20091002Vol I Telephonic Hearing.pdf

e BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF BNSF RAILWAY COMPANY FOR
APPROVAL TO ABANDON A 6.23 MILE
SECTION OF ITS RAIL LINE IN
KOOTENAI COUNTY, IDAHO
CASE NO.
BNR-R-09-01
TELEPHONIC HEARING
HEARING BEFORE
COMMISSIONER MACK A. REDFORD (Presiding)
COMMISSIONER JIM D. KEMPTON
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PLACE:Commission Hearing Room
472 West Washington Street
Boise, Idaho
DATE:September 22, 2009
VOLUME I - Pages 1 - 16
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208-336-9208
e HEDRICK
COURT REPORTING
s't/1f th ~ CO/f(lIt¡.i,f 191
1 APPEARANCESe2
For the Staff:NEIL PRICE,Esq.
3 Deputy Attorney General
472 West Washington
4 Boise,Idaho 83702
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18 I N D E X
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WITNESS EXAMINATION BY PAGE
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Wendy Gabriel Statement 7
21 (Public)Commissioner Kempton 9
22 Don Johnston Statement 10
(Public)Commissioner Redford 11
23 Mr.Price (Cross)13
Commissioner Redford 14
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
APPEARANCES
INDEX
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1 BOISE, IDAHO, TUESDAY, SEPTEMBER 22, 2009, 10:05 A.M.
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4 COMMISSIONER REDFORD: This is the Idaho Public
5 Utilities Commission and the date is nine or, September 22,
6 2009. It's approximately 10:05 a.m.
7 The purpose of the hearing is for the
8 Commission--
9 Oh, first of all, before I start, I should
10 indicate who is present. My name is Mack Redford, and for the
11 purpose of this hearing I am the Chairman. Also, there is
12 Mr. Jim Kempton, who is also a Commissioner. He is
13 president -- present and he is also the president of the
14 Commission. The other Commissioner, Marsha Smith, has been
15 excused.
16 For purpose of introduction, we have Neil Price,
17 who is an Assistant Attorney General, who will be participating
18 in the hearing.
19 The purpose of this hearing is for the Commission
20 to determine whether the abandonment that is requested in the
21 Application would adversely affect the area being served; two,
22 impair the access to Idaho shippers to vi tal goods and markets;
23 and, three, whether the rail line has a potential for
24 profitability.
25 Proceedings in this case are being conducted in
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
COLLOQUY
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1 accordance with the Commission jurisdiction -- the Public
2 Utilities Commission jurisdiction under Title 61, Idaho Code,
3 and Commission Rules of Procedure under Idaho Administrative
4 Procedures Act, 31 dash -- or, period, 01.01.
5 The Commission has further jurisdiction over this
6 matter under Idaho Code Section 62-424 and Governor's Executive
7 Order No. 98-08 dated June 12, 1998.
8 I should read the appropriate provisions of the
9 Governor's Order, which states: If the Commission finds that
10 the abandonment would be adverse to the public interest, then
11 it, the Commission, may represent the State in the Surface
12 Transportation Board abandonment proceeding. Additionally, the
13 Commission shall approve all State agencies' submissions to the
14 Surface Transportation Board prior to transmittal to the Board.
15 Also, for purposes of the record, it's I
16 should notify you that the BNR -- Burlington Northern
17 Railroad -- has filed an Application or a Petition with the
18 Surface Transportation Board, asking for an exemption allowing
19 them to abandon the railroad.
20 Regarding the hearing, the hearing is a public
21 hearing to gather information relative to a railroad
22 abandonment. Notice of the hearing and the telephone number to
23 participate in the hearing was established by Commission
24 Order--
25 Do you have that Order number, Neil?
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
COLLOQUY
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1 MR. PRICE: Yes. It's 30903.
2 COMMISSIONER REDFORD: I've got another number
3 here. It's BNR-R-09-01. Is that --
4 MR. PRICE: That's the case number, correct.
5 COMMISSIONER REDFORD: Case number. Okay.
6 As I said, Notice of the hearing and the
7 telephone number has been provided by public news release, and
8 the number which people were to call in was area code
9 208-334-0391.
10 The Applicant representative of Bureau -- of BNR
11 is Karl Morell. Or, no, it's not Karl Morell. It's Kristy --
12 MR. PRICE: Clark.
13 COMMISSIONER REDFORD: -- Kristy Clark, and
14 Ms. Clark, on behalf of BNR, is not on the phone.
15 Interested persons are the Staff of the Public
16 Utilities Commission, Ellis Hire, and Idaho Deputy Attorney
17 Neil Price.
18 As of to date, we have had no appearances from
19 Karl Morell (sic) for Palouse -- for BNR.
20 The procedure for the hearing is participants
21 must identify themselves before speaking and must identify who
22 they are representing when first speaking.
