New Hampshire Motor Transport Ass'n v. Town of Plaistow

September 27, 1995
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-2095

NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, ET AL.,

Plaintiffs, Appellants,

v.

TOWN OF PLAISTOW,

Defendant, Appellee.

ERRATA SHEET

The opinion of this court, issued on September 20, 1995, is
amended as follows:

On page 12, line 8 of first full paragraph, replace "making" with
"make".

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-2095

NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, ET AL.,

Plaintiffs, Appellants,

v.

TOWN OF PLAISTOW,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Martin F. Loughlin, Senior U.S. District Judge]

Before

Cyr, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Boudin, Circuit Judge.

Mark I. Zarrow with whom Lian, Zarrow, Eynon & Shea was on briefs

for appellants.
Melinda S. Gehris with whom Marjorie E. Lanier and Devine,

Millimet & Branch, P.A. were on brief for appellee.

September 20, 1995

BOUDIN, Circuit Judge. This appeal presents a challenge

to a town zoning ordinance and cease and desist order that

limit night-time access to and from a local trucking

terminal. Appellants are the terminal owner, the terminal

operator, various interstate motor carriers that regularly

use the terminal, and an association representing New

Hampshire truckers. Appellee is the Town of Plaistow, New

Hampshire, ("the town"), which adopted the restrictions at

issue. The terminal is located on a site partly in Plaistow

and partly in Newton, New Hampshire.

The trucking terminal began operation in September 1988.

It serves as a regional hub for various trucking companies

serving the New England area. Line haulers from around the

country drop off freight to be delivered in New England and

pick up freight whose destination lies outside New England.

Atlas Motor Express, Inc. ("Atlas"), the operator of the

terminal, maintains a fleet of trucks and provides short haul

service within the New England area. The terminal operates

24 hours a day, loading and unloading trailers.

Most trucks that use the Plaistow/Newton terminal reach

it from Interstate 495, a federal highway that runs through

Massachusetts and near the New Hampshire border. From

Interstate 495, trucks travel about 5 miles on Route 125 to

Kingston Road (both are New Hampshire state highways) and

then about half a mile to Garland Way, the terminal's private

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access road. Trucks must travel roughly 2000 feet along

Garland Way, the first portion of which passes through the

Plaistow residential zone. The terminal's facilities are all

located in Newton in an industrial zone bordering on

Plaistow.

Shortly after the terminal opened, numerous residents

from Plaistow who live along Kingston Road near Garland Way

complained about late night truck traffic to and from the

terminal. The town subsequently served a cease and desist

order on Atlas and the terminal owner, alleging a violation

of a Town of Plaistow zoning ordinance that reads in

pertinent part:

Any uses that may be obnoxious or injurious by
reason of the production or emission of odors,
dust, smoke, refuse matter, fumes, noise, vibration
or other similar conditions, or that are dangerous
to the comfort, peace, enjoyment, health or safety
of the community, whether it contributes to its
disturbance or annoyances are prohibited in all
districts.

The cease and desist order stated that "heavy commercial

trucking arriving at and leaving [the] site is emitting

odors, smoke, fumes, noise and vibration around the clock."

Despite the order, late night traffic to and from the

terminal continued.

The town then brought an action in New Hampshire

Superior Court seeking an injunction against the terminal and

an order imposing reasonable hours of operation. The state

court entered a preliminary injunction on February 28, 1989,

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placing a curfew on night-time access to and from the

terminal. After an evidentiary hearing, the court entered a

permanent injunction on July 7, 1989, limiting the terminal's

night-time traffic as follows:

6:00 a.m. to 9:00 p.m.: No restrictions.
9:00 p.m. to 11:00 p.m.: Two trucks may arrive or
depart.
11:00 p.m. to 5:00 a.m.: No trucks may arrive or
depart.
5:00 a.m. to 6:00 a.m.: Three trucks may arrive or
depart.

The New Hampshire Supreme Court denied the terminal's request

for appellate review.

