Peralta Sauceda statеs that the Maine courts do not maintain such records as would establish under which prong of the Maine statute he was convicted. His appeal essentially boils down to the argument that he made good-faith efforts to find this evidence, that its unavailability is not his fault, and so the IJ‘s order is not fair. But that is not how a burden of proof works. It is hornbook law that the allocation of the burdеn of proof determines “which of two contending litigants loses when there is no evidence on a question or when the answer is simply too difficult to find.” Burden of Proof, Black‘s Law Dictionary (10th ed.2014).
Congress spoke clearly when it chose to place the “burden of proof” on the alien requesting cancellation of removal. After all, cancellation of removal is not a context in which the alien is “in the dock facing criminal sanctions,” but is instead one in which the alien seeks “the government‘s largesse to avoid removal.” Salem v. Holder, 647 F.3d 111, 119 (4th Cir.2011). We join five other circuits who have held that an inconclusive record cannot satisfy an alien‘s burden of proving eligibility for discretionary relief. See Sybils v. Att‘y Gen. of the U.S., 763 F.3d 348, 355-57 (3d Cir.2014); Sanchez v. Holder, 757 F.3d 712, 720 & n. 6 (7th Cir.2014); Young v. Holder, 697 F.3d 976, 988-90 (9th Cir.2012) (en banc); Salem, 647 F.3d at 116-20; Garcia v. Holder, 584 F.3d 1288, 1289-90 (10th Cir.2009). But see Martinez v. Mukasey, 551 F.3d 113, 121-22 (2d Cir.2008).
III.
Peralta Sauceda also argues that it was imprоper for the IJ not to consider the fact that his conviction was under a general assault statute even though Maine now has a separate domestic violence statute. But as Peralta Sauceda admits, the Maine domestic violence statute was not passed until after he tendered his guilty plea, making this argument irrelevant. His appeal to Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G.2015), is similarly misguided because Silva-Trevino concernеd the determination of whether an offense qualifies as a crime involving moral turpitude, not a crime of domestic violence.
IV.
The petition for review is denied.
Brook A. PADGETT; Craig Dauphinais; Jennifer Thomas; Bruce W. Spinney, As They Are Members of the Board of Selectmen of the Town of Grafton, Petitioners, v. SURFACE TRANSPORTATION BOARD; United States, Respondents, Grafton & Upton Railroad Company, Intervenor.
No. 14-2067.
United States Court of Appeals, First Circuit.
Oct. 16, 2015.
Before TORRUELLA, SELYA, and DYK,* Circuit Judges.
DYK, Circuit Judge.
The Town of Grafton (the “Town” or “Grafton“) petitions for judicial review a declaratory order of the Surface Transportation Board (“Board“) finding that
I.
As described in a companion case decided today, Del Grosso v. Surface Transportation Board, No. 15-1069, 804 F.3d 110, 113-14, 2015 WL 6108060 (1st Cir. Oct. 16, 2015), under the Interstate Commerce Commission Termination Act (“ICCTA“), Pub.L. No. 104-88, 109 Stat. 803, “the Board has jurisdiction over transportation by rail carrier.”
The jurisdiction of the Board over—(1) transportation by rail carriers ... and facilities of such carriers; and (2) the construction, acquisition, operation ... of ... facilities, even if the tracks аre located, or intended to be located, entirely in one State, is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.
Ginny Sinkel Kremer, Grafton Town Counsel, with whom Blatman, Bobrowski & Mead, LLC, were on brief, for petitioners.
Chаrles H.P. Vance, Attorney, Surface Transportation Board, with whom William J. Baer, Assistant Attorney General, Robert B. Nicholson and Shana Marie Wallace, Attorneys, Department of Justice, Craig M. Keats, General Counsel, and Evelyn G. Kitay, Deputy General Counsel, were on brief, for respondents.
