City of North Chicago v. 2nd & Main, LLC

2022 IL App (2d) 210454-U

• Court: Appellate Court of Illinois
• Decided: March 21, 2022
• Docket: 2-21-0454
• Status: Unpublished

Opinion

2022 IL App (2d) 210454-U No. 2-21-0454 Order filed March 21, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE CITY OF NORTH CHICAGO, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 19-ED-20 ) 2ND & MAIN, LLC, and UNKNOWN ) OWNERS AND NON-RECORD ) CLAIMANTS, ) Honorable ) Joseph V. Salvi, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices McLaren and Brennan concurred in the judgment.

ORDER

¶1 Held: Trial court did not err in granting defendant’s summary judgment motion. However, due to the court’s implicit preemption finding, we reverse in part, vacate the remedy section of the court’s judgment, and remand.

¶2 Plaintiff, the City of North Chicago, appeals the trial court’s decision granting defendant,

2nd & Main, LLC, partial summary judgment. We reverse in part, vacate the remedy section of

the court’s judgment, and remand.

¶3 I. BACKGROUND

¶4 A. Complaint 2022 IL App (2d) 210454-U

¶5 In June 2019, plaintiff filed a condemnation complaint, seeking to acquire through eminent

domain an easement across defendant’s property for the public purpose of operating an existing

water main. Plaintiff alleged that the water main had existed for more than 50 years, was an

integral part of its water system, and would be difficult and expensive to remove. The easement

would run along the water line and be around 20-feet wide. According to plaintiff, its good-faith

attempt to negotiate an easement purchase from defendant was unsuccessful, in part because the

parties were unable to agree upon just compensation. 1 The complaint provided the legal

description of the parcel, which includes a railway line, as well as the easement plaintiff sought.

1 According to plaintiff’s opening brief, the water main was installed in 1961, but plaintiff’s

attorney never recorded an easement for it. The water main has since operated continually, and

plaintiff asserts that no prior property owner has objected to plaintiff’s operation of the water main

without an easement. When defendant bought the property in 2014, plaintiff attempted to purchase

an easement for the water main, but those negotiations were unsuccessful. Accordingly, in 2017,

defendant initiated an inverse condemnation proceeding. See, e.g., Kaskaskia Land Co., LLC v.

Vandalia Levee & Drainage District, 2019 IL App (5th) 180403, ¶ 22 (“Inverse condemnation is

a cause of action that allows a landowner to recover compensation for the taking of property

interests in circumstances where the governmental entity involved has not initiated eminent

domain proceedings.”). As plaintiff determined that it had no viable affirmative defenses, it

admitted liability, and the court ordered plaintiff to commence condemnation proceedings, which

it did in 2019. As such, it is the court’s ruling on defendant’s partial summary judgment motion

concerning plaintiff’s 2019 complaint that gives rise to this appeal. (We note that no claims or

arguments concerning, for example, prescriptive easements, constructive notice, or unrecorded

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¶6 In its answer, defendant asserted that plaintiff’s right to eminent domain was barred by

affirmative matter because, to the extent condemnation would interfere with railway

transportation, federal law preempted plaintiff’s cause of action. Specifically, defendant noted

that the Interstate Commerce Commission Termination Act of 1995 (ICCTA) (49 U.S.C. § 10101

et seq. (1995))), grants the Surface Transportation Board (Board) exclusive jurisdiction over

transportation by rail carriers, including the construction and operation of spurs or side tracks, and

preempts state law. See 49 U.S.C. § 10501(b). Defendant explained that, on March 6, 2017, it

filed with the Board a notice of exemption (see 49 C.F.R. §1150.31), and, on March 22, 2017, the

Board issued an exemption, effective April 5, 2017. Accordingly, defendant prayed that any relief

provided to plaintiff be limited because condemnation could not interfere with railroad operations.

In addition to its affirmative defense, defendant filed a counterclaim, alleging that, where plaintiff

had installed a 24-inch water main on the property without having obtained an easement or other

rights to do so, it committed trespass.

¶7 B. Summary Judgment Motion

¶8 Defendant later moved for partial summary judgment. Defendant noted that there was no

dispute that, in the 1960’s and without obtaining an easement, plaintiff constructed a water main

on what is now defendant’s property. However, defendant noted, the property is unique in that it

is a railroad, which limits plaintiff’s powers to condemn the property through eminent domain.

Specifically, defendant argued that federal preemption applied, such that plaintiff’s condemnation

action could proceed only to the extent that it did not interfere with defendant’s actual or proposed

operations as a railroad. Defendant noted that it planned to place additional rail spurs on the

easements being binding on subsequent purchasers, are raised).

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property, and to use the site, including the portion that plaintiff sought to condemn, for railroad

access and as a storage facility for shipping containers. Defendant has leased the premises to

Hussey Terminal Railroad Company (Hussey) for those purposes. Accordingly, defendant argued

that the water main as currently constructed interferes with railroad operations because the existing

24-inch diameter, pre-stressed, concrete cylinder pipe is not constructed to support railroad loads

and is not built to railroad standards. Rather, to construct a water main under a railroad, defendant

explained, a carrier pipe is first installed, a concrete pipe is placed within the carrier pipe, and it is

then filled with sand. This process distributes the load from the railroad tracks onto the carrier

pipe, rather than the water pipe. Defendant’s expert, Peter Kolb, opined that the existing water

main is “not sufficiently constructed for the purpose of supporting railroad loadings and does not

meet railroad criteria for utility crossings.” Further, Kolb opined, and defendant alleged, that,

“[t]he existing water main renders [defendant’s] property unusable for railroad purposes in the

area over and north of the existing water main.”

¶9 Defendant acknowledged that, to the extent it did not interfere with railroad operations,

plaintiff’s condemnation action was not preempted. As such, defendant explained, it was moving

for only partial summary judgment, requesting that the court fashion a remedy such that any

allowed taking not interfere with railroad operations. Specifically, defendant requested an order

that, if a judgment for condemnation entered, plaintiff (1) must replace the existing water main

with one that meets current railroad standards; and (2) after the water main is replaced, return the

property to the condition that existed prior to the replacement. Defendant attached to its summary

judgment motion an affidavit from one of its managers, Phil Dahl; the application for and

exemption it had received from the Board; the lease agreement, dated August 10, 2017, with

Hussey; drawings of the existing water main prepared by plaintiff’s engineers; the deposition of

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plaintiff’s former engineer, Frank Furlan; and an affidavit and report prepared by civil engineer

Kolb.

