A federal agency responsible for whether Del Mar gets a safety fence installed along its 1.7 miles of blufftop railroad has reached no decision more than two-and-a-half years after the North County Transit District submitted its petition for a declaratory order.

The regulatory hot potato was tossed to the Surface Transportation Board on Aug. 28, 2020, after years of acrimony over the fence between the transit district and Del Mar residents. The California Coastal Commission, the San Diego Association of Governments, the Surfrider Foundation and others have weighed in on the petition.

NCTD Executive Director Matt Tucker has said repeatedly the fence will not be built until the federal board has issued a decision on the petition.

“No update,” NCTD Communications Director Chris Orlando said Tuesday, Feb. 28.

Approval of the petition would give the transit district the sole authority over the fence installation and the ongoing efforts to stabilize the tracks on the eroding coastal bluffs in Del Mar. Otherwise, the work needs permits from the state, the city and other agencies.

Among the responses to the petition last year were a cease-and-desist order requested by the Coastal Commission and a lawsuit filed in San Diego Superior Court by a group of residents called Friends of the Del Mar Bluffs. Neither case has been decided.

The Surface Transportation Board was created in 1996 and is similar to a court in the regulation of national railroad matters.

“Each case is different, so I couldn’t say if the time (the NCTD petition) taking is typical or not,” STB public affairs officer Michael Booth said Wednesday, March 1.

“There is no statutory deadline for an STB decision,” Booth said previously. “Each case has its own complexity, so there are no comparisons. The board prefers that parties work out their differences before requiring STB intervention. The board has given the space and time for the parties to do that.”

NCTD contributed to the delay when in November 2020 it asked the STB to hold the petition “in abeyance” for 120 days in an effort to resolve the issue through negotiations with Del Mar and the Coastal Commission. The abeyance was extended through Dec. 31, 2021, before NCTD declared the parties were at impasse and asked the board to renew its petition and expedite a decision.

Del Mar on July 25, 2022, in the most recent of its multiple replies to the petition, told the STB that the transit district’s filings ignore a number of things such as the fact that Del Mar and the Coastal Commission have continuously allowed emergency bluff repairs over the years without prior authorization.

“Ironically, it is NCTD that has reversed course on its conditional concurrence agreement, and is now actively seeking to block and delay the project,” the Del Mar letter states.

Del Mar Councilmember Dwight Worden said Friday, March 3, that his city’s position has not changed, and that he did not know why the board has reached no decision.

NCTD has long argued that bluff stability and the fence are matters of public safety and that construction can proceed regardless of opposition. Yet the fence project, which is unrelated to bluff stabilization, has stalled in the face of widespread opposition.

Hundreds of Del Mar residents vehemently oppose the fence, saying it would restrict access to the beach, obstruct views of the ocean, and reduce property values. The average home in Del Mar is worth more than $3 million, according to Zillow.com.

The transit district, which has fenced most of the 60-mile coastal rail route in San Diego County, says the proposed 6-foot-tall, chain-link or metal-mesh barrier is vital to reducing the number of people killed or injured on the track, including suicides.

From June 2016 to June 2021, there were 64 fatalities, 86 accidents, and 315 near-misses on the rail lines between Oceanside and San Diego, according to NCTD. Those numbers are likely to go up as the agency increases the number of daily trains and purchases faster, quieter locomotives.

NCTD received a state grant of $1.3 million in 2018 to install additional fencing. A district study identified areas in Oceanside, Encintas and Del Mar with frequent trespassing where the fence should be added. Only the Del Mar right-of-way remains unfenced because of the strident opposition there.

Trespassing on the train tracks is illegal, though rarely enforced. Violators can be fined $50 to $400 plus court costs, according to NCTD officials.

The Coastal Commission, the Del Mar City Council, the San Diego County chapter of Surfrider and other groups have sent multiple letters and updates to the STB opposing the petition.

“NCTD’s petition contains nothing more than speculation about possible future conflicts and presents no evidence of a single instance of a situation in which the commission’s ... review interfered with one of its rail projects,” states a Coastal Commission response. It makes no mention of the fence controversy.

Surfrider’s position on the petition also remains unchanged, said Mitch Silverstein, the San Diego chapter’s policy manager.

“We’ve steered clear of the Del Mar fence debate for the most part,” Silverstein said by email Wednesday, March 1.

“Above all we want the railroad relocated ASAP for the sake of the beach and the bluff,” he said.

The fence is clearly specified as a problem in a letter opposing the petition written to the federal board by Jeffrey Sturgis, whose family has owned property on the Del Mar bluff since 1943.

“The question of fencing the rail right-of-way is a uniquely local issue that does not fit into a one size fits all category, as evidenced by the varied fencing solutions along rail corridors throughout the state and country,” Sturgis said in the Oct. 5, 2020, letter.

“Local access to and from the ocean is an important right that must be balanced with NCTD’s desire to wall off rail right-of-way,” Sturgis said.

Amtrak supports the petition, stating in a letter that the Del Mar bluff stabilization and fencing projects should be undertaken “without delay.”

“Enhancing the safety of Amtrak’s operations is paramount, and decreasing trespasser incidents helps us meet this important objective,” it states.

A letter from the Association of American Railroads takes no position, but states that the petition raises “complex and important legal issues” and the association will monitor the issue for implications to the broader railroad industry.

The national Commuter Rail Coalition also supports the petition, and the U.S. Army’s Military Surface Deployment and Distribution Command states that the railroad is important to national defense as part of the Strategic Rail Corridor Network, but takes no position on the petition.

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Phil Diehl has been a reporter and editor in North County since 1989, and has written about city government, education, health care, military issues, nuclear power and more. He was the night city editor for the North County Times for about five years until it was purchased by The San Diego Union-Tribune. A graduate of West Virginia University, he began his newspaper career at the Parkersburg Sentinel in West Virginia. He lives in Carlsbad.

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