ORDER
Presently before the Court are Defendant Claudius Strickland’s Motion for Summary Judgment, Defendant St. Mary’s Railway West, LLC’s Motion for Summary Judgment, and the United States of America’s Motion for Partial
I. Factual Background
This action is predicated upon unauthorized discharges into wetlands during the construction of spur and side tracks. See Dkt. No. 1. The following factual summary is taken from Defendants’ Motions for Summary Judgment, Dkt. Nos. 8-9, Plaintiffs Statement of Material Facts and Defendants’ response thereto, Dkt. Nos. 28-29, and Defendants’ Supplemental Statement of Material Facts, Dkt. No. 66.
In June 2008, Defendant St. Mary’s Railway West, LLC (“the Railway”) began to construct spur and side tracks within its right-of-way. Dkt. Nos. 8 ¶ 1; 28 ¶ 1; 66 ¶ 1. Spur and side tracks are integral to the Railway’s operation and interstate commerce because rail carriers pay the Railway to store inactive cars and locomotives during periods of economic inactivity. Dkt. Nos. 8 ¶ 3; 66 ¶ 21. For these tracks, adequate drainage and clearing of vegetation is critical for safety and maintenance and required by federal regulations. See Dkt. No. 66 ¶¶ 4-14, 27.
The United States of America (“the Government”) alleges that, during the course of construction, pollutants were discharged into tributaries in wetlands, resulting in a disturbance of more than five acres and a violation of the Clean Water Act (“CWA”). Dkt. No. 8 ¶¶ 4-5. Defendants had not obtained a § 404 permit from the United States Corps of Engineers (“the Corps”). Id. ¶¶ 6-7.
Before beginning construction, the Railway and its general partner and operator, Defendant Claudius Strickland, had sought advice of legal counsel regarding the exclusive jurisdiction of the Surface Transportation Board (“the Board”). Dkt. Nos. 1 ¶ 8; 8 ¶ 2. Defendants’ counsel opined, “The effect of th[e] exclusive [Board] jurisdiction is that no other federal or state agency can require authority for construction of the trackage under consideration, nor otherwise exert regulatory authority over such trackage.” Dkt. Nos. 8-5, Ex. E; 28 SI 2.
Thereafter, in October 2008, Defendants communicated with the Corps about the track construction and the “exclusive” jurisdiction of the Board. Dkt. No. 8 ¶¶ 6, 8, 16. Afterward, the Corps never notified Defendants whether a § 404 permit would or could be required for the construction of spur and side tracks. Dkt. Nos. 8 SI 9; 28 SI 3; 29, at 4.
On December 9, 2008, the EPA issued an administrative compliance order that required Defendants to conform with the CWA. Dkt. Nos. 8 ¶ 15; 8-11, Ex. K; 28 ¶¶ 4-5; 44 ¶ 3. On December 24, 2008, Defendants filed a declaratory action against the EPA, attempting to raise the issue of the Board’s exclusive jurisdiction. Dkt. Nos. 8 ¶ 11; 8-6, Ex. F. In April 2009, the EPA and Defendants stipulated to a dismissal of the declaratory action without prejudice, which was approved. Dkt. Nos. 8 SISI 13-14; 8-7, Ex. G; 8-8, Ex. H. On February 14, 2011, the EPA issued an additional administrative order. Dkt. Nos. 8 ¶ 17; 8-12, Ex. L. Defendants contend that the EPA’s administrative orders were based on inaccurate representations about the width of the Railway’s right-of-ways and contradictory conclusions about the amount of acreage impacted by Defendants’ activities. Dkt. Nos. 8 ¶ 17; 29, at 2-3.
II. Procedural Background
In March 2013, the Government filed its complaint (“the Complaint”) against De
III. Legal Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law.” FindWhat Investor Grp. v. FindWkat.com,
The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323,
IV. Discussion
The parties’ motions for summary judgment are primarily focused on two issues: (A) whether the EPA’s ability to enforce the CWA is preempted by the Interstate Commerce Commission Termination Act (“the ICCTA”) and (B) whether the United States is equitably estopped from bringing a civil CWA claim against Defendants because of the Corps’ unresponsiveness to Defendants’ communication in October 2008. Dkt. Nos. 18, at 1; 65, at 1. The Court also addresses whether the Complaint satisfies Rule 8 and whether the Fifth Amendment vagueness doctrine applies.
