{"id":44695,"date":"2018-09-02T03:00:18","date_gmt":"2018-09-02T07:00:18","guid":{"rendered":"https:\/\/quotulatiousness.ca\/blog\/?p=44695"},"modified":"2018-08-27T21:47:28","modified_gmt":"2018-08-28T01:47:28","slug":"amtrak-service-and-the-takings-clause","status":"publish","type":"post","link":"https:\/\/quotulatiousness.ca\/blog\/2018\/09\/02\/amtrak-service-and-the-takings-clause\/","title":{"rendered":"Amtrak service and the “takings” clause"},"content":{"rendered":"

Back in August, Fred Frailey<\/a> reluctantly came to the conclusion that at some point American freight railways are going to have to challenge in court Amtrak’s legislated ability to pre-empt freight traffic on their networks:<\/p>\n

\"\"<\/a>

Amtrak’s
Eastbound Empire Builder crossing Two Medicine Trestle at East Glacier MT on 20 July 2011.
Photo by Steve Wilson via Wikimedia Commons.<\/p><\/div>\n

We all know about \u201ctaking the Fifth.\u201d It\u2019s our right under the Fifth Amendment to the U.S. Constitution not to be compelled to testify against ourselves. In other words, a court cannot force us to admit to driving 60 mph in a 45-mph zone (or something worse). That amendment has another, less-well-known clause, which says government cannot take away our property without just compensation. Lawyers know this as the \u201cTakings Clause.\u201d The Fifth came to mind the other day as I rode Amtrak\u2019s Empire Builder<\/em> from Seattle to Chicago. I\u2019ll get to my point, but first the experience.<\/p>\n

[…]<\/p>\n

All of this did terrible things to our schedule-keeping. By the third morning, as the train approached Devils Lake, N.D., we were more than eight hours late (the next day\u2019s eastbound Builder<\/em> was even later). But imagine what the Empire Builder<\/em> does to BNSF\u2019s freights every day. The Amtrak Improvement Act of 1973 reads: \u201cExcept in an emergency, intercity passenger trains operated by or on behalf of [Amtrak] shall be accorded preference over freight trains in the use of any given line of track, junction, or crossing.\u201d<\/p>\n

BNSF appears totally committed to obedience of this law but doing so devours the capacity of this route. It\u2019s not just that freights give way; whizzing along at a 79 mph versus 55 or 60 for the freights, the Empire Builder<\/em> eats capacity as if it were two or three freights, Six high-priority Z trains prowl the northern Transcon every day, and I don\u2019t think a single one of them that I observed was moving as we went by. One Z train was sandwiched between two stopped manifest trains, all making way for our Builder<\/em>.<\/p>\n

Obviously, Amtrak pays BNSF for the right to run trains over the freight railroad. But whatever it pays is but a fraction of the cost in delays to its own trains incurred by BNSF. Were the northern Transcon double-tracked all the way, these delays would obviously be minimized. But at $3 million or more a mile, double tracking consumes capital like a dry sponge, and it\u2019s not Amtrak\u2019s capital, either.<\/p>\n

So now to my point: Isn\u2019t it fair to say that Amtrak, which the U.S. Supreme Court in 2015 decreed to be an arm of government, is confiscating the property (track capacity) of host railroads? And if it is, shouldn\u2019t the freight railroads be fairly compensated for the delays to their freights caused by the loss of this capacity? Try as I might to say otherwise, I am forced to answer \u201cyes\u201d to both questions.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Back in August, Fred Frailey reluctantly came to the conclusion that at some point American freight railways are going to have to challenge in court Amtrak’s legislated ability to pre-empt freight traffic on their networks: We all know about \u201ctaking the Fifth.\u201d It\u2019s our right under the Fifth Amendment to the U.S. Constitution not to […]<\/p>\n","protected":false},"author":1,"featured_media":35193,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[831,25,9,237,13],"tags":[560,1225,715,752],"class_list":["post-44695","post","type-post","status-publish","format-standard","hentry","category-business","category-economics","category-law","category-railways","category-usa","tag-amtrak","tag-bnsf","tag-constitution","tag-supremecourt"],"jetpack_featured_media_url":"https:\/\/quotulatiousness.ca\/blog\/wp-content\/uploads\/2016\/06\/favicon.png","jetpack_shortlink":"https:\/\/wp.me\/p2hpV6-bCT","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts\/44695","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/comments?post=44695"}],"version-history":[{"count":1,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts\/44695\/revisions"}],"predecessor-version":[{"id":44697,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts\/44695\/revisions\/44697"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/media\/35193"}],"wp:attachment":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/media?parent=44695"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/categories?post=44695"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/tags?post=44695"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}