The Surface Transportation Board this week began the trial-like procedure of hearing from witnesses in the case to decide whether STB should grant Amtrak’s now year-old motion to order host railroads CSX and Norfolk Southern to let Amtrak start its Gulf Coast service.
Hours and hours of testimony, supplemented by videos and diagrams and even drone-video footage, in some ways really revolved around trying to answer a single question: how accurate, or inaccurate, is the HNTB Rail Traffic Controller (RTC) study, which CSX, N-S, and the Port of Alabama say says proves Amtrak’s two new daily trains would “unreasonably impair” freight operations between New Orleans and Mobile.
Cross-examination by Amtrak attorney Jessie Amunson, as well as questions from individual STB Members, of well-known rail operations consultant Charlie Banks seemed to undercut the study’s utility. CSX called in Banks as an expert witness to defend the study, but under questioning he acknowledged that the 95% on-time standard – which Amtrak pointedly notes in its motions and briefs it never sought – was a somewhat arbitrary level set by the study team’s “collective judgment.” Banks also acknowledged that the breathtaking and unrealistic freight growth rates embedded in the study weren’t based on any characteristics specific to the Gulf or the Southeast.
For several years, CSX and Norfolk Southern invoked “competition-sensitive” arguments as a way to sidestep giving stakeholders straight answers about the challenges that this project may pose. As I said in my own STB testimony in February, government agencies, Amtrak, and others are willing to pay their share, so long as it’s defensible and transparent. But host railroads continue to claim that to even discuss the number of train movements would compromise their shippers’ business secrets. During this week’s hearings CSX tried that gambit again and again, forcing a confidential recess while the Board heard arguments about whether particular topics could be discussed in public.
In February I testified that, at least when it comes to train movements, the secrecy argument was curious, considering that this information is readily available to "anyone with a lawn chair and the patience to count." This week Amtrak took that idea to heart and used modern technology to fabulously snarky effect – pointing a webcam at a section of CSX’s “busy” railway to show pointedly how little traffic there actually is that would be impaired, streaming a live feed from this sleepy territory on the Twitch online gaming community platform.
What is clear from watching the proceedings is that this case is going to require much more than a week to get through the many witnesses both the host railroads and Amtrak decided to call before the Board. The Board, for its part, rebuffed CSX’s concerns about timing and publicly committed to taking as long as it takes to get at the truth and to vindicate the public’s interest.
That, too, was a point of dispute for CSX, which during Tuesday’s hearing tried to make the argument that questions from Board members of consultant Banks went past the bounds of a trial court judge and amounted to helping Amtrak’s counsel ask her questions. In some ways this produced the most interesting and fascinating half-hour of discussion to date, underscoring clearly CSX’s devotion to secrecy, stonewalling, and trying to limit questioning which has been the hallmark of their attitude to restoring Gulf service – and which very probably will form the basis of the injunction motion their legal team is likely drafting before even waiting for the STB proceeding to finish.
Here's a link to a clip from Day Two of the hearing this week, which begins after a confidential recess of a couple of hours to discuss objections raised by counsel for CSX and Norfolk Southern. Counsel for CSX starts in on the idea that the Board's questions of witnesses, particularly Charlie Banks, stray into "advocacy" (in this instance, using the legal term of art. "Advocacy" is what trial lawyers do, which is separate from what you and I do at the Association as public rail advocates). CSX’s specialist litigator rattles off some citations about how certain conduct from the bench resulted in a successful appeal for "reversible error" in a few cases around the Federal courts, meaning that the trial court's decision was able to be reversed due to that conduct.
This prompts a very civil, but very forceful, rebuttal from Chair Oberman himself.
“Everybody agrees that this is a precedent-setting case,” Oberman begins. “it involves potentially nearly half a billion dollars of public funds, and involves a statute which has never been litigated before...Our obligation is not the same as a court or a jury.”
He then turns to CSX’s criticism about Board members’ questions.
“I might note by the way, you know, there's a growing trend in courtrooms to let jurors ask questions, for just this reason: when they don't think the lawyers have asked the right questions,” he said. “A number of trial judges are allowing jurors to weigh in.” But even apart from this fact, Oberman points out that by both statute and Congressional charge the Surface Transportation Board’s members “occupy a little bit different role than jurors and judges and I think we all take these obligations quite seriously. If counsel haven't asked questions to elicit the foundations, and the basis, on which these conclusions are reached it would be a dereliction of our duty, in my judgment, for us not to elicit that information.”
Oberman then declares that none of the questions either he or any other Board member asked is “prejudicial” or “biased,” but were instead designed to ensure a complete record and avoid problems that might lead to reversal on appeal.
“If we don't have those facts and we make a decision, if there's a reason for an appellate court to overturn us that would be it,” Oberman says. “I want facts in the record that would sustain any decision we reach.”