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Counties have no say on railroad expansion in Columbia River Gorge

Environmental activists argued the federal law establishing the canyon as a National Scenic Area meant local zoning laws could be brought to the table for regulating railroads.

(CN) — The Ninth Circuit ruled Tuesday that the railroad in the Columbia River Gorge is not subject to local zoning rules in Clark County, Washington state.

The decision was a blow to environmental activists who sought to block a track expansion. Clark County contended that county codes required BNSF Railway Company to obtain a permit for the project. BNSF sued, claiming federal law preempts local zoning ordinances.

A federal judge agreed, prompting an appeal from groups including the Columbia River Gorge Commission and Friends of the Columbia River Gorge. They argued the Gorge Act passed by Congress in 1986 establishing the canyon as a National Scenic Area qualified as an environmental statute that could not be automatically preempted by the federal authority over railroads.

U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, disagreed. Writing for the majority, Bybee found the Gorge Act area applied only to that specific locality and was not a nationwide environmental statute, like the Clean Air Act or Clean Water Act. Further, the implementation of the Gorge Act does not require local laws and rules to be approved by the Environmental Protection Agency.

“The Gorge Act plainly does not authorize the EPA to create any national environmental standards for, say, land management; it simply provides a framework for Oregon and Washington to cooperatively manage a shared area of land,” Bybee wrote in the 25-page ruling. “Appellants point to no provision of the Gorge Act that… might similarly transform a local county ordinance into a regulation with the force and effect of federal law.”

Friends of Columbia Gorge spokesperson Burt Edwards said the groups are evaluating their next move.

“Friends of the Columbia Gorge is disappointed in this ruling in light of Congress's expressly stated intent to protect the Columbia River Gorge and its resources by regulating rail projects in the National Scenic Area,” Edwards said in an emailed statement. “Friends is currently evaluating the court's decision and will determine our next steps.”

Among the questions at issue in the case was Congress’ intention when it passed the Gorge Act. The county and environmental groups pointed to a quote from then-Senator Slade Gorton of Washington state in which he said that railroad operations and maintenance in the scenic area should continue in accordance with “the applicable standards in the act.”

Bybee dismissed the argument, finding that the lack of language pertaining to railroads in the Gorge Act showed the law was never intended to preempt the federal authority over railroads.

“The Gorge Act contains no provision authorizing Clark County to extend its permitting processes to railroads — the Gorge Act makes no mention of railroad regulation at all,” Bybee wrote, noting another quote in which Gorton said “it is important to confirm that [the railroads’] continued operation is not endangered by the provisions of this legislation.”

Bybee said the arguments presented by the county and the environmental groups were unconvincing and declined to remand the case to a lower court for further factfinding.

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