On March 26, 1993, appellants filed a federal suit

against the town, alleging that the enforcement of the

Plaistow zoning ordinance was preempted by various federal

statutes and by the Commerce Clause. U.S. Const., Art. I,

8. On October 25, 1993, the district court granted the

town's motion to dismiss, for failure to state a claim, the

appellants' claim that the injunction was preempted by the

Noise Control Act of 1972, 42 U.S.C. 4901 et seq. New

Hampshire Motor Transport Ass'n v. Town of Plaistow, 836 F.

Supp. 59 (D.N.H. 1993).

A three-day bench trial followed in August 1994.

Thereafter, the district court ruled that the injunction

limiting night-time access to and from the trucking terminal

was not preempted by two other federal statutes invoked by

the appellants--the Surface Transportation Assistance Act of

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1982, 49 U.S.C. 31101 et seq., and the Hazardous Materials

Transportation Uniform Safety Act of 1990, 49 U.S.C. 5101

et seq.--and did not violate the Commerce Clause. This

appeal followed. We agree with the district court's

determinations and affirm.

1. The town urges that the district court judgment be

upheld, without reaching the merits, on the ground that the

state court enforcement action is res judicata as to all of

the appellants. The reach of a prior state court judgment is

determined by state law. Migra v. Warren City School

District Board of Education, 465 U.S. 75 (1984). Under New

Hampshire law, we think that the prior judgment does not

foreclose the present suit, at least by appellants who were

not parties to the state court action.

The only defendants in the state court action were the

terminal owner and its operator. Non-parties can be bound

where they are in privity with parties to prior litigation,

and the privity concept is fairly elastic under New Hampshire

law, as elsewhere. But normally something more is required

for privity between the prior and present litigants than

merely a common interest in the outcome. Daigle v. City of

Portsmouth, 534 A.2d 689, 694 (N.H. 1987). See also Gonzalez

v. Banco Cent. Corp., 27 F.3d 751, 756-63 (1st Cir. 1994)

(interpreting federal law).

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Here, there is no indication that the appellant

interstate carriers even knew of, let alone controlled, the

prior litigation. Although the town points out that the same

law firm represents all of the appellants, the interstate

carriers are not claimed to have controlled or managed the

original state court litigation from behind the scenes. Cf.

Montana v. United States, 440 U.S. 147, 154 (1979); General

Foods v. Massachusetts Dept. of Pub. Health, 648 F.2d 784,

789 (1st Cir. 1981). It is also plain that the interstate

carriers who use the terminal on a regular basis have a real

and distinct interest in nullifying the town's restriction.

Finally, we note that with the exception of the Commerce

Clause issue, the federal issues were apparently not

litigated in the state court. This would not necessarily

defeat a valid claim of res judicata, see, e.g., Stuhlreyer

v. Armco, Inc., 12 F.3d 75, 77 (6th Cir. 1993), but it

encourages us to resolve any doubts in favor of allowing the

carriers to sue. Since the merits must be reached on the

appeals by the interstate carriers, we need not consider the

stronger claim of foreclosure against the owner and operator

of the terminal.

2. Turning to the merits, our review of the district

court's preemption analyses is plenary, Ellenwood v. Exxon

Shipping Co., 984 F.2d 1270, 1273 n.4 (1st Cir.), cert.

denied, 113 S. Ct. 2987 (1993), and we address in turn each

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of the statutes relied on by appellants as a separate ground

for preemption. Among these, the most important is the

Surface Transportation Assistance Act of 1982 ("the Surface

Act"), as amended by the Tandem Truck Safety Act of 1984

("the Tandem Act"), now codified at 49 U.S.C. 31111 et seq.

These statutes together establish uniform, national standards

for the maximum size and weight of trucks and trailers used

in interstate commerce.

As amended, the Surface Act forbids the states from

enacting or enforcing laws that prohibit trucks and trailers

of approved length and weight from travelling on the national

network, i.e., the system of interstate highways and other

federally-funded primary routes designated by the Secretary

of Transportation. 49 U.S.C. 31111(e); 23 C.F.R. 658.5.

