City of Auburn v. U.S. Government, Nos. 96-71051

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtLAY
Citation154 F.3d 1025
Parties29 Envtl. L. Rep. 20,096, 98 Cal. Daily Op. Serv. 6939, 98 Daily Journal D.A.R. 10,919, 98 Daily Journal D.A.R. 9588 CITY OF AUBURN, a municipal corporation of the state of Washington, Petitioner, v. The UNITED STATES GOVERNMENT and The Surface Transportation Board, an agency of the United States Government; King County, a Washington municipal corporation; Burlington Northern Santa Fe Corporation, a Delaware corporation; Burlington Northern Railroad Company, a Delaware corporation, et al., Respondents. CITY OF AUBURN, a municipal corporation of the state of Washington; City of Yakima, a municipal corporation of the state of Washington; City of Kent, a municipal corporation of the state of Washington, Petitioners, v. U.S. GOVERNMENT; The Surface Transportation Board, an agency of the United States Government, Respondents, Burlington Northern Santa Fe Corporation, Burlington Northern Santa Fe Acquisition, Inc. ("BNSF Acquisition") and the Burlington Northern and Santa Fe Railway Company ("BN/Santa Fe"), Respondents-Intervenors. CITY OF AUBURN, a municipal corporation of the state of Washington, Petitioner, v. U.S. GOVERNMENT; The Surface Transportation Board, an agency of the United States Government, Respondents, and Burlington Northern and Santa Fe Railway Company, Intervenors/Respondents.
Decision Date20 October 1998
Docket Number97-70022 and 97-70920,Nos. 96-71051

Page 1025

154 F.3d 1025
29 Envtl. L. Rep. 20,096, 98 Cal. Daily Op.
Serv. 6939,
98 Daily Journal D.A.R. 10,919,
98 Daily Journal D.A.R. 9588
CITY OF AUBURN, a municipal corporation of the state of
Washington, Petitioner,
v.
The UNITED STATES GOVERNMENT and The Surface Transportation
Board, an agency of the United States Government; King
County, a Washington municipal corporation; Burlington
Northern Santa Fe Corporation, a Delaware corporation;
Burlington Northern Railroad Company, a Delaware
corporation, et al., Respondents.
CITY OF AUBURN, a municipal corporation of the state of
Washington; City of Yakima, a municipal corporation of the
state of Washington; City of Kent, a municipal corporation
of the state of Washington, Petitioners,
v.
U.S. GOVERNMENT; The Surface Transportation Board, an
agency of the United States Government, Respondents,
Burlington Northern Santa Fe Corporation, Burlington
Northern Santa Fe Acquisition, Inc. ("BNSF Acquisition") and
the Burlington Northern and Santa Fe Railway Company
("BN/Santa Fe"), Respondents-Intervenors.
CITY OF AUBURN, a municipal corporation of the state of
Washington, Petitioner,
v.
U.S. GOVERNMENT; The Surface Transportation Board, an
agency of the United States Government, Respondents,
and
Burlington Northern and Santa Fe Railway Company,
Intervenors/Respondents.
Nos. 96-71051, 97-70022 and 97-70920.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted June 3, 1998.
Decided Sept. 3, 1998.
As Amended Oct. 20, 1998.

Page 1027

Peter J. Eglick, Helsell Fetterman, Seattle, Washington; Rodney L. Brown, Jr., Marten & Brown, Seattle, Washington; Raymond L. Paolella, Yakima City Attorney's Office, Yakima, Washington, for petitioners.

Evelyn G. Kitay, Surface Transportation Board, Department of Transportation, Washington, D.C.; Kathryn A. Kusske and Erika Z. Jones, Mayer, Brown & Platt, Washington, D.C.; Paul J. Lawrence and Marc C. Levy, Preston, Gates & Ellis, Seattle, Washington, for the respondents.

Christine O. Gregoire, Matthew A. Love, Neil L. Wise, Office of the Attorney General, Olympia, Washington, for the State of Washington as amicus curiae.

