U&D Railway Revitalization Corporation PRESS RELEASE 2-28-18 Ulster County, NYC DEP Respond to STB, Choose Confrontation and Risk
On Friday February 23, 2018 Ulster County (UC) and New York City Department of Environmental Protection (DEP) filed replies to the U&D Railway Revitalization Corporation (UDRRC) petition before the Surface Transportation Board (STB).
Ulster County holds to its claim that the Catskill Mountain Branch was abandoned in 1977, and therefore the STB has no jurisdiction and must dismiss the petition. DEP is making that claim as well. UDRRC had filed the petition with the STB to settle its status and answer questions about ownership of the corridor; Ulster County is claiming it is a non-issue.
Ulster County has chosen to expose itself to litigation over easements and precluded any Federal funding via rail banking as consequences of the abandonment argument. All cost/benefit numbers projected for the Ashokan Rail Trail are now invalid. Further, the Linear Park in Kingston is now at risk, as it is part of the line the county argues has been abandoned.
This raises the question of when Ulster County ‘discovered’ the line was abandoned. The county had been preparing to go before the STB as late as 2015 – but didn’t. (See UDRRC press release 2-16-18) Did the county fail to do due diligence – or had it concluded the STB might rule against trail plans and chose to proceed in the hope none of these issues would come to light? Was the County Legislature informed at the time?
In a separate action the same day in State Supreme Court, the county persuaded a judge against issuing an immediate stop work order on demolition, but did so partly because the county claimed track removal was 95% done. Aerial photos show less than 50% completion. (See Background material at udrrcorp.com) The issue is only postponed, not settled – there will be a return court date, and the potential for legal action by other parties cannot be ruled out.
Plans by NYC DEP for the Ashokan Reservoir starting in 2023 call into question the entire rationale for removing the rails. Ulster County’s agreement with NYC DEP on the Ashokan Rail Trail benefits New York City more than the county in light of those plans, and shortchanges the county’s future. (See Background material at udrrcorp.com)
UDRRC and the STB have been urging mediation; the Hein administration remains defiant and continues demolition of the rail line while refusing to answer questions. UDRRC filed with the STB in hopes of precluding the consequences the administration appears determined to embrace. The Hein administration has chosen to pursue a high-risk no-reward strategy.
Ulster County’s response to the STB weighs in at around 5 pounds and over two inches thick when its 816 pages are printed out double-sided. NYC DEP’s is more modest, at a mere 54 pages. (The original UDRRC petition is 57 pages.) While Ulster County is allowing UDRRC 7 days to wade through their data dump, UDRRC does not have to respond to it, other than to address errors, misstatements of fact, and obvious omissions. The sheer volume of information is a tactic to make that more difficult. Much of it was apparently included for that purpose; it is of only passing relevance to the key issues.
While content cannot be disregarded, what matters more is intent. Ulster County has chosen a dangerous course. By claiming the Catskill Mountain Branch was abandoned in 1977, the county has opened the door to legal challenges over easements along the entire corridor, not just the Ashokan. A 1977 abandonment date also renders any trail conversion anywhere along the corridor ineligible for Federal funding through the rail banking program.
In short, Ulster County and DEP have just blown up all the cost-benefit calculations used to promote trail conversion, opened the county to litigation over easements, raised the cost of building trails by an unknown amount, and excluded a major funding source. Taxpayers of Ulster County will have to foot the bill – IF the county’s abandonment claim is upheld and the STB agrees it has no jurisdiction.
On the same day that Ulster County and DEP filed with the STB, an attorney for three landowners whose property is crossed by the rail corridor and the UDRRC (as an interested party) appeared before State Supreme Court Justice Christopher E
Aerial photos taken the next day show that Havranek misspoke; roughly 25% of the rails were still in the corridor and there were still thousands of ties that need to be removed, as well as ballast work. At best, work was not even half done. (Photos will be posted at: udrrcorp.com)
Parties are expected to return within 16 days to pursue the matter; a restraining order has not yet been ruled out. There is nothing to stop any other easement holders from pursuing action against the county, now that it has raised the question of easement reversion if the line has been abandoned.
