Monday, April 20, 2009

FRA: Railroading the Public

State, railroads butt heads over private crossings

By ALAN SAYRE AP Business Writer

Amid pushes to improve safety by closing railroad-highway intersections, the state and the railroads are butting heads over the shuttering of private crossings that farmers often depend upon to travel across their property.

Unlike urban crossings marked by warning lights and automatic gates, these crossings often are on remote stretches of rail lines that separate agricultural lands, typically marked by only a crossbeam sign. Others provide crossings from public highways to private land and across closed-in industrial sites.

Farmers have been complaining for years that the crossings often are closed without any notice and getting them reopened is a costly proposition with the railroad often wanting the landowner to assume responsibility — and the cost — for liability and maintenance.

Earlier this month, the Public Service Commission, acting on a 2008 law that gained 31 Senate sponsors, claimed authority to approve or veto private crossing closures in Louisiana — a move widely expected to be challenged in court by the railroads.

"They're trying to shirk their responsibility on liability. That's what this is all about," said Public Service Commissioner Foster Campbell.

In Louisiana, according to the Federal Railroad Administration, there were 3,524 public crossings at the end of 2008 and 2,864 private crossings classified as at-grade, meaning the highway and the rail meet at the same level. Since 2000, 233 public crossings and 300 private crossings in the state have been closed, the FRA said.

The dispute comes as Louisiana remains one of the highest states for highway-rail collisions. The state ranked fifth in the nation in 2008 in wrecks and sixth in fatalities, according to Operation Lifesaver, a crossing safety advocacy group.

But FRA figures show that private crossings are responsible for only a small handful of the accidents that grab public attention.

In 2008, public crossings accounted for 99 of the 113 crossing accidents reported in Louisiana. All 15 deaths involved in the accidents occurred at public crossings, along with 40 of the 43 injuries, the FRA said.

Carmack Blackmon, general counsel for Louisiana Railroads, an industry lobbying group, said railroads are under a "directive" from the FRA to close 25 percent of the nation's rail crossings.

"This is about safety," Blackmon said. "The more crossings you have, the more collisions you have."

But FRA spokesman Warren Flatau said the 25 percent figure was issued by former agency head Gil Carmichael as "a challenge to the industry." Flatau said the figure is neither law nor regulation.

State and local governments deal with railroads on public crossings. Private crossings are a matter between a landowner and a railroad, Flatau said.

Jimmy Hoppe, a Jefferson Davis Parish farmer who lost three crossings on his farmland in late 2007, said members of the public who might be endangered by such crossings likely are trespassing.

Hoppe said he received no advance warning before the 68-year-old crossings were closed and dismantled. To farm rice on a 250-acre plot, he had to drive his equipment on U.S. Highway 165 and a quarter mile through someone else's property as a result of the closings. After about six months of negotiating, he got what he called a "temporary crossing," which is still there.

"Instead of improving public safety, they're actually creating danger by forcing farmers to take that heavy equipment out on public roads to get to these isolated fields," said Jim Simon, head of the American Sugar Cane League.

Blackmon said most of the private closures are aimed at removing unneeded multiple crossings over a small area. But some farmers say one closure is enough to cause them misery.

Keith Post's family farm in Madison Parish lost direct access to a portion of their land when a 30-year-old crossing was pulled up. He had never had a contract with the railroad. Now, he said he's been told to make an application for a new crossing — along with an $8,000 fee.

"When you got this 30 years ago, you met a man at the track, you agreed and you shook hands," he said.

Under the new law, railroads must make an application at least 180 days before the proposed closure of a private crossing. The PSC will conduct a public hearing before deciding whether to allow the closure.

But Blackmon said the railroad group is studying a possible lawsuit claiming a state constitutional violation dealing with private property. The disputes involve two private property owners — the owner of the land and the railroad that has right of way, he said.

"This belongs in the courts, not with the PSC," he said.

In another conflict with railroads, the Legislature last year implemented the Federal Railroad Safety State Participation Program, already adopted by 30 other states. Railroads pay fees for inspectors, for warning devices and track maintenance.

Acting on a suit filed by Louisiana Railroads, a state judge said in January that the law unconstitutionally allowed the PSC — rather than the Legislature — to set the fees. Campbell said the Legislature might be asked this year to include fees in a new bill.

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