The state of Oregon has ordered a company to stop rebuilding sections of the Port of Tillamook Bay railroad because it doesn't have a permit to put material into the nearby river.
But the company isn't stopping and says it doesn't need a state permit.
Many sections of the Port of Tillamook Bay Railroad washed into the Salmonberry River in a 2007 storm. The railroad has been out of commission since the washout.
The Oregon Coast Scenic Railroad used to carry passenger trains along the rail line. It leases the tracks from the port and it recently started repairing damaged sections of the railroad.
Chris Knutsen, a fish biologist with the Oregon Department of Fish and Wildlife, said the company is doing work in the Salmonberry River without a permit while wild steelhead are spawning. If the company had applied for a permit, he said, his agency would have recommended the work take place after spawning season is over in August.
"Right now the winter steelhead are coming into the river and they're starting to show some spawning activity," he said. "We see the Salmonberry River as one of the healthiest steelhead runs on the North Coast."
The Oregon Department of State Lands has issued a cease and desist order to stop the work because it involves putting construction material below the high-water line in the river.
"The railroad has claimed that they have federal preemption status and they don't have to comply with state laws," Knutsen said.
The railroad company responded to the cease and desist order by filing a lawsuit in federal court.
The lawsuit asks the court to invalidate the state's order. The company's Attorney Martin Hansen says under federal interstate commerce law the company doesn't need a state permit to rebuild the railroad.