in effect this is a relatively easy case the as i was counsel tell us the s t b reserve jurisdiction back in two thousand and eight to monitor and if needed to impose additional conditions plainly the board realize that in two thousand and eight it did not have the ability to comprehend or to anticipate everything that could possibly happen during the intervening period following the grant of authority as a result they put in an oversight period that would run until two years after  completed all of its implementation of its operating plan and that is a key factor packie than mine because it's not ten years from the date of the situation or from the date of consummation it runs to a point that is two years beyond the implementation now in january if twenty seventeen very often joined by the indiana i mean she's made the illinois department of transportation i requested the board to fill its commitment to barrington by focusing on the regional impact on us highway fourteen and fourteen is taken care of by the eleanor department of transportation not the surface transportation board the surface transportation board it's exclusive with regard to railroads it has nothing to do with the national highway system and this is i think a second key point that we've got to keep in mind particularly in light of the spring court's decision in burlington truck now in order to demonstrate the impact on the pacific the crossing was far worse than what had been assumed by the board in two thousand and eight that assumption was based on a series of projections that were provided by c n n based on two thousand and six traffic that was handled by either the e j any or canadian national at the time there was no oil crude oil being handled primarily by the railroads the influx of containerized try to break coming across from prince rupert island had not yet started the first container ship called on prince rupert i think it was the week after the canadian national actually filed its application with the board so as a result the projections  car right in the crude oil came out of the alberta of oil fields which really had been started development but it was only after the shale developments in the bach and crude that all of a sudden the pipelines couldn't handle the flow so at that point crude by rail evolved so as a result in the in the meantime of course canadian national had done a tremendous job of building up its tracks  canada so that it could start hauling long anger and heavier trains so as a result of this by the time that the combination of the crude coupled with the containerize freight coming in from the aura and you had two massive flows of traffic through barrington that had not been anticipated this traffic basically united states pounders of going up through michigan and back into count  headed for the texas and louisiana gulf coast because that's the only refineries really in the united states that can handle the refining of the real heavy crude that is produced comes out of alberta now only as a practical matter of th have to vacate the decision because the court this is arbitrary and capricious standard you cannot substitute your judgment for that of the board however the board has an obligation to make findings that are satisfied by substantial evidence of record and that clearly point to their line of reasoning they have a to you do you agree i think you do that this court lacks jurisdiction to review petition it makes it very clear that i'm referencing back to the april twenty seven thousand decision now i made a mistake by not including the nine pages of the actual decision but the point is i made that you claim the board made totally disagree every ok so your p o s basically based on the fact that you believe the board made material errors of fact that is true and that they did not consider what the actual impact of this transaction was on barrington and twenty seventeen of us streeter i'm looking at the board's decision of april twenty sixth twenty seventeen ok and the railroad acknowledges that the p p r traffic as an as has increased but it didn't show that it was running through barrington and that it was materially impacted some of it was and a great deal of it was otherwise if you go back to the record you see that c n testified that they had been investing heavily in the intermodal container down in joliet and it memphis you wouldn't be doing that spending the money to brain in these containers if you didn't have the capacity to handle them and furthermore the rise of containers has been if the board had been carefully following what's gone on for the past few years there is no doubt they would have seen from the trade press if nothing what is meant by trainloads when o e a did it study it clearly pointed out that there are three parts that go to that the speed of the train the length of the train and the number of trains we have tried desperately to get the board to require c n n to give us the length of the trains that were moving so that we could actually prepare the analysis that they said oh you didn't  prepare the analysis if you don't have the train lines you could observe that we did and what did they did in two thousand and seventeen they came in and their line was at the  t they said well they showed that it was lower now you're the judge you read the decision how much slower we were they were running ten thousand plus trains this little track in other words i want them to complete the process they have never they've started off in good shape we're not contesting the projections the original projections they had facts to back them up what done now though is they arbitrarily said well too at twenty fifteen the projections are no good but because of changes in industry because of lower energy prices because of one other thing there is no basis for the board to conduct an independent traffic review nearly ten years after the transaction was approved but again that's ten years after it was approved did they ever give you what the actual impact is today they've never told barrington and it's it seems to me that they have at some point have got to accept the responsibility if they're going to have oversight then completed they have not completed it we're left high and dry the state of illinois is going to be called upon in the taxpayers to pay the bill they didn't ask c n n to come in and take over the j any everybody was happy i got came in and they testified they did another