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North County Transit District has filed a petition with a federal transportation agency authorized to determine whether state and local laws apply to railroads. Photo via Facebook/NCTD
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NCTD seeks authority over bluff-related projects in Del Mar

DEL MAR – A recent legal petition filed by the North County Transit District has Del Mar officials and residents concerned over future access to the city’s treasured beachside bluffs.

The petition for declaratory order, if granted, could give NCTD wide, preemptive authority over future bluff-related projects in Del Mar and beyond – including future bluff repairs and a controversial plan to fence the train tracks running across the city’s bluffs.

“NCTD now wants to ensure that it can move forward with these crucial projects without unnecessarily having to go through this onerous state and local coastal permitting review and/or some other type of preemption litigation that may delay the work,” reads the petition.

NCTD argues that state or local permitting requirements are “categorically preempted as to any facilities that are an integral part of rail transportation.”

The petition was filed with the Surface Transportation Board (STB), a federal agency that has the authority to make decisions about whether state or local laws apply to the railroads, and according to Del Mar City Attorney Leslie Devaney, is “aimed at allowing the railroad industry to function with minimal oversight from state and local agencies.”

Both Del Mar and the California Coastal Commission — which reviews and certifies NCTD’s coastal projects — are named as parties.

Both parties are contesting the petition’s claims, and local residents are vocalizing their concerns over what STB’s ruling could mean for Del Mar and other coastal communities linked by the train tracks.

“If STB grants the petition in its entirety, that means Del Mar and the Coastal Commission will not have any say over the fencing, over bluff stabilization projects, or whether the rail line will be moved inland,” said Del Mar Councilman Dwight Worden, referring to long-term plans to move the tracks away from the city’s crumbling bluffs. “…That’s such a big reach from NCTD.”

For the past two decades, NCTD has been conducting bluff maintenance projects in Del Mar to keep the train tracks standing on the bluff’s eroding surface. The agency has mostly worked in harmony with Del Mar to do so, particularly because much of the agency’s work happens outside of its 100-foot-wide train track right of way, on city or state property.

NCTD has historically been obligated to align its projects with the federal Coastal Zone Management Act  – which in California, is enforced by the Coastal Commission. Projects are subject to a Coastal Commission certification process, and if projects involve federal permits or licensing, they are subject to a “federal consistency review.”

But the August 28 petition argues that these state regulatory mechanisms are essentially moot when it comes to future bluff projects, and are preempted by the federal Interstate Commerce Commission Termination Act (ICCTA) of 1995. The petition claims that even federal consistency review can be called into question if it cannot be “harmonized” with the ICCTA.

Officials and residents alike have been taken aback by the move, with some saying NCTD took the “nuclear option” in claiming its authority over local and state entities. Many in Del Mar were not privy to the petition until mid-September.

Councilwoman Terry Gaasterland, who sits on the NCTD Board of Directors along with other North County officials, said that she and alternate board member Dave Druker were excluded from the board’s discussion of the petition in May, due to Del Mar being named as a party.

The Del Mar City Council unanimously voted in late September to oppose the petition, filing a response on October 5. The city recruited special counsel on the state and national level to assist in preparing the response.

The city’s response refers to the petition as “inappropriate, unwise, and unnecessary,” stating that “neither Del Mar nor the Coastal Commission is seeking to regulate NCTD’s railroad transportation activities.”

“NCTD relies solely upon a hypothetical, future controversy, or alleged fictional past controversies it claims are somehow enough to invoke ICCTA preemption now,” it reads.

The Coastal Commission, the Surfrider Foundation’s San Diego County Chapter, and Del Mar residents Shirli Weiss and Laura Schaefer also submitted responses.

Although residents and officials have pointed out the potential long-term impacts of the petition, one of the most immediate and tangible ramifications is the possibility of blufftop fencing across much of Del Mar’s coast — which would effectively block historical beach access for much of the community.

Residents and visitors have long crossed the train tracks illegally to access the beach and bluff-top trails south of Powerhouse Park — a tacitly-accepted transgression in a town with only one legal rail crossing at 15th Street.

However, train track-related deaths — both accidental and suicides — has posed on ongoing liability to NCTD. In Del Mar alone, there have been eight fatalities and 14 rail-related accidents since 2014.

The city and NCTD have been in discussions for years over how to allow for safe crossings — but have come to few real solutions. In late 2018, the transit district entered into discussions over installing a 1.4-mile-long fence on both sides of the tracks to prevent illegal crossings, an idea that was quickly shot down by the city and residents.

But the NCTD petition has alerted locals that the fencing project is very much still on the table, with NCTD now looking to clarify its authority to build such fencing in its right of way. They are also planning to install fencing along the tracks in Encinitas and Oceanside.

In its email to The Coast News, NCTD representatives said that the transit district “cannot accommodate requests to allow illegal trespassing on the rail tracks that pose significant safety and financial risks to NCTD.”

According to the petition, the transit district is “extremely worried” that the $2-million project could be stalled by local opposition — whether by Del Mar or the Coastal Commission.

Residents are responding en masse once again, with resident and city council candidate Dan Quirk starting a Change.org petition to oppose the project. The petition currently has over 600 signatures.

Beyond concerns over fencing, many are concerned that NCTD’s petition could shut down future discussions of relocating the railroad — what many see as a necessary long-term solution to the bluff’s continuing erosion.

According to the petition, the legal action was prompted in part by an April letter from Del Mar that sought Coastal Commission review of an emergency bluff repair, and encouraged the study of “feasible alternative designs for the permanent, inland relocation of the rail corridor.”

The petition also referred to comments made by Commissioners in support of moving the tracks, particularly during a Coastal Commission meeting in mid-August in which commissioners called an eastward relocation “urgent.”

The NCTD petition describes any such track relocation requests as “incredibly burdensome.”

“(Del Mar’s letter) goes so far as to ask the Commission to examine a relocation of the Line in Del Mar from the bluffs to an inland site and while not explicitly stated, attempts to advance the construction of a multi-billion dollar tunnel project that NCTD has no capacity to fund,” it reads.

For NCTD and the San Diego Association of Governments — NCTD’s partner in funding and planning such projects — the most near-term solution has been to install stabilization devices into the bluff, through a six-phased project that will provide bluff support through 2050.

But over the past two years, SANDAG has also prepared and presented several long-term rail relocation options to Del Mar’s city council, including to tunnel the train under Camino Del Mar or Interstate 5.

“There is a definite mismatch between what NCTD is saying, and what SANDAG is saying,” said Kristin Brenner, a member of the Surfrider Foundation’s local Beach Preservation Committee.

The Surfrider Foundation – which has been known to oppose bluff armoring efforts – asserted in its response to the petition that near-term stabilization projects will ultimately be ineffective.

“In the long-term, you need to seriously think about how you’re going to get the tracks off the bluff,” said Brenner.

According to City Attorney Leslie Devaney, it is unknown when STB will issue an opinion. A final decision can be appealed to the U.S. Court of Appeals.