Petition for Writ of Certiorari — Riffin v. Maryland Department of the Environment (No. 06-617)

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06-617 SEP 14 2006

OFFICE OF THE CLERK

No.

IN THE SUPREME COURT OF THE UNITED STATES

JAMES RIFFIN

Petitioner

Vv.

MARYLAND DEPARTMENT

OF THE ENVIRONMENT; and

BALTIMORE COUNTY, MARYLAND

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE MARYLAND COURT OF APPEALS

James Riffin, pro se

Petitioner

1941 Greenspring Drive

Timonium, MD 21093

(443) 414-6210

1. QUESTIONS PRESENTED

. May a state court render a binding judicial decision based

upon its interpretation of 49 U.S.C. 10501 (b), (which

contains a provision for exclusive federal jurisdiction)?

. Is there a beginning presumption against preemption when

the State attempts to regulate “transportation by rail carrier”

(an area where there has been a history of significant federal

presence)?

. Does 49U.S.C. § 10501 (b) completely preempt all state and

local regulation of transportation by rail carrier?

. Are Petitioner’s issues of federal preemption moot?

. Does the Interstate Commerce Commission Termination Act

prohibit local or State agencies from requiring that permits

be obtained prior to railroad-related construction activities?

. Does a state court have the authority to determine whether a

facility is a railroad facility, or whether an entity is a rail

carrier? —

. Must railroad facilities be adjacent to a railroad’s main line,

or in the same state as a railroad’s main line, or owned by a

federally licensed rail carrier, in order to be ‘instrumentalities

of interstate commerce,’ under the auspices of the Commerce

Clause of the U.S. Constitution, and / or subject to the

exclusive jurisdiction of the Surface Transportation Board?

. Since Maryland’s court’s of appeal did not address

Petitioner’s Preemption Argument, due to a finding of

mootness, would the Rooker-Feldman doctrine still prevent

a federal district court from hearing Petitioner’s preemption

argument?

. When State law is preempted, does the question of harm to

the State, and the matter of the public interest, drop from a

case involving injunctive relief against that preempted State

law?

10. Were material facts in dispute, thereby rendering summary

judgment inappropriate?

11. Was the Petitioner denied due process or equal protection of

the law, when the State appellate court failed to rule on the

common law riparian-rights issues raised by the Petitioner?

2. PARTIES

12. James Riffin d/b/a The Frostburg Southern Railroad and

The Northern Central Railroad (“Riffin” or “Petitioner’’), is a

federally licensed Class III freight rail carrier that operates a rail

line in Allegany County, Maryland. He is negotiating with the

Norfolk Southern Railway Company to purchase the

Cockeysville Line , a line of railroad in Baltimore County,

Maryland, which is adjacent to the properties which are the

subject of this Petition. He also has offered to purchase from

Conrail, a line of railroad in Mercer County (Trenton), New

Jersey. Petitioner uses the two properties which are the subject

of this litigation, as his railroad headquarters, as his main

maintenance-of-way facilities, and as storage facilities for his

track material and railroad equipment (“Sites”).

13. Respondent Maryland Department of the Environment is

a Maryland state agency responsible for enforcing Maryland’s

environmental laws. Respondent Baltimore County, Maryland,

is a government entity empowered to administer the laws of

Baltimore County, Maryland.

3. PETITIONER’S DISCLOSURE OF

AFFILIATIONS AND FINANCIAL INTEREST

14. Your Petitioner is not a publicly held entity, nor does he

have a parent corporation. He has a 100 % ownership interest.

No other publicly held corporation or other publicly held entity

has a direct financial interest in the outcome of this litigation.

Your Petitioner is not a trade association. This case did not arise

out of a bankruptcy proceeding.

4. TABLE OF CONTENTS

1. Questions Presented: 1

2. Parties: ili

ill

| coed

emtie

Disclosure of Affiliations and Financial Interest:

4. Table of Contents: ill

5. Table of Authorities vi

Cases: vi

Statutes: Vili

6. Opinions Below: ]

7. Jurisdiction: ]

8. Statutes Involved: 2

9. When federal questions were raiseu: 6

10. Statement of the Case: 8

Sequence of events: 8

11. Reasons for Granting the Writ: 12

12. Summary of Argument: 13

13. Argument: 14

14. A State court may not render a binding judicial

decision interpreting 49 U.S.C. §10501(b) [which

contains a provision for exclusive federal jurisdiction]: 14

15. There is no beginning presumption against preemption

when the State regulates in an area where there has

been a history of significant federal presence: 15

16. 49 U.S.C.§10501(b) completely preempts all State

and local regulation of rail carrier facilities: 15

16A. Preemption guidelines: 16

16B. ICCTA preemption: 18

16C. Complete preemption guidelines: 21

16D. State law, as applied in this case, is -

completely preempted: 26

16E. Cases holding the ICA completely

preempts State and local regulations: 27

17. The issues of federal preemption are not moot: 28

18. The ICCTA prohibits a local or State agency from

requiring that permits be obtained prior to

railroad-related construction activities: 29

19. A railroad facility need not be adjacent to a railroad’s

main line, or in the same State as a railroad’s main line,

or owned by a federally licensed rail carrier, in order

to be an ‘Instrumentality of interstate commerce,’

subject to the exclusive jurisdiction of the STB: 31

. Rooker - Feldman Doctrine: 31

. When State law is preempted, the question of harm

to the State and the matter of the public interest

drop from, the case: 31

. Material facts were in dispute: 32

. Petitioner was denied due process and equal protection

of the law, when the State appellate court failed to

rule on the common law riparian-rights issues

raised by the Petitioner: 33

APPENDIX:

24. Decision, Maryland Court of Appeals: A-1

25. Decision, Maryland Court of Special Appeals: A-3

26. Circuit Court Permanent Injunction (Cockeysville): A-27

27. Circuit Court Injunction (Greenspring site): A-31

28. US District Court Order (Greenspring Tank case): A-32

29. US District Court Memorandum Opinion: A-33

30. US District Court Order (Dismissing Snyder suit): A-38

31. US Dist.Court (Excerpt from hearing transcript): A-39

32. 4" Circuit: Denial of Rehearing: A-42

33. 4" Circuit: Opinion affirming District Court: A-43

34. Verbatim text of statutes involved: A-45

35. STB decision granting Petitioner authority to acquire

36.

31.

38.

& operate Allegany County, Md, line of railroad: A-65

STB Declaratory Order: ICCTA completely

preempts State & local regulation of rail carriers: A-69

Decision: Maryland Court of Special Appeals

denying Petitioner’s Motion for Reconsideration: A-82

Petitioner’s Motion for Reconsideration to

Maryland Court of Special Appeals: A-83

. Graphic showing SEQUENCE OF EVENTS: A-100

. Synopsis of 8 Supreme Court Cases holding —

the ICA preempted the State laws at issue: A-101

5. TABLE OF AUTHORITIES

TABLE OF CASE D

Aetna Health Inc. v. Davila, 542 U.S. 200,

124 S.Ct. 2488 (2004): 23,24

Alabama Public Service Comm’n v. Southern R. Co.,

341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951): A-102

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

105 S.Ct. 1904, 85 L.Ed.2d 443 (1978): 16

ASARCO Inc. v. Kadish, 490 U.S. 605, 109 S.Ct.

2037, 104 L.Ed. 2d 696 (1989): 15

Avco Corp. v. Machinists, 390 U.S. 557, 88 S.Ct.

1235, 20 L.Ed.2d 126 (1968): 22

Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466,

(8" Cir. 1994): 32

Bank One, Utah v. Guttau, 190 F.3d 844

(8" Cir. 1999): ‘ 32,34

Boston and Maine Corp. v. Town of Ayer, 330 F.3d 12

(1* Cir. 2003): 9

Cedarapids, Inc. v. Chicago, Central & Pacific R.,

265 F. Supp. 2d 1005 (N.D. lowa 2003): 10,27

Chicago v. Atchison, T.& S.F.R.Co., 357 U.S. 77,

78 S.Ct. 1063, 2 L.E.2d 1174 (1958): A-102

Chicago and N.W. Transp. Co. v. Kalo Brick & Tile

Co., 450 U.S. 311, 101 S. Ct. 1124, 67 L.Ed. 2d

258 (1981): 17, A-101

City of Auburn v. U.S. Government, 154 F. 3d 1025, |

(9" Cir. 1998): 20,21,29,30

Colorado v. United States, 271 U.S. 153,

46 S.Ct. 452, 70 L.Ed. 878 (1926): ’ A-102

CSX Transportation, Inc. — Petition for Declaratory Order

STB Docket No. 34662, decided March 14, 2005: 29

CSX Transp., Inc. v. City of Plymouth, 92 F. Supp. 2d

643 (E.D. Mich. 2000): 12,15-18

CSX Transp., Inc. v. Georgia Public Serv. Com’n,,

944 F. Supp. 1573 (N.D. Ga. 1996): 112, 16,18-20,27,30,31

Dakota, Minn. & Eastern R.R. Corp. v. South Dakota,

236 F. Supp. 2d 989, (D.S.D. 2002): 27, 32

Deford v. Soo Line R.R., 867 F.2d 1080, (8" Cir.).

cert.denied, 492 U.S. 927,109 S.Ct. 3265,

106 L.Ed. 2d 610 (1989): 13,27

Florida East Coast RY v. City of West Palm Beach,

266 F. 3d 1324 (11" Cir. 2001): 7,9

FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403,

112 L.Ed.2d 356 (1990): 23

Franchise Tax Board of Cal. v. Const. Laborers

Vacation Trust, 463 U.S. 1, 103 S.Ct. 2840,

77 L.Ed. 2d 420 (1983): 22,31

Friberg v. Kansas City Southern Ry.Co.,

267 F.3 439 (5" Cir. 2001): 27,29

Georgia Public Service Comm’n v. CSX Transp., Inc.,

225 Ga. App. 787, 484 S.E. 2d 799 (1997): 20

Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96,

81 L.Ed. 70 (1936): 20

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133,

111 S.Ct. 478, 112 L.Ed. 2d 474 (1990): 2AG ZS 26

In re Burlington Northern R.R., 249 Neb. 821,

545 N.W.2d 749 (1996): 20

Illinois Commerce Commission v. ICC, 879 F.2d 917,

(D.C.Cir. 1989): 19

Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct.

1185, 55 L.Ed.2d 443 (1978): 16

Medtronic v. Lohr, 518 U.S. 470, 116 S. Ct. 2240,

135 L.Ed. 2d 700 (1996): 16

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107

S.Ct. 1542, 95 L.Ed. 2d 55 (1987): 22

Missouri Pacific R.Co. v. Stroud, 267 U.S. 404,

45 S.Ct. 243, 69 L.Ed. 683 (1925). A-102

Vii

Norfolk Southern Ry. v. City of Austell

No. 1:97-¢ 1018-RLV, 1997 U.S. Dist.

LEXIS 172 *. at 17.6 (N.D. Ga. 1997): eG

Palmer v. Massachusetts, 308 U.S. 79, 60 S.Ct. 34,

84 L.Ed. 93 (1939): A-102

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct.

1549, 95 L.Ed.2d 39 (1987): 23-25

Purcell v. United States, 315 U.S. 381, 62 S.Ct. 709,

86 L.Ed. 910 (1942): A-102

Ridgefield Park v. NY, Susqu. & Western, 750 A. 2d 57

(N.J. 2000): 30

Soo Line R. Co. v. City of Minneapolis, 38 F. Supp. 2d

1096 (D. Minn. 1998): 20,30

Taylor v. General Motors Corp., 875 F.2d 816,

(11 Cir. 1989): 16

Teper v. Miller, 82 F.3d 989, (11" Cir. 1996): 16

Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204

U.S. 426, 27 S.Ct. 350, 51 L.Ed.553 (1907): A-101

Transit Comm’n v. United States, 289 U.S. 121,

53 S.Ct. 536, 77 L.Ed. 1075 (1933): A-101

United States v. Bishop, 66 F.3d 569 (3d Cir. 1995): 31

U.S. v. Locke, 529 U.S. 104; 120 S. Ct. 1135: 12,15-18

Wisconsin Central Ltd., v. The City of Marshfield,

160 F. Supp. 2d 1009 (W.D. Wis. 2000): 21,29

TABLE OF STATUTES CITED

U.S. Const., Article I, § 8, Cl. 3 (Commerce Clause): l

U.S. Const., Article III (Judicial power): |

U.S. Const., Art. VI, Cl.2: 16

U.S. Const., 5 Amendment (Due Process of Law): 1,34

U.S. Const., 14'" Amendment (Equal Protection of Laws): 1,34

ERISA § 502(a) [29 U.S.C. § 1132(a)]: 5,23,24

ERISA § 514(1) [29 U.S.C. § 1144 (a)]: 6,23,26

Interstate Commerce Act, ch. 104, 24 Stat. 379 (1887): 2,17,23

Interstate Commerce Commission Termination

Act (1996): 2,7,10,12,18-21,23,25,27,30,32

Labor Management Relations Act, §301: 22,24

Staggers Rail Act: 19

28 U.S.C. §1257(a): l

49 U.S.C. §§10101-11908: 2,7,12,14,28

49 U.S.C. § 10101: 2,4,5

49 U.S.C. §10102:, 3,4,28

49 U.S.C. § 10501 (b): 1,2,6,7,9-15,18-20,23,29,30,34

H.R. Conf. Rep. No. 422, 104" Cong., 1" Sess. 167 (1995),

U.S. Code Cong. & Admin. News 1995, p. 852: 20

§5-503 Maryland Environment Article: 33

§5-512 Maryland Environment Article: is 33

§9-303 Maryland Environment Article: 34

§9-322 Maryland Environment Article: 34

§9-323 Maryland Environment Article: 34

§32-4-414 (c) Baltimore County Code: 11, A-60

§32-8-101(a)(1) Baltimore County Code: 11, A-60

TABLE OF CASES NOT CITED

(Highly relevant, but not cited due to page limitations)

Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504,

101 S.Ct. 1895, 68 L.Ed.2d 402 (1981):

Baer v. Board of County Com’rs of. Washington Co.,

255 Md. 163, 257 A.2d 201, (1969):

Battisto v. Perkins, 210 Md. 542, 124 A.2d 288, (1956):

Bethlehem Steel Co. v. New York State Labor Relations

Board, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234 (1947)

Biberman v. Funkhouser, 190 Md. 424, 58 A.2d 668, (1948) ©

Borough of Riverdale [Riverdale 1} WL 715272, STB

Fin. Doc. No. 33466, September 10, 1999

Burlington Northern R.R. v. Oklahoma Tax Comm'n, 481

U.S. 454, 107 S.Ct. 1855, 95 L.Ed.2d 404 (1987):

‘Burlington Northern Santa Fe Corp-v. Anderson,

959 F. Supp. 1288 (D. Mont. 1997):

Caterpillar Inc. v. Williams, 482 U.S 386, 393, 107 S.Ct.

2425, 2430, 96 L.Ed. 2d 318 (1987).

CFNR Operating Co. v. City of American Canyon,

282 F. Supp. 2d 1114 (N.D. Cal. 2003):

Chevron, U.S.A. Inc. v. Natural Resources Defense,

467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed. 2d 694 (1984):

Cipolone v. Liggett Group, Inc., 505 U.S.-504, 112 S.Ct.

2608, 120 L.Ed. 2d 407 (1992):

City Dairy Co. v. Scott, 129 Md. 548, 100 A. 295 (1917)

County Commissioners of Baltimore County v. Hunter,

207 Md 171, 113 A.2d 910, (1955):

CSX Transp., Inc. v. Williams, 406 F.3d 667 (D.C.Cir.2005)

English v. General Electric Co., 496 U.S. 72, 110 S.Ct.

2270, 110 L.Ed.2d 65 (1990):

Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1 824),

Grand Trunk R.R. v. Richardson, 91 U.S. 454, 23 L. Ed.

356 (1875):

Grubb v. Public Utilities Comm’n of Ohio, 281 U.S. 470,

50 S.Ct. 374, 74 L.Ed. 972 (1930):

Hancock v. Stull, 206 Md. 117, 110 A.2d 522, (1955):

Hartford Fire Insurance Co. v. Chicago, M & St. P.R. Co.,

175 U.S. 91, 20 S.Ct. 33, 44 L.Ed. 84 (1899):

Howlett v. Rose, 496 U.S. 356, 370 n. 16 (1990):

Humphrey v. Sequentia, Inc., 58 F.3d 1238 (8" Cir. 1995)

In re Appeal of Vermont Railway, 769 A.2d 648 (Vt. 2000)

Johnson v. De Grandy, 521 U.S. 997, (1994):

Kamilewicz v. Bank of Boston Corp., No 95 C 6341,

1995 WL 758422, at *6 (N.D. Ill. Dec. 15, 1995),

aff'd 92 F. 3d 506 (7" Cir. 1996):

Kennedy-Chamberlin Development Co. v. Snure, 212 Md.

369, 129 A.2d 142, (1957):

Mackey v. Lanier Collection Agency & Service, Inc.,

486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988):

Mark Downs, Inc. v. McCormick Properties, Inc.,

51 Md. App. 171, 441 A.2d 1119, (1982):

Martin v. Wilks, 490 U.S. 755, 784 n. 21 (1989):

Massachusetts Mutual Life Ins. Co. v. Russell, 473

U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985):

Mellon v. Southern Pacific Transport Co., 750 F. Supp.

226, (W.D. Tex. 1990):

Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S.

