 66. Project opponents filed cases in state and federal court; we successfully removed the state suit to federal court and consolidated the cases. To allow the City to meet its construction goals we obtained an accelerated schedule on Plaintiffs’ Motions for Preliminary Injunction and worked with FTA’s counsel to prepare an expedited administrative record. After a three-day evidentiary hearing, the court denied the injunction. The plaintiffs immediately appealed to the Tenth Circuit and sought an emergency stay pending appeal. We prepared a response in less than 36 hours, resulting in the Court denying the stay. Following an accelerated briefing and argument schedule, the Tenth Circuit affirmed the trial court and allowed the project to proceed on schedule.

East Side Rail-to-Trail Corridor: Kaplan & Kirsch successfully represented King County, Washington, in contested proceedings before the STB to secure approval as the trail sponsor under the National Trails Act. Our lawyers subsequently prevailed in a series of contested proceedings by neighboring landowners asserting reversionary property interests in the railbanked right-of-way, as well as two attempts by start-up railroads to obtain rights to use the right-of-way based on speculative plans to provide freight rail service in suburban Seattle. Our success allowed King County and its partners to continue developing the rights-of-way as recreational trails.

State Public Utilities Commission Proceedings: The firm successfully represented La Plata County, Colorado, in bringing a petition for declaratory order before the Colorado Public Utilities Commission regarding the applicability of the County’s land use authority against improvements made by the Durango & Silverton Narrow Gauge Railroad to its properties abutting its excursion rail line. The Commission unanimously declared that its jurisdiction over the Railroad did not prevent the County from asserting its land use regulations.

Canadian Pacific and Kansas City Southern Railroad Merger: We represented Metra in Chicago and Hennepin County, Minnesota, in high profile proceedings before the STB regarding the proposed merger of two class I freight railroads, Canadian Pacific and Kansas City Southern. Although the merger ultimately was approved, the STB imposed an unprecedented seven-year monitoring period to ensure that the dispatching, capacity and environmental concerns we raised during the STB proceedings were addressed.