BNSF Railway Company v. Clark County et al

REPLY

W.D. Wash.March 28, 2019

Honorable Benjamin H. Settle REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA BNSF RAILWAY COMPANY, Plaintiff, v. CLARK COUNTY, Defendant, COLUMBIA RIVER GORGE COMMISSION, Intervenor-Defendant, FRIENDS OF THE COLUMBIA GORGE, Intervenor-Defendant. Case No. 3:18-cv-05926-BHS INTERVENOR-DEFENDANT FRIENDS OF THE COLUMBIA GORGE’S REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT ORAL ARGUMENT REQUESTED NOTING DATE March 29, 2019 Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 1 of 13 Honorable Benjamin H. Settle INTERVENOR-DEF. FRIENDS’ REPLY IN SUPPORT OF CROSS-MOT. FOR SUMM. J. (Case No. 3:18-cv-5926) Page 1 REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 I. INTRODUCTION 1 Intervenor-Defendant Friends of the Columbia Gorge, Inc. (“Friends”) replies in support 2 of its Cross-Motion for Summary Judgment (Dkt. #75). In its Response (Dkt. #81), Plaintiff 3 BNSF Railway Company (“BNSF”) incorrectly contends that Friends has abandoned its 4 arguments that, because it is authorized by, required by, and implements the Columbia River 5 Gorge National Scenic Area Act (“National Scenic Area Act” or “Act”), 16 U.S.C. §§ 544–544p, 6 Clark County’s National Scenic Area ordinance has the force and effect of federal law and is not 7 categorically preempted by federal railroad law. Friends explicitly adopted these arguments in its 8 Cross-Motion for Summary Judgment and has not dropped them. 9 Additionally, in its attempts to construct a major project in the National Scenic Area with 10 no National Scenic Area permitting whatsoever, BNSF misportrays the current legal landscape. 11 It relies on Surface Transportation Board (“STB”) decisions that deserve no deference, it 12 discounts controlling Ninth Circuit precedent, it misunderstands which federal laws must be 13 harmonized with federal railroad law, it incorrectly interprets Supreme Court case law governing 14 the use of congressional legislative history, and it misconstrues the provisions of the National 15 Scenic Area Act and implementing authorities requiring the protection and enhancement of 16 agricultural lands in the National Scenic Area. The Court should conclude that the National 17 Scenic Area Act is not preempted, and should deny BNSF’s Motion for Summary Judgment and 18 grant Defendants’ Cross-Motions for Summary Judgment. 19 II. ARGUMENT 20 A. Friends has not abandoned its arguments that, because it is authorized and required 21 by the National Scenic Area Act, Clark County’s National Scenic Area ordinance 22 has the force and effect of federal law and is not categorically preempted. 23 24 In previous briefing, Friends argued that Clark County’s National Scenic Area ordinance, 25 Clark County Code (“CCC”) Chapter 40.240, was not categorically preempted by the Interstate 26 Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 2 of 13 Honorable Benjamin H. Settle INTERVENOR-DEF. FRIENDS’ REPLY IN SUPPORT OF CROSS-MOT. FOR SUMM. J. (Case No. 3:18-cv-5926) Page 2 REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 Commerce Commission Termination Act of 1995 (“ICCTA”), 49 U.S.C. §§ 10101, et seq., 1 because the Clark County ordinance is authorized by, required by, and implements the federal 2 National Scenic Area Act, and therefore has the force and effect of federal law. (Dkt. #44 at pp. 3 8–14.1) Friends explicitly adopted those arguments in its Cross-Motion for Summary Judgment. 4 (Dkt. #75 at pp. 8.) Still, BNSF seems confused and repeatedly asserts that those arguments have 5 been dropped. (See, e.g., Dkt. #81 at pp. 8, 10, 25.) Just to be crystal clear, as stated in its Cross-6 Motion for Summary Judgment, Friends has not dropped these arguments. (Dkt. #75 at pp. 8.) 7 B. Under prevailing Ninth Circuit precedent, ICCTA does not categorically preempt 8 the Columbia River Gorge National Scenic Area Act nor its implementing 9 authorities. 10 11 1. BNSF improperly relies on Surface Transportation Board decisions that 12 the Supreme Court has decided do not deserve deference. 