724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985):

Missouri Pacific Railroad Co. v. Railroad Commission

of Texas, 833 F. 2d 570, (5" Cir. 1987):

Neubauer v. Overlea Realty Co., 142 Md. 87,

120 A. 69, 73 (1923):

Norfolk & Western Ry. Co. v. American Train Dispatcher

Ass'n, 499 U.S. 117, 127-134; 111 8. Ct. 1156;

113 L.Ed. 2d 95 (1991):

Peters v. Union Pac. R.R. Co., 80 F.3d 257 (8" Cir. 1996):

Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988,

55 L.Ed.2d 179 (1978):

Remer v. Burlinton Area School District, 205 F.3d 990,

(7" Cir. 2000):

Rice v. Santa Fe Elevator Corp., 331 U.S. 218:

Rivet v. Regions Bank of La., 522 U.S. 470, 118 S.Ct. 921,

139 L.Ed. 2d 921 (1998):

- Robinson v. State, 353 Md. 683, 728 A.2d 698, (1999):

Rooker v. Fidelity Trust Co., 263 U.S. 413, 414-15 (1923):

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890,

L.Ed.2d 490 (1983):

United States v. Gonzales, 520 U.S. 1, 117 S.Ct. 1032,

-137 L.Ed. 2d 132 (1997):

United States v. James, 478 U.S. 597, 106 S.Ct. 3116,

92 L.Ed.2d 483 (1986):

TABLE OF STATUTES NOT CITED

(Relevant, but not cited due to page limitations)

U.S. Const., Art. VI, cl. 2 (U.S. Constitution

is supreme law of land): :

28 U.S.C. §1738:

49 C.F.R. §§1050.1; 1150.31-33:

49 C.F.R. §§ 1105.1 - 1105.12.

S.Rep. No. 176, 104" Cong., 1* Sess. 14 (1995):

S.Rep. No. 176, 104" Cong., 1* Sess. 44 (1995):

Maryland Constitution, Article 5:

§4-101.1 Maryland Environment Article:

§4-103 Maryland Environment Article:

§4-105 (a) Maryland Environment Article:

§4-116 (c) Maryland Environment Article:

§4-413 Maryland Environment Article:

§5-101 Maryland Environment Article:

§5-502 Maryland Environment Article:

§5-513 Maryland Environment Article: See

§5-514 Maryland Environment Article:

§9-101 Maryland Environment Article:

§9-325 Maryland Environment Article:

§9-339 Maryland Environment Article:

§9-342 Maryland Environment Article:

TABLE OF RELATED (BUT UNCITED) CASES

Ballard v. Ace Wrecking Co., 289 A.2d 888 (DC, 1972),

(D.C. uses common law rule regarding surface waters.)

Board of Ed. of Union Free Sch. Dist. No. 11 v. NYQUIST,

274 N.Y.S. 2d 229 (High water mark)

Carleton v. Cleveland, 112 Me. 310, 92 A. 110 (1914)

(Can tell stream bed separate from adjacent riparian land)

Dept. of Nat’| Resources v. Adams, 37 Md. App. 165, 377 A.2d

500 (1977) (Riparian owner = one who owns property

bordering on that water. Court may not add to, delete from a

statute, nor set aside or evade its operation by forced or

unreasonable construction.)

Diedrich v. Farnsworth, 3 Ariz. App. 264, 413 P.2d 774 (1966)

(Can divert stream on own property, so long as return it to

natural channel before it leaves your property.)

Xil

Kelly v. Nagie, 150 Md. 125 132 A.587 (1926) (Owner of spring

cannot divert water to non-riparian land with a pipe.)

Kernen v. Homestead Development, 232 Mich.App. 503, 591

N.W.2d 369 (1998) (No cause of action for trespass from

proposed sewer plant until it actually happens.)

Lewis v. Texas Utilities Elec. Co. 825 S.W.2d 722 (Tex. App.

Dallas 1992) (Private landowner has right to control, retain,

and use surface waters.)

Linthicum v. Coan, 64 Md 439, 2 A. 826 (1886) (Accretion

belongs to riparian owner if starts at bank. Belongs to state if

starts mid-river.)

Mammoth Gold Dredging Co. v. Forbes, 104 P.2d 131 (Calif.

1940) (Present high water mark means: at time executed deed;

and means: normal flow.)

McKell v. Spanish Fork City, 6 Utah 2d 92, 305 P.2d 1097

(1957) (Have right to defend against floodwaters.)

McManus v. Otis, 143 P.2d 380 (Calif. 1943) (Have right to

protect against flood waters.)

Morgan v. Reading, 3 Smedes & M. 366 (Miss. 1844) (Fantastic

history of English, French and Spanish law. W. side Miss.

river = French law; E side = common law. Common law: bank

of navigable river belongs exclusively to riparian property

owner.)

Nunn v. Osborne, 417 P.2d 571 (Okla. 1966) (Lower landowner

does not have right to surface waters of upper landowner.

Upper landowner can retain surface waters.)

San Pedro, L.A. & S.L. R. Co. v. Simons Brick Co., 187 P. 62

(Calif. 1920) (Stream does not include flood waters.

St. Louis I. M. & S. Ry. Co. v. Walker, 89 Ark. 556, 117 S.W.

534 (1909) (Railroad has duty to provide opening in

embankment sufficient to allow natural, not flood, waters.) —

Schulze v. Monsanto Co., 782 S.W.2d 419 (Mo. App. 1989)

(May build levee, so long as not reckless. OK to put rip rap in

stream to prevent bank erosion.)

xiii

Spencer v. O’Brien, 158 S.W.2d 445 (Tenn. 1942) (Have right

to build levee. Changes unproductive landto productive land.

Helps self and public in general.)

State v. Barnes, 171 Kan. 491, 233 P.2d 724 (1951) (State cannot

litigate on behalf of individual citizens.)

U.S. v. Pend Oreille Public Utility Dist. No. 1, 926 F.2d 1502

(9" Cir.1991) (Under federal law stream / river = where

vegetation does not grow. If vegetation grows, then land is not

a part of the stream / river. Court does not defer to Admin.

Ag. determination of law.)

U.S. v. State of Oregon, 295 U.S. 1, 55 S.Ct. 610 (1935) (Title

to navigable waters and beds thereof, passed to state when

admitted as a state. Navigability = federal question.)

Waring v. Stinchcomb, 141 Md. 569, 119 A. 336 (1922)

(Accretion belongs to land in front of which it is deposited.)

West Arlington Imp. Co. v. Mount Hope Retreat, 97 Md. 191, 54

A. 982 (1903) (Riparian owner can dam non-navigable stream

so long as lower riparian proprietors do not object.)

XIV

6. OPINIONS BELOW

15. The unpublished opinions of the Maryland Court of

Appeals, Maryland Court of Special Appeals, the Circuit Court

for Baltimore County, Maryland, and unpublished Opinions of

the U.S. District Court for Maryland, Baltimore Division, and the

4" Circuit Court of Appeals, are reproduced in the Appendix.

7. JURISDICTION

16. Jurisdiction is proper in this Court. This case involves

the preemptive reach of 49 U.S.C. 10501 (b), the preemptive

reach of the Commerce Clause of the U.S. Constitution, and

whether Maryland’s state courts complied with the due process

and equal protection clauses of the U.S. Constitution.

17. On June 16, 2006, the Maryland Court of Appeals,

Maryland’s highest court, denied Petitioner’s Writ of Certiorari.

28 U.S.C. § 1257 (a) states: “Final judgments ... rendered by the

highest court of a State ... may be reviewed by the Supreme

Court by writ of certiorari ... where the validity of a statute of any

State is drawn in question on the ground of its being repugnant

to the Constitution, ....aws of the United States, or where any

title, right, privilege, or immunity is specially set up or claimed

under the Constitution or ... statutes of, ...-the United States.”

18. Article III, Section 2, of the United States Constitution,

(“Constitution”) states the judicial power of the United States

“shall extend to all Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States ....” The 14"

Amendment to the U.S. Constitution states: “nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.” Under Art. I, §8, Cl. 2 of the

Constitution, Petitioner’s Sites, as ‘Instrumentalities of Interstate

Commerce,” are subject to Federal, not State regulation.

19. The judgment to be reviewed, was rendered on June 16,

2006. A petition filed by September 14, 2006, would be timely. —

8. STATUTES INVOLVED!

20. 49 U.S.C. § 10501 (b):

“(b) 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.

| The Interstate Commerce Act (“ICA”), enacted in 1887, is codified in

49 U.S.C. §§10101 - 11908. The ICA has been amended several times, the

two most recent amendments being the Staggers Rail Act (1980) and the

Interstate Commerce Commission Termination Act (“ICCTA”) (1996) [which

amended, then reenacted, the ICA. One significant change brought about by

the ICCTA, was the abolishment of the Interstate Commerce Commission,

which was replaced by the Surface Transportation Board (“Board” or

“STB”)]. Two other significant changes brought about by the ICCTA, was

a broadening of the exclusive jurisdiction of the Board, which, under the

ICCTA, includes wholly intrastate tracks, thereby eliminating concurrent State

and Federal jurisdiction over wholly intrastate tracks (which the Staggers Rail

Act had provided for). In addition, the ICCTA eliminated §10101(a)(1)(E),

which stated: “(E) to cooperate with each State and the officials of each State

on transportation matters;”

21. 49 U.S.C. §10102. Definitions

In this part —

(1) “Board” means the Surface Transportation Board;

(2) “car service” includes (A) the use, control, supply,

movement, distribution, exchange, interchange, and return of

locomotives, cars, other vehicles, and special types of equipment

used in the transportation of property by a rail carrier, and (B) the

supply of trains by a rail carrier;

(3) “control”, when referring to a relationship between

persons, includes actual control, legal control, and the power to

exercise control, through or by (A) common directors, officers,

stockholders, a voting trust, or a holding or investment company,

or (B) any other means;

(4) “person”, in addition to its meaning under section | of

title 1, includes a trustee, receiver, assignee, pr personal

representative of a person;

(5) “rail carrier” means a person providing common carrier

railroad transportation for compensation, but does not include

street, suburban, or interurban electric railways not operated as

part of the general system of rail transportation;

(6) “railroad” includes —

(A) a bridge, car float, lighter, ferry, and intermodal

equipment used by or in connection with a railroad;

(B) the road used by a rail carrier and owned by it or

operated under an agreement; and

a freight depot, yard, and ground, used or necessary

for transportation;

(7) “rate” means a rate or charge for transportation;

(8) “State” means a State of the United States and the

District of Columbia;

(9) “transportation” includes —

(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;”

(10) “United States” means the States of the United States

and the District of Columbia.”

22. 49 U.S.C. § 10101 Rail transportation policy.

“In regulating the railroad industry, it is the policy of the

United States Government —

(1) to allow, to the maximum extent possible, competition

and the demand for services to establish reasonable rates for

transportation by rail;

(2) to minimize the need for Federal regulatory control over

the rail transportation system and to require fair and expeditious

regulatory decisions when regulation is required;

(3) to promote a safe and efficient rail transportation system

by allowing rail carriers to earn adequate revenues, as determined

by the Board;

(4) to ensure the development and continuation of a sound

rail transportation system with effective competition among rail

carriers and with other modes, to meet the needs of the public

and the national defense;

(5) to foster sound economic conditions in transportation and

to ensure effective competition and coordination between rail

carriers and other modes;

(6) to maintain reasonable rates where there is an absence of

effective competition and where rail rates provide revenues

which exceed the amount necessary to maintain the rail system

and to attract capital; |

(7) to reduce regulatory barriers to entry into and exit from

the industry;

(8) to operate transportation facilities and equipment without

detriment to the public health and safety;

(9) to encourage honest and efficient management of

railroads;

(10) to require rail carriers, to the maximum extent

practicable, to rely on individual rate increases, and to limit the

use of increases of general applicability;

(11) to encourage fair wages and safe and suitable working

conditions in the railroad industry;

(12) to prohibit predatory pricing and practices, to avoid

undue concentrations of market power, and to prohibit unlawful

discrimination;

(13) to ensure the availability of accurate cost information in

regulatory proceedings, while minimizing the burden on rail

carriers of developing and maintaining the capability of

providing such information;

(14) to encourage and promote energy conservation; and

(15) to provide for the expeditious handling and resolution of

all proceedings required or permitted to be brought under this

part.”

23. § 502 (a) ERISA [held to completely preempt state

law]: “A civil action may be brought — (1) by a participant or

beneficiary — (A) for the relief provided for in subsection (c) of

this section, or (B) to recover benefits due to him under the terms

of his plan, to enforce his rights under the terms of the plan, or

to clarify his rights to future benefits under the terms of the plan;

(7) by a State to enforce compliance with a qualified

medical child support order *** ;

(e) Jurisdiction (1) Except for actions under subsection

(a)(1)(B) of this section, the district courts of the United States

shall have exclusive jurisdiction of civil actions under this

subchapter brought by the Secretary or by a participant,

beneficiary, fiduciary, or any person referred to in section

1021(f)(1) of this title. State courts of competent jurisdiction and

district courts of the United States shall have concurrent

jurisdiction of actions under paragraphs (1)(B) and (7) of

subsection (a) of this section.”

24. §514(a) ERISA [held to completely preempt state

law]: “Except as provided in subsection (b) of this section, the

_ provisions of this subchapter and subchapter III of this chapter

shall supersede any and all State laws insofar as they may now or

hereafter relate to any employee benefit plan described in section

1003(a) of this title and not exempt under section 1003(b) of this

title.”

25. Other statutes involved are reproduced in the appendix.

9. WHEN FEDERAL QUESTIONS WERE RAISED

26. The federal questions sought to be reviewed, were

presented at the beginning of the proceedings in the State trial

court, when the Petitioner filed Motions to Dismiss for Lack of

Jurisdiction,’ and were presented at the beginning of all State

appellate court proceedings.’ In all of the State court

proceedings, Petitioner argued the State court had no jurisdiction

to render a binding judicial decision based on its interpretation

of a federal statute containing a provision for exclusive federal

jurisdiction. Petitioner further argued that 49 U.S.C. § 10501 (b)

vested exclusive regulatory authority over transportation by rail

2 For the Cockeysville site (Case No. 03-C-04-008920; Appeal No.

1593) see: Petitioner’s 8/30/04 Motion to Dismiss for Lack of Jurisdiction;

P.3 of transcript wherein Petitioner stated: “The first motion that we should

address is does this Court have the jurisdiction to even hear the case.” For

the Greenspring Drive site (Case No. 03-C-03-013144; Appeal No. 1802),

the trial court proceeding was not recorded. On page 4 of the Opinion of the

Court of Special Appeals, that court noted Petitioner had filed a Motion to

Dismiss for Lack of Jurisdiction.

3 See pp. iv, 22-55, of Appellant’s Court of Special Appeals’ Brief.

carrier, with the Surface Transportation Board (“Board” or

“STB”), that the Interstate Commerce Commission Termination

Act of 1996 (“ICCTA”) completely preempts all State and local

regulation of transportation by rail carrier, and that the remedies

in 49 U.S.C. §§ 10101 - 11908 are exclusive and preempt all

other Federal and State remedies. Petitioner further argued that

whether the Board had exclusive jurisdiction over a site was to

be determined by what occurred at the site, not by who owned

the site. See Florida East Coast RY v. City of West Palm Beach,

- 266 F. 3d 1324 (11" Cir. 2001), holding that mere ownership of

a site by a rail carrier did not vest the Board with exclusive

regulatory authority over the site.

27. The trial court effectively ruled it did have authority to

render a judicial decision based on its interpretation of 49 U.S.C.

§10501(b), when it ruled this federal statute did not preempt

Maryland’s environmental laws. Maryland’s appellate courts

held that the issue of federal preemption was rendered moot, due

to the Petitioner’s loss of federally-licensed rail carrier status for

a 15-day period of time, during which 15-day period of time, the

Greenspring Drive (Appellate Case No. 1802) motion-hearing

was held, and an injunction was issued. The Appellate Court

further ruled that the issue of federal preemption in the

Cockeysville Case (Appellate Case No. 1593), was rendered

moot when the Board revoked Petitioner’s third (Pennsylvania)

Notice of Exemption (“NOE”) on February 23, 2005, which was

prior to the date the Court of Special Appeals rendered its

decision on February 3, 2006.‘ In a Motion for Reconsideration

filed by the Petitioner on March 3, 2006, Petitioner provided the

Court of Special Appeals with a copy of a December 13, 2005

ruling by the Board, granting Petitioner authority to acquire and

operate his Frostburg Southern line of railroad, which ruling

reinstated, prior to the decision of the Court of Special Appeals,

Petitioner’s status as a federally licensed rail carrier.

4 See pp. |, 4, 13-15, of the opinion of the Court of Special Appeals.

28. At all stages, Petitioner has consistently argued the

Board’s exclusive regulatory jurisdiction over railroad facilities

is not contingent upon the facility being owned by a federally

licensed rail carrier. The deciding factor is whether use of the

site relates to the movement of passengers or property by rail.

Both of the sites which are the subject of this litigation, are

utilized to store “equipment related to the movement of

passengers or property by rail,” [railroad maintenance-of-way

equipment, such as tampers, ballast equilizers, etc., hundreds of

concrete railroad ties, and hundreds of tons of railroad ballast

material}, and both provide “services related to that movement,”

[such as invoicing, printing of bills-of-lading and other material,

signage, etc.]. Since the statute clearly states “regardless of

ownership,” whether these facilities are owned by a federally

licensed rail carrier is irrelevant. What is relevant, is whether the

equipment located at the site “relates to the movement of

passengers or property by rail,” and whether services provided at

the facility “relate to the movement of passengers or property by

rail.” Maryland’s courts have misread the “explicit statutory -

language and the structure and purpose of the statute.” /ngersoll-

Rand Co. v. McClendon, 498 U.S. 133, 137-138, 111 S.Ct. 478,

482,112 L.Ed. 2d 474 (1990).

10. STATEMENT OF THE CASE

A graphic showing the SEQUENCE OF EVENTS, appears

on the last two pages of the Appendix.

Cockeysville railroad maintenance-of-way facility: Case No.

03-C-04-008920; Appeal No. 1593.

29. Circuit court. Petitioner, a federally licensed Class III

rail carrier, began constructing a railroad facility in a riverine

floodplain, located in Cockeysville, Baltimore County,

Maryland. Petitioner did not apply for any State or local permits

before beginning construction of the facility. [Railroad case-law

specifically has held local permitting laws have been preempted

and have held that if a railroad applies for a permit, the railroad

may be held to have voluntarily consented to be regulated by that

permitting agency. See Boston and Maine Corp. v. Town of

Ayer, 330 F.3d 12, 16 (1* Cir. 2003) {“A town may seek

enforcement of voluntary agreements a railroad has entered into

with a town.”} Petitioner graded and filled approximately

9,000 sf of the floodplain. The State of Maryland and Baltimore

County filed suit against Petitioner, asking the Baltimore County

Circuit Court to enjoin Petitioner from any further construction

activity at the railroad facility. Petitioner removed the case to the

U.S. District Court for Maryland. Petitioner argued, since the

Surface Transportation Board had exclusive jurisdiction over

railroad facilities, the proper forum for hearing Maryland’s

Complaints regarding Petitioner’s railroad facilities, was before

the Board, not in a state court. On September 8, 2004, the U.S.

