There are two items which have surfaced lately before the Board which have some relevance to several threads here.

The first is:

Docket No. EP 729
OFFERS OF FINANCIAL ASSISTANCE
Decided: December 7, 2015
AGENCY: Surface Transportation Board.
ACTION: Advance Notice of Proposed Rulemaking.posting.php?mode=post&f=1&sid=5606f3153b1a9b9c052bd9dcbabf5a1c#

An OFA is a process by which a financially responsible party may acquire an active (in terms of Common Carrier Authority) rail line which which been listed for abandonment. This process may occasionally be the proper tool for a preservation group which has made the proper business case to acquire a railroad.

The Board asked for public comment concerning the OFA process and potential improvements. The discussion has addressed several aspects of the process but outside of the case specific discussions of Harsimus Cove the greatest emphasis seems to be on the financial responsibility and identity of the offerors. Much of this discussion revolves around the antics of a pair of Serial OFA Filers which can be referred to here simply as the Usual Suspects. (I am sure that a few of you remember an attempt by the Usual Suspects to acquire the Baltimore Streetcar Museum by claiming that the PRR should have filed an abandonment petition for the Ma & Pa spur into Morgan Millwork in Baltimore). A new term of art has surfaced a s a result of this discussion => Designated Unqualified Offeror, DUO for short. My lovely Granddaughter immediately rebranded the Usual Suspects as the Deadbeat DUO.

I should also note that one of the Usual Suspects has filed 44 pages of public comment which essentially blames the the Board and the process for his bankruptcy.

http://www.stb.dot.gov/Decisions/readingroom.nsf/WEBUNID/9AC857321188B08885257F16004E46E7?OpenDocument

There is a further board decision served on March 24th:
Docket No. FD 35873
NORFOLK SOUTHERN RAILWAY — ACQUISITION AND OPERATION — CERTAIN RAIL LINES OF THE DELAWARE AND HUDSON RAILWAY COMPANY, INC.
http://www.stb.dot.gov/decisions/readingroom.nsf/UNID/098EC2B8A0742E2A85257F80004E966F/$file/45009.pdf
This is a rebuke. One of the usual suspects filed a pleading which was bizarre even by his standards. In addition the usual unsupported speculation which was intended to bolster his claims as to why he should be given (some of) the D&H lines involved, he included a link to a video which depicted a murder by car bomb. The Board has clearly had enough.

Over the years many of us who work in the field have felt that some of the abuses by this party have gone well beyond anything acceptable and that his behaviour crossed the line from mere poor lawyering (He has claimed in filings before the Board to have a law degree. So far as I know this has never been substantiated.) to contempt, perjury and even extortion. While I have defended (and will continue to do so) his right to petition, he is bound by the law and the rules of the Forum and he regularly fails to follow either.

GME

Mr. Edwards,

I sent you a private message (PM) regarding this thread. It is my sincere hope that you will read it and hopefully respond to it via the same manner. I do not believe I have ever responded to you via the PM feature before, so I am simply placing this response here to alert you to the fact it was sent.

Best wishes to all.

Yesssir, that last quote was correct. For what should be sterile government documents, the last link is interesting reading, including this quote:

Eric

Thank you for your note and the good wishes. I don't believe that I have ever given that response to civil colloquy even when there has been severe disagreement. In fact I normally welcome your comments whether I agree with them or not. It is only through frank, open and honest discussion that the system will work. As a general rule the parties who try to avoid such discussion are the ones who believe that they have something to hide. The key here is to stick with what is in the public record and if counsel thinks my analysis of what is in that public record is good enough to use as a basis for depositions then I should send him a fairly substantial bill.

The OFA process can allow a museum or other group with sufficient assets which was seeking an operating venue to acquire a line by agreeing to maintain service to existing customers. This should be the basis for any discussion here.

There is a line, a fairly distinct line, between creative interpretation which the rules seem to allow and which may lead to what is seen as misuse, and the type of behaviour characterized as abuse in the second case cited. The Rulemaking is intended to clarify the procedure and insure that it is used for the purpose for which it was intended rather than as a vehicle for other purposes.

There have been issues with the OFA process since day one and disputes in certain fairly recent cases have highlighted these. I posted it here as the OFA process can occasionally be a proper vehicle for a preservation group hoping to acquire a rail line. We have had a few instances of late where preservation groups have moved forward in the belief that the law says something which it in fact does not and the results have been unfortunate.