13 14 Despite conceding that under recent United States Supreme Court precedent, “the 15 reconciliation of distinct statutory regimes is a matter for the courts, not agencies” (Dkt. #81 at p. 16 16 (quoting Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1629 (2018)), BNSF now primarily relies 17 on dicta in STB decisions to assert that ICCTA categorically preempts the implementing 18 authorities required by the National Scenic Area Act. See, e.g., Dkt. #81 at p. 9 (citing 14500 19 Ltd. LLC, FD 35788, 2014 WL 2608812, at *4 (STB June 4, 2014) (STB deciding that state 20 common law claims are preempted by ICCTA)); Dkt. #81 at p. 25 (citing U.S. Envtl. Prot. 21 Agency, FD 35803, 2014 WL 7392860, at *9 (STB Dec. 29, 2014)2 (STB declined to issue a 22 declaratory order but nevertheless opined on its own jurisdiction)). Just last year, the U.S. 23 1 Throughout this Brief, all citations to specific pages within documents, including other briefs, are to the ECF-stamped page numbers at the top of each page. 2 This STB decision is also easily distinguished because it rested on the patchwork of railroad operation regulations that would result if every one of the more than one hundred air quality districts in the country had different regulations affecting trains as they passed through each district, thus requiring railroads to constantly alter their operations. EPA, 2014 WL 7392860 at *8. In contrast, the instant case involves unique, federally required regulations regarding railroad construction activities in a single location: the federally protected Columbia River Gorge National Scenic Area. Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 3 of 13 Honorable Benjamin H. Settle INTERVENOR-DEF. FRIENDS’ REPLY IN SUPPORT OF CROSS-MOT. FOR SUMM. J. (Case No. 3:18-cv-5926) Page 3 REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 Supreme Court decided that courts, rather than agencies, decide the bounds of statutes’ 1 preemptive effects because “[a]n agency eager to advance its statutory mission, but without any 2 particular interest in or expertise with a second statute, might (as here) seek to diminish the 3 second statute’s scope in favor of a more expansive interpretation of its own.” Epic Sys. Corp., 4 138 S. Ct. at 1629. Accordingly, this Court should not rely on the STB’s interpretation of 5 ICCTA’s preemptive effect. 6 BNSF relies heavily on the STB’s decision in U.S. Environmental Protection Agency. 7 (See, e.g., Dkt #81, at pp. 20–23.) In that proceeding, the EPA asked the STB for a declaratory 8 order on whether portions of a Clean Air Act State Implementation Plan were preempted by 9 ICCTA. 2014 WL 7392860, at *1. The STB, however, declined to issue a declaratory order on 10 the issue, but that did not stop the STB from proclaiming its interpretation of the breadth of 11 ICCTA’s preemptive effect. Id. at *9. This is a prime example of “[a]n agency eager to advance 12 its statutory mission [and thus] seeking to diminish the second statute’s scope in favor of a more 13 expansive interpretation of its own,” and this is exactly why agencies do not enjoy deference 14 when they interpret the scope of preemption. Epic Sys. Corp., 138 S. Ct. at 1629. 15 The other case upon which BNSF heavily relies, Boston & Maine Corp. & Town of Ayer, 16 MA, 5 S.T.B. 500 (2001), suffers from similar infirmities. There, the STB produced several 17 pages of dicta about the preemptive reach of ICCTA, showing again why agencies do not 18 deserve deference when they interpret the scope of preemption. Under the Supreme Court’s 19 decision in Epic Systems Corp., the STB’s decisions on the scope of preemption hold no weight. 20 2. Recent Ninth Circuit precedent confirms that Clark County’s National 21 Scenic Area ordinance and the Gorge Management Plan are saved from 22 preemption. 