The Supreme Court just fired the referee - the Board that decides the merger loses its independence; a railroad built to shrink promises growth it can't deliver; and the switch never ordered in forty years

The Bloodless Battlefield: A Railroad Built to Shrink

A loaded train is not a number. It is a mile of assembled consequence — a crew hired and rested, locomotives fueled and not stored in a desert string, a siding long enough to hold the meet, a yard with room to take the train apart. Subtract any one of those and it dies on the main, and everything behind it dies with it.

Union Pacific and Norfolk Southern have told the Surface Transportation Board that their $85 billion union will pull 2.1 million trucks to rail — seven new intermodal lanes, six new manifest trains, growth. Their own chief financial officer calls the deal "about growth," not the productivity cuts of mergers past.

Then read their filings. For ten years these two railroads engineered themselves — deliberately, and proudly — not to grow. A third of the workforce, gone; the locomotives run down to desert storage; the classification yards gone dark, Hinkle to Allentown — all of it fed to the operating ratio. And now they concede, in the same filing, that they "do not currently have sufficient capacity to support the projected traffic growth."

You cannot crew a train with an operating ratio. The freight is coming — the question the application will not answer is who is left to take it.

Bluestem Benediction

Somewhere between, but nearer the rising like a rough-hewn psalm from the basalt and pine of the Inland Northwest city of Spokane with its pulse tethered to the steel arteries of its kingpin railroads and the born of saw and sawdust city that clings to the edge of the world like a dream half-remembered named Seattle, each rail-rooted jewel christened in native echos, there, here, lies Bluestem—a name whispered more often by the ever present wind than man, local or otherwise, flimsily nestled on the bleached edge of the Palouse, where the gentle grainlands yield to the grim, gouged scars of the channeled scablands; where the land itself seems suspended between muted memory and merciless modernity—more myth than map.

This is not the heart of the Palouse, but its periphery—its forgotten vestibule—a threshold between fertility and desolation, between history remembered and history swept away.

In the hush of this brewing, belligerent boreal, a galvanized-steel-sheathed automotive train snakes westward like a half-remembered hymn—three orange BNSF units moving made-in-the-Midwest automobiles across the widening lonesome, where the rails resonate louder than the immigrant voices that once dared call this place home. The engines, descendants of Hill's empire, do not merely pass through—they proclaim, in strength and steel, the continued pulse of commerce along a corridor carved in defiance of topography and time.

These rails—this railroad—were driven not just through mounds of slackwater sediments and jumping that obstinate 163-mile-long intermittent trickle aptly called Crab Creek, but through history itself—terra incognita tamed by the tenacious reach of the Great Northern, an empire pressed westward with ambition equal parts arrogance and audacity, leaving behind a trail of towns like Bluestem, whose futures failed to flourish, leaving only wraiths drifting in the grain-scented wind.

The land here is brutalist by divine design—scoured by cataclysm, not sculpted by time—for it was the great Missoula floods that thundered through this region millennia ago, tearing soil from stone and leaving behind a labyrinth of coulees and erratics that cradle Bluestem like a half-closed, calloused hand.

Frost feathers the sagebrush and sod, painting the high plains-esque scene with a patina of pallor, while derelict dwellings droop with quiet indignity—their skeletal structures stubborn against time's relentless erasure, their frames still speak highly of the labor of those who once dared to give root to divine immortality in the presence of mortality.

In deed alone the hardy survived—ein Volk of Lutheran grit and sun-seared skin—skilled farmers of wheat, of bread-baking, grain-as-grace German settlers, who raised barns and sang Baptist hymns beneath skies and stars that rarely softened, and whose harvests came only to those who outlasted the wind eternal.

Indeed, though their bones may have been returned to the earth over which they prayed and sweat and bled, they—those Gott unser Herr-fearing brethren, Amerikafahrer—sowed permanence into the wind-swept impermanence of their adopted, Promised Land.

And there, that collapsed grain crib crumpling like forgotten scripture beneath a smoldering sky, while the elevator—solemn, stolid, and monolithic—casts its silent shadow, a sundial for the dead, marking hours no longer counted and seasons no longer sown—at least, not by hand, nor by hymn. The wheat still rises here, obedient to mechanized choreography, but the fields are orphaned. The men who once sowed them, sweat-soaked in sacred rhythm are gone, and with them, their stories.

Everything here is on the cusp of collapse or consecration, for what remains—of Bluestem—may rot, but it may also rise in reverence, contingent on the eyes that still see and the stories that stoically survive.

Vergänglich, Germans say—transient, yes—but this landscape does not merely vanish; it varnishes into myth, its marrow merging with memory, and its silence speaking louder than sirens, slogans, even sorrow. Each image made here is an act of remembrance and a quiet act of resistance—a resuscitation against the tyranny of forgetting—resurgam.

This image is not flippantly borne of selfish, indifferent expectations, but with reverence rising—for the forsaken, the frostbitten, and the forlorn specters of Bluestem—of those revenants whose hands built what history forgot, and whose footprints faded too fast, whose presence still lingers like St. Helen's ashes. Here, amidst sage and silence, the rails still sing—if not for you, then for those who remember what the rest of the world never knew.