The Surface Act also prohibits states from denying approved

trucks and trailers "reasonable access" between the national

network and "terminals." 49 U.S.C. 31114. This provision,

which is at the heart of this case, reads as follows:

31114. Access to the Interstate System

(a) Prohibition on denying access. A State may not
enact or enforce a law denying to a commercial
motor vehicle subject to this subchapter or
subchapter I of this chapter reasonable access
between--

(1) the Dwight D. Eisenhower System of
Interstate and Defense Highways (except a
segment exempted under section 31111(f) or
31113(e) of this title) and other qualifying
Federal-aid Primary System highways designated

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by the Secretary of Transportation [i.e., the

national network]; and

(2) terminals, facilities for food, fuel,
repairs, and rest, and points of loading and
unloading for household good carriers, motor
carriers of passengers, or any truck tractor-
semitrailer combination in which the
semitrailer has a length of not more than 28.5
feet and that generally operates as part of a
vehicle combination described in section
31111(c) of this title.

(b) Exception.--This section does not prevent a
State or local government from imposing reasonable
restrictions, based on safety considerations, on a
truck tractor-semitrailer combination in which the
semitrailer has a length of not more than 28.5 feet
and that generally operates as part of a vehicle
combination described in section 31111(c) of this
title.

The district court ruled that the local curfew did not

deny reasonable access to trucks wishing to use the Atlas

terminal. The terminal is located between five and six miles

from Interstate 495, the nearest juncture with the national

network. (Route 125 in Plaistow is not a part of the

national network. See 23 C.F.R. 658, app. A (New

Hampshire.)) Given this distance, and Plaistow's legitimate

interest in curbing noise, odor and dust in its residential

areas, the district court found that the night-time

restrictions were a reasonable compromise.

On this appeal, the truckers first say that the

"reasonable access" provision limits state restrictions to

those based on safety. This is a straightforward issue of

statutory construction which, absent the "exception" clause

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quoted above, would easily be resolved in the town's favor.

After all, the main provision requires "reasonable access."

49 U.S.C. 31114(a). "Reasonable" is a comprehensive term,

United States v. Rodriguez-Morales, 929 F.2d 780, 785 (1st

Cir. 1991), cert. denied, 502 U.S. 1030 (1992), and nothing

in language or common-sense makes reasonableness turn solely

on safety considerations.

Context reenforces this view. The "[p]rohibition on

denying access," 49 U.S.C. 31114, extends far beyond the

operation of interstate highways or federally funded state

roads that are designated parts of the national network.

Local roads and other facilities are also covered by the

provision to the extent needed to assure reasonable access to

the national network. 23 C.F.R. 658.19. The guarantee of

reasonable access thus has a formidable reach, extending to

local regulatory measures that operate miles away from any

interstate or national network highway.

Many of these measures are designed to safeguard

interests other than safety. Consider, for example, a

restriction that routed heavy traffic on a detour of a few

miles to assure quiet in a hospital zone. It is difficult to

conceive that Congress meant to exclude such a concern from

the calculus used to determine whether a restriction

infringes on "reasonable access" to the federal highway

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system. In this instance, language and policy are as one in

opposing such a restrictive reading.

The sole argument for limiting the restrictions to

safety matters stems from the exception provision, now

codified as 49 U.S.C. 31114(b). As a matter of language,

this provision permits, but does not compel, a negative

inference that the only restrictions allowed under the main

provision are safety restrictions. Because subsections (a)

and (b) do not fit neatly together, it is difficult to be

absolutely certain of Congress' intent. But for several

reasons we reject the suggestion that subsection (b) narrows

by inference the concept of reasonableness in subsection (a).

First, the negative inference is flawed as a matter of

language. By its terms the safety exception in subsection

(b) is concerned not with safety limitations generally but

with restrictions on truck tractor-semitrailer combinations.

