Flynn v. Burlington Northern Santa Fe Corp. (Bnsf)

• Decision Date: 02 May 2000
• Docket Number: No. CS-00-0071-WFN.,CS-00-0071-WFN.
• Citation: 98 F.Supp.2d 1186
• Parties: Thomas J. FLYNN, and Cheryl L. Rodgers, on behalf of themselves and on behalf of all others similarly situated, Plaintiffs, v. BURLINGTON NORTHERN SANTA FE CORPORATION [BNSF], aka/dba Burlington Northern and Santa Fe Railway Company, Defendants.
• Court: U.S. District Court — District of Washington

98 F.Supp.2d 1186

Thomas J. FLYNN, and Cheryl L. Rodgers, on behalf of themselves and on behalf of all others similarly situated, Plaintiffs, v. BURLINGTON NORTHERN SANTA FE CORPORATION [BNSF], aka/dba Burlington Northern and Santa Fe Railway Company, Defendants.

No. CS-00-0071-WFN.

United States District Court, E.D. Washington.

May 2, 2000.

Jeffrey Roger Bunch, Spokane, WA, for plaintiff.

William John Schroeder, Paine Hamblen Brooke Coffin Miller, Spokane, WA, Peter C. Choharis, Robert M. Jenkins, III, Mayer Brown & Platt, Washington, DC, Janet D. Robnett, Paine Hamblen Coffin Brooke & Miller LLP, Coeur D'Alene, ID, for defendant.

ORDER

NIELSEN, Chief Judge.

A motion hearing was held April 26, 2000. Jeffrey Bunch represented the Plaintiffs; Robert Jenkins, Janet Robnett, and William Schroeder represented the Defendants. The Court granted Defendants' Motion for Permission to Cite Unpublished Opinions (Ct.Rec.8). The Court took under advisement Defendants' Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Ct.Rec.12).

The Court has reviewed the file, the briefing on the Motion to Dismiss, and is fully informed. For the reasons stated below, the Defendants' Motion to Dismiss for Lack of Jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1) is granted.

I. PROCEDURAL BACKGROUND

Plaintiffs Thomas Flynn and Cheryl Rodgers filed this action on March 7, 2000, on behalf of themselves and all Spokane County individuals who rely on the Spokane Valley — Rathdrum Prairie Aquifer [Aquifer] for water. The Defendants are Burlington Northern Santa Fe Corporation and Burlington Northern Santa Fe Railway Company [collectively BNSF]. BNSF received conditional use permits on March 6, 2000, from the Kootenai County Commissioners to proceed with the permitting process for construction and operation of a BNSF railroad refueling facility [Hauser Facility] located over the Aquifer in Kootenai County, Idaho. Complaint ¶¶ 2.1-2.3. Plaintiffs allege that environmental contamination from the proposed facility has the potential to impact the aquifer. Complaint, ¶ 2.8. Federal question jurisdiction is asserted. Complaint ¶ 1.3.

Plaintiffs allege that the Kootenai County Commissioners did not have legal authority to issue the conditional use permits and that the Surface Transportation Board [STB] has exclusive jurisdiction over the permitting of such facilities. Complaint ¶¶ 2.5, 2.6. Plaintiffs seek a declaratory judgment that BNSF must apply to the STB for necessary permits prior to constructing the facility. Plaintiffs further request an injunction (without bond) to restrain BNSF from requesting further local permits and from constructing and operating the facility until the STB acts on the application.

II. DISCUSSION

BNSF contends that this case must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). BNSF asserts that the Plaintiffs lack standing and that the Court therefore does not have subject matter jurisdiction over the case. BNSF further asserts that the Plaintiffs have failed to identify a federal statute under which they can state a claim, so no federal question jurisdiction exists. BNSF suggests that the proper forum in which the Plaintiffs may raise their concerns is before the STB. Plaintiffs argue that they have standing before this Court and that the Court has inherent jurisdiction and is uniquely positioned to offer the required declaratory and injunctive relief on the issues presented.

The Court will first discuss the railroad regulatory scheme as it relates to the Hauser Facility. Against that backdrop, the Court will examine whether the Plaintiffs have standing and whether federal question jurisdiction exists.

Railroad Regulatory Scheme. Prior to 1996, Congress provided comprehensive administrative regulation of railroads through the Interstate Commerce Commission [ICC]. See, Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 321, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981) (ICC has exclusive jurisdiction over railroad abandonment of lines precluding action under state law against the railroad for abandonment). Even under this comprehensive regulatory scheme, however, there was no federal regulation of rail line spurs and side tracks. Illinois Commerce Com'n v. I.C.C., 879 F.2d 917, 922 (D.C.Cir.1989) (in absence of federal preemption, state may regulate intrastate railroad spurs).

