The Burlington Northern and Santa Fe Railway Company-Acquisition and Operation Exemption-State of South Dakota, 3100-3101 [05-1011]

Download as PDF 3100 Federal Register / Vol. 70, No. 12 / Wednesday, January 19, 2005 / Notices had complied with the Board’s rule at 49 CFR 1150.42(e)). If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the transaction. An original and 10 copies of all pleadings, referring to STB Finance Docket No. 36410, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423– 0001. In addition, a copy of each pleading must be served on Karl Morell, Ball Janik LLP, Suite 225, 1455 F Street, NW., Washington, DC 20005. Board decisions and notices are available on our Web site at http:// www.stb.dot.gov. Decided: January 12, 2005. By the Board, David M. Konschnik, Director, Office of Proceedings. Vernon A. Williams, Secretary. [FR Doc. 05–1007 Filed 1–18–05; 8:45 am] BILLING CODE 4915–01–P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 34646] Sioux Valley Regional Railroad Authority—Trackage Rights Exemption—Lines of the State of South Dakota Sioux Valley Regional Railroad Authority (SVRRA), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire from the State of South Dakota (the State) 1 overhead trackage rights over a line of railroad extending between milepost (MP) 533.4 near Elk Point, SD (also known as MP 0.0 at East Wye Jct.) and MP 511.90 in Sioux City, IA, including such yard tracks, sidetracks, and connecting tracks (existing or to be constructed) as are reasonable to interchange railcars with The Burlington Northern and Santa Fe Railway Company (BNSF), Union Pacific Railroad Company, and Canadian National Railway Company at Sioux City. The total distance of the Elk Point-Sioux City line is approximately 21.5 miles. SVRRA certifies that its projected revenues as a result of the SVRRA-South Dakota transaction will not result in 1 The trackage rights will be granted by the State acting by and through the South Dakota State Railroad Board and the South Dakota Department of Transportation, Office of Railroads. VerDate jul<14>2003 15:11 Jan 18, 2005 Jkt 205001 SVRRA becoming a Class I or Class II rail carrier, and further certifies that its projected revenues will not exceed $5 million. The SVRRA-South Dakota transaction was scheduled to be consummated on or after January 5, 2005. If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke does not automatically stay the transaction. An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34646, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423– 0001. In addition, a copy of each pleading must be served on SVRRA’s representative: Russell Hazel, Sioux Valley Regional Railroad Authority, c/o Sioux River Ethanol, 29619 Spur Avenue, Hudson, SD 57034. The notice of exemption filed with respect to the SVRRA-South Dakota transaction in this docket is related to a notice of exemption concurrently filed in a related docket: STB Finance Docket No. 34646 (Sub-No. 1), D&I Railroad Company—Trackage Rights Exemption—State of South Dakota and Sioux Valley Regional Railroad Authority. The notice of exemption filed in the related docket contemplates the operation of SVRRA’s Elk Point-Sioux City trackage rights by D&I Railroad Company (D&I) on behalf of SVRRA. SVRRA and D&I have advised that the Elk Point-Sioux City line, which is owned by the State, is now operated on behalf of the State by BNSF, pursuant to a 1986 Operating Agreement. SVRRA and D&I have also advised: That, under the Operating Agreement, the State has the right to grant trackage rights on the Elk Point-Sioux City line subject to certain BNSF consent; that, although the State has the right to grant trackage rights to SVRRA for operations by SVRRA’s third-party operator (D&I), BNSF has not consented to the grant of those rights; and that the failure to provide this consent is now the subject of litigation between the State and BNSF in The Burlington Northern and Santa Fe Railway Company v. State of South Dakota, Case No. 04–470 (S.D. 6th Circuit). SVRRA and D&I have further advised that they recognize that BNSF consent may have to be obtained, either voluntarily or through litigation, before D&I can commence trackage rights operations on the Elk Point-Sioux City line. SVRRA and D&I have suggested, however, that, inasmuch as the Board’s authority respecting the notices filed in this docket and in the related docket is PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 ‘‘permissive’’ in nature, the