Bnsf Railway Company v. CLARK COUNTY, Washington

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BNSF RAILWAY COMPANY,
Plaintiff-Appellee,
v.
CLARK COUNTY, Washington;
MITCH NICKOLDS, in his official
capacity as Director of
Community Development of
Clark County; KEVIN A.
PRIDEMORE, in his official
capacity as Code Enforcement
Coordinator of Clark County;
RICHARD DAVIAU, in his official
capacity as County Planner of
Clark County,
Defendants,
COLUMBIA RIVER GORGE
COMMISSION,
Intervenor-Defendant,
and
FRIENDS OF THE COLUMBIA
GORGE, INC.,
Intervenor-Defendant-Appellant.
No. 20-35205
D.C. No.
3:18-cv-05926-BHS

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2 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
BNSF RAILWAY COMPANY,
Plaintiff-Appellee,
v.
CLARK COUNTY, Washington;
MITCH NICKOLDS, in his official
capacity as Director of
Community Development of
Clark County; KEVIN A.
PRIDEMORE, in his official
capacity as Code Enforcement
Coordinator of Clark County;
RICHARD DAVIAU, in his official
capacity as County Planner of
Clark County,
Defendants,
FRIENDS OF THE COLUMBIA
GORGE, INC.,
Intervenor-Defendant,
and
COLUMBIA RIVER GORGE
COMMISSION,
Intervenor-Defendant-Appellant.
No. 20-35390
D.C. No.
3:18-cv-05926-BHS
OPINION
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding

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3 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
Argued and Submitted March 4, 2021
Seattle, Washington
Filed August 24, 2021
Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit
Judges, and Morrison C. England, Jr.,* District Judge.
Opinion by Judge Bybee
SUMMARY**
Interstate Commerce Commission Termination Act /
Preemption
The panel affirmed the district court’s summary judgment
in favor of BNSF Railway Company, in BNSF’s action
seeking a declaration that the Interstate Commerce
Commission Termination Act of 1995 (“ICCTA”) preempts
Clark County, Washington’s permitting process.
Clark County asserted that BNSF needed to obtain a
permit pursuant to the Clark County Code for a project to
upgrade an existing track and construct a second track in the
Columbia River Gorge. BNSF filed the complaint against
Clark County and three named officials. The Columbia River
* The Honorable Morrison C. England, Jr., Senior United States
District Judge for the Eastern District of California, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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4 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
Gorge Commission and the Friends of the Columbia River
Gorge (collectively, “Appellants”) intervened as defendants.
Under the ICCTA, the Surface Transportation Board
(“STB”) has exclusive jurisdiction over transportation of rail
carriers and track construction, and except as otherwise
provided in the statute, the remedies provided preempt the
remedies provided under federal or state law. Appellants
rested their argument on an exception this court has identified
to the ICCTA’s broad preemption provision: if an apparent
conflict exists between the ICCTA and a federal law, then the
courts must strive to harmonize the two laws, giving effect to
both laws if possible.
Appellants first argued that the Columbia River Gorge
National Scenic Area Act (“Gorge Act”) is a federal
environmental statute. The panel rejected this argument. The
panel explained that the Gorge Act does not establish national
environmental standards similar to those that states must
implement through EPA-approved plans; it provides a
framework for a commission of state-appointed officials to
adopt a management plan and implement it through county
land use ordinances. Critically, the Columbia River Gorge
Commission retains final say over the approval and
enforcement of the management plan and local county
ordinances, and enforcement actions may be brought in state
court. Because the Gorge Act is not comparable to the
federal environmental laws referenced in Town of Ayer, MA,
5 S.T.B. 500, 2001 WL 458685 (2001), and nothing in the
Gorge Act indicates that the local ordinances otherwise have
the force and effect of federal law, the panel concluded that
the Clark County Code is not exempt from preemption under
the ICCTA.

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5 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
Appellants also argued that even if the Gorge Act is not
itself a federal environmental law, it is a federal law that
authorizes the Clark County permitting process and must
therefore be harmonized with the ICCTA. Rejecting this
argument, the panel observed that nothing in either the Gorge
Act’s text or history supports reading the Gorge Act to shield
the Clark County Code from ICCTA preemption.
COUNSEL
David Alan Bricklin (argued), Bricklin & Newman LLP,
Seattle, Washington; Gary K. Kahn, Reeves Kahn Hennessey
& Elkins, Portland, Oregon; Nathan J. Baker and Steven D.
McCoy, Friends of the Columbia Gorge, Portland, Oregon;
for Intervenor-Defendant Friends of the Columbia Gorge Inc.
Jeffrey B. Litwak (argued), Columbia River Gorge
Commission, White Salmon, Washington, for Intervenor-
Defendant-Appellant Columbia River Gorge Commission.
Ginger D. Anders (argued), Munger Tolles & Olson LLP,
Washington, D.C.; Benjamin J. Horwich, Allison M. Day,
and Andre W. Brewster III, Munger Tolles & Olson LLP, San
Francisco, California; James M. Lynch, J. Timothy Hobbs,
and Adam J. Tabor, K&L Gates LLP, Seattle, Washington;
for Plaintiff-Appellee.
Marcus Shirzad, Yakama Nation Office of Legal Counsel,
Toppenish, Washington, for Amici Curiae Confederate Tribes
and Bands of the Yakama Nation, Confederated Tribes of
Warm Springs, and Confederate Tribes of the Umatilla Indian
Reservation.

