BNSF Ry. Co. v. Clark Cnty.

Decision Date24 August 2021
Docket NumberNo. 20-35205, No. 20-35390,20-35205
Citation11 F.4th 961
Parties BNSF RAILWAY COMPANY, Plaintiff-Appellee, v. CLARK COUNTY, WASHINGTON; Mitch Nickolds, in his official capacity as Director of Community Development of Clark County; Kevin A. Pridemore, in his official capacity as Code Enforcement Coordinator of Clark County; Richard Daviau, in his official capacity as County Planner of Clark County, Defendants, Columbia River Gorge Commission, Intervenor-Defendant, and Friends of the Columbia Gorge, Inc., Intervenor-Defendant-Appellant. BNSF Railway Company, Plaintiff-Appellee, v. Clark County, Washington; Mitch Nickolds, in his official capacity as Director of Community Development of Clark County; Kevin A. Pridemore, in his official capacity as Code Enforcement Coordinator of Clark County; Richard Daviau, in his official capacity as County Planner of Clark County, Defendants, Friends of the Columbia Gorge, Inc., Intervenor-Defendant, and Columbia River Gorge Commission, Intervenor-Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

David Alan Bricklin (argued), Bricklin & Newman LLP, Seattle, Washington; Gary K. Kahn, Reeves Kahn Hennessey & Elkins, Portland, Oregon; Nathan J. Baker and Steven D. McCoy, Friends of the Columbia Gorge, Portland, Oregon; for Intervenor-Defendant Friends of the Columbia Gorge Inc.

Jeffrey B. Litwak (argued), Columbia River Gorge Commission, White Salmon, Washington, for Intervenor-Defendant-Appellant Columbia River Gorge Commission.

Ginger D. Anders (argued), Munger Tolles & Olson LLP, Washington, D.C.; Benjamin J. Horwich, Allison M. Day, and Andre W. Brewster III, Munger Tolles & Olson LLP, San Francisco, California; James M. Lynch, J. Timothy Hobbs, and Adam J. Tabor, K&L Gates LLP, Seattle, Washington; for Plaintiff-Appellee.

Marcus Shirzad, Yakama Nation Office of Legal Counsel, Toppenish, Washington, for Amici Curiae Confederate Tribes and Bands of the Yakama Nation, Confederated Tribes of Warm Springs, and Confederate Tribes of the Umatilla Indian Reservation.

Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit Judges, and Morrison C. England, Jr.,* District Judge.

BYBEE, Circuit Judge:

The question in this case is whether the Interstate Commerce Commission Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (1995) (ICCTA) preempts Clark County's permitting process as applied to railroad construction in the Columbia River Gorge. For the reasons that follow, we conclude that it does. We affirm.


We begin with a brief overview of the relevant statutes before turning to the facts.

A. Statutes

"The Interstate Commerce Act [was] among the most pervasive and comprehensive of federal regulatory schemes." Chicago & N.W. Transp. Co. v. Kalo Brick and Tile Co. , 450 U.S. 311, 318, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981) ; see also City of Auburn v. United States , 154 F.3d 1025, 1029 (9th Cir. 1998). Since the act's passage at the end of the nineteenth century, federal courts have "frequently invalidated .... many forms [of state regulation]." Chicago & N.W. Transp. Co. , 450 U.S. at 318, 101 S.Ct. 1124.

In 1995, with the passage of the ICCTA, "Congress abolished the [Interstate Commerce Commission], revised the Interstate Commerce Act, and transferred regulatory functions under that Act to the [Surface Transportation Board]." DHX, Inc. v. Surface Transp. Bd. , 501 F.3d 1080, 1082 (9th Cir. 2007). The changes made in the ICCTA continued "to reflect the direct and complete pre-emption of State economic regulation of railroads." H.R. Rep. No. 104-311 at 95 (1995). Under the ICCTA, the STB retains primary jurisdiction over:

(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located or intended to be located, entirely in one State ....

49 U.S.C. § 10501(b). Such jurisdiction "is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law." Id.

2. The Columbia River Gorge National Scenic Area Act

The Columbia River is one of the most scenic rivers in North America, and comprises "a uniquely beautiful and rich area." Columbia River Gorge United-Protecting People and Property v. Yeutter , 960 F.2d 110, 111 (9th Cir. 1992). Forming much of the border between Oregon and Washington, the river is critical to the Indigenous Peoples of the Northwest and essential to farming, logging, and other commercial interests; hydroelectric generation; and recreation. See generally Bowen Blair, Jr., The Columbia River Gorge National Scenic Act: The Act, Its Genesis, and Legislative History , 17 Envtl. L. 863, 868–74 (1987). The striking Columbia River Gorge Scenic Area (Scenic Area) spans some eighty miles of the river.

