SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3817-97T2
VILLAGE OF RIDGEFIELD PARK,
Plaintiff-Appellant,
v.
NEW YORK, SUSQUEHANNA AND
WESTERN RAILWAY CORPORATION,
a New Jersey Corporation,
Defendant-Respondent.
____________________________________
Argued: December 2, 1998 - Decided: February
17, 1999
Before Judges King, Wallace and Newman.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County.
Martin T. Durkin and Lewis Goldshore argued
the cause for appellant (Durkin & Boggia and
Goldshore & Wolf, attorneys; Mr. Darken,
Robert J. Cash and Alison S. Kerber, on the
brief).
J.S. Lee Cohen argued the cause for respondent
(DeCotiis, FitzPatrick & Gluck, attorneys;
Kevin M. Kinsella, on the brief).
William John Kearns, Jr., General Counsel,
attorney for amicus curiae The New Jersey
State League of Municipalities and The New
Jersey Institute of Municipal Attorneys
(Thomas W. Dunn and James V. Zarrillo of the
firm Beattie Padovano, on the brief).
The opinion of the court was delivered by
KING, P.J.A.D.
This is an action by a municipality against a railroad
corporation. The municipality seeks injunctive relief against an
alleged public nuisance. A claim for damages also is asserted.
The Village of Ridgefield Park contends that various activities by
the railroad on its right-of-way and side tracks along the
Hackensack River in Bergen County is annoying adjacent citizens and
damaging their properties. The Law Division judge denied all
relief on the ground of federal preemption by railroad regulation
and granted summary judgment to the railroad. We affirm, with
modification. We conclude that plaintiff and the citizens must
first seek relief from federal authorities, who may choose to
defer, at least to some extent, to state regulation under the
police powers customarily reserved to the states where citizens
claim damage and oppression from a public nuisance generated by an
interstate railroad. Our affirmance of the summary judgment is
without prejudice to the municipality's and its citizens' rights to
move to reopen the matter at the trial level, if the federal
regulatory authority either declines to entertain the claim on the
merits or finds justification for state action in the circumstance.
Plaintiff Village of Ridgefield Park (Village) in Bergen County, population 12,500, brought this complaint in four counts to enjoin defendant New York Susquehanna & Western Railway Corporation (the railroad) from using property the railroad owns as a right-of-way in plaintiff Village and now uses as a railroad maintenance facility. Before 1992 defendant's 125-foot right-of-way located in the Village consisted of a single railroad track used only for moving freight trains through the municipality. In 1992 the railroad relocated its maintenance facility from a remote section of the Borough of Ridgefield, to the south, called the Little Ferry Yard, to its right-of-way in the Village near residential homes, a funeral home, and a public park. The railroad did not obtain any construction or land-use permits from the Village and will not allow the Village to perform any routine safety, health and fire inspections on railroad facilities in the right-of-way through the Village. The railroad alleges federal preemption prevents plaintiff from invoking routine local police powers. Complaints by the Village and its residents include continuous noise from as many as a dozen idling locomotive engines near residences which occurs even into the night hours, vibration of houses caused by these idling locomotive engines, soot on homes, unpleasant odor caused by diesel fumes, bright lights during the night, fear of dangerous diesel fuel leakage if defendant's fuel tanks are not properly equipped with secondary containment systems, and a reduction in property values. Two of the four counts of plaintiff's rather generalized complaint for injunctive relief also demand judgment for compensatory damages. No local individuals, property owners, or citizens are joined as plaintiffs. The Village itself describes no particularized damage to municipal property. For this reason, we view this essentially as an action for injunctive relief.
Plaintiff raises these four issues on its appeal:
I. Whether the Interstate Commerce
Commission Termination Act of 1995
addresses only the economic regulation of
railroads and does not preempt the
Village from exercising its police power
in the areas of safety, health and
welfare.
II. Whether the judge's decision in granting
summary judgment to defendant on the
issue of breach of contract was in error
and should be reversed.
III. Whether the Appellate Division should
exercise original jurisdiction under R.
2:10-5 to grant the Village summary
judgment on its public nuisance claims as
a matter of law.
IV. Whether the judge erred in dismissing
plaintiff Village's federal Oil Pollution
Act claim as a matter of law.
This is the procedural context. Plaintiff Village filed this complaint on November 18, 1993 against the railroad seeking an injunction to stop the railroad from operating its locomotive refueling and light-maintenance facility (facility) near the residential section. In 1992 the railroad had relocated this facility from a more remote section of the Borough of Ridgefield, to the south of the Village, known as Little Ferry Yard. The Village sought a judicial order requiring the railroad to obtain site-plan approval and other local permits and approvals, to permit municipal inspections, and to cease its annoying refueling and maintenance operations. Plaintiff further alleges the railroad breached an implied contract to construct an engine house designed to minimize noise and air pollution from its maintenance operations in the Village. Plaintiff also alleged the railroad was in violation of local zoning ordinances.
