California Coastal Commission joins Fort Bragg suit against Skunk Train owner
The city of Fort Bragg has gained a powerful ally in its 11-month-old lawsuit against Mendocino Railway, owner of the popular Skunk Train excursion line as well as a large chunk of vacant coastal property in the town.
The California Coastal Commission is joining the suit, seeking to ensure that future development of the coastal land, part of the former Georgia-Pacific Mill site, complies with local and state permitting requirements despite the railway’s claim its rail-related projects are exempt from such regulation.
Until now, the legal fight had pitted a city determined to maintain its land-use authority over the 210-acre piece of coastal bluff seen as integral to its future against the ambitious owner of the popular tourist railway — with a growing stake in commercial freight traffic and real estate.
The Coastal Commission’s involvement escalates the legal fight and lends Fort Bragg, a city of less than 7,000, a partner with nearly unmatched regulatory power in California.
The agency is responsible for regulating coastal development under the state’s landmark 1976 Coastal Act, which calls for balancing economic development with public access, preservation of sensitive coastal and marine habitats and biodiversity, among other values.
In court papers filed last week on behalf of the commission by California Attorney General Rob Bonta’s office, the state says the railroad needs coastal development permits to proceed with ongoing building renovations as well as much more extensive plans in the works for the former mill site property it acquired last year through eminent domain.
The commission notified the railway more than a month ago of violations and fines related to what it said were unpermitted land activities, including replacement or renovation of a roundhouse and two other structures. The railway disputes the nature and scale of the work.
In addition to an injunction that would prevent further development, the commission’s lawsuit is seeking civil penalties that could total tens of thousands of dollars or more, as well undetermined exemplary damages meant to deter future violations.
Perhaps more importantly, the commission, like the city, is asking to court to find “that the railway is not a public utility,” a status that Mendocino Railway has used to claim it is exempt from building and permitting regulations — and a status it used to obtain the former mill site property in the first place.
Mendocino Railway President Robert Pinoli said Monday that those trying to rein in the railroad just don’t understand that federal law supersedes state and local law, adding, “The Coastal Commission, along with a whole host of others, didn’t do well in their civics classes.”
“The railroad is in fact a public utility despite what some staff attorney puts in a letter,” he said.
The conflict has mounted over the past year, since the railway acquired the majority of the land left vacant by the Georgia-Pacific mill, which closed in 2002.
The railroad argues that federal law waives permitting requirements for projects related to Skunk Train operations, buildings and rail lines because of the railway’s utility status. It has recently filed a federal lawsuit against the city of Fort Bragg and the Coastal Commission seeking a declaration of its independence.
Pinoli has said repeatedly that the railway will obtain the permits it needs for any future development of housing, hotels, commercial or other structures. But he says everything done so far has been rail-related.
The commission, however, contends that current work, like the roundhouse and a storage shed, is broadly defined under the Coastal Act and under the land-use blueprint it requires of local governments, called a local coastal plan, that is certified by the state commission.
Moreover, both the city and state are challenging the railway’s claim of exemption as a public utility, given its primary use as a tourist attraction, particularly as the collapse of a tunnel 3.5 miles outside of town in 2013 has since blocked travel further east from Fort Bragg. Trains departing Willits on the Highway 101 corridor travel eight miles inland before turning around.
John Meyers, who owns property outside Willits that Mendocino Railway is trying to acquire, is similarly challenging the railroad’s status and was in trial over the matter in recent weeks.
The two cases appear to hinge on the same fundamental question: Is the Skunk Train a traditional utility with the same rights and preemptions from regulation as other utilities?
Among the evidence included in Meyers’ trial was an Aug. 12 letter from the California Public Utilities Commission to Mike Hart, president and chief executive officer of Sierra Railroad, owner of Mendocino Railway. It specifically said the railway “is not a public utility within the meaning of the California Constitution, the California Public Utilities Code, and the Commission’s orders.”
Meyers’ case is soon to be under consideration by a Mendocino County judge. But his attorney has filed a motion to reopen argument after he received another piece of evidence in the way of a much earlier, 2006 determination that Mendocino Railway does not qualify as an employer for the purposes of the federal Railroad Retirement Act or the Railroad Unemployment Act because of its provision of excursion services.
Pinoli said that the railway’s excursion rates and operations are no longer regulated by the public utilities commission and the federal Surface Transportation Board, which regulates railroad rates, mergers and rail line acquisitions, but its freight services and safety procedures are.
“The railroad is in fact a public utility despite what some staff attorney puts in a letter,” he said.
The city and the commission “are not going to succeed,” Pinoli said. “In fact, isn’t it funny that if we’re a railroad that isn’t a public utility then can somebody tell me why a few weeks ago we had nine CPUC inspectors out for a routine inspection? How are they going to regulate something that isn’t a public utility?”
You can reach Staff Writer Mary Callahan at 707-521-5249 or mary.callahan@pressdemocrat.com. On Twitter @MaryCallahanB.
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