18-188-cv Vt. Ry. v. Town of Shelburne
In the United States Court of Appeals For the Second Circuit
August Term, 2018
Argued: November 8, 2018 Decided: March 7, 2019
Docket No. 18‐188‐cv
VERMONT RAILWAY, INC.,
Plaintiff‐Counter‐Defendant ‐ Appellee,
V.
TOWN OF SHELBURNE,
Defendant‐Counter‐Claimant ‐ Appellant,
JOE COLANGELO, in his capacity as Town Manager and Zoning Enforcement Officer,
Defendant.
Appeal from the United States District Court for the District of Vermont No. 2:16‐cv‐16 – William K. Sessions, Judge.
Before: RAGGI, HALL, and SULLIVAN, Circuit Judges.
Appeal from a permanent injunction barring Town of Shelburne from enforcing an ordinance regulating hazardous substances and certain zoning bylaws against Vermont Railway in connection with Railway’s road salt transloading facility. The Town argues on appeal that the ordinance falls within the “police powers” exception to preemption by the Interstate Commerce Commission Termination Act (“ICCTA”). Because the ordinance imposes on rail activity restrictions that do not meaningfully protect public health and safety, it does not meet the “police powers” exception and is therefore preempted by the ICCTA. To the extent the Town seeks to challenge the District Court’s ruling that the Railway’s activities do not constitute “transportation by rail carrier,” that challenge is dismissed for lack of jurisdiction. Judge Sullivan dissents in part in a separate opinion.
AFFIRMED.
CLAUDINE C. SAFAR, Monaghan Safar Ducham PLLC, Burlington, Vermont, for Defendant‐Counter‐ Claimant ‐ Appellant.
JENNIFER E. MCDONALD (Marc B. Heath, Evan J. O’Brien, on the brief), Downs Rachlin Martin PLLC, Burlington, Vermont, for Plaintiff‐Counter‐ Defendant ‐ Appellee.
HALL, Circuit Judge:
This is an appeal from a judgment entered on January 2, 2018, in the United
States District Court for the District of Vermont (Sessions, J.), granting a permanent
injunction barring the Town of Shelburne, Vermont (“the Town”) from enforcing 2 against Vermont Railway, Inc. (“the Railway”) the Town’s “Ordinance Regulating
the Storage, Handling and Distribution of Hazardous Substances” (“the
Ordinance”) and §§ 1950.1 and 1950.2(A) of the Performance Standards section of
the Town’s zoning bylaws. The litigation arises out of the Railway’s
development of property for use as a road salt transloading facility in the Town.
When the Town enacted the Ordinance and then attempted to enforce it against
the Railway, the Railway sought injunctive relief in the District Court.
Determining that these regulations, as applied to the Railway, are preempted by
the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. §§
10101 et seq., the District Court granted a permanent injunction. This appeal
followed.
The issue on appeal is whether the Ordinance falls within an exception to
ICCTA preemption that allows the continued application of state and local
regulations affecting rail transportation if the regulations constitute a valid
exercise of the local body’s police powers. The District Court ruled that the
Ordinance is not a valid exercise of the Town’s police powers because it
discriminates against the Railway and unreasonably burdens rail transportation
by placing significant restrictions on the movement of rail cars and rail
3 commodities, which restrictions do not meaningfully protect public health and
safety. We identify no error in either the District Court’s legal analysis of the
Town’s police powers or its factual findings underlying that analysis, and we thus
affirm the judgment of the District Court.
I.
In late 2015, the Railway purchased a parcel of land along its main line in the
Town. The Railway intended “to develop a state‐of‐the‐art, rail‐to‐truck
transloading facility . . . intended for the handling of bulk commodities, primarily
road salt, shipped to Vermont by rail and used for deicing winter roads”
(“Facility”). Appellee Br. 1–2. The Railway intended to stockpile sodium
chloride (road salt) at the Facility over the summer months for distribution as
needed during the winter.
