Sierra Club v. Vill. of Painted Post
| Decision Date | 25 March 2013 |
| Docket Number | No. 2012/00810.,2012/00810. |
| Citation | 28 N.Y.S.3d 650 (Table) |
| Parties | In the Matter of the Application of the SIERRA CLUB, People for a Healthy Environment, Inc., Coalition to Protect New York; John Marvin; Theresa Finneran; Michale Finneran; Virginia Hauff, and Jean Wosinski, Petitioner, v. The VILLAGE OF PAINTED POST; Painted Post Development, LLC; Swepi, LP; and Wellsboro and Corning Railroad, LLC, Respondent. |
| Court | New York Supreme Court |
Respondents move to dismiss this CPLR Article 78 proceeding on grounds that petitioners lack standing to maintain this proceeding, CPLR $4f 3211(a)(3), and that petitioners fail to state a cause of action, 3211(a)(7). Alternatively, respondents move for summary judgment pursuant to CPLR $4f 3212. The court turns first to the second and third causes of action, which easily may be disposed, and then returns to the difficult issues presented by the first cause of action on the record in this case.
The second cause of action alleges that respondents violated the Water Supply Law, specifically $4f 15–1505.1, by failing to obtain a permit from the New York State Department of Environmental Conservation ("DEC"). Respondents argue that this cause of action must be dismissed because there is no private right of action to enforce the Water Supply Law. Petitioners concede this point, however. "Respondents have rightly pointed out that the statute requiring this permit does not provide a private right of action for its enforcement, and Petitioners concede this point." Petitioners' Memorandum of Law in Opposition to Respondents' Motion to Dismiss and/or for Summary Judgment, and in Support of Petitioners' Article 78 Petition, fn. 31. The second cause of action is, therefore, dismissed.
Petitioners' third cause of action must be dismissed as this court is without jurisdiction to determine whether a permit is required to operate the transloading facility. That determination lies exclusively with the Surface Transportation Board and federal courts.
It is undisputed by the parties that the STB has jurisdiction over the transloading facility. See e.g., Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 640 (2d Cir.2005). Petitioners' third cause of action asserts that respondent Wellsboro and Corning Railroad, LLC, ("WCOR") failed to obtain a permit from the Surface Transportation Board ("STB") or the Federal Railway Administration ("FRA") allegedly required for the installation of rail spurs and construction and operation of rail loading facilities. Petitioners maintain that, prior to the granting of any permit by the STB or FRA, an environmental review under the National Environmental Policy Act, 42 U.S.C. $4f 4321 et seq., is required and that respondents have thus avoided such review.
Respondents argue that, while STB has jurisdiction over the issue, it would not regulate or issue a permit in this case because the construction and operation of the water transloading facility qualifies as ancillary track for which an STB permit is not required, and authority to issue such a permit resides exclusively with the STB. Petitioners respond that such a permit is in fact necessary in this case.
The federal statute which relates to the questioned regulatory approval for the transloading facility is 49 U.S.C. $4f 10101. The general jurisdictional provision of the ICCTA provides that "[t]he jurisdiction of the [STB] over ... (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." 49 U.S.C. $4f 10501(b)(2). The statute further provides for the express preemption of other laws and remedies: "Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law." 49 U.S.C. $4f 10501(b).
This preemption clause has been found to evidence a clear congressional intent to broadly preempt state and local regulation of integral rail facilities. Pejepscot Indus. Park, Inc. v. Maine Cent. R. Co., 215 F.3d 195, 202 (1st Cir.2000); Wisconsin Cent. Ltd. v. City of Marshfield, 160 F.Supp.2d 1009, 1013 (W.D.Wis.2000).
In Matter of Metropolitan Transp. Auth., 32 A.D.3d 943, 823 N.Y.S.2d 88 (2d Dept .2006), the Appellate Division considered whether it had subject matter jurisdiction to entertain a lawsuit concerning an eminent domain proceeding to acquire a railroad access easement by condemnation. Matter of Metropolitan Transp. Auth., 32 A.D.3d at 944, 823 N.Y.S.2d 88. The Appellate Division found that "condemnation is regulation" and that the STB had exclusive regulatory authority. Id., 32 A.D.3d at 945–946, 823 N.Y.S.2d 88. In that case, the court held that the ICCTA preempted the condemnation proceeding and it determined to dismiss the petition, reasoning that "no petition has been filed with the STB, nor has that board otherwise been consulted with regard to [the regulatory approval at issue here] ... [and that] by reason of the exclusive jurisdiction over railroad matters which reposes in the STB, [ ] the courts of our State lack subject matter jurisdiction to entertain it." Id., 32 A.D.3d at 946, 823 N.Y.S.2d 88. Petitioner's third cause of action must dismissed for the same reason.
