# Petition for Writ of Certiorari — Riffin v. Maryland Department of the Environment (No. 06-617) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1690%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text Su prome at U.S. 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 i 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? ll 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 Ww | coed ee 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 iV 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. 39 40 & 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 Vi 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): iX 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 (C) a switch, spur, track, terminal, terminal facility, 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 4 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. 6 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. 7 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 10 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.)_ 1] 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. 12 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.”]. (C) The 4" circuit and Maryland’s court of last resort have 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. 14 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. 15 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): 16 “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 17 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 18 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 21 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) 22 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). \ 23 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 24 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 25 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 26 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. 27 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 28 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 29 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 30 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 31 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 32 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. 33 - (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 34 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 v. 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 A-5 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). A-6 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. A-7 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). A-8 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. A-9 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. A-10 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.” A-11 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 A-12 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].” A-13 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). A-14 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 A-15 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. A-16 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. A-17 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” A-18 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 A-19 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 A-20 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 facilit [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1690%3A1. Public record. Not legal advice.