# Amtrak Priority Law Goes to Supreme Court (Decided 3/9/15)



## William W. (Jul 11, 2014)

SCOTUS has agreed to hear the lawsuit over the law that requires Amtrak trains to receive dispatching priority, and allows for the railroads to be fined if they are found in violation of the law.

It'll definitely be interesting to see how this unfolds. If the Supreme Court rules the law unconstitutional, does it mean that Amtrak's trains will be forevermore late? I'd imagine that the freight companies would use the decision to disrupt the operation of the LD trains as much as possible, with the eventual goal of driving them off the rails completely.

On the other hand, if the law is upheld, it will hopefully give Amtrak the muscle that it needs to force the freight companies to follow the law. We could potentially see a big jump in OTP if the law is upheld.

I'm not a lawyer(yet), but I've studied enough to know that Amtrak should have a pretty strong case here. If the government can make the case that Amtrak is a federal entity, and not a detached corporation, they should be able to use the commerce clause pretty successfully.

Thoughts, anyone?

http://www.bloomberg.com/news/2014-06-23/amtrak-rulemaking-clash-draws-scrutiny-from-supreme-court.html


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## Cole737 (Jul 11, 2014)

I sure do hope this law is upheld. We will see amtrak the way it's supposed to be.


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## NW cannonball (Jul 11, 2014)

The SCOTUS case is ostensibly about how a law affects the application of a rulemaking.

Clear? no -- that's why SCOTUS took the case.

Hoping for a helpful decision -- but any likely decision will just throw the issue back to Congress, the agencies, and the lower courts. Patience is a virtue. We riders will need a lot of patience. Like always.


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## Anderson (Jul 11, 2014)

The problem is that the law was badly written. If the FRA had been charged with making the rule and had written it exactly the same way, we wouldn't be here. If the law had just outright dictated the result, the same thing applies.

As to the issue of Amtrak being entangled with the government, I see three issues:
(1) Amtrak is, legally, a corporation (ironically, with several Class Is as shareholders). In theory, the government could sell off Amtrak (or sell off Amtrak franchises in some fashion), and if the law still applied, you'd have a real problem (and imagine if Amtrak did another freight experiment...).

(2) Ok, what happens when the Class I is a mess and that's the reason for the delays? I'm thinking the Hi-Line situation (where _nothing_ has been on time for a while). Should BNSF be fined for Amtrak delays when their own operations are in a meltdown? Likewise, consider the Amfreight scenario here as well.
(3) Finally, let's consider an odd scenario: Amtrak operating on the FEC alongside FEC passenger trains. I understand not wanting Amtrak to be mistreated and given far, far worse handling than the FEC/AAF trains, but (again presuming an internal issue causing FEC heartburn as much as Amtrak) should FEC be forced to give Amtrak priority handling over their own _passenger _trains?


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## NW cannonball (Jul 11, 2014)

Thinking this thread needs moved to the Constitutional Law discussion.

Not relevent to Amtrak riders for years and years.


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## Ryan (Jul 11, 2014)

Anderson said:


> The problem is that the law was badly written. If the FRA had been charged with making the rule and had written it exactly the same way, we wouldn't be here. If the law had just outright dictated the result, the same thing applies.


Charlie posted a while ago, that NARP has been lobbying to get Congress to do exactly that, and get Amtrak out of the process. That would make this court case go away. Alternatively, Congress may be waiting for the Court to say "No, you can't do that" and then they'll swoop in and make the change.

http://discuss.amtraktrains.com/index.php?/topic/58405-eb-mess/?p=529337



> Amending PRIIA 207 was one of the goals we had at last month's NARP Day on Capitol Hill. We asked our elected representatives for a very simple change, which would overcome the objections of the court:
> 
> 
> 
> ...


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## VentureForth (Jul 11, 2014)

William W. said:


> I'm not a lawyer(yet), but I've studied enough to know that Amtrak should have a pretty strong case here. If the government can make the case that Amtrak is a federal entity, and not a detached corporation, they should be able to use the commerce clause pretty successfully.


Amtrak, as well as many supporters here in this forum (which don't leagally matter in any way), have argued since its inception that they are a for-profit corporation created by and funded by the government.
They do everything in the world they can to say they are not a government agency - except take our money.

I don't think that the commerce clause would be relevant in this case - rather just a matter as others have said about how well or poorly the initial law was written and if there is any constitutional barrier that would have made it "bad law" over the past 44 years.


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## jphjaxfl (Jul 11, 2014)

All Aboard Florida will be operating the proposed Miami to Orlando passenger trains. They will be operated on the Florida East Coast Railway. If Amtrak had funding for Jacksonville to Miami passenger trains, they too could contract with the Florida East Coast Railway to operate Amtrak trains. The concern will be how All aboard Florida and Amtrak would coordinate since AAF will be intrastate with limitations and Amtrak in interstate. Amtrak would also compete with AAF between Orlando and South Florida points.


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## The German Muffin (Jul 11, 2014)

20 bucks says it'll be yet ANOTHER 5-4 decision by the Roberts court..., going against Amtrak of course


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## Bob Dylan (Jul 11, 2014)

Campaign Contributions(Bribes) by Freight RRs to Politicians= Millions!!!!

Amtrak's Bribes, er CCs= 0$$

Supreme Court Decision= 5-4 for RRs

Winner: Class Is!!! No Contest!!!


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## VentureForth (Jul 11, 2014)

jphjaxfl said:


> All Aboard Florida will be operating the proposed Miami to Orlando passenger trains. They will be operated on the Florida East Coast Railway. If Amtrak had funding for Jacksonville to Miami passenger trains, they too could contract with the Florida East Coast Railway to operate Amtrak trains. The concern will be how All aboard Florida and Amtrak would coordinate since AAF will be intrastate with limitations and Amtrak in interstate. Amtrak would also compete with AAF between Orlando and South Florida points.


Not entirely. The route between West Palm Beach and Miami would be different routing and stations. Not even sure if WPB would share a station, but if they do, it'd be the only connection between AAF and Amtrak (and Tri-Rail which DOES compete directly with Amtrak, but it's government so no one cares?)



The German Muffin said:


> 20 bucks says it'll be yet ANOTHER 5-4 decision by the Roberts court..., going against Amtrak of course


You mean *gasp* if they uphold the constitution?


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## jis (Jul 11, 2014)

VentureForth said:


> jphjaxfl said:
> 
> 
> > All Aboard Florida will be operating the proposed Miami to Orlando passenger trains. They will be operated on the Florida East Coast Railway. If Amtrak had funding for Jacksonville to Miami passenger trains, they too could contract with the Florida East Coast Railway to operate Amtrak trains. The concern will be how All aboard Florida and Amtrak would coordinate since AAF will be intrastate with limitations and Amtrak in interstate. Amtrak would also compete with AAF between Orlando and South Florida points.
> ...


Different stations at WPB and also at Fort Lauderdale. The entire Orlando to Miami routing is different. When Amtrak starts operating on FEC they will cross over from FEC to ex-CSX just north of WPB, and then go to the Airport Station past Hialeah. The proposed AAF service is not allowed to coordinate with Amtrak in order to maintain its independence from the STB.
It is mostly absurd to think that Amtrak and AAF will actually be competing for anything between Orlando and Miami anyway. One is a dedicated focused higher speed corridor service. The other is a traditional 20th century LD service. No contest for O/D riders between Miami and Orlando. Just about as much competition Silver Star/Meteor and Crescent are to Acela on the NEC.


