Federal court dismisses UP lawsuit

Aiken ruled that UP had failed to name the Confederated Tribes and Bands of the Yakama Indian Nation, the Confederated Tribes of the Warm Springs Reservation, and the Confederated Tribes of the Umatilla Indian Reservation as defendants. Because the tribes’ treaty rights were at the heart of the case, the railroad’s failure to name them as defendants in the lawsuit required dismissal of the case pursuant to federal court rules.

Railroad officials said they were disappointed with the court’s move, and did not plan to abandon the project.

“Union Pacific disagrees with Judge Aiken's recent decision to dismiss our suit regarding the Mosier siding extension project,” said Justin Jacobs, Union Pacific’s director of corporate relations in Roseville, Calif. “We plan to appeal the ruling.”

Opponents of the railroad project praised the District Court ruling.

“The court’s decision today is a victory for the tribes, Gorge communities like Mosier, and the Columbia River Gorge National Scenic Area,” said Michael Lang, conservation director for Friends of the Columbia Gorge, one of the parties in the case. “If Union Pacific had its way, it would have been able to do whatever it wanted within a federally designated National Scenic Area, wreaking havoc all along the Columbia River.”

To highlight their opposition to the railroad extension project, opponents pointed to a June 3, 2016, derailment of a UP oil train in Mosier. Although no one was injured, several tank cars exploded and caught fire, leading to an evacuation of the town.

The back and forth maneuverings on the project began in January 2015, when Union Pacific filed a land use application with Wasco County pursuant to the Columbia River Gorge National Scenic Area Act, seeking to build 4.02 miles of second mainline track in the Mosier area.

On Sept. 29, 2016, the Wasco County Planning Commission approved UP’s Mosier track extension with a total of 44 conditions.

But on Nov. 14, 2016, the Wasco County Board of Commissioners reversed the planning commission decision and refused to approve the track 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.

In its Jan. 10, 2017, filing, UP named the Wasco County Board of Commissioners, the county’s planning director and members of the Columbia River Gorge Commission in a lawsuit that claimed “federal law pre-empts the permitting process imposed” by local government jurisdictions. 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.

The Wasco County Commissioners’ November denial of the project remains on appeal to the Columbia River Gorge Commission (CRGC).

In its January lawsuit, Union Pacific had sought to enjoin the Columbia River Gorge Commission’s appeals process from proceeding. With the District Court’s dismissal of the railroad’s lawsuit, however, the CRGC appeal process will continue.

An appeal hearing before the CRGC is scheduled for June 13.

“The Gorge Commission is extremely pleased with the outcome of this case and grateful for the Columbia River Treaty Tribes’ assistance in getting this case dismissed early in the litigation,” said Jeff Litwak, counsel for the CRGC. “The pending appeals of Wasco County’s decision are again solidly back before the Gorge Commission. We are looking forward to receiving the parties’ briefing, reviewing the record, and considering the parties’ oral arguments.”

According to railroad officials, the Mosier area represents a significant bottleneck for interstate freight movements in the Columbia River Gorge, and to alleviate this concern, the railroad wants to extend an existing 1.35-mile siding at Mosier. If approved, an additional 4.02 miles of second mainline track would extend east and west of Mosier in a project expected to cost approximately $42 million.

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The extended track 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 other trains to clear the track ahead.