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6 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
OPINION
BYBEE, Circuit Judge:
The question in this case is whether the Interstate
Commerce Commission Termination Act of 1995, Pub. L.
No. 104-88, 109 Stat. 803 (1995) (ICCTA) preempts Clark
County’s permitting process as applied to railroad
construction in the Columbia River Gorge. For the reasons
that follow, we conclude that it does. We affirm.
I. BACKGROUND
We begin with a brief overview of the relevant statutes
before turning to the facts.
A. Statutes
1. ICCTA
“The Interstate Commerce Act [was] among the most
pervasive and comprehensive of federal regulatory schemes.”
Chicago & N.W. Transp. Co. v. Kalo Brick and Tile Co.,
450 U.S. 311, 318 (1981); see also City of Auburn v. United
States, 154 F.3d 1025, 1029 (9th Cir. 1998). Since the act’s
passage at the end of the nineteenth century, federal courts
have “frequently invalidated . . . . many forms [of state
regulation].” Chicago & N.W. Transp. Co., 450 U.S. at 318.
In 1995, with the passage of the ICCTA , “Congress
abolished the [Interstate Commerce Commission], revised the
Interstate Commerce Act, and transferred regulatory
functions under that Act to the [Surface Transportation
Board].” DHX, Inc. v. Surface Transp. Bd., 501 F.3d

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7 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
1080,1082 (9th Cir. 2007). The changes made in the ICCTA
continued “to reflect the direct and complete pre-emption of
State economic regulation of railroads.” H.R. Rep. No. 104-
311 at 95 (1995). Under the ICCTA, the STB retains primary
jurisdiction over:
(1) transportation by rail carriers, and the
remedies provided in this part with respect to
rates, classifications, rules (including car
service, interchange, and other operating
rules), practices, routes, services, and facilities
of such carriers; and
(2) the construction, acquisition, operation,
abandonment, or discontinuance of spur,
industrial, team, switching, or side tracks, or
facilities, even if the tracks are located or
intended to be located, entirely in one State
. . . .
49 U.S.C. § 10501(b). Such jurisdiction “is exclusive.
Except as otherwise provided in this part, the remedies
provided under this part with respect to regulation of rail
transportation are exclusive and preempt the remedies
provided under Federal or State law.” Id.
2. The Columbia River Gorge National Scenic Area Act
The Columbia River is one of the most scenic rivers in
North America, and comprises “a uniquely beautiful and rich
area.” Columbia River Gorge United-Protecting People and
Property v. Yeutter, 960 F.2d 110, 111 (9th Cir. 1992).
Forming much of the border between Oregon and
Washington, the river is critical to the Indigenous Peoples of

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the Northwest and essential to farming, logging, and other
commercial interests; hydroelectric generation; and
recreation. See generally Bowen Blair, Jr., The Columbia
River Gorge National Scenic Act: The Act, Its Genesis, and
Legislative History, 17 Envtl. L. 863, 868–74 (1987). The
striking Columbia River Gorge Scenic Area (Scenic Area)
spans some eighty miles of the river.
In 1986, to facilitate cooperative regional administration
of the Scenic Area, and in accordance with the Constitution’s
Compact Clause, U.S. Const. art. I, § 10, cl. 3, Congress
consented to creation of the Columbia River Gorge Compact
(Gorge Compact) between the State of Oregon and the State
of Washington. Columbia River Gorge National Scenic Area
Act, Pub. L. No. 99-663, 100 Stat. 4274 (1986), codified at
16 U.S.C. §§ 544–544p (Gorge Act). The purposes of the
Gorge Act are: “(1) to establish a national scenic area to
protect and provide for the enhancement of the scenic,
cultural, recreational, and natural resources of the Columbia
River Gorge; and (2) to protect and support the economy of
the Columbia River Gorge area by encouraging growth to
occur in existing urban areas and by allowing future
economic development in a manner that is consistent with
paragraph (1).” 16 U.S.C. § 544a.
As a condition of its consent, Congress required the
inclusion of a number of provisions in the Gorge Compact,
four of which are relevant here. Id. §§ 554c(a)(1)(A);
554o(d)). First, Congress required Oregon and Washington
to “establish by way of an interstate agreement a regional
agency known as the Columbia River Gorge Commission
. . . . The Commission shall carry out its functions and
responsibilities in accordance with the provisions of the
interstate agreement . . . and shall not be considered an

