20090814Exemption Petition to STB.pdf

G I\R-~-o9-ol
BEFORE THE
SURFACE TRASPORTATION BOAR
BNSF RALWAY COMPANY
ABANONMNT EXEMPTION
IN KOOTENAI COUNTY, IDAHO
)
)
)
DOCKET NO. AB-6
(SUB-NO. 468X)
PETITION FOR EXEMPTION
BNSF RALWAY COMPAN
2650 Lou Menk Drive
P.O. Box 96157
Fort Worth, TX 76161-0057
Kristy D. Clark
General Attorney
BNSF Railway Company
2500 Lou Menk Drive, AOB-3
Fort Worth, Texas 76131
Dated: August 7, 2009
2
BEFORE THE
SURFACE TRASPORTATION BOAR
BNSFRALWAYCOMPANY
ABANONMENT EXEMPTION
IN KOOTENAI COUNTY, IDAHO
)
)
)
DOCKET NO. AB6
(SUB-NO. 468X)
PETITION FOR EXEMPTION
BNSF Railway Company ("BNSF") petitions the Surace Transporttion Board ("STB"
or "Board") to exempt, under 49 U.S.C. § 10502, from the prior approval requirements of 49
U.S.C. § 10903-05, BNSF's abandonment of a 6.23-mile rail line located in Kootenai County,
Idaho.
PROPOSED TRASACTION
BNSF proposes to abandon its rail line located between Milepost 6.10 near Post Falls and
Milepost 12.331 at Coeur d'Alene, Kootenai County, Idaho (the "Line"). The Line traverses U.S.
Postal Service Zip Codes 83814 and 83854. A map of the Line is attched as Exhibit A.
Based on inormation in BNSF's possession, the Line contains federally granted rights of
way. Any documentation in BNSF's possession wil be made available to those requesting it.
1 In the Environmental and Historic Report, BNSF indicated that the Milepost at the end of the
Line is 12.34. BNSF, however, subsequently determined that the segment between Mileposts
12.34 and 12.33 had already been approved for abandonment and abandoned.
3
STATEMENT OF FACTS
BNSF owns a 6.23-mile rail line between the stations of Post Falls and Coeur d'Alene in
Kootenai County, Washington. There are no shippers remaining on the Line as the last
remaining shipper closed its operations adjacent to the line May 18, 2008. There has been no
overhead traffc on the Line for many years prior to that.
The Coeur d'Alene Education Corrdor Master Plan outlnes long-term plans for the area
which include expansion of education institutions, commercial, wholesale, retail and residential
development, as well as the creation of parks and trails along the corridor.
BNSF has received a firm offer to purchase the Line between Milepost 12.33 and
Milepost 8.66. The propert is urgently needed for the ongoing development of the above-
mentioned educational corridor. The Bureau of Land Management ("BLM") has also reached a
tentative agrement with the City of Coeur d'Alene to exchange the federally granted right of
way located on the Line for land in the general area that is more suitable to BLM's use. The Line
between Milepost 8.66 and Milepost 6.10 wil be converted to industr track and used for storage
of surlus rail cars.
2
EXEMPTION REQUESTED
BNSF seeks an exemption under 49 U.S.C. § 10502 from the applicable requirements of
49 U.S.C. § 10903 to permit BNSF to abandon this 6.23-mile rail line.
2 BNSF intends to consumate the abandonment of the portion of the Line between Milepost
8.66 and Milepost 12.33. BNSF wil utilze the abandonment authority requested in this
proceeding to reclassify the portion of the Line between Milepost 6.10 and Milepost 8.66 to
industr track. See STB Docket No. 290 (Sub-No. 274X), Noifolk Southern Railway Company-
Abandonment Exemption - In Mecklenburg County, NC (not printed), served April 9, 2004.
4
Under 49 U.S.C. § 10502, the STB must exempt a transaction from regulation when it
finds that: (1) regulation is not necessary to car out the rail transporttion policy of 49 U.S.C.
§ 10101; and (2) either: (a) the transaction is oflimited scope; or (b) regulation is not necessar
to protect shippers from the abuse of market power.
The legislative history of Section 10502 reveals a clear Congressional intent that the STB
should liberally use its exemption authority to free certin trsactions from the administrtive
and fInancial costs associated with continued regulation. In enacting the Staggers Act of 1980,
Pub. L. No. 96-448, 94 Stat. 1895, Congress encouraged the STB's predecessor to use liberally
the expanded exemption authority under former Section 10505:
The policy underlying this provision is that while Congress has been able to
identify broad areas of commerce where reduced regulation is clearly waranted,
the Commission is more capable through the administrative process of examining
specific regulatory provisions and practices not yet addressed by Congressto
determine where they can be deregulated consistent with the policies of Congress.
