The Surface Transportation Board (STB) has issued a decision in Union Pacific Railroad Company—Construction and Operation Exemption—in Maricopa County, Ariz., Docket No. FD 36501, in which the railroad petitioned the Board for an exemption from the prior approval requirements of 49 U.S.C. § 10901 to construct a six-mile rail line (known as the PIRATE project) in Maricopa County and Pinal County, Ariz. STB Chairman Robert E. Primus concurred in a separate expression. Railway Age Capitol Hill Contributing Editor Frank N. Wilner comments.
The PIRATE project would connect the Pecos Advanced Manufacturing Zone to UP’s main line at the border between Maricopa and Pinal counties (see map below). It would serve Commercial Metals Company’s new steel facility.
The STB on Nov. 14 reported that its decision (download below) directs UP to “cure certain deficiencies in its responses to earlier Board-ordered document requests relating to ground disturbances and damage to archaeological resources that were discovered during the preparation of the Final Environmental Assessment” by the Board’s Office of Environmental Analysis (OEA). Filings are due by Nov. 29. 2024.
The STB has also reinstated a schedule that was placed in abeyance earlier this year “for submissions relating to whether UP engaged in ‘anticipatory demolition’ of historic properties” in violation of Section 110(k) of the National Historic Preservation Act (NHPA). Opening submissions regarding Section 110(k) issues will be due Dec. 16, 2024, and replies will be due Jan. 13, 2025.
In a Nov. 14 statement to Railway Age, UP said that it “deeply respects the Indigenous People, and the site is now protected and secured. We are aligned with the STB to grow volume on the network and glad we have a path forward.”
Primus Addresses Proceeding in Separate Expression
STB Chair Primus concurred with the STB decision and wrote a separate, rather vitriolic expression. Railway Age reproduces it here in its entirety:
“This decision serves as another example of UP’s inability to adhere to the Board’s guidelines and instructions and to provide timely and appropriate responses to Board orders. Make no mistake, the sole reason for today’s decision, and ultimate delay in moving the PIRATE project forward, falls squarely in the lap of UP.
“Railroads cannot alter the project area for a proposed rail line construction until environmental and historic review has been completed and the Board has authorized the project. Common sense, right? Apparently not, for UP, through third-party actions, allowed this to happen. Not once, not twice, but several times. This despite the fact that UP was told by OEA, in September of 2022, that there were a number of significant archaeological sites, located within the project’s Area of Potential Effect (APE), that were eligible for listing in the National Register of Historic Places, and that the PIRATE project would have an adverse effect on historic resources. Moreover, on Oct. 3, 2022, and again on Nov. 3, 2022, UP participated in meetings with OEA and the Section 106 consulting parties about the project’s adverse effect to cultural resources and the need to develop a Memorandum of Agreement setting out a process to mitigate adverse effects to historic resources.
“It is painfully obvious that these notifications and discussions fell on deaf ears, as UP ultimately failed to protect the culturally sensitive resources on UP-owned property and within the PIRATE project’s APE. To make matters worse, OEA was never informed in advance by UP about any of the construction activities that took place in the project area, nor was it informed by UP after known, significant archaeological sites on its property were heavily disturbed. In fact, OEA first learned of the significant ground disturbance and damage to National Register eligible archaeological resources in late July 2023, after it had reviewed aerial photography of the project area. Incredibly, this was eight months after the initial ground disturbance occurred in December 2022. Subsequent construction disturbances, also unbeknownst to OEA, occurred in the May, June, and July 2023 timeframe.
“On Aug. 1, 2023, three days after learning about all the ground disturbance, OEA sent a letter directing UP to immediately cease and desist from any further construction activities and to secure the entire PIRATE right-of-way to prevent further damage. However, significant cultural damage had already been done. UP allowed [more than] 19 acres of sacred lands connected to the Gila River Indian Community and the Salt River Pima-Maricopa Indian Community to be heavily disturbed, including the removal of [more than] 40,000 cubic yards of soil containing important cultural material. It is likely that thousands of artifacts were removed with the soil, including potential Native American ancestral remains. In light of the significant damage done to the APE, the Board appropriately delayed issuance of the Final EA until a thorough investigation could take place.
