Rail Transportation

Railroad Disputes and Investigations

• Represent BNSF Railway Company (BNSF), since 2007, in the Rail Freight Fuel Surcharge Antitrust Litigation, MDL No. 1869, Misc. No. 07-489 (PLF) (D.D.C.) as well as in the second MDL formed early in 2020 with the newly filed cases, Rail Freight Fuel Surcharge Antitrust Litigation (No. II), MDL No. 2925, Misc. No. 20-00008 (BAH) (D.D.C.).
• Representing BNSF in connection with disputes with its competitor Union Pacific Railroad Company (UP) concerning the implementation of conditions imposed by the STB on UP’s merger in 1996 with Southern Pacific Transportation Company (SP) and other matters.
• Assisting BNSF on the implementation of its rights to access shippers in Lake Charles, Louisiana over a rail line owned jointly by the UP and KCS.
• Advising BNSF on its response to a UP request for the STB to revise compensation and other trackage rights conditions for BNSF's use of UP’s Kern-Mojave rail line in California.
• Representing BNSF in connection with a complaint filed by Amtrak at the STB regarding on-time performance of Amtrak’s Sunset Limited intercity passenger rail service, and the related investigation being conducted by the STB.
• Represented BNSF in defense of an emergency service application, complaint, and petition for declaratory order filed at the STB by Navajo Transitional Energy Company, LLC (NTEC) regarding BNSF service to NTEC’s mine.
• Representing BNSF in defense of a complaint and petition for declaratory order regarding the transportation of coal to an electric utility.
• Represent BNSF in arbitrations involving rail transportation contract disputes.
• Representing CSX Transportation, Inc. (CSX) in connection with its dispute with its competitor NS concerning issues related to a terminal railroad owned by both CSX and NS, the Norfolk & Portsmouth Belt Line Railroad (NPBL).
• Represented the Association of American Railroads in a proceeding regarding revenue adequacy. In this proceeding, the STB explored its methodology for determining railroad revenue adequacy, as well as the use of revenue adequacy in the revenue adequacy constraint in rate reasonableness cases.
• Served as a party-appointed arbitrator in a rail dispute.
• Representing BNSF, CSX, and other railroads in a rulemaking proceeding regarding railroad costing at the STB.

Railroad Transactions and Projects

• Advised BNSF on its participation in the regulatory approval proceeding at the STB for the merger between Canadian Pacific Railway Company (CP) and The Kansas City Southern Railway Company (KCS). The CP/KCS merger was the first major merger between two large Class I railroads in 20 years.
• Advised CSX on its acquisition of New England’s Pan Am Railways, Inc., whose rail carrier subsidiaries comprised North America’s largest Class II regional railroad. The transaction included significant participation by CSX's competitors Norfolk Southern Railway Company (NS) and Genesee & Wyoming, Inc. (G&W). This was the first transaction classified by the STB as “significant” in 15 years.
• Advising CSX on the acquisition of a rail line owned and leased by Meridian & Bigbee Railroad (MNBR), a G&W-owned railroad in Mississippi and Alabama. CSX’s acquisition alongside the acquisition by CPKC of a connecting line owned by MNBR will establish a new CSX-CPKC freight corridor for shippers that connects Mexico, Texas, and the US Southeast.
• Advised BNSF on regulatory approval of the early termination of Montana Rail Link’s lease of the former BNSF main line in Montana and Idaho, and the related resumption of service by BNSF over that line.
• Advised Brookfield Asset Management, Inc. and GIC on US rail regulatory issues related to their joint take-private acquisition of G&W, a formerly-public short line railroad holding company. G&W owns 120 short line railroads with operations in North America, Europe, and Australia and has more than 16,000 miles of track.
• Advised funds managed by Oaktree Capital Management, L.P. (Oaktree) in the acquisition of Dow, Inc.'s rail infrastructure assets and related equipment by Watco Companies, LLC, a Kansas-based transportation company.
• Advised a leading investment firm with railroad commercial and regulatory issues associated with its successful acquisition of Pioneer Railcorp and its fifteen subsidiary freight railroads located across the country from Related Infrastructure Holdings LLC.
• Assisted BNSF, CSX, and other railroads in STB licensing proceedings regarding the acquisition, lease, operation, abandonment, or discontinuance of service over rail lines.
• Advised an American intercity passenger rail company on various federal regulatory issues, including Federal Railroad Administration regulation and grant agreements.
• Advising a mining company on regulatory issues surrounding the planned construction of a new rail line.
• Served on a team of project counsel to a New Jersey non-profit corporation working to coordinate, develop, operate, finance, manage, own or otherwise engage in activities to effectuate the rail infrastructure projects between Newark, New Jersey, and Pennsylvania Station in New York City (PSNY).
• Obtained STB approval for the construction of a new rail line, known as the Southwest Gulf Railroad, for Vulcan Materials Company.

Railroad Preemption Projects

• Filing an amicus brief on behalf of the Association of American Railroads regarding federal preemption of state property laws.
• Counselled the Association of American Railroads regarding federal preemption issues related to regulation by the California Air Resource Board.
• Counselled BNSF regarding the application of state laws and regulations in light of the federal preemption provisions of the ICC Termination Act and the Federal Rail Safety Act.
• Assisted the North Coast Railroad Authority in seeking US Supreme Court review of a California Supreme Court decision holding that the ICC Termination Act of 1995 (ICCTA) does not preempt state environmental permitting laws when applied to a publicly-owned railroad.