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Docket No. FD 35749
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<br />notice of intent to participate, and we will not accept Pan Am’s rebuttal pleading or the
<br />Concerned Parties’ amicus brief into the record.
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<br />DISCUSSION AND CONCLUSIONS
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<br />The Interstate Commerce Act is “among the most pervasive and comprehensive of
<br />federal regulatory schemes.” Chi. & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311,
<br />318 (1981). The Act, as revised by the ICC Termination Act of 1995, Pub. L. No. 104-88,
<br />109 Stat. 803 (ICCTA), expressly provides that the jurisdiction of the Board over “transportation
<br />by rail carriers” is “exclusive.” 49 U.S.C. § 10501(b). The statute defines “transportation”
<br />expansively to encompass any property, facility, structure or equipment “related to the
<br />movement of passengers or property, or both, by rail, regardless of ownership or an agreement
<br />concerning use.” 49 U.S.C. § 10102(9).9 Moreover, “railroad” is defined broadly to include a
<br />switch, spur, track, terminal, terminal facility, freight depot, yard, and ground, used or necessary
<br />for transportation. 49 U.S.C. § 10102(6). Section 10501(b) expressly provides that “the
<br />remedies provided under [49 U.S.C. §§ 10101-11908] with respect to regulation of rail
<br />transportation are exclusive and preempt the remedies provided under Federal or State law.”
<br />Section 10501(b) thus is intended to prevent a patchwork of local regulation from unreasonably
<br />interfering with interstate commerce.
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<br />In interpreting the reach of § 10501(b) preemption, the Board and the courts have found
<br />that it prevents states or localities from intruding into matters that are directly regulated by the
<br />Board (e.g., railroad rates, services, construction, and abandonment). It also prevents states or
<br />localities from imposing requirements that, by their nature, could be used to deny a railroad’s
<br />ability to conduct rail operations. Thus, state or local permitting or preclearance requirements,
<br />including building permits, zoning ordinances, and environmental and land use permitting
<br />requirements, are preempted. City of Auburn v. STB, 154 F.3d 1025, 1029-31 (9th Cir.
<br />1998); Green Mountain R.R. v. Vermont, 404 F.3d 638, 643 (2d Cir. 2005); Norfolk S. Ry. v.
<br />City of Austell, No. 1:97-cv-1018-RLV, 1997 U.S. Dist. LEXIS 17236 (N.D. Ga. Aug. 18,
<br />1997); CSX Transp., Inc.—Pet. for Declaratory Order (CSXT), FD 34662 (STB served Mar. 14,
<br />2005), reconsideration denied (STB served May 3, 2005); Joint Pet. for Declaratory Order—Bos.
<br />& Me. Corp. (Town of Ayer), FD 33971 (STB served May 1, 2001), reconsideration denied
<br />(STB served Oct. 5, 2001). While federal law permits “the continued application of laws having
<br />a more remote or incidental effect on rail transportation,” it preempts “state laws that may
<br />reasonably be said to have the effect of managing or governing rail transportation.” N.Y.
<br />Susquehanna & W. Ry. v. Jackson, 500 F.3d 238, 252 (3d Cir. 2007).
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<br /> Applying these well-established preemption principles, we find the Town’s actions here
<br />preempted by § 10501(b). The Interstate Commerce Act provides any person the right to ask for
<br />common carrier rail service and carriers the obligation to provide such service upon reasonable
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<br />9 The historical context behind the term “regardless of ownership or an agreement
<br />concerning use” is described in Florida East Coast Railway v. City of West Palm Beach,
<br />266 F.3d 1324, 1333-36 (11th Cir. 2001).
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