Workshop Agenda

11:00am	Registration
12:45pm	Welcome to the 2023 Passenger Rail Law Workshop Charles A. Spitulnik | Partner, Kaplan Kirsch & Rockwell KelleyAnne Gallagher | Executive Director, Commuter Rail Coalition
1:00-2:00pm	Meet Your Regulators Panel Charles A. Spitulnik | Partner, Kaplan Kirsch & Rockwell (M) Allison Fultz | General Counsel, Federal Railroad Administration Craig Keats | General Counsel, STB We introduce you to the chief counsels and senior attorneys for the Surface Transportation Board (STB), Federal Railroad Administration (FRA), and Federal Transit Administration (FTA), and the regulatory territory each agency covers. The STB is responsible for licensing and regulation of the economic aspects of the rail industry, and its governing statutes broadly (but not entirely) preempt state law. The FRA regulates the safety of rail operations and is responsible for funding and financing programs directed at developing and maintaining rail infrastructure. The FTA has jurisdiction over a broad array of funding mechanisms applicable to all forms of passenger rail transportation and governs safety for fixed guideway systems other than those regulated by FRA; under current law, continued federal funding is dependent on maintaining safe operations. Our panelists will provide you with an understanding of how each agency fulfills its regulatory mandate and what legal factors are essential for parties interacting with or seeking regulatory relief from each.
2:00-3:00pm	Session 2: Rail Law 101—Overview Charles A. Spitulnik | Partner, Kaplan Kirsch & Rockwell (M) Ayelet Hirschkorn | Partner, Kaplan Kirsch & Rockwell Christian Alexander | Associate Attorney, Kaplan Kirsch & Rockwell We will introduce attendees to the passenger rail transportation landscape, including a brief history, the various modes used in the United States, and the legal frameworks that govern them. The railroad industry is the oldest regulated industry in the United States. Vestiges of this long history remain in the legal framework applicable to intercity and commuter passenger transportation, and are coupled with current regulation and practice to address the industry’s constantly changing market dynamics and technology. In the context of urban fixed guideway systems, operations that had traditionally been locally regulated have only recently become subject to a nationwide federal safety regulatory program. This session will provide attendees with an understanding of the legal framework governing U.S. passenger rail transportation and the regulatory distinctions that apply to different modes.
3:00-3:15pm	Break
3:15-4:15pm	Panel 3: Environmental Issues Daniel Orlaskey | Associate Attorney, Kaplan Kirsch & Rockwell (M) Nate Hunt | Partner, Kaplan Kirsch & Rockwell Tom Bloomfield | Partner, Kaplan Kirsch & Rockwell While the transportation sector is the leading emitter of greenhouse gasses, the rail segment contributes only 2% of those emissions, making it an attractive alternative form of transportation from a carbon footprint standpoint. However, this is just one of the environmental concerns that come up in the railroad context. This panel will present a number of issues related to railroad development and the environment, including ground contamination or “dirty dirt”, federal regulatory issues associated with NEPA reviews and those that occur outside the NEPA context, and railroad initiatives to address climate change. We will also discuss the Supreme Court’s decision in the Sackett case on the Clean Water Act and how it may effect railroad projects in the future.
4:15-5:15pm	Session 4: State DOT Implementation of Federal Policy Objectives John Putnam | Senior Advisor, Colorado Department of Transportation (immediate past General Counsel, U.S. Department of Transportation) (M) Come hear the immediate past General Counsel of the U.S. Department of Transportation and newly appointed senior advisor to the Colorado Department of Transportation discuss how federal policy objectives are implemented at the state level. This session will illuminate how the federal government seeks to achieve the objectives of Congress and the Executive in practice, with relevant examples relating to passenger rail.
5:30-7:00pm	Welcome Cocktail Reception

7:30-8:30am	Breakfast
8:30-9:30am	Session 5: Rail Safety Daniel Orlaskey | Associate Attorney, Kaplan Kirsch & Rockwell (M) John Mardente | Senior Civil Engineer, Federal Railroad Administration Dan Alpert | Supervisory Attorney, Federal Railroad Administration Maria Wright | Senior Program Manager, Office of Transit Safety and Overnight, Federal Transit Administration This panel will introduce attendees to the regulatory safety regimes that govern passenger rail operations. For intercity and commuter rail systems, the FRA oversees safety, while FTA oversees safety on trolleys, streetcars, light rail, and heavy rail rapid transit lines. Because safety is at the core of successful passenger transportation, knowledge of the applicable rules and procedures will allow passenger rail providers to build safety into their operating culture and interact effectively with regulators in the event of violations or incidents. Participants will learn which regulatory regimes govern which kinds of operations as well as what legal elements apply in today’s operating environments.
