[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)]
[Notices]
[Pages 7912-7913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01379]


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SURFACE TRANSPORTATION BOARD

 [Docket No. FD 36075]


The Illinois State Toll Highway Authority--Petition for 
Declaratory Order

    By petition filed on November 23, 2016, the Illinois State Toll 
Highway Authority (Tollway) seeks a declaratory order confirming that, 
in its effort to acquire permanent and temporary easements for the 
construction of five highway bridges over railroad tracks owned and 
operated by Soo Line Railroad Company, d/b/a Canadian Pacific Railway 
(CP) in Chicago, Ill., the Tollway's state law eminent domain authority 
is not preempted by federal law under 49 U.S.C. 10501(b). The Tollway 
seeks expedited consideration and has submitted a procedural schedule 
that provides for comment by CP as well as a period for public comment.
    On December 9, 2016, CP filed a ``limited reply'' in opposition to 
the Tollway's request for a declaratory order and proposed procedural 
schedule. CP argues that the Tollway disregards the fact that the 
construction of the five highway bridges would lock the layout of the 
tollway into an alignment that goes across and through CP's Bensenville 
Yard. Therefore, CP asserts that the scope of this proceeding should be 
broadened to consider the ramifications that the Tollway's project 
would have on the Bensenville Yard. CP also requests that the Board 
allow limited discovery and proposes a procedural schedule that allows 
for discovery, CP's substantive reply, and public comment.\1\ In the 
event the Board were to disallow discovery, CP proposes an alternative 
procedural schedule, with replies due on February 23, 2017.
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    \1\ On December 21, 2016, the Tollway filed a motion for leave 
to file a surreply to CP's December 9, 2016 limited reply. On 
January 3, 2016, CP filed a motion for leave to file a reply to the 
Tollway's surreply. The Board will grant both motions and will 
consider the filings in the interest of compiling a more complete 
record. See City of Alexandria, Va.--Pet. for Declaratory Order, FD 
35157 (STB served Nov. 6, 2008) (allowing reply to reply ``[i]n the 
interest of compiling a full record); Denver & Rio Grande Ry. 
Historical Found.--Pet. for Declaratory Order, FD 35496, slip op. at 
3 (STB served Feb. 23, 2012).
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    As discussed below, the Board will institute a proceeding to 
consider whether 49 U.S.C. 10501(b) preempts the Tollway's eminent 
domain authority to acquire the temporary and permanent easements 
needed to construct highway bridges over CP's rail tracks, as well as 
to consider the implications of the Tollway's prospective plans to 
cross or go through the Bensenville Yard.

Background

    The construction of the Western Access Interchange, which involves 
the proposed construction of five highway bridges over CP's railroad 
tracks, is one stage of the Tollway's Elgin O'Hare Western Access 
Project (EOWA Project), a multi-stage project to improve the 
transportation infrastructure near O'Hare International Airport 
(O'Hare) by creating access to the western side of O'Hare. (Tollway 
Pet. 2; CP Reply 4.) The EOWA Project involves the construction of an 
east-west tollway (the Western Access Tollway) that approaches O'Hare 
from the west and a north-south tollway (the Western Bypass) that would 
connect I-90 north of O'Hare to I-294 south of O'Hare via the airport's 
western perimeter. (CP Reply 4.) The Tollway's petition pertains to the 
Western Access Interchange, which is the planned interchange between 
these two new tollways.
    CP has requested that the Board broaden the scope of this 
proceeding to consider the southern leg of the Western Bypass, because 
``construction of the Western [Access] Interchange commits the Western 
Bypass to an alignment through Bensenville Yard,'' which is located 
immediately south of O'Hare and is CP's only rail yard in the Chicago 
Terminal. (CP Reply 9.) CP states that construction of the Western 
Access Interchange involves plans to build the highway bridges and a 
section of the southern leg of the Western Bypass to Irving Park Road, 
just north of the Bensenville Yard and that the Tollway has already 
commenced construction on a part of the tollway immediately south of 
the Bensenville Yard, from I-294 north to the yard's southwest property 
line. Id. Thus, CP argues that it is inevitable that the Tollway will 
seek to complete the Western Bypass through the Bensenville Yard.
    The Tollway states that, while its ultimate goal is to connect the 
Western Access Tollway to I-294, the current plan is for the Western 
Access Tollway to stop at Irving Park Road, north of the Bensenville 
Yard. (Tollway Pet. 30.) The Tollway states that the phases involving 
the crossing of the Bensenville Yard are the last two phases of the 
entire EOWA Project, with construction projected to start no earlier 
than 2020. (Tollway Pet. 16-17, 30.) The Tollway asserts that CP's 
objections in this proceeding to these last phases of construction are 
premature, as the plans for these phases have not developed past the 
conceptual layout stage, and it would thus be impossible to determine 
whether the phases would unreasonably interfere with railroad 
operations. (Tollway Pet. 31.) The Tollway states that ``if and when 
the Tollway elects to pursue this work and [CP] refuses to cooperate, 
the Tollway will return to the Board with a subsequent petition related 
to the Bensenville Yard issues.'' (Tollway Pet. 30.) The Tollway also 
notes that CP's argument for considering the impact on the Bensenville 
Yard has been dismissed as premature by the United States District 
Court for the Northern District of Illinois, see Soo Line R.R. v. Ill. 
State Toll Highway Auth., Case No. 15-C-10328 (N.D. Ill. Mar. 29, 
2016), and CP's appeal of the dismissal is currently pending before the 
United States Court of Appeals for the Seventh Circuit.

