Bellingham council seeks court challenge on no-coal-train initiative

THE BELLINGHAM HERALDJune 19, 2012 

coal train bellingham

A coal train heads north through the site of the former Georgia-Pacific mill on the Bellingham waterfront. More trains could be coming if SSA Marine's plan to build the Gateway Pacific Terminal coal and bulk cargo export terminal at Cherry Point is realized.

FILE — THE BELLINGHAM HERALD

BELLINGHAM - After Coal-Free Bellingham initiative backers turned in about 10,000 signatures for a ballot proposal that would outlaw coal trains in the city, the City Council voted to challenge the validity of the measure in court.

Rick Dubrow, one of the leaders of the Coal-Free Bellingham campaign, said the group gathered more than 10,000 signatures - well above the 4,990 legal minimum to get a measure on the November ballot. They turned those signatures in at City Hall Monday, June 18.

Dubrow expects a high percentage of the signatures will be invalidated under scrutiny from the Whatcom County Auditor's Office because they were from people either not registered to vote, or voters who live outside the city. Although signature gatherers tried to screen people at the time of signing, lots of people were fired up against coal trains and apparently wanted to sign anyhow, Dubrow said.

But Dubrow is confident that the effort will have enough valid signatures to meet the requirement.

Even if the measure has obtained enough valid signatures, its presence on the November ballot is not assured. Past initiative proposals on other issues have died in the courtroom, after judges ruled that they were beyond the scope of the initiative process as spelled out in the City Charter and in state court rulings.

On Monday, after getting a closed-door briefing from Assistant City Attorney James Erb, City Council voted 6-0 to authorize city attorneys to file a lawsuit challenging the initiative. Gene Knutson abstained from the evening vote on the measure because he missed the afternoon session with Erb.

Dubrow said he wasn't surprised by the City Council's action. He said his group expects to defend the initiative's legality when the challenge is filed in Whatcom County Superior Court.

City Council President Terry Bornemann said council members were convinced that it would be better to challenge the measure now, before the election. If voters were to approve it, the city would then be obligated to use its legal resources to defend it from inevitable court challenge afterwards. There is widespread legal consensus that regulation of railroads is a federal matter, and attempts at local regulation of railroad cargoes would be struck down quickly.

Erb said the city will not raise the federal jurisdiction issue in its lawsuit. Instead, Erb said, the city's attorneys will argue that the proposed coal train initiative is legally invalid because it addresses an administrative, rather than legislative function of the city, and is therefore beyond the scope of the initiative power.

The initiative campaign began in January 2012, triggered by SSA Marine's proposal for the Gateway Pacific Terminal coal and bulk cargo export pier at Cherry Point that would be fed by trains passing through Bellingham. That project faces two or more years of local, state and federal environmental review before permits to build it could be issued.

Reach JOHN STARK at 715-2274 or john.stark@bellinghamherald.com . Read the Politics Blog at blogs.bellinghamherald.com/politics.

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