Freight Issues

Counseled municipalities in connection with the regulation of freight and hazardous material transloading facilities.

Represented municipal client in federal rulemaking governing the technical and operating standards for trains transporting hazardous flammable materials.

Negotiated and litigated a dispute on behalf of a municipal client over occupancy of a rail yard owned by the city.

Conducted administrative and appellate litigation concerning the scope of federal preemption of state and local authority to regulate freight rail operations.

Negotiated and drafted agreements between passenger rail providers and freight railroads to establish shared use, maintenance, and dispatching protocols.

Negotiated and drafted agreements and coordination of regulatory proceedings to relocate active rail lines to accommodate expansion of the client’s facility.

Advised shipper industry group on the potential impact of revised freight compensation regulations and potential strategic approaches.

Advised shippers on formation of proprietary short line railroad companies to facilitate the companies’ ability to exercise more control over in-plant rail operations and to increase efficiency in interaction with larger rail carriers that serve those facilities.

Advised port authority on legal issues related to contracting a new switching rail carrier and in planning redevelopment of a portion of the port’s rail infrastructure.

Advised and represented municipality redeveloping derelict harbor facilities with respect to rail access and the regulation of commodities under federal rail and maritime laws.

Representative Cases:

Canadian Pacific Ry. Limited et al.—Control—Kansas City Southern et al., FD 36500 (STB served Mar. 15, 2023) (represented Chicago-area commuter rail service provider Metra and Hennepin County, MN, to protect commuter rail service and public health and safety in the largest freight railroad merger proceedings in the past 20 years)

CSX Corp. and CSX Transp. Inc., et al.–Control and Merger—Pan Am Systems, Inc. et al., FD 36472 (STB served Apr. 14, 2022) (represented the State of Vermont, acting through its Agency of Transportation, in seeking and securing conditions guaranteeing adequate freight rail service for operators of the State’s publicly owned rail lines.

Fillmore & Western Freight Service, LLC—Emergency Petition for Declaratory Order, FD 35813 (STB served March 10, 2015) (obtained dismissal of action seeking to block ability of the owner of the right-of-way to terminate leases with railroad based on non­performance)

Ballard Terminal Railroad Company, L.L.C.—Acquisition and Operation Exemption—Woodinville Subdivision, FD 35731 (STB served Dec. 30, 2014) (obtained dismissal of action in which a short-line freight operator attempted to obtain operating rights to a railbanked line despite the lack of any property interest in the line and no demonstrated demand for service or financial capacity to reactivate service)

Maryland Transit Admin. v. Surface Transp. Bd., 700 F.3d 139 (4th Cir. 2012) (represented Maryland Transit Administration in challenge to STB’s indemnity requirements for trail sponsors under the National Trails Act based on sovereign immunity grounds)

GNP Rly, Inc.—Acquisition and Operation Exemption—Redmond Spur and Woodinville Subdivision, FD 35407 (STB served June 15, 2011) (obtained dismissal of action by a start-up entity seeking to reactivate service on the line despite not having any property rights in the line, the absence of existing demand for service, and the lack of financial capacity to reactivate the line)

Norfolk Southern Ry. Co. v. City of Alexandria, Virginia, 608 F.3d 150 (4th Cir. 2010) (represented the City of Alexandria in defending City ordinances regulating truck traffic from an ethanol transloading facility)

Maryland Transit Administration—Petition for Declaratory Order, FD 34975 (STB served Oct. 9, 2007), aff’d on reconsideration, STB Docket No. FD 34975 (Service Date Sept.19, 2008) (confirmed that state agency’s previous acquisition of ownership of rail corridor that remained subject to freight operating easement did not trigger regulatory review requirements and that the state agency did not become a common carrier providing transportation subject to the STB’s jurisdiction)

Tri-State Brick and Stone of N.Y., Inc., et al.—Petition for Declaratory Order, FD 34824 (STB served Aug. 11, 2006), petition to reopen denied, STB Docket No. FD 34824 (Service Date Dec. 11, 2007) (successfully represented New York City in attempt by shipper to claim benefits of federal preemption even though it is not a rail carrier providing transportation subject to the jurisdiction of the STB)

The New York City Economic Development Corp.—Petition for Declaratory Order, FD 34429 (STB served Jul. 15, 2004) (successfully represented New York City agency in action seeking determination that federal regulatory scheme preempts state environmental and zoning regulations)

CSX Corporation, et al.—Control and Operating Leases/Agreements—Conrail, Inc., et al., FD 33388, 3 S.T.B. 196 (Jul. 23, 1998) (successfully represented New York City in securing direct competitive freight rail alternative on line serving east side of Hudson River where merger proponents had sought to have only one carrier serving that segment of the market)