North Coast Railroad Authority: We Don’t Have to Follow Your Laws

Hank Sims September 2, 2011

“NCRA, acting as the CEQA [California Environmental Quality Act] lead agency, has a duty pursuant to CEQA guidelines to neither approve nor carry out a project as proposed unless the significant environmental effects have been mitigated to an acceptable level, where possible.”

Executive Summary: Draft Environmental Impact Report, Russian River Division, Freight Rail Project,” North Coast Railroad Authority, Nov. 2009.










“State and local environmental requirements are preempted, because by their nature they interfere with interstate commerce.”

Notice of Removal,” North Coast Railroad Authority, filed in United States District Court, Northern California Division on Aug.19 2011.

Nothing the North Coast Railroad Authority does should come as a shock anymore. This, after all, is the state agency that for years ran around telling everyone fantastical and contradictory stories – often pulling facts straight out of thin air – in order to gain whatever momentary financial or political advantage it could. This is the agency that, behind closed doors, awarded a 100-year operating lease to a private party for the grand total of no dollars and zero cents – a giveaway of public assets, for all intents and purposes. The bid went to a former Congressman; the person the NCRA sent to negotiate on its behalf previously served as that Congressman’s aide.

It is far and away the most corrupt arm of government currently operating in Humboldt County, at any level. And it has a nearly unblemished 13-year record of failure to show for it.

It’s truly amazing that a body with such a deep history of incompetence and dishonesty can still find fresh outrages to perpetrate. This week, news emerged that the NCRA now maintains that it does not have to comply with California environmental law. This despite the fact that it has taken millions of dollars from the California Transportation Commission under the pretense that it needed those monies to comply with that law. This despite the fact that it is, in fact, a direct arm of the state of California itself!

To break this this down: On the one side you have the Friends of the Eel and Californians for Alternatives to Toxics alleging that the authority’s Environmental Impact Report (quoted above) is inadequate. On the other side, you have the authority and the aforementioned Congressman, Doug Bosco, alleging that the state’s environmental laws do not apply to them, and that the Environmental Impact Report it spent all that public money to prepare is meaningless, on the grounds that only the federal government may regulate interstate commerce.

(It’s worth noting this same Bosco currently serves as chair of the California Coastal Conservancy, believe it or not. It’s also worth remembering that the citizens of our great district booted him out of office after he was caught kiting checks all around Washington, D.C.)

Did I say that this was a “fresh” outrage? Not quite. The NCRA tried to pull the same stunt when it got sued by the city of Novato back in 2008. In that case, the Superior Court judge told the authority to get bent:

“NCRA argues strenuously that the petition for writ of mandate is preempted by the Interstate Commerce Commission Termination Act of 1995. Without conceding that point, the Court finds that NCRA is judiciously estopped from claiming federal preemption, based on NCRA’s repeated and consistent representations that this project is subject to the California Environmental Quality Act.”

But like The Little Engine That Could, the authority is now attempting another run up that same hill. Will they succeed? Who knows? The bigger question is whether the state legislature will ever take notice that their creature has gone rogue.

And locally we have to wonder whether the local Democratic machine – “environmentalists” all, and Assm. Wes Chesbro and his now-aide John Woolley first among them – has any qualms about the efforts of the ridiculous body they have so long championed to run roughshod over California’s most basic environmental regulations.

Times-Standard

July 20, 2011

At the request of Councilman Mike Newman, the Eureka City council heard a presentation from Sungnome Madrone on rail banking. Madrone asked the council to consider approving a resolution or letter to the North Coast Rail Authority in support of the concept.

Rail banking, Madrone said, is the best way to preserve a railroad right-of-way during long periods of disuse and can allow for trails or excursion trains on the rail ways until the railroad's return.

”This is truly to protect the rail,” Madrone said.

During public comment, several people disputed Madrone's take on the issue, insisting that rail banking would not be in the best interest of the North Coast. Pete Oringer, a member of the Rail and Port Infrastructure Task Force and the Timber Heritage Association, said no rail line of more than 40 miles that has been put into rail banking has ever been returned to use.

”Rail banking will effectively kill the rail line,” he said, adding that the railroad serves as an essential connection between an isolated county and the outside world, bringing great economic benefit.

After a number of members expressed interest in the issue, the council asked that the matter be brought back as an action item for further discussion.

Railbanking—What, Where, Why, When and How

www.railstotrails.org

In 1983, concerned by the rapid contraction of America’s rail network, the U.S. Congress amended the National Trails System Act to create the railbanking program. Railbanking is a method by which lines proposed for abandonment can be preserved for future rail use through interim conversion to trail use.

Railbanking can be requested by either a public agency or a qualified private organization at the time that the railroad files for abandonment with the Surface Transportation Board (STB), formerly the Interstate Commerce Commission. The railbanking request must be sent to the STB in Washington, D.C., and must at the very minimum include a Statement of Willingness To Assume Financial Responsibility. Since the abandoning railroad company must agree to negotiate a railbanking agreement, a copy of the request for railbanking must be served on the railroad at the same time it is sent to the STB.

