United States Court of Appeals
For the First Circuit
Nos. 02-1537, 02-1828, 02-1843, 02-2258
BOSTON AND MAINE CORP.; SPRINGFIELD TERMINAL RAILWAY CO.;
GUILFORD TRANSPORTATION INDUSTRIES, INC.,
Plaintiffs, Appellees/Cross-Appellants,
v.
TOWN OF AYER; AYER BOARD OF SELECTMEN; AYER PLANNING BOARD;
AYER BOARD OF HEALTH; PAUL D. BRESNAHAN; CONNIE F. SULLIVAN;
ROBERT J. PENA; WILLIAM OELSKE; JAMES F. FAY; JAMES F. WILLIAMS;
JAMES LUCCHESI; THOMAS GIBBONS; LAURI J. ROSAS;
MARGARET M. KIDDER; C. JANE WITHEROW,
Defendants, Appellants/Cross-Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Lynch, Circuit Judge,
Bownes, Senior Circuit Judge,
and Howard, Circuit Judge.
Leonard H. Kesten, with whom Jocelyn M. Sedney, Deidre
Brennan Regan, and Brody, Hardoon, Perkins & Kesten were on brief,
for appellants.
William S. Eggeling, Nikolas P. Kerest, Michael T.
Marcucci, and Ropes & Gray on brief for Conservation Law
Foundation, Town of Littleton Water Department, Massachusetts
Municipal Association and National League of Cities, amici curiae.
Eric L. Hirschhorn, with whom Winston & Strawn and Robert
B. Culliford were on brief, for appellees.
Louis P. Warchot and Michael J. Rush on brief for
Association of American Railroads, amicus curiae.
May 21, 2003
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LYNCH, Circuit Judge. Guilford Transportation, which
runs the Boston & Maine railroad, owns a railroad yard in Ayer,
Massachusetts. In 1997, in order to expand its storage capacity,
Guilford1 purchased land, the San Vel site, which lies across the
street from its railroad yard and is bounded by two railroad
tracks. The site is in an aquifer protection area.
Understandably, Ayer sought protection for the aquifer.
Guilford accordingly sought permits from the town and
attempted to reach agreements. These negotiations broke down when
the town Planning Board imposed thirty-six conditions on issuance
of any permit and another town body, the Board of Health, declared
the proposed plan to be a noisome trade, allowing Guilford's
activities to be banned outright. Concerned that these town
actions effectively prohibited or unduly burdened its planned
operations, Guilford went to federal court to seek a declaration
that Ayer's efforts were preempted.
After the parties filed cross motions for summary
judgment, the district court (with the parties' agreement) sought
the views of the Surface Transportation Board (STB) on October 19,
2000.2 The Board gave its views to the court in decisions served
1
Throughout this opinion, we will refer to the plaintiffs
collectively as "Guilford."
2
Under 5 U.S.C. § 554(e) (2000), an agency "with like effect
as in the case of other orders, and in its sound discretion, may
issue a declaratory order to terminate a controversy or remove
uncertainty." See 49 U.S.C. § 721 (2000) (powers of STB).
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on May 1 and October 5, 2001. The court entered judgment for
Guilford, but without the declaratory or injunctive relief Guilford
had sought. It also awarded attorneys' fees and costs of
$286,839.49 to the railroad under 42 U.S.C. §§ 1983 and 1988
(2000).
Ayer appealed, arguing it had at stake important
environmental interests, buttressed by the Clean Water Act, 33
U.S.C. §§ 1311-1330 (2000) and the Safe Drinking Water Act, 42
U.S.C. §§ 300f to 300j-26; that none of its actions are preempted;
and that the railroad is not entitled to attorneys' fees. The
Conservation Law Foundation, the Town of Littleton Water
Department, the Massachusetts Municipal Association and the
National League of Cities and Towns, as amici, supported reversal
of the district court decision.
Guilford sought affirmance of the district court's
orders, but cross-appealed, saying it was entitled to a declaratory
judgment and an injunction against the Town, relief the district
court omitted to give it. Guilford was supported on its view of
preemption by the Association of American Railroads as amicus.3
The parties presented the case as a pure conflict between
the strong federal interest in a uniform system of railroad
regulation and the strong local interest in protecting water
3
The court expresses its appreciation to both sets of amici
for their assistance.
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supplies. As the ensuing discussion shows, the law presents much
more nuanced accommodations.
At oral argument, we sought a practical solution to a
portion of the case and requested that the parties meet with this
court's Civil Appeals Management Program (CAMP) to see if they
could negotiate an agreement as to Guilford's voluntary compliance
with certain conditions. Admirably, the parties have reported back
that they have reached partial settlement through an agreement on
the conditions under which Guilford will proceed with the
development, construction, and operation of an automobile unloading
facility at the San Vel site, thus mooting that aspect of the case.
