In April, Amtrak acting president David Hughes (since dismissed by Amtrak’s new president, Alexander Kummant) said, “on-time performance of Amtrak trains on freight railroad tracks dropped 50 percent from 1999 to 2005.”

Things have gotten worse on Union Pacific and CSX. On July 12, I wrote to the Surface Transportation Board, urging it “to take every action you can – including, but not limited to, investigation and public hearings – to bring about improved performance.

“Any investigation and related public hearings should:

•Identify specific, detailed causes of the freight train interference issues;

•Determine whether and how much train interference delay results from actions which might have been reasonably avoided;

•And, most importantly; and identify short and long term remedial actions.”

Under the law, Amtrak trains must get “preference over freight transportation…except in an emergency” or where the transportation secretary, answering a railroad’s application for relief, has “established the rights of the carrier and Amtrak on reasonable terms.”

While failure to give preference to Amtrak trains is a violation of federal statute, only the Justice Department can seek to enforce Amtrak’s preference rights. The DOJ, however, has limited resources for this. Moreover, administrations are reluctant to sue big corporations, and a system relying on lawsuits poisons relationships among people that need to work together. Finally, even if the DOJ prevailed, the transportation secretary could waive enforcement.

DOJ has taken action in the past. In December 1979, the DOJ, at Amtrak’s request, sued Southern Pacific, alleging SP violated federal law by favoring freight over passenger trains on the New Orleans-Houston segment of Amtrak’s Sunset Limited route.

Soon after the filing, top management of at least three major railroads issued internal directives warning against delaying Amtrak trains.

On Dec. 21,1979, Judge John Garrett Penn of the U.S. District Court for the District of Columbia issued a consent order requiring SP to give Amtrak trains priority, pending further proceedings on a permanent injunction.

At a five-day February 1980 hearing, DOJ special counsel (and former Amtrak attorney) Robert Patterson asked, “Is there an unfavorable attitude toward the operation of passenger trains within the Southern Pacific?” After a pause, the SP’s VP of Transportation, Rob Krebs (now retired as chairman of BNSF), responded: “Yes.”

Witnesses supporting Amtrak's case included SP conductors who were soon to retire and thus had nothing to fear, including Rag Guidry (a retired UTU member).

Judge Penn, who on prior occasions had failed to issue rulings in cases he had heard, never rendered a decision in the SP case – perhaps because the matter apparently was resolved through the consent order.

Amtrak did not press the matter because Krebs seemed to push SP hard to make improvements.

But SP also gave a grant to the National Taxpayers Union, an organization which appeared to put a priority on anti-Amtrak lobbying.

Today, the STB handles disputes involving access to tracks and the cost of that access. While the STB cannot enforce the preference right, it does have expertise and could use its “bully pulpit” to press the nation’s railroads to do better.

In June 2006, more than 100,000 passengers rode Amtrak trains that reached final destinations more than four hours late – the overwhelming majority on routes that use CSX or Union Pacific exclusively or primarily.

By contrast, the Chicago-Los Angeles Southwest Chief (BNSF) and Chicago-Seattle/Portland Empire Builder (BNSF/CP) were on time (within 30 minutes of schedule) 63 percent and 80 percent, respectively.

On Aug. 4, Amtrak’s senior vice president for operations, William Crosbie, wrote the UP saying, “in July, 97 percent of the 211 long-distance Amtrak passenger trains operated primarily on the UP arrived late…84 percent of [these] trains arrived more than two hours late, 66 percent more than four hours late…

“A primary root cause of this unacceptable performance is UP’s chronic violation of the slow order limits in our UP-Amtrak operating agreement,” wrote Crosbie.

“Each of the four Amtrak long-distance routes operating on UP is in violation of these clear contractual obligations,” Crosbie wrote. “UP is making investments in some of these slow order areas…[but] these…have not been enough to bring slow orders into compliance with the operating agreement.”

Crosbie outlined how Amtrak “tried to work with the UP to improve this situation,” adding time to and otherwise altering schedules, and “repeatedly rerouting the California Zephyr away from the ridership - producing Rocky Mountain scenery for weeks at a time each summer to assist with UP trackwork.”

But this spring, when the UP wanted to shut down Amtrak’s St. Louis-Kansas City service (funded by Missouri) for track work, Amtrak initiated and won a contract arbitration, 3-0. Arbitrations, however, cannot enforce dispatching preference.

CSX and UP responded to my letter, telling the STB they were doing their best. But Hughes disagreed in detailed Aug. 17 letters to the STB.

He said, for example, that “none of the capacity investments specifically cited in CSXT’s letter is on lines used by Amtrak,” and that “UP’s efforts have been ineffective in reducing slow orders faster than new slow orders have appeared.”

Some railroaders imply the main problem is freight traffic growth exceeding the freight railroads’ ability to add track capacity.

However, two huge problems hurt both freight and passengers: failure to maintain existing track, and sloppy dispatching – whether due to inexperience, incompetence or negative attitudes towards Amtrak trickling down from top management.

When UP dispatchers call Amtrak’s Texas Eagle a ‘government local,’ ideology seems to be overtaking legal obligations.

But other freight railroads, as Hughes wrote, “indicate that when Amtrak is running on time, it is a sign their network is functioning well. Operating Amtrak on time is not a zero-sum game where other traffic must suffer if Amtrak does well.”

Terrible on-time performance makes Amtrak’s struggle for adequate federal funding tougher. Amtrak says the current reliability crisis causes “immense damage…to Amtrak’s brand, reputation, and repeat business.” Indeed, achieving just 75 percent on-time performance could improve Amtrak’s bottom line by as much as $50 million.

With proper funding, Amtrak could continue to improve rail infrastructure, including contributions to the freight railroads’ choke points.

More importantly, if railroads are seen as working to serve all customers well – including Amtrak and commuter railroads – the industry could more likely win enactment of its desired 25 percent investment tax credit for capital investments.