Fence Update: NCTD Rejects CCC Demands; CCC Issues Cease and Desist Order; Is the Fence “Imminent”?

On Monday morning (March 7), the Sandpiper reported on aggressive moves by both California Coastal Commission and NCTD on the plan to fence the upper bluffs in Del Mar, with a CCC letter threatening to issue a Cease and Desist Order unless NCTD obtains a Coastal Development Permit before installing a fence, and NCTD filing a Status Update with the Surface Transportation Board (STB) asking it to issue its ruling promptly, and stating that fence construction is “imminent.” (See the March 7 news report here.)

Since then, two new documents highlight stark differences in the legal positions staked out by these two agencies.

Starkly Different Legal Views: NCTD responded to CCC’s demand letter by expressing its strong disagreement with “the fundamental premise” of CCC’s assertions of authority over the fencing project. Citing a 2002 STB Decision relating to a rail project in Encinitas, NCTD asserted that the STB “has repeatedly held” that state or local laws imposing a local permitting or environmental process on rail projects like the fencing project “are preempted on the basis of interstate commerce,” citing a law enacted by Congress in 1995. Thus, NCTD asserted, the ability of CCC “to issue a cease and desist to NCTD on the premise of obtaining a Coastal Development Permit has been preempted for twenty years.”

CCC responded by promptly issuing an Executive Director Cease and Desist Order (EDCDO), ordering NCTD “to cease and desist from undertaking any development, as that term is defined in the Coastal Act,” including installation of fencing on the Del Mar portion of the NCTD railroad right-of-way. It also filed its own Status Update with STB, including its EDCDO as an attachment, and noting that CCC staff has advised NCTD for several years that “such development requires Coastal Act authorization before any such work can commence,” and noting “offers by Commission staff to attempt to find a resolution that was consistent with the Coastal Act.”

What Happens Next?

• • Whether NCTD will abide by the CCC Order is far from certain, since it rejected CCC’s demands set out in its “pre-cease and desist” letter, and has asserted that CCC has no authority to issue the Order. And, as CCC’s Status Update noted, on Jan. 20, “the NCTD Board approved the fencing project to go forward without any Coastal Act authorization.”

• • Whether a temporary restraining order or preliminary injunction ordering NCTD not to proceed will be sought by any stakeholders (CCC, City of Del Mar, individual fence opponents) is unknown, but seems unlikely, since such an action would likely be removed to the STB, as part of the legal action already pending there.

• • The ultimate decision on the legal dispute will come from the STB – but there is no indication when STB will decide the matter.

• • And while it may be a bluff, NCTD has stated on the record that fence construction is “imminent.”