filing of the notices in the two dockets is appropriate as a ‘‘prelude’’ to obtaining any necessary consent. By letter filed December 30, 2004, BNSF has advised that it has not given its consent to the third-party trackage rights operation contemplated by SVRRA and D&I, which (BNSF adds) would violate the 1986 Operating Agreement. BNSF has further advised that, in its view, the filings by SVRRA and D&I in this docket and in the related docket are intended to improperly influence the pending State court litigation. BNSF has asked that the Board stress that issuance by the Board of the notices filed in this docket and in the related docket does not represent a determination, by the Board, concerning either the right of the State to grant the Elk Point-Sioux City trackage rights without BNSF’s consent or the right of D&I to operate over the Elk Point-Sioux City line without BNSF’s consent. In view of the ongoing litigation concerning the right of the State to grant the trackage rights contemplated in this docket and in the related docket, it seems best to note that the Board has made no determination, one way or the other, concerning either the right of the State to grant the Elk Point-Sioux City trackage rights without BNSF’s consent or the right of D&I to operate over the Elk Point-Sioux City line without BNSF’s consent. The contractual dispute respecting the scope of the rights retained by or granted to the State and/or BNSF under the 1986 Operating Agreement must be resolved in a court of competent jurisdiction. Board decisions and notices are available on its Web site at http:// www.stb.dot.gov. Decided: January 12, 2005. By the Board, David M. Konschnik, Director, Office of Proceedings. Vernon A. Williams, Secretary. [FR Doc. 05–1009 Filed 1–18–05; 8:45 am] BILLING CODE 4915–01–P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 34645] The Burlington Northern and Santa Fe Railway Company—Acquisition and Operation Exemption—State of South Dakota The Burlington Northern and Santa Fe Railway Company (BNSF), a Class I rail carrier, has filed a verified notice of exemption under 49 CFR 1150.31 to E:\FR\FM\19JAN1.SGM 19JAN1 Federal Register / Vol. 70, No. 12 / Wednesday, January 19, 2005 / Notices acquire and operate approximately 369.7 route miles of railroad lines, referred to as the ‘‘Core Lines,’’ that are owned by the State of South Dakota (the State). These lines, which are described in a July 10, 1986 Operating Agreement between a BNSF predecessor (Burlington Northern Railroad Company) and the State, extend principally: between milepost (MP) 777.0 near Aberdeen, SD, and MP 650.6 near Mitchell, SD; between MP 518.9 near Sioux City, IA, and MP 649.7 near Mitchell, SD; between MP 293.1 near Canton, SD, and MP 650.6 near Mitchell, SD; 1 between MPs 74.1 and 68.8 in Sioux Falls, SD; between MP 68.8 near Sioux Falls, SD, and MP 49.4 near Canton, SD; and between MPs 511.9 and 518.9 in Sioux City, IA. The Core Lines were once part of the rail system operated by the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (the Milwaukee Road). The Milwaukee Road entered bankruptcy in 1977, and, in 1980, it received, both from the Interstate Commerce Commission (ICC) and from the bankruptcy court, approval to abandon the Core Lines. In 1981, the abandoned Core Lines were acquired by the State, and, since on or about July 6, 1981, BNSF has provided common carrier rail service over the Core Lines pursuant to various agreements (the most recent of which is the 1986 Operating Agreement) with the State, and pursuant to a Modified Certificate of Public Convenience and Necessity (the modified certificate) issued by the ICC. See 49 CFR part 1150, subpart C (§ 1150.21 et seq.) (these are the ‘‘modified certificate’’ regulations that apply to operations over abandoned rail lines that have been acquired, through purchase or lease, by a State). BNSF contends that it has, under the terms of the 1986 Operating Agreement, a right to acquire the Core Lines from the State. Because the Core Lines were abandoned by the Milwaukee Road, BNSF has invoked the notice of exemption procedures at 49 CFR part 1150, subpart D (§ 1150.31 et seq.) (these are the regulations that apply to acquisitions and operations under § 10901). See The Burlington Northern and Santa Fe Railway Company— Acquisition and Operation Exemption— Lac Qui Parle Regional Railroad Authority, STB Finance Docket No. 33364 (STB served Apr. 15, 1997); Burlington Northern Railroad 1 The distance between