[Federal Register Volume 73, Number 195 (Tuesday, October 7, 2008)]
[Notices]
[Pages 58711-58712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23616]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 35164]


BNSF Railway Company--Petition for Declaratory Order

AGENCY: Surface Transportation Board.

ACTION: Institution of declaratory order proceeding; request for 
comments.

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SUMMARY: In response to a petition filed by BNSF Railway Company (BNSF) 
on July 15, 2008, the Board is instituting a declaratory order 
proceeding under 49 U.S.C. 721 and 5 U.S.C. 554(e) to determine whether 
what BNSF characterizes as two track relocation projects in Oklahoma 
City, OK, are subject to the Board's jurisdiction and require prior 
Board approval. One reply in opposition to the petition and three 
letters in support of the petition have been filed. The Board seeks 
public comments on this matter.

DATES: Supplemental evidence from BNSF is due by October 17, 2008. 
Replies are due by November 6, 2008.

ADDRESSES: Send an original and 10 copies of any comments, referring to 
STB Finance Docket No. 35164, to: Surface Transportation Board, 395 E 
Street, SW., Washington, DC 20423-0001. In addition, send one copy of 
comments to BNSF's representative, Kristy Clark, 2500 Lou Menk Drive, 
Fort Worth, TX 76131-2828, and one copy to Edwin Kessler, 1510 Rosemont 
Drive, Norman, OK 73072.

FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 245-0395. 
[Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at: 1-800-877-8339].

SUPPLEMENTARY INFORMATION: BNSF's petition for declaratory order 
concerns what it now characterizes as a project to relocate two track 
segments of its Chickasha Subdivision between milepost 541.69 and 
milepost 539.96 to facilitate the Oklahoma City I-40 Crosstown 
Relocation project.\1\ Petitioner states that these two track segments 
must be relocated to make way for this major highway project. BNSF 
states that the segment of the Chickasha Subdivision between milepost 
540.15 and milepost 541.69 (referred to as the middle segment) would be 
relocated by rerouting traffic over BNSF's Packingtown Lead, which will 
have the same throughput capacity and operating speeds as the Chickasha 
Subdivision line. BNSF states that the portion of the Chickasha 
Subdivision between milepost 540.15 and milepost 539.96 (referred to as 
the eastern segment) would be relocated to the south.\2\ BNSF adds that 
a contractor for the Oklahoma Department of Transportation (ODOT) is 
constructing: (1) A new railroad bridge to elevate BNSF's Red Rock 
Subdivision where it crosses the Chickasha Subdivision and where the 
new highway will be located, and (2) new industry tracks to connect the 
two shippers located adjacent to the eastern segment (Producers 
Cooperative Oil Mill (Producers) and Mid-States Wholesale Lumber (Mid-
States)) directly to BNSF's Red Rock Subdivision north of the Chickasha 
Subdivision.
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    \1\ These track segments were previously the subject of a notice 
of exemption in BNSF Railway Company--Abandonment Exemption--In 
Oklahoma County, OK, STB Docket No. AB-6 (Sub-No. 430X), that was 
rejected in a Board decision served June 5, 2008.
    \2\ BNSF states that it plans to file an individual exemption 
request or an application to abandon the western segment--the 
portion of the Chickasha Subdivision between milepost 541.69 and 
milepost 542.91--in the future. Therefore, the western segment is 
not at issue here.
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    BNSF argues that neither of these relocation projects will affect 
service to shippers or involve an extension into or an invasion of new 
territory, and that these projects are therefore outside of the Board's 
jurisdiction, citing among other authorities Missouri Pac. R. Co. 
Trustee Construction, 282 I.C.C. 388 (1952); and City of Detroit v. 
Canadian National Ry. Co., et al., 9 I.C.C.2d 1208 (1993), aff'd sub 
nom. Detroit/Wayne County Port Authority v. ICC, 59 F.3d 1314 (D.C. 
Cir. 1995). BNSF requests expedited processing of this proceeding to 
allow the highway project to move forward.
    On August 4, 2008, ODOT submitted into the record a letter 
expressing support for an expedited declaratory ruling in favor of 
BNSF. ODOT also attached letters of support from Mick Cornett, Mayor of 
Oklahoma City, and the Greater Oklahoma City Chamber.
    On August 5, 2008, Edwin Kessler filed a reply to BNSF's petition 
and a request for a procedural schedule, including a public hearing in 
Oklahoma City, OK.\3\ Mr. Kessler argues that BNSF has failed to 
demonstrate that its proposed actions would be mere relocations of 
track. Rather, Mr. Kessler argues that the relocation of these segments 
will deprive some shippers of service, particularly Boardman, Inc. 
(Boardman), and will allow BNSF to serve new markets. Mr. Kessler 
argues that BNSF needs Board authorization to: (1) Construct the new 
tracks and (2) remove the two crossing diamonds on the eastern segment 
that enable it to reach two other shippers (Producers Co-Op Oil Mill 
and Mid-States Lumber Company).
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    \3\ The public hearing request will be denied. The Board 
believes that the record can be developed and the issues resolved on 
the basis of written submissions.
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    On August 25, 2008, BNSF filed a response to Mr. Kessler's 
arguments in which it challenged several of Mr. Kessler's factual 
assertions.\4\ BNSF also renewed its request for expedited Board 
handling of this matter.
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    \4\ In that document, BNSF also withdrew an earlier request that 
the Board rule that the United States District Court for the Western 
District of Oklahoma was without jurisdiction to enjoin the two 
relocation projects. On August 14, 2008, the District Court issued 
an order granting BNSF's motion to dismiss Kessler's petition to 
enjoin BNSF for lack of jurisdiction. Edwin Kessler v. BNSF Railway 
Company and Oklahoma Department of Transportation, Case No. CIV-08-
358-R (W.D. Okla. 2008).
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    On September 5, 2008, Mr. Kessler filed a reply to BNSF's August 
25, 2008 response and also filed a separate document labeled ``Motion 
to Compel'' and ``Motion to Cease and Desist'' asking that the Board 
compel BNSF to undertake certain actions. In these motions, Mr. Kessler 
alleges that, in late July 2008, a railroad car carrying his locomotive 
was delivered to BNSF for transport to Boardman's facility, but that 
after reaching Oklahoma City some 19 days later, the car ultimately 
could not be delivered because the tracks leading to Boardman's 
facility had been removed. Mr. Kessler provided no verified statement 
to support these allegations.
    On September 24, 2008, BNSF moved the Board to strike Mr. Kessler's 
September 5 pleading because it is an impermissible reply to a reply, 
is not properly verified, and involves matters that are either 
premature or outside the scope of this proceeding. BNSF also calls Mr. 
Kessler's locomotive shipment a ``fraudulent ploy,'' which BNSF is 
investigating.
    Under 5 U.S.C. 554(e), the Board has discretionary authority to 
issue a declaratory order to terminate a controversy or remove 
uncertainty. BNSF asserts that no Board jurisdiction is implicated 
here, while Mr. Kessler argues that these projects are in fact subject 
to the Board's jurisdiction, as they would remove service to existing 
shippers and would allow BNSF to extend service into new territory. A