On November 5, 1996 the railroad filed a motion to dismiss the complaint for failure to state a claim or in the alternative for summary judgment. The railroad's affirmative defenses included the assertion that any claims by the Village were preempted by the Interstate Commerce Commission Termination Act of 1995, were barred by failure to exhaust administrative remedies, and constituted an unconstitutional burden on interstate commerce. On February 18, 1997 the Village filed a response to defendant's motion to dismiss the complaint or summary judgment and a cross-motion for summary judgment.
On February 6, 1998 Judge Sciuto heard oral arguments and entered an order dismissing plaintiff's complaint and granting defendant's motion for summary judgment, essentially on federal preemption grounds.
The railroad is a "common carrier engaged in the business of transporting goods in interstate commerce." Since 1893 the railroad had used a site called "The Little Ferry Yard" as its railroad terminal. This yard was located in the Borough of Ridgefield, more remote from local residences and south of Overpeck Creek, the border between the Borough and the Village, and also on the Hackensack River. This "Little Ferry Yard" consisted of a roundhouse, turntable, sand tower, maintenance facility and various shops used to service and maintain railroad equipment. In the 1980's the railroad expanded the Little Ferry Yard "to accommodate additional freight traffic" and unloading of cargo in the yard. The railroad also owned the subject 125-foot right-of-way, traversing the western edge of the Village along the course of the Hackensack River in an area zoned I-1 for "light industrial" uses. Prior to 1992 the right-of-way in the Village had consisted of one track used for freight trains to pass through. To the east, between the bluff and immediately adjacent to defendant's right-of-way in the Village, Conrail owns a single-track right-of-way used for through-train traffic only. The railroad's right-of-way in the Village is bordered on the west by the Hackensack River and a strip of light-industrial uses along the bank of the river. The heavily-traveled Ridgefield Avenue and Bergen Turnpike is to the east of the Conrail track. The residential area and small park subject of the plaintiff's complaint on behalf of its citizens sits on a high bluff, just east of Ridgefield Avenue and the Bergen Turnpike. The north boundary of the precise site of the railroad's servicing, maintenance, switching and other operations in the Village right-of-way is the overpass of State Highway 46. Interstate Route 80 is several hundred yards north of Highway 46. Interstate 95 is about one-half mile to the east of the facility.
In 1991 the railroad sold its Little Ferry Yard and railroad terminal to CSX Rail Systems (CSX) for twenty-one million dollars so it could "benefit from additional rail traffic from the CSX operations into the Ridgefield site." After the sale, CSX refused to allow the railroad to continue its refueling and light-maintenance operations at the Little Ferry site at the Borough of Ridgefield. This required the railroad to relocate its so-called "light-maintenance" facility to its approximately 125-foot right-of-way located in the Village, where some side-track was added.
Plaintiff alleged that in May and June of 1992 the railroad began constructing several new facilities on the Village site: a thirty to forty-foot sand tower, together with permanent installation of fuel oil tank cars, pumps to distribute the fuel oil, a servicing or lube oil tank, and permanent railroad boxcars used as shops, offices and septic and sanitary facilities. The railroad did not obtain any zoning or construction permits for these improvements. The railroad admits that refueling and servicing takes place at the Village site; this includes: "adding diesel fuel to the fuel tank of the locomotive; adding engine oil to the crankcase; adding water to the radiators; and adding sand to the on-board holding tanks for traction in wet rail conditions." Recently, a permanent fuel tank was installed, allegedly with secondary containment safeguards, which defendant asserts now meets EPA approval.
[This section, containing a very detailed factual recital, is
redacted for publication purposes as unnecessary for understanding
the preemption principles here implicated. R. 1:36-3.]
Judge Sciuto heard oral arguments on the summary judgment
cross motions on February 6, 1998. At argument the railroad's
attorney claimed the maintenance facility located in the Village
"is not a maintenance yard in the truest sense" but that it is
"just a refueling stop." He explained that long-range trains,
destined for the Village and ultimately the Little Ferry Yard,
coming from the west coast carry containers shipped from the
Orient. These one-to-two-mile-long trains destined for the Village
do not arrive at any scheduled time. Defendant's attorney said
there was no way of predicting when the trains arrive and that they
could arrive during the early hours of the morning. The containers
remain under U.S. Custom seal until they arrive at the railroad
facility. He said Custom's officers break the containers' seals at
the Village facility. He said the railroad also refuels and reoils
these long-range trains at the facility located in the Village. He
said the railroad facility "services the four or five locomotives
it takes to pull a train [one to two-miles] long."
