Citations
- 786 F. Supp. 2d 398
Full opinion text
ORDER ON MOTION FOR PRELIMINARY INJUNCTION AND TO DISMISS OR STAY LITIGATION AND COMPEL ARBITRATION
JOHN A. WOODCOCK, JR., Chief Judge.
Canadian National Railway Company as plaintiff and Twin Rivers Paper Company LLC as intervenor move for preliminary injunction to enforce an easement granted by Montreal, Maine & Atlantic Railway, Inc. (MMA) which Canadian National and Twin Rivers contend allows Canadian National direct access to service the paper mill. Beyond denying the claim, MMA moves to compel arbitration. The Court denies the motions.
I. STATEMENT OF FACTS
A. Procedural History
On October 29, 2010, Canadian National Railway Company and its wholly owned subsidiary, Waterloo Railway Company (collectively “Canadian National” or “CN”), filed a complaint in Aroostook County Superior Court, state of Maine, against Montreal, Maine & Atlantic Railway, Inc. (MMA), alleging that MMA is breaching a recorded easement over a portion of its railroad tracks (the Subject Trackage) that allows Canadian National to serve the Twin Rivers paper mill in Madawaska, Maine. Notice of Removal (Docket # 1) Attach. 1 ¶¶ 9, 10 (Docket # 1) (Compl). On the same day, Twin Rivers Paper Company, LLC (“Twin Rivers” or “TR”), owner of the Twin Rivers paper mill, moved to intervene. Id. at Attach. 11. On November 1, 2010, MMA removed the case to federal court. Notice of Removal. Twin Rivers again moved to intervene. Mot. to Intervene (Docket # 5) (TR Mot.). Over MMA’s objection, the Court granted Twin Rivers’ motion. Order on Mot. to Intervene at 16 (Docket #50).
1. Motion for Preliminary Injunction
On the same day MMA removed the case to this Court, Canadian National moved for a temporary restraining order and preliminary injunction. Emergency Mot. for a TRO and Related Relief and for Entry of Prelim. Inj. Pursuant to Rule 65, M.R.Civ. P. (Docket # 4) (CN Prelim. Inj. Mot.). Canadian National later filed a supplemental memorandum in support of its motion. Pis.’ Supplemental Mem. of Law in Support of Mot. for Emergency Injunctive and Related Relief (Docket #35) (CN Supplemental Mem.). Twin Rivers filed its own memoranda in support of Canadian National’s motion. Mem. of Laio of Twin Rivers Paper Company, LLC, in Support of Pis. ’ Mot. for Emergency Injunctive and Related Relief (Docket # 6) (TR Mem. in Support); Supplemental Mem. of Twin Rivers Paper Company, LLC, in Support of Pis. ’ Mot. for Emergency Injunctive Relief. (Docket # 37) (TR Supplemental Mem. in Support ). MMA opposed the motion. Montreal, Maine & Atlantic’s Opp’n to Canadian National Railway Co.’s Mot. for TRO at 2 (Docket #42) (Def’s Prelim. Inj. Opp’n). Canadian National replied to the opposition. Pis.’ Reply to Def’s Opp’n to Pis. ’ Mot. for TRO (Docket # 44).
Canadian National withdrew the motion for TRO but maintained its motion for preliminary injunction. Pis.’ Withdrawal of Request for TRO and Request for Status Conference on Mot. for Prelim. Inj. (Docket #53). In anticipation of a December 20-22 preliminary injunction hearing, the parties submitted pre-hearing memoranda. Pis. ’ Pre-Trial Mem. (Docket # 80) (CN Pre-Trial Mem.); Intervenor Twin Rivers Paper Company, LLC’s, PreHearing Brief (Docket # 82) (TR PreTrial Mem.); Montreal, Maine & Atlantic’s Prelim. Inj. Hr’g Br. (Docket # 83) (MMA Pre-Trial Mem.). After the hearing, Canadian National and MMA submitted post-hearing memoranda. Pis. ’ Post-Trial Mem. (Docket # 100) (CN Post-Hr’g Mem.); Montreal, Maine & Atlantic’s PosL-Prelim-Inj.-Hr’g Br. (Docket # 109) (MMA Postr-Hr’g Mem.).
2. Motion for Arbitration
On November 18, 2010, MMA moved to compel arbitration and to dismiss or stay the case pending the outcome of arbitration. Montreal, Maine & Atlantic’s Mot. to Dismiss or Stay Litigation and Compel Arbitration (Docket # 51) (MMA Arbitration Mot.). Canadian National opposed the motion. Pis.’ Opp’n to Def’s Mot. to Dismiss or Stay Litigation and Compel Arbitration (Docket # 67) (CN Opp’n to Arbitration). MMA replied. Reply to Canadian National’s Opp’n to Montreal, Maine & Atlantic’s Mot. to Dismiss or Stay Litigation and Compel Arbitration (Docket #71) {MMA Reply Arbitration Mem.).
B. Factual Background
1. The Parties
The Twin Rivers paper mill is located in Madawaska, Maine. CN Prelim. Inj. Mot. at 9; Def.’s Prelim. Inj. Opp’n at 2. Madawaska is located at the northernmost boundary of Maine, separated from Canada by the St. John River. Twin Rivers is the successor to Fraser Paper, Inc. CN Prelim. Inj. Mot. at 5. Twin Rivers manufactures and sells specialty, coated papers for worldwide distribution and employs approximately 680 workers at the mill. Id. Like Fraser before it, to get paper to market, Twin Rivers relies significantly on rail.
The Twin Rivers mill is serviced by MMA (previously the Bangor & Aroostook Railroad Company (BAR)). MMA is a relatively small, regional railroad with approximately 750 miles of track; it serves northern New England, including central and northern Maine, and southeastern Canada. CN Prelim. Inj. Mot. at 5; Test, of Robert C. Grindrod 7:23-24 (Docket # 103) (Grindrod Day 1 Tr.). MMA has traditionally loaded Twin Rivers’ paper products at the mill and transported the paper to junctions where MMA has connected with larger railroads, which then ship the product throughout the United States and Canada.
Canadian National is “one of the largest rail carriers in North America and operates transcontinental railroad lines in the United States in Canada.” CN Prelim. Inj. Mot. at 4. It says it is “unique among North American railroads, in that it provides transportation services east to west, from the Atlantic to the Pacific coasts, and north to south, from Canada to the Gulf of Mexico.” Id. In the northeast, it “has a junction with the railroad lines of [MMA]” at St. Leonard, New Brunswick, Canada. Id.
2. The Interlocking Relationship
The manufacture, transportation, distribution, and sale of paper could theoretically be a single industry with one entity assuming all functions from wood harvesting to paper making to delivery to the consumer; however, both paper mills and railroads are capital intensive businesses and operated by people with highly specialized knowledge. People who know how to run a mill do not know how to run a railroad and vice versa. As a result, some of the highly specialized functions of manufacture and transportation have been compartmentalized. As conceived, the relationship between the mill and the railroad is synergistic: the mill needs the railroad to bring raw material and to ship finished paper, the railroad needs high volume customers, and they work together to their mutual profit.