District Court Ordered this case and two other related cases

(Greenspring facility and fuel tank cases), be remanded back to

State court. The U.S. District Court wrote a Memorandum

Opinion for the fuel tank case. It did not write a Memorandum

Opinion for the Cockeysville or Greenspring facilities cases. On

September 9, 2004, the circuit court issued a preliminary

injunction ordering Petitioner to cease all construction activity,

and to remove hundreds of tons of stockpiled railroad ballast

from the facility. A timely appeal was filed.

30. U.S. District Court. The U.S. District Court started

with a presumption against preemption, then found 49 U.S.C. §

10501 (b) did not completely preempt all local and State

regulation of railroad facilities, T.(USDC) 57, citing as authority,

Florida East Coast RY v. City of West Palm Beach, 266 F. 3d

1324 (11™ Cir. 2001) [which held non-rail carrier activities are.

not preempted]. It did not address Petitioner’s argument that

State courts do not have the authority to render a binding judicial

decision based on the State court’s interpretation of a federal

statute, when that statute contains a provision for exclusive

federal jurisdiction. It did not adopt the decision rendered in

Cedarapids, Inc. v. Chicago, Central & Pacific R., 265 F. Supp.

2d 1005 at 1010 (N.D. Iowa 2003), where that court held that the

Interstate Commerce Commission Termination Act (“ICCTA”)

completely preempts state regulation of railroads. Petitioner then

filed a Complaint for Injunctive Relief in the U.S. District Court

for Maryland, asking the court to enjoin the attorneys who had

sued Petitioner, from attempting to subject Petitioner’s railroad

facility to Maryland’s regulations. The U.S. District Court

dismissed Petitioner’s Complaint for lack of subject-matter

jurisdiction, citing its previous finding that 49 U.S.C. § 10501

(b) did not completely preempt local or State regulation of

railroad facilities, the Rooker-Feldman doctrine and the doctrine

of collateral estoppel. Petitioner appealed the dismissal of his

Complaint for Injunctive Relief to the 4" Circuit Court of

Appeals. On February 14, 2005, the 4" Circuit affirmed the

District Court’s decision “for the reasons stated by the district

court.”

31. Circuit court. At a November 18, 2004, hearing on

Respondents’ Motion for Summary Judgment, Judge Watts,

without making any findings of fact, T. (perm inj) 55. E. 138,

signed an injunctive order, enjoining Petitioner from continuing

with the construction of his Cockeysville railroad maintenance-

of-way facility. Petitioner timely filed a Notice of Appeal.

Greenspring railroad headquarters & maintenance-of-way

facility: Case No. 03-C-03-013144; Appeal No. 1802.

32. Petitioner uses his Greenspring site as a maintenance-of-

way storage facility, as his railroad headquarters, and for ‘back-

office’ support purposes. Ten years prior to Petitioner

purchasing the Greenspring facility, a printed circuit board

company contaminated the soil at the site by pouring chlorinated

solvents on the ground. The EPA investigated the site, then

closed the file, recommending no remediation. Respondent

MDE received a grant to reinvestigate previously closed cases.

The Greenspring site was selected for further review. Petitioner

objected to MDE’s efforts to investigate the site, citing 49 U.S.C.

§10501(b), which grants the Surface Transportation Board

exclusive regulatory jurisdiction over railroad facilities. MDE

filed a Complaint for Injunctive Relief in the Circuit Court for

Baltimore County asking the court to order Petitioner to grant

MDE access to the site. At a motion hearing, the court granted

MDE the injunctive relief it sought. Petitioner removed the case

to the U.S. District Court. That court remanded the case back to

the circuit court on September 8, 2004, citing the same reasoning

it had used before remanding Case No. 03-C-04-008920

(Cockeysville case) back to the circuit court. MDE seeks to

force Petitioner to pay the full cost of remediating the site

(estimated cost = $500,000 or more).

33. Undue interference with Petitioner’s railroad

operations: Respondents permitting requirements unduly

interfere with Petitioner’s railroad operations, for these

permitting requirements, and the attendant litigation associated

with these permitting requirements, have stopped construction of

Petitioner’s Cockeysville railroad maintenance-of-way facility,

and have seriously impeded Petitioner’s ability to maintain his

maintenance-of-way equipment and his line of railroad.

Furthermore, Respondents permitting requirements prohibit any

type of development in a riverine floodplain, and prohibit

placing any type of equipment, or material, such as railroad

ballast, in a riverine floodplain, and thus preclude using

Petitioner’s Cockeysville site as a maintenance-of-way facility.

See Baltimore County Code §32-8-101(g)(1 ), and §32-4-414(c),

p. 60 Appendix. (The entire site is in a riverine floodplain.) The

economic costs associated with obtaining another site adjacent

to a railroad right-of-way in the Baltimore area would drain

capital from Petitioner’s railroad operations, and would thus

impair Petitioner’s ability to fully capitalize his railroad

operations, thus unduly interfering with Petitioner’s railroad

operations. (There are no other sites along the Cockeysville line

of railroad where a maintenance-of-way facility could be built.)_

The effect of the state’s environmental laws is to force Petitioner

to purchase an alternative site for Petitioner’s maintenance-of-

way facility. This conflicts with the court’s holding in CSX

Transp., Inc. v. City of Plymouth, 92 F. Supp. 2d 643, 658 (E.D.

Mich. 200C), wherein that court stated: “To the extent the state

law is viewed as having the effect of requiring the railroad to

undergo substantial capital improvements, the Court finds that

the law is preempted by the Interstate Commerce Commission

Termination Act.”

11. REASONS FOR GRANTING THE WRIT

34. This case falls within the considerations in Supreme

Court Rule 10 governing review on certiorari, specifically:

(A) The 4" Circuit Court of Appeals and Maryland’s

Appellate Courts have rendered decisions in conflict with the

decisions of other U.S. District Courts and Courts of Appeal.

[Preemptive reach of 49 U.S.C.§10501(b): 8" circuit, 5" circuit,

N.D. lowa, N.D. Georgia, D.S.Dakota.: complete preemption;

4" circuit and Maryland: not complete preemption. See 4 56,

infra.| [There is a beginning assumption of non-preemption

when the State attempts to regulate “transportation by rail

carrier” (an area where there has been a history of significant

federal presence). These decisions conflict with U.S. v. Locke,

529 U.S.104, 108; CSX Transp., Inc. v. City of Plymouth, 92

F. Supp 2d 643, 648 (E.D. Mich. 2000); and CSX Transp., Inc.

v. Williams, 406 F.3d 667, 673 (D.C.Cir. 2005).

(B) Maryland’s courts have decided important federal

questions in a way that conflicts with other U.S. District Courts

and Courts of Appeal: [Preemptive reach of 49 U.S.C.

§10501(b): 9" circuit: preempts State environmental laws;

Maryland: does not preempt Maryland’s environmental

laws.] [Maryland courts: The remedies in 49 U.S.C. §§ 10101 -

11908 are not exclusive. Conflicts with CSX Transp., Inc. v.

Georgia Public Serv. Com'n, 944 F.Supp. 1573, 1581 (N.D. Ga.

1996) and Deford v. Soo Line Railroad Company, 867 F.2d

1080, 1091 (8 Cir.1989) [“The ICA provides both a forum and

a set of remedies that is exclusive and completely preempts

competing state law claims.”].

decided an important question of federal law that has not been,

but should be, settled by this Court: Maryland: 49 U.S.C.

§10501(b) does not vest the STB with exclusive regulatory

authority over rail facilities containing railroad-related

equipment, when that railroad facility is not owned by a federally

licensed rail carrier.

(D) Maryland has decided an important federal question in a

way that conflicts with relevant decisions of this Court. [May a

State court render a binding judicial decision based on its

interpretation of a federal statute containing a provision for

exclusive federal jurisdiction?: U.S. Supreme Court: No;

Maryland: Yes.]

12. SUMMARY OF ARGUMENT

35. This case involves the interpretation of 49 U.S.C. §

10501 (b), a federal statute which states the Surface

Transportation Board shall have exclusive jurisdiction over the

regulation of transportation by rail carriers. The Supreme Court

has held that state courts do not have the authority to render

binding judicial decisions based on a state court’s interpretation

of a federal statute which contains a provision for exclusive

federal jurisdiction. Consequently, the judicial decisions

rendered by those Maryland state courts that have interpreted the

preemptive reach of 49 U.S.C. § 10501 (b), are nullities.

36. The Supreme Court has held that in an area where there

has been a history of significant federal presence (such as the

regulation of rail carriers), there is no beginning presumption

13 )

against preemption. A number of courts (see 156, below) have

held 49 U.S.C. § 10501 (b) completely preempts regulation of

transportation by rail carriers, and have further held that with

respect to the regulation of transportation by rail, the remedies

found in 49 U.S.C. §§ 10101 -11908, are exclusive, and preempt

all other Federal or State remedies.

37. Since the STB has exclusive jurisdiction over

transportation by rail carriers, only the STB may render a

decision determining when an entity becomes a rail carrier, or

determining whether a facility is a railroad facility. Likewise,

since the STB has exclusive jurisdittion over the construction,

operation and maintenance of railroad facilities, a rail carrier

need not obtain a permit from a state or local official prior to

constructing a railroad facility.

38. Railroad facilities need not be adjacent to a railroad’s

main line, in the same state as a railroad’s main line, or owned by

a federally licensed rail carrier, in order to be ‘instrumentalities

of interstate commerce,’ subject to the exclusive jurisdiction of

the STB. Petitioner would further argue that under the

Commerce Clause of the Constitution, Petitioner’s Sites, as

‘Instrumentalities of Interstate Commerce,” are subject to

Federal, not State regulation.

39. When State and local laws are preempted, the question

of harm to the state and the matter of the public interest drop

from the case.

13. ARGUMENT

14. ASTATE COURT MAY NOT RENDER A BINDING

JUDICIAL DECISION INTERPRETING 49 U.S.C.

§10501(b) [WHICH CONTAINS A PROVISION

FOR EXCLUSIVE FEDERAL JURISDICTION]

40. In ASARCO Inc. v. Kadish, 490 U.S. 605, 617, 109 S.Ct.

2037, 2045, 104 L.Ed. 2d 696 (1989) the Supreme Court made

the following statement: “Although the state courts are not

bound to adhere to federal standing requirements, they possess

the authority, absent a provision for exclusive federal

jurisdiction, to render binding judicial decisions that rest on

their own interpretations of federal law.... (Emphasis added.)

41. Since 49 U.S.C. § 10501 (b) contains a provision for

exclusive federal jurisdiction over the regulation of railroad

facilities, and since the Supreme Court has held state courts may

render binding judicial decisions based on the state court’s

interpretation of a federal statute only if the federal statute does

not contain a provision for exclusive federal jurisdiction, state

courts do not have the authority to render a binding judicial

decision based on that state court’s interpretation of 49 U.S.C. §

-10501 (b). Consequently, all the decisions rendered by

Maryland’s state courts with regard to Petitioner’s railroad

facilities, are invalid and are nullities.

15. THERE IS NO BEGINNING PRESUMPTION

AGAINST PREEMPTION WHEN THE STATE

REGULATES IN AN AREA WHERE THERE HAS BEEN

A HISTORY OF SIGNIFICANT FEDERAL PRESENCE

42. In U.S. v. Locke, 529 U.S. 104, 108; 120 S. Ct. 1135,

1147, the court stated: “‘an “assumption” of nonpreemption is

not triggered when the State regulates in an area where there has

been a history of significant federal presence.” .... See also:

CSX Transp., Inc. v. City of Plymouth, 92 F. Supp. 2d 643, 649,

discussed in 945 below. .... In accord: CSX Transp., Inc. v.

Williams, 406 F.3d 667, 673 (D.C.Cir. 2005).

16. 49 U.S.C. § 10501 (b) COMPLETELY PREEMPTS

ALL STATE AND LOCAL REGULATION

OF RAIL CARRIER FACILITIES.

16 A. PREEMPTION GUIDELINES

43. “ “The question whether a certain state action is

preempted by federal law is one of congressional intent. ‘The

purpose of congress is the ultimate touchstone.’ ” Allis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904,

1909-10, 85 L.Ed.2d 443 (1978); *** (quoting Malone v. White

Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189-90, 55

L.Ed.2d 443 (1978)). To discern Congress’ intent we examine

the explicit statutory language and the structure and purpose of

the statute.” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133,

137-138, 111 S.Ct. 478, 482, 112 L.Ed. 2d 474 (1990).

44. In CSX Transp., Inc. v. Georgia Public Serv. Com'n,

op.cit. at 1580 - 1581, that court stated:

“Preemption doctrine is rooted in the Supremacy Clause

of the United States Constitution, Teper v. Miller, 82 F.3d

989, 993 (11" Cir. 1996). See U.S. Const. Art. VI, cl. 2.

Because it requires that conflicts between state and federal

law be resolved in favor of federal law, the Supremacy

Clause prohibits the enforcement of any state law that

conflicts with a valid federal statute. Taylor v. General

Motors Corp., 875 F.2d 816, 821 (11" Cir. 1989).

... The intent of Congress to expressly preempt state law is

“primarily discerned from the language of the preemption

statute and the statutory framework surrounding it.”

Medtronic, supra. The policy behind the federal statute, as

well as its legislative history, may also be relevant in

determining whether Congress intended the statute to

preempt state law. Teper v. Miller.

45. In CSX Transp., Inc. v. City of Plymouth, op. cit., the

court cited the following from U.S. v. Locke, op. cit. at U.S. 108,

S. Ct. at 1147-1148, (a case involving maritime preemption):

“In Locke, the Court made clear that “an ‘assumption’ of

nonpreemption is not triggered when the State regulates in an

area where there has been a history of significant federal

presence.” ... “The Locke Court noted that “Congress has

legislated in the [area of maritime commerce] from the

earliest days of the Republic, creating an extensive federal

statutory and regulatory scheme.” City of Plymouth at 648.

“Important for our purposes here, the Court expressly stated:

“The state laws now in question bear upon national and

international maritime commerce, and in this area there is no

beginning assumption that concurrent regulation by the State

is a valid exercise of its police powers. Rather, we must ask

whether the local laws in question are consistent with the

federal statutory structure, which has as one of its objectives

a uniformity of regulation for maritime commerce.” Locke

at 1148. City of Plymouth at 648.

The City of Plymouth court then stated:

“There can be no doubt that just as Congress has

regulated ships and vessels since the beginning of the

Republic, it has similarly done so with respect to our

Nation’s rail system. Both Congress and the courts have

traditionally recognized a need to regulate railroad operations

at a national level. Enacted in 1887, the Interstate Commerce

Act, ch. 104, 24 Stat. 379 (1887), has been described as

“among the most pervasive and comprehensive of federal

regulatory schemes.” ... As amended, the Act still governs

federal railroad regulation. Congress’ power to regulate the

railroad industry has been well-recognized. .. The

preclusive effect of federal regulation has been repeatedly

acknowledged. Chicago and N.W. Transp. Co. v. Kalo

Brick & Tile Co., 450 U.S. 311, 318, 101 S. Ct. 1124, 67

L.Ed. 2d 258 (1981). City of Plymouth at 648. (Emphasis

added.)

After citing numerous Acts of Congress that affect railroads,

the City of Plymouth court then concluded:

“These decisions and Acts of Congress, as well as the

numerous federal regulations which pertain to this area, have

created “an extensive federal statutory and regulatory

scheme.” Locke at 1148. Accordingly, in this area, as in

Locke, where the state statute at issue bears upon an area

traditionally regulated by the federal government, “there is

no beginning assumption that concurrent regulation by

the State is a valid exercise of its police powers.” /d. City

of Plymouth at 649. (Emphasis added.)

“To the extent the state law is viewed as having the effect

of requiring the railroad to undergo substantial capital

improvements, the Court finds that the law is preempted by

the Interstate Commerce Commission Termination Act.”

City of Plymouth at 658.

16 B. ICCTA PREEMPTION

46. The ICCTA contains an express preemption clause. As

was stated in CSX Transp., Inc. v. Georgia Public Serv. Com’n,

op. cit (p. 1581): “It is difficult to imagine a broader statement

of Congress’s intent to preempt state regulatory authority over

railroad operations.” In the CSX case, the Defendants tried to

argue the ICCTA’s preemption clause preempted state remedies

only when federal remedies are provided under the ICCTA. The

court responded to this argument as follows:

“Defendants’ argument reflects a misunderstanding not only

of the plain language of section 10501 (b)(2), but also of the

ICC Termination Act generally. The most natural reading of

section 10501(b)(2) is that the federal remedies provided by

the ICC Termination Act are the only remedies available as

to the regulation of rail transportation, and that the federal

remedies are exclusive of state remedies except where the

ICC Act has expressly provided otherwise.

47. The court in CSX Transp., Inc. v. Georgia Public Serv.

Com’n, op. cit., (“CSX’”) stated:

“As discussed, it is clear to the Court that Congress intended

the preemptive net of the ICC Termination Act to be broad

by extending exclusive jurisdiction to the STB over anything

included within the general and all inclusive term

“transportation by rail carriers.” 49 U.S.C. 10501 (b)(a).

The Court will not ignore Congress’s use of broad terms

which include railroad agencies, such as “transportation by

rail carriers” and “services” related to rail transportation,

merely because Congress specifically denoted its intent to

preempt state regulatory authority of wholly intrastate spur

and side tracks in the same code section. Intrastate spur and

side tracks were explicitly excluded from federal jurisdiction

in the ICC Termination Act’s predecessor, the Staggers Rail

Act. See Illinois Commerce Commission v. ICC , supra, at

921. (Recognizing that intrastate spur abandonments were

explicitly placed within exclusive jurisdiction of states and

outside jurisdiction of ICC under Staggers Rail Act). Thus

Congress’s specificity as to intrastate tracks does not detract

from its use of widely inclusive terms such as “transportation

by rail carriers” in the ICC Termination Act’s preemption

clause and statement of the STB’s exclusive jurisdiction.

