It appears the legal dance over Union Pacific Railroad’s proposed siding project will continue. On Tuesday, the Columbia River Gorge Commission (CRGC) rejected UP’s appeal, thereby denying the railroad’s bid to build an extended railroad siding at Mosier.
In a lengthy hearing at the Fort Dalles Readiness Center that included Friends of the Columbia River Gorge showing a video of the fiery oil train derailment at Mosier on June 3, 2016, multiple attorneys on both sides of the siding issue argued back and forth in what an attorney for Union Pacific referred to as “a merry-go-round.”
Last November, the railroad project was denied on a unanimous vote by the Wasco County Board of Commissioners due to alleged adverse effects to the Yakama Nation’s tribal treaty rights, as well as violations of the Columbia River Gorge National Scenic Area land use ordinance.
Union Pacific appealed to the gorge commission, claiming that Wasco County erred in blocking the project.
In the June 13 appeal hearing, which lasted from 9 a.m. to nearly 5 p.m., the 13 members of the commission discussed and debated the railroad’s proposal before ultimately voting to deny the appeal in a series of motions. The siding project is opposed by Friends of the Gorge, Columbia Riverkeeper, and Oregon Physicians for Social Responsibility, as well as the Confederated Tribes and Bands of the Yakama Indian Nation.
Although little new information was presented, the commission’s deliberations did not begin until about 2:15 p.m.
At that point, the commissioners voted in favor of rejecting the railroad’s appeal.
“We applaud the Gorge Commission's decision to deny Union Pacific's appeal and protect the Yakama Nation’s tribal treaty rights,” said Steve McCoy, staff attorney with Friends.
“The city of Mosier is still recovering from last year's Union Pacific oil train derailment. [This] decision will help ensure that future rail traffic in the Gorge is managed both responsibly and safely.”
In its appeal, UP claimed Wasco County officials made five errors when they rejected the siding project.
First, by deciding that its permitting process is not pre-empted by federal law as applied to interstate railroad development projects; second, by denying Union Pacific’s permit application based on the claim the “proposal affects treaty rights”; third, by refusing to consider the Corps of Engineers’ determination that UP’s proposed project would not impact treaty fishing rights; fourth, by reinstating four approval conditions on UP’s permit that were stricken by the Planning Commission when it initially allowed the permit; and fifth, by denying UP's appeal of the Wasco County Planning Commission decision, which sought to eliminate two conditions regarding Columbia River access.
The commission heard oral arguments from all the parties to the appeal, and then deliberated.
“We voted on the first three and turned down all three,” explained Commissioner Rodger Nichols, who represents Wasco County. “Then we said the other two were moot. Because we’re denying the whole thing, it doesn’t matter what conditions were put in there.”
Although Wasco County officials provided no specific examples of how the extended siding would harm tribal treaty rights, most of the commissioners supported the original finding that there would be impacts.
Commissioner Dan Ericksen, an Oregon appointee, said the impacts to tribal activities were never spelled out.
“They would continue to have access to the shore,” Ericksen said. “I don’t see where the impact of this project connects with all the treaty rights mentioned. The county failed to specifically state where and how there are impacts.”
According to UP officials, the Mosier area represents a significant bottleneck for interstate freight movements in the Columbia River Gorge. To fix this bottleneck, the railroad wants to add 4.02 miles of second mainline track east and west of Mosier. The track would extend the existing 1.35-mile siding at Mosier, allowing trains to pass and keep moving rather than being forced to stop on the siding or at other locations while waiting for trains to clear the track ahead.
Once completed, the total length of the double track would be about 5.37 miles. According to UP officials, the additional track is designed to “enhance the fluidity of Oregon's rail network and reduce emissions by reducing the number of locomotives idling in the Gorge.”
In their testimony, railroad officials pointed to the 2006 decision by the CRGC to allow competitor BNSF Railway to build a 1.6-mile long siding at Doug’s Beach, in the National Scenic Area near Lyle, Wash.
In a written decision on Feb. 16, 2006, Martha Bennett, then-executive director of the CRGC, determined that BNSF’s 1.6-mile siding proposal "is consistent with the standards ... and purposes of the Columbia River Gorge National Scenic Area Act ... and is hereby approved, with conditions."
On Tuesday, UP attorneys questioned why their project was being seen in an almost totally different light by CRGC officials in 2017.
Nichols said there was one important distinction regarding the approval of the BNSF siding at Doug’s Beach.
“This was approved at the staff level and was not appealed by anybody,” Nichols explained.
While railroad officials cited federal laws they contend overrule other jurisdictions, Commissioner Bridget Bailey of Hood River County noted that in the original National Scenic Area Act, railroads were not protected from regulation.
“Congress intended the National Scenic Area to regulate railroads,” Bailey told the UP officials. “Congress could have given you an exemption; they did not.”
Nichols later pointed out that Congress granted an exception for river traffic when writing the National Scenic Area Act, but not for railroads.
“There were attempts by the railroads to carve out exemptions for railroads; Congress declined to do so,” Nichols said. “So that assertion is hollow.”
Commissioner Damon Webster, representing Clark County, questioned whether denying the railroad’s proposal would simply create other problems.
“If freight doesn’t go by rail, will it go by truck, so should we look at impacts to I-84?” Webster said. “What is the acceptable impact, or can there be no impact at all?”
Commissioner Keith Chamberlain of Skamania County took a similar tack.
“By denying this project, will we just be successful at creating more accidents as more trains are shoved through on a single track?” he said.
Commission Chair Bowen Blair of Oregon argued the project would have serious impacts to wildlife and scenic assets in the area.
“The record is clear,” Blair said. “Eight lakes and wetlands would be permanently disturbed.”
After the appeal hearing, a UP representative pointed out that rail transportation offers significant environmental benefits over other modes of transport.
“Union Pacific provides customers a transportation option that is more fuel efficient and less carbon intensive than long-haul trucks, allowing businesses to ship freight in a more environmentally friendly manner throughout the Pacific Northwest,” explained Justin Jacobs, director of corporate relations for UP.
The CRGC will issue its written decision on UP’s appeal by early September. The decision can be appealed to the Oregon Court of Appeals within 60 days of when the written decision is issued.
In the wake of the CRGC ruling, Union Pacific officials said on Wednesday that they have not yet decided how to proceed.
“I am not sure what the next step is,” Jacobs said.