Judge Sciuto relied on a Georgia Federal District Court case,
Norfolk Southern Railway Co. & Central of Ga RR Co. v. City of
Austell, Docket No. 1:97-cv-1018-RLV (N.D. Ga., August 19, 1997),
(not otherwise officially reported) in determining the ICC
Termination Act of 1995,
49 U.S.C.A.
§§701-707; §§ 10101-16105,
absolutely preempted the Village's police powers in the
circumstance. He quoted the Austell federal judge's statement that
the Act "was passed in an effort to reduce regulation of railroads
and other modes of surface transportation." Judge Sciuto concluded
that the railroad's activities in the Village including fueling,
oiling and sanding the trains promotes its overall railroad
operation. He agreed with the Austell holding that the remedies
provided under the ICC Termination Act demonstrated Congress'
intention to preempt state regulatory authority over railroad
operations. The judge found the railroad's operations were within
the exclusive jurisdiction of the Surface Transportation Board.
Regarding the noise and pollution nuisance issues, Judge
Sciuto said plaintiff should seek redress from the "Surface
Transportation Board or other federal agency which regulates air
emissions or oil pollution emissions," not from the court.
Regarding the engine-house contract issue, the judge found there
was no meeting of the minds, and if discussion about a contract was
made in an effort to settle a dispute, any evidence of a concession
would be excluded by N.J.R.E. 408 regarding settlements or
proposals of settlements.
The Interstate Commerce Commission Termination Act of 1995 (ICC Termination Act or Act) replaced the Interstate Commerce Commission with the Surface Transportation Board (Board or STB). 49 U.S.C.A. 701. The ICC Termination Act became effective January 1, 1996. Pub.L. No. 104-88 (1995) (codified at 49 U.S.C.A. 701 to 727 and 49 U.S.C.A. 10101 to 16105). The Board has exclusive jurisdiction over transportation by rail carrier which is "only by railroad." 49 U.S.C.A. 10501(a) and (b). The Act's preemption clause is broad: "The jurisdiction of the Board over ... the construction, acquisition, operation ... of ... facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State Law." 49 U.S.C.A. 10501(b)(2).
The Village argues the ICC Termination Act does not completely preempt the police powers of the State of New Jersey and its municipalities. The Village argues preemption by federal law is not favored in areas where state police power has routinely been exercised unless the legislation clearly displaces the state police power. The Village asserts that because the ICC Termination Act does not explicitly bar all state action, its police powers are still extant. Plaintiff also argues that the judge erred in dismissing its nuisance claim because the ICC Termination Act does not preempt state action designed to protect public health and safety.
The railroad asserts the ICC Termination Act "preempts local regulations that conflict with or frustrate Congress' delegation of regulatory authority to the [Surface Transportation Board], which, within its scope, is exclusive." The railroad also argues plaintiff's nuisance claim was properly preempted.
A defendant relying on an affirmative defense has the burden of persuasion by a preponderance of the evidence standard. Rendine v. Pantzer, 276 N.J. Super. 398, 435 (App. Div. 1994), aff'd 141 N.J. 292 (1995); Pagano v. United Jersey Bank, 276 N.J. Super. 489, 500 (App. Div. 1994), aff'd 143 N.J. 220 (1996). The railroad raises preemption as an affirmative defense and has the burden of persuasion to demonstrate the Village's claims are indeed preempted. R. 4:5-4; Pressler, Current N.J. Rules, Comment R. 4:5-4 [13A - railroads]. See also Maher v. New Jersey Transit R.O., 125 N.J. 455, 463 (1991).
The Tenth Amendment to the United States Constitution declares "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people." U.S. Const. amend. X. The preemption doctrine is rooted in the Supremacy Clause of the United States Constitution. Fidelity Federal Sav. & Loan Assn. v. de la Cuesta, 458 U.S. 141, 153 (1982). The Supremacy Clause states, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land...." U.S. Const. art VI, cl. 2. In conducting a preemption analysis, the "domain expressly preempted" by the statutory language must be identified, keeping in mind two considerations. Medtronic, Inc. v. Lohr, 518 U.S. 470, 484-85 (1996). First, courts should "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Id. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 545-46 (1992). Second, "any understanding of the scope of a pre-emption statute must rest primarily on `a fair understanding of congressional purpose.'" Id. at 485-86 (citing Cipollone v. Liggett Group, Inc., 505 U.S. at 530, n. 27 (opinion of Justice Stevens). The overriding principle in a preemption analysis is whether Congress intended to preempt state law and power. Medtronic, Inc. v. Lohr, 518 U.S. at 494; Cipollone v. Liggett Group, Inc., 505 U.S. at 516; Strasenburgh v. Straubmuller, 146 N.J. 527, 539 (1996).
