78096 Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / Notices 

An original and 10 copies of all 

pleadings, referring to STB Finance 

Docket No. 34630, must be filed with 

the Surface Transportation Board, 1925 

K Street, N.W., Washington, DC 20423–

0001. In addition, a copy of each 

pleading must be served on MRC’s 

representative: Kenneth W. Cotton, Wipf 

& Cotton Law Offices, LLC, 107 South 

Main Street, Wagner, SD 57380. 

The notice of exemption filed with 

respect to the MRC-South Dakota 

transaction in this docket is related to a 

notice of exemption concurrently filed 

in a related docket: STB Finance Docket 

No. 34630 (Sub-No. 1), Dakota Southern 

Railway Company—Trackage Rights 

Exemption—State of South Dakota and 

MRC Regional Railroad Authority. The 

notice of exemption filed in the related 

docket contemplates the operation of 

MRC’s Mitchell-Sioux City Line 

trackage rights by DSRC on behalf of 

MRC. 

MRC and DSRC have advised that the 

Mitchell-Sioux City Line, which is 

owned by the State, is now operated on 

behalf of the State by BNSF, pursuant to 

a 1986 Operating Agreement. MRC and 

DSRC have also advised: that, under the 

Operating Agreement, the State has the 

right to grant trackage rights on the 

Mitchell-Sioux City Line subject to 

certain BNSF consent; that, although the 

State has the right to grant trackage 

rights to MRC for operations by MRC’s 

third-party operator (DSRC), BNSF has 

not consented to the grant of those 

rights; and that the failure to provide 

this consent is now the subject of 

litigation between the State and BNSF 

in The Burlington Northern and Santa 

Fe Railway Company v. State of South 

Dakota, Case No. 04–470 (S.D. 6th 

Circuit). MRC and DSRC have further 

advised that they recognize that BNSF 

consent may have to be obtained, either 

voluntarily or through litigation, before 

DSRC can commence trackage rights 

operations on the Mitchell-Sioux City 

Line. MRC and DSRC have suggested, 

however, that, inasmuch as the Board’s 

authority respecting the notices filed in 

this docket and in the related docket is 

‘‘permissive’’ in nature, the filing of the 

notices in the two dockets is appropriate 

as a ‘‘prelude’’ to obtaining any 

necessary consent. 

By letter filed December 17, 2004, 

BNSF has advised that it has not given 

its consent, and does not intend to give 

its consent, to the third-party trackage 

rights operation contemplated by MRC 

and DSRC. BNSF has further advised 

that, in its view, the filings by MRC and 

DSRC in this docket and in the related 

docket are intended to improperly 

influence the pending state court 

litigation. BNSF has asked that the 

Board stress that issuance by the Board 

of the notices filed in this docket and in 

the related docket: does not constitute 

any finding by the Board concerning 

either the Board’s jurisdiction over these 

transactions or DSRC’s right to operate 

over the line without BNSF’s consent; 

and does not provide any basis for MRC 

or DSRC to claim that the Board has 

permitted DSRC to operate over the line 

in the absence of a final decision by the 

courts that DSRC has a legal right to 

conduct such operations. 

In view of the ongoing litigation 

concerning the right of the State to grant 

the trackage rights contemplated in this 

docket and in the related docket, it 

seems best to note that the Board has 

made no determination, one way or the 

other, concerning either the right of the 

State to grant these trackage rights 

without BNSF’s consent or the right of 

DSRC to operate over the line without 

BNSF’s consent. The contractual 

dispute respecting the scope of the 

rights retained by or granted to the State 

and/or BNSF under the 1986 Operating 

Agreement must be resolved in a court 

of competent jurisdiction. 

Board decisions and notices are 

available on its Web site at

‘‘http://www.stb.dot.gov.’’

Decided: December 21, 2004. 

By the Board, David M. Konschnik, 

Director, Office of Proceedings. 

Vernon A. Williams, 

Secretary.

[FR Doc. 04–28336 Filed 12–28–04; 8:45 am] 

BILLING CODE 4915–01–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board 

[STB Finance Docket No. 34630 (Sub–No. 

1)] 

Dakota Southern Railway Company—

Trackage Rights Exemption—State of 

South Dakota and MRC Regional 

Railroad Authority 

The State of South Dakota (the State) 

and MRC Regional Railroad Authority 

(MRC) have agreed to grant overhead 

trackage rights to Dakota Southern 

Railway Company (DSRC) over a Stateowned line of railroad extending 

between milepost 654 near Mitchell, SD, 

and milepost 511.90 in Sioux City, IA, 

including such yard tracks, sidetracks, 

and connecting tracks (existing or to be 

constructed) as are reasonable: (a) To 

interchange railcars with The 

Burlington Northern and Santa Fe 

Railway Company (BNSF) and Dakota, 

Minnesota & Eastern Railroad 

Corporation at Mitchell; (b) to access the 

State-owned line extending westerly 

from Napa Junction, SD, to Platte, SD; 

and (c) to interchange railcars with 

BNSF, Union Pacific Railroad Company, 

and Canadian National Railway 

Company at Sioux City. The State and 

MRC have also agreed to grant to DSRC 

limited local trackage rights on the 

Mitchell-Sioux City Line: (i) to move 

loaded cars of corn, soybeans, and 

wheat originating at points on the 

DSRC-operated line between Mitchell 

and Kadoka, SD, and terminating at the 

Mitchell Elevator in Mitchell and the 

Beardsley Elevator in Beardsley, SD; 

and (ii) to move empty cars via the 

reverse route. The total distance of the 

trackage rights to be granted to DSRC is 

approximately 142.1 miles. The DSRC–

MRC transaction contemplated by the 

parties was scheduled to be 

consummated on or after December 17, 

2004. 

