HomeMy WebLinkAboutC_Privileged_local_permitting_and_railbanked_corridors_180320_v11
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From:Marcuse, Andrew <Andrew.Marcuse@kingcounty.gov>
Sent:Friday, March 03, 2017 4:44 PM
To:Jacobs, Erica; Ramels, Pete
Cc:St. John, David; Flemming, Barbara
Subject:Privileged re local permitting & railbanked corridors
Attachments:Draft memo re STB NITU preclusion (3-1-17).docx
Erica (and Pete),
Here is a draft memo intended to explain why a NITU issued by the STB preempts local permitting or other
"preclearance" requirements.
Although this memo is written as if you (Erica) were the intended audience, it is actually aimed at certain other entities
that have questioned whether the County must comply with local requirements before salvaging rail infrastructure.
Because this is a relatively obscure area of the law, and the document is aimed at nonlawyers, I have tried to tell the
story in a way that shows how for more than 100 years Congress has deliberately, repeatedly, and plainly concentrated
the regulation of interstate freight rail in the hands of a single federal agency, at the expense of state and local control.
So while it spends a bit more time than you might expect on that bigger picture, I think it helps to set the stage for the
narrower discussion of how and why the STB gets to dictate the terms and conditions for rail salvage and trail use (but
not trail development) on railbanked corridors.
I've also tried to ram home the point that well-known (and respected) judges in the federal Western District of
Washington have thrown out attempts to impose local permitting requirements or environmental review of rail salvage
on, or trail use of, railbanked corridors. (As we must, I concede the point that local entities may regulate subsequent
trail development, but I buried it in a footnote.)
Anyway, take a look and let me know what you think. We can discuss at your convenience next week.
--Andy
Andrew Marcuse│ Senior Deputy Prosecu3ng A4orney
King County Prosecuting Attorney's Office│ Civil Division
2
516 Third Avenue, Suite W400 Seattle, Washington 98104
(206) 477-1120