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42–775 PDF 2008

THE HISTORIC PRESERVATION OF 

RAILROAD PROPERTY AND FACILITIES 

(110–134) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

RAILROADS, PIPELINES, AND HAZARDOUS 

MATERIALS 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JUNE 5, 2008 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JAMES L. OBERSTAR, Minnesota, Chairman 

NICK J. RAHALL, II, West Virginia, Vice 

Chair 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

GENE TAYLOR, Mississippi 

ELIJAH E. CUMMINGS, Maryland 

ELLEN O. TAUSCHER, California 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

BRIAN BAIRD, Washington 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

BRIAN HIGGINS, New York 

RUSS CARNAHAN, Missouri 

JOHN T. SALAZAR, Colorado 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

DORIS O. MATSUI, California 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio 

MAZIE K. HIRONO, Hawaii 

BRUCE L. BRALEY, Iowa 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A. ACURI, New York 

HARRY E. MITCHELL, Arizona 

CHRISTOPHER P. CARNEY, Pennsylvania 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

STEVE COHEN, Tennessee 

JERRY MCNERNEY, California 

LAURA A. RICHARDSON, California 

ALBIO SIRES, New Jersey 

JOHN L. MICA, Florida 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

WAYNE T. GILCHREST, Maryland 

VERNON J. EHLERS, Michigan 

STEVEN C. LATOURETTE, Ohio 

FRANK A. LOBIONDO, New Jersey 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

TED POE, Texas 

DAVID G. REICHERT, Washington 

CONNIE MACK, Florida 

JOHN R. ‘RANDY’ KUHL, JR., New York 

LYNN A WESTMORELAND, Georgia 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

ROBERT E. LATTA, Ohio 

(II) 

SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS 

MATERIALS 

CORRINE BROWN, Florida Chairwoman 

JERROLD NADLER, New York 

LEONARD L. BOSWELL, Iowa 

GRACE F. NAPOLITANO, California 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio, Vice Chair 

BRUCE L. BRALEY, Iowa 

TIMOTHY J. WALZ, Minnesota 

NICK J. RAHALL II, West Virginia 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

MICHAEL H. MICHAUD, Maine 

DANIEL LIPINSKI, Illinois 

ALBIO SIRES, New Jersey 

JAMES L. OBERSTAR, Minnesota 

(ex officio) 

BILL SHUSTER, Pennylvania 

THOMAS E. PETRI, Wisconsin 

WAYNE T. GILCHREST, Maryland 

STEVEN C. LATOURETTE, Ohio 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

LYNN A. WESTMORELND, Georgia 

JOHN L. MICA, Florida 

(ex officio) 

(III) 

(V) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... vi 

TESTIMONY 

Brooks, Thomas E., Assistant Vice President for Projects and Chief Engineer, 

Alaska Railroad .................................................................................................... 6 

Fowler, John M., Executive Director, Advisory Council on Historic Preservation ........................................................................................................................ 6 

Fowler, Marianne Wesley, Senior Vice President of Federal Relations, RailsTo-Trails Conservancy ......................................................................................... 6 

Little, J. Rodney, Director, Division of Historical and Cultural Programs, 

Maryland Historical Trust ................................................................................... 6 

Merritt, Elizabeth, Deputy General Counsel, National Trust for Historic Preservation ................................................................................................................. 6 

Simmons, Patrick B., Director, Rail Division, North Carolina Department 

of Transportation ................................................................................................. 6 

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Brown, Hon. Corrine, of Florida ............................................................................. 30 

Costello, Hon. Jerry F., of Illinois .......................................................................... 35 

Cummings, Hon. Elijah E., of Maryland ............................................................... 37 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Brooks, Thomas E. ................................................................................................... 41 

Fowler, John M. ....................................................................................................... 56 

Fowler, Marianne Wesley ....................................................................................... 60 

Little, J. Rodney ...................................................................................................... 68 

Merritt, Elizabeth .................................................................................................... 76 

Simmons, Patrick B. ................................................................................................ 86 

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42775.002
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42775.003
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42775.004
x 


42775.005
(1) 

HISTORIC PRESERVATION OF RAILROAD 

PROPERTY AND FACILITIES 

Thursday, June 5, 2008 

HOUSE OF REPRESENTATIVES, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS

MATERIALS, Washington, DC. 

The Subcommittee met, pursuant to call, at 2:06 p.m., in Room 

2167, Rayburn House Office Building, Hon. Corrine Brown [Chairman of the Subcommittee] presiding. 

Ms. BROWN OF FLORIDA. Will the Railroad, Pipelines and Hazardous Material officially come to order. The Subcommittee is meeting today to hear testimony on the his- torical preservation of railroad property and facilities. Today’s 

hearing is in response to an amendment offered and withdrawn 

during Full Committee consideration of the Passenger Rail Investment and Improvement Act of 2008. The amendment would prevent Federal historical protection for an entire railroad line or corridor in response to a claim by the Alaskan Railroad and the North 

Carolina Department of Transportation that the historical protection process has led to costly delays in capital improvement with 

no benefits to historical preservation. 

I believe the Committee goal should be to ensure that any action 

it takes respects the valuable process of protecting our Nation’s 

heritage while ensuring a fair process to rail providers that allows 

them to adapt to future needs without undue costs and delays. 

The testimony of the Advisory Council and the national trust 

points that there are administrative agreements to resolve the 

problems raised by both parties. This hearing has brought the 

problem raised by the Alaskan Railroad and the North Carolina to 

the attention of the Advisory Council. I think there is a willingness 

to resolve these concerns administratively, and I would encourage 

all of the parties involved to work toward an equitable solution to 

any possible disagreements that have arisen. 

We must ensure that we are not looking for a solution to a problem that may not exist. Prior to this markup, the issue of historical 

preservation and its impact on the rail system have never raised 

with me or the Committee, and I haven’t heard from any other rail 

providers facing similar problems. However, I look forward to 

learning more about the problems from the witnesses appearing 

today and pledge to work with my colleagues to ensure that the 

Alaskan Railroad and the State of North Carolina and all other rail 

providers are being treated fairly. 

2 

I want to thank our panelists for agreeing to join us today, and 

I look forward to hearing your testimony. 

Before I yield to Mr. Shuster, I ask that Members be given 14 

days to revise and extend their remarks and to permit the submission of additional statements and materials by Members and witnesses without a statement by the preservation action. Without objection, so ordered. 

I now yield to Mr. Shuster for his opening statement. 

Mr. SHUSTER. Thank you, Madam Chairwoman, and I appreciate 

you holding this hearing today. 

As you know, the amendment that I offered concerns historical 

designations of railroads. I have worked with Mr. Young from Alaska and Mr. Coble on this amendment. We began to hear complaints 

that historical designations were impeding some of the railroads’ 

ability to maintain tracks in a safe manner. 

We know that this issue is particularly important, as I mentioned, to Alaska and to North Carolina and, of course, potentially 

other rail lines around the country, and again, Mr. Coble and Mr. 

Young were very involved in crafting this amendment. 

In Alaska there are attempts by State historic preservation officials to declare entire stretches of lines as historic. I am not talking 

about historical train stations, but actual track that trains run on. 

Even mundane projects have to be reviewed by the Historic Preservation Office, costing the railroad both time and money. If we go 

too far down this path of historic preservation bogging down necessary improvements and safety modifications with red tape, I believe we could be setting ourselves up for an historic accident. We 

had a similar situation regarding interstate highways, and we corrected this problem in SAFETEA-LU when we passed it a couple 

of years ago. 

This amendment would give railroads exactly the same treatment as interstate highways for historical purposes and would exempt rail lines from historical designation. I’m open to suggestions 

as to how to craft this amendment to protect clearly historical stations and possibly bridges and tunnels, but I do not believe that entire mile-long stretches of active track should ever be considered 

historic. 

The provisions will also benefit Amtrak freight and commuter 

lines. 

From a policy standpoint, I think we need to give the Department of Transportation a role in ensuring the protection of rail facilities of true historic interest while at the same time ensuring 

that rail safety is not compromised. And I hope, Madam Chair, you 

will work with me on this important issue as we move forward 

with the Amtrak reauthorization bill. And with that, I yield back. 

Ms. BROWN OF FLORIDA. Mr. Oberstar. 

Mr. OBERSTAR. Thank you, Madam Chair, and I thank the witnesses for being here, Mr. Shuster for participating, and for the 

issues that were raised in the course of our markup. 

We meet, in fact, pursuant to discussions held during the markup of the Amtrak authorization bill, discussions concerning statements that the Federal historic preservation process has led to 

costly delays in improvements in infrastructure for railroads, with 

little or no benefit for historic preservation. Those complaints came 

3 

from rail development interests in Alaska and in North Carolina, 

and the remedy proposed at the time was to limit historical preservation to very specific facilities, terminals, bridges, but not entire 

lines or corridors for railroads. 

Well, we need to explore that issue in the course of today’s hearing. Railroads certainly are deserving of historical preservation. 

They have been at the center of our development as a transcontinental economy, as transcontinental transportation. They are, 

along with the Interstate Highway System, at the very basis of our 

prowess, our economic prowess as a Nation. 

Certainly one of the most vivid and dramatic examples of that 

significance of railroading in our history is the pounding of the 

golden spike that linked the Central Pacific and the Union Pacific 

and connected the United States coast to coast. It is the subject of 

many History Channel programs, which I delight in observing. 

Many of our rail lines that cross through mountainous terrains 

are marvels of engineering. Rail stations are marvels and models 

of outstanding architectural achievement in engineering and construction achievement. But I also at the same time point out that 

it was the destruction of Pennsylvania Station in New York that 

was a major factor that led to the enactment of the National Historic Preservation Act of 1966. I remember that very well serving 

on the staff here. 

