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Housatonic, Berkshire Scenic Exchange Blows Over Track Dispute

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Updated and re-written: Friday, May 11, 2012 at 3:33 p.m. with Berkshire Scenic Railway's response.

LENOX, Mass. — The Housatonic Railroad and Berkshire Scenic Railway Museum traded jabs this week, accusing the other of mischaracterizing the dispute.

Berkshire Scenic has been providing rides from Lenox to Stockbridge for the last nine years through an easement with the state Department of Transportation and the Housatonic. That easement expired in December, 2011 and Housatonic has determined that they will not renew the agreement. The state has taken Berkshire Scenic's side.

With the permits expired, the Housatonic said they are not negotiating because of safety concerns has now accused Berkshire Scenic of applying "political and social pressure" to force the company to change their mind.

A statement dated May 9 from Edward Rodriguez, executive vice president for the Housatonic Railroad, says that despite Berkshire Scenic's claims they they have never been cited for a safety violation, Housatonic has identified liability concerns that the company has not addressed.

The statement also says that the Housatonic has been absorbing all of the costs associated with hosting the trains.

In response, on Friday the museum's events manager and attorney Pamela Green issued a counter statement alleging that Housatonic's comments are "defamatory."

Green's statements says that the museum refuses to accept Housatonic's reasoning that there are safety violations - saying those concerns are "baseless." The statement says that Berkshire Scenic welcomes Federal Railroad Administration inspections and that the museum carries their own insurance  — thus reducing Housatonic's liability.

Housatonic has received more than $4 million in state dollars for the operations, the statement reads, and the company has always been compensated for Berkshire Scenic's use.

The full statements from both parties are available below.

Statement of Housatonic Railroad Company, Inc.
May 9, 2012

For almost 10 years, Housatonic Railroad has supported the Berkshire Scenic Railway Museum, Inc. In 2003, Housatonic Railroad agreed to permit BSRM to operate certain excursion trains on Housatonic’s privately owned railroad line between Lenox and Stockbridge. The arrangement permitted BSRM operations for a seven year period, after which it was scheduled to expire. In 2010, Housatonic Railroad agreed to allow the continuation of the excursion operation for an additional two years, through 2012.

During that two year period, Housatonic effectively subsidized the BSRM operation by absorbing all of Housatonic’s costs associated with hosting BSRM trains.

Housatonic Railroad would have thought that permitting the operation on its line for the additional two years and subsidizing the operation during that time would have resulted in the creation of good will within both BSRM and the community and would have been viewed as a positive and generous contribution to BSRM and its constituency. Instead, Housatonic Railroad is being severely castigated for exercising its right to allow the BSRM agreements to expire, thereby ending BSRM operations on Housatonic’s tracks.

BSRM officials, rather than being grateful for what BSRM has received, seem to have adopted a position that BSRM has some right to insist that Housatonic continue to make its property and resources available for its use. BSRM has been and continues to aggressively attempt to apply political and public pressure to cause Housatonic Railroad to continue to support BSRM by permitting the use of Housatonic property. Their actions give the expression "no good deed goes unpunished" poignant meaning for Housatonic Railroad.

There are many dedicated individuals associated with Berkshire Scenic Railway Museum and Housatonic Railroad has wanted to avoid making any public statement about the discontinuance that might reflect negatively on Berkshire Scenic. Unfortunately, recent news reports about the discontinuance of passenger excursion operation on Housatonic's tracks and statements attributed to Berkshire Scenic’s management have made some further comment by Housatonic Railroad necessary and appropriate.

There are many factors that contributed to Housatonic’s decision, but safety and liability concerns were paramount among them. Within the last year, Housatonic’s concerns about the safety of BSRM’s equipment and operation have grown. Despite the carefully crafted statements of BSRM that make it appear as though its operation has been free from safety related issues, there have been significant safety issues that Housatonic identified and that could not be ignored by Housatonic. BSRM’s responses to Housatonic’s concerns have not, in Housatonic’s view, been appropriate.

The operating agreement between Housatonic Railroad and BSRM was a relationship between two private companies. Housatonic Railroad reached the determination that it could not continue to justify the risk of exposure to Housatonic Railroad of liability or claims, meritorious or not, that could arise from an incident involving Berkshire Scenic’s train. Having reached that determination, Housatonic took the action that was required.

Housatonic Railroad wishes BSRM well in its continued museum operation.

Response from Berkshire Scenic:

Berkshire Scenic Railway Museum continues to be willing to negotiate an extension of the easement permitting its tourist trains to operate on Housatonic's track. We maintain this willingness despite the baseless accusations and defamatory statements made by [President] John Hanlon and [Vice-President] Colin Pease of the Housatonic.

Housatonic has continually refused to sit down and negotiate with [the state Department of Transportation] and the museum, and has failed to provide specific reasons for this position. Although BSRM will accept that Housatonic has chosen to terminate its relationship with BSRM, we will not accept the reason for terminating our operation as "safety violations."

BSRM will exercise every option to protect our reputation and ensure that the true facts of this situation are presented to the public whose tax dollars were invested in the name of the museum. Housatonic’s generalized statements regarding safety and liability have no basis in fact. BSRM has always respected the fact that we are a guest on the Housatonic's property, and we have complied with every instruction and request they have made.

BSRM has successfully carried over 105,000 passengers in nine years without incident, and has been inspected and audited several times by the Federal Railroad Administration, once at Housatonic's request, without a single violation. This is a credit to the many professional railroaders who volunteer their services to BSRM. The museum has, and always will, welcome the inspection of the FRA as to any of its equipment and practices, and would again welcome such an inspection if it would assist in negotiations.

Furthermore, Housatonic's concerns regarding liability were addressed in 1996 when MA General Laws Chapter 160, Section 234 was passed (as a prerequisite to negotiations for the 2002 easement) limiting the liability of a tourist train operation and its host railroad to no more than $3 million per incident. The law further requires that the tourist entity maintain a general liability policy covering that amount, naming the host railroad (i.e. Housatonic) as an additional insured. At an annual cost to the museum of over $28,000, BSRM has maintained such an insurance policy, thereby minimizing, or even eliminating, any liability exposure of Housatonic.

The latest statement by Housatonic is clearly an attempt to re-characterize the relationship between the organizations as one where Housatonic is “subsidizing” BSRM – as opposed to the reality of their receipt of more than $4 million in taxpayer dollars to permit the operations of the scenic railway.

At no time has BSRM, MassDOT, or the legislative delegation ever requested or expected that Housatonic permit BSRM to “use” its property at no cost.  Housatonic has always been, and would continue to be, compensated for permitting BSRM operation on the line. This compensation far exceeds the actual cost to Housatonic for hosting the tourist trains. This is not a relationship between two private companies – it is a relationship between Housatonic (a private company), Berkshire Scenic (a public charity), and the taxpayers whose money the Housatonic has received, and whose money the Housatonic continues to seek.

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