CSX

The US Sixth District Court of Appeals handed the city of Sebree a loss in its case against Florida-Based CSX Railroad, reaffirming the lower District Court's decision from last year that more or less stated that the railroad had the legal right do whatever it chose to with its lines, regardless of concerns for the safety of local citizens.

Approximately 1.6 mile of railroad line runs through the city of Sebree, crossing six streets. The height of those lines have long been of concern to the city, creating issues with a lack of visibility for motorists and causing problems for some longwheel base and low to the ground vehicles. The battle over those lines goes back more than a half century.

According to the appeals court document, in 2013, CSX began work to raise the railroad, but was stopped by the Sebree Police. In 2017, the railroad notifed the city of their intent

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CSX

to raise the rail by two or three inches, and the city refused to allow it.

The city had previous agreements and court orders on their side. In 1966 the city passed and ordinance that required the railroad to seek approval before doing any work or construction. Despite the agreement, L&N Railroad, CSX's predicessor, carried out work in 1978 to raise the crossings.

Sebree then fined the railroad according to its ordinance, resulting in a law suit that was heard in Webster County Circuit Court. L&N lost that law suit and entered into a legal agreed order with the city that it could not raise the crossings by more than 0.4 feet above its level at that time. The railroad, according to that agreement, was also supposed to seek approval from the city before begining any work.

After being denied permission to begin work in 2017, CSX filed a suit against the city that would allow the work to continue. Sebree then appealed that in US District Court.

CSX's only witness in that case was Mike McMaster, a retired CSX Assistant Vice President of Strategic Engineering. He and CSX attorney Rod Payne laid out the railroad's argument over nearly two hours.

According to their narrative, each railroad is built in layers. The top is the rail. Beneath that is the wooded ties, which set atop the ballast. Beneath the ballast is the railroad bed itself.

The problem is in the ballast. The railroad ballast is the large rock beneath the railroad ties, which serve as the drainage system for the entire line. The rocks themselves allow water to escape freely between them.

Over time the rocks get clogged with dust, dirt, garbage and plants, and the ballast fails to allow water to drain. When this happens, the ballast retains water, which then causes the wooden ties to deteriorate.

CSX and McMaster argued that raising the railroad bed, a process known as surfacing, is the only option.

When the railroad is surfaced, new ballast material is simply added to the top of the old ballast material.

Sebree's counsel made their argument using a number of witnesses, including: Ken Agent, an engineer with 35 years of transportation-related research experience at the Kentucky Transportation Center, and an additional 10 years of experience with the Kentucky Transportation Cabinet (KYTC); David Clarke, a railroad engineering professor at the University of Tennessee who holds appointments as Director of the University of Tennessee Center for Transportation Research and Research Associate Professor in the University's Department of Civil and Environmental Engineering; and Jill Simpson, the transportation director for Webster County Schools.

Agent testified to other alternatives that are regularly used to do the same job by railroads across the country, while Clarke and Simpson both entered testimony about how dangerous the crossings already were. Both agreed that at many of the crossings it was impossible to see vehicles and pedestrians approaching from the other side.

Simpson added that raises in the lines would force busses to detour around multiple crossings, causing the district to "put a lot of extra miles on our busses."

The District Court ruled that federal law overrules local law and issued an order that permanently prevented the city from enforcing either the 1966 ordinance or the 1979 agreed order. The court of appeals upheld this decision.

City Attorney Dorin Luck recommend to the city council on Monday night that they not move forwarded with this court battle, which would take them to the US Supreme Court.

The council took no action on this decision on Monday night.

Reach MATT HUGHES at 270-667-2068 or matt@journalenterprise.com.