BNSF Railway Company v. Clark County et al

REPLY

W.D. Wash.March 14, 2019

PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 THE HONORABLE BENJAMIN H. SETTLE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA BNSF RAILWAY COMPANY, Plaintiff, vs. CLARK COUNTY, WASHINGTON, Defendant, Case No. 3:18-CV-5926 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS’ CROSS-MOTIONS FOR SUMMARY JUDGMENT NOTING DATE: March 29, 2019 ORAL ARGUMENT REQUESTED COLUMBIA RIVER GORGE COMMISSION, Intervenor-Defendant, FRIENDS OF THE COLUMBIA GORGE, INC., Intervenor-Defendant. Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 1 of 33 TABLE OF CONTENTS Page(s) PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - i - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. INTRODUCTION ...............................................................................................................1 II. ICCTA PREEMPTS THE COUNTY CODE ......................................................................2 A. The County Code Is Not Federal Law .....................................................................2 B. The County Code Contains a Veto ..........................................................................3 C. Defendants’ Efforts to Avoid Categorical Preemption Are Unavailing ..................5 D. BNSF’s Challenge Is Limited to the County Code Provisions Creating a Permitting Process that Could Be Used to Veto Rail Construction .........................7 III. THE GORGE ACT DOES NOT ALTER ICCTA’S PREEMPTIVE OPERATION..........8 A. The Gorge Act Does Not Authorize a Veto over Rail Construction .......................9 B. The County Code Does Not Implement a Federal Environmental Statute Under the STB’s Decisions in Town of Ayer and U.S. EPA ..................................13 1. ICCTA generally does not preempt state implementation of federal law that requires and attains formal federal approval ................................13 2. The Gorge Act scheme establishes state and local control—not federal control—over land use ordinances ................................................15 3. Defendants offer no other examples of “implementing” federal law ........17 C. ICCTA Would Preempt the County Code Even if It “Implemented” Federal Law or Had the Force and Effect of Federal Law ....................................18 IV. THE DEFENDANTS’ AND AMICI’S OTHER ARGUMENTS LACK MERIT ............20 A. The Statements in BNSF’s SEPA Application Do Not Control This Case ...........20 B. Amici Offer No Sound Legal Basis for Preserving a County Veto .......................22 V. DECLARATORY AND INJUNCTIVE RELIEF IS WARRANTED ..............................24 VI. CONCLUSION ..................................................................................................................24 Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 2 of 33 TABLE OF AUTHORITIES Page(s) PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - ii - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FEDERAL CASES Ass’n of American Railroads v. South Coast Air Quality Management District, 622 F.3d 1094 (9th Cir. 2010) .......................................................................................3, 14, 15 BNSF Railway v. California Department of Tax & Fee Administration, 904 F.3d 755 (9th Cir. 2018) ...................................................................................9, 10, 11, 12 Boston & Maine Corp. v. Massachusetts Bay Transportation Authority, 587 F.3d 89 (1st Cir. 2009) ........................................................................................................9 Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311 (1981) .................................................................................................................13 City of Auburn v. United States, 154 F.3d 1025 (9th Cir. 1998) .................................................2, 6 Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987) .................................................12 Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) ................................................21 Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018)............................................................8, 9, 11 Gabriel v. Alaska Electrical Pension Fund, 773 F.3d 945 (9th Cir. 2014) ...................................21 Graham County Soil & Water Conservation District v. United States ex rel. Wilson, 559 U.S. 280 (2010) .................................................................................................................11 Green Mountain Railroad v. Vermont, 404 F.3d 638 (2d Cir. 2005) ..........................................4, 5 Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994) .................................................16 Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981) ............................17 League to Save Lake Tahoe v. B.J.K. Corp., 547 F.2d 1072 (9th Cir. 1976) ................................18 Mead Corp. v. Tilley, 490 U.S. 714 (1989) ....................................................................................11 New Mexico Navajo Ranchers Ass’n v. ICC, 702 F.2d 227 (D.C. Cir. 1983) .........................22, 23 Oregon Coast Scenic Railroad v. Oregon Deparment of State Lands, 841 F.3d 1069 (9th Cir. 2016) .........................................................................................3, 6, 19 Puerto Rico v. Franklin California Tax-Free Trust, 136 S. Ct. 1938 (2016) ..................................5 Railroad Ventures, Inc. v. Surface Transportation Board, 299 F.3d 523 (6th Cir. 2002) .............21 Union Pacific Railroad v. Chicago Transit Authority, 647 F.3d 675 (7th Cir. 2011) ...................19 Union Pacific Railroad v. Runyon, 320 F.R.D. 245 (D. Or. 2017) ...............................................23 United States v. Certain Lands in Truro, 476 F. Supp. 1031 (D. Mass. 1979) .............................17 Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 3 of 33 TABLE OF AUTHORITIES (continued) Page(s) PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - iii - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 United States v. Navarro, 160 F.3d 1254 (9th Cir. 1998) ..............................................................12 STATE CASES Columbia River Gorge Commission v. Hood River County, 210 Or. App. 689 (2007) ................16 Concerned Land Owners of Union Hill v. King County, 64 Wash. App. 768 (1992) ...................21 Klickitat County v. State, 71 Wash. App. 760 (1993) ....................................................................16 FEDERAL REGULATORY DECISIONS 14500 Ltd. LLC, FD 35788, 2014 WL 2608812 (STB June 4, 2014) .............................................2 Borough of Riverdale, 4 S.T.B. 380 (1999) .............................................................................13, 14 Boston & Maine Corp. & Town of Ayer, MA, 5 S.T.B. 500 (2001) ...................................... passim Cities of Auburn & Kent, WA, 2 S.T.B. 330 (1997) .............................................................4, 13, 14 CSX Transportation, Inc., FD 34662, 2005 WL 1024490 (STB May 3, 2005) ..............................6 Hanson Natural Resources, FD 32248, 1994 WL 673712 (ICC Nov. 15, 1994) ..........................21 Township of Woodbridge, NJ v. Consolidated Rail Corp., 5 S.T.B. 336 (2000) ...........................20 U.S. Environmental Protection Agency, FD 35803, 2014 WL 7392860 (STB Dec. 29, 2014) ....................................................... passim STATE REGULATORY DECISIONS Union Pacific Railroad v. Wasco County Board of Comm’rs, CRGC NO. COA-16-01 (Sept. 8, 2017) ....................................................................................5 FEDERAL STATUTES AND REGULATIONS Archeological Resources Protection Act of 1979, 16 U.S.C. §§ 470aa et seq. .............................22 Clean Air Act, 42 U.S.C. §§ 7401 et seq. .............................................................................. passim 42 U.S.C. § 7410(c)(1) .......................................................................................................14, 17 Columbia River Gorge National Scenic Area Act, Pub. L. No. 99-663, 100 Stat. 4274 (1986), 16 U.S.C. §§ 544–544p .............................. passim 16 U.S.C. § 544(j) ....................................................................................................................10 Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 4 of 33 TABLE OF AUTHORITIES (continued) Page(s) PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - iv - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 16 U.S.C. § 544d(b)(5) ............................................................................................................10 16 U.S.C. § 544d(d)(6) ......................................................................................................10, 12 16 U.S.C. § 544d(d)(7)–(9) ......................................................................................................10 16 U.S.C. § 544d(f)(1) ...............................................................................................................2 16 U.S.C. § 544d(f)(3)(B) ..........................................................................................................2 16 U.S.C. § 544f(j) .....................................................................................................................2 16 U.S.C. § 544f(k) ....................................................................................................................2 Federal Railroad Safety Act of 1970, 49 U.S.C. §§ 20101 et seq. ................................................23 49 U.S.C. § 20101 ....................................................................................................................23 Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. §§ 1251 et seq........................................................................................14, 15, 16, 20 33 U.S.C. § 1313(c)(2)–(4) ......................................................................................................14 Hazardous Materials Transportation Act, 49 U.S.C. §§ 5101 et seq. ..................................9, 10, 23 49 U.S.C. § 5101 ......................................................................................................................23 49 U.S.C. § 5125(f)(1) .............................................................................................................10 ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 ........................................ passim 49 U.S.C. § 10101 ....................................................................................................................23 49 U.S.C. § 10101(a) ...............................................................................................................23 49 U.S.C. § 10102(9) ...............................................................................................................19 49 U.S.C. § 10501(b) ....................................................................................................... passim 49 U.S.C. § 10501(b)(2) ..........................................................................................................19 49 U.S.C. § 10901(a) ...............................................................................................................22 49 U.S.C. § 10901(c) ...............................................................................................................22 National Historic Preservation Act, Amendments, 54 U.S.C. §§ 300101 et seq. ..........................22 Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001 et seq. .................22 Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 5 of 33 TABLE OF AUTHORITIES (continued) Page(s) PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - v - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq. ...................................................14, 15, 16, 18 42 U.S.C. § 300g-2(a)(1) .........................................................................................................14 40 C.F.R.: § 122.26....................................................................................................................................20 § 123.25(a)(9) ..........................................................................................................................20 STATE AND LOCAL STATUTES AND REGULATIONS Columbia River Gorge Compact, ORS § 190.150, RCW § 43.97.015..........................................16 Art. XII .....................................................................................................................................17 ORS § 197.352(3)(C) .....................................................................................................................16 RCW § 36.70A.040..........................................................................................................................2 RCW § 43.97.025 ............................................................................................................................2 RCW § 43.135.060 ........................................................................................................................16 Management Plan for the Columbia River Gorge National Scenic Area (Aug. 2016): II-1-12–15 ..................................................................................................................................4 II-1-22–26 ..................................................................................................................................4 WAC § 197-11-300(2) ...................................................................................................................21 WAC § 197-11-315(1) ...................................................................................................................21 WAC § 197-11-315(6) ...................................................................................................................21 Clark County Code ch. 40.240 ...............................................................................................3, 4, 16 § 40.240.060(B)(6)...................................................................................................................16 § 40.240.430(B) .........................................................................................................................4 § 40.240.430(B)(21)...................................................................................................................3 § 40.240.440...............................................................................................................................4 § 40.240.440(A) .....................................................................................................................3, 4 § 40.240.460...............................................................................................................................4 Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 6 of 33 TABLE OF AUTHORITIES (continued) Page(s) PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - vi - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 § 40.240.460(A) .........................................................................................................................4 § 40.240.800–900.......................................................................................................................4 § 40.240.840(F) ..........................................................................................................................4 § 40.240.860(A) .........................................................................................................................4 Clark County Code ch. 40.510 .........................................................................................................5 § 40.510.020(F) ..........................................................................................................................5 OTHER AUTHORITIES Bowen Blair, Jr., The Columbia River Gorge National Scenic Area: The Act, Its Genesis and Legislative History, 17 Envtl. L. 863 (1987) ...................................17 Columbia River Gorge: Hearing Before the Senate Committee on Commerce, Science, & Transportation, 98th Cong. 34 (1983) ...............................................11 132 Cong. Rec. 33,207 (1986) .................................................................................................11, 12 Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 7 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 1 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. INTRODUCTION Under Clark County law, local officials can veto rail construction. But ICCTA categorically preempts local vetoes over rail construction. Inasmuch as Defendants no longer contend that the County Code is itself a federal law, this Court should hold that ICCTA preempts the County Code, just as it preempts other state and local preclearance laws that can be used to deny railroads the ability to build and operate. Against that simple analysis, Defendants make two principal arguments. First, they assert that the County Code, on its own terms, lacks a county veto over construction. If that were true, BNSF would not have brought this suit. But it is false: The County Code has standards that can be used to deny approval to rail construction—the very veto that ICCTA preempts. Second, Defendants do not dispute that ICCTA ordinarily preempts state and local regulations that could be used to veto rail construction. But they argue that the Gorge Act alters the normal operation of ICCTA preemption. That is incorrect. Nothing in the Gorge Act specifically authorizes a veto over rail construction, or otherwise indicates Congress’s intent to displace the normal policy of uniform federal rail regulation; in fact, the Gorge Act does not even mention railroads. Nor does the allusion to state “implementation” of federal law in Boston and Maine Corp. & Town of Ayer, MA, 5 S.T.B. 500 (2001) (“Town of Ayer”), aid Defendants, for it refers to established programs of federally approved regulations under three federal environmental statutes that materially differ from the Gorge Act. Adopting Defendants’ inflated view of “implementation” would license the County and Commission to overrule federal law whenever they pleased—a result that Congress could not have intended when passing the Gorge Act. Finally, even making the unwarranted assumption that the County Code implements federal law in the sense the STB recognized in Town of Ayer, it would still be preempted because it “directly conflict[s] with the goal of uniform national regulation of rail transportation.” U.S. Envtl. Prot. Agency, FD 35803, 2014 WL 7392860, at *9 (STB Dec. 29, 2014) (U.S. EPA). In short, the County and Commission cannot rely on the Gorge Act—a statute that says Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 8 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 2 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 nothing about railroads—to override a century of federal law taking decisions about interstate railroads out of the hands of local land-use planners. BNSF’s motion for summary judgment should be granted and Defendants’ cross-motions should be denied. II. ICCTA PREEMPTS THE COUNTY CODE ICCTA categorically preempts “state or local permitting or preclearance requirements, including … environmental and land use permitting requirements,” that “by their nature, could be used to deny a railroad’s ability” to engage in rail construction. 