They have asked us to dismiss the appeals in cases Nos. 02-1537,
02-1828, and 02-1843, and aspects of case No. 02-2258, and to
remand them with instructions to the district court to enter a
consent decree. Thus, we do not reach the substance of these
issues.
That leaves for decision only the issue in case No. 02-
2258 of whether the district court erred in awarding Guilford its
attorneys' fees and costs under 42 U.S.C. § 1988. We reverse and
vacate the award of attorneys' fees.
I. Background
A. Factual Background
Guilford has owned and operated a railroad yard in Ayer
since 1974. The site serves as an unloading and temporary storage
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area for automobiles brought in by rail; it has approximately two
thousand parking spaces. In 1997, Guilford purchased 126 acres at
the San Vel site, also within the town of Ayer, across the road
from its existing railroad yard. Its intention was to create three
thousand additional parking spaces on this new site for temporary
automobile storage, as well as adding more unloading tracks, a
building, and an access road.
The San Vel site is located within the Zone II Aquifer
Protection Area. This aquifer protects the water wells at
Spectacle Pond, which are the main supply for Ayer's drinking
water.4 In November 1997, Guilford began to seek approval from the
town to construct the new storage facility. On May 18, 1998, it
filed a "notice of intent" with the Ayer Conservation Commission.
In this notice, and at a Planning Board meeting on May 26, 1999,
Guilford agreed to abide by a list of conditions. It also
petitioned for Site Plan Approval from the Ayer Planning Board.
The town's response was less than encouraging. On August
26, 1999, the Planning Board issued a Certificate of Approval;
however, it contained thirty-six conditions. Many of these were
preconditions to construction. Complicating matters further, on
August 18, 1999, the Ayer Board of Health adopted new bylaws
authorizing it to designate certain occupations as "noisome trades"
4
The site is also within the Zone III aquifer protecting the
Town of Littleton's Spectacle Pond well.
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and prohibit them within town limits. On November 17, 1999, the
Board of Health declared that "an 'auto unloading facility' will be
considered a noisome trade." Thus, in addition to the thirty-six
conditions, Guilford now had to contend with the possibility of
being prohibited from operating its proposed facility altogether.
Indeed, the Board of Health ruling threatened the operation of the
existing railroad yard as well, as it also unloaded automobiles.
B. Procedural History
1. District Court History
On December 20, 1999, Guilford filed suit in the United
States District Court for the District of Massachusetts.
Guilford's complaint alleged that the STB was granted exclusive
jurisdiction over the construction and operation of railroad
facilities under 49 U.S.C. § 10501(b) (2000), and that the
Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C.
§§ 701-727, 10101-16105, preempted the Board of Health's
designation of the new facility as a noisome trade. It also
alleged that the local permitting conditions violated the dormant
Commerce Clause and thus the Supremacy Clause. The complaint
sought declaratory and injunctive relief and attorneys' fees.
In October 2000 the district court referred the matter to
the STB, stating that the "expertise of the Board in evaluating the
right of the defendants, if any, to regulate the plaintiffs'
proposed development off Willow Road in the Town of Ayer,
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Massachusetts would assist this Court in determining the rights,
duties, and obligations of the parties." On May 1, 2001, the STB
issued its decision. The defendants filed a petition for
reconsideration on May 21, which the STB denied on October 5,
2001.5
And there the case largely ended. For procedural
reasons, the district court itself never reached the preemption or
Commerce Clause issues raised in Guilford's complaint. The STB
gave its views to the district court as to whether federal law
preempted some of the conditions imposed by the town. When the
district court granted summary judgment for Guilford on March 20,
2002, it declined to evaluate whether some or all of the conditions
were indeed preempted. Instead, it ruled for Guilford because Ayer
had failed to request judicial review within ninety days of the
STB's order, as required by 28 U.S.C. § 1336(c) (2000).6 The
5
While the STB was considering the petition for
reconsideration, Ayer successfully sought to restrain Guilford from
its ongoing activity on the site. When Guilford appealed the
restriction, this court noted that the parties' agreement to
maintain the status quo lasted only so long as the STB proceedings
were ongoing (the court was unaware of Ayer's motion to the STB for
reconsideration). By order dated July 16, 2001 this court vacated
the preliminary injunction because it was not accompanied by the
requisite findings, but left the parties free to broach the issues
anew in the district court.
6
The district court, for the purpose of calculating the
ninety days, included the time between the STB's May 1 order and
Ayer's May 21 motion for reconsideration. That approach was
mistaken; if a petition for reconsideration of an administrative
order is filed, the original order is not final, and the
limitations period begins only when the petition for
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status of the thirty-six conditions was left, to some degree,
unresolved.
