This Week at Amtrak; May 5, 2008

A weekly digest of events, opinions, and forecasts from
United Rail Passenger Alliance, Inc.
1526 University Boulevard, West, PMB 203
Jacksonville, Florida 32217-2006 USA
Telephone 904-636-7739, Electronic Mail info@unitedrail.org
http://www.unitedrail.org



Volume 5, Number 15



Founded over three decades ago in 1976, URPA is a nationally known policy institute that focuses on solutions and plans for passenger rail systems in North America. Headquartered in Jacksonville, Florida, URPA has professional associates in Minnesota, California, Arizona, New Mexico, the District of Columbia, Texas, and New York. For more detailed information, along with a variety of position papers and other documents, visit the URPA web site at http://www.unitedrail.org.


URPA is not a membership organization, and does not accept funding from any outside sources.


1) New commuter rail in Central Florida went down on Friday in the Florida Senate, but it may not be out.

By a narrow margin, senators from the small town of Lakeland, to the Southwest of the Orlando area where the commuter rail was slated to begin, raised enough fuss about more trains being routed through their small downtown to avoid the commuter rail system and congestion – and liability for accidents – that the legislation okaying the commuter rail deal was pulled from the voting schedule in the final two days of the annual state legislative session. By defeating this legislation, the Florida Senate has put hundreds of millions of dollars of federal matching funds at high risk.

2) Here is some background.

– Florida has a successful commuter rail system in South Florida, known as Tri-Rail. The system runs over the former Seaboard Air Line Railroad/CSX main line between West Palm Beach and Miami. The State of Florida purchased the mainline track from CSX for nearly $300 million back in the 1980s before the system was created. CSX pays the State of Florida to maintain freight trackage rights over the line, with the majority of trains running at night when commuter trains are not running. CSX currently dispatches the line, but that will change when Tri-Rail takes over the dispatching duties soon.

Part of the deal CSX made when the line was sold is CSX is held harmless for any type of accident which occurs over the line, regardless of whether or not the accident was a result of faulty CSX equipment, dispatching, or a CSX employee error.

It’s important to note this same deal is in place for all Amtrak trains. No matter what happens to an Amtrak train when traveling over a host railroad track, anything that happens to the train or passengers is solely the responsibility of Amtrak, not the host railroad. The host railroads are held completely harmless without discussion or debate.

This bargain goes back to the beginning of Amtrak when the original deals were made for Amtrak to assume all responsibility for passenger operations. Part of the reasoning for this is Amtrak has below-market train mile rates for operating trains over private railroad facilities. For those not familiar with the concept, it’s called a negotiated compromise. Amtrak got below-market dispatching rates, the railroads were protected from potentially huge and ruinous liabilities.

Going back to times before the Late War of the 1860s, railroad owners and operators have always been worried about liabilities from passengers involved in any type of injury while in the care of a passenger train crew, as well as resulting lawsuits from fatalities.

It’s no different today; the elimination of risk is still one of the highest priorities of railroads everywhere. As much effort goes into safety instruction and rules and regulations by railroads and railroad unions as it does in any other area of the railroad business. An unsafe railroad or an unsafe train and engine crew is a debilitating lawsuit waiting to happen.

Allegedly, the killer part of the deal between the State of Florida and CSX over the commuter rail deal in Central Florida is CSX demanded the IDENTICAL terms for Central Florida commuter rail it has for Tri-Rail in South Florida.

– Florida has had two near-brushes with high speed passenger rail silliness in the recent past that have both been mercifully beaten down.

First, there was FOX, the Florida Overland Xpress, a pie-in-the-sky project which somehow got approved by the state and was slated to begin construction when former Governor Jeb Bush took office in 1999. The governor, a hard-nosed businessman, took one look at the system, realized it didn’t connect with ANYTHING to feed it passengers, ran along the edge of the Florida Everglades, and some other factors, and promptly killed the deal. It was a close brush with passenger rail horror.

