On August 1, 2013, the Surface Transportation Board denied a request by Ballard Terminal Railroad for an injunction to prevent the City of Kirkland from salvaging rails on a railbanked section of right-of-way in Kirkland, Washington. Kaplan Kirsch & Rockwell’s client, King County, Washington, is the trail sponsor and, together with Firm client Sound Transit, supported Kirkland’s efforts to defeat the injunction request.

The case arose when Kirkland announced plans to salvage the rails and begin construction of the trail. Ballard, a short line operator in western Washington, sought to enjoin Kirkland claiming that it had identified demand for rail service and that the removal of the rails would prevent it from meeting that demand. Ballard has no property interest in the right-of-way and did not have any operating authority on it. The STB denied the injunction because Ballard failed to demonstrate that it had: (1) acquired an interest in the right-of-way; (2) the financial capability to acquire that interest or otherwise operate any service on the right-of-way; or (3) identified any genuine demand for rail service on the line. The Board further found that the public interest weighed heavily in favor of the regional plans for the right-of-way over Ballard’s speculative plan to reinstate freight rail service.

Although not a final decision on the merits, the Board’s decision sets a high bar for would-be operators to remove right-of-way from railbanked status in order to reinstate rail service. Kirkland is expected to complete salvage work this fall and open the trail in 2014. The Board has not set a schedule for any further proceedings on the merits.