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## Ryan (Jul 11, 2014)

Well that's because you physically can't book a LD ticket on the NEC - what do you think the odds are of Amtrak doing something similar in FL? (I'm thinking slim to none)


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## jis (Jul 11, 2014)

So you really believe that if Amtrak sold tickets hoards of Acela passenger would abandon Acelas and move to the LD trains on the NEC? OK. I think one of us may be a bit disconnected from reality.   :hi: 

A choice between a service that gets the highest priority and does not depend on OTP being intimately married to what happens to it cross country on a freight railroad which gives it questionable priority at best, vs. a dedicated service serving a specific corridor with the highest priority that prides itself on that service running in a timely manner to compete against airlines and such. I think it should be pretty obvious. but maybe not.


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## neroden (Jul 11, 2014)

Unfortunately, the Roberts Court is a crapshoot, since they have shown flagrant disregard for precedent (even their own precedents), flagrant disregard for the factual record, and flagrant disregard for the intent of Congress. Repeatedly.

It would be best if Congress fixed the way the law was written.

In the meantime, the Supreme Court is like a gambling house, you can only guess how they'll rule, because law and precedent has nothing to do with their rulings lately. As Sotomayor explained in detail in the dissent to the Wheaton College "ruling".

Unfortunately the best way to guess how the Corrupt Five will rule is to look at the parties to the case, while ignoring the actual content of the case. So, you can expect a ruling against Amtrak because Amtrak is associated with "liberals". If we get lucky, some of them will decide that they like passenger trains or that trains are "conservative", and vote for Amtrak. *Law isn't supposed to work this way*, but nowadays it does at the US Supreme Court. The movement which believes in describing this phenomenon and treating it as real is known as "legal realism", and it's depressing.


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## VentureForth (Jul 11, 2014)

jis said:


> So you really believe that if Amtrak sold tickets hoards of Acela passenger would abandon Acelas and move to the LD trains on the NEC? OK. I think one of us may be a bit disconnected from reality.   :hi:


I can see a surge of NEC Commuters hoarding up sleeping car units between NYP and WAS.


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## VentureForth (Jul 11, 2014)

neroden said:


> Unfortunately the best way to guess how the Corrupt Five will rule is to look at the parties to the case, while ignoring the actual content of the case.


POV.
I see the Corrupt Nine. That's where I'll stop this hokey political jab.


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## gmushial (Jul 11, 2014)

VentureForth said:


> jphjaxfl said:
> 
> 
> > All Aboard Florida will be operating the proposed Miami to Orlando passenger trains. They will be operated on the Florida East Coast Railway. If Amtrak had funding for Jacksonville to Miami passenger trains, they too could contract with the Florida East Coast Railway to operate Amtrak trains. The concern will be how All aboard Florida and Amtrak would coordinate since AAF will be intrastate with limitations and Amtrak in interstate. Amtrak would also compete with AAF between Orlando and South Florida points.
> ...


Interesting comment... would they be, and how so? Care to explain the point? Please.


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## neroden (Jul 11, 2014)

I've spent years reading Supreme Court rulings. The Justices aren't all the same -- some are *much* worse. Breyer's opinions are always worth reading, and he seems to operate according to some sense of law and precedent and facts, even if one disagrees on his decision.

Kennedy's rulings are wooly-headed but sincere and he seems to be making a real attempt to use the law and precedent and the facts, even though his rulings are always fuzzy-minded and vague.

By contrast, Scalia's rulings aren't worth reading, unless you want to see gross intellectual dishonesty on display. He has a nasty tendency to directly contradict *his own* previous rulings without admitting it. He'll argue one side of the argument one week and the other side the next week, depending on who the litigants are. A fine trait for a lawyer; but a really terrible trait for a judge. I have been getting more and more disgusted with his BS every year; he disgraces the US court system.


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## railfanista (Jul 11, 2014)

Ginsburg thinks Scalia is brilliant, even though she disagrees with him virtually all the time. Of course Ginsburg's nowhere near as smart as you, neroden.


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## gmushial (Jul 11, 2014)

railfanista said:


> Ginsburg thinks Scalia is brilliant, even though she disagrees with him virtually all the time. Of course Ginsburg's nowhere near as smart as you, neroden.


Yes, Ginsburg makes no bones about such views, but such doesn't make him a good or worthwhile justice, ie, one does not make the other - merely that she enjoys intellectually arm-wrestling with him. Beyond that: over time I think you'll find Neroden is one of the clearer thinkers here - making comments to contrary merely reflect upon yourself. :-(


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## Ryan (Jul 11, 2014)

jis said:


> So you really believe that if Amtrak sold tickets hoards of Acela passenger would abandon Acelas and move to the LD trains on the NEC? OK. I think one of us may be a bit disconnected from reality.   :hi:


Of course I don't think that, it would be absurd. Just pointing out that for the purpose of NEC travelers, the LD trains may as well not exist, so it's not really a fair fight.

I do agree with VF that some folks (myself included) would opt for a room, even on the NEC if it were possible. But there's not the capacity to move anything approaching hoards off of the Acela.


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## Devil's Advocate (Jul 11, 2014)

I can't think of a worse Supreme Court to be deciding this ruling in my lifetime.


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## Green Maned Lion (Jul 11, 2014)

Being brilliant and being fair/just are not mutually dependent.

Hitler was brilliant. Stalin was brilliant. Castro is brilliant. Madoff is brilliant.

Neroden is a bright guy. Not as bright as me, but who is? Seriously, being cynical does not mean one is not bright. Infact I'd say there is an impressive positive correlation between intelligence and cynicism.


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## neroden (Jul 11, 2014)

Scalia's very smart in a technical sense, he's just intellectually dishonest. Most of the individual arguments he makes are very good (the biggest exception is Bush v. Gore, where there simply was no good argument to be made for the ruling Scalia wanted to make); the trouble is he has no consistency -- another way to put it is "no principles".

I disrepect that a lot. Though I will concede that I've heard some really solid arguments for why *lawyers* should be like that (argue the best you can for whatever client you have got this week, regardless of what client you had last week), judges should NOT be like that.

There's actually a reason this country used to appoint more non-lawyers as judges; the mentality of a litigator is all wrong for a judge.


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## tonys96 (Jul 11, 2014)

VentureForth said:


> You mean *gasp* if they uphold the constitution?


Can you tell me exactly what in the constitution you are referring to? I will gladly look it up!

Not in the constitution, but in settled law, is the proposition that RRs are "common carriers", that is how they can obtain right of way by eminent domain, retain right of way through the middle of cities and towns, exert sole control over the said rights of way, ignore all state and local rules and ordinances (READ: Federal law governing "common carriers" {FRA} supersedes local rules/laws) and just about do anything they darned well want to do. The catch is this: In order to obtain/keep the "common carrier" designation, they must prove a service that is for the common good. Moving freight from here to there is not a qualifier, not all trucking/shipping firms are designated as "common carriers" in this manner. One of the requirements put on RRs way back when, in order to get public land for right of way, and get eminent domain power, was to move pax. That requirement was lifted when Amtrak was formed, but at that time, as a concession, Amtrak was to get this priority designation. That was part of the deal.....

No other freight moving industry enjoys the "rights" that RRs have. Ex. A trucking firm cannot have sole use of the inside lane of a highway, while UP can have sole power over a track placed in public owned land with a "right of way" being there. If they are willing to give these rights up, then they would be free to operate as fully independent entities, until then, they have commitments to follow, one being giving Amtrak priority.


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## neroden (Jul 11, 2014)

The case was decided wrong by a particularly infamous hack on the lower court, who declared that Amtrak was a private company in competition with the freight railroads, and as such could not be delegated regulatory power; and further decided that even the FRA "consulting" with Amtrak constituted delegated power. This is a stretch to say the least, given that other rulings (such as the one throwing out American Financial Group's claims in relation to Amtrak stock) have ruled that Amtrak is a government agency.

