Boston and Maine Corp. v. Town of Ayer, 02-1537.
| Decision Date | 21 May 2003 |
| Docket Number | No. 02-1537.,No. 02-1828.,No. 02-1843.,No. 02-2258.,02-1537.,02-1828.,02-1843.,02-2258. |
| Citation | 330 F.3d 12 |
| Parties | BOSTON AND MAINE CORP.; Springfield Terminal Railway Co.; Guilford Transportation Industries, Inc., Plaintiffs, Appellees/Cross-Appellants, v. TOWN OF AYER; Ayer Board of Selectmen; Ayer Planning Board; Ayer Board of Health; Paul D. Bresnahan; Connie F. Sullivan; Robert J. Pena; William Oelske; James F. Fay; James F. Williams; James Lucchesi; Thomas Gibbons; Lauri J. Rosas; Margaret M. Kidder; C. Jane Witherow, Defendants, Appellants/Cross-Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Leonard H. Kesten, with whom Jocelyn M. Sedney, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten were on brief, for appellants.
William S. Eggeling, Nikolas P. Kerest, Michael T. Marcucci, and Ropes & Gray on brief for Conservation Law Foundation, Town of Littleton Water Department, Massachusetts Municipal Association and National League of Cities, amici curiae.
Eric L. Hirschhorn, with whom Winston & Strawn and Robert B. Culliford were on brief, for appellees.
Louis P. Warchot and Michael J. Rush on brief for Association of American Railroads, amicus curiae.
Before LYNCH, Circuit Judge, BOWNES, Senior Circuit Judge, and HOWARD, Circuit Judge.
Guilford Transportation, which runs the Boston & Maine railroad, owns a railroad yard in Ayer, Massachusetts. In 1997, in order to expand its storage capacity, Guilford1 purchased land, the San Vel site, which lies across the street from its railroad yard and is bounded by two railroad tracks. The site is in an aquifer protection area. Understandably, Ayer sought protection for the aquifer.
Guilford accordingly sought permits from the town and attempted to reach agreements. These negotiations broke down when the town Planning Board imposed thirty-six conditions on issuance of any permit and another town body, the Board of Health, declared the proposed plan to be a noisome trade, allowing Guilford's activities to be banned outright. Concerned that these town actions effectively prohibited or unduly burdened its planned operations, Guilford went to federal court to seek a declaration that Ayer's efforts were preempted.
After the parties filed cross motions for summary judgment, the district court (with the parties' agreement) sought the views of the Surface Transportation Board (STB) on October 19, 2000.2 The Board gave its views to the court in decisions served on May 1 and October 5, 2001. The court entered judgment for Guilford, but without the declaratory or injunctive relief Guilford had sought. It also awarded attorneys' fees and costs of $286,839.49 to the railroad under 42 U.S.C. §§ 1983 and 1988 (2000).
Ayer appealed, arguing it had at stake important environmental interests, buttressed by the Clean Water Act, 33 U.S.C. §§ 1311-1330 (2000) and the Safe Drinking Water Act, 42 U.S.C. §§ 300f to 300j-26; that none of its actions are preempted; and that the railroad is not entitled to attorneys' fees. The Conservation Law Foundation, the Town of Littleton Water Department, the Massachusetts Municipal Association and the National League of Cities and Towns, as amici, supported reversal of the district court decision.
Guilford sought affirmance of the district court's orders, but cross-appealed, saying it was entitled to a declaratory judgment and an injunction against the Town, relief the district court omitted to give it. Guilford was supported on its view of preemption by the Association of American Railroads as amicus.3
The parties presented the case as a pure conflict between the strong federal interest in a uniform system of railroad regulation and the strong local interest in protecting water supplies. As the ensuing discussion shows, the law presents much more nuanced accommodations.
At oral argument, we sought a practical solution to a portion of the case and requested that the parties meet with this court's Civil Appeals Management Program (CAMP) to see if they could negotiate an agreement as to Guilford's voluntary compliance with certain conditions. Admirably, the parties have reported back that they have reached partial settlement through an agreement on the conditions under which Guilford will proceed with the development, construction, and operation of an automobile unloading facility at the San Vel site, thus mooting that aspect of the case. They have asked us to dismiss the appeals in cases Nos. 02-1537, 02-1828, and 02-1843, and aspects of case No. 02-2258, and to remand them with instructions to the district court to enter a consent decree. Thus, we do not reach the substance of these issues.