A. Preemption of the EPA’s Ability to Enforce the CWA
The relevant provision for preemption under the ICCTA is 49 U.S.C. § 10501(b)(2) (“the Statute”), which says:
The jurisdiction of the Board over ... the construction, acquisition, [or] operation ... of spur ... or side tracks ... 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.
The parties dispute how to give effect to this preemption provision. Defendants
The Court holds that § 10501(b)(2) does not override the EPA’s jurisdiction to enforce the CWA against Defendants. The case at bar is controlled by Florida East Coast Railway Co. v. City of West Palm Beach,
Defendants distinguish Florida East Coast Railway Co. ’s outcome as limited to non-rail transportation activity, while the present case involves a matter of rail transportation. Dkt. No. 8, at 13. Indeed, the Eleventh Circuit found that the Statute’s definition of “transportation” encompasses “facilities that, while not owned by the railroad companies, were nevertheless used in interstate commerce for the benefit of either the shipping public or the railroad companies themselves.” Fla. E. Coast Ry. Co.,
Defendants’ reading of the Statute is contrary to basic principles of statutory construction and not supported by Congress’s intent. When possible, “statutes should be construed so as not to be in conflict with each other.” Araya v. McLelland,
One purpose of the ICCTA, as found by the Eleventh Circuit, was to prevent “the balkanization and subversion of the Federal scheme of minimal regulation for [rail] transportation.” Fla. E. Coast Ry. Co.,
The CWA’s scheme for environmental protection is in no way a direct regulation on Defendants’ activities. “The CWA prohibits the discharge of pollutants ... into the waters of the United States, except in compliance with various sections of the CWA, including [§ ] 404.” Fund for Animals, Inc. v. Rice,
Indeed, harmonizing the CWA and ICC-TA conforms to how an overwhelming majority of other courts and the Board have treated the issue. For example, the Board has noted that “nothing in [§ ]10501(b) is intended to interfere with the role of state and local agencies in implementing Federal environmental statutes such as ... the Clean Water Act.” Friends of the Aquifer, City of Hauser, ID, Hauser Lake Water Dist., Cheryl L. Rodgers, Clay Larkin, Kootenai Envtl. Alliance, R.R. & Clearcuts Campaign, No. 33966,
Numerous Article III courts have also found no conflict between the statutes. See, e.g., Humboldt Baykeeper v. Union Pac. R.R. Co., No. C 06-02560 JSW,
In the face of the voluminous authority supporting a harmonious reading of the Board’s exclusive jurisdiction and the ability of entities — including state and local governments — to enforce the CWA, the Court holds that the EPA has acted within its proper jurisdiction in bringing the present action. Although Defendants have made several specific (and in some instances novel) arguments for preemption, as discussed below, none can overcome the conclusion that preemption does not apply.
1. Drainage and Vegetation Exemptions
Defendants argue that federal regulation of drainage and vegetation on tracks under 49 C.F.R. §§ 213.33 and 213.37 support a determination that the ICCTA’s scope is comprehensive and displaces the CWA. Dkt. No. 65, at 3-5. However, the regulations, like the Statute, can be consistently read with the requirements imposed by the CWA: the regulations ensure that railways are in a safe, usable condition, while the CWA protects United States waters from pollutants. Therefore, the regulations have no bearing on the Court’s preemption analysis.
2. Self-Executing Exemption
Defendants argue that they did not need to obtain a § 404 permit because, in connection with clearing vegetation and maintaining proper drainage, they are protected by a self-executing exemption under 33 U.S.C. § 1344(f)(1). Dkt. No. 65, at 12-13. Availing oneself of this exemption is a defense to an enforcement action brought under the CWA. See June v. Town of Westfield,
3. Interference with Rail Transportation
Defendants argue that the EPA lacks authority to bring the present action because it is unduly restricting railroad operations and unreasonably burdening interstate commerce. Dkt. Nos. 8, at 14-16; 24, at 4-8; 25, at 4-11; 65, at 7-11. Defendants’ argument is without merit.
