CSX and NS improperly attempt to shift the burden that Section 24308(e) places squarely on them by insisting that Amtrak cannot even file an application with the Board until Amtrak jumps through various hoops of CSX’s and NS’s own invention that the statute nowhere requires. The motion to dismiss illustrates precisely why Congress enacted Section 24308(e). Congress was so “concerned about the lack of cooperation private freight railroads have demonstrated toward Amtrak,” and believed it was so “important that Amtrak have available to it an expedited procedure for making necessary modifications or additions to its operations,” that it enacted Section 24308(e) for Amtrak to “secure expeditious relief from such intransigence.”
Although CSX was a member of the Gulf Coast Working Group, CSX refused to participate jointly in the feasibility study with Amtrak and the FRA to determine what was necessary to restore service. Instead, CSX performed its own study and then asserted that the “necessary improvements for any Gulf Coast passenger restoration” would “cost, at a minimum, at least $2 billion.” The SRC described CSX’s demand for $2 billion as a “veto [of] a passenger rail service supported by the people and leadership of the coastal south.” The SRC noted that throughout the Gulf Coast Working Group’s process, CSX evinced “a commitment to obfuscation and deceit” and “demonstrate[d] what can only be understood as an unwillingness to negotiate in good faith and an opposition to bringing back passenger rail service to communities along the Gulf Coast.” Indeed, when CSX was asked “if they would be willing to continue to work with the stakeholders of the GCWG to collaborate towards a mutually agreed on determination of cost,” CSX’s representative “replied no, CSX would not continue to work with the group.”
If CSX and NS believe that an RTC study would be useful to meet their burden of demonstrating that resumption of the Gulf Coast Service would unreasonably impair their freight transportation, they can present such a study to the Board in this proceeding. Indeed, CSX already conducted an RTC study in 2016, as noted in the Gulf Coast Working Group Report. That CSX and NS now demand another study be completed before Amtrak can even bring this dispute to the Board demonstrates their unwillingness to engage meaningfully with Amtrak to reinstate the Gulf Coast Service.
CSX’s and NS’s stubborn refusal throughout the course of the study to provide Amtrak with even the most basic information required by Amtrak’s FRA grant agreement ultimately led the FRA to conclude that the “level of opacity that has come to define the Gulf Coast Study has rendered [that study] incapable of fulfilling its intended purpose.” While CSX and NS now feign surprise that Amtrak believes the study was deeply flawed, throughout the course of the one year study, Amtrak made no secret of the fact that unless CSX and NS were willing to share all the operationally relevant inputs, the outputs of the study would be meaningless.
