SUPREME COURT FILED OCT 18 20:5 Case No. §222472 Sn the Supreme Court of the State of California Frank A. McGuire Clerk FRIENDS OF EEL RIVER AND CALIFORNIANS FOR ALTERNATIVES TO ToxicPePuly Plaintiffs and Appellants, VS. NORTH COAST RAILROAD AUTHORITY AND BOARD OF DIRECTORS OF NORTH COAST RAILROAD AUTHORITY, Defendants and Respondents, NORTHWESTERN PACIFIC RAILROAD COMPANY, Real Party in Interest and Respondent. After a Decision by the Court of Appeal First Appellant District, Division One, Case Nos. A139222, A139235 Appealfrom Superior Court of the State of California for the County of Marin, Case Nos. CIV11-3605, CIV11-03591 The Honorable Roy Chernus, Presiding RESPONDENTS’ AND REAL PARTY’S OBJECTION TO PETITIONER’S THIRD REQUEST FOR JUDICIAL NOTICE COX, CASTLE & NICHOLSON LLP NEARY AND O’BRIEN *Andrew B. Sabey (SBN 160416) Christopher J. Neary (SBN 69220) asabey@coxcastle.com cjneary@pacific.net Linda C. Klein (SBN 270016) 110 South Main Street, Suite C Iklein@coxcastle.com Willits, CA 95490 Stephanie R. Marshall (SBN 279652) Telephone: (707) 459-5551 smarshall@coxcastle.com Facsimile: (707) 459-3018 50 California Street, Suite 3200 San Francisco, CA 94111 Telephone: (415) 262-5100 Facsimile: (415) 262-5199 Attorneysfor Northwestern Pacific Railroad Company Attorneysfor North Coast Railroad Authority and Board of Directors of North Coast Railroad Authority I. OBJECTION TO PETITIONER’S REQUEST FOR JUDICIAL NOTICE The North Coast Railroad Authority (“NCRA”’) and Northwestern Pacific Railroad Company (“NWPCo”) (together, “Respondents”’) jointly submit this objection to Petitioner Californians for Alternatives to Toxics’ (“Petitioner”) third request for judicial notice. Petitioner requests that the Court take judicial notice of the contents of a trial court brief filed by the California Attorney General (the “Trial Court Brief”) in Fast Lane Transportation, Inc. v. City ofLos Angeles (“Fast Lane”), which is not properly subject to judicial notice. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113 [‘“Although the existence of a document may bejudicially noticeable, the truth of the statements contained in the documentandits proper interpretation are not subject to judicial notice if those matters are reasonably disputable.”’].) Evenifjudicial notice of the contents of a document wasproper, the Fast Lane case is unrelated, factually distinguishable, and thus irrelevant. Becausethe Trial Court Brief concerns a casethat is irrelevant to the one presentedhere, it too is irrelevant. The Trial Court Brief does not address the conduct challenged by Petitioner here and is outside the administrative record. (See,e.g., Coastside Fishing Club v. Cal. Fish & Game Comm’n (2013) 215 Cal.App.4th 397, 429 [denying judicial notice of materials on the basis that they are “irrelevant or unnecessary”to the court’s resolution ofthe issues]; Ballona Wetlands Trust v. City ofL.A. (2011) 201 Cal.-App.4th 455, 475 fn. 10 [denying a request for judicial notice because there was “no extraordinary circumstancesto justify the consideration of such extra- record evidence”’].) Specifically, the Trial Court Brief concerns the proposedlease of land from the Port of Los Angeles by BNSF Railway Companyforthe construction of the Southern California International Gateway Project (SCIG), an intermodalfacility. Containers would be offloaded from shipsat the Port and driven by truck to SCIG, wherethey could be transferred to rail for distribution. That Fast Lane involvesa rail carrier, BNSF, does not makeit analogousto the facts of the case here. Fast Lane is more similar to Florida East Coast Ry. Co. v. City of West Palm Beach (11th Cir. 2001) 266 F.3d 1324. In Florida East Coast Railway, the court determined that zoning regulations preventing a private