“The North Coast Railroad Authority has been engaged in an epic courtroom battle with the City of Novato over whether NCRA is obligated to produce an environmental impact report on work to rehabilitate the rail line.”

More on NCRA lawsuit
Willits News 

By Mike A’Dair/TWN Staff Writer

Since last September, the North Coast Railroad Authority has been engaged in an epic courtroom battle with the City of Novato over whether NCRA is obligated to produce an environmental impact report on work to rehabilitate the rail line.

The agency also is challenging the legality of a September 28, 2007, lawsuit filed by Novato against NCRA.

According to NCRA, the lawsuit was filed more than 35 days after the rail authority had approved the project. Although the rail line has stated the project was approved by the NCRA board of directors on August 16, 2006, and by the California Transportation Commission in March 2007, when $1.5 million was released to the NCRA to begin repairs on the rail line, Marin County Superior Court Judge James Ritchie has ruled board approval does not constitute final approval of the project.

Instead, Ritchie ruled a project is approved by an administrative body when that body has negotiated and signed a contract for the work to be done. Under that interpretation, Novato’s September 28, 2007, lawsuit did not exceed the statute of limitations.

Novato initially sued the NCRA arguing that in going forward with efforts to upgrade the southern end of the rail line without producing an EIR, it violated California’s Environmental Quality Act.

The petition filed by the City of Novato explains why Novato brought the lawsuit:

“Since the record of proceedings contain a fair argument that upgrading of the tracks to Class 3 standards increases the allowable train speed more than four times that which is presently allowed or possible, the capacity of the tracks to handle more trains has been significantly increased (Northwestern Pacific Railroad Company’s president calculates the NWP, upgraded to Class 3 standards, has the capacity to accommodate 16 trains at any one time) [the foregoing parenthetical statement was contained in the City of Novato’s request for a writ] thereby significantly increasing the noise, dust and safety problems, among others, that the city and the persons on whose behalf this writ is brought will experience.”

NCRA has argued that, under the law, it is exempt from having to produce an EIR for the project. NCRA attorney Christopher Neary cited several sections in Article 19 of state environmental quality act that, in his view, specifically exempts NCRA from having to write an EIR for the rehabilitation project the rail authority has in view.

Section 15301, for example, exempts projects that involve “the operation, repair, maintenance, permitting, leasing, licensing of existing public or private structures, facilities involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination.”

Neary also cited Section 15302, which exempts projects focused on “replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced.”

Neary argues that Section 1503 of CEQA offers an exemption for “the construction and location of limited numbers of new, small facilities or structures, installation of small new equipment and facilities in small structures and the and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure.”

He also noted CEQA provides an exemption for “construction, or placement of minor structures accessory to existing commercial, industrial or institutional facilities.”

There are other exemptions as well that Neary asserts applies to NCRA’s efforts to rehabilitate its railroad and renders it exempt EIR provisions.

In spite of considering itself exempt, according to Neary and to Doug Bosco, lead attorney for rail operator Northwestern Pacific Company (NWPCo), the rail agency has paid $2.3 million to have an EIR written.

According to Neary, the document is “virtually done now.”

In a brief filed in opposition to the request for the writ, Bosco wrote the court: “The lease [between NCRA and NWPCo] is a project for CEQA purposes. The reasons are straightforward and logical. The NCRA determined to delegate the operation of the freight trains to an outside operator. Although the agency put out a general Request for Proposals (RFP), it expected each applicant to explain how it would deploy the rail line operation.

“Because each of the five firms that responded to the RFP had a different business model for use on the rail line, it was not possible to determine the parameters of the project prior to selection of an operator and negotiation of the lease.

“In compliance with many CEQA cases, NCRA specifically conditioned the lease on NCRA having complied with CEQA as it applies to this transaction.

“As lead agency, NCRA then determined that a full EIR was called for and commissioned such a study for $2.3 million. The EIR is now in progress. NCRA will not permit the operation of freight traffic until the EIR is certified. The courts have held that subsequent compliance is the actual project approval, even though a valid contract was entered into prior to such approval.”

Ritchie issued a preliminary injunction against NCRA on February 6. That injunction allowed work on fixing signals and stabilizing river banks to go forward, but halted all additional work on fixing tracks until the EIR is completed and certified. But his ruling was not a final ruling on the merits of the case, it just held things in a kind of status quo until the case could be decided in court.

On February 28, NCRA filed a motion to strike in Marin County Superior Court, challenging the court’s ability to hear the case. The agency argued that since the statute of limitations had been exceeded, the request was illegal and the court therefore had no jurisdiction to hear the case.

On April 1, the court denied NCRA’s motion.

On April 28, NCRA appealed the Marin County court’s decision to the State Appellate Court.

On May 15, the appellate court summarily rejected the motion to strike. But according to Neary, the court gave him a signal that while it wasn’t interested in tossing out a superior court’s rejection of a motion to strike, it wanted to hear the actual case.

On June 17, NCRA appealed Judge Ritchie’s February 6 ruling to the California Court of Appeals.

In a recent conversation with The Willits News, Neary characterized the battle so far: “In law, some cases are easy. They are sort of a one-shot deal. Others cases are very heavily litigated. This case is of the latter variety. We knew from the very first that this would be a battle to the death.”

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