Would the Real NCRA Please Stand Up?

Railroad Agency Ducking Environmental Review to Avoid Disclosing Harms to River

River advocates have been encouraged, if not surprised, by the rapid return of salmon after the two Elwha River dams in Washington state’s Olympic National Park were removed. Even a century’s absence won’t keep fish out once barriers are removed.

Our generation’s best chance to help the Wild and Scenic Eel River and its magnificent steelhead and salmon fisheries recover is just around the corner, with the pending 2022 expiration of the federal license for the Potter Valley Project’s two dams on the upper mainstem Eel River. The dams exist to allow by far the largest diversion of the Eel’s waters, through a tunnel into Potter Valley and the Russian River.

Removing the dams won’t magically restore the Eel, of course – the tragic condition of the river this drought-stricken summer shows we still have a lot of work to do in our own watersheds.  A big part of helping the Eel keep recovering is just making sure we don’t keep creating the same kind of harms that nearly destroyed the fisheries.

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The Northwest Pacific Railroad, built through the unstable Eel River Canyon a century ago, was plagued by constant slope failures that left dirt, tracks and even trains in the river. After the redwood boom went bust, the line was so expensive to maintain, the railroad went bust too. The North Coast Railroad Authority (NCRA) was formed by the California legislature to purchase the line, rescuing the railroad from abandonment.

The NCRA has always insisted it is mandated to rebuild the failed line from Humboldt Bay to Sonoma, through the Eel River Canyon. The agency has also long promised it would first do a full environmental review under the California Environmental Quality Act (CEQA). Analysis of impacts and needed mitigations was an explicit condition of more than $30 million California gave the NCRA to rebuild the line. Taxpayers even paid for the Environmental Impact Report (EIR) itself.

However, when we pointed out that the EIR failed entirely to address the impacts of rebuilding the line through the Eel River Canyon, the NCRA decided that it would not, and need never, follow CEQA at all. Rather, the state agency claims, it’s exempt from the state law because Congress has preempted local regulation of railroads.

If the argument works, the Northwest Pacific Railroad Company (NWP Co: owned in part by former Congressman and Democratic Party kingmaker Doug Bosco) could gain free rein in the Eel Canyon for the 99 year term of the lease the NCRA gave the company (for zero dollars). Leveraging public property and public money to build private fortunes is the classic game of railroad barons, but their gains come at the expense of the public interest and public trust resources.

This is why we are suing the NCRA to ensure they follow CEQA and consider potential impacts before rebuilding in the Eel River Canyon. It is critically important to establish the NCRA’s duty to address all the impacts of rebuilding the line.

This case shows how hard it often is to convince courts that government agencies are in fact breaking the law. At the district court, after months of delay, a judge who had ruled against the NCRA’s preemption claim was transferred, replaced by a judge who got the law badly wrong in finding for the railroad. We’ve appealed the ruling, but may have to take the case all the way to the state Supreme Court.

Only hours after our hearing before the court of appeals, our path to the state’s highest court was cleared. A different appellate panel, ruling in the city of Atherton’s challenge to the High Speed Rail Authority (HSRA)’s compliance with CEQA, echoed our argument that CEQA review is not federally preempted when a state-owned rail line complies with the law as a condition of state funding. If the Atherton opinion is correct, it’s nearly impossible to distinguish our case in a principled way. If the panel considering our case nonetheless rules otherwise, the California Supreme Court is very likely to resolve the split between circuits.

After I sent some of the above material out in an email to Friends of the Eel River’s supporters, Mr. David Schonbrunn of San Rafael, who identifies himself as President of the Transportation Solutions Defense and Education Fund, wrote to call me a liar:

“Your latest newsletter contains an outrageous falsehood: “This is why we are suing the NCRA to ensure they follow CEQA and consider potential impacts before rebuilding in the Eel River Canyon.”

NCRA is not now, and probably never will, rebuild in the canyon.”

Of course, if the NCRA had ever taken the position Mr. Schonbrunn ascribes to it –  that it does not plan to rebuild in the Canyon – we’d have no case at all: even die-hard environmentalist fanatics can think of better things to do than demand review for a project that’s never going to happen. Not only has the NCRA failed ever to produce such a statement; the agency has never taken that position in court. Instead, they’ve argued that they have no responsibility to undertake the environmental review they promised to do and took state money to do, nor any other review for any other future actions, no matter what the potential for grave and lasting harms to the Eel River may be.

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