14500 Ltd. LLC, FD 35788, 2014 WL 2608812, at *4 (STB June 4, 2014) (citing City of Auburn v. United States, 154 F.3d 1025, 1029–31 (9th Cir. 1998)). Such “[c]ategorically preempted actions are preempted regardless of the context or rationale for the action.” U.S. EPA, 2014 WL 7392860, at *6 (quotation marks omitted). County officials’ enforcement of the County Code would fall squarely within the scope of this preemption: A local government cannot enforce a local preclearance process that contains the threat of a veto over railroad construction. A. The County Code Is Not Federal Law Defendants cannot—and now do not—dispute that the County Code itself is not a federal law. As BNSF has explained, a law enacted by county and state officials, pursuant to state authority, not subject to final federal approval, and not enforceable by federal officials is not a federal law. BNSF SJ Br. 13–18, Dkt. 62.1 Under the Gorge Act, the Commission has the final say over the content of the Management Plan and local land use ordinances. Although the Secretary of Agriculture may “concur” in the Management Plan and SMA ordinances, 16 U.S.C. §§ 544d(f)(1), 544f(j), the Commission may override the Secretary’s non-concurrence with a two-thirds vote, id. §§ 544d(f)(3)(B), 544f(k). Secretarial concurrence under the Gorge Act is therefore nothing like a federal officer’s final decision to adopt (or reject) state regulations as federal law within a federal framework such as the Clean Air Act (CAA). See Ass’n of Am. 1 The Commission cavils about which state law—RCW § 36.70A.040 or RCW § 43.97.025— authorizes the County to adopt zoning ordinances in accordance with the Compact. Comm’n Br. 10–11, Dkt. 70. But it misses the broader point: The County’s permitting authority comes from a state statute—not from delegation of federal zoning authority, see infra, pp. 16–17. Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 9 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 3 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Railroads v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1098 (9th Cir. 2010) (AAR). The lack of any such adoption framework in the Gorge Act confirms that Congress did not intend land use ordinances or the Management Plan as a whole to be federal law. Because the County Code is not federal law, this Court should apply a preemption analysis. AAR, 622 F.3d at 1097. B. The County Code Contains a Veto The Ninth Circuit and the STB have consistently held that ICCTA preempts state and local permitting processes that “give local authorities the power to prevent [a carrier] from constructing [or] operating … a line.” Or. Coast Scenic R.R., LLC v. Or. Dep’t of State Lands, 841 F.3d 1069, 1077 (9th Cir. 2016) (quotation marks omitted); see Town of Ayer, 5 S.T.B. 500, at *5 (“State and local permitting or preclearance requirements (including environmental requirements) are preempted because by their nature they unduly interfere with interstate commerce by giving the local body the ability to deny the carrier the right to construct facilities or conduct operations.”). But now, Defendants claim (incorrectly) that the County Code lacks the offending veto described in these cases. Comm’n Br. 2 n.1, 18–19, 21–22; County Br. 13, Dkt. 72. They state that the County Code requires only that the Project be “sited to minimize impacts on agricultural and forest land.” Comm’n Br. 18–19 (citing County Code §§ 40.240.430(B)(21), 40.240.440(A)); County Br. 13 (same).2 If that were all the County Code required, this dispute likely would not exist: BNSF has repeatedly offered to discuss mitigation measures to address any concerns Defendants might have about the Project and, as Defendants acknowledge, BNSF has a record of cooperating with counties and the Commission to minimize the impact of its operations. See Comm’n Br. 18 (describing BNSF’s withdrawal of a permit application “[f]ollowing discussion with the Gorge Commission’s Executive Director” and revision of the application to avoid potential impacts on recreation and tribal fishing rights). But the County Code—even the very provision the Commission cites—does contain a 2 The agricultural provisions of the County Code are illustrative, although the Project also passes through areas zoned for other uses. See Omsberg Supp. Decl. ¶ 3; Horwich Decl. Ex. A. Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 10 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 4 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 veto. The Commission represents that “the standard for the portion of the project located in the general management area” requires only that [1] “[t]here is no practicable alternative location with less adverse effect on agricultural or forest lands” and [2] “[t]he size is the minimum necessary to provide the service.” Comm’n Br. 19 n.7 (citing County Code § 40.240.440(A)). But the Commission bizarrely omits two other requirements in the same section—[3] “compliance with Sections 40.240.800 through 40.240.900,” which contain various resource protection provisions, and [4] the use must be “consistent with Section 40.240.460.” County Code § 40.240.440. Those in turn give the County a clear veto. Section 40.240.460 in particular states that a use “may be allowed only if” it “is compatible with agricultural uses and would not force a change in or significantly increase the cost of accepted agricultural practices on nearby lands devoted to agricultural use.” Id. § 40.240.460(A). The same standard appears in the GMA section of the Management Plan. See Management Plan at II-1-12 to -15.3 Thus, if the County decides that the railroad use is incompatible with agricultural use, it can prevent rail construction. Even setting aside this explicit veto power, the simple existence of “a state or local permitting process implies the power to deny authorization.” Cities of Auburn & Kent, WA (Stampede Pass), 2 S.T.B. 330, 337 (1997). Reinforcing that implication, the permitting process here relies on vague and subjective standards, such as whether a use “adversely affect[s]” natural resources, County Code § 40.240.860(A), or is “in the public interest,” id. § 40.240.840(F), which make it difficult for a railroad to assure compliance before entering into the process. And provisions allowing potentially interminable delay for corrections, studies, and requests for information, see id. § 40.510.020(F), leave a railroad uncertain if and when its project will emerge from the application process. Such layers of uncertainty and delay fundamentally conflict with ICCTA. See Green Mountain R.R. v. Vermont, 404 F.3d 638, 643 (2d Cir. 2005) 3 The corresponding provisions in the County Code and Management Plan applying to the SMA lack this particular condition. Those conditions are limited to [1] “compliance with Sections 40.240.800 through 40.240.900” and [2] “sit[ing the use] to minimize the loss of land suitable for the production of agricultural crops or livestock.” County Code § 40.240.430(B); see Management Plan at II-1-22 to -26. Because the Project is subject to both SMA and GMA provisions, the GMA provisions function as a veto over the entire Project. Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 11 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 5 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (explaining that local health and safety regulations are permissible to the extent they “are settled and defined, can be obeyed with reasonable certainty, entail no extended or open-ended delays, and can be approved (or rejected) without the exercise of discretion on subjective questions”). The County dismisses BNSF’s “concern” that it intends to veto BNSF’s Project. County Br. 2, 8. BNSF’s concerns are not speculative; they are brought into stark relief by the Gorge Commission’s resolution against increased rail traffic (Kaitala Decl. Ex. C, Dkt. 63), by the amici Tribes’ opposition to improved rail operations (Tribes Br. 11–14, Dkt. 77-1), and by the denial and ongoing appeal of Union Pacific’s 2015 Wasco County permit application (Union Pac. R.R. v. Wasco Cty. Bd. of Comm’rs, CRGC No. COA-16-01 (Sept. 8, 2017)). More to the point, what matters is not some factual debate about whether the County will actually exercise its veto, but rather the simple legal question whether the County possesses a veto. “[W]hat is preempted here is the permitting process itself, not the length or outcome of that process in particular cases.” Green Mountain, 404 F.3d at 644. Accordingly, BNSF has provided Defendants the information they seek about the Project, Hobbs Decl. ¶ 2, and has offered to implement appropriate mitigation measures and otherwise address any concerns the County has—but BNSF will not submit an application that subjects its Project to an actual or effective veto. The County has repeatedly refused this offer, all the while threatening code enforcement proceedings. Lynch Decl. Exs. C, D, Dkt. 64. That standoff shows that the parties’ dispute revolves around the County’s intent to secure a veto power that federal law says it cannot have. C. Defendants’ Efforts to Avoid Categorical Preemption Are Unavailing Defendants’ other attempts to avoid categorical preemption lack merit. First, no “presumption against preemption,” Friends Br. 16, Dkt. 75, operates here. When a statute “ ‘contains an express pre-emption clause,’ ”—as ICCTA does—courts “do not invoke any presumption against pre-emption but instead focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” Puerto Rico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1946 (2016) (quotation marks omitted). ICCTA’s Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 12 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 6 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 preemption clause is clear: “[T]he remedies provided under [ICCTA] with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.” 