County Executive Michael P. Hein repeatedly boasted at a Chamber of Commerce breakfast – ironically the day before the filings were posted – that he has put together a government of “really high quality people”. If that is the case, presumably they know what they are doing. The question is, why have they chosen this course?
It’s impossible to know all of the reasons behind Ulster County’s actions as long as the Hein administration refuses to answer any questions “on matters under litigation”, but there is one possible reason that stands out. The denial of STB jurisdiction is the only way Ulster County and DEP can avoid risking a decision by the STB that would keep them from removing the rails.
The STB might declare the county never owned the corridor, and could instead open it up to any rail operator who might want to bid on it. It might require the county to rebuild all of the track it has removed, and mitigate other damage it has incurred on the line. It could allow trail construction to proceed – with the provision that a railroad could make an application to return the corridor to active use as a rail line at any time. There are other possible outcomes; railroad law is complex but the mandate of the STB is to preserve rail corridors.
This may explain why Ulster County never followed up on publicly announced plans to go before the STB to have the line declared abandoned and get rail banking funding. (See UDRRC press release 2-16-18) UDRRC was unable to find any record that Ulster County initiated any action with the STB despite public statements and contractual obligations to the contrary. The question that needs to be asked is, why?
Was the Hein administration aware that the STB might rule against it? Did they then deliberately choose not to raise the issue with the STB? Was the county already in possession of the documents they now claim show abandonment and chose not to acknowledge them, while both the public and the County Legislature had been left with the impression that STB action was proceeding? Did they only ‘discover’ those documents after the UDRRC petition was going to compel them to appear before the STB?
This is of a piece with the assertion by the Hein Administration to the STB that there has been no freight or passenger traffic on the line since 1976! That will come as news to the thousands who have ridden the Polar Express, or those who remember Conrail and the Catskill Mountain Railroad moving cars in and out of a recycling plant in Kingston.
What else is at stake?
Why Ulster County and DEP are so determined to remove the tracks is a matter of speculation, but one piece of the puzzle may have been revealed in 2017. DEP would like the tracks gone from the reservoir, but only putative owner Ulster County can initiate that process. DEP’s $2 million for track removal by the county is an incentive for the county to do so.
DEP insists it can only be rail or trail, not both, and the county gets nothing if the tracks remain. Superficially this looks like a reasonable deal for the county and the taxpayer, given the county’s determined efforts to portray the tracks as unusable. It’s why Ulster County appears to have reason to go along with this, and signed a new easement that locks this in. There’s more to this than just the rail corridor though.
Ten Years and $750 million
In 2017 DEP announced a 10-year, $750 million project to rebuild the Ashokan Reservoir. It will start in 2023. This was not made public until after DEP and Ulster County had signed off on track removal in 2015 and gotten through much of the subsequent process. From DEP’s point of view, it will be far simpler if they do not have to work around the rail corridor. It’s a clear win for DEP – but what about Ulster County?
The absence of a rail line means all construction materials, both those being removed and those being brought in, will have to move over the roads in the area. This will increase wear on the roads, cause congestion, and health issues from the emissions from heavy diesel-powered vehicles. A working rail line could mitigate all of that – but it would also require the county to restore the connection to the CSX main line (as STB records show was supposed to have been done).
For Ulster County, this would block construction of the Linear Park in Kingston – a project in which the Hein administration has invested much political capital. The Hein administration may be of the opinion that the benefits from a park are greater than any rail line would be, but that needs to be weighed against the total impact of the reservoir project and the long-term prospects that follow from a restored rail line.