Jeffrey R. Moreland, Richard E. Weicher, Michael E. Roper, Sarah J. Whitley, Burlington Northern Santa Fe Corporation, Ft. Worth, Texas; and Erika Z. Jones, Roy T. Englert, Jr., Kathryn A. Kusske, Peter C. Choharis, Mayer, Brown & Platt, Washington, D.C., for Burlington Northern Santa Fe Corporation, BNSF Acquisition Corporation, and The Burlington Northern and Santa Fe Railway Company, as intervenors.

Petitions to Review Decisions of The Surface Transportation Board. STB Nos. 33095, 32974 and 33200.

Before: LAY, * GOODWIN and PREGERSON, Circuit Judges.

LAY, Circuit Judge:

These appeals arise out of three separate but related decisions of the Surface Transportation Board ("STB"), concerning the reopening of the Stampede Pass railroad line in western Washington state. The City of Auburn 1 challenges the STB's finding of federal preemption of state and local environmental review laws in approval of the reopening of the Stampede Pass line, and objects to the lack of a full Environmental Impact Statement ("EIS"). The Burlington Northern and Santa Fe Railway ("Burlington") has intervened and filed briefs in all three cases. 2

I. Factual and Procedural Background

The Stampede Pass route is a 229-mile rail line running east-west through the Cascade Mountains of Washington state. The City of Auburn (population 37,000) lies at the line's western terminus, at the junction with the north-south Pacific Coast rail line which connects the ports of Seattle and Tacoma.

In the early 1980s, Stampede Pass was one of three main lines serving the Seattle-Tacoma area that were owned and operated by Burlington. In 1986, Burlington sold a 151-mile portion of the Stampede Pass line--between the towns of Cle Elum and Pasco--to the Washington Central Railroad ("Washington Central"). Burlington continued to operate the seventy-eight-mile western segment of the line between Auburn and Cle Elum, providing limited local service.

In 1996, Burlington sought approval from the STB to reacquire the eastern segment of

Page 1028

Stampede Pass from Washington Central and re-establish the route as a third main rail line in the Pacific Northwest. As part of this plan, Burlington proposed repairs and improvements on the line, which included replacement of track sidings and snow sheds, tunnel improvements, and communication towers. Burlington initially submitted certain permit applications for these projects to local authorities. However, during the permit-review process, Burlington contended that local environmental review was precluded by federal regulation.

In response to Burlington's position, King County, Washington, in May 1996 requested an informal opinion from the STB, asking whether the Interstate Commerce Commission Termination Act, codified at 49 U.S.C. § 701 et seq., ("ICCTA") 3 preempted the county's ability to review the environmental impact of proposed operations on the Stampede Pass line. In June 1996, the STB issued an informal opinion that the line was not subject to state and local permit requirements.

In August 1996, King County requested a formal declaratory order from the board as to whether the ICCTA preempted the county's environmental review. On September 17, 1996, the City of Auburn wrote to the STB and requested designation as a party of record in the declaratory proceeding. On September 25, 1996, the STB issued its decision in the King County petition, finding federal preemption. See King County Petition for Declaratory Order, STB Finance Docket No. 32974, 1996 WL 545598 (I.C.C. September 25, 1996). 4

In the King County order, the STB denied Auburn's request to intervene, but invited the city to submit its own petition for a declaratory order. See id. at * 5, n.2. Auburn, joined by the City of Kent, followed this advice by filing a separate declaratory order petition on October 11, 1996. In July 1997, the STB denied the cities' petition, stating the action was "treated as a petition for reconsideration of King County." Cities of Auburn and Kent Petition for Declaratory Order, STB Finance Docket No. 33200, 1997 WL 362017, at * 8 (I.C.C. July 2, 1997). 5

While parties were disputing the preemption question, Burlington's petition for approval under 49 U.S.C. §§ 11323-25 to reacquire and conduct improvements on the Stampede Pass line was proceeding. Pursuant to the National Environmental Policy Act, codified at 42 U.S.C. § 4321 et seq. ("NEPA"), the STB's environmental staff in September 1996 prepared an Environmental

Page 1029

Assessment ("EA") of Burlington's proposal. After the EA was released, comments were solicited and all interested parties were given an opportunity to respond. After comments were received, a post-EA was prepared to address the concerns raised. The EA and post-EA concluded Burlington's proposal would not have a significant environmental impact, if certain mitigation measures were implemented.

