In cooperation with the Commuter Rail Coalition, Kaplan Kirsch & Rockwell LLP was pleased to present the 2023 Passenger Rail Law Workshop. This year’s workshop was held at the Madison in Washington, DC, on November 6 & 7, 2023.
Attendees learned from experts the fundamental legal principles that underlie virtually all elements of passenger rail. This workshop is the only conference that combined a thorough review of the basics of passenger rail law with an update on recent legal developments. Conducted in an interactive classroom format, participants heard from instructors that included government attorneys from DOT and FRA, as well as seasoned practitioners with decades of experience and in-depth understanding of the federal laws, regulations, and policies that govern rail.
Taught in plain English, the workshop was not limited to lawyers. Others who benefitted included executives, planners, finance staff, environmental management, operations managers and consultants. Senior rail managers and commissioners and board members attended as well. Attendees were provided with valuable networking opportunities as well; both with other attendees, industry experts and the cohort of instructors.
CLE credits will be pre-approved for select states and all attendees received a copy of the Passenger Rail Law Desk Reference, a comprehensive, user-friendly resource book that you can expect to be a well-used reference tool.
PROGRAM
MONDAY, NOVEMBER 6, 2023
11 AM REGISTRATION DESK OPENS FOR BADGE PICK-UP
12:45 – 2:00 PM WELCOME/SESSION 1: RAIL LAW 101 - OVERVIEW
Charles A. Spitulnik | Partner, Kaplan Kirsch & Rockwell
Ayelet Hirschkorn | Partner, Kaplan Kirsch & Rockwell
Christian Alexander | Associate Attorney, Kaplan Kirsch & Rockwell
We will introduce attendees to the passenger rail transportation landscape, including a brief history, the various modes used in the United States, and the legal frameworks that govern them. The railroad industry is the oldest regulated industry in the United States. Vestiges of this long history remain in the legal framework applicable to intercity and commuter passenger transportation, and are coupled with current regulation and practice to address the industry’s constantly changing market dynamics and technology. In the context of urban fixed guideway systems, operations that had traditionally been locally regulated have only recently become subject to a nationwide federal safety regulatory program. This session will provide attendees with an understanding of the legal framework governing U.S. passenger rail transportation and the regulatory distinctions that apply to different modes.
2 – 3:00 PM SESSION 2: STB/FRA CHIEF COUNSEL PANEL
Charles A. Spitulnik | Partner, Kaplan Kirsch & Rockwell
Allison Fultz | General Counsel, Federal Railroad Administration
Anika Cooper | Deputy Counsel, STB
We introduce you to the chief counsels and senior attorneys for the Surface Transportation Board (STB), Federal Railroad Administration (FRA), and Federal Transit Administration (FTA), and the regulatory territory each agency covers. The STB is responsible for licensing and regulation of the economic aspects of the rail industry, and its governing statutes broadly (but not entirely) preempt state law. The FRA regulates the safety of rail operations and is responsible for funding and financing programs directed at developing and maintaining rail infrastructure. The FTA has jurisdiction over a broad array of funding mechanisms applicable to all forms of passenger rail transportation and governs safety for fixed guideway systems other than those regulated by FRA; under current law, continued federal funding is dependent on maintaining safe operations. Our panelists will provide you with an understanding of how each agency fulfills its regulatory mandate and what legal factors are essential for parties interacting with or seeking regulatory relief from each.
3 – 3:15 PM AFTERNOON BREAK
3:15 – 4:15 PM SESSION 3: ENVIRONMENTAL ISSUES
Daniel Orlaskey | Associate Attorney, Kaplan Kirsch & Rockwell
Nate Hunt | Partner, Kaplan Kirsch & Rockwell
Tom Bloomfield | Partner, Kaplan Kirsch & Rockwell
While the transportation sector is the leading emitter of greenhouse gasses, the rail segment contributes only 2% of those emissions, making it an attractive alternative form of transportation from a carbon footprint standpoint. However, this is just one of the environmental concerns that come up in the railroad context. This panel will present a number of issues related to railroad development and the environment, including ground contamination or “dirty dirt”, federal regulatory issues associated with NEPA reviews and those that occur outside the NEPA context, and railroad initiatives to address climate change. We will also discuss the Supreme Court’s decision in the Sackett case on the Clean Water Act and how it may effect railroad projects in the future.