¶ 10 In response, plaintiff argued that whether the existing water main interferes with

defendant’s use of the property as a railroad was a disputed issue of material fact. Specifically,

plaintiff noted that defendant’s motion was predicated on the notion that the existing water main

interferes with its ability to construct rail spurs on the property. Plaintiff disputed that claim,

asserting that its expert, Devin Moose, had opined that the existing rail spur on the property can

operate without changes to the water main, as the water main does not run beneath that spur, and

that the northern portion of defendant’s property can be used without modification to the water

main. Further, plaintiff continued, defendant’s future use of the property for railroad purposes was

also a question of material fact, as defendant had not established that plans for “significant”

railroad use as a railroad hub or for storing shipping containers was likely or economically viable.

Plaintiff did not dispute that defendant had leased the property to Hussey. However, plaintiff’s

appraisal expert, P. Barton DeLacy, opined that the Board’s exemption did not alter the value of

the property, which is located in a blighted area with low levels of economic activity, and,

therefore, there was no likelihood the property could be used for storing shipping containers, as a

railroad hub, or for railroad access. Finally, plaintiff argued that defendant had not established

that it was entitled to the summary relief it was seeking, as it did not explain why the specifications

presented on certain drawings (i.e., those pertaining to a water main running under a railway line)

would be the appropriate standard for constructing a water main for the railroad purposes defendant

was proposing (i.e., such as where the water line intersects merely a rail spur). Plaintiff concluded

that there was simply no basis for the court to order it to replace the water main to certain standards.

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In support of its response, plaintiff submitted Moose’s affidavit and report, DeLacy’s affidavit and

report, and Peter Kolb’s April 20, 2021, deposition.

¶ 11 In reply, defendant pointed out that, contrary to its representation, plaintiff’s expert did not

opine that the existing pipe did not interfere with railroad operations; rather, Moose’s opinion, in

fact, stated that tracks could not be laid on the northern portion of the property where the pipe

exists. Not being able to place tracks on the northern part of the property, defendant argued, is an

interference. Further, it noted that questioning the value of the property as a railroad is not

responsive to the undisputed fact that defendant plans to use it as a railroad.

“[Defendant] does not make the claim that the property will ‘be used as a railroad hub,’

whatever that means in this context. [Defendant] only claims that the [p]roperty has

already been recognized by the Surface Transportation Board as a railroad property and

that [defendant] has plans to use it as such. A railway track to a warehouse is just as

preempted under [f]ederal [l]aw as a ‘railroad hub.’ [Plaintiff] cites no authority for the

proposition that the economic value or utility of a property is a factor in determining

whether a condemnation is preempted. It is not a factor stated in the statute. Thus, an

unprofitable railroad is just as preempted as a profitable one.”

Defendant argued that plaintiff’s position is that the property should both be condemned and that

it should not have to fortify the existing pipe. However, it is undisputed that, unless the existing

pipe is fortified, railroad tracks will not be able to be placed on the northern part of the property

and the maintenance of an unfortified pipe will interfere with railroad operations. As such,

defendant concluded, the court should find that, for plaintiff to succeed in its condemnation action,

it must fortify the pipe so that it does not interfere with railroad operations.

¶ 12 C. Hearing and Trial Court’s Ruling

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¶ 13 On July 13, 2021, the trial court held a hearing on defendant’s motion. Defense counsel

showed the trial court the property’s survey, pointing out where the water main runs across the

north end of the property, and further noted that two railroads, Union Pacific Railroad Company

(Union Pacific) and Canadian National Railway Company (Canadian National), use the rail line

that runs along the property. Counsel explained that defendant wished, in part, to “run the spur

line between the two railroads.” Counsel noted that it was undisputed that the property has been

designated a railroad, as well as that the Board possesses exclusive jurisdiction over, in part, the

construction and operation of rail spurs and side tracks. Plaintiff’s counsel agreed that plaintiff

did not dispute those points. Defense counsel further explained that, when the water main was

constructed, a portion running across the property was not built to railroad standards, and it

explained the process for reinforcing a water main within a concrete pipe and with sand to sustain

the load borne by railroad activity. The court interjected, “[t]he idea is so that something doesn’t

crush it.” Counsel continued that plaintiff’s expert, Moose, did not opine that additional tracks

could be placed over the existing water line, which was a “glaring omission” and “obviously, no

engineer would say it’s ok to build a railroad track over these pipes and then face the consequences

if that water main caved in after the train went across it.” The court asked plaintiff’s counsel, for

the sake of the argument, what if defendant simply put rail tracks over the existing water main and

had railroad “stuff” go over it, “wouldn’t it literally crush it? And then what? Then what?”

Plaintiff’s counsel responded that it was a disputed question of fact, but the court disagreed, noting

that plaintiff’s expert (Moose) had essentially crafted an opinion that avoided answering the

question whether the water main required reinforcement, if it were to intersect with a new railroad

line. The court noted that Moose opined only that the water main did not need additional

construction, given the property’s present use, but that Moose did not say that the water main could

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support additional rail spurs or tracks that might be constructed over it. Plaintiff’s counsel argued

that defendant’s future plans were not adequately specific and further queried whether any property

owner could hypothetically and without specific plans claim that an eminent-domain action is

preempted because it might build a railroad on the property. The court countered, however, that

the property here had already been designated railroad property, a fact that was undisputed, and

that, but for the water main, defendant would be able to construct tracks over the property however

it wished. The court noted that whether there is a way to use the property without reinforcement

of the water main is not defendant’s concern; rather, defendant did not want to be limited in how

it used its property.

¶ 14 The court ultimately agreed that future use of the property was a proper consideration, and

it noted that defendant had articulated a future use that may require a railroad line to run over the

water main. Further, the court noted that, if it simply allowed the condemnation with no changes

to the water main, defendant would not be able to use its property the same way it could if there

was no water main there. The court then questioned the parties about defendant’s requested

remedy:

“COURT: So now let’s talk about the remedy that you request under the motion.

Okay. So you’re asking the Court to allow the condemnation but require that the easement

be contingent upon them encasing the water main pursuant to railroad guidelines.

DEFENSE COUNSEL: Yes, Your Honor.

COURT: Okay. Does the Court have such authority to craft such an order in a

motion for summary judgment?

