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Anti-SMART NIMBY Novato sues over NCRA track repairs

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  • 10/3 Novato Advance
    Published Wednesday, October 3, 2007, by the Novato Advance City files lawsuit against freight train agency By Paul Jones Staff Writer After weeks of closed
    Message 1 of 1 , Oct 4, 2007
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      Published Wednesday, October 3, 2007, by the Novato Advance

      City files lawsuit against freight train agency

      By Paul Jones
      Staff Writer

      After weeks of closed sessions discussing the matter, the city of
      Novato revealed Sept. 28 it had filed a suit against the North
      Coast Railroad Authority. According to the city, the NCRA violated
      California Environmental Quality Act by failing to prepare
      appropriate environmental impact reports, dividing the Northwestern
      Pacific line into small segments to secure exemption from CEQA
      standards cumulatively, and claiming the upgrades to rail lines
      from class one standards to class three were "repairs," among other
      charges. <http://en.wikipedia.org/wiki/Rail_tracks#U.S._track_classes>

      Also, the city claims the NCRA violated provisions of the Brown Act
      by holding numerous meetings without allowing for appropriate public
      participation and forcibly ejecting NCRA board members Judy Arnold
      and Jim Leland, who represent Novato, by hanging the phone up on them
      during teleconferencing session.

      City Manager Dan Keen said the city first began examining the NCRA's
      actions after the agency upped its estimation of freight activity
      through Novato after accepting the Northwestern Pacific Railroad Co.
      as its operator for the line.

      "(The increase) was an extraordinary difference," said Keen. "(We
      wanted to know) what kind of environmental review was going on."

      Keen said the agency was not cooperative, requiring city attorney
      Jeffrey Walter to travel to the NCRA's Ukiah office for a day. Keen
      said the city found several issues to challenge the NCRA over.

      "They're chopping up segments from one mile marker to another ... You
      don't get to ignore (different parts of the project) now and then
      look at (them) later. You have to look at it all at once," said Keen.

      Keen also said the NCRA had represented its plans to open up Humboldt
      Bay for cargo ships in the second division of NCRA tracks, the "Eel
      River Division," differently in Novato than in Humboldt County.

      "We have certainly heard statements ... to state agencies (where they
      have requested) funds that imply (their plans) are something other
      than what they have said," said Keen.

      That frustration was echoed by Pete Nichols, executive director of
      Humboldt Bay Keeper, a conservationist non-profit in Humboldt county.

      "The harbor district is actively planning on trying to attract
      container shipping business to Humboldt Bay," he said. "We're looking
      to ... get an honest answer out of particularly the NCRA. They said
      they would have rail service back to Eureka by 2011, and then their
      operator John Williams (of NWP company) said that there's no plans
      in the foreseeable future to re-establish rail lines."

      Keen said the city wanted the NCRA to adjust its activities to
      take into account the project's actual impact, and make proper

      The NCRA, however, says the lawsuit comes as "no surprise," and
      that Novato fished for an excuse to file suit.

      "Novato does not want any trains running through the northeastern
      part of Marin," said Mitch Stogner, executive director of the
      NCRA. "(The city) has come to our office with high-priced lawyers
      to pore over documents ... in search of a lawsuit."

      Stogner said the NCRA was not misrepresenting its intentions to
      complete the Eel River Division, but had been tasked by state
      authorities to begin with the southern Russian River Division,
      which includes Novato.

      "We're acting on the direction of Caltrans and the CTC (California
      Transportation Commission) to repair the first phase of the
      railroad," said Stogner. "The CTC and Caltrans have allocated funds
      for the NCRA to finally begin repairing the railroad ... from the
      interchange at Lombard to Windsor."

      NCRA Board Chairman Alan Hemphill said the lines had always been
      divided into the two segments.

      "There's a history going back to the Southern Pacific of two separate
      rail operations," he said.

      Stogner said the work on the lines, already under way, was
      legitimately defined as repairs.

      "The categorical exemption under the environmental quality act for
      repairs in-kind (to the line) ... is absolutely and completely
      proper," he said. "Class three freight (traffic) on that line has
      occurred numerous times (in the past)."

      Stogner said that the NCRA was not dependent on the Humboldt Bay
      harbor or Island Mountain Quarry operations for the operator to
      produce a profit.

      "The operator (John Williams) has said in his business plan that
      he can profitably operate the Russian River division," he said.

      Hemphill said conflicting statements about the NCRA's intent for
      the northern division was the result of miscommunication.

      "There are some people up there who get overly optimistic," he
      said. "We're five years out before we could even open the railroad,
      if there were a source for traffic up there."

      Stogner denied that the Brown Act had been violated by the NCRA.

      "They say in their lawsuit that the ad hoc operator committee that
      reviewed all of the requests for the proposal for selection of an
      operator should have been a standing committee," he said.

      But Stogner said the ad hoc committee was appropriate for the
      selection process.

      "There was nothing secretive about anything we did as an operator
      -- the entire process was well known," he said.

      Hemphill said that Novato had ulterior motives for the lawsuit.

      "There has been some significant collusion between opponents of
      SMART and the city of Novato on this case," he said.

      However, Keen said that the city had no official position on the
      SMART program, and was directing the lawsuit solely at the NCRA.

      "We're not anti-SMART," he said. "We're concerned SMART may fail if
      this goes forward. Chris Coursey, spokesman for SMART, declined to
      comment on the lawsuit, but said that SMART would be in a position
      to mitigate freight traffic if approved, because of right-of-way
      provisions for passenger service.

      Hemphill said that he expected a speedy dismissal of the suit.

      "That'll be quickly disposed of in court," he said. "(The railroad)
      was there before the city was."

      But Judy Arnold said the NCRA wasn't playing straight with the facts.

      "I think they need to be real up-front about what they want to do,
      and abide by CEQA, which they haven't," she said.

      [BATN: See also:

      NIMBY Novato sues NCRA to derail planned freight trains

      Novato sues to derail NCRA plan to resume freight train service

      Column: Long-dead NCRA's freight plans complicate SMART EIR

      SMART to update EIR; re-vote planned for November 2008

      Comment: SMART or not -- freight trains coming to Novato

      Comment: SMART foes work to whip up freight train fears

      Opponents using NCRA freight projections to delay, kill SMART

      Freight tail of moribund NCRA seeks to wag SMART dog

      February '08 SMART re-vote unlikely due to freight study request
      http://groups.yahoo.com/group/BATN/message/35492 ]
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