The Ninth Circuit will decide if local zoning rules should govern an already-completed railroad expansion in the Columbia River Gorge.
SEATTLE (CN) — Environmentalists argued local land rules regulate railroads in the Columbia River Gorge Scenic Area and urged a Ninth Circuit panel Thursday to overturn a decision blocking state authority over expansion tracks.
BNSF Railway sued Clark County, Washington, in 2018 after county officials insisted the railway must obtain a development permit to construct a second track in the area.
The rail line runs through the Columbia River Gorge, a National Scenic Area between Washington state and Oregon.
BNSF planned to upgrade a stretch of track on the Washington side of the gorge in Clark County. The construction project included building 800 feet of additional track to connect rails for a double track that will reduce wait times at road crossings, according to the complaint.
The project was completed in 2019 while the matter was being litigated.
According to BNSF, it is not required to obtain state, county or other local permits because federal law preempts oversight of railroads. But Clark County argued it was acting as a quasi-government official in regulating the development and has jurisdiction over railroads in the area.
U.S. District Judge Benjamin Settle ruled in favor of BNSF in 2020, finding the Interstate Commerce Commission Termination Act of 1995 (ICCTA) preempts the county permitting process.
ICCTA gives exclusive jurisdiction over rail carriers to the Surface Transportation Board.
On Thursday, conservation group Friends of the Columbia Gorge, represented by attorney David Bricklin with Bricklin Newman in Seattle, told a three-judge Ninth Circuit panel that railroad regulation is allowed under the Columbia Gorge National Scenic Act.
Railways, “like all other activities, fall within the regulations” and local authorities have oversight, Bricklin said.
U.S. Circuit Judge Jay Bybee was skeptical.
“State law now has the power to regulate the railroads?” the George W. Bush appointee asked.
“All land uses in the Gorge Scenic Area are subject to the provisions,” Bricklin said.
Bybee said local zoning laws may apply in the gorge, but “land use doesn’t always mean you get to control the railroad.” He questioned the county’s argument that it was acting in federal capacity.
“Congress wasn’t deputizing Clark County,” Bybee said.
Ginger Anders, representing BNSF with Munger Tolles & Olson in Washington, argued Washington state and Oregon “can’t veto rail construction in the gorge.”
She said if Congress wanted Clark County to have regulatory power over railroads in the area, it would have “affirmatively authorized it.” She added Congress did not provide local preemption for railroad regulation because construction delays could cause bottlenecks in national transportation.
U.S. Circuit Judge Johnnie Rawlinson, a Bill Clinton appointee, and Senior U.S. District Judge Morrison England, Jr., a George W. Bush appointee sitting by designation from the Eastern District of California, rounded out the panel.