Congress' intent is "primarily discerned from the language of the pre-emption statute and the statutory framework surrounding it." Medtronic, Inc. v. Lohr, 518 U.S. at 486. "The clearest indication of [the Legislature's intent] is the statutory language." Medical Soc. of N.J. v. N.J. Dept. of Law & Public Safety, 120 N.J. 18, 26 (1990). A court should "look first to the statute's plain language to derive its meaning, absent any specific indication of legislative intent to the contrary." Town of Morristown v. Woman's Club, 124 N.J. 605, 610 (1991). "Where a statute is clear and unambiguous, a court may not impose an interpretation other than the statute's ordinary meaning." Munoz v. New Jersey Auto. Full Ins. Underwriting, 145 N.J. 377, 384 (1996). The legislative history and the announced policy surrounding the statute may also be relevant to determine whether Congress intended the statute to preempt State law. Medtronic, Inc. v. Lohr, 518 U.S. at 494. "Pre-emption may be either express or implied and is `compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose.'" Fidelity Federal S. & L. Assn. v. de la Cuesta, 458 U.S. at 153 (citing Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). State law which conflicts with federal law is without effect. Cipollone, 505 U.S. at 504 (citing U.S.C.A. Const. Art. 6, cl. 2). "Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law." Fidelity Federal S. & L. Assn. v. de la Cuesta, 458 U.S. at 153. "In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law." Cipollone, 505 U.S. at 516.
Any preemption analysis must focus on the assumption that state police powers are not preempted unless this was the clear purpose of Congress. Medtronic, Inc. v. Lohr, 518 U.S. at 484-85. Determining Congress' intent must start with analyzing the statutory language of the preemption statute. Id. at 486. The pertinent statute here states the Surface Transportation Board has jurisdiction "over transportation by rail carrier that is (a) only by railroad...." 49 U.S.C.A. 10501(a)(1)(A). The Board has exclusive jurisdiction over,
(1) transportation by rail carriers, and the
remedies provided in this part with respect to
rates, classifications, rules (including car
service, interchange, and other operating
rules), practices, routes, services, and
facilities of such carriers; and
(2) the construction, acquisition, operation,
abandonment, or discontinuance of spur,
industrial, team, switching, or side tracks,
or facilities, even if the tracks are located
or intended to be located, entirely in one
State, is exclusive. Except as otherwise
provided in this part, the remedies provided
under this part with respect to regulation of
rail transportation are exclusive and preempt
the remedies provided under Federal or State
law.
[
49 U.S.C.A. 10501(b)(1) and (2).]
The Act defines transportation as,
(A) a locomotive, car, vehicle, vessel,
warehouse, wharf, pier, dock, yard, property,
facility, instrumentality, or equipment of any
kind related to the movement of passengers or
property, or both, by rail, regardless of
ownership or an agreement concerning use; and
(B) services related to that movement...
[
49 U.S.C.A. 10102(9)(A) and (B).]
The Act's definition of railroad includes,
a switch, spur, track, terminal, terminal
facility, and a freight depot, yard, and
ground, used or necessary for transportation.
[
49 U.S.C.A. 10102(6)(C).]
The Act defines rail carrier as,
a person providing common carrier railroad
transportation for compensation...
[
49 U.S.C.A. 10102(5).]
The language of the statute does not expressly limit
preemption to strictly "economic regulation" nor does it state that
the states retain historic police powers over railroads and their
property. We are told, pursuant to the clear language of the
statute, that the "construction" and "operation" of the railroad's
"facilities" falls within the Board's express and exclusive
jurisdiction.
49 U.S.C.A. 10501(b)(1) and (2). By definition, a
railroad's "facility," "warehouse," "yard," "property,"
"instrumentality," and "equipment of any kind related to the
movement of passengers or property," "regardless of ownership or an
agreement concerning use" are all within the scope of the Act's
concept of "transportation."
49 U.S.C.A. 10102(9)(A). Thus,
pursuant to the statutory language, the Board appears to have
exclusive jurisdiction over everything pertaining to the railroad's
facility in the Village mentioned in the Act's definition of
transportation, i.e., the tracks and sidetracks, the sand tower,
the lube oil and diesel fueling facilities and tanks, the converted
box cars, the yard bulls, the proposed engine house, and so on.
The legislative history and policy surrounding the statute may
also be considered in determining the scope of a statute's
preemption. Medtronic, Inc. v. Lohr, 518 U.S. at 494. The
section-by-section analysis portion of the congressional "history"
to the ICC Termination Act, entitled Section. 10301. General
Jurisdiction, for example, states,
This provision replaces the railroad portion
of former Section 10501. Conforming changes
are made to reflect the direct and complete
pre-emption of State economic regulation of
railroads.... The former disclaimer regarding
residual State police powers is eliminated as
unnecessary, in view of the Federal policy of
occupying the entire field of economic
regulation of the interstate rail
transportation. Although States retain the
police powers reserved by the Constitution,
the Federal scheme of economic regulation and
deregulation is intended to address and
encompass all such regulation and to be
completely exclusive.