49 U.S.C. § 10501(b). Moreover, because rail construction in particular has long been regulated at the federal level, see BNSF SJ Br. 2–3, nothing in ICCTA upends a tradition of state regulation, see City of Auburn, 154 F.3d at 1029 (rejecting local government’s argument to read ICCTA narrowly in light of presumption against preemption). Second, the County Code’s permitting process does not have merely “incidental” effects on rail transportation, Friends Br. 16–17. There is nothing “incidental” about a preclearance regime that can directly bar rail construction. See, e.g, Or. Coast, 841 F.3d at 1077 (“Because the ability to impose environmental permitting regulations on the railroad can in fact give local authorities the power to prevent [a carrier] from constructing … a line, such a permitting scheme would have the effect of managing or governing rail transportation.”) (quotation marks and citation omitted). And the Ninth Circuit has specifically rejected the Friends’ proposed distinction (Br. 16) between “economic regulation” and environmental or land-use permitting requirements, ruling that ICCTA preempts both. City of Auburn, 154 F.3d at 1031. The Friends cannot relegate these Ninth Circuit cases to a footnote, see Friends Br. 4 n.1, and then, having failed to confront them, claim that state and local permitting requirements like those in the County Code are not categorically preempted. Third, Defendants are simply wrong to claim (County Br. 12–13; Comm’n Br. 16–17; Friends Br. 14) that BNSF makes an “as-applied” challenge that requires factual development. State or local actions that are not categorically preempted may be preempted “as applied” if “they would have the effect of unreasonably burdening or interfering with rail transportation.” U.S. EPA, 2014 WL 7392860, at *7. But the County Code’s veto and preclearance requirements are categorically preempted by ICCTA. Given “enough evidence to determine that an action falls within [that] categor[y], no further factual inquiry is needed.” CSX Transp., Inc., FD 34662, 2005 WL 1024490, at *3 (STB May 3, 2005). The evidence is simple: BNSF has constructed Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 13 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 7 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 track within the STB’s exclusive jurisdiction; the County Code establishes veto authority over that Project. No “fact-bound” inquiry is needed to determine whether the application of the Code “unduly restrict[s] the railroad from conducting its operations,” Comm’n Br. 16–17 (quoting Town of Ayer, 5 S.T.B. 500, at *6), because “by their nature [local preclearance requirements] unduly interfere with interstate commerce,” Town of Ayer, 5 S.T.B. 500, at *5. Likewise, BNSF does not argue at this time that the Code is “being used as a pretext for frustrating or preventing a particular activity,” id. at *6, so no factual inquiry is needed on that score. D. BNSF’s Challenge Is Limited to the County Code Provisions Creating a Permitting Process that Could Be Used to Veto Rail Construction Defendants attempt to complicate this simple analysis by suggesting that BNSF is attacking the Gorge Act in gross. But BNSF’s challenge here is quite limited: The veto and preclearance process in the County Code is preempted. BNSF does not argue that the Gorge Act itself is preempted; indeed, the Gorge Act and ICCTA do not conflict. See infra, pp. 10–13; BNSF SJ Br. 20–22. Nor does BNSF contend that ICCTA preempts all state and local regulation. To the contrary, such “regulation is permissible where it does not interfere with interstate rail operations,” and “non-discriminatory enforcement of state and local requirements such as building and electrical codes generally [is] not preempted.” Town of Ayer, 5 S.T.B. 500 at *5. Where BNSF—and the STB and the courts—draw a line is at a preclearance process that can block rail construction, especially one giving local authorities express veto rights. The Friends takes the view that some aspects of the County Code might survive preemption while others might not—e.g., even if “rail projects could not be disallowed on agricultural lands,” “requirements to mitigate project harms” might survive preemption. Friends Br. 14. At a conceptual level, the Friends is correct that a complex preclearance system may have particular provisions that would, in isolation, not raise ICCTA preemption concerns.4 But 4 The Friends is incorrect, however, to suggest that such a distinction would result from the “harmonization” of ICCTA and the County Code. Friends Br. 14. As BNSF explained in its opening brief, harmonization is reserved for reconciling two federal laws, BNSF SJ Br. 19–20, and the County Code is not a federal law. Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 14 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 8 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 in practice, this Court is poorly situated to rewrite the County Code, not least because the entire land use ordinance is premised on a preclearance process that ICCTA says cannot be applied to rail construction. Although such judicial surgery is unrealistic here, the STB has offered guidance on the types of requirements that would likely not be preempted, should the County decide to revise its code. See Town of Ayer, 5 S.T.B. 500, at *7. In line with this guidance, BNSF would participate in a review process that does not include a veto threat, does not discriminate against rail, and does not unreasonably burden construction. That process could be the informal consultation that BNSF has consistently offered to engage in here, see Lynch Decl. ¶¶ 8–9, Ex. F, or a formalized process enacted by the County. But as matters stand, the County Code offers only a preclearance scheme that ICCTA forbids. III. THE GORGE ACT DOES NOT ALTER ICCTA’S PREEMPTIVE OPERATION As discussed above, the normal rule is that ICCTA categorically preempts a local land use ordinance that can be used to veto rail construction. Defendants offer two theories for why the Gorge Act alters ICCTA’s normal effect. First, they argue that the Gorge Act licenses whatever terms the County may establish in the County Code respecting railroad construction. But that cannot be correct, for the Gorge Act says nothing about railroads, and certainly does not speak with the clarity necessary to override ICCTA’s expression of longstanding federal rail policy. Second, Defendants argue that, in light of the Gorge Act, the County Code is “state implementation of [a] federal environmental statute[]” that Town of Ayer stated is not generally preempted, 5 S.T.B. 500, at *7. But that theory rests on an unsound parallel between the Gorge Act and the specific federal environmental statutes that the STB referred to in Town of Ayer. By claiming that the Gorge Act approves what ICCTA squarely forbids, Defendants raise a question of harmonization. “When confronted with two Acts of Congress allegedly touching on the same topic,” a court must “strive to give effect to both,” on the assumption that Congress did not create an irreconcilable conflict between the two. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (quotation marks omitted). Only if such reconciliation is impossible does a Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 15 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 9 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 court “decide which one Congress meant to take precedence.” Boston & Maine Corp. v. Mass. Bay Transp. Auth., 587 F.3d 89, 99 (1st Cir. 2009). The harmonization inquiry is a legal question of federal statutory construction suitable for resolution by this Court. Epic Sys., 138 S. Ct. at 1629 (“[T]he reconciliation of distinct statutory regimes is a matter for the courts, not agencies.”) (quotation marks omitted). “A party seeking to suggest that two statutes cannot be harmonized, and that one displaces the other, bears the heavy burden of showing a clearly expressed congressional intention that such a result should follow.” Id. at 1624. Defendants cannot carry their burden here, as there is no indication that Congress intended, in passing the Gorge Act, to displace the longstanding policy of uniform federal rail regulation and provide local officials with unfettered discretion to restrict or even stymie rail operations.5 A. The Gorge Act Does Not Authorize a Veto over Rail Construction The Friends argues (Br. 5–10) that because the Gorge Act authorizes the County and the Commission to adopt the Management Plan and local ordinances, the content of those state and local regulations is immunized from ICCTA preemption. In support, the Friends relies primarily on the Ninth Circuit’s decision in BNSF Railway v. California Department of Tax & Fee Administration, 904 F.3d 755 (9th Cir. 2018) (CDTFA). That decision does not help the Friends. 1. In CDTFA, the Ninth Circuit considered whether ICCTA preempted a state statute imposing fees on the transportation of hazardous materials. Id. at 760–66. The court concluded that the state statute fell squarely within ICCTA’s preemption provision—because it regulated railroad rates—but nonetheless might be saved from preemption because another federal statute, the Hazardous Materials Transportation Act (HMTA), “specifically authorized” hazardous 5 At points, Defendants confuse [1] the legal question of Congressional intent under the harmonization standard with [2] a fact-bound as-applied preemption challenge. Comm’n Br. 2; County Br. 12–13. But the two are unrelated, and the latter is not even implicated here. See supra, pp. 6–7. Perhaps owing to this confusion, Defendants assert that BNSF did not plead a claim based on harmonization. Comm’n Br. 2; County Br. 12. That argument is spurious. BNSF alleges that ICCTA preempts the permitting procedures of the County Code. Compl. ¶ 38, Dkt. 1. Defendants respond that, under a harmonious reading of the Gorge Act and ICCTA, the County Code is not preempted. In reply, BNSF has explained that, on a proper harmonization inquiry, the Gorge Act does not modify ICCTA’s preemption of the County Code. The parties thus dispute exactly what BNSF pleaded: Does ICCTA preempt the County Code? Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 16 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 10 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 materials fees. Id. at 762; see 49 U.S.C. § 5125(f)(1) (“A State … may impose a fee related to transporting hazardous material ….”). In so holding, the court found that HMTA’s text authorizing such fees was “clear,” CDTFA, 904 F.3d at 768, and that HMTA’s legislative history “confirms that § 5125(f)(1) was intended to protect such fees from preemption by federal laws, like the ICCTA, that regulate transportation by rail,” id. at 764. The CDTFA Court went on to conclude that the particular fees were not the sort “specifically authorized” by HMTA, and therefore not saved from ICCTA preemption. Id. at 766–68. 2. The Gorge Act is nothing like the section of HMTA that displaced ICCTA preemption in CDTFA. The Gorge Act does not “specifically authorize[]” a veto over rail construction; it does not even mention railroads, much less provide the basis for a veto. Indeed, the provisions of the Gorge Act that prohibit development do not apply to railroads: The Gorge Act specifies that land use ordinances shall prohibit industrial development outside of urban areas, 16 U.S.C. § 544d(d)(6); shall impose certain prohibitory conditions on commercial and residential development and the exploitation of mineral resources, id. § 544d(d)(7)–(9); and shall prohibit, in SMAs, “major development actions,” id. § 544d(d)(5), which are defined in terms of the categories of activities just enumerated, id. § 544(j). Rail transportation is not in any of those categories. It is clearly not “residential” or “mineral” use, and other provisions of the Gorge Act treat “transportation” as distinct from “commercial” or “industrial” use. See, e.g., id. § 544d(b)(5) (requiring an evaluation of “geographic proximity to transportation, commercial, and industrial facilities”). Certainly, the Gorge Act contemplates that counties will adopt land use ordinances. See Friends Br. 5–6. But nothing in the Gorge Act authorizes or requires those ordinances to include a veto over rail construction; a county could comply with both ICCTA and the Gorge Compact by adopting an ordinance that withholds any threat of vetoing rail construction. By contrast, the HMTA section at issue in CDTFA expressly authorized a narrow category of regulation—the imposition of certain fees—that the Ninth Circuit held would otherwise fall within ICCTA’s Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 17 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 11 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 preemptive scope. Id. at 761. That makes all the difference: Defendants here face a “stout uphill climb” in arguing that the Gorge Act displaces ICCTA, because courts must “strive to give effect to both” statutes, rather than “too easily find[] irreconcilable conflicts in [Congress’s] work,” Epic Sys., 138 S. Ct. at 1624 (quotation marks omitted). But unlike HMTA’s express provision in CDTFA, the Gorge Act’s silence as to whether the contemplated land use ordinances may include veto provisions counsels against reading the Gorge Act to authorize what ICCTA forbids. Defendants therefore cannot carry their “heavy burden” of showing a “clear and manifest” congressional intent that the Gorge Act should displace the ordinary workings of ICCTA preemption. Id. (quotation marks omitted). 3. The contrast between CDTFA and this case carries over to the legislative history. The Ninth Circuit read the history of HMTA to announce Congress’s intent to protect certain fees from ICCTA preemption. CDTFA, 904 F.3d at 764. By contrast, the selection of Gorge Act legislative history that the Friends cites (Br. 6–8) lacks similar force. As an initial matter, the cited sources are not authoritative. The Friends first points to Congress’s failure to adopt additional, affirmative protections for rail transportation in the Gorge. Friends Br. 5–7 (citing Columbia River Gorge: Hearing Before the S. Comm. on Commerce, Sci., & Transp., 98th Cong. 34 (1983)). But, as one of the infinite number of things Congress has not enacted, such “mute intermediate legislative maneuvers are not reliable” aids to interpreting the statute Congress has enacted. Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989) (quotation marks omitted). The Friends also points to Senator Gorton’s statement that railroad operation would continue in the Gorge “subject, as relevant, to the applicable standards in the act.” 132 Cong. Rec. 33,207 (1986). Such a floor statement has no “meaningful weight.” Graham Cty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 297 (2010). Even if this Court were to consider those sources, they display an understanding that the Gorge Act does not give local officials the power to curtail rail operations in the Gorge. The Friends offers the Court a false dichotomy: Either the Gorge Act authorizes a veto over rail Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 18 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 12 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 construction, or else railroads are entirely exempt from all regulation. But both the text of the Gorge Act and the cited legislative history point toward an intermediate option that is perfectly in line with ICCTA and its forerunners: The Gorge Act allows local application of local land-use standards that do not discriminate against or unreasonably burden railroads and cannot be used to block rail construction. The thrust of Senator Gorton’s statement was to support railroads’ continued operation in the Gorge. He stressed that railroads already operated in the Gorge and that they “should not be considered to be industrial development,” 132 Cong. Rec. 33,207, a classification that would have barred most rail development, see 16 U.S.C. § 544d(d)(6). And the only “applicable standard[] in the act” that he identified was “requir[ing] mitigation measures,” 132 Cong. Rec. 33,207, which (if properly implemented) would not be preempted by ICCTA. Nothing in Senator Gorton’s statement suggests a veto—yet the Friends invokes it to justify a decision in this case that would allow Gorge counties to outright ban rail construction. 4. Finally, CDTFA relied on the principle that general statutory provisions do not control specific ones. 904 F.3d at 766. That canon of construction is inapposite here, for three reasons. First, that principle applies only “where some conflict seems to exist between [the statutes],” United States v. Navarro, 160 F.3d 1254, 1256 (9th Cir. 1998), and there is no conflict here because the Gorge Act does not authorize a veto over rail construction. Second, the canon is equivocal where, as here, either statute could arguably be regarded a more specific: The Gorge Act is geographically specific but otherwise regulates a variety of uses, while ICCTA has nationwide reach but specifically deals with rail uses. Third, a specific statute controls over a general one only “where there is no clear intention otherwise.” CDTFA, 904 F.3d at 766 (quoting Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987)). Such a clear intention exists in ICCTA. Even assuming that the Gorge Act is more specific than ICCTA, the Gorge Act is specific in only one respect—it “applies to a specific geographic area.” Friends Br. 9. Yet Congress’s very purpose in enacting ICCTA and its forerunners was to establish uniform federal rail regulation, which would be Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 19 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 13 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 frustrated “if local authorities retained the power” to regulate railroads. Chicago & Nw. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 318 (1981). If the County could block the Project, it not only would impede BNSF’s service in Clark County, but also would cause ripple effects throughout BNSF’s system because shipments are moved to and from distant points, and the capacity of a small segment of track can have large effects on the capacity of large portions of a rail network. See Omsberg Supp. Decl. ¶ 6 (noting that on BNSF’s network, trains in the Gorge may originate in or be destined for locations as far away as San Diego and Chicago); Mann Decl. ¶¶ 5, 11, Dkt. 65. No evidence exists that Congress, in passing the Gorge Act, intended to balkanize rail regulation in precisely the way ICCTA and its forerunners abolished. B. The County Code Does Not Implement a Federal Environmental Statute Under the STB’s Decisions in Town of Ayer and U.S. EPA Relying on Town of Ayer, Defendants argue that the County Code is not preempted because it “implements” the Gorge Act. But Town of Ayer’s discussion of state “implementation” refers to a well-known form of federal-state environmental program under which States prepare rules to implement a major nationwide federal environmental statute, and the federal Administrator of the Environmental Protection Agency (the “Administrator”) approves or disapproves those rules. The STB did not use the term “implementation” in the loose and limitless way that Defendants do here. And the STB has never suggested that whenever a federal statute anticipates the adoption of local rules by local officials, the content of those local rules will take precedence over ICCTA and other federal laws. 1. ICCTA generally does not preempt state implementation of federal law that requires and attains formal federal approval Town of Ayer states that “nothing in section 10501(b) is intended to interfere with the role of state and local agencies in implementing Federal environmental statutes, such as the [CAA], the [Clean Water Act (CWA)], and the [Safe Drinking Water Act (SDWA)].” 