Years ago, with this model presumably in mind, the BAR laid a set of railroad tracks along the Maine side of the St. John River to what was then the Fraser mill. Once the railroad tracks were laid, no one was going to build another set and the result is that MMA now exclusively owns the only railroad tracks with direct access to the mill. Id. at 9; Def.’s Prelim. Inj. Opp’n at 3. Historically, MMA and, before it, BAR have been the only rail carriers to directly serve the mill. Def.’s Prelim. Inj. Opp’n at 3. While economic times were good, the business relationship was mutually beneficial. Twin Rivers, MMA, and Canadian National each understood their respective roles and profited from their relationship.
3. Economic Tensions in the Paper and Railroad Business
More recently, however, economic times in the paper and railroad industries have not been good. On August 15, 2001, certain BAR creditors filed an involuntary Chapter 11 bankruptcy proceeding against BAR and in December 2001, the bankruptcy court entered an order for relief under Chapter 11. Howard v. Surface Transp. Bd., 389 F.3d 259, 262 (1st Cir.2004). In the spring of 2009, Twin Rivers’ predecessor, Fraser Paper, Inc., followed suit, entering into bankruptcy. Test, of Jeffrey C. Dutton 32:7-9 (Docket # 106) (Dutton Tr.).
a. Twin Rivers’ Perspective
As Twin Rivers produced less paper, MMA gave Twin Rivers less service, and the level of service and its cost became a sore point between Twin Rivers and MMA. At one point, MMA trains came to Twin Rivers six days a week, but as the volume of paper decreased, MMA gradually reduced its schedule and is now servicing the mill only three days a week. Id. 7:8-25; 8:19-22. MMA’s reduced schedule and cost structure have played havoc with Twin Rivers’ attempts to regain its competitive edge. Jeffrey Dutton, the Chief Executive Officer of Twin Rivers, explained that its customers’ need for paper is date-specific, and Twin Rivers is obligated to put its paper in its customers’ hands to accommodate the customers’ production schedule. Id. 8:1-11. Furthermore, Twin Rivers, not the customer, is responsible for the cost of transportation, and as the finished product awaits shipment, this drives up Twin Rivers’ inventory and financing costs. Id. 8:1-11; 9:4-13.
The issue is not just service, it is cost. According to Mr. Dutton, MMA quoted Twin Rivers a price of $1,586 to load its paper at the Twin Rivers’ mill and transport that paper the 24-mile run to St. Leonard, where it would be transferred to Canadian National. Id. 10:8-14. By comparison, Canadian National was taking the same paper all the way to Montreal for about one-third the price. Id. 10:15-19. Mr. Dutton said that the escalated MMA price “doesn’t seem reasonable” and puts Twin Rivers at a competitive disadvantage. Id. 10:15-23.
b. MMA’s Perspective
MMA and Twin Rivers do not disagree about much of the history or even the desirable solution. Both would prefer a competitive productive mill in Madawaska and efficient cost-effective rail service. A major problem, however, is that their separate operations are so complex and intertwined that when the mill falters, the railroad must cut its own costs by cutting service. As the mill prospers, the railroad is not able to quickly react.
Robert C. Grindrod, the President and Chief Executive Officer of MMA, explained MMA’s perspective. He testified that in June 2008, MMA had 325 employees; as of December 2010, the number had been reduced to 174. Grindrod Day 1 Tr. 8:2-5. In the fall of 2010, MMA had 205 employees, but as a result of the controversy with Twin Rivers, it had reduced that number by 31 in the weeks approaching the December 2010 hearing. Id. 8:6-9. He later added that MMA owns or rents approximately 350 railroad cars to service Twin Rivers. Id. 21:20-22.
Mr. Grindrod testified that currently MMA is providing “switching services” to Twin Rivers “six days per week, Sunday through Friday.” Test, of Robert C. Grindrod 13:18-22 (Docket # 104) (Grindrod Day 2 Tr.). He also testified that MMA has trains going out of Madawaska and heading for St. Leonard four times per week. Id. 15:12-20. Although he understands that Twin Rivers would like MMA to provide a greater frequency of shipments and switching, he testified that “[t]here isn’t an economic justification for it.” Id. 16:10-12.
Turning to the issue of cost, Mr. Grindrod said that when he came to MMA in 2003, MMA was receiving “somewhat more than $500 per car” under the haulage agreement. Id. 37:6-10. Mr. Grindrod explained the two ways that a. railroad company can bill a customer: division and haulage. Under the division method, the local or originating carrier, here MMA, is in charge of putting together the commercial deal for moving the freight from its origin to its destination, obtaining agreed-upon amounts that other carriers will charge for their portions of the trip, and putting together a package for the shipping customer. Id. 38:4-14. Under the division system, MMA was receiving about $1,100 to $1,200 to ship Twin Rivers’ product from Madawaska to St. Leonard, where it was transferred to Canadian National. Id. 39:8-13.
The second method is called haulage. Under this system, another railroad, in this case Canadian National, has the right to strike the commercial deal directly with Twin Rivers and under the haulage agreement that Canadian National negotiated with Twin Rivers, it subcontracted with MMA to move Twin Rivers’ freight to St. Leonard for $500. Id. 39:14-20.
Mr. Grindrod said that in anticipation of the existing haulage agreement coming up for renewal at the end of October 2010, he got in touch with Canadian National in July 2009 and informed Canadian National that MMA was interested in renewing the haulage agreement. Id. 35:1-9. After an initial expression of interest by Canadian National, he received word that Canadian National was not interested in renewing the haulage agreement. Id. 35:1-12.
The upshot of Mr. Grindrod’s testimony was that MMA’s prices to Twin Rivers were the result of Canadian National’s negotiated rate and when MMA offered to continued the current rate, it was Canadian National that decided not to do so.
c. The MMA — Twin Rivers’ Relationship Collapses
Whatever the cause, the business relationship between Twin Rivers and MMA became viral. Mr. Dutton described the relationship as “difficult” and “expensive.” Dutton Tr. 7:10. He expressed frustration that MMA had not “taken a more active role in determining what we need from a service perspective and working with us to get there.” Id. 10:3-7. Mr. Dutton said:
I’m indifferent to who we work with. If MMA can get their costs to something that’s competitive and can improve their service levels and we’re convinced that they will, you, know, we have no ... issue with MMA either participating in whole or in part with this arrangement that we have with the CN.
Id. 18:1-8. At the same time, Mr. Dutton acknowledged that he has a “demeanor problem” with Mr. Grindrod and with Mr. McGonigle, MMA’s marketing manager. Id. 15:12-14. Mr. Dutton described the relationship with MMA as “awful, unlike anything [he] had ever seen.” Id. 35:23-25. The Twin Rivers’ relationship with Mr. McGonigle got so bad that when people from Twin Rivers had to visit the MMA office, Mr. McGonigle had to go outside and sit in a car. Id. 19-22.
