Governor Andrew Cuomo, the Adirondack Council and many others have offered well earned thanks to Berkshire Hathaway CEO Warren Buffett, whose subsidiary Union Tank Car Company announced the day after Christmas the planned removal of its derelict oil tank rail cars from the Adirondack Forest Preserve.
This is a victory for the preservation of the wild character and wilderness of the Adirondack Park and efforts to foster more sustainable vibrant communities. After those who deserve it take a victory lap, there is an opportunity to switch from defense to offense and secure a more positive future for the Tahawus spur above North Creek.
The Adirondack Council is among those who are very pleased that Berkshire Hathaway’s Union Tank Car Company responded to requests from Governor Andrew Cuomo, our member advocates, partners and lawyers and overruled the railroad company it was paying to store these cars. Adirondack Council members and advocates wrote more than 1,000 letters to Buffett since the end of November. The railroad wouldn’t remove the cars, but Berkshire Hathaway will. Its subsidiary, Union Tank Car, said it would remove the cars by the middle of January, find a more appropriate location, and never store them in the Adirondack Park again. For that, we are very grateful.
We are also thankful for and support Governor Cuomo’s call to rail road operator Iowa Pacific Holdings to stop storing oil tank cars on the ‘forever wild’ Forest Preserve, which is a national treasure that is protected by both the state Constitution and its status as a National Landmark. Creating an oil tank car junkyard here should be forever out of the question. We support the Governor’s commitment to ‘exhaust all legal options to end this (storage) and keep the constitutionally protected Adirondacks forever wild’ forever.
Iowa Pacific Holdings LLC of Chicago refused to stop storing derelict oil tank cars in the Adirondacks when confronted with a “cease and desist” order by Gov. Andrew Cuomo. Instead, it demanded millions of dollars.
In December Governor Cuomo and his Department of Environmental Conservation, working with the Adirondack Park Agency and with assistance from Attorney General Eric Schneiderman and Adirondack Council attorneys, filed an initial petition with the federal Surface Transportation Board (STB). The papers submitted to the STB calls on the board to grant exceptions to some of its procedural requirements consistent with past STB precedent, in advance of a filing of a state petition for adverse abandonment. It’s a multi-step process that would be followed by more filings (and opportunities for other stakeholders and the public to weigh in). Included in subsequent filings would be documents that provide much greater detail as to the basis of the request.
The State’s US Senators and Congressional Representatives input could be important. While Union Tank Car has announced it will remove its cars from IHP’s de facto junkyard, IHP is still storing a dozen or more additional cars on the line that don’t belong to Union Tank Car, Berkshire Hathaway or its other subsidiaries, Procor and Marmon.
The removal of remaining rail cars is necessary and will complement efforts by the state and other stakeholders to chart a more appropriate future for the rail corridor.
The holiday announcement was another important step in creating a long term, sustainable use for this travel corridor that is appropriate for the heart of the Adirondack Park. Any future use should be both environmentally and aesthetically appropriate, consistent with the wilderness character of the Adirondack Park, and supportive of sustainable, vibrant communities.
New York’s Adirondack Park is one of the world’s largest and oldest parks. It protects most of the wilderness and old-growth forest remaining in the Northeast. Its Forest Preserve has been protected as “forever wild” by the state Constitution since 1894. Although it is owned and administered by New York State, the entire 2.7-million-acre Adirondack Forest Preserve is further protected as a National Landmark.
The controversial junkyard was being assembled on a railroad that leads from the ski resort hamlet of North Creek to an early-19th Century iron mine 22 miles into the forest. The railroad terminates between the Hudson and Opalescent rivers at the old Tahawus mine, on the edge of the park’s famous High Peaks Wilderness Area.
Several miles of the railroad cross the Forest Preserve. The tracks also cross the Upper Hudson River, and run along the Boreas River, both of which are protected as “Scenic” under the NYS Wild, Scenic and Recreational Rivers Program.
Tahawus’s iron mines were among the first in America, but failed due to impurities (ilmenite) in the ore. A century later, as World War II began, the federal government realized ilmenite was needed for the construction of titanium-alloy war ships and airplanes. It seized a temporary right-of-way for rail access to the mines to secure strategic materials needed for the war. New York objected, but chose not to challenge the seizure in court.
The rights to use the line were set to expire after the war ended. Instead, the rights were extended until 2063. Today, Iowa Pacific Holdings LLC of Chicago (IPH) claims it is leasing the rights to use the line. Those rights, if any, could be extinguished if the State succeeds in an adverse abandonment proceeding with the Federal Surface Transportation Board. IPH says the tanker junkyard qualifies as a railroad operation. Its president Ed Ellis told the local media he plans to store as many as 2,500 tanker cars on the railroad. At 58-feet- long, 2,000 tankers would occupy 21.96 miles of track. This demonstrates an intent that is not consistent with operation of the corridor as a railroad, or in the public good for which the line was established.
A wall of rusty rail cars would create a barrier to wildlife, imperil water quality and undermine the state’s efforts to promote this region as a wilderness recreation destination. New York has spent tens of millions of dollars acquiring new Forest Preserve in this portion of the Adirondacks over the past 20 years.
The controversy has been featured in national media outlets and has even inspired the release of an original protest song entitled Junkyard Express, by renowned Adirondack folk singer Dan Berggren.
In general, federal transportation law governs railroads. However, there are multiple limits on Federal preemption and states can to enforce environmental regulations that are stricter than federal law as long as the action doesn’t prevent the lawful operation of a railroad or interfere with interstate commerce.
Local residents, officials and conservationists say the used rail car storage plan would be a linear junkyard, not a railroad. They want the cars already stored there removed. Town and county officials have also expressed their opposition.
The Adirondack Council hired and is still retaining special attorneys in Albany and Washington, D.C. to secure legal remedies to the junkyard under state and federal law. It is also working with state officials to urge IPH to remove the junkyard.
The Council and local residents had supported IPH’s previous plans to run a scenic passenger railroad and to haul mine tailings from the former mine site. But the company has failed in those businesses. It is instead renting space on the line to companies that pay to park derelict tankers until they can be refitted, re-purposed or scrapped. Many stored there now are the unsafe DOT-111 models that destroyed most of Lac Megantic, Quebec when they derailed in 2014, killing 47 people.
Now with the positions of various parties clear there is an opportunity for a coalition to press for a new vision for this travel corridor up into the heart of the Adirondack Park and the High Peaks Wilderness area, with unique access to towns such as Minerva and Newcomb. This corridor could be a great asset for the Park and communities that host access points to the popular Forest Preserve and state waters. The corridor might host a multi-use recreational trail, or something else. State ownership might or might not be in everyone’s interest. We have a unique opportunity.
Photo of rail cars arriving October 30, 2017.