Anti-SMART NIMBY Novato sues over NCRA track repairs
- Published Wednesday, October 3, 2007, by the Novato Advance
City files lawsuit against freight train agency
By Paul Jones
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
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
"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