Eighty-nine service days, then thirty-three, while the carloads went up; three motions ask the Board to deny the merger outright; and the applicants are confident it will never need to be invoked

A Floor at the Level of the Failure

The applicants have offered captive shippers a service floor: 85 percent on spot and pull, with switching rights below it. The floor is real, and it is conditional. Read the conjunction and the floor moves.

Industry Spot and Pull is not a phrase that survives contact with a yard. It is a percentage, and what it measures is whether the cars a railroad said it would set out got set out, and whether the cars it said it would pull got pulled, on the day it said it. Anyone who has run a local knows the number is honest in one direction only.

In Finance Docket 36873 that percentage is now the hinge of what the applicants offer the shippers who have nowhere else to go. On 27 July they filed four hundred twelve pages in response to the Board's Decision No. 21, filing 311848. Inside it is the Targeted Access Program. A sole-served customer in a terminal area qualifies for reciprocal switching if its Industry Spot and Pull "had deteriorated from pre-merger levels and is below ... 85 percent."

Read the conjunction. Not or. And. Both, or nothing.

Nothing is buried. The applicants state it four separate times in the same filing, the same way every time, and the operative program text at Appendix A section 2.3 states it back from the carrier's side of the table as a disjunction: the carrier meets the standard if the customer's ISP is over 85 percent, or is not lower than that facility's own pre-merger average. The carrier fails only when both prongs fail. Section 2.2 does the identical thing to Original ETA at 70 percent.

What the conjunction does is simple enough to say in one line. The floor catches shippers who fall. It does not catch shippers who were already on the ground.

Take two captive customers of the merged railroad, same commodity, same terminal. The first ran 90 percent before the merger and drops to 84. Deterioration shown, below threshold, eligible, and the program works exactly as advertised. The second ran 40 percent before and runs 40 after. Less than half the stated standard, every week, forever. He cannot show deterioration, because nothing deteriorated. The railroad has met the standard as to him at forty percent.

That second customer is not a hypothetical this week. Louis J. Grasmick Lumber Company of Baltimore, forty-six years on the same rail-served street, sole-served, filed its service log into the docket on 12 August, filing 311924. Service days at the facility: 89 in 2021, then 71, then 53, then 57, then 48, then 33 through 11 August of this year. Over the same span the volume went the other way, 145 cars in 2022 climbing to roughly 172 annualized now, which the company calls its fastest pace in more than a decade. Demand up. Service down. On 16 July, by the company's account, its railroad wrote that it is "currently unable to consistently support twice-per-week service" at the facility and that it would "completely understand if you need to convert to a truck."

Read the pronoun. Not the company. You.

The applicants close the program section by saying they are confident it will never need to be invoked.

RAIL EQUITIES CLOSE WoW YTD Union Pacific UNP $297.79 +0.82% +28.73% Norfolk Southern NSC $337.85 -1.35% +17.02% CSX CSX $50.14 -1.10% +38.31% Canadian National CNI $127.70 +1.03% +29.18% CPKC CP $93.92 +4.07% +27.56% Wabtec WAB $297.98 +0.93% +39.60% Greenbrier GBX $46.00 -3.52% -1.58% close 13 AUG 2026 RAIL TRAFFIC WEEK vs 2025 US carloads 231,268 +1.8% US intermodal units 295,356 +4.1% Combined 526,624 +3.0% YTD carloads (31 wks) 7,042,764 +2.7% YTD intermodal (31 wks) 8,713,571 +3.8% AAR week ending 08 AUG 2026 ENERGY AS OF WTI Cushing spot $84.77/bbl 11 AUG Henry Hub spot $2.79/MMBtu 11 AUG Diesel, US retail avg $5.257/gal 10 AUG US coal production 10.506M s.tons 25 JUL -1.4% y/y GRAIN, cents/bu SETTLE Corn Sep 26 448.00 Soybeans Nov 26 1182.25 Wheat CBOT SRW Sep 26 652.75 Wheat KC HRW Sep 26 720.50 Wheat MGEX Sep 26 669.25 settle 13 AUG 2026

Force Majeure

Hartline, Washington, before first light, 30 December 2016. The photograph above was made minutes into a war older than the railroad.

