20091030final_order_no_30939.pdf

Office of the Secretary
Service Date
October 30, 2009
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF BNSF RAIL WAY COMPANY FOR
APPROVAL TO ABANDON A 6.23 MILE
SECTION OF ITS RAIL LINE IN
KOOTENAI COUNTY, IDAHO
ORDER NO. 30939
CASE NO. BNR-09-
INTRODUCTION AND BACKGROUND
On August 10 2009, the Commission received BNSF Railway Company s ("BNSF"
Petition for Exemption filed with the Surface Transportation Board (STB). On August 28 2009
the STB issued a notice instituting an exemption proceeding pursuant to 49 US.c. ~ 1 0502(b)
and notes that a final decision will be issued by November 27 2009. See STB Docket No. AB-
(Sub-No. 468X).On September 17, 2009, the Commission issued a Notice of Proposed
Abandonment and Notice of Telephonic Hearing to be held on September 22, 2009 in the
Commission s Hearing Room. See Order No. 30903.
THE PROPOSED ABANDONMENT
BNSF stated in its Petition seeking an abandonment exemption that there "are no
shippers remaining on the Line" and that "there has been no overhead traffic on the Line for
many years prior to that." Petition at 4. BNSF also stated that it has received a "firm offer to
purchase the Line between Milepost 12.33 and Milepost 8.66" so that it may be developed in
accordance with the Coeur d' Alene Education Corridor Master Plan. Id. The remaining portion
of the Line, between Milepost 8.66 and Milepost 6.
, "
will be converted to industry track and
used for storage of surplus rail cars.Id. The City of Coeur d' Alene has reached a tentative
agreement with the federal Bureau of Land Management (BLM) to exchange the federal right of
way located on the Line "for land in the general area that is more suitable to BLM's purposes.
Id.
PUBLIC HEARING AND COMMENTS
The Commission held a telephonic public hearing on September 22, 2009. The
Commission took the testimony of Wendy Gabriel, City Administrator, Coeur d'Alene, Idaho
City
).
See Telephonic Hearing Transcript at 7. Ms. Gabriel conveyed the support of the City
for the proposed abandonment. Id. Ms. Gabriel noted that "North Idaho College Foundation has
just acquired a large portion of property adjacent to the railroad" and confirmed the existence of
ORDER NO. 30939
a master development plan involving several local educational institutions, including North
Idaho College. Id. An opportunity exists to utilize the section of land involved in the proposed
abandonment for a "centennial (public) trail along the lake shore.Id. According to Ms.
Gabriel, the rail line has not been utilized since the departure of the DeArmond Mill
approximately "one to two years ago. . . .Id. at 8. Finally, Commissioner Kempton queried
Ms. Gabriel as to whether the City planned to utilize the rail line for commuter traffic by rail. Id.
at 9. Ms. Gabriel testified that the City had no such plans. Id.
The Commission also took the testimony of Don Johnston who has owned and
operated a warehouse business adjacent to the right-of-way located on the Line since 1946. Id.
10. Mr. Johnston emphasized that he had "no objection to the abandonment" but was concerned
that "the family partnership (will be) able to own, maintain and operate a warehouse business at
this location.Id. The warehouse business does not utilize the rail line in the operation of its
business. Id. at 11. Mr. Johnston believed that the transfer of the right-of-way would not
preclude existing warehouse operations. Id. at 14.
DISCUSSION AND FINDINGS
The exemption process allows railroads to abandon rail lines if the abandonment is of
limited scope and does not adversely affect national rail policy. 49 U.C. ~~ 10502 and 10101.
Under STB procedures, once the exemption is filed, the STB must then publish a notice in the
Federal Register within 20 days. Unless the STB stays the proceeding or rules otherwise, the
Railroad may then abandon the rail line 30 days after the notice is published in the Federal
Register.
Although the authority to grant or deny abandonment rests with the STB and is
governed by federal law, the Commission has an obligation under state law to hold a public
hearing regarding the abandonment, and to represent the State in STB abandonment proceedings
if deemed necessary. Idaho Code ~ 62-424 provides that the "commission shall schedule a
public hearing on the proposed abandonment." The purpose of the hearing is for the
Commission to determine whether the abandonment would: (1) adversely affect the area being
served; (2) impair the access of Idaho shippers to vital goods and markets; and (3) to determine
whether the rail line has a potential for profitability. If the Commission finds that the
abandonment would be adverse to the public interest, then it may represent the State in the STB
abandonment proceeding. Idaho Code ~ 62-424(2).
ORDER NO. 30939
The Commission has carefully reviewed all of the filings in this case, as well as the
public testimony offered at the telephonic hearing. The Commission finds that: (1) the existing
rail line subject to the proposed abandonment does not offer a potential for profitability; (2) the
proposed abandonment would not have an adverse affect on the area surrounding the rail line;
and (3) abandonment of the rail line would not impair access to any Idaho shippers on the rail
line. Therefore, the Commission finds that issuing comments to the STB in this case is not
warranted.
ORDER
IT IS HEREBY ORDERED that this case be closed. The Commission will not file
comments with the STB regarding this abandonment.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally
decided by this Order) may petition for reconsideration within twenty-one (21) days of the
service date of this Order with regard to any matter decided in this Order. Within seven (7) days
after any person has petitioned for reconsideration, any other person may cross-petition for
reconsideration. Idaho Code ~~ 61-626.
ORDER NO. 30939
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
-f'l'o.
day of October 2009.
~ff. ~~
D. KEMPTcfN, P DENT
~~/
MARSHA H. SMITH, COMMISSIONER
ATTEST:
O:BNR-09-np2
ORDER NO. 30939