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9 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
agency or instrumentality of the United States for the purpose
of any Federal law.” Id. § 554c(a)(1)(A); see also § 544c(b)
(“No contract, obligation, or other action of the Commission
shall be an obligation of the United States or an obligation
secured by the full faith and credit of the United States.”).
Second, Oregon and Washington were required to “provide
to the Commission, State agencies, and the counties under
State law the authority to carry out their respective functions
and responsibilities.” Id. § 554c(a)(1)(B). Third, Congress
directed Oregon and Washington to appoint voting members
of the Commission. Id. § 554c(a)(1)(C).1 Fourth, the
Commission was directed to adopt a management plan, id.
§ 544d(c), and, in turn, each county in the Scenic Area was
required to “adopt a land use ordinance consistent with the
management plan” and subject to the Commission’s approval.
Id. §§ 544e(b); 544f(h).2
Under the Gorge Act, the Secretary of Agriculture has
specified responsibilities with respect to the Commission’s
management plan. The Secretary reviews the management
plan for consistency with the Gorge Act, id. § 544d(f), and
1 The Gorge Act instructs the states to appoint one member from each
of the six counties in the Scenic Area, three members from Oregon, and
three members from Washington. Id. § 554c(a)(1)(C)(i)–(iii). The
Secretary of Agriculture appoints “one ex officio, nonvoting member who
shall be an employee of the Forest Service.” Id. § 554c(a)(1)(C)(iv).
“Except for the ex-officio member . . . the members and officers and
employees of the Commission shall not be officers or employees of the
United States for any purpose.” Id. § 544c(a)(5).
2 To provide a uniform system of laws, the Commission was to adopt
regulations “consistent with the more restrictive statutory provisions of
either State.” Id. § 544c(b). Prior to the Gorge Compact, “Oregon and
Washington . . . [had] very dissimilar land use and environmental
policies.” Blair, 17 Envtl. L. at 872.

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10 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
local land use ordinances for consistency with the
management plan, id. § 544f(i)–(j). The Secretary also
creates “land use designations” for certain “special
management areas,” id. §§ 554d(c)(4); 544f(e)–(f), which
may include both federal and non-federal land, id.
§ 544f(a)(1), (f)(1). The Commission must “incorporate
without change” the Secretary’s land use designations for
federal lands. Id. § 544d(c)(4). It may, however, reject the
Secretary’s suggested modifications to the management plan
for non-federal land so long as it does so by a two-thirds vote.
Id. §§ 544d(f)(3); 544f(k). If the Commission overrides the
Secretary’s objections to a county’s land use ordinance in a
special management area, the county may be denied access to
certain federal funds. Id. §§ 544f(n), 544n(c). In general, the
Commission’s management plan must protect agricultural
lands, forest lands, open spaces, and recreational resources
and must prohibit “major development actions,” industrial
development outside urban areas, and commercial and
residential developments that “adversely affect[] the scenic,
cultural, recreation or natural resources of the scenic area.”
Id. § 544d(d)(1)–(9).
3. Gorge Compact, Management Plan, and County
Ordinances
Oregon and Washington ratified the Compact in
accordance with Congress’s conditions as set forth in the
Gorge Act and appointed members of the Commission. See
Wash. Rev. Code § 43.97.015; Or. Rev. Stat. § 196.150. In
turn, the Commission developed, and has updated, a detailed

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11 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
management plan for the Scenic Area.3 Clark County
accordingly enacted land use ordinances consistent with the
management plan for portions of the Scenic area within Clark
County, Washington. See Clark Cnty. Code ch. 40.240.
Relevant here, the Clark County Code requires a developer to
submit a permit application for its approval “[p]rior to
initiating any use or development.” Id. §§ 40.240.050(A)(2);
40.240.010(B).
B. Facts and Procedural History
The material facts are not in dispute. BNSF Railway
Company (BNSF) and its predecessors have operated in the
Columbia River Gorge for more than 100 years. In June
2018, BNSF began to upgrade an existing mainline track and
construct a second mainline track between Washougal,
Washington and Mount Pleasant, Washington, a distance of
about two-and-a-half miles. All construction took place
within the Scenic Area on land that BNSF owns and for
which it has a right-of-way. In August 2018, Clark County
officials informed BNSF that it needed to obtain a permit for
the project pursuant to the Clark County Code. BNSF
disagreed and responded, through counsel, that federal law
preempted the permitting process. Although BNSF indicated
its willingness to work with Clark County informally, the
County insisted that BNSF had to obtain a permit.
With the parties at an impasse, BNSF filed a complaint
against Clark County and three named officials seeking a
3 The Commission’s 2016 management plan can be found at
http://www.gorgecommission.org/images/uploads/amendments/Manage
ment_Plan_(as_revised_through_2016).pdf. The Commission recently
approved a revised management plan that is not relevant to this appeal.