I suspect that it is the conflict over whether Amtrak is a government agency for this purpose which caused the Supreme Court to take the case. We'll probably read some well-reasoned opinions on both sides by those members of the court who are impartial. Unfortunately, the decision will involve a vote which will include members who may not be impartial. Though I don't actually know if the routinely-prejudiced Justices care one way or another about Amtrak; if they really don't care, they might be able to issue good opnions too. Even Bismarck was said to be a fair mediator when German interests weren't involved (but when German interests were involved, God help you.)


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## tonys96 (Jul 11, 2014)

Has the SCOTUS ever ruled if the Postal Service is a government entity? Seems to be a reasonably fair comparison......


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## Anderson (Jul 11, 2014)

Ok, a couple of things:
(1) The only reason there's no competition between the Silvers and Crescent and the other services on the NEC is because Amtrak doesn't allow it. Considering that a one-way Acela FC ticket can run close to $400 while a roomette will often run much closer to $200 (i.e. on par with Regional BC), there IS room for competition, particularly southbound.
--As noted by Ryan, however, there's not nearly the capacity needed to make a dent here given the ridership numbers. You have about six sleepers worth of space on an average day (3 Meteor, 2 Star, 2 Crescent but with about a sleeper's worth of space taken by crew) which comes to somewhere around 108-120 passengers in each direction. Even filling that up every day of the year would get you <90k spaces, while Acela First Class runs somewhere around 350k/yr.

(2) As to the Supreme Court, I'm not sure where the alleged disregard of internal precedent is coming from...but that's a far different discussion. Longer-term disregard of precedent is less of an issue IMHO, if only because there are plenty of cases where you can argue that the court has made some impressively bad rulings.

(3) On the issues of the law, the issue at hand is not the original law (from 1970/71) but the new law (from 2008). The best way I can think of the RR's argument is that the government, nearly 40 years later, imposing a priority system that Amtrak gets to be party to developing but they don't as akin to a certain scene in The Empire Strikes Back. In a sense, had the FRA consultation process been in the initial bill in the 70s it is likely the RRs would lose on the grounds that they contracted to it as part of joining Amtrak and being relieved of their passenger commitments. Now, the argument exists that (notwithstanding agreements with individual states) while they might be bound over by whatever terms were imposed on them in the 1970s, they shouldn't be subjected to additional new terms heaped on a deal nearly 40 years after the fact. Let's be honest, if they had been informed of this sort of issue, I suspect there would have been more Amtrak holdouts among the wealthier roads/ones with better-performing routes (this might have tipped the balance at ATSF, for example, and Southern might have held out for a straight discontinuation).


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## Devil's Advocate (Jul 11, 2014)

So when the class one railroads win how much extra will Amtrak have to pay in order to buy priority dispatching?


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## PRR 60 (Jul 11, 2014)

neroden said:


> The case was decided wrong by a particularly infamous hack on the lower court, who declared that Amtrak was a private company in competition with the freight railroads, and as such could not be delegated regulatory power; and further decided that even the FRA "consulting" with Amtrak constituted delegated power. This is a stretch to say the least, given that other rulings (such as the one throwing out American Financial Group's claims in relation to Amtrak stock) have ruled that Amtrak is a government agency.
> 
> I suspect that it is the conflict over whether Amtrak is a government agency for this purpose which caused the Supreme Court to take the case. We'll probably read some well-reasoned opinions on both sides by those members of the court who are impartial. Unfortunately, the decision will involve a vote which will include members who may not be impartial. Though I don't actually know if the routinely-prejudiced Justices care one way or another about Amtrak; if they really don't care, they might be able to issue good opnions too. Even Bismarck was said to be a fair mediator when German interests weren't involved (but when German interests were involved, God help you.)


It was more than FRA "consulting" with Amtrak. The law required the FRA to set specific on-time standards that were enforceable by financial penalties. The issue was that the law granted Amtrak with veto power over the standards. Essentially, FRA had to set standards that Amtrak approved. In the absence of Amtrak approval, no standards could be set.

The court ruled that Amtrak was a private entity, and that granting Amtrak veto power over the standards developed by the FRA, standards enforceable by federal fines, unconstitutionally granted law making authority to a private company. If Amtrak had only been identified as a party to be consulted with the FRA having the final say, there would not have been an issue.

For the record, the ruling has nothing to do with the existing requirement that host railroads grant "priority" to Amtrak. That requirement is still in force. The problem with the priority requirement is what does "priority" mean and how is it measured? The purpose of the on-time standards was to set specific and measurable requirements that could be enforced by the STB without getting in any discussion of what is or is not "priority." It was a great idea had Amtrak not insisted that they had to be in charge of setting those standards. They got what they wanted, and now they are before the Supreme Court to try and get it back.


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## Ryan (Jul 11, 2014)

This graph from Amtrak's presentation to Congress in April is somewhat relevant here.

Hopefully Congress acts quickly to sidestep the issue and we can go back towards decent OTP.


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## gmushial (Jul 11, 2014)

PRR 60 said:


> neroden said:
> 
> 
> > The case was decided wrong by a particularly infamous hack on the lower court, who declared that Amtrak was a private company in competition with the freight railroads, and as such could not be delegated regulatory power; and further decided that even the FRA "consulting" with Amtrak constituted delegated power. This is a stretch to say the least, given that other rulings (such as the one throwing out American Financial Group's claims in relation to Amtrak stock) have ruled that Amtrak is a government agency.
> ...


What's the expression: be careful what you ask for, 'cause you just might get it. ;-)


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## gmushial (Jul 11, 2014)

RyanS said:


> This graph from Amtrak's presentation to Congress in April is somewhat relevant here.
> 
> Hopefully Congress acts quickly to sidestep the issue and we can go back towards decent OTP.


Would be nice to see that graph, but extending further to the left, ie, further back in time (so that one might get a better sense of the situation, and not just a potentially self-serving snippet).


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## NW cannonball (Jul 11, 2014)

The law in question was a compromise, hack, kludge -- kick the bucket down the road sorta thing.

The rules that the agencies FRA, Amtrak, wrote - were not real good for train riders.

Nobody knows why SCOTUS took this -- some members of the Court might want to kill all non-profit corporations -- some might want to make more clear when and how the executive can make rules (that annoy their CC's -- wrong- I meant their friends CC's obviously - Justices are forever - but Scalia will explode from his own "brilliance" and pomposity sooner than later)

Anyhow - it's a complex bit of law, and we are all at the mercy of SCOTUS - no lobbying, no Campaign Contributions, we just wait and see.

The Court could decide to totally destroy Amtrak, and long distance travel. It could make a rule about rule-making.

Calm down -- carry on.


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## PRR 60 (Jul 11, 2014)

gmushial said:


> PRR 60 said:
> 
> 
> > neroden said:
> ...


Isn't that the truth! I suspect there will be mixed emotions at Amtrak no matter which way this case is decided.


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## afigg (Jul 11, 2014)

PRR 60 said:


> It was more than FRA "consulting" with Amtrak. The law required the FRA to set specific on-time standards that were enforceable by financial penalties. The issue was that the law granted Amtrak with veto power over the standards. Essentially, FRA had to set standards that Amtrak approved. In the absence of Amtrak approval, no standards could be set.
> 
> The court ruled that Amtrak was a private entity, and that granting Amtrak veto power over the standards developed by the FRA, standards enforceable by federal fines, unconstitutionally granted law making authority to a private company. If Amtrak had only been identified as a party to be consulted with the FRA having the final say, there would not have been an issue.
> 
> For the record, the ruling has nothing to do with the existing requirement that host railroads grant "priority" to Amtrak. That requirement is still in force. The problem with the priority requirement is what does "priority" mean and how is it measured? The purpose of the on-time standards was to set specific and measurable requirements that could be enforced by the STB without getting in any discussion of what is or is not "priority." It was a great idea had Amtrak not insisted that they had to be in charge of setting those standards. They got what they wanted, and now they are before the Supreme Court to try and get it back.