There is no basis on which to argue that Congress intended

to carve out regulatory control over agencies as an exception

to its otherwise broad preemption of state regulation of

railroad operations.”

“Perhaps the most significant change to the Staggers Rail

Act, which the Court has already discussed, is the ICC

Termination Act’s express removal from the states of

i a

jurisdiction over wholly intrastate railroad tracks. With the

extension of exclusive federal jurisdiction over wholly

intrastate tracks, one of the few railroad matters previously

within the jurisdiction of the state, the ICC Termination Act

evinces an intent by Congress to assume complete

jurisdiction, to the exclusion of the states, over the

regulation of railroad operations. See H.R. Conf. Rep. No.

422, 104" Cong., 1" Sess. 167 (1995), U.S. Code Cong. &

Admin. News 1995, p. 852 (explaining that only state

regulation of non-rail matters, for example in state

criminal statutes, is not preempted by ICC Termination

Act because state regulation of nonrail matters does not

“generally collide with the scheme of economic regulation

(and deregulation) of rail transportation”).” CSYX, Id. at

1584. (Emphasis added.)

48. In Soo Line R. Co. v. City of Minneapolis, 38 F. Supp. 2d

1096, (D. Minn. 1998), that court stated:

“Thus, when section 10501(b) grants the STB exclusive

jurisdiction over “transportation by rail carriers,” it logically

includes the yard, property, facilities and any intermodal

equipment used in connection with a railroad, or related

to the movement of passengers or property.” /d. at 1099.

(Emphasis added.)

49. In City of Auburn v. U.S. Government, 154 F.3d 1025

(9" Cir. 1998), the court held “there is nothing in the case law

that supports Auburn’s argument that, through the ICCTA,

Congress only intended preemption of economic regulation of

the railroads. All the cases cited by the parties find a broad

reading of Congress’ preemption intent, not a narrow one. See

also Georgia Public Service Comm'n v. CSX Transp., Inc., 225

Ga. App. 787, 484 S.E. 2d 799, 801 (1997); In re Burlington

Northern R.R., 249 Neb. 821, 545 N.W.2d 749, 751 (1996).”

City of Auburn at 1030.

“Pre-ICCTA case law addressing federal preemption over

railroad operations also supports a broad reading of the

statute.” City of Auburn at 1030.

“We believe the congressional intent to preempt ...

- State and local [environmental] regulation of rail lines is

explicit in the plain language of the ICCTA and the

statutory framework surrounding it.” Cit’ of Auburn at

1031. (Emphasis added.)

“Additionally, given the broad language of §10501(b),

the distinction between “economic” and “environmental”

regulation begins to blur. For if local authorities have the

ability to impose “environmental” permitting regulations on

the railroad, such power will in fact amount to ‘economic

regulation” if the carrier is prevented from constructing,

acquiring, operating, abandoning, or discontinuing a line.”

Id. at 1031.

The court then concluded: “State and local permitting laws

regarding railroad operations are preempted by the plain

language of the ICCTA, and the statutory framework

surrounding it.” City of Auburn at 1033. (Emphasis added.)

50. In Wisconsin Central Ltd., v. The City of Marshfield, 160

F. Supp. 2d 1009 (W.D. Wis. 2000), the city argued the

relocation of railroad property is not its regulation. The court

made the following statements:

“Environmental laws - statutes of general application - have

been found to be expressly preempted under the ICCTA

when applied to facilities and property constituting rail

‘ transportation.” See City of Auburn, 154 F.3d at 1031”.

(Emphasis added.) Wisconsin Central Ltd. at 1014.

16 C. COMPLETE PREEMPTION GUIDELINES

Ordinary vs. Complete preemption.

51. In Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 at

63, 107 S.Ct. 1542 at 1546, 95 L.Ed. 2d 55 (1987), the court

made the following comments:

“Federal pre-emption is ordinarily a federal defense to the

plaintiff's suit. As a defense, it does not appear on the face

of a well-pleaded complaint, and, therefore, does not

authorize removal to federal court. Gully v. First National

Bank, {299 U.S. 109 at 113, 57 S.Ct. 96 at 98, 81 L.Ed. 70

(1936)]. One corollary of the well-pleaded complaint rule

developed in the case law, however, is that Congress may so

completely pre-empt a particular area that any civil complaint

raising this select group of claims is necessarily federal in

character. For 20 years, this Court has singled out claims

pre-empted by §301 of the LMRA for such special treatment.

Avco Corp. v. Machinists, 390 U.S. 557, 88 $.Ct. 1235, 20

L.Ed.2d 126 (1968).

“The necessary ground of decision [in Avco] was that the

preemptive force of §301 is so powerful as to displace

entirely any state cause of action ‘for violation of contracts

between an employer and a labor organization.” Any such

suit is purely a creature of federal law, notwithstanding the

fact that state law would provide a cause of action in the

absence of §301.” Franchise Tax Board of Cal. v.

Construction Laborers Vacation Trust, 463 U.S. 1 at 23, 103

S.Ct. 2840 at 2853, [77 L.Ed. 2d 420 (1983)].”

52. In cases where complete preemption exists, “any

complaint that comes within the scope of the federal cause of

action necessarily ‘arises under’ federal law.” Franchise Tax

Board v. Const. Laborers Vac. Trust, 463 U.S. 1 at 24, 103 S.Ct.

2840 at 2854, 77 L.Ed. 2d 420 (1983).

Complete preemption guidelines:

53. This Court has found §310 of the LMRA (Avco, supra)

and §§ 502 (a) and 514 (a) of ERISA,’ completely preempt state

law. In each of the eight ICA cases addressed by this Court,

this Court has held the ICA preempted the State law at issue.

See the Supreme Court cases listed in the Appendix on pp. 101-

102. In the Aetna and Pilot Life cases (see footnote 5), this Court

enumerated a number of factors a court should consider when

trying to decide if a particular federal statute completely

preempts state law. A list of those factors, and a review of 49

U.S.C. § 10501(b) in light of those factors, follows:

A. Does the statute have expansive preemption provisions?

Aetna at 2495; Is the pre-emption clause conspicuous for its

breadth? FMC Corp. 498 U.S. 52, 58, 111 S.Ct. 403, 407;

Does the statute use “deliberately expansive” language? Pilot at

U.S. 46, S.Ct. 1552; Is the statute designed to “establish ...

regulation as exclusively a federal concern?” Pilot, Id.

. The ICCTA’s preemption provision is expansive, is

conspicuous for its breadth, and uses deliberately expansive

language. [The preemptive clauses of 49 U.S.C. §10501(b) and

§§502(a) and 514 (a) of ERISA, appear on pages 2 and 5.] The

pre-emptive reach of 49 U.S.C. §10501(b) appears to be even

broader than that in §502(a). § 502(a) permits concurrent federal

and state jurisdiction for §§ 502(a)(1)(B) and (a)(7). The ICCTA

specifically removed a previous provision for concurrent state

regulation (over wholly intrastate spur, etc. track) that was in the

Staggers Rail Act. The pre-emptive reach of the ICCTA is also

broader than that in §514(a) of ERISA, for the pre-emptive reach

of the ICCTA precludes regulatory remedies provided under both

’ State and all other Federal statutes, whereas §514(a) only

precludes all State remedies.

5 Aetna Health Inc. v. Davila, 542 U.S. 200, 124 S. Ct. 2488 (2004);

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137-139, L11 S.Ct. 478,

482, 112 L.Ed. 2d 474 (1990); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,

107 S.Ct. 1549, 95 L.Ed.2d 39 (1987).

B. Does the statute create a “comprehensive legislative

scheme” for the regulation of its subject matter? Aetna at 2495.

Does the statute “comprehensively regulate” its subject matter?

Pilot Life at U.S. 44, S.Ct. 1551. As indicated on page 46 of the

Appendix, the ICCTA (and its predecessors) comprehensively

regulates the railroad industry.

C. Does the statute present a balancing of policy choices,

including certain remedies and excluding other remedies? Aetna

at 2495. The Supreme Court has held §502(a) of ERISA limits

enforcement remedies to those specified in §502(a). “Therefore,

any state-law cause of action that duplicates, supplements, or

supplants the ERISA civil enforcement remedy conflicts with the

clear congressional intent to make the ERISA remedy exclusive,

and is therefore pre-empted.” Aetna at 2495.

The Supreme Court stated in Pilot Life, op. cit., at U.S. 55,

S.Ct. 1557: “{I]n enacting § 301 Congress intended doctrines

of federal labor law uniformly to prevail over inconsistent local

rules.” “The uniformity of decision which the Act [ERISA] is

designed to foster will help ... to predict the legality of proposed

actions without the necessity of reference to varying state laws.”

Id, U.S. at 56, S.Ct. at 1557. Ifthe States were allowed to have

any regulatory authority over transportation by rail carriers, there

would be no uniformity of decisions, which would violate the

policy of ensuring “fair” (meaning consistent) decisions.

The following statements, made by the Supreme Court in

the Pilot Life case, are equally applicable to the ICCTA:

“The Solicitor General, for the United States as amicus

curiae, argues that Congress clearly expressed an intent that

the civil enforcement provisions of ERISA §502(a) be the

exclusive vehicle for actions by ERISA plan participants and

beneficiaries asserting improper processing of a claim for

benefits, and that varying state causes of action for claims

within the scope of §502(a) would pose an obstacle to the

purposes and objectives of Congress. *** We agree.” Pilot

Life, Id. at U.S. 52, S.Ct. at 1555.

“In sum, the detailed provisions of §502(a) set forth a

comprehensive civil enforcement scheme that represents a

careful balancing of the need for prompt and fair claims

settlement procedures against the public interest in

encouraging the formation of employee benefit plans. The

policy choices reflected in the inclusion of certain remedies

and the exclusion of others under the federal scheme would

be completely undermined if ERISA-plan participants and

beneficiaries were free to obtain remedies under state law

that Congress rejected in ERISA.” Pilot Life, Id. at U.S. 54,

S.Ct. 0 1556. ~

D. Does the state law “pose an obstacle to the purposes and

objectives of Congress?” Pilot Life at U.S. 52, S.Ct. 1555.

Aetna at 2500. Congress wanted rail carriers to be subject to a

uniform set of regulations, consistently applied, with decisions

rendered in an expeditious manner. State and local regulations

are a hodgepodge of regulations, which, if applicable to rail

carriers, would pose an obstacle to Congress’s purpose of having

rail carriers subject to a uniform set of regulations.

E. Does the state remedy provide a separate vehicle to assert

a claim outside of, or in addition to, the statute’s remedial

scheme? Aetna at 2500. If a state remedy “duplicates,

supplements, or supplants” the remedies specified in the ICCTA,

then it “conflicts with the clear congressional intent to make the

{1CCTA] remedy exclusive and is therefore pre-empted.” Aetna

at 2495. It is preempted under the doctrine of conflict

preemption.

In the instant case, the remedies the Respondents are

seeking, “supplements or supplants,” and are “outside of, or in

addition to,” the remedies specified in the ICCTA. As such,

they conflict with Congress’ clearly manifested intent that with

respect to regulation of rail transportation, the remedies in 49

U.S.C. §§101 - 11908 are exclusive and preempt the remedies

provided under State law. Therefore, respondents’ State-law

remedies are pre-empted under the doctrine of conflict

preemption.

16 D. STATE LAW IS COMPLETELY PREEMPTED

54. The following statements, made in the /ngersoll case at

U.S. 138, are equally applicable to the ICCTA:

“Where, as here, Congress has expressly included a

broadly worded pre-emption provision in a comprehensive

statute such as ERISA, our task of discerning congréssional

intent is considerably simplified.

“The pre-emption clause is conspicuous for its breadth.”

. Its “deliberately expansive” language was “designed to

‘establish pension plan regulation as exclusively a federal

concern.” ”... Moreover, to underscore its intent that § 514

(a) be expansively applied, Congress used equally broad

language in defining the “State law” that would be

preempted.” Ingersoll at U.S. 138-139, S.Ct. 482.

“Section 514(a) was intended to ensure that plans and plan

sponsors would be subject to a uniform body of benefits law; the

goal was to minimize the administrative and financial burden of

complying with conflicting directives among States or between

States and the Federal Government. Otherwise, the

inefficiencies created could work to the detriment of plan

beneficiaries. *** Particularly disruptive is the potential for

conflict in substantive law. It is foreseeable that state courts,

exercising their common law powers, might develop different

substantive standards applicable to the same employer conduct,

requiring the tailoring of plans and employer conduct to the

peculiarities of the law of each jurisdiction. Such an outcome is

fundamentally at odds with the goal of uniformity that Congress

sought to implement.” /ngersoll at U.S. 142, S.Ct. 484.

55. The preemptive language of the ICCTA uses deliberately

expansive language, is conspicuous for its breadth, is designed

to limit regulation of transportation by rail carriers to the STB,

and is even broader than that in ERISA. The ICCTA has a

comprehensive scheme for the regulation of transportation by rail

carriers. The ICCTA presents a balancing of policy choices,

including certain remedies and excluding others. Congress

intended that the preemptive reach of the ICCTA was to be very

broad, and was to preempt all State, local and federal statutes

which, by their necessary operation, might directly or indirectly,

duplicate, supplement or supplant the regulatory scheme

embodied in the ICCTA. State or local remedies conflict with

Congress’ intent to limit regulatory remedies to those embodied

in the ICCTA, for State or local remedies, if permitted, would

subject rail carriers to decisions inconsistent with those rendered

by the STB, would not be as expeditiously rendered as those

rendered by the STB, and would defeat a rail carrier’s ability to

predict the legality of its proposed actions. There can be no

doubt, given the long history of federal regulation of railroads,

and the explicit language found in the ICCTA, that Congress

intended to vest regulatory authority over rail carriers exclusively

with the STB, and that all other State, local or federal remedies

were to be completely preempted.

16 E. CASES HOLDING THE ICA COMPLETELY

PREEMPTS STATE AND LOCAL REGULATIONS

56. Deford v. Soo Line Ry. Co., 867 F. 2d 1080, at 1088,

1090, 1091 (8" Cir. 1989); Friberg v. Kansas City So. Ry.

Co., 267 F.3d 439, 443, 444 (5" Cir. 2001); Cedarapids, Inc. v.

Chicago, Central & Pac. R., 265 F. Supp. 2d 1005 at 1010 (N.D.

lowa 2003); Dakota, Minn. & Eastern R.R. Corp. v. So. Dakota,

236 F. Supp. 2d 989, 1005 (D.S.D. 2002). CSX Transp., Inc. v.

Georgia Pub. Serv. Com’n, op.cit. at 1584. See also the

Supreme Court cases cited on pp.101-102 of the Appendix.

17. THE ISSUES OF FEDERAL PREEMPTION

ARE NOT MOOT

57. Maryland’s Court of Special Appeals noted Petitioner’s

Maryland NOE, was revoked on April 20, 2004, six days before

the circuit court motion hearing, where at the Greenspring

injunction was issued. The Court of Appeals then concluded that

since Petitioner did not have federal rail carrier status on the

motion-hearing date, the issue of federal preemption in that case

was rendered moot. CSA 13,14. Petitioner would first argue

that since the Greenspring facility was continuing to be used for

railroad-related purposes on the date the injunction was issued

(to store railroad-related equipment), the Board still had

exclusive regulatory jurisdiction over that facility, and that the

State court did not have the authority to issue the injunction.

Petitioner would argue his status as a federal rail carrier is not

controlling. The statute does not say the facility, or the railroad-

related equipment, has to be owned by a federally licensed rail

carrier. Quite the contrary. 49 U.S.C. § 10102(9) (A)

specifically states “transportation” includes equipment of any

kind, regardless of ownership, related to the movement of

passengers or property by rail.

58. Petitioner would further argue that the injunction became

unenforceable on May 5, 2004, when Petitioner regained his rail

carrier status, thereby revesting (if it had been lost) the Board

with exclusive jurisdiction over this railroad facility. Further-

more, if this court finds that the facility, or equipment being

stored at the facility, must be owned by a licensed rail carrier,

then, since Petitioner had rail carrier status prior to the date the

Court of Special Appeals rendered its opinion, and continues to

have rail carrier status, that court did not have jurisdictional

authority to render a decision which subjected the Greenspring

facility to State regulatory authority, or which provided for a

remedy which was not contained in 49 U.S.C. §§ 10101-11908.

59. Petitioner would argue taking judicial notice of the

Board’s 2/23/05 decision, revoking Riffin’s third Notice of

Exemption, without also taking judicial notice of the Board’s

12/14/05 decision, granting Riffin authority to operate a line of

railroad in Allegany County, Maryland, would violate the due

process and equal protection clauses of the U.S. Constitution.

18. THE ICCTA PROHIBITS A LOCAL OR STATE

AGENCY FROM REQUIRING THAT PERMITS BE

OBTAINED PRIOR TO RAILROAD-RELATED

CONSTRUCTION ACTIVITIES

60. In CSX Transportation, Inc. — Petition for Declaratory

Order, STB Docket No. 34662, decided 3/14/05, the Board

addressed the scope of the ICCTA preemption. [This decision

appears on p. 69 of the Appendix.] On p.6 of its decision, the

Board made the following germane comments:

“The District contends that section 10501(b) only

preempts direct “economic” regulation of railroads, and not a

state or local measure aimed at protecting its residents.

However, as the courts that have examined that provision have

uniformly concluded, any notion that the statutory preemption in

section 10501(b) is limited to direct state and local economic

regulation is contrary to the broad language of the statute and

unworkable in practice. See, e.g., Friberg, 267 F.3d at 443; City

of Marshfield, 160 F.Supp.2d at 1014 (section 10501(b) is broad

enough to “expressly preempt more than just those laws

specifically designed to regulate rail transportation”). ... Thus the

scope of section 10501(b) is broader than just direct economic

regulation of railroads.”

“However, the courts have made clear that state or local

permitting or preclearance requirements of any kind that

would affect rail operations (including building permits,

zoning ordinances, and environmental and land use

permitting requirements) are preempted. See, e.g., Cityof —

Auburn, 154 F.3d at 1029-31; Soo; Austell; Ridgefield

Park.” (Emphasis added.)