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12 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
declaration that the ICCTA preempts Clark County’s
permitting process. Appellants Columbia River Gorge
Commission and Friends of the Columbia River Gorge
(collectively, Appellants) intervened, and all parties filed
cross-motions for summary judgment. The district court
granted summary judgment in favor of BNSF, concluding
that the Clark County Code was preempted by the ICCTA
because it is (1) a local ordinance that does not implement
“the type of nationwide environmental statute” that is exempt
from ICCTA preemption; and, (2) not a law of general
applicability with only an incidental effect on rail
transportation. This appeal followed.
II. STANDARD OF REVIEW
Our review is “governed by the same standard used by the
trial court under Federal Rule of Civil Procedure 56.”
Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir.
2009) (citing Adcock v. Chrysler Corp., 166 F.3d 1290, 1292
(9th Cir. 1999)). We thus review the district court’s grant of
summary judgment de novo and “may affirm on any basis
supported by the record.” Id. (citing Burrell v. McIlroy,
464 F.3d 853, 855 (9th Cir. 2006)). “Viewing the evidence
in the light most favorable to the nonmoving party, we must
determine whether there are any genuine issues of material
fact and whether the district court correctly applied the
relevant substantive law.” Id. (quoting Devereaux v. Abbey,
263 F.3d 1070, 1074 (9th Cir. 2001) (en banc)).
III. DISCUSSION
The ICCTA broadly exempts laws affecting
“transportation by rail carriers” and “the construction,
acquisition, operation, abandonment, or discontinuance of

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13 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
spur, industrial, team, switching, or side tracks, or facilities.”
49 U.S.C. § 10501(b). The STB has primary jurisdiction over
such matters, and the remedies afforded by the ICCTA are
“exclusive and preempt the remedies provided under Federal
or State law.” Id.; see Ass’n of Am. R.R. v. S. Coast Air
Quality Mgmt. Dist. (AAR), 622 F.3d 1094, 1097 (9th Cir.
2010) (§ 10501(b) “preempt[s] a wide range of state and local
regulation of rail activity”); City of Auburn v. U.S. Gov’t,
154 F.3d 1025, 1030 (9th Cir. 1998) (the ICCTA “grant[s] . . .
exclusive jurisdiction over almost all matters of rail
regulation to the STB” (citation omitted)). As BNSF
proposed constructing a second track and upgrading existing
track, any attempt by a state or county to regulate BNSF’s
project easily comes within the ICCTA’s preemption
provision. Even without express STB authorization for
BNSF’s project, the preemption provisions are “self-
executing in their application.” Chicago v. Atchison, T. &
S.F. Ry. Co., 357 U.S. 77, 87 (1958). Because “[n]ational
rather [than] local control of interstate railroad transportation
has long been the policy of Congress,” BNSF may proceed
“without leave from local authorities.” Id.; see also Cities of
Auburn & Kent, WA (Stampede Pass), 2 S.T.B. 330, 1997
WL 362017, at *5 (1997) (“[A] state or local permitting
process implies the power to deny authorization, which could
frustrate the activity that is subject to federal control.”).
Appellants do not dispute these general principles.
Rather, they rest their argument on an exception we have
identified to the ICCTA’s broad preemption provision: “If an
apparent conflict exists between the ICCTA and a federal
law, then the courts must strive to harmonize the two laws,
giving effect to both laws if possible.” AAR, 622 F.3d
at 1097. Our principal example of federal laws that should be
harmonized with the ICCTA, if possible, is environmental