23 We would request that only two people converse at
24 one time, and that there be no interruptions and that all
25 parties please turn off their cell phones.
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
COLLOQUY
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1 Deputy Attorney General Neil Price will guide the
2 telephonic discussions and, if necessary, the Commissioners may
3 ask questions through the Chair at any time.
4 For any of those people that are testifying,
5 Mr. Price will administer an oath, and Mr. Price may also ask
6 for further information.
7 So, Mr. Price, you may proceed.
8 MR. PRICE: Thank you, Commissioner Redford.
9 Just by way of background, I'll note that on
10 August 10, 2009, the Commission received from BNSF Railway
11 Company a Petition for Exemption filed with the Surface
12 Transportation Board, which requests exemption from Federal
13 regulation and authority to abandon approximately a 6. 23-mile
14 rail line in Kootenai County,section of its rail line
15 Idaho. BNSF proposes to abandon its rail line located between
16 milepost 6.1 near Post Falls, Idaho, and milepost 12.33 in
17 Coeur d' Alene, Kootenai County, Idaho.
18 On August 28, 2009, the Surface Transportation
19 Board issued a Notice of instituting the exemption proceeding
20 pursuant to 49 USC Section 10502 (b) .
21 COMMISSIONER REDFORD: Mr. Price, I need to
22 correct something first. I had been referring to this as the
23 Burlington Northern Railroad. It's not. It's the Burlington
24 Northern Santa Fe Railroad.
25 MR. PRICE: Correct.
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
COLLOQUY
1 COMMISSIONER REDFORD: Thank you.e 2 MR. PRICE: And I guess all further mention of
3 the Company's name I have shortened to BNSF.
4 COMMISSIONER REDFORD: Thank you.
5 MR. PRICE: BNSF states in its Petition that it's
6 seeking abandonment exemption, that there are no shippers
7 remaining on the line that it seeks to abandon, that there has
8 been no overhead traffic on the line for many years prior to
9 that.
10 BNSF states further that it has received a firm
11 offer to purchase the line between milepost 12.33 and milepost
12 8.66 so that it may be developed in accordance with the
e 13 Coeur d' Alene education corridor master plan. The remaining
14 portion of the line between milepost 8.66 and 6.1 will be
15 converted to industry track and used for storage of surplus
16 rail cars.
17 The City of Couer d' Alene has reached a tentative
18 agreement with the Federal Bureau of Land Management to
19 exchange the Federal right-of-way located on the line for land
20 in the general area that is more sui table to BLM' s purposes.
21 I would also note for the record that a obj ection
22 to BNSF's Petition for Exemption has been filed with the
23 Surface Transportation Board at the Federal level by
24 Pan-American Railway, Incorporated. That was filed on
e 25 September 17, 2009. Pan-American is obj ecting to the
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
COLLOQUY
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1 exemption -- the offer for financial assistance exemption filed
2 by BNSF. Pan-American indicates that it wishes to purchase
3 part of this abandoned line. It seeks to become a freight and
4 passenger rail carrier wi thin the state of Idaho.
5 Pan-American is an Idaho corporation. They are
6 not yet subject to STB jurisdiction beCause they do not have
7 any rail lines currently, but as I said, they want to acquire
8 and operate a portion of that abandoned line. That -- that
9 obj ection is currently pending before the Surface
10 Transportation Board.
11 I guess that's the background that I have. I
12 guess we could open it up for comment from those that are
13 participating on the line.
14 COMMISSIONER REDFORD: Okay.
15 Ms. Gabriel, I'll turn you over to Mr. Price so
16 that your testimony might be taken.
17 MS. GABRIEL: Thank you very much.
18 MR. PRICE: Ma' am?
19 MR. GABRIEL: Yes.
20 MR. PRICE: Just one moment.
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
COLLOQUY
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1 WENDY GABRIEL,
2 appearing as a public witness, being first duly sworn, was
3 examined and testified as follows:
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5 MR. PRICE: Go ahead.
6 THE WITNESS: Okay. This is Wendy Gabriel, City
7 Administrator, representing the City of Coeur d' Alene.
8 Ci ty of Coeur d' Alene supports the abandonment as
9 noted by the Attorney General. The North Idaho College
10 Foundation has just acquired a large portion of property
11 adjacent to the railroad and there, indeed, is a master plan
12 that would involve not just North Idaho College but four other
13 educational institutions for the expansion of higher education
14 in Coeur d' Alene.