That leaves for decision only the issue in case No. 02-2258 of whether the district court erred in awarding Guilford its attorneys' fees and costs under 42 U.S.C. § 1988. We reverse and vacate the award of attorneys' fees.
Guilford has owned and operated a railroad yard in Ayer since 1974. The site serves as an unloading and temporary storage area for automobiles brought in by rail; it has approximately two thousand parking spaces. In 1997, Guilford purchased 126 acres at the San Vel site, also within the town of Ayer, across the road from its existing railroad yard. Its intention was to create three thousand additional parking spaces on this new site for temporary automobile storage, as well as adding more unloading tracks, a building, and an access road.
The San Vel site is located within the Zone II Aquifer Protection Area. This aquifer protects the water wells at Spectacle Pond, which are the main supply for Ayer's drinking water.4 In November 1997, Guilford began to seek approval from the town to construct the new storage facility. On May 18, 1998, it filed a "notice of intent" with the Ayer Conservation Commission. In this notice, and at a Planning Board meeting on May 26, 1999, Guilford agreed to abide by a list of conditions. It also petitioned for Site Plan Approval from the Ayer Planning Board.
The town's response was less than encouraging. On August 26, 1999, the Planning Board issued a Certificate of Approval; however, it contained thirty-six conditions. Many of these were preconditions to construction. Complicating matters further, on August 18, 1999, the Ayer Board of Health adopted new bylaws authorizing it to designate certain occupations as "noisome trades" and prohibit them within town limits. On November 17, 1999, the Board of Health declared that "an `auto unloading facility' will be considered a noisome trade." Thus, in addition to the thirty-six conditions, Guilford now had to contend with the possibility of being prohibited from operating its proposed facility altogether. Indeed, the Board of Health ruling threatened the operation of the existing railroad yard as well, as it also unloaded automobiles.
On December 20, 1999, Guilford filed suit in the United States District Court for the District of Massachusetts. Guilford's complaint alleged that the STB was granted exclusive jurisdiction over the construction and operation of railroad facilities under 49 U.S.C. § 10501(b) (2000), and that the Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C. §§ 701-727, 10101-16105, preempted the Board of Health's designation of the new facility as a noisome trade. It also alleged that the local permitting conditions violated the dormant Commerce Clause and thus the Supremacy Clause. The complaint sought declaratory and injunctive relief and attorneys' fees.
In October 2000 the district court referred the matter to the STB, stating that the "expertise of the Board in evaluating the right of the defendants, if any, to regulate the plaintiffs' proposed development off Willow Road in the Town of Ayer, Massachusetts would assist this Court in determining the rights, duties, and obligations of the parties." On May 1, 2001, the STB issued its decision. The defendants filed a petition for reconsideration on May 21, which the STB denied on October 5, 2001.5
And there the case largely ended. For procedural reasons, the district court itself never reached the preemption or Commerce Clause issues raised in Guilford's complaint. The STB gave its views to the district court as to whether federal law preempted some of the conditions imposed by the town. When the district court granted summary judgment for Guilford on March 20, 2002, it declined to evaluate whether some or all of the conditions were indeed preempted. Instead, it ruled for Guilford because Ayer had failed to request judicial review within ninety days of the STB's order, as required by 28 U.S.C. § 1336(c) (2000).6 The status of the thirty-six conditions was left, to some degree, unresolved.
Guilford then moved for attorneys' fees under 42 U.S.C. § 1988. The district court allowed the motion on June 10, 2002, and on August 20 the court awarded $286,839.49.
The analysis by the STB of federal preemption under 49 U.S.C. § 10501(b) was finely crafted. See Boston & Me. Corp., 2001 Fed. Carr. Cas. (CCH) ¶ 38,352 (May 1, 2001), available at 2001 WL 458685. Effectively, the STB said the town may not flatly ban Guilford's efforts at developing the San Vel site, as it did in its noisome trade determination, and that it may not impose pre-conditions to construction, but that it may impose reasonable and non-discriminatory environmental restrictions which do not unduly burden interstate commerce or unduly restrict the railroad from conducting its operations. The STB did not hold that all state and local regulation of Guilford's activity was preempted. It rejected Ayer's argument that the express preemption language of § 10501(b) did not apply to instances where the STB lacked licensing authority under 49 U.S.C. §§ 10901 and 10906, and it held that state and local law are preempted in those instances in limited circumstances. It held that ...
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