4. The Business Divorce
Given its location, Twin Rivers must ship a substantial percentage of its product by rail since most of its customers fall outside the ideal truck freight circle; its optimal percentage of rail transport would be about 80%. Id. 12:20-25; 13:1-2; 14-23. With MMA as its historic shipping partner, for Twin Rivers to extricate itself from a formerly symbiotic business relationship with MMA is equivalent to a complex and messy divorce.
To begin, MMA owns the entire set of tracks both leading to and from and actually in Twin River’s yard. Twin Rivers has two routes by which it can ship its product by rail, both of which are on the Maine side of the border between the United States and Canada, and both of which are owned by MMA. The first set of tracks proceeds west and then south over what is known as the Madawaska subdivision. Def.’s Prelim. Inj. Opp’n at 3. The second set of tracks proceeds east, initially on the remaining portion of the Madawaska subdivision and then, at Madawaska Milepost 264.13 (also known as Van Burén Milepost 0.0), onto the Van Burén subdivision to Van Burén, Maine. The tracks then cross the St. John River into to St. Leonard, Canada, where they connect to tracks owned by Canadian National. Id. at 3-4.
Despite MMA’s stranglehold on Twin Rivers, the solution for Twin Rivers was obvious: Canadian National. The so-called Madawaska subdivision is hopeless for Twin Rivers since shortly after leaving west from Madawaska, it dives deeply into the Maine woods and does not emerge until Millinocket and later in Hermon, Maine, just south of Bangor. However, the Van Burén subdivision has potential. If Canadian National could take the place of MMA on the Van Burén subdivision, Canadian National could pick up Twin Rivers’ paper products at the Madawaska mill and transport them down the Maine side of the St. John, over the river to St. Leonard, where Canadian National could commence its trip to Montreal and beyond. From Twin Rivers’ perspective, the Canadian National alternative seemed ideal, freeing Twin Rivers from MMA, and what it viewed as MMA’s exorbitant pricing structure, ineffective service, and annoying executives. Twin Rivers commenced discussions with Canadian National.
5. Canadian National, MMA, and the Easement, the Trackage Rights Agreement, and the Junction Settlement Agreement
Fortuitously, Canadian National had the solution: some time ago, it had purchased from BAR an easement, trackage rights, and a junction settlement agreement over the Van Burén subdivision. Like most businesses that go bankrupt, BAR’s financial problems did not come overnight. When Frederick Yocum began consulting for BAR in 1999, he immediately recognized that it “had cash problems” and “operating issues.” Test, of Frederick W. Yo-cum, Jr. 17:1-5 (Docket # 99) (Yocum Tr.). One solution was to “drain[] commercial assets to Canadian National for $5 million.” Id. 19:24-25;20:l-3.
The result was that in March 2001, BAR executed three agreements with Canadian National. In the first, an Easement dated March 15, 2001, BAR granted Canadian National:
A perpetual, non-exclusive EASEMENT for the use and benefit of Grantee, its successors and assigns, for the uses and purposes defined and .described in that certain Trackage Rights Agreement dated march 14, 2001 by and between Grantor and Canadian National Railway Company (“CN”) (the “Trackage Rights Agreement”), over, upon and across the premises described in Exhibit A attached hereto and incorporated herein by reference (the “Easement Area”), situated in the County of Aroostook, State of Maine.
Ex. G at 1 (Easement). “Exhibit A” describes the deeded property:
A portion of the line of railroad known as the Van Burén Branch of the Bangor and Aroostook Railroad, all in the State of Maine, extending from a point of connection with the main Line in Madawaska (Milepost 264.13, Milepost V0.0), and running through Madawaska, St. David, Grand Isle, Lille, Notre Dame, Parent, Violette, and Keegan, to Van Burén (Milepost V24.1), all in the County of Aroostook, a distance of about 24 miles, as the same is now laid out, located and constructed.
Id. at 8. The Easement references a Trackage Rights Agreement (TRA), the second of the three agreements executed in March 2001, which provides in part:
(a) CN shall have the right to enter and exit the Subject Trackage only at the connections MP 0.70 at St. Leonard, NB and at MP 0.0, Madawaska subdivision, Madawaska, ME, for the receipt or delivery of local traffic from and to the Fraser / Nexfor facility located in Madawaska, ME....
(d) Except as may otherwise be provided by this Agreement, CN shall not use any part of the Subject Trackage for the purpose of switching, storage, or servicing cars or equipment, or the making or breaking up of trains....
Ex. F at 2 (TRA). The third agreement executed in March was a Junction Settlement Agreement (JSA). Ex. E at 1 (JSA). The JSA allowed Canadian National to negotiate directly with Twin Rivers for transportation of Twin Rivers’ products from the mill, and provided that Canadian National would sub-contract to MMA the switching services required by Twin Rivers at the mill. Id. at 3. In other words, the JSA gave Canadian National direct commercial access to Twin Rivers while leaving direct physical access in the switching yard with MMA. Id. In consideration for these three agreements, Canadian National paid BAR $5 million. CN Prelim. Inj. Mot. at 11-12; Def.’s Prelim. Inj. Opp’n at 5.
Armed with these agreements, Canadian National seemed primed to answer Twin Rivers’ desire to dispense with MMA and to deal with a more reasonable and cost-effective rail carrier.
6. A Question of Interpretation
The solution, however, was not that simple; precisely what Canadian National purchased — direct physical access to the mill itself, physical access only to Milepost 0.0, or direct commercial access to the mill — remains a matter of intense dispute and is the primary subject of this litigation. When Canadian National informed MMA in June 2010 — as the JSA approached its October 31, 2010, expiration —that it wished to exercise its rights under the Easement and TRA and directly service Twin Rivers, MMA responded that Canadian National had no such right. CN Prelim. Inj. Mot. at 13; Def.’s Prelim. Inj. Opp’n at 6-7. In MMA’s view, under the Easement and TRA, Canadian National was only permitted physical access to Milepost 0.0, leaving Canadian National approximately three quarters of a mile shy of the mill. CN Prelim. Inj. Mot. at 13; Def.’s Prelim. Inj. Opp’n at 6. Believing that in executing the easement the parties originally intended to provide Canadian National direct access to the mill,. Canadian National concluded that the reference to Milepost 0.0 in the TRA and Easement was a mutual mistake. CN Prelim. Inj. Mot. at 13-14.
After Canadian National filed suit on October 29, Compl., MMA offered Twin Rivers and Canadian National a “Rule 11” arrangement, essentially extending the terms of the JSA. Def.’s Prelim. Inj. Opp’n at 7. Since Canadian National and Twin Rivers moved for a preliminary injunction, the two instituted a transloading agreement in which Twin Rivers trucks its product across the St. John River to Edmundston, where they are loaded onto Canadian National trains, thereby bypassing MMA altogether.
