The county and Portland-Vancouver Junction Railroad are suing each other over terms of a 2004 lease to operate the short line
BRUSH PRAIRIE — As Summer winds its way around the bend towards Fall, a lawsuit between Clark County and the operator of the Chelatchie Prairie Shortline Railroad drags on. But things heated up a bit last week when Eric Temple, president of Portland-Vancouver Junction Railroad (PVJR), which operates the line, sent out a scathing press release.
In the release, Temple alleged he had been given a document from October of 2013 entitled “Railroad Lease Termination Considerations.”
“This particular document is just some of, sort of the best proof that there’s always been at least a part of Clark County staff and the prosecuting attorney’s office who are willing to look for any excuse, any possibility, to undermine the railroad’s contract with Clark County,” Temple told ClarkCountyToday.com.
Temple says the attorney representing the county in their lawsuit has demanded he retract his press release and destroy the document, alleging it is privileged information and wasn’t obtained via a Public Records request.
“This is the smoking gun we’ve been looking for and I’m so grateful to the county employee who delivered this to us,” said Temple in his release. “This conspiracy has now been exposed and the public servants who’ve been undermining and sabotaging the will of the people must be held accountable.”
“That’s his prerogative to release whatever he wishes,” said Clark County Manager Shawn Henessee in an interview with ClarkCountyToday.com. “However, I don’t believe that most people would agree with his assessment. And I’ll just leave it at that.”
PVJR and Clark County have been at loggerheads since last August when an attorney representing the environmental group Friends of Clark County sent a letter to the Prosecuting Attorney’s office alleging the 2004 lease with Temple and Columbia Basin Railroad Company (now PVJR) hadn’t been properly signed by the county’s board of commissioners.
In December, the county notified Temple it was their view the lease was invalid. He responded by temporarily halting the popular Christmas Tree trains on the north end of the Chelatchie Prairie line over concerns that liability insurance for the tourist attraction would be invalid if the lease was not in force. Ultimately, the two sides reached a deal that temporarily allowed the trains to resume, but not until after the county council had passed a public resolution condemning Temple and PVJR.
In February, things took another ugly public turn when Temple blatantly accused the county of trying to force him out of their lease so they cash in on development allowed along the rail line under a 2016 law passed in the state legislature.
Henessee says that’s a gross exaggeration.
“It’s just we have fundamental differences of interpretation about what that contract actually says. And, you know, we’ll let the court come down with their interpretation on that,” Henessee said.
In addition to arguing the lease signed in 2004 is invalid, the county says PVJR has violated its terms in a number of ways, including denying access to bridges in need of repair and refusing to turn over documentation. They also argue the lease, which allows PVJR to pay no fees to the county until they exceed 1,000 cars on the existing line, would amount to a gift of public funds, which is not allowed under the state constitution.
For his part, Temple wonders how the county can both be arguing that the original lease is invadlid, and also trying to say he’s in violation of that allegedly invalid lease.
“They reviewed it in 2006, 2011, 2012, 2013, 2016, and 2018,” Temple says. “It was always considered valid. But then they looked at it again, and suddenly it’s not valid. Come on.”
The county has hired outside legal counsel for the lawsuit, since Temple alleged that the prosecuting attorney’s office has a conflict of interest.
“Suddenly after I make a complaint, after a citizen makes a complaint, they look at it again and find multiple constitutional violations,” says Temple. “Code violations, Clark County charter violations, suddenly are readily apparent to them when they weren’t for the last 14 years.”
“I think everybody would prefer to not have to be in litigation,” counters Henessee. “I think that’s probably one of the few things we could actually agree on.”
That legal battle has been delayed slightly longer. Temple says a change of venue hearing scheduled for last Friday has been pushed to mid-August. Temple and PVJR did file a motion on Friday alleging the county has waived privilege.
“PVJR just happens to be in the unfortunate position of having to defend Clark County past from Clark County present,” their argument read. “The only allegations in the county’s complaint that even rise to a suggestion of PVJR misconduct are the breach claims, which are ironically de facto admissions by Clark County the lease is valid. Without a valid lease, the county could make no such claims. PVJR’s defense of Clark County past vs. Clark County present necessitates waiving privilege by the very nature of the complaint. The county shouldn’t be able to allege the inadequacy of legal advice given while simultaneously hiding the evidence. The county cannot be judged a fair arbitrator of claims they make against themselves.”
It remains to be seen how the court will view that argument.
In the meantime, Temple says the county has lost tens of millions in potential tax dollars and is losing out on opportunities to bring business to the area that could employ thousands. Neighbors near the proposed Freight Rail Dependent Use zoning overlay have been largely reluctant to see some of those businesses move into the area, along with the additional truck traffic it would bring.
Temple also says he believes there is pushback by some within the county, because he has been reluctant to allow the building of a proposed pedestrian and bike trail through the area.
“There’s always been a divide within the county between those who want the railroad to be successful, to grow the economy, and those who really just view this as a recreational corridor sometime in the future,” says Temple, while adding that he is not opposed to a trail running through that area.
“The problem is, and we all know this from our experience, if the trail goes in first, it’s really tough to get a business park in after there’s a trail,” he says. “If the business park goes in first, it’s really easy to get the trail in afterwards. So the business part has to come first.”
It remains to be seen how the legal system will rule about whether Temple can, in fact, use the 2013 document as proof that his lease has previously been found to be in full effect and binding. But he says there’s one line in there from Lawrence Watters of the prosecuting attorney’s office that jumps out at him.
“They say flat out there is no clean out for the county. The contract is ironclad,” Temple said.
The county says they want a judge to say that, and they’re apparently willing to spend the money it takes to get to that ruling.