If the exception were taken to narrow the restrictions

permitted under the main "reasonable access" provision, then

arguably the only restrictions allowed would be safety

restrictions directed to truck tractor semitrailer

combinations, an extremely odd result.

Second, the original 1982 Surface Act contained the

reasonable access language with no exception provision; so

nothing in 1982 suggested that state access restrictions were

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limited to those based on safety.1 If Congress in 1984 had

intended to alter the reasonable access provision so as to

limit the states to safety restrictions, one might reasonably

expect some indication of this purpose at least in the

legislative history. Cf. Sierra Club v. Secretary of Army,

820 F.2d 513, 522 (1st Cir. 1987). Congress' failure to

indicate any such purpose argues against appellants' reading.

Compare S. Rep. No. 505, 98th Cong., 2d Sess. 1-3 (1984).

The truth is that the legislative history of the

exception provision is meager. See New York State Motor

Truck Ass'n v. City of New York, 654 F. Supp. 1521, 1533

(S.D. N.Y. 1987), aff'd 833 F.2d 430 (2d Cir. 1987) (quoting

two rather uninformative sentences). Among other changes in

1984, Congress expanded somewhat the protected radius in

which truck tractor-semi-trailers could operate to include

their points of loading and unloading. Since this was a

concern to state officials, S. Rep. No. 505 at 1-3; 654 F.

Supp. at 1531, Congress evidently balanced this change by

adding subsection (b) as a counter-weight.

1Section 412 of the Surface Act, 96 Stat. at 2160,
provided:

No State may enact or enforce any law denying
reasonable access to commercial motor vehicles
subject to this title between (1) the Interstate
and Defense Highway System and any other qualifying
Federal-aid Primary System highways as designated
by the Secretary, and (2) terminals, facilities for
food, fuel, repairs, and rest, and points of
loading and unloading for household goods carriers.

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We appreciate that, as appellants point out, three

district courts have made references to the "reasonable

access" provision as one directed to safety.2 But the state

restrictions with which those cases were concerned were

wholly different from and far more intrusive than the

Plaistow ordinance and order, including blanket limitations

on the distance vehicles could freely travel off the national

network and burdensome prior approval provisions for the use

of local roads. See 681 F. Supp. at 339-40; 654 F. Supp. at

1529-30; 647 F. Supp. at 1484-88. Safety is obviously a

paramount reason for limiting access; but, in our view, it is

not the only reason permitted by Congress.

Having concluded that the district court correctly

construed the Surface Act, we have no occasion to review the

court's further, fact-specific decision that the Plaistow

restrictions in this case did permit reasonable access. The

appellants scarcely bother to argue the point; in a couple of

sentences, they simply assert that the district court

findings show that a truck terminal must operate 24 hours a

day. The opinion does not make such a finding, and we think

appellants' cursory argument waives the factual issue in this

2A.B.F. Freight System, Inc. v. Suthard, 681 F. Supp.

334, 341 (E.D. Va. 1988); New York State Motor Truck, 654 F.

Supp. at 1539; Consolidated Freightways Corp. of Delaware v.

Larson, 647 F. Supp. 1479, 1483-84 (M.D. Pa. 1986), rev'd on

other grounds, 827 F.2d 916 (3d Cir. 1987), cert. denied, 484

U.S. 1032 (1988).

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case. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.),

cert. denied, 494 U.S. 1082 (1990).

3. The truckers next contend that the curfew violates

the Hazardous Materials Transportation Uniform Safety Act of

1990 ("the Materials Act"), 49 U.S.C. 5101 et seq. The

Materials Act establishes uniform, national rules for the

transportation of hazardous materials and, together with its

accompanying regulations, creates an elaborate scheme for the

designation, handling, packaging, labeling, and shipping of

hazardous materials. Like the Surface Act, the Materials Act

contains an express preemption clause, which reads in

relevant part as follows:

5125. Preemption

(a) General.--Except as provided in
subsections (b), (c), and (e) of this section and
unless authorized by another law of the United
States, a requirement of a State, political
subdivision of a State, or Indian tribe is
preempted if--

(1) complying with a requirement of the State,
political subdivision, or tribe and a
requirement of this chapter or a regulation
prescribed under this chapter is not possible;
or

(2) the requirement of the State, political
subdivision, or tribe, as applied or enforced,
is an obstacle to accomplishing and carrying
out this chapter or a regulation prescribed
under this chapter.