4:15 – 5:15 PM SESSION 4: STATE DOT IMPLEMENTATION OF FEDERAL POLICY OBJECTIVES
John Putnam | Senior Advisor, Colorado Department of Transportation (immediate past General Counsel, U.S. Department of Transportation)
Come hear the immediate past General Counsel of the U.S. Department of Transportation and newly appointed senior advisor to the Colorado Department of Transportation discuss how federal policy objectives are implemented at the state level. This session will illuminate how the federal government seeks to achieve the objectives of Congress and the Executive in practice, with relevant examples relating to passenger rail.
5:30 – 7 PM WELCOME COCKTAIL RECEPTION
TUESDAY, NOVEMBER 7, 2023
7:30 – 8:30 AM HOT BUFFET BREAKFAST
8:30 – 9:30 AM SESSION 5: RAIL SAFETY
Dan Alpert | Supervisory Attorney, Federal Railroad Administration
John Mardente | Federal Railroad Administration
Dan Orlaskey | Associate Attorney, Kaplan Kirsch & Rockwell
Charles A. Spitulnik | Partner, Kaplan Kirsch & Rockwell
This panel will introduce attendees to the regulatory safety regimes that govern passenger rail operations. For intercity and commuter rail systems, the FRA oversees safety, while FTA oversees safety on trolleys, streetcars, light rail, and heavy rail rapid transit lines. Because safety is at the core of successful passenger transportation, knowledge of the applicable rules and procedures will allow passenger rail providers to build safety into their operating culture and interact effectively with regulators in the event of violations or incidents. Participants will learn which regulatory regimes govern which kinds of operations as well as what legal elements apply in today’s operating environments.
9:30 – 10:30 AM SESSION 6: RAILBANKING
Christian Alexander | Associate Attorney, Kaplan Kirsch & Rockwell
Andrea Ferster | General Counsel, Rails-to-Trails Conservancy
Jon Broder | Former Chief Legal Officer, Conrail
Julie Sweeney | Principal Counsel, Maryland Transit Administration, Assistant Attorney General for the State of Maryland
Railbanking, the process of obtaining federal authorization to preserve railroad rights-of-way and use them for recreational trails, can be a highly effective tool to leverage disused rail corridors for public benefit, including for future passenger rail projects. This session will introduce attendees to the concept of railbanking and its objectives, explain how railbanking works and the roles of those involved, and discuss some of the key decision-points for deciding when to consider railbanking. The session will also tackle some of the issues that can come up during railbanking, including the legal responsibilities and requirements of rail corridor owners and trail sponsors, challenges and opposition to railbanking, and ways that a line can (and cannot) be used after it is railbanked. We will also highlight ways in which public entities can and have used railbanking to further passenger rail projects and other complimentary uses. Through this discussion you will understand the statutory and regulatory context for railbanking and learn about legal strategies for when and how to implement a successful railbanking project.