The conferees expect that, consistent with the policies of this Act, the
Commission wil pursue partial and complete exemption from remaining
regulation.
H.R. Rep. No. 1430, 96th Congo 2d Sess. 105 (1980). See also Exemption From Regulation -
Boxcar Traffc, 367 i.C.C. 424, 428 (1983), vacated and remanded on other grounds, Brae Corp.
v. United States, 740 F.2d 1023 (D.C. Cir. 1984). Congress reaffrmed this policy in the
conference report accompanying the ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat.
803, which re-enacted the rail exemption provisions as Section 10502. H.R. Rep. 422, 104th
Cong., 1 st Sess. 168-69 (1995).
A. The Application of 49 U.S.C. § 10903 Is Not Necessary to Carry Out the Rail
Transportation Policy
Detailed scrutiny of this trnsaction is not necessar to car out the rail transporttion
policy. An exemption would minimize the unecessary expenses associated with the filing of a
5
formal abandonment application, expedite regulatory decisions and reduce regulatory bariers to
exit (49 U.S.C. § 10101(2) and (7)). See, e.g., Noifolk & WRy. Co. -Abandonment Exem. -
Cinn., Hamilton County, OH, 3 S.T.B. 110 (1998); STB Docket No. AB-367 (Sub-No. 2X),
Georgia Central Railroad, L.P. - Abandonment Exemption - In Chatham County, GA (not
printed), served September 17, 1997 ("Georgia Central"). By abandoning the Line, BNSF wil
be able to avoid the significant opportity costs associated with retaining this Line. Grting
the exemption wil thus foster sound economic conditions and encourage effcient management.
49 U.S.C.§ 10101(5) and (9). See, e.g., STB Docket No. AB-497 (Sub-No. IX), Minnesota
Northern Railroad, Inc. - Abandonment Exemption - In Red Lake and Polk Counties, MN (not
printed), served November 14, 1997; STB Docket No. AB-318 (Sub-No. 4X), Louisiana & Delta
Railroad, Inc. - Abandonment Exemption - In Lafourche and Assumption Parishes, LA (not
printed), served August 26, 1997.
Other aspects of the rail transporttion policy are not adversely affected. For example,
competition and the continuation of a sound rail transporttion system are not affected as the
only customer on the Line for the past several years was Stimson Lumber which closed its
operations May 18, 2008. Stimson supports the abandonment.
B. This Transaction Is of Limited Scope
In determining whether a proposed transaction is of limited scope, the Board considers a
variety of factors, such as the length of the rail line, the number of shippers on the line and the
traffc volume. See, e.g., Docket No. AB-6 (Sub-No. 349X), Burlington Northern Railroad
Company - Abandonment Exemption - In Greene and Polk Counties, MO (not printed), served
August 27, 1993; Docket No. AB-347 (Sub-No. IX), Florida West Coast Railroad Company -
6
Abandonment Exemption - Gilchrist and Levy Counties, FL (not printed), served January 16,
1992.
The proposed transaction is clearly of limited scope. BNSF is seeking to abandon a 6.23-
mile line that traverses an area of high-end educational, commercial and residential development.
There are no longer any active rail customers located along the Line. The shortess of the Line,
the limited geogrphic area involved, and the lack of any active rail customers demonstrte the
limited scope of the proposed abandonment. See, e.g., Docket No. AB-397 (Sub-No. 3X),
Tulare Valley Railroad Company - Abandonment Exemption - In Tulare And Fresno Counties,
CA (not printed), served February 9, 1995.
C. This Transaction Wil Not Result in an Abuse of Market Power
There are no shippers on the Line. The last remaining customer on the Line was Stimson
Lumber which closed its operations adjacent to the Line May 18, 2008. Stimson supports the
abandonment. Therefore, regulation is not necessary to protect shippers from an abuse of market
power. See, e.g., STB Docket No. AB-55 (Sub-No. 576) CSX Transportation, Inc. -
Abandonment Exemption - In Guernsey County, OH (not printed), served November 22, 1999;
STB Docket No. AB-55 (Sub-No. 563X), CSX Transportation, Inc. - Abandonment Exemption -
In Harrison County, WV(not printed), served September 25, 1998; Georgia Central.
