Saratoga-North Creek Railway at the North Creek train station
The federal Surface Transportation Board may soon make a decision regarding the Saratoga-North Creek Railway’s proposal to operate a line on the Tahawus track between North Creek and Newcomb, according to STB officials.
The decision will simply be an answer to the railway’s December appeal, made to the three STB members, asking them to reverse the director’s decision of denying the railway’s class exemption to operate the Tahawus line as a “common carrier.”
Being a common carrier means the railway would provide service to any shipper upon request, not just NL Industries, the owner of the Tahawus mine. Railway operators want to ship rock from the mine, which had been in full operation from the 1940s to the 1980s mainly processing ilmenite for titanium dioxide.
While there is no deadline for the STB decision, the board will likely rule on the appeal in the coming weeks, according to a spokesman in the STB communications office who wished not to be named.
If the appeal is granted, the Saratoga Railway will obtain operating authority. If it is denied, the railway must seek authority to operate either by 1) obtaining an individual exemption, or 2) filing an application. The railway could also choose not to pursue its attempt to operate as a common carrier.
Obtaining an automatic class exemption to operate as a common carrier removes the application process, thereby expediting the railway’s operation of the Tahawus line.
“However, even if the proposed transaction falls into one of the classes of transactions designated for an automatic exemption, the Director of the Office of Proceedings has discretion to deny the exemption if she believes that the transaction is too controversial, which is what occurred here,” the STB spokesman stated.
On Oct. 25, 2011, Saratoga-North Creek Railway officials formally requested an exemption with the STB to permit them to operate common carrier rail operations along 29.71 miles of track called the Tahawus Line.
On Nov. 11, 2011, the environmental group Protect the Adirondacks filed a petition with the STB protesting the railway’s notice of exemption. In the fall, the Saratoga Railway bought the Tahawus line from NL Industries, and the right-of-way travels through private and public lands, including state Forest Preserve on the Vanderwhacker Mountain Wild Forest.
Protect the Adirondacks listed seven issues about Saratoga’s exemption status, including the firm belief that an environmental review and a historic assessment must be performed.
“The Tahawus rail spur was abandoned 22 years ago,” wrote John Caffrey, co-chair of the Protect the Adirondacks Conservation Advocacy Committee. “Further, court records and deeds show that the ROW easements on the Forest Preserve were taken by eminent domain during a wartime emergency, strictly for the purpose of constructing a rail spur over which to haul ilmenite ore from Tahawus. These ROW easements cannot legally be used for any other purpose.”
On Nov. 23, 2011, STB Office of Proceedings Acting Director Julia Farr filed a decision rejecting the Saratoga Railway’s request for an exemption.
On Dec. 2, 2011, Saratoga sent a letter to the STB appealing Farr’s decision.
Since the Saratoga Railway filed its appeal, there have been many municipalities, politicians, agencies and chambers of commerce filing letters with the STB supporting the company and its quest to operate the Tahawus line. NL Industries even write two letters of support, as did the town of Johnsburg.
“The Town of Johnsburg fully supports the preservation and rehabilitation of all surviving rail infrastructure in the Adirondacks that will facilitate the creation of badly needed employment in this highly distressed area of New York, tap the use of rail as a green form of transportation for freight, restore historic infrastructure to promote tourism and further bolster the sustainability of our communities,” stated the town’s Jan. 17 resolution.
The New York State Department of Environmental Conservation (DEC), however, is raising concerns over the state-owned lands the Tawahus line crosses.
“The Tahawus Line ... traverses over 13 miles, and 220 acres, of State-owned and constitutionally protected Adirondack Forest Preserve land under the jurisdiction of NYSDEC,” DEC Division of Lands & Forests Director Robert Davies wrote to the STB on Dec. 15. “Not only do the State and NYSDEC have a significant interest in the future use of the land in question, there remain many unresolved legal issues concerning die status of the Tahawus Line, the easement on which it is located, and the uses, if any, to which the Tahawus Line may be put.”
And on Jan. 10, Friends of the Upper Hudson Rail Trail President Curtiss Austin sent a letter to the STB advocating for the conversion of the Tahawus rail corridor to a multipurpose recreational trail under the Rail Banking Act.
On Jan. 19, Saratoga wrote a letter to the STB regarding Upper Hudson's comments “insofar as they represent a misunderstanding of the law on the creation of rail trails under the National Trails Act.”
Letters become part of the public record in a case and are viewed and considered by the three Board members.
According to the STB, appeals of decisions by the Office of Proceedings director to the full Board must be based on one or more of the following grounds:
(1) That a necessary finding of fact is omitted, erroneous, or unsupported by substantial evidence of record;
(2) That a necessary legal conclusion, or finding is contrary to law, Board precedent, or policy;
(3) That an important question of law, policy, or discretion is involved which is without governing precedent;
(4) That prejudicial procedural error has occurred.