In their filing submitted Friday, but just posted to the Surface Transportation Board’s website today, Pioneer Industrial Railway has responded to Central Illinois Railroad’s recent petition to “hold in abeyance” the STB’s November 19 ruling.

Pioneer argues that Central Illinois Railroad (CIRY) has no legal basis to request that a decision be “held in abeyance,” and that CIRY is only filing under that terminology because they missed the deadline to appeal the STB’s decision and request a “stay” of the decision. Pioneer also defends itself against the allegations made in CIRY’s filing. Here’s the summary conclusion:

As the Board’s recent General Railway decision put it, a party may not avoid the obligation of meeting the Board’s procedural standards merely by assigning a different label to its request for relief. But that is precisely what CIRY has done here. Knowing that it has missed the deadlines to request a stay (and knowing further that it could not satisfy the stay standards anyway), it merely gives its stay request a different name – a request to hold the matter in abeyance. Of course, CIRY’s is not really a request to hold matters in abeyance, as PIRY has clearly established above. Moreover, although CIRY seeks “modification” of the November 19 Decision, it has neither requested reopening of the Board’s decision nor did it file a timely petition for reconsideration. In short, and as has been thoroughly demonstrated above, CIRY lacks any legal basis for the relief it seeks and is merely attempting here to bypass proper agency procedure. The Board must not let CIRY make a mockery of correct Board processes, and it should therefore deny CIRY’s Petition for these reasons.

But even if the Board were to address the merits of CIRY’s Petition, it has not made a case for any of the relief it seeks. Rather, CIRY engages in the typical attempts to smear PIRY, makes false and irrelevant allegations, and otherwise does its utmost to dig in its heels in an effort to deprive PIRY of access to the line and to block PIRY from fulfilling its common carrier obligations to Carver and to any other shippers that way wish to use the line. For all of these reasons, as discussed more fully above, CIRY’s Petition should be denied, and the Board should make clear that CIRY must not block or attempt to impose delay on PIRY’s ongoing efforts to restore rail service on this line.

A couple of things from earlier in the filing I found interesting:

• Pioneer points out that CIRY claims it would be too costly to fix up the Kellar Branch track to provide service to Carver Lumber, but then states that it has spent $100,000 to fix up the Kellar Branch for the purposes of running a hi-rail vehicle of it:
  

  One wonders why CIRY would be willing to spend $100,000 to permit it to operate a hi-rail vehicle over the line when CIRY claims that such an expenditure “vastly exceeds the gross amount of revenues that CIRY would likely earn.” Perhaps CIRY answers this question when it admits that it is using the line for the storage of carload quantities of hazardous materials. Could it be that CIRY is not really in the business of providing common carrier service but rather in the business of storing hazardous rail cars? Could it be that CIRY is using its status as a rail carrier to take advantage of STB preemption so as to prevent the City of Peoria and the State of Illinois from interfering with what is apparently a lucrative business, i.e. storing hazardous materials in rail cars? One doubts that CIRY is truly concerned about safety over the line when it is using the line for the storage of dangerous and hazardous materials. PIRY has no such plans and intends to do what it always did – operate a line of railroad for local customers.

  This is an important distinction — CIRY is an out-of-town company that is using the city’s tracks to store hazmat cars from out of town. Pioneer, on the other hand, is a local company, headquartered in Peoria, that simply wants to serve local shippers on the Kellar Branch.

• Pioneer also points out that CIRY filed this petition on its own, and that neither the City of Peoria nor the Village of Peoria Heights joined in this petition:
  

  As an initial matter, it is telling that the Cities, who are the actual owners of the Kellar Branch and who filed the adverse discontinuance in the first place, have not filed a request for stay, a petition to reopen, or joined in CIRY’s Petition. One would presume that, if the Cities continued to object to having PIRY on the line, they would be the ones taking legal action, but they have not done so. Indeed, the city council for the City on November 27 voted 6-4 to reject a motion for continued legal adversity against PIRY. The majority of the city council indicated a willingness to negotiate with PIRY, CIRY, and others to resolve the outstanding issues. Granting the Petition would simply undermine the city council’s desire to negotiate a settlement rather than to litigate.

  While all that is true, it is worth mentioning that the Village of Peoria Heights did, in fact, pass the resolution that the City of Peoria defeated. It’s also worth mentioning that Peoria Heights has not footed any of the legal bills associated with the efforts to turn the Kellar Branch into a hiking trail over the past decade-plus. Hopefully, someday, all the parties will be able to work out a mutually beneficial agreement and all this acrimony can come to an end.

