HomeMy WebLinkAboutC_#98_Order_Motion_to_Dismiss_and_Remand_20090216_Judge_Zilly_Citizens_v_King County_180320_v1...
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FEB 1 7 1999
AT SEATTLE
CLERK U.S. DIST ICT COURT
WESTERN DISTRIC F WASHINGTON
BY DEPUTY
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UNITED STATES DIST CT COURT
WESTERN DISTRICT 0 WASHINGTON
ATSEAT LE
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CITIZENS FOR SAFE AND LEGAL
8 TRAILS, an incorporated nonprofit
association,
Plaintiff,
NO. C98-1756Z
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v.
KING COUNTY, a political subdivision of
the State of Washington, et al.,
Defendants.
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ORDER
This matter comes before the Court on defendants' motion to dismiss, docket no. 8,
and plaintiffs related motion to remand, docket no. 13. The Court having reviewed the
motions, and being fully advised, now GRANTS defendants' motion to dismiss for lack of
jurisdiction. The motion to remand is STRICKEN as moot.
19 BACKGROUND
20 This case arises under the National Trails System Act Amendments of 1983, Pub L
21 98-11 (codified at 16 U.S.C. § 1241 et seq.) authorizing the Interstate Commerce
22 Commission (ICC) to allow interim use of unused railroad rights of way as recreational trails.
23 In 1997, Burlington Northern Santa Fe Railway company (BNSF) conveyed the entire Lake
24 Sammamish rail corridor to the Land Conservancy of Seattle and King County (TLC).
25 Thereafter TLC requested leave from the Surface Transportation Board (STB) to abandon
26 rail service.
ORDER -1-
1 The STB conducted an environmental assessment, pursuant to the National Environmental
2 Policy Act ("NEPA"), 42 U.S . C. § 4332 et seq., before deciding whether to permit the abandonment
3 ofthe rail line. See Ex. B to Cohen Decl., docket no. 26. The STB recognized that exemption from
4 active rail service would permit the railroad to salvage track, ties, and railroad appurtenances. Id. at
5 1. The STB contacted the King County Office of Cultural Resources, the King County Department
6 of Parks and Recreation, U.S. Fish and Wildlife Service, Western Washington Office, U.S.
7 Environmental Protection Agency, Region 10, the Washington State Department of Transportation,
8 the U.S. Department of the Interior, National Park Service, Columbia Cascades System Support
9 Office, the National Geodetic Survey, and the State of Washington, Office of Archaeology and
10 Historic Preservation about the impact of salvaging and the disposition of the right-of-way. Id. at 2.
11 The Environmental Assessment concluded that "abandonment ofthe line will not significantly affect
12 the quality of the human environment. Therefore, the environmental impact statement process is
13 unnecessary." !d .. The only condition imposed on the abandonment was that TLC must notify the
14 National Geodetic Survey before disturbing or destroying any geodetic markers along the rail line.
15 !d.
16 On September 18, 1998, STB issued an order granting a Notice of Interim Trail Use of
17 Abandonment (NITU) for the Lake Sammamish rail corridor. Ex. C to Cohen Decl., docket no. 26.
18 STB concluded that the abandonment of rail use ''will not significantly affect either the quality of the
19 human environment or the conservation of energy resources." !d.
20 BNSF sold the salvage rights to TLC as part of the 1997line sale. Ex. A to Cohen Decl. at 3.
21 TLC then sold the salvage rights to Sammamish Transportation Company, which in tum sold them
22 to Richard Spence, a third-party salvage contractor. Beres Decl. 16.
23 Citizens for Safe and Legal Trails ("CSLT") is a group of Lake Sammamish property owners .
24 CSLT filed this action in King County Superior Court asking the court to enjoin King County and
25 TLC from permitting the removal of tracks and ties ''without compliance with applicable permitting
26 requirements and environmental review." Complaint, Ex. A to Notice ofRemoval. CSLT seeks
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1 declaratory relief that the following state and local permits are required prior to commencing rail
2 salvage: (1) a shoreline substantial development permit under state and county laws; (2) a special use
3 permit under King County Code 14.30.010; (3) review and approval under the county sensitive area
4 ordinance; (4) a right-of-way use permit under KCC 14.28.010; and, (5) a building, grading or
5 demolition permit.
6 TLC removed the case to this Court. The Court denied CSL T' s motion for a temporary
7 restraining order to enjoin removal of railroad appurtenances by Minute Order dated December 15,
8 1998.
9 The parties agree that this Court does not have jurisdiction to resolve the claims on the
1 0 merits. As such, the parties have filed cross motions. Plaintiff asks the Court to remand the case to
11 King County Superior Court because all claims arise under state law. Defendants claim that
12 Plaintiffs action is a collateral attack on an STB decision, and asks the Court to dismiss the case for
13 lack of jurisdiction.