When the Town attempted to enforce a pre‐construction permit requirement
against the Railway, the Railway sought declaratory and injunctive relief in the
District Court, arguing that the ICCTA preempts the Town’s local zoning
regulations as applied to the Railway. Following a six‐day evidentiary hearing,
on June 29, 2016, the District Court entered a declaratory order that the ICCTA
preempts the Town’s pre‐construction permit requirement, and enjoined the
4 Town from “enforcing any regulation that prevents the Railway from constructing
its proposed facility.” J. App. 316. That June 2016 declaratory order
determined, as part of the District Court’s preemption ruling, that the construction
and operations of the Railway’s planned salt transloading facility constitute
“transportation by rail carrier” as that term is used in the ICCTA. J. App. 332–34.
The District Court “reserve[d] judgment on the question of whether the ICCTA
preempts other zoning regulations derived from the Town’s police powers that
relate to the operation of the Railway’s proposed facility” and directed the Town
to “indicate[] precisely which zoning regulations it intends to enforce.” J. App.
317. The District Court explained that its future consideration of identified
regulations would not require it to revisit the “transportation by rail carrier”
ruling; rather, the court would merely evaluate whether each such regulation met
the police powers exception to ICCTA preemption. J. App. 317, 343–44. The
Town moved for reconsideration of the June 2016 order, and the District Court
denied that motion in June 2017.
On August 21, 2017, having received input from both parties, the court entered
partial final judgment on its June 2016 ruling that the Railway’s activities
constitute transportation by rail carrier and the ICCTA “preempts the
5 Town[’s] . . . pre‐construction permit requirement and related zoning regulations
as to the [Facility].” Sp. App. 7–8. The Town did not appeal from that partial
final judgment. Indeed, the Town had specifically indicated it did “not oppose
the entry” of partial final judgment, while offering suggested language that
modified the Railway’s proposed partial final judgment order by more closely
mirroring the District Court’s June 29 declaratory order. Dkt. No. 193, 2:16‐cv‐
16.
A few weeks earlier, on August 8, 2017, the Town had enacted the Ordinance
at issue in this appeal, which the Town identified “as falling under the post‐
construction police powers it intend[ed] to enforce against the Railway, as
requested by the Court’s June 29, 2016 Order.”1 Sp. App. 7. At that time, the
Facility “had been constructed and was fully operational.” Appellee Br. 3; accord
1 The Ordinance prohibits the storage of substances above certain quantities within 250 meters of a school or waterway: 550 tons of sodium chloride, calcium chloride, magnesium chloride, or potassium chloride; 2,000 gallons on hydraulic oil, diesel fuel, unleaded fuel, heating oil, propane, motor oil, natural gas, or petroleum crude oil; and 34,500 gallons of ammonia, chlorine, or hydrogen fluoride. The Facility is within 250 meters of the LaPlatte River. The Facility holds 80,000 tons of road salt. The only other road salt storage in the Town is the Town’s, which holds 550 tons. Under the Ordinance, storage facilities may be inspected by designated Town officials, and “Health Orders” may be issued to require compliance. Sp. App. 10. A fine of $800 a day would be imposed for violations, and in the event an enforcement action were brought by the Town, the fines would go up to $10,000 a day. The violator could also be responsible for any costs incurred by the Town in monitoring the site.
