PORTLAND, Ore. – The Oregon Coast Scenic Railroad has filed a complaint in U.S. District Court seeking an injunction as relief from the Oregon Department of State Lands. The complaint alleges the state agency interfered with a reconstruction project and violated the company’s constitutional rights.
Oregon Coast Scenic is the lessee and operator of the Port of Tillamook Bay Railroad that runs between Banks and Tillamook. It operates regular excursion trains out Garibaldi and Rockaway Beach using Curtis Lumber Co. Heisler No. 2 and McCloud River Railroad 2-6-2 No. 25.
During winter storms in 2007, several portions of the Port of Tillamook Bay right-of-way were washed out, halting revenue rail shipments. Oregon Coast Scenic crews spent months clearing mudslides, boulders, trees, and other obstacles that blocked the line. Last year its reconstruction efforts reached Salmonberry, giving it 40 miles of operational track.
Now the railroad is working to rebuild track from Salmonberry to Enright. That work is nearly complete, but now the railroad has received a cease and desist letter from the Department of State Lands. The state is seeking to enforce a removal-fill law, which covers the removal of dirt and fill along riverbanks.
Attorney Martin E. Hansen, who is representing the railroad in the case, tells Trains News Wire the agency has told the railroad it must have a permit to do fill work along the Salmonberry River. However, Hansen says, state regulations do not apply, since the Port of Tillamook Bay Railroad is a federally regulated railroad under the Federal Surface Transportation Board, which expressly preempts state regulations.
“No railroad that has track fall into a river has to go and get local/state approval before they can fix it. The federal preemption clause of the U.S. Constitution is invoked,” Hansen says. Coincidentally, the state of Oregon is a part owner of the Port of Tillamook Bay Railroad.
“The Port of Tillamook Bay Railroad is regulated by the STB and the Oregon Scenic Railroad has an exclusive operating agreement to operate it, so obviously the OSRR has the same protection. Otherwise it wouldn’t have the ability to fix the railroad,” Hansen says. “They’re trying to say ‘Well, this is just a little tourist train that doesn’t connect to anything,’ but it doesn’t connect to anything because the track is blown out and we are trying to fix that,” he said.
“The Oregon Coast Scenic Railroad has been restoring this portion of the line since the fall of 2011. We started in January fixing Salmonberry up to Enright and it wasn’t until the last few weeks that the state all of a sudden decided that they wanted to get involved here and demanded we get a permit,” Hansen concludes. “We said no, it was a preempted project and so they are challenging the preemption. They admit that the Port of Tillamook Bay is a regulated railroad, but they just keep concentrating on Oregon Coast Scenic, which is the exclusive operator and has the same federal protections as any other railroad does.”
But the Department of State Lands does not agree. “The case we are making is that this particular railroad is not covered by that [federal] preemption. It doesn’t qualify for those preemptions,” Bill Ryan, Assistant Director of the Department of State Lands who manages the wetlands and waterways conservation division, tells Trains News Wire.
Ryan says the Oregon removal-fill law is designed to protect and conserve wetlands and waterways statewide. “In areas of particular environmental significance that have been designated essential habitat, basically any amount of removal or fill activity within the waterway requires an authorization from the Department of State Lands,” Ryan says. “Normally folks who are going to do any activity like the railroad is doing would come to us for a permit. The railroad hasn’t done so and they are claiming that state law is preempted by couple different federal statues related to surface transportation and railways. Our Department of Justice attorneys disagree. We would not have issued a cease and desist order to enforce the rule if we did not feel we had jurisdiction.”
Asked if the agency would have denied the railroad a permit if it had requested one, Ryan says denials are rare. “But they would have had conditions placed upon the activity that they did to protect the natural resources. It would be things like timing for when you can do work within the waterway, mandating erosion control features, and that sort of thing. They would have been able to get a permit, but there would have been conditions associated with it, and there is public review. We have a 90-day permit process,” he says.
Ryan says there are exemptions in the removal-fill for maintenance of structures that have been damaged but that’s assuming the structure has been operational recently. “This railroad got washed out in 2007 so it’s been almost seven years since the washout happened, so this is not what would be considered maintenance,” he adds.
The railroad’s complaint alleges that state enforcement would be unconstitutional because it would “impose an impermissible burden on interstate commerce” and be a “deprivation” of Oregon Coast Scenic’s rights.
A hearing is scheduled in the case for April 9.
The laws are such today that everyone is guilty of breaking one(probably several) at any one time. That way, we can all be considered lawbreakers!(that is of course, except the ones making/enforcing sead laws) Just a thought. The state just wants their cut as well as something else to regulate. These folks are earth worshipers! I say, get a life. People are NOT the problem. These folks really DO think that way.( except for themselves of course) Robbie in Wyoming
I hope the railroad wins. Every government agency has many regulations. Everybody is so over regulated that nothing gets done.
This is so typical Oregon government. Land of enviro-wackos. The Oregon Coast region has some of the highest unemployment numbers in the state. You'd think that local people would jump at the chance to help this tourist railroad succeed, bringing more money into the local economy.
But, as has been stated in other posts, the State of Oregon despises anything that helps a local, small business become and remain successful. It's all just a money grab on the part of the state.
In today's world, GOVERNMENT IS THE ENEMY!
Ask the Port of Tillamook what they did with the monies they were given by the Federal Government to repair the damaged rail line. It seems to me their lies the problem. This line should have been put back in service several years ago after the flood.
I guess a golf course is more attractive than a scenic and productive railroad.