[H.R. Conf. Rep. No. 104-422, Dec. 18, 1995;
(emphasis supplied).]
When the Act was adopted, Congress retained the section
entitled general jurisdiction, delineated as § 10501. However, the
Congressional intent stated above with regard to the proposed
§10301 readily applies to § 10501. Both sections cover the same
topic, general jurisdiction. The only distinction is the section
number assigned. From the language in this legislative history,
Congress surely intended the Act to preempt all State economic
regulation of railroads. But it is also apparent from the noted
history that Congress intended the states retain certain police
powers reserved by the Constitution. We conclude that all state
action with any economic impact on railroads was preempted by the
Act and that the states retained a certain residuum of historic
police powers, but presumably those not related to railroad
service, operations and physical properties or structures.
A review of the "Rail Transportation Policy" section of the
Act reveals the Act's focus is on the deregulation of many aspects
of the interstate railroad system, not only on strictly economic
aspects. For example, one policy stated is to "reduce regulatory
barriers to entry into and exit from the industry."
49 U.S.C.A. 10101(7). Another policy is to "minimize the need for Federal
regulatory control over the rail transportation system and to
require fair and expeditious regulatory decisions when regulation
is required."
49 U.S.C.A. 10101(2). Another policy is to increase
"competition and demand for services."
49 U.S.C.A. 10101(1). The
"Policy" section also states that "it is the policy of the United
States Government ... (8) to operate transportation facilities and
equipment without detriment to the public health and safety."
49 U.S.C.A.
§10101(8). The policy section also states that safety,
safe and suitable working conditions, unlawful discrimination,
anti-trust violations, and energy conservation are policy
considerations. Id. at (3), (11), (12) and (14). However, the
dominant public policy emphasis is on a very substantial overall
deregulation of the railroad industry. As aptly stated in CSX
Transportation, Inc. v. Georgia Public Service Commission,
944 F.Supp. 1573, 1583 (N.D. Ga 1996), "[b]y preempting state
regulation of railroad operations, and granting exclusive
jurisdiction over the regulation of almost all aspects of railroad
operations to the [Board], Congress removes the ability of states
to frustrate its policy of deregulating and reviving the railroad
industry." The Act obviously intended that national transportation
interests dominate over parochial concerns and impulses.
A few courts in the land have addressed the issue of
preemption under the ICC Termination Act of 1995. In 1996 the
Nebraska Supreme Court held it lacked subject matter jurisdiction
to determine whether Burlington Northern Railroad Company's
application to "discontinue its `Osmond Direct Service Agency' and
transfer that agency's services to Burlington's Lincoln agency" was
properly granted by Nebraska's Public Service Commission. In re
Application of Burlington Northern Railroad v. Page Grain Co.,
545 N.W.2d 749 (Neb. 1996). The Nebraska Supreme Court held it lacked
"jurisdiction to address the matter because the ICC Termination Act
of 1995 preempts state remedies and vests exclusive jurisdiction in
the federal government for interstate rail matters affecting
practices, routes, services, and facilities of rail carriers." Id.
at 750. The court found that
49 U.S.C.A. 10501(a) of the ICC
Termination Act granted exclusive jurisdiction over transportation
by rail carriers in the Surface Transportation Board and that state
courts could no longer consider the "practices, routes, services,
and facilities of interstate rail carriers...." Id. at 751.
In 1996, a Georgia federal district court addressed whether
the ICC Termination Act of 1995 preempted the Georgia Public
Service Commission's "authority to regulate railroad agency
closings in Georgia." CSX Transportation, Inc. v. Georgia Public
Service Commission, 944 F.Supp. at 1573. Georgia's Public Service
Commission had regulated its state's railroads since 1897.
Plaintiffs CSX and Norfolk maintained railroad agency offices in
Georgia which were responsible for ticket sales, baggage handling,
and customer information. The Georgia Public Service Commission
denied CSX's requests for permission to modify their agency offices
or discontinue them. Id. at 1575. The federal court determined
the language contained in
49 U.S.C.A. 10501(b)(2) was an "express
preemption clause" and clearly showed Congress' "intent to preempt
state regulatory authority over railroad operations." Id. at 1581.
The pertinent part of the statute relied upon by that court states,
"[e]xcept as otherwise provided in this part, the remedies provided
under this part with respect to regulation of rail transportation
are exclusive and preempt the remedies provided under Federal or
State law."
