Appeals filed on Mosier project

Because of what Union Pacific officials call a “bottleneck” in the Mosier area, westbound trains are often held at the railroad’s freight yard in The Dalles to wait for the tracks ahead to clear.

Union Pacific Railroad has completed its rail fastening system replacement work throughout eight miles of curved track in the Columbia River Gorge. The track throughout the curves has now been secured with a fastening system that includes spikes instead of lag bolts, which enhances the ability for inspectors to detect defects during track inspections.

The lag bolts were determined to be partly to blame for the June 3 derailment of a westbound oil train at Mosier.

“We have a clear focus — to safely operate our trains and protect our communities,” said Wes Lujan, Union Pacific vice president of public affairs for the railroad’s western region. “The fastening system replacement reinforces our commitment to rail safety in the gorge as we strive to improve upon our 99.98 percent hazardous materials safety record and achieve our goal of zero incidents.”

Following the Wasco County Planning Commission’s recent 5-2 decision to approve Union Pacific Railroad’s proposed double-tracking project in Mosier, three appeals have been filed — including one from the railroad itself.

The 15-day appeal period on the commission’s Sept. 26 decision to OK the project — with 44 conditions — ended on Oct. 14. One appeal was a combined filing from three organizations: Friends of the Columbia Gorge, Columbia Riverkeeper, and Physicians for Social Responsibility. The Confederated Tribes and Bands of the Yakama Nation also filed an appeal.

And although the planning commission ruling granted Union Pacific Railroad the right to move forward with its project, UP also appealed, saying two of the 44 conditions laid out by the planning commission were “open-ended and unspecified mandates that unduly burden our ability to transport interstate commerce.”

Union Pacific is seeking approval to expand an existing railroad siding east and west from Mosier, adding a total of four miles of new second mainline track to both ends of an existing 1.35-mile siding at Mosier.

The extended trackage is designed to allow trains to keep moving rather than, as is often the case now, being required to stop on the siding in Mosier and wait for other trains to go by. Trains are also halted at The Dalles or Hood River to wait for clear tracks before they are able to proceed through the Mosier area, which UP officials have described as a “bottleneck.”

Columbia River Gorge National Scenic Area and Wasco County rules allow railroads to make infrastructure enhancements, but the projects are considered a permitted use, subject to review and conditional use provisions.

Steven McCoy, staff attorney of Friends of the Columbia Gorge (Friends), said the appeal will go to the Wasco County Commission on Nov. 2 at the Discovery Center.

“It is a de novo hearing, meaning new comments and evidence will be admitted,” added Michael Lang, conservation director for Friends, a non-profit organization with roughly 6,000 members dedicated to protecting and enhancing the resources of the Columbia River Gorge.

Lang said he hopes the appeal by Friends et al. would result in a reversal or remand of the planning commission’s decision, thereby halting the proposed track expansion project.

“Whatever the county commission’s decision is, it is appealable to the Columbia River Gorge Commission and it is confined to the record established below,” Lang said. “An appeal of the Gorge Commission’s decision would go to the Oregon Court of Appeals.”

McCoy said the three groups combined on the appeal because they all saw the proposal from the same basic perspective.

“While we have been taking the lead on this issue, we felt like there was good synergy with Columbia Riverkeeper and Physicians for Social Responsibility and we share the same issues,” McCoy explained. “They are two rock-solid organizations and we’re proud to be working with them on this appeal.”

The appeal from the Confederated Tribes and Bands of the Yakama Nation was filed by Anthony Broadman and R. Joseph Sexton, attorneys for the Yakama Nation.

“The decision violates the Yakama Nation’s treaty-protected rights, and violates the National Scenic Area Land Use Development Ordinance,” the attorneys explained in an excerpt of the tribe’s appeal. “The planning commission removed the staff’s recommended treaty rights conditions, disregarding the impact on the Yakama Nation that was highlight by the Nation in a comment letter and over staff’s objections at the hearing.”

The “grounds for appeal” filed by Friends et al. was filed by the law firm of Reeves Kahn Hennessy & Elkins in Portland. The appeal included 29 specific points identified as “areas where the application fails to comply with the Wasco County National Scenic Area Land Use and Development Ordinance, the Management Plan for the Columbia River Gorge National Scenic Area, and the Columbia River Gorge National Scenic Area Act.”

Among the points listed were: the management plan does not allow expansion of railroads in General Management Area open space zones; culverts in Special Management Areas are not an allowed use; the decision unlawfully approves signage without adequate evidence and findings to support the decision; the application and decision unlawfully fail to analyze and address the cumulative adverse impacts of the proposed project to recreation resources; the applicant unlawfully proposes to intrude on water resources and their buffer zones; the project violates the scenic protection requirements because the applicant has failed to propose any new trees to screen the new development from key viewing areas; the application and decision unlawfully fail to analyze and address the cumulative adverse impacts of the proposed project to cultural resources; and the planning commission unlawfully removed a condition to protect treaty rights.

Union Pacific’s appeal, filed on the railroad’s behalf by the Portland law firm of Dunn Carney Allen Higgins & Tongue, asks that two conditions be deleted.

One condition called for UP to provide two safe crossings for National Scenic Area treaty tribe members within Wasco County, including new crossing lights and crossing arms for safety. The other condition mandated that prior to construction, UP “shall work with the Confederated Tribes of the Umatilla Indian Reservation on the development of a study to analyze the impacts of trains on tribal fishing.”

The railroad contends the river access issue can be better addressed “outside the permit process.”

“The conditions neither advance the public interest nor comply with the law,” read an excerpt from the UP appeal. “UP has stated repeatedly our commitment to river access and taken proactive steps to work directly with Columbia River stakeholders to understand and plan for the maintenance and improvement of safe river access … UP does not exclude the public from railroad property because it’s unsociable. It does so for the public’s safety.”

The railroad’s appeal went on to note that the Treaties of 1855 “acknowledged the fact that a railroad would be built along the Oregon side of the gorge,” but that “nothing in those treaties suggested an intent to limit the railroad to a single track.”

The railroad also contends the two conditions require UP to address tribal access demands that extend well beyond the Mosier project.

“They mandate a gorge-wide study that includes consideration of impacts well beyond construction of four miles of track,” read an excerpt.

A UP spokesman said railroad officials are hopeful the county commissioners will decide the various appeals in their favor.

“We look forward to the Wasco County Board of Commissioners’ vote on the project and remain optimistic,” said Justin Jacobs, director of corporate relations for UP in Roseville, Calif. “Union Pacific is committed to transparency, open dialogue and following the appropriate steps in the Scenic Area permit process moving forward.”

Angie Brewer, director of the Wasco County Planning Department, said there is no way to predict whether the county commissioners will make a ruling on the trio of appeals on Nov. 2.

“Whether or not they feel it is necessary to continue their hearing to additional dates is a decision they will make on Nov. 2,” Brewer explained. “If they feel they have the information they need but would like more time for deliberation, the continuance may only be a few days out. If they request additional information from staff, it may take longer than that.”

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