dissenting.
{¶ 57} I respectfully dissent from the majority’s conclusion that Girard is impliedly preempted by the ICCTA from seeking relief in the trial court and that this matter is committed to the exclusive jurisdiction of the STB. This matter was not federally preempted and therefore the trial court properly had jurisdiction.
{¶ 58} State and local regulation of railroads is permissible when it does not interfere with interstate rail operations. Dist. of Columbia v. 109, 205.5 Square Feet of Land (Apr. 25, 2005), D.D.C. No. 05-202, 2005 WL 975745; Florida E. Coast Ry. Co. v. W. Palm Beach (C.A.11, 2001), 266 F.3d 1324, 1330-1331. However, “state law actions can be preempted as applied if they have the effect of unreasonably burdening or interfering with rail transportation.” Franks Invest. Co., L.L.C. v. Union Pacific RR. Co. (C.A.5, 2010), 593 F.3d 404, 414.
{¶ 59} It is appropriate for a trial court, and a reviewing appellate court, to make a determination whether an eminent-domain action “would interfere with rail operations and, therefore, whether removal based on complete preemption of the ICCTA [is] proper.” Bayou DeChene Reservoir Comm. v. Union Pacific RR. Corp. (June 8, 2009) W.D.La. No. 09-0429, 2009 WL 1604658, Sachse v. Kansas City S. Ry. Co. (E.D.Tex.2008), 564 F.Supp.2d 649, 655-657 (an eminent-domain proceeding that had been removed from state court would not impede rail operations and therefore the court did not have jurisdiction based on preemption of the ICCTA). It is not required that the STB make such a determination.
{¶ 60} Several courts have found that a taking by eminent domain of railroad land is preempted. However, it is important to note that such cases generally involve a taking of railroad land that was explicitly and clearly being used for railroad transportation. In the current case, Girard did not exercise eminent domain over the portion of the property where the railroad tracks are located. Therefore, this case is distinguishable from those in which eminent domain was used to exert control over property actually containing railroad tracks or when eminent domain interfered with the movement of a train. See Wisconsin Cent., Ltd. v. Marshfield (W.D.Wis.2000), 160 F.Supp.2d 1009, 1014 (state-court proceedings were preempted when the city sought to relocate a portion of railroad track); Buffalo S. RR. Inc. v. Croton-on-Hudson (S.D.N.Y.2006), 434 F.Supp.2d 241, 244-245 (property that the city sought to appropriate contained railroad track and loading facilities, and therefore the matter was preempted).
{¶ 61} In District of Columbia v. 109,205.5 Square Feet of Land, the court approved taking a portion of railroad property through eminent domain. In that case, the court found that federal preemption did not exist when the city sought to acquire railroad land, via condemnation, for a pedestrian and bike trail. The court found that because the trail was set back from the active railroad line and *288would not interfere with railroad transportation, the case was “among those generally resolved in the state courts.” Similarly, in the current case, Girard seeks to take property set away from the active railroad tracks.
{¶ 62} The majority finds that Girard’s action is impliedly preempted because the taking would unreasonably interfere with YBR’s railroad operations. Specifically, it holds that Girard’s current uses and future plans could ultimately interfere with rail transportation. However, the facts in the record do not support this conclusion. Girard sought to take 41.5 acres of YBR’s property, leaving YBR with 13.5 remaining acres. Girard did not seek to appropriate the portion of the property containing the railroad tracks and also allowed a 100-foot right-of-way located to the side of the tracks. While YBR contends that it stored railroad equipment and other items on three to four acres of its property, Girard provided evidence to the trial court, in the form of aerial pictures, that the land in question was not being used and that no railroad storage or activity had been occurring. Even if YBR was conducting such storage, it would be left with 13.5 acres, allowing sufficient room to store these items. In addition, John Dulac, YBR’s chief engineering officer, admitted in his deposition that the railroad could use the portion of the right-of-way beside the railroad as its storage or staging area. Under these circumstances, YBR would be able to continue its business as it had previously, without any changes to its procedure or railroad operations. Therefore, the appropriation would not have the effect of interfering with railroad transportation, as required for the application of implied preemption.
{¶ 63} In addition, federal courts have noted that the party challenging eminent domain or condemnation must present evidence in support of the contention that the proceedings would interfere with railroad operations. Bayou DeChene; Franks, 593 F.3d at 415. The challenging party cannot make conclu-sory or unsupported statements, but must instead demonstrate that railroad transportation will actually be prevented or that unreasonable interference would occur. Bayou DeChene. Although YBR asserts that it will be prevented from conducting its railroad operations, it cannot show that it uses the property in question for more than just the use of the railroad line and the three or four acres of storage, as noted above, while Girard showed that no interference would occur. See Bayou DeChene (where the city cited specific facts supporting its contention that condemnation would not have the effect of interfering with railroad operations, including that the land to be taken to build a road was 275 feet from the railroad itself and 75 feet from the railroad right-of-way and the opposing party did not show interference with railroad operations, a motion to dismiss based on preemption was without merit); Franks, 593 F.3d at 415 (there must be some evidence that the alleged interference will be caused specifically by the portion of land that was taken).
*289{¶ 64} YBR also argues that it was in negotiations to sell the property to TWL, a waste-management company. Such a sale was speculative, as there is no evidence that a definitive sale would occur. If such a sale did not occur, YBR would continue to make little use of the property Girard is seeking to take though eminent domain, as explained above. In addition, in the sales contract, YBR did not reserve any portion of the railroad property for staging, track right-of-way, or other railroad activities, indicating that YBR has limited activity occurring on the subject parcel of land and that no interference will occur. If such a sale were to take place, any additional transportation that resulted from the operations would likely not qualify as railroad transportation, as YBR asserts. See New York & Atlantic Ry. Co. v. Surface Transp. Bd. (C.A.2, 2011), 635 F.3d 66, 73 (if a railroad’s involvement in transporting waste is limited to transporting cars to and from the facility and the waste company is offering its own services to customers directly, preemption does not apply); J.P. Rail, Inc. v. New Jersey Pinelands Comm. (D.N.J.2005), 404 F.Supp.2d 636, 650.
{¶ 65} Even if transportation of waste could be considered railway transportation, YBR has not shown that the existing railway, which Girard does not seek to interfere with, would be insufficient to transport such waste. Although YBR contends that it may need to expand and add another track upon sale of the property to TWL, Girard Engineer Robert Lyden also testified that the acres not appropriated provide sufficient space to build another track for potential future use. Therefore, it is not likely, even if TWL did purchase a portion of YBR’s land, that an unreasonable burden or interference with rail transportation would occur, such that implied preemption would apply.
{¶ 66} In this case, the evidence presented supports a finding that YBR will be able to meet its present and future railway needs after Girard’s exercise of its eminent-domain authority. Therefore, federal preemption does not apply. I would reverse the decision of the court below and remand this case for further proceedings.