MEMORANDUM OPINION
Denying the Plaintiffs’ Motion for Summary Judgment; Granting the Defendants’ Cross-Motion for Summary Judgment
I. INTRODUCTION
The plaintiffs in this action are the municipality of Jersey City, New Jersey and two nonprofit organizations, the Rails to Trails Conservancy (“the RTC”) and the Pennsylvania Railroad Harismus Stem Embankment Preservation Coalition (“the Coalition”). The plaintiffs initiated this action against the Consolidated Rail Corporation (“Conrail”), which has purportedly sold a portion of abandoned rail property located in Jersey City to a consortium of real estate developers (“the LLCs”), who have intervened as defendants in this action. The plaintiffs assert that Conrail was and is required to obtain approval from the Surface Transportation Board (“the STB”) before abandoning the subject property and selling it to the LLCs, who plan to develop the property for non-rail uses.
The matter is now before the court on the parties’ cross-motions for summary judgment. The plaintiffs contend that the property at issue constitutes a “line of railroad” falling within the STB’s abandonment jurisdiction. The defendants maintain that the subject property is a “spur” or “side track” over which the STB does not have jurisdiction. Furthermore, the defendants assert that the plaintiffs lack standing to prosecute this action. Because the plaintiffs have not supplied sufficient evidence of imminent injury to their concrete interests, the court concludes that the plaintiffs have not demonstrated that they have standing. Accordingly, the court denies the plaintiffs’ motion for summary judgment and grants the defendants’ cross-motion for summary judgment.
II. BACKGROUND
A. The Statutory Framework
Beginning in the late 1960s, “[a] rail transportation crisis seriously threatening the national welfare was precipitated when eight major railroads in the northeast and midwest region of the country entered reorganization proceedings under ... the Bankruptcy Act.”
Blanchette v. Conn. Gen. Ins. Corps.,
To implement this solution, Congress enacted the Regional Rail Reorganization Act of 1973 (“the Rail Act”), 45 U.S.C. §§ 701
et seq. Id.
The Rail Act created a government corporation, the United States Railway Association (“the USRA”), tasked with creating a Final System Plan (“FSP”) for restructuring the railroads. 45 U.S.C. § 716(a)(1). The FSP, published by the USRA in July 1975, designated certain “rail lines” and “connecting spur and stor
*134
age tracks” held by the railroads in reorganization for transfer to a newly-formed private corporation, Conrail.
Consol. Rail Corp. v. Surface Transp. Bd.,
The Rail Act also called for the creation of a Special Court, which would have exclusive jurisdiction over disputes relating to the FSP. 45 U.S.C. § 719. Following Congress’s approval of the FSP, the Special Court issued conveyance orders, directing the trustee of each railroad in reorganization to convey all right, title and interest in the designated rail properties to Conrail. Id. § 743(b)(1). The Special Court was given “original and exclusive jurisdiction ... [over] any action, whether filed by any interested person or initiated by the special court itself, to interpret, alter, amend, modify, or implement any of the orders entered by such court pursuant to section 743(b).” 1 Id. § 719(e)(2).
B. The Property At Issue
Among the rail property that the USRA designated for transfer to Conrail was the “Harismus Branch,” a property that the FSP described as running from “Milepost 1” in Jersey City to “Milepost 7” in Harrison, New Jersey. Defs.’ Cross-Mot. for Summ. J. & Opp’n to Pis.’ Mot. for Summ. J. (“Defs.’ Cross-Mot.”) at 6; Decl. of Victor Hand (“Hand Decl.”), Ex. A at 272; see also Pis.’ Mot. for Summ. J. (“Pis.’ Mot.”) at 1. The Harismus Branch encompasses the Sixth Street Embankment (“the Embankment”), a series of elevated structures made of earth-filled stone retaining walls connected by bridges and spanning 1.3 miles near the Jersey City waterfront. Pis.’ Mot. at 2 & Ex. E (Aff. of John Curley (“Curley Aff.”)) 2 ¶2. Constructed in the early 1900s, the Embankment is listed on the New Jersey Register of Historic Places and lies between two National Historic Districts. Id. ¶ 3.
Conrail acquired the Harismus Branch in March 1976 pursuant to a conveyance order of the Special Court. Pis.’ Mot. at 2. Conrail states that by the mid-1980s, it had sold off nearly ninety percent of the Harismus Branch in a half dozen different transactions to several developers, including the Jersey City Redevelopment Agency (“JCRA”). 3 Conrail’s Cross-Mot. at 9 & Decl. of Robert Ryan (“Ryan Decl.”) 4 ¶¶ 6-7.
By the 1990s, all that remained of the Harismus Branch properties was the Embankment. Ryan Decl. ¶ 7. Conrail states that it first negotiated to sell the Embankment to Jersey City, id. ¶ 7, and that in 1999, it was in active negotiations with the JCRA for the sale of the property, id. ¶ 32. Those negotiations ceased when, over Jersey City’s objection, a group of citizens successfully petitioned to have the Embankment listed on the State Register of Historic Places. Id. ¶ 33. This designation precluded Jersey City from implementing its development plans. Id.
