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Docket No. FD 35749
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<br />Residents living near these tracks filed a complaint with the Town’s zoning authorities
<br />relating to the use of the tracks, in particular the noise of trains coupling and switching at night.4
<br />In August 2012, the Town’s Zoning Board of Appeal (ZBA) held that the area around the tracks
<br />“is being used as a freight yard which is not allowed” under municipal zoning laws.5 Pan Am
<br />states that Tighe appealed this decision to state court, but that the parties jointly moved to
<br />remand the proceeding to the ZBA for consideration of the preemption issue.6 On June 25,
<br />2013, the ZBA submitted to the Town an amended decision after remand, directing that all rail
<br />traffic to the warehouse “immediately cease and desist.”7 Pan Am thereafter filed its petition for
<br />declaratory order with the Board on July 1, 2013.
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<br />Pursuant to its discretionary authority under 5 U.S.C. § 554(e) and 49 U.S.C. § 721, the
<br />Board, by decision served on July 3, 2013, instituted a declaratory order proceeding to resolve
<br />the controversy over whether application of the Town’s zoning laws is preempted under
<br />49 U.S.C. § 10501(b). In light of the Town’s alleged intent to seek a state court injunction to
<br />enforce its cease and desist order as early as the week of July 22, 2013, the Board adopted an
<br />expedited procedural schedule, with replies to the Petition due by July 10, 2013. The Town filed
<br />a reply on July 10, 2013, arguing that the track immediately adjacent to the warehouse is private
<br />track that is not subject to the Board’s jurisdiction, and does not qualify for federal preemption,
<br />because that track is owned by Tighe and is used solely to move shipments consigned to Tighe’s
<br />warehouse.
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<br />On July 11, 2013, CSX Transportation, Inc., Housatonic Railroad Company, Inc.,
<br />Massachusetts Railroad Association, and Norfolk Southern Railway Company (collectively,
<br />Railroad Parties) submitted a motion to participate as amicus curiae, together with an amicus
<br />curiae brief. Permitting these parties to file an amicus brief and allowing the Town an
<br />opportunity to reply would prevent the expedited resolution of this proceeding.8 Therefore, we
<br />will deny the motion to participate as amicus curiae and will not accept the amicus brief into the
<br />record. On July 16, 2013, Pan Am submitted a motion for leave to file rebuttal, together with a
<br />rebuttal pleading. Also on July 16, 2013, Adrian & Blissfield Rail Road, Bay Coast Railroad,
<br />Clayton Sand Company, Cleveland Commercial Railroad, Coos Bay Rail Link, Iowa Pacific
<br />Holdings, LLC, and Massachusetts Coastal Railroad, LLC (collectively, Concerned Parties)
<br />submitted a notice of intent to participate as amicus curiae. The Concerned Parties submitted
<br />an amicus curiae brief on July 18, 2013. For the same reasons we are denying the Railroad
<br />Parties’ motion, we will deny both Pan Am’s motion for leave to file and the Concerned Parties’
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<br />4 Pet., Ex. B at 1-2. It appears that Pan Am operates trains over these two tracks at night
<br />because of commuter rail operations in the area during the day. See Pet., Ex. C at 8, 10.
<br />5 Pet., Ex. B at 2.
<br />6 Pet. 5.
<br />7 Pet., Ex. B at 4 (Amended Decision After Remand).
<br />8 See Bos. & Me. Corp.—Pet. For Declaratory Order, FD 35749, slip op. at 1-2 (STB
<br />served July 3, 2013).
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