May 12, 2023

Federal board declines to rule on Del Mar railroad fence petition

The federal Surface Transportation Board has declined to issue a declaratory order requested almost three years ago by the North County Transit District that would give the local agency clear authority over bluff stabilization projects and a proposed safety fence along the train tracks in Del Mar.

"The board will ... hold this proceeding in abeyance with respect to the fencing project to allow the Superior Court ... to address issues before it in lawsuits against NCTD that are important to the preemption analysis in this case," states the decision released last week.

A residents group called Friends of the Del Mar Bluffs filed suit March 21, 2022, in San Diego Superior Court to stop construction of the fence along the bluff-top railroad right-of-way, stating the barrier would stop the public from "sitting, walking, running, meditating, (and) observing the Pacific Ocean" along the tracks, as people have done for more than 100 years.

The California Coastal Commission filed a similar suit April 19, 2022, saying the fence would impede access to the beach. Another concern sometimes raised is that the holes dug for fence posts will accelerate the bluff's erosion.

"NCTD will now be held to account in state court," said Laura DeMarco, a Del Mar resident and president of the Friends of the Del Mar Bluffs, in an email Wednesday, May 24. "We intend to pursue our action zealously to protect Del Mar's fragile bluffs from NCTD's destructive fencing project."

Transit district officials have said for years that the half-mile-long, 4-foot to 6-foot-high, chain-link or wire-mesh fence is needed to prevent train fatalities and trespassing on the tracks. The agency maintains it has the right to build it without permits from the Coastal Commission or the city, both of which oppose the project.

The district's board of directors approved a construction contract Jan. 20, 2022, with Exbon Development Inc., but so far the work has not started. The Friends’ lawsuit seeks to invalidate the contract and to require a coastal development permit from the Coastal Commission.

NCTD initially filed the petition Aug. 28, 2020, with the federal board, and then in early 2021 suspended it to work on an agreement with Del Mar and the California Coastal Commission. However, no deal was reached and in late 2021 the transit district renewed its petition.

NCTD Executive Director Matt Tucker said Tuesday, May 23, the board's decision "maintains the status quo."

Transit officials have long said they have the right and responsibility to stabilize the eroding bluffs and to build the fence as a matter of public safety. The transit agency has been working with the San Diego Association of Governments to install seawalls, support columns, drainage ditches and other structures in phases for more than 20 years to protect the eroding bluffs.

"The STB decision does not impact NCTD's ability to move forward with the stabilization and fencing projects, and does not impact NCTD's rights and responsibilities as the owner and operator of the rail line," Tucker said. "NCTD intends to continue to pursue its legal options and remains committed to developing a solution for the railway along the Del Mar bluffs that promotes rail safety and ensures service reliability."

Del Mar Mayor Tracy Martinez said May 24 that city officials are pleased with the board's decision and that it "confirms the Coastal Commission's conditional concurrence on bluff stabilization initiatives, including improved, safe access to the beach."

"Del Mar agrees with the STB that the issue of fencing should be addressed by the state courts, and we look forward to the court's determination on that matter as well," Martinez said in a written statement.

NCTD began its Coaster commuter service between Oceanside and San Diego in the 1990s. The number of daily trains steadily increased until the COVID-19 pandemic began in 2020, and riders are slowly returning. Amtrak passenger trains and BNSF freight trains also use the route.

Plans are being developed to move the tracks off the bluff by building a new inland route through a tunnel beneath Del Mar, but that's unlikely to be completed before 2035.

The tracks are part of the 351-mile LOSSAN rail corridor that runs from San Diego to Los Angeles and San Luis Obispo. It is the only railroad linking San Diego with Los Angeles and other points across the United States.