61. In City of Auburn v. U.S. Government, supra, at 1033,

the 9" Circuit Court of Appeals held:

“State and local permitting laws regarding railroad operations

are preempted by the plain language of the ICCTA, and the

statutory framework surrounding it.”

62. In CSX Transp., Inc. v. Georgia Public Serv. Com'n, 944

F. Supp. 1573, 1581 (N.D. Ga. 1996), that court stated:

“The most natural reading of section 10501 (b)(2) is that the

federal remedies provided by the ICC Termination Act are

the only remedies available as to the regulation of rail

transportation, and that the federal remedies are exclusive

of state remedies except where the ICC Act has expressly

provided otherwise.

63. As stated in Soo Line R. Co. v. City of Minneapolis, 38

F. Supp. 2d 1096, 1099 (D. Minn. 1998):

“Thus, when section 10501 (b) grants the STB exclusive

jurisdiction over “transportation by rail carriers,” it logically

includes the yard, property, facilities and any intermodal

equipment used in connection with a railroad, or related to

the movement of passengers or property.” (Emphasis added.)

64. At the U.S. District Court hearing, Mr. Snyder, attorney

for Respondent MDE, made the following statement:

“The state agrees that economic regulation, state and

local economic regulation has been held to be completely

preempted by the ICCTA.” T. (USDC) 28.

19. A RAILROAD FACILITY NEED NOT BE

ADJACENT TO A RAILROAD’S MAIN LINE, OR IN

THE SAME STATE AS A RAILROAD’S MAIN LINE,

OR OWNED BY A FEDERALLY LICENSED RAIL

CARRIER IN ORDER TO BE AN ‘INSTRUMENTALITY

OF INTERSTATE COMMERCE,’ SUBJECT TO THE

EXCLUSIVE JURISDICTION OF THE STB.

65. In CSX Transp., Inc. v. Georgia Public Serv. Com’n, op.

cit., at 1585, the court made the following comments:

“Congress has authority to regulate even intrastate

aspects of the operation of railroads because railroads are

instrumentalities of interstate commerce. See United States

v. Bishop, 66 F.3d 569, 588 (3d Cir. 1995) (holding that

Congress can regulate motor vehicles as an instrumentality

of interstate commerce and stating “the Supreme Court has

made clear that airplanes, railroads, highways and bridges

constitute instrumentalities of commerce which Congress can

regulate under the commerce clause”). Congress has more

authority to regulate instrumentalities of interstate commerce

because instrumentalities of interstate commerce, as the

means of transporting goods and people across state lines,

have an inherently substantial effect on interstate commerce.

20. ROOKER - FELDMAN DOCTRINE

66. There are several exceptions to the Rooker-Feldman

doctrine: “If the preemptive force of the federal statute is so

powerful as to displace entirely any state cause of action... .

Se]

Franchise Tax Bd. V. Const. Laborers Vac. Trust, 463 U.S. 1,

23, 103 S. Ct. 2840, 2853, 77 L.Ed. 2d 420 (1983).”

21. WHEN STATE LAW IS PREEMPTED, THE

QUESTION OF HARM TO THE STATE

AND THE MATTER OF THE PUBLIC INTEREST

DROP FROM THE CASE

67. In Bank One, Utah v. Guttau, 190 F.3d 844 at 847-848

(8" Cir. 1999), that court made the following statement:

“If Bank One proves that the relevant provisions of the lowa

‘EFT are preempted by the NBA and that it will suffer

irreparable harm if the State is not enjoined from enforcing

those provisions, then the question of harm to the State and

the matter of the public interest drop from the case, for Bank

One will be entitled to injunctive relief no matter what the

harm to the State, and the public interest will perforce be

served by enjoining the enforcement of the invalid provisions

of state law.”

68. In Dakota, Minn. & Eastern R.R. Corp. v. South Dakota,

236 F. Supp. 2d 989, (D.S.D. 2002), that court made the

following statements:

“Since the instant action is one against the State, money ~

damages are not recoverable. The threat of unrecoverable

economic loss does qualify as irreparable harm. See Baker

Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1473 (8" Cir.

1994).” Dakota at 1013.

“This Court agrees with that conclusion and finds that the

ICCTA has preempted all state efforts to regulate railroads.”

Dakota at 1005.

22. MATERIAL FACTS WERE IN DISPUTE

69. The Court of Special Appeals held that resolution of

several facts, while in dispute, “will do little to determine

whether appellant, without ever having applied for or obtained

the required permits, cleared, filled, and graded approximately

9,000 square feet of land within the 100-year floodplain.”

Opinion at 17. Whether Petitioner disturbed 9,000 square feet of

land within the 100-year floodplain is not in dispute. What is in

dispute, is whether Appellees’ regulations have been

preempted, and if not, whether Petitioner’s activities violated

the statutes cited by Appellees, and if so, what penalties

Petitioner would be subject to. :

70. Resolution of the disputed facts will determine whether

Petitioner actually violated any of the statutes cited by Re-

spondents, and if so, what the maximum potential fine would be.

71. Since material facts were in dispute, it was not

~ appropriate for the circuit court to grant Respondents request for

summary judgment. Judgment should have been rendered after

a trial, where these disputed material facts could have been

resolved. It should be noted, the Cockeysville trial court did not

make any findings of fact.

23. PETITIONER WAS DENIED DUE PROCESS

AND EQUAL PROTECTION OF THE LAW, WHEN

THE STATE APPELLATE COURT FAILED TO RULE

ON THE COMMON LAW RIPARIAN-RIGHTS

ISSUES RAISED BY THE PETITIONER.

72. Maryland’s case law has long held that if one or more

upper landowners engage in earth-disturbing activities which

result in increased flow of water over a lower landowner’s

property, then that lower landowner may repel with levees or

fill material, waters unlawfully placed upon the lower

landowner’s property. None of the statutes relied upon by

Respondents, have express language which state they abrogate,

supercede, or modify the common law or Maryland’s case law

regarding riparian rights. Maryland’s Environment Article

specifically states: “The provisions of this subtitle do not impair

any riparian or other vested right ... .”. §5-512 Environment Art.

(applicable to §5-503 Env. Art.) “This subtitle [Subtitle 3.

Water Pollution Control.}] does not take away the right of any

person, as a riparian owner or otherwise, in equity, at common

law, or under statutory law to suppress a nuisance or abate

pollution.” § 9-303, Env. Art. (applicable to §§9-322 - 9-

323, Env. Art.)

73. The filling, grading and levee building activities at

Petitioner’s Cockeyville site, were designed to repel the unlawful

flood waters emanating from the stream which flows through

Petitioner’s property. As such, these activities were expressly

permitted by Maryland’s common law, which Maryland’s

Environment Article specifically states has not been abrogated or

modified by Maryland’s Environment Article. Petitioner argued

in the trial court and at the appellate level, that even if regulation

of his Cockeysville site was not preempted by 49 U.S.C.

§10501(b), Petitioner still had the right under Maryland’s

common law, to construct the levee he built on his property, and

to fill in the floodplain on his Cockeysville property. Maryland’s

Court of Special Appeals did not address any of these issues.

Petitioner would argue the court’s failure to address these issues,

and the court’s failure to permit Petitioner to do what the court

had permitted other Maryland citizens to do, violated Petitioner’s

- Constitutional due process and equal protection rights.

THEREFORE, the regulation of these two railroad facilities

lies exclusively with the Surface Transportation Board.

WHEREFORE, your Petitioner respectfully requests this

Court grant Petitioner’s Petition for Writ of Certiorari, then

reverse the State court decisions, then remand this case back to

the State court with instructions to dismiss Respondents

Complaints with prejudice, or to issue a permanent injunction

against the Respondents, enjoining Respondents from attempting

to subject Petitioner’s railroad facilities to State or local law [as

the Court of Appeals did in the Bank One, op.cit., case,] or

remand this case back to the U.S. District Court with instructions

to reinstate Petitioner’s Complaint for Injunctive Relief, or for

such other relief as may be appropriate.

Respectfully sybmitted,

James Rifffin d/b/a The Northern Central Railroad

and the Frostburg Southern Railroad, Petitioner

APPENDIX

James Riffin * IN THE

COURT OF APPEALS

Vv. * OF MARYLAND

DEPARTMENT OF THE * Petition Docket No. 93

ENVIRONMENT, September Term, 2006

et. all. °

(Nos. 1593 & 1802,

* Sept. Term, 2004

Court of Special Appeals

* * * * ov * * & *

Upon consideration of the petition for a writ of certiorari to

the Court of Special Appeals and the answers filed thereto, in the

above entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that the

petition be, and it is hereby, denied as there has been no showing

that review by certiorari is desirable and in the public interest.

/s/ Robert M. Bell

Chief Judge

DATE: June 16, 2006

A-l

BLANK PAGE

A-2

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

Nos. 1593 & 1802

September Term, 2004

JAMES RIFFIN

MARYLAND DEPARTMENT OF THE ENVIRONMENT,

et. all.

Salmon,

Adkins,

Sharer,

JJ.

Opinion by Sharer, J.

Filed: February 3, 2006

In this consolidated appeal,' we address appellant, James

Riffin’s, thoroughly litigated contention that, doing business as

the Northern Central Railroad (“NCR”), his operations are

subject to the exclusive jurisdiction of the United States Surface

Transportation Board (“STB”). and pursuant to the Interstate

Commerce Commission Termination Act (“ICCTA”), 49 U.S.C.

§10501(b)’, cannot be regulated by appellees, the Maryland

Department of the Environment (“MDE”) and Baltimore County

(“the County”).

Appellant, appearing in this Court pro se, as he did below,

presents a number of issues for our review, which we have

1 On June 20, 2005, following the filing of various motions, this

Court issued an order consolidating “[t]he appeal in No. 1802,

September Term, 2004 ... with the appeal in No. 1593, September

Term, 2004, for purposes of briefing and argument only.”

2 49 U.S.C. §10501(b) (1996) provides:

(b) 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.

distilled and rephrased to:°

1. Whether the circuit court erred in granting summary

judgment in favor of appellees.

2. Whether appellant’s due process rights were violated

when the circuit court granted the permanent injunction.’

Finding that the circuit court neither erred nor violated

appellant’s due process rights, we shal! affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Case No. 1802 —- The Greenspring Drive Site

Appellant is the owner and lessor of commercial property

located at 1941 Greenspring Drive, Timonium, Maryland.’ The

3 In his brief, appellant raised 21 issues with approximately 22

sub-contentions. For completeness we set out his issues, verbatim, in

the Appendix to this opinion.

Appellant worded the issues upon which we focus in this opinion

as follows:

15. Is the Permanent Injunction issued by the Circuit Court of

Baltimore County on November 19, 2004, void, due to a

lack of due process?

16. Were there material facts in dispute which would make

summary judgment inappropriate?

4 On September 13, 2004, appellant appealed the circuit court’s

issuance of the preliminary injunction. None of the issues raised in

this appeal, however, address the preliminary injunction. As such, any

arguments regarding the preliminary injunction have been waived.

See Honeycutt v. Honeycutt, 150 Md.App. 604, 618 (2003); Md.

Rule 8-504(a)(5).

5 In an earlier incarnation, appellant sought a special exception

from Baltimore County zoning regulations to utilize the property as a

“commercial recreation facility.” The Baltimore County Board of

Appeals denied the request, determining that the use sought would

actually be a “bungee jumping operation.” which is prohibited by the

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majority of the approximately 0.7 acre site is occupied by an

office building, bordered by small strips of land. There are no

railroad tracks or active rail operations on the property.

Appellant leases space in the office building to three tenants

— an office support company, a sign-making company, and a

document preparation service. None of the tenants hold

themselves out as a railroad or as providing rail services.

From approximately 1987 to 1990, the property’s previous

owner used the site for the production of printed electronic

circuit boards. In 1989, investigations revealed high levels of

volatile organic compounds and other contaminants in the soil

and groundwater beneath the surface of the property. A follow-

up survey, conducted by the Environmental Protection Agency

and the MDE, in 2000, concluded that the site’s potential

groundwater contamination required further investigation by the

MDE.

On October 12, 2000, the MDE notified appellant of the

potential hazard and requested that he conduct his own

investigation to “accelerate any necessary remedial actions” at

the site. After appellant failed to respond, the MDE issued an

administrative order, on July 5, 2001, requiring appellant to

perform an assessment of the environmental conditions at the site

and to undertake remedial measures if the conditions proved

adverse to human health or the environment. Appellant failed to

respond to the administrative order.

Appellant ultimately agreed to give the MDE access to

conduct an environmental investigation of the site, which the

MDE performed on April 25, 2002. The soil and groundwater

data gathered during the MDE’s investigation indicated levels of

Baltimore County Code. This Court affirmed that judgment in Riffin

v. People’s Counsel for Baltimore County. 137 Md.App.90 (2001).

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contaminants in the groundwater sufficient to pose a potential

health danger to the tenants at the site. Based on this

information, the MDE requested full access in order to conduct

indoor air sampling and monitoring to determine the extent of

any environmental and health hazards. Although appellant

initially indicated that he would allow the MDE access, he

revoked his consent before any indoor air quality tests could be

performed.

On December 1, 2003, after repeated attempts to obtain

appellant’s compliance with the administrative order, the MDE

filed a complaint, in the Circuit Court for Baltimore County,

seeking an injunction giving the MDE access to the Greenspring

Drive site to implement the planned indoor air quality testing.°

Appellant filed a motion to dismiss, claiming that the MDE had

no jurisdiction over the site because, since February 1, 2003, he

had been doing business as the NCR and, therefore, was subject

to the exclusive jurisdiction of the STB pursuant to the ICCTA,

49 U.S.C. §10501(b).

On April 26, 2004, the Circuit Court for Baltimore County

rejected appellant’s argument and orally granted the MDE access

to the Greenspring Drive site. The court’s written order, filed

May 3, 2004, gave the MDE “full unimpeded access to the

building located at 1941 Greenspring Drive, Timonium,

Maryland, for purposes of monitoring indoor air quality.”

On April 27, 2004, appellant removed the case to the United

States District Court for the District of Maryland on the grounds

that 49 U.S.C. §10501 preempted the State’s environmental

6 The MDE sought to perform the monitoring pursuant to

Md.Code Ann., Envir. §7-222(a), (c)(2) (Repl. Vol.1996) (“EA”),

which authorizes the MDE to address the unauthorized release of

hazardous substances. This section allows the MDE to enter a site if

necessary to conduct remedial actions or other measures and to pursue

an injunction if access is denied.

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laws. The U.S. District Court rejected appellant’s arguments on

September 8, 2004, and remanded the case to the Circuit Court

for Baltimore County, which had entered a final judgment in the

matter some four months earlier. Appellant filed this appeal on

September 21, 2004.’

Case No. 1593 — The Cockeysville Site

Appellant also owns a parcel of land located at 10919 York

Road, Cockeysville, Maryland. This parcel lies adjacent to

Beaver Dam Run, a tributary of the Gunpowder River, which in

turn feeds into the Loch Raven Reservoir, the primary water

supply for metropolitan Baltimore.’ A portion of the

Cockeysville site lies within the 100-year floodplain of Beaver

Dam Run.

In February 2004, appellant began construction of what he

claimed would become a railroad storage yard at the site. Over

the next few months appellant cleared, filled, and graded

approximately 9,000 square feet of land, stockpiled soil and

crushed stone, and constructed a make-shift berm and concrete

retaining wall. All of this work was performed within the 100-

year floodplain of Beaver Dam Run. Appellant had neither

applied for nor received any of the permits and approvals

required under state and local law.

Baltimore County officials discovered the work on February

24, 2004, and confirmed that appellant had not obtained the

sediment control, flood plain, and grading approvals required by

7 This appeal was originally dismissed by this Court on January

12, 2005, on the grounds that it was not timely filed. By order, dated

June 20, 2005, we vacated our earlier order and reinstated the appeal.

8 Beaver Dam Run qualifies as a Use III-P Maryland waterway,

COMAR 26.08.02.081(4), protected as a natural trout water and public

supply. COMAR 26.08.02.02B(5).

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the County. The County then notified the MDE, which first

noted the violations in a March 4, 2004, inspection report.’ The

State and County issued multiple stop-work orders. When

confronted with the possibility of further enforcement action,

appellant told an MDE inspector “that [the inspector] could issue

whatever [the inspector] wanted, but [appellant] would not stop

his activities because he was a railroad and, as such, was immune

from all state environmental regulations.”

The MDE and the County, jointly, filed suit in the Circuit

Court for Baltimore County on August 25, 2004. The complaint

alleged that appellant’s construction work violated four separate

State and County laws and sought, inter alia, an injunction that

would require appellant to restore the property to its original

condition.

On August 30, 2004, the circuit court issued a temporary

restraining order preventing appellant from conducting any

-further construction activities at the site. Three days later

appellant filed a motion to dismiss.

That same day, September 2, 2004, appellant removed the

case to the U.S. District Court for the District of Maryland on |

preemption grounds. On September 8, 2004, the U.S. District

Court rejected appellant’s argument and remanded the case to the

circuit court.

9 Appellant’s construction activities violated four separate

regulatory requirements: (1) grading and filling within the 100-year

floodplain without a permit, EA §5-503 and COMAR 26.17.04.03A;

(2) placing stockpiled, exposed, and un-stabilized soil within the 100-

year floodplain without a permit, EA §4-413; (3) failing to implement

an approved erosion and sediment control plan prior to any land

disturbance, EA §4-105(a) and Baltimore County Code §33-5-

104(a)(3); and (4) discharging pollutants into the waters of the State

without a permit, EA §9-322.

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In open court, at the hearing on September 9, 2004, the

circuit court converted appellant’s motion to dismiss into a

motion for summary judgment. The court also issued a

preliminary injunction requiring appellant to remove and relocate

material from the site.'° The MDE and the County filed a cross

motion for summary judgment on September 27, 2004.

On November 23, 2004, the circuit court denied appellant’s

motion to dismiss / motion for summary judgment, granted

appellees’ cross motion for summary judgment, and issued a

permanent injunction. The permanent injunction required

appellant “to comply with all applicable provisions of State and

local law,” cease furth -r excavation, stabilize all exposed soils,

install the necessary sediment controls, “relocate all equipment”

on the site, and refrain from interfering with the activities of the

MDE or the County. Appellant filed his timely appeal on

December 2, 2004.