The Surface Transportation Board has a message for the feuding Kellar Branch rail carriers: work out your differences or we’ll work them out for you. In a ruling released late Friday, the STB said:

[W]e direct that the parties [Pioneer Industrial Railway and Central Illinois Railroad] meet, in the presence of Board staff, to negotiate joint operating protocols for the Kellar Branch. Board staff will contact representatives of CIRY and PIRY to arrange for such a meeting, which shall take place no later than Friday, December 14, 2007, unless the parties have worked out a mutually acceptable arrangement before that time and so advise the Board.

Pioneer says it has tried to contact Central Illinois Railroad (CIRY) to work out an operating arrangement since the STB’s November decision was handed down, but none of their calls were returned. CIRY has reportedly said that they will not negotiate joint protocols until Pioneer has a contract with the city, despite the fact that CIRY itself does not have such an agreement with the City of Peoria or the Village of Peoria Heights.

The STB’s decision basically tells the two rail carriers to work things out between themselves, or else the STB will act as a mediator to ensure that both carriers have safe and equitable access to the Kellar Branch rail line by Dec. 14.

I just received a copy of this e-mail from City Manager Randy Oliver this morning:

Dear Mayor and Council:

We just received a call that both Pioneer and Central Illinois Rail were attempting to access the Kellar Branch line this morning. One of the Rail Carriers wants the other [arrested] for trespass. We advised the Officer responding that neither Carrier had authority to operate from the City of Peoria, however, both derived any authority from the Surface Transportation Board (STB). Consequently, neither should be charged with trespass and the STB would need to resolve the issue.

We just wanted you to be aware of the situation.

Randy

Meanwhile, Central Illinois Railroad has filed a petition with the Surface Transportation Board to hold their previous decision in abeyance “so that the parties can resolve issues relating to the rehabilitation of a deteriorated and out of service rail line and Peoria can determine which carrier should operate over its railroad line.” The city’s railroad attorney thinks this petition has no chance of being granted. Pioneer is expected to respond on Friday.

In other Kellar Branch news, the Village of Peoria Heights passed the resolution that the City of Peoria recently tabled. They are also asking for $79,200 a year in rent according to the Journal Star.

UPDATE: Pioneer Railcorp president Mike Carr has written to the City Manager to explain the confrontation that happened today on the Kellar Branch:

Dear Randy:

My apologies for getting you involved in a situation outside of your normal work responsibility. I would like to explain to you what happened as follows:

As you know, it is our position that the STB has told us we can operate the line, and also directed both parties to work out an operating agreement. It is our position, that each company has equal rights to operate the line. I have tried, without success, since the STB ruling, to talk with Jack Stolarczyk about allowing us to inspect the line via hi rail. Stoalrczyk has ignored all of my calls. On the advice of our STB attorney in Washington DC that we have an equal right to occupy the railroad while we are working out an operating agreement, we took the necessary and required Federal Railroad Administration safety procedures, to afford protection to both our employees and CRY employees, and started our inspection this morning, via hi rail truck, starting on Adams street.

Apparently, Stolarczyk was planning to hi rail the line at the same time (?) with someone from the Park District (? according to the police) starting at Pioneer Park. Upon his arrival at Pioneer Park, he encountered our employee who was providing flag man protection to our employee hi railing the line. Stolarczyk went ballistic and called the police, even though I was able to get a cell phone handed to him and I tried to explain to him it is not a police issue (at this point I was in my car headed to the office). After Stolarczyk unceremoniously hung up on me, he committed a serious and flagrant FRA safety violation by ignoring our flag man, who told Stolarczyk that our employees were headed that way hi railing the railroad, and Stolarczyk proceeded to “charge” down the rail line with the intention of “meeting” our employee. This is a complete disregard for personal safety, and in my opinion speaks volume of Mr. Stolarczyk’s character. I hope I am mistaken with the fact that he had a Park District employee in the hi rail truck with him, because if there was a park district employee with him, Stolarczyk placed him in potential serious harm and had no regard for the Park Districts employees safety or well being. I instructed our employees to stop hi railing at the nearest crossing and to be prepared to leave the line upon visually seeing Stolarczyk headed towards them. When Stolarczyk approached, in violation of FRA regulations, we ceded the line out of respect for safety.

We intend to bring this issue up with the FRA.

Finally, I want to assure you that I had no idea that Stolarczyk had planned to inspect the line with the Park District this morning or we would have performed our inspection at a later time. Taken the wrong way, I can see where someone can turn this into Pioneer was obstructing CRY’s attempt to reach a deal for shared usage. It was purely coincidence, and you can strap me to a lie detector test if you like.

If you have any further concerns or questions please feel free to contact me via phone […].

Thanks.
Mike Carr