NCTD Loses Bid for Federal Order on Del Mar Bluff Fencing Pending State Court Review

In a 12-page ruling issued today, the federal Surface Transportation Board (STB) has declined to issue the declaratory order long sought by NCTD to allow it to move forward with its fencing plan for the Del Mar Bluffs.

Instead, the STB decided “to hold this proceeding in abeyance with respect to the fencing project so the state court can consider state law issues—including whether NCTD agreed to comply with California’s environmental laws, including the Coastal Act, as a condition of receiving state funding for the fencing project—that may resolve the dispute or inform any future Board decisions. Resolution of these state law issues is relevant to any preemption analysis in this case.”

On August 28, 2020, NCTD filed a petition for declaratory relief with the STB concerning proposed bluff stabilization projects and a separate proposed fencing project. NCTD’s petition sought an order finding that federal law preempts any attempt by the City of Del Mar or the California Coastal Commission (CCC) to regulate NCTD’s rail line maintenance or upgrading activities in its rail right-of-way pursuant to the California Coastal Act.

Bluff stabilization: In today’s decision, the STB declined to issue an order with respect to the bluff stabilization project, noting that NCTD and SANDAG have reached an agreement for the project to go forward with the conditions required by the CCC. “Thus, there no longer exists a dispute regarding the conditions,” the STB decision stated.

Fencing: With respect to the fencing disputes, the STB’s decision stated: “The Board will hold this proceeding in abeyance with respect to the fencing project to allow the Superior Court of the State of California for San Diego County to address issues before it in lawsuits against NCTD that are important to the preemption analysis in this case. If any preemption issues with respect to the fencing project remain unresolved after the state court proceedings, the Board may remove this proceeding from abeyance and address them.”

Today’s ruling is a significant if not necessarily final loss for NCTD, given the STB’s refusal to apply the broad preemption interpretation sought by NCTD to the fencing disputes, and the STB’s deference to the Superior Court to interpret state law claims “that may resolve the disputes or inform any future Board decisions.” The STB decision appears to bolster the City’s position that a finding of preemption is “a fact-specific analysis,” not a broad brush, and NCTD has failed to provide sufficient facts justifying a preemption determination.

What’s Next: The fencing disputes now move to the State Superior Court, which will consider one case filed by CCC, and another case filed by Laura S. DeMarco and Friends of Del Mar Bluffs. The City of Del Mar is not a party to either lawsuit. The parties can be expected to vigorously dispute key facts and legal claims, including whether NCTD agreed to comply with CEQA and the Coastal Act as a condition of accepting state funding for the fencing project, and whether, because NCTD is a State entity, application of state law requirements to NCTD does not constitute regulation, but is instead “self-regulation,” and thus is not subject to federal preemption.