Thank you for posting the facts of the case. I was following this thread and wondered if someone was going to clarify what the legal issue really is, not railing against this or that. The simplest way to resolve the dispute is for Congress to change the language in an appropriations bill, the Amtrak re-authorization bill if that ever gets through Congress, or insert a couple of sentences changing the law in the patch to keep the Highway Trust Fund from running out of money. If Congress fixes the law before the Supreme Court hears the case and issues a ruling, the Supreme Court would drop the case. A technical fix to have the FRA clearly in charge of setting the standards should not be that controversial, although I would expect a Tea Party type or two in the House will try to add an anti-Amtrak amendment to any bill with Amtrak mentioned in it in a floor vote.


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## Anderson (Jul 11, 2014)

The SC _might _still hear the case regardless. The question of mootness is a tricky one, and the SC has asserted the ability to hear a moot case regardless under some circumstances.


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## neroden (Jul 12, 2014)

Anderson said:


> (2) As to the Supreme Court, I'm not sure where the alleged disregard of internal precedent is coming from...but that's a far different discussion.


Read the Sotomayor dissent in Wheaton College. I can find other examples, but that's an obvious and recent one.
She outright accuses the majority of overturning a 4-day-old precedent. (And she's right.) She also explains that they are grossly violating previously uncontroversial standards for emergency interlocutory injunctions, as confirmed in an opinion by Rehnquist from 1993.


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## gmushial (Jul 12, 2014)

neroden said:


> Anderson said:
> 
> 
> > (2) As to the Supreme Court, I'm not sure where the alleged disregard of internal precedent is coming from...but that's a far different discussion.
> ...


Thanks for doing the legwork... I think many of us have known and accepted such as fact (too many references to such in non-partisan sources), but have never gone to the effort to find examples. Again: thanks.


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## The Whistler (Jul 12, 2014)

Here is the straight scoop. If a politician has an Amtrak train running through his district, he is pro rail and if not he's anti-rail.


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## WoodyinNYC (Jul 12, 2014)

The Whistler said:


> Here is the straight scoop. If a politician has an Amtrak train running through his district, he is pro rail and if not he's anti-rail.


Nonsense. Total nonsense.

One easy example to the contrary. The _Southwest Chief _and

the _Sunset Limited_ both pass thru Arizona. But Senator John 

McCain has NEVER been a friend to Amtrak. He favors spending

hundreds of millions every year subsidizing air service to remote

locations, but hates the idea of helping the millions of Amtrak riders.

Numerous other examples exist.


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## CHamilton (Dec 7, 2014)

> At 11 a.m. Monday, the Supreme Court will explore the constitutional limits on Congress’s authority to hand off some of its power to make national policy to others.....The Department of Transportation has drawn the support of only one amicus brief, filed by four groups that advocate for intercity rail passenger travel. Those groups asserted that, after the court of appeals nullified the “metrics and standards,” Amtrak’s on-time record began to falter, and that this has resulted in declining ridership.


http://www.scotusblog.com/2014/12/argument-preview-a-doctrinal-trip-back-to-the-1930s/#more-222468


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## jis (Dec 8, 2014)

You can find a copy of all the briefs filed in toto at:

http://www.americanbar.org/publications/preview_home/13-1080.html


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## CHamilton (Dec 8, 2014)

A short backgrounder for folks with less knowledge than you folks here on AU, with a link to SCOTUSblog's coverage of the oral arguments. http://www.growtrains.com/will-amtrak-trains-run-on-time/


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## CHamilton (Dec 8, 2014)

AP story on the court's deliberations. http://abcnews.go.com/Politics/wireStory/justices-divided-amtrak-regulatory-role-27448927

USA Today story: http://www.usatoday.com/story/news/nation/2014/12/08/supreme-court-amtrak-trains/20098775/

Washington Post: http://www.washingtonpost.com/politics/courts_law/court-considers-whether-amtraks-self-created-standards-are-federal-regulations/2014/12/08/de23e8f6-7f18-11e4-8882-03cf08410beb_story.html


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## Anderson (Dec 9, 2014)

On the one hand, this is the result of 45 years of bungling which have put what the law says in almost total conflict to the effect of the law (e.g. Amtrak is a for-profit corporation on paper, but a government agency in effect).

One worthwhile point: To my knowledge, excursions notwithstanding, none of the Class Is run any passenger services without municipal subsidies/contracts at this point...so I do hope someone made a point that, as Amtrak is almost exclusively a passenger operator with a _very_ small freight operation (spare space in the baggage cars) while the Class Is don't engage in any passenger operations. Only FEC would be in a real position to argue about running their own trains and competition there, but as things stand Amtrak competes with the Class Is in the sense that a trucking company competes with Megabus. It should also be pointed out that for the majority of the trains that Amtrak operates, they're technically under contract from one or more states to do so...so in many cases this is one government-owned entity doing something on behalf of other government-owned entities.


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## jis (Dec 11, 2014)

CHamilton said:


> The Economist coverage: http://www.economist.com/blogs/democracyinamerica/2014/12/congress-and-amtrak





> The justices travelling the Northeast corridor may find their Amtrak routes running late more often if the company is forced to give freight competitors a fair shake.


I suppose the Economist did not do its homework on who owns the Northeast Corridor. Oh well. All this is likely hard to keep track of from London.


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## CHamilton (Dec 11, 2014)

The Economist coverage: http://www.economist.com/blogs/democracyinamerica/2014/12/congress-and-amtrak


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## neroden (Dec 11, 2014)

The review of oral arguments say that most of the justices are rejecting the idea that Amtrak is a private company for constitutional purposes, period. Which makes sense, as they have written precedent to the contrary themselves, fairly recently. They all agree that Amtrak is a government operation.

Unfortunately, judging by the oral argument, some of the right-wing justices are now attempting to resurrect Lochner-era law, from the infamous period when the Supreme Court struck down minimum wage laws using bogus, invented-out-of-the-whole-cloth Constitutional theories, claiming that they were an interference with business. (And claiming that this is unconstitutional, which is the bogus part; any honest reading of the Constitution pretty much says that Congress can regulate businesses.) They are inventing bogus "due process" arguments why the government should not be allowed to regulate the Class I railroads at all.

That won't end well. The Lochner era led to the union wars; if the legal system doesn't work, people will take up arms against private corporations in defense of their rights, as they did back in the Lochner era. The Lochner precedents were repudiated, and several justices specifically mentioned this and rebuked the "justices" who were trying to revive them.

Hopefully a majority will follow modern precedent and rule that the government can pretty much regulate railroads however it likes. Otherwise they are inviting trouble well beyond Amtrak.


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## CHamilton (Dec 11, 2014)

Trains magazine coverage: http://cs.trains.com/trn/b/observation-tower/archive/2014/12/11/shift-in-america-s-passenger-train-landscape-appears-imminent-as-supreme-court-hears-arguments-in-amtrak-otp-case.aspx


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## jis (Dec 11, 2014)

A very interesting multi-faceted look at the issues involved. Looks like no matter what they decide, things will be different for Amtrak, and being considered a government agency or private company have both their pluses and minuses. As usual the situation is not all black and white.

Then again the SCOTUS may bounce the whole thing back to the Apellate Circuit Court and ask them to rule on the Common Carrier responsibility issue, though I would be surprised enough to fall off a chair if they do that.

At the end of the day though, even without those metrics if STB so chooses it can act on egregious divergence from reasonable operational delays caused by mishandling of Amtrak trains by host railroads. OTOH, even with the metrics in place, the STB could simply not do much. AFAICT in both cases it is upto Amtrak to petition the STB to do something and for the STB to actually do something. So the existence of the metrics or lack thereof is possibly a bit of a storm in a teacup. It just defines what would be considered egregious, thus saving some argument at STB on whether a deviation was egregious enough to act upon or not.

