Legal Victory for the Eel River

Dear Friends of the Eel River,

I write to report an important legal victory for the Eel River. Friends of the Eel River, and Californians for Alternatives to Toxics (CATs), have won a key battle in their long struggle with the North Coast Railroad Authority (NCRA) over plans to rebuild the failed rail line through the fragile Eel River canyon.

If you recall, CATs and Friends of the Eel River had challenged the NCRA’s July 2011 Environmental Impact Report (EIR) in State Court.  The challenge is based on the fact that the EIR produced by the NCRA only looked at the southern third of the rail line. CEQA, California’s planning and impacts law, forbids segmented analysis of this type. In response, the NCRA went to a federal judge with the claim that they can’t be required to comply with CEQA at all.

On May 8, 2012, federal judge Joseph Spero rejected the case and helped make apparent the NCRA’s strategy for rebuilding the rail line through the Eel River canyon without addressing the substantial environmental impacts certain to result. Judge Spero wrote in his order that he could find “no basis” in the relevant law for the NCRA’s claim that federal law automatically preempts state court review. So the NCRA must now defend its EIR before a California state judge experienced in the ways of CEQA.

It is hard to believe that the NCRA actually thought it could, as a California state agency, take California taxpayers’ dollars to prepare an EIR under California state law, then turn around and claim that they were not subject to the law at all. But that was in fact the position the NCRA argued here. In fact, it’s not even the first time the NCRA has advanced this argument. An earlier attempt to evade CEQA review was rebuffed by a state judge reviewing a challenge from the city of Novato. He said, in effect, you can’t prepare a CEQA document and then come into my courtroom and claim you’re not subject to CEQA.

One of the basic rules of environmental review under CEQA is that one may not avoid the potentially significant cumulative effects of a project by breaking it into smaller projects with individually insignificant effects. FOER and CATs are concerned that the NCRA’s 2011 EIR was deliberately framed to segment environmental analysis of the rail line reconstruction project by considering only the impacts of reopening roughly the southern third of the rail line, which the NCRA calls its Russian River Division.

Today, the NCRA claims it has no plans to rebuild the rail line through the Eel River canyon. In fact, at their May 2012 meeting, NCRA directors bridled at the suggestion that they might permit a few hundred feet of track to be removed from an area well north of the Eel River canyon as part of a project to remove sediment from and restore fish access to a watershed blocked by rail construction a century ago. Acting Chair, Hal Wagonet, even said he didn’t want to see recovering salmon becoming a barrier to rail restoration.

The NCRA must choose: it must either acknowledge and address the impacts of rail reconstruction through the Eel River canyon, or take clear positions that rule out re-opening the line in the foreseeable future.

From the NCRA’s point of view, it’s easy to see why they wanted their legal theory of environmental immunity to be true. If it were, they could reopen the line through the Eel Canyon on the cheap, without mitigating environmental harms as CEQA requires. A rail line rebuilt on the cheap would be a horror story indeed. Any attempt to rebuild the line using the same techniques as were used to build it a century ago – by bulldozing landslides into the river and laying track over their unstable ‘toes’ – would guarantee that the now-recovering Eel River would continue to carry the railroad’s wreckage into the indefinite future. Of course, the additional impacts of the railroad, including the ongoing legacies of blocked watersheds, toxic hotspots, and debris and sediment dumped into the river, only add to these concerns.

It would be nice to be able to say that this closes another chapter in the NCRA’s history of chicanery, but we’re still a ways from being done with this fight. We must still argue and win our CEQA case in State court, which will be neither simple nor cheap. But this is a real win, one that gets us much closer to forcing the NCRA to either face the harms it risks for the Eel or to place the canyon clearly off-limits.

So if you’re wondering how you might best invest your lottery winnings, income tax return, or that extra $20 you had left over this month, we’d be happy to invest it in the protection of our amazing and wonderful Eel River. We certainly appreciate any support you can offer.

Sincerely yours,

Scott Greacen

Executive Director