Six days after filing this appeal, appellant moved to stay the

enforcement of the permanent injunction. That motion was

never ruled upon and the record was sent to this Court on

December 28, 2004. On January 31, 2005, appellant moved to

stay the enforcement of the permanent injunction in this Court.

10 On September 16, 2004, appellant filed suit in U.S. District

Court seeking to essentially appeal both [the District Court’s] previous

jurisdictional holdings and the state court’s grant of the Preliminary

Injunction against him. Specifically, [appellant] seeks to have this

Court enjoin individuals in the Maryland Attorney General’s Office

and the Baltimore County Attorney’s Office from enforcing the terms

of the Preliminary Injunction granted by the state court.

Riffin v. Snyder, No. RDB 04-2964, slip op. at 2 (D. Md. Sept. 16,

2004). The U.S. District Court dismissed the case the very same day.

Appellant appealed to the United States Court of Appeals for the

Fourth Circuit Court, which affirmed. The issues concerning these

federal cases, raised in appeilant’s brief, are not properly before this

Court.

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In an order dated February 17, 2005, we denied appellant’s

motion. Appellant’s petition for review of this Court’s order was

denied by the Court of Appeals on February 28, 2005.

The Northern Central Railroad

As a prologue to our discussion of the issues raised in this

appeal, we must address appellant’s contention that, doing

business as the NCR, his operations constitute a railroad, subject

to the exclusive jurisdiction of the STB.

In his brief, appellant contends that “[i]Jn 1999, [he]

attempted to reinstitute rail service from Preston to the Choptank

river, and from Goldsboro to the Choptank river.” Although this

contention cannot be verified from the record before us, the

record does reveal that following the MDE’s April 25, 2002

environmental investigation at the Greenspring Drive site, and

before the MDE filed suit in Baltimore County, the NCR was

formed.'’ Appellant then sought approval from the STB to begin

operating the NCR.

The STB’s approval process is described as follows:

Under the licensing provisions of 49 U.S.C. 10901, a

noncarrier, such as NCR, may acquire and operate a rail line

only if the Board makes an express finding that the proposal

is not inconsistent with the “public convenience and

necessity.” That means that the Board must examine and

weigh the public interest. Under.49 U.S.C. 10502 and 49

CFR 1121, however, a party may request an exemption from

the formal application procedures of section 10901, on the

11 The exact date of the NCR’s formation is unclear. Ina July 13,

2003 letter to the STB, appellant stated that the company was formed

on May 15, 2003. Appellant’s motion to dismiss the Greenspring

Drive case, however, states that the NCR was “formed on February 1,

2003.”

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grounds that full regulatory scrutiny is not necessary to carry

out the rail transportation policy and that either the

exemption is limited in scope or regulation is not needed to

protect shippers from an abuse of market power.

There are some situations in which approval would be so

routine and uncontroversial that there is an expedited “class

exemption” procedure allowing parties to obtain Board

authorization subject only to an after-the-fact Board review

if objections are received. Thus, under 49 CFR 1150.31, a

noncarrier can obtain approval to acquire and operate a line

of railroad within 7 days. That authority can later be revoked

under 49 U.S.C. 10502(d) or treated as void ab initio if the

exemption notice if found to have contained false or

misleading information. Moreover, the class exemption

process is not appropriate for controversial cases in which a

more detailed record is required than is produced through a

notice of class exemption.

James Riffin D/B/A The Northern Central Railroad, STB

Finance Docket No. 34484, 2004 WL 839306 (Apr. 20, 2004)

(citations omitted) (“Riffin 4/20/04").

Appellant filed three separate notices of exemption (“NOE”)

with the STB in an attempt to obtain authorization to operate a

railroad. In the first NOE, filed July 7, 2003, appellant sought

the authority to “construct and operate” 20.9 miles of industrial

track near Cockeysville, Maryland. Appellant also sought

authority to “acquire trackage rights from Norfolk Southern

Corporation,” without having consulted Norfolk Southern."

12 On July 11, 2003, Norfolk Southern Railroad Company,

through its counsel, advised the STB that “there are no current or

planned discussions between it and [appellant] that would lead to

either the grant of trackage rights over tracks operated by Norfolk

Southern or to the right to construct any tracks that would tie into

tracks operated by Norfolk Southern.” As such, Norfoik Southern

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James Riffin D/B/A NCRR, STB Finance Docket No. 34375,

2003 WL 21662810 (Jul. 15,2003). On July 14, 2003, appellant

filed a letter withdrawing his verified NOE. Jd.

On March 8, 2004, appellant filed his second NOE with the

STB requesting permission to acquire and operate 2.9 miles of

rail line in Baltimore County and 20.9 miles of rail line in York

County, Pennsylvania. STB Finance Docket No. 34484.

Pursuant to the STB’s regulations, this NOE became effective

and received formal approval on March 25, 2004.

The State of Maryland (“Maryland”) filed a petition on April

2, 2004, requesting the STB to revoke appellant’s second NOE.

In an April 20, 2004 decision, the STB revoked — S

exemption, stating:

While NCR claims that it can overcome impediments to

its ownership of property at issue in this proceeding,

Maryland has raised sufficient concerns here, not only

regarding NCR’s ability to obtain title to property, but also

regarding NCR’s proposal in general, to make it

inappropriate for NCR to use the expedited class exemption

procedures in this case. Given that there are substantial

factual and legal issues raised and that the Board has

responsibility to protect the integrity of its processes, under

the particular circumstances presented here, the Board will

revoke the notice of exemption.

Riffin 4/20/04, supra (footnote omitted).

On April 28, 2004, appellant filed his third and final NOE

with the STB, requesting permission “to acquire (via a lease) and

operate approximately 19 miles of line ... in York County, PA.”

STB Finance Docket No. 34501. Maryland filed a motion for

leave to file comments, accompanied by the comments, on May

“strongly [urged] the Board to stay the effectiveness of the [NOE].”

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18, 2004." Two days later appellant’s third NOE received

approval.

On August 20, 2004, Maryland filed a petition to revoke

appellant’s third NOE. Appellant filed his answer to Maryland’s

petition, as well as a petition for declaratory order, on September

14, 2004, asking the STB to render a formal decision regarding,

inter alia, appellant’s status as a Class III rail carrier.

Subsequent to the filing of his appeals in the cases presently

before this Court, but prior to our review, the STB revoked

appellant’s third NOE in a February 23, 2005 decision, stating

that:'

it appears that NCR is attempting to use the cover of Board

authority allowing rail operations in Pennsylvania to shield

seemingly independent operations and construction in

Maryland from legitimate processes of state law. Maryland

has shown its legitimate state interest in construction matters

within its borders and, once again, has raised sufficient

concerns regarding NCR’s proposal to make it inappropriate

for NCR to use the expedited class exemption procedures in

this case. See April 20, 2004 Decision. The Board has a

responsibility to protect the integrity of its processes, and the

Board is concerned that [appellant] may be using the

licensing process in improper ways. Given the particular

circumstances and controversy presented here, the Board will

revoke the exemption in STB Finance Docket No. 34501.

James Riffin D/B/A NCRR, STB Finance Docket No. 34501,

13 Appellant replied to these comments on June 2, 2004.

14 We take judicial notice of the STB’s February 23, 2005

revocation of appellant’s railroad status because the revocation is a

fact capable of accurate and ready determination by a resort to the

STB decision, the accuracy of which, as a public document, cannot

reasonably be questioned. See Md. Rule 5-201(b).

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2005 WL 420419 (Feb. 23, 2005) (footnote omitted) (“Riffin

2/23/05"). .

The STB also addressed appellant’s declaratory order

request, stating:

[G]iven the context in which [the declaratory order request]

was filed — as an adjunct to a second notice to obtain

authority to provide operations about which substantial

questions have been raised — we see no basis for granting the

petition for declaratory order at this time. The-declaratory

order petition raises numerous questions about precisely how

non-railroad activities could be shoehorned into the 49

U.S.C. 10501(b) preemption so as to shield them from the

otherwise legitimate reach of state law. But because NCR

has no authority to conduct any railroad operations at this

time and because serious questions have been raised about

the bona fides of its proposals, we will not speculate on how

we might rule if it did have such authority. Accordingly, we

decline to institute a proceeding on NCR’s petition for

declaratory order.

Riffin 2/23/04, supra (emphasis added).

DISCUSSION

Appellant’s Railroad Status

On April20, 2004, six days before the circuit court’s hearing

in the Greenspring Drive case (No. 1802), the STB revoked

appellant’s second NOE, thereby eliminating any claim or

authority that he might assert to operate a railroad and / or

subject his operations to the STB’s exclusive jurisdiction.

Because his third NOE was not filed until April 28, 2004,

appellant was precluded from claiming any authority under it

before the circuit court on April 26, 2004. Even assuming, as

appellant argues, that the third NOE automatically became

effective sever. days after it was filed, appellant did not receive

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authority from the STB until after the circuit court issued its May

3, 2004 order.

Additionally, we note that the STB’s February 23, 2005

decision effectively revoked any authority that appellant’s third

NOE may have provided subsequent to the issuance of the circuit

court’s order. Thus, the record clearly indicates that before the

circuit court, as well as this Court, appellant has no authority to

either operate a railroad or invoke the STB’s exclusive

jurisdiction.

We hold that, because appellant’s appeal of the Greenspring

Drive case (No. 1802) is premised entirely upon his contention

that he is “‘a federally licensed Class IH] rail carrier,” and presents

no other issues, the case is moot. See Coburn v. Coburn, 342

Md. 244, 250 (1996) (“A case is moot when there is no longer

an existing controversy between the parties at the time it is

before the court so that the court cannot provide an effective

remedy.”).

Therefore, we decline any invitation to address the merits of

the Greenspring Drive case and shall dismiss the appeal in No.

1802 as moot. See id.; Md. Rule 8-602(a)(10). As such, the

circuit court’s May 3, 2004 order granting the MDE “unimpeded

access” to the Greenspring Drive building remains in effect.

In the Cockeysville case (No. 1593), we hold that the STB’s

February 23, 2005 revocation of appellant’s third NOE renders

any preemption issues, or arguments by appellant that his

conduct is subject to the exclusive jurisdiction of the STB, moot.

Similarly, we will not entertain any of these moot issues relating

to appellant’s status as a railroad because any opinion on these

issues “would be an academic undertaking.” B&P Enters. v.

Overland Equip. Co., 133 Md.App. 583, 639 (2000).

Our further discussion, therefore, will focus only on two

relevant state law issues raised in appellant’s brief.

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1. Whether the circuit court erred in

granting summary judgment in favor of appellees.

Appellant argues that “it was inappropriate for the circuit

court to grant [appellees’] Cross Motion for Summary Judgment”

because there are ten facts which “are material, and are in

dispute.” A review of appellant’s ten “facts” reveals, however,

that no less than four relate to appellant’s claim of railroad status.

As discussed, supra, issues related to appellant’s railroad status

were rendered moot by the STB’s February 23, 2005 decision

and are not properly before this Court. Therefore, we address __

appellant’s six remaining facts in turn.

Pursuant to Maryland Rule 2-501(f}, a court shall grant

summary judgment “if the motion and response show that there

is no genuine dispute as to any material fact and that the party in

whose favor judgment is entered is entitled to judgment as a

matter of law.” This Court will review the grant of summary

judgment de novo and will

determine whether there is any dispute of material fact, and,

if there is none, we then determine whether the court was

legally correct in its ruling. As we undertake this review, “

‘we construe the facts properly before the court, and any

reasonable inferences that may be drawn from them, in the

light most favorable to the non-moving party.” ” “We

ordinarily will uphold the grant of summary judgment only

on a ground relied on by the trial court.’ ”

Stanley v. American Fed’n of State & Mun. Employees Local

No. 553, 165 Md. App. 1, 13 (2005) (citations omitted).

In his brief, appellant contends that the following facts are

both material and disputed:'°

15 We adopt appellant’s seriatim alphabetical designation.

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Lee |

= ©

—

Does the scope of [appellant’s] present construction

plans exceed one acre?

Did [appellant] install sediment controls prior to his land

disturbing activities at his Cockeysville facility?

On what date did [appellant] first “change the natural

ground level’ at his Cockeysville facility?

Did [appellant] construct an obstruction in, or change the

cross-section of, a “stream or body of water?”

Did [appellant] place soil in a position where it was

“likely to be washed into waters of the State by runoff?”

What was the cost to re-install sediment controls and to

restore the Cockeysville site to a stable condition?

We find, however, that these facts were either immaterial or

not in dispute before the circuit court.

Immaterial Facts

The Court of Appeals has stated that

[i]n order to prevent the granting of a motion for summary

judgment the objecting party must show more than that there

was a question of fact presented, he must, of course, also

show that the resolution of that question will somehow affect

the outcome of the case, i.e., that it is a material fact.

Parklawn, Inc. v. Nee, 243 Md. 249, 254 (1966).

Here, appellant has failed to demonstrate how the resolution

of (1) whether the scope of appellant’s present construction plans

exceed one acre; (2) whether appellant installed sediment

controls prior to his land excavating activities;'® (3) the date

16 We noted that, along with being immaterial, appellant

stipulated to appellee’s counsel proffer that he “had installed a silt

fence at one point in the past,” and that the “silt fence had been

overrun and buried by dirt at the site and was no longer functional”

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appellant first changed the natural ground level at the site; and

(4) the cost to re-install sediment controls and restore the site,

will affect the outcome of the case. Resolution of these facts will

do little to determine whether appellant, without ever having

applied for or obtained the required permits, cleared, filled, and

graded approximately 9,000 square feet of land within the 100-

year floodplain.

Based upon our review of the record, we hold that facts

enumerated by appellant in paragraphs E, F, G, and J of his brief,

while disputed, are immaterial because their resolution would not

affect the outcome of the case. See Stewart Title Guar. Co. v.

West 110 Md. app. 114, 133 (1996).

Undisputed Facts

Facts enumerated in paragraphs H and I of appellant’s brief,

although material, were not in dispute before the circuit court.

Our review of the record reveals that appellant stipulated that he

had constructed an obstruction in, or changed the cross-section

of, a stream or body of water.

Attached as an exhibit to appellees’ cross-motion for

summary judgment, was the September 9, 2004 preliminary

injunction hearing transcript. That transcript discloses

appellant’s stipulation to appellees’ counsel’s proffer, which

included statements that:

[Appellant] also graded the floodplain flat in preparation

for construction of a railroad. All of this grading had the

affect of changing the cross section of the 100 year

floodplain at Beaver Dam Run.

Additionally, whether appellant placed soil in a position

where it was “likely to be washed into waters of the State by

runoff,” in contravention of Md. Code Ann., Envir. §4-413

(Repl. Vol. 1996) (“EA”), was not at issue before the circuit

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court.

Section 4-413 provides, in pertinent part, that

it is unlawful for any person to add, introduce, leak, spill, or

otherwise emit soil or sediment into waters of the State or to

place soil or sediment in a condition or location where it is

likely to be washed into waters of the State by runoff of

precipitation or by any other flowing waters. (emphasis

added).

The Environment Article consistently defines waters of the

state as including “[t]he floodplain of free-flowing waters

determined by the Department of Natural Resources on the basis

of the 100-year flood frequency.” See EA §§4-101.1(d)(2), 5-

101 (j)(5), and 9-101(1)(2) (emphasis added). During the

motions hearing before the circuit court on November 18, 2004,

appellant acknowledged that:

Since waters of the state is defined as the floodplain, |

would have to agree with the state’s position that, have |

introduced soil into the floodplain of Beaver Dam Run? Yes,

I have.

Thus, that issue was conclusively resolved.

Viewing the evidence in the light most favorable to appellant,

we find that the circuit court was legally correct in its ruling, and

did not err in granting appellees’ motion for summary judgment.

2. Whether appellant’s due process rights were violated

when the circuit court granted the permanent injunction.

Appellant argues that the circuit court abused its discretion

in granting the permanent injunction because “[a] copy of the

proposed order was not served on [him] prior to being signed by

the court.” Specifically, appellant contends that the permanent

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injunction is “void, due to lack of due process.” We disagree.

Appellant cites Madaio v. Madaio, 256 Md. 80, 83 (1969),

for the proposition that “[t]he right to receive notice and to be

afforded an opportunity to be heard in any proceeding to which

finality is to be accorded is established beyond question in this

country.” While this is an accurate staement of the law, Madaio

is inapposite to the present case.

In Madaio, the Circuit Court for Montgomery County, on

December 20, 1966, denied Mr. Madaio’s complaint for divorce

but ordered him to pay child support and alimony “pending

further Order of Court.” Jd at 81. Two years later, on

December 27, 1968, Mr. Madaio obtained a divorce in the

Circuit Court for Arlington County, Virginia. Jd. Mrs. Madaio

was never personally served in Virginia and did not appear to

contest the action. /d. The decree did not contain any provision

for her support. /d.

One month after obtaining the divorce decree in Virginia, Mr.

Madaio filed a motion in the Circuit Court for Montgomery

County to vacate the December 20, 1966 pendente lite support

orders and to have the case dismissed. /d. A copy of this motion

was not received by Mrs. Madaio’s attorney until January 30,

1969. Id. at 81-82.

On that same day, the circuit court, without a hearing,

ordered that Mr. Madaio’ motion be granted and the case

dismissed. Jd. at 82. Mrs. Madaio claimed that she was not

notified of the court’s order until February 6, 1969. On February

13, Mrs. Madaio filed a motion to strike the court’s order “on

the ground that she had not been afforded an opportunity to be

heard.” Jd. On February 25, the circuit court, without an

opinion, denied Mrs. Madaio’s motion to strike and allowed the

January 30" order to stand. Jd. The Court of Appeals reversed.

Id. At 85.

r is

A-21

Unlike Madaio, in the case sub judice, appellant was

provided an opportunity to be heard, and was in fact heard, at

every stage of the proceedings. Appellant was present at the

September 9, 2004 hearing and received a copy of the

preliminary injuunction. The material terms of the preliminary

injunction were identical to those of the permanent injunction,

and differed only in scope. Appellant, therefore, cannot, in good

faith, argue that he was not apprized of what issues would be

addressed by the permanent injunction.