DEFENSE COUNSEL: I think it does, Your Honor, and here’s why. The only

thing that the Court could do otherwise is enjoin [plaintiff] from taking the condemnation—

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from doing the condemnation and ordering—I suppose you could enjoin the condemnation

and order them to remove the pipe, but we’re not saying that. It’s [plaintiff’s] main water

line. We’re saying that they have to install it in such a way that it doesn’t interfere with

our property, and it’s an important ruling because it affects the damages. Our damages

actually go down if we win this motion because then presumably this line will be installed

in such a way that it won’t have any effect on our property.

PLAINTIFF’S COUNSEL: Your Honor, the proper standards to which the rail—

the water pipe should be reinforced, again, it’s a fact issue that needs to be resolved after

you and the jury hear the evidence of the expert witnesses because, you know, our engineer

may say that it needs to be reinforced to a different standard than what their engineer says.

COURT: Yeah, but the order would [be] craft[ed] it [sic] in such a way that it

would have to be—the water main would have to be reinforced pursuant to railroad

guidelines. Nothing more, nothing less. And—it sounds like to me, the way it was

articulated to me, that there are specific guidelines by which the water main is protected

when it intersects with a railroad—railroad line. And if the Court were to do that, then,

like [defense counsel] said, the condemnation value would go down for them because it

would be—it wouldn’t change the possible use of said property. And, now, I don’t know

the cost of creating a water main like that. It’s probably fairly substantial, but I don’t

know.” (Emphases added.)

¶ 15 As such, the court agreed with plaintiff that the relevant requirements for reinforcing the

water main to railroad standards required clarification. The court granted defendant’s partial

summary judgment motion, (1) implicitly finding that, to the extent that plaintiff’s condemnation

would interfere with railroad operations on defendant’s property, preemption applied, (2) ordering

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that plaintiff’s “water main shall be constructed and[/]or replaced to current railroad standards,”

which would then, presumably, allow plaintiff to complete its condemnation, but (3) continuing

the case for presentation of evidence on the appropriate current railroad standards for water main

construction.

¶ 16 Plaintiff filed an interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a) (eff.

Nov. 1, 2017) (interlocutory appeal as of right concerning injunctive relief). Further, on September

24, 2021, we allowed plaintiff to supplement the record with the trial court’s August 12, 2021,

order, pursuant to Illinois Supreme Court Rule 304(a) (eff. March 8, 2016) (appeals from final

judgment that do not dispose of entire proceeding), finding that there is no just reason to delay

appeal of its July 13, 2021, order. 2 On August 19, 2021, we allowed appellant’s unopposed request

to proceed with a briefing schedule as appropriate under Rule 304, as opposed to the accelerated

briefing schedule that would be necessary for appeals under Rule 307.

¶ 17 II. ANALYSIS

¶ 18 On appeal, plaintiff asks that we reverse summary judgment in defendant’s favor.

Specifically, plaintiff argues that summary judgment was improper because defendant’s plans to

expand its rail infrastructure are too vague to preempt the condemnation action. Further, plaintiff

argues that, even if the plans are not too vague, whether the water main will unreasonably interfere

with the use of the property for railroad transportation is a disputed issue of material fact that

2 We denied, however, plaintiff’s request to supplement the record with additional

documents that were not before the trial court on summary judgment, such as Dahl’s deposition

testimony. To the extent that those documents were included in the appendix that accompanied

plaintiff’s opening brief, we disregard them.

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should be decided at trial. Finally, plaintiff argues that defendant failed to provide the necessary

evidence to demonstrate that it was entitled to a permanent injunction.

¶ 19 Summary judgment is proper when the pleadings, depositions, admissions, and affidavits

on file demonstrate that there is no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016). We review de novo

the trial court’s summary judgment ruling. Nationwide Financial, LP v. Pobuda, 2014 IL 116717,

¶ 24. Moreover, we review de novo a court’s determination of the preemptive effect of a federal

statute. Union Pacific R.R. Co. v. Chicago Transit Authority, 647 F.3d 675, 678 (7th Cir. 2011).

¶ 20 A. The Plans Are Not Too Vague for Preemption

¶ 21 Plaintiff argues first that defendant failed to demonstrate that the water line interferes with

a railroad’s current operations or imminent plans to expand railroad infrastructure, and, therefore,

the trial court improperly found that the ICCTA preempts the condemnation action. Plaintiff

asserts that defendant’s claim that the water main will unreasonably interfere with railroad

transportation on the property is based entirely on one, self-serving statement from Dahl that

“[defendant] plans to use the property that is the subject of the suit, including the property

[plaintiff] seeks to condemn, for railroad purposes specifically for storage area for shipping

containers, additional spur tracks, and railroad access.” Plaintiff asserts that there is “no

corroborating evidence” for the statement, yet the court determined that the water main will

unreasonably interfere with railroad transportation, “even though the water main currently does

not interfere with railroad transportation and no evidence was presented apart from this affidavit

that it will interfere with railroad transportation.” Plaintiff continues that this evidence, alone, is

insufficient to justify ICCTA preemption because the ICCTA preempts a condemnation action

only when there is evidence that the action will interfere with imminent, definite plans to expand

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railroad infrastructure. Here, plaintiff argues, defendant presented vague, speculative evidence to

support its ICCTA preemption claim, only a general desire for future development, and no

evidence that its plans would come to fruition. Plaintiff concludes that ICCTA preemption was

not established and, where courts adopt a presumption against preemption and deference must be

given to the non-movant on summary judgment, the court’s ruling has opened the door to a railroad

being able to stop a condemnation action based solely on a few self-serving, conclusory, and

speculative statements in an affidavit.

¶ 22 Defendant responds that summary judgment was appropriate and that its plans are not too

vague to demonstrate interference and preemption. Defendant asserts that plaintiff’s position that

only interference with imminent, definite plans to expand railroad infrastructure requires

preemption runs counter to the decision in Union Pacific, wherein the court held that a

condemnation action was preempted even when the proposed taking would have prevented the

railroad from using the property how it might wish in the future. Union Pacific, 647 F.3d at 681.

Defendant notes condemnation may not be preempted in cases where the action is sufficiently

insignificant that it would not interfere with the railroad transportation. But, defendant argues, the

taking here would not be insignificant, because its property is relatively small and the uncontested

evidence established that, if the water main is not brought to railroad standards, defendant cannot

build new tracks over it. Defendant concludes that the trial court did not err in finding that, to the

extent plaintiff’s condemnation would interfere with defendant’s plans for railroad activity, it was

preempted by the ICCTA. We agree.