5 S.T.B. 500, at *5. In support of that proposition, Town of Ayer cites two other STB decisions. Id. at *3 (citing Stampede Pass, 2 S.T.B. 330, and Borough of Riverdale, 4 S.T.B. 380 (1999)). Those decisions Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 20 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 14 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 in turn refer only to the CAA, the CWA, and the SDWA as the federal environmental statutes whose local implementation is not generally preempted. Stampede Pass, 2 S.T.B. 330, at *4 & n.14; Borough of Riverdale, 4 S.T.B. 380, at *5; see U.S. EPA, 2014 WL 7392860, at *7 (“The Board has stated that federal environmental statutes such as the CAA, the [CWA], and the [SDWA] are generally outside the scope of § 10501(b) preemption ….”). State “implementation” of each of those federal environmental statutes is entirely controlled by a federal official. Under the CAA, a State Implementation Plan (SIP) submitted by a State adjusts ICCTA’s normal operation only if approved by the Administrator, see AAR, 622 F.3d at 1098, and if the Administrator does not approve a State’s SIP, then the Administrator “shall promulgate a Federal implementation plan.” 42 U.S.C. § 7410(c)(1). Likewise, under the CWA, if the Administrator determines that a state water quality standard is not consistent with the requirements of the CWA, the Administrator specifies necessary changes and, if the State declines to make those changes, the Administrator promulgates a satisfactory federal standard. 33 U.S.C. § 1313(c)(2)–(4). And under the SDWA, the Administrator promulgates national drinking water regulations, and a State may obtain “primary enforcement responsibility” only if the Administrator determines that the state’s drinking water regulations are at least as stringent as national standards. 42 U.S.C. § 300g-2(a)(1). Under each statute, the State could loosely be said to “implement” federal law when it prepares rules in the first instance. And state and local agencies with responsibility to apply those rules to specific activities might also be said to “implement” federal law. But the legally salient feature of those rules is that their content is dictated by federal law, as interpreted by federal officials, because a federal official has final authority to approve or disapprove the rules. The Ninth Circuit in AAR confirmed that Town of Ayer contemplates federally approved state implementation. The court identified two permissible “role[s] for state and local agencies in the environmental regulation of railroads.” AAR, 622 F.3d at 1098. The first is the “implementation” identified in Town of Ayer: “[T]o the extent that state and local agencies Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 21 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 15 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 promulgate EPA-approved statewide plans under federal environmental laws (such as ‘statewide implementation plans’ under the Clean Air Act), ICCTA generally does not preempt those regulations.” Id. (emphasis added) (citing Town of Ayer, 5 S.T.B. 500). The second is state and local enforcement of “generally applicable regulations in a way that does not unreasonably burden railroad activity”—in other words, regulations (such as fire or electrical codes) that are not preempted by ICCTA regardless of their status as state or federal law. Id. The court did not identify a nebulous third category of state and local regulations that Defendants contend survive ICCTA preemption merely because they “implement” federal law despite lacking the federal control that is the hallmark of the CAA, CWA, and SDWA. 2. The Gorge Act scheme establishes state and local control—not federal control—over land use ordinances The County Code’s “implementation” of the Gorge Act does not fall within the above understanding of Town of Ayer’s reference to state and local implementation of federal environmental statutes. Rather, the Gorge counties’ adoption and enforcement of land use ordinances is a function of local authority. a. The absence of federal approval or enforcement of the County Code makes the Gorge Act framework fundamentally different from the framework of federal control over state implementation of the CAA, CWA, and SDWA, to which Town of Ayer referred. As previously explained, under the Gorge Act, the Commission—not any federal official—has final say over the content of the Management Plan and local land use ordinances. See BNSF SJ Br. 16–17. Moreover, counties have wide latitude to shape the content of those ordinances; although the Commission baldly asserts otherwise, it acknowledges that ordinances may vary from the Management Plan as long as they provide greater protection for Gorge Area resources. Comm’n Br. 11. Thus, even a county ordinance outright barring rail construction would be consistent with that limitation—as would a county ordinance barring all military uses or forbidding any other characteristically federal activity—and, as long as the Commission approved, no federal official could do anything about it. See Friends Br. 9 (asserting that the Gorge Act “requires Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 22 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 16 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 federal agencies to respect the National Scenic Area Act”—presumably including its “implementation” by counties and the Commission—“over all other federal laws”) (emphasis added). Because no federal official approves land use ordinances (in the way the Administrator approves state implementation under the CAA, CWA, and SDWA), the content of those land use ordinances is beyond federal control. Congress does not write such blank checks. No reason exists to believe Congress intended those ordinances to supersede federal laws like ICCTA.6 b. All this is true regardless of whether the Secretary happened to concur in the County Code or the Management Plan. See Comm’n Br. 9. Whether the Gorge Act was intended to upend ICCTA’s normal preemptive effect is a question of Congress’s intent, not a matter of the Secretary of Agriculture’s narrow review of land use ordinances for conformity with a Gorge Act that says nothing about railroads. Likewise, it is irrelevant that the Forest Service sometimes reviews development proposals or provides technical support for state and local governments, Decl. of Robin Shoal ¶ 6, Dkt. 37, because the County and the Commission retain ultimate authority to grant or deny those proposals. Tellingly, this role for the Forest Service comes only from Management Plan and the County Code and not from anything Congress enacted in the Gorge Act. See id.; Comm’n Br. 14 (citing County Code § 40.240.060(B)(6)). State and local officials’ discretionary decision to invite the Forest Service’s views cannot endow the ordinances with federal status that Congress did not intend. c. The lack of federal control over the land use ordinances is entirely natural. The Gorge Act, embodying Congress’s consent to an interstate compact, is premised on actions by interstate and local bodies in an area of traditional local regulation. See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 44 (1994) (identifying “regulation of land use” as “a function traditionally performed by local governments”). If either Oregon or Washington withdrew from 6 The state court cases that the Commission cites also do not establish that Scenic Area land use ordinances “implement” federal law. Those cases interpreted state statutes, and they therefore do not address whether Congress intended to exempt those land use ordinances from ICCTA’s general preemption. See Columbia River Gorge Comm’n v. Hood River Cty., 210 Or. App. 689, 696 (2007) (interpreting ORS § 197.352(3)(C)); Klickitat Cty. v. State, 71 Wash. App. 760, 766– 67 (1993) (interpreting RCW § 43.135.060). Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 23 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 17 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the Gorge Compact, see Gorge Compact art. XII, there would be no avenue for the Secretary of Agriculture to regulate land use in the Gorge Area through zoning ordinances—because the federal government lacks the authority to impose such ordinances. See United States v. Certain Lands in Truro, 476 F. Supp. 1031, 1033–34 (D. Mass. 1979) (referencing local “zoning provisions which Congress itself was powerless to enact”). By contrast, the federal environmental statutes to which Town of Ayer refers “regulat[e] … activities causing air or water pollution, or other environmental hazards that may have effects in more than one State,” Hodel v. Virginia Surface Min. & Reclamation Ass’n, 452 U.S. 264, 282 (1981), matters handled at the federal level regardless of whether a State volunteers to implement federal law. Thus, for example, if a State withdraws its SIP under the federally controlled CAA regime, the Administrator implements a federal plan in its place. 