The truckers contend that the curfew is preempted by the

second provision of the general preemption clause, because it

interferes with "the federal speedy-transport mandate," N.H.

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Motor Transport Ass'n v. Flynn, 751 F.2d 43, 51 (1st Cir.

1984), codified at 49 C.F.R. 177.853(a): " [a]ll shipments

of hazardous materials shall be transported without

unnecessary delay, from and including the time of

commencement of the loading of the cargo until its final

discharge at destination." Much of the Plaistow freight is

classified as hazardous. Because the Plaistow curfew

necessarily entails a delay for hazardous materials, the

truckers say that it violates the Materials Act.

By using the word "unnecessary," the regulations

indicate that some delays are necessary and acceptable. See

National Tank Truck Carriers, Inc. v. City of New York, 677

F.2d 270, 275 (2d Cir. 1982) (construing prior version of

statute). Once again, appellants make little effort to show

that on the present record the specific curfew requirements

imposed by Plaistow create any risk to the drivers of the

trucks, other highway traffic, Plaistow or any other

community. The substance of the appellants' brief on appeal

is that any regime that creates a possibility of a 12-hour

delay in delivery ipso facto automatically imposes

"unnecessary" delay.

A general, state-wide restriction is obviously more

vulnerable to attack both because its impact is likely to be

much greater and because it treats alike all situations

regardless of need or danger. See A.B.F. Freight System,

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681 F. Supp. at 345. Quite possibly a local restriction

might also unjustifiably interfere with hazardous shipment

movements, either standing alone or in combination with

restrictions in other communities. But the burden is upon

those who attack the restriction is show the impact. At

least on this appeal, appellants have not even attempted a

serious fact-specific showing.

This case is quite unlike National Tank Truck Carrier,

Inc. v. Burke, 698 F.2d 559 (1st Cir. 1983), in which we

affirmed a decision striking down Rhode Island's state-wide

curfew and permitting procedure for transporting certain

liquid gas on any Rhode Island roadway. By contrast, the

curfew at issue here involves one terminal, is tailored to

specific local conditions, and imposes no time restriction on

the delivery of hazardous materials in New Hampshire so long

as the Plaistow terminal is not used as a point of

interchange.

4. The truckers also challenge the district court's

dismissal of their claim under the Noise Control Act of 1972

("the Noise Act"), 42 U.S.C. 4901 et seq. 863 F. Supp. at

67-68. That statute created a federal regulatory scheme to

set noise emission levels for motor carriers engaged in

interstate commerce. Because the curfew was imposed in part

to eliminate the noise caused by trucks, the truckers say

that it is preempted by the Noise Act.

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The federal noise regulations pertaining to motor

carriers do nothing more than set minimum and maximum decibel

levels and exhaust system and tire standards for trucking

equipment that may operate on public roadways. 40 C.F.R.

202.20-202.23. Accordingly, no state or town may set

different decibel levels for motor carriers operating within

its jurisdiction. But neither the Plaistow curfew order nor

the ordinance it enforces purports to regulate the decibel

levels, exhaust systems, or tires of individual trucks.

Rather, noise levels were one element of an equation that

also included "odors, dust, smoke, refuse matter, fumes . . .

and vibration" and that prompted a limitation on operating

hours for one specific site.

The Noise Act preemption clause underscores the limited

reach of that statute. It provides in relevant part as

follows:

[A]fter the effective date of a regulation under
this section applicable to noise emissions
resulting from the operation of any motor carrier
engaged in interstate commerce, no State or
political subdivision thereof may adopt or enforce
any standard applicable to the same operation of
such motor carrier, unless such standard is
identical to a standard applicable to noise
emissions resulting from such operation prescribed
by any regulation under this section.

