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Surface Transportation Board Announces Results of May 3 Voting Conference

>From the Surface Transportation Board, Washington, D.C.

Surface Transportation Board Chairman Roger Nober today announced the
results of the voting conference held today, May 3, 2005 by the STB.

The Board voted unanimously to adopt each of the draft decisions in the
nine matters before it.  A summary of those votes is attached as a fact


Fact Sheet


>>CSX Transportation, Inc.--Petition for Declaratory Order, STB Finance
Docket No. 34662.
On March 14, 2005, the STB issued a declaratory order (an expression of the
agency's opinion on a matter of controversy) in this proceeding concerning
the scope of Section 10501(b) of Title 49, United States Code [49 U.S.C.
10501(b)], often referred to as "ICC Termination Act preemption."  The
declaratory order found that, based on the statute and well-established
precedent, Congress foreclosed state or local power to determine how a
railroad's traffic should be routed.  The District, which had enacted a law
governing routing of rail shipments of hazardous materials, and the Sierra
Club later petitioned the STB to reconsider and reopen its March 14

The Board voted, 3 to 0, to deny to the requests for reconsideration and
reopening of this proceeding.

>>New England Transrail, LLC, d/b/a [doing business as] Wilmington and
Woburn Terminal Railroad Co.--Construction, Acquisition, and Operation
Exemption--in Wilmington and Woburn, MA, STB Finance Docket No. 34391.
At issue in this case is a New England Transrail, LLC (NET) petition that
would allow NET to construct 2,700 feet of new track, to acquire 1,300 feet
of existing track, and to operate  all 4,000 feet of track in Wilmington
and Woburn, Massachusetts, as a common carrier (a railroad offering its
transportation services to the public, as opposed to the provision of
services under contract).

The Board voted, 3 to 0, to dismiss without prejudice (to later refiling)
NET's petition because the project NET presented to the STB differs
materially from what NET subsequently presented in other forums.

>>Kaw River Railroad, Inc.--Acquisition and Operation Exemption--The Kansas
City Southern Railway Company, STB Finance Docket No. 34509.
This case involves the Kaw River Railroad, Inc.'s (KRR) notice of exemption
to acquire by lease, sublease, and assignment, and to operate as a common
carrier, a total of 18.2 miles of track in Kansas City, Kansas, and Kansas
City, Missouri.  The Brotherhood of Locomotive Engineers and Trainmen, a
Division of the Rail Conference, International Brotherhood of Teamsters
(BLET), and the United Transportation Union (UTU) requested that the STB
hold a hearing in connection with this proceeding, schedule an
oral-argument session, and reject KRR's notice or revoke KRR's exemption.

The Board voted, 3 to 0, to deny the BLET and UTU petitions.

>>CSX Transportation, Inc.--Abandonment Exemption--in Summit County, OH,
STB Docket No. AB-55 (Sub-No. 631X).
(Embraced case:  Embraced case:  Terminal Warehouse, Inc. v. CSX
Transportation, Inc., STB Docket No. 42086.)
This proceeding involves a notice of exemption filed by "CSX" to abandon a
0.7-mile portion of a railroad line in Summit County, Ohio.  CSX made the
requisite certification to the STB that no local traffic had moved over the
line for at least two years, that any overhead traffic (traffic neither
originating nor ending on a specific section of track, but merely passing
over it) could be rerouted over other rail lines, and that no formal
complaint filed by a user of the line was either pending or decided in
favor of the complainant within the two-year period.  Service over the
track portion had been embargoed for the last six months of the two-year
period at issue because of a damaged bridge.  Terminal Warehouse, Inc.
(Terminal Warehouse) file a petition to revoke the exemption, as well as a
separate complaint challenging the embargo, alleging that the embargo was
unlawful and that the line portion did not qualify for two-year,
out-of-service status.  The STB denied Terminal Warehouse's revocation
petition and dismissed the complaint.  Terminal Warehouse subsequently
sought reconsideration of the agency's denial of its petition to revoke the
abandonment proceeding, and the dismissal of the complaint.

The Board voted, 3 to 0, to deny Terminal Warehouse's petition for
reconsideration of the agency's earlier decision.