II. THE PARTIES’ POSITIONS
A. MMA’s Position on Arbitration
MMA argues that, pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq., this case should be dismissed or stayed pending arbitration and that the Court should compel arbitration pursuant to Article 20 of the TRA. MMA Arbitration Mot. at 1-2. MMA says that “any doubts concerning the scope of arbitral issues should be resolved in favor of arbitration.” Id. at 1 (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, — U.S. -, 130 5.Ct. 2847, 2857, 177 L.Ed.2d 567 (2010)). It quotes First Circuit and statutory law holding that “[a] Court must compel arbitration for disputes that it determines are subject to the arbitration clause.” Id. at 3 (emphasis in original).
According to MMA, the TRA is the operative document that sets forth the track-age rights at issue. Id. at 4-5. In its view, the Court need not consider whether the TRA is incorporated by the Easement, since “[t]he parties’ dispute arises under the TRA.” MMA Reply Arbitration Mem. at 1-2. It then points to Article 20 of the TRA, which states that “[a]ny irreconcilable dispute between the parties with respect to this Agreement shall be resolved by submitting it to arbitration pursuant to the provisions of this Article. The decision of the arbitrators shall be final and conclusive upon the parties hereto.” MMA Arbitration Mot. at 5; TRA at 15.
MMA also rejects the argument that the arbitration clause excepts Canadian National’s claims by virtue of its statement that “[t]he arbitrators shall have no power to change any of the provisions of this Agreement in any respect (nor shall the arbitrator have the power to make an award of reformation) and the jurisdiction of the arbitrators is hereby expressly limited accordingly.” MMA Arbitration Mot. at 5; MMA Reply Arbitration Mem. at 4-6; TRA at 15. It argues that the arbitration clause “governs remedies rather than carving out specific claims that are nonarbitrable in the first instance.” MMA Arbitration Mot. at 6.
So concluding, MMA says that all four of the Plaintiffs’ claims should be dismissed as they all stem from the TRA and are subject to arbitration. Id. at 7. In the alternative, “at the very least,” MMA requests a stay under 9 U.S.C. § 3. Id.; MMA Reply Arbitration Mem. at 6-10.
B. Canadian National
Canadian National invokes the traditional four-factor test for issuance of a preliminary injunction. CN Pre-Trial Mem. at 1.
1. Success on the Merits
Turning to the first factor, reasonable likelihood of success, Canadian National makes several arguments. First, invoking res judicata, Canadian National says that a ruling by the First Circuit in Howard v. Surface Transportation Board, relating to MMA’s bankruptcy proceeding, adopted findings of fact that the easement extends to the mill. Id. at 3-4; CN Post-Hr’g Mem. at 2-3. Canadian National argues that the requisite res judicata criteria are met and that the First Circuit’s statement that “[t]he Madawaska line runs from the Fraser paper mill in Madawaska, Maine to an interchange with a CN line at St. Leonard, New Brunswick, Canada,” conclusively settles the matter. CN Pre-Trial Mem. at 4; CN Post-Hr’g Mem. at 2-3. Canadian National says that, to the extent any additional facts are necessary, the evidence at trial shows that “use of the Milepost 0.0 terminus is in plain error, which if not corrected, will permit MMA to continue to enforce a perfectly senseless and monopolistic, yet self serving interpretation, of the Easement Deed and the TRA.” CN PreTrial Mem. at 6.
Second, applying “conventional principles of deed and contract interpretation,” Canadian National regards its chances as “closer to a substantial ‘probability.’ ” CN Prelim. Inj. Mot. at 14; CN Supplemental Mem. at 3. In Canadian National’s view, the plain language of the TRA providing that “CN shall have the right to enter and exit the Subject Trackage ... for the receipt and delivery of local traffic from and to the [Twin Rivers] facility” forms a sufficient basis, standing alone, for Canadian National’s success on the merits. Id. at 15.
Third, it says that should the Court find the contractual language insufficient to confer direct access, the evidence proves the existence of a mutual mistake: that the parties actually intended the easement to terminate at the mill. Canadian National points to the testimony of Myles Tobin, vice president of United States legal affairs for Canadian National when the contracts were executed, and concludes that Mr. Tobin’s testimony “was unequivocal: the TRA was designed to reflect both parties’ intent to permit CN to directly access the Fraser plant with its own locomotives, serve the shipper, and spot and pull cars— independent of BAR or any other intermediary — at Canadian National’s discretion.” CN Postr-Hr’g Mem. at 3. Canadian National also asserts that testimony from BAR’s bankruptcy proceedings establishes a mistake on MMA’s part. According to Canadian National, “[i]n multiple proceedings before the bankruptcy court and the STB, MMA expressly and repeatedly admitted ... that Canadian National possesses the right to directly serve the Twin Rivers Paper Mill.” CN Prelim. Inj. Mot. at 15. Reciting several statements made by MMA and its chairman purportedly showing Canadian National’s right to access the Twin Rivers mill via the Subject Trackage, Canadian National reasons that “MMA cannot now reasonably or rationally dispute in this Court what it has admitted so often and so clearly before the other tribunals....” Id. at 15-16.
Canadian National also points to documents surrounding execution of the Easement and TRA. It says that the parties’ intent is proven by the JSA’s statement that “BAR will provide haulage service for the account of CN between the CN/BAR interchange in St. Leonard, NB and the Fraser Paper mill located on the BAR at Milepoint 0.0 of the Van Burén subdivision in Madawaska, ME.... ” CN Post-Trial Mem. at 4. It says that letters between the parties during negotiations of the Easement and TRA further show their intent. Id. at 4-5.
Fourth, Canadian National rejects MMA’s notion of the “status quo.” Canadian National says that it is impossible to return to the pre-October 29, 2010, state of affairs since “the Joint Settlement Agreement under which the parties operated in that prior world has expired, permanently.” CN Pre-Trial Mem. at 12. Thus, “the only attainable status quo is that described by” the Easement and TRA. Id.
Finally, Canadian National asserts that, even ignoring the text of the TRA and MMA’s prior statements, “MMA’s current position cannot withstand scrutiny under a simple common sense analysis.” CN Prelim. Inj. Mot. at 16. Canadian National views as absurd the notion that it paid $5 million:
for (1) the right to deliver cars to a point just short of the mill, there to hand the traffic over to MMA at whatever toll MMA chose to exact; and/or (2) the right to reach the mill, but without the right to perform the necessary services to deliver incoming freight and pick up outgoing freight, once again forced to pay whatever toll MMA might exact.
Id. at 16-17.
2. Irreparable Harm
Turning to the second preliminary injunction factor, Canadian National cites as irreparable harm its inability to use a property right it purchased and its deprivation of Twin Rivers’ goodwill. CN PreTrial Mem. at 14. Canadian National argues that the First Circuit has recognized loss of private property rights and harm to goodwill as an irreparable harm. CN Supplemental Mem. at 4; CN Postr-Hr’g Mem. at 10.
