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Here is an item that showed up as a “comment” to an earlier post and needs to be moved forward for general consideration.


Board rules railroad company falsified Crosstown Expressway documents
Wednesday, June 18, 2008 OKLAHOMA GAZETTE
By Ben Fenwick

On Aug. 30, 2005, the Burlington Northern Santa Fe railroad signed an agreement with the Oklahoma Department of Transportation that ODOT, at taxpayer’s expense, would haul lumber in trucks for the Mid-States Wholesale Lumber Co., 101 S.E. Fourth. The estimated cost was $22,800.


The reason? BNSF was to abandon nearly three miles of track so that ODOT could build the new Crosstown Expressway, also known as the Interstate 40 Relocation Project, through a section of that rail line — and, incidentally, wipe out the rail yard for Oklahoma City’s Union Station.

However, when BNSF officials filed for permission with the U.S. Surface Transportation Board, they told a different story. The paperwork the company filed to give the track to ODOT claimed it had not been used for the previous two years — about 23 days after the railroad agreed to let trucks instead of trains haul the lumber.

When metro-area activists opposed to the Crosstown project presented the discrepancy to the board, the board ruled that BNSF falsified its application and threw out the paperwork.

“This means that its certification in September 2005 was false or misleading. As a result, we will reopen the January 2007 decision and reject BNSF’s notice of exemption as void,” the board ruled this month.

State transportation officials said the ruling might stop some construction on the Crosstown — for now.

“We are still pretty confident they will work it out,” said ODOT spokeswoman Brenda Perry. “We are not directly involved, but it affects us.”

A spokesman for BNSF refused an interview, instead issuing a statement prepared by the company.

“The ‘false or misleading information’ referenced in the STB decision dated June 3, 2008, was the result of a technicality that resulted in BNSF retaining and using less than 100 feet (the length of about one rail car) at the eastern end of this trackage near Shields Boulevard to serve a large shipper located nearby,” the release said.

Opponents to the Crosstown have a different view: The BNSF decision is proof that Oklahomans are being misled about the whole project, including its cost, its purpose and its would-be benefits for the city. With gas projected at $5 a gallon and beyond, does Oklahoma City need another highway, or a citywide commuter rail?

“Are they going to build a 10-lane highway across a rail line that is part of the national rail system and has jurisdiction?” asked Norman attorney Micheal Salem, who is working on the case. “Should ODOT continue to commit hundreds of millions of dollars to build a highway for which they have no authority, over the land that they’ve chosen already? Can they build a highway over an existing railroad without the authority of the federal government to do that?”


For Common Cause community activist Edwin Kessler, a retired meteorologist who filed the protest, the very first action of the Crosstown Expressway was a deliberate attempt to mislead Oklahomans.

“There have been some lines cut and there is a controversy about that indicated in the STB ruling,” Kessler said. “It means they are not authorized to abandon the line, and if they want to abandon it, they will have to reapply.”

To others on the opposition, Kessler’s work — which includes photographing BNSF’s actions on-site, developing the legal angles and other behind-the-scenes actions — the victory before the STB is a stunning upset.

“He accomplished a most significant task,” said Washington, D.C., attorney Fritz Kahn, who represented Common Cause to the board. “To get the STB to reopen a proceeding almost never happens. Moreover, to get the STB to rule against one of the Class I railroads as it did in ruling against Burlington Northern is something quite extraordinary.”

In its ruling, the board noted Kessler’s work as instrumental to the outcome of the case, and gave a scathing rebuke to BNSF, saying the company appeared to obfuscate the truth about the rail usage and the Crosstown construction.

“BNSF’s own evidence shows that it operated over a portion of the line during the (two)-year period prior to Sept. 23, 2005, confirming Mr. Kessler’s allegation that BNSF’s certification in its notice (that no local traffic had moved over the line for at least (two) years prior to the filing date) was false or misleading,” the board stated in its ruling. “Furthermore, despite multiple opportunities, BNSF has failed to provide an adequate explanation for the 2005 letters, in which BNSF seems to indicate that it provided rail service to Mid-States via the line within the (two)-year period prior to Sept. 23, 2005.”