I think we need to understand how the Federal historic preservation process works. Federal law does not absolutely prohibit Federal actions that permit the impairment of historic properties. 

Rather, Federal law requires that before the action occurs, there 

should be consideration of a range of actions to mitigate or to avoid 

the impact, consideration of alternatives that produce similar benefit without destroying historic properties. 

Railroads are covered by a multiplicity of historic preservation 

laws; 2,300-plus rail properties are listed in the National Register. 

They are subject to those procedures. And additional rail properties 

are covered because when there is a proposed Federal action, there 

will be historic protection for sites that meet the criteria for listing 

those sites on the National Register. And even if the sites are not 

listed, there is an issue that comes up. 

The rail properties that are covered in the register, and I have 

a complete list of these here, include bridges, tunnels and viaducts. 

There are 19 corridors or railroads that are listed now in the National Register. They may be listed for their historical significance 

as links between important cities. They may be listed for excellence 

in construction or for their scenic value, such as the Stone Arch 

Bridge in Minneapolis that goes from Nicollet Island and which 

James J. Hill, the founder of the Great Northern Railroad, insisted 

be built on an S curve so that the passengers on his freight train, 

as they went around the curve, could look back and have something to see of significance and beauty. And it was built with Mankato stone, which is a unique yellowish-colored stone that is very 

attractive and also very resistant and has survived all these—well, 

let’s see. That was built in 1893, and it is still with us today. But 

it was on the National Register of Historic Places, so when the 

Great Northern Railroad became BNSF, and the BNSF decided 

they no longer needed to move freight through that area, that 

4 

bridge wasn’t destroyed. It was protected, and it is today a bus, 

rail, pedestrian and bicycling link, and thousands of people come 

every year to lunch on Nicollet Island to walk the bridge, to see the 

beauty that railroad magnate James J. Hill created and that the 

Empire Builder railroad once traversed. 

So we have Rails-to-Trails because we have been able to preserve 

corridors that once were rail facilities. And just on Sunday I did 

the Paul Bunyan Trail ride for our 10th year. That, too, was 

launched in 1893; 90 years later it was terminated. The freight rail 

service was terminated on that stretch, about 100 miles of rail. And 

Terry McGaughey, the midwife of the Paul Bunyan Trail, went up 

like a 20th-century Paul Revere asking the communities to band 

together to put up funds to preserve that right-of-way and convert 

it to a bicycle/pedestrian facility. And today we 650,000 users of the 

Paul Bunyan Trail. We did the 11th annual Ride with Jim bicycle 

event on the Paul Bunyan Trail. With my new cobalt hip, I did a 

25-mile ride on the trail. 

So today we are going to hear from interests, from the Advisory 

Council, the National Trust, but I want the Committee to pay attention to the administrative remedies available to deal with the 

problems raised. 

Historic preservation may be required for individual facilities 

that in themselves may not be historically significant, but they are 

part of a corridor that is historically significant. And I know there 

are problems that were raised on behalf of Alaska and on behalf 

of North Carolina in our markup of the Amtrak bill. If there are 

problems with the processing that takes time to do these things, we 

can deal with the process. But I think that we can speed that process up as we did in SAFETEA-LU under the direction of the Chairman, then-Chairman Young. 

A comparison has been made to the Interstate Highway System, 

and the Interstate Highway System is not 50 years old; the act is 

50 years old. There were some interests in the course of our work 

on SAFETEA-LU said, oh, my goodness, the sky is falling, the 

interstate is 50 years old, it is going to be subject to historic preservation, and we won’t be able to add or change interchanges, or add 

lanes or delete lanes or whatever. The interstate isn’t 50 years old; 

one or two segments are, but it is an evolving program. And so the 

exception was for the entire interstate system as a law, as a structure. 

So, use that panel, that pattern, for the rail program, well, then, 

I think there are some distinctions that need to be cited. And I 

think the request was for a much broader exception than was necessary to meet the needs. And I want to listen carefully to the concerns and to the obstacles and find ways that we can accomplish 

this without doing harm to the National Trust For Historic Preservation nor doing harm to railroads who need investment for expansion. 

Madam Chair, thank you. 

Ms. BROWN OF FLORIDA. Thank you. 

The gentleman from Alaska. 

Mr. YOUNG. Thank you, Madam Chairman. 

I thank the Chairman for his comments. 

5 

We have a unique situation in Alaska. We have a railroad that 

is 50 years old and actually older. McKinley came up and drove the 

golden spike, and it is still the major means of transportation within the State of Alaska. And we are not asking to destroy any historical sites. In fact, a lot of the sites in Alaska already been identified and are protected under my amendment. But we are in the 

process of trying to replace approximately 50 bridges that need to 

be replaced, or we are going to lose lives. 

We are in the process of straightening out the rail in areas which 

are extremely dangerous, because in the old days we didn’t have 

the technology nor the equipment. And it is extremely important 

that this railroad still function on time because we can’t do the 

work we need to do because we have different weather patterns, 

much like Minnesota, and we have to have the ability to do so. And 

we have a concern that there are those within the historical preservation group that will utilize this to imperil the ability for the Alaskan Railroad to operate. And that is the purpose of my amendment. 

And I truly believe that we ought to expand it like we did in the 

highway bill to a point where there cannot be an impediment to 

improve the safety of passengers and freight that are utilizing the 

railroad. And as I mentioned before, the railroad has been very 

good under the leadership and the tutelage of the managers, the 

board itself, of protecting, but it would be very nearly impossible 

to go through some person under the present act itself on historical 

preservation who will say they haven’t taken consideration the replacement of glass with the original type glass in a certain terminal. That would be, to me, an extension of not logic, but that 

does happen in our society. 

So I am asking you, especially this Committee, to look at the 

railroad in total that it is declared historical, and it does happen, 

and the effect upon the economy of Alaska, the ability to move 

products, the ability to move military to and fro from our port, and 

the safety of those that ride the train. 

And so I do think there is room here to work this out, but I don’t 

want one law to take and impede another agency that is trying to 

do what they should do for the good of the State of Alaska and this 

Nation. 

I originally intended to have just this Alaska in this program and 

not all railroads, but I think all railroads do have a problem. But 

I am not going to go that far if I can have some relief in Alaska 

for this railroad which is crucial to the economy of the State. 

And so I do think there is some room here. I will listen to the 

testimony from these witnesses, and let’s solve a problem that can 

be very damaging in the State of Alaska. And with that I yield 

back the balance. 

Ms. BROWN OF FLORIDA. Thank you. 

I would like to welcome and introduce today’s panel. Our first 

witness is Mr. John Fowler, Executive Director of the Advisory 

Council of the Historic Preservation. Our second witness is Mr. 

Thomas Brooks, assistant vice president and project and chief engineer of the Alaska Railroad. The third is Patrick Simmons, director 

of the rail division of the North Carolina Department of Transportation. And our fourth witness is Ms. Elizabeth Merritt, deputy 

6 

general counsel for the National Trust for Historic Preservation. 

Fifth is Rodney Little, a director of the division of historic and cultural programs for the Maryland Historic Trust. 

And our final witness is Mrs. Fowler, senior vice president of 

Federal relations of the Rail-to-Trail preservation action, has submitted testimony for the record. A copy of the testimony is available to each of the Members’ folders. 

Let me remind the witnesses, under our Committee rules oral 

statements must be limited to 5 minutes, but the entire statement 

will appear in the record. We will also allow the entire panel to testify before the questioning of the witness. 

We are pleased to have you all here this afternoon, and I recognize Mr. Fowler for his testimony. 

TESTIMONY OF JOHN M. FOWLER, EXECUTIVE DIRECTOR, ADVISORY COUNCIL ON HISTORIC PRESERVATION; THOMAS E. 

BROOKS, ASSISTANT VICE PRESIDENT FOR PROJECTS AND 

CHIEF ENGINEER, ALASKA RAILROAD; PATRICK B. SIMMONS, DIRECTOR, RAIL DIVISION, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; J. RODNEY LITTLE, DIRECTOR, DIVISION OF HISTORICAL AND CULTURAL PROGRAMS, MARYLAND HISTORICAL TRUST; ELIZABETH MERRITT, DEPUTY GENERAL COUNSEL, NATIONAL TRUST FOR 

HISTORIC PRESERVATION; AND MARIANNE WESLEY 

FOWLER, SENIOR VICE PRESIDENT OF FEDERAL RELATIONS, RAILS-TO-TRAILS CONSERVANCY 

Mr. JOHN M. FOWLER. Thank you, Madam Chairman. It is a 

pleasure to be here on behalf of the Advisory Council on Historic 

Preservation. The Council is an independent Federal agency created by the National Historic Preservation Act to advise the President and the Congress and to oversee the section 106 process. It 

is made up of 23 Presidential appointees, Federal agency heads 

and leaders of preservation organizations. It includes the Secretary 

of Transportation in its membership. 

Section 106 of the National Historic Preservation Act is the primary Federal protection for historic properties. It sets up a consultative process to evaluate the impacts of Federal activities on historic properties. It has limits. There has to be Federal involvement, 

and in the end the process is advisory. It can’t stop a project. 

Over 100,000 cases a year go through section 106 review. All but 

a few of these are resolved in an expeditious manner. The ACHP’s 

regulations which implement section 106 also offer a variety of 

tools to deal with special needs. We use them regularly for cases 

like the one presented today. 

The railroad industry’s exemption request is not at all unprecedented. Several industries in the past have sought congressional 

action to avoid historic preservation reviews. In 1989, the National 

Aeronautics and Space Administration sought a legislative exemption from section 106 claiming that it placed an undue burden on 

their programs. The Congress rejected it and asked the Advisory 

Council to develop administrative remedies. The ACHP worked 

with the National Aeronautics and Space Administration to develop 

an agreement that still guides section 106 compliance for NASA. 