15 Also adj acent to the railroad is property owned
16 by the City of Coeur d' Alene, a good, substantial piece of
17 property, and neither entity has any desire to maintain the
18 railroad as a railroad. In fact, we have an opportunity, as
19 stated, for a trade with BLM where we can put a wonderful
20 centennial trail along the lake shore that's included in -- or,
21 I don't know if it will be called the "Centennial Trail," but a
22 public trail along the lake shore. That's included in the
23 master plan.
24 Further down the rail is residential living in
25 what they have called the Ri verstone area. It's residential,
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
GABRIELPublic
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1 retail shopping, movie theater, so no anticipation of any
2 future use of the rail there.
3 And even further down the line, the old Atlas
4 Mill which used to use the rail is closed, and plans have been
5 drafted but then dropped, but the idea there is that that will
6 probably be turned into another residential, retail shopping
7 area.
8 There has not been any use of the rail since the
9 DeArmond Mill has left. They closed, approximately, gosh, it
10 would have been one to two years ago would be my recollection.
II And they were the only users of the rail for probably a couple
12 of decades, and now that DeArmond Mill, as I said, is owned by
13 the North Idaho College Foundation.14 Let's see.
15 The urban -- City's urban renewal agency has also
16 acquired some property adjacent or near the rail, and they have
17 no plans for future rail service either. The property they
18 acquired will likely be used to help the education corridor
19 develop.
20 And that's it.
21 MR. PRICE: Thank you, ma' am.
22 Commissioners, I have no questions for
23 Ms. Gabriel.
24 COMMISSIONER REDFORD: No, I have none.
25 COMMISSIONER KEMPTON: I do.
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
GABRIEL
Public
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1 COMMISSIONER REDFORD: Yes, Mr. Kempton.
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3 EXAMINATION
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5 BY COMMISSIONER KEMPTON:
6 Ms. Gabriel, in your Coeur d' Alene master plan,Q.
7 in that corridor, do you have any plans for future commuter
8 traffic by rail?
9 A.No.
10 Q.And, in your mind, there would never be a
11 requirement or at least a realistic requirement to place a
12 commuter operation by rail in the Coeur d' Alene/Spokane
13 corridor?
14 No realistic plans that I am aware of or thatA.
15 have been discussed, at least in the Coeur d' Alene corridor.
16 Okay. I have no further questions.Q.
17 COMMISSIONER REDFORD: Okay.
18 Thank you, Ms. Gabriel.
19 (The witness was excused.)
20 COMMISSIONER REDFORD: As I have stated, BNSR
21 (sic) has not chosen to participate in this hearing.
22 We have one other witness, if you'd like to
23 testify. Mr. Johnston, are you -- do you want to give
24 testimony in this matter?
25 MR. JOHNSTON: Yes, I would.
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
GABRIEL (Com)
Public
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1 COMMISSIONER REDFORD: Okay. I'll turn you over
2 to Mr. Price.
3 MR. PRICE: Thank you.
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5 DON JOHNSTON,
6 appearing as a public witness, being first duly sworn, was
7 examined and testified as follows:
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9 MR. PRICE: Please proceed.
10 THE WITNESS: My only concern at this time is the
11 partnership be able to operate and maintain warehouse business
12 in the area. I have no obj ection to the abandonment as long as
13 the family is able to operate a warehouse.
14 COMMISSIONER REDFORD: Could you speak up a
15 li ttle more, Mr. Johnston? I can barely hear you.
16 THE WITNESS: I'm sorry. But I, as I pointed
17 out, our concern is that the family partnership is able to own,
18 maintain, and operate a warehouse business at this location.
19 Other than that, I have no objection to the abandonment, but,
20 of course, we're concerned about the ability to continue an
21 operation at this location as we have since 1946.
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COMMISSIONER REDFORD: Are there any questions by
23 any of the Commission members?
24 COMMISSIONER KEMPTON: I have none.
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
JOHNSTONPublic
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1 EXAMINATION
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3 BY COMMISSIONER REDFORD:
4 Mr. Johnston, the only question I have: YouQ.
5 don't presently use rail service to operate your business, do
6 you?
7 A.Not at this time, but we have -- we do get an
8 occasional rail business by truck, but by rail.
9 Q.But not by rail?
10 (Telephone sounds.)
11 THE WITNESS: No.
12 BY COMMISSIONER REDFORD: Are you still there?Q.
13 A.Yes.
14 Correct, not by rail.
15 Okay. So, the abandonment of the railroad willQ.
16 not, as it's presently planned, will not affect your business,
17 will it? Is that your statement or not?
18 A. That's correct, as long as we're able to maintain
19 our location here.
