BNSF Railway is urging federal regulators to examine the “harms” caused by the 1996 merger of Union Pacific and Southern Pacific. In a new filing with the U.S. Surface Transportation Board, BNSF claimed that the UP has repeatedly violated decades-old conditions set by the government that were meant to maintain competition in the western U.S., when the region went from three major railroads to two. 

The November 28 filing comes as UP is expected to submit its merger application with Norfolk Southern, a deal that, if approved, would create the country’s largest rail network and its first true transcontinental system. However, attorneys for BNSF stated that the STB should consider the effects of the previous merger before granting approval to a new one. 

“In the nearly 30 years since the UP/SP merger, UP has engaged in a pattern of obstructive conduct that has diminished competitive options and harmed customers by delaying or preventing BNSF from fully replacing the competition that was lost through the UP/SP merger as the Board originally intended,” attorneys wrote. “Although BNSF has diligently worked to enforce the rights the Board entrusted to it through constant vigilance, extensive negotiations with UP, and numerous petitions to the Board, its efforts have faced repeated resistance and obstruction from UP.”

In 1996, the STB granted BNSF extensive trackage rights across the combined UP-SP network to give rail shippers options for moving freight. For example, BNSF was given access to former Rio Grande and Western Pacific routes across Colorado, Utah, Nevada and California. But actually using those routes has never been easy, BNSF attorneys wrote. Earlier this year, BNSF had to ask the STB to force UP to allow it access to start a new intermodal service into Salt Lake City. It was one of more than a dozen petitions the railroad has filed over the years to force UP to grant what was supposed to be guaranteed access. 

In another instance in Fruita, Colo., UP tried to force a customer to pay for upgrades to a spur after it tried to start shipping with BNSF, despite the fact that UP was already using that spur to serve other customers. 

In a statement to Railfan & Railroad, a UP spokesperson defended the railroad’s actions.

“Union Pacific has granted BNSF access on about 85 percent of their requests over the last 15 years, providing significant opportunities for competition, while ensuring customers have options. In the few cases taken to the Surface Transportation Board, BNSF was asking for more than was agreed upon,” the spokesperson wrote. 

—Justin Franz