United States District Court, D. Oregon
OREGON COAST SCENIC RAILROAD LLC, an Oregon nonprofit corporation, Plaintiff,
STATE OF OREGON, DEPARTMENT OF STATE LANDS, and MARY M. ABRAMS, Director of Dept. of State Lands, in her official capacity, Defendants.
Martin E. Hansen, Francis Hansen & Martin LLP, Bend, OR, Attorney for Plaintiff.
Darsee Staley, Sarah K. Weston, Oregon Department of Justice, Portland, OR, Attorneys for Defendants.
OPINION & ORDER
MARCO A. HERNNDEZ, District Judge.
Plaintiff Oregon Coast Scenic Railroad (OCSR) filed this declaratory action seeking relief from a cease and desist order issued by Defendants, the State of Oregon's Department of State Lands and its Director, Mary Abrams (collectively "the State"), for violation of the State's removal-fill law. OCSR claims that its railroad track repair work is under the exclusive jurisdiction of the Surface Transportation Board, a federal agency, and thus the State's removal-fill law is preempted. OCSR additionally claims that enforcement of the removal-fill law violates the Commerce Clause.
OCSR moved for a preliminary injunction and a hearing was held on April 9, 2014. Before the court are OCSR's motion for preliminary injunction  and the State's motion to consolidate the preliminary injunction hearing with a trial on the merits . Because I find that OCSR has no likelihood of success on the merits on its claims, the motion for preliminary injunction  is denied. The parties had the opportunity to fully present their arguments regarding the legal question of federal preemption and no genuine issues of material fact remain. The State's motion to consolidate the preliminary injunction hearing with a trial on the merits  is granted. OCSR's requests for declaratory relief and a permanent injunction are denied and all claims are dismissed.
Plaintiff OCSR is a nonprofit organization that operates a tourism-related train along the Oregon coast. Wickert Decl.  Ex. 1 at 1. In March 2012, OCSR signed a lease with the Port of Tillamook Bay for the right to use the Port's rail line from Enright, Oregon at mile post 810.5 to Industrial Park Yard in Tillamook, Oregon at mile post 859.13. Id. at 2. The lease limits OCSR to "tourism-related train operations[.]" Id. at 3. OCSR has the right to operate its own tourist trains or "allow other tourist rail operators" to operate trains on the rail line. Id. at 10.
For the first five years of the lease, the funds that OCSR would otherwise pay to the Port to lease the rail line are to be used by OCSR to repair the rail line. Id. at 2. The Port's "rail connection to a mainline carrier" was severed in 2007 due to storm damage. Id. at 7. No freight traffic runs on the portion of rail line leased by OCSR. Id. at 1, 7. The lease would be modified should the Port's connection to a mainline carrier be re-established and freight traffic resumes. Id. at 7.
OCSR began repairing the rail line near Salmonberry, Oregon earlier this year. Wickert Decl.  ¶ 5. On March 11, 2014, the State sent OCSR a cease and desist order for its repair activities near Salmonberry. Id . Ex. 2 at 1. The State notified OCSR that for the work near the Salmonberry River, "[r]emoval of any amount of material within waters designated Essential Salmonid Habitat" required a permit. Id . The State also disagreed with OCSR's assertions that the Surface Transportation Board (STB), as authorized by the Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C. §§ 10101 et seq., had exclusive jurisdiction over OCSR's repair work, and that the State's removal-fill law was therefore preempted by ICCTA. Id.
OCSR alleges three claims: (1) ICCTA preempts the State's removal-fill law, (2) enforcement of the State's removal-fill law violates the Commerce Clause, and (3) enforcement of the State's removal-fill law imposes a burden on interstate commerce in violation of the Commerce Clause, thereby violating OCSR's rights under 42 U.S.C. § 1983. Compl. 4-6. OCSR seeks declaratory and injunctive relief. Id. at 7.
I. Preliminary Injunction
A party seeking a preliminary injunction "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 20 (2008). The movant "must establish that irreparable harm is likely, not just possible." Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131 (9th Cir. 2011). The movant must also carry its burden of persuasion by a "clear showing" of the ...