In December 2001 and October 2002, Conrail distributed bid solicitation packages to parties they believed to be poten *135 tially interested in acquiring the Embankment. Id. The JCRA was one of the recipients of these bid solicitation packages and transmitted Conrail’s October 2002 request for bids to Jersey City’s Department of Housing, Economic Development and Commerce. Id. ¶ 34. Neither the JCRA nor Jersey City submitted a bid for the property. Id. Indeed, the only bid for the property came from a group of LLCs interested in developing the property for private uses. Id. ¶ 36.
In January 2003, the City Council of Jersey City enacted an ordinance designating the Embankment as an “historic landmark” under municipal law. Id. ¶ 35. Subsequently, in October 2003, Conrail received a letter from then-Mayor Glenn Cunningham, who stated that he “would like to open up a dialogue with Conrail as well as the Embankment Preservation Coalition regarding the maintenance of the integrity of the remaining embankment.” Id. ¶ 36 & Ex. G. By that time, however, Conrail had entered into a contract with the LLCs for the sale of the Embankment. Id. ¶ 36.
The municipality advised Conrail of its view that Conrail’s sale to the LLCs was void because the Embankment constituted a federally regulated line of rail that could not be abandoned without prior approval from the STB. 5 Curley Aff. ¶ 5. For the same reason, although the City Council had authorized Jersey City to condemn the property, the municipality concluded that it could not use state eminent domain law to acquire the property because its state eminent domain laws were preempted by federal jurisdiction over the property. Pis.’ Mot., Ex. C-2 (Decl. of Mayor Jeremiah Healy (“Healy Deck”)) ¶ 4; Curley Aff. ¶ 5. Conrail responded that it did not believe its sale to the LLCs required STB approval because the Embankment constituted a “spur” or “side track” falling outside the STB’s jurisdiction. Curley Aff. ¶ 6. Conrail finalized the sale of the property to the LLCs in July 2005. Ryan Deck ¶ 41.
C. Prior Proceedings
In January 2006, a group of petitioners, including Jersey City, the RTC 6 and the Coalition, 7 commenced an administrative proceeding before the STB seeking a declaration that the Embankment fell within the STB’s abandonment authority. Pis.’ Mot. at 3. A rail carrier must obtain authorization from the STB to “abandon any part of its railroad lines” or discontinue the operation of all rail transportation over any part of its railroad lines.” 49 U.S.C. § 10903(a)(1). No authorization is required, however, for the abandonment of “spur, industrial, team, switching, or side tracks.” Id. § 10906.
In an August 2007 ruling, the STB concluded that “the Embankment property sold to [the LLCs] remains part of the national rail system subject to the Board’s exclusive jurisdiction until appropriate abandonment authority is obtained.” Pis.’ Mot., Ex. A. Conrail and the LLCs appeal
*136
ed the STB’s determination to this Circuit, which vacated the STB’s ruling on jurisdictional grounds.
See Consol. Rail Corp.,
Subsequently, in October 2009, Jersey City, the RTC and the Coalition commenced this action seeking a declaration that the Embankment is subject to the STB’s abandonment jurisdiction. See generally Comjol. The plaintiffs moved for summary judgment in November 2009, and Conrail filed its cross-motion for summary judgment in March 2010.
In May 2010, the court granted the LLCs leave to intervene in this action. 8 See Minute Entry (May 10, 2010). The LLCs joined in Conrail’s cross-motion for summary judgment. See Notice (May 10, 2010). The STB has not sought to intervene in this action.
In the plaintiffs’ motion for summary judgment, the plaintiffs argue that the property at issue constitutes a “line of railroad” for purposes of STB abandonment jurisdiction. 9 See Pis.’ Mot. at 44. The defendants oppose the plaintiffs’ motion for summary judgment and have filed a cross-motion for summary judgment, in which they argue, inter alia, that the plaintiffs lack standing. See Defs.’ Cross-Mot. In June 2010, the plaintiffs filed their opposition to the defendants’ cross-motion and reply in support of their motion for summary judgment. See generally Pis.’ Opp’n to Defs.’ Cross-Mot. & Reply (“Pis.’ Opp’n”). Conrail and the LLCs filed separate replies in support of their cross motion in July 2010. See generally Conrail’s Reply; LLCs’ Reply.
With the parties’ cross-motions ripe for adjudication, the court turns to the applicable legal standards and the parties’ arguments. Because standing is a threshold issue,
see Nat’l Org. for Women, Inc. v. Scheidler,
III. ANALYSIS
A. Legal Standard for Standing
Article III of the Constitution limits the jurisdiction of federal courts to cases or
*137
controversies. U.S. Const, art. Ill, § 2, cl. 1. These prerequisites reflect the “common understanding of what it takes to make a justiciable case.”
Steel Co. v. Citizens for a Better Env’t,
As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing standing.
