Freight Rail Law

Kaplan Kirsch regularly draws upon our significant experience with the development, operation, and regulation of freight and passenger transportation service to advise and represent both public and private clients on interaction with freight networks and infrastructure, from freight railroads to ports to intermodal facilities. From negotiating access agreements and contracts for operation or transfer of freight rail lines, to representing clients before state and federal freight rail regulators and in litigation, we bring a diverse range of knowledge informing a full range of freight rail issues.

We have represented states and local governments in developing, maintaining, or eliminating freight rail service on rail lines – both publicly and privately owned – and serving publicly owned facilities and infrastructure. Kaplan Kirsch also represents public entities, private landowners, shippers, operators, and developers in navigating the complex freight rail regulatory landscape, particularly in the context of federal preemption of state and local regulation of common carrier rail service. We have significant experience negotiating with both Class I freight railroads and a number of smaller freight railroads. We also represent ports and intermodal facility owners and operators.

Representative Experience

Counseled municipalities on regulating freight and hazardous material transloading facilities.

Represented a municipality in federal rulemaking on the technical and operating standards for trains carrying hazardous flammable materials.

Negotiated and litigated a municipality's dispute over occupancy of a city-owned rail yard.

Conducted administrative and appellate litigation concerning the scope of federal preemption of state and local authority to regulate freight rail operations.

Negotiated and drafted agreements between passenger rail providers and freight railroads establishing shared use, maintenance, and dispatching protocols.

Negotiated and drafted agreements and coordinated regulatory proceedings to relocate active rail lines for a client’s facility expansion.

Advised a shipper industry group concerning the potential impact of revised freight compensation regulations and possible strategic responses.

Advised shippers on forming proprietary short line railroads to control in-plant rail operations and improve efficiency with larger rail carriers that serve those facilities.

Advised a port authority on contracting a new switching rail carrier and planning redevelopment of a portion of the port’s rail infrastructure.

Advised a municipality redeveloping derelict harbor facilities on rail access and on federal regulation of commodities under rail and maritime laws.

Related Practices

Resources and News

News

Presentations

TRB Publications

Representative Cases

Transload Facility on Protected Forestland

Represented a Massachusetts town in a dispute concerning its ability to restrict development of a transload facility on protected forestland. Grafton & Upton R.R. v. STB, 177 F.4th 1234 (D.C. Cir. 2026).

Short Line Rail Ferry Acquisition

Represented a freight carrier in the acquisition of a short line rail ferry. GMexico Transportes, S.A.B. de C.V.—Acquisition of Control Exemption—CG Railway, LLC, FD 36780 (STB served Aug. 13, 2024).

CP/KCS Merger

Represented Chicago-area commuter rail service provider Metra and Hennepin County, MN, to protect commuter rail service and public health and safety in the largest freight railroad merger proceedings in the past 20 years. Canadian Pacific Ry. Limited et al.—Control—Kansas City Southern et al., FD 36500 (STB served Mar. 15, 2023).

CSX/Pan Am Merger

Represented the State of Vermont, acting through its Agency of Transportation, in seeking and securing conditions guaranteeing adequate freight rail service for operators of the State’s publicly owned rail lines. CSX Corp. and CSX Transp. Inc., et al.–Control and Merger—Pan Am Systems, Inc. et al., FD 36472 (STB served Apr. 14, 2022).

Right-of-Way Lease Termination

Obtained dismissal of an action seeking to block a right-of-way owner’s ability to terminate railroad leases based on non­performance. Fillmore & Western Freight Service, LLC—Emergency Petition for Declaratory Order, FD 35813 (STB served Mar. 10, 2015).

Railbanked Line Operating Rights Challenge

Obtained dismissal of an action in which a short-line freight operator attempted to obtain operating rights to a railbanked line despite lacking any property interest, demonstrated service demand, or financial capacity to reactivate service. Ballard Terminal Railroad Company, L.L.C.—Acquisition and Operation Exemption—Woodinville Subdivision, FD 35731 (STB served Dec. 30, 2014).

National Trails Act Sovereign Immunity

Represented the Maryland Transit Administration in challenging the STB’s indemnity requirements for trail sponsors under the National Trails Act on sovereign immunity grounds. Maryland Transit Admin. v. Surface Transp. Bd., 700 F.3d 139 (4th Cir. 2012).

Reactivation of Rail Line Without Property Rights

Obtained dismissal of an action by a start-up entity seeking to reactivate service on a rail line despite lacking property rights, demonstrated service demand, and financial capacity. GNP Rly, Inc.—Acquisition and Operation Exemption—Redmond Spur and Woodinville Subdivision, FD 35407 (STB served June 15, 2011).

Ethanol Transloading Facility Truck Traffic Regulation

Represented the City of Alexandria in defending city ordinances regulating truck traffic from an ethanol transloading facility. Norfolk Southern Ry. Co. v. City of Alexandria, Virginia, 608 F.3d 150 (4th Cir. 2010).

State Rail Corridor Acquisition and STB Jurisdiction

Confirmed that a state agency’s previous acquisition of a rail corridor subject to a freight operating easement did not trigger STB regulatory review or render the agency a common carrier subject to STB jurisdiction. Maryland Transit Administration—Petition for Declaratory Order, STB Docket No. FD 34975 (Service Date Oct. 9, 2007), aff’d on reconsideration (STB served Sept.19, 2008).

Federal Preemption Claim — Non-Carrier Shipper

Successfully represented New York City in defeating a shipper’s attempt to claim federal preemption benefits despite not being a rail carrier subject to STB jurisdiction. Tri-State Brick and Stone of N.Y., Inc., et al.—Petition for Declaratory Order, FD 34824 (STB served Aug. 11, 2006), petition to reopen denied, STB Docket No. FD 34824 (Service Date Dec. 11, 2007).

Federal Preemption of State Environmental and Zoning Regulations

Successfully represented a New York City agency in an action seeking a determination that the federal regulatory scheme preempts state environmental and zoning regulations. The New York City Economic Development Corp.—Petition for Declaratory Order, FD 34429 (STB served Jul. 15, 2004).

Conrail Merger — Competitive Freight Rail Access

Successfully represented New York City in securing a direct competitive freight rail alternative on the line serving the east side of the Hudson River, where merger proponents had sought single-carrier control of that market segment. CSX Corporation, et al.—Control and Operating Leases/Agreements—Conrail, Inc., et al., FD 33388, 3 S.T.B. 196 (Jul. 23, 1998).