aggregate mining company from operating a mine on land leased from rail carrier were not preempted by ICCTA because the state regulations were not being applied to a rail carrierorrail -2- transportation. (/d. at pp. 1331-32 & fn. 5; see Native Village ofEklutna v. Alaska R.R. Corp. (Alaska 2004) 87 P.3d 41, 57 [application of zoning ordinance to a quarry to be operated byrail carrier not preempted because the zoning ordinance would notinterfere with rail transportation].) Similarly, Fast Lane appears to concern the Port’s decision to enter into a lease for a building and possible regulation of that building rather than regulation of an operating rail carrier on an existing rail line. Unlike Fast Lane, Petitioner here challenges NCRA’s and NWPCo’s operation of the existing Russian River Division of the Northwestern Pacific Railroad Line, an action at the core of the Surface Transportation Board’s jurisdiction. (49 U.S.C. § 10501.) To the extent Petitioner argues that both cases involve a lease, NCRA entered into a lease with NWPCoin 2006 and, thus, that decision is well beyond the challenge before this Court, which concerns an EIR certified in 2011. The position taken by the Attorney General in a dissimilar and unrelated trial court proceedingis irrelevant to the Court’s consideration of this case and, therefore, the Trial Court Brief is inadmissible. (Evid. Code § 350 [No evidence is admissible except relevant evidence.”’].) Respondents object to Petitioner’s request for judicial notice and ask the Court deny Petitioner’s request. Dated: October 13, 2015 063491\7202167v6 cecthyLLP By: | ' Andrew B. Sabey Attorneys for Northwestern Pacific Railroad Company NEARY AND O°BRIEN ChristopherJ. Attorneys for North Coast Railroad Authority and Board of Directors of North Coast Railroad Authority CERTIFICATE OF SERVICE DECLARATION OF SERVICE BY MAIL CASE NAME: Friends ofthe Eel River, Californiansfor Alternatives to Toxics v. North Coast RailroadAuthority, etal. CASE NUMBER: SupremeCourtof California Case No. 8222472 I am employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action; my business address is 50 California Street, Suite 3200, San Francisco, California 94111. On October 13, 2015, I served the foregoing documents described as: 1) RESPONDENTS’ AND REAL PARTY’S OBJECTION TO PETITIONER’S THIRD REQUEST FOR JUDICIAL NOTICE in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST Onthe abovedate: BY U.S. MAIL: Thesealed envelope with postage thereon fully prepaid was placed for collection and mailing following ordinary business practices. I am aware that on motion of the party served, service is presumed invalid if the postage cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing set forth in this declaration. I am readily familiar with Cox, Castle & Nicholson LLP's practice for collection and processing of documents for mailing with the United States Postal Service and that the documents are deposited with the United States Postal Service the same day as the dayof collection in the ordinary course of business. C] BY ELECTRONIC MAIL DELIVERY: Bycausing a true copy of the within documents to be mailed electronically to the offices of the addressees set forth below,on the date set forth above. hereby certify that the above document wasprinted on recycled paper. I declare under penalty of perjury that the foregoingis true and correct. Executed on October 13, 2015, at San Francisco, California. Qeeke Peggy Sanchez SERVICE LIST CASE NAME:Friends ofthe Eel River, Californiansfor Alternatives to Toxics y. North Coast RailroadAuthority, et al. Court of Appeal First Appellate District, Division Five Clerk of the Court 350 McAllister Street San Francisco, California 94102 (Case Nos. A139222, 4139235) (via mail