Lujan,
To demonstrate standing, a plaintiff must satisfy a three-pronged test.
Sierra Club,
An organizational plaintiff possesses standing so long as “its members would have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires members’ participation in the lawsuit.”
Consumer Fed’n of Am. v. Fed. Commc’ns Comm’n,
B. Jersey City Lacks Standing
The defendants contend that Jersey City lacks standing because it has failed to show any actual or imminent injury by virtue of the defendants’ actions. Defs.’ Cross-Mot. at 30-39. As noted by the defendants, Jersey City’s interest in the property (and, consequently, in this litigation) stems from its desire “to acquire the property for rail use (including expansion of the light rail system to Journal Square and/or, with additional properties, to the rail and passenger hub at Secaucus), for historic preservation, for trail use, for open space use, and for a combination of *138 these uses.” Id. at 31 (quoting Curly Aff. ¶ 3); see also Pis.’ Opp’n at 3 & Ex. L (Decl. of Robert Cotter (“Cotter Decl.”)) 10 ¶¶ 3-6; Healy Decl. ¶¶ 5-6. This interest, the defendants argue, is in no way dependent on the plaintiffs’ success in this action. Defs.’ Cross-Mot. at 33. To the contrary, the defendants contend that “if [it] is correct that the property is not a line of railroad subject to the STB’s jurisdiction, the City could condemn the property without further ado.” Id. The defendants assert that Jersey City “has offered no evidence that Conrail’s actions have increased the risk that the City will not be able to exercise eminent domain to acquire the property.” Id. at 34.
The defendants argue as well that Jersey City’s purported injury is too speculative because it is based solely on the frustration of plans that it might or might not pursue in the future. Id. According to the defendants, Jersey City has not put forward any concrete plan to acquire and develop the property. Id. The defendants further argue that any injury suffered by Jersey City is “self-inflicted” because the municipality was offered an opportunity to purchase the property but chose not to do so. Id. at 34-35. Finally, the defendants contend that Jersey City’s inability to avail itself of state and federal remedies available in STB abandonment proceedings does not constitute an injury-in-faet. 11 Id. at 35-39.
The plaintiffs respond that Conrail’s failure to obtain abandonment authority from the STB has hampered Jersey City’s efforts to acquire and develop the property for public use. Pis.’ Opp’n at 3-28. They argue that under state and federal law, Jersey City cannot condemn the property unless Conrail first obtains abandonment approval from the STB. Id. at 3-9. The only way to resolve whether the STB’s abandonment authority extends to the property, the plaintiffs argue, is through this proceeding. Id. at 8-9. The plaintiffs also contend that these injuries are concrete and imminent, as evidenced by the fact that the LLCs began to tear out stanchions associated with the Embankment before ultimately agreeing to discontinue any acts of deconstruction until the resolution of the STB proceedings. Id. at 9-10. Furthermore, the plaintiffs contend that the defendants’ “evasion” of the STB’s abandonment authority has foreclosed Jersey City and the other plaintiffs from pursuing federal and state remedies available in STB abandonment proceedings. Id. at 10-19.
Of the three elements of constitutional standing, the first — the injury-in-fact requirement — has been described as the most critical.
See Natl Wildlife Fed’n v. Hodel,
The plaintiffs have put forward a number of arguments regarding how Jersey City will be injured if the defendants are permitted to evade STB jurisdiction. Pis.’ Opp’n at 3-28. The court considers these asserted injuries in turn.
1. Acquisition of the Property Through Condemnation
First and foremost, the plaintiffs contend that Jersey City has been injured by the defendants’ efforts to “evade” STB jurisdiction thus far, as they have “prevented] [Jersey City] from lawfully exercising its legally protected right to condemn the line for public purposes.” Pis.’ Opp’n at 3. The plaintiffs’ argument rests on the premise that “the City lawfully can neither voluntarily purchase nor condemn the property absent abandonment authorization.” Id. at 4. As a result, the plaintiffs argue, the defendants’ foregoing of the STB abandonment process is causing continuing injury to Jersey City by preventing it from condemning the property.
It is well-settled that a municipality cannot condemn rail property subject to the STB’s abandonment authority without STB approval.
See City of Lincoln v. Surface Transp. Bd.,
It is, however, equally clear that STB abandonment approval poses an obstacle to condemnation only if the property falls within the STB’s jurisdiction.
See
49 U.S.C. § 10906 (providing that the STB “does not have authority ... over construction, acquisition, operation, abandonment or discontinuance of spur, industrial, team, switching, or side tracks”);
cf. Nicholson v. Interstate Commerce Comm’n,
Yet, despite Jersey City’s interest in condemning the property, it is the plaintiffs (and not the defendants or the STB) 12 who are seeking a declaration that the property falls within the STB’s abandonment jurisdiction. See generally Compl. As noted, the defendants maintain that because the property does not constitute a “line of railroad,” the STB does not have jurisdiction and STB approval is not required for Jersey City to condemn the property. Defs.’ Cross-Mot. at 33. Thus, if the defendants prevail in this litigation, Jersey City will be able to immediately commence condemnation proceedings to *140 acquire the property. Pis.’ Opp’n at 8. Indeed, the plaintiffs state that “[clarification that the Embankment portion of the Branch is not subject to STB jurisdiction is thus imperative for the City not only to acquire the line either voluntarily or by eminent domain but also to obtain good title to the property.” Id. at 5 (emphasis added). This position is, of course, at odds with the plaintiffs’ substantive position that the property is subject to STB jurisdiction. See generally Compl.