Appellant was afforded the “opportunity to show cause why

[the permanent injunction’s] objectionable provisions are not

warranted” at the November 18, 2004, motions hearing. As

such, appellant’s due process rights were not violated when the

proposed order was signed by the court prior to his being served

with a copy."’

JUDGMENT OF THE CIRCUIT COURT

FOR BALTIMORE COUNTY IN CASE NO.

1593 AFFIRMED;

CASE NO. 1802 DISMISSED AS MOOT;

COSTS ASSESSED TO APPELLANT.

Appendix'®

17 Without citing a single case, appellant contends, in his brief,

that, “[nJumerous times, Maryland’s Court of Appeals has ruled if a

proposed order has not been served on a party prior to the court

signing the order, then that order is void.” The only case of which this

Court is aware is a criminal case in which, unlike the present case, a

proposed consent order for restitution was not sent to a party and the

court signed the order without a hearing. See e.g. Lopez-Sanchez v.

State, 388 Md. 214, 219 (2004), certdenied = S.Ct.__ , 2006 WL

37262 (Jan. 9, 2006).

18 We adopt appellant’s numbering, as it appears in his brief.

A-22

May a state court render a binding judicial decision based

upon its interpretation of 49 U.S.C. 10501 (b), (which

contains a provision for exclusive federal jurisdiction)? No.

Does the Commerce Clause of the U.S. Constitution prohibit

State or local regulation of “instrumentalities of interstate

commerce?” Yes.

Do the State and local statutes invoked in this case, by their

necessary operation, directly and / or indirectly interfere with

or burden interstate commerce? Yes.

Is there a beginning presumption against preemption when

the State attempts to regulate “transportation by rail carrier”

(an area where there has been a history of significant federal

presence)? No.

Does 49 U.S.C. § 10501 (b) completely preempt all state and

local regulation of rail carrier facilities? Yes.

9 A. Preemption guidelines:

9B. ICCTA preemption:

9 C. Complete Preemption guidelines:

9D. State Law as applied in this case, is completely

preempted:

9 E. Cases holding the ICCTA completely preempts State

and local regulations:

9 F. No preemption cases:

9G. Surface Transportation Board rulings:

10. Must railroad facilities be adjacent to a railroad’s main line,

11.

or in the same siate as a railroad’s main line, in order to be

‘instrumentalities of interstate commerce,’ subject to the

exclusive jurisdictxm of the STB? No.

Does the ICCYA preempt local and State rzegulations

requiring that permits be obtained prior to railroad-related

construction activities? Yes.

Injunction questions:

12. May state or local officials be enjoined individually? Yes.

13. When State law is preempted, does the questio» of harm to

the State, and the matter of the public interest, drop from a

case involving injunctive relief against that preempted State

law? Yes.

A-23

Surface Transportation Board jurisdiction questions:

14. Does a federal or state court have the authority to determine

whether a facility is a railroad facility, or whether an entity is

a raii carrier? No.

14 A. The Surface Transportation Board has exclusive

jurisdiction over transportation by rail carriers:

14 B. Riffin is a Class III rail carrier subject to the exclusive

jurisdiction of the STB:

14C. Who is a rail carrier and what constitutes a rail carrier

facility, is to be determined exctusively by the STB:

14 D. Riffin’s two Maryland facilities are rail carrier

facilities:

Due process question:

15 Should the permanent injunction be voided since it was not

served on Riffin prior to it being signed by the court? Yes.

Summary judgment question:

16. Was summary judgment appropriate, since material facts

were in dispute? No.

Stream related questions:

17. Does §9-304 of Maryland’s Public Utility Companies

Article grant a Maryland Railroad the right to cross or divert

streams? Yes.

18. Does Maryland’s common law grant a riparian land owner

the right to repel unlawful waters? Yes.

18 A. Maryland is a common law state:

18 B. Riffin is a riparian land owner:

18 C. Maryland’s law regarding surface and stream waters:

18 D. Maryland’s case law regarding unlawful waters:

a. Unlawful waters:

b. Acts of God:

c. Flood waters:

18 E. “Waters of the State:”

18 F. Riffin’s levee:

19. Are the flood waters which inundate Riffin’s Cockeysville

facility, unlawful waters? Yes.

19 A. Navigable waters:

19 B. The outer limits of a river or stream is denoted by its

A-24

“high water mark” under “ordinary conditions:”

19C. Percolating, Surface, Contained, Stream, Flood, and

Unlawful Waters:

Percolating waters:

Surface waters:

Contained waters:

Stream waters:

Natural watercourse:

Flood waters:

g. Unlawful waters:

"Ff eP OP

Plaintiffs’ Failure to State a Cause of Action and / or lack of

Standing questions:

20.

a. The remedies granted by the circuit court are not

authorized by the statutes:

b. Do the Plaintiffs lack standing? Yes.

c. Does the Plaintiffs’ Complaint fail to state a cause of

action? Yes.

d. Riffin’s levee will not cause irreparable harm to the

Plaintiffs:

e. The balance of hardships tips in favor of Riffin:

f. The public interest would be better served by allowing

Riffin’s levee to remain:

Maryland law questions:

21.

22.

23.

Does §5-503 of Maryland’s Environment Article require

that a person obtain a permit prior to changing the cross

section of a stream’s floodplain? No.

Must a person notify the MDE Director prior to

commencing construction activities encompassing less than

one acre? No.

22 A. Riffin’s grading activities fall within the auspices of

MDE’s General Permit for Construction Activity:

22 B. A “desire” to re-track 20 miles of railroad right-of-

way, does not constitute “a common plan of

development,” when that desire is incapable of

being realized:

If during numerous substantial rainfall events, soil placed

adjacent to a stream does not in fact wash into the stream,

i A-25

was that soil in a “location where it is likely to be washed

into waters of the state?” No.

24. Is the penalty specified in §4-116(c) (3) of Maryland’s

Environment Article, to be based on the actual cost of

compliance, or an estimate of that cost? Actual cost.

Stockpiling sand, stone and gravel question:

25. Does § 33-5-201 of the Baltimore County Code, grant a

property owner the right to stockpile sand, stone and gravel,

without first obtaining a permit?- Yes.

A-26

MARYLAND DEPARTMENT * IN THE-

OF THE ENVIRONMENT, et ail. * CIRCUIT COURT

Plaintiffs * FOR BALTIMORE

v. * COUNTY

JAMES RIFFIN, et. al. * Case No.

Defendants * 03-C-04-008920

” aS * oo ” * an * a

FILED: NOV 23 2004

O P NENT INJUN N

Before the Court is the Motion to Dismiss filed by defendant

James Riffin, which was converted to a motion for summary

judgment by Judge John O. Hennegan in open court at the

hearing on September 9, 2004; and the Motion to Dismiss

Counterclaim and the Cross-Motion for Summary Judgment,

filed by plaintiffs, the Maryland Department of the Environment

and Baltimore County, Maryland. :

The Court has read and reviewed the Complaint for

Injunctive Relief and Civil Penalties, and the various and sundry

papers filed herein, including the arguments and the grounds and

authorities therefor set forth in defendant’s Memorandum in

Support of Motion to Dismiss, and in plaintiffs’ Memorandum

in Support of Motion to Dismiss Counterclaim and Cross-Motion

for Summary Judgment, together with the exhibits attached

thereto, and has heard and considered the arguments advanced in

open court by the parties hereto. The Count notes with interest

and considers persuasive the reasoning articulated in open court

on the record by the Honorable Richard D. Bennett, as set forth

on pages 55-59 of Transcript of Motions Hearing, Exhibit 2 to

plaintiffs’ Memorandum in Support ‘of Motion to Dismiss

Counterclaim and Cross-Motion for Summary Judgment.

[pp. 55-59 of transcript reproduced at Appendix pp. 39 - 41]

NOW, THEREFORE, in consideration of the above, the

Court finds and holds that there exists no genuine dispute of

material fact between the parties, and that plaintiffs are entitled

to judgment as a matter of law. Wherefore, it is this 19” day of

A-27

November, 2004, by the Circuit Court for Baltimore County,

ORDERED AND ADJUDGED

1. that defendant’s Motion to Dismiss / Motion for

Summary Judgment be, and it is hereby, DENIED;

2. that plaintiffs’ Cross-Motion for Summary Judgment be,

and it is hereby, GRANTED;

3. that plaintiffs’ Motion to dismiss Counterclaim be, and

it is hereby, GRANTED;

4. that Mr. James Riffin, his agents, servants, employees,

representatives, and independent contractors, and all persons

acting in behalf of or in concert with him be, and they are hereby,

permanently enjoined to comply with all applicable provisions

of State and local law, and specifically, Title 5, Subtitle 5 of the

Environment Article of the Annotated Code of Maryland; Title

4, Subtitle 4 of the Environment Article of the Annotated Code

of Maryland; Title 9, Subtitle 3 of the Environment Article of the

Annotated Code of Maryland; Article 33, title 5 of the Baltimore

County Code; and Title 4, Subtitle 1 of the Environment Article

of the Annotated Code of Maryland;

5. that Mr. Riffin be, and he is hereby, permanently

enjoined from conducting or performing any further earth-

moving, construction, dumping, excavation, or grading activities

at the properties located and known as 10919 York Road and 13

Beaver Run Lane, in Cockeysville, Baltimore County, Maryland

(“the Site’’);

6. that Mr. Riffin be, and he is hereby, permanently

enjoined to stabilize all exposed soils at the Site with seed and

straw, and permanently enjoined to install all necessary

sediment controls approved by Baltimore County;

7. that Mr. Riffin be, and he is hereby, permanently

enjoined to relocate all equipment presently on or at the Site to

an appropriate and legally authorized location other than a

location within the boundaries of the Site;

8. that Mr. Riffin be, and he is hereby, permanently

enjoined from interfering with the activities of the Maryland

Department of the Environment or Baltimore County, or their

agents, employees, officials, representatives, or contractors, to

A-28

remove and dispose of all stockpiled fill, ballast, and other stone

or cement materials, including concrete railroad ties, from the

Site and to store or dispose of said fill, ballast, and other stone or

cement materials at appropriate and legally authorized locations

pursuant to law;

9. that if Mr. Riffin wishes to conduct any aatkeining

construction, dumping, excavation, or grading activities at any

time hereafter, he shall submit grading and sediment control

plans to Baltimore County for its approval, and shall apply to the

Maryland Department of the Environment for permits under §§

5-503 and 9-323 of the Environment Article of the Annotated

Code of Maryland;

10. that pursuant to section 4-417 of the Environment Article

of the Annotated Code of Maryland, Mr. Riffin shall, within 30

days of the date of this Order, pay a civil penalty to the Maryland

Department of the Environment in the amount of One Hundred

Twenty-Five Thousand and 00/100 Dollars ($125,000.00), owing

to his placement of soil and sediment in a location or condition

likely to cause sediment pollution, in violation of section 4-413

of said Article;

11. that pursuant to section 9-342 of the Environment

Article of the Annotated Code of Maryland, Mr. Riffin shall,

within 30 days of the date of this Order, pay a civil penalty to the

Maryland Department of the Environment in the amount of Fifty

Thousand and 00/100 Dollars ($50,000.00) owing to his

unpermitted discharge of sediment and other pollutants into the

waters of the State, in violation of said Article;

12. that pursuant to sections 33-5-302(c) and (e) of the

Baltimore County Code, Mr. Riffin shall, within 30 days of the

date of this Order, pay a civil penalty to Baltimore County,

Maryland, pursuant to the provisions Article 33, Title 5, section

33-5-302 of the Baltimore County Code, in the amount of One

Hundred Sixty Thousand and 00/100 Dollars ($160,000.00), to

permit the County and State install and maintain effective

sediment controls and restore the Site to a stable condition; and

[Note by judge:| “Civil penalties are denied at this time.”

A-29

13. that judgment be, and it is hereby, entered on behalf of

the Maryland Department of the Environment and Baltimore

County, Maryland.

/s/_ Vicki Ballou-W 11/19/

Judge, Circuit Court for Baltimore County

A-3O

STATE OF MARYLAND * IN THE

DEPARTMENT OF THE * CIRCUIT COURT

ENVIRONMENT * FOR

1800 Washington Blvd. * BALTIMORE

Baltimore, Maryland 21230 * COUNTY,

Plaintiff * MARYLAND

v. °

JAMES RIFFIN, ef. ai. * Case No.

Defendants * 03-C-03-013144

* * * * * * * * .

ORDER

Upon consideration of Defendants’ Motions To- Dismiss For

Lack Of Jurisdiction, Not A Real Party In Interest and Failure To

State A Cause of Action, the Maryland Department of the

Environment’s (MDE”S) Response thereto, and after oral

argument, it is this 29" day of April, 2004

ORDERED:

James Riffin’s Motion To Dismiss For Lack Of Jurisdiction

is DENTED.

AND IT IS FURTHERED ORDERED:

James Riffin will give MDE full unimpeded access to the

building located at 1941 Greenspring Drive, Timonium

Maryland, for purposes of monitoring indoor air qualtiy.

AND IT IS FURTHERED ORDERED:

In the event that MDE determines that further remedial action

of the site is necessary to address a potential hazard to the public

and/or the environment, MDE shall notify this Court with the

appropriate Motion for Access. This Court will retain

jurisdiction over this matter.

FILED: MAY 03 2004

/s/ E. Cadigan

Judge Robert E. Cadigan

Baltimore County Circuit Court

A-31

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

NORTHERN DIVISION

THE STATE OF MARYLAND *

acting for and on behalf of

BALTIMORE COUNTY, bd

MARYLAND,

Plaintiff * CIVIL NO.

Vv.

JAMES L. RIFFIN, * RDB 04-2789

Defendant

ok A k * _ i A a

ORDER

For the reasons stated in the foregoing memorandum

Opinion, it is this 17" day of September 2004, by the Court,

ORDERED that:

1. This action be DISMISSED for lack of subject-matter

jurisdiction, pursuant to Federal Rule of Civil Procedure

12(h)(3);

2. Plaintiff's Motion Remand of the case to the District

Court for Baltimore County is rendered MOOT;

3. The Clerk of this Court shall close this case and transmit

copies of this Order and accompanying Memorandum

Opinion to all parties.

/s/ Richard D. Bennett

Richard D. Bennett

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

NORTHERN DIVISION

THE STATE OF MARYLAND *

acting for and on behalf of

BALTIMORE COUNTY, °

MARYLAND,

Plaintiff * CIVIL NO.

Vv. ,

JAMES L. RIFFIN, * RDB 04-2789

Defendant

& 7 a * * * * ~ 7

E OPINION

Before the Court is Defendant [sic] Baltimore County,

Maryland’s Motion to Remand the instant action to the

Baltimore County District Court. Defendant Riffin is the

operator of The Northern Central Railroad, which is operating in

Pennsylvania and maintaining railroad storage facilities in

Baltimore County, Maryland. The County brought suit against

Riffin for violations of the Baltimore County Fire Prevention

Code that were due to the alleged inadequacy of underground

storage tanks. A trial on the merits was held by the Honorable

Robert E. Cahill, Jr. on August 25, 2004. Judge Cahill found

Defendant Riffin in violation of the Baltimore County Fire Code.

On August 27, 2004, Defendant removed the action to this Court

solely on the theory that the fire regulations are completely

preempted by the Interstate Commerce Commisssion

Termination Act (“ICCTA”), 49 U.S.C. §10501(b). Defendant

argues that the state court judgment was in error in light of what

he contends is the exclusive jurisdiction of the federal courts

over the regulations at issue.

Defendant Riffin removed two other state-court actions based

on the precise preemption arguments raised in Defendant’s

Notice of Removal in the instant action. The Maryland

A-33

Department of the Environment and Baltimore County brought

suit against Mr. Riffin in Baltimore County Circuit Court for

violations of state and local environmental regulations.

Defendant Riffin removed those actions to this Court, which

were styled, Civil Actions RDB-04-1342 and RDB-04-2828. As

in this case, Mr. Riffin argued that the state and local

environmental regulations were completely preempted by

ICCTA. On September 8, 2004, this Court conducted an

expedited hearing solely on the question of whether this Court

had jurisdiction over the claims based on complete preemption.

After hearing extensive argument. the Court determined that

ICCTA does not completely preempt the state and local

environmental regulations on which the lawsuits were based, and

that this Court therefore lacked subject-matter jurisdiction over

both cases. Accordingly, this Court remanded both cases to the

Circuit Court for Baltimore County by Orders dated September

8, 2004. Those cases involved nearly identical issues as those

presented here.

The threshold question presented by plaintiff's Motion to

Remand is whether this court has exclusive subject-matter

jurisdiction over the local ordinances forming the basis of

Plaintiff's lawsuit. This Court may assert federal removal

jurisdiction over Plaintiff's state-law claims only if the Court

determines that the ICCTA completely preempts the state and

local environmental regulations that form the basis for Plaintiffs’

action. See Franchise Tax Board of the State of California v.

Construction Laborers Vacation Trust for So. Calif., 463 U.S.

1, 9-10 (1983) (recognizing that, under the well-pleaded

complaint rule, ordinary preemption does not give rise to

removal jurisdiction over state-law claims); Rivet v. Regions

Bank of Louisiana, 522 U.S. 470, 475 (1998) (federal courts

obtain federal removal jurisdiction where “federal law

completely preempts a plaintiff's state-law claim.”) Ordinary

preemption of state laws is merely a “federal defense” to the

state-law action to be considered by the state courts. Franchise

Tax Bd. of Cal., 463 U.S. 1, 14(1983). (recognizing that “a case

A-34

may not be removed to federal court on the basis of a federal

defense, ... Even if the defense is anticipated in the plaintiffs

complaint, and even if both parties admit that the defense is the

only question truly at issue in the case.”) ordinary preemption

does not confer federal removal jurisdiction over state-law

claims. /d.

In light of these principles, the precise question is whether

the local fire ordinances forming the basis of the County’s state

lawsuit is completely preempted by the ICCTA. That question

turns on whether the local fire regulations conflict with the clear

congressional intent to exclusively regulate railroads. Aetna

Health, Inc. v. Davila, 124 8.Ct. 2488, 2495, US. __

(2004). No such conflict exists here. The United States Court of

Appeals for the First Circuit recognized that local regulations of

railroads’ are preempted by ICCTA only when the regulations

“unduly restrict the railroad from conducting its operations, or

unreasonably burden interstate commerce.” Boston and Maine

Corp. v. Town of Ayer, 330 F.3d 12, 17 (1* Cir. 2003).

