USCA1 Opinion
September 27, 1995
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 94-2095
NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, ET AL.,
Plaintiffs, Appellants,
v.
TOWN OF PLAISTOW,
Defendant, Appellee.
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ERRATA SHEET
The opinion of this court, issued on September 20, 1995, is
amended as follows:
On page 12, line 8 of first full paragraph, replace "making" with
"make".
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 94-2095
NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, ET AL.,
Plaintiffs, Appellants,
v.
TOWN OF PLAISTOW,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Mark I. Zarrow with whom Lian, Zarrow, Eynon & Shea was on briefs
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for appellants.
Melinda S. Gehris with whom Marjorie E. Lanier and Devine,
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Millimet & Branch, P.A. were on brief for appellee.
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September 20, 1995
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BOUDIN, Circuit Judge. This appeal presents a challenge
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to a town zoning ordinance and cease and desist order that
limit night-time access to and from a local trucking
terminal. Appellants are the terminal owner, the terminal
operator, various interstate motor carriers that regularly
use the terminal, and an association representing New
Hampshire truckers. Appellee is the Town of Plaistow, New
Hampshire, ("the town"), which adopted the restrictions at
issue. The terminal is located on a site partly in Plaistow
and partly in Newton, New Hampshire.
The trucking terminal began operation in September 1988.
It serves as a regional hub for various trucking companies
serving the New England area. Line haulers from around the
country drop off freight to be delivered in New England and
pick up freight whose destination lies outside New England.
Atlas Motor Express, Inc. ("Atlas"), the operator of the
terminal, maintains a fleet of trucks and provides short haul
service within the New England area. The terminal operates
24 hours a day, loading and unloading trailers.
Most trucks that use the Plaistow/Newton terminal reach
it from Interstate 495, a federal highway that runs through
Massachusetts and near the New Hampshire border. From
Interstate 495, trucks travel about 5 miles on Route 125 to
Kingston Road (both are New Hampshire state highways) and
then about half a mile to Garland Way, the terminal's private
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access road. Trucks must travel roughly 2000 feet along
Garland Way, the first portion of which passes through the
Plaistow residential zone. The terminal's facilities are all
located in Newton in an industrial zone bordering on
Plaistow.
Shortly after the terminal opened, numerous residents
from Plaistow who live along Kingston Road near Garland Way
complained about late night truck traffic to and from the
terminal. The town subsequently served a cease and desist
order on Atlas and the terminal owner, alleging a violation
of a Town of Plaistow zoning ordinance that reads in
pertinent part:
Any uses that may be obnoxious or injurious by
reason of the production or emission of odors,
dust, smoke, refuse matter, fumes, noise, vibration
or other similar conditions, or that are dangerous
to the comfort, peace, enjoyment, health or safety
of the community, whether it contributes to its
disturbance or annoyances are prohibited in all
districts.
The cease and desist order stated that "heavy commercial
trucking arriving at and leaving [the] site is emitting
odors, smoke, fumes, noise and vibration around the clock."
Despite the order, late night traffic to and from the
terminal continued.
The town then brought an action in New Hampshire
Superior Court seeking an injunction against the terminal and
an order imposing reasonable hours of operation. The state
court entered a preliminary injunction on February 28, 1989,
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placing a curfew on night-time access to and from the
terminal. After an evidentiary hearing, the court entered a
permanent injunction on July 7, 1989, limiting the terminal's
night-time traffic as follows:
6:00 a.m. to 9:00 p.m.: No restrictions.
9:00 p.m. to 11:00 p.m.: Two trucks may arrive or
depart.
11:00 p.m. to 5:00 a.m.: No trucks may arrive or
depart.
5:00 a.m. to 6:00 a.m.: Three trucks may arrive or
depart.
The New Hampshire Supreme Court denied the terminal's request
for appellate review.
