NCTD and Coastal Commission Stake Out Aggressive Moves on Fencing

On Thursday and Friday (March 3 and 4),the California Coastal Commission and North County Transit District staked out bold moves on NCTD’s plan to fence the upper bluffs in Del Mar.


Coastal Commission’s “Cease and Desist” Demand:  On Thursday, March 3, the California Coastal Commission (CCC) signaled its next move in the conflict over NCTD’s plan to install fencing along the Del Mar bluffs, informing NCTD by voicemail and email that CCC’s Executive Director intended to issue an Executive Director Cease and Desist Order, directing NCTD not to conduct any development along the Del Mar Bluffs without a Coastal Development Permit (CDP), unless NCTD agreed to terms spelled out in the letter.


A High Noon Deadline: CCC set a deadline of noon today (March 7) for NCTD to commit that it would not begin work on fence installation without a CDP, and to submit a plan detailing the steps it would take to submit and obtain a CDP.


Additional potential CCC actions against NCTD: The CCC Executive Director’s letter recited additional potential actions if the March 7 deadline is not met, including an intention to commence proceedings for a Commission-issued Cease and Desist Order, a Restoration Order, administrative civil penalties (up to $11,250 per day), and a Notice of Violation of the California Coastal Act recorded against the rail property.


NCTD Takes the Fight to STB, Saying Fence Construction Is “Imminent”: NCTD’s response came swiftly, in the form of a Status Update filed the next day (March 4) with the Surface Transportation Board. Attaching the CCC Executive Director’s “cease and desist” letter as providing an urgent basis for a prompt ruling by the STB, the NCTD pointedly noted that it will “imminently” commence construction of the fence.


STB is adjudicating disputes between NCTD and CCC and the City of Del Mar based on a Petition filed in August 2020 by NCTD, seeking a declaratory order with respect to safety fencing and bluff stabilization projects. The STB matter is expected to clarify whether NCTD must obtain a CDP for the fence from the CCC, or whether those obligations are preempted by federal law.


A Delay for Negotiations and Mounting Safety Claims: In its Status Update, NCTD detailed the 16-month efforts by the City, CCC and NCTD to negotiate a fencing resolution, ultimately resulting in a proposed licensing agreement that would have resulted in a modified fencing plan, and a legal right for the public to use the upper bluff’s informal trails.


These settlement efforts failed, with the City Council declining, by a 2-3 vote, to accept the proposed licensing agreement. With negotiations at an end, NCTD urged the STB to issue its ruling promptly, noting that from June 2016-June 2021, 6 deaths and 3 serious injuries occurred on the rail line in Del Mar. NCTD claimed that during the 16-month negotiating period, “there have been 1,828 train incidents involving trespassers on the NCTD rail line in the City, including 1 fatality,”


…Including a Recent Fall from the Upper Bluff Requiring First Responder Extraction: NCTD also asserted that “on March 2, 2022, a person fell from the bluffs at a location where the safety fencing will be located and required first responders to extract the person from the bluffs.” According to NCTD’s Status Update, these facts show “how important this safety fencing project is to safe rail operations and the public.”


Trespassing vs. Public Access:  NCTD sharply criticized the City and CCC staff and lawyers for equating illegal trespassing on the rail tracks with legally protected public access to the beach: “Despite the clear danger of this rail line, NCTD is faced with elected officials from the City of Del Mar and Commission staff and legal representatives who disregard the fact that it is illegal for the public to trespass on these rail tracks to reach the beach…and consistently state that public access over the rail line is a right that NCTD cannot impede with its safety project.”


High Stakes All Around: Ultimately, the STB is expected to resolve whether CCC can require NCTD to obtain a Coastal Development Permit for the fence project. STB will also determine whether SANDAG and NCTD have to go through CCC’s federal consistency review for bluff stabilization projects. SANDAG has indicated its willingness to go through that consistency review, and to provide mitigation funds that would benefit Del Mar as part of that bluff stabilization work — up to $8 million to fund legal crossings, sand mitigation, or similar benefits. However, an STB ruling in NCTD’s favor could nix that consistency review, and the resulting mitigation funds.

Photo: Del Mar Sandpiper Files
Photo: Terry Gaasterland