Because of the misleading information, the board stated, it is reopening the proceedings. BNSF will have to reapply. This filing will be more involved, with proceedings on why removing the rail line is in the public’s interest.

“First of all, one of the questions that will have to be answered in additional proceedings, is what will be the purpose of rail use in Oklahoma City — that will be part of the ‘public interest, convenience and necessity’ that will be decided in a new abandonment proceeding,” Salem said.

Kahn agreed that BNSF’s task is likely to be widened considerably.

“The environmental-assessment report will be much more complex than BNSF had to file with this notice,” Kahn said. “The environment process will give citizens who are not shippers but have an interest in that line an opportunity to come in and testify. Before they file either a petition or an application, they have to consult with the specified Oklahoma and federal agencies to get their reaction on the environmental and historic effects on the proposed abandonment.”


Among those watching it closely will be Tom Elmore, executive director of North American Transportation Institute, whose work against the Crosstown and for light-rail contributed to the recent decision. Former Oklahoma City U.S. Rep. Ernest Istook shepherded funding for the Crosstown project through Congress in 2004. The federal funding favored many of Istook’s political donors, who received contracts for the highway. Istook, however, did the opposite for political donors in Utah, Elmore said, earmarking funding for a light-rail and commuter rail system that serves an Air Force logistics base considered to be a competitor to Tinker Air Force Base.

“Istook provided the startup funding for commuter trains between Provo and Ogden linked to Hill Air Force Base,” Elmore said. “They will soon have 60 commuter trains a day between those communities in full operation. It is such a high-tech corridor that the trains don’t even have to whistle at crossings — the crossings have their own whistles. Hill is now the only air logistics center in the nation with oil-crisis-proof workforce mobility.”

But not Oklahoma, he said.

“The same guy, while he was funding that, was funding the Crosstown so Union Station would be destroyed — and don’t ever believe that he had anything other than that in mind,” Elmore said.

Istook did not return calls for comment.

Union Station — its rail yard slated for destruction because it lies in the path of the proposed Crosstown — was once the center of a massive commuter rail system in Oklahoma City that provided passenger service to Tinker, Norman, Edmond, Bethany and other surrounding communities. The easements and even lines for these still exist, but Elmore said the rail hub at Union Station will be wiped out by the Crosstown if it is allowed to proceed. However, ODOT’s Perry said a single rail line will be brought into Union Station should commuters wish to use it as a rail stop.

But now, Elmore said, there is a chance to reverse the destruction of the Union Station rail yard. Elmore said the ruling concerning the rail line has an effect similar to that of the movement to save the Walnut Avenue Bridge. That bridge, from Deep Deuce to Bricktown, was slated for destruction until civic activists opposed it in hearings at the Oklahoma Corporation Commission. Now, the bridge is considered a vital link between new, upscale loft apartments and Bricktown’s establishments.

“Remember the Walnut Bridge? We didn’t fight it before the council, we didn’t fight it before the planning commission — we took it to the Corporation Commission because that’s where the fight was,” Elmore said. “Well, same thing here. We quit arguing with them, we took it to the STB, because that’s where the fight was, and that is where the fight’s been won.”

As for BNSF, the company’s release states that it intends to continue seeking to destroy the rail line in question so the Crosstown can go through.

“BNSF will be following up with the Surface Transportation Board to ensure the highway project’s objectives are met,” the company wrote. “BNSF emphasizes that service to area shippers has been and will continue to be uninterrupted by this or any subsequent trackage removal activity associated with the I-40 relocation project.”

John Bowman, ODOT Crosstown development engineer, said the ruling affects little work so far.

“There isn’t any work that is ongoing at the moment that is really predicated on that hearing,” Bowman said. “We have a number of projects ongoing and we are working with those contractors. … We are working at the east end, and the west end and those projects are out of the way.”

Might there be a way to bypass the rail yard, or perhaps bridge it, so the rail hub for Union Station is still usable? Bowman said ODOT will wait and see if it has to.

“I think it would be premature to speculate on that at this point in time until we see what the ruling will be,” he said. —Ben Fenwick

From Tulsa city council, 2008/06/27 at 10:35 AM

Filed under: Amtrak, Passenger Rail Politics, Passenger Rail Transportatio Policy, Regional USA Passenger Rail

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June 2008