The STB approved Burlington's proposal in October 1996. See Burlington Northern Decision, STB Finance Docket No. 32974, 1996 WL 614254 (I.C.C. October 25, 1996). That action is now challenged by the City of Auburn.

II. Federal Preemption

Auburn asserts that the STB erred in finding federal preemption of state and local environmental permitting laws because the ICCTA legislative history establishes Congress' intent to preempt only economic regulation of rail transportation, not the traditional state police power of environmental review. The city points to a report from the House Transportation and Infrastructure Committee, which indicates that in passing the ICCTA, Congress meant to "occupy[ ] the entire field of economic regulation of the interstate rail transportation system," but retain for the states "the police powers reserved by the Constitution." H.R.Rep. No. 104-311, 104th Cong., 1st Sess., at 95-96 (1995), reprinted in 1995 U.S.C.C.A.N. 793, 807-08. Auburn argues that the local regulations at issue are not economic regulations, but rather "essential local police power required to protect the health and safety of citizens...." Auburn Br., No. 97-70920, at 25.

Additionally, the city argues that the ICCTA contains no provision expressly preempting state and local land use and environmental regulations. It contends that because of the presumption against preemption in fields traditionally occupied by the states, none of the express language in the ICCTA can be read to usurp local environmental review.

We begin by first noting that Congress and the courts long have recognized a need to regulate railroad operations at the federal level. Congress' authority under the Commerce Clause to regulate the railroads is well established, see, e.g., Houston, E. & W. Tex. Ry. v. United States, 234 U.S. 342, 350-52, 34 S.Ct. 833, 58 L.Ed. 1341 (1914); Pittsburgh & Lake Erie R.R. v. Railway Labor Executives Ass'n, 491 U.S. 490, 510, 109 S.Ct. 2584, 105 L.Ed.2d 415 (1989), and the Supreme Court repeatedly has recognized the preclusive effect of federal legislation in this area. See, e.g., Colorado v. United States, 271 U.S. 153, 165-66, 46 S.Ct. 452, 70 L.Ed. 878 (1926) (ICC abandonment authority is plenary and exclusive); Transit Comm'n v. United States, 289 U.S. 121, 127-28, 53 S.Ct. 536, 77 L.Ed. 1075 (1933) (ICC authority over interstate rail construction is exclusive); City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77, 88-89, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958) (local authorities have no power to regulate interstate rail passengers). The Interstate Commerce Act, ch. 104, 24 Stat. 379 (1887), which, as amended, still governs federal regulation of railroads, has been recognized as "among the most pervasive and comprehensive of federal regulatory schemes." Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 318, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981). 6

Second, we...

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112 cases
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    ...have construed the ICCTA's preemption clause have interpreted it to be a broad in scope. See City of Auburn v. United States Government, 154 F.3d 1025, 1030 (9th Cir. 1998); Wisconsin Central Ltd. v. The City of Marshfield, 160 F.Supp.2d 1009, 1013 (W.D.Wis.2000)("It is clear that the ICCTA......
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    ...July 1, 1997, No. FD 33200), 1997 WL 362017, p. *7 ( Auburn & Kent ), affd. sub nom. City of Auburn v. U.S. Government (9th Cir. 1998) 154 F.3d 1025 ; 3 Cal.5th 716 North San Diego County Transit Development Board, Petition (STB, Aug. 19, 2002, No. FD 34111), 2002 WL 1924265, p. *5 ( North ......
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