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laws. As the STB has explained, “nothing in section
10501(b) is intended to interfere with the role of state and
local agencies in implementing Federal environmental
statutes, such as the Clean Air Act, the CWA, and the
SDWA.” Boston & Maine Corp. & Town of Ayer, MA,
5 S.T.B. 500, 2001 WL 458685, at *5 (2001) (emphasis
added).4 We have added that “[t]his system preserves a role
for state and local agencies in the environmental regulation of
railroads . . . .” AAR, 622 F.3d at 1098.5
Appellants press two points. First, they argue that the
Gorge Act is a federal environmental statute and that we must
harmonize the Gorge Act with the ICCTA. Second, they
argue that even if the Gorge Act is not itself a federal
environmental law, it is a federal law that authorizes the
Clark County permitting process and must, therefore, be
harmonized with the ICCTA. See BNSF Ry. Co. v. Cal. Dep’t
of Tax and Fee Admin., 904 F.3d 755 (9th Cir. 2018) (holding
that a California fee scheme for shipping hazardous materials
was authorized by the federal Hazardous Materials
Transportation Act).
4 We owe Chevron deference to the STB’s guidance on the scope of
the ICCTA’s preemption. See Orange Coast Scenic R.R., LLC v. Or.
Dep’t of St. Lands, 841 F.3d 1069, 1073–74 (9th Cir. 2016).
5 We have identified a second potential exception: The ICCTA
generally “does not preempt state or local laws if they are laws of general
applicability that do not unreasonably interfere with interstate commerce.”
AAR, 622 F.3d at 1097 (citation omitted). The district court rejected
Appellants’ argument that Clark County’s permitting process was a law
of general applicability. Appellants have not challenged that conclusion
on appeal.

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15 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
We will address each issue in turn, but we do not find
either argument persuasive.
A. Whether the Gorge Act is a Federal Environmental
Statute
Appellants rely heavily on the STB’s statement in Town
of Ayer that the ICCTA is not meant to “interfere with the
role of state and local agencies in implementing Federal
environmental statutes, such as the Clean Air Act, the CWA,
and the SDWA.” 2001 WL 458685, at *5. Appellants argue
that the Clark County Code must be harmonized with the
ICCTA because it is “effectively the same as a federally
approved state implementation plan pursuant to the Clean Air
Act and, thus, must be treated the same.”
This argument is not sustainable. As the district court
aptly observed, the Gorge Act is not a “nationwide
environmental statute . . . . [It] is limited to a specific portion
of the country and delegates almost all authority to the state
and local ordinances to manage and adopt ordinances.” By
contrast, the examples cited by the STB—the Clean Air Act
(CAA), Clean Water Act (CWA), and the Safe Drinking
Water Act (SDWA)—all authorize the Environmental
Protection Agency (EPA) to set national standards for air
quality, water pollution, and drinking water. See 42 U.S.C.
§ 7409(a) (air quality); 33 U.S.C. § 1252(a) (water pollution);
42 U.S.C. § 300g (drinking water). The Gorge Act plainly
does not authorize the EPA to create any national
environmental standards for, say, land management; it simply
provides a framework for Oregon and Washington to
cooperatively manage a shared area of land.

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Moreover, unlike the CAA, CWA, and SDWA,
implementation of the Gorge Act through the management
plan is not subject to final federal approval. See, e.g., Safe
Air for Everyone v. EPA, 488 F.3d 1088, 1091 (9th Cir. 2007)
(explaining that the CAA “establishes a system of State
Implementation Plans (‘SIPS’), whereby states submit,
subject to the [EPA’s] review and approval, proposed
methods for managing air quality. Once approved by the
EPA, these plans have the force and effect of federal law.”
(internal quotation marks omitted) (emphasis added)); see
also 33 U.S.C. § 1344(g)–(h) (states may administer their
own permit programs for the discharge of dredged or fill
material under the SDWA subject to EPA approval);
42 U.S.C. § 300g-2 (providing states with “primary
enforcement responsibility for public water systems during
any period for which the [EPA] Administrator determines . . .
that such State . . . has adopted drinking water regulations that
are no less stringent than the national primary drinking water
regulations promulgated by the [EPA] Administrator . . . .”)
(emphasis added).
As our opinion in AAR illustrates, it is the EPA’s approval
of statewide plans that imbues local environmental
regulations with the force of federal law. In AAR, we were
tasked with determining whether a California district’s state
air quality rules were preempted by the ICCTA. 622 F.3d
at 1096. We first considered whether the district’s rules,
which purported to implement the CAA’s regulatory scheme,
were exempt from ICCTA preemption as “federally
recognized regulations” capable of harmonization with the
ICCTA. Id. at 1098 (discussing Town of Ayer, 2001 WL
458685, at *5). We held that the district’s rules did not have
the force and effect of federal law because the EPA had not
yet approved them. Id. (“[U]ntil approved by the EPA, state

