NEW RICHMOND — The courtroom in Madison was empty except for the judge, a sign of these uncertain times. But one thing that has not changed since the uniting by rail of the east and west coasts of the United States in 1869 is the immunity railroads enjoy from state and local regulation including taxation and zoning.

That immunity was on trial Tuesday, June 9, during a nearly five-hour hearing before Judge David Albino at the Office of the Commissioner of Railroads.

Attorneys Tim O’Brien and Nick Vivian argued the case for the Town of Richmond and City of New Richmond, respectively, against attorneys Audrey Broderick and Michael Barron Jr. representing Wisconsin Central Ltd., a subsidiary of Canadian National Railroad.

At issue was the relocation of 105th Street in the Town of Richmond to best serve the autoport/intermodal facility being built by the railroad without disrupting or otherwise negatively impacting the general traffic flow servicing local residents, the town and nearby city of New Richmond while also prioritizing the safety of pedestrian vehicular traffic.

Also at issue from the perspective of the town, city and St. Croix County was whether the OCR actually has any jurisdiction to rule on the creation of new roads or relocation of existing roads if they do not intersect in some way with railroad tracks.

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The attorneys took turns examining and cross examining five witnesses:

  • Mike Kunz, engineer at Benesch, the firm hired by WCL/CN to develop the Traffic Impact Analysis pertaining to the new autoport / intermodal railroad facility

  • Jackie Macewicz, public works manager for WCL

  • Angela Popenhagen, Stevens Engineers, Inc, engineer for the Town of Richmond

  • Jeremiah Wendt, public works director for the City of New Richmond

  • Robbie Krejci, highway commissioner for St. Croix County

Arguments on solutions are heard

The town and city argued that two of the three solutions currently being proposed by the railroad — dividing the existing street with the addition of a cul-de-sac and construction of a completely new road within the railroad property — do not involve an actual intersection with railroad tracks and therefore lie outside the jurisdiction of the OCR. The third option, an at-grade crossing does fall within the OCR’s jurisdiction but is generally considered the option of last resort due to cost and safety considerations. The understood mandate of the OCR and Federal Railroad Administration is to institute as few at-grade crossings as possible.

The town further argued that WCL did not consider an overpass or underpass as safe relocation options. The town also suggested a new option of an additional separate truck entrance from County A directly into the railroad facility.

WCL largely contended that the two relocation options it has on the table, other than an at-grade crossing, are less costly and adequately address both the railroads needs and public safety. WCL based its argument primarily on the information provided by the TIA developed initially in April 2019 before the addition of intermodal capacity to the facility and since then, on a revised TIA which is still being refined between WCL and St. Croix County.

WCL argued that the TIA supports its contention that the large volume of semi truck traffic entering and exiting their facility daily will be coming from and going to the west on State Highway 64 toward the Twin Cities. It employed that logic to justify the limited scope of the TIA which looked at the traffic impact only on the immediate stretch of 105th Street and County A connected to their facility.

WCL continued to argue the same logic and traffic pattern even after the addition of intermodal to the facility in 2020 despite information it provided speculating that it will engage agricultural clients located primarily to the east of the facility.

The town and city both argued that the addition of intermodal will change the directional flow of heavy truck traffic significantly enough to demand revision to the TIA including significantly expanding the radius of impact on traffic and roads well beyond the immediate stretch of 105th Street and County A into and beyond the city limits.

Following the nearly five-hour hearing, Albino set a briefing schedule to determine the ruling on jurisdiction. Initial legal briefs are due from the attorneys by 3 p.m. Tuesday, June 23 with responses due by 3 p.m. Tuesday, June 30.

It is likely Albino will first rule on the issue of jurisdiction and then provide a “proposed” decision on the 105th Street issue.

Both sides would have an opportunity to comment on the decision before it would go before the commissioner of railroads for final approval. That decision could be appealed further.

This process is likely to take at least 30-60 more days with additional information being added to the docket as it moves along.

The most recent information added to the docket includes a motion by Vivian to strike the existing TIA and stay the proceedings indefinitely until a corrected TIA can be submitted.