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Lawsuit over possible freight rail operations along Eel River headed to Supreme Court

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A six-year legal dispute, which has wide implications for freight rail on the North Coast and the future of California’s high-speed rail project, is headed for a potentially decisive hearing before the state’s Supreme Court this week.

Friends of the Eel River and another environmental group sued the North Coast Railroad Authority, seeking to force the public agency to study the environmental impacts of running freight along a 316-mile rail line that traverses Sonoma, Mendocino and Humboldt counties and runs through the Eel River canyon.

The central legal question is whether public rail agencies are subject to the state’s bedrock environmental law or operate solely under federal jurisdiction. California’s Supreme Court justices are scheduled to hear oral arguments in the case on Wednesday.

In an unusual twist, opponents of the $64 billion high-speed rail project, including some Central Valley farmers, have joined environmentalists in the Eel River case, contending that rail operators — in their case the state’s high-speed rail authority — are subject to the California Environmental Quality Act, known as CEQA.

A ruling that freight operations are not subject to CEQA is likely to affect development of the state’s high-speed rail line.

The California High-Speed Rail Authority will have a “lot more leeway as to where they want to put the rail line and they won’t necessarily have to mitigate for a lot of impacts they don’t want to mitigate,” said Ethan Elkind, director of the Climate Program at UC Berkeley and author of “Railtown,” a book on the history of the modern Los Angeles Metro Rail system. “Basically, it would speed up future segments of high-speed rail.”

The North Coast Railroad Authority was formed by the state Legislature in 1989 to ensure continued rail service along the Northwestern Pacific rail line.

Friends of the Eel River and Arcata-based Californians for Alternatives to Toxics contend that if the railroad agency seeks to run freight north of Willits, it must do an environmental impact report under CEQA.

“Our position is that if the state owns your railroad, if we own your rail line and if we are paying to build the project, then yeah, we get to say something,” said Scott Greacen, executive director of Friends of the Eel River.

In 2011, NCRA prepared an environmental impact report, at a cost of $3 million in state funds, for a section of rail spanning American Canyon in Napa County to Willits. Twice-weekly freight service currently operates along a 62-mile section of track from Schellville, south of Sonoma, to Windsor.

The environmental groups contend the rail agency should have studied impacts to the entire 316-mile line. The northern stretch running through the Eel River canyon has long been abandoned because of the expense of maintaining the line and operating trains in a region prone to landslides, seismic activity and other natural hazards.

Mitch Stogner, NCRA’s executive director, said last week “there are presently no plans” to rebuild the rail line north of Willits to accommodate freight service. He previously estimated the cost for doing so at $1 billion.

“We have our hands completely full trying to repair the railroad from the interchange in Napa to Willits,” Stogner said.

NCRA maintains that interstate commerce along rail lines is the exclusive purview of the federal government, in particular, the Surface Transportation Board.

The agency made the same argument in a more recent dispute over the transport and storage of tankers filled with liquefied petroleum gasoline in Schellville, south of Sonoma. The Sonoma-Marin Area Rail Transit Authority, which owns that section of track and objected to the presence of hazardous materials, eventually resolved the matter. Among other things, Northwestern Pacific, the railroad operator, agreed to inform SMART of future shipments of gas tankers to the site.

Doug Bosco, a co-owner of Northwestern Pacific, is an investor in Sonoma Media Investments, which owns The Press Democrat.

NCRA has argued it completed an environmental impact report for the 142-mile American Canyon to Willits segment without it being necessary to do so, saying it was the result of bad advice from a consultant. The rail agency later sought to undo key portions of the 2011 resolution that finalized preparation of the document, in part to thwart lawsuits.

The agency was sued anyway. The two environmental groups involved in the Eel River case argue that the environmental report not only should have covered the entire rail line, but that the initial document failed to examine 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.

NCRA argues that hauling freight by rail is more environmentally friendly than by trucking it on roads. Northwestern Pacific mainly ships feed grains and building supplies to customers along the Highway 101 corridor.

A Marin County Superior Court judge and the 1st District appellate court sided with the rail agency, ruling that federal law regulating interstate railroads supersedes state law.

But the 3rd District appellate court ruled that the state agency building the bullet train from San Francisco to Los Angeles must comply with CEQA because it is financed by voter-approved bonds. The conflicting opinion paved the way for the Supreme Court review.

An unfavorable ruling for the rail agency could represent a major obstacle for any future expansion plans. The environmental groups behind the lawsuit, meanwhile, see the future of the sensitive Eel River watershed at stake.

Elkind, the Berkeley professor, said depending on the outcome, the rail agency might be required to do more cleanup of the railway and operate “in a more stringent way, environmentally-speaking.”

Farm Bureau groups in two Central Valley communities filed a “friends of the court” brief in support of the environmental groups, seeking to hold the California High-Speed Rail Authority accountable for construction and operation of the service. More than 119 miles of the system from Silicon Valley to the Central Valley has been under construction, with expected passenger service in 2025.

A spokeswoman for the state rail authority said the agency complied with CEQA and a related federal law known as the National Environmental Policy Act for the sections under construction, and that the agency is in the process of “environmentally clearing” the entire first phase route for high-speed rail from San Francisco to Los Angeles.

But Stuart Flashman, an Oakland attorney who is representing Kings County and several other plaintiffs in a related federal case currently before the 9th Circuit Court of Appeals, said the rail authority follows CEQA “as long as it’s convenient for us or until we get sued.”

Flashman raised the prospect that the federal and state courts could reach opposite conclusions on the main legal issues, leaving a question for the U.S. Supreme Court to settle and further delaying resolution of the dispute.

“You could end up with two contradictory rulings from two separate courts, and that’s exactly when the U.S. Supreme Court steps in and says we’re going to resolve this,” Flashman said.

You can reach Staff Writer Derek Moore at 707-521-5336 or derek.moore@pressdemocrat.com. On Twitter @deadlinederek.

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