Well, this ought to be interesting …
In the NYSDEC filing with the STB, the DEC states:
“As outlined in the attached letter to DEC from counsel for OmniTRAX, OmniTRAX has represented to the Department that, should it proceed with the contemplated purchase, it would enter into a binding and enforceable agreement with DEC barring OmniTRAX from using the Line for the long-term storage of rail cars.”
That might be what the State thinks and what the State is peddling to the public, but in fact, OmniTRAX said no such thing. Here’s a portion of OmniTRAX’ statement (from the same filing):
“… OmniTRAX also hereby reaffirms its intent to negotiate with NYSDEC a mutually acceptable and binding agreement, which, when successfully completed, would govern the long-term storage of freight cars not used in the service of on-Line customers …”
Note the language difference. Right now I’d say the OmniTRAX lawyers are smarter than the State lawyers. The OmniTRAX lawyers know that if OmniTRAX successfully acquires operating authorization from the board and assumes common carrier obligations (as did S&NC) that certain railroad operations are federally pre-empted, including but not limited to rail car storage.
Contract Law 101 says that illegal contracts are unenforceable. If any railroad and any state or local authority enter into an agreement (contract) barring a railroad from storing cars, that agreement is unenforceable because that action is pre-empted by federal law.
So for the State to promote otherwise, it is … Disingenuous? Improper? Fraudulent? Take your pick.
By the way, our NYS tax dollars are paying for this sham. Just so you know.
peddle your shorts