46 F.Supp.2d 1092 (E.D.Wash. 1999), CY-98-30331, City of Yakima v. Surface Transp. Bd.

Docket NºCY-98-30331-AAM.
Citation46 F.Supp.2d 1092
Party NameCITY OF YAKIMA, a Washington Municipal Corporation, Plaintiff, v. The SURFACE TRANSPORTATION BOARD, and Linda J. Morgan, in her official capacity as Chairman of the Surface Transportation Board, an agency of the United States Government, and the Environmental Protection Agency, and Carol J. Browner, in her official capacity as Administrator of the
Case DateJanuary 15, 1999
CourtUnited States District Courts, 9th Circuit, Eastern District of Washington

Page 1092

46 F.Supp.2d 1092 (E.D.Wash. 1999)

CITY OF YAKIMA, a Washington Municipal Corporation, Plaintiff,

v.

The SURFACE TRANSPORTATION BOARD, and Linda J. Morgan, in her official capacity as Chairman of the Surface Transportation Board, an agency of the United States Government, and the Environmental Protection Agency, and Carol J. Browner, in her official capacity as Administrator of the Environmental Protection Agency, and Burlington Northern Santa Fe Corp., BNSF Acquisition, Inc., and the Burlington Northern and Santa Fe Railway Co., Defendants.

No. CY-98-30331-AAM.

United States District Court, E.D. Washington.

Jan. 15, 1999

Page 1093

[Copyrighted Material Omitted]

Page 1094

Raymond L. Paolella, City of Yakima Legal Department, Civil Division, Yakima, WA, Gregory T. Costello, Rodney L. Brown, Jr., Marten & Brown, LLP, Seattle, WA, for plaintiff.

Pamela J. DeRusha, Assistant United States Attorney, Spokane, WA, Evelyn G. Kitay, Surface Transportation Board, Office of General Counsel, Washington, DC, Lisa Russell, Trial Attorney, Environmental Defense Section, Department of Justice, Washington, DC, for defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

McDONALD, District Judge.

BEFORE THE COURT is intervenor-defendant Burlington Northern Santa Fe Corporation's ("BNSF") motion to dismiss for lack of subject matter jurisdiction pursuant to FED.R.CIV.P. 12(b)(1) (Ct.Rec.20) and motion to dismiss for failure to state a claim upon which relief can be granted pursuant to FED.R.CIV.P. 12(b)(6) (Ct.Rec.23). The United States Government defendants, the Surface Transportation Board ("STB") and the Environmental Protection Agency ("EPA"), have also filed a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Ct.Rec. 31.

Background

In 1996, pursuant to 49 U.S.C. § 11323(a)(2), BNSF sought STB approval to reacquire a portion of the Stampede Pass line from the Washington Central Railroad Company. In accordance with the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-4371d, and the STB's own rules, 49 C.F.R. Part 1105, the STB conducted an environmental review of BNSF's proposed operation of the Stampede Pass line. See Auburn v. U.S. Government, 154 F.3d 1025 (9th Cir.1998). Federal Register notice invited all interested parties to comment on all aspects of the proposal.

In September 1996, the STB issued an Environmental Assessment ("EA"). 49 C.F.R. § 1105.6(b)(4). The STB requested comment on all aspects of the EA by all interested persons. STB issued an order approving the BNSF's proposal in October 1996.

The cities of Yakima, Kent, and Auburn, Washington brought suit against the STB in the Ninth Circuit Court of Appeals challenging STB's finding of federal preemption of state and local environmental review laws and objecting to the lack of a full Environmental Impact Statement ("EIS"). The cities of Yakima and Kent reached settlement agreements with BNSF.

The City of Yakima now seeks declaratory and injunctive relief against the STB and the EPA under the citizen suit provision of the Clean Air Act ("CAA"), 42 U.S.C. § 7506, to require the STB and the EPA to remedy violations of the CAA conformity provision committed when the STB approved the reopening of the Stampede Pass Rail line by BNSF. The Clean Air Act establishes a joint state and federal program to control the Nation's air pollution. CAA section 109, 42 U.S.C. § 7409, requires the EPA to establish national ambient air quality standards (NAAQS) for certain pollutants. Section 110(a)(1), 42 U.S.C. § 7401(a)(1), requires each state to adopt and submit to the EPA for approval a state implementation plan ("SIP") which provides for implementation, maintenance and enforcement of the NAAQS in a designated region. A SIP must specify emission limitations and other measures necessary to attain and maintain the NAAQS for each pollutant. 42 U.S.C. § 7410(a)(2)(A)-(K).

Section 176(c)(1) of the CAA provides that if the conformity provision applies, no federal agency shall "provide financial assistance for, license or permit, or approve, any activity which does not conform" to an approved SIP. 42 U.S.C. § 7506(c)(1). This section further provides that each agency is responsible for ensuring "conformity." See 42 U.S.C. § 7506(c)(1)(A)-(B).

Page 1095

The City as the party asserting jurisdiction in federal district court has the burden of proving all jurisdictional facts. Industrial Tectonics, Inc., v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir.1990).

Discussion

A. Hobbs Act

Defendants assert that the district court lacks jurisdiction because a challenge to a final order of the STB may be brought only the in the court of appeals. The Hobbs Act provides:

Except as otherwise provided by an Act of Congress, a proceeding to enjoin or suspend, in whole or in part, a rule, regulation, or order of the Surface Transportation Board shall be brought in the court of appeals as provided by and in the manner prescribed in chapter 158 of this title.

28 U.S.C. § 2321(a). Chapter 158, 28 U.S.C. § 2342 provides in relevant part:

The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or determine the validity of ... all rules, regulations, or final orders of the Surface Transportation Board made reviewable by section 2321 of this title....

28 U.S.C. § 2342.

The City asserts that the Hobbs Act is inapplicable and therefore, jurisdiction is properly in district court. In support, the City presents five arguments worthy of consideration, but ultimately unpersuasive.

1. Another Act of Congress provides for jurisdiction

The City first asserts that the Hobbs Act is inapplicable to their claims due to the "[e]xcept as otherwise provided by an Act of Congress" language of 28 U.S.C. § 2321. The City argues that the plain language of the Hobbs Act dictates that when another Act of Congress provides for district court jurisdiction, the Hobbs Act does not apply.

Defendants argue that the "[e]xcept as otherwise provided by an Act of Congress" language of 28 U.S.C. § 2321 refers to a very narrow class of statutes which expressly give district courts jurisdiction over STB cases. See 28 U.S.C. § 1336(a) (involving STB orders for the payment of money) and 28 U.S.C. § 1336(b) (involving STB orders issued following referrals from district court). The Ninth Circuit has held that "[s]pecific grants of exclusive jurisdiction to the courts of appeals override general grants of jurisdiction to the district courts." Carpenter v. Department of Transportation, 13 F.3d 313, 316 (9th Cir.1994) (citing Owner-Operators Independent Drivers Assoc. Of America, Inc. v. Skinner, 931 F.2d 582, 589 (9th Cir.1991)). The court further noted that "[a] contrary holding would encourage circumvention of Congress's particular jurisdictional assignment" and would result in "fractured judicial review of agency decisions." Id.

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