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17 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
implementation plans do not have the force and effect of
federal law.”).
Appellants point to no provision of the Gorge Act that,
like the CAA, might similarly transform a local county
ordinance into a regulation with the force and effect of federal
law. To be sure, as required by Article I, Section 10, Clause
3 of the Constitution, Congress consented to the states of
Oregon and Washington entering into a compact and to the
creation of the Commission, the preparation of a management
plan, and the adopting of local land use ordinances. See
16 U.S.C. §§ 554c(a)(1)(A), 554d(c), 554e(b). The Compact
itself, once approved, is federal law for choice of law
purposes. See Cuyler v. Adams, 449 U.S. 433, 438 (1981)
(“[A]n interstate compact approved by Congress . . . is . . . a
federal law subject to federal rather than state
construction.”).6 But the Gorge Act did not alter the balance
6 Appellants point to two state cases where those courts concluded
that the Gorge Compact is federal law. In Columbia River Gorge Comm’n
v. Hood River Cnty., 152 P.3d 997, 998 (Or. Ct. App. 2007), the Oregon
Court of Appeals had before it a challenge to an Oregon ballot measure
that required the payment of just compensation to owners if land
ordinances restricted development on their land. Id. The measure
excepted land if the “regulation is required to comply with federal law.”
ORS § 197.352(3)(c). Id. The court concluded that the Gorge Compact
was federal law for purposes of the Oregon statute. Id. at 1003–04. In the
second case, Klickitat Cnty. v. State, 862 P.2d 629, 634 (Wash. Ct. App.
1993), the Washington Court of Appeals was resolving a suit between
Klickitat County and the State of Washington over which entity was
responsible for costs in implementing the Gorge Compact, including suits
for inverse condemnation. The Washington court concluded that because
the Gorge Compact was federal law, not state law, Washington law
required the county to assume the costs. Id. Neither of these cases stands
for the proposition that county land ordinances adopted pursuant to the
Gorge Act have the force and effect of federal law.

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of state-federal powers. See, e.g., 16 U.S.C. § 544d(c)(4) (the
Gorge Commission must “incorporate without change” the
Secretary’s land use designations for federal lands). The
Gorge Act provided for how Oregon and Washington would
cooperatively manage the area they shared, but Congress did
not confer on them substantive powers they could not
previously exercise on their respective sides of the Columbia
Gorge. See id. § 544c(a)(1)(B) (Oregon and Washington
“shall provide to the Commission . . . the authority to carry
out [its] functions and responsibilities”). Prior to the compact
and consistent with the ICCTA, neither state could have
regulated rail carriers through their local planning ordinances;
such matters relating to the “construction, acquisition,
operation, abandonment or discontinuance of spur, industrial,
team, switching, or side tracks, or facilities” were within the
“exclusive” jurisdiction of the STB. 49 U.S.C. § 10501(b).
Nothing in the Gorge Act authorizes the states to regulate rail
transportation in ways they could not have done prior to their
entering into the Compact.
Nor did Congress confer any federal authority directly to
the Commission. Congress was quite clear that nothing in the
Compact made the actions of the Commission the actions of
the federal government.7 Under the Gorge Act, the
Commission—whose voting members are appointed by
Washington and Oregon, 16 U.S.C. § 544c(a)(1)(C)—retains
7 We are not persuaded by Appellants’ reliance on two district court
cases holding that ordinances promulgated by the Tahoe Regional
Planning Agency are federal law. See Stephans v. Tahoe Reg’l Planning
Agency, 697 F. Supp. 1149, 1152 (D. Nev. 1988) and Lake Tahoe
Watercraft Recreation Ass’n v. Tahoe Reg’l Planning Agency, 24 F. Supp.
2d 1062, 1068 (E.D. Cal. 1998)). Both cases involve takings claims,
predate AAR, and offer little information about the structure of the Tahoe
Regional Planning Compact for comparison.

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19 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
final say in developing the required management plan and
reviewing county land use ordinances for consistency with
the management plan. But those were previously state
functions; the Commission was created to allow a single
entity to act on behalf of Oregon and Washington, rather than
risking inconsistent regulation of the Scenic Area.
Congressional consent was required to permit Oregon and
Washington to regulate the area through a joint commission,
but that did not make the Commission a federal agency. The
Gorge Act is unambiguous on this point: the Commission is
not “considered an agency or instrumentality of the United
States for the purpose of any Federal law,” id.
§ 544c(a)(1)(A), and its obligations are not the obligations of
the United States, id. § 544c(b). Because the Commission
does not enjoy the status of a federal agency such as the EPA,
we fail to see how county ordinances adopted to enforce its
management plan acquire the status of federal law.
Finally, the Gorge Act’s enforcement structure differs
from the federal environmental statutes cited in Town of Ayer.
Those environmental statutes give the EPA concurrent
enforcement authority and provide a federal forum for
enforcement actions. See, e.g., 42 U.S.C. § 7413; 33 U.S.C.
§ 1319; 42 U.S.C. §§ 300g-3, 300h-2. The Gorge Act does
not, however, provide a federal forum for enforcement of the
management plan or county ordinances. The Gorge Act
contemplates state court jurisdiction over civil actions
brought by the Commission. 16 U.S.C. § 544m(b)(6)(B); see,
e.g., Skamania Cnty v. Columbia River Gorge Comm’n,
26 P.3d 241, 247–54 (Wash. 2001) (en banc). The Gorge Act
does contemplate the possibility of federal enforcement, but
it is for the Secretary, not the Commission, to request that the
Attorney General of the United States “institute a civil action
for an injunction or other appropriate order to prevent any

