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PS: Upfront: Trains have Novato steaming
Sunday 24 Feb 2008, 06:59
Filed under: NCRA, Railroad, SMART

City trying to stop North Coast Railroad Authority in its tracksby Peter Seidman

Parties in the lawsuit aimed at forcing the North Coast Railroad Authority (NCRA) to conduct additional environmental assessments related to the agency’s plans to run freight trains through Novato will be in court March 11 for a preliminary round of arguments. The main event starts March 18.

The court dates are the result of consternation in Novato that began gathering steam after the rail agency increased the number of freight trains it expects will run on its tracks. That steam was evident last July, when rail agency representatives came to Novato to make a case for their operation and try to assure local residents that living with freight trains wouldn’t be all bad. It was a tough sell.

NCRA wanted to begin freight service as early as this spring on track that has been dormant since 1998, except for a brief round of activity in 2001. The state-mandated railroad authority had unveiled a plan, a projection really, that called for operating one 12-car train no more than four to six days a week on tracks it would share with Sonoma-Marin Area Rail Transit (SMART) commuter trains. The NCRA plan to run freight came while proponents of creating a commuter rail line between Marin and Sonoma counties were preparing an environmental impact report for the commuter rail proposal. Proponents are seeking voter approval of a sales-tax hike to help fund the system, which they hope to put on the ballot, again, in November. A similar effort in the SMART district, which includes Marin and Sonoma counties, failed by a close margin in 2006. The idea was to go back to voters with a renewed message, including an environmental impact report that took into account the number of freight trains NCRA had said it would run on the SMART tracks. The new effort also would focus on the fact that under an agreement with NCRA, SMART actually could control the time of the freight runs because SMART would have first priority on the track. (Thus voters could gain an operational edge over freight by approving SMART.)

NCRA owns track north of Healdsburg. South of there, it has a perpetual freight easement all the way to the Highway 37 turnoff and east to Schellville, where the tracks connect with the national freight system. That easement gives NCRA the right to run freight on the same tracks that SMART wants to use for its commuter trains. When SMART compiled its EIR, it included the effects of the freight runs on the shared track. In Novato, rail service advocates as well as opponents paid particular attention to the NCRA projections.

Then, last year, SMART, Novato and everyone else learned that NCRA had plans to run many more trains than previously envisioned. Now, the agency said, it expected an initial service of perhaps three round-trip freight runs per week with freight trains of 15 cars. And that service could grow, the agency said, to perhaps as many as two round-trips per day, six days a week, with trains of 25 to 60 cars. The increase in frequency and length staggered SMART proponents, who said they had been taken by surprise as much as everyone else. SMART said it would go back to the drawing board and revamp its EIR to reflect the increase in projected freight service along the SMART route, which includes Novato.

NCRA officials said the reason for the increased freight projection was simple. The initial numbers were based on a rough estimate. Now, however, the agency had entered into an operating agreement with a freight operator, the Northwestern Pacific Railroad Company. The new projections were based on what Northwestern said it actually might run on the tracks.

The explanation did little to calm the nerves of Novato residents who envisioned freight trains rumbling through their neighborhoods. It also did little to blunt the arguments of those who want to block any rail service, freight or commuter, in Marin. And the explanation did little to deflect accusations that NCRA had been planning its rail service with little thought to the public-relations implications in Marin. That was a mistake.

During the meeting in Novato last July, NCRA representatives said they shared the concerns of local residents and that they were in the process of preparing an EIR on the proposed freight route from Willits to Schellville and Lombard in Napa County. The route includes eight crossings in Novato, which concerned many local residents who attended the meeting. In addition to road safety, issues of noise and air pollution worried many. More than one person said the city of Novato should get specific information, and if the city could not, perhaps it was time for the city to get actively involved in the NCRA freight proposal.

Representatives of the Eureka-based NCRA may have missed their opportunity when they went back north.

Although Novato could not prevent freight trains from running through the city simply because residents dislike trains, it could prepare a legal challenge based on the California Environmental Quality Act. In September, the city sued NCRA, claiming the rail agency had failed to comply with state environmental regulations before it began work to replace and upgrade bridges, signals and track along the freight route. After a few preliminary actions, court pleadings and decisions, Marin County Superior Court Judge James Ritchie ruled that NCRA must complete an EIR for any work it intended to begin after Jan. 7. “That was the best we could have hoped for,” says Mitch Stogner, NCRA executive director.

The judge’s ruling meant that NCRA could proceed with contracts it already had to upgrade signals, repair a levee at Schellville and repair bridges. That left only one contract, to repair track, halted by the judge’s order. “At least that’s where we thought we stood on January 22,” says Stogner. “Then our friends in Novato challenged the Schellville contract and the contract to fix bridges.” On Feb. 6, Judge Ritchie issued a final ruling that prevented NCRA from proceeding with the bridge repair contract, “but he is going to allow us to go ahead with the Schellville contract.”