On March 26, 1993, appellants filed a federal suit
against the town, alleging that the enforcement of the
Plaistow zoning ordinance was preempted by various federal
statutes and by the Commerce Clause. U.S. Const., Art. I,
8. On October 25, 1993, the district court granted the
town's motion to dismiss, for failure to state a claim, the
appellants' claim that the injunction was preempted by the
Noise Control Act of 1972, 42 U.S.C. 4901 et seq. New
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Hampshire Motor Transport Ass'n v. Town of Plaistow, 836 F.
_______________________________ ________________
Supp. 59 (D.N.H. 1993).
A three-day bench trial followed in August 1994.
Thereafter, the district court ruled that the injunction
limiting night-time access to and from the trucking terminal
was not preempted by two other federal statutes invoked by
the appellants--the Surface Transportation Assistance Act of
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1982, 49 U.S.C. 31101 et seq., and the Hazardous Materials
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Transportation Uniform Safety Act of 1990, 49 U.S.C. 5101
et seq.--and did not violate the Commerce Clause. This
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appeal followed. We agree with the district court's
determinations and affirm.
1. The town urges that the district court judgment be
upheld, without reaching the merits, on the ground that the
state court enforcement action is res judicata as to all of
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the appellants. The reach of a prior state court judgment is
determined by state law. Migra v. Warren City School
_____ ____________________
District Board of Education, 465 U.S. 75 (1984). Under New
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Hampshire law, we think that the prior judgment does not
foreclose the present suit, at least by appellants who were
not parties to the state court action.
The only defendants in the state court action were the
terminal owner and its operator. Non-parties can be bound
where they are in privity with parties to prior litigation,
and the privity concept is fairly elastic under New Hampshire
law, as elsewhere. But normally something more is required
for privity between the prior and present litigants than
merely a common interest in the outcome. Daigle v. City of
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Portsmouth, 534 A.2d 689, 694 (N.H. 1987). See also Gonzalez
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v. Banco Cent. Corp., 27 F.3d 751, 756-63 (1st Cir. 1994)
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(interpreting federal law).
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Here, there is no indication that the appellant
interstate carriers even knew of, let alone controlled, the
prior litigation. Although the town points out that the same
law firm represents all of the appellants, the interstate
carriers are not claimed to have controlled or managed the
original state court litigation from behind the scenes. Cf.
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Montana v. United States, 440 U.S. 147, 154 (1979); General
_______ _____________ _______
Foods v. Massachusetts Dept. of Pub. Health, 648 F.2d 784,
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789 (1st Cir. 1981). It is also plain that the interstate
carriers who use the terminal on a regular basis have a real
and distinct interest in nullifying the town's restriction.
Finally, we note that with the exception of the Commerce
Clause issue, the federal issues were apparently not
litigated in the state court. This would not necessarily
defeat a valid claim of res judicata, see, e.g., Stuhlreyer
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v. Armco, Inc., 12 F.3d 75, 77 (6th Cir. 1993), but it
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encourages us to resolve any doubts in favor of allowing the
carriers to sue. Since the merits must be reached on the
appeals by the interstate carriers, we need not consider the
stronger claim of foreclosure against the owner and operator
of the terminal.
2. Turning to the merits, our review of the district
court's preemption analyses is plenary, Ellenwood v. Exxon
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Shipping Co., 984 F.2d 1270, 1273 n.4 (1st Cir.), cert.
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denied, 113 S. Ct. 2987 (1993), and we address in turn each
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of the statutes relied on by appellants as a separate ground
for preemption. Among these, the most important is the
Surface Transportation Assistance Act of 1982 ("the Surface
Act"), as amended by the Tandem Truck Safety Act of 1984
("the Tandem Act"), now codified at 49 U.S.C. 31111 et seq.
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These statutes together establish uniform, national standards
for the maximum size and weight of trucks and trailers used
in interstate commerce.
As amended, the Surface Act forbids the states from
enacting or enforcing laws that prohibit trucks and trailers
of approved length and weight from travelling on the national
network, i.e., the system of interstate highways and other
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federally-funded primary routes designated by the Secretary
of Transportation. 49 U.S.C. 31111(e); 23 C.F.R. 658.5.
