OK, how about this scenario. Slightly different situation, but pretend that the railroad was the highway. Highway 23, the only road to several communities, passes through the National Forest crossing the river on a bridge built 80 years ago. A sudden and severe storm hits and the bridge is washed out cutting off the upstream communities. 500 cars a day pass over the bridge, including trucks carrying food and supplies to the towns upstream. Does the Highway Department wait for approval from the Forest Service before starting work to get the highway open again? . Not on your life! They will be bulldozing a temporary culvert the next day. Maybe the FS will need to approve the final plan, but it is almost certain that they won't get in the way of the Highway Department digging up their precious river to reopen the highway.

*Our river. It's ours. Yours and mine.

The following information has been published in the Durango Herald with comments from representatives from the Forest Service and from the D&S Railroad.

The issue with the Forest Service goes beyond just the bridge repair. According to the Forest Service, Federal Law requires D&S to notify the Forest Service before performing any work (on the D&S right of way / corridor) that goes beyond routine maintenance.

The Forest Service has also said that upon notification of such work, the Forest Service will determine whether a permit is needed. I assume that this means that the permit would be issued by the Forest Service, and that the Forest Service may require modification of the planned work, or may not approve it at all.

For the purpose of wild fire mitigation, D&S has clear cut 8 miles of the corridor, although it is not clear whether this includes all vegetation on both sides of the track. The Forest Service has stated that the clear cutting goes beyond what would have been necessary for fire mitigation, and that it was done without Forest Service approval.

Public statements indicate that the Forest Service believes the cutting of the larger trees amounts to logging. From the statements of the Forest Service and of the D&S, it sounds to me that the Forest Service determines that the removal of the larger trees was not permissible. D&S has said that removing the large trees was not logging because they did not make a profit in removing the trees. However, I understand the news reporting to say that the large trees were to be milled into lumber.

The Forest Service has also stated that they believe D&S trespassed on Forest Service land in the course of their work in clearing vegetation. The Forest Service says they are investigating this alleged trespass, but no other information was given.

Maybe D&S wanted to clean up more miles of track for a fixed amount of money. Allowing the contractor to harvest some merchantible timber and keep the revenue from the harvest could have been a way to do so. (And the D&S would be correct in saying that they did not make a profit on the harvest.)

As was discussed earlier, the case depends on whether the ROW is an easement or the property is owned free and clear by the railroad. By their conduct, both sides seem to feel that they own the land.

I don't know the forest practice rules in Colorado. If the land actually belongs to the railroad, would they need a state permit for the harvest?

D&S has said that they allowed the contractor to remove the large trees and sell them for lumber as partial compensation for the vegetation clearing work. So there was financial gain from removing the trees. Whether or not a profit was made may be debatable, and it also may not be relevant. I have not heard any comment from the Forest Service indicating that selling the timber was an issue. They have said that removing it is the issue because removing it was not necessary for fire mitigation.

It’s concerning how many people say “ the railroad is right the forest service is wrong” or “the railroad was there first!”

That’s not the attitude that we, as a preservation society, should have.

True. The railroad and the Forest Service need to get along together. Remember that the Forest Service is the 800 pound gorilla in this case and with things changing as the generations pass, this could eventually become the western version of the drama in New York State. What happened in New York did not happen overnight-it developed over years.

It seems that so many people are at the ready to pounce on anyone who criticizes the railroads at the drop of a hat because, "the railroad does no wrong". But the more information that comes out, the more the D&S looks to be in the wrong. This isn't "mean ol gov' wants a new rail trail". This is "your railroad did not follow proper procedure and broke federal law". It's not something to take lightly or just brush off as government overreach. If the D&S took the time to work with the USFS instead of working behind their back, they wouldn't be in this mess.

Durango Herald July 2, 2020

https://pinerivertimes.com/articles/139558

Quote from the article:

“Harper said hikers criticized the railroad’s work as a large logging operation. He said the D&SNG did not inform the Forest Service of its project because the railroad isn’t required to notify the agency of work in its right of way.”

Actually, that is exactly what would happen. My parents live on Hwy. 72 in South Boulder Canyon at around 8K feet, 7 or 8 years ago during the summer of several bad floods (the ex-RG through South Boulder canyon was closed for a long time, and I believe Great Western and maybe UP was washed out around Loveland that same year) 72 was washed out in Coal Creek Canyon (which 72 follows at the lower levels before jumping a ridge at Wondervu to South Boulder Canyon) and didn't reopen for months, my parents had to bypass ccc miles out of their way. A big part of the reason was because the FS put a number of restrictions on what could be done while repairing the washouts.

There is a tendency in the west to regard the federal government as not the "real" owner and therefore its instructions can be ignored. Not by the big railroads though, when the ex-SP up Willamette Pass east of Eugene in Oregon suffered an avalanche that closed the line for several months around fifteen years ago the UP made sure to contact the FS about their trees that had fallen across the right of way and to very carefully take them to a place where the FS could sell them.

So, wading into the wetroom with zero hope of staying dry... I would ask the following questions.

Does the D&S have an up to date Surface Water Protection Plan (SWPP) in place that they follow during roadbed repairs? This would include the use of silt fencing, silt curtains, and the like.

This is not the first time this bridge has washed out, has the RR done any sort of calculations for max flow and adjusted the size of the structure accordingly?

Has the RR followed any permitting procedure in the past while completing scheduled maintenance?

Why do I bring up this line of questions?

In the past it's been described that the RR "got things done" in seemingly no time at all which leads one to thing that many of the protocols were ignored in the past and now that the RR is involved in major litigation with the NFS anything they do is under increased scrutiny.

The BNSF was brought up earlier and I have no doubt that they have SWPP in place for he entire system. In areas where washouts are common they probably have boiler plate repair plans that can be updated and executed on a moments notice. In areas where hey know it's only a matter of time before it fails the plans are going to be on the books and permitting is in place, waiting for the catastrophe or funding to allow the work to be done.