49 U.S.C.A. 10501(b)(2). The court said regulating
the closing of railroad agencies came within "regulation of rail
transportation." CSX Transportation, Inc. v. Georgia Public
Service Commission, 944 F.Supp. at 1581. The court also stated,
"[t]he Act was passed in an effort to reduce the regulation of
railroads and other modes of surface transportation." Id. at 1576
(citing
49 U.S.C.A. 10101).
In 1997, a federal district court in Montana ruled the ICC
Termination Act preempted economic regulation of rail
transportation and expressly preempted Montana state law regarding
discontinuance of railroad station agencies. Burlington Northern
Santa Fe Corporation v. Anderson,
959 F.Supp. 1288 (D. Mont. 1997).
The court also agreed with the reasoning in CSX Transportation,
Inc. v. Georgia Public Service Commission, 944 F.Supp. at 1573.
The Montana federal court, relying on
49 U.S.C.A. 10501(b)(2)
stated the Act "reserves no area of regulation for the individual
states .... agency regulation or otherwise." Burlington Northern,
959 F.Supp. at 1295. That court stated the Act preempted "economic
regulation" and that "[t]he statutory language and accompanying
legislative record evidence Congress' clear and manifest intent to
occupy the entire field of economic regulation of rail
transportation...." Id. at 1296. In Rushing v. Kansas City
Southern Railway Company,
14 F. Supp.2d 869 (S.D. Miss. 1998), the
federal district judge declined on federal preemption grounds to
grant relief by injunction against common-law nuisance claim based
on coupling and whistle noise and engine traffic vibration. See
Georgia Public Service Commission v. CSX Transportation, Inc., 225
Ga. App. 787,
484 S.E.2d 799 (1997) (ICCTA preempted state public
service commission's ruling on staffing of service facility).
In October 1998 the Ninth Circuit addressed the preemption
issue in City of Auburn v. U.S. Government,
154 F.3d 1025 (9th Cir.
1998) (the "Stampede Pass" case). The Ninth Circuit held the ICC
Termination Act specifically preempts state and local environmental
and land use permitting laws regarding railroad operations because
of the plain language of the Act and the statutory structure. Id.
at 1031. In the "Stampede Pass" case the Ninth Circuit echoed the
Georgia federal district court's conclusion on the breadth of the
Act's preemption clause, stating:
The preemptive effect of the ICCTA, which
went into effect January 1, 1996, is a
question of first impression on the appellate
level of this circuit. The district courts
which have had the opportunity to examine this
question have applied federal preemption.
Despite the petitioner's claims to the
contrary, the reasoning of these courts
support preemption in this case as well.
In CSX Transp., Inc. v. Georgia Public
Service Comm'n,
944 F.Supp 1573
(N.D.Ga.1996), the district court found §
10501(b)(2)'s preemption of state regulation
of railroad agency closings by stating: "It is
difficult to imagine a broader statement of
Congress's intent to preempt state regulatory
authority over railroad operations." 944
F.Supp. at 1581. "Interpreting the preemption
clause in the ICC Termination Act to be broad
enough to preempt state regulation of agency
closings," the court stated, "is consistent
with the Act's grant of exclusive jurisdiction
over almost all matters of rail regulation to
the STB.
[Id. at 1029-30.]
The Ninth Circuit responded to the City of Auburn's claim in
the "Stampede Pass" case that ICCTA did not attempt to preempt
local environmental regulation by stating:
Auburn attempts to distinguish its
permitting requirements as environmental
rather than economic regulation, claiming this
is a "traditional state police power" that
Congress did not intend to preempt. It
correctly points out that courts have declined
to preempt state environmental regulation in
some other contexts. See, e.g., Chevron
U.S.A., Inc. v. Hammond,
726 F.2d 483, 501
(9th Cir. 1984). However, the pivotal
question is not the nature of the state
regulation, but the language and congressional
intent of the specific federal statute. See,
e.g., Metropolitan Life Ins. Co. v.
Massachusetts,
471 U.S. 724, 738,
105 S.Ct. 2380,
85 L.Ed.2d 728 (1985); Shaw v. Delta Air
Lines, Inc.,
463 U.S. 85, 95,
103 S.Ct. 2890,
77 L.Ed 2d 490 (1983) (Preemption of state law
is compelled if Congress' command is
explicitly stated in the federal statute's
language or implicitly contained in its
structure or purpose.)
For example, in Hammond, the court
allowed an Alaska statute governing the
discharge of ballast by oil tankers after
finding that in the Clean Water Act, Congress
"clearly expressed its intent to allow the
states to take an active role in abating water
pollution." 726 F.
2d at 489. In contrast,
there is no evidence that Congress intended
any such state role under the ICCTA to
regulate the railroads.