6 Sp. App. 6.2
About three weeks later, on September 1, 2017, the Railway moved for a
preliminary injunction seeking to restrain enforcement of the Ordinance,
following which the District Court held yet another evidentiary hearing. In an
Opinion and Order issued on December 7, 2017, the District Court ruled that the
Ordinance was also preempted by the ICCTA, and permanently enjoined the
Town from enforcing it against the Railway.3 The District Court reasoned that
the Ordinance did not meet the police powers exception to preemption because (1)
“the timing of its enactment, the focus and thresholds included in it, and the severe
penalties permitted by it all point toward discrimination against the Railway” and
(2) “the Ordinance would place significant restrictions on when and where rail
cars move and when and where rail commodities are shipped and stored,” which
2 The Railway was required to obtain state permits before beginning construction. Pursuant to the Multi‐Sector General Permit (“MSGP”), the Railway prepared a Storm Water Pollution Prevention Plan (“SWPP”) and applied to the Vermont Department of Environmental Conservation for an authorization to discharge, which was granted and from which the Town did not appeal. The Facility is subject to ongoing monitoring of discharge by the State. This involves upstream and downstream monitoring of the LaPlatte River. When an increase in sodium chloride was detected in the river, it was determined the increase was due to spillage during the transloading process and improvements were made to the Facility to prevent such spillage. 3 The District Court also held that §§ 1950.1 and 1950.2(A) of the Town’s zoning bylaws were preempted because they were duplicative of the Ordinance. The Town does not address the District Court’s ruling as to the zoning bylaws in its principal brief on appeal, and any challenge to that ruling is therefore waived. 7 restrictions “unreasonably burden rail transportation and do not meaningfully
protect public health and safety.” Sp. App. 16–17. The District Court entered
final judgment on that order on January 2, 2018.
II.
As a preliminary matter, we do not have jurisdiction to revisit the District
Court’s earlier ruling that the Railway’s activities in the Town constitute
“transportation by rail carrier” under the ICCTA. That is because no appeal was
taken from the August 21, 2017 final judgment reflecting that ruling. The Town
appealed solely from the District Court’s December 7, 2017 order and the January
2, 2018 final judgment on that order. The Town’s Notice of Appeal does not
identify or reference any other decision or order of the District Court. See Fed. R.
App. P. 3(c)(1)(B) (requiring Notice of Appeal to “designate the judgment, order,
or part thereof being appealed”); see also New Phone Co. v. City of New York, 498 F.3d
127, 131 (2d Cir. 2007) (our appellate jurisdiction “depends on whether the intent
to appeal from [a] decision is clear on the face of, or can be inferred from, the
notice[] of appeal”).
The December 7, 2017 order does not revisit the transportation by rail carrier
holdings from June 29, 2016 and June 28, 2017, discussing those rulings only to
8 provide the procedural background of the case and explain that they were now
law of the case and no longer at issue: “Because the Court has already determined
that the activities conducted at the facility constitute transportation by a rail carrier
and are thus subject to the ICCTA’s preemption clause, the Court now needs only
to determine whether the [] Ordinance falls with the scope of ICCTA preemption.”
Sp. App. 15; see Musacchio v. United States, 136 S. Ct. 709, 716 (2016) (holding that,
although law‐of‐the‐case doctrine does not bind an appellate court, prior rulings
by a district court are presumed to govern later district court proceedings in same
case). Accordingly, we cannot infer from a Notice of Appeal that makes no
mention of the District Court’s June 29, 2016 or June 28, 2017 orders, much less its
August 21, 2017 partial final judgment, that the Town intended to appeal from the
District Court’s transportation‐by‐rail‐carrier ruling made therein. See Shrader v.
CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir. 1995) (holding that we did not have
jurisdiction to consider an order not mentioned in the notice of appeal). We lack
“authority to waive the jurisdictional requirements of Rule 3(c)(1)(B), and our
jurisdiction is limited by the wording of the notice.” Kovaco v. Rockbestos‐
Surprenant Cable Corp., 834 F.3d 128, 135 (2d Cir. 2016) (internal quotation marks
and alterations omitted).
9 Even if we were to assume that the earlier orders were somehow incorporated
in the Town’s Notice of Appeal of both the December 7, 2017 order and January 2,
2018 judgment, the Town would be barred from attempting to relitigate a question
that was already definitively determined through the entry of the August 21, 2017
partial final judgment that it failed timely to appeal. See Bowles v. Russell, 551 U.S.
205, 210 (2007) (holding that failure to timely appeal deprives an appellate court
of jurisdiction); Cuoco v. Moritsugu, 222 F.3d 99, 110 (2d Cir. 2000) (noting that a
district court’s entry of partial final judgment is immediately appealable); Fed. R.