Moreover, the federal body charged with carrying out the railroad

regulation regime has recognized that “court and agency

precedent addressing the scope of [ICCTA] have made it clear

that ... not all state and local regulations that affect railroads are

prohibited under this broad preemption regime.” /daho Northern

& Pacific Railroad Co., STB Docket No. AB-433X, 2001 WL

1586967, at *4 (2001). Likewise, other courts have recognized

that local safety regulations that are not targeted specifically at

railroads do not conflict with the broad federal regulation of

railroad regime, and are thus not even prreempted under the

doctrine of ordinary preemption. See Florida East Coast Ry.

Co. v. City of West Palm Beach, 266 F.3d 1324, 1329 (11" Cir.

2001) (holding that local zoning regulation not preempted by

1 Although there is some dispute as to whether Riffin qualifies as

a “railroad” under the ICCTA, the Court will assume that he is for the

sake of argument.

A-35

§10501(b) because “the alleged encroachment upon federal

jurisdiction here does not occur by the municipality’s legislating

in a field of historic federal presence, but through the exercise of

its inherently local powers.”; Village of Ridgefield Park v. New

York, Susquehanna & Western Ry. Corp., 163 N.J. 446, 461,

750 A.2d 57, 66 (2000) (“We envision that it will be the rare

situation when fairly enforced fire, health, plumbing, safety, or

construction regulations interfere with a railroad’s operations.”’).

The authorities therefore suggest that local fire regulations, such

as those at issue here, are [sic] do not conflict with Congress’

intent to exclusively regulate railroads and are therefore not

completely preempted by the ICCTA. Accordingly, this Court

lacks subject-matter jurisdiction over the state-court claims.

Moreover, this Court may not review the merits of the state

court’s final judgment. Under the jurisdictional Rooker-Feldman

doctrine, “a party losing in state court is barred from seeking

what in substance would be an appellate review of the state

judgment in a United States District Court ... .”. Johnson v.

DeGrandy, 512 U.S. 997, 1005-1006 (1994); District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)

(noting that federal district courts have no authority to “entertain

a proceeding to reverse or modify” a state court judgment);

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) (noting

exclusive jurisdiction over review of state court action is in the

Supreme Court of the United States); Shooting Point, L.L.C. v.

Cumming, 368 F.3d 379, 383 (4" Cir. 2004) (applying Rooker-

Feldman to recognize that “lower federal courts generally do not

have subject-matter jurisdiction to review state court decisions”);

see also Erwin Chemerinsky, Federal Jurisdiction 465-66 (4" ed.

2003) (describing the Rooker-Feldman doctrine). Likewise, this

Court is required to recognize that, under the doctrine of res

judicata, issues decided in state court may not be re-litigated in

subsequent proceedings. Allen v. McCurry, 449 U.S. 90,96

(U.S. 1980). The claims presented in Defendant Riffin’s Notice

of Removal are identical to those that were asserted, and ruled

upon, in the state court proceedings. Consequently, this Court

A-36

will DISMISS the instant action without remanding the case to

the Baltimore County District Court. See Federal Rule of Civil

Procedure 12(h)(3) (“Whenever it appears by suggestion of the

parties or otherwise that the court lacks jurisdiction of the

subject matter, the court shall dismiss the action.”); Allen, 449

U.S. at 95 (lower federal courts must recognize final judgments

of state courts under res judicata). A separate Order will be

entered accordingly.

September 17, 2004 /s/ Richard D. Bennett

, Richard D. Bennett

United States District Judge

A-37

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

NORTHERN DIVISION

JAMES RIFFIN .

Plaintiff CIVIL NO.

ADAM D. SNYDER, et. al, RDB 04-2964

Defendants

* * * * * * * * *

ORDER

For the reasons stated in the foregoing memorandum

Opinion, it is this 16" day of September 2004, by the Court,

ORDERED that:

1. This action be DISMISSED for lack of subject-matter

jurisdiction, pursuant to Federal Rule of Civil Procedure

12(h)(3);

2. Plaintiffs Motion for Preliminary Injunction and

Temporary Restraining Order is rendered MOOT;

3. The Clerk of this Court shall close this case and transmit

copies of this Order and accompanying Memorandum

Opinion to all parties.

/s/ Richard D. Bennett

Richard D. Bennett

United States District Judge

A-38

Maryland Department of * UNITED STATES

the Environment, e#. al. DISTRICT COURT

Plaintiffs, * DISTRICT OF

v. MARYLAND

James Riffin, ef. al. * NORTHERN DIVISION

Defendants _ Civil No. RDB-04-2848

* * * a * * * * *

Excerpts from the transcript of the September 8, 2004 motions

hearing before the Honorable Richard D. Bennett, Judge.

Beginning at Page 55: THE COURT: Okay. All right. Thank

you, gentlemen. This Court granted a rather speedy hearing in

this particular case in light of the fact that the lawsuit in this case

was filed on August the 30", just last, essentially within the last

ten days. The lawsuit was filed on August the 30". The

plaintiffs brought suit against the defendants, James Riffin, and

his contractor, the Six M Company. There was a removal to this

court on September the 3°. The Baltimore County Circuit Court

on August the 30" issued a temporary restraining order and

scheduled a hearing for a preliminary injunction tomorrow,

September 9. The ten-day temporary restraining order issued by

Baltimore County, the Circuit Court for Baltimore County was

scheduled to expire tomorrow, September the 9" at 4:00 p.m.

Soon after filing the complaint, plaintiffs learned that the

defendants were dumping construction and demolition debris at

"the construction site at issue. Essentially, then the plaintiffs filed

a Motion to Remand this case to the Circuit Court of Baltimore

County arguing that in the event that there was not a remand, that

that temporary restraining order would essentially expire

tomorrow afternoon. Accordingly, this Court immediately

scheduled a hearing on the motion to Remand. The Court would

note that literally almost the identical issues are still pending

before this Court in another case, the State of Maryland v.

James Riffin, Civil Number RDB-04-Civil-1342. [56]

The basis of the defendant’s removal petition is that his

business is a railroad and that he is therefore entitled to the

protection of the Interstate Commerce Commission Termination

Act, ICCTA, which he claims completely preempts all of the

A-39

plaintiffs’ state law claims and efforts at environmental

regulations. The defendant, Riffin, has candidly acknowledged

that in his view there can be no enforcement of state or local

environmental laws because all such laws would be preempted

by his argument that his business is a railroad and all such

regulations would be preempted by the ICCTA. As a companion

to the Motion to Remand filed by the plaintiffs, Maryland

Department of the Environment and Baltimore County, the co-

defendants in this case, the Six M Company, the co-defendant,

Six M Company, has filed a motion today literally minutes

before I took the bench, a Motion to Remand for Failure to

Obtain Proper Consent, noting failure of the defendant, James

Riffin, to comply with the requirements of 28 United States Code

Section 1446. Mr. Riffin’s response as to that is that there is

complete preemption of the entire question by the ICCTA.

Therefore, any lack of compliance with the requirements of

Section 1446 are of no moment. The Court, first of all, finds that

it is questionable whether or not Mr. Riffin would qualify as a

railroad or-a railway with respect to his operations in Maryland.

But for the sake of argument, the Court will make a finding that

even if Mr. Riffin is deemed to be a rail carrier in light of the,

some authority he’s been given by [57] the Surface

Transportation Board to operate a rail line in Pennsylvania, albeit

not in Maryland, that even if he is a rail carrier and for the sake

of argument, the Court will assume he is a rail carrier, there is

simply not complete preemption in this case. Accordingly, on

that basis alone, there is not complete preemption in this case.

The defendant, Six M Company, has aptly noted a failure to

comply with the requirements of 28 United States Code, Section

1446 in Mr. Riffin’s notice of removal. Furthermore, because

there is a requirement of complete preemption, the Court notes

that consideration of preemption under the supremacy clause

starts with the basic assumption that Congress does not intend to

displace state law. The Court would not [sic] that principles of

federalism dictate to this court that in the absence of clarity of

intent, Congress cannot be deemed to have significantly changed

the federal state balance. If a federal statute’s terms can be read

A-40

sensibly not to have a preemptive effect, the presumption against

preemption controls and no preemption may be inferred. Those

principles of federalism compel this court to find that the

applicable statute in question, the Interstate Commerce Collision

[sic] Termination Action, [sic] can be read sensibly not to have

a preemptive effect and this is consistent with other cases which

rule in favor of the matter of a presumption against preemption.

A presumption, which the defendant, Riffin, has failed to

overcome in this case. The Supreme court in the Metrodorina

_ case, at518 U.S. and [58] particularly at page 485 noted these

very principles of federalism. The First Circuit in Boston and

Maine Corporation v. Town of Air [sic] noted that local

regulations of railroads are not preempted by the ICCTA when

the laws are deemed to be reasonable and nondiscriminatory

environmental restrictions, which do not unduly burden interstate

commerce or unduly restrict the railroad from conducting its

operations. I don’t find that the application of these provisions

unduly restrict this railroad, assuming we call Mr. Riffin a

railroad and for purposes of this opinion, I’m granting him that

he may be a railway, although I’m not making that finding, from

conducting his operations. These types of regulations are not

intended by Congress to be completely preempted by ICCTA and

applying those principles of federalism across the board in this

case the Motion to Remand filed by the Maryland Department of

Environment and Baltimore County is granted. The Motion to

Remand for Failure to Obtain proper Consent of the Defendant,

Six M Company, is granted. Accordingly, this Court will issue

an order granting those Motions to Remand and issue an order

remanding this case back to the Circuit court for Baltimore

County. The Court would note that the counsel have indicated

that the identical issues apply in the case of State of Maryland v.

James Riffin in Civil Number RDB-04-1342, a civil case.

Baltimore County is not a party in that case, but the same

principles apply. Accordingly, for reasons stated on the record

in this case, the Motion to Remand [59] of the State of

Maryland in that case is granted and an order shall be issued

remanding that case back to the Circuit Court.

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

April 19, 2005

No. 04-2227

CA-04-2964-RDB

JAMES RIFFIN

Plaintiff — Appellant

ADAM D. SNYDER; MICHAEL V. FORLINI;

C. ROBERT LOSKOT; PAUL M. MAYHEW

Defendants ~ Appellees

On Petition for Rehearing and Rehearing En Banc

Appellant’s petition for rehearing and rehearing en banc was

submitted to this Court. As no member of this Court or the panel

requested a poll on the petition for rehearing en banc, and

As the panel considered the petition for rehearing and is of

the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and rehearing

en banc is denied.

Entered for a panel composed of Judge Wilkinson, Judge

Michael, and Judge Sheed.

For the Court,

/s/ Patricia S. Connor

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-2227

JAMES RIFFIN

Plaintiff — Appellant

versus

ADAM D. SNYDER; MICHAEL V. FORLINI;

C. ROBERT LOSKOT; PAUL M. MAYHEW

Defendants — Appellees

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Richard D. Bennett, District Judge.

(CA-04-2964-RDB)

Submitted: February 9, 2005 Decided: February 14, 2005

Before WILKINSON, MICHAEL, and SHEED, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Riffin Appellant Pro Se. Mary Rosewin Sweeney,

OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,

Baltimore, Maryland; John Edward Beverungen, COUNTY

ATTORNEY’S OFFICE, Towson, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36 (c).

A-43

PER CURIAM:

James Riffin appeals the district court’s order dismissing his

civil action for lack of subject matter jurisdiction. We have

reviewed the record and find no reversible error. Accordingly,

we affirm for the reasons stated by the district court. See Riffin

v. Snyder, No. CA-04-2964-RDB (D. Md. Sept. 17, 2004).

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

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VERBATIM TEXT OF STATUTES INVOLVED

U.S. Constitution, Article I, §8, Cl.3 (Commerce Clause):

“To regulate Commerce with foreign Nations, and among

the several States, and with the Indian Tribes;”

U.S. Constitution, Article III, §2 [1]:

“{1] The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the Laws of the

United States, and Treaties made, or which shall be made, under

their Authority;”

U.S. Constitution, 5" Amendment:

“No person shall be held to answer for a capital, or

otherwise <

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces, or

in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without just

compensation.”

U.S. Constitution, 14" Amendment, Section 1:

“Section 1. All persons born or naturalized inthe United

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the

_ equal protection of the laws.”

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49 U.S.C, §§ 10101 - 11908:

ICCTA, 49 U.S.C.A., Subtitle IV, Part A, Chapters 101,

105, 107, 109, 111, 113, 115, 117 and 119. Congress delineated

the provisions relevant to the regulation of railroads and rail

transportation services. Chapter 101 sets forth rail transportation

policy and the definitions used throughout the statutory scheme.

49 U.S.C.A. §10101 and 10102. Chapter 105 sets forth the

general jurisdiction of the Board and provides for its authority to

exempt rail carrier transportation. 49 U.S.C.A. §10501 and

10502. Chapter 107 deals exhaustively with the setting of rates,

the general authority therefor, special circumstances applying

thereto, and limitations thereon. 49 U.S.C.A. §10701 through

10709; 10721 - 10722; and 10741 through 10747. Chapter 109

deals with licensing, authorizing the construction and operation

of railroad lines, short line purchases by Class II and Class III rail

carriers, abandonment and discontinuation of lines and service,

offers of financial assistance, sale of abandoned rail properties,

exceptions to the Board’s authority, and railroad development.

49 U.S.C.A. §§ 10901 through 10907. Chapter 111 deals with

operations, setting forth general requirements for operations, car

service regulations, reports and records, and railroad cost

accounting. 49 U.S.C.A. §§11101 through 11103; 11121

through 11124; 11141 through 11145; and 11161 through 11164.

Chapter 113 deals with finance, specifically, with equipment

trusts, security interests, and combinations. 49 U.S.C.A. §§

11301, and 11321 through 11328. Chapter 115 deals with

Federal-State Relations, namely, taxes and tax discrimination.

49 U.S.C.A. §§11501 - 11502. Chapter 117 deals with

enforcement, specifically, the rights and remedies of persons

injured by rail carriers; limitation on actions by and against rail

carriers; liability of rail carriers under receipts and bills of lading;

and liability when property is delivered in violation of routing

instructions. 49 U.S.C.A. §§11701 through 11707. Finally,

chapter 119 deals with civil and criminal penalties for violations

of the statutory scheme and for engaging in combinations in

restraint of trade. 49 U.S.C.A. §§11901 through 11908.

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49 U.S.C. § 10901:

“(a) A person may —

(4) in the case of a person other than a rail carrier,

acquire a railroad line or acquire or operate an extended or

additional railroad line, only if the Board issues a certificate

authorizing such activity under subsection (c).

activities for which such authority is requested in an application

filed under subsection (b) unless the Board finds that such

activities are inconsistent with the public convenience and

necessity.”

49CFR: “Subpart A—Applications Under 49 U.S.C. 10901.

§1050.1 Introduction

(a) When an application is required. This subpart

governs applications under 49 U.S.C. 10901 for a certificate of

public convenience and necessity, authorizing the construction,

acquisition or operation of railroad lines. Noncarriers require

Board approval under section 10901 to construct, acquire or

operate a rail line in interstate commerce. Existing carriers

require approval under section 10901 only to construct a new rail

line or operate a line owned by a noncarrier, since acquisition by

a carrier of an active rail line owned by a carrier is covered by 49

U.S.C. 11343. We have exempted from these requirements the

acquisition by a State entity of a rail line that has been approved

for abandonment, as well as operations over these lines. See

subpart C of this part. In addition, where appropriate, we have

granted individual exemptions from these certification

requirements. See 49 U.S.C. 1050[2].”

“Subpart D Exempt Transactions Under 49 U.S.C.

10901.

§ 1150.31 Scope of exemption.

(a) Except as indicate below, this exemption applies to all

A-47

acquisitions and operations under section 10901 (See 1150.1,

supra).

§ 1150.32 Procedures and relevant dates — transactions

that involve creation of Class III carriers.

(a) To qualify for this exemption, applicant must file a

verified notice providing details about the transaction, and a brief

caption summary, conforming to the format in §1150.34, for

publication in the Federal Register.

(b) The exemption will be effective 7 days after the

notice is filed.

§ 1150.33 Information to be contained in notice —

transactions that involve creation of Class III Carriers.

(a) The full name and address of the applicant.

(b) The name, address, and telephorie number of the

representative of the applicant who should receive

correspondence;

about when an agreement will be reached;

(d) The operator of the property;

(e) A brief summary of the proposed transaction . . .

(f) A map that clearly indicates the area to be served,

including origins, termini, stations, cities, counties, and States;

and

(g) A certificate that applicant’s projected revenues do not

exceed those that would qualify it as a Class III carrier.”

Maryland Constitution:

Art. 5. “That the inhabitants of Maryland are entitled to the

Common Law of England, and the trial by Jury, according to the

course of that law, and to the benefit of such of the English

statutes as existed on the Fourth day of July, 1776; and which, by

experience, have been found applicable to their local and other

circumstances, and have been introduced, used and practiced by

A-48

the Courts of Law or Equity; and also of all Acts of Assembly in

force on the first day of June, 1867; except such as may have

since expired, or may be inconsistent with the provisions of this

Constitution; subject, nevertheless, to the revision of, and

amendment or repeal by, the Legislature of this State. And the

Inhabitants of Maryland are also entitled to all property derived

to them from or under the Charter granted by His majesty,

Charles the First to Caecilius Calvert, Baron of Baltimore.”

Maryland Environment Article (“EA”):

FA § 4-101.1:

(a) In general. — In this title [Title 4, Water Management] the

following words have the meanings indicated.

(d) Waters of this State. — “Waters of this State” includes:

boundaries of this State subject to its jurisdiction, including that

part of the Atlantic ocean within the boundaries of this State, the

Chesapeake Bay and its tributaries, and all ponds, lakes, rivers,

streams, storm drain systems, public ditches, tax ditches, and

public drainage systems—swithin this State, other than those

designed and used to collect, convey, or dispose of sanitary

sewage; and

(2) The flood plain of free-flowing waters determined b

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