Canadian National says that property rights “by their nature, are inherently unique, as there are no alternatives for Canadian National to provide the competitive rail service that the rights were meant to secure.... ” CN Supplemental Mem. at 5. It asserts that it could not be made whole or compensated for the loss of its property rights by a monetary recovery at the conclusion of the case. Id. Canadian National argues similarly that it could not be financially compensated for the good will that will be lost from its relationship with Twin Rivers and from “those industries that ship freight to or receive freight from the Twin Rivers Mill.” Id. In support, Canadian National cites cases from the First and Seventh Circuits, the Eastern District of Washington, and the District of Maine.
Canadian National dismisses as short-term the “cross dock” or “transloading” work-around that Twin Rivers and Canadian National have instituted whereby Twin Rivers trucks paper from Madawaska to Edmundston, New Brunswick, where it is loaded onto a Canadian National train. According to Canadian National, this work-around “is a temporary remedy to counter monopoly pricing; it is not a desirable device standing on its own merits. It is a costly alternative ... that will not work over an extended time period.” CN Pre-Trial Mem. at 15.
Canadian National further regards MMA’s “precarious financial condition” as a potential irreparable harm. CN Prelim. Inj. Mot. at 22; CN Supplemental Mem. at 7. In Canadian National’s view, MMA’s “dire financial straits” make questionable the value of any monetary judgment. CN Pre-Trial Mem. at 16; CN Supplemental Mem. at 7. Canadian National cites First Circuit law (itself citing Seventh Circuit law), noting that potential insolvency of a party may make any legal remedy inadequate. CN Supplemental Mem. at 7 (quoting Teradyne, Inc. v. Mostek Corp., 797 F.2d 43, 52 (1st Cir.1986) (citing Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir.1984))).
3.Balance of Harms
Turning to the third factor — balancing of the respective harms — Canadian National claims an injunction will not result in any “legally-cognizable harm” to MMA, noting that MMA would remain free to run its own trains along the Subject Trackage and to compete with Canadian National for Twin Rivers’ business. CN Prelim. Inj. Mot. at 23. Protection from competition, Canadian National observes, is not an outcome promoted by law. Id.; CN PostHr’g Mem. at 10.
4.Public Policy
Finally, as to the fourth factor, Canadian National perceives public harm only if its motion is denied. Canadian National says that what is at stake is “the very survival of the paper industry in Madawaska, Maine ... along with the jobs of 650 employees and those of numerous local vendors and Suppliers.” CN Pre-Trial Mem. at 16. Canadian National emphasizes the economic importance of the mill to the surrounding area, and the “ripple effects” the mill’s closure would have. CN Prelim. Inj. Mot. at 23-24. As proof, Canadian national recounts the hundreds of mill employees, and the billion dollars that mill employees and its vendors allegedly spend in the region. Id. at 24. Canadian National argues that MMA’s position seeks to inhibit competition — a principle “which is decidedly contrary to the public interest.” Id.; CN Post-Hr’g Mem. at 10
5.The Arbitration Clause
Canadian National says that the arbitration clause “applies only, by its terms to disputes under the TRÁ, and not to disputes under the Easement Deed.” CN Pre-Trial Mem. at 7; CN Opp’n to Arbitration at 6. Canadian National views MMA’s argument as “dismissing the Easement Deed in its entirety as a meaningless and vestigial appendage.” CN Pre-Trial Mem. at 7. According to Canadian National, the First Circuit recognized the Easement as a separate agreement in Howard when it explained “in a third agreement, BAR granted Waterloo a non-exclusive freight easement, under which Waterloo could also operate its trains over the line.” Id. at 8.
Canadian National says that that the relief it seeks, reformation, is expressly beyond the jurisdiction of the arbitrators. CN Opp’n to Arbitration at 9. According to Canadian National, “[wjhile the TRA contains any number of other provisions that may be subject to arbitration, the parties have expressly agreed not to arbitrate a specified subset of claims — those seeking the kind of relief that Canadian National seeks in this case.” Id. at 10. Canadian National also challenges MMA’s assertion that, by limiting the arbitrator’s ability to reform the contract, the arbitration clause similarly limits the jurisdiction of this Court to reform it. Id. at 5-6. Canadian National says that “[tjhis limitation on the power of the arbitrators to make an award of reformation sheds no light on whether a different tribunal — such as this Court — has the power to grant that remedy.” CN Pre-Trial Mem. at 9-10. Citing First Circuit law that “[a] party can be deemed to have waived a right ... only if the waiver represents a knowing and intentional relinquishment of that right,” Canadian National says that the arbitration clause “sheds no light whatsoever on whether any purported or alleged waiver was knowing, or intentional, or purposeful.” Id. at 10-11; CN Opp’n to Arbitration at 11-12. Canadian National rejects MMA’s assertion that consideration of the motion for preliminary injunction might interfere with the work of the arbitrators under the TRA since the First Circuit has already conclusively determined the matter. CN Pre-Trial Mem. at 13.
Finally, Canadian National says that even if the Court concludes that its claims are arbitrable, “that does not bar the Court from proceeding on Canadian National’s motion for preliminary injunction.” CN Opp’n to Arbitration at 12. Quoting First Circuit authority, Canadian National says that “a district court can grant injunctive relief in an arbitrable dispute pending arbitration, provided the prerequisites for injunctive relief are satisfied.” Id.
C. Twin Rivers
Twin Rivers’ joins Canadian National’s briefs, but adds that it faces an irreparable harm “separate and distinct from the harm that Canadian National will suffer from MMA’s interference with Canadian National’s property rights.” TR Mem. in Support at 2. Twin Rivers says that it “is most vulnerable among the parties.” TR Pre-Trial Mem. at 2. Accordingly, it rejects any assertion by MMA that the Court should not consider irreparable harm that might befall Twin Rivers. Id. at 2. For support, Twin Rivers points to a Southern District of California case, San Diego Unified Port District v. Gianturco, 457 F.Supp. 283 (S.D.Cal.1978), in which the Court considered the potential irreparable harm to the intervenors when granting a preliminary injunction.
Twin Rivers explains that, because of its geographic location, it is “particularly reliant upon rail transportation, and therefore uniquely vulnerable to poor rail service and actual or threatened interruptions of rail service.” TR Pre-Trial Mem. at 3. It says that its potential harm extends beyond monetary damages and that absent an injunction, it faces the loss of its existing customer relationships and the ability to compete for new business. Id. at 4. Pointing to its interrogatory responses, Twin Rivers says that the Rule 11 rate that MMA quoted is “too costly for the Mill to sustain” and will also negatively impact “its relations with its customers due to the increased time to transport, which forces the Mill to carry more inventory and eats into its liquidity.” Id. at 5.
As regards the transloading operations, Twin Rivers characterizes them as “temporary, stop-gap measures ... [that] are not sustainable and ... continue to impose substantial irreparable harm on Twin Rivers.” Id. at 5-6. By way of example, Twin Rivers cites the increased infrastructure costs and labor costs, the reduced quality and timeliness of its products, the possible closure of the Edmundston bridge due to Homeland Security threats, and the likely shortage of trucks as the economic conditions improve. Id. at 6.