Guilford then moved for attorneys' fees under 42 U.S.C.
§ 1988. The district court allowed the motion on June 10, 2002,
and on August 20 the court awarded $286,839.49.
2. STB's Holding
The analysis by the STB of federal preemption under 49
U.S.C. § 10501(b) was finely crafted. See Boston & Me. Corp., 2001
Fed. Carr. Cas. (CCH) ¶ 38,352 (May 1, 2001), available at 2001 WL
458685. Effectively, the STB said the town may not flatly ban
Guilford's efforts at developing the San Vel site, as it did in its
noisome trade determination, and that it may not impose pre-
conditions to construction, but that it may impose reasonable and
non-discriminatory environmental restrictions which do not unduly
burden interstate commerce or unduly restrict the railroad from
conducting its operations. The STB did not hold that all state and
local regulation of Guilford's activity was preempted. It rejected
Ayer's argument that the express preemption language of § 10501(b)
did not apply to instances where the STB lacked licensing authority
under 49 U.S.C. §§ 10901 and 10906, and it held that state and
local law are preempted in those instances in limited
reconsideration is denied. See ICC v. Bhd. of Locomotive Eng'rs,
482 U.S. 270, 284 (1987). Even calculated in the correct manner,
it appears that neither party timely sought review of the STB
order. In any event, that aspect of the case has since been
settled.
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circumstances. It held that "preclearance requirements (including
environmental requirements) are preempted because by their nature
they unduly interfere with interstate commerce by giving the local
body the ability to deny the carrier the right to construct
facilities or conduct operations." The STB viewed pre-construction
approval requirements as giving local authorities impermissible
veto power over rail transportation issues.
Nonetheless, the STB found state and local regulation to
be permissible "where it does not interfere with interstate rail
operations, and localities retain certain police powers to protect
public health and safety." In its May order, the STB gave three
guidelines for permissible state and local regulation:
1. Non-discriminatory enforcement of requirements such as building
and electrical codes (other than pre-construction requirements)
generally are not preempted.
2. A town may seek enforcement of voluntary agreements a railroad
has entered into with a town.
3. Section 10501(b) should not be interpreted as intending to
interfere with the role of state and local agencies in implementing
federal environmental statutes.
All local regulation, in the STB's view, is subject to the same
test: whether the statute or regulation is being applied to "unduly
restrict the railroad from conducting its operations, or
unreasonably burden interstate commerce." This, said the STB, was
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a fact-bound question. Accordingly, the STB held that federal law
preempted the noisome trade ordinance and the two town pre-
construction processes -- the Planning Board permit process and the
Conservation Commission's pre-construction approval process.
The STB treated the Conservation Commission's thirty-six
conditions as a separate matter and offered advice to the district
court as to how to evaluate each of these:
Examples of solutions that appear to us to be reasonable
include conditions requiring railroads to (1) share their
plans with the community, when they are undertaking an
activity for which another entity would require a permit;
(2) use state or local best management practices when
they construct railroad facilities; (3) implement
appropriate precautionary measures at the railroad
facility, so long as the measures are fairly applied; (4)
provide representatives to meet periodically with citizen
groups or local government entities to seek mutually
acceptable ways to address local concerns; and (5) submit
environmental monitoring or testing information to local
government entities for an appropriate period of time
after operations begin.
Communities also can enforce their local codes for
electrical, building, fire, and plumbing, unless the
codes are applied in a discriminatory manner,
unreasonably restrict the railroad from conducting its
operations, or unnecessarily burden interstate commerce.
Moreover, railroads may not deny towns access in
emergencies and for reasonable inspection of the railroad
facilities. And to the extent a railroad is willing to
undertake an activity or restriction, the activity or
restriction generally should be seen as reflecting the
carrier's own determination that the condition is
reasonable and will not unduly burden interstate
commerce.
The STB suggested that conditions 1, 2, 3, 4, 8, 15, 16, 17, 18,
27, and 28 would likely not be preempted, that conditions 7 and 14
would likely be preempted, and that conditions 9 and 12 were
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examples of areas to which Guilford could agree. In its October
order denying Ayer's petition for reconsideration, Boston & Me.
Corp., STB Finance Docket No. 33971, 2001 WL 1174385 (Oct 3, 2001),
the STB made clear that it had engaged in no factfinding as to any
of these conditions, but merely attempted to provide general
guidance to the district court.