The chief objection to restoring the rail line has always been the cost and the lack of a source of revenue to pay for it. The Ashokan Re-Build would not only justify restoring the line, the revenue from moving carloads for the project would pay for it – but only if the corridor is preserved. Given the scope of the project, rebuilding the corridor for both rail and trail as part of it would be a minor consideration. Again, this completely changes the cost/benefit ratios for removing the rails for a trail.
With the rail line restored, other possibilities arise. Kingston would have a direct rail connection to the reservoir and beyond for tourism; DEP plans include enhanced recreational opportunities. Ulster County would be able to attract businesses to the corridor that need a connection to the national rail net; this would be a source of jobs in a way a trail can never be.
Trails may be a marketable amenity for the benefit of real estate speculators and can improve quality of life – but their direct job creation potential is marginal. Their upkeep is a continuing expense with no direct revenue to support them. There is no shortage of trails in the area, but only one rail corridor left.
The economic potential of job creation and revenue from a restored rail corridor is far greater than from a trail alone – and it doesn’t have to be an either/or choice. Combining both multiplies the benefits above and beyond either by itself. Further, a working railroad with both passenger and freight operations would help broaden the economic base of the region, making it less dependent on tourism.
A 2018 Marist College study of counties in the mid Hudson valley finds that most of them have residents who commute out of county to jobs elsewhere. Ulster County is highest, with a 75% rate. Creating jobs within the county would reverse that trend, expand the tax base, and broaden the economy.
Preserving rail infrastructure in light of future West Shore passenger service would also make the county more attractive as a place to live. Governor Cuomo is calling for Metro North service to Woodbury Commons in Orange County. Extending it north will only be a matter of time. Amtrak ran excursion trains up from New York City through Kingston in October 2017 – again, the possibility is there. A rail connection offering service directly into the Catskills once more would be huge.
At the same Chamber of Commerce breakfast where Hein spoke of his high quality people, he also talked up his efforts to upgrade the county’s roads and bridges. Apparently, railroads are not part of his vision when it comes to preparing Ulster County transportation infrastructure for the 21st Century. There is no other developed country in the world that is choosing to convert rail lines into trails the way America is doing – and the smart ones are investing heavily in new rail.
Hein pointed with pride to the solar power array at a local landfill, soon to be switched on. The Netherlands operate their rail system using electricity from wind power; those solar panels could be powering streetcars in Kingston at the very least. While Hein is promoting his administration’s efforts to make Ulster County ‘green’, ignoring the energy efficiency of steel wheels on steel rails is ignoring a way of reducing the county’s carbon load and puts the county on the same side as fossil fuel interests.
The Hein administration refuses to answer any questions about ongoing litigation. Considering the consequences of the position the administration has taken, it appears increasingly unlikely they have any good answers. The taxpayers of Ulster County are the ones who are going to have to foot the bill and live with the long-term consequences. They should demand answers, as should the county legislature.
The U&D Railway Revitalization Corporation has been looking at the bigger picture, above and beyond immediate political considerations. We believe restoring the rail corridor in light of the above information is more important than ever. We see this as an investment in the long-term future of the region that rises far and away above any benefits to be gained from any trail by itself – and we include trails as part of that future, a future big enough for everyone.
WAMC news story about Marist College Commuter Study:
Cuomo Metro North Proposal:
Amtrak 2017 Autumn Express:
Dutch trains run on 100% wind power
NYC DEP Press Release on Ashokan Reconstruction
The U&D Railway Revitalization Corporation petition for declaratory relief can be found at:
The preliminary response by Ulster County can be found at:
Link to 2/23/18 Ulster County Response
84 Mb, 816 pages
NYC DEP filing 2-23-18 28.6 Mb
Ulster County follow up 2-26-18 1.14 Mb
Please address all inquiries to:
U&D Railway Revitalization Corporation
P.O. Box 503
Phoenicia, NY 12464
The U & D Railway Revitalization Corp. is a 501(c)(3) nonprofit organization. Your contribution is tax-deductible to the extent allowed by law. No goods or services were provided in exchange for your generous financial donation.