HomeMy WebLinkAboutC_Privileged_Rail_removal_activities_on_the_ERC_and_other_railbanked_corridors_180320_v11
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From:Marcuse, Andrew <Andrew.Marcuse@kingcounty.gov>
Sent:Friday, February 03, 2017 12:30 PM
To:Jacobs, Erica; St. John, David
Cc:Ong, Tri; Flemming, Barbara
Subject:Privileged re: Rail removal activities on the ERC and other railbanked corridors
Attachments:#98 Order re Mot to Dismiss + Remand 2-16-99 Judge Zilly - Citizens v King
County.PDF; Westlaw_Document_16_26_47.doc; Westlaw_Document_18_55_28.doc;
Westlaw_Document_17_20_31.doc; Blendu v Friends of Weiser River Trail Inc.doc
Erica and David,
Per our brief phone conversation yesterday, here are some court decisions that collectively stand for the proposition
that cities are entirely preempted from regulating track-removal activities on railbanked corridors, because (1) federal
law grants the Surface Transportation Board (STB) exclusive jurisdiction over interstate freight railroads, and (2) in its
exercise of that power, the STB expressly authorizes rail removal when it issues a NITU, including the NITUs that apply to
the ERC.
Two of these decisions are from the Western District of Washington and relate to the East Lake Sammamish Trail. (I've
sent you these two before, which is why they may seem familiar.)
The third relates to railroad work over an active BNSF line over Stampede Pass (and the City of Auburn, and King
County); and the fourth relates to an Idaho trail. The preemption principle (#1 above) is the same in all of them,
although the NITU angle (#2 above) obviously doesn't apply to the cases involve active freight rail use.
I am also attaching an STB decision where the STB similarly determined that King County was preempted from regulating
BNSF's railroad-related construction activities over Stampede Pass. It states the same preemption rule (#1 above) as
formulated by the STB's perspective.
--Andy
Andrew Marcuse│ Senior Deputy Prosecu7ng A8orney
King County Prosecuting Attorney's Office│ Civil Division
516 Third Avenue, Suite W400 Seattle, Washington 98104
2
(206) 477-1120