Moore, BNSF Railway argue law conflicts in rail crossing rebuild case
Moore voters approved a bond issue in 2018 to spend $28 million to replace a road-rail intersection where BNSF Railway’s tracks intersect SE 4th Street with a grade-separated crossing.
City officials said an engineer it hired to design the project worked with both railroad and Oklahoma Department of Transportation officials to develop early-project plans.
But once the city approached the railroad to see if it would be willing to contribute financially to help pay for the job, talks broke down.
Now, Moore is asking the Oklahoma Corporation Commission to order the construction of a grade-separated crossing at the location, and to order the railroad to pay the project’s entire cost.
The railroad seeks to derail the application by asking for its dismissal, asserting that only Oklahoma’s Department of Transportation has the authority to undertake a project of that type there, given that SE 4th Street also is State Highway 37.
An administrative law judge at the commission previously recommended a rejection of BNSF’s request.
This week, attorneys for the railroad and the city argued their case again during an appeal of that recommendation before a different administrative law judge. Two elected members of the commission attended.
The site in question involves a four-lane road that travels east and west through Moore that intersects with a set of two tracks that run north and south between South Broadway and South Eastern Avenue that are owned by BNSF Railway.
Besides handling its freight traffic, the route also is used by Amtrak’s Heartland Flyer twice daily.
Moore officials state in their application that BNSF Railway runs more than 23 trains that average 5,900 feet in length through the crossing daily, at speeds ranging from 24 to 60 mph.
While another grade-separated crossing is located just a mile to the south, Moore officials said they understand from the railroad that it intends to ramp up activity at a major yard it has just two miles north of the SE 4th street intersection and expressed concerns that would increase rail traffic through the area.
Officials said the design of the bridge that would carry the tracks, if built, would include room for a third track to be added, at the railway’s discretion.
They also said that replacing the at-grade crossing at SE 4th Street would speed flow of traffic through the area by removing an obstacle that sometimes causes accidents (six in four years, including one fatality) and often delays response times for police, fire and ambulances running to and from two nearby hospitals.
Officials said the city undertook feasibility, cost-benefit and environmental studies that show the project is the most reasonable and cost-effective alternative to alleviating congestion issues there and would benefit both the railroad and community if the project were built.
They noted the railroad provided feedback when design work reached a 30% completion point, adding that its considerations were folded into the continuing design process, which now stands at a point of 60% completion.
City officials said this week the railroad has been provided with the latest plans.
BNSF Railway’s arguments
An attorney for BNSF argued its appeal before Keith T. Thomas, an administrative law judge at the agency.
Attorney J. Dillon Curran asserted Moore has no standing to seek the commission’s relief.
Curran said SE 4th Street where it intersects with the tracks is technically a state highway, noting that legislation adopted by the Oklahoma Legislature in 1968 specifically gave control over state highways to the state’s transportation commission, control over county highways to boards of county commissioners and control over city streets to municipalities.
Curran cited five separate laws within Title 69 of Oklahoma’s statutes that he argued gives control over the roadway in question to state officials.
Curran said the administrative law judge hearing BNSF’s dismissal request initially had mistakenly concluded the railroad was challenging the commission’s authority over the intersection.
“That is not the case,” Curran said. “The issue is not whether this commission has authority over the grade, it is whether Moore has standing to ask the commission to exercise its authority. Only ODOT (the Oklahoma Department of Transportation) has the authority to change the grade on State Highway 37.”
Moore asserts the commission has the authority to require construction of the project through Article 9, Section 18 of the Oklahoma Constitution, which gives it jurisdiction over all "transportation and transmission companies doing business in this state.”
It argues the commission has authority to order BNSF Railway to pay the costs for the project granted to it by Title 17 of Oklahoma’s statutes, particularly one that reads, "the expense of construction and the maintenance of public highway grade crossings shall be borne by the railroad or railway company involved.
“For overgrade or undergrade public highway crossings over or under steam or electric railroad or railway, the assignment of cost and maintenance shall be left to the discretion of the Corporation Commission; but in no event shall the city, town or municipality be assessed more than 50% of the actual costs of such overgrade or undergrade crossings,” it states.
Derek K. Burch, an attorney representing the city in its application, noted Moore has spent more than $1 million so far in working to develop its plans for the underpass, noting that both the railroad and ODOT had been involved in the process until talks over a cost-sharing agreement fell apart.
“The railroad argues the application filed by Moore is fatal on its face,” Burch said. “But ODOT has not objected to this application, or called it inappropriate. They believe it is a good project and support it.”
An attorney representing the Oklahoma Corporation Commission’s transportation division also addressed Judge Thomas, telling him the division believes Moore had standing to file its application.
The hearing was attended by Commissioners Dana Murphy and Todd Hiett, who is chairman of the three-person panel.
Murphy asked attorneys representing the railroad, city and division numerous questions about Moore’s application.
Murphy also asked an attorney representing the Oklahoma Attorney General and an attorney representing ODOT at the hearing whether or not it supported Moore’s rights to file the application before the commission.
The attorney general’s representative told Murphy the agency believed Moore was within its rights, while David Miley, the attorney representing ODOT, told Murphy his agency had no opinion on whether or not BNSF’s request for dismissal should be granted.
“The department understands the needs of the various parties in the project and wants to work with them, but not through the corporation commission procedure," Miley said. “We have our eight year plan, and would prefer to see them work through that rather than your process. But they have made their decision, and we are going to see how it unfolds.”
While Judge Thomas must still issue a recommendation on BNSF's appeal, Murphy urged parties in the case to try to resolve their differences.
“I am not making a ruling or issuing an order, but I am just requesting the parties to get back together to see if they can get something worked out,” she said.