7 

In 2001, the pipeline industry sought a legislative exemption for 

historic pipelines, pipelines such as World War II’s famous Big and 

Little Inch pipelines. The Congress again rejected the request, and 

the ACHP worked with the Federal Energy Regulatory Commission 

to complete an exemption created through the section 106 regulations. 

In 2004, the telecommunications industry wanted a legislative 

exemption for cell tower construction. Congress again refused to 

grant such an exemption, and the ACHP worked with the Federal 

Communications Commission to develop a national agreement that 

streamlines section 106 reviews for cell towers. 

And as has been noted, the Federal Highway Administration initially sought a legislative exemption for dealing with the Interstate 

Highway System, but working cooperatively with the ACHP they 

developed an administrative exemption that now covers the entire 

Interstate Highway System. 

I think the message is consistent. After examining the issue, the 

Congress has regularly found that the basic law of section 106 is 

sound. There are adequate administrative tools that exist, and legislative exemptions are unnecessary. The ACHP is prepared to 

work with the rail industry, Federal agencies, and stakeholders to 

reach the same kind of successful conclusion to the present challenge without resort to legislative exemptions. 

Thank you. 

Ms. BROWN OF FLORIDA. Mr. Brooks. 

Mr. BROOKS. Thank you, Chairman Brown, and Chairman Oberstar and Members of the Subcommittee, for holding this hearing 

and inviting me to speak here today on behalf of the Alaska Railroad. 

I would like to thank Representative Shuster for offering the 

amendment at the markup and Representative Young for his leadership in bringing the issue to the attention of the Committee. 

My name is Tom Brooks. I am assistant vice president of projects 

and chief engineer at the Alaska Railroad. Alaska Railroad has a 

500-mile-long mainline running from the Ports of Seward, Whittier 

and Anchorage to the interior city of Fairbanks. We offer a full— 

year-round full passenger service and freight. The railroad carried 

over half a million passengers in 2007, and we have extensive 

freight operations in interstate commerce. Because of our service to 

five military bases, we have been designated by the Department of 

Defense as a Strategic Railroad. 

The railroad was built and operated by the U.S. Government 

from 1914, and it was sold to the State of Alaska in 1985. And we 

are proud of our history, and we actively support historic preservation in numerous ways. These are detailed in the back of materials. 

However, the effect of expansively applied historical laws and 

regulations imperils our ability to maintain our railroads safely 

and efficiently and compromises the operational business agility 

vital to our railroad’s mission of stimulating State economic development. We support an amendment along the lines of the Shuster 

amendment that was offered and then withdrawn at the Full Committee markup pending this hearing. 

I would like to start by sharing a current problem that illustrates 

our dilemma very well. We have a bridge at milepost 432.1 that is 

8 

160 foot long and spans a small creek at a remote location. Two 

separate independent historians determined this bridge has no historic merit on its own; however, it has been, in practical effect, declared historic by our State’s Historic Preservation Officer, or 

SHPO, merely because it is part of the Alaska Railroad. This has 

triggered an extensive bureaucratic process that is meant to preserve and protect historic structures. 

The foundation of this bridge is failing badly, and we want to replace it in 2008. We can’t. We are currently passing around documents between the Alaska Railroad the Federal Transportation Administration, the National Park Service and the Alaska SHPO. We 

expect to obtain the required approval so the replacement can be 

completed in the fall of 2009. In the meantime we have got to get 

about 150,000 passengers, quite a bit of freight and military equipment across that bridge safely. We believe we can do this, but it 

is really expensive and very unnecessary. We would like to replace 

the bridge this season. 

We submit that this is a misapplication of public process and 

squanders Federal resources and public funds. There is really no 

reason that we couldn’t have replaced this bridge this year. The 

problem is created by overzealous attempts to identify the railroad 

as a single historic corridor, and this designation automatically 

triggers the historic protections for this mundane railroad feature, 

and it lacks historic merit on its own. 

Bridge 432.1 represents the sixth time we have been through 

this process since 2002. It is expensive and delays our efforts to improve safety and efficiency and to serve our customers. 

The Shuster amendment will ensure that the historic preservation standards continue to be applied to railroad features with historic merit in their own right, not because they are merely part of 

a railroad historic district. This amendment would provide the 

same relief to railroads that was afforded to the Interstate Highway System through SAFETEA-LU, and like the Interstate Highway System, railroads have been evolving since their inception and 

continue to do so. They have been constructed, expanded and upgraded to serve our national transportation needs. Their integrity 

depends on continuing maintenance and upgrades so they continue 

to operate and move passengers and freight efficiently. 

The Alaska Railroad is a critical component of our State’s transportation infrastructure and must continue its mission as an economic tool. Without the Shuster amendment there is immediate 

danger that our entire railroad corridor will in practical effect be 

treated as an historic district. 

Safety improvements and routine maintenance and even mundane features such as bridge 432.1 are incurring undue delay and 

costs, and the problem will get even worse in the future if the railroad corridor is either officially declared a historic district or, as is 

currently the case, it is simply treated as if we are. While avenues 

exist to appeal historic determinations, they are made to bodies 

like the Advisory Council on Historic Preservation or the keeper of 

the National Register. These entities are firmly grounded in historic preservation and have a far different mission from running a 

safe transportation system. 

9 

In closing, we will gladly continue to support efforts to preserve 

Alaska’s history and the history of Alaska’s railroad, but we must 

also ensure safe operations. Through the Shuster amendment we 

will continue our historic preservation efforts, focusing them on 

truly deserving properties while moving ahead with our mission. 

Thank you for opportunity to speak, and I will be happy to answer any questions. 

Ms. BROWN OF FLORIDA. Mr. Simmons. 

Mr. SIMMONS. Thank you, Chairwoman Brown, and Chairman 

Oberstar, and Ranking Member Shuster and distinguished Members of the Committee. My name is Patrick Simmons. I am director 

of the rail division with the North Carolina Department of Transportation. 

NCDOT is blessed to have the full-service rail program. Our program is nationally recognized for our work with the intercity passenger rail service, and I am pleased to report that the ridership 

on the two State-sponsored trains is up 20 percent over the last 

several months. 

Just yesterday Governor Easley announced that we will add another State-sponsored train as soon as it can be done in order to 

meet the growing demand. We are developing the federally designated Southeast High-Speed Rail Corridor, which we refer to as 

SEHSR. That will link the Northeast with the Southeastern States. 

We administer our State’s highway-railroad grade crossing safety 

program, and we are proud to have partnered with Norfolk Southern Railway and the Federal Railroad Administration to create 

something called the Sealed Corridor. Later this year USDOT will 

report to the Congress how the Sealed Corridor has saved lives at 

highway-railroad crossings. 

We partner with Norfolk Southern, CSX Transportation and the 

North Carolina Railroad in an ongoing program of infrastructure 

investments that improve safety, add network capacity and reduce 

travel times. We partner with the FRA to operate a railroad industry safety inspection program. We partner with our railroad community to do economic development projects. We also partner with 

the Virginia Department of Rail and Public Transportation, and 

the Federal Highway Administration, and FRA and the community 

of some 50 State and local agencies to develop the design and environmental evaluation of SEHSR. 

I am not here today to offend our historic preservation community, for I am very proud of our achievements in North Carolina 

to preserve historic train stations, equipment, and our contributions to the North Carolina Transportation Museum. Last year the 

National Trust recognized our body of work and honored us with 

the John Chafee Award for Excellence in Public Policy. I am here, 

however, to point out what I believe to be a significant impediment 

to our Nation’s developing transportation policy: designation of railroad corridors as historic. My concern is that such a designation 

adds significant process, time and cost to project delivery. The prospect of such a designation also will constrain our ability as a State 

to work with the freight railroads to add capacity and improve 

safety. 

We are at the beginning of a new era in public-private partnerships in our industry. Both parties wish to leverage funds from 

10 

each other to add sorely needed capacity and enhance mobility. 

Adding process and cost—and again, it impedes project delivery. 

I note, Mr. Chairman, or Madam Chairwoman, that the railroads 

are largely privately owned, while the interstate network is a public asset. SAFETEA-LU included the exemption from designation 

for the Interstate Highway System. This provision effectively places 

rail at a competitive disadvantage. It also favors public investment 

in highways versus the developing public-private partnerships between States and railroads. 

By not leveling the playing field, our program of infrastructure 

investment is further constrained from taking advantage of the enhanced economy, efficiency and productivity that the rail mode can 

offer. Already our Class 1 railroads are wary of governmental regulation, and rightfully so in this case. A requirement such as the 

historic designation that can apply broadly across their privately 

owned network will produce a setting that will make the task of 

entering into public-private partnerships all the more difficult. 

Our State has had experience as well with the facilities. We have 

had some challenges there that we were able to negotiate and overcome and go forward with those projects in good spirit of working 

together. However, I believe that designating railroad corridors as 

separate and apart from the facilities and structures as historic 

adds significant time and cost to project development. It is an impediment to adding network capacity and enhancing safety. I believe it will hinder our ability to foster these public-private partnerships, and I am not sure that it adds materially to the body of 

knowledge and protects our historic resources. Therefore, I urge the 

Committee to reconsider the amendment offered by Congressman 

Shuster, and I thank you for the opportunity to be here today and 

will be pleased to respond to any questions. 

Thank you, Madam Chairwoman. 

Ms. BROWN OF FLORIDA. Thank you. 

The bell—we are going to stand in recess for about 25 minutes. 

We have a series of votes, and we will be reconvening as soon as 

the votes are over. Thank you. 

Will the Committee come back to order, please? And Ms. Merritt 

will get started, please. 

Ms. MERRITT. Good afternoon, Chairwoman Brown and distinguished Members of the Committee. I am Elizabeth Merritt, Deputy General Counsel for National Trust for Historic Preservation. 

