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Union Pacific Railroad Co. v. Runyon

United States District Court, D. Oregon, Portland Division

March 8, 2017

ROD RUNYON, Commission Chair of the Wasco County Board of Commissioners, et. al., Defendants.


          ANN AIKEN United States District Judge

         The Confederated Tribes of the: (1) Umatilla Indian Reservation; (2) Warm Springs Reservation of Oregon; and (3) Bands of the Yakima Nation (collectively the "Treaty Tribes"), move the Court for an order dismissing plaintiff Union Pacific Railroad's ("UPRR") Complaint (doc. 1) pursuant to Rule 12(b)(7) for failure to join them as necessary parties to the action as required by Rule 19, Treaty Tribes' Joint Mot. Dismiss (doc. 28) 2. For the following reasons, the Treaty Tribes' Motion to Dismiss is GRANTED.


         Plaintiff is an interstate railroad operating in twenty-three states. Pl.'s Mot. for Prelim. Injunction 2 (citing the Declaration of Luke Baatz in Supp. of Pl.'s Mot. for Prelim. Injunction ("Baatz Dec!.") ¶ 4). Plaintiff owns a mainline track that runs within the Columbia River Gorge in Wasco County and near the City of Mosier, which "was built more than a century ago." Pl.'s Compl, ¶ 1. Plaintiff asserts that this segment of track has become a bottleneck for interstate freight trains moving through the Gorge area, and it plans to alleviate this bottleneck by extending and upgrading a second 5.37-mile track adjacent to the existing mainline track. The extensions and upgrades to that second track, which is located near the City of Mosier, will cost $42 million, $5.3 million of which has already been spent on permitting, engineering, and property acquisition. Id. at ¶¶ 1, 23, 26. On November 4, 2016, plaintiff received a permit from the U.S. Army Corps of Engineers (the "Corps") authorizing construction of the new track. Id. at ¶ 35. Plaintiff alleges that defendants, who hold leadership roles with the Wasco County Board of Commissioners ("Wasco Board") and the Columbia River Gorge Commission ("Gorge Commission"), [1] are now "attempting to block this critical infrastructure improvement through the application of the Wasco County National Scenic Area Land Use and Development Ordinance (the "County Ordinance"). Id. at ¶ 1.

         Specifically, plaintiff asserts that although "the permitting process under the [County Ordinance] as applied to this rail construction project is preempted by the ICCTA [Interstate Commerce Commission Termination Act] at 49 U.S.C. § 10501(b) ... in the spirit of cooperation, [it] submitted on January 9, 2015 an application to Wasco County for comment." Id. at ¶ 39. In so doing, plaintiff "expressly reserved the right to invoke ICCTA preemption." Id. On September 29, 2016, the Wasco County Planning Commission approved plaintiffs application, subject to certain conditions. Id. On November 14, 2016, the Wasco Board reversed the Wasco County Planning Commission's decision and denied the proposed rail expansion project because as, the Wasco Board explained, plaintiffs rail expansion project '"affects treaty rights.'" Id. at ¶ 41 (citing the Wasco Board's Order at 10). Plaintiff filed an appeal to the Gorge Commission. Id. at ¶ 42.


         Soon after filing the appeal with the Columbia River Gorge Commission, plaintiff filed a Complaint (doc. 1) in this Court. Plaintiff seeks a declaratory order stating that federal law (ICCTA at 49 U.S.C. § 10501(b)) preempts the permitting process imposed by the County Ordinance, id. at ¶¶ 2, 39, and that defendants' application of the County Ordinance to this rail project impermissibly burdens interstate commerce in violation of the Commerce Clause, U.S. Constitution, Art. I, Section 8. Id. at ¶ 3.

         On the same day plaintiff filed this action, plaintiff also filed a Motion for Preliminary Injunction (doc. 3) pursuant to Rule 65 and requested an expedited hearing on the Motion. Plaintiff argues that it must "commence construction" or "enter into contracts" for the construction of the project by the contract expiration date of March 18, 2017, in order to avoid suffering irreparable harm due to inability to begin construction before its permit expires. Id. at 2.