EXEMPTION FROM SECTION 10904 AN 10905
IS ALSO WARTED
BNSF has received a firm offer to purchase the portion of the Line located between
Milepost 12.33 and Milepost 8.66. The propert is urgently needed for the continued
development of the area's educational corridor. The Burau of Land Management has also
7
reached a tentative agreement with the City of Coeur d'Alene to exchange the federally granted
right of way located on the Line for land in the area that is more suitable to BLM's use. The Line
between Milepost 8.66 and Milepost 6.10 wil be reclassifed as industr trck and used for
storage of surlus rail cars. Accordingly, BNSF seeks an exemption from 49 U.S.C. § 10904-05
to expedite the sale of the appropriate section of the Line for expansion of higher education
institutions and other civic uses. The proposed land conveyances and subsequent development
wil benefit the community economically, culturlly and aesthetically.
The Board and its predecessor have granted exemptions from Sections 10904 and 10905
when the right-of-way is needed for a valid public purose and there is no overriding public need
for continued rail freight service. As previously explained, there is no longer traffic on the Line
and there is no known potential for same. Reinstitution of rail freight service under Section
10904 would be incompatible with the City's intended uses of the Line. Because there is no
present or reasonably foreseeable future need for freight rail service on the Line, an offer of
financial assistance would only be fied by someone intending to use the corridor for non freight
rail purposes (which is not permitted by Section 10904) or to extort money from the local
community.
The Board should grant the requested relief because the Line is needed for a valid public
purose (expansion of an economically viable education corridor) and there is no overriding
public need for continued rail freight service along the Line. Applying the offer of financial
assistance requirements, in this instace, is not necessar to carr out the rail trsporttion
policy. Allowing the abandonment exemption to become effective expeditiously, without first
being subject to these requirements, would minimize the need for Federal regulatory control over
the rail system, expedite regulatory decisions, and reduce regulatory barriers to exit ( 49 U.S.C.
8
§§ 10101(2) and (7)). As previously explained, regulation of this transaction is not necessary to
protect shippers from an abuse of market power. The last shipper on the Line closed operations
May 18, 2008 and supports the abandonment.
The Line offers no known freight rail growth opportities, even for a short line operator.
Land use around the Line has already moved away from freight applications. It is actively
moving from industrial and low-end commercial applications altogether. Land values along the
right of way average almost $8 per square foot which is well beyond what a rail-oriented Pacific
Nortwest manufacturer or distributor would pay for real estate. Consequently, there is little, if
any, chance of a rail customer locating on the Line. Furtermore, Interstate 90 which rus
largely parllel to the Line is a significant transporttion corridor, public and private. See STB
Docket No. AB-33 (Sub-No. 141X), Union Pacifc Railroad Company - Abandonment
Exemption - In Pima County, AZ (not printed), served February 16, 2000 (exemption grnted
where line was needed for public projects including bike/pedestrian paths); STB Docket No. AB-
558X, Doniphan, Kensett and Searcy Railway - Abandonment Exemption - In Searcy, White
County, AR (not printed), served May 6, 1999 (exemption granted where line was needed for
construction project); STB Docket No. AB-3 (Sub-No. 139X), Missouri Pacifc Railroad -
Abandonment and Discontinuance of Operations Exemption - In Houston, Harris County, TX
(not printed), served December 31, 1996 (exemption granted where line was needed for
expansion of warehouse and hiking and bike trail).
ENVONMENTAL AND mSTORIC REPORTS
The Environmental Report and the Historic Report containing the information required
by 49 C.F.R. §§ 1105.07 and 1105.08 were forwarded to the Board on July 17,2009.
9
CERTIFICATES OF SERVICE
The Certificate of Service of the Environmental and Historic Reports is attched to this
Petition as Exhibit B. The Certificate of Service for this Petition for Exemption is attched as
Exhibit C.
CERTIFCATE OF PUBLICATION
The Certificate of Publication is attched as Exhibit D.
FEDERA REGISTER NOTICE
A drft Federal Register notice is attched to this Petition as Exhibit E.
LABOR PROTECTION
The interests of railroad employees who may be adversely affected by the
proposed abandonment wil be adequately protected by the labor protection conditions in Oregon
Short Line R. Co. - Abandonment - Goshen, 360 i.C.C. 91 (1979).
