Dear Assistant Attorney General, Environment and Natural Resources Division,

The Consent Decree United States v. Genesee & Wyoming Railroad Services, Inc., et al. D.J. Ref. No. 90–5–2–1–12479 is illegal under 16 U.S.C 470 Section 106 and Title 36 Part 800 because it does follow the Section 106 process for potential historic properties, nor take into account the Consent Decree’s adverse effect on potential historic properties. Historic Properties include objects listed under Appendix A of the Consent Decree slated for destruction.

C.F.R. Title 36 Chapter VIII Part 800 Subpart A § 800.1 (a) states “Section 106 of the National Historic Preservation Act requires Federal agencies to take into account the effects of their undertakings on historic properties and afford the Council a reasonable opportunity to comment on such undertakings. The procedures in this part define how Federal agencies meet these statutory responsibilities. The section 106 process seeks to accommodate historic preservation concerns with the needs of Federal undertakings through consultation among the agency official and other parties with an interest in the effects of the undertaking on historic properties, commencing at the early stages of project planning. The goal of consultation is to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties.”

C.F.R. Title 36 Chapter VIII part 800 Subpart A § 800.1 (c) states that the section 106 process must be done before approval, not after the fact. A Consent Decree that has the potential to effect historic properties is not valid until after a Section 106 review.

C.F.R. Title 36 Chapter VIII Part 800 Subpart C § 800.16 Definitions (l)(1) defines a Historic property as "any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. This term includes artifacts, records, and remains that are related to and located within such properties.”
Note that a historic property does not require it to be a building, structure, or site, it can also be an object. As such, any descent decree that requires the destruction of objects greater than 50 years old also requires a Section 106 review to determine potential impact on historic properties.

The Consent Decree is a Federal Action as defined in C.F.R. Title 36 Chapter VIII Part 800 Subpart C § 800.16 Definitions (y) that has a potential to cause effects on historic properties requiring a Section 106 review as defined by the process in C.F.G. Title 36 Chapter VIII Part 800 Subpart B. This includes CFG Title 36 Chapter VIII Part 800 Subpart B § 800.4 which requires a review of historic properties not yet identified, and involve organizations likely to have knowledge or concerns with historic properties in the area.

The Section 106 process also requires public involvement. C.F.R. Title 36 Chapter VIII Part 800 Subpart B § 800.3 (e) says “In consultation with the SHPO/THPO, the agency official shall plan for involving the public in the section 106 process. The agency official shall identify the appropriate points for seeking public input and for notifying the public of proposed actions, consistent with § 800.2(d).” But no public involvement has occurred, because no Section 106 process has been started.

Nor is the Consent Decree following Section 106 coordination with the National Environmental Policy Act of C.F.R Title 36 Chapter VIII Part 800 Subpart B § 800.8.

In the Consent Decree, Paragraph 25 on Page 14 states: "Defendants shall permanently remove from service each of the listed Locomotives by either
a. irrevocably disabling the Locomotive Engine (e.g. cutting the engine’s
prime mover) and selling the remaining Locomotive frame for scrap metal; or
b. irrevocably disabling the Locomotive Engine (e.g. cutting the engine’s
prime mover) and installing a replacement Locomotive Engine (and any necessary associated
components) such that the Locomotive is able to meet EPA’s Tier 3 or 4 emission standard in
40 C.F.R. Part 1033."

Both of these options are an adverse effect under C.F.R Title 36 Chapter VIII Part 800 Subpart C § 800.5. In fact subsection (a)(2) lists "physical destruction of or damage to all or part of the property" as an adverse effect example. Paragraph 25 Option (a) would destroy potential historic objects in direct violation of C.F.R. Title 36 Chapter VIII Part 800. Paragraph 25 Option (b) would have the same practical effect. The essence of what makes these locomotives of historic value (early and potentially significant examples of the steam to diesel transition) is the prime mover. This is an integral part of the object that is a locomotive. A prime mover transition to a Tier 3 or 4 emission standard would be impractical and has the same outcome as Paragraph 25 Part (a). The cost of such a demand would render as impractical the donation of any locomotives to a heritage society, one that would operate the locomotive on a very limited bases if such a donation were to be made as a mitigation requirement of a Section 106 review.

