Why a small North Dakota town is taking on big rail

Excerpt from American Journal of Transportation  |  By: Reuters | November 25, 2014

After her shift at the TraXside Cafe in the southeast North Dakota hamlet of Enderlin, all Karla Souer wants to do is go home. Unfortunately for the 38-year-old waitress the commute, which should only last a minute or two, can take a half-an-hour. That’s because, chances are, there’s a Canadian Pacific Railway Ltd train blocking the tracks somewhere on her route.

She has a lot of company. Partly thanks to North Dakota’s energy boom, twenty-eight of the railroad’s trains now traverse the city every day. Each carry hundreds of tank cars filled with oil or grain. Some idle as long as four hours, inconveniencing motorists, stranding pedestrians and posing logistical challenges for ambulances and firefighters.

Desperate for a solution, Enderlin’s city councilors last month banned train breaks longer than 10 minutes. The railroad has, in turn, sued the city of nearly 900 in federal court. Canadian Pacific contends the order violates interstate commerce laws. The railroad’s lawyers also asked a judge to grant a temporary injunction.

The verdict in the trial, which hasn’t been scheduled, may have national implications. While courts have historically supported unfettered interstate commerce, an Enderlin victory could embolden other communities to impose restrictions. That would snarl transcontinental rail traffic, Canadian Pacific’s lawyers said, and could stifle the oil industry in states like North Dakota.

“This case has a huge reach,” said Bob Pottroff, a Manhattan, Kansas, attorney specializing in interstate commerce and rail safety litigation. “Right now cities don’t have the right to tell a railroad it can’t park in the middle of their town.

A Divided City

The stakes are particularly high for North Dakota.

More than 60 percent of the 1.1 million barrels of oil produced each day in the state is transported via rail, far higher than the national average. Pipeline capacity isn’t adequate to handle the production, so Canadian Pacific, Berkshire Hathaway’s BNSF [BNISF.UL] and other railways are relied upon to ship oil to the U.S. Gulf Coast, as well as the East and West coasts.

Enderlin, which was founded by railroad executives in 1881, is key to transporting much of that oil. As a rail yard and regional hub for 140 Canadian Pacific employees, the city is a place where engineers and conductors swap out after their shifts; test air breaks – a federally required step – and grab a bite from Souer at the cafe. But Enderlin’s three major crossings are cut off when a change-over happens, dividing the city.

“It used to be just a few minutes,” said Myrene Peterson, president of the Enderlin Historical Society. “Now it takes hours.”

An overpass three miles outside town does offer some relief. But each idled train means it takes much longer – as much as 13 minutes – for the city’s firemen to reach some parts of Enderlin, including the Archer Daniels Midland plant, which employees as many as 250 people.

“If you’re a first responder in Enderlin and worried about getting across the track to help someone with a heart attack, it’s not too much to ask that folks have access,” said Democratic Senator Heidi Heitkamp of North Dakota.

Enderlin’s mayor, Deon Maasjo, and Canadian Pacific declined to comment, as did attorneys for both sides, all citing the ongoing litigation.

Just after the suit was filed last month, though, Maasjo told the Grand Forks Herald the problem of train delays “just seems to be getting worse.”

Jail Time?

The line through Enderlin is a key part of Canadian Pacific’s already-packed transcontinental line. Complying with the Enderlin ordinance would cost at least $1,750 for each violating train – and curb the flow of oil as well as grain and other commodities, the company said in filings with the U.S. District Court for North Dakota.

Canadian Pacific ridiculed part of Enderlin’s ordinance that imposes criminal penalties – including an automatic two-day jail sentence – on conductors who idle trains. “Clearly,” the company said in filings, “if the train crews are in jail, they cannot operate the trains.” So far, no arrests have been made, the county sheriff’s office said.

Fighting back, Enderlin said in its own court filings that human safety should trump any financial harm to the company. It’s not clear how much Enderlin is spending to defend itself, and city officials did not have data readily available. But Canadian Pacific has asked for the city to pay the railroad’s legal fees should it prevail.

Sill, it’s a fight Enderlin seems happy to pursue.

As Scott DeFehr, who has lived in Enderlin for 14 years, wrote in a letter to the court, the city has residents “whose safety and very lives are threatened by the blocking of rail crossings.” (Reuters)