¶ 23 As summarized in Union Pacific, federal law preempts state laws that interfere with, or are

contrary to, federal law; relevant here, in enacting the ICCTA, Congress provided the Board with

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exclusive jurisdiction to regulate railroad transportation. Union Pacific, 647 F.3d at 678; 49 U.S.C.

§ 10501(b). Specifically:

“The jurisdiction of the Board over—

(1) transportation by rail carriers, and the remedies provided in this part with respect to

rates, classifications, rules (including car service, interchange, and other operating

rules), practices, routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance of spur,

industrial, team, switching, or side tracks, or facilities, even if the tracks are located,

or intended to be located, entirely in one State,

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.” (Emphases added.) 49 U.S.C. § 10501(b).

¶ 24 The ICCTA defines “transportation” as including:

“(A) a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard, property,

facility, instrumentality, or equipment of any kind related to the movement of passengers

or property, or both, by rail, regardless of ownership or an agreement concerning use; and

(B) services related to that movement, including receipt, delivery, elevation, transfer in

transit, refrigeration, icing, ventilation, storage, handling, and interchange of passengers

and property[.]” (Emphases added.) 49 U.S.C. § 10102(9).

“Congress’s intent in the Act to preempt state and local regulation of railroad transportation has

been recognized as broad and sweeping.” Union Pacific, 647 F.3d at 678; see also CSX

Transportation, Inc. v. Georgia Public Service Comm’n, 944 F. Supp. 1573, 1581 (N.D. Ga. 1996)

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(“It is difficult to imagine a broader statement of Congress’ intent to preempt state regulatory

authority over railroad operations”).

¶ 25 The question here is whether plaintiff’s proposed condemnation establishing an easement

over the property for the water main is a regulation of railroad transportation that is preempted by

the ICCTA. “A condemnation is a peculiar type of regulation, one specifically limited in scope to

the ownership or use of one particular piece of property,” thus, rendering per se preemption in all

condemnation actions improper. Union Pacific, 647 F.3d at 679-80. However, a condemnation

action may be preempted “as applied,” if, as to the property at issue, condemnation “would have

the effect of preventing or unreasonably interfering with railroad transportation.” Id. at 679-80.

There exists a general presumption against preemption, and the party contending that preemption

applies bears the burden of persuasion. See, e.g., Texas Central Business Lines Corp. v. City of

Midlothian, 669 F.3d 525, 529 (5th Cir. 2012). However, the presumption against preemption

applies with less force when the field at issue is one such as railroads, which have a significant

historical federal presence. Id.

¶ 26 Here, plaintiff does not dispute that defendant’s property is designated railroad property,

generally covered by the ICCTA, or that defendant’s proposed alterations concern transportation

as defined by the ICCTA. 3 Rather, plaintiff’s argument is that defendant failed to meet its burden

3 We note that the exemption that defendant received from the Board refers to defendant

as a “noncarrier.” The Board’s exclusive jurisdiction, however, concerns “transportation by rail

carriers”. 49 U.S.C. § 10501(b). The parties do not mention defendant’s possible status as a

noncarrier or whether that status affects preemption here, although, in supplemental briefing,

plaintiff for the first time suggests that the import of defendant’s exemption is unclear. For

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of persuasion to establish preemption because it failed to demonstrate that condemnation will

interfere with specific, imminent plans for future railroad operations. Plaintiff asserts that

defendant produced no design plans to add rail spurs or additional tracks, nor other corroboration

for Dahl’s affidavit statement that there exist plans to use the property for storing shipping

containers, adding spur tracks, and additional railroad access. Plaintiff asserts that, where

defendant’s alleged plans are only vague and speculative, it cannot demonstrate the interference

necessary to establish preemption.

¶ 27 First, we disagree that Dahl’s affidavit was the sole evidence defendant proffered to

demonstrate plans of operating and expanding its railroad operations. The record reflects that, in

2014, defendant purchased the property and then, in 2017, applied for and received an exemption

from the Board. The application and exemption documents explained that defendant wished to

acquire and operate a section of rail connecting the Union Pacific and Canadian National lines,

and that, upon receipt of the exemption, Hussey would seek authorization to acquire defendant’s

line. Further, Dahl attested that the property was leased to Hussey, and defendant attached the

lease agreement, which includes language reflecting plans for Hussey to acquire and operate the

rail line, to provide rail service, to perform freight car switching on the property, and to use

facilities on the property for freight car loading and unloading. In contrast to plaintiff’s suggestion

that defendant’s plans are only speculative, collectively, these actions and documents corroborate

Dahl’s affidavit statement concerning defendant’s intended use of the property, and, while

defendant did not submit engineering drawings or plans of additional tracks or spurs, an intent to

construct them would be a natural extension of the statements and agreements in evidence.

purposes of our analysis, we treat the issue as undisputed.

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Accordingly, plaintiff’s argument that one statement in Dahl’s affidavit was defendant’s sole

support for its planned use of the property is inaccurate.

¶ 28 Next, plaintiff acknowledges that courts have held that plans for future railroad use are a

relevant consideration but argues that preemption does not apply where the plans are not specific

and imminent. The cases it cites for that authority, however, are distinguishable. See, e.g., Texas

Central Business Lines Corp. v. City of Midlothian, 669 F.3d 525 (5th Cir. 2012) (no preemption

where railroad’s arguments that local regulations would burden transportation were speculative,

and where there were no definite plans for development or explanation of how future projects

would be affected; however, unlike here, a condemnation action affecting permanent ownership

rights was not at issue, and the regulations concerned the railroad’s alleged desire to build new

silos, with the court commenting that not “everything [the railroad] does on its largely vacant 243-

acre leasehold is beyond the reach of the City’s regulation.”); Franks Investment Co., LLC v. Union

Pacific R.R., 593 F.3d 404 (5th Cir. 2010) (no preemption where there was no specific evidence

that the local regulation would unreasonably interfere with railroad transportation; however, again,

this was not a condemnation action and concerned a neighboring property owner’s action to

prevent the railroad from removing existing crossings); City of Girard v. Youngstown Belt Ry. Co.,

979 N.E.2d 1273 (Ohio 2012) (“[w]hile it is acceptable and sometimes necessary to consider a

railway company’s future plans when determining if the ICCTA applies to an eminent-domain

action, it is also necessary to consider whether it is likely that the railway company’s plans ‘will

come to fruition’ ”; no preemption where the railroad had only a hypothetical, general desire for

future development, but “no concrete plans” to do so, and where it had not added the allegedly

desired track over a period of 15 years; however, unlike here, the railroad company owned 55 acres

of land, the portion the city wished to condemn was undeveloped, vacant land with no existing rail

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line and no right-of-way; defendant here, only a few years after purchasing the property, signaled

its intent to commence increasing railroad operations by seeking an exemption with the Board and

entering into a lease agreement with Hussey). Thus, while we do not necessarily take issue with

the reasoning or conclusions reached by the courts in plaintiff’s cited cases, we do not find them

particularly helpful here.

