I need to ask for a few minutes of your time to tell you about developments in our work to protect our wild and scenic Eel River. We are making real progress, though the challenges have in many ways never been greater.
The North Coast has not been spared by the drought now gripping California. The Eel is suffering critically low flows, elevated water temperatures, and severe outbreaks of dangerous cyanobacteria (aka ‘blue green algae’). The drought is the cause of these harms, but there is no dispute the impacts are amplified by dry-season pumping from our streams, nor that unregistered diversions have increased with the rapid growth in the number and size of cannabis farms across the region.
We have helped call attention to these impacts, and asked for reasonable regulation of a legalized marijuana industry. Today, these concerns are part of the state and national conversation about marijuana legalization and regulation. The problems aren’t solved yet, but we have helped insure they can no longer be ignored.
Cleaning up our collective act in the Eel and her tributaries will set the stage for the coming fight to remove the two dams of the Potter Valley Project on the upper mainstem Eel. The dams exist to allow by far the largest diversion of the Eel’s waters, into Potter Valley and the Russian River. Proposed relicensing of the PVP will formally begin in 2017. It is our generation’s biggest chance to set the Eel on the path to recovery by restoring the habitat lost to the dams for a century.
But first, we must contend with a whole different threat to the Eel and her fisheries. The North Coast Railroad Authority (NCRA) was formed by the California legislature to buy, and rescue from abandonment, the railroad from Humboldt Bay to Sonoma. The NCRA has always insisted its mandate is to rebuild the failed line through the Eel River Canyon, where the railroad was plagued by slope failures that left dirt, tracks and even trains in the river. The agency has also long promised it would first do a full environmental review under the California Environmental Quality Act (CEQA).
Such an analysis of potential impacts and needed mitigations was an explicit condition of more than $30 million in taxpayer funds the state gave the NCRA to rebuild the line. The state even paid for the Environmental Impact Report (EIR). It was only when we environmentalists pointed out that the EIR failed entirely to address the impacts of rebuilding the line through the Eel River Canyon that the NCRA announced it believed the opposite of what it had always stated. Their new tune: they cannot ever be required to comply with CEQA, because Congress preempts local regulation of railroads.
If successful in this claim, the NCRA and its politically wired operator, the Northwest Pacific Railroad Company (NWP Co: a private corporation owned in part by former Congressman and Democratic Party kingmaker Doug Bosco) could enjoy free rein in the Eel Canyon for the 99 year term of the lease the NCRA granted the company for the very reasonable price of zero dollars. NWP Co could become very valuable by leveraging public property and public investments – the classic technique of railroad barons, but not one with a great track record of protecting the public interest or safeguarding public trust resources like clean water and healthy fisheries.
If shielded from environmental review, NWP Co. could become the vehicle for mining interests that would use the railroad to transport materials extracted under cover of ‘railroad development.’ Unfortunately, a member of one of America’s wealthiest and most ruthless clans, the Kochs, owns just such businesses, has a home outside Willits, and just happens – surprise, surprise – to employ the same lawyer as the NCRA.
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.
Our opponents often suggest environmentalists can block any project just by filing a lawsuit. This case illustrates how long and hard a process it often is just to convince courts that government agencies are in fact breaking the law. It is nearly always an uphill climb to help courts understand the complex law and facts common to environmental cases; some judges never get it. Others are hostile to our concerns.
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’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 – and we believe it is – it’s nearly impossible to distinguish our case in a principled way. If the panel considering our case nonetheless rules otherwise, we will have a split between appellate circuits, a condition the state Supreme Court exists to correct.
What we need right now is your help to keep the momentum going. We must support the legal effort to hold the NCRA to its promises while building our campaign to remove the Potter Valley Project dams, even as we support water-conservation projects and realistic reform of California’s marijuana laws and county ordinances. We depend on your contributions to keep the work going.
It’s a plateful, but with your help I know we can get it done.
For the river,