10
CONCLUSION
Application of the regulatory requirements and procedures of 49 U.S.C. § 10903-05 is not
required to carr out the rail transporttion policy set fort in 49 U.S.C. § 10101, as previously
described in this Petition, nor is STB regulation required to protect shippers from an abuse of
market power. Moreover, this abandonment is of limited scope. Accordingly, BNSF
respectflly urges the Board to grant this petition and related abandonment request.
Respectfully submitted,
KRSTYC
General Attorney
BNSF Railway Company
2500 Lou Menk Drive, AOB-3
Fort Worth, Texas 76131
Dated: August 7, 2009
11
ExmBITA
BNSF Line Segment 381
Milepost 6.10 to Milepost 12.33
Coeur d'Alene Branch
Kootenai County, Idaho
STB Docket No.
AD-6 (Sub-No. 468X)
Base map - United States Geological Surey
Coeur d'Alene and Post Falls quaangles
7.5-minute series
Ma soure date 1979/07/01DRG Creon Date: 1997/04/09
DRG Coordinte Syst: UT
DRG Dat: NAD27
12
..ExmITB
CERTIFICATE OF SERVICE
ENVIRONMNTAL AN mSTORIC REPORTS
The undersigned hereby certifies that a copy of the foregoing Environmental and/or
Historic Reports in STB Docket No. AB-6 (Sub-No. 468X) for the Post Falls to Coeur d'Alene
rail line in Kootenai County, Idaho was served by first class mail on the 17th day of July, 2009
on the following:
Ms. Victoria Rutson
Chief, Section of Environmental Analysis
Surace Trasporttion Board
395 E Street S.W.
Washington, DC 20423-0001
Susan Pengily
Compliance Coordinator and Deputy SHPO
Idaho State Historical Society
2205 Old Penitentiary Road
Boise, ID 83712
Brad Jordan
Commissioner
Coeur d'Alene Planning Commission
710 Mullan Avenue
Coeur d'Alene, ID 83814
Barbara Rice
Progrm Leader
National Park Service, Pacific West Region
1111 Jackson Street, Suite 700
Oakland, CA 94607
Idaho Departent of Environmental Quality
PO Box 83720
Boise, ID 83706
Scott Clark
Director
Kootenai County Building and Planning
PO Box 9000
Coeur d'Alene, ID 83816-9000
Gary Cooper
District Manager - Coeur d'Alene Distrct
Bureau of Land Management
3815 Schreiber Way
Coeur d'Alene, ID 83815
Clifford Vila
Assistant Regional Counsel
U.S. EPA - Region 10
1200 Sixth Avenue
Seattle, WA 98101
Jeff Burell
State Conservationist
Natual Resources Conservation Service
9173 West Barnes Drive, Suite C
Boise, ID 83709-1574
13
Mark Addy
Distict Conservationist
National Resources Conservation Service
7830 Meadowlark Way, Suite C-l
Coeur d'Alene, ID 83815
Suzanne Audet
Recovery Progrms Brach Chief
Upper Columbia Fish and Wildlife Offce
11103 East Montgomery Drive
Spokane Valley, WA 99206
U.S. Fish and Wildlife Service
Region 1 Offce of Regional Director
911 Norteast 11th Avenue
Portland, OR 97232-4181
Gregg Rayner
Regulatory Project Manager
US Ary Corps of Engineers-Walla Walla
3815 Schreiber Way
Coeur d'Alene, ID 83815-8362
Chip Corsi
Idaho Fish and Game Regional Offce
2885 West Kathleen Avenue
Coeur d'Alene, ID 83815
Michael C. Gridley
City Attorney
City of Coeur d'Alene
710 East Mullan Avenue
Coeur d'Alene, ID 83814
Dated: August 7, 2009
STYCL
General Atto ey
BNSF Railway Company
2500 Lou Menk Drive, AOB-3
Fort Worth, Texas 76131
14
ExmBITC
CERTIFCATE OF SERVICE
Pursuant to 49 C.F.R. § 1152.60( d), the undersigned hereby certifies that the Petition for
Exemption in STB Docket No. AB-6 (Sub-No. 468X) was mailed via first class mail on August
7,2009, to the following paries:
State Public Service Commission
Idaho Public Utilties Commission
Commssion Secretary
PO Box 83720
Boise, ID 83720-0074
Miltary Traffc Management Command
Miltary Surface Deployment and Distrbution Command
Transporttion Engineering Agency
ATTN: SDTE-SA (Railroads for National Defense)
709 Ward Drive, Building 1990
Scott AFB, IL 62225-5357
National Park Service
U.S. Deparment of the Interior
National Park Service
Recreation Resources Assistance Division
1849 C Street, NW
Washington, DC 20240-0001
u.S. Department of Agriculture
U.S. Deparment of Agricultue
Chief of the Forest Service
4th Floor N.W., Yates Building
201 14th Street, SW
Washington, DC 20250
Dated: August 7, 2009
KRSTY lA
General A orney
BNSF Railway Company
2500 Lou Menk Drive, AOB-3
Fort Wort, Texas 76131
15
EXHmITD
CERTIFICATE OF PUBLICATION
The undersigned hereby certifies that notice of the proposed abandonment in STB Docket
No. AB-6 (Sub-No. 468X) was published on July 29, 2009, in the Coeur d'Alene Press, a
newspaper of general circulation in Kootenai County, Idaho as required by 49 C.F .R. § 1105.12.
