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HomeMy WebLinkAboutC_Privileged_local_permitting_and_railbanked_corridors_180320_v11 Clark Close 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