only) Superior Court - Marin County Clerk of the Court P.O. Box 4988 San Rafael, California 94913 (Case Nos. CIVI1-3605, CIV11-03591) (via mail only) Attorneys for Plaintiffs & Appellants Friends of the Eel River Ellison Folk / AmyJ. Bricker Edward T. Schexnayder Shute, Mihaly & Weinberger LLP 396 Hayes Street San Francisco, California 94102 Telephone: 415-552-7272 Facsimile: 415-552-5816 E-mail: folk@smwlaw.com bricker@smwlaw.com schexnayder@smwlaw.com Attorneys for Plaintiffs & Appellants Californians for Alternatives to Toxics Sharon E. Duggan / Shanna Foley Law Offices of Sharon E. Duggan 336 Adeline Street Oakland, California 94607 Telephone: 510-271-0825 Facsimile; 510-271-0829 E-mail: foxsduggan@aol.com Attorneys for Plaintiffs & Appellants Californians for Alternatives to Toxics Helen H. Kang Environment Law & Justice Clinic Golden Gate University School of Law 536 Mission Street San Francisco, California 94105 Telephone. 415-442-6647 Facsimile: 415-896-2450 E-mail: hkan u.edu Attorneys for Plaintiffs & Appellants Californians for Alternatives to Toxics William Leonard Verick 424 First Street Eureka, California 95501 Telephone: 707-268-8900 Facsimile: 707-268-8901 E-mail; wverick@igc.org Attorneys for Plaintiffs & Appellants Californians for Alternatives to Toxics Deborah A. Sivas Environment Law Clinic Mills Legal Clinic at Stanford Law School 559 Nathan Abbott Way Stanford, California 94305 Telephone: 650-723-0325 Facsimile: 650-723-4426 E-mail: dsivas@stanford.edu Attorneys for Amicus Curiae California High-Speed Rail Authority Kamala D. Harris Attomey General of California Danae Jean Aitchison Deputy Attorney General P.O. Box 944255 1300 "I" Street, Suite 125 Sacramento, California 94244 Telephone: 916-322-5522 Facsimile: 916-327-2319 E-mail: danae.aitchison@doj.ca.gov Attorneys for Amicus Curiae Center for Biological Diversity Clare Lakewood Center for Biological Diversity 1212 Broadway, Suite 800 Oakland, California 94612 Telephone: 510-844-7100 Facsimile: 510-844-7150 E-mail: clake@iinet.net.au Attorneys for Amicus Curiae Californians Environmental Protection Agency, California Natural Resources Agency and certain of their Departments and Boards Kamala D.Harris Attorney General of California Myung Park Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102 Telephone: 415-703-5557 Facsimile: 415-703-5480 E-mail: myung.park@doj.ca.gov Attorneys for Amicus Curiae Madera County Farm Bureau and Merced County Farm Bureau Jason William Holder Holder Law Group 339 15th Street, Suite 202 Oakland, California 94612 Telephone: 510-338-3759 E-mail: jason@holderecolaw.com Attorneys for Amicus Curiae Sierra Club, Coalition for Clean Air, Natural Resources Defense Council, Planning and Conservation League, and Communities for a Better Environment David Pettit Natural Resources Defense Council 1314 Second Street Santa Monica, California 90401 Telephone: 310-434-2300 E-mail: dpettit@nrdc.org Attorneys for Amicus Curiae Town of Atherton, California Rail Foundation, Transportation Solutions Defense and Education Fund, Community Coalition on High-Speed Rail and Patricia Hogan-Giorni Stuart M. Flashman Law Offices of Stuart M. Flashman 5626 Ocean View Drive Oakland, California 94618 Telephone: 310-652-5373 E-mail: stu@stuflash.com Attorneys for Amicus Curiae Bay Area Air Quality Management District Brian Charles Bunger Bay Area Air Quality Management District 939 Ellis Street San Francisco, California 94109 Telephone: 415-749-2000 Facsimile: 415-749-5103 E-mail: bbunger@baaqmd.gov Attorneys for Amicus Curiae | South Coast Air Quality Management District Barbara Baird South Coast Air Quality ManagementDistrict 21865 Copley Drive DiamondBar, California 91765 Telephone: 909-396-2302 Facsimile: 909-396-296] E-mail: bbaird@aqmd.gov
