WASHINGTON – Navajo Transitional Energy Co. says BNSF Railway has violated its common carrier obligations by failing to provide adequate service for its Powder River Basin export coal trains.
NTEC, in a complaint filed with the Surface Transportation Board on Friday, says BNSF has failed to provide adequate service from the Spring Creek Mine in Montana to the Westshore Terminals at Roberts Bank in Delta, British Columbia, Canada.
The coal company, in a separate filing, also seeks an emergency service order from the STB that would require BNSF to handle 29 loaded trains per month beginning May 1.
BNSF handled 17 NTEC trains in February and 22 in March, which NTEC says was below the 24 to 30 trains per month that the coal company sought as part of a Nov. 1, 2022, service request. The coal is exported to customers in Japan and South Korea.
NTEC says BNSF expects to reduce service to 16 trains per month beginning June 1. “Service at a 16-train per month level would profoundly hinder NTEC’s ability to run its business, to satisfy its existing contractual obligations, and to market export coal for future sales,” NTEC told the STB.
NTEC filed a breach of contract lawsuit against BNSF in federal court in December 2022 related to the railroad’s service in 2022. BNSF favors other coal producers over NTEC’s Spring Creek Mine, the suit claims.
The coal company’s complaint with the STB asks the board to determine that BNSF has failed to provide adequate service; to define the scope of BNSF’s common carrier obligation; to require restoration of adequate service; and seeks unspecified monetary damages.
The complaints filed with the STB last week blindsided the railroad, its lawyers told the board on Monday.
“The pleadings NTEC filed late Friday afternoon – consisting of 52 pages of legal argument and verified statements, plus another nearly 42 pages of exhibits and attachments – have obviously been in preparation for quite some time, and yet NTEC had not previously notified BNSF of its claim that a sudden state of emergency now exists,” BNSF wrote.
BNSF told the STB it will formally reply to the NTEC complaints on April 19.
“In our reply, BNSF will explain why there is no emergency situation necessitating immediate Board action and why the injunctive relief sought in the alternative would not only be unwarranted but would be harmful to the public interest,” the railway told the board. “The reply will also detail BNSF’s efforts to transparently communicate with NTEC over a long period of time regarding constraints on capacity and realistic projections of available resources, as well as BNSF’s ongoing efforts to meet NTEC’s transportation requests both when NTEC was tendering shipments pursuant to multiple transportation contracts with BNSF, and more recently as NTEC has chosen to tender shipments pursuant to BNSF’s common carrier pricing authority.”
BNSF and NTEC have been trying to iron out their differences through the STB’s Rail Customer Assistance Program.
The common carrier dispute is the second currently before the STB. Sanimax, a small shipper in the Twin Cities, claims that Union Pacific violated its common carrier obligation by unilaterally reducing its local service.
The common carrier obligation requires railroads to provide service upon reasonable request.
How old is the contract that BNSF signed? Wonder if the tariff is lower than what we can now charge on new contracts? Maybe heard in marketing department—-“Those stupid ________ running the coal company will agree to higher tariffs to get the number of trains they want? Maybe we will just cut number of cars per train”
We cannot let them know it was our cutting T&E too much for the route to handle all the trains.
It is time for the STB to tell lawyers to stop slicing all the Bull ++++around.
I would suppose that BNSF’s claims about expected service improvements were just a load of corporate horse hockey. This is no time to be competing with UP for “Worst Service in the West”. C’mon, Mr. Buffet – kick a few people in the rear end and right your ship.
The filing “blindsided” BNSF?
The Navajo had already filed a lawsuit
The Navajo had already been working with you in the assistance program
The Navajo had a contract with you
What more were you expecting BNSF? a knock on the door? a singing telegram?
If you contracted for 27 loads and you only did 16, well, you should have expected your chains to get rattled.
Interesting:
1.”it seems BNSF HAD (edit mrw) BEEN preparing a response to a challenge of contract breach
2. NTEC seemed to be blindsided. Shock and surprise considering #1
3. A contract means what? A commitment to do something. If it needs be reconsidered, seems a PLEA from BNSF would be necessary rather than a “surprise” to NTEC
4. With #3 in mind possibly a compromise could be reached. But that is contrary to culture present day. For sure in politics and government. endmrw0418231055