Sorry everyone… not trying to make a point with duplicate posts. Somehow the submission button got poked twice. Bad on me.
Well, this IS a confounding situation.
Having just been at the Oregon Coast this past weekend, and just seen the progress OCSR has made, I was in a state of euphoria. To think that a group of incredibly dedicated volunteers is making their way up that narrow, difficult canyon for no other reason than a labor of love was beyond comprehension. There's no way to describe the remoteness and impossible terrain this railroad has fought for decades, first as the Pacific Railway and Navigation (PR&N otherwise known as "Punk, Rotten & Nasty"), then the Southern Pacific, now Port of Tillamook Bay. POTB gave up on it when FEMA handed over their money after the 2007 flood, but here are volunteers….. VOLUNTEERS! trying to restore this piece of history. But alas, my joy turned to conundrum when I read this piece.
There is one thing everyone should know about Oregon's Division of State Lands. If nothing else, they are consistent. Their perceived mission is to protect fisheries, wetlands and other ecosystems from being impacted by development and unplanned, unmitigated fill activity. Anyone who knows the history of Oregon environmentalism knows they are militant about enforcement of environmental laws. Agree or disagree, it's been that way for decades. And the Nehalem/Salmonberry watershed supports salmon, steelhead, sea-run cutthroat and a host of other ecosystems. Like it or not, give the Division its due- it's entire raison d'être lies in environmental protection. It's maddening, on one hand and laudable on the other. (Google: Meadows and Lake Kathleen Railroad to see what happened to a hobbyist who, on his own property and with his own money, restored an overgrazed cattle ranch into a beautiful park with a working miniature railroad). But laws is laws, and DSL is the enforcer, for better or worse.
Thing is, and this has me scratching my head, why would POTB agree to allow their operator, OCSR access to these washed out areas for the purposes of restoration if they knew they would run afoul of the laws? Since POTB is partially owned by the State of Oregon, one would have thought the whole notion would have been run by the high priests in the Justice Department before any deal was struck.
And here's another question: If it was POTB doing this work, would the DSL have interfered, since POTB never formally abandoned the line? Would POTB's status as federally regulated been enough?
Yet another? Is there a statute of limitations on just what constitutes "recent operation?" I wonder if there is any case law to support that broad-brush time frame?
Well, all goes to prove that no good deed goes unpunished. To see the old PR&N back in business would be the greatest joy, but yeah, don't we do a great job of snatching defeat from the jaws of victory?
Be a hero
save the darting snail
re-build a washed out railroad
go to jail.
when Bill Ryan started talking, all I read and heard in my head was, in a prissy voice: "oh, no, don't rebuild something that everybody will love, because it'll hurt a tree"
I see several comments about the line got wshed out 7 years ago but the group did start working at one end and are slowly working their way forward on the repair work. It appears the state would want to do a permit and review on each and every segment as they worked their way across the entire line no matter how long it takes. It takes awhile to rebuild washouts and that includes fills and clearances but the government wants their cut and wilkl do everything to obstruct progress. It's funny that after Hurricane Irene Vermont was devistated including several railroads. Everything was fast tracked right away and much of the fill used to reepars both roads and railroad tracks came from all the rivers and streams where they ran all the equipment into them to dig outr and remove all the sediment that has washed in. This quick action from a state that some think is so environmental whacked out they can't do anything.
I have some questions:
1. Does the permit cost anything?
2. Is the permit cheaper than the lawsuit?
3. Would the conditions imposed by the permit make the work excessively difficult/expensive or would the conditions cause the work to be completed in a prescribed and acceptable way?
Next time, route it Rock Island Lines…
Just another BANANA
Build Absolutely Nothing Anywhere Near Anyone.
I invite Mr. Moss to read the 9th Circuit case of City of Auburn vs. United States. You will see that state and local environmental laws are are indeed preempted by the Surface Transportation Board jurisdiction.
Will someone please tell these bureaucrats to go to hell.
The State Of Oregon has been asleep as well. It only took them 3 years to notice. I am sure someone in Salmonberry knows someone in Salem and sent the email to them. But shame on OCS for not at a minimum checking on any regulations they had to follow locally. Being locally owned and operated, they should know they have to be a good citizen.
What a shame that state regulators at every turn end up impeding our economy. Why can't bureaucrats leave hard-working people alone! They can't. They have to try to justify why taxpayers are paying their salaries! Burt Carney, Woodburn, OR.
For some reason I smell the stench of the rails-to -trails folks in all of this.
AND the added conditions leave the door open for additional Grease!
In Chicago we call this "Greasing the hand"
Makes you wonder if the UP had to get a permit to reopen their rail line after a large land slide blocked their line thru the Cascade's a couple of years ago.
Federal pre-emption for railroads is in matters of transportation, not environmental law. As the agency said, they had 7 years to get the permit. Professional railroads have government affairs staff to handle required permits. This rail operation is simply ignoring environmental law passed by the elected legislature.
There's no worry about the Chinese or the Russians defeating the US, the environmentalists and state governments are doing it just fime!!
Having produced a video on the POTB, I am very familiar with the route. The access between Salmonberry and Enright is very limited, and there are folks who live down there that would probably love to see a rail trail, but they really should not need it. The line traverses the state forest as it makes its way up and over the summit at Cochran. Oregon Scenic ran an occasional excursion over the summit back when POTB was operating the line in freight service before the washout.
The comment related to dudes justifying their existance at the government feed trough is probably more correct in this case.
Ain't dictatorship great?