On March 11, NCRA will argue in court that Novato missed the statute of limitations when it filed its original complaint. Jeffrey Walter, who is representing Novato, says NCRA presented the same argument when the case began, and the judge rejected it. In addition to hearing the NCRA argument on March 11, Judge Ritchie also will hear the state Department of Fish and Game ask to be released from the case because the department “is not a proper party to the case.” Cooper Crane & Rigging Inc. also will be in court, arguing that the judge should allow the company to proceed with its contract for bridge reconstruction.

One week later, on March 18, Judge Ritchie is scheduled to hear the main event, the merits of the case. All of the preliminary motions and arguments and rulings are a backdrop to the tense relationship between NCRA and Novato, which has received the moral support of the county in its effort to force the rail agency to prepare environmental documents.

That’s a dry explanation for a process that could stall any freight running in Novato for quite some time. The thrust of the Novato case is simple: The court should require NCRA to prepare an extensive environmental review of the impacts its freight service will have along the track, especially in Novato. That review should include all the work necessary to bring the track and infrastructure up to safe standards, and it also should include the impacts of actually running trains on the track. “They have done absolutely no environmental work for any of the work they are doing right now,” says Walter. “The $60 million in state money they are entitled to has gone for work they have never examined under [state-mandated environmental review].”

Stogner says NCRA has met all requirements for the work. The work is within the existing right-of-way, the agency has “all of the relevant permits” and everything the rail authority has done has received the blessing of Caltrans and other relevant agencies. The work, adds Stogner, has received exemptions from state environmental review requirements.

“They’ve never found an exemption they didn’t like,” says Walter, challenging the assumption that because the repairs and upgrades are within the existing right-of-way and are “repairs in kind” the work qualifies for environmental-report exemptions.

The argument over whether the NCRA work needs more intense environmental review is a micro issue in the case that will be heard March 18. A macro issue is whether NCRA needs a full environmental review of the effects on Novato that could result from possible freight traffic in the future, rather than just the freight runs NCRA envisions in the early days of service. “The Russian River Division, that 142 miles from Willits to the interchange at Lombard, is a separate division of the railroad,” says Stogner. “In order to run trains on that separate division, we have determined that an environmental impact report is required to evaluate the impacts of operations on the Russian River Division [which includes Novato].” NCRA is preparing that report, he adds. It will be ready for review in May.

But Walter, echoing an argument that freight opponents initiated even before the July meeting, says NCRA should not be allowed to restrict environmental review to impacts from trains originating within the Russian River Division. Opponents point to a memorandum of understanding signed by NCRA and the president of the board of the Humboldt Bay Harbor, Recreation and Conservation District/Port of Humboldt Bay. It outlines a desire to “reestablish rail service from the Port of Humboldt Bay to the national rail system.” Talk has flown freely about creating a new port of entry for automobiles made in Asia. Talk also has drifted down the coast about a possible gravel mining operation. Both uses could provide NCRA with freight that needs hauling. Though these uses can only be called speculative at this point, they have met stiff opposition from environmentalists. Both would face tough challenges, even if the economics of their operations ever became viable, which at this point many doubt.

Nevertheless, Walter echoes the position of freight opponents that any environmental review of the Russian River Division must include impacts on Novato and other points in the south from possible freight runs originating from the upper reaches of the NCRA territory in Eureka, Arcata and Samoa (the Eel River Division).

“Some people want to talk about old strategic plans and different things [NCRA] has said about its long-term goals and all the hopes and aspirations up in Humboldt County,” says Stogner. “That’s a question about what becomes of the line from Willits to Eureka or Samoa.” Forcing the NCRA to prepare a comprehensive EIR for the entire line could take four or five years, he says, and the agency already has told the Legislature and state transportation representatives that the northern section of the line will “require a separate environmental impact report” because of the complexity of the issues there and the fact that “federal money will be involved.”

Opponents of freight service reject that argument. They say NCRA is “segmenting” an environmental review of the total impacts of running freight on its line. That’s not acceptable, they say, and it violates state environmental law.

Walter says requiring a full environmental impact review of freight service along the NCRA line, including possible impacts from future uses in the Eel River Division, will “give transparency to the decision-making process,” a transparency that has been lacking on the part of NCRA. Walter also says requiring a full environmental report before work began could have prevented a situation in which NCRA is upgrading signals, but without “the latest quiet-zone technology.” He adds that this issue and many others should have been discussed “as part of a public process, so the world could have participated. That’s the crux of the California Environmental Quality Act.”

Contact the writer at peter@pseidman.com

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