A June 14 decision by the federal Surface Transportation Board’s (STB) Director of Proceedings awarding common carrier status to the Saratoga and North Creek Railway (SNCR), owned by Iowa Pacific Holdings, for freight operations on the 30-mile Tahawus industrial rail spur was appealed June 25 to the full Board by Charles C. Morrison, Project Coordinator for the Adirondack Committee, Atlantic Chapter of the Sierra Club and Samuel H. Sage, President and Senior Scientist of the Atlantic States Legal Foundation (ASLF).
Morrison and Sage asked the Board to rescind SNCR’s approval because its action in itself violated Article 14 of the New York State Constitution and authorized SNCR to violate it by operating a rail line over 13 miles of Forest Preserve land seized by the US Army for use during World War Two. Dave Gibson, who is not a party to the appeal, described the issues involved in use of the rail line on Monday in the Adirondack Almanack. The line had previously been eyed for a bicycle rail-trail.
Sage said that “This rail spur has been in violation of Article 14 of the New York State Constitution, the “forever wild” provision, since 1942 when the Secretary of the Army used eminent domain to seize a right-of-way easement 13 miles long on the Forest Preserve and 17 miles over private property with more than 30 owners to build the spur and lease it to National Lead to haul ilmenite, an ore containing titanium dioxide, from Tahawus. At that time, the State spent four years fighting this violation in federal court, appealing twice to the U.S. Supreme court.”
“Seventy years later, the State’s current position in support of SNCR rather than Article 14 has made chances of resolving this ongoing violation and illegal occupancy of the Forest Preserve worse than they have ever been. In the present situation the NYS Department of Environmental Conservation, legally the custodian of the Forest Preserve, with other State, Congressional and local officials chiming in, has become a part of the problem instead of part of the solution. By supporting SNCR’s Notice of Exemption before the STB in a March 19 letter, DEC has helped to ensure continuation of the Constitutional violation.” Sage added that: “Pitifully, DEC and other public officials have sold out the Forest Preserve and the State Constitution in exchange for the possibility that a handful of jobs crushing and loading waste rock might be created next to the High Peaks Wilderness Area.”
In further explanation Morrison said: “The STB has ruled that resolution of the issues concerning the Forest Preserve and Constitutional violation is beyond its jurisdiction and should be resolved in State court. Such a case might hinge on whether the spur has been legally abandoned under State law. In that regard, NYS DOT and NL Industries has admitted in several letters that the Tahawus spur –which includes the easements – has been abandoned under Section 18 of State Transportation Law since 1989. Under the State’s common law on easements, abandoned easements immediately terminate, are extinguished and full title reverts to the underlying property owners.” Morrison added that: “The STB decision, which inserts federal jurisdiction and preemptory federal law into this situation, makes quite slim the likelihood that resolution of these real property issues will take place in State court as the STB itself has recommended.”
In their appeal, Sage and Morrison asked the Surface Transportation Board to recognize that the Forest Preserve belongs to all of the people of New York State, not just the few State, Congressional and local officials that have lobbied STB to approve Saratoga and North Creek Railway’s request. They asserted that the STB’s award of common carrier status to SNCR for the Tahawus spur favors private interest over the public interest in the Forest Preserve and it would be in the public interest to rescind that award.
Morrison and Sage also stated that the Forest Preserve is a National Historic Landmark under the 1966 National Historic Preservation Act (NHPA) as amended and the STB acted without conducting a historic review that would have examined the impact of its action on this landmark. Section 106 of the NHPA provides that disagreements about the need for historic review are to be settled by the federal Advisory Council on Historic Preservation (ACHP). The arbitration process, which still could put a “hold” on the STB’s June 14 decision, started last week with an initial exchange of information between ACHP and STB. Morrison and Sage asked the Board to allow time to let the Section 106 process work.
The full text of the June 4 protest petition by the Sierra Club and ASLF, and the initial May 17 Notice of Exemption by SNCR can be viewed on the STB’s website. Under E-Library, click on “Filings” > then on “Search by Parameters” > insert Docket # “FD 35631” on the 2nd line of form> then click “Search”. Follow the same path under E-Library > “Decisions” for the June 14, 2012 STB decision. The Docket Number for SNCR’s earlier Exemption case, running from October 25, 2011 to May 14, 2012, is FD-35559. In that case the appeal by SNCR took six months using the same expeditious Exemption process, a process that STB has designed for noncontroversial projects. “Everybody knows by now that this is not a noncontroversial project,” Morrison said, “so why is STB using this process?”
The rail spur runs from the North Creek Railroad Station to the Open Space Institute’s 10,000 acre Tahawus Tract, which borders the High Peaks Wilderness. The rails cross three counties (Warren, Hamilton, and Essex) beginning between Route 28 and the Hudson River north of North Creek and running to a bridge just below the Hudson Gorge, then along the Boreas River (designated a NYS Scenic River), Vanderwalker Brook, and Stillwater Brook before rejoining the Hudson River near Route 28N in Newcomb and finally crossing the Opalescent River and into the mine area.
The railroad climbs 712 feet to 1,720 feet above sea level at a maximum grade of two percent on a three-mile stretch along the Boreas. There are seven road crossings – Route 28 north of North Creek and just north of North River, the Northwoods Club Road (dirt), Moose Pond Road, Route 28N just before Route 2 (Blue Ridge Road), Route 2 itself, and Tahawus Road, just before the Hudson River bridge.
Photo courtesy Phil Brown /Adirondack Explorer.