Commentary, Issues

UP Extortion Letter to CA Shows That FRA/Congressional Legislative Guidance Are Needed

Commentary by Dennis Lytton, Director

Earlier this week, the Union Pacific Railroad distributed to the media, particuarly the San Jose Mercury News, their letter to the Authority of April 23, 2010.  In it they outline their most forceful position thus far of not cooperating with high speed rail.

Significantly, their letter above asserts the following claims:

  • No overpass or underpass structure can touch their right-of-way nor can any other HSR facilities.  Nor will they sell any of their land.  Even though their right-of-way often is hundreds of feet wide or more and has no prospect of development.
  • They will fight to keep HSR off land adjacent to their tracks that they or their customers do not even own, reasoning that many hundreds of miles of land adjacent to tracks needs to be kept “banked” for freight rail purposes.

Read the whole letter here:
04 23 2010 Union Pacific Letter

Those of us who have followed the issue of the freight railroads’ cooperation with conventional passenger rail and high speed rail in particular are disappointed but hardly surprised by UP’s maddening stance.

UP’s position on this issue is in stark contrast to that of some other freight railroads, particularly the BNSF Railway.  BNSF has had a cooperative relationship with the Authority thus far.  BNSF seems to get that where their ROW is adjacent to HSR, HSR development will be a “tide that lifts all boats” improving their tracks and getting them needed grade separation and other improvements.

Moreover, BNSF’s CEO Matt Rose has been one of the most prominent corporate cheerleaders of passenger rail and HSR in America.  Though he predictably asserts that his company must be made financially whole when passenger trains use its facilities, he has also advocated public investment in both conventional rail and HSR infrastructure.

One can speculate on the culture of the management and board of directors at UP that leads them to bash passenger rail development at every turn, though it is now a public policy priority of the Obama Administration and Congress. Perhaps they are holding out for a 20thcentury business-as-usual policy from Washington. That is, no passenger rail development and more Bush-era zero Amtrak budgets.

It is also fair to draw conclusions from UP’s ties to the Bush administration (Dick Cheney was on their board until 2000) and their strong donations to Republicans starting in the late nineties to the middle of the ’00s.

UP’s argument is in essence “This is my private property and you and your public purposes be damned.” And it is quite untenable. UP doesn’t own any conventional piece of private property like a building or farm or home. Their railroad occupies massive linear swaths of the state of California. Drive for an hour in California today and you’ll very likely get over or under or on their ROW. Unlike any conventional private property, railroads often own the only tenable transportation path for passenger rail development. This land was essentially given to their predecessor companies more than a hundred years ago through outright grants or bargain basement prices by a government that had just conquered this land and was intent on its successful settlement.

Fortunately, UP’s extortion letter to the taxpayers can be responded to by the Federal Railroad Administration and the Congress via appropriate regulatory guidance. The American Reinvestment and Recovery Act’s $8 billion of rail development money will not be effective if the regulatory environment permits freight rail tactics like UP’s to continue. The FRA should move towards mandating BNSF’s approach to HSR development. That is, mandate that freight railroads must cooperate on such basic items as under and overpass structures in such a way as the cost to the public is minimized and the freight railroads’ business is not adversely impacted. Clarify the right of HSR development agencies to acquire through eminent domain freight railroad properties adjacent to their tracks, particularly ones that they are holding for no purpose at all. Their property in Gilroy that they steadfastly refuse to negotiate for in their April 23rd letter can be fairly called “blighted” in its current state.

UP’s letter mentions the derailment safety issue of having an HSR ROW next to a conventional railroad ROW. This issue should be taken up by the FRA. Mitigations that UP mentions such as crash walls in narrow areas, intrusion detection systems (Los Angeles Metro Rail’s Green Line, for instance, uses an intrusion detection system for its freeway ROW to detect cars that could jump the K-rail), may very well be good approaches after some study by an independent regulatory agency and not a freight railroad bent on stopping HSR at all costs.

An HSR right-of-way and an adjacent freight infrastructure can be a “tide that lifts all boats”.  That most seem to get this except the Union Pacific Railroad is unfortunate.

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