Norfolk Southern Railway Company-Petition for Declaratory Order, 74739-74740 [2012-30277]

Agencies

• Surface Transportation Board
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 77, Number 242 (Monday, December 17, 2012)]
[Notices]
[Pages 74739-74740]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30277]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Docket No. FD 35701]


Norfolk Southern Railway Company--Petition for Declaratory Order

    Norfolk Southern Railway Company (NS) filed a petition for a 
declaratory order on November 28, 2012, pertaining to 18 inverse 
condemnation lawsuits filed in the Circuit Court of Roanoke County, 
Va., against NS and Appalachian Power Company (APCO). In its petition, 
NS requests that the Board find that under 49 U.S.C. 10501(b), the 
claims of nuisance and inverse condemnation asserted against NS in 
those suits are preempted by federal law. For the reasons discussed 
below, a declaratory order proceeding will be instituted to consider 
the issues raised in the petition.

Background

    According to the petition, between 1890 and 1900, NS constructed 
and began operation on a rail line in Roanoke County, Va., which has 
been an active line since that time. The plaintiffs in the state 
lawsuits are homeowners who live in a neighborhood near the NS line. 
According to NS, operations on its rail line predate the development of 
the neighborhood. APCO's property is adjacent to the rail line and lies 
between plaintiffs' properties and NS's rail line.
    The petition alleges that, beginning in 2009, APCO began removing 
trees and erecting electrical transmission towers and lines on its 
land. Thereafter, plaintiffs filed their state court lawsuits against 
NS and APCO alleging, in part, that, since APCO removed the trees that 
had insulated their property from the effects of NS's rail operations, 
the dust (including coal dust), dirt, smoke, vibrations, and noise from 
the operation of NS's trains have damaged their property and diminished 
its value. Plaintiffs' court complaints claim that the operation of 
NS's rail line now constitutes a nuisance and that NS has violated 
Article I, section 11 of the Constitution of Virginia, which provides 
that private property shall not be taken or damaged for public use 
without just compensation to the property owner. NS does not dispute 
that its operation of the rail line constitutes a public use, but does 
contend that plaintiffs' claims are preempted by 49 U.S.C. 10501(b).

Discussion and Conclusions

    The Board has discretionary authority under 5 U.S.C. 554(e) and 49 
U.S.C. 721 to issue a declaratory order to eliminate a controversy or 
remove uncertainty. The Interstate Commerce Act, as revised by the ICC 
Termination Act of 1995, vests in the Board broad jurisdiction over 
``transportation by rail carrier,'' 49 U.S.C. 10501(a)(1), which 
extends to property, facilities, instrumentalities, or equipment of any 
kind related to that transportation, 49 U.S.C. 10102(9). The preemption 
provision in the Board's governing statute states that ``the remedies 
provided under [49 U.S.C. 10101-11908] 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). NS argues, and asks 
the Board to declare, that the claims asserted against it in the state 
lawsuits are preempted under this provision.
    The Board will institute a declaratory order proceeding and 
establish a procedural schedule for the filing of pleadings. This will 
ensure that the record is complete on the issue of whether the remedies 
sought by plaintiffs are preempted by Sec.  10501(b).\1\
---------------------------------------------------------------------------

    \1\ In its petition, NS seeks leave to conduct ``any appropriate 
discovery.'' The Board, however, generally does not order discovery 
in declaratory order proceedings involving largely legal issues, see 
Md. Transit Admin.--Pet. for Declaratory Order, Docket No. FD 34975, 
slip op. at 8 (STB served Sept. 19, 2008), and NS does not explain, 
nor is it apparent, why discovery is needed here. For those reasons, 
and given NS's request for expedited review, the procedural schedule 
adopted here does not include a period for discovery.
---------------------------------------------------------------------------

    The Board will consider this matter under the modified procedure 
rules at 49 CFR part 1112. NS's detailed petition will serve as its 
opening statement. Replies will be due 20 days from the date of service 
of this decision. NS's rebuttal will be due 27 days from the service 
date of this decision.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. A declaratory order proceeding is instituted.
    2. Replies to NS's petition are due by January 2, 2013.
    3. NS's rebuttal statement is due by January 9, 2013.

[[Page 74740]]

    4. A copy of this decision will be served upon the parties and 
counsel listed in the certificate of service appended to NS's petition 
as well as upon: Hon. Clifford R. Weckstein, Chief Judge, Roanoke 
County Circuit Court, P.O. Box 1126, 305 E. Main Street, Salem, VA 
24153-1126.
    5. This decision is effective on its service date.

    Decided: December 12, 2012.

    By the Board, Rachel D. Campbell, Director, Office of 
Proceedings.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2012-30277 Filed 12-14-12; 8:45 am]
BILLING CODE 4915-01-P