United States v. St. Mary's Ry. W., LLC

• Decision Date: 04 December 2013
• Docket Number: No. CV 5:13–28.,CV 5:13–28.
• Citation: 989 F.Supp.2d 1357
• Parties: UNITED STATES of America, Plaintiff, v. ST. MARY'S RAILWAY WEST, LLC and Claudius Strickland, Defendants.
• Court: U.S. District Court — Southern District of Georgia

989 F.Supp.2d 1357

UNITED STATES of America, Plaintiff,

v.ST. MARY'S RAILWAY WEST, LLC and Claudius Strickland, Defendants.

No. CV 5:13–28.

United States District Court,

S.D. Georgia,

Waycross Division.

Dec. 4, 2013.

Kenneth D. Crowder, Crowder Stewart, LLP, Augusta, GA, Paul Cirino, Kim Noelle Smaczniak, U.S. Dept. of Justice, Washington, DC, Sanjay S. Karnik, Edgar Bueno, U.S. Attorney's Office—Savannah, Savannah, GA, for Plaintiff.

Harry D. Dixon, Jr., Donnie Dixon, Attorney at Law, LLC, Savannah, GA, Anthony L. Cochran, Chilivis, Cochran, Larkins & Bever, LLP, Atlanta, GA, for Defendants.

ORDER

LISA GODBEY WOOD, Chief Judge.

Presently before the Court are Defendant Claudius Strickland's Motion for Summary Judgment, Defendant St. Mary's Railway West, LLC's Motion for Summary Judgment, and the United States of America's Motion for Partial Summary Judgment. Dkt. Nos. 8–9, 18. Upon due consideration, Strickland's motion is DENIED, St. Mary's motion is DENIED, and the Government's motion is GRANTED.

I. Factual Background

This action is predicated upon unauthorized discharges into wetlands during the construction of spur and side tracks. See Dkt. No. 1. The following factual summary is taken from Defendants' Motions for Summary Judgment, Dkt. Nos. 8–9, Plaintiff's Statement of Material Facts and Defendants' response thereto, Dkt. Nos. 28–29, and Defendants' Supplemental Statement of Material Facts, Dkt. No. 66.

In June 2008, Defendant St. Mary's Railway West, LLC (“the Railway”) began to construct spur and side tracks within its right-of-way. Dkt. Nos. 8 ¶ 1; 28 ¶ 1; 66 ¶ 1. Spur and side tracks are integral to the Railway's operation and interstate commerce because rail carriers pay the Railway to store inactive cars and locomotives during periods of economic inactivity. Dkt. Nos. 8 ¶ 3; 66 ¶ 21. For these tracks, adequate drainage and clearing of vegetation is critical for safety and maintenance and required by federal regulations. See Dkt. No. 66 ¶¶ 4–14, 27.

The United States of America (“the Government”) alleges that, during the course of construction, pollutants were discharged into tributaries in wetlands, resulting in a disturbance of more than five acres and a violation of the Clean Water Act (“CWA”). Dkt. No. 8 ¶¶ 4–5. Defendants had not obtained a § 404 permit from the United States Corps of Engineers (“the Corps”). Id. ¶¶ 6–7.

Before beginning construction, the Railway and its general partner and operator, Defendant Claudius Strickland, had sought advice of legal counsel regarding the exclusive jurisdiction of the Surface Transportation Board (“the Board”). Dkt. Nos. 1 ¶ 8; 8 ¶ 2. Defendants' counsel opined, “The effect of th[e] exclusive [Board] jurisdiction is that no other federal or state agency can require authority for construction of the trackage under consideration, nor otherwise exert regulatory authority over such trackage.” Dkt. Nos. 8–5, Ex. E; 28 SI 2.

Thereafter, in October 2008, Defendants communicated with the Corps about the track construction and the “exclusive” jurisdiction of the Board. Dkt. No. 8 ¶¶ 6, 8, 16. Afterward, the Corps never notified Defendants whether a § 404 permit would or could be required for the construction of spur and side tracks. Dkt. Nos. 8 SI 9; 28 SI 3; 29, at 4.

On December 9, 2008, the EPA issued an administrative compliance order that required Defendants to conform with the CWA. Dkt. Nos. 8 ¶ 15; 8–11, Ex. K; 28 ¶¶ 4–5; 44 ¶ 3. On December 24, 2008, Defendants filed a declaratory action against the EPA, attempting to raise the issue of the Board's exclusive jurisdiction. Dkt. Nos. 8 ¶ 11; 8–6, Ex. F. In April 2009, the EPA and Defendants stipulated to a dismissal of the declaratory action without prejudice, which was approved. Dkt. Nos. 8 SISI 13–14; 8–7, Ex. G; 8–8, Ex. H. On February 14, 2011, the EPA issued an additional administrative order. Dkt. Nos. 8 ¶ 17; 8–12, Ex. L. Defendants contend that the EPA's administrative orders were based on inaccurate representations about the width of the Railway's right-of-ways and contradictory conclusions about the amount of acreage impacted by Defendants' activities. Dkt. Nos. 8 ¶ 17; 29, at 2–3.

