The switch you cannot order; an ALJ takes command of UP–NS discovery; the NTSB says the DOT-111 retrofit failed too; terminals reflect their leadership

The Switch You Cannot Order.

The largest railroad merger in a generation has finally agreed on its disease.

And it comes apart on the cure.

On the disease, the room is very nearly unanimous — members of Congress from both parties, Republican attorneys general and legislative leaders across more than twenty states, and the Board itself, which accepted Union Pacific–Norfolk Southern in May, then held it in abeyance. This consolidation has outrun the operating reality beneath it.

The competition deficit is no longer in dispute.

The cure is where it breaks. The prescription is reciprocal switching, written into the deal as a condition: drop a second carrier into the captive shipper's plant, and the shipper is captive no more. I worked the captive end of this — the Bayer plant, the Union Tank facility, the Kraft Heinz dock — and a switching order drops no one. It presupposes a second railroad already standing in the terminal, already holding the interchange, already running its own rail to where the freight has to go: the exact thing forty years of consolidation removed. When CSX and Norfolk Southern faced it with Conrail, they did not write an order. They built a railroad.

You can order the switch.

You cannot order the switching district.

This week's full argument — why the cure the room is reaching for cannot be compelled, and why Union Pacific's own contract treats imposing it as grounds to walk from eighty-five billion dollars:

Into the Night

The world at large may rest at night — but not completely, for if ever there is an industry that epitomizes "24/7," it is the railroad. There is no distinction between "night" and "day" in the world of railroading. Night is simply the other half of a 24-hour day in which to move freight down the line, closer to its destination.

The deltoid beam of a westbound BNSF mixed manifest cuts a blazing swath through the darkness as the crew performs a roll-by inspection of a unit covered-hopper train at Algoma, Idaho — arguably one of the busiest, if not most congested, sections of BNSF's physical plant. And despite the bottleneck between Sandpoint, Idaho — just a couple of miles east of Algoma — and Spokane, some 56 miles to the southwest, the orchestration of train movement is conducted with arrhythmic, staccato harmony by its dedicated workforce: from the dispatcher to the crew driver; from the train crew to the track inspector; from the MofW worker to the signal maintainer; from the locomotive mechanic to the special agent — and every other employee who ensures its trains never stop moving any longer than it takes to let another pass.

(17Nov16 ©)

Complete, Not Cleared

On FD 36873, and the nine questions the Board set before the clock.

On the twenty-eighth of May the Board did the thing that reads, to a casual eye, like progress, and to a practiced one like a held signal: it accepted the Union Pacific–Norfolk Southern application as complete, and in the same unanimous decision refused to start the case. The merits, the procedural schedule, the environmental review — all of it went into abeyance. Complete enough to consider. Not developed enough to evaluate. There is a difference, and the Board put the whole transaction inside it.

What stands between the applicants and a schedule is a list. The Board ordered supplemental information on nine matters and set a date: July 27. Read the nine and the case announces itself — enhanced competition, access for the 2-to-1 and 3-to-2 shippers, the service-assurance plan, the diversion analysis, market-share projections, the downstream effects on every other carrier. None of it is housekeeping. These are the questions the merger turns on, and the Board has told the applicants to answer them before the room is asked to weigh in.

Two smaller rulings ride inside the same decision, and both cut against the applicants. The Board denied their motion to lift the bar on ex parte contact — the off-record channel stays shut, the case stays on the record where anyone can read it. And the abeyance, the decision is careful to say, does not halt discovery. The clock that governs the schedule is paused; the clock that governs the work is not. The file keeps building while the calendar waits.

The environmental review paused with everything else, but its shape is set: a full Environmental Impact Statement, at least twelve in-person meetings before it is done — the long road, not the short one. And the body that will weigh all of it is still forming; a new member took the oath on the fifth of June. The bench that rules on the first transcontinental is not the bench that received it.

None of this is a no. None of it is a yes. It is a Board declining to be hurried into either — accepting the paper, withholding the verdict, and handing a merger on a deadline the one thing it cannot manufacture: more questions, and a date to answer them by. July 27 is the applicants' to meet. Nothing schedules until they do.

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The Record Doesn't Wait

On Decision No. 23, and the judge who took discovery in hand.

The same week the argument arrived, so did the proof. On June 18 — Decision No. 23 — the administrative law judge over discovery, Jenifer J. Soulikias, granted in part and denied in part the competing motions on the discovery guidelines and entered the guidelines herself. The Board paused the schedule in May; the judge has not paused the record. The applicants asked her to bound it — cap written requests at fifty, or run discovery only through July 27, the date their supplemental filing is due. She refused both: abeyance does not halt discovery, and a record this size will not be walled by number or by calendar. She declined, too, to hold expert depositions to the seven hours the parties set for fact witnesses — the facts and opinions behind an expert's statement are made to be probed — and left the hours to meet-and-confer. Over CPKC's lone objection, she adopted the applicants' one-deposition rule: a witness recalled only on a showing of good cause.

Then she tightened her own grip. On her own initiative she wrote a bi-weekly discovery conference into the guidelines — every other Friday from June 26 into at least December — and opened it to parties with no stake in the dispute at hand. BNSF's second motion to compel and CPKC's she held to that June 26 conference, with a plain warning: narrow the custodial fight, or she resolves it herself, down to the search terms and the custodians. The calendar waits. The work does not.

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Off the Record, cont.

On EP 782, and the channel that stayed shut by a day.

The general rule moved while the merger waited. The Board's proposed revision of its ex parte rules — the AAR petition that opened this file — reached a notice of proposed rulemaking in April, and the comment window closed on the twenty-ninth of May. What it proposes is narrow and revealing: in informal rulemakings, permit the off-record meeting after the comment period, on the condition that its substance is promptly disclosed on the public record. The loosening rides; disclosure is the toll. And none of it reaches the merger desk — the bar there held on the twenty-eighth, the day before these comments closed. Two channels, one Board, one week. The record will show which one it chose to keep shut.

Railroad Terminals Reflect Their Leadership

You feel it the moment you step out of the truck — not the weather, the temperature of the place. Some terminals feel like home. Others like courtrooms. A few, open-air prisons.

That pulse is no accident, and no quirk of personality. It is set at the top and echoed down the ranks — morale or fear, esprit de corps or silence, all of it the direct reflection of how a place is led. The terminal does not lie. It always shows what kind of leadership it is under.