3. Settlement
On May 1, 2003, Guilford and the Town of Ayer, through
CAMP, reached a settlement that resolved almost all issues in the
case. The parties agreed on a permissible list of conditions Ayer
may impose on a railroad facility on the San Vel site; they also
agreed that these conditions comprise the sole regulatory ability
of the town. Finally, the parties agreed to a dismissal of all of
the appeals except Ayer's appeal of the district court's orders on
June 10 and August 20, 2002, finding Guilford eligible for
attorneys' fees and awarding fees and costs.
II. Discussion
The district court awarded Guilford $286,839.49 in
attorneys' fees under 42 U.S.C. § 1988, on the premise that
Guilford successfully vindicated its rights under § 1983. We
review the legal determinations inherent in the court's order de
novo. We note initially that it is not clear that Guilford was the
"prevailing party," id. § 1988, in the district court proceedings,
since the only issue resolved was the STB order and no party sought
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timely judicial review of that order, see supra note 6. However,
for the purposes of this discussion we assume that Guilford meets
the prevailing party requirement.
Count I of Guilford's complaint alleged Supremacy Clause
violations. A claim based solely on the Supremacy Clause does not
create rights within 28 U.S.C. § 1343(a)(3) and is not cognizable
under 42 U.S.C. § 1983. Chapman v. Houston Welfare Rights Org.,
441 U.S. 600, 615 (1979); see Md. Pest Control Ass'n v. Montgomery
County, 884 F.2d 160, 163 (4th Cir. 1989) (per curiam) (attorneys'
fees under § 1988 not available under § 1983 on a Supremacy Clause
preemption claim). Guilford's claim for attorneys' fees thus
depends on an interpretation of the ICCTA.
To the extent Guilford is a prevailing party, it is
because the STB ruled largely, though not entirely, in its favor.
The STB order is part of a comprehensive statutory scheme of
federal regulation of the railways. Accordingly, the STB has
primary jurisdiction over aspects of railway operations and
facilities. Pejepscot Indus. Park, Inc. v. Grimmel Indus., 215
F.3d 195, 197 (1st Cir. 2000). Indeed, Guilford's complaint
asserted that the STB had primary jurisdiction over all aspects of
this case. Here, the ICCTA creates an explicit and complex
statutory scheme, and § 1336 contains provisions authorizing
judicial review. None of those provisions authorizes an award of
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attorneys' fees. Had Congress wished to authorize such fees under
§ 1336, it could easily have done so.
The district court did not have the benefit of the
Supreme Court's later decision in Gonzaga University v. Doe, 536
U.S. 273 (2002). Acknowledging some ambiguity in its precedent,
the Gonzaga Court further clarified when an action is cognizable
under 42 U.S.C. § 1983 and held that the same analysis applied to
§ 1983 questions as in implied cause of action cases. A plaintiff
must assert violation of a federal right which is "unambiguously
conferred." Id. at 283.
Ultimately, the test is one of congressional intent.
Bryson v. Shumway, 308 F.3d 79, 88-89 (1st Cir. 2002). This case
is not one in which a statute seems to benefit a class, where the
question would be whether Congress meant to create rights which are
judicially enforceable under § 1983. Id. Here, Congress has not
been silent. It has made clear in ICCTA where primary jurisdiction
lies, and it has created an explicit scheme for judicial review of
STB orders and remedies. That scheme does not include awards of
attorneys' fees. Indeed, § 1336(a) authorizes injunctive and
declaratory relief but has no provisions for attorneys' fees; it
would be more than odd to create an action under § 1983 solely to
provide for attorneys' fees. It would be contrary to Congressional
intent to create a § 1983 action here.
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Of course, the mere existence of a statutory enforcement
scheme does not always preclude the creation of remedies under 42
U.S.C. § 1983. See Golden State Transit Corp. v. City of L.A., 493
U.S. 103, 106 (1989) ("The availability of administrative
mechanisms to protect the plaintiff's interests is not necessarily
sufficient to demonstrate that Congress intended to foreclose a
§ 1983 remedy."). But nothing suggests that Congress intended to
create rights for railroads apart from the STB statutory scheme.
Even the "rights" cited by Guilford are less than clear and
definitive. Guilford does not have the right to be free of all
local environmental regulation; the STB order makes that pellucid.
Moreover, the district court's judgment was entered based on the
STB order under § 1336, not under the Commerce Clause.
In the end, Guilford's argument devolves to the assertion
that the town should not have attempted to enforce its own
environmental regulations, but should have ceded all authority to
the STB, and that Congress created a right, enforceable under
§ 1983, to sue the town and recover attorneys' fees for the town's
error in judgment over jurisdiction. Given that the town does have
environmental responsibilities under federal law, we are convinced
Congress did not intend this to be a situation where a separate
cause of action is created under § 1983.
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The award of attorneys' fees is reversed and vacated.
The joint motion regarding partial settlement is allowed. Each
side shall bear its own costs.
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