Under 49 U.S.C. 10502(g), the Board 

may not use its exemption authority to 

relieve a rail carrier of its statutory 

obligation to protect the interests of its 

employees. Section 11326(c), however, 

does not provide for labor protection for 

transactions under sections 11324 and 

11325 that involve only Class III 

carriers. Accordingly, the Board may not 

impose labor protective conditions here, 

because all of the carriers involved are 

Class III carriers. 

The notice of exemption filed in this 

docket was filed under 49 CFR 

1180.2(d)(7). If the notice contains false 

or misleading information, the 

exemption is void ab initio. Petitions to 

revoke the exemption under 49 U.S.C. 

10502(d) may be filed at any time. The 

filing of a petition to revoke does not 

automatically stay the transaction. 

An original and 10 copies of all 

pleadings, referring to STB Finance 

Docket No. 34630 (Sub-No. 1), must be 

filed with the Surface Transportation 

Board, 1925 K Street, NW., Washington, 

DC 20423–0001. In addition, a copy of 

each pleading must be served on DSRC’s 

President: George Alexander Huff, IV, 

Dakota Southern Railway Company, 408 

East Prospect Street, Chamberlain, SD 

57325. 

The notice of exemption filed with 

respect to the DSRC–MRC transaction in 

this docket is related to a notice of 

exemption concurrently filed in a 

related docket: STB Finance Docket No. 

34630, MRC Regional Railroad 

Authority—Trackage Rights 

Exemption—Lines of the State of South 

Dakota. The notice of exemption filed in 

the related docket contemplates MRC’s 

acquisition from the State of the 

trackage rights that MRC intends to 

grant to DSRC. 

MRC and DSRC have advised that the 

Mitchell-Sioux City Line, which is 

Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / Notices 78097

owned by the State, is now operated on 

behalf of the State by BNSF, pursuant to 

a 1986 Operating Agreement. MRC and 

DSRC have also advised: that, under the 

Operating Agreement, the State has the 

right to grant trackage rights on the 

Mitchell-Sioux City Line subject to 

certain BNSF consent; that, although the 

State has the right to grant trackage 

rights to MRC for operations by MRC’s 

third-party operator (DSRC), BNSF has 

not consented to the grant of those 

rights; and that the failure to provide 

this consent is now the subject of 

litigation between the State and BNSF 

in The Burlington Northern and Santa 

Fe Railway Company v. State of South 

Dakota, Case No. 04–470 (S.D. 6th 

Circuit). MRC and DSRC have further 

advised that they recognize that BNSF 

consent may have to be obtained, either 

voluntarily or through litigation, before 

DSRC can commence trackage rights 

operations on the Mitchell-Sioux City 

Line. MRC and DSRC have suggested, 

however, that, inasmuch as the Board’s 

authority respecting the notices filed in 

this docket and in the related docket is 

‘‘permissive’’ in nature, the filing of the 

notices in the two dockets is appropriate 

as a ‘‘prelude’’ to obtaining any 

necessary consent. 

By letter filed December 17, 2004, 

BNSF has advised that it has not given 

its consent, and does not intend to give 

its consent, to the third-party trackage 

rights operation contemplated by MRC 

and DSRC. BNSF has further advised 

that, in its view, the filings by MRC and 

DSRC in this docket and in the related 

docket are intended to improperly 

influence the pending state court 

litigation. BNSF has asked that the 

Board stress that issuance by the Board 

of the notices filed in this docket and in 

the related docket: does not constitute 

any finding by the Board concerning 

either the Board’s jurisdiction over these 

transactions or DSRC’s right to operate 

over the line without BNSF’s consent; 

and does not provide any basis for MRC 

or DSRC to claim that the Board has 

permitted DSRC to operate over the line 

in the absence of a final decision by the 

courts that DSRC has a legal right to 

conduct such operations. 

In view of the ongoing litigation 

concerning the right of the State to grant 

the trackage rights contemplated in this 

docket and in the related docket, it 

seems best to note that the Board has 

made no determination, one way or the 

other, concerning either the right of the 

State to grant these trackage rights 

without BNSF’s consent or the right of 

DSRC to operate over the line without 

BNSF’s consent. The contractual 

dispute respecting the scope of the 

rights retained by or granted to the State 

and/or BNSF under the 1986 Operating 

Agreement must be resolved in a court 

of competent jurisdiction. 

Board decisions and notices are 

available on its Web site at ‘‘http://

www.stb.dot.gov.’’

Decided: December 21, 2004. 

By the Board, David M. Konschnik, 

Director, Office of Proceedings. 

Vernon A. Williams, 

Secretary.

[FR Doc. 04–28335 Filed 12–28–04; 8:45 am] 

BILLING CODE 4915–01–P