But as mentioned by our friend Malcolm, a clear ruling on government agency vs. private corporation could have far reaching and unpredictable consequences for Amtrak either way. Malcolm gives a more considered broader picture than the likes of NARP have done in their pronouncements IMHO.


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## PRR 60 (Dec 11, 2014)

jis said:


> CHamilton said:
> 
> 
> > The Economist coverage: http://www.economist.com/blogs/democracyinamerica/2014/12/congress-and-amtrak
> ...


It was corrected.


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## neroden (Dec 11, 2014)

jis said:


> At the end of the day though, even without those metrics if STB so chooses it can act on egregious divergence from reasonable operational delays caused by mishandling of Amtrak trains by host railroads. OTOH, even with the metrics in place, the STB could simply not do much. AFAICT in both cases it is upto Amtrak to petition the STB to do something and for the STB to actually do something.


Yeah, government is always about the people implementing the rules, not about the actual rules. Such is life.


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## CHamilton (Dec 12, 2014)

Citylab coverage: http://www.citylab.com/commute/2014/12/the-5-key-moments-from-amtraks-supreme-court-hearing/383682/


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## Daniel (Jan 20, 2015)

Let's say that somehow Amtrak comes out on top. Could Amtrak then reduce padding on some routes, since the freight railroads can only delay the trains 900 minutes per 10,000 miles? The Sunset Limited, Texas Eagle, and Coast Starlight are routes that come to mind that are heavily padded compared to 20 years ago.


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## jis (Jan 20, 2015)

I bet the host railroads will not allow any reduction in padding. Why would they allow their own life to be made harder voluntarily?


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## Anderson (Jan 20, 2015)

If anything I would expect the reverse. As jis indicated, the "delay" standards are, if I'm not mistaken, vs. the timetable...so other railroads would probably be more willing to cut padding if they know that a problem arising won't get them in hot water.


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## Devil's Advocate (Jan 20, 2015)

A private rail road in hot water over Amtrak schedule keeping? Anybody have dates and railroads punished for abusing Amtrak in recent memory or is this just another unsubstantiated boogieman we're helpfully creating out of thin air?


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## TheTuck (Jan 20, 2015)

It is my understanding that the public timetables and the agreed upon running times with the host railroad are unique in and of themselves. There is padding for the host railroad's recovery over a route section, just as there is in the printed schedule. Not the same thing by any means. For example (and this is just for entertainment purposes) the BNSF might get 30 mins padding on the SEA-PDX segment of the Starlight. Whereas the Amtrak.com schedule has 45 extra mins over the same segment. So, a 40 minute delay over this section would count against the BNSF for exceeding their 30 minute threshold. But Amtrak's OTP (on time performance) record considers this an "on time" arrival based on THEIR schedule.

Over the years, the schedules have been lengthened due to changing conditions over the route (more train traffic, slower speeds, method of operation etc...) and Amtrak's desire to maintain "reliable" service.


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## Long Train Runnin' (Jan 20, 2015)

Devil's Advocate said:


> A private rail road in hot water over Amtrak schedule keeping? Anybody have dates and railroads punished for abusing Amtrak in recent memory or is this just another unsubstantiated boogieman we're helpfully creating out of thin air?



Off the top of my head I believe that CSX and NS were taking some heat from DOT for the delays in Ohio around October.


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## tonys96 (Jan 20, 2015)

Devil's Advocate said:


> A private rail road in hot water over Amtrak schedule keeping? Anybody have dates and railroads punished for abusing Amtrak in recent memory or is this just another unsubstantiated boogieman we're helpfully creating out of thin air?


:blink:


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## Anderson (Jan 21, 2015)

Long Train Runnin' said:


> Devil's Advocate said:
> 
> 
> > A private rail road in hot water over Amtrak schedule keeping? Anybody have dates and railroads punished for abusing Amtrak in recent memory or is this just another unsubstantiated boogieman we're helpfully creating out of thin air?
> ...


I'll be a lot more cynical if the STB complaint that Amtrak filed against NS in the fall gets killed off. The complaint has been filed and is before the STB, so we'll see what happens.

By the way, I believe that the complaint would still be valid even if the lawsuit gets struck down considering how bad the delays have been. As I've noted before, Amtrak has generally been gun-shy about filing formal complaints and lawsuits (the most well-known being when Amtrak used eminent domain to take over a section of railroad for the Montrealer due to the owner not keeping it up...and Amtrak suing SP over mishandling the Sunset Limited).

The simple fact is that it doesn't usually get bad enough for Amtrak to do this (since such a claim is expensive to pursue, not to mention that a long history of such complaints would probably result in freights being even more hesitant to take on new passenger service than they already are). Moreover, it isn't always clear who to blame...if UP regularly delays a train before it gets to BNSF territory by, say, 60 minutes and the train then loses four hours by being out of slot does Amtrak go after UP for a relatively mild delay (by LD train standards, at least) or BNSF (where most of the delay happened)? UP will respond that the delay isn't _that_ bad (900 minutes of delay per 10k train miles would probably cover this much of a delay and then some on a 1000-mile run) and there should be enough padding in the BNSF section, while BNSF will blame UP for getting them the train late. So not only do the delays have to be big, they also have to be someone's fault (and not transitional, such as construction-related delays).


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## neroden (Jan 21, 2015)

Also worth noting that, based on my analysis of Amtrak's financials, BNSF appears to have fully compensated Amtrak financially for the Empire Builder delays of the past few years. CSX and NS do *not* appear to have compensated Amtrak for the Capitol Limited and Lake Shore Limited delays.

So I'd expect that it also has to be *financially worth it* to file a complaint. What would happen if Amtrak won against BNSF, and got no money out of it? Kind of pointless...


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## VentureForth (Jan 21, 2015)

The Supreme court isn't there to award damages, per se. It's to set presidence for legal compliances. Sure, damages may be awarded, but it's the priciple of the thing that truly matters. If Amtrak loses against CN, NS, CSX, then you think BNSF will continue those penalties?


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## jis (Jan 21, 2015)

I think neroden and Anderson are talking of damages awarded by the STB, which is supposed to deal with such matter, and not the SCOTUS, which is not.


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## PaulM (Jan 22, 2015)

Anderson said:


> Moreover, it isn't always clear who to blame...if UP regularly delays a train before it gets to BNSF territory by, say, 60 minutes and the train then loses four hours by being out of *slot *...


I ask again whether slots actually exits or are a myth. Back in November I rode #5 from MTP to DEN. As we were arriving in Denver, the conductor apologized for the almost 3 hour late arrival, saying that engine problems caused a 1/2 hour late departure from CHI which causes us to be out of slot.

I later asked him if he believed that slot story, telling him that I bet we would have lost just as much time if we had departed on time. He chuckled said: I hear what you are saying.

Incidentally, the UP has be doing very well in the last few years delivering #6 to Denver.


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## Ben (Feb 3, 2015)

If Amtrak loses this case, could it mean that it would be easier to add service, like daily Sunset, Desert Wind, etc., as the freight railroads could potentially demand fewer infrastructure enhancements because they no longer need to meet the 80% OTP threshold for LD trains? Perhaps losing the case would actually be a good thing


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## jis (Feb 3, 2015)

The reason that it is impossible to start new LD trains is because (a) there is no additional equipment available, and (b) adding any LD train - specially out west, cannot really be done without adding to the deficit in the operating budget. So no matter what happens to this case, there is a very low likelihood that any new LD train will get added until the budget setting dynamics changes in Congress.


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## Paulus (Feb 3, 2015)

Ben said:


> If Amtrak loses this case, could it mean that it would be easier to add service, like daily Sunset, Desert Wind, etc., as the freight railroads could potentially demand fewer infrastructure enhancements because they no longer need to meet the 80% OTP threshold for LD trains? Perhaps losing the case would actually be a good thing


Why would less than 80% OTP, with an hour of "It was totally on time" in addition to the hours of padding that it already receives, ever be considered an acceptable service for Amtrak to initiate?