App. P. 4 (“the notice of appeal . . . must be filed with the district clerk within 30
days after entry of the judgment or order appealed from.”); Andrew S. Pollis, Civil
Rule 54(b): Seventy‐Five and Ready for Retirement, 65 FLA. L. REV. 711, 722–23 (2013)
(noting the “severe” consequence of failing timely to appeal a Rule 54(b) judgment:
“given the time limit for appealing,” a litigant who “wait[s] until the entire
litigation end[s] to challenge the order [finds that he] forfeited his right to
review”); cf. Window World of Chicagoland, LLC v. Window World, Inc., 811 F.3d 900,
903 (7th Cir. 2016) (confronting similar issue and holding that, under both
collateral estoppel and law of the case, ruling that “is immediately appealable” is
barred from later appeal when litigant “gave up his chance to have the judgment
10 in [opponent’s] favor set aside” at first opportunity). That the Town specifically
indicated it did not oppose entry of a partial final judgment indicates at the very
least the Town was aware an appealable judgment was being entered. When it
did not timely appeal the partial final judgment of August 21, 2017, the Town
forfeited its right to appeal the transportation‐by‐rail‐carrier ruling here.4
The sole question before this Court on appeal, therefore, is whether the
Ordinance meets the police powers exception to preemption by the ICCTA. We
have jurisdiction under 28 U.S.C. § 1291 to review the District Court’s order and
final judgment on this issue.
III.
We review the application of preemption principles de novo. Marentette v.
Abbott Laboratories, Inc., 886 F.3d 112, 116 (2d Cir. 2018). We review factual
findings for clear error. Church & Dwight Co. v. SPD Swiss Precision Diagnostics,
GmBH, 843 F.3d 48, 62 (2d Cir. 2016).
IV.
The only argument advanced by the Town is that “the Ordinance constitutes a
4 Even if the Town could surmount this jurisdictional obstacle, however, we would reject any challenge to the ICCTA’s application to the Railway’s facility for the reasons ably stated by the District Court. 11 valid exercise of the Town’s traditional municipal police powers and, therefore, is
not preempted by the ICCTA.” Appellant Br. 13. The District Court correctly
determined the Ordinance is not a valid exercise of the Town’s police powers, and
we therefore affirm the District Court’s grant of a permanent injunction barring
the Town from enforcing the Ordinance against the Railway.
The Supremacy Clause of the United States Constitution provides that federal
law “shall be the supreme Law of the Land[,] . . . any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2.
Federal preemption may “occur where compliance with both federal and state
regulations is a physical impossibility, or where state law impedes the execution
of the full purposes and objectives of Congress.” Entergy Nuclear Vt. Yankee, LLC
v. Shumlin, 733 F.3d 393, 409 (2d Cir. 2013) (internal citations omitted); see also
Greater N.Y. Metro. Food Council, Inc. v. Giuliani, 195 F.3d 100, 104–05 (2d Cir. 1999)
(“Under the doctrine of preemption, . . . any state or municipal law that is
inconsistent with federal law is without effect.”) (abrogated on other grounds).
The “most obvious” form of preemption, however, occurs “where Congress
expressly states that it is preempting state authority.” County of Suffolk v. Long
Island Lighting Co., 728 F.2d 52, 57 (2d Cir. 1984).
12 The ICCTA contains such an express preemption clause. It vests the Surface
Transportation Board with exclusive jurisdiction over “(1) transportation by rail
carriers,” and “(2) the construction, acquisition, operation, abandonment, or
discontinuance of . . . tracks, or facilities,” and states that “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.” 49 U.S.C. § 10501(b).
We have recognized, however, that:
not all state and local regulations are preempted by the [ICCTA]; local bodies retain certain police powers which protect public health and safety. . . . [S]tates and towns may exercise traditional police powers over the development of railroad property, at least to the extent that the regulations protect public health and safety, are settled and defined, can be obeyed with reasonable certainty, entail no extended or open‐ended delays, and can be approved (or rejected) without the exercise of discretion on subjective questions.
Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 643 (2d Cir. 2015) (internal
quotation marks omitted). In Green Mountain, we held that “generally applicable,
non‐discriminatory regulations and permit requirements,” such as “[e]lectrical,
plumbing and fire codes, [and] direct environmental regulations enacted for the
protection of the public health and safety,” were the kind of regulation that could
withstand ICCTA preemption. Id.
Under Green Mountain, the threshold question in our inquiry into whether a
13 given local regulation is a permissible exercise of the governing body’s police
power, such that it is not subject to preemption under the ICCTA, is whether that
regulation “protect[s] public health and safety.” Id. The District Court’s finding
that the Ordinance does not “achieve[] any meaningful health or safety goals” is
amply supported by the record. Sp. App. 25; see Sp. App. 22–24. That is, the
Town’s experts knew of no other legislation that classified road salt as a hazardous
material; the Town’s own salt storage shed did not have the environmental
monitoring mechanisms that were in place at the Facility; the Ordinance outlaws
spillage of road salt as may happen at the Facility, but permits the spreading of
road salt for the purpose of de‐icing motorways, driveways, and sidewalks; and
the Town itself spreads road salt throughout the winter months. Indeed, the
Town’s own expert admitted that the mere storage of road salt causes no
environmental impact. Given this evidence, we conclude that the District Court
was not clearly erroneous in finding that the Ordinance failed to promote public
health and safety. Applying this factual finding in our own de novo review, we
conclude that the Town’s assertion of a police powers exception to preemption
fails as a matter of law.5 See Green Mountain, 404 F.3d at 643.
5 The Town does not argue that the District Court’s permanent injunction analysis
14 V.
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
was erroneous, and, having determined that the District Court’s preemption analysis is sound, we do not separately analyze the District Court’s imposition of a permanent injunction. 15 SULLIVAN, Circuit Judge, concurring in part and dissenting in part:
I agree with my colleagues that the Town’s ordinance does not fall within
the police powers exception to the ICCTA, and so I concur in Parts I, III, and IV of
the majority opinion. I dissent merely with respect to its holding in Part II that we
lack jurisdiction to review the district court’s conclusion that the Railway’s
activities constitute “transportation by [a] rail carrier[].” 49 U.S.C. § 10501(b)(1).
I. BACKGROUND
The procedural quirks of this case bear noting. On January 26, 2016, the
Railway filed a complaint, seeking both a declaration that the Town’s pre‐
construction permitting ordinance was preempted by the ICCTA and injunctive
relief barring enforcement of the ordinance. On June 29, 2016, the district court
entered an order finding that (1) “the construction and operation of the Railway’s
planned intermodal facility constitute[d] ‘transportation by a rail carrier,’” and (2)
the ICCTA preempted the Town’s pre‐construction permitting regime.
Accordingly, the district court “enjoin[ed] the Town from enforcing any regulation
that prevents the Railway from constructing its proposed facility.” Although the
Railway completed construction of its facility in June 2017, the district court did
not enter partial final judgment on the June 29, 2016 order until August 21, 2017.
Meanwhile, on August 8, 2017, the Town enacted a new ordinance that prohibited the storage of certain quantities of sodium and other chemicals within
250 meters of a school or waterway (the “Storage Ordinance”). On September 1,
2017, the Railway moved for a preliminary injunction, seeking to bar the Storage
Ordinance’s enforcement. The district court held a preliminary injunction hearing
on September 25, 2017, but did not rule on the motion at that time. In the interim,
the Court issued a TRO enjoining enforcement of the Storage Ordinance pending
the preliminary injunction ruling. After resuming the hearing on November 1 and
2, 2017, the district court issued its December 7, 2017 order, which effectively
granted (1) a preliminary injunction to the Railway, (2) judgment for the Railway,
and (3) a permanent injunction as the remedy for the judgment.
II. DISCUSSION
A.
The majority first asserts that we lack jurisdiction to review whether the
Railway’s activities constitute transportation by a rail carrier because the Town’s
notice of appeal only refers to the December 7, 2017 order. According to the
majority, that order discussed the district court’s prior transportation‐by‐rail‐
carrier ruling “only to provide the procedural background of the case.” This
misreads both the relevant legal inquiry and the district court’s order.