John A. Mavricos, with whom Jonah M. Temple, Christopher, Hays, Wojcik & Mavricos, LLP, James E. Howard, Linda J. Morgan, and Nossaman, LLP, were on brief, for intervenor.
David F. Hassett and Hassett & Donnelly, P.C., on brief for Congressman James P. McGovern, amicus curiae in support of petitioners.
Jonathan S. Springer and Springer Law Office, PLLC, on brief for Propane Gas
II.
G & U owns and operates a rail line extending approximately sixteen miles between a CSX Transportation, Inc. (“CSXT“) line in North Grafton, Massachusetts, and another CSXT line in Milford, Massachusetts. In January 2012, G & U purchased a parcel of land in North Grafton, located immediately adjacent to its rail line and existing rail yard and within a “Water Supply Protection Overlay District” under the Town‘s zoning regulations. G & U plans to construct a transloading facility on the parcel for transferring propane received by tank car in North Grafton to storage tanks and then to trucks for delivery across New England. In December 2012, G & U notified the Town of its intent to deliver four 80,000-gallon propane storage tanks to its rail yard to be used in constructing the facility. In response, the Tоwn issued a cease and desist order requiring G & U to halt construction and filed a complaint in Massachusetts state court seeking to bar the construction, arguing that construction of the facility would violate state and local law.
The state and local laws at issue are zoning and permitting regulations. Massachusetts law provides that “[n]o person shall construct, maintain or use any tank or container of more than ten thousand gallons’ capacity, for storage of any fluid other than water, unless the same is located underground, without first securing a permit.”
On June 12, 2013, the state court enjoined the delivery of the storage tanks, directed G & U to file a petition for a declaratory order with the Board to determine whether
Before the Board, the Town argued that G & U‘s activities did not constitute transportation by rail carrier because of the involvement of several companies (the “Propane Companies“) with which G & U had previously contracted for the financing, construction, and operation of the facility. The Town‘s theory was that the facility would be constructed and operated by the Propane Companies (not rail carriers) rather than by G & U (a rail carrier). In a September 17, 2014, decision, the Board found that the state storage tank permit requirement and the Town‘s ordinances were preempted by
The Town petitions for judicial review. We have jurisdiction over final orders of the Board pursuant to
III.
At the outset the Town argues that the ICCTA preempts only state and not local regulation. This argument is meritless. The ICCTA‘s use of “State” clearly encompasses both state and local law. See Atl. Coast Line R.R. Co. v. City of Goldsboro, 232 U.S. 548, 555 (1914) (“A municipal by-law or ordinance, enacted by virtue of power for that purpose delegated by the legislature of the state, is a state law within the meaning of the Federal Constitution.“); see also City of Saint Louis v. Praprotnik, 485 U.S. 112, 125 (1988) (“[S]tate law ... may include valid local ordinances and regulations....“). Otherwise, the express preemption of state law would be completely ineffective. It is well established that the ICCTA preempts local as well as state regulation. See, e.g., Tex. Cent. Bus. Lines Corp. v. City of Midlothian, 669 F.3d 525, 530 (5th Cir.2012) (“Congress intended to preempt state and local laws that come within the Board‘s jurisdiction.” (emphasis added)); Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 160 (4th Cir.2010) (city ordinances preempted by ICCTA); City of Auburn v. U.S. Gov‘t, 154 F.3d 1025, 1031 (9th Cir.1998) (“We believe the congressional intent to preempt this kind of state and local regulation of rail lines is explicit in the plain language of the ICCTA and the statutory framework surrounding it.” (emphasis added)).