Twin Rivers contends the balance of harms and public policy favor the issuance of an injunction. In support, it quotes an affidavit by Donald Chasse, the Chairperson of the Board of Selectmen for the town of Madawaska, who asserts that “anything that threatens the economic viability of continuing operation of the Mill will directly threaten Madawaska’s tax base and economy and, by extension, the economy of the entire region.” Id. at 7. Mr. Chasse explained that a reduction in mill operations could threaten the livelihood of hundreds or thousands of people and a cessation in mill operations would be “nothing short of devastating to the Town of Madawaska.” Id.
D. MMA’s Position on Preliminary Injunction
MMA begins by disclaiming the earlier briefs. According to MMA, “[s]ince CN filed its Emergency Motion for Temporary Restraining Order ... the facts on the ground (and CN’s corresponding arguments) have altered so substantially that CN’s original motion scarcely even makes sense anymore.” MMA Pre-Trial Mem. at 1. MMA notes that the “imminent” harm that Canadian National and Twin Rivers foretold has not occurred and that Twin Rivers has since begun the trans-loading operation with Canadian National. Id. MMA rejects Canadian National’s view of the status quo, asserting that “[n]ot in 85 years has a CN train rolled over MMA’s tracks. Not once has the STB or any Court stated that CN would have physical access to TR. Not once has the STB or any Court ruled on milepost 0.0, or stricken Article 2(d)’s express prohibition on switching.” Id. at 1-2.
1. Success on the Merits
Turning to the likelihood of success, MMA points to the text of the JSA, the Easement, and the TRA, and the interpretation of those agreements by MMA’s witnesses, Fred Yocum, Bob Grindrod and Mark Rosner. MMA Post-Hr’g Mem. at 1-2. First, MMA says that the Easement expressly limits Canadian National to track east of Milepost 0.0. MMA PreTrial Mem. at 5. MMA highlights the Easement language stating that Canadian National’s track rights extend over a “portion of the line of railroad known as the Van Burén Branch of the Bangor and Aroostook Railroad ... extending from a point of connection with the Main Line in Madawaska (Milepost 264.13 / Milepost V 0.0), and running ... to Van Burén (Milepost V 24.1)....” Def.’s Prelim. Inj. Opp’n at 8-9. According to MMA, the Easement’s specific inclusion of the Van Burén Branch, and implicit exclusion of the Madawaska subdivision — the portion connecting the mill to the Van Burén Branch— requires the conclusion that the Easement does not provide for direct access to the mill. Id. at 9. Also MMA argues that the Easement’s silence as to any “mill,” “sorting yard,” or “switching” supports its position. Id. In MMA’s estimation, this is a “gaping hole” if, as Canadian National asserts, the Easement was intended to give Canadian National direct access to the mill. Id.
MMA next points to the language in the TRA and concludes that, as with the Easement, the TRA limits Canadian National’s access to track east of Milepost 0.0. MMA Pre-Trial Mem. at 5 (citing Def.’s Prelim. Inj. Opp’n at 9-10). MMA observes that the TRA’s grant of rights is defined by explicit reference to Milepost 0.0. Def.’s Prelim. Inj. Opp’n at 10. According to MMA, the lack of any ambiguity in this description disallows consideration of extrinsic evidence and precludes rewriting the contract. Id.
Responding to Canadian National’s argument, MMA contends that Article 2(d) of the TRA expressly and comprehensively prohibits Canadian National from switching trains at the mill. MMA Pre-Trial Mem. at 5 (citingDef.’s Prelim. Inj. Opp’n at 10-12). In MMA’s view, the TRA’s silence elsewhere as to switching, when compared to the high level of detail given to other operating procedures, speaks volumes. Moreover, MMA regards Article 2(a) as consistent with Article 2(d)’s prohibition. MMA asserts that Article 2(a)’s grant of rights to Canadian National to “enter and exit the Subject Trackage ... for the receipt or delivery of local traffic from and to the [Twin Rivers] facility” does not speak to or imply Canadian National’s right to perform switching functions. Def.’s Prelim. Inj. Opp’n at 11. MMA construes the “receipt or delivery” language as merely “defin[ing] the nature of the traffic [Canadian National] may carry.” Id.
MMA next says that Canadian National is unable to prove the existence of a mutual mistake that would allow reformation of the Easement. MMA Pre-Trial Mem. at 5 (citing Def.’s Prelim. Inj. Opp’n at 12-15). Quoting Peerless Insurance Co. v. Carleton, 641 F.Supp.2d 48, 52 (D.Me. 2009), MMA says “[t]he unilateral understanding of one party does not provide the mutual agreement and mutual mistake required to support [ ] reformation [ ].” MMA Posty-Hr’g Mem. at 8 (brackets in MMA Post-Hr’g Mem.). It asserts that as evidenced by Mr. Yocum’s testimony the TRA “provided physical trackage rights by CN over the bridge and on the Van Burén subdivision to the end of that subdivision at milepost 0.0,” there was no mistake on BAR’s side. Id. (quoting Yo-cum Tr. 22:1-8). It argues additionally that “[n]ot only did CN fail to establish BAR’s mistake; it failed to establish its own intent.” Id. at 4 (emphasis in original). In so doing, it dismisses Mr. Tobin’s testimony, saying that it “lacked credibility. He knew little or nothing about Fraser, its operations, or the rights he had supposedly negotiated. His broad assertions of CN’s intent were backed by no details. And he oscillated — inexplicably—between saying he had intended to permit switching and saying CN didn’t need to switch.” Id. at 6.
MMA points to what it says is an explicit ban on switching, and says that, because Canadian National cannot provide service to the mill without switching, the conclusion must be that the parties did not intend physical access. Id. Similarly, MMA points to the absence of “any affirmative switching guidelines” as also disproving Canadian National’s claim that the parties intended physical access to the mill. Id. at 6-7.
MMA says that the evidence of mistake offered by Canadian National does not prove that the contracting parties meant to give physical access to Canadian National. Def.’s Prelim. Inj. Opp’n at 14. Rather, according to MMA, the parties’ intent was only to allow Canadian National commercial access to Twin Rivers — that is, to allow Canadian National the opportunity to contract directly with Twin Rivers without MMA’s interference. Id. Accordingly, the $5 million Canadian National paid to BAR was not consideration for 99 years of physical access through the Easement, but for 5 years of commercial access through the JSA. Id. Thus, in MMA’s view, the purpose of the Easement and TRA, viewed as a whole, was to allow Canadian National the right to the pick up traffic just outside the mill while retaining for MMA the exclusive right to switch and sort traffic at the mill and the adjacent sorting yard. Id. at 15. In support, MMA points to industry practice and to the physical limitations of the sorting yard, which MMA claims is large enough to accommodate only one railroad company safely. Id.