The plaintiffs argue that judicial intervention will nonetheless benefit Jersey City by providing clarity as to whether abandonment approval is required, likening this action to an “adverse abandonment” proceeding before the STB. Pis.’ Opp’n at 5-7. This analogy, however, merely underscores the fact that state law condemnation remedies do not provide Jersey City a sufficient stake in the outcome of this litigation. Whereas in a typical abandonment case, a railroad requests STB authorization to discontinue service over a particular line, an “adverse abandonment” proceeding involves a request by a third party, over the railroad’s objection, for an abandonment certificate from the STB.
Consol. Rail Corp. v. Interstate Commerce Comm’n,
The tangible benefit to the third party in an “adverse abandonment” proceeding is clear; if the third party succeeds, the cloud of STB jurisdiction (and federal preemption of state condemnation law regarding rail property) is lifted and the third party can avail itself of state law remedies to seize a property. Id. In this case, by contrast, the plaintiffs are seeking to prolong, rather than lift, STB jurisdiction over the property. See generally Compl. Thus, the plaintiffs are advocating for the federal preemption of the very state eminent domain laws that Jersey City intends to rely on to acquire the property. Under these circumstances, Jersey City cannot base its standing on its inability to utilize these state eminent domain remedies.
The plaintiffs’ effort to analogize this case to a declaratory judgment proceeding is similarly unpersuasive.
See
Pis.’ Opp’n at 5. Even in a declaratory judgment action, the plaintiff must have a concrete interest in the outcome of the litigation to have standing.
See, e.g., Borg-Wamer Protective Servs. Corp. v. Equal Emp’t Opportunity Comm’n,
In sum, the plaintiffs have not established that judicial intervention here would tangibly benefit Jersey City in its efforts to acquire the property through condemnation. Accordingly, the court concludes that Jersey City’s purported inability to avail itself of state condemnation laws cannot establish its standing in this case.
2. The Right of First Refusal Under New Jersey Statute
The plaintiffs contend that the defendants’ actions have deprived Jersey City of its remedies under N.J. Stat. Ann. § 48:12-125.1 (“the New Jersey Statute”), which requires a railroad to offer rail property approved for abandonment by the STB to state and local governments for ninety days before selling it to private entities. Pis.’ Opp’n at 21. According to the plaintiffs, the statute “provides powerful remedies favorable to City, RTC and Coalition, but only if the Harismus Branch is subject to STB abandonment authority.” Id. at 22.
The defendants assert that the plaintiffs’ reliance on the New Jersey Statute is misplaced for a number of reasons. Defs.’ Cross-Mot. at 36-39. They argue that the plaintiffs have not established that the New Jersey Statute provides Jersey City any remedies it does not currently possess under state condemnation law. Id. at 39; Conrail’s Reply at 19. Furthermore, Conrail maintains that it did, in fact, offer the property for sale to Jersey City before selling it to the LLCs. Defs.’ Cross-Mot. at 38; Conrail’s Reply at 20. The defendants also contend that the New Jersey Statute cannot serve as a basis for standing because it is preempted by federal law. Defs.’ Cross-Mot. at 37-38; Conrail’s Reply at 20-24; LLCs’ Reply at 6-13.
At the time of the events at issue, the New Jersey Statute provided that
any railroad company which makes application to the [STB] for authority to abandon any part of its right of way on which passenger or freight services are operated ... shall, within 10 days of making such application, serve notice thereof upon the State and upon each county and municipality in which any part of the right of way proposed for abandonment is located. No sale or conveyance of any part of such right of way shall thereafter be made to any person other than the State, a county or municipality for a period of 90 days from the date of approval by the [STB] of the application for abandonment ... unless prior thereto each governmental agency entitled to such notice shall have filed with the railroad company written disclaimer of interest in acquiring all or any part of said right of way. Any sale or conveyance made in violation of this action shall be void.