This is NOT, and should not become, a discussion of Harimus Cove. I agree with you that the Harsimus Cove Litigation need not be argued here. It has gone on far longer than it should have and and should never even have begun. It is the lineal descendant of the Penn Central Bankruptcy and the fact that there just was not enough time and money to dot every i and cross every t in filing abandonment petitions before the ICC. (When the case was settled much of the ministerial work was ended without being completed and we have been paying the price ever since.) I do not believe that the OFA process was intended for such a situation, however because the line had never been formally abandoned the OFA process as currently structured was available as a tool.

If one reads the comments in EP 729 carefully they seem to shake out into parties involved in the Harismus Litigation, parties who have had to expend significant resources on OFAs which they believe are frivolous and a large customer for whom retaining rail service can be considered to be in the public interest even if it is not commercially viable in the common meaning of that term.

At least some of the debate has focused on intent versus application and Harsimus Cove is in some ways the poster child for that debate. The details however also become a distraction in the discussion of how to make the OFA process work. I stressed the term 'Common Carrier Authority' in my original post because that is the definition of 'active' here and why we have this very interesting situation where the process can be used, essentially because of a paperwork issue, to try to acquire a line in order to continue service when the line was in fact dismantled before many of those involved in the litigation were born, let alone finished law school. There have been several other matters where the OFA process has been used where it does not seem to have been intended and even though Harsimus Cove may have been the straw which broke the camel's back it is not the sole reason for the discussion.

GME

Note: Anyone who wishes to learn the full history of Harsimus Cove is free to go to the Board's website and peruse the following cases: AB_167_1189_X; FD_34818_0 AB_167_1190_X; FD_34818_0; and, FD_35825_0. I suggest new reading glasses and quite a bit of vacation time.

As someone just even vaguely familiar with the case in question, I not only cackled so loudly at your subtle understatement that I feared waking neighbors, I was stunned that you didn't suggest the also-recommended reinforcement of strong spirits of the reader's choice. I would go back for a wade through the morass for nostalgia's sake, but this Unibroue La Résolution at 10.0% is woefully unsuited for the task even at a 750ml bottle........

Sandy, your recommendations of appropriate alcoholic lubrication are certainly beyond reproach. Though, you do know they are now again producing absinthe?


That is certainly the more expensive and difficult way to make a preservation railroad happen. Also high-risk: Michigan is littered with the fallen flags of dead shortline freight railroads. However all its museums are hanging on, some by their thumbs, with no visible means of sustaining their own infrastructure. Yet they remain. It is surreal, almost like magic.

I generally figure on the burden between being a general-system railway museum and operating freight (as opposed to being off-general system in the manner of Fox River, Rio Vista etc.) as at least 2 FTE's - one for paperwork no volunteer would ever want to do, and the other for statutory mechanical and track work. So you need a business model which can support that - whether the passenger subsidizes the freight or vice versa. I think we've seen both (TVRM, IndRM/Dubois).

Sadly, some repeatedly fail to achieve their high aspirations, failing in the same exact way everytime, as if their free-will is being run by a preprogrammed script. It's like a self-reinforcing, self-made reality, from which escape is nigh impossible, or takes nothing less than an existential epiphany. Where's Lawrence Fishburne with those red pills? Since we can do nothing about this, the concern to us is the potential of the authorities' patience becoming worn down, and altering programs in a way which also excludes us.

I can tell you conclusively that looking at a line as both an operating museum and reviving the freight process via OFA is 'sometimes' a viable approach. The CLS&SB proposal in South Bend hit the STB precisely because of that.

As a general and procedural concept, it was perfectly viable. What wasn't viable was the absolute opposition of the City of South Bend to EVER reopening that track for freight, transit, museum, anything. They are still transloading and trucking coal across the City to the University, but the ND&W tracks are long-gone.

By the time the entire procedural/appeal/decision process was complete, the proposer 'won' with the STB, but the opportunity to fund it via a viable freight component had passed. It's amazing what several years tied up with the STB can do to a business opportunity, let alone a City that showed remarkable creativity and financial investment in taking every step available to prevent it.

Bottom line - don't entirely dismiss the OFA process as being irrelevant to this preservation community. There are situations where combining freight activity with a preservation function does actually make some business sense. The OFA process is difficult, but not impossible, for a qualified rail organization to participate in in these kind of situations. That requires monitoring, and sometimes commenting, in the process - hopefully in such a manner that doesn't result in censure.

I was just browsing around on the STB website for various decisions and such (something I like to do occasionally), and saw the following - figured I'd update the thread as well with the following rule change:

https://www.stb.gov/decisions/readingro ... /45830.pdf