217.370.8505 cory@bletislb.org

STB denies BNSF petition for partial stay in NTEC coal-shipping case

The Surface Transportation Board yesterday announced it denied BNSF Railway Co.’s petition for partial stay of the board’s previous decision in a case involving the railroad and Navajo Transitional Energy Co. LLC.

In its original decision, the STB issued a preliminary injunction requiring BNSF to transport coal from NTEC’s Spring Creek mine during 2023.

On April 14, NTEC filed an application seeking an emergency service order, asking the board to direct BNSF to restore and maintain adequate coal transportation from the Spring Creek mine to the Westshore Terminals export facility in British Columbia, Canada.

In a separate docket, NTEC filed a related complaint and petition for declaratory order alleging that BNSF has breached its common carrier obligation, failed to provide adequate car service and engaged in unreasonable practices with respect to the transportation at issue.

On June 23, the STB ordered BNSF to transport at least 4.2 million tons of coal on an annual basis in 2023 from the Spring Creek mine to the Westshore Terminal, and to transport another 1 million annual tons during 2023 to the extent additional capacity becomes available.

BNSF on July 17 petitioned the board for a partial stay of its preliminary injunction, the part that is contingent on sufficient trainsets and crews becoming available in addition to those required to meet the baseline tonnage requirements. It argues that its request meets the requirements for a stay, including that it will suffer irreparable harm absent a partial stay of this aspect of the injunction. NTEC filed in opposition on July 24.

The board denied BNSF’s petition for partial stay because the railroad failed to show that irreparable harm will occur if a stay is not granted, STB officials said in a press release. The relief ordered by the board — that BNSF must transport additional tonnage if capacity to do so becomes available — negates the possibility of irreparable harm to BNSF. The additional tonnage portion of the board’s order only comes into force through voluntary actions by BNSF to develop additional capacity, they said.

STB members Patrick Fuchs and Michelle Schultz dissented with separate expressions.

The board’s decision can be downloaded here.