II. DISCUSSION

A. Commission Authority to Approve Use of the Hector Station Crossing

BNSF contends that the Commission had no authority to approve Calico's use of the Hector Station rail crossing. It doesn't dispute our authority over private crossings under Section 7537. Instead, BNSF argues Hector Station is a "maintenance-of-way crossing" which is outside the Commission's Section 7537 jurisdiction.⁷ (Rhg. App., at pp. 8-10, citing Siemans v. Union Pacific Railway Company ("Siemans")
[D.02-10-038] (2002) __ Cal.P.U.C.3d __.)

Siemans is not analogous. That case involved a complaint by homeowners against Union Pacific Railroad Company ("UP"). However, unlike the complaint here, the homeowners were not seeking use of the railroad's crossing. They wanted UP's crossing removed.⁸ We merely said that ordering removal of UP's own private crossing on its own rail property was beyond the scope of Section 7537 since it only addresses matters concerning requests for purposes of "ingress to or egress from" adjacent properties of a landowner.⁹

BNSF also contends the Decision resulted in an unlawful taking or control of its station property. BNSF argues that such interfere with its rail operations is preempted by federal law under the Interstate Commerce Commission Termination Act ("Act").¹⁰ (Rhg. App., at pp. 10-13, relying on 49 U.S.C.A. § 10501(b) and Union Pacific Railroad Company v. Chicago Transit Authority ("Union Pacific") (7^th Cir. 2011) 647 F.3d 675; City of Lincoln v. Surface Transportation Board ("City of Lincoln") (8^th Cir. 2005) 414 F.3d 858.)¹¹

We are aware that the Act confers exclusive jurisdiction over the regulation of rail transportation to the Surface Transportation Board ("Board"). However, actions such as the one challenged here (i.e., resolution of a crossing dispute), are within State authority as long as the State's action would not unreasonably interfere with rail operations/transportation, or cause an undue safety risk.¹²

In resolving the instant dispute, we held that the temporary immediate use of the Hector Station crossing was reasonably necessary for pre-construction purposes. However, only consistent with Calico's historical use of the crossing.¹³ Despite BNSF's continued claims of interference, no evidence showed that the authorized level of use will actually interfere with BNSF's current or future rail operations.¹⁴

Finally, the cases BNSF relies on are not persuasive. They both involve condemnation of rail property, which was never an issue in this proceeding. Further, BNSF established no such condemnation or interference with rail operations here.¹⁵

B. CEQA Review

1. Temporary Use of the Hector Station Crossing

BNSF contends the Decision erred in finding that the Hector Station crossing was exempt from CEQA review. BNSF argues CEQA was required because Calico's "proposed private crossing" is part of a larger project (i.e, the Calico Solar Project). Accordingly, BNSF argues the Commission must fulfill its duty under CEQA to analyze the environmental impacts of Calico's proposal.¹⁶ (Rhg. App., at pp. 14-15, relying on In the Matter of the Application of the San Francisco Bay Area Rapid Transit District for an Order Authorizing Construction of an Elevated Railroad Station Crossing Above BART Tracks and the Tracks of the Peninsula Corridor Joint Powers Board, Centered on Mileposts 13.62 ("In re SF BART") [D.03-06-063] (2003) __ Cal.P.U.C.3d __, 2003 Cal. PUC LEXIS 357.) This argument is without merit.

BNSF's reliance on In re SF BART is flawed. That case involved construction of a new rail crossing as part of a larger BART extension project.¹⁷ In re SF BART would be relevant if Calico had proposed construction of a new crossing at Hector Station. However, it did not. It only requested use of an existing crossing, and that was all the Decision granted. BNSF offers no authority to establish that CEQA review is required in these circumstances.¹⁸

Nevertheless, our review suggests the facts are more suited to the use of different CEQA exemption than were used in D.11-10-025. In particular, the facts support a conclusion that use of Hector Station is not a "project" subject to environmental review under CEQA. Guideline 15378(a) defines a "project" as an action which:

...has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment...

(Cal. Code of Regs., tit. 14, § 15378(a).)

As discussed above, there is nothing to suggest there will be any direct or reasonably foreseeable indirect change in the environment from Calico's use of Hector Station. In addition, Guideline 15061 provides:

(b) A project is exempt from CEQA if:

(3) ...Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.

(Cal. Code of Regs., tit. 14, § 15061(b)(3).)¹⁹

Thus, even if the use were a project, it would still be exempt since nothing in the record for this proceeding showed Calico's use will have any significant effect on the environment. Therefore, we will modify D.11-10-025 accordingly as set forth in the Ordering Paragraphs of this Order.

2. Approval of a New Permanent Grade-Separated Bridge Crossing at Milepost 710.8

BNSF contends the Decision erred because it failed to conduct the requisite environmental review prior to approving the new grade-separated bridge crossing. Like its argument above, BNSF contends the crossing is part of the larger Calico Solar Project, thus the Commission must fulfill its legal obligations under CEQA to analyze the relevant environmental impacts. (Rhg. App., at pp. 14-15, citing In Re SF BART, supra, [D.03-06-063].) In this instance we agree.

