North Coast Rail Authority may modify EIR to blunt lawsuits over freight service
Published: Tuesday, April 9, 2013 at 4:46 p.m.
Last Modified: Tuesday, April 9, 2013 at 4:46 p.m.
The North Coast Railroad Authority is hoping to short-circuit a pair of environmental lawsuits by retroactively saying the effort to restore freight rail service in the region was not subject to state law in the first place.
The agency's board will consider a motion today that would undo key portions of a 2011 resolution that finalized a $3 million, taxpayer-funded environmental impact report, prepared under the requirements of the California Environmental Quality Act. The resolution wouldn't disavow the EIR itself, agency Executive Director Mitch Stogner said, but would instead make a technical change to remove any mention of the resumption of freight rail traffic along the North Coast as a "project" as defined in the law.
The agency has long argued that federal law pre-empts state law in railroad operation and therefore the state courts have no authority to block any activity on the tracks. By undoing the 2011 resolution, officials hope to remove any hint that NCRA had ever agreed to be bound by state law.
"If that's the hat on which you're going to hang your lawsuit," Stogner said, "we're just going to remove the hat."
The 24-year-old agency is trying to restore freight traffic along a 316-mile length of tracks from southern Napa County into Humboldt County. The first segment, 142 miles of track that runs as far north as Willits, has cost the state about $60 million, with still more work left to do.
Although limited rail service resumed between Napa and Windsor two years ago, two environmental groups have sued, saying the EIR was flawed and should be thrown out. Friends of the Eel River and Californians for Alternatives to Toxics argue that the environmental report should have studied the whole 316 miles rather than stopping at Willits, less than halfway.
They also say the EIR failed to look at a number of important issues, including toxic substances such as lead, dioxin, and creosote that might be released by the extensive repair work on the century-old tracks.
Patty Clary, executive director of CATS, seemed taken aback by the agency's proposed move to change its 2011 resolution, calling it "most unusual" and saying it was yet another matter that would have to be resolved by a court.
"It shows some kind of desperation on their part," she said.
2 years of lawsuits
Rail agency officials say the 2011 resolution was a good faith mistake, caused in part because of language included by an outside consultant that prepared the EIR. General counsel Christopher Neary said the agency has always maintained that it had all the permission from federal authorities it needed to resume train service in the summer of 2011.
The agency has had difficulty making that case in court, however, and the lawsuits have dragged on for nearly two years. In the latest ruling, a judge in Marin County agreed that federal law pre-empts state law in this matter, but said the agency had gone so far in subjecting itself to state law that it couldn't back out now and the lawsuits should proceed.
Both sides say it's not clear whether the retroactive change might alter the court's thinking. A trial is set for May 10, but Neary said that he would ask the court to dismiss the case before that, assuming the board makes the change on Wednesday.
"Even if we had the worst EIR in history, it doesn't have any impact on whether or not the railroad operates," he said.
The agency's action comes in response to a request from the Northwestern Pacific Railroad Co., the contractor that is operating the trains on the NCRA tracks.
Northwestern Pacific's general counsel, Douglas Bosco, wrote NCRA in March, saying it had unnecessarily exposed the company to expensive lawsuits and asking the agency to make clear that it had not intended to subject itself to state law. The recommendations of the environmental report did produce useful information, which has been written into the contract with NCRA, he said, but it did open both agencies to unnecessary lawsuits.
Bosco, who is an investor in Sonoma Media Investments which owns The Press Democrat, said Monday it had been a legal mistake for the NCRA ever to open the EIR process, though it appears the agency did so in good faith as a way to placate critics of the freight service.
No plans along Eel River
Environmentalists have long questioned the operations and motives of the railroad, worrying that its goal may be to harvest and transport natural resources from the sensitive northern coastal forests and rivers, including redwood timber and gravel, at the expense of endangered species and scenic landscapes.
Both NCRA and NWPCo insist that their immediate ambitions stop at Willits and are limited to transporting conventional cargo, such as building supplies, agricultural feed, bulk wine and municipal waste from area cities. They argue the railroad is an efficient way to remove at least some truck traffic from the North Bay's congested road system.
While NCRA owns the tracks north of Willits, Stogner said, it would be prohibitively expensive to restore freight traffic through the area, particularly the environmentally sensitive Eel River Canyon. If such a project ever happens, he said, it would be decades away.
You can reach Staff Writer Sean Scully at 521-5313 or email@example.com.