20 I don't quite understand. Are you concerned thatQ.
21 the City or someone will condemn your property, or what is your
22 concern in the event that the rail service is discontinued?
23 If we are not -- I'd like to maintain thatA.
24 building and the location. You know, I have an understanding
25 and a belief that it pays to operate at this location. I hope
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
JOHNSTON (Com)Public
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1 I'm in the right forum. This is our concern: We're able to
2 maintain that.
3 COMMISSIONER REDFORD: Someone is talking and I
4 don't know if it's on the line or if it's someone in your
5 office that is talking on the phone or something
6 (Telephone sounds.)
7 COMMISSIONER REDFORD: ~- because I can't hear
8 you.
9 THE WITNESS: Well, I'm sorry, it's not -- I'm in
10 my home and there's no on here.
11 MS. GABRIEL: And I'm in my office and nobody
12 around.
13 COMMISSIONER REDFORD: Okay. Is there anyone
14 else on the line other than Ms. Boggs, Ms. Gabriel, and
15 Mr. Johnston?
16 Okay. It must have been some anomaly on this
17 line.
18 MR. PRICE: Commissioner Redford?
19 COMMISSIONER REDFORD: Yes.
MR. PRICE: Could I just ask one question of
21 Mr. Johnston?
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
JOHNSTON (Com)Public
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1 CROSS-EXAMINATION
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3 BY MR. PRICE:
4 Q. Mr. Johnston, where is your business located
5 exactly? Did you have a milepost number that your business is
6 located along the rail?
7 A.I don't have a milepost number but I'm at the end
8 of the existing line at this time, right across from the
9 ballpark, and the rail line was terminated at approximately
10 that location.
11 MR. ELLIS HIRE: Can I chime in real quick?
12 Mr. Johnston's warehouse adj oins the right-of-way
13 Mr. Johnston, this is Ellis Hire.
14 THE WITNESS: Yes.
15 MR. ELLIS HIRE: Your warehouse basically adj oins
16 the property at the railroad right-of-way. Correct?
17 THE WITNESS: Yes.
18 MR. ELLIS HIRE: And after talking to you last
19 night, your concern was that since your warehouse is actually
20 just about on the right-of-way, are you going to be able to
21 stay in your warehouse. Is that what you're trying to state?
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THE WITNESS: Correct.
MR. ELLIS HIRE: Okay. Thank you.
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
JOHNSTON (X)
Public
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1 EXAMINATION
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3 BY COMMISSIONER REDFORD:
4 Q.Well, let me just ask one further question:
5 If the rail line abandonment and the right-of-way
6 goes as is requested, will you still have access to your
7 building? Or, in other words, does this proceeding preclude
8 you from using your facility?
9 A.No.
10 Q.Okay. Thank you.
11 COMMISSIONER REDFORD: Mr. Price, do you have
12 anything else?
13 MR. PRICE: I don't have anything.
14 COMMISSIONER REDFORD: Okay.
15 (The witness was excused.)
16 COMMISSIONER REDFORD: Just one last call: Is
17 there anyone else on the line that has business for this
18 Commission or whether they have any testimony to provide?
19 All right, hearing none, then are there any other
20 issues before the Commission in this case?
21 Hearing none, we will declare this hearing closed
22 and the Commission will take -- will deliberate on this matter,
23 and a Decision will be rendered forthwith.
24 If there's nothing else to come before the
e 25 Commission, we'll stand adj ourned.
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
JOHNSTON (Com)Public
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1 And I'd like to tell the folks that are on the
2 line we really appreciate your public service of coming forward
3 for testimony, and, Mr. Johnston, we wish you the very best.
4 Thank you very much.
5 MS. GABRIEL: Thank you.
6 MS. BOGGS: Thank you.
7 MS. GABRIEL: Bye-bye.
8 MR. JOHNSTON: Thank you.
9 (Telephone sounds.)
10 COMMISSIONER REDFORD: The hearing is adjourned.
11 (The hearing concluded at 10:25 a.m.)
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
COLLOQUY
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AUTHENTICATION
4 This is to certify that the foregoing is a
5 true and correct transcript to the best of my ability of the
6 proceedings held in the matter of the Application of BNSF
7 Railway Company for approval to abandon a 6.23 mile section of
8 its rail line in Kootenai County, Idaho, Case No. BNR-R-09-01,
9 commencing on Tuesday, September 22, 2009, at the Commission
10 Hearing Room, 472 West Washington, Boise, Idaho, and the
11 original thereof for the file of the Commission.
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19
otary Publ'State of Idali ,
residing at Meridian, Idaho.
My Commission expires 2-8-2014.
Idaho CSR No. 475
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
AUTHENTICATION