23 24 While relying on STB decisions that deserve no weight, BNSF also attempts to dismiss 25 the most recent Ninth Circuit precedent, BNSF Railway Company v. California Department of 26 Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 4 of 13 Honorable Benjamin H. Settle INTERVENOR-DEF. FRIENDS’ REPLY IN SUPPORT OF CROSS-MOT. FOR SUMM. J. (Case No. 3:18-cv-5926) Page 4 REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 Tax and Fee Administration (“CDTFA”), 904 F.3d 755 (9th Cir. 2018), by asserting that a 1 California law assessing fees on railroads would only be “saved from preemption because 2 another federal statute, the Hazardous Materials Transportation Act (HMTA), ‘specifically 3 authorized’ hazardous materials fees.” (Dkt. #81 at pp. 16–17 (quoting CDTFA, 904 F.3d at 4 762).) BNSF then asserts that the Clark County National Scenic Area ordinance is not 5 “specifically authorized” by the National Scenic Area Act. Id. BNSF is wrong. The National 6 Scenic Area Act not only specifically authorizes, but also requires, the adoption of a 7 Management Plan and county ordinances that implement and enforce the National Scenic Area 8 Act; it requires federal approval of these implementing authorities; and it requires federal 9 agencies to act consistent with them. 16 U.S.C. §§ 544d(c), (f), 544l(d). Rather than falling short 10 of the Ninth Circuit’s standard in CDTFA, the National Scenic Area Act goes well beyond 11 HMTA’s mere authorization. Because the Gorge Management Plan and Clark County’s National 12 Scenic Area ordinance are both authorized and required by federal law, have received the 13 required federal approval, and apply directly to federal agencies, they are not preempted by 14 ICCTA. 15 Where BNSF does stray from its reliance on STB decisions purporting to enlarge STB’s 16 own dominion, BNSF cites two Ninth Circuit cases that are outdated and easily distinguishable 17 from the instant case. (Dkt. #81 at p. 13 (citing City of Auburn v. United States, 154 F.3d 1025 18 (9th Cir. 1998); Or. Coast Scenic R.R. v. Or. Dep’t of State Lands, 841 F.3d 1069 (9th Cir. 19 2016).) Both of these cases involved state or local laws that lacked a federal nexus. In contrast, 20 as discussed above, the Clark County National Scenic Area ordinance, as well as the Gorge 21 Management Plan, are authorized and required by federal law and have been federally approved. 22 In addition, CDTFA was decided by the Ninth Circuit more recently than the two cases 23 cited by BNSF, and touches on very similar subject matter as the instant case: where a state or 24 Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 5 of 13 Honorable Benjamin H. Settle INTERVENOR-DEF. FRIENDS’ REPLY IN SUPPORT OF CROSS-MOT. FOR SUMM. J. (Case No. 3:18-cv-5926) Page 5 REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 local law is authorized or required by federal law, and appears to be inconsistent with another 1 federal law, the two federal laws must be harmonized. CDTFA, 904 F.3d at 766. However, 2 BNSF nevertheless relies on STB decisions of a type that the Supreme Court says should be 3 disregarded, and on stale and easily distinguishable Ninth Circuit cases. 4 Because BNSF has failed to establish that the National Scenic Area Act’s implementing 5 authorities (the Clark County National Scenic Area ordinance and the Gorge Management Plan) 6 are categorically preempted by ICCTA, its Motion for Summary Judgement should be denied 7 and Defendants’ Cross-Motions for Summary Judgment should be granted. 8 3. BNSF seeks to improperly construct its project with no National Scenic Area 9 review whatsoever. 10 11 BNSF acknowledges that the STB has not asserted review authority over this project. 12 (Dkt. #81 at p. 30 n.8.) At the same time, BNSF states that “ICCTA categorically preempts ‘state 13 or local permitting or preclearance requirements, including . . . environmental and land use 14 permitting requirements,’ that ‘by their nature, could be used to deny a railroad’s ability’ to 15 engage in rail construction,” and asserts that Clark County’s National Scenic Area ordinance is 16 preempted. (Dkt. #81 at p. 9 (quoting 14500 Ltd. LLC, 2014 WL 2608812, at *4).) To be clear, 17 BNSF wants nobody to have review authority over its development projects in the National 18 Scenic Area, regardless of its projects’ effects on the federally protected resources there.3 19 Moreover, what the STB actually stated in 14500 Ltd. LLC4 was that ICCTA preemption 20 “prevents states or localities from imposing requirements that, by their nature, could be used to 21 3 BNSF also states that no review under the National Scenic Area Act is necessary for tribal interests because those interests are examined as part of STB review and then, rebutting its own argument, admits in a footnote that the STB will not be examining tribal interests for this project. (Dkt. #81 at pp. 29, 30 n.8.) In other words, under BNSF’s theory of the case, no review for effects to tribal interests will be undertaken by any agency. 