The Surface Act also prohibits states from denying approved
trucks and trailers "reasonable access" between the national
network and "terminals." 49 U.S.C. 31114. This provision,
which is at the heart of this case, reads as follows:
31114. Access to the Interstate System
(a) Prohibition on denying access. A State may not
enact or enforce a law denying to a commercial
motor vehicle subject to this subchapter or
subchapter I of this chapter reasonable access
between--
(1) the Dwight D. Eisenhower System of
Interstate and Defense Highways (except a
segment exempted under section 31111(f) or
31113(e) of this title) and other qualifying
Federal-aid Primary System highways designated
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by the Secretary of Transportation [i.e., the
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national network]; and
(2) terminals, facilities for food, fuel,
repairs, and rest, and points of loading and
unloading for household good carriers, motor
carriers of passengers, or any truck tractor-
semitrailer combination in which the
semitrailer has a length of not more than 28.5
feet and that generally operates as part of a
vehicle combination described in section
31111(c) of this title.
(b) Exception.--This section does not prevent a
State or local government from imposing reasonable
restrictions, based on safety considerations, on a
truck tractor-semitrailer combination in which the
semitrailer has a length of not more than 28.5 feet
and that generally operates as part of a vehicle
combination described in section 31111(c) of this
title.
The district court ruled that the local curfew did not
deny reasonable access to trucks wishing to use the Atlas
terminal. The terminal is located between five and six miles
from Interstate 495, the nearest juncture with the national
network. (Route 125 in Plaistow is not a part of the
national network. See 23 C.F.R. 658, app. A (New
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Hampshire.)) Given this distance, and Plaistow's legitimate
interest in curbing noise, odor and dust in its residential
areas, the district court found that the night-time
restrictions were a reasonable compromise.
On this appeal, the truckers first say that the
"reasonable access" provision limits state restrictions to
those based on safety. This is a straightforward issue of
statutory construction which, absent the "exception" clause
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quoted above, would easily be resolved in the town's favor.
After all, the main provision requires "reasonable access."
49 U.S.C. 31114(a). "Reasonable" is a comprehensive term,
United States v. Rodriguez-Morales, 929 F.2d 780, 785 (1st
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Cir. 1991), cert. denied, 502 U.S. 1030 (1992), and nothing
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in language or common-sense makes reasonableness turn solely
on safety considerations.
Context reenforces this view. The "[p]rohibition on
denying access," 49 U.S.C. 31114, extends far beyond the
operation of interstate highways or federally funded state
roads that are designated parts of the national network.
Local roads and other facilities are also covered by the
provision to the extent needed to assure reasonable access to
the national network. 23 C.F.R. 658.19. The guarantee of
reasonable access thus has a formidable reach, extending to
local regulatory measures that operate miles away from any
interstate or national network highway.
Many of these measures are designed to safeguard
interests other than safety. Consider, for example, a
restriction that routed heavy traffic on a detour of a few
miles to assure quiet in a hospital zone. It is difficult to
conceive that Congress meant to exclude such a concern from
the calculus used to determine whether a restriction
infringes on "reasonable access" to the federal highway
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system. In this instance, language and policy are as one in
opposing such a restrictive reading.
The sole argument for limiting the restrictions to
safety matters stems from the exception provision, now
codified as 49 U.S.C. 31114(b). As a matter of language,
this provision permits, but does not compel, a negative
inference that the only restrictions allowed under the main
provision are safety restrictions. Because subsections (a)
and (b) do not fit neatly together, it is difficult to be
absolutely certain of Congress' intent. But for several
reasons we reject the suggestion that subsection (b) narrows
by inference the concept of reasonableness in subsection (a).
First, the negative inference is flawed as a matter of
language. By its terms the safety exception in subsection
(b) is concerned not with safety limitations generally but
with restrictions on truck tractor-semitrailer combinations.
If the exception were taken to narrow the restrictions
permitted under the main "reasonable access" provision, then
arguably the only restrictions allowed would be safety
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restrictions directed to truck tractor semitrailer
combinations, an extremely odd result.
