Amtrak’s long-distance trains as the walking dead

The freight railroads do complain too much. Did they not reduce line capacity to cut fixed costs in response to declining traffic and revenues, whilst agreeing to provide a right of way for Amtrak passenger trains? Why should one "sympathise" with them as you put it.Instead of posturing as an aggrieved party they should encourage and welcome  the infusion of public money into increasing capacity and work to accommodate the operation of passenger and freight trains. They did this successfully prior to the 1960s so what is their problem now?

As we continue the transition from an ethos of convenience to that of efficiency traffic due to modal shift shall continue to increase on the conveyance which uses the least fuel, vis-à-vis rail. With or without economic growth this shall be an issue. With or without NRPC’s long-distance trains this shall continue to be an issue. As David Gunn once said, “Amtrak is the canary in the coal mine.”

It is a complete mystery to me why Amtrak seemed to roll over so quickly on the UP's demands for a daily Sunset.  Maybe Amtrak did negotiate strongly, but failed.  If they did, they kept it a secret.  RTC is a powerful tool, but it is not reality.

Fred,

Taking capacity without paying for it is not "akin" to taking private property without compensation, it is taking private property, that is stealing pure and simple.  I know you have to be politically correct but theft is theft and is supposed  to be prohibited by our constitution, except of course in the case of railroads and other politically undesireables as designated by the political/media complex from time to time.  

Mac

Replying to a few comments (keep 'em coming):

Amtrak has not given up making the Sunset daily. But wheels turn very slowly in matters such as this.

And PNW guy, your comment about "taking capacity without paying" is one shared by many (maybe most) high ranking railroaders and probably by me as well. But as it applies to Amtrak and host railroads, the concept has not been tested in the courts.

Fred Frailey

I concur that the governmental "taking" of only a portion of a railroad's "track capacity" - as measured by time 'slots' and/ or in 'space', in the context that we are using here - has *not* been tested in the courts, to the best of my limited knowledge of the subject.  Perhaps the similar concept of "trackage rights" has been reviewed and found to be a valid and compensable property right, but I'm not yet familiar with that, either.  (Both of these are different from acquiring the entire line or Right-Of-Way - which is a 'total taking' of 100% of the capacity - and that has been adjudicated a few times, as well as taking of the assets and/ or the "going business value" of the railroad company, most recently in the context of compensating the creditors and shareholders in the 1970's NorthEastern Regional Railroad Reoganization cases after their bankruptcies.)

But a related issue has been litigated many times: the effect on a property of governmental land use regulations, such as zoning laws (again, as distinguished from a physical possession and occupancy of the land, such as by a new highway or a sewer line, etc.).  Some impairment of the maximum unencumbered use and best value of the property seems to be acceptable as a constitutional matter without any "just compensation" needing to be paid (that's from the other clause of the 5th Amendment to the U.S. Constitution) - as an "incidental effect" of a "police power" regulation to maintain order in the community, etc.  No one is entitled to completely unrestricted use of their property, regardless of the effects on the neighbors and the rest of the community.  An example would be a concrete median wall in the highway out front, so that traffic can only enter and depart from one direction; or a limitation on parking out front, or business hours during the weekend, etc.  

But too much regulation or other actions that impair the value of the property so much that it is functinally "sterilized" becomes a "regulatory taking" that is compensable - that's the South Carolina Coastal Commission case.  This is also sometimes known as an "inverse condemnation' because it's the property owner who starts by filing the suit demanding compensation, instead of the government filing the formal Notice of Condemnation to obtain possession, and then having to pay the "just compensation" for what it has just taken.  

Further, by analogy there's no doubt that landing slots and "gates" at airports are property with substantial values - I'd be surprised if that hasn't been litigated and settled in the context of airline bankruptcies and reorganizations, especially over the past few years.

Finally, note that in this context Amtrak is not a government regulator that is imposing the same rules on all railroads, but instead a quasi-private corporation and a competitor of sorts that is seeking to pre-empt the use of the tracks of the host railroad.  

Taking all of that into consideration, it would be a little bit of a stretch for the US legal system to recognize track capacity as a valuable property right - but since that question is already well-settled for something as intangible as 'air rights' over a parcel of land or a rail line - and perhaps for "trackage rights' too, as noted above - I'm confident that conclusion would be reached.  From that result, it then follows that what Amtrak wants, it has to pay for - it can't just be demanded for free as 'incidental' to the ownership of the land, as a sovereign's "King's right' would have been back in the feudal society days.  So that's likely why Amtrak is negotiating rather than just taking - becaue it'll have to pay in the end anyway.  

- Paul North.  

