Sorry, but Amtrak going up against BNSF and a guy who has one of the deepest pockets in the entire world, is not an option. I have had clients who had solid cases against the US government for example, and we were told point blank to our faces by the govt lawyers to go ahead and try to sue them, because in 5 years when the case was still being litigated and we were out of money the government would "win" anyway. This is similar, except in this case Amtrak is the poor stepchild and it is the commercial entity holding all of the cards.
Sad to say this really isn't a case of right or wrong, but the reality of what has happened on this line. My BNSF guy said he believes they are paying some penalties, per the contract, for the delays outside the established parameters, which clearly does not appear to be bothering Berkshire Hathaway at all. He also noted, rather pointedly, two very key points: (1) Amtrak is a tiny, tiny part of BNSF's operation, and (2) that a certain percentage of the very lengthy delays experienced by Amtrak trains on the Hi-Line this year (outside of BNSF derailments, which evidently don't kick in any penalties) were due at least in part or significantly to Amtrak equipment issues.
No easy answers here. That is why I say people from both Amtrak and BNSF need to look at what is realistic and what can be done, both short term and long term (one would hope long term the $1.4 Billion that BNSF is spending on the Hi-Line will make a big difference-we won't know until it is all done in a couple years though will we).
Based on all of the replies from Amtrak customer relations so far it would appear they are willing to just take the hits and live with the very long delays.