Construction of the new grade-separated bridge crossing is component of the Calico Solar Project, and it is subject to environmental review requirements.²⁰ Thus, In re SF BART is relevant and establishes that in such circumstances we must act as a Responsible Agency under CEQA before approving the crossing. Accordingly, we will modify the Decision to deny approval of the new bridge crossing at this time. Calico may resubmit its request as an application for approval after the CEC has completed its environmental review.

⁷ BNSF also states that Hector Station crossing is not subject to our jurisdiction under Sections 1201 and 1202. (Rhg. App., at p. 9.) However, nothing in the Decision purported to rely on Sections 1201 or 1202 for authority over the private crossing. Those statutes apply to the Commission's exclusive jurisdiction over public railroad crossings. (See Pub. Util. Code, §§ 1201 & 1202. See also e.g., Los Angeles Railway Corp. v. Los Angeles (1940) 16 Cal.2d 779, 785; City of San Mateo v. Railroad Commission of California (1937) 9 Cal.2d 1, 5-6; City of Union City v. Southern Pacific Company (1968) 261 Cal.App.2d 277, 279.)

⁸ Siemans, supra, D.02-10-038s, at p. 2 (slip op.).

⁹ Id. at pp. 3-4 (slip op.).

¹⁰ Article III, Section 3.5 of the California Constitution acts, among other things, to prevent an administrative agency from refusing to implement a statute on federal preemption grounds, unless an appellate court has first determined that such implementation is prohibited by federal law or regulations. (See e.g., Burlington Northern and Santa Fe Railway Company et al. v. Public Utilities Commission (2003) 112 Cal.App.4^th 881, 887-888.) No appellate determination has found that Commission resolution of private rail crossing disputes (per Section 7537) is prohibited by federal law. Accordingly, it was lawful for the Commission to render a determination regarding Calico's request.

¹¹ BNSF also cites City of Auburn v. The United States Government and The Surface Transportation Board ("City of Auburn") (9^th Cir. 1998) 154 F.3d 1025. (Rhg. App., at p. 11.) However, it does so only for the purpose of illustrating general federal preemption principles.

¹² See e.g., Franks Investment Company LLC v. Union Pacific Railroad Company ("Franks Investment Co.") (2010) 593 F.3d 404, 412-413; New Orleans & Gulf Railway Company v. Barrois ("Barrois") (2008) 533 F.3d 321, 332-333.

¹³ D.11-10-025, at pp. 16-19, 21, 29 [Conclusion of Law Numbers 8, 9 & 10], pp. 31-32 [Ordering Paragraph Number 3], & Attachment A. See also e.g., Exh. 3, Attachments 1 & 2 [Past agreements re: Calico use of the Hector Station crossing]; Exh. 102, at pp. 5-7 [Description of Calico past use of the Hector Station crossing].

¹⁴ In addition, we imposed a number of conditions and procedures to prevent any disruption of BNSF's operations and to avoid any undue safety risk. (See D.11-10-025, at pp. 21, 31-32 [Ordering Paragraph Number 3] [Conditions and procedures to limit the frequency and type of use, and require safety measures such as training, daylight only use, advance notice of use, and the use of flag persons.].)

¹⁵ BNSF also argues the Decision ran counter to law by allowing Calico to use a maintenance road in BNSF's right-of-way. (Rhg. App., at pp. 12-13, citing Soo Line Railroad Company v. City of Saint Paul ("Soo Line") (D. Minn. 2010) 2010 U.S. Dist LEXIS 59971; and H.A. & L.D. Holland Company v. Northern Pacific Railway Company ("Northern Pac. Rwy.") (Wash. N.D. 1913) 208 F. 598.) We disagree. As already discussed, this proceeding involved temporary joint use of a crossing, with no disturbance to BNSF's rail operations. Nothing in these cases would prohibit the use of a maintenance road under such circumstances.

¹⁶ BNSF also argues we must act as the Lead Agency for CEQA (Rhg. App., at p. 15, relying on CEQA Guideline Section 15253(c)(2).) That is incorrect. The CEC is the Lead Agency for CEQA review of the Calico Solar Project. Thus, even if Commission CEQA review were required, the Commission would be a Responsible Agency. (See e.g., CEQA Guideline Section 15381.)

¹⁷ In re SF BART, supra, [D.03-06-063] at pp. 1-2 (slip op.).

¹⁸ There is also no evidence to show that use of the Hector Station crossing was part of the larger Calico Solar Project review.

¹⁹ See also Apartment Association of Greater Los Angeles v. City of Los Angeles (2^nd Dist. 2001) 90 Cal.App.4^th 1162, 1171; No Oil Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74.

²⁰ See CEC 2010 Decision, at p. 18 [Project Description], Finding of Fact Number 4. See also e.g., Exh. 128, Attachment O [Calico Petition to Amend], at p. 2-2, & Figures 2-1 & 2-1.