Second, the original 1982 Surface Act contained the
reasonable access language with no exception provision; so
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nothing in 1982 suggested that state access restrictions were
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limited to those based on safety.1 If Congress in 1984 had
intended to alter the reasonable access provision so as to
limit the states to safety restrictions, one might reasonably
expect some indication of this purpose at least in the
legislative history. Cf. Sierra Club v. Secretary of Army,
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820 F.2d 513, 522 (1st Cir. 1987). Congress' failure to
indicate any such purpose argues against appellants' reading.
Compare S. Rep. No. 505, 98th Cong., 2d Sess. 1-3 (1984).
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The truth is that the legislative history of the
exception provision is meager. See New York State Motor
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Truck Ass'n v. City of New York, 654 F. Supp. 1521, 1533
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(S.D. N.Y. 1987), aff'd 833 F.2d 430 (2d Cir. 1987) (quoting
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two rather uninformative sentences). Among other changes in
1984, Congress expanded somewhat the protected radius in
which truck tractor-semi-trailers could operate to include
their points of loading and unloading. Since this was a
concern to state officials, S. Rep. No. 505 at 1-3; 654 F.
Supp. at 1531, Congress evidently balanced this change by
adding subsection (b) as a counter-weight.
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1Section 412 of the Surface Act, 96 Stat. at 2160,
provided:
No State may enact or enforce any law denying
reasonable access to commercial motor vehicles
subject to this title between (1) the Interstate
and Defense Highway System and any other qualifying
Federal-aid Primary System highways as designated
by the Secretary, and (2) terminals, facilities for
food, fuel, repairs, and rest, and points of
loading and unloading for household goods carriers.
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We appreciate that, as appellants point out, three
district courts have made references to the "reasonable
access" provision as one directed to safety.2 But the state
restrictions with which those cases were concerned were
wholly different from and far more intrusive than the
Plaistow ordinance and order, including blanket limitations
on the distance vehicles could freely travel off the national
network and burdensome prior approval provisions for the use
of local roads. See 681 F. Supp. at 339-40; 654 F. Supp. at
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1529-30; 647 F. Supp. at 1484-88. Safety is obviously a
paramount reason for limiting access; but, in our view, it is
not the only reason permitted by Congress.
Having concluded that the district court correctly
construed the Surface Act, we have no occasion to review the
court's further, fact-specific decision that the Plaistow
restrictions in this case did permit reasonable access. The
appellants scarcely bother to argue the point; in a couple of
sentences, they simply assert that the district court
findings show that a truck terminal must operate 24 hours a
day. The opinion does not make such a finding, and we think
appellants' cursory argument waives the factual issue in this
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2A.B.F. Freight System, Inc. v. Suthard, 681 F. Supp.
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334, 341 (E.D. Va. 1988); New York State Motor Truck, 654 F.
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Supp. at 1539; Consolidated Freightways Corp. of Delaware v.
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Larson, 647 F. Supp. 1479, 1483-84 (M.D. Pa. 1986), rev'd on
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other grounds, 827 F.2d 916 (3d Cir. 1987), cert. denied, 484
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U.S. 1032 (1988).
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case. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.),
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cert. denied, 494 U.S. 1082 (1990).
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3. The truckers next contend that the curfew violates
the Hazardous Materials Transportation Uniform Safety Act of
1990 ("the Materials Act"), 49 U.S.C. 5101 et seq. The
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Materials Act establishes uniform, national rules for the
transportation of hazardous materials and, together with its
accompanying regulations, creates an elaborate scheme for the
designation, handling, packaging, labeling, and shipping of
hazardous materials. Like the Surface Act, the Materials Act
contains an express preemption clause, which reads in
relevant part as follows:
5125. Preemption
(a) General.--Except as provided in
subsections (b), (c), and (e) of this section and
unless authorized by another law of the United
States, a requirement of a State, political
subdivision of a State, or Indian tribe is
preempted if--
(1) complying with a requirement of the State,
political subdivision, or tribe and a
requirement of this chapter or a regulation
prescribed under this chapter is not possible;
or
(2) the requirement of the State, political
subdivision, or tribe, as applied or enforced,
is an obstacle to accomplishing and carrying
out this chapter or a regulation prescribed
under this chapter.
