In April 2019, Slover & Loftus LLP’s client Fluor Marine Propulsion, LLC, the Naval Nuclear Propulsion Program, and the United States Army Military Surface Deployment and Distribution Command, (collectively, “the Government”), jointly petitioned the Surface Transportation Board (“STB”) seeking a declaratory order related to the regulatory status of a short rail line located near Ballston Spa, N.Y. The case arose in the context of threats by the owner of the rail line, the Delaware and Hudson Railway Company, Inc., d/b/a Canadian Pacific (“CP”), to stop transporting the Government’s shipments over the line, including the Government’s radioactive material shipments, unless the Government bought the segment. The Government uses the segment to originate, terminate and transload rail shipments moving to and from the nearby Kenneth A. Kesselring Site. The Kesselring Site is a critically important national defense facility that contains nuclear powered prototype aircraft carriers and submarines. The Navy uses these prototypes to train nuclear officers and enlisted personnel. The nuclear powered prototypes at the Kesselring Site need to be periodically refueled, and the Government is currently engaged in a $1.5 billion refueling project at the Kesselring Site.
On October 15, 2019, the STB issued a decision, granting the Government’s joint petition for declaratory order relief. The STB agreed with the Government that the disputed line was an STB-regulated common carrier line; that CP had a common carrier obligation to transport the Government’s shipments over the line (including its radioactive material shipments); and that CP had a corresponding common carrier obligation to provide the Government with reasonable access to the line to allow the Government to transload its shipments to and from the Kesselring Site.