¶ 29 Plaintiff notes that the authority upon which defendant relies is also distinguishable, in that,

although preemption was found, they involved active railroad operations where future use was

deemed likely because it would improve those operations and meet increasing demand in the area.

See, e.g., Union Pacific, 647 F.3d at 675; City of Lincoln v. Surface Transportation Board, 414

F.3d 858 (8th Cir. 2005); 14500 Ltd. v. CSX Transp., Inc., 2013 WL 1088409 (N.D. Ohio 2013).

While it is true that significant railroad operations are not now taking place on the property, there

are already existing tracks and a rail spur there, and defendant apparently wishes to increase the

property’s railroad activity level: that is one point of these proceedings.

¶ 30 Ultimately, we determine that, although Union Pacific contains distinguishable facts,

certain elements of the court’s reasoning are helpful. See, e.g., State Bank of Cherry v. CGB

Enterprises, Inc., 2013 IL 113836, ¶¶ 33-35 (uniformity of the law is an important factor in

deciding how much deference to afford federal court interpretations of federal law; “if the federal

courts are split, we may elect to follow those decisions we believe to be better reasoned”). In

Union Pacific, for almost 50 years, the Chicago Transit Authority (CTA) had leased from Union

Pacific a right-of-way, operating trains on tracks running parallel to Union Pacific’s tracks. When

the parties could not agree to new lease terms or a lump-sum payment for a permanent easement,

the CTA began condemnation proceedings. The court found that the CTA’s threatened

condemnation of 40% (approximately 13 acres) of the railroad’s right of way would be an

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unreasonable interference with the railroad’s current operations, but also that, if it were unoccupied

(i.e., not used or taken by the CTA), the railroad could use the land for additional railroad lines.

Id. at 681. The court noted that, even where there were no current plans to use it, the Board had

previously recognized value in railroad property that might later be needed for railroad purposes.

Id. (citing Norfolk Southern Ry. Co., 2010 WL 691256, *4 (S.T.B. Feb. 26, 2010)). As such, the

court determined, “[e]ven if the property was not being used and Union Pacific had no immediate

plans to use the property, a taking of this property would still prevent Union Pacific from using it

for railroad transportation in the future.” (Emphases added.) Id. The court concluded that the

CTA’s use of the right of way significantly impacted railroad transportation because it prevented

Union Pacific from using the property itself for additional tracks. Id. at 682. Indeed, the tracks

the CTA operated were located only five feet away from Union Pacific’s tracks. Thus, “although

Union Pacific has no current plans to use the property because of the CTA’s operations [under the

lease], there is little doubt that it would be used whenever it became available.”4 Id. at 683.

¶ 31 While factually distinguishable in many ways, we agree with defendant that Union

Pacific’s rationale is persuasive. Plaintiff does not contest that, unlike in some of its cited cases,

defendant’s property is already railroad property with existing tracks and an existing spur. Plaintiff

4 The court also noted that no unreasonable interference and, thus, no preemption had been

found in certain cases concerning utility easements, but those decisions reflect analysis, again, of

the degree to which the easement would impede rail operations or pose undue safety risks. See id.

at 682, n.9; see also Lincoln Lumber Co.-Petition for Declaratory Order, STB Finance Docket No.

34915, 2007 WL 2299735 (S.T.B. Aug. 10, 2007); Maumee & Western R.R. Co.-Petition for

Declaratory Order, STB Finance Docket 34354, 2004 WL 395835 (S.T.B. March 2, 2004).

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does not dispute that, again unlike its cited cases, defendant’s property is not large and

undeveloped; rather, it is apparently approximately 2.5 acres in size with a few (albeit relatively

rustic) structures built on it and the water line running across the width of it. Like in Union Pacific,

where the railroad’s future development would likely be impacted by allowing the CTA to take

some of its property only five feet away from existing railroad lines, here, there would likewise be

little room for defendant to construct upon the property to expand railroad operations without

encountering plaintiff’s water line. Thus, even if defendant has not presented specific drawings or

plans reflecting imminent construction of new rail lines or spurs, plaintiff’s taking could

unreasonably interfere with defendant’s plans to do so. Plaintiff may be frustrated that, for more

than 50 years, its authority to operate the water main without an easement went unchallenged by

prior owners, particularly when it does not agree that continued operations would impact

defendant’s railroad. Yet, the CTA was also likely frustrated that for 50 years, pursuant to its

agreement with the railroad, it used the same tracks over which it wished to obtain an easement,

likewise believing that its continued operations would not impact the railroad’s future operation.

However, in both cases, allowing the user of railroad property to become an easement owner on

that property impacts the railroad’s ability to operate as it might wish in the future.

¶ 32 This leads us to another aspect of Union Pacific that we find relevant here. There, the court

reasoned that condemnation would negatively impact the strength of Union Pacific’s legal

remedies:

“In addition, the fact that Union Pacific would have available legal remedies to

enforce an easement’s obligations does not make these remedies equivalent to those it has

as a landlord; a lessor with the ability to oust the lessee if it fails to uphold its lease

obligations is in a stronger position than a party filing a lawsuit to enforce the terms of an

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easement. In short, Union Pacific would lose valuable property rights in the condemnation,

and the CTA would gain perpetual control of the property without it being subject to

termination—a manner of control that the CTA currently does not enjoy.” Id.