MP 293.1 near Canton and MP 650.6 near Mitchell is approximately 81.50 miles. See BNSF’s § 1150.31 notice, Exhibit 2, Appendix 1, page 6. BNSF has not explained the discrepancy with respect to the milepost designations. VerDate jul<14>2003 15:11 Jan 18, 2005 Jkt 205001 Company—Acquisition and Operation Exemption—South Dakota Railroad Authority, Finance Docket No. 32017 (ICC served Apr. 2, 1992). Under the modified certificate regulations at § 1150.21 et seq., a modified certificate operator may not terminate modified certificate service unless it first provides—to the State, to the Board, and to all persons that have used the line within the preceding six months—60 days’ notice. See 49 CFR 1150.24. BNSF has not yet provided such notice, but it has stated that, once it has acquired the Core Lines, it will notify the appropriate parties that it will cease to provide service under its § 1150.21 modified certificate but will continue to provide service pursuant to its § 1150.31 exemption notice. BNSF’s § 1150.31 exemption notice was filed to be effective on December 30, 2004. However, by decision served December 29, 2004, the effective date of the exemption was stayed until 11:59 p.m., January 14, 2005. The question of whether the exemption will be stayed beyond that date will be addressed by the Board in a separate decision. As noted in the decision served December 29, 2004, in this docket, BNSF’s asserted right to acquire the Core Lines is disputed by the State, and is now the subject of litigation in The Burlington Northern and Santa Fe Railway Company v. State of South Dakota, Civ. No. 04–470 (S.D. 6th Circuit). As is also noted in the prior decision, BNSF has acknowledged that, before it can actually acquire title to the Core Lines, it will need to prevail in acquiring the Core Lines from the State whether through voluntary conveyance by the State or involuntary conveyance as may be ordered by the state court. In view of the ongoing litigation concerning BNSF’s right, under the terms of the 1986 Operating Agreement, to acquire the Core Lines from the State, it is appropriate to note that the Board has made no determination, one way or the other, concerning BNSF’s asserted right to acquire the Core Lines from the State. The contractual dispute respecting the scope of the rights retained by or granted to the State and/ or BNSF under the 1986 Operating Agreement must be resolved in a court of competent jurisdiction. If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke does not automatically stay the transaction. An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34645, must be filed with PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 3101 the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423– 0001. In addition, a copy of each pleading must be served on BNSF’s representative: Adrian L. Steel, Jr., Mayer, Brown, Rowe & Maw LLP, 1909 K Street, NW., Washington, DC 20006– 1101. Board decisions and notices are available on its Web site at http:// www.stb.dot.gov. Decided: January 12, 2005. By the Board, David M. Konschnik, Director, Office of Proceedings. Vernon A. Williams, Secretary. [FR Doc. 05–1011 Filed 1–18–05; 8:45 am] BILLING CODE 4915–01–P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 34646 (Sub-No. 1)] D&I Railroad Company—Trackage Rights Exemption—State of South Dakota and Sioux Valley Regional Railroad Authority The State of South Dakota (the State) and Sioux Valley Regional Railroad Authority (SVRRA) have agreed to grant overhead trackage rights to D&I Railroad Company (D&I) over a State-owned line of railroad extending between milepost (MP) 533.4 near Elk Point, SD (also known as MP 0.0 at East Wye Jct.) and MP 511.90 in Sioux City, IA, including such yard tracks, sidetracks, and connecting tracks (existing or to be constructed) as are reasonable to interchange railcars with The Burlington Northern and Santa Fe Railway Company (BNSF), Union Pacific Railroad Company, and Canadian National Railway Company at Sioux City. The total distance of the trackage rights to be granted to D&I is approximately 21.5 miles. The D&I– SVRRA transaction contemplated by the parties was scheduled to be consummated on or after January 5, 2005. Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under sections 11324 and 11325 that involve only Class III carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III carriers. The notice of exemption filed in this docket was filed under 49 CFR E:\FR\FM\19JAN1.SGM 19JAN1