Ms. BROWN OF FLORIDA. Excuse me. Could you please pull your 

mike up? 

Ms. MERRITT. I appreciate the opportunity to testify before you 

today to share the National Trust’s serious concerns about a proposed major exemption from Federal historic preservation laws. 

The National Trust was chartered by Congress more than a half 

century ago to lead the private historic preservation movement in 

the United States. 

During the past 2-1/2 decades in which I have served as in-house 

counsel at the Trust, the Trust has worked tirelessly to implement 

and enforce section 106 of the National Historic Preservation Act 

and section 4(f) of the Department of Transportation Act, the laws 

from which the railroads are seeking a broad legislative exemption. 

11 

The Trust has served not only as a preservation advocate in the 

context of individual projects, but we have also been actively involved over the years in shaping regulations and programmatic 

agreements, and occasionally even legislation which is carefully designed to address complex implementation issues and special approaches tailored to specific agency needs. 

We have described in our testimony, as has the Advisory Council, 

a number of examples in which these administrative solutions have 

been very successful in addressing precisely the kinds of concerns 

that the railroads have presented here. The examples provided by 

the railroads simply do not represent the kinds of issues that Congress should be dragged into resolving. We urge you not to get 

pulled into the weeds here. The Federal and State preservation 

agencies represented at this table have the expertise and the successful models to address and resolve these concerns without the 

need to do a hatchet job on our Federal historic preservation laws. 

The centrality of America’s historic railroad resources to our national heritage is well-documented and summarized in the testimony. Our rail corridors have reflected and defined the spirit of our 

Nation, its culture, history and economy. As a result, railroad preservation has been a longstanding priority in Federal law and policy. 

We have provided for the record a list of all 2,486 railroad resources that are listed in the National Register. This is just a sample of all of the historic properties eligible for the National Register 

nationwide. 

Federal historic preservation laws are designed to achieve a balance between preserving the integrity of our historic resources and 

providing for their efficient and responsible continued use. The fact 

that a rail corridor is still in use is not a reason for exempting it 

from consideration for preservation. On the contrary, when these 

corridors have legitimate historic significance, they deserve to be 

included within the scope of our Federal preservation laws. 

Other active transportation facilities such as airports and historic parkways are managed in a way that respects their historic 

character and complies with Federal law. The railroads should live 

up to the same standard. 

Of course, Federal preservation laws only apply when the railroads receive Federal funds or permits. In the absence of such Federal benefits, these preservation laws pose no barrier at all for the 

railroads to do whatever they want with their historic property, 

even destroying it. But it is not appropriate for private corporations 

or State agencies to use Federal taxpayer dollars to destroy historic 

resources without at least participating in the review process like 

other industries and agencies. 

There is no showing that the railroads are unduly or disproportionately burdened by preservation laws that all other industries 

follow when they receive Federal funds and permits. The section 

106 regulations include a number of flexible tools that could be 

used to address the railroad’s concerns. Our testimony mentions 

three in particular. 

The first is programmatic agreements which are often used to 

streamline or eliminate review from minor actions. For example, 

the North Carolina DOT recently signed a PA to streamline review 

12 

for minor transportation projects throughout the State. According 

to the North Carolina SHPO, well over 100 projects per year are 

reviewed under this PA and all have been resolved quickly and successfully. Why couldn’t such a PA be developed for rail projects? 

As another example, the Alaska Railroad has a PA in place that 

allows for the replacement of all of its 57 historic timber bridges, 

further evidence that section 106 is not an obstacle to necessary 

upgrades. 

The second tool under section 106 is known as program comments, issued by the HCHP, which comment on an entire category 

of undertakings in lieu of individual reviews. These have been used 

extensively by the Defense Department to accomplish section 106 

compliance for literally tens of thousands of historic properties. 

The third tool is that the ACHP can exempt certain categories 

of undertakings from section 106. This is the model used for the 

interstate system. However, consultation is required with the 

ACHP to develop and craft such an approach to ensure that it 

doesn’t sweep too broadly. And the DOT has not yet initiated such 

consultation. The devil is in the details. And it should be the ACHP 

and the DOT rather than Congress undertaking the complex task 

of attempting to define the scope of an exemption. 

In addition to these administrative tools under section 106, section 4(f) also has streamlining mechanisms which have not been 

brought to bear here. This is important because section 4(f) is a 

more stringent law. First, section 6009 of SAFETEA-LU included 

a new exemption for de minimis impacts on historic properties and 

other resources protected by section 4(f). This was a carefully crafted, consensus-based amendment which the National Trust was actively involved in developing. We believe the de minimis exemption 

could be used to address many of the railroad’s concerns regarding 

section 4(f). As far as we could tell, this has not been evaluated. 

In addition, FHWA has adopted detailed regulations and guidance 

and a number of programmatic section 4(f) evaluations which have 

also been used to streamline review under section 4(f). All of these 

tools should be fully evaluated before a legislative exemption is 

considered. 

In conclusion, there are proven administrative tools available 

and we are confident that all of the railroad’s concerns can be addressed through consultation using these administrative tools. We 

respectfully ask Congress for the opportunity to show that those 

administrative solutions can work. The National Trust stands 

ready and willing to participate in that process. Thank you. 

Ms. BROWN OF FLORIDA. Mr. Little. 

Mr. LITTLE. Thank you, Madam Chairwoman. My name is Rodney Little. I am a member of the National Conference of State Historic Preservation Officers and I currently serve as the State Historic Preservation Officer for the State of Maryland. 

Madam Chairwoman, thank you and Ranking Member Shuster 

and Members of the Subcommittee for this opportunity to present 

our views of the National Conference of State Historic Preservation 

Officers. 

I have served as the State Historic Preservation Officer for Maryland for almost 30 years. In that time we have dealt in Maryland 

with a great many types of historic properties. We have our share 

13 

of the signers of the Declaration of Independence, but we also have 

many sites that are in contemporary daily use and with high technological needs. 

For example, the oldest airport in the United States is in the 

State of Maryland. It was started in 1909. It is in continuous use 

today. And it has been on the National Register since about 1980. 

We have several other airports that are on the National Register. 

In the field of railroads, we deal every day with very historic railroad features. The first regular—the regular carrier passengers 

and freight in the United States, the B&O Railroad, started in 

Maryland and we deal with facilities of that railroad that date from 

the 1930s—or, I am sorry, the 1830s. 

We have a very good working relationship with our transportation agencies regardless of modal form, and that certainly includes our rail authorities. I would note with pride that in the 30 

years that I have been doing the work, while we have reviewed 

hundreds of railroad projects, including railroad projects and designated corridors, that there has never been a piece of litigation involving those railroad projects. 

Ms. Merritt and Mr. Fowler before me mentioned that there are 

a number of administrative remedies that perhaps have not been 

fully investigated here. And I certainly can testify to that from the 

State of Maryland. 

In Maryland we use what has been referred to as programmatic 

agreements or programmatic approaches. Let me cut through the 

bureaucratic jargon and talk a little bit about what those are. Over 

the years, the historic preservation review processes have evolved 

and are very effective in dealing with a wide variety and diversity 

of types of projects. 

However, every agency has different planning processes. The 

planning process for highway is very different than the planning 

process for a railroad, is very different than the planning process 

for a housing development. What we do in our State is we try to 

take a programmatic approach to those kinds of problems as opposed to a project-by-project review. That has worked very well, 

and as far as I have been able to see in this case, that programmatic approach has not been applied to some of these problems that we are talking about. 

In order for that to work, the State Historic Preservation Office 

has to be willing to enter into such programmatic approaches. It 

has to be willing to make compromises and trade-offs up front. And 

likewise, the State or Federal agencies on the other side need to 

be willing and capable of carrying out those kind of sophisticated 

programmatic approaches. They work. 

In my long career I have, unfortunately, had to deal with quite 

a number of public projects that were subject to litigation on preservation issues. The first question that the courts always ask is, 

Are there administrative remedies that will take care of this issue? 

Have those administrative remedies been utilized? And have they 

been exhausted? Were this particular issue before the courts right 

now, I think they would send us all back to the drawing board and 

say, You have not exhausted the administrative remedies. 

Thank you very much. 

Ms. BROWN OF FLORIDA. Ms. Fowler. 

14 

Ms. WESLEY FOWLER. Madam Chair, Ms. Brown, Chairman 

Oberstar, Congressman Shuster, Congressman Young, other distinguished Committee Members, thank you for the privilege of addressing you today on this most important topic. I am Marianne 

Fowler, Senior Vice President of the Rails-to-Trails Conservancy. 

Let me draw your attention to the wall monitors, and I invite 

you to focus on the pictorial representations of historic railroad features. They are, after all, what this hearing is about. Many of them 

have been preserved through the auspices of the National Historic 

Preservation Act. Let me assure you, I will not be offended if you 

divide your attention between these pictures of America’s railroad 

heritage and my words. 

RTC speaks today in opposition to any attempt to exempt railroad corridors and facilities from Federal historic preservation 

laws. Here is why: Congress has mandated that it is our, quote, national policy to preserve established railroad rights of way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy-efficient transportation use. 

It is RTC’s mission to aid in this process by identifying rail corridors that are not currently needed for rail transportation and 

work with communities to facilitate the conversion of these corridors into public trails and nonmotorized transportation corridors. 

Congress has given us three tools with which to accomplish this 

goal. 

First, the rail banking statute which allows for the transfer of a 

corridor on which a rail company no longer wants to conduct service to a willing trail manager. This process, however, depends upon 

not only the willingness of the interim trail manager, but also the 

willingness of the railroads. And the railroads are not always willing. 