14 ANALYSIS
15 This suit constitutes a collateral attack on the September 18, 1998, STB decision to
16 issue an NITU for the Lake Sammamish rail corridor. The STB enjoys exclusive and plenary
17 jurisdiction over the abandonment of freight railroad lines. Chicago & N.W. Transp. Co. v.
18 Kalo Brick & Tile Co., 450 U .S. 311 (1981). This exclusive jurisdiction extends to the
19 disposition of rail assets. In re Boston & Maine Corp., 596 F.2d 2 (1st Cir. 1979).
20 Although the September 18, 1998, STB order does not expressly permit track, tie, and rail
21 disposition (see Ex. C to Cohen Decl.), several factors indicate that the order authorizes the salvage
22 of rail assets. First, the environmental assessment prepared by the STB states that "[i]fthe
23 exemption becomes effective, the railroad will be able to salvage track, ties and other railroad
24 appurtenances, and to dispose of the right-of-way." Ex. B to Cohen Decl. at 1. This assessment
25 considered the environmental impact of post-abandonment activities .such as salvage and disposition
26 of right-of-way. Second, the order contemplates conversion to recreational trail uses. It seems
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1 implicit that TLC would dispose of the rail lines and other appurtenances in order to convert the rail
2 corridor to recreational trail use. Finally, the order affirms that "an NITU will be issued." Ex. C to
3 Cohen Decl. at 2. By regulation, an NITU may "permit the railroad to ... salvage track and
4 materials, consistent with interim trail use and rail banking, as long as it is consistent with any other
5 Board order." 49 CFR § 1152.29(d)(l).
6 CSLT argues that the STB did not go so far as to regulate the method or manner of disposing
7 ofthe tracks and ties. CSLT contends that the STB decision never "authorized the destruction of
8 wetlands and salmon spawning beds and pollution of Lake Sammamish-the kinds of issues
9 considered in the various state and local permitting requirements." Plaintiffs memo in support of
10 motion to remand, docket no. 14 at 9-10.
11 CSLT's concerns are misdirected. Although environmental protection is among the
12 traditional police powers of local government, the environmental impact of the abandonment of a rail
13 line is completely within the purview of the STB. E.g., City of Auburn v. United States, 154 F.3d
14 1025, 1028 (9th Cir. 1998) (holding that ICCTA completely preempts application of Washington
15 state environmenta1laws when STB decided to authorize reopening and improvements to rail line,
16 even though local environmental matters are generally part of state police powers). Thus, Plaintiff
1 7 argues that the STB did not adequately prevent environmental harm or sufficiently supervise
18 removal ofthe railroad equipment, and asks this Court to review the STB decision.
19 The Hobbs Act states in pertinent part that:
20 Except as otherwise provided by an Act of Congress, a proceeding to enjoin or
suspend, in whole or in part, a rule, regulation, or order of the Surface Transportation
21 Board shall be brought in the court of appeals, as provided by and in the manner
prescribed in chapter 158 of this title.
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28 USC§ 2321(a). The Ninth Circuit is the lone forum with jurisdiction to hear any challenge to
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an STB decision in Washington, whether the claim is in the form of a judicial review of an STB
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order or not. Dave v. Rails-To-Trails Conservancy, 79 F.3d 940, 942 (9th Cir. 1996) (affirming
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district court's dismissal of suit alleging that a recreational trails use permit tortiously converted
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reversionary interest in railroad right-of-way; "Although not in fonn a request for review of an ICC
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1 order, the practical effect [ofthe plaintiff's suit] is to seek such review"); Assure Competitive
2 Transp., Inc. v. US., 629 F.2d 467, 472 (7th Cir. 1980) (quoting B. F. Goodrich Co. v. Northwest
3 Industries, Inc., 424 F.2d 1349, 1353-54 (3rd Cir. 1970)) ('"The statutory procedure for review is
4 applicable although an order is not directly attacked -so long as the practical effect of a successful
5 suit would contradict or countermand a Commission order").
6 CSLT seeks a review ofthe STB's decision to authorize the abandonment of the Lake
7 Sammamish rail line and allow the salvage of the rails, tracks, ties, and appurtenances. Although
8 CSL T does not phrase its complaint as a review of the STB order, the state and local permit
9 procedures that CSL T seeks to enforce have the effect of reviewing the STB decision. Requiring
10 such permits would limit the STB 's authority to grant a rail abandonment. The permit process itself
11 would effectuate a review ofthe STB conclusion that abandonment ofthe line "will not significantly
12 affect the quality of the human environment." See Ex. B to Cohen Dec!. at 2.
13 CONCLUSION
14 For the reasons stated in this order, the Court lacks jurisdiction. Plaintiffs complaint
15 must therefore be dismissed. Plaintiffs cross motion to remand is stricken as moot.
16 IT IS SO ORDERED.
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DATED this \ ~ f'-.cray of February, 1999 .
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