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## tommylicious (Feb 4, 2015)

I am glad Amtrak is fighting CSX and NS in the STB. We should all support it, not try to pick it apart for our own self-aggrandizement.


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## jis (Feb 4, 2015)

I believe the complaint that Amtrak filed with STB is only about NS. CSX is not involved in that. The complaint is about NS's handling of the Capitol Limited between Chicago and Pittsburgh, which is entirely NS. Amtrak has not filed any complaints about the handling of the Lake Shore limited between Schenectady and Cleveland, which would be CSX, yet. Some folks think, that is partly because Amtrak's own problems on LSL are too significant for Amtrak to complain about those delays. Better to keep the sleeping dog lie.


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## Devil's Advocate (Feb 4, 2015)

jis said:


> Better to keep the sleeping dog lie.


The freight railroads are openly funding anti-Amtrak politicians. Might as well fight them while you're still standing instead of waiting until you're on your knees.


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## PRR 60 (Feb 4, 2015)

jis said:


> I believe the complaint that Amtrak filed with STB is only about NS. CSX is not involved in that. The complaint is about NS's handling of the Capitol Limited between Chicago and Pittsburgh, which is entirely NS. Amtrak has not filed any complaints about the handling of the Lake Shore limited between Schenectady and Cleveland, which would be CSX, yet. Some folks think, that is partly because Amtrak's own problems on LSL are too significant for Amtrak to complain about those delays. Better to keep the sleeping dog lie.


Amtrak's STB filing was against both NS and CSX.

Press Release


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## Ryan (Feb 4, 2015)

They both responded as well:



RyanS said:


> NS fires back in two STB filings, including the gem "Norfolk Southern's freight arteries are not Amtrak's private playground".
> 
> A**holes.
> 
> ...


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## jis (Feb 5, 2015)

PRR 60 said:


> jis said:
> 
> 
> > I believe the complaint that Amtrak filed with STB is only about NS. CSX is not involved in that. The complaint is about NS's handling of the Capitol Limited between Chicago and Pittsburgh, which is entirely NS. Amtrak has not filed any complaints about the handling of the Lake Shore limited between Schenectady and Cleveland, which would be CSX, yet. Some folks think, that is partly because Amtrak's own problems on LSL are too significant for Amtrak to complain about those delays. Better to keep the sleeping dog lie.
> ...


Ah OK. But pertaining only to the Capitol Ltd. Not the Lake Shore Limited, which is ironical, since CSX seems to be much more culpable with the LSL situation than with the Cap situation.


Devil's Advocate said:


> jis said:
> 
> 
> > Better to keep the sleeping dog lie.
> ...


There is no point in trying to fight a case where a significant part of the fault is yours. It is sort of like "I am suing the guy for killing the victim, after I had already maimed the victim". Isurmise that for this reason there is careful lack of mention of the LSL in all this even though arguably CSX delays the LSL way more than it does the Cap.


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## PaulM (Feb 5, 2015)

jis said:


> Amtrak has not filed any complaints about the handling of the Lake Shore limited between Schenectady and Cleveland, which would be CSX, yet. Some folks think, that is partly because Amtrak's own problems on LSL are too significant for Amtrak to complain about those delays. Better to keep the sleeping dog lie.


Why is this? I would guess that the bulk of Amtrak caused delay is due to equipment failure, which seems to be equally distributed among all trains. Certainly, excess boarding times are trivial when talking about LD trains. Also, isn't any putzing around at Albany sufficiently padded?

What consistent severe delays have not been caused by freight interference or slow orders?


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## Ryan (Feb 5, 2015)

Last winter trains originating late out of CUS didn't have anything to do with freight interference or slow orders.


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## jis (Feb 5, 2015)

PaulM said:


> jis said:
> 
> 
> > Amtrak has not filed any complaints about the handling of the Lake Shore limited between Schenectady and Cleveland, which would be CSX, yet. Some folks think, that is partly because Amtrak's own problems on LSL are too significant for Amtrak to complain about those delays. Better to keep the sleeping dog lie.
> ...


Westbound it is actually not, given the congestion on the single track between Albany and Schenectady. Amtrak quite regularly failed to hand over the LSL to CSX anywhere near the scheduled time at Hoffmans. Ironically this problem occurred partly due to late arrival of the eastbound LSL into Albany. But I guess it is hard to establish unique chains that are complex in such arguments. Hence I suspect Amtrak just decided not to wade into that swamp and just focus on the clean case provided by the Cap.
Incidentally Amtrak's boarding practices on the Empire Corridor also keep coming up as a factor in the failure of LSL to keep time. I am not sure to what extent that is a factor and why Amtrak is either reluctant to or unable to fix the problem.


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## NE933 (Feb 5, 2015)

Yes, any rail artery is not Amtrak's or other railroads', private playground. But it is an artery that the blood of transportation life must flow, and an equation must be formulated to move people and the things we buy.


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## Train2104 (Mar 9, 2015)

Supreme Court: Amtrak is not a private entity.

http://www.supremecourt.gov/opinions/14pdf/13-1080_f29g.pdf


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## PRR 60 (Mar 9, 2015)

Train2104 said:


> Supreme Court: Amtrak is not a private entity.
> 
> http://www.supremecourt.gov/opinions/14pdf/13-1080_f29g.pdf


9-0, as well.


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## John Bobinyec (Mar 9, 2015)

Okay, so it's not a private entity. What does that mean as far as the host railroads paying penalties is concerned?

jb


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## jis (Mar 9, 2015)

Well that should improve the OTP situation, if Amtrak can keep all the wheels on and turning. 

I found this interesting tidbit in there:



> In addition to directing Amtrak to serve these broad
> 
> public objectives, Congress has mandated certain aspects
> 
> ...


Maybe it is now time for the Sunset East coalition to sue Amtrak for not meeting its legal obligation to them? Afterall what is good for the goose should be good for the gander no? Clearly the Supreme Court thinks it is not a matter of Amtrak's financial convenience. It is their obligation by law, no?


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## Train2104 (Mar 9, 2015)

jis said:


> Well that should improve the OTP situation, if Amtrak can keep all the wheels on and turning.
> 
> I found this interesting tidbit in there:
> 
> ...


I can't find this provision in the law...https://www.law.cornell.edu/uscode/text/49/24101


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## jis (Mar 9, 2015)

Train2104 said:


> jis said:
> 
> 
> > Well that should improve the OTP situation, if Amtrak can keep all the wheels on and turning.
> ...


Yeah it is curiois that they quoted that section for it. That actually comes from one or more of the several appropriation/authorization bills. Don;t remember which. Still I thought it curious that they would specifically quote that one.


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## neroden (Mar 9, 2015)

I think there's a question of standing when it comes to suing Amtrak to force it to reinstate Sunset East. :-( I'm no lawyer, but think it's likely that only Congress / the US government has standing.


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## jis (Mar 9, 2015)

neroden said:


> I think there's a question of standing when it comes to suing Amtrak to force it to reinstate Sunset East. :-( I'm no lawyer, but think it's likely that only Congress / the US government has standing.


That would be kind of funny. FRA suing itself or something like that. It would be a funny case. "Amtrak, we won't give you the money to do it, but you are legally obligated to do it. So there! "


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## Ryan (Mar 9, 2015)

PRR 60 said:


> Train2104 said:
> 
> 
> > Supreme Court: Amtrak is not a private entity.
> ...


That's somewhat surprising. (edit: the 9-0 part more so than the verdict)

It'll be curious to see what happens to system OTP in the coming weeks.


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## tommylicious (Mar 9, 2015)

One for the good guys! Huzzah!


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## Mystic River Dragon (Mar 9, 2015)

Forgive me for being obtuse, but I gather this is a good thing? That the freights will now have to let Amtrak go first?