It is in this context in which section 106 provides a critical constraint to the ability of private railroads to dismantle historic 

transportation corridors. To carry out its section 106 obligations, 

the Surface Transportation Board imposes conditions that temporarily bar railroads seeking abandonment authorization from removing any historic bridges, features, other features that require 

railroads to engage in historic preservation consultation. These 

preservation conditions give public agencies and potential trail 

managers the time necessary to undertake the due diligence and 

reviews necessary to proceed with public land acquisitions, and ensures that important historic structures and features that will 

allow for trail use and enhance the trail experience are not removed until these consultations are complete. 

It is the synergy between these two provisions of Federal law 

that have now given us over 15,000 miles of active, open, rail trail 

and have also given us many more miles of rail trail, rail corridor 

that is in project stage. And so we oppose this exemption. 

Last night I had occasion to speak to the president of one of 

America’s railroads. And he said to me, Marianne, you can’t expect 

railroads to care, railroad companies to care about the history, 

about the history of the railroads. Their obligation is to care about 

the economics of their company and the functionality of the system. 

And I thought for a moment. And I responded to him, no, I do expect you to care. I expect you to care the very most because you 

15 

own our history, a history that so infuses the American sense of 

ourselves. It informs our literature. It informs our art. It informs 

our music. In some communities I am told it is even so much a part 

of that community that they have named their basketball team the 

Altoona Curves after a marvelous feat of railroad engineering that 

comes through the mountains and curves into Altoona. So gentlemen, I would ask you to rise to your higher responsibility of protecting our railroad heritage. Thank you very much. 

Ms. BROWN OF FLORIDA. Thank you. 

And I thank all of you for your testimony. We will start with Mr. 

Oberstar for questioning. 

Mr. OBERSTAR. Thank you, Madam Chair. And I thank all the 

witnesses for their splendid testimony. I think that the frosting on 

the cake, the icing, if you will, is the show of railroad history captured in those slides. A wonderful representation. You finished 

with the project I started with in Minneapolis, the St. Anthony 

Falls Nicollet Island project. 

I want to come to the Alaska Railroad issue. And I have a 

timeline. Chairman Young provided Member high-priority project 

designation for replacement of this bridge 432.1 in SAFETEA-LU 

bill. And the Alaska Railroad undertook engineering analyses in 

the summer of 2007, showed the bridges in need of replacement. 

And the railroad submitted all the environmental requirements 

under NEPA to Federal Transit Administration in January of this 

year. Right? 

In March FTA determined the bridge was not eligible for National Register because it wasn’t historic. In April the State SHPO, 

not the Federal Government, not an agency of the U.S. Government, not the Congress, your own State agency disagreed and determine the project would have an adverse effect because of the 

bridge association with the Alaska Railroad. 

Then the Alaska Railroad began a process of showing that there 

is no feasible or prudent alternative to replacing the bridge. And 

it completed that work in April. And FTA and the Alaska Railroad 

submitted that information to the National Park Service under the 

4(f) provision for review, and FTA is expected to get a response in 

July from the Department of Interior. Is that correct? 

Mr. BROOKS. That is our best guess, yes. 

Mr. OBERSTAR. That is not a horribly long process. 

Mr. BROOKS. The problem we have is it causes us to meet the 

windows that we need for construction. We can’t proceed with the 

project under Federal guidelines until all the approvals are in 

place. We basically have been unable to commit to ordering the 

steel for the bridge and nailing down some of those lead items. 

Mr. OBERSTAR. But from March through July, to get a process 

completed, is not an undue burden. If you had started the process 

last summer, you would be under construction now. 

Mr. BROOKS. Well, I think the process is a fairly long process. We 

did start last summer with the second evaluation of the bridge history. 

Mr. OBERSTAR. That wasn’t impeded by the historic preservation. 

Mr. BROOKS. Well it is part of the historic preservation process. 

I mean, it takes a while to put all that together, use a historic— 

we were using a historical consultant to do it, so that we weren’t 

16 

able to have a historic evaluation to put before the FTA until December. We put that before them in early February—or early January, excuse me. 

Mr. OBERSTAR. Well, I really don’t see the historic preservation 

provision—it caused the railroad to stop, take stock, make an assessment, evaluate the situation, go through a process that was 

beneficial for you, beneficial for the historic preservation process, 

and may well—I mean, there is the designation that there is no 

feasible prudent alternative. That is your own. Why do you need 

an exemption? Do you simply want not to go through a process at 

all? 

Mr. BROOKS. I am sorry. The crux of the matter relates to whether it is prudent to do that. You know, it is always feasible to do 

something. If the Park Service were to determine that it is prudent 

to replace that bridge, we would have a very difficult time figuring 

out what to do with it. That process is very—you know, basically 

we are appealing what we do with our railroad to historians at the 

National Park Service. 

Mr. OBERSTAR. Well, and last year, according to documents that 

I have requested, the Alaska State Historic Preservations Office 

and the Federal Railroad Administration and your railroad signed 

a memorandum of agreement for replacement of timber bridges in 

the corridor of the railroad. Fifty-seven bridges are included in the 

agreement. The railroad agreed to retain two of them. Is that correct? 

Mr. BROOKS. That is correct. 

Mr. OBERSTAR. Is that a burden on the railroad? 

Mr. BROOKS. It is a minor burden on the railroad. We do have 

a programmatic agreement in place to govern our timber bridges. 

We have agreed that over a third of the bridges in our system are 

historic. 

Mr. OBERSTAR. The agreement gives you an out, to the extent 

possible. 

Mr. BROOKS. I think that is a pretty strong obligation from our 

point of view. 

Mr. OBERSTAR. Mitigation measures include digitization of the 

documents, preparation of an annotated bibliography, creation of a 

timber bridge booklet. A lot of people consider timber bridges to be 

very significant structures, very important to our past and to our 

future. 

Railroading evokes the most sympathetic response from any 

transportation activity—I don’t find people getting fired up about 

highways, but I do find they fight over a railroad bridge, a covered 

bridge, a railroad station. About a third of the cities in my district 

have a caboose or one of those old cow catcher locomotives on display at the entrance to the city or as you depart from the city on 

the other end. These are historic parts of our history, of our past. 

If it takes just a couple of months, or 3 months or 4 months, to go 

through a process and evaluate it, I don’t see how we are creating 

a burden for you. 

Now, both Mr. Brooks, Mr. Simmons, are you opposed to having 

rail corridors designated in a historic preservation document? 

Mr. SIMMONS. Yes, sir. And I draw the distinction between a corridor and the facilities. As we have carried out our responsibilities, 

17 

we have had many opportunities to work with historic facilities, 

historic structures, and to work through the issues that are relevant there. So we are okay there. 

With respect to rail corridors, I note that the corridor listing provided to the Committee, the handout included in Ms. Merritt’s testimony, most of those railroads are either tourism railroads or 

abandoned. And the issue I am trying to bring before the Committee is, as we develop private-public partnerships in this country 

to make investments that add capacity and safety to active mainline major railroads, that that is a distinction. Those railroads do 

need to function. 

We honor our past in many different ways. But as we have these 

major transportation facilities, there will be a need to expand their 

capacity and to add—or to go down a pathway that adds this responsibility to the private sector and to the public sector in working with the private sector, will add process, will add cost. And, Mr. 

Chairman, it will make our task in the public arena all the more 

difficult. 

Mr. OBERSTAR. Well, there is another responsibility, and that is 

to the public and to the past. And in the years 1850 to 1871, the 

Federal Government granted to the railroads 173 million acres of 

public lands. That at the time, and today, represented in the lower 

48, 9 percent of the total land surface of the United States for the 

public use, convenience and necessity; and the right to own the 

minerals below the surface and the timber above the surface and 

to sell that land. 

That was an enormous gift bestowed upon the railroads in the 

public interest to be managed by the private sector. And so now the 

public sector says, there is a historic value. We just want you to 

consider it. 

If we were to accept the language of the amendment proposed by 

Mr. Shuster, taking the language from SAFETEA-LU, corridors 

can be protected under that language, and are protected: 150 miles 

of the Pennsylvania Turnpike under that language are protected; 

60 miles of the Columbia, Oregon River Highway are protected; 30 

miles of Alligator Alley in Florida are protected. 

So I leave you there for the moment to think about that language. Thank you, Madam Chair. 

Ms. BROWN OF FLORIDA. Mr. Shuster. 

Mr. SHUSTER. Thank you, Madam Chairman. My question—well 

first, just in response to the Chairman, the railroads were deeded 

public lands in the 1850s through the 1870s. And I believe everything I have seen is that there has been a tremendous repayment 

to the public good and to the Federal Government by many various 

ways from shipping our troops for free on the rail system to—by 

the railroad putting those rail lines where they went through, the 

value of the Federal lands that were retained by the government 

increased in value, and then the government sold them or did various things. I don’t know if we can continue to make that argument 

that there hasn’t been a significant payback to the Federal Government, to America over the years. So I would make sure we put that 

on the record, and we need to consider that as we move forward 

with this. 

18 

I don’t think anybody is—and in the amendment, it does have 

protections for railroad stations and significant engineering structures. And my question to Mr. Fowler: Isn’t it true section 106 of 

the process would remain in effect under my amendment? And 

doesn’t that alleviate any of your concerns regarding protecting historic bridges, tunnels and stations? 

Mr. JOHN M. FOWLER. As I understand your amendment, that is 

correct. It would not affect the application of section 106. The 4(f) 

process of the Department of Transportation Act is a very important historic preservation law in the Federal establishment. And 

we are supportive of retaining its protections as appropriate. 

It is more inflexible than section 106 is, and I would certainly 

not advocate or support changing that without a very careful examination of what kind of flexibility does exist under the current law 

to meet the needs that the railroads are putting forward. 

Mr. SHUSTER. I think the idea behind the amendment that myself and Mr. Young are putting forward is not to necessarily eliminate the ability to identify corridors, but to limit it and to make 

it so that it is not on a State-by-State or local-community-by-localcommunity. Allowing DOT to have that say is, I think, extremely 

important to the national transportation system and to the safety 

of that system. 

