Train operators dispute contract Print
Article
By Sean Flynn/Daily News staff
November 17, 2004

NEWPORT - The Old Colony & Newport Railway, a nonprofit educational and tourism organization, has been ordered by the state to operate under the auspices of the private Newport Dinner Train, or cease running trains on Aquidneck Island.

The Rhode Island Department of Transportation has told the members of the National Railroad Foundation and Museum, which does business as the Old Colony & Newport Railway, that they must sign an operating agreement with Newport Dinner Train by Friday. Otherwise, legal action will be taken against Old Colony if it attempts to use the rail line.

Donald G. Elbert Jr., executive director of the Old Colony & Newport Railway, said the terms of the proposed agreement are so restrictive that it is unacceptable to the members. For example, Old Colony would be allowed to run train trips only in the winter, instead of year-round, as it currently does.

"Old Colony will be allowed to run rail services every Sunday during January 1 through March 31, unless instructed otherwise by Dinner Train," says the agreement drafted by RIDOT.

Any other trips by Old Colony locomotives would have to be approved by Newport Dinner Train. The principal of Newport Dinner Train, Robert J. Andrews of Portsmouth, did not return calls Tuesday asking for comment. A family member reached Tuesday night said he was talking on another phone line. A later voice message was not answered.

There has been a protracted dispute between the two organizations, but Old Colony decided this week to make it public in a last-ditch effort to save the organization.

Andrews wrote a letter to Elbert in April 2003 regarding an operating agreement between the organizations.

"I have tried everything possible to generate a structured operating agreement with you on an amicable basis," Andrews wrote. "You have stalled the inevitable at every juncture. "

Under the agreement proposed then, Old Colony would operate under the auspices of the Dinner Train, with all scheduling to be approved by the Dinner Train.

At the time, Andrews said in the letter he would go to the legal counsel of RIDOT and ask for a cease-and-desist order "to prevent your organization from operating on the Newport Secondary Line until an operation agreement is implemented."

Now that Old Colony has been presented with a take it-or-shut down agreement by RIDOT, members were considering different options on Tuesday, including seeking a restraining order or temporary injunction against RIDOT.

"Going to court is the last resort," Elbert said. "We are looking for another option."

Peter Martin, an Old Colony volunteer who maintains an extensive Web site, www.stacyhouse.com, with a lot of information on the railway, said court action is preferable to giving in to this agreement.

Martin and other members of the Old Colony & Newport Railway say they have been kept the line operating and maintained since 1979, providing an important service to the island.

But he and the other members conceded that the nonprofit organization does not have the resources for a protracted legal battle.

The Old Colony & Newport Railway provides two nine-mile round trips every Sunday from the Newport Depot downtown to Green Lane in Middletown. The organization says it has carried 185,000 passengers on its railway trips during the past 25 years, spent more than $250,000 on the line and railway, and accumulated assets worth more than $100,000.

Old Colony has two locomotives, two passenger cars, a flat car and a caboose, as well as maintenance equipment, Martin said.

John Igliozzi, legal counsel for RIDOT, said in a letter to Elbert that the operating agreement for Old Colony was drafted "after years of discussion with no meaningful resolution ..."

RIDOT said the Newport Dinner Train is "the authorized operator of the Newport Secondary Line" under an agreement from March 24, 1999. The rail line runs from the depot at the Goat Island Connector to the Sakonnet River railroad bridge in Portsmouth, a distance of 12.4 miles.

Newport Dinner Train shall have the exclusive authority to qualify all crews and for the dispatching of trains, as well as the establishment of the operating rules and practices for both the dinner train and the Old Colony & Newport Railway, according to the operating agreement Old Colony is being asked to sign.

Under the proposed two-year agreement, Old Colony would be prohibited from offering any food, beverages or entertainment on its trains. And if there is any conflict between Old Colony's timetable and a Newport Dinner charter train, "NDT shall have priority," says the agreement.

Old Colony would be barred from running trains on Easter, Mother's Day, Father's Day and on eight other days in June. These days are some of Old Colony's biggest revenue days, Martin said.

"Our concern is whether we can make enough money to maintain our rail cars and pay our insurance," Elbert said.

The agreement would obligate Old Colony and Newport Railway to contribute a minimum of 500 volunteer hours yearly to the maintenance of the rail line. Newport Dinner Train would have "access to track tools and rolling stock belonging to Old Colony& Newport Railway for the purpose of maintaining" the line.

The agreement says: "RIDOT shall have the unilateral right to amend this operating agreement for any reason and at any time during the (two-year) term."

Elbert asked how Old Colony could make investments or ask volunteers to provide time and effort to the railway under such tentative conditions.

"The time or money of volunteers will be seen as going to a for-profit venture, as opposed to a historical and educational effort," Martin said.

Elbert and other members of Old Colony are asking whether the assets and work of a nonprofit 501 3c organization like Old Colony can legally be used to further the profits of a private firm like Newport Dinner Train.

"Outside RIDOT offices, there is no legal precedence or public support for the position that the Foundation use its resources, for example, 500 volunteer hours annually, to enhance a profit venture," Elbert said in a letter to RIDOT's Igliozzi.

Martin, who is a member of both the Newport Planning Board and the Aquidneck Island Planning Commission, pointed out that Old Colony recently restored one of its locomotives with $50,000 in funding received from RIDOT, and now Old Colony could be possibly shut down.

Martin said students from the Rogers High School vocational trades program in the 1980s restored the Newport railroad depot, which Old Colony has maintained. Now, RIDOT has a cease-and-desist order against Old Colony from doing any maintenance of the building.

"Old Colony is an asset to the community," said City Manager James C. Smith. "There ought to be a way to create a reasonable and workable time slot for their train that would not interfere with the Dinner Train's commercial activities."

Philip Sweeney, a volunteer with Old Colony, said RIDOT should have two separate agreements, one with Old Colony and one with the Newport Dinner Train.

He said an independent commission should be formed to monitor the agreements.

"I believe we are good for Newport and Aquidneck Island," he said. "We are more than willing to work with the Newport Dinner Train, so that we can both keep operating. We're a bunch of retirees and guys interested in railroading, with a desire to keep this heritage alive."

Don O'Hanley of Middletown, author of "Newport by Trolley," has been the historian for the Old Colony & Newport Railway for 25 years.

When tourists get on the train, they are told some of the history of the line, and scenic landmarks and wildlife are pointed out. The fares are affordable, $7.50 per adult, with reduced fares for children.

"Families with children thoroughly enjoy riding on our trains," O'Hanley said. "It would be an awful shame if we were dropped from the tourism scene here."

Newport Daily News - Old Colony & Newport Railway - Articles published 2004
This article has been reproduced with the explicit permission of the Newport Daily News.
www.stacyhouse.com