[Federal Register Volume 77, Number 177 (Wednesday, September 12, 2012)]
[Notices]
[Pages 56269-56270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22452]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Docket No. FD 35625]


City of Milwaukie--Petition for Declaratory Order

    The City of Milwaukie, Or. (the City), filed a petition for 
declaratory order on June 29, 2012 (Petition), requesting that the 
Board declare that 49 U.S.C. 10501(b) does not preempt certain 
municipal regulations regarding the scattering of rubbish and the 
blocking of vehicular and pedestrian traffic along the border of the 
Oregon Pacific Railroad Company's (OPRC) train maintenance facility and 
in a public right-of-way. For the reasons discussed below, the request 
to institute a declaratory order proceeding will be granted.
    On June 29, 2012, the City filed a petition for declaratory order. 
On July 3,

[[Page 56270]]

2012, OPRC filed a letter with the Board noting its opposition to the 
Petition and requesting 30 days to prepare its case in opposition 
should the Board institute a proceeding. OPRC's letter included no 
substantive support for why it opposed the Petition and, to date, OPRC 
has not submitted anything more to the Board.
    The Petition requests that the Board find the City is not preempted 
from enforcing two municipal regulations that the City claims protect 
the public and ensure the public's health and safety. The regulations 
prohibit (1) scattering rubbish, and (2) obstructing vehicular and 
pedestrian traffic. Milwaukie, Or. Mun. Code Sec. Sec.  8.04.120, 
10.44.030 (2011). According to the City, OPRC owns a train maintenance 
facility on approximately 0.78 acres within the City. The City claims 
that along the border of OPRC's property, and in the public right of 
way, OPRC stores rails, railroad ties, piles of gravel, and other large 
``debris.'' The City argues that this debris is a hazard for drivers, 
pedestrians, and cyclists and violates the two above regulations; the 
City has cited OPRC at least twice.
    The City argues that it should be permitted to enforce the 
regulations for the safety of its citizens and that there is no reason 
why the regulations should be preempted by federal law. It claims the 
ordinances are of general applicability, are not directed at or limited 
to railroads operating within the City, and are not directed at OPRC's 
use of its own property. It further claims that the regulations are 
within its traditional police power and that their enforcement will not 
affect transportation by a rail carrier.
    In a letter to the City, OPRC claims ``[m]unicipal interference 
with railroad operations is pre-empted by USC 10501 (b); therefore, the 
City has no jurisdiction over these matter [sic] as they apply to 
Interstate Commerce.'' \1\ The record shows that OPRC has contested the 
second set of citations in the Municipal Court for the City of 
Milwaukie and that a trial was set for July 23, 2012. No update has 
been filed with the Board since the scheduled trial date. OPRC has also 
indicated it intends to appeal the fine for the first set of citations.
---------------------------------------------------------------------------

    \1\ Petition, V.S. Salyers, Exh. I.
---------------------------------------------------------------------------

    The Board has discretionary authority under 5 U.S.C. 554(e) and 49 
U.S.C. 721 to issue a declaratory order to eliminate a controversy or 
remove uncertainty in a matter related to the Board's subject matter 
jurisdiction.\2\ Questions of preemption are often fact specific 
determinations, particularly when addressing whether land use 
restrictions interfere with railroad operations.\3\
---------------------------------------------------------------------------

    \2\ See Bos. & Me. Corp. v. Town of Ayer, 330 F.3d 12, 14 n.2 
(1st Cir. 2003); see also Intercity Transp. Co. v. United States, 
737 F.2d 103, 106-07 (DC Cir. 1984); Delegation of Auth.--
Declaratory Order Proceedings, 5 I.C.C. 2d 675, 675 (1989).
    \3\ See Borough of Riverdale--Petition for Declaratory Order--
The N.Y. Susquehanna & W. Ry., FD 33466, slip op. at 2 (STB served 
Feb. 27, 2001); Borough of Riverdale--Petition for Declaratory 
Order--The N.Y. Susquehanna & W. Ry., 4 S.T.B. 380, 387 (1999) 
(``whether a particular land use restriction interferes with 
interstate commerce is a fact-bound question'').
---------------------------------------------------------------------------

    The Interstate Commerce Act, as revised by the ICC Termination Act 
of 1995, vests in the Board broad jurisdiction over ``transportation by 
rail carrier,'' 49 U.S.C. 10501(a)(1), which extends to property, 
facilities, instrumentalities, or equipment of any kind related to that 
transportation, 49 U.S.C. 10102(9). The preemption provision in the 
Board's governing statute states that ``the remedies provided under [49 
U.S.C. 10101-11908] with respect to regulation of rail transportation 
are exclusive and preempt the remedies provided under Federal or State 
law.'' 49 U.S.C. 10501(b).
    The Board will institute a declaratory order proceeding and 
establish a procedural schedule for the filing of pleadings. This will 
ensure that the record is complete on the issue of whether the 
activities occurring in the right-of-way are part of ``transportation'' 
by a ``rail carrier'' and therefore could be preempted by Sec.  
10501(b).
    The Board will consider this matter under the modified procedure 
rules at 49 CFR part 1112. The City's detailed Petition will serve as 
its opening statement. Replies will be due 30 days from the date of 
service of this decision. The City's rebuttal will be due 45 days from 
the service date of this decision.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. A declaratory order proceeding is instituted.
    2. Replies are due by October 10, 2012.
    3. The City's rebuttal statement is due by October 25, 2012.
    4. This decision is effective on it service date.

    Decided: September 7, 2012.

    By the Board, Rachel D. Campbell, Director, Office of 
Proceedings.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2012-22452 Filed 9-11-12; 8:45 am]
BILLING CODE 4915-01-P