Fred, Paul, et al,

   I'm just a neophyte with no legal training and my perspective is that I live in the third largest city in the nation with the worst intercity passenger rail service anywhere, and no evidence that Amtrak gives a *** about it.  Or else, the Sunset would not STILL be suffering from the crippling tr-weekly schedule SP got from the ICC to keep it running at all in the before Amtrak. From my perspecitve, watching just a few freight trains go by daily on the old T&NO I find it difficult to understand how making a tri-weekly train daily is going to absorb that much precious capacity, when most of the freight trains are daily already.  

And finally, I wish someone would explain to me why, with all of the wonderful modern technology and pwowerful diesel locomotives railroads now employ, then cannot get at least ONE passenger train a day over a route where the SP ran several over a half century ago!  

Fred, if you have not done a column on that issue, I wish you would sometime, because from my perspecive the powerful, efficient, streamlined Railroad Emperor is buck naked.

I wonder what the tab would be if Union Pacific was operating a Triple Crown Roadrailer Train as a second section of the Sunset Limited on a daily schedule.

Good question, Dixie.  It is very difficult to sympathize with Bad Yellow.  From what James McCommons says in his recent book on Amtrak, "Waiting on a Train," UP "just doesn't care."  And frankly, I don't think Amtrak does, either.  This was once a premier train route, and it now serves a region that is reapidly growing in population.Yet Amtrak still has the Sunset run through San Antonio--the main tourist locale between the endpoints--in the middle of the night BOTH ways!!!  And it leaves Houston for New Orleans--a great potential match-up at 5:30 in the morning!!!  What potential New Orleans tourist is going to want to arrive at the depot at 4:30 AM???  Who planned this schedule, Southwest Airlines?  It would not take any new equipment to give the best potential stops east of Phoenix some decent arrival times!

Since passenger trains actually run faster than freight trains and can cover a given section of track in less time (even considering station stops) due to higher speed and faster acceleration, why is it more difficult to slip a passenger train into the mix than another coal, grain, merchandise, or even container extra.  Yes the freight pays $$$ to the railroad.  Why not accept that fact and pay the RR the same to operate a passenger train...except of course they would just be renting the track and dispatching service...Amtrak (or whomever) would be "operating" the train with their own equipment and crew, so subtract that cost from the rent.

If we were a truly enlightened people with a functioning government, we'd actually discuss the folly of occupying the planet with ~800 military bases to maintain our empire.  We'd also be honest with ourselves and admit that when we factor in the cost of our armed forces and intelligence agencies, the gas we pump into our cars actually costs $5.00 per gallon or more.  We'd then realize that occupying other peoples' countries is detrimental to our own people, and we'd change our policies to rebuild our own society; rebuilding our rail infrastructure, adding solar/wind, instituting Medicare for all, just for starters.  But, Like Fred, I know I'll be planted under the sod long before anything like this happens.

For an interesting alternative method that's evidently 'workable', compare with how the Swiss Railways does it for their spare 'slots' in the schedule.  Go to the thread here that's captioned as "England and Rail Privatization"

at -

cs.trains.com/.../189905.aspx

- and look for the post by "beaulieu" on 04-01-2011 about 1/3 of the way down Page 1 of 1, and read from there on.  It's worthwhile to go to his link to the SBB's scheduling form, too.

- Paul North.  

Since Amtrak does pay a freight railroad the marginal cost of using the tracks, does that constitute "taking" private property (in the constitutional sense) when capacity is scarce? Unlike some other commenters (do they realize that Amtrak does pay to use the tracks?) I don't think the answer is clear-cut. But if it turns out the answer is "yes", then perhaps Union Pacific et al would prefer to return to the days of the Interstate Commerce Commission, when railroads were required to offer passenger service themselves. That was obviously constitutional--various disputes reached the Supreme Court, which sometimes voided particular ICC rulings but never questioned the power of the ICC to require service.

For a line which is supposedly capacity constrained, the UP main here in Tucson is surprisingly idle a lot of the time--especially in contrast with the BNSF main in Flagstaff. Lacking a full understanding of the issues of scheduling a single-track railroad, I don't know whether it's unfair to speculate that UP is simply seeking to get the taxpayers, via Amtrak, to foot the bill for the two-track line it wants for freight purposes anyway.

For the railroads, the pendulum has swung away from bankruptcy and is edging back toward the "public be damned" attitude that gave birth to the ICC in the first place. Reregulation isn't politically likely today, but sooner or later the monopoly power of certain railroads is going to cry out to be checked, preferably by separating operation from infrastructure, but if necessary by reregulation. Businesses have ways of making legislators overlook ideology, and if enough railroad customers become sufficiently unhappy and vocal, reregulation will happen.