N.J. Stat. Ann. § 48:12-125.1 (amended Jan. 18, 2010). 13
*142 According to the plaintiffs, Jersey City would benefit from application of the New Jersey Statute because it would “afford[ ] the City a protected 90 day period in which to decide whether it wished to acquire the property.” Curley Decl. ¶ 7. Yet it is undisputed that Jersey City was, in fact, notified of Conrail’s intent to sell the property before Conrail entered into a contract with the LLCs, but declined to act on that opportunity to acquire the property. See Defs.’ Cross-Mot. at 10-11 & Ryan Decl. ¶¶ 32-34. Indeed, in December 2001 and October 2002, Conrail sent bid solicitation packages to parties potentially interested in purchasing the property, including the JCRA. Ryan Decl. ¶ 33. The JCRA specifically forwarded the October 2002 bid solicitation letter to Jersey City’s Department of Housing, Economic Development and Commerce in a memorandum dated October 28, 2002. Id. ¶ 34 & Ex. G. The memorandum, titled “6th Street Embankment (Conrail ROW),” stated as follows:
[A]ttached for your information and perusal is the bid solicitation letter received from Conrail with regard to the above property. Minimum bid price is $3,000,000. I know the JCRA is not interested in bidding on this property. I presume that the City has no interest either at this point but felt you should see the attached.
Id., Ex. G.
Neither the JCRA nor any other entity of the Jersey City government submitted a bid in response to the December 2001 or October 2002 bid solicitations. Id. ¶ 33. Indeed, the record indicates that the first time that Jersey City expressed any interest in purchasing the property was in October 2003, when then-Mayor Glenn Cunningham wrote to Conrail that he “would like to open up a dialogue with Conrail as well as the Embankment Preservation Coalition regarding the maintenance of the integrity of the remaining embankment.” Id. ¶ 36 & Ex. G. Accordingly, Jersey City was expressly notified that the property was for sale and was given an opportunity to decide whether to acquire it, precisely the opportunity it claims it was denied under the New Jersey Statute.
Moreover, the plaintiffs have not adequately explained why the application of the New Jersey Statute would leave them in any better position than they are in today. The application of the New Jersey Statute would void the sale between Conrail and the LLCs and afford Jersey City an opportunity to purchase the property from Conrail.
See
N.J. Stat. Ann. § 48:12-125.1 (amended Jan. 18, 2010). Yet, as discussed above, the plaintiffs have not explained how the defendants’ actions prevent Jersey City from acquiring the property now through condemnation.
See supra
Part III.B.l. Condemnation would nullify Conrail’s sale of the property to the LLCs and permit Jersey City to acquire the property for just compensation.
See Twp. of W. Orange v. 769 Assocs., LLC,
The plaintiffs contend that Jersey City is not required to demonstrate that application of the New Jersey Statute would result in any tangible benefit to Jersey City. Pis.’ Opp’n at 27. In support
*143
of this contention, the plaintiffs rely on “procedural rights” cases, which provide that “a person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.”
Lujan,
The plaintiffs’ reliance on these “procedural rights” cases, however, is misplaced for at least two reasons. First, this Circuit has held that lower standards of redressability and immediacy apply only when a plaintiff is challenging a government agency’s procedural failure.
St. John’s United Church of Christ v. Fed. Aviation Admin.,
Moreover, the lower threshold for redressability and immediacy in “procedural rights” cases does not alleviate the plaintiffs burden of demonstrating an actual injury.
See Summers v. Earth Island Inst.,
*144
Thus, even under the “procedural rights” case law on which the plaintiffs rely, it is not enough, as the plaintiffs suggest,
see
Pis.’ Opp’n at 29, for Jersey City to show simply that it was deprived of an opportunity to exercise its remedies under the New Jersey Statute. Rather, the plaintiffs were required to demonstrate that Jersey City’s inability to exercise its rights under the New Jersey Statute has injured the municipality in some concrete way.
See Ctr. for Law & Educ.,
3. Federal Remedies Available in STB Abandonment Proceedings
The plaintiffs also argue that Jersey City (as well as the RTC and the Coalition) would benefit from judicial intervention because they would be able to take advantage of federal remedies available in STB abandonment proceedings. Pis.’ Opp’n at 10-19. Chief among these remedies is a federal statutory provision authorizing third parties to purchase rail property subject to abandonment proceedings through an “offer of financial assistance” (“OFA”). 49 U.S.C. § 10904. The Third Circuit has summarized the OFA process in the following manner:
When a carrier has applied to abandon a rail line, “any person” may file an OFA, which is an offer to purchase or subsidize a rail line and so to facilitate continued freight rail service. When a timely OFA is filed and the STB finds that the offeror is “financially responsible,” the STB must postpone abandonment authority pending completion of the OFA process.
When an OFA is on the table, the offer- or and the rail carrier are free to negotiate the terms of the putative transaction. If they fail to reach an agreement, either the offeror or the rail carrier, within thirty days of the OFA, may request that the STB set the conditions and amount of compensation for the transaction. Within thirty days of the request to establish conditions and compensation amount, the STB renders its decision. Once the STB sets the conditions and compensation, the railroad is bound to those terms, but the OFA proponent has ten days to withdraw the OFA before being bound to the STB’s decision.
Borough of Columbia v. Surface Transp. Bd.,
The plaintiffs contend that if the court concludes that the property falls within the *145 STB’s jurisdiction, the defendants will be required to obtain abandonment authority from the STB. Pis.’ Opp’n at 11-12. Jersey City will then have the opportunity to submit an OFA to purchase the property for continued rail use. Id. The plaintiffs contend that “[t]he rights and remedies available to the City under the OFA process would likely prove extremely advantageous to plaintiffs’ interests.” Id. at 12.