The Board has identified categories of state and local regulation that are preempted by the ICCTA. These categories include preclearance requirements that could be used to deny a railroad the ability to conduct its operations as authorized by the Board, intrusions into matters regulated by the Board, and other state actions that would have the effect of unreasonably burdening or interfering with rail transportation. CSX Transp., Inc.— Petition for Declaratory Order, No. 34662,
Nevertheless, Defendants point to case-law and administrative decisions suggesting that enforcement of a federal environmental statute may be impermissibly done to “unduly restrict [a] railroad from conducting its operations, or unreasonably burden interstate commerce” — “a fact-bound question.” See, e.g., Boston & Me. Corp.,
Again, however, throughout the cases on which Defendants rely, the adjudicators limit their concerns to the effect of en
Even assuming that the standard may be used to restrict a federal agency’s ability to enforce the CWA, Defendants have not shown an undue burden.
B. The Effect of the Corps’ Inaction
Next, the Court addresses whether the Corps acquiesced to Defendants’ (now discounted) legal position on preemption, thereby creating a defense in the present action. Defendants contend that because only the Corps is authorized to issue § 404 permits and the Corps never responded to Defendants’ October 2008 communication, the “most logical, if not the only, explanation for the Corps’ inaction was that it agreed with [Defendants’] conclusion” that the Board has exclusive jurisdiction over the track construction and that a § 404 permit is not required. Dkt. No. 8, at 17.
The Court finds no legal basis in Defendants’ acquiescence argument, which the Court construes as one for equitable estoppel. Although the Supreme Court of the United States has declined to rule directly on whether equitable estoppel is a valid defense to governmental actions, courts have long expressed reservations on whether it should ever be recognized. See, e.g., Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc.,
Equitable estoppel requires (1) an allegation of misconduct on the part of the party against whom the defense is made and (2) reasonable reliance by the party claiming estoppel on the adversary’s conduct (3) in a manner that changed the party’s position for the worse. See Basel v. Sec’y of Defense,
Given the high bar to show actionable reliance on affirmative government action, an argument based on mere government inaction appears utterly without merit. See, e.g., Warshauer v. Solis,
C. Pleading Under Rule 8
Defendants argue that the Government’s claim is deficient under Rule 8(a)(2) by failing to allege the Corps’ regulatory position on Defendants’ construction activity and whether it requires a § 404 permit. Dkt. No. 8, at 17-18. The Court finds no basis in Defendants’ contention. Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Government’s claim is premised upon Defendants not obtaining necessary permits from the Corps to discharge material into United States waters, and the facts alleged are sufficient to suggest a plausible claim for relief under the CWA. A specific allegation of the Corps’ position on whether a permit would have been required is not necessary in light of the Complaint’s other allegations.
D. Vagueness Under the Fifth Amendment
Defendants contend that they were provided insufficient notice, before construction or at any time since, that they were required to obtain a § 404 permit, thereby implicating the Fifth Amendment’s Due Process Clause in the present action. Dkt. Nos. 24, at 10; 25, at 12.
Defendants’ vagueness argument is without merit. As an initial matter, the Court notes that as of December 2008, when the EPA issued its first administrative compliance order, Defendants were definitively provided notice that the EPA considered Defendants to be violating the CWA. Cf. Tenn. Valley Auth. v. Whitman,
Regardless, even before the compliance order was issued, what was required of Defendants under the CWA before beginning construction was not so vague as to deprive a “person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford,
Y. Conclusion
For the aforementioned reasons, Claudius Strickland’s Motion for Summary Judgment is DENIED, St. Mary’s Railway West, LLC’s Motion for Summary Judgment is DENIED, and the United States of America’s Motion for Partial Summary Judgment is GRANTED.
Notes
. A number of other circuits have explicitly adopted this position as well. E.g., Franks Inv. Co. LLC v. Union Pac. R.R. Co.,
. Defendants dispute that the distinction between federal and state law matters. Defendants do this despite there being "clear indication that the [the Board] itself sees some difference in the preemptive scope of 49 U.S.C. § 10501(b) between state law of general applicability and federal law of general applicability.” Holland v. Delray Connecting R.R. Co.,
. The Court does not countenance Defendants' argument that the Government failed to discharge its burden to provide sufficient facts, or that there is no dispute that the EPA's enforcement activity is an undue burden. Dkt. No. 25, at 4-5. Although whether there is an undue burden is a "fact-bound determination,” the Government has explicitly contested that the as-applied standard is relevant to federal action or that an undue burden exists. Even taking Defendants' factual averments as true, the Court cannot find that an undue burden is imposed on Defendants’ activities.