Second, the voters of Florida, in 2000, weren’t paying much attention to one of the many constitutional amendments on the Florida ballot, and approved an amendment to build high speed rail in Florida, again, which didn’t connect with ANYTHING, and at huge public expense. Anyone connected with the rail industry in Florida – including this writer – looked at the amendment and laughed, and foolishly presumed it wouldn’t pass. But, the voters, who never believe it is THEIR money someone else is spending, surprisingly passed the constitutional amendment, because everyone thought the system was going to be free of cost. The amendment never mentioned how many billions of dollars it would cost to build this white elephant, and what other worthwhile projects funding would have to be withheld from (like schools and hospitals) to build untested high speed rail.

In 2002, voters came to their senses and repealed the amendment to the Florida constitution authorizing high speed rail.

Here’s the interesting part: the leader of the amendment to authorize high speed rail in 2000 was Doc Dockery from Lakeland. He has lots of money, and it was his pet project and dream. He fought against the repeal, but it passed, thankfully.

So, who was the leader in the Florida Senate working hardest, strongest, and loudest against commuter rail in Central Florida? Senator Paula Dockery, wife of Doc Dockery.

– The peninsula of Florida is blessed with three railroad mainlines. Going from east to west, the Florida East Coast Railway runs in a nearly straight line down the coast from Jacksonville to St. Augustine to Miami. This was the railroad built by Henry Flagler that created such famous Florida resort towns as Ormond Beach, Daytona Beach, Cocoa Beach, Fort Pierce, West Palm Beach, Delray Beach, Ft. Lauderdale, Hollywood, and Miami.

The former Atlantic Coast Line mainline, now part of CSX, runs southwest from Jacksonville to Orlando and over to Tampa. At Auburndale, just to the east of Lakeland, and just north of Winter Haven, this mainline connects with the former SAL mainline south to Miami. It is part of this mainline, from DeLand north of Orlando, to Poinciana, southwest of Orlando, the 61-mile long Central Florida commuter rail project was planned.

The former Seaboard Air Line mainline, now also part of CSX, runs southwest from Jacksonville to Ocala, and continues down south. Just west of Lakeland, the line intersects with the former ACL mainline, continues east to Auburndale, south to Winter Haven, and then on to West Palm Beach and Miami.

– The plan (a good one), was for CSX to sell 61 miles of its former ACL mainline between DeLand and Poinciana (through Orlando) to the State of Florida for commuter rail use. CSX agreed to pay the State of Florida $10 million a year for trackage rights to run freight trains at night over the line so local customers would still have rail freight service.

CSX has a large intermodal freight facility at Taft, a suburb of Orlando. The nearest facilities of this size for CSX are in Jacksonville, Ft. Lauderdale, and Tampa. Jacksonville is about 160 miles to the north of Taft, and Ft. Lauderdale is over 200 miles to the south. Tampa is on the far western coast of Central Florida, nearly 100 miles to the southwest of Taft. The CSX Central Florida intermodal facility serves millions of people living in Central Florida, bringing in everything from automobiles to general freight. It’s a very busy place.

Part of the commuter rail deal involved CSX changing in a major way how it does business in Florida. CSX would close the Taft facility, and build a new intermodal facility at Winter Haven, to the southwest of Orlando. Winter Haven is still close enough to Orlando and Interstate 4, the Florida Turnpike, and Interstate 75 to reasonably serve the large population of the Orlando metropolitan area and far-flung Central and Southwest Florida, but far enough away from Orlando a land package could be put together to allow adequate future growth. CSX also agreed to reroute all freight trains (with the exception of local service freights at night) from the former ACL mainline to the former SAL mainline, which travels through Marion County, the home of Ocala and Silver Springs.

To reach the proposed Winter Haven facility, CSX trains would travel southwest from Jacksonville (the only gateway into Florida peninsula from any direction) to the west of Lakeland, make a sharp left hand turn at Lakeland, go through downtown Lakeland, travel northeast to Auburndale, and then slightly south to Winter Haven. Not a direct route, but one CSX was willing to take to benefit commuter rail in Central Florida.