Before breakfast-o'clock, temperatures tumbling into inhumane depths, when a man can scarcely feel his digits: ditch lights reach into the darkness and find Conductor Gary Durr wading drifted and drifting snow to hold a job briefing with his Engineer, Dave Reagan, and to escape, briefly, into the relative warmth of the cab while they assess the situation and plan the next few moves. Railroaders have been at war with the elements for generations. There is nothing extraordinary about this scene. That is the point of it.

It is one night's glimpse of the perpetual campaign between man, his machines, his, a la Nietzsche, indomitable Will to Power, and what the lawyers call force majeure. To wit: frozen switch locks. Switches compacted and snowed in, so that throwing one means throwing your back, all your living and dead might, into bending frozen steel to your will. Footing bad where it exists at all. Air hoses, and the air that passes through them, frozen unbendable and impassable. Over it all the mental and physical fatigue, while every move still runs to a detailed, sequential plan: switches lined, handbrakes set, derails dropped, cars properly spotted, men working between unaired cars and 200-plus-ton locomotives. These men have each other's six every single step of the way, because any lapse, any deviation, any miscommunication is consequential. The demand for unflagging concentration is nothing short of supreme as the wind knifes its icy blades into any exposed skin and through as many layers as a man can wear, and whatever romantic notion of railroading he carried out here leaves him as quickly as the boreal vacuum sucks the warmth from his body.

Hartline that winter was a grain town doing a grain town's work, its elevators butted tight between two crossings, the branch hauling its share of the 157 million bushels Eastern Washington had grown that season. Nine winters have gone since the frame above was made. The railroad has changed hands since; the war has not changed at all. Cold this deep does not care whose name is on the lease. It tests the crew, the plan, and the plan behind the plan, and the only force majeure clause that ever held out here is two men who have each other's six.

The Week the Question Got Filed

Three motions for summary denial, a five-page letter to twenty-three Senators, seven state attorneys general, and 580,000 pages produced in the basement.

No decision was served in FD 36873 this week. The most recent remains Decision No. 24 of 28 July, and the abeyance holds, environmental review included. But do not mistake held for quiet. A motion landed this week that asks the Board to end the case at its threshold, the Board itself wrote Congress, and the discovery machine ground on underneath. All of it is worth reading closely, because these are the weeks where the record gets built.

On 4 August all four Board Members signed a five-page letter to twenty-three United States Senators. It confirms the proceeding remains in abeyance, that the applicants' supplemental information of 7 and 27 July is under review, and then it does something a status letter did not have to do. It recites the 2001 merger rules' own standard back to Congress: conditions that "not simply preserve, but also enhance, competition." And it cites the CP-KCS decision for the New York Dock framework, up to six years of full wage protection, moving allowances, and preferential hiring. A Board that wanted to say "we are reviewing the filings" could have said so in a paragraph. This Board chose to remind twenty-three Senators, and every party reading the docket over their shoulders, which rulebook governs and what employee protection already looks like. Nothing in it is new law. All of it is emphasis, and emphasis from a unanimous Board is worth logging.

Two days after that letter, on 6 August, the threshold question got filed three separate times. Five shipper organizations moved together: the American Chemistry Council, the Alliance for Chemical Distribution, the American Fuel and Petrochemical Manufacturers, the Fertilizer Institute, and the National Industrial Transportation League. BNSF filed its own motion. CSX Transportation filed a third. All three ask the Board to deny the amended application outright, on the ground that the applicants have never cleared the threshold, the prima facie showing that the evidence submitted is sufficient on its face before the merits are ever reached. Canadian Pacific Kansas City filed companion comments on the same question the same day. The chemistry council's chief executive put the objection in one sentence: the applicants have "failed to show how this merger would enhance competitive rail service." Enhance. The same verb the Board had just mailed to twenty-three Senators. Whether the motions succeed is one question. What they have already done is another: they take the standard the Board recited as emphasis and hand it back as a pass-fail exam with a filing date.