The defendants argue that it is highly unlikely that Jersey City would obtain any relief through the OFA process because the municipality’s interest is in developing light rail commuter service, whereas the OFA process is intended to assist third parties seeking to continue freight service over a piece of rail property. Defs.’ Cross-Mot. at 35-36; Defs.’ Reply at 14-15. The plaintiffs respond that nothing in the OFA statute or implementing regulations indicates that the OFA remedy may only be used for freight purposes and that at any rate, “the City’s interest in relieving congestion is not limited to providing automobile drivers with a passenger rail alternative, but also encompasses use of rail for freight deliveries ... in order to reduce reliance on trucks.” Pis.’ Opp’n at 12 (citing Healy Decl. ¶ 6).
Ultimately, the court need not resolve whether the mixed commuter-freight rail system referred to in the plaintiffs’ papers would qualify for an OFA because the plaintiffs have offered no evidence that Jersey City would, in fact, submit an OFA if it were to succeed in this action.
See generally
Pis.’ Opp’n. The Supreme Court has made clear that prospective injuries based on the frustration of speculative intentions are not sufficiently concrete or imminent to satisfy the injury-in-fact requirement.
See Lujan,
Although the plaintiffs insist that Jersey City’s intended uses of the property are consistent with the OFA statute, Pis.’ Opp’n at 12, they have offered no evidence that the municipality has any intention (much less a non-speculative intention) of
*146
submitting an OFA,
see generally id.
Although the plaintiffs state in their opposition to the defendants’ cross-motion that they “seek to invoke” federal remedies available in STB proceedings,
id.
at 11, they make no specific representation that Jersey City intends to submit an OFA or that it has even explored this possibility in any meaningful way,
see id.
at 10-12;
see also
Pis.’ Mot. at 16-17 (listing the remedies available without stating that Jersey City would submit an OFA if successful in this action). The declarations from the Jersey City officials do not mention the OFA process and provide no indication that the municipality has any specific intention of submitting such a proposal.
See generally
Healy Decl.; Curley Aff.; Cotter Deck;
see also Sierra Club,
The plaintiffs also contend that Jersey City has been deprived the benefit of the “public use condition” statute, codified at 49 U.S.C. § 10905, which authorizes the STB to bar any sale or transfer of rail property for 180 days after abandonment. Pis.’ Opp’n at 13. The plaintiffs suggest that the STB could utilize this provision to provide time for Jersey City to institute condemnation proceedings on the property. Id. Yet, as previously discussed, the plaintiffs have identified nothing that prevents Jersey City from instituting condemnation proceedings now, other than their own efforts to obtain a declaration that such condemnation proceedings would be preempted. See supra Part III.B.1. Accordingly, the public use condition statute does not support Jersey City’s standing in this case.
Finally, the plaintiffs contend that Jersey City has been deprived the benefit of a number of additional statutory remedies available in STB proceedings: 49 U.S.C. § 10903(e), which authorizes the STB to impose conditions on its approval of abandonment as necessary for “public convenience and necessity”; the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq., which would require the STB to “take into account” adverse impacts on properties listed or eligible for listing on the National Register of Historic Places prior to the issuance of an abandonment license; and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., which requires a “hard look” at environmental consequences of federal actions. Pis.’ Opp’n at 14-19. According to the plaintiffs, these provisions could lead the STB to impose conditions on its abandonment approval that would prohibit Conrail or the LLCs from demolishing the Embankment, or even lead the STB to withhold its abandonment approval altogether. Id.
Yet, the plaintiffs do not explain how the imposition of abandonment conditions or the withholding of STB abandonment approval would help Jersey City acquire the property and develop it for public uses, the municipality’s principal interest in this litigation. See generally Pis.’ Opp’n; see also Role Models Am,., Inc. v. Geren, 514 F.3d *147 1308, 1311-12 (D.C.Cir.2008) (holding that plaintiff lacked standing because the NHPA “does not protect [the plaintiffs] right to acquire property for its own use when the use is unrelated to the [NHPA’s] purpose”). Furthermore, to the extent that Jersey City has an interest in preventing the demolition and development of the Embankment, see Pis.’ Opp’n at 27-28, an interest that might be furthered by the STB’s consideration of the environmental and historical landmark impacts, any injury to that interest is not imminent because, as discussed below, there is no indication that the demolition and development of the Embankment will proceed anytime soon. See infra Part III.C. And, as noted, even a plaintiff claiming a “procedural” injury must demonstrate actual or imminent injury to a concrete interest to satisfy the requirements of constitutional standing. See supra Part III.B.3. Accordingly, the plaintiffs have not established that Jersey City’s inability to avail itself of federal remedies available in STB abandonment proceedings provides the municipality standing to pursue this action.