Yes, Bluestem still feeds, but it no longer remembers.

(26Nov19 ©)

The Independent Referee, Fired

Rail labor runs on neutrals. When a carrier and a craft reach the end of their arguing — a man dismissed, a work rule contested, a day's pay claimed and denied — the matter goes to a referee who belongs to neither, and both sides live by his ruling for one reason only: neither side can fire him. That is the whole of his authority. Not his wisdom — his independence. Let one party hire and dismiss the hand that decides, and the decision stops being a judgment and becomes an instruction wearing a judgment's robe.

The Surface Transportation Board is the neutral for the whole industry — the referee between one railroad and the next, between the railroad and the shipper with nowhere else to load, between the merger on the table and the country that has to live with the answer. And on a Monday at the end of June, the Supreme Court reached into that arrangement and cut the one wire that made the referee a referee.

In Trump v. Slaughter, decided the twenty-ninth of June, the Court overruled a precedent that had stood since 1935 — Humphrey's Executor, the decision that let Congress build agencies whose members a President could not fire at will, but only for cause. That wall is down. The members of the independent agencies now serve at the pleasure of the President, removable on a morning's notice for any reason or for none. The Court left one board its shelter — the Federal Reserve, whose independence the markets will not abide losing. It did not extend that shelter to the Surface Transportation Board.

Read the omission the way you would read a switch lined against you. The referee for the railroads was not thought important enough to protect.

Regular readers know the first half of this. I wrote last time that the Board keeps no judge of its own — that when the hard questions come, it borrows a hearing officer from another corner of the government, because the agency Congress built to be the railroads' own forum no longer stocks a bench. That was the borrowed gavel. This is the second beam. The Board does not own the gavel, and now it does not own its seats — hollowed of its bench and hollowed of its independence, the same institution thinned from both ends in the same season.

And it lands now, not in some seminar on administrative law, because the Board is at this hour deciding the largest railroad combination in the history of this country. Union Pacific and Norfolk Southern — eighty-five billion dollars, the first true transcontinental — sit before it under docket FD 36873, accepted for review and held in abeyance while the applicants answer the supplemental questions due the twenty-seventh of July. Discovery is live; the borrowed judge runs it.

Now set beside that the thing the ruling changed. The members who will weigh the merger — who decide whether the conditions hold, whether the promises bind, whether the captive shipper gets the switch or the brush-off — now hold their seats at the pleasure of a President who has said, out loud, that he would like the government to take a stake in the combined railroad. Union Pacific's chief executive waved the notion off; the railroad, he said, does not need anybody's help. Waved off or not, the interest is on the record. The one man who can now remove a Board member at will has told the country he has a side in the thing the Board is judging.

I am not going to tell you the fix is in. I am going to tell you something narrower and harder to unsee: the structure that guaranteed the fix could not be in is gone. Whether a hand ever reaches the scale, the hand is, for the first time in ninety years, lawfully free to.

Give the other argument its full weight, because it is not small. The case against agencies built like this one is a case about democracy, not railroads: officials who wield real power over the economy are not elected, and for ninety years they have been insulated from the one official the voters do choose. A serious person can hold that view, and many serious people do. But grant the whole of it, and you have won an argument about the Federal Trade Commission or a rulemaking shop drawing regulations for the general run of the economy. Carry that victory down the hall to a tribunal sitting in judgment on a single eighty-five-billion-dollar transaction between two named companies, with a third of the nation's freight network riding on the conditions, and the abstraction grows a thumb. One case is about who writes the rules. The other is about who wins the hand being dealt on the table right now.

The man who held one of those seats until ten months ago said it plainer than I can, on the record. Robert Primus — removed from the Board, and neither quiet nor bitter about it — called the ruling "a significant and lasting blow to our nation's independent regulatory institutions, including the Surface Transportation Board." Board members, he wrote, will now serve under "the Sword of Damocles," and "the proverbial thumb on the scale is now present and potentially permanent." Ask who wins, he wrote, and the answer is the President and those who follow or fear him; ask who loses, and the answer is the whole freight network, the supply chain, and the country. He is a stakeholder of record, not a commentator — a man who sat in the seat, naming what it feels like now that the wire is cut.

Return, at the end, to the one who always pays. The captive shipper — one plant, one siding, one railroad it cannot escape — walks into this proceeding with what it has always had and nothing more: the record, the filing, the promise written down. The borrowed judge can force the giant to show its work. But the judge makes findings; the Board makes the decision. And the Board, as of the end of June, makes it under a sword.

They keep no judge. Now they hold no certain seat. The gavel is borrowed and the bench can be cleared, and the scale that weighs the largest merger of our working lives can, for the first time in ninety years, be lawfully touched by a hand with a stake in the weighing.

Maybe no one ever reaches for it. Maybe the members rule precisely as they would have, and the record carries the day. But we will not again be able to say, with a straight face, that it could not have gone otherwise.

The field will read the call when it comes — and it will read it knowing what was taken out of the room. It always does.

Taming Toxicity with Leadership Grit

A turn from the docket back to the deck. Leadership isn't a policy binder — it's the grit to hold a crew together when the culture turns toxic. This week's read, from The Code of Railroading.