42 U.S.C. § 7410(c)(1). But there is no general federal zoning authority, a fact not lost on those involved in enacting the Gorge Act. When the Gorge Act was being developed, the Department of Agriculture bluntly stated, “There should be no direct Federal approval or control responsibilities over zoning the use of private lands.” Bowen Blair, Jr., The Columbia River Gorge National Scenic Area: The Act, Its Genesis and Legislative History, 17 Envtl. L. 863, 920 (1987) (quotation marks omitted). Following amendments, two Senators who had voiced similar concerns “agreed that ‘federal zoning’ had been removed” from the bill that passed the Senate. Id. at 924. In short, Congress did not set up a scheme in which local officials engage in the quintessentially local activity of land-use regulation, over which no federal official has any control—and yet intend for those ordinances to supersede federal law. 3. Defendants offer no other examples of “implementing” federal law Defendants present no persuasive examples of local regulations that are not specifically authorized by a federal statute and lack the characteristics of SIPs, but nonetheless are exempted from standard ICCTA preemption merely because they somehow “implement” federal law. Similarly, Defendants now make only passing mention of cases addressing the Tahoe Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 24 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 18 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Regional Planning Compact. Comm’n Br. 9 (citing Comm’n PI Br. 16–18). Many of those cases appear to treat the ordinances under that compact as federal law, but they provide little reasoning to support that conclusion, which is in tension with Ninth Circuit precedent. See League to Save Lake Tahoe v. B.J.K. Corp., 547 F.2d 1072, 1073, 1075 (9th Cir. 1976) (holding that Tahoe ordinances “do not automatically give rise to Section 1331(a) jurisdiction,” thereby implying that the ordinances are not themselves federal law). And Defendants have apparently abandoned the argument that the County Code itself has the force and effect of federal law. Without specific authorization in a federal statute or approval by a federal official pursuant to a federal environmental statute like the CAA, CWA, or SDWA, the County Code is just what it appears to be—a local zoning law—and is therefore preempted by ICCTA. C. ICCTA Would Preempt the County Code Even if It “Implemented” Federal Law or Had the Force and Effect of Federal Law Although BNSF believes the foregoing reflects the correct legal analysis of the County Code, this Court could also resolve this case by [1] accepting Defendants’ general claim that the County Code is part of a unitary “federal regulatory scheme” established by the Gorge Act, County Br. 9–11, but [2] holding that specific aspects of the Code that could prevent rail construction are preempted under the STB’s U.S. EPA decision. In U.S. EPA, the STB explained that “regulations enacted under federal environmental statutes” may directly conflict with ICCTA if they are “being used to regulate rail operations directly,” and, if so, the rules “would be preempted” by ICCTA “even under the harmonization standard.” 2014 WL 7392860, at *7. In particular, the STB addressed whether rules governing locomotive idling would be preempted if the EPA approved their incorporation into California’s SIP under the CAA. Id. at *1. The STB concluded that the rules “likely would be preempted by § 10501(b),” even though, following approval by the EPA, they would have the force and effect of federal law. Id. at *7. U.S. EPA thus qualifies the general principle in Town of Ayer that ICCTA is not implicated by implementation of federal environmental laws. Defendants offer no meaningful response to U.S. EPA. First, they observe that U.S. EPA Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 25 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 19 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 is not binding. Friends Br. 10–11. True enough, but Defendants’ defense of the County Code rests on Town of Ayer, and they do not explain why this Court should follow the STB’s general rule in Town of Ayer but ignore the qualification in U.S. EPA. The Court should follow U.S. EPA because it is highly persuasive authority that analyzes a question closely analogous to the one presented here. Second, Defendants would distinguish U.S. EPA on the ground that the regulations there addressed rail operations and the County Code addresses rail construction. Comm’n Br. 19; County Br. 12. That is no distinction at all. “Construction” and “operation” are on the same footing throughout ICCTA. ICCTA’s grant of exclusive jurisdiction to the STB covers both construction and operation in one clause. 49 U.S.C. § 10501(b)(2) (“The jurisdiction of the [STB] over … construction … [or] operation … of … side tracks … is exclusive.”). ICCTA’s definition of “transportation” extends to both. 49 U.S.C. § 10102(9) (“ ‘transportation’ includes—(a) a … property, facility, instrumentality, or equipment of any kind related to the movement of … property … by rail … and (b) services related to that movement”). The Ninth Circuit has treated construction and operation together for ordinary preemption analysis. Or. Coast, 841 F.3d at 1077 (holding that ICCTA preempts laws that “give local authorities the power to prevent[ a carrier] from constructing [or] operating … a line”) (quotation marks omitted). And, as a practical matter, a veto over rail construction would directly interfere with rail operations because without a railroad track, there can be no railroad operations. See Mann Decl. ¶¶ 4–7 (describing the effects of this Project on operations); cf. Union Pac. R.R. v. Chicago Transit Auth., 647 F.3d 675, 681 (7th Cir. 2011) (explaining that condemnation of a railroad’s right of way could “have a significant impact on railroad transportation by preventing [the railroad] from using the property for railroad transportation”). On this score, the amici Tribes are commendably candid: They support the imposition of the County Code permitting process on rail construction precisely because the Project supports improved rail operations, the effects of which they dislike. See, e.g., Tribes Br. 11 (stating their objection to “[r]ailroad operation”). Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 26 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 20 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants otherwise offer no basis for distinguishing U.S. EPA, and no authority contradicting its conclusion that ICCTA’s “preempt[ion of] the remedies provided under Federal … law,” 49 U.S.C. § 10501(b), displaces federal regulations that “directly conflict with the goal of uniform national regulation of rail transportation.” U.S. EPA, 2014 WL 7392860, at *9. Thus, whatever the County Code’s status under state or federal law, it is displaced by ICCTA because it directly regulates rail construction. That is sufficient to decide this case. IV. THE DEFENDANTS’ AND AMICI’S OTHER ARGUMENTS LACK MERIT A. The Statements in BNSF’s SEPA Application Do Not Control This Case The County wrongly contends that BNSF irrevocably committed to the County’s permitting process by submitting a SEPA checklist to the Washington Department of Ecology (“DOE”) stating that a county permit would be needed for the Project. BNSF submitted this checklist to obtain coverage under the State’s implementation of the CWA. See Kaitala Decl. Ex. F, Dkt. 63; 40 C.F.R. §§ 123.25(a)(9), 122.26. The statements in the checklist are not the sort of “voluntary agreement” that Town of Ayer suggests survives preemption. 5 S.T.B. 500, at *5 (citing Twp. of Woodbridge, NJ v. Consol. Rail Corp., 5 S.T.B. 336 (2000)). Woodbridge involved a court-approved litigation settlement between a town and a railroad that provided that the railroad would “curtail the idling of locomotives and the switching of rail cars” in certain respects. 5 S.T.B. 336, at *1. By contrast, BNSF’s submission of a checklist to DOE did not cause BNSF to enter into an agreement with the County that the County could enforce. See Town of Ayer, 5 S.T.B. 500, at *5 (“[A] town may seek court enforcement of voluntary agreements that the town ha[s] entered into with a railroad.”) (emphasis added). Moreover, BNSF’s statements in the checklist addressed participation in a legal process, while Woodbridge involved an agreement to refrain from particular rail operations. Agreeing to such operational restrictions implies that such forbearance, as a practical matter, “would not unreasonably interfere with interstate commerce,” Woodbridge, 5 S.T.B. 336, at *3. No similar Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 27 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 21 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 implication attaches to the checklist because the County Code’s preclearance requirements “by their nature … unduly interfere with interstate commerce,” Town of Ayer, 5 S.T.B. 500, at *5. Thus, even if BNSF had made a contractual commitment, that commitment would be “deemed void as contrary to public policy.” Hanson Natural Res., FD 32248, 1994 WL 673712, at *2 (ICC Nov. 15, 1994); see R.R. Ventures, Inc. v. STB, 299 F.3d 523, 560 (6th Cir. 2002) (upholding STB decision that settlement contract was unenforceable insofar as it would “unreasonably interfere with” the railroad’s “future fulfillment of common carrier obligations”). Moreover, the record does not support the County’s suggestion that it relied upon these statements in the checklist. Nor has the County shown that the inclusion of those particular statements was material to DOE’s decision to issue a permit. DOE uses the “environmental checklist … to assist in making threshold determinations for proposals” that are used to determine whether a project would have “a probable significant adverse impact [on the environment] and thus require[] an [environmental impact statement].” WAC §§ 197-11-315(1), 197-11-300(2). Nothing suggests that DOE identified an impact that would be mitigated by a County permit. See Kaitala Decl. Ex. F, Dkt. 63. And even if DOE “identif[ied] questions on the checklist adequately covered by a locally adopted ordinance,” DOE still had an independent obligation to “consider whether the action has an impact on the particular element or elements of the environment in question.” WAC § 197-11-315(6). Nor could DOE have lawfully conditioned its approval of an otherwise-proper SEPA application on BNSF’s participation in a preempted County land-use process—such bureaucratic extortion would frustrate Congress’s purposes in ICCTA in the same way that direct application of the County process would. See, e.