10:30 – 10:45 AM MORNING BREAK/COFFEE
10:45 – 11:45 AM SESSION 7: DELIVERY METHODS FOR PASSENGER RAIL PROJECTS
Brent Butzin | Partner, Kaplan Kirsch & Rockwell
11:45 – 12 PM PRE-LUNCH BREAK
12 – 1:00 PM LUNCH/SESSION 8: WASHINGTON INSIDERS
1 – 2:00 PM SESSION 9: RAIL LABOR AND EMPLOYMENT ISSUES
Ayelet Hirschkorn | Partner, Kaplan Kirsch & Rockwell
Chuck Spitulnik | Partner, Kaplan Kirsch & Rockwell
Bjarne Henderson | Advisor, Northern Indiana Commuter Transportation District
The railroad industry has a unique and longstanding framework of federal laws governing labor and employment issues, including employee safety, employee tort claims, union representation, and retirement and unemployment benefits. For passenger rail operators, knowing which laws apply depends on a number of factors, the most important of which is whether common carrier service is involved and whether the regulated entity is public or private. This session will discuss some of the basics of railroad labor and employment laws and how they apply to passenger rail operations of different varieties. Session attendees will leave with a better sense of how and when particular federal rail labor and employment regulatory regimes apply.
2 – 3:00 PM SESSION 10: PASSENGER/FREIGHT INTERACTIONS
Suzanne L. Silverman | Partner, Kaplan Kirsch & Rockwell
Stephen MacIsaac | General Counsel, Virginia Railway Express
Passenger rail service often shares railroad right-of-way with freight railroads, and in many cases freight railroads own or control the lines on which passenger service operates. It is therefore common for freight rail operations to impact many areas of law affecting passenger service (and vis versa), including contracting for use of and access to rail lines, coordinating or allocating responsibility for maintenance, dispatching, and operations of service and rail facilities, passenger safety issues, and regulatory oversight. In this panel you will hear from seasoned veterans with decades of experience with the interactions between passenger and freight service who will provide insight on how to best navigate passenger-freight interactions.
3 – 3:15 PM AFTERNOON BREAK
3:15 – 4:15 PM SESSION 11: AMTRAK
Suzanne L. Silverman | Partner, Kaplan Kirsch & Rockwell
Christopher Perry | Associate General Counsel, Amtrak
Charles A. Spitulnik | Partner, Kaplan Kirsch & Rockwell
A federally chartered and publicly owned corporation, Amtrak is the primary intercity passenger railroad in the country, with special rights, authorities, funding, and responsibilities delineated by Congress. Amtrak also provides rail service under contract in many states. Attend this session to learn more about how Amtrak manages its responsibilities for providing intercity passenger service and its unique legal status in the railroad world.
4:15 – 5:15 PM SESSION 12: KEEPING ATTORNEY-CLIENT COMMUNICATIONS ON TRACK: ETHICAL CONSIDERATIONS IN RAIL LAW
Riley Scott | Associate Attorney, Kaplan Kirsch & Rockwell
This presentation will addresses the nuances of: (I) who the “client” is when an attorney is working with a corporation, agency, or other non-individual entity, and (II) ethical obligations for protecting electronic attorney-client communication in the age of metadata mining by artificial intelligence (“AI”). If these issues seem novel or straightforward, this presentation is for you. Understand what can and cannot be communicated by counsel and what to consider before pressing “send.” This presentation is designed to be CLE-eligible for one ethics credit, including in Colorado, New York, New Jersey, Texas, and D.C.
One of the most valuable benefits of the workshop is that all attendees receive the Passenger Rail Law Desk Reference, a comprehensive, user-friendly resource book that you can expect to be a well-used reference tool.
This workshop is one-of-a-kind. Don’t miss your chance to attend and take advantage of the opportunity to gain valuable insight and information that you can put to use immediately.
All presentations will be available for download and all participants will receive the Passenger Rail Law Desk Reference to take home.
CLE ACCREDITATION
It Is the responsibility of each participant to file the appropriate paperwork with your state bar(s) for continuing legal education for this course.
CLE accreditation is granted on a state-by-state basis. Each state has its own rules and regulations that define eligible course content for CLE credit. Due to varying state bar approval procedures, we cannot foresee for how many credits the workshop will be approved.
Registrants may request accreditation from specific states after the workshop has taken place by usually providing course materials. If you have questions or require additional documents to complete your state filing, please contact or Shelby Kaiser with Kaplan Kirsch & Rockwell.
Course information will be updated as it is received.