4 Again, this is an STB decision interpreting preemption, and it thus should be discarded. Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 6 of 13 Honorable Benjamin H. Settle INTERVENOR-DEF. FRIENDS’ REPLY IN SUPPORT OF CROSS-MOT. FOR SUMM. J. (Case No. 3:18-cv-5926) Page 6 REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 deny a railroad’s ability to conduct rail operations or proceed with activities that the Board has 1 authorized, such as construction or abandonment.” 2014 WL 2608812, at *4 (emphasis added). 2 Here, as BNSF acknowledges, the STB has authorized nothing for BNSF’s project. (Dkt. #81 at 3 p. 30 n.8.) Thus, even under the STB’s expansive interpretation of ICCTA’s preemptive effects, 4 ICCTA preemption would not apply here. This makes perfect sense because it ensures that, 5 where the STB has not asserted its permitting authority, review that is authorized and required by 6 another federal law—in this case, the National Scenic Area Act—still applies. 7 4. BNSF misstates which federal laws must be harmonized with ICCTA. 8 9 BNSF names three federally enacted, locally implemented environmental laws, and 10 implies that these are the only three such laws that could survive ICCTA preemption. (Dkt. #81 11 at pp. 20–21.)5 Of course, conflicts between ICCTA and any other federal law—whether 12 environmental in nature or not—must be harmonized. See Ass’n of Am. R.Rs. v. S. Coast Air 13 Quality Mgmt. Dist., 622 F.3d 1094, 1097 (9th Cir. 2010) (“If an apparent conflict exists 14 between ICCTA and a federal law, then the courts must strive to harmonize the two laws, giving 15 effect to both laws if possible.” (emphasis in original)). In addition, in its recent CDTFA 16 decision, the Ninth Circuit decided that HMTA—which is not an environmental law, much less 17 one of the three mentioned by BNSF—survives ICCTA preemption. 904 F.3d at 766. BNSF’s 18 implied argument that only three particular environmental laws can survive ICCTA preemption 19 has simply not held up in court. 20 / / / 21 / / / 22 5 BNSF cites U.S. EPA for this proposition. That STB case states “that federal environmental statutes such as the [Clean Air Act], the Clean Water Act, and the Safe Drinking Water Act are generally outside the scope of § 10501(b) preemption.” 2014 WL 7392860, at *7 (emphasis added). Of course, “such as” indicates that the list of three statutes is not exhaustive. Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 7 of 13 Honorable Benjamin H. Settle INTERVENOR-DEF. FRIENDS’ REPLY IN SUPPORT OF CROSS-MOT. FOR SUMM. J. (Case No. 3:18-cv-5926) Page 7 REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 C. BNSF improperly downplays the presumption against preemption by misconstruing 1 controlling case law. 2 3 BNSF contends that there is no presumption against preemption here, because ICCTA 4 contains an express preemption clause and is more specific than the National Scenic Area Act. 5 (Dkt. #81 at p. 16.) However, as the Ninth Circuit recently decided while interpreting ICCTA, 6 “federalism entails a ‘traditional presumption against the federal preemption of state rules in 7 areas of traditional state regulation,’” like zoning ordinances. CDTFA, 904 F.3d at 765 (quoting 8 Massachusetts v. U.S. Dep’t of Transp., 93 F.3d 890, 894 (D.C. Cir. 1996)). Thus, there is a 9 presumption against preemption of Clark County’s National Scenic Area ordinance in this case. 10 BNSF further argues that “the canon [of presumption against preemption] is equivocal 11 where, as here, either statute could