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372–73 (2000) (state action that “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” is preempted) (brackets and quotation marks omitted).7 7 The County appropriately stops short of asserting an estoppel argument. Among other elements, estoppel requires a factual representation that a party relied upon to its detriment. See Concerned Land Owners of Union Hill v. King Cty., 64 Wash. App. 768, 778 (1992) (equitable estoppel is inapplicable to question of law); Gabriel v. Alaska Elec. Pension Fund, 773 F.3d 945, Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 28 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 22 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 B. Amici Offer No Sound Legal Basis for Preserving a County Veto The amici Indian tribes urge this Court to refuse to give effect to ICCTA on the ground that the Gorge Act protects tribal interests. The Court should decline this invitation. 1. The Gorge Act is not the linchpin of the Tribes’ rights. The Tribes and United States entered treaties in 1855 (see Tribes Br. 3–4). The Gorge Act did not arrive until 130 years later; in the meantime, the Tribes protected their interest in Columbia River fisheries through litigation in this court (see Tribes Br. 5 (citing pre-Gorge Act decisions)). And as a purely geographic matter, even today the Gorge Act does not protect all the resources of interest to the Tribes. For example, the Tribes’ reservations are located some distance from the Scenic Area. Rather, as the Tribes concede, “other means exist to protect their resources.” Tribes Br. 10–11. In addition to treaty-based litigation, the Tribes themselves point to the National Historic Preservation Act, 54 U.S.C. §§ 300101 et seq., the Archaeological Resources Protection Act, 16 U.S.C. §§ 470aa et seq., and the Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001 et seq. Equally important is ICCTA itself, as it requires STB authorization for construction of extensions of rail lines and additional rail lines, and the STB will withhold authorization if “such activities are inconsistent with the public convenience and necessity.” 49 U.S.C. § 10901(a), (c). That standard embraces consideration of tribal interests. For example, New Mexico Navajo Ranchers Ass’n v. ICC, 702 F.2d 227 (D.C. Cir. 1983), vacated the approval granted by the Interstate Commerce Commission (the STB’s predecessor) to construct a railroad that would affect Navajo interests. It found the Commission had failed to fully consider “whether the construction of the line is in the public interest,” and it remanded for the Commission to determine whether construction would be “consistent with” “the status of the 955 (9th Cir. 2014) (estoppel requires detrimental reliance). BNSF’s assertion that a permit “will be needed” is at most a legal conclusion, not a factual representation. Nor does the record show how the County relied on such an assertion to its detriment. The County asserts no injury that flowed from a purported inability to “provide meaningful comment” (County Br. 16) to DOE. Indeed, the record shows that the County was fully aware that BNSF was initiating construction without obtaining a permit, refused BNSF’s repeated efforts to discuss the Project, and threatened (but did not take) enforcement action. See Lynch Decl. Exs. A–D, Dkt. 64; Lang Decl. ¶ 18, Dkt. 25 (Friends contacted County in February 2018 about the Project). Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 29 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 23 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Navajo tribe as a quasi-sovereign nation.” Id. at 230, 233 (quotation marks omitted).8 2. The nature of the Tribes’ asserted interest here should carry no weight in resolving the legal questions presented. Elsewhere, these same Tribes have moved to dismiss litigation allegedly implicating their particular interests, but to which they were not a party (and could not be joined, due to their sovereign immunity). Union Pac. R.R. v. Runyon, 320 F.R.D. 245 (D. Or. 2017), appeal pending No. 17-35207 (9th Cir.). But here, they appear only as amici to assert a generalized opposition to rail construction that allows railroad operations they dislike. That desire to reduce railroad operations is contrary to “the policy of the United States Government … to ensure the development and continuation of a sound rail transportation system … to meet the needs of the public.” 49 U.S.C. § 10101 & (a). Curtailing rail transportation is not the answer to concerns about hazardous materials (Tribes Br. 11–12) or safety (id. 13–14). Rather, BNSF has comprehensive rail safety and emergency response programs. Expert regulators oversee these programs under multiple federal laws, such as [1] HMTA, whose “purpose … is to protect against the risks to life, property, and the environment that are inherent in the transportation of hazardous materials,” 49 U.S.C. § 5101, and [2] the Federal Railroad Safety Act, 49 U.S.C. §§ 20101 et seq., whose “purpose … is to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents,” 49 U.S.C. § 20101. 3. Finally, the Tribes misapprehend BNSF’s objection to the County Code. BNSF does not contend it can “act with impunity” (Tribes Br. 10) in undertaking projects in the Scenic Area. But the County cannot wield a veto over BNSF’s projects. That does not, however, threaten the communication, cooperation, and mitigation that Town of Ayer, 5 S.T.B. 500, at *7, states are likely not preempted. For example, ICCTA would not preempt “consultation with the Treaty Tribes on the issues of significance, effects, and mitigation.” Tribes Br. 7. This is not an abstract commitment. For example, for this Project BNSF prepared and 8 The STB does not review smaller projects (such as the Project here) under this particular standard. But the STB does review larger projects, which may reasonably be expected to have correspondingly greater potential to significantly implicate tribal interests. Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 30 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 24 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 implemented an Inadvertent Discovery Plan that, among other things, sets forth a procedure for consultation with Indian tribes that must be followed if construction activity exposes any potential human remains. Kaitala Supp. Decl. ¶ 4 & Ex. G. Overall, BNSF has trained more than a thousand employees on proper procedures to follow if they inadvertently discover human remains or other cultural resources. Johnsen Decl. ¶ 6. More broadly, BNSF regularly engages with Indian tribes to address concerns that rail operations may interfere with treaty rights. Id. ¶ 3. One product of those efforts is BNSF’s development—in collaboration with the amici Tribes—of an Access Program to address the very concerns they raise (Br. 13–14) about access across BNSF’s right-of-way to reach usual and accustomed non-reservation lands to engage in hunting, fishing, and other traditional activities. That Access Program affirms these tribal rights, promotes communication between BNSF and the Tribes, supplies methods for resolving conflicts regarding access, and promotes appropriate training for tribal members to cross BNSF’s right-of- way safely. Johnsen Decl. ¶¶ 3–5 & Ex. A. This cooperative process—in which BNSF will continue to engage regardless of the outcome of this case—is established and appropriate. V. DECLARATORY AND INJUNCTIVE RELIEF IS WARRANTED In opposing BNSF’s motion for summary judgment, Defendants do not dispute that a declaratory judgment and permanent injunction are warranted if BNSF prevails. They also do not take issue with the proposed order and judgment that BNSF submitted. Dkt. 62-1, Dkt. 62-2. Accordingly, if the Court grants BNSF’s motion, the requested relief should issue. VI. CONCLUSION For the foregoing reasons, BNSF’s motion for summary judgment should be granted, Defendants’ cross-motions for summary judgment should be denied, and final judgment entered. Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 31 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 25 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DATED this 14th day of March, 2019 K&L GATES LLP By: /s/ James M. Lynch By: James M. Lynch WSBA #29492 /s/ J. Timothy Hobbs By: J. Timothy Hobbs WSBA #42665 K&L Gates LLP 925 Fourth Avenue, Suite 2900 Seattle, WA 98104 Telephone: (206) 623-7580 Fax: (206) 623-7022 Jim.Lynch@klgates.com Tim.Hobbs@klgates.com /s/ Barry Hartman Barry Hartman (pro hac vice) K&L Gates LLP 1601 K Street, NW Washington, DC 20006-1600 Telephone: (202) 778-9000 Fax: (202) 778.9100 Barry.Hartman@klgates.com MUNGER, TOLLES & OLSON LLP By: /s/ Benjamin Horwich By: Benjamin H. Horwich (pro hac vice) /s/ Allison M. Day By: Allison M. Day (pro hac vice) /s/ Andre W. Brewster III Andre W. Brewster III (pro hac vice) Munger, Tolles & Olson LLP 560 Mission Street, Twenty-Seventh Floor San Francisco, CA 94105 Telephone: (415) 512-4000 Fax: (415) 512-4077 Ben.Horwich@mto.com Allison.Day@mto.com Andy.Brewster@mto.com Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 32 of 33 PLAINTIFF BNSF RAILWAY COMPANY’S REPLY I/S/O SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTIONS - 26 - USDC CASE NO. 3:18-CV-5926 K&L GATES LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98104-1158 Telephone: +1 206 623 7580 Facsimile: +1 206 623 7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 By: /s/ Ginger D. Anders Ginger D. Anders (pro hac vice) Munger, Tolles & Olson LLP 1155 F Street NW, Seventh Floor Washington, DC 20004 Telephone: (202) 220-1100 Fax: (202) 220-2300 Ginger.Anders@mto.com Attorneys forPlaintiff BNSF Railway Co. Case 3:18-cv-05926-BHS Document 81 Filed 03/14/19 Page 33 of 33