Agencies

[Federal Register Volume 70, Number 12 (Wednesday, January 19, 2005)]
[Notices]
[Pages 3100-3101]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-1011]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 34645]


The Burlington Northern and Santa Fe Railway Company--Acquisition 
and Operation Exemption--State of South Dakota

    The Burlington Northern and Santa Fe Railway Company (BNSF), a 
Class I rail carrier, has filed a verified notice of exemption under 49 
CFR 1150.31 to

[[Page 3101]]

acquire and operate approximately 369.7 route miles of railroad lines, 
referred to as the ``Core Lines,'' that are owned by the State of South 
Dakota (the State). These lines, which are described in a July 10, 1986 
Operating Agreement between a BNSF predecessor (Burlington Northern 
Railroad Company) and the State, extend principally: between milepost 
(MP) 777.0 near Aberdeen, SD, and MP 650.6 near Mitchell, SD; between 
MP 518.9 near Sioux City, IA, and MP 649.7 near Mitchell, SD; between 
MP 293.1 near Canton, SD, and MP 650.6 near Mitchell, SD; \1\ between 
MPs 74.1 and 68.8 in Sioux Falls, SD; between MP 68.8 near Sioux Falls, 
SD, and MP 49.4 near Canton, SD; and between MPs 511.9 and 518.9 in 
Sioux City, IA.
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    \1\ The distance between MP 293.1 near Canton and MP 650.6 near 
Mitchell is approximately 81.50 miles. See BNSF's Sec.  1150.31 
notice, Exhibit 2, Appendix 1, page 6. BNSF has not explained the 
discrepancy with respect to the milepost designations.
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    The Core Lines were once part of the rail system operated by the 
Chicago, Milwaukee, St. Paul and Pacific Railroad Company (the 
Milwaukee Road). The Milwaukee Road entered bankruptcy in 1977, and, in 
1980, it received, both from the Interstate Commerce Commission (ICC) 
and from the bankruptcy court, approval to abandon the Core Lines. In 
1981, the abandoned Core Lines were acquired by the State, and, since 
on or about July 6, 1981, BNSF has provided common carrier rail service 
over the Core Lines pursuant to various agreements (the most recent of 
which is the 1986 Operating Agreement) with the State, and pursuant to 
a Modified Certificate of Public Convenience and Necessity (the 
modified certificate) issued by the ICC. See 49 CFR part 1150, subpart 
C (Sec.  1150.21 et seq.) (these are the ``modified certificate'' 
regulations that apply to operations over abandoned rail lines that 
have been acquired, through purchase or lease, by a State). BNSF 
contends that it has, under the terms of the 1986 Operating Agreement, 
a right to acquire the Core Lines from the State.
    Because the Core Lines were abandoned by the Milwaukee Road, BNSF 
has invoked the notice of exemption procedures at 49 CFR part 1150, 
subpart D (Sec.  1150.31 et seq.) (these are the regulations that apply 
to acquisitions and operations under Sec.  10901). See The Burlington 
Northern and Santa Fe Railway Company--Acquisition and Operation 
Exemption--Lac Qui Parle Regional Railroad Authority, STB Finance 
Docket No. 33364 (STB served Apr. 15, 1997); Burlington Northern 
Railroad Company--Acquisition and Operation Exemption--South Dakota 
Railroad Authority, Finance Docket No. 32017 (ICC served Apr. 2, 1992).
    Under the modified certificate regulations at Sec.  1150.21 et 
seq., a modified certificate operator may not terminate modified 
certificate service unless it first provides--to the State, to the 
Board, and to all persons that have used the line within the preceding 
six months--60 days' notice. See 49 CFR 1150.24. BNSF has not yet 
provided such notice, but it has stated that, once it has acquired the 
Core Lines, it will notify the appropriate parties that it will cease 
to provide service under its Sec.  1150.21 modified certificate but 
will continue to provide service pursuant to its Sec.  1150.31 
exemption notice.
    BNSF's Sec.  1150.31 exemption notice was filed to be effective on 
December 30, 2004. However, by decision served December 29, 2004, the 
effective date of the exemption was stayed until 11:59 p.m., January 
14, 2005. The question of whether the exemption will be stayed beyond 
that date will be addressed by the Board in a separate decision.
    As noted in the decision served December 29, 2004, in this docket, 
BNSF's asserted right to acquire the Core Lines is disputed by the 
State, and is now the subject of litigation in The Burlington Northern 
and Santa Fe Railway Company v. State of South Dakota, Civ. No. 04-470 
(S.D. 6th Circuit). As is also noted in the prior decision, BNSF has 
acknowledged that, before it can actually acquire title to the Core 
Lines, it will need to prevail in acquiring the Core Lines from the 
State whether through voluntary conveyance by the State or involuntary 
conveyance as may be ordered by the state court. In view of the ongoing 
litigation concerning BNSF's right, under the terms of the 1986 
Operating Agreement, to acquire the Core Lines from the State, it is 
appropriate to note that the Board has made no determination, one way 
or the other, concerning BNSF's asserted right to acquire the Core 
Lines from the State. The contractual dispute respecting the scope of 
the rights retained by or granted to the State and/or BNSF under the 
1986 Operating Agreement must be resolved in a court of competent 
jurisdiction.
    If the verified notice contains false or misleading information, 
the exemption is void ab initio. Petitions to revoke the exemption 
under 49 U.S.C. 10502(d) may be filed at any time. The filing of a 
petition to revoke does not automatically stay the transaction.
    An original and 10 copies of all pleadings, referring to STB 
Finance Docket No. 34645, must be filed with the Surface Transportation 
Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, a 
copy of each pleading must be served on BNSF's representative: Adrian 
L. Steel, Jr., Mayer, Brown, Rowe & Maw LLP, 1909 K Street, NW., 
Washington, DC 20006-1101.
    Board decisions and notices are available on its Web site at http:/
/www.stb.dot.gov.

    Decided: January 12, 2005.

    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 05-1011 Filed 1-18-05; 8:45 am]
BILLING CODE 4915-01-P