On the other hand, does it mean that people like our friend Mica get to boss Amtrak around more?

Also, I'm confused about the Florida-Louisiana connection. I think it would be wonderful to have it again but never expected to see it. I thought Amtrak seemed glad to get rid of it, the states it would go through (except Florida) didn't want to be bothered with it, and it was completely dead. What turned things around? I know there was some vocal advocacy in northern Florida, but were there other factors as well? (I'm thinking that if there were, we could use the same tactics for a daily Cardinal!)

Thank you for all answers and input. I feel like I am taking a beginner course in the Supreme Court!


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## Devil's Advocate (Mar 9, 2015)

My understanding is that this narrowly defined verdict merely sets up the next round of litigation. We're still years away from any sort of fundamental conclusion.


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## jis (Mar 9, 2015)

Devil's Advocate said:


> My understanding is that this narrowly defined verdict merely sets up the next round of litigation. We're still years away from any sort of fundamental conclusion.


Upon further reflection I tend to agree with you.
Also Mystic.... this does not change the relationship that Congress has with Amtrak. It is what it is, and the Mica's can always do whatever they want to do. Actually of late, Mica has been surprisingly non-offensive when it comes to Amtrak.


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## Mystic River Dragon (Mar 9, 2015)

Thank you, Devil's Advocate and jis. Now I have a better understanding of this.

jis--Now that I think about it, you're right about Mica lately. I even saw a picture somewhere of him smiling at the new Winter Park Amtrak/SunRail station opening!


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## Motorcar (Mar 9, 2015)

From Justice Thomas at the end the ruling;

We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative systemthat concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.


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## Benson (Mar 9, 2015)

I sure hope that we begin to see OTP improve in the near future! The Louisiana - Florida clause is intriguing...could we see the restoration of the Sunset East? Wouldn't that be something?!?


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## Palmetto (Mar 9, 2015)

Frankly, the return of the Sunset Limited to Florida would be a boon to residents of Florida, Georgia and anyone who wanted to connect from Silver Service to the Sunset. It's a very circuitous routing if one wants to go--let's say--Orlando to Dallas.


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## Mystic River Dragon (Mar 9, 2015)

Palmetto said:


> Frankly, the return of the Sunset Limited to Florida would be a boon to residents of Florida, Georgia and anyone who wanted to connect from Silver Service to the Sunset. It's a very circuitous routing if one wants to go--let's say--Orlando to Dallas.


I was thinking it would be wonderful in the winter for those of us who never want to see snow or black ice again. Go down to Florida for a while, then all the way across to California without having to spend money for a hotel overnight in New Orleans and without having to go back up to the cold to come back down again.

It would be especially nice for retirees, semi-retirees (like me!), and people from Europe or Australia, many of whom come to Florida in the winter (I am not counting the Canadians--they are there, too, but they're pretty good with snow!)


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## MikefromCrete (Mar 9, 2015)

Restoring the Sunset East without any additional funding would mean something else would have to be cut and probably eliminate any chance of a daily Sunset.


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## jis (Mar 9, 2015)

Or Acelas make enough additional money to cover it  There is more than one way to skin such cats, if one wants to. 

If the PIP plan is followed then what we will have is a daily Eagle with a Stub to NOL or Florida or wherever.

I have heard that the NOL - Florida folks are really campaigning for a train that has good timing for that portion and is not necessarily a Sunset extension too. So who knows? If it is locally funded it will almost certainly not be a Sunset extension.


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## jis (Mar 9, 2015)

WSJ's take on the SOCTUS ruling...

http://blogs.wsj.com/law/2015/03/09/high-court-leaves-unsettled-amtrak-role-over-rail-regulations/


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## Tom (Mar 9, 2015)

So while the case goes back to the Court of Appeals, are the metrics and standards in effect?


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## neroden (Mar 9, 2015)

Devil's Advocate said:


> My understanding is that this narrowly defined verdict merely sets up the next round of litigation. We're still years away from any sort of fundamental conclusion.


This means Amtrak wins. Any win by the freights from now on (well, for a while, until the people on the courts and STB changes) is meaningless. The reasons for this are fairly subtle. In order to win, the freights have to strip Amtrak, the FRA, and the STB of regulatory authority -- a very heavy lift. With the direction this ruling is going, they won't be able to. Even if the freights get the "standards and metrics" invalidated on some other grounds, the Supreme Court has recognized explicitly that the freight railroads can be regulated to force them to provide quality passenger service *through* Amtrak -- whether they want to or not. (And that isn't dicta.) Alito even described contracts with Amtrak as a way of meeting their common carrier obligation, implying that he considers that if they didn't fulfill their contracts with Amtrak, they could be forced back into providing passenger service themselves!
Accordingly, the clause allowing the STB to investigate and decide on its own behalf whether to fine the freight railroads is on solid ground now. With a relatively friendly STB, that's a win for Amtrak service.

Will the Class I freight railroads continue to *waste stockholder money* on *frivolous lawsuits*? Very probably. I wonder if I could sue them for dissipation of corporate funds, since that's what they're doing. (It's been very hard to win such cases for the last 100 years, unfortunately.)

There's a subtle point at the end of Kennedy's ruling when he returns the case to the district court for resolution of other claims by the freights, and that's the "(if properly raised)" clause. Several of the claims were not properly raised. Expect another loss at the district court. It's possible that DC Court of Appeals will continue making up bogus arguments, but if so then the case will go back to the Supreme Court for a second smackdown. It's apparent only Alito and Thomas care about the goofy structure of Amtrak.


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## SunsetEagle (Mar 9, 2015)

I guess the only downside could be, 1/421 could arrive at LAX at 4 AM, or before! :giggle:


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## MikefromCrete (Mar 9, 2015)

neroden said:


> Devil's Advocate said:
> 
> 
> > My understanding is that this narrowly defined verdict merely sets up the next round of litigation. We're still years away from any sort of fundamental conclusion.
> ...


This does nothing but send the whole thing back to the lower courts. It will be years and years before anything is resolved. Nobody won but the lawyers.


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## neroden (Mar 10, 2015)

The attempts at delay by the Class Is are futile. If their managements have half a clue they'll see the handwriting on the wall and drop the frivolous lawsuits. (Their managements probably do not have even half a clue, based on current evidence.)


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## TT (Mar 10, 2015)

The SCOTUS ruling actually when one thinks about it is good for Amtrak AND the host railroads. The essential levels of performance for both carriers are now seemingly in the spotlight. Both carriers will have to show their stuff in producing results and working together to move trains and co-exist. This works out best for shippers and people.

Some interesting challenges ahead for all railroads serving American commerce and passenger convenience and necessity. It could actually work.


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## neroden (Mar 10, 2015)

Buffett made it clear in his last annual report that he considers it important for BNSF to serve shippers promptly and reliably, rather than delaying service and losing market share, even if this requires large capital investments.

UP has been acting the same way.

At the moment, I think priority treatment for passenger trains in the west is looking pretty good.

As for NS and CSX... I'm beginning to wonder about their management.  And the less said about CN and CP, the better.


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## cirdan (Mar 10, 2015)

Benson said:


> I sure hope that we begin to see OTP improve in the near future! The Louisiana - Florida clause is intriguing...could we see the restoration of the Sunset East? Wouldn't that be something?!?


This raises the question of what constitues a Louisiana Florida service? How often must this run? Could Amtrak fulfil the obligation with a once monthly or even less than that move using a minimal consist.

The UK has some example of such so called pariamentary trains. These mostly run sporadically and at strange and impractical hours. They are not announced in any official timetable and tickets are very difficult to buy. So not surprisingly these trains are almost always empty. But by virtue of these trains actually running, legal requirements for providing a service are fulfilled and their continued operation is apparently cheaper than jumping through the hoops that a legal abandonment would require.


