US sues Union Pacific over narcotics shipments by rail

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Feds trying to derail Mexican drugs

By MARY FLOOD 2009 Houston Chronicle

March 20, 2009, 10:55PM

Union Pacific is failing in its responsibility to stop Mexican drug cartels from hiding narcotics on U.S-bound trains, according to a Justice Department lawsuit that railroad officials say places unrealistic demands on their business.

Trains enter the U.S. from Mexico in nine places in Texas, California and Arizona. Six of those entry points are used by North America’s largest rail carrier, the Union Pacific Railroad, which has drawn a line in the sand about who should police trains headed north from Mexico.

“Union Pacific cannot send its personnel into Mexico to locate drugs, because they would not be allowed to carry arms or use K-9 teams, would have no legal authority and would be forced to turn over drugs to unreliable authorities in Mexico. Union Pacific employees would be subject to arrest in Mexico and would be unarmed in the face of vicious drug gangs,” said Donna Kush, spokeswoman for the Omaha, Neb.-based railroad.

But the federal government says it’s the railroad’s responsibility to use the “highest degree of diligence” and inspect in Mexico before moving literally tons of narcotics into the U.S.

The ongoing struggle between Customs and carriers isn’t new. In the 1980s, U.S. Customs worked especially with seagoing shippers to stem the narcotics tide. In the 1990s, the government focused on the airline industry, especially regarding Florida arrivals from the Caribbean and Latin America.

“In the transportation business this is a constant dilemma,” said Phoenix transportation lawyer Gary Doyle. “When you move that much across the border in vehicles that big, it’s tough to be sure what’s on it when you’ve got people around working for the cartels.”

But, Doyle said, truckers and airlines are held responsible for their commercial cargo.

Narcotics not listed

Since 2001, the Justice Department has been fining Union Pacific, mostly for a total of some 4,000 pounds of marijuana found in train cars in Calexico, Calif., near San Diego. In two federal lawsuits it filed this week, Justice seeks $37.7 million in fines from the railroad. That includes $4.1 million for cocaine hidden in a false wall found in a gamma ray check of a train car in Brownsville in 2003.

The civil law being cited by Justice requires carriers to supply a list of everything they are hauling. Union Pacific is being charged with having narcotics in their cars but not specifying marijuana and cocaine on their lists.

Kush said there have been a total of 58 drug seizures from Union Pacific trains since 2001. The most recent are two in Calexico in March and one in El Paso in February.

Union Pacific, which owns 26 percent of the Mexican railroad that gets the trains to the border, has refused to pay all the fines. And in 2008 the company sued the government in Omaha federal court, saying the penalties and the seizure of six railroad cars are unconstitutional.

That lawsuit was put on hold while the government and the railroad negotiated. The talks were to end Friday. The government sued the railroad in California and Texas on Wednesday.

No other railroads fined

Kush said the company is disappointed because it has helped Customs with K-9 training and other cooperation for years. She said the government has even fined Union Pacific for marijuana the railroad found and handed over to Customs. “We do not feel this has been lawful,” she said.

Spokespeople for the other major railroads that go to the Mexico border — Kansas City Southern and Burlington Northern Santa Fe — said Friday that they have not been fined over drug seizures.

None of the eight spokespeople or lawyers contacted at the Justice Department or Customs and Border Protection would comment about this case.

Don Clark, formerly the FBI’s special agent in charge in the Houston region, said every carrier that crosses the border needs to take on responsibility for the safety and security of Americans,

“It’s not overbearing to ask this. Truckers have been doing it for years,” Clark said.

He said airlines have beefed up security when it comes to narcotics in commercial cargo and when it comes to who gets on passenger planes.

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