[Federal Register Volume 77, Number 177 (Wednesday, September 12, 2012)]
[Notices]
[Pages 56269-56270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22452]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Docket No. FD 35625]
City of Milwaukie--Petition for Declaratory Order
The City of Milwaukie, Or. (the City), filed a petition for
declaratory order on June 29, 2012 (Petition), requesting that the
Board declare that 49 U.S.C. 10501(b) does not preempt certain
municipal regulations regarding the scattering of rubbish and the
blocking of vehicular and pedestrian traffic along the border of the
Oregon Pacific Railroad Company's (OPRC) train maintenance facility and
in a public right-of-way. For the reasons discussed below, the request
to institute a declaratory order proceeding will be granted.
On June 29, 2012, the City filed a petition for declaratory order.
On July 3,
[[Page 56270]]
2012, OPRC filed a letter with the Board noting its opposition to the
Petition and requesting 30 days to prepare its case in opposition
should the Board institute a proceeding. OPRC's letter included no
substantive support for why it opposed the Petition and, to date, OPRC
has not submitted anything more to the Board.
The Petition requests that the Board find the City is not preempted
from enforcing two municipal regulations that the City claims protect
the public and ensure the public's health and safety. The regulations
prohibit (1) scattering rubbish, and (2) obstructing vehicular and
pedestrian traffic. Milwaukie, Or. Mun. Code Sec. Sec. 8.04.120,
10.44.030 (2011). According to the City, OPRC owns a train maintenance
facility on approximately 0.78 acres within the City. The City claims
that along the border of OPRC's property, and in the public right of
way, OPRC stores rails, railroad ties, piles of gravel, and other large
``debris.'' The City argues that this debris is a hazard for drivers,
pedestrians, and cyclists and violates the two above regulations; the
City has cited OPRC at least twice.
The City argues that it should be permitted to enforce the
regulations for the safety of its citizens and that there is no reason
why the regulations should be preempted by federal law. It claims the
ordinances are of general applicability, are not directed at or limited
to railroads operating within the City, and are not directed at OPRC's
use of its own property. It further claims that the regulations are
within its traditional police power and that their enforcement will not
affect transportation by a rail carrier.
In a letter to the City, OPRC claims ``[m]unicipal interference
with railroad operations is pre-empted by USC 10501 (b); therefore, the
City has no jurisdiction over these matter [sic] as they apply to
Interstate Commerce.'' \1\ The record shows that OPRC has contested the
second set of citations in the Municipal Court for the City of
Milwaukie and that a trial was set for July 23, 2012. No update has
been filed with the Board since the scheduled trial date. OPRC has also
indicated it intends to appeal the fine for the first set of citations.
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\1\ Petition, V.S. Salyers, Exh. I.
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The Board has discretionary authority under 5 U.S.C. 554(e) and 49
U.S.C. 721 to issue a declaratory order to eliminate a controversy or
remove uncertainty in a matter related to the Board's subject matter
jurisdiction.\2\ Questions of preemption are often fact specific
determinations, particularly when addressing whether land use
restrictions interfere with railroad operations.\3\
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\2\ See Bos. & Me. Corp. v. Town of Ayer, 330 F.3d 12, 14 n.2
(1st Cir. 2003); see also Intercity Transp. Co. v. United States,
737 F.2d 103, 106-07 (DC Cir. 1984); Delegation of Auth.--
Declaratory Order Proceedings, 5 I.C.C. 2d 675, 675 (1989).
\3\ See Borough of Riverdale--Petition for Declaratory Order--
The N.Y. Susquehanna & W. Ry., FD 33466, slip op. at 2 (STB served
Feb. 27, 2001); Borough of Riverdale--Petition for Declaratory
Order--The N.Y. Susquehanna & W. Ry., 4 S.T.B. 380, 387 (1999)
(``whether a particular land use restriction interferes with
interstate commerce is a fact-bound question'').
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The Interstate Commerce Act, as revised by the ICC Termination Act
of 1995, vests in the Board broad jurisdiction over ``transportation by
rail carrier,'' 49 U.S.C. 10501(a)(1), which extends to property,
facilities, instrumentalities, or equipment of any kind related to that
transportation, 49 U.S.C. 10102(9). The preemption provision in the
Board's governing statute states that ``the remedies provided under [49
U.S.C. 10101-11908] with respect to regulation of rail transportation
are exclusive and preempt the remedies provided under Federal or State
law.'' 49 U.S.C. 10501(b).
The Board will institute a declaratory order proceeding and
establish a procedural schedule for the filing of pleadings. This will
ensure that the record is complete on the issue of whether the
activities occurring in the right-of-way are part of ``transportation''
by a ``rail carrier'' and therefore could be preempted by Sec.
10501(b).
The Board will consider this matter under the modified procedure
rules at 49 CFR part 1112. The City's detailed Petition will serve as
its opening statement. Replies will be due 30 days from the date of
service of this decision. The City's rebuttal will be due 45 days from
the service date of this decision.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
It is ordered:
1. A declaratory order proceeding is instituted.
2. Replies are due by October 10, 2012.
3. The City's rebuttal statement is due by October 25, 2012.
4. This decision is effective on it service date.
Decided: September 7, 2012.
By the Board, Rachel D. Campbell, Director, Office of
Proceedings.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2012-22452 Filed 9-11-12; 8:45 am]
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