Mr. Simmons, could you talk a little bit about more—or, more 

specifically, public-private partnerships being hindered? Can you 

speak—are there specifically things moving forward now or just 

over the horizon that you are concerned about that this may cause 

a significant problem? 

Mr. SIMMONS. Yes, sir, Mr. Shuster. One of the challenges that 

we have taken up in our State is to develop a future high-speed 

rail network. Our role has been to bring forward the environmental 

documentation, the environmental and preliminary engineering, on 

a corridor that stretches today from Washington, D.C. through 

Richmond, Virginia, to Raleigh down to Charlotte, North Carolina. 

There are other legs of that corridor that extend south to Savannah 

to Atlanta, east to Hampton Roads. 

For us to be able to actually construct on a date, sir, we will need 

an agreement with freight railroads; in this case, BCSX and Norfolk Southern as well as our own State-owned railroad, the North 

Carolina Railroad. And that is a challenging group to work with. 

They are very interested in their business interests, not to the exclusion of history, because each in their own way they celebrate 

that and work with that. 

But to apply designation to the corridor today, we are on the 

cusp of the designation from Petersburg to Raleigh, and I don’t 

know how far that would extend. And I don’t know that I am in 

a position to provide assurance to our Class I railroads that it 

wouldn’t extend further. 

And I think that, while there may be a process in place, an appeals mechanism, it still makes the issue of bringing that to bear 

fruit, to actually be able to make the investments, to add capacity 

to those mainline railroads that provide for passengers and freight 

will be all the more challenging and all the more difficult. I will 

stop right there. 

19 

Mr. SHUSTER. And just one final point that I would like to make, 

just to point out here that the national historic landmark or the 

National Register, which the horseshoe curve is on, which of course 

is in my district, which the ball team, AA Baseball Team, is named 

after. Norfolk Southern has done a fantastic job of making sure 

that they have upkept and there has been a facility built there so 

that railroaders, railroad buffs from around the world, can come 

see it. 

And as I have said, for as long as I know, the Norfolk Southern 

Railroad has done—and prior to that, Conrail did a great job on 

preserving that and making sure. And it is part of their mainline. 

So they have a vested interest in seeing that that part of their system is in good working order and a pleasant experience for all 

those who go to visit it. 

And if the Chairwoman would indulge me for one last comment, 

today is the final hearing that we are going to be joined by John 

Brennan who is departing us. He is becoming senior counsel at the 

Union Pacific Railroad. And it is a loss for the Committee and a 

great pickup for the UP. And I know that his wife, Maureen, and 

his two sons, John and James, which I guess they are not departing yet, but they will be moving to Omaha shortly, and I just want 

to thank John for his knowledge, for his guidance, his support and 

especially his friendship over the past couple of months. 

I became the Rail Subcommittee Chairman and knew something, 

but didn’t have the kind of knowledge that John had. So he gave 

me a quick education on the nooks and crannies and the details of 

it. So he has been with the Committee 5 years, and he will be 

greatly missed. But I am sure we will be hearing from him from 

time to time when Union Pacific has issues that come before this 

Committee. 

So John, again, thanks so much for your knowledge and your experience. 

Mr. OBERSTAR. Would the gentleman yield? 

Mr. SHUSTER. Yes. 

Mr. OBERSTAR. I would like to join the gentleman, again, in complimenting John on his service to the Committee and his departure 

for new fields, but fields still within his area of expertise in railroading. He has a very keen understanding of the issues, an indepth knowledge of railroad matters. And Union Pacific will benefit 

immensely. And he will join another former Committee staffer over 

there in the pursuit of the railroad’s needs and in an operating capacity. And I compliment you on that. Thank you. 

Mr. SHUSTER. And I want to say to the Chairwoman, thanks 

again for this hearing. I have to excuse myself. But I am going to 

leave it in the able hands of the former Chairman and someone 

who has a real interest in this situation. So I yield back to the 

Chairwoman. 

Ms. BROWN OF FLORIDA. Mr. Young. 

Mr. YOUNG. Thank you, Madam Chairman. Did I hear myself or 

did I hear someone else say that they would support the TEA-LU 

provisions for historical definition that is in the bill; is that correct? 

Did I hear that? 

20 

Mr. OBERSTAR. If the gentleman would yield. I simply cited that 

the language of SAFETEA-LU on historic preservation gives the— 

provides the authority to protect corridors. So—— 

Mr. YOUNG. I think I am hearing correctly. I just have to talk 

to the gentleman a little later. I appreciate it. 

Mr. OBERSTAR. Yes, please. 

Mr. YOUNG. Again, Madam Chairman, my interest here is we 

have the only railroad in the State of Alaska. And there was no alternatives. We don’t have a great highway system. It is the main 

carrier, and we want to improve it and upgrade it and make sure 

it is safe. 

Now, my information is we have had three bridges identified totally unsafe; in fact, should not be used. One is in Indiana and the 

other one is I believe in Denali; is that correct? Where is the other 

one? There was three of them. And then the rest of them are under 

question, if I am not mistaken, of the 50 bridges. 

Mr. Brooks, your testimony indicates that designating the Alaska 

Railroad a historic district adds significantly to project schedules 

and costs, and hinders safety and advancements and operational 

improvement. But protection of historic resources is important and 

is required by law. How do you propose that the amendment ensures the historic resource will continue to be protected that is 

being offered by Mr. Shuster and myself? 

Mr. BROOKS. Well, what we propose is that historic resources, in 

and of their own right, that have historic value would be protected 

under the 106 process. The amendment essentially proposes that if 

there is an adverse effect on a historic resource, it wouldn’t have 

to go through 106—or excuse me 4(f). In addition, the railroad corridor issue, you cast a pretty wide net when you talk about a railroad corridor and you end up bringing a lot of bridges and other 

infrastructure into play in the 106 process and the 4(f) process that 

really have little or no historic merit. 

Mr. YOUNG. The other thing is, Madam Chairman, this is one of 

the things that has concerned me. Let’s say the railroad, you know, 

North Carolina or wherever it may be, and you go through this 

process and the SHPO or one of the historical groups says no. Who 

do you appeal to? 

Mr. BROOKS. Actually, I don’t know for sure. I know that our appeal processes have always ended up in the hands of historians, either at the Park Service or our SHPO—— 

Mr. YOUNG. So you really don’t have an appeal to an outside 

source to say, this is meritorious or is not meritorious? 

Mr. BROOKS. Not normally, no. 

Mr. YOUNG. The second thing is, it appears to me—and the 

Chairman’s question was—it seems to me the Alaskan SHPO just 

causes more problems than the national definition. Are they living 

off of the national definition? Or are they doing this on their own? 

Mr. BROOKS. Well, I think the standards under the national historic preservation effort are being expanded widely and applied 

much more vigorously. For example, although we have had Federal 

funding for a number of years, we didn’t have any need to exercise 

the 4(f) process before 2002. Since then we have been through it 

six times. And talking to the timber bridge MOU, which covers the 

106 process, you can only have an MOU in place there. Whenever 

21 

we do impact the timber bridge adversely, we do have to then follow it up with the 4(f) process. So we are still not out of that for 

whatever structures we have. 

Mr. YOUNG. Madam Chair, I am a little concerned here because 

we have an individual on the SHPO board that—we have another 

historical barrier in the State that is being proposed to be adversely affected. And it would seem to me that there was an indication that there had been some transfer of dollars into the State program. There may be not as much of an objection. That goes back 

to my—there should be, somewhere along the line, people have a 

right to appeal outside of those interested in that issue. See, I want 

to believe in protecting historical things. But when I have a railroad that has to move all my troops and move my gravel and move 

my fossil fuels and move my food and move everything, the only 

real form of rail transportation, I don’t want to see another agency 

within the Federal Government has been codified by the Congress 

to say, oh, no, you can’t do that, but maybe we will help you out. 

I don’t think that is fair. I think there ought to be a way that 

there is an outside source to say, all right, this really is not going 

to hurt the historical aspects of it. It is not going to change the railroad adversely, historically, and maybe we ought to go forth with 

it. I don’t see who they appeal to. 

I am going to ask my counsel to look into this because I think 

that is crucially important in this process, that we know that there 

is somebody who could make that decision outside of historians. 

Why should the historians, when you want to do something, have 

the right to say no and stop the process of your rail from running? 

That is the thing I don’t quite understand. 

Any one of the historians want to comment on that? Mr. Fowler, 

can you do that? 

Mr. JOHN M. FOWLER. No, sir. 

Mr. YOUNG. You can’t do that. You have not done that and no 

one else has done it. 

Mr. JOHN M. FOWLER. If I am reading your question correctly, 

the question of what is or is not historic is a decision that is made 

by the people that have the authority and the responsibility and 

the expertise to determine historic significance. So in the section 

106 process, it is the State Historic Preservation Officer and then 

the keeper of the National Register. 

Mr. YOUNG. May I interrupt? Having said that, we want to make 

an improvement. We want to replace a bridge, and that State Historical Officer says, no, you can’t do it. Where does the railroad go? 

Mr. JOHN M. FOWLER. First of all, the State Historical Officer 

cannot say no, you cannot replace the bridge. Under section 106 if 

the State Historic Preservation Officer says this property is eligible 

for the National Register, that then requires the Federal agency 

that is providing the money—if the railroad is doing it, but with 

its own funds, there is no—there is no Federal law involved. There 

is no application of section 106 because there has to be some Federal permission or Federal assistance. 

Mr. YOUNG. But again, going back to the Alaska Railroad— 

Madam Chair, my time has run out. Alaska Railroad is difficult to 

change that, because it was a Federal railroad, but it still was 

transferred to the State. 

22 

Mr. JOHN M. FOWLER. Correct. 