environmental study after the board the based on that environmental study and the engineering analysis that they did they determine it has to be time but they're  this is home court advantage i mean this is eleanor the d c circuit basically never looked at the completed project they wait when we try to get them to look at it first  time didn't mention it in the opening very i went back the second time we argued basically the court said no we're here re trying to retry the beginning that's the reason when i found the petition for review and did it in the way i did i want to make it very clear i'm not contesting anything about the original two thousand and eight decision i wanted you to take a hard look at what's going on in twenty seventeen you know was reviewed by another circuit it's kind of like asking for a second opinion or if other do you want to be on charitableness playing the d c circuit against us no you guys in the  look we don't care what the ninth circuit did work this is cases before us and now we're going to make a decision based on what we find to be the law so there's another example right there which have venue and therefore it is legally appropriate but i think your honor was correct in that what opponents are petitioners trying to do here is form shot and look for a court that may come to a different conclusion and frankly one that's going to directly contradict some of the conclusions that the d c circuit has already come to which is brings us to the crux of part of the problem here which as petitioners counsel already admitted its petition here is based on claims of material error the vast majority of barrington's arguments are that the board materially erred in two thousand and eight two thousand and twelve and two thousand and fifteen as well as in the twenty seven thousand denial to reopen it is well established however that agency denials to reopen a reconsider prior decisions based on  advance term transportation or snyder's don't apply here and no matter how barrington tries to repackage or retrain these arguments the board made an error in two thousand and eight and two thousand and twelve in two thousand and fifteen or in the twenty seventeen denial of reopening they are all fine and what's the purpose of the oversight period isn't it to review the accuracy of the projections that were made for the original decision the purpose of the oversight was one to continue to monitor one of the board's primary considerations which are competitive impacts and effects on the market it was also to monitor the implementation of the mitigation conditions that were imposed to ensure that they were complied with and also to monitor the impacts of those c n c operator rights and isn't that exactly what they're complaining about now that some of those projections actually weren't accurate at the time they looked to reopen this during the oversight period there that they're from and that they're claiming that these trains are now so long that they blocked every intersection in barrington if that's a fact isn't that something that the board should have considered well there's if there's several layers of response to that question right after the first is a procedural one which is what they are essentially arguing is that by mere fact of the imposition of an oversight period the standard of review and the standard for reopening and reconsidering our decision is different and that is simply not correct they have made this argument they made it in two thousand and eleven and the board rejected it and when the board rejected it that decision was affirmed by the d c circuit they made it again in two thousand and fourteen in a slightly different guise we rejected it again and they chose not to appeal that decision so first of all the oversight issue and whether we had a different standard for reopening under that oversight condition has been rejected it's a material airplane that is not reviewable by this court however even if it more before this court what the evidence shows is that the board's predictions and the data that rely on were actually quite accurate if you look at the predictions as to train length train speed in train numbers taken together they do know they are not materially different than what was predicted in two thousand and eight while petitioners talk at length about the ten thousand foot trains they're blocking all the interception what potential jurors are doing is essentially misrepresenting their own data their own data shows that some of the trains are ten thousand feet and quite a few of the strains are significantly less than that and what the board looked at in two thousand and eight was the average train length not the maximum train line and the average train length in two thousand and eight that was predicted was actually quite close to what the average train and therefore the predictions are that we relied on in two thousand and eight a relatively accurate and when used the reason we looked at things such as train length and train speed and the number of trains was not to look at those numbers in a well first of all i would say that even if it were a material error it would not be reviewable here but new evidence that that might consider that might justify the board reopening its decision you know as an adjudicatory board i can't get ahead of a board decision but what i can say is is that what we have here is not even close what we have here are accurate train length and train train number predictions what we have here is a number that barrington has presented that is actually less total vehicle delay at this intersection than barrington presented in two thousand and eight and the board considered in two thousand and eight and despite those predictions we concluded separation was not warranted the d c circuit affirmed this decision and when they came back in two thousand and eleven and challenged our decision we around that because the vehicle the way numbers were less in two thousand and eleven tha sort of in this particular case in two thousand and eight because barrington expressly stated and asked us to consider the impact that they were concerned primarily about the impact during rush hour and the impact beyond simply this us fourteen crossing but the impact at all in sort of the regional area in response to that concern the board conducted a study that did focus on the on the rush hour impact and looked at the impact further out than just the u s