Finally, MMA rejects Canadian National’s assertion of res judicata. MMA says that Howard related to the powers of the Bankruptcy Court under 11 U.S.C. § 1170, and the First Circuit “did not examine the agreements in detail” but only referred to them for background. MMA Pre-Trial Mem. at 6.
2. Irreparable Harm
MMA declares there is a complete lack of evidence of irreparable harm. MMA Post-Hr’g Mem. at 7. MMA says that “[n]one testified about any harms to the Easement. None testified about any loss of goodwill,” and there was testimony that Twin Rivers’ transloading operation could be continued indefinitely. Id. MMA says that Twin Rivers’ “worries were minor: snow, cold, and the threat of a ‘Homeland Security alert’ [were all] threats that were equally likely (or preposterous) in both Madawaska and Edmundston.” Id. at 8. MMA urges the Court not to view the “gap” in Canadian National and Twin River’s hearing testimony as an indication that “CN has somehow exempted itself from the second prong of the preliminary injunction test. A showing of irreparable harm is an ‘essential prerequisite.’ ” Id.
In MMA’s estimation, “nothing in this case justifies the extraordinary relief [of] upending of the status quo, a declaration of new rights, and the complete exclusion of MMA....” Def.’s Prelim. Inj. Opp’n at 17-18. It argues that the trains have continued to run and MMA has continued to service Twin Rivers by way of the Rule 11 shipping rate that MMA quoted Twin Rivers. Id. at 18-19. Canadian National would be similarly free to quote its own Rule 11 rate to Twin Rivers. Def.’s Id. at 19. According to MMA, because the status quo ex ante remains available, a preliminary injunction is inappropriate. MMA Postr-Hr’g Mem. at 8.
MMA also rejects Canadian National’s argument that it is being deprived of its property rights. Def.’s Prelim. Inj. Opp’n at 19. According to MMA, Canadian National continues to have the right “to operate its trains over the Van Burén subdivision, from St. Leonard to milepost 0.0,” and is merely being prohibited from activities “beyond the limits of the Easement and TRA.” Id. at 19-20. Therefore, it says the cases cited by Canadian National to show that interference with property rights is an irreparable harm are inapposite. Id. at 20.
MMA rejects Canadian National’s claimed loss of customer goodwill. Regarding Canadian National’s relationship with Twin Rivers, MMA observes that “the instant dispute appears to have drawn [Canadian National] and [Twin Rivers] even closer: they have a joint enemy in MMA.” Id. at 21. MMA goes on to distinguish Canadian National’s relationship with Twin Rivers from those cases cited by Canadian National arguably showing that loss of goodwill amounts to an irreparable harm since unlike the facts in those cases, Canadian National’s relationship with Twin Rivers remains secure. Id. at 22.
MMA states that reports of its “shaky” finances are false. Id. at 23. To that point, MMA emphasizes that it is “about to receive a $20.1 million cash infusion from the state of Maine.” Id. at 23-24.
Finally, MMA asserts that Canadian National is improperly basing its irreparable harm argument on putative harm to Twin Rivers. Id. at 24; MMA Postr-Hr’g Mem. at 9. Citing First Circuit authority, MMA says that, “[a]s a matter of standing, CN may seek relief only for harms that it itself has suffered.” MMA Post-Hr’g Mem. at 9. Thus, “[bjecuase CN is itself suffering no irreparable harm, it lacks standing to seek this relief.” Id.
3. Balance of Harms
According to MMA, Canadian National and Twin Rivers have prospered despite the lack of direct access, “CN carries 100% of TR’s rail traffic; TR is shipping materials more cheaply than ever.” Id. MMA says that, in contrast, an injunction would “harm MMA considerably, cementing in place the job losses (31 Mainers to date) and revenue losses ($5 million out of $32 million) that the transloading diversion has already precipitated. It would also create an operational nightmare.” Id. (internal citation omitted).
MMA estimates that Canadian National is as much as 200 times larger than it is, and says that this disparity tilts the scale strongly in MMA’s favor. Def.’s Prelim. Inj. Opp’n at 25. MMA calculates that, should Canadian National prevail, MMA will lose the entirety of Twin Rivers’ business, which amounts to 10% of its total annual revenue. Id. MMA says that, in contrast, “a denial of any injunction ... would do almost nothing” to Canadian National. Id. at 26.
4. Public Policy
MMA argues that “[ojusting [it] from its own track is not in the public interest.” MMA Post-Hr’g Mem. at 10. It asserts that the public also has an interest in MMA’s financial wellbeing, and says that an injunction would further jeopardize competition for rail traffic. Id.
III. DISCUSSION
A. Arbitration
MMA cites significant case law proving Maine’s “broad presumption in favor of arbitration,” and explaining that under 9 U.S.C. § 2, “an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable.” MMA Arbitration Mot. at 2-3 (quoting Barrett v. McDonald Invs., Inc., 2005 ME 43, ¶ 15, 870 A.2d 146, 149). However, these policy arguments become relevant only when an arbitration clause is applicable. The Court must first determine whether the parties’ dispute is covered by an arbitration clause.
At its core, MMA’s motion for arbitration presents a question of contract interpretation, requiring the Court to consider whether Article 20 of the TRA — the arbitration provision — is incorporated by reference into the Easement. See Barrett, 2005 ME 43, ¶17, 870 A.2d at 150 (“In interpreting the language of an arbitration agreement to determine substantive arbitrability, ... we apply general principles of contract interpretation.”). Both Canadian National and MMA have staked out positions on the furthermost boundaries of this issue: Canadian National asserts that the TRA is not in any respect incorporated by reference by the Easement (rather, it is only referred to), and MMA asserts that the TRA is incorporated in whole. The legal reality lies somewhere in between. The TRA is incorporated by reference into the Easement. The crucial determination is how much.
A brief review of contract law is in order. “[T]he paramount principle in the construction of contracts is to give effect to the intention of the parties as gathered from the language of the agreement viewed in light of all the circumstances under which it was made.” SC Testing Tech., Inc. v. Dep’t of Envtl. Prot., 688 A.2d 421, 424 (Me.1996) (quoting Lynch v. Ouellette, 670 A.2d 948, 949 (Me.1996)). “An interpretation that would render any particular provision in the contract meaningless should be avoided.” Crowe v. Bolduc, 334 F.3d 124, 135 (1st Cir.2003) (quoting McCarthy v. U.S.I. Corp., 678 A.2d 48, 52 (Me.1996)). Furthermore, it is horn-book law that contracting parties may incorporate additional terms by reference to a separate document, in whole or in part. See 11 Richard A. Lord, Williston on Contracts § 30:25 (4th ed. 2010) (Williston). “Where a writing refers to another document, that other document, or the portion to which reference is made, becomes constructively a part of the writing, and in that respect the two form a single instrument.” Id. See, e.g., SC Testing Tech., Inc., 688 A.2d at 424 (1996) (affirming a lower court’s ruling that a contract incorporated by reference those parts of a Request for Proposal that did not conflict ■with a rider to the contract).