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20 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
person or entity from utilizing lands within the special
management areas in violation of [the Act].” 16 U.S.C.
§ 544m(b)(1)(A); (5)(A).8
In sum, the Gorge Act does not establish national
environmental standards similar to those that states must
implement through EPA-approved plans. The Gorge Act
provides a framework for a commission of state-appointed
officials to adopt a management plan and implement it
through county land use ordinances. Critically, the
Commission retains final say over the approval and
enforcement of the management plan and local county
ordinances, and enforcement actions may be brought in state
8 The Gorge Act grants jurisdiction to federal district courts in Oregon
and Washington over:
(A) any criminal penalty imposed pursuant to
section 551 of this title, or any other applicable law for
violation of any order, regulation, or other action taken
by the Secretary pursuant to sections 544 to 544p of
this title;
(B) any civil action brought against the Secretary
pursuant to this section; or
(C) any appeal of any order, regulation, or other
action of the Secretary taken pursuant to paragraph (4)
of this subsection.
16 U.S.C. § 544m(b)(5). Nothing in these provisions creates a new
federal cause of action or otherwise authorizes Oregon or Washington to
avoid the ICCTA’s preemption clause. The Gorge Act provides that
“[a]ny person adversely affected” by action by the Commission, a state,
or any county as a result of an alleged violation of the Gorge Act may
bring an action in state court in Oregon or Washington. Id. § 544m(b)(2),
(6).

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21 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
court. Because the Gorge Act is not comparable to the
federal environmental laws referenced in Town of Ayer, and
nothing in the Gorge Act indicates that the local ordinances
otherwise have the force and effect of federal law, the Clark
County Code is not exempt from preemption under the
ICCTA.
B. Whether the Gorge Act Authorizes Clark County to
Regulate BNSF’s Activities
Alternatively, Appellants argue that even if the Clark
County Code does not have the force of federal law, it has,
nevertheless, been authorized by the Gorge Act and that is
sufficient to require harmonization with the ICCTA.
Appellants look to our decision in BNSF Railway Co. v.
California Department of Tax and Fee Administration
(CDTFA), 904 F.3d 755 (9th Cir. 2018), in support of this
proposition. In CDTFA, the California State Board of
Equalization sought to implement California Senate Bill 84
(SB 84), which required railroads to collect fees from
customers shipping certain hazardous materials and remit
those fees to California. Id. at 758. Two railroad companies
(including BNSF), sued to enjoin SB 84, arguing, inter alia,
that it was preempted by the ICCTA. Id. at 758–59. We first
observed that SB 84 is “neither a law of general applicability,
nor a law with only a remote or incidental effect on rail
transportation” and that, “[c]onsidered in isolation, the
ICCTA would preempt SB 84.” Id. at 761 (internal quotation
marks omitted). But we determined that another statute—the
Hazardous Materials Transportation Act (HMTA), which
provides that a state “may impose a fee related to transporting
hazardous material only if the fee is fair . . .” id. (citing
49 U.S.C. § 5125(f)(1))—shielded SB 84 from preemption.
Id.

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22 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
In so holding, we emphasized that “[i]f an apparent
conflict exists between ICCTA and a federal law, then [we]
must strive to harmonize the two laws, giving effect to both
laws if possible.” Id. (emphasis in original) (citing AAR,
622 F.3d 1097). We explained the HMTA and ICCTA were
“easily harmonized by reading § 5125(f)(1) of the HMTA to
protect from preemption the fees specifically authorized in
that section.” Id. at 762. Critically, we observed that “[t]here
is nothing in the text of the ICCTA, or in its legislative
history, to indicate that Congress intended to restrict or
overrule the protection from preemption provided by
§ 5125(f)(1).” Id. at 766. We read the HMTA provision to
“affirmatively authorize[] a State to charge a fee for
transportation of hazardous materials,” and cited a House
Committee Report that “unambiguously stated that a State’s
authority to charge fees under § 5125(f)(1) extended to
transportation by rail.” Id. at 763–65.
Appellants contend that the Gorge Act similarly requires
harmonization with the ICCTA’s preemption provision
because the Gorge Act requires the promulgation of county
ordinances consistent with the Act. 16 U.S.C. §§ 544e(b)(1);
544f(h)(1). Unlike the HMTA, however, which authorized
states to impose fees on transportation of hazardous materials,
the Gorge Act contains no provision authorizing Clark
County to extend its permitting processes to railroads—the
Gorge Act makes no mention of railroad regulation at all. See
CDTFA, 904 F.3d at 763, 766 (observing that 49 U.S.C.
§ 5125(f)(1) “affirmatively authorizes a State to charge a fee
for transportation of hazardous materials,” and “protects from
preemption only fees relating to the transportation of
hazardous materials, and does so only if those fees are fair”
(emphasis added)). With respect to a slightly different
argument, Appellants characterize the Gorge Act as “a