– The former SAL mainline through Ocala was built as single track railroad, and has remained lively its entire time in existence. In addition to all of SAL’s routine freight and passenger trains, it has always been a busy route for the lucrative phosphate hauling business, from the mines southeast of Tampa to northern manufacturers. Part of the $641 million deal with CSX by the State of Florida was to provide money to upgrade sidings and automobile overpasses on the SAL mainline for easier traffic flow and greater capacity, plus help with the relocation costs of the new Winter Haven facility. Any upgrades to the ACL mainline for commuter use would be funded separately.

– As soon as the deal was announced by departing Governor Jeb Bush and CSX in 2006, the hues and cries were heard by allegedly injured parties.

The daily Lakeland Ledger newspaper, which is owned by the New York Times Company, fought tooth and nail against the project, to the point of becoming a modern day crusader.

The Media General-owned Tampa Tribune, which includes Lakeland and Polk County (home of Lakeland) in its circulation area, had a high story count of articles bringing out every possible negative aspect of this project, from every inconceivable viewpoint.

The Tribune Company-owned Orlando Sentinel, located exactly in the middle of this proposed commuter rail corridor, wrote articles in favor of the project, but were constantly overshadowed by the other two newspapers.

There was a great ruckus the deal had been done in “secret” negotiations between CSX and the state. This silliness completely overlooked the fact every facet of the deal had to be approved by the Florida legislature and was open to public scrutiny. Some idealists somehow foolishly believed a deal of this magnitude could be worked out in public, with every step and every negotiation and compromise vetted for public comment and criticism along the way.

The shopkeepers of downtown Lakeland, a quaint, charming area, were more worried about their provincial interests than the benefit to the rest of the state of Florida. Lakeland for the past few years has undergone something of a enchanting redevelopment, and shopkeepers were worried those mean and nasty freight trains, – an additional two or three dozen or so a day over the current traffic level – would keep locals from patronizing their shops instead of seeking suburban mall shopping satisfaction.

Railroad unions, including the association of retired railroad union workers, worried and complained the commuter rail system may, like the Tri-Rail system in South Florida, be a non-union shop, and the improvements may be constructed using non-union labor (Florida is an open-shop state). Again, for the benefit of few, before a final decision was made, this group wanted to protect its members at the expense of millions of Florida citizens living in Central Florida.

And, as usual in situations such as this, the trial lawyers were opposed to the deal, because they wanted a big, deep-pockets railroad to sue in case of accident and injury, instead of a sovereign entity such as the State of Florida. After all, huge pieces of pie were at stake here; how could an honest trial attorney make a living if he or she couldn’t sue the pants off someone with deep pockets?

The liability issue – in the end – became the main issue which received all of the media attention. The rallying cry for opponents of the project was that a huge, multi-billion dollar private railroad, such as CSX, was receiving immunity for all responsibility for accidents, and why should the State of Florida be on the hook for damages when CSX would not be held liable?

– The liability issue points up a larger problem all railroads, including Amtrak, have every day. Much of the uneducated public think of private railroads as public utilities. It is inconceivable to many people railroads are owned by ordinary stockholders, pay more types of taxes than the next dozen industries combined, and provide an overwhelming positive part of the commonweal.

History and reality teach us the reputation of railroads was highly tarnished during the robber baron years in the 19th Century and early 20th Century. The railroads were naughty enough in so many ways the Theodore Roosevelt administration gave real teeth to the Interstate Commerce Commission and put an end to a lot of shenanigans that were part of everyday railroad life.

The modern press of the time took great glee in constantly crucifying railroads and railroad barons. A century later, even though the railroads have immensely cleaned up their collective acts, they are still painted with the same brush used by the Yellow Journalists of a century ago. It’s fair to say the Interstate Commerce Commission, in its zeal to protect the public and its ability to move at glacial speeds, nearly killed off the railroad industry in the mid-20th Century.

While the Florida State Senators, led by Senator Dockery were crying “foul!” over the liability issue and the alleged inconvenience to Lakeland downtown shopkeepers, they were mostly saying a private company should not be receiving what they termed “corporate welfare.” In essence, these type of ill-informed people want their cake and to eat it, too. They demand good customer service from railroads, cry and moan when they think shipping rates are too high, and expect railroads to be model corporate citizens. They want to inhibit safety by silencing train whistles, inhibit the ability to make good schedules by imposing unnecessary speed restrictions through certain areas, and don’t want trains messing up their views and vistas by constructing necessary passing sidings that will enhance instead of inhibit the flow of goods on trains and keep mainlines fluid.