Respondent makes an alternative argument in Reply that, under the doctrine of primary jurisdiction, the court should defer the resolution of this cause of action pending a determination by the STB. The purpose of "[t]he doctrine of primary jurisdiction: [is] to "co-ordinate the relationship between courts and administrative agencies" and to give the principal responsibility for adjudicating the merits of disputes requiring special competence to the agency with the necessary expertise. Uniformed Firefighters Ass'n v. New York, 79 N.Y.2d 236, 241–242, 581 N.Y.S.2d 734, 590 N.E.2d 719 (1992); United States v. Western Pac. R.r. Co., 352 U.S. 59, 63–64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956)(primary jurisdiction "comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body").
The court agrees that, although the regulatory scheme at 49 U.S.C. $4f 10101 et seq. places with STB the determination whether STB need issue a permit to operate the transloading facility, deferral of this case is not appropriate. First, as noted above, issuance of a permit is regulation every bit as much as condemnation, and STB's exclusive authority over railroad regulation has caused the Appellate Division to hold that New York courts are without subject matter jurisdiction. Moreover, the doctrine of primary jurisdiction provides for staying the case pending the administrative determination. This the court cannot do for the additional reason that Congress has placed review of STB decisions exclusively in the hands of the federal courts at the Court of Appeals level pursuant to 28 U.S.C. $4f$4f 2321(a) and 2342(5). The Court of Appeals "has exclusive jurisdiction to enjoin, set aside, suspend ... or to determine the validity of ... (5) all rules, regulations, or final orders of the Surface Transportation Board ...." 28 U.S.C. $4f 2321(a).1 Consequently, a stay of the action pending STB determination is not possible as this court has no jurisdiction to review STB determinations.
As the District Court in Buffalo S. R.R. v. Vill. of Croton–On–Hudson, 434 F.Supp.2d 241, 253 (S.D.N.Y.2006)observed:
These are the exclusive, Congressionally-mandated remedies for [the railroad's] purported violation of the ICCTA. Significantly, Congress has not vested the federal courts with authority to impose penalties for a violation of Chapter 109's licensing regulations unless the STB brings a civil proceeding. Certainly nothing in the ICCTA suggests that a carrier's violation of the licensing provisions of that Act renders it and its facilities subject to the jurisdiction of states and localities, thereby thwarting Congress' clear intent that rail carrier facilities of all sorts be created, operated and discontinued only at the behest of the Surface Transportation Board. In fact, section 10501 clearly states that "remedies provided under this part preempt the remedies provided under Federal or State law." 49 U.S.C. $4f 10501(b). To put it succinctly, illegal operations by a rail carrier do not preempt preemption
434 F.Supp.2d at 253(emphasis supplied).2
Further, the court does not find that petitioners have properly asserted a NEPA claim as such review is only triggered where STB determines that a permit is necessary. Consequently, the STB not having been consulted, and not having determined that a NEPA review is necessary, any NEPA cause of action is premature. Moreover, there is no private right of action under NEPA. Flynn v. Burlington Northern Santa Fe Corp., 98 F.Supp.2d at 1193(citing Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988)[NEPA itself authorizes no private right of action] ).
Accordingly, petitioners' third cause of action is dismissed.
Respondents, the Village of Painted Post (the "Village"), Painted Post Development, LLC ("PPD") and SWEPI, LP ("SWEPI") move to dismiss the first cause of action challenging the Village's review pursuant to the New York State Environmental Quality Review Act ("SEQRA") on grounds that the petitioners lack standing. Although in the dissent on the issue of standing in Matter of Save the Pine Bush, Inc. v. Common Council of the City of Albany, 13 N.Y.3d 297, 890 N.Y.S.2d 405, 918 N.E.2d 917 (2009), Judge Pigott summarized the primary rule of standing upon which the majority predicated its decision:
SEQRA cases involving standing issues have been decided under rules set down by this Court in Society of Plastics Indus. v. County...
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