BNSF's ground is the applicants' centerpiece. Committed Gateway Pricing, its filing argues, "does not enhance competition because it does not create a single new routing option or give any shipper access to a railroad that it could not already reach." Three carriers and the shippers they compete to serve do not often walk into the same docket on the same day asking for the same ending.

The week did not stop there. On 11 August seven state attorneys general wrote the Board jointly, from Montana, Iowa, Kansas, Florida, North Dakota, South Dakota and Tennessee, arguing the revised application fails the same prima facie test even after the July supplements, and aiming at Committed Gateway Pricing in particular. On 12 August four former senior federal antitrust enforcers filed comments in their individual capacities, and they filed on the applicants' side of the question: the rival railroads' complaints, they write, raise concerns of increased concentration and higher prices, "both of which would seem to benefit competitors and therefore raise questions about the pretextual nature of their complaints." Read that sentence next to the three denial motions and you have the shape of the fight. The competitors say the applicants have shown nothing. The former enforcers say the competitors are not complaining about what they claim to be complaining about. Nobody in that exchange is talking about the captive shipper in Baltimore.

The applicants' side of the week was arithmetic. Their discovery status reports count 413 discovery requests received and, by their 10 August status report, more than 580,000 pages of documents and more than 1,800 gigabytes of data produced. Read the inventory list rather than the totals. Reciprocal switching data. Interchange commitments and waivers. Trip plan compliance. Buffer capacity. Blocking plan compliance. Labor letters of understanding. That list is a map of where the opposing parties are digging, and every shovel is in the operating department.

And on 4 August the applicants opposed CPKC's motion to compel, reporting that a statistical sample of CPKC's highest-hit search terms produced zero additional responsive documents, and noting that Union Pacific negotiated custodial search terms with every non-applicant railroad "except for CPKC, who refused to participate in negotiations." Whatever the Board makes of the sampling argument, the pattern is now unmistakable: of all the railroads at this table, CPKC is the one that came to fight.

The applicants have not answered the denial motions as of this writing, and the Board has set no deadline for them to. On the shipper associations' April motion the Board ordered a reply in thirteen days. Nothing equivalent has issued this round, and that silence is its own datum. Meanwhile the Senate confirmed Karen J. Hedlund to a second term as a Member of the Board on 7 August, which settles one more variable: the panel this record is being built for. The record is being made in the basement this month, not the courtroom.

We Are Not Yet Dead

The economists have a name for money you can't get back: sunk cost. The rational man, they teach, walks away from it. The rational man never built anything.

I cut my teeth on a branch line in the wheat belt in the early eighties, Burlington Northern days, building consists of old Geeps and covered wagons on the graveyard shift, and I wasn't even an employee of the railroad. Thirty-some years later I came back to that same stretch of country to run trains on it. The work was the code: warrants copied word for word and read back to the letter, handbrakes set until the chain stretched tight, an engineer alone in the cab and a conductor leapfrogging the dark in the rig. We doubled the carloads in a year. Then the paper moved, the lease went to another operator at speed, and the night it came down I wrote the board a letter with this line in it: we have been dealt a severe blow, but we are not yet dead.

Here is the part the economists cannot price. I held no stake in that company. Not one share, not one dollar. The man pledging the board six thousand dollars, an engineer's certificate, and his own labor until the lights went out had no equity to recover. Sunk cost is money spent trying to get something back. I had nothing to get back. What I had was a railroad that ran because we ran it, and there ought to be a word for that kind of cost, so here is one. Sacred. The price of belonging to a place and a craft, carried on nobody's books.

Entry No. 12 of The Code of Railroading carries the whole night, the letter, and the rule it left behind: you fight for what you built. Ownership rides in the sweat, not the paper.