Steam & Excursion > The Silverton Branch is definitely interstate common-carrier ICC

I did more research to back up my understanding and statement that the Silverton Branch is a common-carrier with interstate rates and tariffs still in effect.  I find at least 3 cases where the ICC and the STB has reviewed and ruled to this effect. I will type quotes to show the review of the interstate or otherwise traffic on the Silverton Branch.

In 1959 the Denver & Rio Grande Western RR filed to abandon just the Silverton Branch and was denied by the Interstate Commerce Commission (ICC).  This was a unique ruling because it showed that a company could not just abandon a service that was making a lot of money just because it was not their nature of business:  Tourist train versus heavy freight traffic.

Next in 1968 the D&RGW filed an application to abandon over 300 miles of narrow gauge track from Alamosa to Farmington including the 45 mile Silverton Branch.  This was D&RGW abandonment 334 ICC 539 that was ruled in 1969, requiring the Silverton Branch to be operated, but permitted the rest of the narrow gauge rails to be removed. 

Sept 17, 1979 in Finance Docket #29096 called “D&S NG RR Co. Acquisition and Operation.” This case was to arrange to sell the line and operation requirements.
“No interstate passenger is provided on the on the Silverton Branch.  Sporadic, limited freight shipments are occasionally transported locally on the branch. Shippers include the Tacoma Power Plane, a US Forest Service Station, and occasional construction and mining companies. 
  It is for these reasons that D&SN implies, in several places in its application and pleading that this transaction is not within the jurisdiction of this Interstate Commerce Commission.  We [ICC] disagree with the suggestion and believe that the transaction herein requires Commission approval.  The proceeding that permitted abandonment of the narrow gauge lines [1969] and isolated the Silverton Branch from all other rail lines was D&RGWCo. Abandonment, 334 ICC 539 (1969).  In that decision, division 3 noted that the owner at the time, Rio Grande, did handle some interstate freight over the Silverton Branch, with substituted-motor-carrier-for-rail service provided where there was no regular rail line, and with standard gauge rail service provided elsewhere.  The division also said that, in absence of abandonment of the Silverton Branch, the Rio Grande would continue to be obligated to provide shippers with the same through service, even though there would be no direct connection upon Rio Grande continuing in the absence of abandonment of the Silverton Branch or operations thereover, to provide a through service, at through rates, on interstate traffic.  The condition also provided for substituted-motor-carrier-for-rail service where appropriate.”
  “ Although the traffic has been only intrastate for the past several years, Rio Grande has continued to maintain those through rates as directed.  The applicant [D&SNGRR] states that it will continue to provide the rail service that Rio Grande has been providing. It does not state that it will seek to discontinue those through rates, et cetera.  The fact that there has been no interstate traffic over the lines in the past several years does not in itself change the character of the line as determined by the Commission.  Only a Commission decision permitting discontinuance of interstate operation over that line could have that affect.  In the absence of such a decision, the line continues to be interstate in nature and its disposition a matter of Commission jurisdiction.”  

THAT DECISION TO ABANDON INTERSTATE COMMON-CARRIER STATUS ON THE SILVERTON BRANCH HAS NEVER BEEN MADE. Above quotation was from ICC December 19, 1979.


If this is not enough, NEXT is Finance Document 29389 March 9, 1981.  Railway Labor Executives’ Association v. Durango & Silverton NG RR Company and the Denver & Rio Grande Western RR. 
In this case the Railway Labor Association wanted the D&SNRRR to negotrate with the unions and had question as to who would pay the Oregon III conditions for the employee relocations.  They dismissed the complaint but it had some statements as above.   In this case, the D&RGW argued that the ICC lack jurisdiction because there is not interstate nexus [on the Silverton Br.] The ICC reply: “We disagree.”  “The jurisdiction argument was made in the D&S Acquisition case.  The board rejected this claim, citing D&RGW Abandonment 334 ICC 539 (1969) which permitted abandonment of the other D&RGW narrow gauge lines and isolated the Silverton Branch.  That decision noted that D&RGW did handle some interstate freight over the Silverton Branch, which moved under through-rail rates, with rail service provided at point on the Silverton Branch.  It held that, in the absence of abandonment of the Silverton Branch, the D&RGW would continue to be obligated to provide shippers with the through service, even though there would be no direct connection with another rail line.  D&RGW was required to provide for substituted motor carrier for rail service on interstate traffic, where appropriate, at through rates.”
 
A few more paragraphs continue but the RLEA was not successful for there attempt to change the outcome of who was employed on the D&SNGRR.
.
The recent Judge ordering the railroad to not rebuild its track is out of jurisdiction regarding this interstate common-carrier railroad that never had it status change by any Surface Transportation Board ruling.
 
It is possible the town of Silverton or injured parties could sue this Judge who is interfering with interstate commerce.  It is very clear above this is still is an interstate commence line at the current time.