A Public Use Condition (PUC) request is a separate request that is complementary to a request for railbanking. If a PUC request is made to the STB, the STB will place a restriction on the abandonment that prevents the railroad company from selling off or otherwise disposing of any property or trail-related structures, such as bridges or culverts, for a period of 180 days after the abandonment is authorized. This PUC gives the prospective trail manager some breathing room for preparing an offer to the railroad. (The PUC is also a good backup device should the railroad not agree to railbanking since the STB will issue a PUC regardless of whether the railroad agrees.)

There are several other important points regarding railbanking: 1. A railbanking request is not a contract and does not commit

the interested party to acquire any property or to accept any liability. It invites negotiation with the railroad company under the umbrella of railbanking. A party filing a “Statement of Willingness To Assume Financial Responsibility” is not accepting any financial responsibility. It is merely expressing an interest in possibly doing so.

National Headquarters

2. The tracks and ties on a railbanked line can be removed. However, bridges and trestles must remain in place, and no permanent structures can be built on the right-of-way.

3. Under railbanking, there will likely still be an actual sale of the property, and the railroad will likely still want compensation. Railbanking is not generally a method for obtaining a free trail.

4. Some railroad rights-of-way contain easements that revert back to adjacent landowners when an abandonment is consummated. However, if a line is railbanked, the corridor is treated as if it had not been abandoned. As a result, the integrity of the corridor is maintained, and any reversions that could break it up into small pieces are prevented.

5. A railbanked line is subject to possible future restoration of rail service. The abandoning railroad can apply to the STB to resume rail service on a railbanked corridor. The terms and conditions of a transfer back to rail service would be determined by the STB.

6. The boilerplate letter can only be filed on a rail line that is still under the authority of the STB. The STB has authority over the corridor until the railroad files a notice of consummation, which must be filed within one year of the abandonment decision (unless the railroad requests an extension). If no notice of consummation is filed by the railroad within one year, abandonment authorization lapses. Railbanking requests are due within the period specified in the applicable notice of abandonment. However, late-filed requests will be accepted for good cause so long as the STB retains authority to do so.

A more thorough discussion of railbanking and other legal issues related to rails-to-trails conversions can be found in Secrets of Successful Rail-Trails: An Acquisition and Organizing Manual for Converting Rails into Trails, available online at www.railstotrails.org.

On the back is a sample of a request for both a Public Use Condition and a Trail Use Condition created by the STB. The items in italics are to be completed by the prospective trail agency or group.

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Local demos tout railbanking idea to NCRA;

NCRA certifies EIR for southern end of line

Franklin Stover, Humboldt Beacon        06/24/2011

At its monthly meeting on Wednesday, June 8, the Humboldt County Democratic Central Committee passed a resolution urging the North Coast Railroad Authority (NCRA) to consider railbanking as a concept in what it calls an effort “to protect and preserve the railroad right-of-way for future use - if and when freight service can be restored to the line through the Eel River Canyon.” The ambitious democratic resolution that passed by 15 to 4 votes, calls for railbanking extending from Willits in Mendocino County to the tip end of the north jetty in Humboldt County where the Timber Heritage Association, a train restoration group is situated. This stretch of track is referred to the Eel River Corridor, beginning at mile post marker 139.5 north of Willits.

The NCRA has not conducted operations on the Eel River Corridor since Feb. 8, 1998. Federal Railroad Administration Emergency Order no. 21 was subsequently issued prohibiting freight operations until corrective actions could be addressed.

The democratic resolution calls for “interim trail use and railbanking under Section 8 of the National Trails System Act, 16 U.S.C. Section 1247 (d) and 49 C.F.R. Section 1152.29, and calls for approximately one-half of NCRA rail to be converted to trail for walking, jogging, horseback riding or bicycling. A high percentage of the rail is located in the Eel River Canyon, an area known for its remoteness, geologic instability and nearly complete lack of basic services.

Legally speaking, railbanking means “the acquisition of an interest in a rail right-of-way sufficient to ensure its preservation for future rail freight service,” according to the Federal Railroad Administration. In simpler terms, railbanking generally means removal of rail, or sometimes covering up of rail, to convert to other uses such as walking and riding trails. As a way to deal with abandoned train track and rededicate the rail bed for other uses, railbanking has met with some success in various parts of the country. While railbanking is an attractive concept to some, the subject is likely to touch off heated debates about property rights, transportation issues, tourism, and the economy, and many rail advocates concerned about the recession, feel that a viable rail line could assist in getting the economy back on its feet again and want to keep the rail option open. Rail advocates say that trains can run at a profit and can beat big rig transportation, giving the example that “one freight car removes four big rigs from Highway 101, and one gallon of diesel can move 1 ton of freight over 400 miles,” (from the NCRA website.)

