Union Pacific Railroad has sued the Wasco County Commission in federal court over its rejection of a proposed expansion of tracks near Mosier.
In a Jan. 10 filing, UP named the county board, planning director and members of the Columbia River Gorge Commission as defendants in the case. The company is seeking a declaratory order that “federal law pre-empts the permitting process imposed” by a local government.
UP’s attorneys pointed out in a 17-page complaint that the Surface Transportation Board, a federal agency, has exclusive jurisdiction over transportation by rail carriers and over the construction and operation of railroad facilities.
“This complaint arises out of the (Wasco County) Commissioners’ attempt to veto a track expansion project necessary for the development of the national rail system,” read an excerpt of the railroad’s legal filing with the federal court.
On Sept. 29, 2016, the Wasco County Planning Commission approved the UP Mosier track extension with 44 conditions. On Nov. 14, the county board reversed that recommendation and denied the project.
County officials based their denial on a belief that the UP proposal violated the National Scenic Area ordinance and infringed on Native American tribal treaty rights.
Wasco County’s decision is under appeal before the Columbia River Gorge Commission.
On Thursday afternoon, Rod Runyon, chair of the county board, acknowledged that an appeal by the railroad was not unexpected.
"As with any land use decision, there is a risk of appeal,” Runyon said. “Wasco County and the applicant knew the risk would be high with a project of this magnitude.”
Runyon added that if the courts rule that the railroad is not subject to National Scenic Area rules, he hopes Union Pacific will voluntarily implement the conditions earlier approved by the county.
“(If not), there will likely be some concerns expressed from residents who were in opposition to the project,” Runyon said. “It should be noted that there are other federal-level safety and resource protection standards Union Pacific Railroad is still subject to, outside of the National Scenic Area review process.”
According to UP officials, the Mosier area represents a significant bottleneck for interstate freight movements in the Columbia River Gorge. In a project with a $42 million price tag, the railroad wants to add 4.02 miles of second mainline track east and west of Mosier.
The track would be an extension of an existing 1.35-mile siding at Mosier, which would allow trains to pass and keep moving rather than, as is often the case currently, being forced to stop on the siding at Mosier or at other locations while waiting for trains to go by.
“Union Pacific plans to alleviate the most significant chokepoint in the gorge area by extending and upgrading a second track adjacent to the existing mainline track … once completed, the total length of the double track will be about 5.37 miles,” read an excerpt of UP’s legal document.
“The commissioners are now attempting to block this critical infrastructure improvement through the application of the Wasco County National Scenic Area Land Use and Development Ordinance.”
In its legal filing, railroad officials explained to the court that the existing Mosier siding is shorter than most of the trains moving through the gorge area on Union Pacific’s rails. As a result, approximately 40 percent of the trains using the route must be held at either Hood River or The Dalles until an opposing train clears the track ahead.
“This creates a 22.2-mile gap where roughly 40 percent of the trains using the route in this area have no passing location,” the complaint read.
“The result is a bottleneck as trains sit and idle at these locations for extended periods of time … As the trains back up, the bottleneck effect radiates outward on Union Pacific’s interstate rail network.”
Opponents of the proposed rail expansion project near Mosier blasted the railroad’s lawsuit.
“Union Pacific, just months after it caused an oil train derailment and fire in the Columbia River Gorge National Scenic Area in the town of Mosier, filed a lawsuit in federal court seeking to exempt itself from laws that protect this federally designated National Scenic Area and its communities,” read a statement from Michael Lang, conservation director of Friends of the Columbia Gorge.
“This lawsuit shows Union Pacific’s callous disregard for the Columbia River Gorge National Scenic Area, tribal treaty rights and the safety of communities throughout the gorge. We look forward to challenging the railroad’s claims in federal court.”
Mosier Mayor Arlene Burns, who has testified against UP’s expansion project at Mosier in recent hearings, issued a statement claiming that UP is not interested in protecting gorge communities.
“This action is predictable, as they do not wish to respect local, regional and National Scenic Area process,” Burns said. “We urge for justice at this level and protection of our communities.”
State Rep. John Huffman (R-The Dalles) said he was not surprised by UP’s legal maneuver.
“I did expect UP to make this move after the county rejected approval of UP’s request,” Huffman said Thursday morning. “I had encouraged the city of Mosier and the county to work with UP on the approval process, knowing that UP would likely have the option to use federal authority to expand the rail yard on their property at Mosier.”
Huffman explained that he believes working with UP on the siding could potentially work to Mosier’s benefit.
“I am always trying to advise my communities in matters that I think could be in their best interest,” Huffman said. “Of course, I only advise. The matter is up to local governments to make their decisions, as it should be.”
Huffman pointed out that if UP prevails in its lawsuit, all the conditions the local planning commission placed on its initial approval of the project would be in jeopardy, as UP would no longer be obligated to fulfill those conditions.
“I am hopeful that UP will continue taking the high road,” Huffman said. “They certainly don't have to, but I know they still desire to be a good neighbor and partner for the future.” Justin E. Jacobs, Union Pacific’s director of corporate relations, said if the siding is extended, there will be environmental benefits as well.
“A byproduct of the project will be reduced emissions due to the reduction in the number of locomotives idling in the gorge,” he explained.
Further, according to Jacobs, a number of additional safety measures have been put into place since the June 3 oil train derailment at Mosier.
“We replaced the lag bolts with more robust rail spikes in all eight miles of track curves throughout the Columbia River Gorge, enhancing defect detectability during inspections as well as our rail inspection process,” he explained. “We have more than 200 track professionals working to inspect and maintain our track in Oregon.”
Jacobs added that the railroad has a long history in Oregon and the Columbia River Gorge.
“For many of the 1,600 Union Pacific employees in the Portland Service Area, Oregon is home,” he said.
“When mechanical failures or the rare incident occur, we take responsibility. We learn, and we improve. We care about our home, and are dedicated to keeping it safe for our neighbors, our families and our employees.”
Runyon said the county and the railroad will remain on good terms no matter how the court’s decision ultimately plays out.
“Regardless of the outcome, Wasco County will maintain a good working relationship with UP to address local concerns outside the scope of this particular project,” Runyon explained.
“For example, county leadership is currently working with UP to add additional crossing points for safe access along the Columbia River. We will continue to work diligently to protect our citizens, environment, and economic vitality of the area."