In 1986, to facilitate cooperative regional administration of the Scenic Area, and in accordance with the Constitution's Compact Clause, U.S. Const. art. I, § 10, cl. 3, Congress consented to creation of the Columbia River Gorge Compact (Gorge Compact) between the State of Oregon and the State of Washington. Columbia River Gorge National Scenic Area Act, Pub. L. No. 99-663, 100 Stat. 4274 (1986), codified at 16 U.S.C. §§ 544 – 544p (Gorge Act). The purposes of the Gorge Act are: "(1) to establish a national scenic area to protect and provide for the enhancement of the scenic, cultural, recreational, and natural resources of the Columbia River Gorge; and (2) to protect and support the economy of the Columbia River Gorge area by encouraging growth to occur in existing urban areas and by allowing future economic development in a manner that is consistent with paragraph (1)." 16 U.S.C. § 544a.

As a condition of its consent, Congress required the inclusion of a number of provisions in the Gorge Compact, four of which are relevant here. Id. §§ 554c(a)(1)(A); 554o (d)). First, Congress required Oregon and Washington to "establish by way of an interstate agreement a regional agency known as the Columbia River Gorge Commission .... The Commission shall carry out its functions and responsibilities in accordance with the provisions of the interstate agreement ... and shall not be considered an agency or instrumentality of the United States for the purpose of any Federal law." Id. § 554c(a)(1)(A); see also § 544c(b) ("No contract, obligation, or other action of the Commission shall be an obligation of the United States or an obligation secured by the full faith and credit of the United States."). Second, Oregon and Washington were required to "provide to the Commission, State agencies, and the counties under State law the authority to carry out their respective functions and responsibilities." Id. § 554c(a)(1)(B). Third, Congress directed Oregon and Washington to appoint voting members of the Commission. Id. § 554c(a)(1)(C).1 Fourth, the Commission was directed to adopt a management plan, id. § 544d(c), and, in turn, each county in the Scenic Area was required to "adopt a land use ordinance consistent with the management plan" and subject to the Commission's approval. Id. §§ 544e(b); 544f(h).2

Under the Gorge Act, the Secretary of Agriculture has specified responsibilities with respect to the Commission's management plan. The Secretary reviews the management plan for consistency with the Gorge Act, id. § 544d(f), and local land use ordinances for consistency with the management plan, id. § 544f(i)(j). The Secretary also creates "land use designations" for certain "special management areas," id. §§ 554d(c)(4); 544f(e)(f), which may include both federal and non-federal land, id. § 544f(a)(1), (f)(1). The Commission must "incorporate without change" the Secretary's land use designations for federal lands. Id. § 544d(c)(4). It may, however, reject the Secretary's suggested modifications to the management plan for non-federal land so long as it does so by a two-thirds vote. Id. §§ 544d(f)(3); 544f(k). If the Commission overrides the Secretary's objections to a county's land use ordinance in a special management area, the county may be denied access to certain federal funds. Id. §§ 544f(n), 544n(c). In general, the Commission's management plan must protect agricultural lands, forest lands, open spaces, and recreational resources and must prohibit "major development actions," industrial development outside urban areas, and commercial and residential developments that "adversely affect[ ] the scenic, cultural, recreation or natural resources of the scenic area." Id . § 544d(d)(1)(9).

3. Gorge Compact, Management Plan, and County Ordinances

Oregon and Washington ratified the Compact in accordance with Congress's conditions as set forth in the Gorge Act and appointed members of the Commission. See Wash. Rev. Code § 43.97.015 ; Or. Rev. Stat. § 196.150. In turn, the Commission developed, and has updated, a detailed management plan for the Scenic Area.3 Clark County accordingly enacted land use ordinances consistent with the management plan for portions of the Scenic area within Clark County, Washington. See Clark Cnty. Code ch. 40.240. Relevant here, the Clark County Code requires a developer to submit a permit application for its approval "[p]rior to initiating any use or development." Id . §§ 40.240.050(A)(2); 40.240.010(B).

B. Facts and Procedural History

The material facts are not in dispute. BNSF Railway Company (BNSF) and its predecessors have operated in the Columbia River Gorge for more than 100 years. In June 2018, BNSF began to upgrade an existing mainline track and construct a second mainline track between...

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