4. The Rail Act
Finally, the plaintiffs contend that they have standing under the Rail Act. Pis.’ Opp’n at 19-21. This rather opaque argument proceeds from the premise that for Conrail to succeed in this litigation, the court must conclude that “there was some secret USRA process by which historic lines conveyed to Conrail were somehow “washed’ of line status, or somehow otherwise authorized for abandonment at Conrail’s discretion.” Id. at 20. The Rail Act, however, required public notice of and opportunity for public comment on all abandonments under consideration by the USRA. Id. Accordingly, the plaintiffs argue that under the Rail Act, they “have standing to challenge any secret abandonment” of the rail property at issue. Id.
The defendants respond that there was nothing “secret” about the USRA’s decision-making process, as the USRA published both a Preliminary and Final System Plan. Conrail’s Reply at 18. The defendants also argue that if the USRA did secretly abandon the property, Jersey City could immediately invoke state law condemnation procedures to acquire the property, as that abandonment would have removed the property from federal jurisdiction. Id.
The parties agree that there is no evidence of any secret proceedings before the USRA. See Pis.’ Opp’n at 30; Conrail’s Reply at 18. Accordingly, there is no evidence that the plaintiffs were deprived their right to comment on any USRA designations. The Rail Act, therefore, does not provide the plaintiffs standing in this action.
C. The RTC and the Coalition Lack Standing
The defendants assert that like Jersey City, the RTC and the Coalition do not have standing because they have not demonstrated the existence of an actual or imminent injury. Defs.’ Mot. at 41-43. The defendants contend that these organizations cannot base their standing on their members’ interest in preserving the Embankment and preventing development of the property because the demolition and development projects are far from imminent, given that municipal authorities have declined to issue the required permits and because the Jersey City Historic Preservation Commission has denied the LLCs’ request to waive the historic status of the property. Id. at 41-42. Furthermore, the defendants argue that any interest possessed by the organizations’ members in utilizing a future light rail system or park, as proposed by Jersey City, is too speculative to support standing. Id. at 42.
*148 The plaintiffs maintain that RTC and the Coalition have standing in this case because they have an interest in preserving the property and preventing its development into high-rise condominiums, as proposed by the LLCs. Pis.’ Opp’n at 10-19. They offer declarations from several of their members attesting to the negative impact that the demolition and development of the Embankment will have on them. Id., Exs. C-4 (Joint Decl. of President and Coordinator of the Coalition (“Joint Deck”)), C-6 (Deck of Coalition Member Dale Hardman (“Hardman Deck”)), C-7 (Deck of Coalition Member Werner Bargsten (“Bargsten Deck”)). Relying on “procedural injury” case law, the plaintiffs contend that the organizations have standing because they represent individuals living near the property whose interests will be harmed by the demolition and development of the Embankment. Id.
As discussed, even when a plaintiff is asserting a procedural injury, he or she must demonstrate the existence of an injury-in-fact to establish constitutional standing.
See supra
Part III.B.2;
Summers,
The plaintiffs have offered ample evidence that the interests of RTC and Coalition members would be impacted by the demolition and destruction of the Embankment. They have offered declarations from members living in the vicinity of the Embankment who indicate that demolition of the Embankment will exacerbate flooding problems in the area, increase pollution in the local waterways and reduce air quality.
See
Joint Deck ¶¶ 4(k), (o)-(q); Hard-man Deck ¶ 6; Bargsten Deck ¶¶ 3-7. These individuals further declare that demolition of the Embankment will destroy the historic and aesthetic value of the area, risk damage to the surrounding historic buildings, depress property values, harm local business interests and negatively impact quality of life. Joint Deck ¶¶ 4(e), (j),
(il
)-(o); Bargsten Deck ¶¶ 3-6. Were these injuries actual or imminent, there is little question that the RTC and the Coalition would have standing.
See, e.g., Lemon,
The record, however, indicates that the demolition and development of the Embankment is hardly a foregone conclusion. The Jersey City municipal code provides that
[n]o permit shall be issued or amended nor shall any construction, alteration, minor alteration, ordinary maintenance and repair or demolition be started on a landmark building nor on any sign, building, structure, object, site or landscape feature within a designed historic district, whether or not a construction permit is required, prior to a filing of an application for review by the Historic Preservation Commission or the issuance of either a Certificate of Appropriateness or a Certificate of No Effect.
Jersey City Mun. Code § 345-30A.
In January 2003, the municipality designated the Embankment an historic
*149
property. Ryan Decl. ¶ 33. The plaintiffs acknowledge that as a result of this designation, “City agencies (Historic Preservation Commission and Zoning Board of Adjustment) have declined to issue demolition and development permits” to the LLCs. Curly Aff. ¶ 18. Furthermore, on June 15, 2009, the Jersey City Historic Preservation Commission denied the LLCs’ petition to waive the historic landmark status of the Embankment based on economic hardship. Defs.’ Mot. at 41-42; Jenkins Decl. ¶ 7 & Ex. C. While it appears that the LLCs are seeking review of these rulings in New Jersey state court,
see
Curly Aff. ¶ 18, it cannot be said at this juncture that the demolition and development of the Embankment is “certainly impending.”