Many of the locomotives federally ordered to be destroyed in Appendix A are example of “1st Generation” diesel power and are working examples of the pivotal transition
from steam power to diesel power. This power transition was a momentous event in the transportation history of the United States, resulting in major workforce disruption as less maintenance and maintenance facilities were required. Here is a partial list (from the master list in Appendix A of the Consent Decree) of “1st Generation” diesel power slated for destruction in violation of the legally required Section 106 review:

Row 30 BPRR 886, GP9
Row 47 GC 1713, GP9
Row 49 GSWR 1208, SW1200
Row 68 PNW 26, SW9
Row 69 PNWR 1501, SD7
Row 70 PNWR 1801, GP9
Row 71 PNWR 1803, GP9
Row 72 PNWR 1852, SD9
Row 73 PNWR 1854, SD9
Row 79 RLIX 1250, SW7
Row 80 RLIX 1251, SW7
Row 81 RLIX 137, SW7
Row 86 WTRY 1203, SW1200
Row 87 WTRY 1205, SW1200

For example, the SW7 is a model introduced by EMD (Electo-Motive Division of General Motors) in 1949, only 4 years after the end of WW2. Another example is PNWR 1501, a SD7 built by EMD in November of 1952 as Southern Pacific 5280. This locomotive was ordered as part of the post WW2 dieselization effort of the Southern Pacific Railroad, and is a prime example of the changes to the railroad landscape that occurred because of its prime mover. The SD7 was the first "SD" or Special Duty series of locomotives, which is the major series still produced by EMD today. Not only would the destruction of this historic property have an adverse impact on the history of the steam to diesel transition story of American transportation, but also the history of EMD locomotive production. There may be other unique units of value to the story of EMD diesel production yet to be identified by the required Section 106 review.

There are also many rebuilt units, GP8s, GP9s. GP11s etc, that, while rebuilt, need to be surveyed as a potential national historic resource.


The Consent Decree is a violation of my substantial rights. As a member of the public I have a right to the permanent enjoyment of historically significant properties. It is also a violation of future generation’s rights as it illegally removes historic properties and objects without the proper survey and processes required with a Section 106 review.

As a neighbor to the Portland and Western Yard in Albany, Oregon, where PNWR 1501 is often the yard switch engine, this Consent Decree violates my rights to see and hear a historic locomotive that should be offered historic protection. This morning I took a photo with my drone that includes both my house and PNWR 1501. Future photos will not be possible with this Consent Decree.

C.F.R. Title 36 Chapter VIII part 800 Subpart A § 800.2 (c)(5) says “Certain individuals and organizations with a demonstrated interest in the undertaking may participate as consulting parties due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking's effects on historic properties.” In the documentary Beautiful Fragility: Railroad Cinematography in the Pacific Northwest (https://www.youtube.com/watch?v=U_woHWkjZb0) done by the Center for Railroad Photography and Art, I show a demonstrated interest in PNWR1801 (Consent Decree Appendix A row 70) , with the locomotive shown extensively as part of the historic landscape of the Bailey Branch from 08:47 to 13:00. As such, I have a right to be a consulting party to a Section 106 review before the Consent Decree is finalized.

C.F.R. Title 36 Chapter VIII part 800 Subpart A § 800.2 (d)(1) says the views of the public shall be considered, and (2) states the public must also be kept informed about the undertaking and its effects on historic properties and seek public comment and input. The Consent Decree is a violation of my due process rights as a US citizen as it deprives me of the public participation of a federally mandated Section 106 review public participation process.

The consent decree outlined in United States v. Genesee & Wyoming Railroad Services, Inc., et al. D.J. Ref. No. 90–5–2–1–12479 is illegal under federal law because it does not follow the Section 106 Process, and violates my substantive rights as a public participant, neighbor, and demonstrably interested party to one or more historic properties. The Consent Decree must be stayed until a proper Section 106 Process is completed.