>>Public Service Company of Colorado d/b/a Xcel Energy v. BNSF Railway
Company, STB Docket No. 42057.
In this proceeding, the Public Service Company of Colorado, doing business
as Excel Energy (Xcel) challenged the reasonableness of BNSF Railway
Company (BNSF) rates for the transportation of coal from origins in the
Powder River Basin of Wyoming to Xcel's Pawnee power plant near Brush,
Colorado.  The STB earlier found that BNSF had market dominance over the
coal movements at issue and that the challenged rates were unreasonably
high.  The agency prescribed maximum reasonable rates and awarded
reparations to Xcel.  Later, the agency addressed technical errors in, and
petitions for reconsideration of, its earlier decision in this
proceeding.  In February of this year, Xcel filed a petition for the STB's
correction of technical and computational errors in the agency's decision
reconsidering the issues in this proceeding.

The Board voted, 3 to 0, to issue a decision accepting Xcel's requested
technical corrections to the agency's reconsidered decision.

>>Union Pacific Railroad Company--Abandonment Exemption--in Rio Grande and
Mineral Counties, CO, STB Docket No. AB-33 (Sub-No. 132X).
At issue is a petition by Concerned Citizens for an oral hearing and a
petition requesting that the STB reopen its prior decisions in this case in
which the agency authorized "Union Pacific's" sale, to the Denver & Rio
Grande Railway Historical Foundation, under an offer of financial
assistance (a financial offer to purchase a line or subsidize operations
for the purpose of preserving service after the agency has approved a
rail-line abandonment or service-discontinuance proposal), of a 21.6-mile
line, known as the Creede Branch, in Rio Grande and Mineral Counties, CO.

The Board voted, 3 to 0, to deny the request for an oral hearing and the
petition requesting reopening of the STB's prior decisions in this case.

>>City of Creede, CO--Petition for Declaratory Order, STB Finance Docket
No. 34376.
This proceeding involves the STB's response to a petition for a declaratory
order filed by the City of Creede, CO (the City), pursuant to an order of
the U.S. District Court for the District of Colorado (U.S. District Court)
referring to the STB questions related to the issue of federal preemption
of the City's zoning laws, as applied to the railroad right-of-way (ROW),
for a Denver & Rio Grande Railway Historical Foundation (D&RGHF) rail line.

The Board voted, 3 to 0, to respond to the U.S. District Court that the
D&RGHF needs the full width of its ROW in the City for railroad purposes,
and that the City's zoning ordinances are preempted under 49 U.S.C.

>>Norfolk and Western Railway Company--Abandonment Exemption--Between
Kokomo and Rochester in Howard, Miami, and Fulton Counties, IN, STB Docket
No. AB-290 (Sub-No. 168X).

At issue here are petitions for the STB's reconsideration or revocation of
earlier agency decisions that issued Notices of Interim Trail Use
authorizing rail banking/interim trail use for portions of a Norfolk
Southern Railway Company (NSR) railroad line that NSR had been authorized
to abandon.  The petitions were filed by landowners adjacent to the line.

The Board voted, 3 to 0, to deny the petitions for reconsideration and

>>State of Washington, Department of Transportation--Acquisition
Exemption--Palouse River and Coulee City Railroad, Inc., STB Finance Docket
No. 34609.

This case involves a verified notice of exemption filed with the STB by the
State of Washington, Department of Transportation (WSDOT) to acquire from
the Palouse River and Coulee City Railroad, Inc., certain physical assets
of seven railroad lines, including the underlying rights-of-way, totaling
approximately 188 miles in Washington.  The WSDOT later filed a motion to
dismiss the notice, asserting that the transaction does not require the
STB's approval because WSDOT will not become a common carrier as a result
of the transaction.

The Board voted, 3 to 0, to dismiss the motion.

The STB provides the above summaries as a courtesy to the public and the
media.  The STB's actions in these cases, however, are the agency's written
decisions.  Those decisions will be forthcoming.  Printed copies of the
decisions will be available for a fee by contacting ASAP Document
Solutions, 9332 Annapolis Rd., Suite 103, Lanham, MD 20706, telephone (202)
306-4004, or via asapdc@xxxxxxxxxxxx  The decisions also will be available
for viewing and downloading via the Board's website at

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