But another reading about this may require the D&SNGRR to run their one train per day regardless that it may be empty, just like Amtrak empty trains.

All of the above is public domain and can be used by the Mr. Harper to help get the narrow gauge railroad fixed up and my research is free.  Use at your own risk.



Edited 1 time(s). Last edit at 08/11/20 13:46 by PlyWoody.

That's all well and good.  But the question still stands - regardless of jurisdiction, is there any interstate traffic?

Traffic doesn't matter, the only thing that counts is the legal definition and the out would be if the D&S had kept up with the
monthly reporting requirements.

Out 

Then why for a few years did the colorado state boiler inspector inspect locomotive boilers instead of the FRA?

Dreamer

Posted from Android

They can do that, in California the insurance carrier inspects boilers.

Out 

Dreamer Wrote:
-------------------------------------------------------
> Then why for a few years did the Colorado state
> boiler inspector inspect locomotive boilers
> instead of the FRA?
>
> Dreamer
>
> Posted from Android

A state can inspect any boiler but if that boiler is under FRA jurisdiction, they can not write up any fines, but can identify defects that they can require to be fixed.  The FRA is not a police force, and they are not a contractor doing annual inspection.  They are a regulating agency which check to see that you, the company, are doing things by your own rules of your business.  It you fail to comply to your own rules, they can issue fines and make more visits as necessary.  They also are not the insurance company such as Hartford Steam Boiler Inspection and Insurance Co.
In NJ, a state inspector can and was refused access to a steam locomotive that was entirely on private property of a farm.  It pulled no passenger, and only run by the owner and family. 

Regarding the recent interline traffic, did you see the photos by Jerry Day of the car loads of electrical machinery going to Tacoma in 2015?  It is hard to believe that equipment from the builder did not travel over the Union Pacific and arrive by rail at Alamosa, where a truck took it to Rockwood by highway traveling on the cheaper railroad through interline freight rate. 

When the D&SNGRR purchased the Silverton branch, the ICC said that they saw the D&RGW continued the through rates and D&S said they would continue the same procedure of keeping the through rates.  The 1969 Ruling by the ICC required the operation continue as it then existed unless a new abandonment request would go through the Federal Agency of it jurisdiction.



Edited 1 time(s). Last edit at 08/11/20 14:07 by PlyWoody.

When under FRA jurisdiction you do not also have to submit to a state boiler inspection. In certain instances where the piece of equipment does not fall under federal jurisdiction then the state can step in. For instance the locomotives on the C&TS are FRA inspected but the rotary boilers are subject to state law.
Dreamer

Posted from Android

At the time the FRA did not inspect the D&S in the 1980s the RR was considered intrastate. Remember the current code changed the definition of who the FRA could inspect. The Georgetown operation was under state boiler inspection for many years. The change in ownership seem to create a regulatory change from code enforcement. The C&TS has laways been under FRA. For the record my steam knowledge started with the former MP&E inspector Charlie Williams who inspected the C&TS from the start of the railroad.

Furthermore a state inspector can not enforce fines on a locomotive meeting FRA compliance. Historically safety valves that meet FRA do not meet ASME. There has been recent work to change that for historic boilers.

Dreamer

Posted from Android



Edited 1 time(s). Last edit at 08/11/20 14:16 by Dreamer.

Dreamer Wrote:
-------------------------------------------------------
> When under FRA jurisdiction you do not also have
> to submit to a state boiler inspection. In
> certain instances where the piece of equipment
> does not fall under federal jurisdiction then the
> state can step in. For instance the locomotives
> on the C&TS are FRA inspected but the rotary
> boilers are subject to state law.
> Dreamer
>
> Posted from Android

Dreamer, You are making statement that are incorrect and wrong!!

The boilers on any interstate common carrier railroad such as a Rotary Snow Plow are Company private equipment and because they have always moved around from state to state, they are not under any State Boiler inspection Rules.  Steam Wreck Derricks. Steam Work Cranes, Steam Pile Drivers, Steam snow melters, any other steam work equipment on wheels are not under any state jurisdiction.  Only the owning railroad company maintains and inspects that equipment using Hartford Steam Boiler I & Insurance Co. 

I learned that years ago when a company in Camp Hill, just south of Enola, PA, but on the RDG has a number of N&W Steam Wreck Crane on location to be repaired and insured.  The company must have been cheaper than the Roanoke Shops as they did special boiler service.  None of a company work equipment come under the ICC Boiler inspection Law which only applies to locomotives.  Since New Mexico does not have their own boiler inspectors. Colorado was permitted to review the rotaries but there is no state law requiring or given jurisdiction to do so.

Years ago the railroads drew the line and never let the states take such  action, as they would just move the equipment elsewhere.

