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Padgett v. Surface Transportation Board

United States Court of Appeals, First Circuit

October 16, 2015

BROOK A. PADGETT; CRAIG DAUPHINAIS; JENNIFER THOMAS; BRUCE W. SPINNEY, AS THEY ARE MEMBERS OF THE BOARD OF SELECTMEN OF THE TOWN OF GRAFTON, Petitioners,
v.
SURFACE TRANSPORTATION BOARD; UNITED STATES, Respondents, GRAFTON & UPTON RAILROAD COMPANY, Intervenor

Page 104

PETITION FOR REVIEW OF A FINAL ORDER OF THE SURFACE TRANSPORTATION BOARD.

Ginny Sinkel Kremer, Grafton Town Counsel, with whom Blatman, Bobrowski & Mead, LLC, were on brief, for petitioners.

Charles H.P. Vance, Attorney, Surface Transportation Board, with whom William J. Baer, Assistant Attorney General, Robert B. Nicholson and Shana Marie Wallace, Attorneys, Department of Justice, Craig M. Keats, General Counsel, and Evelyn G. Kitay, Deputy General Counsel, were on brief, for respondents.

John A. Mavricos, with whom Jonah M. Temple, Christopher, Hays, Wojcik & Mavricos, LLP, James E. Howard, Linda J. Morgan, and Nossaman, LLP, were on brief, for intervenor.

David F. Hassett and Hassett & Donnelly, P.C., on brief for Congressman James P. McGovern, amicus curiae in support of petitioners.

Jonathan S. Springer and Springer Law Office, PLLC, on brief for Propane Gas Association of New England, amicus curiae in support of respondents and intervenor.

Before Torruella, Selya, and Dyk,[*] Circuit Judges.

OPINION

Page 105

DYK, Circuit Judge.

The Town of Grafton (the " Town" or " Grafton" ) petitions for judicial review a declaratory order of the Surface Transportation Board (" Board" ) finding that 49 U.S.C. § 10501(b) preempts state and local regulations with respect to Grafton & Upton Railroad Company's (" G& U" ) liquid petroleum gas transloading facility (the " facility" ). We deny the petition.

I.

As described in a companion case decided today, Del Grosso v. Surface Transportation Board, No. 15-1069, 804 F.3d 110, at *2 (1st Cir. Oct. 16, 2015), under the Interstate Commerce Commission Termination Act (" ICCTA" ), Pub. L. No. 104-88, 109 Stat. 803, " the Board has jurisdiction over transportation by rail carrier." 49 U.S.C. § 10501(a)(1); see also Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 46 (1st Cir. 2008). This jurisdiction is exclusive, and the ICCTA preempts " State law" governing " regulation of rail transportation" :

The jurisdiction of the Board over--(1) transportation by rail carriers . . . and facilities of such carriers; and ( 2 ) the construction, acquisition, operation . . . of . . . 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 ...

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