[[Page 58712]]

declaratory order proceeding will be instituted in this proceeding to 
address these issues. To facilitate BNSF's request for expedition, BNSF 
will be permitted to supplement its petition by October 17, 2008. Any 
person seeking to reply in support of, or in opposition to, BNSF's 
position may submit written comments to the Board by November 6, 2008. 
Because there is already a substantial record in this proceeding, the 
parties are directed to focus their comments on the issue of whether 
these two planned projects are merely track relocations not requiring 
Board authorization or whether they would remove service to shippers 
and/or extend BNSF's operations into new territory. Both the continued 
ability to serve Boardman and any specific new territory that could be 
served should be identified and addressed. Additionally, concerning 
service to shippers on the eastern segment, BNSF is specifically 
directed to submit a statement from ODOT confirming that its contractor 
is obligated to construct both a new railroad bridge to elevate the Red 
Rock Subdivision over the planned location of the new highway and new 
industry tracks to connect Producers and Mid-States directly to the Red 
Rock Subdivision.
    In the meantime, Mr. Kessler has not shown that his requests for 
injunctive relief should be entertained in this declaratory order 
proceeding. Mr. Kessler says that, with the request for a locomotive 
shipment, Boardman was ``testing'' BNSF's ability to serve Boardman.\5\ 
But Boardman is not before us complaining that a locomotive was not 
delivered, or that BNSF has failed to meet any reasonable request for 
service. Indeed, according to BNSF, Boardman refused delivery of the 
shipment by transload, explaining that the car was ordered for 
political reasons. The Board will not order injunctive relief where the 
supposedly aggrieved shipper does not even appear before the agency, 
and certainly will not do so where, as here, the moving party has not 
provided any verified evidence. Any party aggrieved by a service 
failure may file a complaint and seek appropriate relief. Finally, 
because BNSF has had an opportunity to respond to Mr. Kessler's 
September 5 pleading, the Board will not strike it.
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    \5\ Kessler's Reply to BNSF's Amendment to Petition at 11.
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    Board decisions, notices, and filings in this and other Board 
proceedings are available on our Web site at http://www.stb.dot.gov.

    Decided: October 1, 2008.

    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Anne K. Quinlan,
Acting Secretary.
[FR Doc. E8-23616 Filed 10-6-08; 8:45 am]
BILLING CODE 4915-01-P