This is just the same situation where the FRA and previously ICC did not inspect or could write up any fines against the railroad of their private work equipment, and private train cars such as business cars.  Only if the work equipment is handle in the general trains, could they be inspected, as all FRA inspection is to protect the safe movement of interstate commerce.  Work Equipment does not carry or is not commerce therefore not in jurisdiction.

I suggest you inform the Colorado boiler inspector, the C&TS commission, the state of Nevada boiler inspector and others that they do not have say over non FRA inspected boilers on the C&TS NN and other operations. Given that both the OY and the steam derrick at the NN have state certificates. I think they will find your position very interesting.

Dreamer

Posted from Android



Edited 1 time(s). Last edit at 08/11/20 14:58 by Dreamer.

All Interstate common-carrier railroads comes under Federal Jurisdiction and if the Federal law does not have any law for steam boiler inspection of railroad company machinery or even the inspection of their private work equipment cars, the States have no jurisdictional authority to step in.  And as example, you don’t see Occupational Health & Safety commission (OSHA) on these Federally regulated railroads property.  There is no regulating agency that inspect steam boilers on federal regulated railroads..

I don’t know the laws of every state such as NV but I do know VT and NM do not have a department or any inspectors to do that function.  If the NN steam wreck crane has some inspection papers, all fine a good and it does not hurt for the Colorado Inspectors to look at Rotary OY.

As a side note after locomotive #483 made it 3rd trip of moving the C-NMRRA’s equipment from Antonito to Chama in mid-September 1970, it had a burnt left front grate because it got jammed and the fire was dropped Sunday night.  On Tuesday the Colorado State Boiler Inspector was in the firebox making the repairs to the ring and we replaced the grate.  He was there on his own time and money.  We fired the engine back up on Wednesday which required an air compressor to make the draft. The exhaust from someone’s hot rod automobile was not enough draw in the smoke stack.  The success of the start of the C&TS railroad was due to the free time of a Colorado State Boiler Inspector..

Unless you have legal document proof to add, I feel this thread has proven it facts and is closed.
 



Edited 1 time(s). Last edit at 08/12/20 08:06 by PlyWoody.

For the record, the C&TS is NOT a common carrier because it does not have any physical connection to the rest of the railroad system AND it does not carry any freight other than its own materials.  I do know that, for numerous reasons, the railroad is very careful not to do anything that would construe it to be a common carrier.  That said, the fact that C&TS is not a common carrier does NOT exempt it from FRA regulation in certain areas of its operation.  It is possible to see FRA inspectors on C&TS property every year.

The only thing I am curious about is your "reality" and what is causing it to differ from the laws as applied to railroads. It was comfirmed to me last night that state boiler inspectors do have jurisdiction on non FRA boilers in their state by a boiler inspector well educated on FRA. Yes the Colorado Boiler inspector was around in 1970 on the C&TS. But the C&TS has always been under federal inspection where the feds exercise jurisdiction. Otherwise it is the two states that have oversite. And before this falsehood continues OSHA is inspecting RR in this day and age.

Dreamer

Posted from Android



Edited 1 time(s). Last edit at 08/12/20 20:50 by Dreamer.

WW Wrote:
-------------------------------------------------------
> For the record, the C&TS is NOT a common carrier
> because it does not have any physical connection
> to the rest of the railroad system AND it does not
> carry any freight other than its own materials. 
> I do know that, for numerous reasons, the railroad
> is very careful not to do anything that would
> construe it to be a common carrier.  That said,
> the fact that C&TS is not a common carrier does
> NOT exempt it from FRA regulation in certain areas
> of its operation.  It is possible to see FRA
> inspectors on C&TS property every year.

Let me agree with you and give some historical back ground data and facts.  The Colorado-New Mexico RR Authority bought the narrow gauge miles from Antonito to Chama, NM in 1970 with a sales document that requires that the trackage never carry any commerce.  This was written into the deed because the Denver & Rio Grande Western RR at the time operated a trucking service called Rio Grande Motorways and they did not want to lose any possible truck or train traffic.  Since the US Supreme Court in the 1840s ruled in the Famous Passenger ruling, that passenger are not commerce unless the person is dead or a slave, then there is no commerce moved or handled on the Cumbres & Toltec Scenic RR.  (unless a person dies en route and passes the state signs.)

