[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 5, 2010
No. 09-16079
JOHN LEY
CLERK
D. C. Docket No. 08-00089-CV-5
MADGLEAN PACE,
MARVIN PACE,
CHARLES PACE,
MELVIN PACE,
SHELLEY PACE, JR.,
Plaintiffs-Appellants,
versus
CSX TRANSPORTATION, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Georgia
(August 5, 2010)
Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges.
DUBINA, Chief Judge:
Appellants, Madglean Pace, Marvin Pace, Charles Pace, Melvin Pace, and
Shelley Pace, Jr., (“the Pace family”), appeal from the district court’s grant of
summary judgment in favor of CSX Transportation (“CSX”) on their state law
nuisance claim stemming from CSX’s construction and use of a side track adjacent
to property owned by the Pace family in Ambrose, Georgia. The Pace family
argues that the district court erred in finding that their claim is preempted by
section 10501(b)(2) of the Interstate Commerce Commission Termination Act of
1995, 49 U.S.C. § 10101–11908 (2006).
After reviewing the record, reading the parties’ briefs, and having the
benefit of oral argument, we affirm the district court’s grant of summary judgment
in favor of CSX.
I. BACKGROUND
The Pace family owns land in Ambrose, Georgia, that is adjacent to a
railroad right of way held by CSX. The mainline track has been in continuous
operation for over 100 years and is currently used by trains to carry a variety of
goods including automobiles, grain, construction materials, and intermodal freight.
Until 2006, the track abutting the Pace family’s property was a single track
used by trains traveling in both directions. In September 2006, CSX constructed a
roughly two-mile-long side track parallel to the mainline track. The side track
2
allows faster trains to pass the slower trains and trains traveling in different
directions to pass one another. The purpose of this particular side track is to solve
the traffic problems caused by a sixteen-mile stretch of mainline track that was
previously without a side track.
In January 2008, the Pace family filed suit in Superior Court in Coffee
County, Georgia, alleging that the operation of the side track caused an increase in
noise and smoke due to the traffic on the track and made their land virtually
unusable. CSX removed the case to federal court in November 2008. In July
2009, CSX moved for summary judgment on the basis of federal preemption and
the district court granted the motion. This appeal followed.
II. STANDARD OF REVIEW
This court reviews de novo a district court’s grant of summary judgment,
Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007), and reviews de
novo a district court’s conclusion that federal law preempts a state law claim, Cliff
v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th Cir. 2004).
III. DISCUSSION
The Supreme Court has identified three types of preemption: (1) express
preemption; (2) field preemption; and (3) conflict preemption. This That & The
Other Gift & Tobacco, Inc. v. Cobb County, Ga., 285 F.3d 1319, 1322 (11th Cir.
3
2002). The type of preemption relied upon by the district court in granting
summary judgment, express preemption, occurs when Congress has explicitly
indicated its intention to preempt state law in the text of the statute. English v.
Gen. Elec. Co., 496 U.S. 72, 78–79, 110 S. Ct. 2270, 2275 (1990). If Congress
does not explicitly preempt state law, however, preemption still occurs when
federal regulation in a legislative field is so pervasive that we can reasonably infer
that Congress left no room for the states to supplement it, known as field
preemption. Id. at 79, 110 S. Ct. at 2275. Even when Congress has neither
expressly preempted state law nor occupied the field, state law is preempted when
it actually conflicts with federal law. Id. Conflict preemption arises either when it
is impossible to comply with both federal and state law or when state law “stands
as an obstacle” to achieving the objectives of the federal law. Crosby v. Nat’l
Foreign Trade Council, 530 U.S. 363, 372–73, 120 S. Ct. 2288, 2294 (2000)
(internal quotation marks omitted).
The statute at issue in this case, the Interstate Commerce Commission
Termination Act (ICCTA), provides in section 10501(b) that jurisdiction of the
Surface Transportation Board (STB) is exclusive over “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
4
be located, entirely in one State[.]” 49 U.S.C. § 10501(b)(2). It also states that
“[e]xcept 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.” Id. § 10501(b).