¶ 33 Here, at oral argument on the partial summary judgment motion, the trial court touched

upon what might happen if plaintiff were allowed condemnation without defendant’s requested

parameters, and we revisit that scenario now. Plaintiff opines that, without specific construction

plans, preemption is premature, and, so, the court should allow condemnation with no water main

reinforcements; then, if defendant wants to add rail spurs or tracks in the future and the water main

interferes with that construction, defendant can seek a mandatory permanent injunction, requiring

plaintiff to reinforce the water main. This assertion does not adequately recognize the shift in

defendant’s legal position between the present and proposed scenarios. If plaintiff is allowed the

easement without conditions, defendant loses certain enforceable property rights over that

condemned portion. See, e.g., Kaskaskia, 2019 IL App (5th) 180403, ¶ 21 (an easement is a legal

interest in the property of another). As far as we can tell, if defendant then wished to construct

additional rail lines or spurs, its options would be limited to: (1) not doing so, frustrating its desired

operations as a railroad; (2) proceeding without regard to the existing water main, potentially

crushing it and risking legal exposure (if, in light of the water main, it were even able to obtain the

necessary plans, permits, etc., to construct); or (3) absorbing the costs of yet more litigation to

obtain a court order requiring plaintiff, now the easement owner, to dig up and reinforce its water

main. In contrast, where defendant presently owns the property and plaintiff has no easement,

defendant is simply seeking that any condemnation relief be conditional, so as to avoid the three

scenarios outlined above. Construction to reinforce the water main might be expensive, but,

presumably, so would removing or re-routing the water line around the property. Defendant is not

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presently arguing that plaintiff should remove and re-route the water line but, technically, it

probably could. In other words, defendant is in a stronger position to protect its property rights

now than it will be if condemnation is allowed and it later begins railroad construction. Plaintiff

asserts that defendant has not demonstrated that its construction plans are economically viable,

but, even if that is relevant, allowing condemnation without limitations would likely prove

economically damaging to future railroad operations. As in Union Pacific, we agree that

preemption applies where condemnation would unreasonably interfere with defendant’s future use

of the property for railroad purposes, which, here, includes the economic impact that defendant’s

loss of legal advantage would likely entail. In sum, based upon this record, the trial court did not

err in finding that, as pleaded, plaintiff’s proposed condemnation action is preempted.

¶ 34 B. No Genuine Issue of Material Fact

¶ 35 Next, plaintiff argues that there exists a material factual dispute as to whether the

condemnation action would unreasonably interfere with railroad transportation. Plaintiff argues

that defendant presented no evidence that the water main currently interferes with railroad

transportation and only speculative assertions that it would unreasonably interfere with railroad

transportation in the future. For example, plaintiff notes, although defendant asserted that the

water main will prevent it from constructing additional rail spurs, it provided no plans or

specifications for such rail spurs, let alone plans showing that new rail spurs would intersect with

the water main. Nor did its expert explain why the standards that apply to the reinforcement of

the water main under Union Pacific tracks, which haul massive freights nationally, would apply to

the few yards of cargo transportation on defendant’s rail spur. Plaintiff argues that no evidence

demonstrated that the amount of rail traffic or revenue from operating a rail spur on defendant’s

property would decrease because of the water main. Further, plaintiff asserts that it presented

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evidence that the water main would not unreasonably interfere with railroad transportation,

creating a disputed issue of material fact. It notes that DeLacy appraised the property and opined

that there was no likelihood that it would be economically viable to use the property for container

storage. In addition, engineering expert Moose opined that the existing railroad spur could operate

without additional improvement to the water main infrastructure and that the northern portion of

the property could be utilized without modification to the existing rail spur or the water main. In

sum, plaintiff argues, summary judgment was improper because its evidence raises a fact question

about whether the condemnation unreasonably burdens rail transportation.

¶ 36 Defendant responds that its expert, Kolb, and plaintiff’s expert, Moose, both concluded

that the existing water main is insufficient to support rail tracks. Kolb concluded that the existing

water main was installed without a surrounding carrier pipe and sand, which would avoid putting

the load of railroad tracks directly onto the water pipes and, therefore, it does not meet railroad

criteria for utility crossings because it cannot support railroad loadings. Moose, in turn, did not

refute any of Kolb’s points. Moose opined that the water main did not require improvements for

the existing rail spur and that the area between the existing spur and the northern property boundary

line, “although not suitable to house additional rail lines,” (emphasis added.) could be used for a

variety of “other purposes.” Reading between the lines, defendant asserts, plaintiff’s expert

concluded that, because of the water main, the northern portion of the property is “not suitable to

house additional rail lines.” As such, there is no genuine dispute that the water main interferes

with use of the railroad. We agree.

¶ 37 Defendant’s expert testified that the water main as currently constructed cannot support

additional rail lines. Specifically, Kolb opined that the existing water main is “not sufficiently

constructed for the purpose of supporting railroad loadings and does not meet railroad criteria for

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utility crossings.” Further, Kolb opined, “[t]he existing water main renders [defendant’s] property

unusable for railroad purposes in the area over and north of the existing water main.” In his

affidavit and report, Moose did not contradict these points. As noted by defense counsel and the

trial court at oral argument on the summary judgment motion, Moose’s opinion was carefully

crafted to avoid the main question, leaving a glaring omission. Moose opined that “the area

between the north property line and rail spur, although not suitable to house additional rail lines,

could be utilized for other purposes, including but not limited to unloaded rail car storage and other

general material storage.” (Emphases added.) Further:

“Based on my experience and review of the documents it is my opinion that the

presence of the water main does not substantially limit the future use of the property. The

existing rail spur could resume without additional improvement to the water main

infrastructure. The northern portion of the [p]roperty, between the existing rail spur and

the northern property boundary, could be used for a variety of purposes, including but not

limited to housing shipping containers or other material storage. The rail spur, therefore,

could be utilized without modification to the rail line or the water main.” (Emphases

added.)

¶ 38 Although Moose opined that the water main did not require improvements for the existing

rail spur, the water main does not run beneath that spur. He did not opine that the water main

could sustain construction of additional spurs or lines crossing over it on the northern portion of

the property. As it is undisputed that, unless the existing pipe is fortified, railroad tracks will not

be able to be placed on the northern part of the property and the maintenance of an unfortified pipe

will interfere with railroad operations, there exists no genuine issue of fact.

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¶ 39 However, we do agree with plaintiff, as did the trial court, that questions about the

appropriate construction standards themselves remain at issue. We would also note that, although

plaintiff complains that defendant did not present specific plans reflecting imminent construction

or that would support defendant’s position that the current water main is not built to sufficient

standards, the trial court continued the case for a hearing on this very issue; namely, the court

acknowledged that a rail spur might not move as much traffic or weight as a railroad and, therefore,

a hearing must be held to determine the appropriate current railroad standards. That hearing would

necessarily require evidence as to whether defendant anticipates building rail tracks, rails spurs, or

both, as well as the current railroad standards for water mains intersecting with those railroad

elements. Thus, although the court granted defendant’s partial summary judgment motion, it

nevertheless reserved for hearing the issue of what reinforcements would be required for the

existing water main to satisfy current railroad standards.