         On January 23, 2017, proposed interveners: (1) Friends of the Columbia Gorge, Inc. ("Friends"); (2) Columbia Riverkeeper ("Riverkeeper"); and (3) Oregon Physicians for Social Responsibility ("Physicians") (collectively "Gorge Intervenors"), filed a Motion to Intervene (doc. 16). This Court granted the Motion to Intervene on February 15, 2017 (doc. 47) after plaintiff filed a Response (doc. 37) to Gorge Intervenors' Motion, stating it was unopposed to the Motion.

         On January 30, 2017, "while expressly reserving their sovereign immunity, " the Treaty Tribes jointly moved this Court, pursuant to Rule 12(b)(7), for an order dismissing this action with prejudice for failure to join them as parties as Rule 19 requires. Treaty Tribes' Mot. Dismiss 2. On February 6, 2017, defendants Rod Runyon, the Commission Chair of the Wasco Board, Steve Kramer and Scott Hege, Commissioners on the Wasco Board, and Angie Brewer, Planning Director of the Wasco Board (collectively the "County defendants") filed a Response (doc. 39) to The Treaty Tribes' Motion to Dismiss, concurring with the Treaty Tribes' Motion and "emphasiz[ing] the federally mandated evaluation of treaty rights undertaken by Wasco County in its subject decision." Id. at 1.

         Also on February 6, 2017, the County defendants filed their response to the Treaty Tribes' Motion to Dismiss, and defendants Bowen Blair, Chair of the Gorge Commission, as well as Gorham Blaine, Dan Erickson, Robert Liberty, Rodger Nichols, and Antone Minthorn, the Oregon-based Members of the Gorge Commission (collectively the "Gorge Commissioner defendants") filed a Response (doc. 40) to the Treaty Tribes' Motion to Dismiss, concurring with the Treaty Tribes' Motion and "emphasizing that there exists an alternative forum in this matter." Id. at 1. The Court heard oral arguments on the Treaty Tribes' Joint Motion to Dismiss (doc. 28) on Tuesday, February 21, 2017. See Doc. 38.


         The Treaty Tribes argue that their Motion to Dismiss should be granted and the case dismissed with prejudice because: (1) they are necessary parties under Rule 19 since proceeding with the action in their absence would impair or impede their ability to protect their treaty- reserved fishing rights; (2) their inherent sovereign powers preclude their joinder in this action; and (3) the case cannot, in equity and good conscience, proceed without them. Treaty Tribes' Mot. Dismiss 12.

         Plaintiff argues that the Treaty Tribes' Motion should be denied for three reasons. First, plaintiff argues the Tribes are not "necessary" parties under Rule 19(a) because: (1) "they do not have an 'interest' relating to the subject of [the] action, " which is determining "who has jurisdiction to regulate the rail construction project"; (2) "they have not shown that their ability to protect their interests will be impaired by this lawsuit" because if plaintiff prevails, "the Tribes are free to pursue their arguments in the forums designated by Congress"; and (3) the Corps "has jurisdiction over this project under the federal Clean Water Act" and "has a fiduciary duty to take treaty rights into consideration." Pl.'s Opp'n to Treaty Tribes' Mot. Dismiss 3.

         Second, plaintiff argues that the tribes are not "indispensable" parties under Rule 19(b), because "they are not being denied an opportunity to be heard, " but rather are using "their voluntary absence from this lawsuit to deprive [plaintiff] of its day in court on the federal preemption issue." Id. at 4.

         Third, plaintiff argues that the Tribes' Motion should be denied because the "Tribes' asserted interests do not overcome the public rights [plaintiff] seeks to vindicate in this action." Id.

         Federal Rule of Civil Procedure 12(b)(7) authorizes dismissal of an action for failure to join a party under Federal Rule of Civil Procedure 19. In determining whether a party is required to be joined, Rule 19 imposes a three-step inquiry:

1. Is the absent party necessary (i.e., required to be joined if feasible) under Rule 19(a)?
2. If so, is it feasible to order that the absent party be joined?
3, If joinder is not feasible, can the case proceed without the absent party, or is the absent party indispensable such that the action must be dismissed?

Salt River Project Agr. Imp. & Power Dist. v. Lee, 672 F.3d 1176, 1197 (9th Cir. 2012) (internal citation omitted).

         I. Rule 19(a): Necessary Party

         Federal Rule of Civil Procedure Rule 19(a)(1) states that a party is necessary if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impeded the person's ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise ...

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