fourteen crossing and it was based on this study that we did again in direct response to the specific concerns that parenting presented that we conclude that it was concluded that because of the preexisting congestion in the area and the previous distinction passive constraints in the complicated nature of the traffic and the intersections in this area that the impact of the c n n trains on top of the a existing problems was not significant it was minimal and that because of these preexisting constraints that a grade separation would not address a grade separation would be of minimal benefit and was not warranted in the board all there are again procedural problems with this argument first of all it's a material air argument that was raised and rejected by the board in two thousand and fifteen it is also waived here today because they did order that is on appeal here contrary to petitioners claims they very clearly in their petition here appealed soley the twenty seventeen reconsideration order if you look at their filing here their  opening sentence says we are appealing the october twenty seven thousand petition to reconsider using decision on reconsideration its closing paragraph in that same petition is we are asking you to reverse the board's tobar twenty addition is waived and not properly before this court even if however i doubt this argument concerning i got in deference to i doubt will properly before this court what i not did in the petition to reopen with come to us and as an interested party in this proceeding make a conclusory statement about why i've read separation is needed as noted in our twenty seven thousand decisions they provided no data supporting come from the the forty hours of total vehicle delay threshold it's the federal highway administration criteria and we there are three threshold criteria the forty hours of total vehicle delay is one of those three criteria and our use of about those criteria was in fact challenged in two thousand and eight in the d c circuit appeal and the d c circuit expressly found that it was reasonable for us to use the f h w a threshold criteria thank you and what is also important about that threshold criteria is that even if you meet that threshold criteria you are not entitled to a grade separation that meeting one meeting that criteria or any of the threshold criteria simply means that the board conducts additional analysis of the intersection looking at the individual characteristics of that intersection and considering factors such a situation and here one in addition to the fact that simply meeting that delay doesn't mean that you get a grade separation as a mitigation condition as evidenced by the fact that there were multiple intersections met these threshold criteria that were not did not receive that as a mitigation condition in two thousand and eight but also the board went ahead and despite the fact that the that the us fourteen crossing did not meet any of the threshold criteria because barrington had raise these concerns we went ahead and conducted that additional analysis anyway and it was based on this additional analysis that we concluded that because of preexisting conditions that a great separation would be of minimal benefit and therefore a great separation in us fourteen was not warranted and in fact  thousand and eleven as i may have already mentioned supports this conclusion its own study found that two hundred sixty hours or approximately seventy percent of the vehicle delay was attributable to preexisting conditions and not the addition of the c and trans and it is the addition of the c n trains and the effect of this specific transaction that we are addressing in the voluntary in the medication conditions over the course of the last ten years the board has carefully and comprehensively consider each of barrington's requests to reopen or reconsider its decisions in this acquisition proceeding including the twenty seven thousand requests to reconsider that is the subject of this appeal if they're just hypothetically if c n n was to start running two mile on trains ten times a day would barrington have an avenue to bring before the board that condition banned the regulatory standard for reopening regardless of when the transaction was approved and therefore if they were able to come ties with such with new evidence or change circumstances that warranted reopening we would consider it even though the oversight period had ended however since we are ten years after this this acquisition proceed after after this acquisition was approved the connection between c n running trains on this line and this transaction becomes more and more attenuated as time passes there are many factors that can consider that can affect the number of trains that c n n is running that have nothing to do with this application proceeding they market changes at fluctuations and in commodity pricing all of this influences the number of trades to see and runs and has nothing to do with the acquisition and all the board addresses is the fact of the acquisition itself since i see i am running into my interveners time will close with and let the court has more questions for that for these reasons and for those in the country and there are processes under state and federal law for doing great separations and by the way in illinois if this great separation were to happen we would actually be required to contribute to that five percent of mentioned the prior decision the petition to reopen is really not on review here because it was the petition for review to not seek review of and the numbers that mr streeter has been citing a numbers and all arguments that have been made in prior decisions and it's quite clear under b l e and schneider that claims of material error prior decisions are not reviewable so what are the numbers ok underground  all these arguments about new traffic from the oil and new traffic from prince rupert they come down to well how many trains really were there in the fact is those arguments don't you're out there saying they're longer and slower let's talk about that train l in evidence about train length and it was slightly different but it was nothing like the ten thousand feet as s t v council said the original estimate was six thousand eight hundred twenty nine feet that was the projection and it turned out and twenty fifteen twenty sixteen it was seven thousand six hundred fifty seven feet not ten thousand foot average