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23 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
specific statute that applies to a specific geographic area.”
Although it is true that the Gorge Act applies to a specific
geographic area, the ICCTA applies to specific subject
matter—railroad regulation. Because nothing in the Gorge
Act gives the counties general and exclusive jurisdiction over
all activities within the Columbia River Gorge area, we must
give greater weight to the ICCTA, which governs this
historically federal area. There is no apparent conflict
between, and thus no reason to harmonize, the Gorge Act and
the ICCTA.
Appellants cite to a floor statement during the debate over
the Gorge Act in which Washington’s U.S. Senator Slade
Gorton said that “[r]outine railroad operation and
maintenance activities . . . will continue in the scenic area,
subject, as relevant, to the applicable standards in the act.”
132 Cong. Rec. S16877-01, 1986 WL 788853 (1986). In and
of itself this statement is much too general to create an
exception for the railroads that does not appear in the
legislation. See Mead Corp. v. Tilley, 490 U.S. 714, 723
(1989) (observing that “mute intermediate legislative
maneuvers are not reliable indicators of congressional
intent.”) (internal quotation marks and citation omitted). But
even if we were inclined to give “a single sentence by a single
legislator . . . meaningful weight” in construing the Gorge
Act, Graham Cnty. Soil & Water Conserv. Dist. v. U.S. ex rel
Wilson, 559 U.S. 280, 297 (2010), Senator Gorton continued,
“it is important to confirm that [the railroads’] continued
operation is not endangered by the provisions of this
legislation.” Id. (emphasis added). There is no evidence here
that Congress intended the Gorge Act to shield Clark County
land use ordinances from ICCTA preemption. In short,
nothing in either the Gorge Act’s text or history supports

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24 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
reading the Gorge Act to shield the Clark County Code from
ICCTA preemption.
Our recent decision in Swinomish Indian Tribal
Community v. BNSF Railway Co., 951 F.3d 1142 (9th Cir.
2020), is likewise inapposite. There, we held that the ICCTA
did not prevent the plaintiff Tribe from enforcing an easement
agreement it had acquired under the Indian Right of Way Act
(IRWA), which was enacted prior to the ICCTA. Id. at 1146.
We explained that “nothing in the text of the ICCTA or its
legislative history indicates that Congress intended that the
ICCTA repeal the Indian Right of Way Act.” Id. at 1158.
Appellants argue that the later-enacted ICCTA similarly does
not abrogate the Gorge Act. Swinomish, however, does not
translate to the instant case: the IRWA contains specific
language about tribal rights to grant rights-of-way; federal
regulations promulgated under the IRWA expressly provide
that it applies to railroads; and, “[w]hen the ICCTA was
enacted, federal courts, the Department of the Interior, and
the Interstate Commerce Commission—the predecessor to the
STB—had applied the [IRWA] to railroads for decades.” Id.
at 1157–59. Importantly, we concluded that the ICCTA
contemplated its impact on statutes like the IRWA and sought
to minimize any such impact. “Title 49 of the U.S. Code, in
which the ICCTA is codified, explicitly provides[:] ‘Nothing
in this title shall absolve the United States from any
responsibility to Indians and Indian tribes’ . . . . The [IRWA]
is a statutory mechanism by which the United States fulfills
some of those responsibilities.” Id. at 1159 (citing 49 U.S.C.
§ 102(f)(2)(B)). The Gorge Act lacks similarly specific
language.
Nothing in our decisions in CDTFA and Swinomish
requires us to deviate from our general preemption analysis.

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25 BNSF RAILWAY V. COLUMBIA RIVER GORGE COMM’N
Enforcing the Clark County permitting process against the
railroads has more than an incidental effect on railroad
activity and is thus preempted by the ICCTA. Moreover,
contrary to Appellants’ arguments, we see no need to remand
for further factual development. The statutes, Clark County
Code, and the facts as presented are clearly more than
sufficient to resolve the question of preemption.
IV. CONCLUSION
The judgment of the district court is AFFIRMED.

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