The relevant portion of the Easement grants Canadian National:
A perpetual, non-exclusive EASEMENT for the use and benefit of Grantee, its successors and assigns, for the uses and purposes defined and described in that certain Trackage Rights Agreement dated March 14, 2001 by and between Grantor and Canadian National Railway Company (“CN”) (the “Trackage Rights Agreement”), over, upon and across the premises described in Exhibit A attached hereto and Incorporated herein by reference (the “Easement Area”), situated in the County of Aroostook, State of Maine.
Grantee, for itself, its licensees, successors and assigns, shall have the right to make every use of the Easement Area for Grantee’s purposes in accordance with the terms and provisions of the Trackage Rights Agreement. Grantee shall have the right to assign the operating rights hereunder to CN or any subsidiary of CN, to operate over the Easement Area in accordance with the Trackage Rights Agreement.
Easement at 1. Article 20, subsection (a) of the TRA, which MMA asserts is incorporated via the Easement’s reference to the TRA, provides:
Any irreconcilable dispute between the parties with respect to this Agreement shall be resolved by submitting it to arbitration pursuant to the provisions of this Article. The decision of the arbitrators shall be final and conclusive upon the parties hereto.
TRA at 15.
By its plain language, the Easement’s reference to the TRA is limited, defining the scope of the “uses and purposes” for which Canadian National could put the easement. The Easement did not incorporate the entirety of the TRA, only the portion delineating what activities were permissible under the Easement; the Court concludes that at most these include those provisions encompassed by the TRA’s Article 1 (Grant of Trackage Rights), Article 2 (Use of Subject Track-age), Article 3 (Restrictions on Use), and Article 4 (Miscellaneous Special Provisions). Limited incorporation is a well-settled principle of contract law. See Am. Lease Ins. Agency Corp. v. Balboa Capital Corp., 579 F.3d 34, 41 (1st Cir.2009) (quoting Guerini Stone Co. v. P.J. Carlin Constr. Co., 240 U.S. 264, 277, 36 S.Ct. 300, 60 L.Ed. 636 (1916), for the proposition that “[t]he well settled rule is that ‘a reference by the contracting parties to an extraneous writing for a particular purpose makes it a part of their agreement only for the purpose specified’ ”); Williston § 30:25 (“[Wjhere incorporated matter is referred to for a specific purpose only, it becomes a part of the contract for such purpose only, and should be treated as irrelevant for all other purposes.”). Thus, in SC Testing Technology, the Maine Supreme Judicial Court affirmed a lower court’s ruling that a contract incorporated by reference only those parts of a Request for Proposal that did not conflict with a rider to the contract. SC Testing Technologies, Inc. (SCI) had previously sued the Department of Environmental Protection (DEP) for contract damages stemming from Congressional repeal of a vehicle emissions testing regime that SCI had run under a contract with the DEP. SC Testing Tech., Inc., 688 A.2d at 422-23. The DEP argued, and the trial court agreed, that section 5.N of a Request for Proposal submitted by SCI placed the risk of Congressional repeal on SCI, and that this section had been incorporated by reference by the contract’s Rider A. Id. at 424. The Maine Supreme Judicial Court agreed, stating:
We agree with the trial court that the conflicts clause contained in Rider A expresses a dear intention on the part of SCI and the DEP to incorporate into their agreement those provisions of the amended RFP that were not addressed in Rider A and that did not conflict with it. Otherwise, the parties’ reference to the amended RFP in the conflicts clause would be meaningless. In construing a contract, we should avoid an interpretation that renders meaningless any particular provision in the contract.
Id. (emphasis added).
Of course, even if Article 20 is not incorporated into the Easement, if armed with sufficiently broad language, it could nonetheless mandate arbitration in disputes falling under the Easement. However, Article 20’s language shows this is not the case. The Easement and the TRA are distinct agreements with different purposes and terms and executed separately. See Yocum Tr. 40:10^11:24 (“They’re different agreements.... They’re different details.”). Article 20’s explicit reference to “dispute between the parties with respect to this Agreement” eliminates its application to disputes falling under other agreements, including the Easement.
Having concluded that the arbitration clause is inapplicable to disputes under the Easement, the Court does not reach whether the relief requested by Canadian National is outside the arbitrators’ jurisdiction.
B. Preliminary Injunction Standard
A motion for preliminary injunction is assessed in light of the familiar four-factors:
(1) the likelihood of success on the merits; (2) the potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court’s ruling on the public interest.
Iantosca v. Step Plan Servs., Inc., 604 F.3d 24, 29 (1st Cir.2010); Esso Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir.2006); Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir.1996). The burden on the moving party “is a heavy one: Because a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” L.L. Bean, Inc. v. Bank of Am., 630 F.Supp.2d 83, 86 (D.Me.2009) (internal quotation marks omitted). Both parties— moving and opposing — must “present evidence that goes beyond the unverified allegations of the pleadings.” Kelly Servs., Inc. v. Greene, 535 F.Supp.2d 180, 182 n. 1 (D.Me.2008) (internal quotations and brackets omitted).
C. Likelihood of Success
“The sine qua non of [the] four-part [preliminary injunction] inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.” Esso Standard Oil Co., 445 F.3d at 18; accord ANSYS, Inc. v. Computational Dynamics N. Am., Ltd., 595 F.3d 75, 78 (1st Cir.2010) (“The first factor, likelihood of success, is usually given particularly heavy weight.”). In assessing this factor, the Court considers, first, the likelihood of Canadian National showing by clear and convincing evidence that there was a mutual mistake such that the Easement should be reformed to reflect the parties’ alleged intent of granting direct access to the mill. Second, the Court considers whether Canadian National is likely to prove that access to the subject trackage would allow it to service the mill, either because switching is not required to serve the mill or because switching is allowed under the contract.
1. Access to the Subject Trackage: The Preclusive Effect of the First Circuit’s Ruling
Canadian National asserts that, by application of the doctrine of claim preclusion, the First Circuit’s holding in Howard v. Surface Transportation Board — a case involving Canadian National and MMA’s predecessor, BAR — requires this Court to extend the easement to the Twin Rivers mill. Specifically, Canadian National highlights the First Circuit’s statements that:
The Madawaska line runs from the Fraser paper mill in Madawaska, Maine, to an interchange with a CN line at St. Leonard, New Brunswick, Canada.
The parties also entered into a Trackage Rights Agreement. Under this agreement, CNR acquired limited local track-age rights which allowed it to run its own trains over the Madawaska line to the Fraser paper mill. Finally, in a third agreement BAR granted Waterloo a nonexclusive freight easement, under which Waterloo could also operate its trains over the line.
CN Pre-Trial Mem. at 4 (quoting Howard, 389 F.3d at 261-62) (emphasis added). Canadian National lists the criteria necessary for invocation of the claim preclusion do