15
Lujan,
The RTC and the Coalition likewise cannot base their standing on their interest in the future utilization of the Embankment for light rail, open space or other public uses. As previously discussed, the plaintiffs have not explained why Jersey City’s efforts to acquire and develop the property for such uses hinges on establishing the STB’s jurisdiction over this case. See supra Part III.B.l. For the same reasons, the court concludes an interest in developing the space for public use does not provide RTC and the Coalition an adequate stake in the outcome of the litigation.
Accordingly, because the plaintiffs have not established that the RTC or the Coalition have an actual or imminent injury that would provide the RTC or the Coalition a stake in the outcome of this litigation, the court concludes that they do not have standing to pursue this action.
IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiffs’ motion for summary judgment and grants the defendants’ cross-motion for summary judgment. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 28th day of September, 2010.
Notes
. In 1997, Congress transferred the exclusive jurisdiction of the Special Court to the United States District Court for the District of Columbia.
See Niagara Mohawk Power Corp. v. Consol. Rail Corp.,
. Curley served as Jersey City's special counsel in litigation regarding the ownership and use of the Embankment properties. Curley Aff. ¶ 2.
. The JCRA is an instrumentality of the Jersey City government empowered to facilitate the redevelopment of areas within the municipality in need of rehabilitation. See N.J. Stat. Ann. §§ 40A:12A-11, 15.
. Ryan is an independent consultant retained by Conrail. Ryan Decl. ¶¶ 3-4.
. The STB is the successor to the Interstate Commerce Commission ("ICC”) and "has 'exclusive' jurisdiction to regulate ‘transportation by rail carriers’ between places in the United States.’ ”
Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit
Corp.,- U.S. -,
. The RTC is a District of Columbia non-profit corporation dedicated to preserving otherwise-to-be abandoned railroad corridors for alternative and future public uses, including possible future rail reactivation, and interim use as trail. Compl. ¶ 6. Approximately 2,200 RTC members live in New Jersey and another 5,500 live in neighboring New York. Id.
.The Coalition is a New Jersey non-profit corporation made up of individual members and affiliated organizations, including neighborhood associations, "dedicated to preserving the historic Sixth Street Embankment.” Compl. ¶ 7.
. The court also granted the State of New Jersey leave to intervene for the limited purpose of defending the constitutionality of a New Jersey statute that the plaintiffs rely on to support their standing arguments and the defendants claim is preempted by federal law. See Minute Entry (May 10, 2010); see also infra Part III.B.2. As discussed below, however, the court does not reach the constitutionality of the New Jersey statute. See infra Part III.B.2.
. The plaintiffs also seek a declaration “that STB may appropriately determine that the Harismus Branch ... is a line of railroad for purposes of STB abandonment jurisdiction.” Pis.' Mot. at 44. This relief, however, has been conclusively foreclosed by the Circuit’s prior ruling, which held that the STB lacks jurisdiction to determine whether that property falls within the STB's abandonment jurisdiction.
See generally Consol. Rail Corp. v. Surface Transp. Bd.,
. Robert Cotter is Jersey City’s Planning Director. Cotter Decl. ¶ 1.
. The defendants also argue that Jersey City lacks standing because it has failed to establish the redressability of its injuries. Defs.’ Cross-Mot. at 39-41. Because the court concludes that Jersey City has not demonstrated injuiy-in-fact, the court does not reach this argument.
. The STB has declined to intervene in these proceedings, despite the fact that it is plainly aware of this action, as it was a party to the proceedings before the Circuit.
See generally Consol. Rail Corp. v. Surface Transp. Bd.,
. Effective Januaiy 18, 2010, the New Jersey Statute was amended to add requirements that the railroad negotiate in good faith during the ninety-day period and that after the ninety-day period, any sale of rail property to any non-governmental entity was subject to a right of first refusal for the same price by a governmental entity. See N.J. Stat. Ann. § 48:12-125.1. The plaintiffs have presented no argument that these provisions apply retroactively to Conrail’s sale of the property to the LLCs. See generally Pis.' Mot.; Pis.' Opp'n.
. Because the plaintiffs have not established that the New Jersey Statute provides Jersey City a basis for standing, the court does not reach the issue of whether the New Jersey Statute is preempted by federal law.
. To demonstrate the "concreteness” of their concerns about demolition, the plaintiffs assert that the LLCs "began tearing out stanchions associated with the Embankment” shortly after the plaintiffs filed a declaratory proceeding before the STB and only agreed to cease destruction of these fixtures after the plaintiffs sought an injunction. Pis.’ Opp’n at 9-10. Although the plaintiffs contend that the destruction of these stanchions signals the grave risk of impending demolition, the plaintiffs do not dispute that municipal regulations prohibit the LLCs from proceeding with the demolition and development of the Embankment, the eventuality on which the RTC and the Coalition base their standing.