¶ 40 In sum, defendant presented evidence that the existing water main is not constructed to

support additional rail lines, and plaintiff did not rebut this evidence. There is, therefore, no

genuine issue of material fact on the question whether the water main would interfere with

defendant’s future operations.

¶ 41 C. No Permanent Injunction was Entered; Remand Required

¶ 42 Plaintiff next argues that the court’s order constitutes a mandatory permanent injunction,

as it orders plaintiff to perform a specific, permanent action, i.e., reinforcement of the water main,

yet defendant did not present evidence to establish the elements necessary for an injunction.

Specifically, plaintiff argues that defendant did not show that it possessed a clear and ascertainable

right needing protection, irreparable harm in the absence of injunctive relief, or the lack of an

adequate remedy at law. See, e.g., Vaughn v. City of Carbondale, 2016 IL 119181, ¶ 44. Further,

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plaintiff emphasizes that no evidence was presented about imminent harm, nor as to why money

damages would not be appropriate. It notes that the absence of an adequate remedy at law is a

condition precedent to an injunction, and a remedy at law is only inadequate where “monetary

damages cannot adequately compensate the injury.” Hensley Construction, LLC v. Pulte Home

Corp., 399 Ill. App. 3d 184, 190 (2010). Plaintiff notes that defendant never requested a

mandatory permanent injunction, and no hearing on an injunction was held; thus, it contends that

the court lacked authority to issue such relief. As a permanent injunction is an extraordinary

remedy, issued here without evidentiary support or a hearing, plaintiff argues that the court’s order

must be vacated.

¶ 43 Defendant responds first that the court did not grant a permanent injunction. It contends

that it never sought a permanent injunction, nor did the court award one, because the relief

describes the nature and extent of the easement, should the court grant the condemnation.

Defendant notes that, in its answer and affirmative defense, it asserted that plaintiff’s eminent

domain rights were limited and prayed that any relief afforded to plaintiff be limited to the extent

that it does not interfere with defendant’s railroad operation. In addition, in its summary judgment

motion, defendant again argued that plaintiff’s right to condemn is limited, noting that the ICCTA

did not prevent any condemnation, but that the court should fashion a remedy so that the taking

will not interfere with [defendant’s] use of the property as a railroad by requiring that, if a judgment

for condemnation is entered, plaintiff’s water main meet minimum railroad standards. Defendant

argues that the court’s order does not constitute mandatory injunctive relief because it is not

mandatory. Rather, it is merely a condition of the easement plaintiff seeks:

“[Plaintiff] is free to dismiss its complaint for condemnation and relocate its water

main somewhere else. Defendant asserts that this relief is a limitation on the scope of any

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easement, not injunctive relief. All this order does is make the determination that any

easement granted to [plaintiff] will include a term [requiring] that the water main be built

to current railroad standards.”

¶ 44 Defendant concludes that the order should be read as a limitation of any easement granted

at the end of condemnation proceedings, not as requiring plaintiff to construct a new water main

as mandatory injunctive relief because it requested only that the water main be replaced to current

standards “if a judgment for condemnation is entered,” and, notably, that plaintiff “has no right to

replace the water main absent it acquiring an easement through condemnation.”

¶ 45 In addition, defendant asks that we find plaintiff’s argument forfeited. Again, it notes that

plaintiff never argued below that defendant did not establish the elements required for a permanent

injunction. The argument plaintiff raised in response to defendant’s requested relief on summary

judgment concerned only whether the water main interferes with the use of the property as a

railroad. Plaintiff did not argue that defendant was asking for a mandatory injunction or should be

denied such relief due to a failure of proof. As such, defendant urges, the argument is forfeited.

¶ 46 In reply, plaintiff asserts that forfeiture is a limitation on the parties, not the courts.

Further, it argues that no matter how the order is characterized, its nature is one of injunctive relief,

because it orders plaintiff to perform a specific, permanent action. Plaintiff claims that defendant’s

assertion that plaintiff could simply dismiss the condemnation lawsuit and relocate its water main

ignores the procedural posture of this case. “The trial court could have denied [plaintiff’s] request

for approval of condemnation on grounds of preemption, but it had no authority to allow

condemnation (which it did not clearly do in its order) and then—rather than determine just

compensation—fashion an unusual injunctive remedy.”

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¶ 47 We agree with defendant that it neither asked for an injunction, nor did the court grant one.

Defendant requested only conditional relief: if the court granted plaintiff an easement, then

plaintiff should be required as a condition of that easement to reinforce its water main. The court

verified this request at oral argument:

“COURT: So now let’s talk about the remedy that you request under the motion.

Okay. So you’re asking the Court to allow the condemnation but require that the easement

be contingent upon them encasing the water main pursuant to railroad guidelines.

COURT: Okay. Does the Court have such authority to craft such an order in a

DEFENSE COUNSEL: I think it does, Your Honor, and here’s why. The only

thing that the Court could do otherwise is enjoin [plaintiff] from taking the

condemnation—from doing the condemnation and ordering—I suppose you could enjoin

the condemnation and order them to remove the pipe, but we’re not saying that. It’s

[plaintiff’s] main water line. We’re saying that they have to install it in such a way that it

doesn’t interfere with our property, and it’s an important ruling because it affects the

damages. Our damages actually go down if we win this motion because then presumably

this line will be installed in such a way that it won’t have any effect on our property.”

(Emphases added.)

¶ 48 As noted above, the court was fully aware that its order concerned placing a limitation or

contingency upon any allowed condemnation. Generally, expressly granted easements may

contain limitations in scope and purpose. See, e.g., Duresa v. Commonwealth Edison Co., 348 Ill.