Mr. YOUNG. Now, who has the responsibility? Because there were 

Federal dollars involved, so that puts it under the jurisdiction of 

historical definition. And it goes back to, again, Mr. Brooks wants 

to put a bridge in. The State historical or the the Federal historical 

people say no. What recourse do they have? 

Mr. JOHN M. FOWLER. Well, again, as I understand it, the current Federal interest in the Alaska Railroad is only if the Federal 

Transit Administration or the Federal Railroad Administration provides funding, or if perhaps they need a Corps of Engineers’ permit 

in order to replace a bridge. 

Mr. YOUNG. See, then they are covered, because they are the 

Corps of Engineers. That means they are under the Federal jurisdiction. And Mr. Brooks’s railroad can’t build a bridge if you say 

no. 

Mr. JOHN M. FOWLER. Well, no, because the Corps of Engineers 

has to consider the impact of giving the permit on the historic 

property. But in the end, the Corps of Engineers can say, it is more 

important to give this permit to replace the bridge, and there is nobody—the Advisory Council, the State Historic Preservation Officer, the Secretary of Interior, or the National Park Service, no one 

can say no to that. That is a decision of the Corps of Engineers. 

Mr. YOUNG. Now we go through this process and we have a 

building season in Alaska of 90 days. We are set off more than 90 

days. The Chairman brought this up. We are set off a year, and 

the train bridge collapses. Who has a responsibility? Is it Mr. 

Brooks, Alaska Railroad, Historical Society, Corps of Engineers? 

Who has the responsibility for the 150 people at the bottom of that 

canyon because the bridge wasn’t fixed because it could possibly be 

historical? Who is responsible? 

Mr. JOHN M. FOWLER. I don’t quite feel equipped to answer that 

question, sir. 

Mr. YOUNG. Well, you mean you are not responsible, then, and 

you held it up. 

Mr. JOHN M. FOWLER. No, because—— 

Mr. YOUNG. Or SHPO held it up. 

Mr. JOHN M. FOWLER. First of all, I would suggest if one spends 

all their time debating whether or not the property is significant, 

that that often is the major reason that the process is protracted. 

Mr. YOUNG. We don’t disagree with the idea of it being historical. 

We disagree with the ability not to improve it so it is safe. That 

is all we are trying to do. My wife just walked in and told me to 

be quiet. So go right ahead. 

Mr. JOHN M. FOWLER. The process, sir, can work efficiently if 

people sit down and say, okay, this is a historic property, and now 

let’s see what we can do with it. And the Federal agency that is 

funding or approving the project is in control of the time. If the 

Federal agency says we don’t want to talk anymore about this, the 

SHPO is being obstructionist, they can terminate the process, they 

can get advisory comments from the Council, and then they can go 

forward and approve the project. 

Mr. YOUNG. That is a dream world. If one person, one individual 

in SHPO says no, the railroad cannot fix that bridge. And that is 

what we are trying to address in my amendment. You know that. 

23 

That is exactly what we are trying to do. It is what we did in the 

highway bill. We are going to try to apply that, because if we don’t 

do it, then you have impeded the process of safety, ability to expand the railroad. Not destroying historical things. And that is not 

you personally. But just keep in mind, our goal is to make sure the 

railroad runs right, and on time. Yield back. 

Ms. BROWN OF FLORIDA. Thank you. Mr. Fowler—and I guess 

anyone who wants to answer this question—over the next 10 years, 

there is going to be a large increase in freight rail, shipment, passenger. How do you suggest we balance preserving our national 

heritage and preparing the future needs of this Nation? 

Mr. JOHN M. FOWLER. Well, Madam Chairman, we have already 

started to address that in case-by-case situations with regard to 

lines that require tunnel enlargement for clearances for modern 

freight equipment and so on. I would suggest that the Federal 

agencies that are responsible for funding and overseeing this, the 

Federal Rail Administration, the Federal Transit Administration, 

work with the Advisory council, the National Conference of State 

Historic Preservation Officers and the railroad industry and deal 

with this in a programmatic way, much the way we have dealt 

with the Interstate Highway System. 

We are concerned as much as anybody else is in having an efficient transportation system and we don’t want preservation to be 

an impediment to that. 

Ms. BROWN OF FLORIDA. You did not answer Mr. Young’s question, or I didn’t understand the answer to the question. He is indicating that what procedure is in place when one person is blocking—I mean to me, safety is number one. 

So the question is, what procedure is in place? If you have a facility that is structurally, physically, not safe and you are running 

trains on it, and then you have a process that is holding up the 

construction—you know, I know that on another Committee I am 

on, VA, we can completely fund a facility, and it takes the private 

sector 16 months to build it, and it would take us 5 years because 

of the different agencies. 

How can we have a one-stop process to expedite the time? I guess 

that is what we are asking here. 

Mr. JOHN M. FOWLER. All right. Well, first, in emergency situations there are exemptions from section 106 in order to meet an 

emergency situation, such as the imminent threat to safety for a 

bridge that is substandard. But as I was saying, under the section 

106 process, the Federal agency—and there has to be a Federal 

agency involved—if it is a funding agency, such as FTA in the situations that I understand, they are in complete control of the process. They can say—the SHPO’s role is purely advisory. The SHPO 

says it is historic, and the FTA says it is not. The FTA can move 

forward based on that. 

If the SHPO says, I don’t want you to tear the bridge down and 

the FTA says, we don’t agree with you, they can terminate this 

consultative process. They can get advisory comments from my 

agency that have to be delivered within 45 days of a request. And 

then it is up to the Secretary of Transportation to decide what to 

do with it. And the Secretary can say, rail safety is more important. It would be nice to save this bridge, but we are not going to 

24 

do it. It. Thank you very much, ACHP, for your comments. We are 

moving forward. 

Ms. BROWN OF FLORIDA. Mr. Little, you want to comment on 

that, the question? 

Mr. LITTLE. I am sorry. 

Ms. BROWN OF FLORIDA. Did you hear the question? 

Mr. LITTLE. No, I did not, ma’am. 

Ms. BROWN OF FLORIDA. Did you hear my question? 

Mr. LITTLE. No, I did not. 

Ms. BROWN OF FLORIDA. Okay. What I said was, over the next 

10 years it is going to be a real conflict between the passenger rail 

and freight rail as far as the increase in ridership. And how do we 

balance the two, preserving historic and moving the system forward? 

Mr. LITTLE. The best solution to that in my opinion is the one 

that we have used in my State and around the country for several 

decades. And that is the administrative programmatic approach. 

Under the programmatic approach, you try to avoid project-byproject review and instead look at entire programs. Those entire 

programs may involve large geographic areas, like a corridor, or 

they may involve multiple projects that are highly repetitive and 

highly predictable in terms of what the nature of the project is and 

what the nature of the solution to the historic preservation problems are. 

What that programmatic approach does is to essentially allow 

the railroad agency and railroads in this case to self-monitor and 

carry out the preservation planning processes itself. Now, they 

have got to do it according to decent standards. But the agency, the 

railroad agency does the work itself and only comes to the State 

Historic Preservation Officer or the Advisory Council and historic 

preservation for problems that cannot be resolved in accordance 

with an agreement. 

Those agreements—in my State we probably have right now 50 

such programmatic agreements with things from our housing agency to our transportation agency. They work. But the agency implementing them has to take the process seriously and has to own the 

preservation planning process. We don’t want to be the preservation police. We don’t have the time or the money to look over agencies’ shoulders. And if we can get them to do it themselves, that 

is what we want. 

Ms. BROWN OF FLORIDA. Ms. Fowler, what impact would the 

Shuster amendment have on the Rail-to-Trails program? It is a 

very popular program in my State of Florida. 

Ms. WESLEY FOWLER. I think the impact would be that because 

of the way railroads under Federal law are allowed to abandon corridors, they can move corridors through—they can put a system 

diagram map and say they plan to abandon it 2 years into it or 

what have you, or they can discontinue service on it and not provide any service and then abandon in a 30-day period, seeking 

what they call an exemption. 

And our way of slowing down that process enough so that public 

agencies have an opportunity to put together funding packages, 

build community support, turn to Congress or their states for TE 

money, whatever, it prevents the dismantling of those key features. 

25 

We talk about a trestle as if it were just a historic preservation 

facility. It is also the way you get from one part of the corridor to 

another part of the corridor. The tunnel is how you get from one 

part of the corridor to the other part of the corridor. If those facilities fall into disrepair or are allowed to be dismantled, if that 

stone, for instance, on the Stone Arch Bridge was allowed to be 

sold off to private sector because the railroad owned it and so they 

had a good market for it, those features, you can’t separate the facilities on the corridor from the corridor itself. They are a part of 

the corridor. So you need to keep them intact long enough for public agencies to make a decision as to whether they want to acquire 

that corridor or not. 

Ms. BROWN OF FLORIDA. Is this a coincidence about the two 

Fowlers here today? 

Ms. WESLEY FOWLER. Well, we are not sure. 

Ms. BROWN OF FLORIDA. Okay. I am going to have to check with 

the staff on this one. 

Mr. Brooks and Mr. Fowler, would you all be willing to sit down 

and discuss how we can solve this problem before this bill comes 

to the floor? 

Mr. JOHN M. FOWLER. On behalf of the ACHP, we would be delighted to, Madam Chairman. 

Ms. BROWN OF FLORIDA. How about you, Mr. Brooks? 

Mr. BROOKS. Yes, we are very interested in getting the problem 

solved, but we also feel like we have an immediate issue. 

Ms. BROWN OF FLORIDA. Mr. Young. Did he leave? Mr. Oberstar. 

Mr. OBERSTAR. I didn’t understand the last part of your response 

to Ms. Brown, Mr. Brooks. You said we would, but—what? 

