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Tuesday, October 31, 2017

A Legal Case Against Storing Tank Cars In Adirondacks

 

Tank cars on the tracks near the Boreas River.

Governor Andrew Cuomo is opposed to storing empty tank-cars on tracks in the Adirondacks. His state agencies have raised questions about it. Environmental groups are strongly against it.

So what can they do about it?

Iowa Pacific Holdings, the company storing the cars, contends that the federal government has jurisdiction over railroads and therefore the state can’t stop it.

But Neil Woodworth, executive director of the Adirondack Mountain Club, disagrees.

Woodworth, who is a lawyer, concedes that a state cannot interfere with railroad transportation, but he says storing tank cars has nothing to do with transportation.

“Storing railroad cars indefinitely is certainly not promoting railroad transportation—especially on the main line; it’s the exact opposite,” Woodworth said.

To date, Iowa Pacific has moved more than fifty tank cars onto a siding along the Boreas River in the town of Minerva. Woodworth estimates that the siding could accommodate about 230 cars. Any more would have to be stored on the main line—which Woodworth says would open the door to a legal challenge under Article 14, the clause of the state constitution mandating that the Forest Preserve “be forever kept as wild forest lands.”

We’ll get to that legal theory in a moment (it involves some complicated history), but what if Iowa Pacific stores cars only on the siding? Could the state take steps now to force the company to remove the cars?

Woodworth thinks so.

 Wild, Scenic, and Recreational Rivers System Act

 Aerial photos posted by the Explorer show that the tank cars are sitting near the Boreas River, which is classified by the state as a Scenic River. The Wild, Scenic, and Recreational Rivers Act requires landowners to obtain a permit for any “new land use” in designated river corridors.

Woodworth contends that storing tank cars on the siding constitutes a new use within the Boreas corridor and thus requires a permit from the Adirondack Park Agency. Furthermore, he asserted that the APA could deny the permit for railcar storage.

Photo by Brendan Wiltse.

“It’s a business activity that is not consistent with the character and protection of the natural resources of the river corridor,” he said.

Like other critics, Woodworth likens the storage of empty tank cars to a “junkyard.” He described the cars as “obsolete” and noted that Iowa Pacific intends to store them indefinitely. “They are being sent off to the graveyard to just sit there,” he said.

No doubt Iowa Pacific would take issue with that characterization. Ed Ellis, the company’s president, said the cars will be stored only until they’re returned to service or scrapped—but he hasn’t said how long that will be.

“We hope they are in storage for a long time, as the revenue provides financial support for maintaining the line,” Ellis told Warren County officials in an email this month.

Article 14

 Ellis also has said that Iowa Pacific may store up to two thousand cars on the rail line. This would require more than twenty miles of track, meaning the company would have to use the main tracks for storage.

Woodworth said this raises legal questions relating to Article 14. To understand them, we first need to review a little history.

The federal government established the thirty-mile rail line during World War II to ship titanium ore from a mine in Tahawus. The corridor crossed thirteen miles of Forest Preserve as well as private land. Using its power of eminent domain, the government acquired an easement set to expire in 1962. The corridor then was supposed to revert to its original owners, including New York State. Instead, the General Services Administration used eminent domain to extend the easement for another hundred years, until 2062.

In 1989, GSA sold the easement to NL Industries, the owner of the mine. Several years ago, NL sold it to Iowa Pacific. Woodworth said the easement specifies that if the line ceases to be operated as a railroad, the corridor must be returned to its original owners.

When Iowa Pacific acquired the line, it hoped to transport waste rock from the mine, but so far the company has been unable to find customers. If it clogs the line with empty cars, Woodworth said, it will be impossible to use it for transportation. In essence, he contends, the line will cease to be a railroad—in violation of the easement.

In fact, the corridor has not been an active railroad for many years. Woodworth said he’d like the state to initiate condemnation proceedings to reclaim its Forest Preserve lands. (The siding is on Forest Preserve.) If the tracks were removed, he said, the corridor could be converted into a recreational trail.

“It could become one of the premier rail trails in the Northeast because of the beauty of the area,” he said.

The Friends of the Upper Hudson Rail Trail has been advocating this for years.

Ellis said the tank cars were emptied, cleaned, and inspected and pose no threat to the environment. Even if that’s the case, Woodworth insists the cars don’t belong in the Adirondack Park, a vacation destination celebrated for its wild character. “It shouldn’t be used as a junkyard for derelict railroad cars,” he said.

Iowa Pacific owns the Saratoga and North Creek Railway, a tourist train that runs between Saratoga Springs and North Creek on other tracks, leased from Warren County and the town of Corinth. The tracks where the company wants to store tank cars are located north of North Creek.

 

Phil Brown

Phil Brown has been editing the Adirondack Explorer since 1999. When he isn't at his desk, he's usually out hiking, paddling, skiing, or doing something else important. You can follow his adventures and his musings on the Adirondacks in the Explorer and on this blog.

17 Responses

  1. Curt Austin says:

    It is vitally important, if this corridor is to become a trail, that a very specific procedure be followed during abandonment procedures. The process is administered by the Surface Transportation Board, and it includes something known as “Railbanking”. Without it, the corridor on private land reverts and cannot be used as a trail.

    There are those who like the SLMP/UMP process, but holy smokes it can mess up the development of a trail. I’d like this to become a trail during my lifetime – for that, I don’t want the corridor deeded over to NYS. Please, make sure it is transferred to some other entity, which will then be able to proceed under federal rules administered by federal courts.