App. 3d 90, 101-02 (2004) (“If an easement is limited in scope or purpose, the property owner is

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entitled to prevent the burden of the easement from being increased.”). Defendant here also noted

for the court the alternative that plaintiff interestingly raises for the first time now—denying

condemnation—but plaintiff certainly never argued in response that, if the court found preemption

applied, it could only deny plaintiff condemnation, not enter the type of relief defendant was

seeking. For this reason, although plaintiff is correct that forfeiture is a limitation upon the parties

not the court, and we can overlook forfeiture when necessary to obtain a just result or to maintain

a sound and uniform body of precedent (Jill Knowles Enterprises, Inc. v. Dunkin, 2017 IL App

(2d) 160811, ¶ 22), honoring the forfeiture here would not be inappropriate. Plaintiff’s failure to

raise the injunctive-relief argument led the court to believe that plaintiff’s position was simply that

no preemption applied or that fact issues existed, not that, if the court found preemption, it must

simply deny condemnation and could not enter defendant’s requested relief. 5

¶ 49 In addition, plaintiff’s contention that the court should have outright denied condemnation

is an overly simplistic suggestion that would do little to advance resolution of the current issues.

The parties’ litigation apparently arose when defendant filed an inverse condemnation complaint,

which plaintiff agreed it could not defend. Plaintiff’s main water line runs beneath defendant’s

property, so it tried to purchase the easement. After the parties were unable to agree upon a fair

purchase price, plaintiff filed its condemnation action, defendant asserted that plaintiff’s eminent-

domain powers are limited, given the property’s railroad status, and defendant also filed a

counterclaim for trespass. Accordingly, the court was not being asked by any party on summary

judgment to outright deny condemnation or enter an injunction, and it was aware that (1) the parties

5 Plaintiff’s position in its reply brief that it did argue against an injunction “in substance,”

though not using the specific language concerning injunctive relief, is, at best, a stretch.

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had already been down the road of trying, unsuccessfully, to assess appropriate monetary remedies;

(2) defendant was requesting that condemnation be denied only to the extent that it would interfere

with railroad operations and that relief be contingent on fixing the water main; and (3) plaintiff

raised no argument that the court could not impose such relief, that the requested relief constituted

an improper injunction, or that, if the court found preemption, it should simply deny the

condemnation.

¶ 50 Nevertheless, although we disagree with plaintiff’s characterization of the order as

injunctive, we question whether the court, upon implicitly finding that the condemnation action as

pleaded was preempted, properly entered relief. While there is no dispute that the trial court had

jurisdiction to determine the preemption issue, which it implicitly resolved in defendant’s favor,

preemption suggests that the Board would be better positioned to decide relief, as opposed to the

court’s decision here to “fix” or “avoid” preemption by crafting relief that it deemed would result

in noninterference (or, perhaps, not-unreasonable interference), with railroad operations. As such,

after oral argument, we asked the parties to file supplemental briefs on whether the court’s

authority to order such relief was impacted by the preemption finding. Specifically, our order

stated:

“The trial court’s order granting partial summary judgment implicitly found that

the condemnation complaint as pleaded is preempted by the ICCTA. On the court’s own

motion, the parties are ordered to file supplemental briefs on the issue whether, once the

trial court found the condemnation complaint preempted, it thereafter had authority to enter

relief other than dismissing the complaint with prejudice, or whether further condemnation

proceedings or requests for relief must be brought before the Surface Transportation Board.

For purposes of the supplemental briefing, the parties should assume that the trial court had

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authority to make the preemption finding and should focus on the impact of that finding

with respect to its authority thereafter.”

¶ 51 The supplemental briefing is complete and, having considered the parties’ submissions, we

conclude that it is appropriate to remand this case for the trial court to order plaintiff to petition

the Board for declaratory relief. In City of Ozark, Arkansas v. Union Pac. R.R. Co., 843 F.3d 1167,

1171 (8th Cir. 2016), the court noted that, if there is no showing of unreasonable interference with

rail transportation, then a court may proceed to resolve the dispute applying relevant state law

condemnation principles. “However, if the court concludes that a proposed [ ] easement would

unreasonably interfere, then the [ICCTA’s] preemption provision grants the [Board] exclusive

jurisdiction, and the lawsuit or condemnation proceeding must be dismissed or enjoined for lack

of jurisdiction.” (Emphasis added) Id. at 1171. The court continued that, while the Board has

encouraged courts (as here) to resolve disputes based on applicable state law, if the dispute

involves “routine non-conflicting use,” in “many cases,” parties have petitioned the Board for an

order declaring its position on the preemption issue, with the agency sometimes conducting

declaratory order proceedings. Id. at 1172. The court cited a case where an appellate court had

remanded to a trial court, instructing it to “direct” the plaintiff railroad to petition the Board “ ‘to

resolve any issues concerning the [Board’s] jurisdiction.’ ” Id. (quoting Wichita Terminal Ass’n,

BNSF Ry. & Union Pac. R.R., 2015 WL 3875937, *2 (S.T.B. June 22, 2015)). Accordingly, in the

case before it, the court noted that there was evidence on summary judgment supporting the

railroad’s position that reopening a specific crossing would impede rail operations or pose undue

safety risks (i.e., triggering preemption), therefore:

“[o]n this record, it appears that an order reopening the crossing is within the

[Board’s] exclusive jurisdiction [citation]. But, as the [Board’s] decision in Wichita

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Terminal illustrates, if presented the preemption issue the agency could determine that any

order restoring this crossing is preempted, or that some accommodation of the parties’

interests may be compatible with sound rail transportation, in which case state law rights

and duties would come into play.” (Emphasis added.) City of Ozark, 843 F.3d at 1173.

The court then held it appropriate, if the plaintiff requested an opportunity to petition the Board

for a declaratory order resolving the issue of its exclusive jurisdiction, for the district court to defer

entry of a final preemption determination. Id.

¶ 52 Here, we agree that the record supports the trial court’s implicit preemption finding.

However, the court did not dismiss or enjoin the action; rather, it crafted relief to circumvent

preemption. As dismissing the complaint will not aid the controversy because plaintiff is seeking

an easement for a water main that already exists on defendant’s property (and we remain mindful

that defendant has a counterclaim for trespass), enjoining the action and seeking input from the

Board is the most appropriate approach. We do not find persuasive defendant’s arguments

suggesting that we should not refer this matter to the Board and, indeed, defendant ultimately

acknowledges that referring a case to the Board is an option meant to aid the court. Accordingly,

we reverse in part, vacate the remedy section of the court’s judgment, and remand the case with

directions for the trial court to stay proceedings and direct plaintiff to petition the Board to resolve

the parameters of its jurisdiction and any relief compatible with the parties’ interests.

¶ 53 III. CONCLUSION

¶ 54 For the reasons stated, the judgment of the circuit court of Lake County is reversed in part,

vacated in part, and remanded.

¶ 55 Reversed in part, vacated in part, and remanded.

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