The federal regulatory scheme was changed significantly with the enactment of the Interstate Commerce Commission Termination Act [ICCTA or the Act], 49 U.S.C.S. §§ 10101, et seq. effective January 1, 1996. The purpose of the Act was to terminate the ICC, replace it with the STB within the Department of Transportation, and to significantly reduce regulation of surface transportation industries. S.REP. No. 176, 104TH CONG., 1ST SESS. (1995).

The jurisdiction of the STB is set forth in the statute and provides as follows:

(b) The jurisdiction of the Board over —

(1) transportation by rail carriers, and the remedies provided in this part [49 U.S.C.S. §§ 10101, et seq.] 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 [49 U.S.C.S. §§ 10101, et seq.], the remedies provided under this part [49 U.S.C.S. §§ 10101, et seq.] with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.

49 U.S.C.S. § 10501(b) (1999). Local authority, which had previously existed over spurs and side tracks, was now preempted. CSX Transp., Inc. v. Georgia Public Service Com'n, 944 F.Supp. 1573, 1584 (N.D.Ga.1996).

The ICCTA "evinces an intent by Congress to assume complete jurisdiction, to the exclusion of the states, over the regulations of railroad operations." Id. The Ninth Circuit agrees that the preemption of the Act is exclusive and broad. City of Auburn v. U.S., 154 F.3d 1025, 1030 (9th Cir.1998), cert. denied, 527 U.S. 1022, 119 S.Ct. 2367, 144 L.Ed.2d 771 (1999). In City of Auburn, the Ninth Circuit addressed the scope of the STB's jurisdiction vis-a-vis local environmental regulations. In that case, the railroad, BNSF, desired to reacquire a rail line. BNSF initially sought local permits but then contended the local environmental review was precluded by federal regulation. City of Auburn, 154 F.3d at 1027-28. BNSF then sought approval from the STB. Citing 49 U.S.C. § 10501(b)(2), the court affirmed the STB ruling that local environmental regulation of rail lines was preempted. Id. at 1031; see, also, Soo Line Railroad Co. v. City of Minneapolis, 38 F.Supp.2d 1096, 1101 (D.Minn.1998) (local permitting regulations regarding the demolition of five buildings preempted by the ICCTA); Burlington Northern Santa Fe Corp. v. Anderson, 959 F.Supp. 1288, 1296 (D.Mont.1997) (ICCTA preempts Montana law authorizing state agency to exercise regulatory authority over railroad agencies in Montana).

In contrast, manufacturing activities and other facilities owned by railroads which are not integrally related to the railroad's provision of interstate rail service, i.e., non-transportation facilities, are not subject to STB jurisdiction or subject to federal preemption. Borough of Riverdale — Petition for Declaratory Order — The New York Susquehanna & Western Railway Corp., 1999 WL 715272, STB Finance Docket No. 33466 at 10 (9/9/99). Such facilities, like other non-railroad property, are subject to state and local regulation. Id.

It is undisputed by the parties that the STB has exclusive jurisdiction over the Hauser Facility, and the Kootenai County's permitting regulations are preempted by the ICCTA. By agreeing that only the STB has jurisdiction over the Facility and that local permitting laws are preempted, the parties recognize that the Hauser Facility is "integrally related to the provision of interstate rail services." Id.

A state or local law that is preempted by federal law is without effect. Anderson, 959 F.Supp. at 1292. While it is agreed that Kootenai County's permitting regulations are not binding on BNSF, there is no authority for the proposition that BNSF is precluded from voluntarily complying with local permitting regulations.

Kootenai County may exercise some control over the Hauser Facility in several other ways. First, it appears BNSF will be required to comply with local codes for electrical, building, fire and plumbing unless the codes restrict BNSF from conducting its operations or unnecessarily burden interstate commerce. Borough of Riverdale, supra at 8-9; Village of Ridgefield Park v. New York, Susquehanna & Western Railway Corp., 163 N.J. 446, 750 A.2d 57, 65-66 (2000). Second, even though local regulations are preempted, local authorities may still exercise their police powers to protect the health and safety of the local community. Cities of Auburn and Kent, Washington — Petition for Declaratory Order — Burlington Northern Railroad Co. — Stampede Pass Line, 1997 WL 362017, STB Finance Docket No. 33200, p. 10 (7/1/97). Finally, the local government entity may play a role in implementing federal statutes such as the Clean Air Act and Clean Water Act. Id. at p. 8; Borough of Riverdale, supra, at 7.

There is an important distinction between the STB having jurisdiction over a facility and the STB regulating the construction of the facility. Although the ICCTA vests jurisdiction of rail transportation exclusively with the STB, the statute also excludes the Board's regulatory authority "over construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks." 49...