In effect the FRA has no jurisdictional authority to even be on the C&TS RR but in 1970 the Texas Office of the ICC was invited to inspect and aid the tourist railroad and have continued to return in a volunteer manner. They are not obligated by law to be there.   The Denver office of the ICC did not even have this entire railroad within any jurisdiction of their public level of announced interest until Black Bark in the cab of a snow plow flanger train told the engineer, who want to stop and check Apache Crossing, to keep on moving!  We all know what happened when the engine ran up on ice and derailed and almost turned over.  But that was a work train so there would not have been any violation per the ICC.  The problem was that it had been on the 1.42% up grade and the work train needed more power to get to Cumbers. Just behind this snow flanger work train was a tourist passenger train, mostly with a English tour group.  Black Bart. told the passenger train to come up to Los Pinos and couple into the rear of the Flanger Plow work train.  They did not uncouple the tie down the passenger cars so that was a Federal violation to couple a passenger train into the flanger train which is no longer a work train.  Because of two engines far apart and the momentum of the passenger cars, the lead engine could not stop in quick enough time to not almost turn over.  If the passenger cars were not behind the two car train, it could have made a hammer dump air stop, and they could likely just back up and clean the crossing and go on.  I understand people in the passenger car were thrown over the seats and should have never been part of the functions of plowing snow.  Besides the track is uninspected track before the work train clears the snow and Okayed the track for the passenger train to proceed.  Passenger trains cannot be run over snow covered un-inspected track that needs to be viewed by a qualified track inspector.
  
Because of these two Federal rule violations, the Denver office of the ICC extended jurisdiction over the Colorado-New Mexico Railroad Authority trackage, even though there are no Federal standards for narrow gauge track specification, there were operating rules that need to be understood.  There are other safety issues such as sub grade.  You can look up the date of this derailment and it was not until then the FRA began covering the property.
 
Regarding OSHA being on Federal RR jurisdiction railroad lines is generally unknown and would be interesting what railroad and location you as using as an example. Dreamer is dreaming.
 



Edited 2 time(s). Last edit at 08/12/20 18:48 by PlyWoody.

The C&TS was always under FRA jurisdiction for steam locomotive inspection and safety appliances.  This was apparently decreed by the fact it was indeed an interstate carrier.  No other FRA regulations applied.

In the early 1990's the FRA announced jurisdiction on on all tourist railroads that were either part of the General System or crossed a public right of way or came within a certain distance of a general system right of way.  At that time, the C&TS came under FRA hours of service laws, accident and incident reporting and other items.

Earlk Wrote:
-------------------------------------------------------
> The C&TS was always under FRA jurisdiction for
> steam locomotive inspection and safety
> appliances.  This was apparently decreed by the
> fact it was indeed an interstate carrier.  

I disagree with this statement as the Colorado-New Mexico RR Authority line from Chama to Antonito has no interline or interstate freight tariffs in effect and it carries no commerce.  Crossing state lines is of no consequence if you carry nothing and do not provide any transportation.  Passenger are not commerce [Supreme Court 1840's] and moving them is not performing transportation.as they all end up back where they began, regardless of use of motor carrier.  The line is closer to the description of "rapid transit" as described by the FRA and that is the first description the FRA says they have no jurisdiction is over "rapid transit".

PlyWoody Wrote:
-------------------------------------------------------
> Earlk Wrote:
> --------------------------------------------------
> -----
> > The C&TS was always under FRA jurisdiction for
> > steam locomotive inspection and safety
> > appliances.  This was apparently decreed by
> the
> > fact it was indeed an interstate carrier.  
>
> I disagree with this statement as the Colorado-New
> Mexico RR Authority line from Chama to Antonito
> has no interline or interstate freight tariffs in
> effect and it carries no commerce.  Crossing
> state lines is of no consequence if you carry
> nothing and do not provide any transportation. 
> Passenger are not commerce and moving them is not
> performing transportation.as they all end up back
> where they began, regardless of use of motor
> carrier.  The line is closer to the description
> of "rapid transit" as described by the FRA and
> that is the first description the FRA says they
> have no jurisdiction is over "rapid transit".

George, I don't care if you agree with me or not.  This is what we were told, and we complied.  That fact that we crossed a state line boundary, was all that mattered.  Any state reg (or lack of same) null and void and we were regulated by federal law.

PlyWoody Wrote:
-------------------------------------------------------
> Earlk Wrote:
> --------------------------------------------------
> -----
> > The C&TS was always under FRA jurisdiction for
> > steam locomotive inspection and safety
> > appliances.  This was apparently decreed by
> the
> > fact it was indeed an interstate carrier.  
>
> I disagree with this statement as the Colorado-New
> Mexico RR Authority line from Chama to Antonito
> has no interline or interstate freight tariffs in
> effect and it carries no commerce.  Crossing
> state lines is of no consequence if you carry
> nothing and do not provide any transportation. 
> Passenger are not commerce and moving them is not
> performing transportation.as they all end up back
> where they began, regardless of use of motor
> carrier.  The line is closer to the description
> of "rapid transit" as described by the FRA and
> that is the first description the FRA says they
> have no jurisdiction is over "rapid transit".

George, I don't care if you agree with me or not.  This is what we were told, and we complied.  That fact that we crossed a state line boundary, was all that mattered.  Any state regulation (or lack of same) null and void and we were regulated by federal law.