Additionally, given the broad language of
§ 10501(b)(2), (granting the STB exclusive
jurisdiction over construction, acquisition,
operation, abandonment, or discontinuance of
rail lines) the distinction between "economic"
and "environmental" regulation begins to blur.
For if local authorities have the ability to
impose "environmental" permitting regulations
on the railroad, such power will in fact
amount to "economic regulation" if the carrier
is prevented from constructing, acquiring,
operating, abandoning, or discontinuing a
line.
We believe the congressional intent to
preempt this kind of state and local
regulation of rail lines is explicit in the
plain language of the ICCTA and the statutory
framework surrounding it. See Medtronic, Inc.
v. Lohr,
518 U.S. 470, 486,
116 S.Ct. 2240,
135 L.Ed 2d 700 (1996). Because congressional
intent is clear, and the preemption of rail
activity is a valid exercise of congressional
power under the Commerce Clause, we affirm the
STB's finding of federal preemption.
[Id. at 1024-25; emphasis supplied.]
We also point out that in the "Stampede Pass" case the STB,
when requested, quickly granted an administrative audience and
rendered a prompt decision on the environmental health and safety
claims of the county and local government bodies allegedly affected
by the opening of the new service. Id. at 1027. The Ninth Circuit
found that the agency had promptly and fully considered the
environmental consequences of "concerns such as rail traffic
increases, transportation safety, energy, air quality, and noise."
Id. at 1032.
This fortifies our conclusion that the concerns raised by the
Village here are a matter at least for the primary jurisdiction of
the responsible agency, the STB, if not ultimately one of total
federal preemption. We contrast this situation with the Ninth
Circuit's recent ruling allowing that common-law "run-of-the-mill
personal injury claims" for money damages arising from airline
travel is not inconsistent with the preemption features of the
Airline Deregulation Act, 49 U.S.C.A. App. § 1305(a)(1), Charas v.
Transworld Airlines, __ F.3d __ (9th Cir. 1998). Allowing money
judgments against the railroad for carelessly injuring people does
not affect the operation or interrupt the service of the railroad,
although it may incidentally raise insurance rates or overall
business expenses.
We conclude that the plaintiff must submit its claim to the
STB for resolution. This action is essentially for injunctive
relief. As noted, the Village includes a claim for money damages
but does not itself assert any specific damage to municipal
property from defendant's operation. We doubt any occurred. Thus,
in the present posture of this case, a court could not award money
damages for tortious conduct. The claim is and remains a claim for
injunctive relief against a public nuisance created by the
defendant's railroad operations. To afford plaintiff injunctive
relief we would have to hold that the Law Division could, if it
agrees with plaintiff's claim of public nuisance, order that
defendant (1) submit to standard municipal inspections and remove
certain facilities or cease using them if they do not comply with
applicable local standards (the sand tower; the converted box cars
used as administrative facilities; the tank-cars and lube oil
vessel used for refueling and servicing, or the recently erected
fuel tank) and (2) cease or diminish its annoying operations,
allowing multiple engines perhaps a dozen or more (and cars) to
stand and idle in the Village at night or at anytime the number of
engines is substantial, creating soot, tremors and unseemly noise.
We conclude that if the Law Division judge had the type of
control over defendant's operation to order this relief, he would
be invading the preempted area of exclusive federal regulation.
Further, if the judge ordered local inspections concerning sanitary
and sewer facilities, building and safety codes, and land-use
permitting process, he would be condoning, if not ordering,
regulation of defendant's railroad facilities in violation of the
overarching federal legislative scheme.
We are most reluctant to remand for a plenary hearing to
consider injunctive relief in a situation where we cannot tell the
remand court the scope of the adjudicative powers which it may use
to enforce plaintiff's claims. We are constrained to conclude that
plaintiff must present its claim to the STB in the first instance
under the doctrines of federal preemption and primary
jurisdiction.See footnote 1 "As the agency with authority delegated from
Congress to implement the provisions of the ICC Termination Act,
the STB is uniquely qualified to determine whether state law should
be preempted." CSX Transportation, Inc. v. Georgia Public Service
Commission, 944 F. Supp. at 1584, quoting Medtronic, 518 U.S. at
496. The STB may act on the problem and devise a plan which gives
these troubled citizens a measure of relief. We cannot presume and
have no reason to believe that the STB will ignore legitimate
citizen complaints. The STB may also choose to spell out the
precise contours of the residual state police powers which it finds
survive the broadly-phrased federal preemption statute and are
compatible with the national policy of railroad deregulation and
federal primacy. If so, this present action will be promptly
reinstated at the trial level upon plaintiff's application and
given every priority towards an expedited resolution. Finally, if
the STB declines to consider these complaints on the merits, we
will construe this as a signal that there is no federal preemption
in the circumstances, giving the state court the right on
appropriate and timely application to resurrect this action and to
proceed on the merits of the public nuisance claims. The site
cannot forever remain a regulatory "no-man's land."