arguably be regarded a [sic] more specific: The Gorge Act is 12 geographically specific but otherwise regulates a variety of uses, while ICCTA has nationwide 13 reach but specifically deals with rail uses.” (Dkt. #81 at p. 19.) However, in CDTFA, the Ninth 14 Circuit examined ICCTA and decided that “[t]he preemption provision of the ICCTA is broad 15 and general,” and that HMTA was more specific than ICCTA. CDTFA, 904 F.3d at 766. This 16 holding directly undercuts BNSF’s argument. Similarly, a sister district court has previously held 17 that the Tahoe Regional Planning Compact, which served as a model for the Columbia River 18 Gorge Compact at issue here, was more specific than the national-in-scope Airline Deregulation 19 Act (the air travel version of ICCTA), due to the Tahoe Compact’s circumscribed geographical 20 reach. City of South Lake Tahoe v. Tahoe Reg’l Planning Agency, 664 F. Supp. 1375, 1377 (E.D. 21 Cal. 1987) (The Compact “is more specific than the Airline Deregulation Act as it is limited to a 22 very narrow geographical area.”). This Court should reach a similar conclusion and enter the 23 inquiry with a presumption against preemption of Clark County’s National Scenic Area 24 ordinance. 25 Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 8 of 13 Honorable Benjamin H. Settle INTERVENOR-DEF. FRIENDS’ REPLY IN SUPPORT OF CROSS-MOT. FOR SUMM. J. (Case No. 3:18-cv-5926) Page 8 REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 BNSF also argues that “a specific statute controls over a general one only ‘where there is 1 no clear intention otherwise’” and that “[s]uch a clear intention exists in ICCTA.” (Dkt. #81 at p. 2 19 (quoting CDTFA, 904 F.3d at 766).) However, despite (or perhaps because of) the breadth of 3 ICCTA’s preemption clause, just six months ago the Ninth Circuit declined to adopt BNSF’s 4 argument that such a “clear intention” exists in ICCTA, and instead found that the HMTA could 5 save a properly fashioned state law from ICCTA preemption. CDTFA, 904 F.3d at 766. 6 In trying to make its case against a presumption of preemption, BNSF consistently cites 7 case law that is not on point, and consistently disregards recent Ninth Circuit precedent. BNSF 8 has failed to establish that Clark County’s National Scenic Area ordinance is categorically 9 preempted. Thus, BNSF’s Motion for Summary Judgement should be denied and Defendants’ 10 Cross-Motions for Summary Judgment should be granted. 11 D. BNSF fails to undermine the relevance and weight of the authoritative legislative 12 history of the National Scenic Area Act. 13 14 Despite the extensive legislative history of the National Scenic Area Act showing that 15 the railroads expressly implored Congress to exempt their activities from regulation, and that 16 Congress chose not to do so, BNSF argues that no weight should be given to this legislative 17 history, citing a single Supreme Court case in support. (Dkt. #81, at p. 20 (quoting Mead Corp. 18 v. Tilley, 490 U.S. 714, 723 (1989)). However, the Supreme Court typically does recognize and 19 give weight to such rejections of specific proposed amendments. See, e.g., HCSC-Laundry v. 20 U.S., 450 U.S. 1, 14 (1981); Whirlpool Corp. v. Marshall, 445 U.S. 1, 17–21 (1980); Monell v. 21 New York City Dept. of Soc. Servs., 436 U.S. 658, 694 (1978); Fry v. U.S., 421 U.S. 542, 546 22 (1975); Whitney Nat’l Bank in Jefferson Par. v. Bank of New Orleans & Trust Co., 379 U.S. 23 411, 419–20 (1965); Int’l Union of United Auto., Aircraft & Agric. Implement Workers of Am. 24 v. Brien, 339 U.S. 454, 458 (1950). In addition, the Mead case cited by BNSF involved the 25 Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 9 of 13 Honorable Benjamin H. Settle INTERVENOR-DEF. FRIENDS’ REPLY IN SUPPORT OF CROSS-MOT. FOR SUMM. J. (Case No. 3:18-cv-5926) Page 9 REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 removal of a single word from a bill during the drafting process, without explanation. 490 U.S. 1 at 723. Unlike the extensive legislative history of the National Scenic Area Act presented here, 2 the action in Mead was, in fact, a “mute intermediate legislative maneuver[].” Id. BNSF has 3 failed to undermine the relevance and weight of the National Scenic Area Act’s legislative 4 history. 