B.C.D. 15-29

EMPLOYER STATUS DETERMINATION

Lewis and Clark Railway Company (LCR)

December 18, 2015

This is a determination of the Railroad Retirement Board concerning the status of

Lewis and Clark Railway Company (LCR) as an employer under the Railroad 

Retirement Act (45 U.S.C. §231 et seep) and the Railroad Unemployment

Insurance Act (45 U.S.C. §351 et seq.).

LCR (BA No. 3660) has been an employer under the Railroad Retirement Act and

Railroad Unemployment Insurance Act since May 1, 1987, the first day of the

month in which LCR commenced operations, as found in Board Notice 88-62 on

November 16, 1988.

LCR formerly leased and operated a line of railroad owned by Clark County, WA,

between milepost 0.0 in Vancouver Junction, WA and milepost 33.10 in

Chelatchie, WA. This lease was acquired in two segments and was originally 

approved in Interstate Commerce Commission Finance Docket No. 31042 (ICC

served May 22, 1987) and Surface Transportation Board Finance Docket No.

33325 (STB served January 15, 1997). Edward Bemtsen, President and General 

Manager of LCR, indicated in a letter dated November 14, 1996 that severe

rainstorms had washed out the portion of rail line connecting LCR’s line to the

Burlington Northern Santa Fe (BA No. 1621), but that Clark County had taken 

ownership of the washed-out section and Mr. Bemtsen expected regular freight 

traffic to resume in December 1996. However, Mr. Bemtsen failed to respond to

numerous subsequent requests for information regarding the status of LCR’s

operations over a number of years. On February 3, 2003, the Secretary to the Board 

issued a subpoena for records to Mr. Bemtsen, which Mr. Bemtsen also failed to

respond to. LCR last filed a report of creditable compensation for employees on

March 29, 2004, for calendar year 2003.

On March 11, 2004, Columbia Basin Railroad Company, Inc. (BA No. 2644) filed

a Verified Notice of Exemption to lease and operate the rail line owned by Clark

County and formerly operated by LCR (STB Finance Docket No. 34482). In its

decision, the Surface Transportation Board noted that Clark County had notified 

LCR on January 30, 2004 that Columbia Basin Railroad Company would be the

new operator of the line, and a letter from Clark County to the Surface

Transportation Board dated February 18, 2004 confirmed that LCR’s lease

agreement had expired on January 31, 2004.

BA # 3660
2

Railroad Retirement Board regulations at 20 CFR §202.11 state that:

The employer status of any company or person shall terminate

whenever such company or person loses any of the characteristics

essential to the existence of an employer status.

Board regulations at 20 CFR §202.12(b) indicate that “...stoppage of business or

operations; ... the effective date of a certificate permitting abandonment; ... [and]

discharge of last employee...” are included among the types of evidence to be

considered when determining whether cessation of an essential characteristic has

occurred. However, 20 CFR §202.12(a) states that “consideration will be given

only to those events or actions which evidence a final or complete cessation.”

The evidence ofrecord establishes that LCR no longer possesses the characteristics 

of an operating railroad company. Specifically, the termination of LCR’s lease

agreement over LCR’s only operating rail line, with authorization to operate issued

to another covered railroad employer, is evidence of a final and complete cessation

of activity as a covered employer under the Acts. Therefore, the Board finds that 

effective February 1, 2004, the first day after the expiration ofLCR’s rail line lease

with Clark County, WA, LCR ceased being a covered employer under the Railroad 

Retirement and Railroad Unemployment Insurance Acts.

FOR THE BOARD

Martha P. Rico

Secretary to the Board