Finally, we affirm the judge's dismissal of the contract claim for several reasons. In view of our finding on federal preemption, plaintiff can obviously not obtain an enforceable court order to compel the railroad to build the engine house, as once proposed by defendant. Indeed, based on this record we cannot envision how construction of the engine house as proposed would alleviate any of the myriad problems plaintiff describes.
We are also convinced that the basic elements of an enforceable contract .... a meeting of the minds and adequate consideration .... are not here present. Any forbearance for a few months on this lawsuit is probably illusory consideration in this context. See I Farnsworth, Contracts § 2.19 at 134 (1990). From this record, it is obvious the parties never formally agreed upon anything. No municipal resolutions or any other writings describe the alleged agreement. Throughout the 1990's the railroad avoided doing anything about the complaints of the Village (except to install the fuel tank required by EPA); the Village in turn tried to move the railroad's activities on the right-of-way out-of-town. The concept of a "meeting of the minds" is virtually chimerical in the circumstance. We also conclude that because plaintiff did not plead a claim under the Oil Pollution Act, 33 U.S.C.A. §2702, the motion judge properly eschewed consideration of that assertion in his decision.
Affirmed, as modified.
Footnote: 1See Gellhorn & Levin, Administrative Law and Process in a
Nutshell at 383-386 (West 1997) where the authors state:
E. PRIMARY JURISDICTION
Unlike the preceding topics examined in
this chapter, the doctrine of primary
jurisdiction is not a defense to judicial
review of agency action. Indeed, it comes
into play only in cases that fall within the
original jurisdiction of the courts. However,
it is often discussed in conjunction with
exhaustion and ripeness because, like those
doctrines, it is a tool by which courts seek
to avoid interfering with an agency's ability
to carry out its statutory functions in a
coherent way. Briefly, primary jurisdiction
questions arise when a court hearing a civil
or criminal case encounters an issue that also
falls within the distinctive competence of an
administrative agency. If the court chooses
to invoke the doctrine, it will suspend
consideration of the disputed issue and direct
the parties to take the matter to the agency
for an initial determination. Thus, the
primary jurisdiction doctrine is somewhat
analogous to the federal courts' practice of
abstaining from deciding an issue of state law
so that state courts may address the issue.
There are two principal reasons for
requiring a private litigant to resort to the
administrative process before pursuing court
litigation. First, a referral to the agency
may preserve needed uniformity in a regulatory
program. Thus, in Texas & Pac. R.R. v.
Abilene Cotton Oil Co.,
204 U.S. 426 (1907), a
shipper sued the railroad in state court,
alleging that the railroad's rates, which had
been approved by the Interstate Commerce
Commission, were unreasonably high. The Court
held that this question was within the primary
jurisdiction of the ICC, because a major
objective of the Interstate Commerce Act had
been to achieve national uniformity of rates,
and this goal would be frustrated if numerous
courts across the country could enforce ad hoc
judgments as to whether individual rates were
excessive. Second, the litigation may involve
issues that go beyond the conventional
experience of judges, and on which the
expertise of the agency could be helpful. In
United States v. Western Pacific R.R.,
352 U.S. 59 (1956), a railroad shipped napalm in
steel casings for the Army, charging its
established rate for "incendiary bombs." The
Army claimed that the (lower) rate for
"gasoline in steel drums" applied, and the
railroad sued for payment in the Court of
Claims. On appeal, the Supreme Court again
referred the question to the ICC: since that
agency had approved the tariffs in which the
two rates appeared, it was in the best
position to know whether the purposes
underlying the high rate for "incendiary
bombs" were implicated in this situation.
[Id. at 383-84].
As these cases suggest, the basic
justification for the doctrine of primary
jurisdiction is to coordinate the work of
agencies and courts. Their activities are
most likely to come into conflict where the
agency's regulation is pervasive, and where
uniform interpretations are necessary to
assure effective regulation. Therefore, the
doctrine is most likely to be applied in cases
concerning the intensively regulated
industries .... where agencies control entry,
price, and nature and quality of service ....
than in cases concerning industries that are
subject to less extensive controls. In the
end, however, invocation of the doctrine is
highly discretionary and seems to depend on
whether the court actually feels out of its
depth as it confronts the issues raised by the
parties.
[Id. at 385-86.]
For several recent examples of primary jurisdiction see MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1102-03 (3d Cir. 1995) (Third Circuit deferred to Pennsylvania state public utility commission); Boss v. Rockland Electric Co., 95 N.J. 33, 40 (1983) (Court deferred to PUC).