    I fear that the state might do something clumsy, lose the ability to invoke Railbanking, and poof! the corridor legally disappears. Some in the DEC know about this – an agreement was reached with Iowa Pacific to cooperate with Railbanking should they abandon the line. This was negotiated when Iowa Pacific applied for federal jurisdiction.

  2. Paul says:

    But the storage is only temporary (legally speaking even if you think that is a ruse). So that seems like a legitimate RR use. These rails are not used for regular transport in the winter right? Is that a violation of the easement? Either way it would be tied up in court for a very very very very long time.

    • Tony Goodwin says:

      Neil Woodworth state that 230 tank cars could be stored on sidings. The siding where the cars are currently stored can only hold about 20 cars at most. There are some stub tracks at the Tahawus mine that could hold a few more, but 230 cars would inevitably have to block the main line.

      I find Neil Woodworth’s arguments compelling given the original documents he has found pertaining to the creation of the line during WWII. Time, and probably a court, will finally tell; but I don’t think this storage scheme will continue to exist for too much longer.

  3. Phil Brown says:

    As I understand, the line has not been used for freight or passenger transportation in any season for many years. Hence, Woodworth argues that the state could make a case for condemning the corridor.

    • Paul says:

      Why? Is there a time limit on the easement terms? Now they have cars in/on there, seems like a RR use? A ugly one – but one.

      • Phil Brown says:

        As Woodworth explains it, the easement was intended to keep the line open for transportation of materials from the mine. Storing cars on the line is not that.

  4. Keith Gorgas says:

    My understanding is that if legal abandonment is filed for, any railroad in the country has the right to lay claim to the ROW within 30 days.

    While I am a whole hearted supporter of keeping any rail lines in use or potentially in use for transportation, I also understand not wanting the rails to be used as a junk yard.

    Clear objective reporting will serve the public best. Elevating a visual nuisance to environmental disaster may be good propaganda but really clouds the issues.

    My sense is that there is an elegant solution somewhere out there, if all parties act and think in good faith.

  5. Caroline says:

    What about violating local town laws? Specifically the Junk storage laws in Minerva. The quantity Iowa Pacific is already storing is in violation and would require a Junk yard license issued my the Town of Minerva. No such application as been submitted. In order to apply a papa review must be submitted also. Which I understand Iowa Pacific has not contacted the APA.

  6. Mark says:

    I am a proponent of the rail trail and the process of “rail banking” which Curt has explained thoroughly. This is a complex legal issue of Federal jurisdiction. Any legal challenge comes down to legal interpretation and the decision of a judge. Find a sympathetic judge and one may get a favorable decision…until overturned on appeal. While I respect Woodworths’ assertions of his opinion of how to interpret the law (and I enjoy a legal debate as much as anyone else), I think that no matter how much money may be spent on legal challenges, an excellent case may be made that storing railroad cars on tracks is as much a part of the railroad industry as moving railroad cars loaded with goods. The Adirondack Park is well protected by state law, but this will come down to a Federal determination not covered by NYS law.

  7. Jay says:

    I agree that the area is and always will be beautiful with or without the railroad. The tank cars may be an eyesore in some locations, but the car storage is a vital part of the IPH company and more importantly the Saratoga and North Creek Railway line. The scenic passenger rail line operating out of North Creek, NY is very much alive, and brings jobs and revenue to an area that does need it. Maintaining a railroad and employing a staff costs money. If passenger ticket sales are lacking, the railroad has every right to generate income by legal means. Like it or not the railroad is governed by Federal law. This is not the first time this has happened in an area, and will not be the last. Federal law has seen this before, and has already written laws to address these situations. Any railcar on railroad property is considered to be in transit at all times as defined by Federal law, so any argument that storing cars is not part of being a railroad is irrelevant. There are more railroad cars in the United States than there are yards and facilities to store them in. Without companies like IPH to take these cars for short term storage, the rail industry could not function. Saratoga and North Creek Railway are doing what they need to do to keep providing scenic railroad trips along the Adirondacks, and are doing so legally.

  8. Adirondack Lady says:

    Having lived within the park my entire life, I remember the concerns when the Adirondack Park Agency was formed that eventually the State of NY would make this area so difficult for people to live and to thrive year around that our population would decline to a point where only the essential services were available. It was back then difficult for families in rural areas to prosper 12 months of the year. Here is a company offering jobs to people, bringing people into communities who support local businesses, and people who are concerned about the environment are telling them how to run their business. These cars harm no one. Not now, not in the future.Declining populations, loss of businesses, low wages all contribute to lower quality of life, which will eventually see all but a few communities remain. You will have Lake Placid, Lake George, Saranac Lake, but the small outlying rural communities will disappear. Exactly as predicted years ago.

  9. carey says:

    Here in Santa Cruz Iowa Pacific stored more than its allowed railcars (tankers). They claimed it was not storage, but “freight in transit).
    see:
    http://www.santacruzsentinel.com/general-news/20170724/iowa-pacific-fails-to-pay-for-santa-cruz-county-polar-express-rail-car-storage

    You are not alone and it is happening nationwide. I’ll check back to see if anyone is interested in more info from me.

  10. Harvey says:

    A dumb question: What is Iowa Pacific getting out of this? Is it merely avoiding the cost of disposing of waste?

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