Good Morning Everyone,

#1 Great momentum so far with nearly 500 signers in less than a week. Please continue to share the petition link and spread the word. Strength in numbers.

#2 Two Del Mar residents, Shirli Weiss and Laura Schaefer, have written an excellent letter addressed to Del Mar City Council on this issue. (See below.) Over 50 concerned citizens have already added their names in support, and I strongly encourage you to add your name as well. You can do so by emailing Shirli and Laura, noting your support, your name, and your address.

shirli.weiss@dlapiper.com
ls@boyce-schaefer.com

Example:

Email subject heading: “Please add me as a supporter on the letter opposing the NCTD Request”

Shirli, Laura,

Please add my name to your letter. I support it.

Dan Quirk 
228 23rd Street, Del Mar

 

Letter to City Council:

Dear Madam Mayor, Madam Deputy Mayor, and Other Distinguished City Council members:

The authors of this email are Shirli Weiss, a 20-year Del Mar resident and property owner, and Laura Schaefer, a 26-year Del Mar resident and property owner.  We write as concerned citizens of Del Mar, and are joined by numerous Del Mar residents, including those identified below, to strongly urge the City Council to timely respond to and oppose the Petition for Declaratory Order, Docket No. FD 36433, filed by the North County Transit District (“NCTD”) with the federal Surface Transportation Board (“STB”) on August 28, 2020 (the “Petition”). The Petition seeks to entirely override and render irrelevant, the City’s and Coastal Commission’s regulations applying to the NCTD’s right of way (“ROW”) on the entire span of Del Mar bluffs overlooking the coast. The Petition, directly and adversely affects the interests of Del Mar citizens and requires opposition for many reasons, including to preserve and to not forever abandon Del Mar’s right to make its arguments later to a court or other administrative body, and to maintain some negotiation leverage as against railroad commercial interests.

Implications of a Decision Granting the Broad Preemption Sought by the Petition:

NCTD interprets its ROW to include the entire bluff area of the City of Del Mar.  If the Petition is unopposed, the STB will likely grant NCTD everything it requests and there will be no further opportunity for the City to challenge the decision, which would eliminate the City’s power to regulate NCTD bluff projects and actions within the City.

1.       The Petition seeks to broadly preempt all review or scrutiny by either the Coastal Commission or City of Del Mar, regarding both the NCTD’s current projects and unidentified future projects in the ROW. It seeks to preclude any state or local regulation, now or in the future, of  “NCTD's rail line maintenance and any other upgrading activities in its rail right-of-way pursuant to the state and local coastal permitting regime in California.” (Petition, p.2, emphasis added). If granted, this would mean that any City ordinance or Coastal Commission regulation of safety, access, mitigation and aesthetics regarding current or future railroad projects or activities will be completely overridden by the interests of the railroads. If granted, any local or Coastal Commission objection or input to any project or activity linked to railway operations in the ROW can be ignored.

2.        Imagine, if you would, the construction of a 10ft high opaque or chain link fence blocking or obstructing all access to the upper and lower portions of the bluff as well as street level views.  If an STB decision grants the demands of the Petition, neither Del Mar nor the Coastal Commission would have any say with respect to  the construction of fences or other structures, or mitigation of their adverse effects.  Just about any project currently known or later revealed that is backed by the railroads, that can in any way be argued to be linked to the operation of the railway, will be immune from City or Coastal Commission rules, laws, or input.  Put simply, such a decision would mean the NCTD could do nearly anything it wishes within its ROW without complying with state or local laws.  

3.       NCTD is the government agency responsible for public transportation in North County and is owned and funded by the State of California.  As it is publicly funded and belongs to the people of CA, it should not be allowed to disregard State (and local) laws designed to protect the health, welfare, and quality of living of Californians. 

4.       A broad preemption decision by the STB could next be used as precedent against other coastal cities to obtain similar rulings. It will drive through a pervasive transfer of power over the fate of our coastline to the railroads. The City Council, rather than quietly (and slowly) considering the implications of the matter, should be quickly addressing the imminent threat, taking immediate action, and sounding the alarm both to its resident constituency and to other City Councils.  If you think this is not a planned power grab scheme and that we are just being alarmist, think again, and consider the following:

·         The Petition consists of over 160 pages of legal arguments and exhibits. That means the interests behind the filing have been drafting it for months, and that it is very likely part of a long term power displacement strategy;

