Monday, July 31, 2006
By CHRISTIAN KNIGHT
News staff writer
March 29, 2006
Five parties appealed the Columbia River Gorge Commission’s Feb. 16 decision that would allow BNSF Railway to construct an 8,400-foot-long siding along a mile and-a-half section of track, which crosses the access to the popular windsurfing spot known as Doug’s Beach.
These appeals, one of which came from BNSF Railway, could delay an ultimate decision until June 13 – at the earliest.
Despite this opposition to the Commission’s decision, BNSF Railway intends to begin construction of the project by this June.
“BNSF is proceeding with the Lyle project,” said BNSF spokesman Gus Melonas. “We hope to complete the project by year’s end. Right now, we are in the process of performing prep signal work and access into the area.”
The first track work would begin in June, Melonas said, and would continue through the year.
This plan, however, is contingent upon what new evidence surfaces in the next few months and on how much the five parties can agree.
“We knew people would dispute whether it meets management plans or not,” said Martha Bennett, executive director of the Columbia River Gorge Commission.
The first detail on which all parties will have to agree is whether or not to enter into mediation.
“If the parties are willing, we’ll head into the mediation process,” Bennett said. “All parties have indicated they are open to resolution.”
If the five parties can’t draft a compromise through mediation, however, they will, in essence, surrender the ultimate outcome to 12 Gorge Commissioners, who would make their decision no earlier than June 13.
Highlighting compromising language in the 30-some pages of opposition the Gorge Commission received in the form of appeals last week might be a tough task.
Columbia Riverkeeper, for example, challenged BNSF’s plan to eliminate a large wetland by consuming it with 15,600 yards of fill along 2,900 feet of shoreline.
“With millions of dollars being spent on the Columbia to restore river habitat and water quality it simply does not make sense to allow Burlington Northern to fill in almost 3,000 feet of the Columbia River,” said Brent Foster, executive director of Riverkeeper.
The Columbia Gorge Windsurfing Association challenged Bennett’s conclusions that a siding was “necessary for public service;” that the project would not extinguish the primary use of the park — windsurfing; that BNSF had exhausted alternative sites for the siding, such as the Murdock and Rowland Lake options.
“The use and the quality of the park is going to be degraded due to the fact that a mile and-a-half-long train will be parked there for who knows how long,” said Eric Einhorn, an attorney and windsurfer who both authored his own appeal and supports the appeal of the CGWA.
“We don’t think the commission’s decision considered these effects.”
Einhorn challenged Condition No. 13 on the Gorge Commission’s decision, which, amongst other things, directed BNSF to dedicate $200,000 into an escrow for the purpose of building a new launch site for windsurfers.
Einhorn said $200,000 wasn’t enough to compensate for the loss of Doug’s Beach.
BNSF’s appeal also directly challenged that condition, arguing the Gorge Commission simply doesn’t have the authority to require monetary compensation.
“The property at issue is owned solely by BNSF and is not subject to any easement or other legally binding property right,” said BNSF’s appeal. “BNSF has a right to exclusive possession of its property and can lawfully, and without authorization by the Columbia River Gorge Commission, move the fence to the easement boundary … The imposition of such a condition is not within the lawful authority of the Columbia River Gorge Commission.”
The conflict over Doug’s Beach has, in some regards, banded together political interest groups, which often oppose each other, Bennett said.
“Traditional allegiances don't seem to be holding true,” Bennett said. “Environmentalists aren't going up against property rights advocates. We got calls of concerns about this from economic interests who don’t agree with BNSF.
“Locals don't see a lot of direct benefit from railroads. They see a lot of indirect benefits.”