A residents group called Friends of Del Mar Bluffs has filed suit to stop construction of a 6-foot-tall, wire-mesh fence along the railroad tracks in Del Mar, a public safety project the city has been fighting for years.

The fence would take away “the public’s right to continue to access and use portions of the Del Mar bluffs in (North County Transit District’s) right-of-way for sitting, walking, running, meditating, observing the Pacific Ocean and other public uses, as the public has for over 100 years,” the lawsuit states.

The group and its president, Del Mar resident Laura DeMarco, filed the case March 21 in San Diego Superior Court. The transit district, which owns and operates the railroad, filed notice Tuesday to move the case to federal District Court in San Diego, in part because the railroad provides interstate freight and passenger operations.

“We anticipate that NCTD’s strategy in removing the case to federal court is to eventually have a federal administrative agency decide these important issues that should be decided by the California courts,” said Anders Aannestad, an attorney for the Friends of Del Mar Bluffs, in a statement issued Thursday. “We will address the proper forum for this litigation in court at the appropriate time.”

The transit district filed a petition in August 2020 with the federal Surface Transportation Board asking to be granted sole authority over the project. So far, the federal agency has announced no decision.

On Tuesday, the district filed its second supplemental status update with the federal board to include comments about the lawsuit.

“This is clearly an attempt by Friends of Del Mar Bluffs to bypass the STB and to seek relief through forum shopping in state court,” the update states, and the district urged the board to issue a decision “as soon as possible” because construction of the fence is to begin “imminently.”

The transit district’s board of directors approved a contract Jan. 20 with Exbon Development Inc. to build the fence within the railroad right-of-way on the coastal bluffs in Del Mar. The Friends’ lawsuit seeks to invalidate the contract and to require a coastal development permit from the California Coastal Commission before any construction. NCTD officials say a coastal development permit is unnecessary.

Transit officials say the fence is essential and long overdue to prevent people from trespassing on the tracks and being killed by the trains. Countywide there have been 64 fatalities and 315 near-misses on the tracks in the five fiscal years that ended June 30, 2021, according to the district’s statistics.

Train traffic has increased significantly on the route since the initiation of Coaster commuter service in the 1990s. The route also carries Amtrak passenger trains and BNSF freight trains. As many as 50 trains travel the segment daily, and the regular runs are expected to increase steadily over the next few decades.

Del Mar residents say a fence also would reduce property values and that the postholes would contribute to erosion of the crumbling bluffs. They add that if any fencing is installed it should be only at the northern end of the Del Mar segment, where more people frequently cross the tracks and most of the accidents occur, and not on the upper bluffs at the southern end of the city.

The California Coastal Commission also opposes the fence. The commission’s executive director, Jack Ainsworth, issued a cease-and-desist order March 7 stating that the barrier would “disrupt or eliminate pedestrian access” on trails along the bluff and to the beach. Ainsworth also states that the district must obtain a coastal development permit from the commission to build the fence.

Del Mar was one of three areas, along with Oceanside and Encinitas, recommended for additional fencing because of frequent trespassing, according to a study of the 60-mile segment of the San Diego County coastal rail corridor released by the district in October 2020. Most of the corridor is already fenced, and there was little resistance to the project in Oceanside and Encinitas.

The transit district delayed the project in Del Mar for months in an effort to reach a compromise. The proposed modifications included a shorter, more visually attractive fence, but the Del Mar City Council voted against any agreement, and the district decided to proceed without the modifications.

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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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