As Aug. 1 looms, Kirkland city officials urged the Surface Transportation Board to make a decision on the pending Cross Kirkland Corridor suit before the city looses money and good weather for rail removal construction.
If the board grants the injunction, it would prevent the city from removing the railroad tracks and its assets along the 5.75-mile-long corridor until the board makes a decision on the pending petitions the Ballard Terminal Railroad Company LLC filed on April 2.
The city planned to remove the rail tracks and ties in April but plans came to a halt when they were served a federal lawsuit.
But if the Surface Transportation Board rules in favor of the city, the petitions for the Ballard company to obtain the right to reactivate rail service from Woodinville to Bellevue would be moot.
After months of hashing out the details, subpoenas, testimony and legal minutia the city needs a decision now.
“Kirkland asks that the board rule by Aug. 1, so that Kirkland can commence rail salvage and development of an interim trail on the rail-banked Cross Kirkland Corridor during the 2013 construction season,” according to court documents filed July 10 by the city’s attorney, Matthew Cohen with Stoel Rives LLP. “The motion has been fully briefed since early June and Ballard has had ample opportunity to explain to the board why a preliminary injunction is warranted.”
The city believes the Ballard railroad company’s strategy is to stall for time, the court documents continue.
“For Ballard, no decision equals success,” the documents state.
Executives from A&K Materials, the contractor that would remove the railroad, said they would likely be able to remove the railroad for an interim trail during the 2013 construction season if they were told by Aug. 1 to proceed.
Court documents state it would be difficult for contractors to complete the project if notice was delayed because the fall rains in the Pacific Northwest “close the window for construction work,” therefore pushing the interim trail back another year.
In a June 4 statement, City Manager Kurt Triplett said grant funding for rail removal and construction of the interim trail expires after 2014. And delaying the project for the next season would cost the city $175,000 in interest rates.
If the contractor does not complete the project in the next six months, Triplett said nearly $107,000 worth of salvaged tracks would also potentially be lost.
Rebidding the project would cost around $1,500 and maintaining the corridor’s overgrown plants and shrubbery with the risk of floods would cost the city $211,000 for ditch excavation labor and equipment.
“Kirkland staff concluded that removing the rails and leaving the rail bed and ballast in place was the best approach, in part, because … rail removal would make development of an interim trail easier and less expensive,” Triplett said in his statement.
But in the Ballard railroad company’s reply, which was filed on July 15 by attorney Thomas C. Paschalis with Fletcher and Sippel LLC, they said the city was exaggerating.
With an emphasis on “rails and trails,” the company states that Kirkland officials can construct a trail whenever they want. However, because the city aims to remove the rails, the move would deal a severe blow to the restoration of rail service, causing the company to spend $10 million to reinstate it.
Because the approximately $107,000 is a “credit,” Ballard contends the city would alternatively not be harmed by an economic loss, “whatsoever.”
The documents continue that the city’s hundreds of thousands of dollars in potential loss are only a “maybe” and that even if those monies were lost, it would not constitute substantial harm for the city.
“Kirkland can start building its trail now, so it suffers no harm based on lack of use,” the documents state. “… To the contrary, if Ballard loses the injunction in a decision issued prior to Aug. 1 but later prevails on the merits of the petition, it will enjoy a hollow victory.”
The railroad company asks instead the Surface Transportation Board wait for comments and replies for the petitions, which the board is expected to deliver a decision on by January 2014, before deciding on the temporary restraining order Ballard currently seeks.
“The board need not, if it so chooses, make a hasty decision on the injunction that could render the decision on the petitions meaningless,” the court documents continue.
Kirkland spokeswoman Marie Stake said as of Monday there has been no indication from the board whether it will rule within the Aug. 1 deadline.