Mr. BROOKS. We feel like we have an immediate issue. We do 

have a number of bridges that are out there in need of replacement. And although we have an agreement on timber bridges for 

the 106 process, we do not have anything in place for 4(f), and that 

is an impediment to our work. 

Mr. OBERSTAR. Well, whether you want to sit down and talk 

about a solution or not is up to you. But the Alaska Railroad can 

ask the keeper of the National Register to determine whether or 

not the railroad is, in fact, historic. And the railroad has not asked 

for this determination as far as I have been able to determine. So 

are you aware of that authority? 

Mr. BROOKS. Yeah. We are aware that we can ask the keeper if 

the railroad is a historic entity. There is a process involved. The 

de facto position of our SHPO is that we are historic, and that is 

the way we have been treated. When we got to the example today 

of bridge 432.1, we had the opportunity to pursue that. Assuming 

the determination of adverse effect would have been upheld, we 

would have had to pursue section 4(f) anyway, so because we need 

to repair our bridge, we simply went directly to 4(f). 

Mr. OBERSTAR. Well, you are really not answering the question 

whether you want to talk further, so you have got an immediate 

problem; but your immediate problem is about to be resolved one 

way or another. I can’t imagine that the Interior Department will 

reject the claim of no feasible prudent alternative, as your filing 

proposes, to replacing the bridge. And you will be able to go ahead 

26 

with it. So it is up to you whether you want to sit down and talk 

about things and specifics. 

But let me—there are appeals. There are opportunities. And, Ms. 

Merritt, I would like you to expand upon that. There is a claim on 

the part of the Alaska Railroad, and implicitly by North Carolina, 

that there is no appeal from the decision of one person. But there 

is an appeal process throughout the whole historic preservation. 

Describe this for us. 

Ms. MERRITT. To elaborate on what Mr. Fowler said, when the 

question is whether a resource is eligible for the National Register 

of Historic Places, there is an appeal to the keeper of the National 

Register in the National Park Service. When the question is whether the bridge should be replaced under section 4(f), the final decision belongs to the Federal agency in the Transportation Department, Federal Transit Administration, or Federal Railroad Administration, whoever is providing the funding. And the fact that a resource is determined eligible for the National Register does not determine whether it can be replaced or altered. 

As Mr. Fowler said, that just requires consideration of alternatives but it doesn’t prohibit replacement or alteration. And the 

programmatic agreement for replacing the 57 timber bridges on the 

Alaska Railroad is a perfect example of that, of how section 106, 

even when resources are determined to be historic, does allow for 

upgrades and needed improvements. 

Mr. OBERSTAR. Mr. Brooks, do you disagree with that? 

Mr. BROOKS. No. 

Mr. OBERSTAR. Mr. Simmons? 

Mr. SIMMONS. Mr. Chairman, I do not agree that there is process. There is, in fact, process. 

My point is, as applied to a corridor as opposed to a distinct resource, such as a bridge or a facility or a structure, that that then 

can readily—in our case, it transcends two States. I think that because our corridor transcends six or seven States as it goes from 

Washington to across the South and Southeast, that we are on the 

cusp of a Federal issue. It is one that goes beyond the issue of 

whether the State Department or Transportation is in conversation 

and working hand in glove with the State SHPO office. I think we 

are, and we have demonstrated that. 

But when you look at the broader application of this, that is the 

challenge that I foresee and would appreciate some guidance and 

facility to make that happen so we can construct—— 

Mr. OBERSTAR. I gather from your statement, not from Mr. 

Brooks, you are not opposed to—in principle—to having portions or 

specific items, aspects, facilities considered historic. You are concerned about the process you have to go through that takes so long 

to get there. Is that largely right? 

Mr. SIMMONS. That is very close, Mr. Chairman. I will make the 

distinction. I will use the example that we have between Raleigh 

and Petersburg or Raleigh and Richmond where we are doing work 

today. We are studying, analyzing a corridor that is about 1,000 

feet wide. We have identified every structure in it, we have documented all of that. In addition to that, we have been asked to document and we have documented the corridor. 

27 

But it is the corridor aspect that I find most challenging, and I 

think potentially could be an additional difficulty for us to ever 

build something. 

Mr. OBERSTAR. In the current law, and then-Chairman Young 

and I spent a great deal of time on this—and, particularly, I undertook to negotiate over a period of 6 or 7 months with all the various 

parties on project streamlining to simplify the process. And one of 

these was with respect to historic sites. And the language of the 

current law says quote, with respect to historic sites, the Secretary 

may make—Secretary of Transportation may make a finding of de 

minimis impact. 

I think this is very important for your purposes. Only if the Secretary has determined, in accordance with the consultation process 

required under the National Historic Preservation Act, that the 

transportation program or project will have no adverse effect on the 

historic site, or there will be no historic properties affected by the 

program or project. 

The finding of the Secretary has received written concurrence 

from the applicable State Historic Preservation Office or Tribal 

Historic Preservation Officer, et cetera, et cetera, participating, and 

the finding of the Secretary has been developed in consultation 

with parties consulting as part of the process. That is current law. 

Do you have a problem with that? 

Mr. SIMMONS. No, sir. 

Mr. OBERSTAR. Mr. Brooks? 

Mr. BROOKS. Could you put the first part of that question together again? 

Mr. OBERSTAR. The first part of the question is, I read all the 

current language of the law. And the question is, do you have a 

problem with applying current law to your current project? 

Mr. BROOKS. And I am sorry. Could you read the first couple of 

lines again, please? 

Mr. OBERSTAR. Oh, my goodness. It is a long section here. The 

Secretary may make a finding of de minimis impact if the Secretary has determined, in accordance with the consultation process 

required under the National Historic Preservation Act, that the 

transportation program or project will have no adverse on the historic site, or there will be no historic properties affected by the 

transportation program or project. 

Mr. BROOKS. The problem we have with that is the effect of the 

Historic District gathers in features of the railroad, bridges, tunnels, buildings that wouldn’t—that have no historic merit on their 

own. Their merit is because they are part of the Alaska Railroad 

Historic District. The de minimis finding, if we do something that 

impacts one of those contributing elements, then there is a finding 

of adverse effect, and it does trigger the 4(f) process. 

Mr. BROOKS. That is the problem that we have. 

Mr. OBERSTAR. We are not going to overturn current law, I will 

tell you that. We are not going to go back and rewrite the Federal 

Highway Act. So you need to find something that speeds up; sit 

down and talk to each other, talk to us, talk to Mr. Fowler, talk 

to Ms. Merritt and find something that speeds up this process, and 

do it fast because we are going to bring this bill to the House floor 

next week. 

28 

Mr. BROOKS. We would be happy to do that. 

Mr. YOUNG. Mr. Chairman. 

Mr. OBERSTAR. I yield to the gentleman. 

Mr. YOUNG. I think we are on the right road here, and hopefully 

you and I will be able to sit down with the Chairman, Madam 

Chairman, because you brought up a good point about where we 

are going to be. And it appears to me that SHPOs caused us the 

most problems, and they are nicely recognized. It is a State person 

that has been the biggest challenge. And somehow we have to work 

around that so that we can upgrade the railroad wherever we possibly can for safety purposes, because it will expand if we are allowed to do that, because I think we would be doing a disservice. 

My amendment is very simple, as you know. All it does is adopt 

the highway safety bill is all it does, and the TEA-LU bill. It 

doesn’t add anything else to it. And I want to make sure that we 

do protect the historical sites, but when it comes to a wooden 

bridge that is not safe, that goes back to—and has been decided 

that not by the railroad, by other people, and we have got to go 

through the Corps, and we have got to go through da, da, da, and 

I have one accident, I again ask the question, who is liable? Are 

we liable because we didn’t doing do something? Is Mr. Fowler liable? Mr. Brooks? I can tell you there is going to be a lawyer making 

sure someone pays. 

Mr. OBERSTAR. We don’t want to let it go to that. 

Mr. YOUNG. We don’t want it to go there, so I am going to make 

the suggestion that the three of us sit down and see if we can’t arrive at a solution to make sure the railroads have the ability to 

keep growing and protect the historical sites. That is our main 

goal. And we can do that if we do it. And I have worked with the 

Chairman and the Chairman of the Full Committee and the Chairman of the Subcommittee for the last 6 years, and I think we can 

solve this problem. 

I yield back. 

Mr. OBERSTAR. I think that we are on the right course here, and 

I know that preservation groups are concerned about getting the 

Secretary of Transportation to be the final authority on this matter. But we do have existing law, and we do have language that 

was thrashed out at great length and with great effort and in great 

good will on both sides. So let’s see if we can work out something 

between now and Monday morning. Monday noon is when we have 

to file whatever documents you have to file with the Rules Committee in order to bring the bill to the floor. So you talk, we will 

talk, and we will get this done. 

Madam Chair, thank you. 

Ms. BROWN OF FLORIDA. Yes, sir. Let us add into this discussion 

Mr. Brooks, Mr. Fowler, Mr. Simmons and whoever else need to be 

in the room. My recommendation, go in the room, lock the door and 

don’t come out. Failure is not an option, and we will all be happy 

if we can move forward and we can just work it out and not have 

to have a problem on the bill on Monday when it is time to file our 

bill. 

I hope I have the commitment of all the parties that we are going 

to work it out, and we want to make Mr. Young happy and Mr. 

Oberstar; then I will automatically be happy. 

29 

I want to thank the witnesses for their testimony and the Members for their questions. Again, the Members of this Subcommittee 

may have additional questions for the witnesses, and we ask you 

to respond to these in writing. The hearing record will be held open 

for 14 days for Members wishing to make additional statements or 

to ask further questions. 

Unless there is further business, this Subcommittee is adjourned. 

Thank you, very much. Thank you. 

[Whereupon, at 4:50 p.m., the Subcommittee was adjourned.] 

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