“Determining whether the ICCTA preempts a state or local law is a two-step inquiry. First, the law must seek to regulate ‘transportation,‘” and “second,
The Town challenges the Board‘s finding that the facility constituted transportation by rail carrier because G & U failed to establish that it would actually operate the facility. But there is no basis for reversing the Board‘s finding that G & U would oрerate the proposed facility. The Board properly relied on evidence submitted by G & U, including the relevant contracts and termination agreements with the Propane Companies, and verified statements from G & U‘s fire safety consultant, G & U‘s president and CEO, and G & U‘s vice president of business development. There is no evidence that G & U lacked the ability to finance, construct, and operate the fаcility without the significant involvement of third parties. We appropriately defer to the Board‘s factual findings. See Del Grosso, 804 F.3d at 117. Whatever role the presumption against preemption may play in the analysis under the statute, we are confident it does not have the effect of overcoming deference to the Board‘s factual findings.
Alternatively, the Town argues that thе Board erred in denying discovery on whether the facility was operated by G & U. While Board regulations allow parties to obtain discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in a proceeding,”
IV.
While regulation of railroad transloading facilities is generally preempted by the ICCTA, Del Grosso, 804 F.3d at 113-14, the Town belatedly argues that preemption is not applicable to health and safety regulations. In this connection, it relies on the presumption against preemption and the general rule that traditional police power regulation is not preempted. See, e.g., Norfolk, 608 F.3d at 158-60 & n. 12; Green Mountain, 404 F.3d at 643.
The failure to raise an argument before an agency constitutes a waiver of that argument on judicial review. See Lopez v. Holder, 740 F.3d 207, 211 n. 4 (1st Cir.2014) (“[W]е are barred from considering [arguments] because they were not presented to the agency.“); Mazariegos-Paiz v. Holder, 734 F.3d 57, 62 (1st Cir.2013) (“Were the court free to delve into the merits of issues not presented to the agency, it would effectively usurp the agency‘s function.“); see also Vt. Yankee, 435 U.S. at 553-54 (requiring arguments be presented to an agency in a manner that is not “cryptic and obscure“). Because the Tоwn failed properly to raise the health and safety argument before the agency, we decline to address it for the first time.
V.
The Town also argues, for the first time in this proceeding, that the Board violated the National Environmental Policy Act (“NEPA“),
[NEPA] obligates agencies ... to evaluate the environmental impacts of its proposed actions. To comply with NEPA, the [agency is] first required to determine whether [the proposed project] would have a significant environmental impact. A detailed environmental impact statement (“EIS“) is requirеd whenever proposed actions will “significantly affect the quality of the human environment.” If uncertain about impact, the agency may start with a less detailed Environmental Assessment (“EA“). If the EA finds a significant impact, a full EIS must be prepared; if not, the agency makes a “Finding of No Significant Impact” (“FONSI“), which exhausts its obligation under NEPA.
Sierra Club v. Wagner, 555 F.3d 21, 24 (1st Cir.2009) (citations omitted). The Town argues that NEPA applies here because the Board‘s preemption decision constitutes a “major Federal action,” as G & U could not construct the facility absent the Board‘s preemption determination. According to the Town, the Board‘s statement that “[t]his action will not significantly affect either the quality of the human environment or the conservation of energy resources” constitutes a FONSI, which was produced without the preparation of an Environmental Assessment, in violation of NEPA. The Board responds that NEPA is inapplicable because the declaratory or-
The Board is correct that NEPA does not apply to its declaratory order, because the order was not a “major Federal action” under
We note, however, that since the Board‘s view is that such declaratory orders are not subject to NEPA, there is no reason for its gratuitous statement, apparently a “standard environmental disclaimer ... found in virtually all [Board] decisions,” about the lack of an environmental impact. Such boilerplate disclaimers do nothing but foster confusion.
PETITION DENIED
Costs to respondents and intervenor.
Diana Del GROSSO; Ray Smith; Joseph Hatch; Cheryl Hatch; Kathleen Kelley; Andrew Wilklund; Richard Kosiba, Petitioners, v. SURFACE TRANSPORTATION BOARD; United States, Respondents, Grafton & Upton Railroad Company, Intervenor.
No. 15-1069.
United States Court of Appeals, First Circuit.
Oct. 16, 2015.