II. Procedural Background

In March 2013, the Government filed its complaint (“the Complaint”) against Defendants,alleging various violations of the CWA. See Dkt. Nos. 1; 8 ¶¶ 4–5. On May 23, 2013, the Railway filed a motion to dismiss the Complaint. Dkt. No. 8. The next day, Strickland filed a nearly identical motion to dismiss. Dkt. No. 9. In June 2013, the Government filed its Motion for Partial Summary Judgment (“the Government's Motion”), which was also in opposition to Defendants' motions to dismiss. Dkt. No. 18. In August 2013, a motions hearing was held, at which the Court converted Defendants' pending motions into motions for summary judgment (“Defendants' Motions”) pursuant to Federal Rule of Civil Procedure (“Rule”) 12(d). Dkt. No. 48. The parties' motions have been fully briefed. Dkt. Nos. 8, 9, 18, 18–1, 24, 25, 32, 47, 65, 68.

III. Legal Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law.” FindWhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir.2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute over such a fact is “genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In making this determination, the court is to view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir.2000).

The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To satisfy this burden, the movant must show the court that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257, 106 S.Ct. 2505.

IV. Discussion

The parties' motions for summary judgment are primarily focused on two issues: (A) whether the EPA's ability to enforce the CWA is preempted by the Interstate Commerce Commission Termination Act (“the ICCTA”) and (B) whether the United States is equitably estopped from bringing a civil CWA claim against Defendants because of the Corps' unresponsiveness to Defendants' communication in October 2008. Dkt. Nos. 18, at 1; 65, at 1. The Court also addresses whether the Complaint satisfies Rule 8 and whether the Fifth Amendment vagueness doctrine applies.

A. Preemption of the EPA's Ability to Enforce the CWA

The relevant provision for preemption under the ICCTA is 49 U.S.C. § 10501(b)(2) (“the Statute”), which says:

The jurisdiction of the Board over ... the construction, acquisition, [or] operation ... of spur ... or side tracks ... is exclusive. 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.

The parties dispute how to give effect to this preemption provision. Defendants contend that “the plain language of the statute shows Congress's intent for ICCTA preemption of federal regulatory authority to be equally clear” as that for state regulatory authority. Dkt. No. 8, at 11–12; see also Dkt. No. 24, at 2–3. That is, a regulation affecting track construction is the “regulation of rail transportation,” and therefore the ICCTA provides the exclusive federal remedy. Dkt. No. 8, at 12. The Government, while recognizing the provision's broad language, contends that it does not vest all aspects of railroad activities and operations within the Board's jurisdiction. Dkt. No. 18–1, at 7. Rather, regulations having an incidental or remote effect on rail transportation are permitted; only those having the effect of managing or governing rail transportation are preempted. See id. at 8; Dkt. No. 32, at 2–3.

The Court holds that § 10501(b)(2) does not override the EPA's jurisdiction to enforce the CWA against Defendants. The case at bar is controlled by Florida East Coast Railway Co. v. City of West Palm Beach, 266 F.3d 1324 (11th Cir.2001). There, the Eleventh Circuit addressed whether the Statute preempted a municipality's zoning and occupational license ordinances. Id. at 1330. The court noted that the Statute applies only to laws “with respect to regulation of rail transportation,” which “necessarily means something qualitatively different from laws ‘with respect to rail transportation.’ ” Id. at 1331. Therefore, the preemption provision displaces only those laws that “have the effect of ‘managing’ or ‘governing’ rail transportation,” while “permitting the continued application of laws having a more remote or incidental effect on rail transportation.” ¹Id. (editorial marks omitted). From this understanding of the Statute's scope, the Eleventh Circuit concluded that zoning ordinances of general applicability, when applied to a private entity leasing property from a railroad for non-rail transportation purposes, did not constitute regulation of rail transportation. Id.

Defendants distinguish Florida East Coast Railway Co.'s outcome as limited to non-rail transportation activity, while the present case involves a matter of rail transportation. Dkt. No. 8, at 13. Indeed, the Eleventh Circuit found that the Statute's definition of “transportation” encompasses ...