5 Additionally, in an attempt to undermine Senator Gorton’s floor statement, in which the 6 Senator expressly stated that Congress intended for railroad activities to be regulated under the 7 National Scenic Area Act, BNSF argues that the statement “has no ‘meaningful weight.’” (Dkt. 8 #81, at p. 11 (quoting Graham Cty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 9 U.S. 280, 297 (2010).). First, Graham is incorrectly cited here. Contrary to BNSF’s arguments, 10 Graham does not hold that congressional floor statements are not to be given meaningful 11 weight. Rather, the full sentence from Graham excerpted by BNSF was mere dicta, and it 12 focused on the vague and limited nature of a single sentence taken from a floor statement in 13 that case: “Yet even if a single sentence by a single legislator were entitled to any meaningful 14 weight, Senator Grassley’s remark merely begs the question before us.” 559 U.S. at 297. Here, 15 Senator Gorton’s floor remarks were much more extensive than a single sentence, and they 16 were very specific about Congress’s intent to regulate the railroads’ activities in the National 17 Scenic Area. (See 132 Cong. Rec. 33,207 (1986) (Dkt. #46 at p. 3).) 18 Moreover, BNSF ignores the fact that Senator Gorton was a sponsor of the Scenic Area 19 legislation,6 and that he provided his extensive remarks about regulating railroad activities on 20 6 The Scenic Area Act is Public Law No. 99-663, which was H.R. 5705 in the 99th Congress. The counterpart bill in the Senate, co-sponsored by Senator Gorton, was S. 2055. See 132 Cong. Rec. 33,206 (1986) (Dkt. #46 at 2) (statement of Sen. McClure) (referring to Senator Gorton as a “sponsor[] of this measure”); Bowen Blair, Jr., The Columbia River Gorge National Scenic Area: The Act, Its Genesis and Legislative History, 17 Envtl. L. 863, 930 (1987) (referring to Senator Gorton as a “Senate sponsor”). Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 10 of 13 Honorable Benjamin H. Settle INTERVENOR-DEF. FRIENDS’ REPLY IN SUPPORT OF CROSS-MOT. FOR SUMM. J. (Case No. 3:18-cv-5926) Page 10 REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 the floor of the Senate mere minutes before passage of the Scenic Area Act. The floor 1 comments of individual sponsors immediately before enactments of statutes are not only 2 relevant, they may provide “an authoritative guide to [a] statute’s construction”—especially 3 when, as here with respect to railroad activities in the National Scenic Area, they “are the only 4 authoritative indications of congressional intent.” North Haven Bd. of Ed. v. Bell, 456 U.S. 512, 5 526–27 (1982). Accordingly, Senator Gorton’s statements “deserv[e] to be accorded substantial 6 weight in interpreting the statute.” FEA v. Algonquin SNG, Inc., 426 U.S. 548, 564 (1976). 7 E. The identified provision of the Clark County National Scenic Area ordinance 8 requiring the protection of agricultural lands in the National Scenic Area is not a 9 “veto” provision, and it is expressly required by the National Scenic Area Act. 10 11 BNSF calls out a specific provision of the Clark County National Scenic Area as 12 supposedly “giv[ing] the County a clear veto over the project. Section 40.240.460 in particular 13 states that a use ‘may be allowed only if’ it ‘is compatible with agricultural uses and would not 14 force a change in or significantly increase the cost of accepted agricultural practices on nearby 15 lands devoted to agricultural use.’” (Dkt. #81 at p. 11 (quoting CCC § 40.240.460(A).)7 To be 16 clear, neither the National Scenic Area Act nor the Clark County National Scenic Area ordinance 17 contains “explicit veto” provisions over this project. (Dkt. #81 at p. 11.) However, even if the 18 statute or ordinance did contain “veto” provisions, the National Scenic Area Act and ICCTA 19 would need to be harmonized to determine if such a veto were preempted. 20 Neither H.R. 5705 nor S. 2055 contained any savings provisions or other exemptions for railroad activities. 