The capacity argument is a non starter. The railroad right of ways were either given to the railroads [the land grant lines] or aquried by eminet domain. The public gave these right of ways for the common good. That includes passenger trains!

Fred,

I spent my entire career in industry negotiating with railroads, with railroads negotiating with customers or short lines negotiating (without much leverage) with Class I's.  In my opinion, going to court, or the STB is always an option, but totally damages the relationship, even if you win.  The best way to negotiate is to look at it from the opposite perspective and figure out how you can get leverage, when you have little or none.  Then, instead of sitting across the table (occasionly I would sit on the same side of the table - that really caught the lawyers off guard!), you develop a win/win.  Lets face it, Amtrak has very little leverage and the railroads have very little to gain and know it!  That is not a good basis for negotiations.

My suggestion would be in the next Amtrak authorization bill, to include a provision that Amtrak could participate in any negotiations between railroads and government.  That would allow Amtrak to support railroads in reaching both their own goals, such as the public-private corridor expansion projects that Amtrak might use.  How about Amtrak supporting building UP's new El Paso yard and fueling in New Mexico for a daily train?  If Amtrak has some leverage and can help their host railroads, the AAR and railroads might be calling Amtrak for support of their projects!  (Amtrak has a lobbyist in Washington and Amtrak "experts" could easily testify.)

Incidently, I rode the Sunset/Eagle in March from Palm Springs to Arkadelphia, Arkansas.  Union Pacific has done an outstanding job of upgrading the SP's Sunset Route and UP dispatchers did an excellent job of weaving us through a busy piece of railroad.  It is an unusual "cruise train", spending the night in San Antonio easbound, running early and late, with our arrival two minutes early.  Amtrak crews were helpful and fun to interact with.

Brian Holtz

P.S.  I understand UP is reopening the Yuma-Phoenix line.  This may be an opportunity to move to a "new arena" to avoid UP's hard fiscal line that Amtrak would be foolish to accept.  Use of the secondary Phoenix line would pull Amtrak off much of the congested main line and serve Phoenix directly, thereby improving profitability of the train.  Perhaps, Amtrak could pay for putting the signals back and the difference between 45 mph and 79 over this segment.

Bob - The railroads paid back the debt LONG ago.  Part of the requirments of the deal was low cost transportation of military and other government stuff-- Like at or below cost. They paid it all back plus interest.  (And the reason the land is in use and valuable now? The presence of the railroad, in large part.)

Reregulation would get us back to the bad old days, where RR's were grossly unprofitable (Remember penn central?) and failing all over the place.  Other than coal, the railroads have LOTS of competition in the form of Trucks.

    If the railroads are to be forced to run unprofitable trains at a cost to them because it was done in the past, shouldn't we consider reopening the Erie Canal and having the government borrow money to run it too? There surely have to be some luddites who are afraid to fly and ride trains. Barges are a wonderful way to see the scenery!  

     Please consider one question; if the compensation is fair to the operating railroads, why aren't they crawling all over each other to get more passenger trains and more profit?  Are they just giving away money to be spiteful?  In a pay to play time, aren't you playing and asking someone else to pay?  If you want to run trains,  take the land(as government is wont to do), lay track and maintain it for whatever speed you want to run, install signaling, hire dispatchers and the hundreds of other people not included in direct costs, and play trains all you want.

Pardon me if I don't celebrate Amtrak's 40TH birthday.The railroad industry in 1971 was on death's door.It changed and is still changing and Amtrak continues to plod along.The question today is can the nation afford Amtrak; and I don't mean the money needed to operate it.

Donald Russell dealt with capacity by putting the Sunset in the hole for every freight train. While passengers complained in the Automat,the SP made money and passengers the next time they traveled chose Delta or Greyhound.We are a nation that wants fewer trucks on the interstates and an intercity passenger service, but will we pay the price as taxpayers.No,blame UP instead!

Bob612, you've already been answered, but let me go into more detail. In return for the land grants, the railroads agreed to ship government freight and carry passengers on government business for reduced rates. This kept happening until the value of the grants had been paid many times over, ending by Act of Congress in the 1940s.

Eminent domain is not just taking property for free. The owner must be paid for it.

It's like this:

Normal people: I go to you and say "I want to buy your land. I think it's worth this much." You can negotiate the price with me, or you can say no and that's that.

Governments and railroads: they go to you and say "We are going to buy your land. We think it's worth this much. If you disagree, we negotiate a little or you can go to court to establish the value, but we are taking your land and there is nothing you can do to stop us." (To a certain extent, they will negotiate to avoid bad publicity.)