Discussion and Conclusions

    The Board has discretionary authority under 5 U.S.C. 554(e) and 49 
U.S.C. 1321 \2\ to issue a declaratory order to eliminate a controversy 
or remove uncertainty in a case that relates to the subject matter 
jurisdiction of the Board. The Board has broad discretion to determine 
whether to issue a declaratory order. See Intercity Transp. Co. v. 
United States, 737 F.2d 103 (D.C. Cir. 1984); Delegation of Auth.--
Declaratory Order Proceedings, 5 I.C.C.2d 675 (1989). The Board may 
also provide guidance to assist other government agencies and courts in 
appropriate circumstances. See U.S. Envtl. Prot. Agency--Pet. for 
Declaratory Order, FD 35803 (STB served Dec. 30, 2014); Mid-Am. 
Locomotive & Car Repair, Inc.--Pet. for Declaratory Order, FD 34599 
(STB served June 6, 2005). In this case, it is appropriate to institute 
a proceeding so that the Board can address whether Sec.  10501(b) 
preempts the Tollway's eminent domain authority to acquire the 
temporary and permanent easements needed to construct highway bridges 
over CP's tracks, as well as the potential implications of crossing or 
going through the Bensenville Yard. The

[[Page 7913]]

Tollway and CP have presented related issues that ultimately may be 
relevant to future construction plans and activities for the EOWA 
Project. Therefore, it is appropriate to institute a proceeding to 
provide guidance on the issues raised by both the Tollway and CP.
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    \2\ The Surface Transportation Board Reauthorization Act of 
2015, Public Law No. 114-110, recodified certain provisions of title 
49, United States Code, redesignating 49 U.S.C. 721 as Sec.  1321.
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    The Board will establish a procedural schedule for the filing of 
additional pleadings. The Tollway's petition will serve as its opening 
statement. CP's substantive reply and comments from other interested 
persons will be due by February 23, 2017. In its substantive reply, CP 
should provide an analysis that details the impact of the proposed 
construction projects on its rail operations. The Tollway and other 
interested parties may respond to CP's reply only on the issue of the 
potential crossing of the Bensenville Yard by March 16, 2017.
    CP also requests that the Board allow for limited discovery on the 
Tollway's alternative alignment options, the Tollway's plans regarding 
the Bensenville Yard, and the basis of the Tollway's expert opinions. 
CP's request for discovery will be denied. The Board often does not 
provide for discovery in declaratory order proceedings.\3\ Nor is it 
apparent that discovery is necessary here. Alignment options for the 
tollway were analyzed and discussed in the Environmental Impact 
Statements for the EOWA Project, which are publicly available and which 
CP cites in its reply. (Tollway Surreply 4; CP Reply 8.) These 
Environmental Impact Statements also provide information regarding the 
Tollway's prospective plans for the Bensenville Yard.\4\ To the extent 
that CP wishes to challenge the Tollway's expert witness's findings on 
and observations of CP's rail operations, CP possesses the information 
on its own operations needed to call into question the bases for the 
expert witness's conclusions. For these reasons, the Board will not 
order discovery in this proceeding.
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    \3\ See, e.g., CSX Transp. Inc.--Pet. for Declaratory Order, FD 
33388 (Sub-No. 101), slip op. at 5 (STB served Aug. 27, 2008).
    \4\ See Elgin O'Hare-West Bypass Study: Tier Two Final 
Environmental Impact Statement (Oct. 2012), Sec.  3.4.2. The Final 
Environmental Impact Statements are available on the Illinois 
Department of Transportation's Web site at http://apps.dot.illinois.gov/fileexplorer/?search=environment/Elgin-Ohare%20final%20EIS.
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    It is ordered:
    1. A proceeding is instituted.
    2. CP and other interested persons may file substantive replies to 
the Tollway's petition by February 23, 2017.
    3. The Tollway and interested persons may file responses to CP's 
reply, limited to only the issue of the Bensenville Yard, by March 16, 
2017.
    4. CP's request for limited discovery is denied.
    5. The Tollway's motion for leave to file a surreply is granted.
    6. CP's motion for leave to file a reply to the Tollway's surreply 
is granted.
    7. Notice of the Board's action will be published in the Federal 
Register.
    8. This decision is effective on its service date.

    Decided: January 17, 2017.

    By the Board, Rachel D. Campbell, Director, Office of 
Proceedings.
Kenyatta Clay,
Clearance Clerk.
[FR Doc. 2017-01379 Filed 1-19-17; 8:45 am]
 BILLING CODE 4915-01-P