Raymond A. Atkins Ph.D.

Regulatory Disputes:

• Trial counsel in a first-of-its-kind 11-day regulatory hearing before the STB over a dispute with Amtrak around proposed new passenger service in the Gulf Coast. Application of National Railroad Passenger Corp. Under 49 U.S.C. . § 24308(e) – CSX Transp., Inc. & Norfolk S. Corp., STB Docket No. FD 36496
• Representing client in the proposed merger between Canadian Pacific Railway and the Kansas City Southern Railway. Canadian Pacific Railway—Control—Kansas City Southern, STB Finance Docket No. 36500
• Victorious arbitration over the fair-market value of a fiber optics lease through a railroad corridor.
• Successful collection action in federal district court over demurrage payments. Illinois Central Railroad Co. v. Kinder Morgan Liquids Terminals, Civil No. 1:16-cv-08044 D.C.N.D. Il.
• Obtained a permanent injunction against the enforcement of a California regulation that would impose discriminatory charges on the transportation of hazardous materials in the state. BNSF Ry. Co. v. Cal. State Bd. of Equal., Case No. 16-cv-04311-RS (D.C.N.Cal. Oct. 28, 2016)
• Obtained a permanent injunction against enforcement of Kentucky blocked-crossing statute as applied to interstate rail carrier. Association of Am. R.R. v. Hatfield, Civil No. 3:18-cv-00028-GFVT (D.C.E.D. Ky., Jan. 28, 2020)
• Defending rail client against charges that its transportation rates were unreasonable high. Consumers Energy Co. v. CSX Transp., STB NOR 42142.
• Representing rail client in interchange dispute in Chicago. Wisconsin Central, Ltd.—Petition for Declaratory Order—Interchange With Soo Line R.R. Co., Docket No. FD 36397

Appeals:

• Convinced reviewing court a state tort claim of adverse possession of railroad property was completely preemption by state law and could therefore be removed to federal court. Skidmore v. Norfolk S. Ry., 1 F.4th 206 (4th Cir. 2021)
• Affirming preliminary injunction against enforcement of hazmat fee imposed on rail transportation in California. BNSF Ry. Co. v. California Department of Tax and Fee Administration, 904 F.3d 755 (9th Cir. 2018)
• Reversing lower appellate court and finding state blocked-crossing statute unconstitutional as applied to railroad industry. State v. Norfolk Southern Ry. Co., 98 N.E.3d 70 (Ill. 2018)
• Upholding major rulemaking to create simplified rate review procedures for small disputes, with one issue remanded for supplemental notice and comment. CSX Transp., Inc. v. STB, 568 F.3d 236 (D.C. Cir. 2009)
• Affirming use of single-stage discounted cash flow model instead of Capital Asset Pricing Model to estimate cost of equity for the railroad industry. W. Coal Traffic League v. STB, No. 07-1064 (D.C. Cir. Feb. 1, 2008)
• Affirming rulemaking that implemented six major reforms to major rate review processes. BNSF Ry. Co. v. STB, 526 F.3d 770 (D.C. Cir. 2008)
• Upholding finding that the challenged freight rail rates were not unreasonable under the agency’s stand-alone cost test. Otter Tail Power Co. v. STB, 484 F.3d 959 (8th Cir. 2007)
• Approving forced sale of rail line against challenge that sale price fell below the fair market value and was a taking under the Constitution. Toledo, Peoria & W. Ry. v. STB, 462 F.3d 734 (7th Cir. 2006), 549 U.S. 1278 (2007) (writ for certiorari denied)
• Upholding finding that railroad charged unreasonably high rates under the stand-alone cost test. BNSF Ry. Co. v. STB, 453 F.3d 473 (D.C. Cir. 2006)
• Upholding new internal cross-subsidy check applied by the agency to deny rate relief PPL Montana, LLC v. STB, 437 F.3d 1240 (D.C. Cir. 2006)

Investigations and federal rulemakings:

• Hearings over service and logistics issues that arose post-pandemic. See Urgent Issues in Freight Rail Service—Railroad Reporting, STB Docket No. EP 770 (Sub-No. 1)
• Proposal to impose forced competitive access on the rail industry. Reciprocal Switching, STB Docket No. EP 71 (Sub-No. 1) 1_1
• Petition to require rail carriers to pay reverse demurrage for delayed shipments. See Petition for Rulemaking To Adopt Rules Governing Private Railcar Use By Railroads, STB Docket No. EP 768
• Representing carriers opposed to agency proposal to create a formal final-offer rate-review process. See Final Offer Rate Review, STB Docket No. EP 755
• Representing four carriers in joint proposal to create a voluntary alternative dispute resolution process for small disputes. See Joint Petition for Rulemaking To Establish Voluntary Arbitration Program For Small Rate Disputes, STB Docket No. EP 765
• Proposal to create new rail service metrics. See First-Mile/Last-Mile Service, STB Docket No. EP 767
• Crafted joint petition to adopt a benchmarking approach to measure the financial health of the railroad industry. See Joint Petition For Rulemaking—Annual Revenue Adequacy Determinations, STB Docket No EP 766
• Proposal to prohibit or require agency pre-approval to depart from two-person crew in the cab of a freight locomotive. See Train Crew Size Safety Requirements, Docket ID: FRA-2021-0032
• Rulemaking to measure the cost of capital of the railroad industry using a combination of the Capital Asset Pricing Model and a Three-Stage Discounted Cash Flow Model. Revisions to the Board’s Methodology for Determining the Railroad Industry’s Cost of Capital, Docket No. EP 664 (Sub-No. 4)

• American Bar Association
• Association of Transportation Law Professionals
• District of Columbia Bar
• Federal Bar Association