Dated: August 7,2009
KRSTYCL
General Atto ey
BNSF Railway Company
2500 Lou Menk Drive, AOB-3
Fort Worth, Texas 76131
16
ExmBITE
SURACE TRNSPORTATION BOAR
STB DOCKET NO. AB-6 (SUB-NO. 468X)
BNSF~WAYCOMPANY
--ABANONMNT EXEMPTION--
KOOTENAI COUNTY, IDAHO
On August 10, 2009, BNSF Railway Company ("BNSF") filed with the Surace
Transporttion Board ("STB" or "Board") a petition under 49 U.S.C. 10502 for exemption from
the provision of 49 U.S.C. 10903 for BNSF to abandon a line of railroad extending from
Milepost 6.10 near Post Falls to Milepost 12.33 at Coeur d'Alene, Idaho, which traverses U.S.
Postal Service Zip Codes 83814 and 83854, a distace of 6.23 miles in Kootenai County, Idao.
The line contains federally granted rights of way. Any documentation in the ralroad's
possession wil be made available promptly to those requesting it.
The interests of railroad employees wil be protected by the conditions set forth in
Oregon Short Line R. Co. - Abandonment - Goshen, 360 i.C.C. 91 (1979).
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to
49 U.S.C. 10502(b). A final decision wil be issued within 90 days (by November 30, 2009).
Any offer of financial assistace (OFA) under 49 C.F.R. 1152.27(b)(2) wil be due no
later than 10 days after service of a decision grating the petition for exemption. Each offer of
financial assistance must be accompanied by the filing fee, which curently is set at $1,500. See
49 C.F.R. 1 002(f)(25). 3
All interested persons should be aware that following abandonment of rail service and
salvage of the line, the line may be suitable for other public use, including interim trail use.
3 BNSF is also seeking an exemption from the OF A procedures which, if grated, wil preclude
the filing of an OF A.
17
Any request for a public use condition under 49 C.F.R. 1152.28 and any request for trail
use/rail baning under 49 C.F .R. 1152.29 wil be due no later than 20 days after notice of the
filing of the petition for exemption is published in the Federal Register. Each trail use request
must be accompanied by a $200 filing fee. See 49 C.F.R. 1002.2(f)(27).
All filings in response to this notice must refer to STB Docket No. AB-6 (Sub-No. 468X)
and must be sent to: (1) Offce of the Secretary, Case Control Unit, Surace Transporttion
Board, 395 E Street, S.W., Washington, DC 20423-0001; and (2) Kristy Clark, BNSF Railway
Company, 2500 Lou Menk Drive, Fort Worth, Texas 76131.
Persons seeking further information concerning abandonment procedures may contact the
Surface Transporttion Board or refer to the full abandonment or discontinuance regulations at
49 C.F.R. Par 1152. Questions concerning environmental issues may be directed to the Board's
Section of Environmental Analysis at [phone] (Assistance for the hearing impaired is
available through the Federal Information Relay Service at 1-800-877-8339.).
An environmental assessment (EA) (or environmental impact statement (EIS), if
necessar) prepared by the Section of Environmental Analysis wil be served upon all paries of
record and upon any agencies or other persons who commented during its preparation. Any
other persons who would like to obtain a copy of the EA (or EIS) may contact the Section of
Environmental Analysis. EAs in abandonment proceedings wil normally be available within 60
days of the filing of the petition. The deadline for submission of comments on the EA wil
generally be within 30 days of its service.
Decided: 2009.
By the Board, David M. Konschnik, Director, Offce of Proceedings, Ane K. Quinlan
18