7 BNSF puts all of its eggs in one basket, stating that its “challenge here is quite limited: The veto and preclearance process in the County Code is preempted.” (Dkt. #81 at p. 14.) At the same time, BNSF asserts that the Special Management Area (“SMA”) portions of the Clark County National Scenic Area ordinance and the Gorge Management Plan do not contain a veto. (Dkt. #81 at p. 11 n.3.) Thus, under BNSF’s logic, the SMA portions of the Clark County ordinance and Management Plan are not preempted, even if the General Management Area portions are. Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 11 of 13 Honorable Benjamin H. Settle INTERVENOR-DEF. FRIENDS’ REPLY IN SUPPORT OF CROSS-MOT. FOR SUMM. J. (Case No. 3:18-cv-5926) Page 11 REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 An examination of the National Scenic Area Act shows that the Gorge Management Plan 1 and Clark County’s National Scenic Area ordinance are required by federal law. The Act 2 requires that “[w]ithin three years after the date the Commission is established, it shall adopt a 3 management plan for the scenic area” consistent with the National Scenic Area Act. 16 U.S.C. 4 544(c) (emphasis added). The Act also requires that “[w]ithin two hundred and seventy days of 5 receipt of the management plan, each county shall adopt a land use ordinance consistent with the 6 management plan.” 16 U.S.C. 544e(b)(2) (emphasis added); see also Columbia River Gorge 7 Comm’n v. Hood River County, 210 Or. App. 689, 152 P.3d 997, rev. den., 342 Or. 727, 160 8 P.3d 992 (2007) (The National Scenic Area Act’s implementing rules, including the 9 Management Plan and the county ordinances, are required by federal law and thus were not 10 subject to a state ballot measure.). 11 Here, the county ordinance provision identified by BNSF (CCC § 40.240.460(A)) is 12 expressly required by the National Scenic Area Act. Specifically, the Act requires that “[t]he 13 management plan and all land use ordinances . . . adopted pursuant to th[e] Act shall include 14 provisions to . . . protect and enhance agricultural lands for agricultural uses.” 16 U.S.C. 15 544d(d)(1) (emphasis added). Thus, Clark County is required by federal law to adopt ordinance 16 provisions to “protect and enhance agricultural lands for agricultural uses.” Id. 17 BNSF argues that there is no conflict between the two federal statutes, so there is no need 18 to harmonize them. (Dkt. #81 at p. 14.) To the contrary, the provision objected to by BNSF 19 comes directly from the National Scenic Area Act, and if there is a conflict between the 20 provisions of ICCTA and the National Scenic Area Act, the two federal statutes must be 21 harmonized. See CDTFA, 904 F.3d at 761. 22 / / / 23 / / / 24 Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 12 of 13 Honorable Benjamin H. Settle INTERVENOR-DEF. FRIENDS’ REPLY IN SUPPORT OF CROSS-MOT. FOR SUMM. J. (Case No. 3:18-cv-5926) Page 12 REEVES, KAHN, HENNESSY & ELKINS P.O. Box 86100 Portland, Oregon 97286 (503) 777-5473 III. CONCLUSION 1 The National Scenic Area Act and its implementing authorities (the Gorge Management 2 Plan and Clark County’s National Scenic Area ordinance) are not categorically preempted by 3 ICCTA. BNSF fails to establish otherwise. This Court should deny BNSF’s Motion for Summary 4 Judgment and should grant Defendants’ Cross-Motions for Summary Judgment. 5 DATED this 28th day of March, 2019. 6 /s/ Gary K. Kahn 7 Gary K. Kahn, WSBA #17928 8 REEVES, KAHN, HENNESSY & ELKINS 9 P.O. Box 86100 10 Portland, OR 97286 11 Phone: (503) 777-5473 12 Fax: (503) 777-8566 13 Email: gkahn@rke-law.com 14 Attorneys for Friends of the Columbia Gorge, Inc. 15 16 /s/ Nathan J. Baker 17 Nathan J. Baker, WSBA #35195 18 Email: nathan@gorgefriends.org 19 /s/ Steven D. McCoy 20 Steven D. McCoy, WSBA #51423 21 Email: steve@gorgefriends.org 22 Friends of the Columbia Gorge, Inc. 23 333 SW 5th Ave, Ste 300 24 Portland, OR 97204 25 Phone: (503) 634-2032 26 Attorneys for Friends of the Columbia Gorge, Inc. 27 Case 3:18-cv-05926-BHS Document 83 Filed 03/28/19 Page 13 of 13