2 A party seeking a preliminary injunction must establish, among other
things, that it “is likely to succeed on the merits,” Citigroup Glob. Markets, Inc. v.
VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 34 (2d Cir. 2010) (quoting
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008)), and the
district court’s December 7, 2017 order clearly concluded that the Railway was
assured of such success under the ICCTA. But whether implicit or explicit, such a
determination turned on a finding that the Railway’s activities were covered by
the ICCTA in the first place. Specifically, the ICCTA provides that “[t]he
jurisdiction of the [Surface Transportation] Board over transportation by rail
carrier . . . is exclusive” and that “the remedies provided under this part with
respect to the regulation of rail transportation are exclusive and preempt the
remedies provided under Federal and State law.” 49 U.S.C. § 10501(b). Thus, in
order for a rail carrier to succeed on its claim that the ICCTA preempts a state or
local ordinance, the carrier must first show that its activities constitute
“transportation by [a] rail carrier[]” such that they are subject to the ICCTA. See,
e.g., Island Park, LLC v. CSX Transp., 559 F.3d 96, 103 (2d Cir. 2009); see also New
York Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 247 (3d Cir. 2007) (“The
first question to which we turn is whether the activities at issue are ‘transportation
3 by rail carrier,’ and thus subject to the [ICCTA].”).
In granting judgment and a permanent injunction on the basis of ICCTA
preemption, the district court’s December 7, 2017 order necessarily had to find that
the Railway’s activities constituted “transportation by [a] rail carrier[].” Thus, the
district court’s statement that it had “already determined [in its June 29, 2016
order] that the activities conducted at the facility constitute transportation by a rail
carrier” merely reflects that the district court was incorporating by reference its
previous legal conclusion into its December 7, 2017 order. In that regard, this case
is very different from Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d Cir. 1995), in
which we held that we lacked jurisdiction to review a prior order – not referenced
in the notice of appeal – when that prior order disposed of a different claim and
was only mentioned in the operative order to provide the procedural history of
the case. Id. at 256. Here, by contrast, the finding that the Railway’s activities
constituted transportation by a rail carrier was a necessary first step to exercising
jurisdiction and enjoining enforcement of the Storage Ordinance. The fact that the
Town did not appeal the June 29, 2016 order – and its finding that the Railway’s
activities constituted transportation by a rail carrier under the ICCTA – cannot
insulate the December 7 order’s implicit adoption of that finding from appellate
4 review, any more than converting a preliminary injunction to a permanent
injunction bars review of any reasoning adopted, but not articulated anew, by the
order granting a permanent injunction. Cf. All. for Open Soc’y Int’l, Inc. v. United
States Agency for Int’l Dev., No. 15‐974 (L), 2018 WL 6683523 (2d Cir. Dec. 20, 2018)
(affirming permanent injunction where the underlying district court order
converting the preliminary injunction to a permanent injunction merely reiterated
its previous findings as to irreparable harm and success on the merits).
B.
Equally unpersuasive is the majority’s alternative conclusion that, even if
the December 7, 2017 order adequately ruled on the transportation‐by‐rail‐carrier
question, the Town was nonetheless “barred from attempting to relitigate [this]
question” at all because it “failed timely to appeal” the August 21, 2017 partial
final judgment.
The August 21, 2017 partial final judgment relied on by the majority
“finalized” an injunction that barred the Town from enforcing a different, pre‐
construction ordinance. That ordinance required the Railway to submit its
construction plans to the Town for approval before commencing construction on
its contemplated storage facility. But by the time the partial final order was issued
5 on August 21, 2017, the storage facility was already constructed. Therefore, an
appeal of the partial final judgment would have been pointless, since even vacatur
of the injunction would not have enabled the Town to enforce its pre‐construction
ordinance against a facility that was already built. Put differently, by the time the
storage facility was completed in June 2017, there was no justiciable controversy
between the Town and the Railway that could be remedied by appellate review,
as “it is axiomatic that there must be a continuing controversy capable of redress
by this Court.” Haley v. Pataki, 60 F.3d 137, 141 (2d Cir. 1995). Indeed, if the Town
had attempted to appeal the August 21, 2017 partial final judgment, I expect we
would have promptly dismissed it on the grounds of mootness. See, e.g., Honig v.