The local democratic resolution was in part, inspired by the tireless work of Chris Weston of Phillipsville, founder of the Eel River Trails Association, a fairly new group on the railbanking scene that has picked up a lot of support in the last few months. Passionate about the subject, Weston has been active in gathering thousands of signatures in support of railbanking, has addressed the NCRA at board meetings and has gone before area city councils to spread the word. Weston himself, owns land along rail in Southern Humboldt and remarked that “railbanking is designed to have a huge benefit for the railroad in perpetuity.”

Weston went on to say, “What good is letting the basic infrastructure disappear over time into the river? If nothing else, a trail would staunch the current disintegration of the NCRA corridor and maintain it actively for future public use. What the NCRA is currently doing (nothing) only allows the corridor to melt away physically, due to the active geology of the area and puts easements at risk for being legally abandoned, something which at least a few of the adjacent landowners want, Weston said.

Weston added that his group, the Eel River Trails Association (ERTA) strongly supports existing private property rights but don't espouse privatization of public property or public right of way. “ERTA supports railbanking for the benefit of all of the public. We believe that public right-of-way should benefit all the people, not just a select few.”

Railbanking is designed to protect the existing railroad right-of-way for future rail use for a time in the future when it becomes economically feasible to do so. In other words, rail can be returned to its original state if it looks like freight or passenger service can be resumed. Advocates of railbanking or interim trail use see opportunities for watershed restoration of the Eel River Canyon and even job creation through economic development of the Eel River Corridor right-of-way.

But the NCRA has an interest in maintaining its rail lines, and since 2007, have invested $68 million in state and federal funds to repair the first 62 miles of the Northwestern Pacific (NWP) line from the national rail interchange in Lombard to Windsor in Sonoma County. Their EIR for the southern end of the line was just approved on Monday, June 20 in Healdsburg. Concerning the line from South Fork to Samoa, the NWP estimates it would cost close to $30 million to get it up and running.

A voting member of the Humboldt County Democratic Central Committee writing to the Humboldt Beacon expressed concern that passage of the Resolution could polarize the community on an issue needing bipartisan support. Preferring to be anonymous, the contact is a self-described advocate of trains and doesn't “trust the railbankers because their interests are so narrow...what irritates me the most is when they pitch railbanking as encouraging ecotourism. A train would encourage ecotourism.”

Another train advocate is Sid Berg of Eureka. As President of the Building and Construction Trades Council of Humboldt and Del Norte Counties, Berg said, “Common sense tells me that we need to put people back to WORK! The only resource we have that sets us apart from any other area in the state or county, is our bay. It is the only deep water port between San Francisco and North Bend/Coos Bay.

If we can re-establish the former existing railroad connection, the infrastructure can open up unlimited opportunities for manufacturing and shipping. Those good paying jobs will anchor the economy, providing ancillary jobs, including building construction, medical fields, service and tourism.”

”I hear a lot of talk about saving the railroad by abandoning the railroad, but as far as I am concerned there are no facts to back it up,” Berg said. Berg implied that some people pushing hard for trails stand to gain a lot financially, particularly those involved in watershed restoration. Berg's concern is that Weston wants to “sell off” the assets of the NCRA in order to fund the trail through the Eel River Canyon. “Once those tracks come out and are sold to China for scrap, they will never come back,” Berg said.

On the NCRA, Weston wrote that, since it is a public organization, why shouldn't we use its assets for the public good? “There is not a single person employed in Humboldt due to the NCRA and hasn't been in years. However, with railbanking and interim trails, there would be new jobs created both near term and longer term. That is what the history of railbanking has shown throughout the U.S. We believe railbanking is the only logical direction for non-functioning railroads owned by the public that do not operate trains and have no plans to do so in certain corridors, like Willits to Humboldt Bay,” Weston said.

Chris Skow of Trains Unlimited in Portola, remarked that it won't make any difference if rails and ties are removed at this time, because, when funds become available to extend rail service north of Willits and into the Eel River Canyon, all of the rail and ties would have to be replaced.

”The ties are now useless and the rail will have a lot of defects in it. Some of the rail could be used again, but a lot of it will have to be replaced,” Skow said.

Skow even suggested the possibility of doing nothing. “A lot of the rail and ties are now covered with dirt, mud and rock slides and it might be less expensive just to leave all of it in place and build a trail on top of it that could be removed at a later date.”

”It has taken the railroad many years just to get the southern section open for rail traffic. With the policy of the US government feeling they need to make wars overseas, now up to 10 million a day, and spend our money rebuilding other countries, their seems to be little hope that the railroad will be rebuilt north of Willits anytime soon. At least not in my lifetime,” Skow said.

The next NCRA meeting will take place in Eureka on July 13. The agenda packet may be viewed at the NCRA website.

The future of train transport on the North Coast has been all but derailed for years and some feel that trails for non-motorized use in the Eel River Canyon is the best option

Please see The HUMBOLDT BAY TRAIL page for current information on the rail and trail project along the 101 corridor

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