9:30-10:30am	Session 6: Railbanking Christian Alexander | Associate Attorney, Kaplan Kirsch & Rockwell (M) Andrea Ferster | General Counsel, Rails-to-Trails Conservancy Jon Broder | Former Chief Legal Officer, Conrail Julie Sweeney | Principal Counsel, Maryland Transit Administration, Assistant Attorney General for the State of Maryland Railbanking, the process of obtaining federal authorization to preserve railroad rights-of-way and use them for recreational trails, can be a highly effective tool to leverage disused rail corridors for public benefit, including for future passenger rail projects. This session will introduce attendees to the concept of railbanking and its objectives, explain how railbanking works and the roles of those involved, and discuss some of the key decision-points for deciding when to consider railbanking. The session will also tackle some of the issues that can come up during railbanking, including the legal responsibilities and requirements of rail corridor owners and trail sponsors, challenges and opposition to railbanking, and ways that a line can (and cannot) be used after it is railbanked. We will also highlight ways in which public entities can and have used railbanking to further passenger rail projects and other complimentary uses. Through this discussion you will understand the statutory and regulatory context for railbanking and learn about legal strategies for when and how to implement a successful railbanking project.
10:30-10:45am	Break
10:45-11:45am	Session 7: Passenger/Freight Interactions Suzanne L. Silverman | Partner, Kaplan Kirsch & Rockwell (M) Stephen MacIsaac | General Counsel, Virginia Railway Express Jon Broder | Former Chief Legal Officer, Conrail Charles A. Spitulnik | Partner, Kaplan Kirsch & Rockwell Passenger rail service often shares railroad right-of-way with freight railroads, and in many cases freight railroads own or control the lines on which passenger service operates. It is therefore common for freight rail operations to impact many areas of law affecting passenger service (and vis versa), including contracting for use of and access to rail lines, coordinating or allocating responsibility for maintenance, dispatching, and operations of service and rail facilities, passenger safety issues, and regulatory oversight. In this panel you will hear from seasoned veterans with decades of experience with the interactions between passenger and freight service who will provide insight on how to best navigate passenger-freight interactions.
11:45-12pm	Pre-Lunch Break
12:00-1:00pm	Lunch Session 8: Washington Insights Charles Spitulnik | Partner, Kaplan Kirsch & Rockwell (M) John Cline | Principal, Cline Strategic Consulting & CRC Director of Government Affairs Auke Mahar-Piersma | Cardinal Infrastructure Legislative Updates
1:00-2:00pm	Session 9: Rail Labor and Employment Issues Ayelet Hirschkorn | Partner, Kaplan Kirsch & Rockwell (M) Charles Spitulnik Spitulnik | Partner, Kaplan Kirsch & Rockwell Bjarne Henderson | Advisor, Northern Indiana Commuter Transportation District The railroad industry has a unique and longstanding framework of federal laws governing labor and employment issues, including employee safety, employee tort claims, union representation, and retirement and unemployment benefits. For passenger rail operators, knowing which laws apply depends on a number of factors, the most important of which is whether common carrier service is involved and whether the regulated entity is public or private. This session will discuss some of the basics of railroad labor and employment laws and how they apply to passenger rail operations of different varieties. Session attendees will leave with a better sense of how and when particular federal rail labor and employment regulatory regimes apply.
2:00-3:00pm	Session 10: Delivery Methods for Passenger Rail Projects Adam Giuliano | Partner, Kaplan Kirsch & Rockwell (M) As the U.S. rail industry closes in on the bicentennial of its birth, the methods for procuring and contracting the delivery of passenger rail projects continue to evolve. This session will begin by introducing and defining the concepts of mega-project and alternative project delivery in the passenger rail context. It will then explore some of the challenges, and opportunities, unique to such projects. As part of this, the session will offer a behind-the-scenes look at how the realities of project implementation and procurement as experienced, by staff and advisors, can shape the ultimate success or failure of a rail passenger project. It will include practical tips for the practicing rail lawyer, as well as examples gleaned from case studies.
3:00-3:15pm	Break
3:15-4:15pm	Session 11: Amtrak Suzanne L. Silverman | Partner, Kaplan Kirsch & Rockwell (M) Christopher Perry | Associate General Counsel, Amtrak Charles A. Spitulnik | Partner, Kaplan Kirsch & Rockwell A federally chartered and publicly owned corporation, Amtrak is the primary intercity passenger railroad in the country, with special rights, authorities, funding, and responsibilities delineated by Congress. Amtrak also provides rail service under contract in many states. Attend this session to learn more about how Amtrak manages its responsibilities for providing intercity passenger service and its unique legal status in the railroad world.
4:15-5:15pm	Session 12: Keeping Attorney-Client Communications On Track: Ethical Considerations in Rail Law Riley Scott | Associate Attorney, Kaplan Kirsch & Rockwell (M) This presentation will address the nuances of: (I) who the “client” is when an attorney is working with a corporation, agency, or other non-individual entity, and (II) ethical obligations for protecting electronic attorney-client communication in the age of metadata mining by artificial intelligence (“AI”). If these issues seem novel or straightforward, this presentation is for you. Understand what can and cannot be communicated by counsel and what to consider before pressing “send.” This presentation is designed to be CLE-eligible for one ethics credit, including in Colorado, New York, New Jersey, Texas, and D.C. M. Riley Scott, Associate Attorney, Kaplan Kirsch & Rockwell LLP.