The parties agree that construction and operation of a side track is covered
by the ICCTA; however, the Pace family argues that its nuisance action for
monetary damages is not preempted by the ICCTA, because it is not directly
related to the operation and use of the side track. The Pace family urges the court
to take a remedy-centered approach and find an action is only preempted where a
remedy is sought that would demand changes in the railroad’s core operations.
The district court disagreed with the Pace family’s framing of the issue and
concluded that because the Pace family sought a remedy of any sort for the
construction and use of a side track, the claim is expressly preempted by the
ICCTA.
We agree with the district court’s conclusion. When this court considers
preemption issues, “we start with the assumption that the historic police powers of
the states are not superseded by federal law unless preemption is the clear and
manifest purpose of Congress.” Cliff, 363 F.3d at 1122. Here, the language of
section 10501(b) plainly conveys Congress’s intent to preempt all state law claims
5
pertaining to the operation or construction of a side track. Accordingly, we hold
that the Pace family’s state law nuisance claim for monetary relief is expressly
preempted by the ICCTA.
Our holding is also supported by persuasive authority. The Surface
Transportation Board has taken the position that state law nuisance claims are
preempted by the ICCTA. See, e.g., Mark Lange, S.T.B. Finance 35037, 2008 WL
219583, at *3 (S.T.B. Jan. 28, 2008) (finding state law nuisance claim seeking
damages of $20,000 is preempted by ICCTA). Further, although no circuit court
has discussed the preemptive scope of the ICCTA in the context of a state law
nuisance claim,1 a Fifth Circuit case strongly supports our holding that the Pace
family’s nuisance claim is preempted. In Friberg v. Kansas City Southern
Railway, Co., 267 F.3d 439, 444 (5th Cir. 2001), the Fifth Circuit reversed a jury
verdict entered against a railway company on a business owner’s state law
negligence claims stemming from the railway’s expansion and use of a side track.
1
There is a First Circuit case denying removal jurisdiction over a state law nuisance claim
because the claim was not completely preempted by the ICCTA. See Fayard v. N.E. Vehicle
Servs., LLC, 533 F.3d 42, 47 (1st Cir. 2008). Complete preemption, as a narrow exception to the
well-pleaded complaint rule, carries a higher burden than proving a defense based on preemption.
See e.g., Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1344 (11th Cir.
2009). The First Circuit concluded that “preemption may well be a defense to . . . nuisance
claims, but the conditions have not been met to authorize removal through the extreme and
unusual outcome of complete preemption.” Fayard, 533 F.3d at 49. The First Circuit noted in
dicta that nuisance claims seeking monetary damages are likely preempted by the ICCTA in the
same way as claims seeking a modification of the railroad’s operations. Id.
6
Specifically, the business owner complained that the railway’s decision to extend
the side track resulted in longer and more frequent trains, which often obstructed
customers’ access to the business. Id. at 440–41. The business eventually closed.
Id. The Fifth Circuit held that the business owner’s state law tort claims were
preempted by the ICCTA, concluding that “[n]othing in . . . the all-encompassing
language of the ICCTA’s preemption clause permit[s] the federal statute to be
circumvented by allowing liability to accrue under state common law, where that
liability arises from a railroad’s economic decisions such as those pertaining to
train length, speed or scheduling.” Id. at 444.
The same can certainly be said in this case: to permit monetary liability to
accrue under a state law nuisance claim where that liability is based on decisions
the ICCTA purposefully freed from outside regulation would contradict the
language and purpose of the ICCTA. The ICCTA expressly preempts state
remedies involving the operation of the side track. Therefore, we will not permit
landowners to circumvent that Congressional decision through state law nuisance
claims.
IV. CONCLUSION
For the above-stated reasons, we affirm the district court’s grant of summary
judgment in favor of CSX on preemption grounds.
AFFIRMED.
7