Students of the Cal. Sch. for the Blind, 471 U.S. 148, 149 (1985) (per curiam) (holding
appeal moot when tests ordered by preliminary injunction had already been
carried out). Remarkably, the majority chastises the Town for not bringing such a
frivolous appeal – solely to preserve its ability to challenge the district court’s
transportation‐by‐rail‐carrier ruling in the event of a possible future appeal of a
yet‐to‐be‐issued injunction on a different ordinance. I am aware of no precedent
that requires such wasteful litigation, and I fear that such an illogical ruling would
spawn appeals of virtually every preliminary injunction in this Circuit simply
6 because risk‐averse litigants would wish to avoid accusations of waiver in the
event of future unfavorable rulings by the district court. For these reasons, I
dissent from the conclusion that, having failed to appeal the partial final judgment,
the Town forfeited its right to appeal the district court’s transportation‐by‐rail‐
carrier ruling.
C.
What the majority conclusorily acknowledges in footnote four – that it
would affirm the district court’s transportation‐by‐rail‐carrier ruling anyway – is
correct, and the ground on which I would affirm the district court’s finding.
The Railway’s facility is a transloading center designed “for unloading bulk
salt arriving by rail for local distribution by truck and for temporary storage in
sheds pending distribution.” In other words, as the majority puts it, the facility
“stockpile[s] sodium chloride . . . over the summer months for distribution as
needed during the winter.” The ICCTA defines “transportation” to include “a
locomotive, car, vehicle, vessel, warehouse . . . yard, property, facility,
instrumentality, or equipment of any kind related to the movement of passengers
or property, or both, by rail.” 49 U.S.C. § 10102(9). In accord with the statute’s
definition, this Circuit’s precedent leaves no doubt that a transloading facility used
7 for the storage of property constitutes “transportation.” See Green Mountain R.R.
Corp. v. Vermont, 404 F.3d 638, 642 (2d Cir. 2005) (“Certainly, the plain language
[of the ICCTA] grants the [STB] wide authority over the transloading and storage
facilities.”). Accordingly, the Railway’s road salt warehouse falls under the
definition of “transportation” covered by the ICCTA.
Nor can there be any dispute that the Railway qualifies as a “rail carrier”
under the statute. The ICCTA defines “rail carrier” to mean “a person providing
common carrier railroad transportation for compensation . . . .” 49 U.S.C.
§ 10102(5). One distinctive feature of a common carrier is that it “undertakes to
carry for all people indifferently, and hence is regarded in some respects as a
public servant,” N.Y. Susquehanna, 500 F.3d at 250, whereas a private carrier “offers
services to limited customers under limited circumstances and assumes no
obligation to serve the public at large,” id. at 251. The Railway publicly advertised
the rate it charged for intermodal shipments, “which indicates that it holds itself
out to the public” as able and willing to ship goods for all comers. Id.
Additionally, although the Town argued that the Railway only built the facility to
aid in the transportation of one commodity – salt – evidence in the record suggests
that in fact the Railway planned to “occasionally transport other goods, such as
8 lumber . . . [and] windmill blades.” Such evidence works against the Town’s
contention that the facility was only built to store road salt provided by Cargill.
Accordingly, the Railway’s activities plainly constitute “transportation by [a] rail
carrier[]” under the ICCTA, and I would affirm the district court in finding so.
III. CONCLUSION
Although I disagree with the majority’s waiver finding in Part II, this is
ultimately an intramural dispute since we all agree that the Storage Ordinance
does not fall within the police powers exception to ICCTA preemption.
Accordingly, I would affirm the judgment of the district court in all respects,
including that the Railway’s activities constitute transportation by a rail carrier.