Everybody wants the huge benefits railroads bring to states and communities, including high paying jobs, good transportation service, and companies which pay high tax bills. Everybody just doesn’t want all of the alleged inconvenience of having railroads around, no matter how beneficial they are to the common good.

The level of silliness the liability question rises to was blatantly made clear a few weeks ago by a judge in the Northeast. Two adventurous young men broke the law and trespassed on railroad property, Amtrak’s Northeast Corridor, which is powered by overhead electric wires. Norfolk Southern Railroad, which has trackage rights over the NEC, had parked two idle freight cars on a siding, on private railroad property. The ignorant two young men decided it would be great sport to dangerously trespass on railroad property, climb on the parked freight cars, and, when reaching to top, stood up and grabbed the fully energized electrical wires overhead of the freight cars, resulting in severe burns to the young men.

The two anti-heroes of this story found a willing ambulance-chasing attorney, and sued both Amtrak and Norfolk Southern because they were not adequately protected from breaking the law and trespassing, resulting in serious injury. A judge actually bought into this fairy tale, and slapped Amtrak and Norfolk Southern with huge damages payments to the two young law breakers. The judge said Amtrak and NS should have anticipated someone would break the law, trespass, climb on parked railroad equipment, and touch live electrical wires. The judge said inadequate warning signs were posted, or no signs existed at all, warning these polluters of the human gene pool to stay away from dangerous situations.

This is just one very small instance why all railroads want to stay away from human beings as much as possible. Greedy and ignorant people and their even-more-so greedy attorneys think the deep pockets of the railroads are ripe picking fields for all types of lawsuits. Why would any railroad voluntarily open itself up to potential lawsuits with out-of-control judges warming benches if the railroads aren’t required to do so?

If you stop being a casual bystander of railroads, and fully understand all of the ramifications of any type of human being coming within 100 feet of any railroad facility, you understand why CSX insists on the no-liability clause in its deal with the State of Florida (and, any other place, such as Massachusetts, too, where other passenger rail negotiations are in progress).

Here is what one former senior Capitol Hill attorney in Washington has to say about railroads and liability and trial lawyers:

[Begin quote]

The trail lawyer/liability aspect of passenger rail (intercity and commuter) is a decades-long saga.

The first federal involvement came in enabling legislation for the Virginia Railway Express commuter system, included in an early 1990s Amtrak bill (now at 49 USC 28102).

A liability-cap provision applicable to all forms of passenger rail (i.e., any accident that includes a passenger train), with a $200 million per accident cap, was enacted as part of the 1997 Amtrak reform law (now at 49 USC 28103).

The latter has been almost universally ignored by both passenger rail operators (present and would-be) and by the freight railroads. I know from surveying the general counsels and risk management shops at the Class I railroads a couple of years ago that even when aware of it, they act as if it weren’t there, because they don’t trust the courts and/or they read it so narrowly and contrary to the plain language as to make it useless.

It is a miracle this was enacted by a trial-lawyer-infested Congress, and the current law ($200 million per accident, regardless of body count) won out over the much fairer per-capita cap in the original House bill. Why? The trial lawyers want the big payout for whoever gets to the trough first, and could care less about those who aren’t as fast to the courthouse.

[End quote]

3) There you have the high points of the messy background of this fight over commuter rail in Central Florida. A few shopkeepers in Lakeland, a state senator bent on revenge for a favorite white elephant project sent packing, and trial lawyers won the first round.

The original deal with CSX, anticipating such problems, still has another year to go and another legislative session to go before expiration. There is also nothing that says the deal can’t be extended by mutual consent of both parties.

On both ends of the former ACL line, in Jacksonville and the Tampa Bay area, commuter rail is being studied. One of the main arteries in the Jacksonville deal would be the former ACL line, that if most freight trains to Central Florida were removed, would be an excellent starter line for Northeast Florida.

