WASHINGTON — Federal regulators have set a procedural schedule for handling Navajo Transitional Energy Co.’s common carrier complaint against BNSF Railway.
The Surface Transportation Board last month issued a preliminary injunction that ordered BNSF to handle a minimum of 4.2 million tons of coal from NTEC’s Spring Creek mine in Montana to export at the Westshore terminal in British Columbia, and an additional million tons once additional crews and train sets are available.
The board’s preliminary injunction, decided in a 3-2 vote, said that NTEC was likely to prevail on the merits of the case. The board’s order effectively requires BNSF to handle 23 trains per month of coal beginning immediately, and an additional six trains per month as train sets and crews become available.
In a decision this week, the STB said discovery in the case will end on Aug. 14. NTEC’s opening comments are due by Sept. 22, with BNSF’s reply due by Nov. 2 and NTEC’s rebuttal deadline set at Nov. 30.
NTEC’s original complaint was filed with the STB in April, alleging that BNSF failed to provide adequate service from Spring Creek to Westshore. NTEC filed a breach of contract lawsuit against BNSF in federal court in October 2022 related to the railroad’s service.
The coal company’s complaint with the STB asks the board to determine that BNSF has failed to provide adequate service, to define the scope of BNSF’s common carrier obligation, the restoration of adequate service, and unspecified monetary damages.
NTEC backed out of contract negotiations with BNSF last year. The Navajo-owned mining company now ships via BNSF’s common carrier pricing authority.
BNSF had urged regulators to reject NTEC’s request for an emergency service order, arguing that its desire to take advantage of the hot export coal market does not constitute an emergency. BNSF also said it’s still experiencing capacity constraints in the Pacific Northwest, and that ordering BNSF to increase service to Spring Creek mine would require the railroad to reduce service to other Powder River Basin customers.
But the STB said the record showed that BNSF could comply with the order while still providing service to other Powder River Basin coal producers.
The common carrier obligation requires railroads to provide service upon reasonable request.
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