The truckers contend that the curfew is preempted by the
second provision of the general preemption clause, because it
interferes with "the federal speedy-transport mandate," N.H.
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Motor Transport Ass'n v. Flynn, 751 F.2d 43, 51 (1st Cir.
_____________________ _____
1984), codified at 49 C.F.R. 177.853(a): " [a]ll shipments
of hazardous materials shall be transported without
unnecessary delay, from and including the time of
commencement of the loading of the cargo until its final
discharge at destination." Much of the Plaistow freight is
classified as hazardous. Because the Plaistow curfew
necessarily entails a delay for hazardous materials, the
truckers say that it violates the Materials Act.
By using the word "unnecessary," the regulations
indicate that some delays are necessary and acceptable. See
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National Tank Truck Carriers, Inc. v. City of New York, 677
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F.2d 270, 275 (2d Cir. 1982) (construing prior version of
statute). Once again, appellants make little effort to show
that on the present record the specific curfew requirements
imposed by Plaistow create any risk to the drivers of the
trucks, other highway traffic, Plaistow or any other
community. The substance of the appellants' brief on appeal
is that any regime that creates a possibility of a 12-hour
delay in delivery ipso facto automatically imposes
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"unnecessary" delay.
A general, state-wide restriction is obviously more
vulnerable to attack both because its impact is likely to be
much greater and because it treats alike all situations
regardless of need or danger. See A.B.F. Freight System,
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681 F. Supp. at 345. Quite possibly a local restriction
might also unjustifiably interfere with hazardous shipment
movements, either standing alone or in combination with
restrictions in other communities. But the burden is upon
those who attack the restriction is show the impact. At
least on this appeal, appellants have not even attempted a
serious fact-specific showing.
This case is quite unlike National Tank Truck Carrier,
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Inc. v. Burke, 698 F.2d 559 (1st Cir. 1983), in which we
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affirmed a decision striking down Rhode Island's state-wide
curfew and permitting procedure for transporting certain
liquid gas on any Rhode Island roadway. By contrast, the
curfew at issue here involves one terminal, is tailored to
specific local conditions, and imposes no time restriction on
the delivery of hazardous materials in New Hampshire so long
as the Plaistow terminal is not used as a point of
interchange.
4. The truckers also challenge the district court's
dismissal of their claim under the Noise Control Act of 1972
("the Noise Act"), 42 U.S.C. 4901 et seq. 863 F. Supp. at
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67-68. That statute created a federal regulatory scheme to
set noise emission levels for motor carriers engaged in
interstate commerce. Because the curfew was imposed in part
to eliminate the noise caused by trucks, the truckers say
that it is preempted by the Noise Act.
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The federal noise regulations pertaining to motor
carriers do nothing more than set minimum and maximum decibel
levels and exhaust system and tire standards for trucking
equipment that may operate on public roadways. 40 C.F.R.
202.20-202.23. Accordingly, no state or town may set
different decibel levels for motor carriers operating within
its jurisdiction. But neither the Plaistow curfew order nor
the ordinance it enforces purports to regulate the decibel
levels, exhaust systems, or tires of individual trucks.
Rather, noise levels were one element of an equation that
also included "odors, dust, smoke, refuse matter, fumes . . .
and vibration" and that prompted a limitation on operating
hours for one specific site.
The Noise Act preemption clause underscores the limited
reach of that statute. It provides in relevant part as
follows:
[A]fter the effective date of a regulation under
this section applicable to noise emissions
resulting from the operation of any motor carrier
engaged in interstate commerce, no State or
political subdivision thereof may adopt or enforce
any standard applicable to the same operation of
such motor carrier, unless such standard is
identical to a standard applicable to noise
emissions resulting from such operation prescribed
by any regulation under this section.