For years, the subject of commuter rail has been discussed in Hillsborough County, home of Tampa, and Pinellas County, home of Clearwater and St. Petersburg. CSX controls all of the tracks in both of those counties, where there is excess capacity. A deal in Central Florida would likely pave the way for a deal in both Jacksonville and the Tampa Bay areas. It looks like a group of shopkeepers in downtown Lakeland and a state senator bent on revenge along with the trial lawyers could have an impact on those systems, too.

Keep in mind we’re talking about a collective population count of over seven million Floridians in these three areas, plus the tens of millions of annual visitors to Florida which would find these commuter systems useful, are all affected by a group of shopkeepers in downtown Lakeland and a state senator bent on revenge along with the trial lawyers.

The current deal is an extraordinary proposal for Central Florida to get into the commuter rail business on a relatively inexpensive basis. For only $641 million, the State of Florida gets a near-pristine railroad with an excellent alignment for a highly desirable route that can be a catalyst to other worthwhile systems in Florida. The Central Florida current alignment also provides for excellent relatively inexpensive system expansion on the north end in Volusia County (DeLand, and far to the east on the coast, Daytona Beach, in the far future with a relatively high cost for that particular segment), and on the south end deep into Polk County, where Auburndale, Winter Haven, and Lakeland are located.

Also lost in the postponement of the deal was a $2 local surcharge on rental car fees to be imposed in South Florida in Miami-Dade, Broward (Ft. Lauderdale), and Palm Beach counties to be used to upgrade Tri-Rail, making possible some of the useful and exciting plans on the drawing board for that system.

As pointed out two issues ago in TWA, Central Florida commuter rail will play a major part in making statewide regional rail in Florida viable. Florida for years has had a “no new major highways” policy, and statewide regional rail provides a reasonable alternative to travel by automobile or air in this huge state.

4) This is perhaps the fun part of it all. CSX has initially indicated it has a high interest in building a new and efficient intermodal facility in Winter Haven, with or without the deal with the State of Florida. There is nothing to stop CSX from routing more trains over the former SAL line and through downtown Lakeland to the new Winter Haven facility. So, all of the railroad part of the deal could still happen, but without any assistance from the state for improved sidings and the removal of automobile grade crossings or updated signaling. Every alleged fear of the shopkeepers in Lakeland could occur without any protections, and people in Lakeland would be powerless to do anything, and CSX would be completely in its rights to operate its railroad in Florida as it sees fit, no matter how backed up local roads become.

5) Considering the bill passed the Florida House of Representative, and it was only the relatively few votes in the Florida Senate to stop the deal, it’s likely the deal will go through in the future. A year is a long time for lobbyists to make their case to politicians, and the usual horse-trading to take place that makes laws possible. In the process, Florida may lose out on millions of dollars of federal monies to help this project, which probably will have to be replaced with state funds. That’s the cost of doing business when small-minded self-interest groups throw monkey-wrenches into the works.

The big picture about commuter rail in Central Florida is that it makes good business sense. Forget all the tiresome arguments by the greens and tree-huggers. The reality is commuter rail in Central Florida makes the area more attractive for new industry to move in, and the present route of the former ACL main line has a near perfect alignment for commuter rail because of the downtown areas if traverses, and the major industrial and residential areas it encompasses, too.

Much of Central Florida lives and dies based on traffic on Interstate 4, the main automobile and truck artery through Central Florida. Commuter rail will not lessen the traffic on this road, but it will provide a reasonable alternative for those choosing not to spend major portion of their lives stuck in rush hour traffic. Commuter rail also will provide reasonable local transportation from tourist areas of Central Florida to desirable destinations such as downtown Orlando and downtown Winter Park. Not only will it be useful for locals, but it will also be useful for tourists, too.

Too bad the shopkeepers of downtown Lakeland and one senator bent on revenge along with the trial lawyers aren’t able to look at the big picture, and see how they are stabbing much of the rest of Florida in the back for their own provincial benefit.


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J. Bruce Richardson
President
United Rail Passenger Alliance, Inc.
1526 University Boulevard, West, PMB 203
Jacksonville, Florida 32217-2006 USA
Telephone 904-636-7739
brucerichardson@unitedrail.org
http://www.unitedrail.org