BELLINGHAM - BNSF Railway Co. will join in the legal arguments swirling around the No Coal! initiative in Whatcom County Superior Court.
After a brief hearing Tuesday, July 31, Judge Charles Snyder granted BNSF's motion to intervene in the case, because the railroad's interests are at stake as attorneys for the city of Bellingham and the No Coal! initiative argue whether that initiative should go before Bellingham voters in November. That initiative would ban the shipment of coal through the city by rail or other means.
At Tuesday's hearing, BNSF attorney Michael Ryan said that if the initiative stays on the ballot and is passed by voters, it would take effect five days later, with unpredictable legal consequences for the railroad.
"We simply don't know how it's going to be applied in the future," Ryan said. "We would have to move quickly for a temporary restraining order, and that may not move as quickly as we would like. ... We have contracts that would be disrupted. We have day-to-day operations that would be disrupted."
Although the coal train initiative was launched in response to the future increase in coal shipments that could be expected if SSA Marine builds its Gateway Pacific Terminal project at Cherry Point, BNSF is already shipping coal through the city en route to export terminals in Canada.
Spokane attorney Breean Beggs, representing No Coal! backers via speakerphone, argued that the issue of BNSF's participation in the case could wait until after Friday, Aug. 3. That's when Snyder is scheduled to hear city attorneys' arguments in favor of an injunction that would keep the coal train ban and a related "Community Bill of Rights" off the ballot. Also on Friday, Beggs will argue on behalf of his own motion contending that the city's lawsuit is contrary to the Washington Act Limiting Strategic Lawsuits Against Public Participation, known as the SLAPP law.
But after questioning both Beggs and Ryan sharply on their legal reasoning, Snyder said he was convinced that BNSF has a major stake in the outcome of the case and therefore has a right to be heard.
"I think they have shown good cause," Snyder said. "If you've got an interest, you should have the opportunity to come before the court and be heard."
No Coal! initiative organizer Stoney Bird said he was not surprised by Snyder's ruling, and was pleased that the judge gave petition backers a fair hearing.
"We're flattered," Bird said. "People are taking this seriously, and that's good."
The No Coal! group, organized by Bird and Rick Dubrow, was launched in response to widespread concern about the increase in coal train traffic that could result if SSA succeeds in getting regulatory approval for Gateway Pacific, which would export coal and perhaps other cargoes. Coal trains traveling from Powder River Basin mines east of the Rocky Mountains would travel through Bellingham en route to Cherry Point.
After backers of the initiative submitted about 10,000 signatures to the city on June 18, the Whatcom County Auditor verified that at least 4,990 of those signatures were valid, meeting the legal requirement for a place on the ballot. At that point, the city stepped in with the lawsuit, authorized by unanimous vote of the City Council.
Bird and Dubrow say the initiative is the first step in the struggle to give communities legal rights that trump the power of railroads and other corporations.