·         NCTD did not consult with the City or try to seek a resolution before blind-siding the City with this effort to get the federal government to quash local governance and input to matters that affect the daily lives of our people. The intent to file the Petition was kept secret, the Petition was quietly served, and despite the dramatic importance of the issues, there has been no press coverage;

·         Railroad interests have honed and widely deployed preemption arguments, but they have not always prevailed, and in many instances cases are settled on compromise terms.  The City will not prevail or have a chance for a reasonable compromise if it does not put up a fight.   We need to preserve the City’s arguments (if we do not officially oppose the Petition and raise our arguments now, we will  be prevented from raising  them in court) so that eventually the Coastal Commission can also raise them in courts if it elects to do so.  Eventually these issues could end up before the federal courts, including the 9th Circuit Court of Appeals.  We have a fighting chance in that court. If the City does not object now, the City will forever lose any right to object.

·         Any emergency regarding the tracks on the Bluff and fencing of the tracks is of the railroads’ own making.   First, the City does not oppose emergency bluff repairs.  It is the railways that have failed to address a decades-old problem for so long that it has now turned into a self-declared emergency.  Rather, the City seeks to have a voice in the mitigation of the effects of the railroads’ projects. This goal can be easily harmonized with emergency measures.  Similarly, on fencing, a separate issue, the railroads have taken little action to augment fencing or prevent accidents over the years until its commercial interests were threatened by the collapsing bluff. It now seeks to use the history of accidents contributed to by its own delay, combined with the bluff erosion to prevent the Coastal Commission and the City altogether from acting to protect the interests of our citizens and the environment.       

We Can’t Depend Solely on the Coastal Commission

The City cannot depend solely on the Coastal Commission to respond Even if the Commission responds, the City’s interests are not exactly the same as the Coastal Commission (remember Managed Retreat?). The City must itself act, in coordination with the Coastal Commission, but not abdicate its responsibility by failing to act (and forfeiting its right to object) in excessive deference to the Commission.

Proposed Action Plan:

In our view, the best response would be for the City to take an aggressive, pull-out-all-the-stops  approach. But we are almost out of time so we have to be judicious and realistic in our near term goals while trying to preserve our options for the future.  We appreciate that the City is in a difficult position, having had the City Attorney declare a conflict on the eve of the filing date, and having only 20 days to retain counsel experienced in this area to prepare a response. The STB granted only a meager extension to October 5, and is not likely to grant a further extension.  Here is what we respectfully propose the City Council do:

A.        Promptly consult with and retain Washington STB counsel.  The railroad interests have retained a recent former Chairman of the STB as their counsel and leader of this effort.  Del Mar needs a lawyer familiar with the process, preemption and all the arcane rules of the STB and the thinking of the railroads. The City cannot possibly make an informed decision on behalf of the citizens of Del Mar without at least consulting with an attorney to obtain advice in this specialized area. We recommend Washington lawyer Paul Hemmersbaugh of DLA Piper LLP., (a law partner of one of the signatories here), who is experienced and has been successful in STB proceedings.  

B.        Authorize a letter or other submission with modest goals.  There is insufficient time for a comprehensive response even if the City Council acts today, due to the short extension.  The goals need to be realistic. Some ideas:

·         The demand for preemption is over-broad.  Seek to narrow the reach of the preemption as an alternative to outright defeating it, so that Del Mar retains some jurisdiction and authority over mitigation;

·         Point out that what is at issue is not so much preemption of state and local law by a federal law; but a clash of the goals of two federal laws: the law that precipitated the Coastal Commission (Coastal Zone Management Act) and the statute governing railroads;

·         Raise a number of viable legal arguments to show the STB that this is a case it should give careful and close consideration and perhaps seek to resolve without an official decision;

·         Request mediation authorized by STB rules;

·         Ask for a stay of the proceedings to allow for public comment (the STB has done this in the past);

·         Enlist every CA environmental group with any muscle to file amicus positions, (We expect we will find many a receptive ear);

·         Sound the alarm; Enlist the other cities, the press, residents, if nothing else, this will place the “projects” of the NCTD under scrutiny and public pressure.

In all events, please act today to proceed with opposition to the NCTD’s legal action.  Many of the residents in the South Bluff will see their property values decline dramatically if they lose their ocean views. The residents of Del Mar, and particularly those who live in the Del Mar Heights and South Bluff areas, may be enlisted to assist the City  in any way they possibly can, but they must be given the opportunity to do so. We have limited time and Del Mar’s most precious physical asset is at stake.

Respectfully submitted,

Shirli Weiss
551 Stratford Court
116 Spinnaker Court

Laura Schaefer
158  6th Street