Judge denies Skunk Train’s efforts to delay legal case
FORT BRAGG, 11/5/23- On Nov. 2, Mendocino County Superior Court Judge Clay Brennan ruled on the Skunk Train’s request to postpone the City of Fort Bragg’s lawsuit. At a Thursday afternoon hearing in Fort Bragg, Brennan rejected the argument of Mendocino Railway a.k.a. Skunk Train that the Fort Bragg case should wait until two related cases are resolved.
Railroad attorney Paul Beard had said that those cases could determine the status of the railroad as a public utility and as a federally exempt “common carrier.”
Brennan said the three cases were not similar enough to warrant a delay.
“It’s inaccurate to say [that] the state and federal court proceedings involve the same partners and issues before us today,” the judge told the three attorneys and an audience of three people. Mendocino Railway has already lost both those cases, an eminent domain case in state (county) court and another that asked the entire matter to be moved up to federal court. The railway has appealed both cases. The railroad argued that it wanted everything to be put on hold so that contradictory outcomes would not create problems.
Brennan set the next court date for Dec. 14 at 2 p.m., when the parties will propose a trial date and set a schedule for discovery. The discovery process will make the case much more expensive for both sides and can expose information that has previously been secret. Discovery refers to the process by which attorneys for the two sides exchange information and name the witnesses to be used by them in the trial. This often uncovers surprises and previously confidential information.
A key issue towards moving the case forward was an argument by the city and its partner in the lawsuit, the California Coastal Commission, that ongoing work by the railroad may have long-term environmental and other impacts.
Coastal Commission Attorney Patrick Tuck said it was important to get started on discovery to find out what has been going on at the old mill site as soon as possible.
Railroad attorney Beard said the Coastal Commission had been invited to come to the site and look and had declined. He said the agency did not try to find out what was going on and thus the worry was disingenuous.
“The Coastal Commission, in particular, it’s a very powerful agency. It has a lot of investigatory tools at its disposal… It’s done nothing in this case. And so the idea ‘Oh, we have got to get moving on discovery,’ I think is a bit disingenuous,” Beard said.
Brennan listed several reasons for denying the stay and said the fact there are allegations of problems is a reason to get the case to trial, not delay.
“Finally, indefinite delay where there are allegations of ongoing injuries arising from the railroads’ development activities, further militates against the stay,” Brennan said. “Accordingly, the request for the stay is denied.”
Brennan rejected arguments by the City and Coastal Commission that the paperwork filed by Mendocino Railway for the hearing should be rejected because it arrived six minutes late. The paperwork was filed electronically six minutes after midnight. Brennan said the time of filing had no effect on anything, and he ruled that the paperwork was timely.
Assistant City Attorney Krista Macnevin Jee was not present when the case began. This caused Brennan to call all the other matters on the docket. When she still wasn’t there at the end, he ordered a 15-minute recess to see if she would arrive by Zoom and participate in the hearing. Fort Bragg resident Jay McMartin-Rosenquist, the only spectator other than this reporter to attend the hearing up to that point, began calling city officials, but hit voicemails. Eventually City Special Projects Manager Sarah McCormick arrived, making three spectators for the matter. After half an hour, Jee did show up on the Zoom screen and without mentioning the delay, participated in the hearing, which lasted about twenty minutes.
A long and complicated history
The California Western Railroad has had a variety of names over the years, but has been known mostly as the Skunk since the 1920s, a name it embraced. The railroad began in 1885 delivering lumber to and from the Union Lumber Mill. The mill was the heart of the town until it closed in 2002. The Skunk had relied on freight for much of its revenue, which was lost with the mill. The Skunk had actually been a tourist railroad as far back as the 1920s, when its in-house publication recorded the adventures of sightseers from San Francisco who wanted to cruise through the redwood trees and see the 150 bridges on the line. But in 2003, the California Western, which had been purchased by locals in the 1990s, hit hard times and went bankrupt. Mendocino Railway, a wholly owned subsidiary of Sierra Railroad Company, primarily owned by MIke Hart and the Hart family, bought the Skunk out of bankruptcy in 2004, saying they planned to revive freight and passenger service.
There was little trouble until 2013, when a tunnel collapsed and was repaired. In 2015, the 40-mile long line was sliced off just east of Fort Bragg by a catastrophic collapse of a tunnel. Efforts to fix the tunnel failed. The Skunk said this happened when a contractor’s heavy equipment damaged the site. Since then, Mendocino Railway has been trying to get a Federal Department of Transportation grant through the city to repair the tunnel. The application was a finalist but was not chosen for funding. While supporting the grant, the city has opposed efforts by the railroad to get a loan since 2021.
Neither Chris Hart, vice president of business development for Sierra Railroad Company, nor the city had a reaction to the details of Thursday’s decision. Hart said he was disappointed by the series of rulings by Brennan against the railroad over the past several years.
Issues began anew in 2019 when Mendocino Railway purchased 77 acres of the mill site adjacent to its existing operations and began working to bring this area back to what it said was “its former glory.” Environmentalists worried about fencing, water flows and other issues they said were critical issues on the oceanfront site. The big controversy came when Mendocino Railway used eminent domain with Georgia Pacific to acquire the remaining 300 acres of the mill site. At the same time in 2021, Georgia Pacific issued a quitclaim deed to the Sherwood Valley Rancheria of Pomo Indians of California. A quitclaim deed means the owners of the mill site can no longer claim any ownership to that land.
At the time Mendocino Railway acquired 210 more acres for $1.23 million through eminent domain, the city had been negotiating with GP for the same property for more than three times as much, city council members have said publicly.
Mendocino Railway then began a larger effort of restoration of its old buildings, replacing broken windows and rotten wood on aircraft carrier-sized old shops where antique train cars are now being restored. The city, frustrated with trying to get the Skunk to submit building permits, sued the railroad to get it to comply with city permitting and regulation. The California Coastal Commission joined the process and together they are suing the railroad to make it comply and stop using eminent domain. The Coastal Commission levied huge daily fines over unpermitted buildings. The city is normally the coastal permit authority for the Coastal Commission, but now the city and commission are working as a team.
Skunk Train President Robert Pinoli gave this reporter and fellow Mendocino Voice reporter Kate Fishman a tour of work being done in January. Pinoli told us it was all strictly to code and was about replacing dangerous and worn-out fences, walls and windows. A big unanswered question in this is where will the city’s permitting power end and the Skunk’s power begin. If the city and Coastal Commission win, that might not matter. If the Skunk were to win they have said they would submit to development agreements for non-railroad development plans and would comply with all requirements for cleaning up the site. However, critics point to the railroad’s efforts to take the Meyer property, which resulted in the loss in local court that is being appealed.
The price of $1.23 million has caused some townspeople to publicly question the veracity of the deal. Discovery could bring out how this price was arranged and what the costs of cleanup (to be borne by the railroad at this point) would be.
The property is literally the middle of Fort Bragg, and most of it is oceanfront (although the city and Coastal Conservancy did purchase a wide swath of trail along the actual bluffs). It comprises nearly 20 percent of the 1875 acres of the city.
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