Preliminary Ruling Good News for Adirondack Park
By: John Sheehan - Adirondack Council Director of Communications
Wednesday, March 7, 2018
The federal Surface Transportation Board’s (STB) recent ruling in favor of the NYS Dept. of Environmental Conservation (DEC) was a significant step for the Adirondack Park, boosting the state’s ability to defend the Park’s wild character from a plan to store used oil tanker railroad cars here.
Iowa Pacific Holdings, LLC (IPH) of Chicago had originally told federal regulators it would haul freight on the line. Instead, it has recently moved to turn the corridor into a junkyard storing obsolete tanker cars for oil companies. New York State has announced that it will move ahead with an “adverse abandonment” proceeding with the federal STB to reclaim control of the corridor to make sure it serves a public good, and also to protect the Adirondack Park. This is part of a process that also provides opportunity for state actions against the company for violating state environmental laws.
The rail line crosses the constitutionally protected Adirondack Forest Preserve and lies adjacent to the Boreas River, the path of which is protected under the state’s Wild, Scenic and Recreational Rivers system. New York’s Constitution requires the state to protect the Forest Preserve as “Forever Wild.”
The DEC is being represented by the NYS Attorney General. The Adirondack Council’s legal team has also been providing assistance to the state’s attorneys. The STB’s Feb. 28 ruling means the state is free to proceed with the next step in a process that could lead to a formal STB order declaring the line abandoned by its operator.
Normally, federal regulators defend railroads against enforcement of state and local environmental laws that target a railroad to prevent disruptions to interstate commerce. As long as a rail corridor is operating properly as a railroad, there is less a state can do to prevent a railroad from operating.
In light of this, the state is seeking an “adverse abandonment” ruling from the STB. In order to win the case, it must show that the rail company has ceased operating a railroad and is instead operating a junkyard that prevents normal railroad operations.
The STB noted that such a ruling would mean: “STB primary jurisdiction is withdrawn, thus permitting state, local and federal law to apply where there is no overarching federal interest in interstate commerce.”
In its Feb. 28 decision, the STB said the DEC didn’t have to meet certain requirements when it files its forthcoming petition to declare the rail line abandoned.
Gov. Andrew Cuomo and his DEC filed a petition seeking certain waivers in December. They are a precursor to a formal state petition seeking federal permission to move a railroad operator off of a railroad that connects North Creek to a former iron mine in Newcomb.
For example, the STB said the DEC doesn’t need to notify shippers using the railroad, because there are none. It also waived the requirement to notify the Governor, since he is well aware of the DEC’s complaint and has discussed it with the press during visits to Warren and Essex counties. The DEC won’t have to notify labor unions either, since no one is employed on the line right now. In addition, the DEC won’t have to post notices at the rail stations served by the line, as there are none.
The board declined to waive a requirement that the DEC publish a notice for three consecutive weeks in local newspapers, saying public notice was important. Also, the STB said the DEC will still have to send notice to the US Railroad Retirement Board.
The STB’s decision noted that IPH had failed to file a reply to any of the DEC’s waiver requests. The company did issue a statement claiming to have found addition customers for the rail line. Subsequent news articles reported on this but it’s not clear if there are any formal agreements in place.
The rail line runs more than 20 miles from North Creek to a former iron mine in the abandoned hamlet of Tahawus. Saratoga & North Creek Railway – subsidiary of Iowa Pacific Holdings, Chicago, acquired limited temporary rights to the use of the corridor in 2011. The company said it intended to transport rock tailings from the mine, but that business never materialized. Last fall, the railroad starting charging oil companies for the right to store their obsolete tanker cars on the line.
Part of that plan came apart when Berkshire Hathaway subsidiary agreed to requests from Governor Cuomo, Comptroller Thomas DiNapoli, other state and local officials, and more than 1,000 Adirondack Council citizen advocates calling for the removal of its cars from the Adirondack Park.
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