42 U.S.C. 4917(c)(1). Admittedly, the statutory language

is general ("any standard applicable to the same operation");

but we think that it would stretch the words beyond their

ordinary meaning to strike down a local curfew order based on

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a range of concerns where federal law regulates only the

decibel levels of the equipment. The Noise Act was not

designed to remove all state and local control over noise; on

the contrary, the statute says that "primary responsibility

for control of noise rests with State and local governments.

. . ." 42 U.S.C. 4901(a)(3).

5. Finally, appellants argue that the Plaistow curfew

is preempted under the Commerce Clause itself even if it does

not offend any of the individual statutes relied upon by

appellants. Since Congress has enacted its own legislative

test for this case ("reasonable access"), one might ask

whether it is proper for the courts to resort separately to

the more general Commerce Clause rubrics. Cf. White v.

Massachusetts Council of Construction Employers, Inc., 460

U.S. 204, 213 (1993). Be that as it may, applying the

general Commerce Clause tests does not alter the result.

Absent any statute at all, the courts ask--in a case not

involving discrimination against interstate commerce--whether

"the burden [on interstate commerce imposed by the local

restriction] is clearly excessive in relation to the putative

local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137,

142 (1970). The district court found no violation in this

case. Even if we reviewed this fact-specific legal

determination de novo, cf. Bose Corp. v. Consumers Union of

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United States, Inc., 466 U.S. 485, 501 & n.17 (1984), our

conclusion would be the same.

Starting with "burden," in this case a night-time curfew

prevents arrivals and departures at one terminal, at one

location in the state, during six late-night hours (from 11

p.m. to 5 a.m.) with lesser restrictions for three hours

(from 5 a.m. to 6 a.m. and from 9 p.m. to 11 p.m.). For 15

hours of the day (from 6 a.m. to 9 p.m.), there are no

limitations. The curfew does disadvantage this terminal vis-

a-vis other terminals not so restricted, and somewhat impairs

its profits; but the magnitude of the disadvantage is not

easy to isolate.

The evidence showed that customers often want early

morning delivery, and in some cases the curfew does limit the

ability of the Plaistow/Newton terminal to make such

deliveries. On the other hand, there is no indication that

customers cannot be served from other terminals or that the

flow of commerce into and out of New Hampshire is seriously

affected. No state wide restriction is involved, compare

Kassel v. Consolidated Freightways Corp., 450 U.S. 662

(1981), nor is a major artery of commerce severely

constricted, compare Southern Pacific Co. v. Arizona, 325

U.S. 761 (1945).

On the other side of the scale, the impact on local

residents is not some remote or conjectural specter. The

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curfew order was obtained only because of local experience

with the terminal; and residents testified at trial about the

effect on their lives of unrestricted deliveries. The curfew

is akin to zoning and traffic restrictions traditionally

applied on a local level, cf. Christensen v. Yolo Cty. Bd. of

Supervisors, 995 F.2d 161, 166 (9th Cir. 1993); Interstate

Towing Ass'n, Inc. v. Cincinnati, 6 F.3d 1154, 1163-65 (6th

Cir. 1993), and there is no regulation by federal authorities

that provides substitute protection.

In sum, the burden of the curfew on interstate commerce

has not been shown to be excessive in relation to the

benefits. Congress has great latitude to order preemption,

and calibrate it with precision, based on a legislative

judgment that local regulation threatens interstate commerce.

The dormant Commerce Clause, by contrast, is a fairly blunt

instrument; and absent discrimination, courts may reasonably

insist on a fairly clear showing of undue burden before

holding unconstitutional a traditional example of local

regulation. See Raymond Motor Transportation, Inc. v. Rice,

434 U.S. 429, 443-44 (1978). That showing has not been made

on the record before us.

Affirmed.

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