“Fast forward to Oct. 1, 2024, and my receipt of a rather obtuse and misguided letter from UP CEO Jim Vena. In it, Vena laments that UP’s growth is being held up by the Board and further bemoans that ‘for six months, Union Pacific and all other stakeholders have been waiting for the [A]gency to provide a clear path forward to resolve the harms and gain the Agency’s approval for this exciting growth opportunity.’ I would again remind Vena that we are where we are solely due to UP’s irresponsibility and recklessness. Furthermore, Vena purports to ‘accept and support the necessity of the Agency’s investigations into the circumstances that led to the entirely unacceptable harms on cultural resources.’ But it’s not just investigating the circumstances that led to the harm. It’s assessing the severe damage rendered to culturally significant resources and harm to the affected Tribes. UP’s insensitive and casual malfeasance has resulted in desecration of Tribal ancestral grounds. The Tribes describe the disruption of their culturally sacred land this way:
“‘We are intensely saddened to know that our religious and culturally significant O’Odham heritage has been desecrated and destroyed by modern human ground disturbing activity.
“‘Destructive actions with heavy earth-moving machinery is unconscionable to the O’Odham spiritual connections with our Huhugam ancestors. We are dismayed that there are people who believe that destruction of this nature is considered a casual mishap and do not have any idea what spiritual harms have occurred due to the desecration of our ancestor’s eternal resting places. The O’Odham of Southern Arizona experience a significant emotional loss as our spiritual being are cut and scraped away every time an ancestral site is obliterated by unlawful actions by various entities.’
“The Board takes disturbing and desecrating ancestral sacred lands extremely seriously and will not compromise the time needed to thoroughly investigate this matter. That said, if Vena needs another reason why this matter has been delayed, he, again, has only his organization to blame, this time for its sloppy responses to the documents requested in the December 2023 Decision, which the Board needed at the time to determine whether UP violated Section 110(k) of the National Historic Preservation Act. UP produced 1,000 documents totaling [more than] 10,000 pages, as well as a privilege log, but astonishingly still failed to fully comport with the Board’s document requests, as explained in today’s decision.
“To sum it up, UP’s negligence caused the initial delay of this project, and its ineptitude further exacerbated it. In Vena’s letter, he declares UP has ‘a strong mindset to engage our customers, identify new opportunities to grow and find innovative solutions to help our customers.’ If only UP had applied that strong mindset to the Board’s environmental review process two years ago, this decision and my concurrence would not be necessary. Moreover, the Final EA might have already been completed. Perhaps instead of writing to me, Vena should have written a letter to stakeholders, the Commercial Metals Company, members of the Arizona delegation and the affected Tribes, apologizing for setting the PIRATE project back two years by not following Board guidelines and allowing the desecration of ancestral Tribal land, and then slow footing the investigation process, hindering the Board’s efforts to issue a Final EA, and ultimately delaying the Board’s consideration of whether to approve the project. He should also explain that there was a clear path forward and a reasonable timetable for final approval of this project before UP commenced its tragic comedy of errors. If he and UP want a new clear path forward, my advice would be simple: Follow our guidelines and orders.
“It is surely disappointing, and I guess that’s the only thing Vena’s letter got right.”
Railway Age Capitol Hill Contributing Editor Frank N. Wilner, who is also author of a history of the STB and its Interstate Commerce Commission predecessor, “Railroads & Economic Regulation,” commented: “The soon-to-be-relieved apoplectic STB chairperson, in his separate expression, appears to be challenging the President-elect of the United States to a public nastiness contest.”
“Since his 2021 arrival at the STB, Primus has criticized railroads for their embrace of productivity-enhancing technology and more efficient operating plans, citing reduced employee headcounts,” Wilner wrote Oct. 7. “His demeanor reflects a pre-STB career in the partisan House of Representatives—a noisy hall with a nightly brawl where rudeness is an art form. In recent months, Primus has lectured rail CEOs at public hearings and in telephone calls, and dispatched over his lone signature razor-sharp rebukes. So preoccupied is Primus in scolding railroad CEOs that under his chairpersonship the STB missed statutory deadlines. Among them is a decision on the joint application of CPKC and CSX to acquire short line Meridian & Bigbee to create more efficient routing to and from the Southeast that promises increased rail traffic.”