42 U.S.C. 4917(c)(1). Admittedly, the statutory language
is general ("any standard applicable to the same operation");
but we think that it would stretch the words beyond their
ordinary meaning to strike down a local curfew order based on
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a range of concerns where federal law regulates only the
decibel levels of the equipment. The Noise Act was not
designed to remove all state and local control over noise; on
the contrary, the statute says that "primary responsibility
for control of noise rests with State and local governments.
. . ." 42 U.S.C. 4901(a)(3).
5. Finally, appellants argue that the Plaistow curfew
is preempted under the Commerce Clause itself even if it does
not offend any of the individual statutes relied upon by
appellants. Since Congress has enacted its own legislative
test for this case ("reasonable access"), one might ask
whether it is proper for the courts to resort separately to
the more general Commerce Clause rubrics. Cf. White v.
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Massachusetts Council of Construction Employers, Inc., 460
________________________________________________________
U.S. 204, 213 (1993). Be that as it may, applying the
general Commerce Clause tests does not alter the result.
Absent any statute at all, the courts ask--in a case not
involving discrimination against interstate commerce--whether
"the burden [on interstate commerce imposed by the local
restriction] is clearly excessive in relation to the putative
local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137,
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142 (1970). The district court found no violation in this
case. Even if we reviewed this fact-specific legal
determination de novo, cf. Bose Corp. v. Consumers Union of
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United States, Inc., 466 U.S. 485, 501 & n.17 (1984), our
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conclusion would be the same.
Starting with "burden," in this case a night-time curfew
prevents arrivals and departures at one terminal, at one
location in the state, during six late-night hours (from 11
p.m. to 5 a.m.) with lesser restrictions for three hours
(from 5 a.m. to 6 a.m. and from 9 p.m. to 11 p.m.). For 15
hours of the day (from 6 a.m. to 9 p.m.), there are no
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limitations. The curfew does disadvantage this terminal vis-
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a-vis other terminals not so restricted, and somewhat impairs
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its profits; but the magnitude of the disadvantage is not
easy to isolate.
The evidence showed that customers often want early
morning delivery, and in some cases the curfew does limit the
ability of the Plaistow/Newton terminal to make such
deliveries. On the other hand, there is no indication that
customers cannot be served from other terminals or that the
flow of commerce into and out of New Hampshire is seriously
affected. No state wide restriction is involved, compare
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Kassel v. Consolidated Freightways Corp., 450 U.S. 662
______ ________________________________
(1981), nor is a major artery of commerce severely
constricted, compare Southern Pacific Co. v. Arizona, 325
_______ _____________________ _______
U.S. 761 (1945).
On the other side of the scale, the impact on local
residents is not some remote or conjectural specter. The
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curfew order was obtained only because of local experience
with the terminal; and residents testified at trial about the
effect on their lives of unrestricted deliveries. The curfew
is akin to zoning and traffic restrictions traditionally
applied on a local level, cf. Christensen v. Yolo Cty. Bd. of
___ ___________ ________________
Supervisors, 995 F.2d 161, 166 (9th Cir. 1993); Interstate
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Towing Ass'n, Inc. v. Cincinnati, 6 F.3d 1154, 1163-65 (6th
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Cir. 1993), and there is no regulation by federal authorities
that provides substitute protection.
In sum, the burden of the curfew on interstate commerce
has not been shown to be excessive in relation to the
benefits. Congress has great latitude to order preemption,
and calibrate it with precision, based on a legislative
judgment that local regulation threatens interstate commerce.
The dormant Commerce Clause, by contrast, is a fairly blunt
instrument; and absent discrimination, courts may reasonably
insist on a fairly clear showing of undue burden before
holding unconstitutional a traditional example of local
regulation. See Raymond Motor Transportation, Inc. v. Rice,
___ ___________________________________ ____
434 U.S. 429, 443-44 (1978). That showing has not been made
on the record before us.
Affirmed.
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