DEL MAR — After nearly three years of waiting, the federal Surface Transportation Board has declined to provide the declaratory relief sought by North County Transit District to legitimize its right to proceed with a fencing project along a stretch of rail on the Del Mar bluffs.
The regional transit district, or NCTD, first requested declaratory relief from the federal board in August 2020, asking them to find that federal law preempted them from following local coastal development requirements for projects along the railway.
NCTD’s controversial fencing proposal includes plans for 3,723 linear feet of 4- to 6-foot fencing along the bluffs beginning at the Coast Boulevard railroad crossing in Del Mar to limit trespassing and prevent deaths on the railroad.
The May 23 order states that the matter will be held in abeyance until two San Diego Superior Court lawsuits related to the project are resolved. The California Coastal Commission and local group Friends of the Del Mar Bluffs sued NCTD in early 2022 after the agency moved ahead with contracts for the fencing project despite not obtaining a coastal development permit.
“The Board will hold this proceeding in abeyance with respect to the fencing project so the state court can consider state law issues — including whether NCTD agreed to comply with California’s environmental laws, including the Coastal Act, as a condition of receiving state funding for the fencing project —that may resolve the dispute or inform any future Board decision,” the board stated.
If the state courts cannot resolve the issue, the board said it could remove it from abeyance to be addressed.
At a May 5 hearing in the Coastal Commission’s superior court case, a judge stayed the case pending a ruling from the Surface Transportation Board (STB) regarding the petition. STB said they would inform the court of their abeyance decision.
NCTD Executive Director Matthew Tucker said that the “limited decision” does not impact the agency’s authority over the rail line or its ability to move its projects forward.
“NCTD intends to continue to pursue its legal options and remains committed to developing a solution for the railway along the Del Mar Bluffs that promotes rail safety and ensures service reliability,” Tucker said.
As the saga continues in state court, NCTD will be arguing its position — that the fencing project is exempt from the requirements of the Coastal Act and California Environmental Quality Act — without the support from the federal government it has long sought.
STB also rejected NCTD’s request for clarification regarding the “preemption of rail maintenance projects generally to prevent ongoing interference with rail operations,” related to the Del Mar bluffs stabilization project led by the San Diego Association of Governments, or SANDAG.