that's about a twelve percent increase about balance with the way speed now the speed did decrease a decrease for a good reason there's a diamond crossing that's not far from barrington and there had been an accident at a different diamond and c n n is a general matter had reduced the speeds through these diamonds by about ten miles an hour so yes so the spe did to decrease a little bit but as we showed if you calculate the effect of that on every individual train given even an assumption of the length etc it makes less than one minute difference pre training and as i think was mentioned also in terms of timing of trains the trains and barracks in tend not to run during rush hour and there's a good reason for that he said on the record yes it is and the reason is that the metro trains come through at this other diamond and they have priority so c n n can't get in they run during rush hour very heavily so c n n can't get through the bus it doesn't it doesn't it doesn't run much during during rush hour now this some other numbers here that have been thrown out about the only new number that should be on review is this one eighteen that you've seen seen appellants throw out and compared to two point four nine i'm sure you could not have missed that in the breeze to understand these numbers best i want to direct your attention to a table that i think will help you understand this whole case and that's it ira one ninety three in the record ok this table is taken from the twenty eleven village of barrington study itself and what you see there is not a two point four nine four pre x was ition to lead this latest specifically caused by the railroad if other conditions are our normal is not other severe preexisting congestion issues that's with a two point four and i came out this some take much more it takes into account a cumulative delay from all sources on the road roadway network so what you'll see is a number of two hundred seven so mistreated says things were great before the transaction well there was two hundred seven minutes of delay under the vison calculation prior to the acquisition that rises in two thousand and fifteen to four hundred sixty seven without a transaction they're throwing up against that an increase  they eventually claim now was one eighteen and by the way that is really not supported in the record they basically said somebody went off and calculated that number the other thing you'll see is on this r e one ninety three there's a number o sixteen in the place where it's the change they claim due to the acquisition that number is the number that's been bouncing around and that they keep using all of their evidence to to demonstrate how much they say we increased well it was one sixteen here later now they're saying it's one eighty but the original proceeding it was one thirty five they said that we were sponsible for one hundred thirty five minutes of the late more than we're seeing now and of course that was not found convincing by the board that case was reviewed and barrington won by the d c circuit and rejected and it was reviewed in barrington two when they came back with another argument based on the same number it was specifically rejected the ali still around that formal habit with me that she looks down to the very last column they've taken the position if you put in a great crossing that fourteen that it wouldn't have any impact on the overall city  that very study shows that a single grade crossing at fourteen is going to lower not only the delay at fourteen but also at the illinois fifty nine another thing they want to talk about the hundred hundred thirty five to two hundred five hours they want to talk about it now go through and try to find those figures in any of the board's decisions in two eight it's not in the f b i yes it's not in the decision for some reason that those figures were put into the record as of october first two thousand and eight instead of addressing it at that time why did only a go into this peak period analysis that focused on the one of the periods of time when the fewest number of trains are going through now you know it doesn't make sense if it's  hundred thirty five why didn't they treat it as substantially affected at that time they had the evidence they decided to suppress it is it correct that you are peeling only the october two thousand and seventeen denial ruling that it doesn't that limit the scope of review and the standard of review it there is that when you can show that from the rest of the petition even the d c circuit has acknowledged that you accept the responsibility in the blame for putting it i was simply trying to make it clear that i'm not fighting about two thousand and eight this is a totally different case and that's the reason that material there should apply here this is look at the pages essay three five one this is the chart that shows that in may of two thousand and sixteen sixteen percent of the  trains were over ten thousand plus feet eight twenty sixteen one thousand percent i didn't have access to those figures in two thousand and eight neither did the board that's the reason they decided to have oversight having said they're going to do it why didn't they do it now they want to say oh he's with you all you must talk best material or i want to talk about the here and now the actual situation that exists judge january twenty three twenty seventeen the board has never come anywhere near it did they discuss the sixteen in one thousand and sixteen percent no they said oh they show there's a little bit more what is a little bit more council can't tell us the board hasn't told us the see and says well we're running it moderately less speed it's thirty percent less as we material there one other thing if you go from two point four nine to forty hours a delay that's a fifteen hundred and six percent increase two point four nine to ninety eight is a three thousand eight hundred thirty five percent increase two point four nine hundred eighteen is a four thousand six hundred thirty eight percent increase and that's just looking at the facts the board looked at that and they said oh it's a ninety two percent jurisdiction to review the material or argument on a motion to reconsider that's the end of this isn't it yes or no you're going to have to make the call no  on new evidence change circumstances number one number two material air i want to end on new evidence and i think i'm going to have to ask you to make