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## cirdan (Mar 10, 2015)

jis said:


> Or Acelas make enough additional money to cover it  There is more than one way to skin such cats, if one wants to.
> 
> If the PIP plan is followed then what we will have is a daily Eagle with a Stub to NOL or Florida or wherever.
> 
> I have heard that the NOL - Florida folks are really campaigning for a train that has good timing for that portion and is not necessarily a Sunset extension too. So who knows? If it is locally funded it will almost certainly not be a Sunset extension.


Maybe the equipment released by the Hoosier State abandonment could find good use here?

Obviously further equipment would have to come from elsewhere, but it would be a start.


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## VentureForth (Mar 10, 2015)

cirdan said:


> Benson said:
> 
> 
> > I sure hope that we begin to see OTP improve in the near future! The Louisiana - Florida clause is intriguing...could we see the restoration of the Sunset East? Wouldn't that be something?!?
> ...


Maybe they could do what the Georgia Railroad did Post-Amtrak until 1983 and tack a coach to the back of a mixed freight!


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## xyzzy (Mar 10, 2015)

I don't think the freight railroads will roll over and play dead. The cost to them of further litigation is peanuts in the big picture, and from their point of view a fundamental issue is at stake. Wait 2 years and see if this comes back to the Supreme Court. Sometimes cases do, after the justices have remanded on narrow grounds.


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## VentureForth (Mar 10, 2015)

But on a 9-0 decision? Maybe with some tweaking of their case they can bring over a couple of converts, but 5?


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## xyzzy (Mar 10, 2015)

One never knows what was said behind closed doors in the justices' conference. But most people would say that when the Court releases a narrow opinion that explicitly leaves certain questions unresolved and then invites further litigation to resolve them, as they did in this instance, there was probably a diversity of views among justices on those questions - at least without further argument. Yes, the railroads have an uphill battle but I don't think it's insurmountable.


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## Devil's Advocate (Mar 10, 2015)

xyzzy said:


> One never knows what was said behind closed doors in the justices' conference. But most people would say that when the Court releases a narrow opinion that explicitly leaves certain questions unresolved and then invites further litigation to resolve them, as they did in this instance, there was probably a diversity of views among justices on those questions - at least without further argument. Yes, the railroads have an uphill battle but I don't think it's insurmountable.


Exactly. One tiny skirmish may have ended in a draw but this war is just beginning. There are still numerous methods and avenues for winning the greater war within the Judicial branch and if that should fail there is always the ever more beholden Legislative branch. It's hard to imagine Amtrak ending up on top when all is said and done years from now. I'm not saying Amtrak was wrong to pick this war, I'm simply saying that they outcome is far from certain and likely to go against them.


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## neroden (Mar 10, 2015)

Lest you forget, *the freights have no lobbying power*. Zero, nada, zilch. They might get a PTC extension, but only because some state governments and commuter rail lines asked for it. And the freights are shooting own goals now...

The mood of the Justices was that Amtrak should have been organized as a federal agency. If they invalidate the entire Amtrak law (which I think would not succeed), you can be sure Congress will do *exactly that*. (Votes in favor of Amtrak have been stronger and stronger.) This is the nightmare scenario for the freights, of course!


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## MikefromCrete (Mar 10, 2015)

neroden said:


> Lest you forget, *the freights have no lobbying power*. Zero, nada, zilch. They might get a PTC extension, but only because some state governments and commuter rail lines asked for it. And the freights are shooting own goals now...
> 
> The mood of the Justices was that Amtrak should have been organized as a federal agency. If they invalidate the entire Amtrak law (which I think would not succeed), you can be sure Congress will do *exactly that*. (Votes in favor of Amtrak have been stronger and stronger.) This is the nightmare scenario for the freights, of course!


What do you mean, "the freights have no lobby power." I imagine six of the largest corporations in the U.S. have plenty of lobbying power. And if the reestablishment of Amtrak as a federal agency ever comes up, the ultra conservative Republicans will fight it tooth and nail in order to end Amtrak all together. Those folks hate every form of federal power (except for gigantic military power, of course).


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## jis (Mar 10, 2015)

The trick is to make Amtrak part of the defense department


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## WoodyinNYC (Mar 10, 2015)

I'm over my depth, I'll confess. But if Congress decides that

Amtrak should not get to decide the regulations over the freights'

performance, it could give the power to the FRA, no? Then Amtrak

could propose standards to the FRA, which could adopt them

in entirety, or not.

If the haters controlled the Administration, they could deny

everything Amtrak asked for. But the price of that would be

a marked deterioration of service when haters were in power.

And conversely a marked improvement when Amtrak Joe's

political heirs held power. 

With the public reaction, the haters might have to find something

else to hate on.

The decision isn't any sweeping victory for our side, but I don't

think the freight roads have much to feel good about.


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## Bob Dylan (Mar 10, 2015)

jis said:


> The trick is to make Amtrak part of the defense department


Yeah, we could run Troop Trains attached to LD Trains like in W II, this would ensure that several hundreds of additional New Engines,Superliners, Viewliners, Diners and Equipment/Baggage Cars would be funded from the DOD and National Defense Slush Funds, er Budgets!


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## afigg (Mar 10, 2015)

WoodyinNYC said:


> I'm over my depth, I'll confess. But if Congress decides that Amtrak should not get to decide the regulations over the freights' performance, it could give the power to the FRA, no? Then Amtrak could propose standards to the FRA, which could adopt them in entirety, or not.


The FRA already has the power to set the regulations and guidelines for passenger trains OTP on freight lines. The issue is how much of a direct role Amtrak has in working with the FRA to write the regulations and set the performance requirements.
Washington Post article on the SCOTUS decision: Supreme Court says Amtrak is more like a public entity than a private firm. (article goes on to cover 2 other court actions). Excerpt on where the legal process goes from here:



> Because the appeals court based its decision on its finding that Amtrak is a private entity, it did not address other claims by the freight industry that Amtraks actions were unconstitutional.
> 
> The lower court must now consider questions about how Amtraks board is appointed and whether there are due process concerns with giving Amtrak regulatory authority over its own industry, Kennedy wrote.


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## WoodyinNYC (Mar 10, 2015)

afigg said:


> WoodyinNYC said:
> 
> 
> > I'm over my depth, I'll confess. But if Congress decides that Amtrak should not get to decide the regulations over the freights' performance, it could give the power to the FRA, no? Then Amtrak could propose standards to the FRA, which could adopt them in entirety, or not.
> ...


I don't see the need for Amtrak to have a "direct role" to get the job done, and Congress could easily fix that.

Amtrak works up its standards, mails them like a letter to Santa Claus. Soon everything Amtrak asked for will be sitting under the tree.

Maybe more due process could include inviting the freights to write a letter to Santa, too. But since they've been very, very bad, all they'll get is a lump of coal.


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## neroden (Mar 11, 2015)

MikefromCrete said:


> What do you mean, "the freights have no lobby power." I imagine six of the largest corporations in the U.S. have plenty of lobbying power.


You imagine wrong. I've been following this, and their lobbying power is very very low. They've alienated a lot of shippers, and the shippers *do* have lobbying power. The local municipalities universally hate them, and they also have lobbying power. The powerful trucking lobby fights against them...
And the casual attitude towards safety has hurt their lobbying, too. They thought they could get the PTC mandate repealed. They expended as much lobbying effort as they could doing so, for about a decade. They haven't managed to even get it extended. And they still might not!

They barely averted rate regulation!

CN and CP still have fairly substantial lobbying power in Canada; I'm not sure why the difference.

Now, they are clearly trying to rebuild their lobbying power, but they haven't been very effective at doing so. Perhaps the constant bad publicity doesn't help. Every oil train fireball is several more Representatives who don't want to be seen helping the Class Is.


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